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10/10/2011 - 31294CITY COUNCIL MEETING CITY OF FRIDLEY OCTOBER 10, 2011 The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:30 p.m. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember Varichak Councilmember Barnette Councilmember Saefke Councilmember Bolkcom OTHERS PRESENT: William Burns, City Manager Darcy Erickson, City Attorney Scott Hickok, Community Development Director James Kosluchar, Public Works Director Darin Nelson, Finance Director/Treasurer Julie Jones, Planning Manager Layne Otteson, Public Works Nichole Mundis, 1623 Briardale Road Bob Melle, 1613 Briardale Road Steve Junich, 1643 Briardale Road Bob Cote, Schmidt Osborne, LLC Scott Tesmer, Home Depot APPROVAL OF PROPOSED CONSENT AGENDA: APPROVAL OF MINUTES: City Council Meeting of September 12, 2011: Councilmember Saefke stated on page 28, second paragraph from the bottom, line 9, it should read, ". .. suspect even though there are supposed to be check valves in floor drains, etc." Councilmember Bolkcom stated on page 14, paragraph 5, the word "was" should be replaced with "were." Councilmember Bolkcom stated also on page 14, paragraph 10, the word "storing" should be replaced with "enforcing." FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 2 City Council Meeting of September 19, 2011. APPROVED AS CORRECTED. NEW BUSINESS: 1. Resolution Confirming the Statutory Level of Tort Limits. William Burns, City Manager, stated the League of Minnesota Cities Insurance Trust asked the City to decide annually if it wants to waive statutory tort limits. The City does not. Staff recommends Council's approval of the resolution. ADOPTED RESOLUTION NO. 2011-46. 2. Motion to Approve the Fiscal Year 2012 Budget for Twin Cities Gateway. William Burns, City Manager, stated the Twin Cities Gateway is an organization established to promote an area that includes Fridley, New Brighton, Anoka, Coon Rapids, Blaine, Ham Lake, Lino Lakes, Mounds View, and Shoreview. It is funded by a 3 percent tax levied against local lodging. The budget for the ne�t fiscal year must be approved by each of the member cities. The budget approved by their Board provides for 2012 expenditures of $634,200 or about 12 percent more than the projected expenditures for 2011. Dr. Burns stated 79 percent of the budget is for projected marketing and promotion of the area; 21 percent is spent for administrative and overhead expenses. They have decided to spend a little more money in 2012 because they have a fairly sizable cash balance and rather than sit on that, they want to promote the area. Staff recommends Council's approval. THIS ITEM WAS REMOVED FROM THE CONSENT AGENDA AND PLACED ON THE REGULAR AGENDA. 3. Resolution Designating Time and Number of Council Meetings for 2012. THIS ITEM WAS REMOVED FROM THE CONSENT AGENDA AND PLACED ON THE REGULAR AGENDA. 4. Approve 2012 Development Review Schedule for the Planning Commission and the Appeals Commission. Councilmember Varichak noted on page 15 it appeared there should also be two asterisks ne�t to the line, "City Council Meeting — January 7 or January 14, 2013," indicating the date is subject to change. APPROVED. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 3 5. Claims (152363 — 152633). APPROVED. 6. Licenses. APPROVED THE LICENSES AS SUBMITTED AND AS ON FILE. APPROVAL OF PROPOSED CONSENT AGENDA: Councilmember Bolkcom asked that Item Nos. 2 and 3 be removed. MOTION by Councilmember Bolkcom to approve the consent agenda with the removal of Item Nos. 2 and 3 and adding approval of the minutes of the September 21, 2011, Planning Commission meeting. Seconded by Councilmember Barnette. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. ADOPTION OF THE AGENDA: MOTION by Councilmember Bolkcom to approve the agenda with the addition of Item Nos. 2 and 3 and adding approval of the minutes from the September 21, 2011, Planning Commission meeting. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OPEN FORUM, VISITORS: No one from the audience spoke. PUBLIC HEARINGS: 7. Consider Repealing Chapter 510 of the Fridley City Code Entitled, "Tree Preservation." MOTION by Councilmember Saefke to open the public hearing. Seconded by Councilmember Barnette. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS OPENED AT 7:43 P.M. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 4 Scott Hickok, Community Development Director, stated Chapter 510 of the City Code will not allow removal of trees in a public right-of-way without a very formal and elongated process. On May 23, 2011, the Parks and Recreation Commission recommended modification to Chapter 510 of the Fridley City Code. In June, the Planning Commission reviewed and recommended modifications to the ordinance that was presented by the Parks and Recreation Commission. Both the Parks and Recreation Commission and the Planning Commission agreed the changes should be made. Mr. Hickok stated Council held a public hearing on this and there was a first and second reading of the ordinance. In retrospect, however, the best action would have been to repeal the ordinance altogether and replace it with a policy regarding tree removal on public properties. The origin of the ordinance was to protect Springbrook Nature Center from being developed as a golf course many, many years ago. The reality is that trees that need to be removed in the City's parks and public lands cannot be removed when necessary because of being bound by this ordinance which makes it very difficult to do so. Mr. Hickok stated staff prepared a policy that both protects the City's trees and allows, when necessary, the removal of trees in its parks and public right-of-ways. It was prepared by the City's forester and reviewed by the Public Works Director, the Community Development Director, and the Parks and Recreation Director. Mr. Hickok stated staff recommends Council hold a public hearing and take comment on the action to repeal Chapter 510 and consider repealing it and replacing it with the policy recommended by staff. Councilmember Bolkcom asked if school property is considered public property. Mr. Hickok replied, yes, it is. Councilmember Bolkcom asked if Totino Grace was considered public property. Mr. Hickok replied that is private property and would not follow Chapter 510. Fridley High School and Middle School would be considered public property. Councilmember Bolkcom asked if the public hearing was to repeal the ordinance and to discuss the Tree Management and Public Lands Policy. Mr. Hickok replied the hearing is to bring both items forward. Councilmember Bolkcom stated under the proposed City policy for tree management on public lands, she believes most people do not know the word, "promulgate" means "publicly declare." She said there was also a lot of repetition in the paragraphs that needed to be looked at. James Kosluchar, Public Works Director, replied the first paragraph should have been eliminated. The question regarding Parks and Recreation Commission is answered in 3(C)(4); FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 5 therefore, trees larger than 3 inches in diameter will require a site plan to be submitted to the City Forester and Parks and Recreation Commission. Councilmember Bolkcom stated in (C)(1), the review by Parks and Recreation Commission, she thought about the dog park as an example. It actually applies to any park, because it is Fridley's park but Anoka County basically maintains it. It actually has to come back to the City Council, and it has not in the past. There were a fair amount of trees removed when the dog park went in and with the previous changes that happened there, it should have come back to City Council as that was part of the Joint Powers Agreement. They may want to keep that separate, and she thinks there should be something in this policy. William Burns, City Manager, mentioned there is Manomin and Riverfront, too. Councilmember Bolkcom stated they have to be careful these do not supercede that because it is in that agreement. This should be looked at before this comes back to them. Councilmember Bolkcom asked if railroad right-of-ways are considered public right-of-ways. Mr. Hickok replied, that is correct. Councilmember Bolkcom stated they can come in and cut down any trees they want because it is the Railroad's property. Mr. Hickok replied, that is right. Councilmember Bolkcom stated it is confusing to some people because they think it is the City who is coming in and cutting them down. Councilmember Bolkcom stated she did not understand the section on "Utilities" and asked that it be explained. Mr. Kosluchar stated this controls the plantings under those lines to avoid running into circumstances where they have large trees interfering with the power lines. The trees have to be trimmed out and are weakened and look unsightly. Councilmember Bolkcom asked, however, for trees that are already there, in reference to a power line along one of the City's parks, this sort of tells her the power company can come in and do that. Mr. Kosluchar stated the City does not want to interfere with the power company's right, authority, or judgment when it comes to trimming around their electric lines. They are going to do the minimum work they have to in order to make sure their lines stay up. Mayor Lund stated regarding the statement that "only small trees shall be allowed to be planted," would it be better to say "small species type tree." He thinks it needs to be defined more clearly. