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HomeMy WebLinkAboutCity Council Minutes 10-11-2005Adopted Minutes Regular Council Meeting October 11, 2005 Mayor Johnson called a Regular Meeting of the Plymouth City Council to order at 7:00 p.m. in the Black Box Theater, Plymouth Creek Center, 14800 34tH Avenue North, on October 11, 2005. COUNCIL PRESENT: Mayor Johnson, Councilmembers Hewitt, Stein, Slavik, Bildsoe, Willis, and Black. ABSENT: None. STAFF PRESENT: City Manager Ahrens, Fire Chief Kline, Finance Director Hahn, Police Chief Goldstein, City Attorney Knutson, Superintendent of Recreation Evans, Community Development Director Hurlburt, Public Works Director Cote, and City Clerk Paulson. Plymouth Forum Ken Campbell, 16820 9th Avenue North, voiced his displeasure with the condition of their street. He stated several years ago, City staff informed him that their street was scheduled for reconstruction in 2005. It was then rescheduled to 2006, and now for 2007. He was informed due to budget constraints, this project had to be delayed. However, in the meantime, all of 5th Avenue North, east of County Road 101, was reconstructed. He stated if their road would've been reconstructed in 2005, their assessments would've been 30% of the project costs, versus the increased percentage of 40%. Russ Ewoldt, 16925 9th Avenue North, stated it's embarrassing to have guests at their home with the current condition of the street. He questioned the fairness of the incremental increases to the assessment formula. He also noted the recent street reconstruction project for the Burl Oaks neighborhood. Mayor Johnson explained that the Council has had to increase the assessments in order to at least maintain the street reconstruction program. She stated that various factors, such as losing the market value credit aid from the State, have contributed to the need to increase the assessments. As the Council studied the assessment policy, they reviewed policies from other cities, and a lot of those cities are assessing a greater percentage. She noted that the City of Minnetonka doesn't assess for street projects; however, their city property taxes are higher. After reviewing the policy, the Council decided to go with an additional tax levy and increasing the bonding so the City could undertake larger portions of the City at the same time for street reconstruction projects. Public Works Director Cote added that with the Burl Oaks reconstruction, that project was added by petition. There were a significant number of residents who petitioned that project, which is why that project was brought forward. Mark Wollschlager and Julie Huang, 4785 Valley Forge, stated almost three years ago, their basement was flooded with heavy rainfalls. Since that time, the City has repaired the neighborhood pond as well as their backyard. They stated with the recent heavy rainfalls, they Adopted Council Minutes Regular Meeting of October 11, 2005 Page 2 of 19 have felt very safe, and there have been no flooding issues. Therefore, they thanked the City for correcting this situation. Presentations and Public Information Announcements 4.01) Recognition to Reserves, Police Explorers and SWAT Team The Council paid recognition to the Police Reserves, Explorers, and the SWAT Team for awards that they recently received. 4.02) Fire Department Open House Councilmember Slavik announced that the Fire Department would be having their open house on October 15 from 9:00 a.m.-3:00 p.m. at Fire Station No. 3. 4.03) 2004 Life Safety Achievement Award Councilmember Slavik announced that the Fire Department recently received the 2004 Life Safety Achievement Award. Approval of Agenda Mayor Johnson added moving the Regular Council Meeting of November 22 to November 29, announcement of Special Election for State Senate District 43, and discussion on Truth in Taxation notices under Reports and staff recommendations as item No's. 9.2-9.4 respectively. She announced that item No. 6.14 would be -removed from the Consent Agenda by request of the applicant. Motion was made by Councilmember Bildsoe, and seconded by Councilmember Black, to approve the amended a egnda. With all members voting in favor, the motion carried. Consent Agenda Councilmember Slavik removed item No. 6.13, and it was placed under General Business as item No. 8.4. Councilmember Willis removed item No's. 6.04, 6.07, and 6.15, and they were placed under General Business as item No's. 8.5-8.7 respectively. Motion was made by Councilmember Bildsoe, and seconded by Councilmember Slavik, to adopt the amended Consent Agenda that included the followingitems: Adopted Council Minutes Regular Meeting of October 11, 2005 Page 3 of 19 6.01) Minutes of the Regular Council Meeting of September 27. 