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 6 Dr. Burns suggested, "trees with normal growth under ten feet." Mr. Kosluchar replied, that is a very good idea and maybe they can show examples or a category of small species of trees that can be used. Mr. Hickok stated the power company does have a list which would be good to insert. Councilmember Bolkcom stated regarding the acceptable plant types for public property, basically this is all they are expecting anyone to plant. Mr. Kosluchar replied, he really feels this is geared toward public and staff utilization for this policy right now. Councilmember Bolkcom stated she perceived this as any tree you put in the park has to be a certain size. Are they hurting themselves by saying it has to be 3 inches in diameter? Mr. Kosluchar replied, anything the City plants is going to be substantial. Councilmember Bolkcom asked whether the City forester would approve every tree that goes in any park. Mr. Kosluchar replied, he should. He said he does not know about the Anoka County Parks Department. Mr. Hickok stated to answer the part of the question as to whether we are consistent, on private properties where there are industries or commercial planting, trees must be a 2.5-inch caliper minimum. This is half inch larger but consistent with what the Forester is interested in. Councilmember Barnette stated at the stop sign on 66th Avenue at 7th Street, there is a tree on the corner which may be in the right-of-way. There is a branch hanging down in front of the sign. Would the owner be able to cut that branch or would he have to contact the City? Mr. Hickok stated it sounds like it is a visibility issue at the roadway, and the City would take care of that. Councilmember Bolkcom stated, for example, years ago she planted a tree in the public right- of-way and now she cannot trim it? Section 3(C)(2) says no person shall trim, cut, prune, or otherwise eliminate growth from any tree on public property without a permit. If there is a branch hanging over in the street or hanging over her garden and she wants to trim it, is she allowed to do it? Mr. Kosluchar replied, they will have to look at that. He said it goes back to the earlier discussion of what do they want to permit in the right-of-way. MOTION by Councilmember Barnette to close the public hearing. Seconded by Councilmember Saefke. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 7 UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CLOSED AT 8:08 P.M. 8. Consider Proposed Assessment for 2010 Street Improvement Project No. ST. 2010-1A. MOTION by Councilmember Saefke to open the public hearing. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS OPENED AT 8:09 P.M. Darin Nelson, Finance Director/Treasurer, stated this project assessment pertains to the mill and overlay of City streets as part of the City's street resurfacing plan. As they may recall, the area under consideration has been held over from a previous assessment hearing in October, 2010, to allow correction items to be addressed by the contractor. The City Council set the special assessment for the other portions of the 2010 street improvement project at that time. The contractor has since performed the necessary corrections. Mr. Nelson stated the total number of properties subject to this assessment is 192 with a total assessed cost of just over $269,000. Each single-family residential property is proposed to have an assessment of approximately $1,370 which is equivalent to the properties previously assessed for this project. There is one property located along this assessment area that has potential for a lot split so the amount is doubled. Mr. Nelson stated the assessment payback period is ten years. Payments are subject to a 6.5 percent interest rate, and owners have until November 23 to pay a portion or all of the assessment interest free. Councilmember Bolkcom asked Mr. Nelson how does the City arrive at the 6.5 percent interest rate? Mr. Nelson replied, that interest rate was also the previous interest rate for last year's assessment. That interest rate is determined by debt service assessment, that debt was issued in 2010 to cover street reconstruction projects from both 2009 and 2010, and the City needs that interest rate to cover those debt service payments. Even though the City's debt service payments are not at that interest rate, the City does need to accumulate that interest rate to account for any prepayments that are made up front that the City does not earn interest over that time frame. Also, there are other out-of-pocket costs the County charges the City, assessment fee per parcel each year along with each assessment roll, along with fiscal agent fees for the City's debt services, too. Councilmember Bolkcom asked is it fair to say the City is not making any money by having this 6.5 percent interest rate. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 8 Mr. Nelson replied, yes, this is covering the cost of the City doing business. Councilmember Bolkcom stated and the residents have three options: they can pay up front, they can get their own loan and pay it off; and, they can do the 6.5 percent interest rate the City is offering. Mr. Nelson replied, yes, that is correct. Councilmember Bolkcom stated and there is also another option for senior citizens. Mr. Nelson replied, correct, there is that as well which is also is income-based. The assessment has to be 1 percent of their adjusted gross income or there is a federal income threshold. It is a very low-income threshold defined by the Federal Community Development Block grant which ranges anywhere from $28,000 to $54,000 depending on the number in your household, etc. They would have to file with that within 30 days of the setting of the assessment. Staff can help them set that up. Bob Melle, 1613 Briardale Road, stated he was an advocate of the postponement of the levy for the road project in 2010 because of the imperfections and poor quality of the job done by the contractor. He thought it was supposed to have a sealcoat put on it which was not fixing any of the imperfections but hiding them. There was no mention of chip being applied to that sealcoat. They were given notice they were going to come in and do the sealcoat. They did. They never rolled it. They came back in about 1'/z or 2 weeks later at around 7:30 a.m. on a Saturday which he believed was against all ordinances. Spreading more chip on the road, going around cars parked on the side of the road. Mr. Melle stated he has talked to many of the neighbors in the area, and none of them are satisfied with the project. They feel it is by far inferior quality. The chip surface is already diminished and bleeding through. It was not applied correctly. There was no rolling of the chip; it was a dust bowl for two weeks. When one of the neighbors talked to the contractor on site, the contractor said they were just going to have the cars drive over it instead of having it rolled. Mr. Melle stated he believed in 2010 they also agreed in this assessment and postponement and corrective action that the contractor would be responsible for coming back to Rice Creek Road and reheating the seam that runs parallel with the traffic lane drive and roll it perpendicular which is the proper way. That has not been done. In their viewpoint they have a very inferior product that is not worth the amount that is being assessed to the taxpayers and the citizens in this area. It is not going to last the time period, 20 years or so, as is expected on a road. It looks worse than it did before the project even started. In his opinion it is not worth 25 percent of what the City is asking them to pay, and he strongly objects to paying the full amount for a project that is not of a quality product. He does not think anyone here would pay full price for an inferior product that was not guaranteed to work. Steve Jusich, 1643 Briardale Road, said he is not really qualified to speak to the structural integrity of it but he asked, regarding the initial presentation, before the project ever started, the FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 9 City explained putting the rock down as a short-term fix but, in the long run, it actually shortened the life of the road. Mayor Lund asked Mr. Jusich whether he was talking about the slurry and the gravel that was put on afterwards? Mr. Jusich stated, yes. Mayor Lund replied, he has never heard that one before but will have Mr. Kosluchar respond to that. In fact, they do that throughout the City in a cycle and it is to enhance or improve the road as far as making it longer lasting. Mr. Jusich stated aesthetically speaking it does look worse with the rock and slurry. Nichole Mundis, 1623 Briardale Road, stated she does not know much about construction or streets but she recalls when the street was finished she remembered going to Bob and asking, are they finished because this looks horrible. The tar goes up over the sides of the street, the manholes are not even with the street. Furthermore, she does not know who the construction company is who was hired to do the job; but they were completely rude and unprofessional, working at hours that were unacceptable. She was coming home at 9:30 one night, they had all the roads blocked, there was no warning that would be happening, and they started yelling at her for getting in their way. She is a single mom, she has a four-year old, she cannot even afford her mortgage at this point, and to then be putting these assessments on and asking her to pay for something that looks the way it looks is absolutely ridiculous. She works in customer service and, when you are given a product like that, it is ridiculous to pay for that. She thinks the only way to fix it at this point is to tear it up and redo it. That is how bad it looks. It did look better before. Fadumo Yusuf, 6140 Fifth Street NE, said he is talking about the assessments. The residents only have two options: they have to pay up front or have the 6.5 percent interest. She also asked if they could have the option to arrange payments. Mayor Lund replied, that is what the 6.5 percent interest rate is. It is put on your property taxes for ten years. It would be the assessment amount at the 6.5 percent rate. Councilmember Saefke stated also if people think the City's interest rate is too high they can always get a loan through a bank, pay the assessment amount off, and then pay the bank off. James Kosluchar, Public Works Director, regarding Mr. Melle's comments, the City of Fridley typically installs chip seal. It is more durable. Aesthetically it may not please all the people along the project route, and that was not the City's intent. What it wants to do is provide for the longest life that it can with the street; therefore, the City installs a product the City is familiar with and feels the asphalt emulsion there is going to seal up any voids left by the original paving work In regard to no mention of chip seal, staff did not have an impression of what folks thought the product was going to be. The City does sealcoat in other areas of the community, FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 10 and he thought it was pretty clear when they talked about it at Council meetings that this was the product they would be using. Mayor Lund stated looking at the sealcoat update, dated July 1, it does talk about sealcoat. It does not specifically say the type of sealcoat with the chip although the chip seal is long-term, and has been well-used for a long time in the City of Fridley in rotation. Approximately every eight years the streets get the chip seal. This is consistent with what has been done for