6.02) Resolution Approving Disbursements for the Period Ending September 30, 2005 Res2005-379). 6.03) Resolution Requesting Funding from the Minnesota Department of Transportation through the Fiscal Year 2007 Municipal Agreement Program (Res2005-380). 6.04) (This item was removed from the Consent Agenda and placed under General Business as item No. 8.5). 6.05) Resolution Approving a Conditional Use Permit to allow Operation of Kindergarten Classes for Property located at 15870 46th Avenue North (2005098 — Res2005-3 8 1). 6.06) Resolution Approving a Conditional Use Permit Amendment and Interim Use Permit for Carlson's Piano World for Property located at 13810 24th Avenue North (2005101 Res2005- 382). 6.07) (This item was removed from the Consent Agenda and placed under General Business as item No. 8.6). 6.08) Resolution Approving Termination of Water Quality Pond Maintenance Agreement for Harrison Place on Bass Creek (94051 - Res2005-383) and a Resolution Approving Termination of Water Quality Pond Maintenance Agreement for Parkers Lake Shores (20078 — Res2005- 384). 6.09) Resolution Approving Request for Payment No. 13 and Final Well No. 14 and 15 Pump Houses and Pumping Facilities (3132 — Res2005-385). 6.10) Acceptance of 2005 Annual Report and 2005-2006 Work Plan of the Plymouth Youth Advisory Council. 6.11) Resolution Approving Request of Payment No. 6 and Final for 2004 Street Reconstruction Project (4101 — Res2005-386). 6.12) Resolution Approving Request of Payment No. 5 and Final 2004 Street Reconstruction Project (4102 — Res2005-387). 6.13) (This item was removed from the Consent Agenda and placed under General Business as item No. 8.4). 6.14) (Removed from the Consent Agenda by request of the applicant). 6.15) (This item was removed from the Consent Agenda and placed under General Business as item No. 8.7). Adopted Council Minutes Regular Meeting of October 11, 2005 Page 4 of 19 Motion carried to approve the Consent Agenda. Public Hearings 7.1) Vacation within Lot 1, Block 1, Oxbow Ridge 2nd Addition Public Works Director Cote reported on the request Thomas and Michelle Ryan, 16125 46th Avenue, to vacate a portion of the 20 -foot drainage/utility easement that lies over the south 20 feet of their property. Due to a proposed addition consisting of a three -season porch and deck onto their home, the deck would extend into the easement approximately 10 feet. Mayor Johnson opened the public hearing for testimony. Michelle Ryan asked if the City would be retaining the south six feet of the 20 -foot drainage/utility easement. Public Works Director Cote replied yes. There being no one else wishing to address the Council, Mayor Johnson declared the public hearing closed. Motion was made by Councilmember Stein, and seconded by Councilmember Slavik, to adopt a Resolution Authorizing the Vacation of a Portion of a Dedicated Drainage/Utility Easement within Lot 1, Block 1, Oxbow Ridge 2nd Addition (Res2005-388). With all members voting in favor, the motion carried. General Business 8.1) Request from Tree Contractor to Cancel Contract City Manager Ahrens reported on the request of Coolen Brothers Tree Service to cancel their 2006 contract with the City. She explained that in January 2005, the Council awarded a two-year contract to Coolen Brothers Tree Service for removal of trees and stump grinding for the years 2005 and 2006. Their bid was approximately $39,000 less than the next lowest bidder. On September 13, staff received a letter from the contractor requesting that their contract for 2006 be terminated. Staff met with the contractor on October 3, 2005, and they stated that the primary reasons for the termination of the contract included the rising cost of gasoline, changes made in the contract with no written notice, and an issue of not being paid in a timely manner. Their frustrations have escaladed to a point where it would be difficult to effectively maintain a positive and efficient working relationship with them. She stated the Council has a couple of options in addressing this situation. The first option would be that the Council exercises the part of the contract that allows the City to terminate the contract with 10 -days notice. This would require the City to re -bid the contract for the 2006 or perhaps the 2006-2007 seasons. The net result of this would probably be an increased cost to the City, or ultimately, fewer trees would be removed because the budget is fixed`at $90,000. The Adopted Council Minutes Regular Meeting of