many years. Councilmember Saefke stated he thinks the confusion was because there is a difference between just sealcoating and mill and overlay. The mill and overlay should last longer than just plain sealcoat without doing any mediation besides crack filling on the base. Maybe that is where things got confused--that the mill and overlay was actually supposed to be better than just plain sealcoat. Typically when the City says, "sealcoat" it usually pertains to chips, rock, or gravel of some sort as opposed to just dropping slurry like you have on a private driveway. All it does is makes things look pretty for a while and if you have too many coats, it peels off. The chip is actually better. Mr. Kosluchar stated in regard to the street project, the sealing of the streets was in direct response to the open grading on portions of the streets that, while they do not think it was really a structural concern, they thought it was a durability or wear concern. In other words, water gets in there, ice forms, and it starts to expand and erode the surface. There may be some aesthetic concerns as far as rough edges and things like that. You will see this on other roads where the City has done mill and overlays recently. They do not replace all of the curb. By not replacing all the curb, they do not have a perfect straight pavement match with the curb. Mr. Kosluchar stated the contractor's duty is to basically maintain a pretty level grade in order to provide decent ride and, if the curb is jumping up and down, even fractions of inches in between segments there is going to be that edge. They try to take out the worst of the curb. On this job, they probably did more curb percentage wise than they have on any mill and overlay in recent years. They had a fairly large change order for some of that curbing. They are also trying to hold down costs while doing this. It is like buying a house that is not newly constructed. You are going to have some of the underlying issues with the old street but you try to make it structurally sound and make it last and lengthen the time between reconstructs. Mayor Lund stated every councilmember has looked at these streets from way back last year when they did not allow the assessment to occur because they wanted corrections made as well; that there were some areas where the asphalt was clearly higher than the curb. The asphalt is not necessarily going to meet the curb which is up and down. You put the asphalt at the high points, otherwise you are going to be following curb that is up and down and it looks wavy. Mr. Kosluchar stated they did direct the contractor to heat and roll the edges on those portions that were adjacent to someone's driveway so they did not have issues with plowing, etc. They still believe the remainder is more of an aesthetic concern than a functional concern. Basically the street directs water to the gutter still, and the gutter carries the storm water away. It functions as it should. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 11 Mr. Kosluchar stated in regard to the contractor and unprofessional activity, he is sorry to hear about that. It is the first he has heard about this particular instance. Mayor Lund stated the City has heard on several occasions, complaints about hours of service. There was a discussion about a contractor who was there until late in the evening laying asphalt and it was his understanding the supervisor on that job was terminated. He said the City did try to address that with the contractor. He does not know of another time the City has ever withheld an assessment for an entire year to make the contractor try and make amends for problems that needed to be corrected. Councilmember Saefke stated regarding Rice Creek Road, that is a County road. As far as that road goes, the Anoka County Highway Department has approved that. It meets their satisfaction as far as quality and workmanship. Mayor Lund stated they had some corrections made, too. Councilmember Saefke stated there were some corrections made which were done last fall. He said he was concerned that they are mixing up last year's public hearing issues with this year's. If the remediation was done outside of normal work hours, he would like to hear about it. They already know about last year's starting early and working late. That is one of the reasons why the City delayed this thing for a year so these problems could be resolved. The City did take a consultant who is an expert in roads out to the site as recently as today. He examined everything. Mr. Kosluchar stated it was a consultant who used to work for MnDOT and who worked for other municipalities. There was maybe some aesthetic concern on the consultant's part; no functional concern. In addition, they had discussions with MnDOT early on in this process when they were trying to get the contractor to provide a corrective remedy for the work that had been done. As far as Rice Creek there is a visible seam; however, where the actual edge is, the impediment or concern, it was reworked last fall and Anoka County did accept that. There is a similar seam if you drive westbound on East Moore Lake Drive from Highway 65. Typically there is a seam at the crown. It is less visible or less noticeable. In this case it is in the middle of the lane, because they are trying to pave as much as they can with one pass. Mr. Kosluchar stated as far as the time the work started, he was not aware of that issue. William Burns, City Manager, stated the consultant who was out today is a consultant and not a member of a governmental agency. He is a well-respected consultant from WSB Associates Inc. He said he was also there, and the consultant's commentary was that while there are some slight imperfections, the street is very normal. While the contractor made some earlier mistakes, they have gotten those cleared up; and the street is an acceptable street. Councilmember Bolkcom asked if this was something normal you would see in a reconstruct. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 12 Dr. Burns replied, as Mr. Kosluchar stated if they try and match the gutter with the street, you are going to have a rolling street because the gutter has imperfections. What the contractor is trying to do is make the street as flat as possible. When you do that there are some instances where the asphalt may be higher. He thinks the City has addressed the e�treme cases. He said he did not see any e�treme cases on all of the streets he looked at today. He thinks it is acceptable. Councilmember Bolkcom asked is it fair to say that if anyone has any problems, the City wants to hear about those areas where they now have water collecting. It does not mean just because the assessment is done, we are not done with any problems. The City wants to hear about issues so they can be corrected. Mr. Kosluchar stated there is also the warranty work There is a two-year warranty on the concrete work after the project is accepted, and the warranty period on the general work is one year. The City wants to hear about any further issues or concerns. He would rather be called out and know about small problems than not know about anything that is going on at all. Councilmember Bolkcom asked when does the warranty started. Mr. Kosluchar stated he believed the warranty on the contract is based on the final payment and closeout. Councilmember Bolkcom asked whether the contractor has received final payment? Mr. Kosluchar replied, he thinks they did just receive final payment. Councilmember Bolkcom stated hopefully this spring those issues would show up. Mr. Kosluchar replied, absolutely. They do know that the cul de sac has already taken a beating with the chip seal because of garbage trucks, but that is typical. Councilmember Saefke stated regarding the allegation the contractor did not roll the rock when they put it down, was that not done? Layne Otteson, Assistant Public Works Director, replied he was out there while it was being laid, along with an inspector from WSB. That inspector is a professional sealcoat inspector. Half of his job is just sealcoat work Mr. Otteson stated he did see a roller out there and it was rolled. A comment was made that on a Saturday after that there was some rock placed in the morning. He was not aware when that was done, but he called the contractor and directed him to provide sand blotting. Those are areas where the oil comes through the rock in certain areas which basically gets it to be blended back in and absorb by the oil. It is very common on a sealcoat project to have issues like that. It is in the contract. They expect to have some oil bleed through, and that is why they require the contractor to respond immediately with sand blotting. The contractor probably was maybe a little over zealous in response to Mr. Otteson's phone call to him and got out there a little bit too early on Saturday. The starting hours are 9:00 a.m. unless otherwise approved by the Public Works Director. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 13 Mr. Otteson stated the reason why they had an inspector WSB watch a sealcoat is because, with a brand new street it is different. In the past they would have been sealcoating streets that had either been previously sealcoated or 8 to 10 years old. Putting oil on a brand new street that already has a high oil content, there is some concern that if you put too much oil on it, it just does not react very well, sets up very poorly, and they could possibly end up with a greater mess. By employing the services of a consultant, they are able to have him watch the application rates work very closely with the applicator truck and make minor adjustments to the application and also watch the rock going down and make sure it is clean and the correct rock. Mr. Otteson stated he walked part of Rice Creek Road with the Anoka County Highway Department inspector and then he had him walk the rest of it with a city inspector from Central Avenue all the way to Stinson, to the City limits. They walked the e�tent of it both ways, and Anoka County identified areas that fused going eastbound and westbound that are in the center of the lane. He identified areas that needed to be heated up and rolled flat. Mr. Otteson stated regarding the concern that a manhole was not even, there is a manhole out there that has a little bit of a bump in it. He talked to one of the residents who lives adjacent to that manhole. That resident did not want him to send a contractor back out there and adjust that manhole. Mr. Otteson told him they will watch the snowplowing this winter and, if it