October 11, 2005 Page 5 of 19 second option would be to "stay the course" and continue the contract through the 2006 season. Staff would continue to work with the contractor and try to alleviate any hard feelings that might have arisen during this past season. The City would then re -bid the work for the 2007-2008 season. Councilmember Bildsoe asked about the contractor's concern of receiving correspondence from the City on parking their vehicles on City property. City Manager Ahrens stated they were previously allowed to park their vehicles at the Public Works Maintenance Facility; however, that is no longer possible due to security issues and the City's need for parking. There is no language in previous or current contracts that allows for that. Staff did locate an alternate site for the parking of the vehicles, but the contractor wasn't satisfied. She stated regarding the contractor's concern on receiving payment from the City, there was one occasion where the City was late in making the payment, and this was due to the City receiving a photocopy of a bill rather than an original bill. However, once staff received the bill, they contacted the contractor to confirm that was a bill. She stated that once the trees are removed, staff verifies the work, and the contractor is paid. Motion was made by Councilmember Hewitt, and seconded by Councilmember Black to terminate the contract effective December 31, 2005. Councilmember Bildsoe stated the City is the customer with this situation, and this isn't how you treat a customer. He noted that everyone is facing increased gas prices; however, that is the cost of doing business. He stated if the City cancels the contract and rebids, he is concerned that this contractor would be able to submit a bid in a short period of time. He requested that this contractor not be allowed to bid for at least three years. He noted that the contracts are usually two years in length. Councilmember Stein asked if the contractor has been non-responsive or late in tree removal. City Manager Ahrens replied there have been some issues, but it hasn't been a reason for the City to come forward with a termination. Councilmember Stein stated that he wouldn't be supporting the motion, as the contractor should live up to their current contract obligations. Mayor Johnson commented that while staff has recognized that the contractor has done an adequate job, there has been a lot of staff time in monitoring the completion of their work. Councilmember Stein stated if there was a problem, the City should've taken steps to withhold payment to them and terminate the contract, or cover the difference between the cost of the current contract and new contract if it would have to be re -bid. Councilmember Hewitt requested a friendly amendment to the motion that the current contractor wouldn't be allowed to bid on the contract for two, two-year cycles or after a three - contract. This friendly amendment was accepted. The Council voted on the amended motion, and with Black, Bildsoe, Hewitt, Slavik, and Johnson Adopted Council Minutes Regular Meeting of October 11, 2005 Page 6 of 19 voting yes, and Stein and Willis voting no, the motion carried. 8.2) Suspension/Revocation of On Sale Liquor and Sunday Liquor Licenses for Dutton's Bar and Grill, 1115 Vicksburg Lane, No. 8 City Manager Ahrens stated at the September 27 Council meeting, a hearing was conducted to consider the suspension or revocation of the on -sale intoxicating liquor and Sunday liquor licenses for Dutton's Bar and Grill at 1115 Vicksburg Lane. The hearing was held because the licensee did not have liquor liability insurance coverage from June 13, 2005 to September 21, 2005. Staff also believes that the licensee misrepresented to the City that he had the required liquor liability insurance coverage. At the hearing, the licensee acknowledged that this lapse of insurance had occurred, but that he had no knowledge that the insurance was not in effect at the time. At the conclusion of the hearing, the Council continued the issue until tonight in order to allow the licensee the opportunity to submit additional dGcumentS tG Su-_ LL his position. The Council allowed the licensee until 10:00 a.m. on September 30 to provide additional information, which was to be reviewed by the City Attorney and City Manager. She stated the licensee submitted two additional documents by the September 30 deadline. The first document relates to the liquor liability insurance and is a "Request for Reinstatement of Insurance Coverage." The document indicates a prior cancellation date of May 25, 2005 due to the licensee's