is an issue for the City, they will come back and cut it out. That is a borderline manhole where they can fix it or leave it. Mayor Lund asked if it was because the resident did not want a patch around the manhole. Mr. Otteson replied it would look like a big black diamond in the sealcoat area. In 2010, he got a telephone call from someone who stated the workers blocked passage and said something rather derogatory for the person to drive around. He immediately went out to the project upon hearing that complaint and talked to the foreman at that time, and he was advised that would end or the project would be halted until the president of the company came out to have a discussion regarding the conduct of their employees. In that same area the contractor took it upon himself to be expedient and work until about 10:00 p.m. The police were called by a resident. They came out to the job and stopped the contractor from working that night. He said he received the report the ne� day. The officer did not issue a ticket. Mr. Otteson stated staff would be happy to meet with residents if they have an ongoing concern regarding work whether it is this fall, tomorrow, or ne�t spring or over the following years. They will go back on the City's projects after years and look at something that is not quite right. Mayor Lund asked about the parked cars the contractor rolled around. He asked whether there was any notification as to the date when they were going to put the slurry down and rolling. Mr. Otteson replied, two notices went out to the residents. The last notice is the one that is just a couple of days before the sealcoat. They let the residents know when the sealcoating is taking place. If a vehicle is in the way, the City hires a tow truck to come and hook up to the vehicle, move it off to the side. They also post signs, "No Parking by Police Order." He believes Mr. Melle may have been referring to when the workers went around and they kind of picked areas FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 14 where the oil had come through, and they were doing a little sand blotting. However, if Mr. Melle would like to contact him and explain it further, he would be happy to talk to him. Mayor Lund stated sand blotting is a normal process or outcome of putting slurry and chip on. He asked whether there was more of the sand blotting than normal because of the newness of the road and saturation of oil. Mr. Otteson replied, he knows it is not less than what would be typical. If he were to lean in any way, he would say, yes, there was a tendency for a little more sand blotting than what there typically has been. Mr. Kosluchar stated the idea of sand blotting is not necessarily a bad thing; it means that the rock is getting coated properly and that is the whole idea of the sealcoat. If you are not sand blotting, you may not be coating that rock which may loosen up over time. Mr. Kosluchar stated also clarifying about the contractor performing in Fridley, these two contractors are separate contractors. There is the one who performed the sealcoat installation vs. the contractor who constructed the roadway. The contractor who did the mill and overlay actually paid for the other contractor to come in and do the sealcoating. That was a City's choice of contractor. Councilmember Varichak stated she talked with Mr. Melle last week and formulated her questions to City staff. She asked when they do the dusting, there is no rolling once the sand is laid down right after the sealcoat. They drive over it, and it creates dust in the area, correct? Mr. Otteson replied, that is correct. It is sort of like putting floor-dry down in your garage when you have an oil spill. You put it in just those areas, you spread it around, and it absorbs the oil, it works in, the vehicles drive over it, and it becomes part of the sealcoat. Eventually the contractor comes back and sweeps it back up. In the event of dust and sand that is excessive, the City would like to receive a phone call so they can properly address it otherwise the sand kneads itself to the sealcoat and becomes part of the sealcoat. Councilmember Varichak asked at any time did any of the people on Briardale Road contact Mr. Otteson before the public hearing about any of these issues that were addressed tonight? Mr. Otteson replied he received an e-mail and a telephone call from a resident who lives north of Briardale who was very happy about the project and the drainage. However, as far as any complaints, he does not recall receiving any telephone calls or e-mails for the City to respond and go out and look at something other than the e-mail forwarded by Councilmember Varichak. That would date into the summer, maybe the spring, or last fall when they may have received some calls. Councilmember Varichak said they were just out there looking at the issues at hand. Mr. Otteson replied, if a resident was looking for City staff to come out, whether it is himself, Mr. Kosluchar, or a staff inember, they would set up an appointment. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 15 Councilmember Varichak stated they did receive a letter from a lady who was not aware of the public hearing at the time, and she did not feel her road needed to have the repair done. However, there may be areas that do not look as worn but, because the City is doing the whole project, they are included. Mr. Otteson replied, yes, but they also look at the road rating of the street. If a street is not rated low enough, they will not include it even if it is in the middle of the neighborhood. Ideally the City would like to group all the neighborhoods so that every 20 to 30, maybe even 35 years, they are coming back into a neighborhood and they are doing all of them. However, the way Fridley was built through the years, there are a lot of streets that are 10 to 15 years older than other streets within the same neighborhood depending on the rate of development. Mr. Kosluchar stated regarding the letter they received, staff did check and they did receive preliminary notice on the project. Councilmember Bolkcom asked if staff could go through how the whole process works for when the City decides to do a project. Mr. Kosluchar stated, not having dates on hand, he can tell them that in the fall of 2009 the Council originated the project by resolution and, at that point, one of the things they do is prepare a feasibility report which is a part of the direction of Council. One of the processes that they started with in this project was to have the City's open house prior to the completion of the feasibility study so they could include any comments or concerns that residents did have. They came back to Council with the feasibility study, and that is where they talk about the street rating and whether a street should be included. Staff's recommendations are made to Council. After reviewing the feasibility report, Council will then direct the preliminary hearing which is pre- construction, pre-bid, they are still in the design basically at that point. He believed that was held either late 2009 or early 2010. At that hearing, people are able to speak about whether they support the project. The City notifies residents by letter of the open house and the hearing. When they notify by letter they estimate what the assessment range could be. They try and come up with a conservative estimate. If Council chooses to go forward with the project, staff will go forward and bid; and then the construction happens. Typically in the fall of that season, they will have their final hearing on assessments which they did last year. Mr. Kosluchar stated they will recall the assessment was set for the westerly portion of this project. Council had set the assessment on half the project and decided to wait until the corrective items were completed on this portion of the project which is the eastern half. Councilmember Bolkcom asked if they would have received a letter about this public hearing tonight? Mr. Kosluchar replied, correct. There is another letter the City did mail out regarding the assessment. Again it includes the proposed final assessment per the assessment roll and, everyone who is subject to that assessment is notified with their corresponding amount. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 16 Councilmember Bolkcom asked and after tonight's meeting if the assessment is passed, then they also receive another letter. Mr. Kosluchar replied, that is correct. This is a letter from Finance and basically it talks about the assessment and the timeframe in which to either prepay or make payments and what the terms are and also includes information regarding the senior deferment. Mr. Melle stated he respectfully disagrees. There was no rolling done of the chip on the Briardale side of the street in the project. One of his questions would be, in a mill and overlay, what is the longevity expectations? It was said the chip coat is a remedial fix which is expected to be about 8 years. With the technical complications of doing a sealcoat over a brand new surface as it has been indicated, what is the expectations of the longevity of this road now in comparison to one with a properly installed mill overlay? He asked regarding the experts the City brought in, would those reports be made public for the residents' review? It was indicated there are better ways to do Rice Creek,. It was mentioned last year again that it was a hazard and danger to motorcyclists, having it in the center of the lane and offset. If they look back at the notes of that meeting last year it was said they would do corrective action and that was part of it, that they would heat the same and roll it perpendicularly. He is not as interested in what Anoka County or anyone else says. That is the corrective action that was agreed upon in last year's meeting. It has not taken place. Mr. Melle stated regarding the manhole on 61st Street, right above them, between Stinson and Benjamin, that manhole is about 2 to 2'/z inches below the surface. He is not sure what manhole was referred to as being acceptable. In his opinion that one is not. It was mentioned they did not call and notify the City of activities of the contractor. He does not believe it is his responsibility to notify the City Council of activities of their contractor if they are doing things above and beyond the legal limits of ordinances. He takes exception to that. Mr. Melle stated it was said that final payment was issued. He was surprised to hear that. When the Council meeting was scheduled for this date, the final payment was issued