default on his premium finance agreement, and further notes that as of June 19, 2005, the licensee had brought the account to a current status. This document is a request for reinstatement of coverage from the licensee and First Insurance Funding Corporation. She discussed two statements that were on the document. The first statement states, "We understand that only the Insurance Company can reinstate cancelled policies. Therefore, we ask you to advise the Insured, and Agent/Broker listed above, and First Insurance Funding Corp. if the policies have been reinstated or will remain cancelled." In the box at the bottom of the page, there is a notice to the licensee (insured), "First Insurance Funding Corp. has no authority to reinstate your coverage; only the insurance company can do this. The policy referenced above is cancelled and is not in force until the insurance company notifies you of that fact. Any future notices or billings from us should not be construed to imply that your insurance coverage has been reinstated." City Clerk Paulson clarified one point that was made at the previous meeting relating to misrepresentation issue and her conversation with the Hays Company agent. She stated after numerous notices, the licensee came to City Hall on September 12 and provided a new certificate of liquor liability coverage. The certificate indicated that insurance was in effect through January 31, 2006. One week later, she stated that she received a phone call from the Hays Company agent, Tara Lupie, who informed her that on September 12, 2005, the licensee requested a copy of the certificate of insurance previously issued for the period February 21, 2005 to January 31, 2006 from her. The agent reminded the licensee that the policy was cancelled, but the licensee requested a copy. The agent gave the licensee a copy and stapled a sheet on the front indicating the policy had been cancelled on June 13, 2005. The licensee informed the agent that he was seeking insurance from a different company and needed to provide the certificate to his new insurance agent. On September 12, 2005, the licensee gave a Adopted Council Minutes Regular Meeting of October 11, 2005 Page 7 of 19 copy of the certificate of liquor liability insurance to her that he had received from his insurance agent earlier that day. The top sheet indicating the policy had been cancelled had been removed when she received it. She stated that a week later, the agent provided her with a copy of the sheet that had been removed. City Manager Ahrens stated that she and the City Attorney have reviewed the information provided by the licensee, and Findings of Fact and Decision have been prepared for the Council's consideration this evening. City Attorney Knutson discussed the Findings of Fact and Decision. Councilmember Bildsoe explained that the Hays Company is the licensee's agent, and First Insurance is the funding company, and Lexington Insurance is the insurance carrier. He stated that First Insurance is a company that assists licensees with a payment schedule for the payment of insurance premiums. He stated if the licensee doesn't live up to it, the "loan" could be cancelled. Randall Tigue, attorney representing the licensee, Rick Dutton, stated they disagree that there was a lack of insurance coverage. As a matter of law, the coverage never lapsed. Mayor Johnson stated Mr. Dutton admitted that there wasn't insurance coverage at the previous Council meeting. Mr. Tigue stated Mr. Dutton was in error. He stated if there would've been an insurance claim from the period of June 13, 2005 through September 21, 2005, the insurance company would've been bound to pay the claim. He referred to Attachment No. 3 in the packet materials, which outlined Mr. Dutton's payment history on his insurance policy. On May 24, 2005, he stated there was an entry for $5,555 in non -sufficient funds (NSF). Mr. Dutton stated that there were sufficient funds to cover the premium, and when he discovered that there weren't sufficient funds, he spoke with his agent. He then went directly to First Insurance. After discussing the situation with First Insurance, he "fed exed" a certified check. First Insurance had no problem with it. Mayor Johnson asked if he received a notice from the Hays Company at that time. Mr. Dutton replied he didn't receive anything from them, but he received the notice from his bank that it was a NSF check. He then called First Insurance and did what he had to immediately. Mr. Tigue showed a copy of the cancelled cashier's check dated June 15, 2005 made out to First Insurance for $1,777.39 that Mr. Dutton immediately "fed exed" to First Insurance. First Insurance received the check, and by June 16, 2005 the matter had been resolved. Mayor Johnson stated the Council's question is that there are additional obligations on behalf of the insured that Mr. Dutton needed to do in order to get the policy back in force. Mr. Tigue stated that the insurance company needed to do that, and there was nothing that Mr.. Dutton had to do. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 8 of 19 Mr. Tigue informed the Council that they are making a record for the Minnesota Court of Appeals on this matter. Mayor Johnson asked Mr. Dutton if he felt that he didn't need to do any follow-up since First Insurance had received the cashier's check, and he had received the reinstatement notice. Mr. Dutton stated he felt that if he didn't receive anything that indicated the policy was cancelled, that it had been taken care of. He denied that he received Attachment 8, which was the notice of cancellation from the insurance agency dated September 19, 2005. Councilmember Bildsoe stated that the Hays Company and First Insurance can't reinstate insurance coverage, only Lexington Insurance Company can. Mu. Tigue asked PJfir. Dutton if use CaiiCeiiatiGii notice was stapled t0 the certificate of insurance that he provided to the City on September 12, 2005. Mr. Dutton replied no. Councilmember Stein discussed Attachment 2, which was the "Request for Reinstatement of Insurance Coverage." He stated that effective on May 25, 2005, the policy was cancelled. He stated the notice on the bottom of the notice states, "First Insurance Funding Corporation has no authority to reinstate your coverage; only the insurance company can do this. The policy referenced above is cancelled and is not in force until the insurance company notifies you of that fact. Any future notices or billings from us should not be construed to imply that your insurance coverage has been reinstated. We strongly urge you to contact your Agent or Broker, or the Insurance Company, to ascertain the status of your insurance coverage." He asked Mr. Dutton if he has a document from anyone that indicated his insurance was reinstated. Mr. Dutton replied no, and he doesn't have one that states it has been cancelled. Councilmember Stein stated this is the only document that the City has that states in explicit terms that the insurance is cancelled. Along with cancellation notice from Hays Company Attachment 8), the insurance was cancelled. He stated barring any evidence from someone that says the insurance was reinstated, he has to believe that the insurance was cancelled. Mr. Dutton stated that he talked to First Insurance. He explained that if he doesn't receive anything that says it has been cancelled, it's in effect. He reiterated that he "fed exed" a cashier's check overnight. He stated he doesn't understand why he's getting "hammered" all the time. He sent the check as soon as he could. Councilmember Stein stated there are many businesses that one can operate, but when one owns a bar and grill, they assume a greater amount of responsibility. There is a requirement to have the appropriate liquor licenses and insurance and following the rules of the City Code. Councilmember Slavik stated that Attachment 2 clearly states that the policy is cancelled. Mr. Dutton stated when he talked to First Insurance, and he said that he would overnight the check, First Insurance said everything was O.K. He stated once he sent the check to First Insurance, he didn't receive anything that told hien that the policy wasn't cancelled. Out of Adopted Council Minutes Regular Meeting of October 11, 2005 Page 9 of 19 frustration, he stated maybe he shouldn't have a liquor license. Councilmember Slavik stated Attachment 2 states that the policy was cancelled. Mr. Dutton stated that the notice also states that the policy had been brought up to date. Mayor Johnson stated perhaps there was an assumption by Mr. Dutton that his insurance had been reinstated. She reiterated that in Attachment 2, it clearly warns that simply bringing the account to current status, doesn't bring his account up to date. Mr. Tigue asked Mr. Dutton if he had ever been refunded for any payment made to his insurance company. Mr. Dutton replied no. Councilmember Stein stated at the previous Council meeting, Mr. Dutton stated &,at a check had been returned to him "recently. He asked if that was a NSF check. Mr. Dutton stated that was a cancelled check, and he misinterpreted the question. Payment was sent back to First Insurance. Mr. Tigue reiterated the payment made to First Insurance on June 16, 2005, and he