before public hearing. He is a little disappointed in that. Councilmember Bolkcom asked Mr. Melle to repeat what he said. Mr. Melle stated it was stated final payment was given to the contractor already. When the question was asked about the one-year warranty, it was indicated that the final payment had been made. He is surprised that the final payment had been made prior to public hearing. He believed there are new roadway projects for 2012. He asked if the specifications for those projects been reviewed to make this situation not happen again. He is a little disappointed that this contractor is being considered again. He is not sure if taking the lowest bidder is the proper attitude for longevity of a project. Ms. Mundis stated she reiterates what Mr. Melle said. She feels like she is hearing a lot of okays and the consultant that the City brought in said it was acceptable. They are paying the money for this, and she does not think that "acceptable" is okay. She does not think okay is alright. When you pay for a product, it needs to meet high expectations. She has lived in Fridley FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 17 and Spring Lake Park, she has seen roads go in, and she knows what they are supposed to look like. She understands it is a remake and she hears that it is going to last forever, that is great, but aesthetically what do they want the community to look like. She works in North Minneapolis. She works in the urban areas of St. Paul. She does not want our neighborhoods to become something that is just okay. It should meet high standards. She hears all of them saying it does not meet high standards, but it is just okay. She is not okay with that because she is paying for it. MOTION by Councilmember Barnette to close the public hearing. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CLOSED AT 9:07 P.M. Mayor Lund stated under the contract performance, he understands the points made about excellence. He thought staff has followed through with a number of the complaints and so has the City Council over this whole process from last year. Ultimately the City and taxpayers will have to pay an assessment. He does not think there is any recourse short of doing an assessment, and he thinks it is fair. He thinks there were some problems with it, and understandably, people were upset about it, and he thinks that those have been addressed. The contractor has not necessarily admitted to all of those; but did hire another firm to do the slurry and the chip seal. Mayor Lund stated staff did a fairly decent job about keeping people informed about upcoming things. He thinks it is not a perfect job; probably never will be. There were some places where there were a couple more inches of asphalt where it needed to be corrected in his opinion but as he understands the process, better to have too much than not enough so you do not have water pocketed, etc. Mayor Lund stated as far as Rice Creek Road, the City did notify the County; and they are in charge of their own project. He does not know if that cross-rolling Mr. Melle mentioned was ever done. Mr. Kosluchar stated as Mr. Otteson pointed out, that was walked with County staff and the City's inspector and those locations that needed to be rolled were rolled. The entire length was not heated and rolled. To even go out there today and see portions that are not heated and rolled there is no seam. You cannot feel it. You can get down on your hands and you cannot feel a thing. It does not make sense to do it in locations where it is not necessary. Again, regarding the crown of the road, in that circumstance there is not a paver wide enough to pave that in two passes so you have to have a seam outside the crown of the road. Councilmember Saefke stated regarding the comment made earlier they would have been better off just tearing up everything and putting in new streets, if they think this assessment is too much, if streets had been torn up and curbs ripped out it would have cost probably four or five times as much at least. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 18 Dr. Burns stated regarding other places where the seams and the curbs did not match, when they did cuts such as across the way, they went from seam to seam but diagonally across the road. However, to correct that you would have had to have a new street. Councilmember Saefke stated the development did not go in all at the same time, and you had streets going in at different times with different contractors doing all that work They tried to make things work and fit. The analogy was talked about before about buying an older home. If you have ever done any wallpapering or anything of that nature, you are not going to end up with perfect corners because it is one of the imperfections of construction. Councilmember Bolkcom asked if there was a written report from the consultant. Dr. Burns replied, no. Councilmember Bolkcom stated with any project the City goes out for bid, they have to accept the lowest and best one. They do know there were issues with both of the contractors. The Public Works staff, the City councilmembers, and Dr. Burns are well aware of most of those issues and, if they were to win the bid for ne�t year's street project, there would be a lot more discussion up front. People may ask the City paid the final payment but, by the law, it has to pay that. The City held up the money for some time to get this stuff corrected. At some point they did finish their project. She is hearing some people are not very happy with it, but the project was done and the City has to pay them. Mayor Lund stated the other alternative was for the City to take a hard-line stance and say, no, we are not going to assess and not going to pay you. Then they would have been in court. The City can either work with them and get the corrections done or hire someone else to do the corrections. He thinks they did take that into consideration in the final payment and some penalty clauses were embedded into that final payment. Mr. Kosluchar stated they do take this with concern from the City's standpoint. This did take a great deal of effort on his staffs' time. It was not the easiest contractor to work with. It was not the standard of excellence they would like to see. They do see that from most of the City's contractors. They did not see that on this particular project. He thinks there is some truth to stating they have to entertain bids from contractors who may not perform in an excellent fashion. However, they have taken this one step further and looked at our own specifications and our bidding process and there is new statute that was passed and is in effect as of a couple of years ago which deals with best value contracting and, in that type of award, a City can actually award based on other factors besides price. Its implementation is somewhat troublesome. MnDOT was very instrumental in getting the statutory language passed. However, they have even backed off a little bit from it because it is difficult from a legal perspective. Although the City is looking at possibly implementing something like this in the future. Mr. Kosluchar stated in order to obtain that excellent level and to award on something based on other than price, people are going to pay a little bit more to do that. He does not think people should necessarily expect this kind of poor service. The City has not had this historically and FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 19 quite honestly did not expect this out of this contractor. The way they performed on the first half of the project, they had very little issue with them and it just turned around. Councilmember Saefke stated sometimes it is not the contractor, but the crew. A major contractor may have a good reputation but a particular crew may not be up to what they would consider high standards. In this particular case a foreman was let go because of that lack of consideration. Councilmember Varichak asked for people to stay on top of issues and if any arise to notify the City as soon as possible. Mayor Lund stated regarding the pothole that was too low or another one too high, he asked staff to take down the locations of those. OLD BUSINESS: 9. Second Reading of an Ordinance Amending Fridley City Code, Chapter 206, Building Code, Section 206.07, Contractor's Licenses, to Include Sanitary Sewer Service Cleaners. James Kosluchar, Public Works Director, stated the City's sewer supervisor indicates concerns with potential for blockage of sewer mains during contractor work Contractor licensure would lay out procedures for notification to the City, provide communication to residents, and insurance. The process is to modify Chapter 206 of Fridley City Code. They had a public hearing on September 12, 2011, and first reading of this ordinance and modification on September 19. If it is approved this would be in effect on January 1, 2012. There is annual application fee of $35 per contractor per year. Mr. Kosluchar stated the contractor would provide basic information to owners. The City perceives this need because many owners do not deal with these issues on a regular basis, and it is good to know the City can be a resource for them especially when they are dealing with a very expensive and foreseen circumstance. Mr. Kosluchar stated our City would require the contractor to notify the City when cleaning is to be performed. This is to allow the City to ensure the main is clear. This may save the owner from paying for a cleaning of their service when it is unwarranted or avoid backup of the main affecting other residences. The insurance requirement is a desire of ours, along with Workers' Compensation in accordance with State law. The City also would like the contractor to carry some liability insurance. Mr. Kosluchar stated the license criteria had never been requested in writing for contractors but some have been requested verbally. There is no issue with State licensing as long as the activities are not licensed by the State of Minnesota currently, which they are not. Staff asks that the City Council move the second reading of the ordinance. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 20 Councilmember Bolkcom asked about the last paragraph on page 54, which states, "The proposed license would be annual, and no license would be required at the time of work" Mr. Kosluchar stated to clarify it basically means no license is required on a job-by-job basis. Mayor Lund stated there are no permits required. Mr. Kosluchar replied, correct, no permits are required. Just the annual license. Councilmember Bolkcom asked and if they want to clear sewers in the City of Fridley, once this goes into effect, then they should come and get their license so they have it done. However, if someone had an emergency, they could go work on that property and then after the fact they would get their license. Mr. Kosluchar replied they would only expect them to come in afterwards and license with the City. Councilmember Bolkcom stated she still believes there is an easier way to do this and a way to try this before they do a license, and she will be voting against this. Councilmember Barnette stated shortly after they had the first reading, he had the unfortunate circumstance of having a sewer backup. He followed the rules very closely. He immediately called the City. The City came out very quickly. They came out and shot the line in front of his house and said it was clear. The sewer contractor came out and did his job, and they talked in great detail about this proposed ordinance. He asked the contractor if he was in favor of this or against it. The contractor stated in his mind it really did not make a great deal of difference. The $35 is not going to kill him. He read through the application and he had some questions about the background check Basically he said most contractors are up front. He did not see a problem and felt it might even protect some of them. Councilmember Bolkcom stated she received two e-mails from people saying they felt it was not necessary and to do it a different way. Councilmember Varichak stated she did also receive an e-mail from someone who was not in favor of this. Councilmember Barnette asked if they said why? Councilmember Varichak replied, they said if this gets approved, then they would have to go to Mounds View and then Spring Lake Park and Minneapolis and get licenses and it would just be a bunch of money doweled out for a license. Not like a State license where you have to pay a one-time fee but would be for every single city they would work in. Councilmember Saefke stated his solution to that would be to let the State license the people and make sure they are bonded and insured, etc. Then individual municipalities would not have to. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 21 Councilmember Bolkcom stated that was her point is to work through the contractors division and actually have it happen. However, now there will be no incentive by the City of Fridley. Mayor Lund stated the Sewer Supervisor hit it home for him and that is in one incident alone it cost the City over $100,000 because of blocked sewage and the results. He thinks the $35 fee seems pretty minimal and that is just to pay for staff's time to make sure the licensing is taken care. He thinks that is a fair deal. A lot of times things start on a local level and then the State takes it away and preempts and makes it a state licensing. MOTION by Councilmember Saefke to waive the reading of the ordinance and adopt Ordinance No. 1286 on second reading and order publication. Seconded by Councilmember Barnette. UPON A VOICE VOTE, WITH MAYOR LUND, COUNCILMEMBERS BARNETTE, VARICHAK, AND SAEFKE VOTING AYE, AND COUNCILMEMBER BOLKCOM VOTING NAY, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY ON A 4-TO-1 VOTE. Councilmember Bolkcom asked how the sewer cleaners were going to find out about this. Dr. Burns replied they are going to let them know. Mr. Kosluchar stated they might even do something in the City's newsletter. Councilmember Saefke said they may want to list them in a brochure so people can refer to it quickly and easily. Councilmember Bolkcom asked if they could legally do that. Darcy Erickson, City Attorney, replied, yes, it is public record they obtained a license through the City. The City would not want to endorse or recommend anyone. NEW BUSINESS: 10. Resolution Adopting the Assessment for 2010 Street Improvement Project No. ST 2010-1A. MOTION by Councilmember Varichak to adopt Resolution No. 2011-48. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 22 11. Special Use Permit Request, SP #11-02, by Schmidt Osborne, LLC, to Allow Limited Outdoor Storage, Generally Located at 7580 Commerce Lane N.E. (Ward 3) and Resolution Approving Special Use Permit, SP #11-02 for Schmidt Osborne, LLC, 7580 Commerce Lane N.E. Scott Hickok, Community Development Director, stated the petitioner hopes a special use permit will be granted to allow outdoor storage and make his site more marketable and help with the potential sale of his building. He understands the City Code requirements to allow for outdoor storage and is agreeable to those standards. City Code allows limited outdoor storage in the industrial districts, and that is up to 50 percent of the building footprint with a special use permit. The building square foot dimension is 21,754 square feet, so the City Code would allow up to 10,877 square feet for outdoor storage on this site and that is what is being requested. Mr. Hickok stated because a tenant has not been identified for this site at this time, it is unknown what type of materials will be stored outside. However, again, the petitioner understands the caveats of the ordinance. Based on the breakdown of uses within the building, which was provided by the petitioner, parking needs for this site will be 16 stalls. The petitioner has shown on the submitted site plan, 19 stalls. If the building is used for anything other than warehouse, additional parking may be required. Mr. Hickok stated the outdoor storage area will need to be screened from the public right-of- way. There is a chain link fence already installed with screening slats; however, some slats are missing. New slats will need to be installed where there are missing slats to ensure the proper screening from the right-of-way. The proposed site plan otherwise meets all of the outdoor storage code requirements. Mr. Hickok stated regarding neighborhood comments, City staff heard from the business owner to the south of the subject property. They had questions about the types of items that would be stored outside. Those items of course are unknown at this time; however, a new tenant would be required to comply with the Code. The neighbor seemed okay with that as an answer. Mr. Hickok stated the Planning Commission heard this item at their September 21, 2011, meeting. After a brief discussion they recommended approval of this special use permit with the following stipulations: 1. Outdoor storage on this site shall remain in the approved outdoor storage areas only. 2. The existing fence shall have screening slats installed to allow proper screening of the outdoor storage area before occupancy of a new tenant or buyer. 3. If parking becomes an issue on this site, based on use of a new tenant, additional parking shall be required. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 23 4. Any new tenant or property owner shall be required to comply with Code requirements for limited outdoor storage. Mr. Hickok stated staff recommends concurrence with the Planning Commission noting that SP #11-02 will repeal and replace SP #03-23 for this property. City staff also recommends approval of the resolution. SP #03-23 was also a special use permit for outdoor storage of a different type and from a different period of time in the City's history, and this new special use permit is in accordance with the new standards that have been defined in the City Code. Councilmember Bolkcom asked how tall is the fence going to be. Mr. Hickok replied the fence exists right now. It is an 8-foot fence with screening slats, vines, and barbed arm on the top of it. Councilmember Bolkcom asked how far above the fence they can store things. Mr. Hickok replied the Code says 12 feet. Councilmember Bolkcom asked are there some special use permits where the City does not allow them to go above the fence. Mr. Hickok replied if you have a 20-foot fence, you cannot exceed that. However, when Council adopted the outdoor storage requirements, they allowed the footprint to be up to 50 percent of the principal area of the building. The standard industrial fence height is 8 feet. They can have a 3-strand barbed arm which this site does have, and they also would have screening slats in this case in order to make it fully meet the Code requirements. Inside that fence, can be up to 12 feet of stored material. Even though they do not know what precisely will be stored, they said they will not exceed the 12 feet. Councilmember Bolkcom asked with the storage being 50 percent, where would the other parking go? Mr. Hickok replied, staff has looked at the site; and there is adequate space to expand from 19 parking spaces in the event it is necessary to do so. Councilmember Bolkcom asked the petitioner if he is aware of the stipulations? Bob Cote, petitioner, replied he is aware of the stipulation and Councilmember Bolkcom asked the petitioner if he can work within those stipulations? Mr. Cote replied, correct. Attorney Erickson stated it might be wise to include in the resolution the statement that the prior special use permit is actually repealed. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 24 MOTION by Councilmember Bolkcom to approve Special Use Permit Request, SP #11-02 and Adopt Resolution No. 2011-49 with the following stipulations: 1. Outdoor storage on this site shall remain in the approved outdoor storage areas only. 2. The existing fence shall have screening slats installed to allow proper screening of the outdoor storage area before occupancy of a new tenant or buyer. 3. If parking becomes an issue on this site, based on use of a new tenant, additional parking shall be required. 4. Any new tenant or property owner shall be required to comply with Code requirements for limited outdoor storage. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. MOTION by Councilmember Bolkcom to amend Resolution No. 2011-49, by adding the statement, "This Special Use Permit, SP #11-02, will repeal and replace SP #03-23." Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 12. Resolution Revoking Special Use Permits, SP #95-05 and SP #04-05, Permitting a Garden Center at Home Depot, Generally Located at 5650 Main Street N.E. (Ward 3). Julie Jones, Planning Manager, stated Home Depot obtained a special use permit for a garden center in 1995, SP #95-05. There were violations of a stipulation regarding display and storage outside the garden center walls which began soon after the store opened in 1996. To try and solve that problem, Home Depot applied to the City for an additional special use permit to have a garden center space out in the parking lot, and that was denied by City Council. Outside storage problems continued. Home Depot then decided to expand their garden center area that is attached to the store in 2004 and applied for a special use permit, SP #04-05, that the Council adopted and which amended the previous special use permit. Unfortunately though, with the expanding garden center, violations continued and that is why at this point staff is continuing to recommend the revocation of the special use permit in place by resolution. Ms. Jones stated at the September 12 public hearing the district manager, Scott Tesmer, did communicate they felt they had solved some of the communication problems that brought us to this point in complying with the special use permit stipulations. Upon request, he did supply some additional information. Staff is continuing to recommend revocation of the special use permit because the integrity of the special use permit process is in place. The Code states if there are violations of the stipulations of the special use permit, the Council is supposed to revoke that special use permit. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 25 Councilmember Bolkcom stated she was surprised Home Depot has not contacted the City with a plan since the last Council meeting. Scott Tesmer, Home Depot, stated last time he thinks the question at hand was the Council's belief in their commitment and ability to abide by this. They have put in place a training program and put the store manager, assistant manager, through that going through the ordinance so that understanding is there. In the past, that training and awareness piece was not there. They also have concrete pieces in place from the maintenance and legal departments on the expectations around this, including the piece of land that they discovered they owned to the north. They will police this. They can live within the guidelines. The past is the past and that is the issue, but Council needs to make a determination based on the belief they can go forward with this. It is an awesome store and part of it is to really show commitment beyond just ordinance guidelines, and the fact that Home Depot allows the store to become part of the community. They are very involved in the community. The commitment of that store is driven by the heart they have for the City they operate in. They want to operate as a healthy business, providing jobs for the community, revenues, tax-base; they are committed to go by the guidelines. Councilmember Bolkcom stated the thing that is tough for her being on the City Council for some time is every once in a while the same thing flares up, and hopefully Home Depot has some new things in place. However, if you look at list from 1995 to 2011, in almost every year something happened. Mr. Tesmer's predecessors have been before Council before him talking about some of those very same things regarding commitment. Mr. Tesmer replied, yes, the commitment can be talked about every year. That is why they put the training in place, going through the ordinances, having the management team sign off and understand what their expectations to deliver on are. Councilmember Bolkcom stated there are a lot of different options. They can revoke it tonight, or they can revoke it and give them a timeframe they have to follow and, if there is one misstep then it is done and it would be brought back before Council. That is the way she wants to go. He can only give his word and say what is in place that was not before. He has done some improvements outside already, making the store look better. Councilmember Saefke stated he appreciates all the activity Mr. Tesmer has done so far. A SUP is, as far as he is concerned, a contract between the City and the property owner. The contract allows the property owner to do certain things on a piece of property that normally would not be allowed. Usually that contract comes with stipulations. In other words, if the property owner agrees to do certain things, then that contract is a valid contract between him and the City. If that contract is violated by not performing according to stipulations, then the contract is broken; and the City would have an obligation then to revoke that special use permit. Councilmember Saefke stated Council is probably going to do something kind of unique, and it is going to put all of the burden on Home Depot. They will probably unconditionally revoke both the special use permits tonight, but the revocation will not go into effect until sometime ne�t year, probably August 6, 2012. If there is no violation during that time, then the special use FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 26 permits stay valid. If there is one violation, then the revocation becomes automatic, and they lose the special use permits. He believes Mr. Tesmer is sincere as far as training the employees and so forth. If all of that is true, then there should be nothing to worry about. The special use permits will remain just the way they are. However, if there is a violation, especially with the outdoor storage, then the revocation becomes effective on the date that will be set tonight. The performance record would go through August 6. A revocation would take place he believed August 31 which would give staff time to make a final report. He asked Mr. Tesmer if he understands what he is trying to say. Mr. Tesmer replied, yes, he understands. Councilmember Varichak stated she truly believes the petitioner will abide by the rules. She is voting they stay in the City of Fridley. Councilmember Saefke stated he believes Home Depot is a very, very good corporate neighbor. He is very pleased with the operation in general. He thinks this is a good compromise. MOTION by Councilmember Bolkcom to adopt the Findings of Fact in Resolution No. 2011- 50, Revoking SP #95-OS and SP #04-05, permitting a garden center at Home Depot, generally located at 5650 Main Street NE. This revocation is amended to be effective August 31, 2012, providing such revocation will not take effect if there were no sales, storage, or display of plant material or any other material outside the garden center confines which will be documented by the Community Development staff through August 6, 2012. Seconded by Councilmember Barnette. Councilmember Bolkcom asked Mr. Tesmer if he understands the motion. Mr. Tesmer replied, yes, they are guidelines that he can live within that are the City's ordinances through August. It will be as if this will never be revoked and, if there is one violation up until August 6, this will completely go away on August 31. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 13. Approve Change Order No. 2 for Street Rehabilitation Project No. ST 2009-02. James Kosluchar, Public Works Director, stated this change order is on the City's resurfacing project constructed in the summer of 2010. This was the project that used stimulus funding dedicated in late 2009. The construction was completed on 61st Avenue between Main Street and Old Central Avenue. Contract costs through the previous Change Order No. 1 was $557,000 plus. The total amount of this change order is $20,312.50. There are seven items of this change order, and it has prior approval of staff and the contractor. Work was directed and completed in 2010. Mr. Kosluchar stated Item No. 1 includes additional repairs to an existing catch basin near Highway 65 and East Moore Lake Drive in the amount of $320.60. Basically that was a catch FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 27 basin that could not support the weight of the rollers. When doing more milling, the catch basin failed. Mr. Kosluchar stated Item No. 2 is for additional removal and reinstallation of brick pavers in the median of East Moore Lake Drive. Cost of this work was just under $1,399.07. Mr. Kosluchar stated Item No. 3 is for the repair of several settlements that appeared on 61st Avenue (west of University Avenue) during final paving. The cost of this item was $339.31. Change Order No.l captured the majority of this work, and this was just an outline for the materials on one final item. Mr. Kosluchar stated Item No. 4 is for additional milling and paving to improve drainage and new pavement at the intersection of 61st Avenue and Trinity Drive. The cost of that work is $1,402.45. Mr. Kosluchar stated Item No. 5 is for the replacement of middle sections on four gate valves. This work included excavation valves, section replacement, backfill, and compaction. The cost of this work is $4,151.22 and would be paid for with water utility funds. They had a little more problem with those middle sections of valves when they were doing adjustments because when the upper section of the valve is corroded it actually can adhere to that middle section and when they took out the top section which is a bid item, that middle section can fail. They have had that happen on a few projects and it is probably something they are going to estimate into the City's project in the future. Mr. Kosluchar stated Item No. 6 is for additional boulevard work at two locations near Fridley Middle School. Rice Creek Watershed District and staff actually identified an opportunity to install two rain gardens in the future through a grant program. Rice Creek Watershed District, along with the Fridley School District, had actually done application for a demonstration project; and they did get awarded for this. They are out for bids right now. In anticipation of the two rain gardens, the City did curb cuts and installed curb cuts and adjusted the curb work there along the curve at Moore Lake, south of Fridley Middle School. The cost was $254.33 and will be paid for by storm water utility funds. Mr. Kosluchar stated Item No. 7 is for concrete valley gutter required to correctly drain the intersection of 61st Avenue and West Moore Lake Drive at the main entrance to Fridley Middle School. They thought they could actually pave that intersection and get it to flow properly, but they could not get it to flow from west to east across the school's entrance and so they did have to go back and cut in a valley gutter and install it. The cost was $12,445.22. Some of that is because of the construction, trying to keep the school entrance open and helping traffic get through. That is the majority of this one item. Mr. Kosluchar stated this change order increases the project costs by almost 2.6 percent and is the second and final change order for the project. Staff recommends Council's approval. Councilmember Bolkcom asked if the settlements always happened. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 28 Mr. Kosluchar stated these were on the west side of University Avenue and were particularly bad. They are right over the top of the storm sewer. They televised that storm sewer, the joints looked fine; it is very difficult to tell why. There is a big storm sewer pipe along 61st Avenue. It is a 60-inch pipe and has been in the ground for 30 to 40 years. He does not know when these voids were formed. They had no perception they were there. He can tell them that the newer requirements for the new MnDOT specified asphalt called "super pave" which everybody has gone to now requires a lot more compactive force; therefore, they are really hammering the road base. Councilmember Bolkcom stated there is really nothing they can do for a project ne�t year. Mr. Kosluchar replied one of the things they have done is actually amended the specifications, and they do require that the rollers be set at a particular amplitude that reduces that force. Councilmember Bolkcom how much of this was related to the school? Mr. Kosluchar replied it was probably 20 percent because of maintaining traffic and keeping things covered there. In retrospect they probably could have been more conservative with how they approached it, but they really thought they could get it to drain. Mayor Lund stated they typically use the lowest qualified bidder and then when it comes to these change orders it seems in some instances at least they are excessively high because they are not going out for bids on all these changes. MOTION by Councilmember Bolkcom to approve Change Order No. 2 for Street Rehabilitation Project No. ST 2009-02. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 14. Approve Change Order No. 1 for Street Rehabilitation Project No. ST. 2011-01. Mr. Kosluchar stated this change order is related to the project constructed this past summer and completed in the Hyde Park neighborhood. The budgeted cost of the project was $575,000. The contract cost of the project was $544,273.00. The amount of this change order is $51,507.93. This is the first, but also the final, change order that is proposed. There are six items on this change order, and the work was directed in May through August of this year. Mr. Kosluchar stated Item No. 1 includes work to relocate utilities because of a buried storm catch basin. Mr. Kosluchar stated Item No. 2 is for the replacement of a damaged middle section of two gate valves. It could be this is non-conforming as explained earlier. They may not fit. Mr. Kosluchar stated Item No. 3 is for work related to adjustment of a 36-inch telephone manhole on Main Street. The cost of this item is just over $2,000. They will be seeking FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 29 reimbursement from the utility owners for this item. The City just got the final dollar figure from the contractor. Mr. Kosluchar stated Item No. 4 is for additional grading of gravel base on the street in the Hyde Park neighborhood. These are the local streets. They are trying to accomplish the milling based on the soil information and they broke free. In this case they go back and reclaim those areas. There is about a$6,400 addition for those areas on local streets. Mr. Kosluchar stated Item No. 5 is for additional work on Rainbow Drive. On the 2009 street project, just north of 61st, adjacent to the Hyde Park project, they had a gentleman who came to the assessment hearing; and he had been talking about some substandard pavement, the finish just was not right in front of his property. The City did have that cut out and replaced under this project, and the cost was $3,600. Mr. Kosluchar stated Item No. 6 is the big item. This is for Main Street where they had some substandard base. Actually they saw how expansive it was, they looked at reclaiming and doing a major change to the plans; however, that would have cost about $125,000. Staff identified the patching areas and tried to minimize the cost and got it down to between $36,000 and $37,000. Mr. Kosluchar stated the change order total increases the project cost by about 9 percent, and assessments will be very close to those initially estimated and presented at the project open house. This is the first and final change order. Staff does recommend approval of this change order. Even though this is a large amount, this was e�tra work beyond, over, and above what was in the contract with the contractor. Councilmember Barnette stated on page 88, in the item numbers, there is 1, 2, 3, 3, 4, and 5. IT appears that needs to be renumbered. Councilmember Bolkcom asked what the chances were of getting the payment from the utility owner. Mr. Kosluchar replied, he thinks they will. Councilmember Bolkcom asked regarding the work on Rainbow Drive, was there a warranty on it, and why did they not have it done right away. Mr. Kosluchar replied, if he recalls this was also because of subsurface conditions they had along Rainbow. He knows they thought it was not the contractor's responsibility necessarily to repave that section. Councilmember Bolkcom stated it seems like they have a fair amount of these cases. Should the contractor be telling the City or should our inspectors be picking it up? Mr. Kosluchar replied, actually he and Mr. Otteson have had a couple of conversations about this. Looking forward to the 2012 projects, doing some additional investigation will help quite a bit. He does not know they will always be able to predict when they have a subsurface surprise. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 30 In some fashion they do have to be more conservative going in. He does not think the contractor is not necessarily looking for these things. Councilmember Bolkcom asked if the expectation would be for the contractor to notice it and report it. Mr. Kosluchar replied, they do and our inspectors do. However, the problem is they do not know that until after the pavement is basically removed. After they paved it they actually had some investigation with the ground penetrating radar to walk around and see if there were additional voids they had not seen, and it was so deep it had difficulty showing anything that was not significant. MOTION by Councilmember Bolkcom to approve Change Order No. 1 for Street Rehabilitation Project No. ST. 2011-01. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 2. Motion to Approve the Fiscal Year 2012 Budget for Twin Cities Gateway. Councilmember Bolkcom stated it says that part of the City's agreement is to provide a budget and have it done by October 1 but they do not approve it until October 13 and the staff receives it 17 days later once it is approved by the Board but then part of the agreement is the City is to provide it to them by October 1? Dr. Burns replied, they are late. Councilmember Bolkcom stated a little memo should be sent to them that they probably should get it to them in a timely manner. Dr. Burns stated they had a mistake in their memo, too. Councilmember Bolkcom stated it looks like there are some monies that can be used for community festivals and event grants from this budget. Dr. Burns replied, Fridley has received some of that. Councilmember Bolkcom asked and including the regional grant programs for non-profits? She is thinking about, i.e., the `49er Days. Mayor Lund replied they do it. Councilmember Bolkcom stated but it might be worthwhile for some of the other non-profits, such as the History Center, etc. Are they aware of this? FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 31 Dr. Burns stated he thinks it is allocated based on lodging. We do not have a lot of lodging revenues in Fridley. Councilmember Bolkcom state it might be worth looking into the Regional Grant Program and letting some of the non-profits know about it. The Regional Grant Program for 2012 is $100,000. Mr. Nelson stated he knows as far as the community grants, Fridley did receive some additional funding for this year that went towards he believed the `49ers. Councilmember Bolkcom stated do you have to make application or how does that work? Mr. Nelson stated he believed they directed that through Jack Kirk, the Parks and Recreation Department Director. Mayor Lund said the money has some limitations. It has to be for promotional purposes, such as advertising. Councilmember Bolkcom stated she knows the non-profit she is involved in is not aware of any grant programs. They need some money to market their art center. MOTION by Councilmember Bolkcom to approve the Fiscal Year 2012 Budget for Twin Cities Gateway. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 3. Resolution Designating Time and Number of Council Meetings for 2012. Councilmember Bolkcom asked how does every once in a while the City Council meetings are set for the first Monday and the fourth Monday. She thought it was sort of set they were to be on the second and fourth Mondays People go by that. Mayor Lund stated where that happens it usually is because of a holiday or something. Councilmember Bolkcom stated she does not understand the August date. Dr. Burns stated he thinks they try and keep that first week of August open for employee vacations. Councilmember Bolkcom pointed out there does not appear to be reason for the different weeks in February. Sometimes there can be quite a gap. Dr. Burns stated there is no rigid second and fourth Monday rule. What they see mainly falls in with a precedent that has been set for many years. FRIDLEY CITY COUNCIL MEETING OF OCTOBER 10, 2011 PAGE 32 Councilmember Bolkcom asked if they usually had the meetings in February on the first and second Mondays of the month. Dr. Burns asked if she wanted to change it? Councilmember Bolkcom replied, no, because of the other meetings that are set. She was just asking the question who sets it up and how is it set up. Dr. Burns replied, it starts with Roberta preparing it, then it goes to the department managers who take it back to their staff ineetings, they seek input from the employees, because it does have something to do with the holidays and vacations of individuals. What happens one year frequently becomes the reference for the ne�t year. MOTION by Councilmember Bolkcom to adopt Resolution No. 2011-47. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 15. Informal Status Reports. There were no informal status reports. ADJOURN. MOTION by Councilmember Barnette, seconded by Councilmember Varichak, to adjourn. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MEETING ADJOURNED AT 7:43 P.M. Respectfully submitted by, Denise M. Johnson Scott J. Lund Recording Secretary Mayor