stated Mr. Dutton has received no documentation subsequent to that fact canceling that insurance policy. Mayor Johnson stated that Mr. Dutton even had issues with NSF checks made out to the City for the first half of his license fees. Mayor Johnson reiterated that according to the Request for Reinstatement of Insurance Coverage Attachment No. 2), "First Insurance Funding Corporation has no authority to reinstate your coverage; only the insurance company can do this. The policy referenced above is cancelled and is not in force until the insurance company notifies you of that fact. Any future notices or billings from us should not be construed to imply that your insurance coverage has been reinstated. We strongly urge you to contact your Agent or Broker, or the Insurance Company, to ascertain the status of your insurance coverage." Councilmember Slavik added that this document also states, "We understand that only the Insurance Company can reinstate cancelled policies. Therefore, we ask you to advise the Insured, the Agent/Broker listed above, and First Insurance Funding Corp. if the policies have been reinstated or will remain cancelled." Mayor Johnson stated that Mr. Dutton is claiming that he was insured, and he did everything appropriately. Councilmember Stein stated if Mr. Dutton is claiming that his insurance was never cancelled or reinstated, why does he have a new certificate of insurance dated September 21, 2005 through January 31, 2006 (Attachment 11)? Mr. Dutton stated that he did what he had to do when the Police Department delivered a notice to Adopted Council Minutes Regular Meeting of October 11, 2005 Page 10 of 19 him on September 19, 2005. There were obligations that insurance company was responsible for. Mayor Johnson noted that with the new certificate of insurance, instead of Mr. Dutton going through the Hays Company, he went through the Young Insurance Agency. Mr. Dutton stated that the Young Agency accepted his check, and he was automatically covered. He acknowledged that he didn't make a call to his insurance agent on the termination notice, but he didn't receive anything at that time and neither did the City. Councilmember Black stated that it's Mr. Dutton's responsibility to notify the City. She stated the start date of his new insurance is September 21, 2005, and there was a lapse in insurance coverage from June 13 through September 21. Mr. Tigue stated the law is clear that the insurance company has waived its insurance rights. He referred to the following court cases: 1. Eichten v. Klein, 280 Minn. 449,160 N.W. 2d 33 (1968). 2. Cooney v. Milwaukee Mutual Insurance Co., 397 N.W. 2d 352 (Minn. App. 1986). 3. Estate of Wigley v. Great -West Life Assurance Co., 396 N.W. 2d 664 (Minn. App. 1986). He believes that whether the insurance company ever followed up and stated whether Mr. Dutton's policy was reinstated or cancelled, the insurance company retains $1,777.39 from Mr. Dutton and makes no refunds. Therefore, any right to cancel the insurance policy is waived by law. If there would've been an incident, the insurance company would've been responsible to cover the claim. Mayor Johnson stated a lot of this could've been avoided if Mr. Dutton didn't have a long history with insurance companies, statements that there isn't insurance, etc. She stated the City has to make sure the privilege of having a liquor license is being followed. Mr. Dutton is placing the public at risk if there isn't coverage. She stated there is a problem of issuing checks when there aren't funds to cover those checks. She stated there is a need to have responsible businesses that are successful in the community. She noted that the City has documentation from the Hays Company and Lexington Insurance Company that there was no coverage. She stated Mr. Dutton is claiming that the policy was in force and it was the fault of the Hays Company in not notifying the City or Mr. Dutton. She indicated that it's the Council's responsibility to make sure the laws are being followed. She noted that she has given Mr. Dutton the benefit of doubt. She stated the City is doing their very best in an objective manner to make sure rules are being followed. Motion was made by Councilmember Black, and seconded by Councilmember Hewitt, to adopt the Findings of Fact and Decision. Councilmember Black stated that it's clear to her on. the notices that the company that took Mr. Dutton's money, wasn't the company that could give him the insurance. She stated Mr. Dutton claims that he never received notice that the insurance was reinstated. She noted a personal situation involving insurance coverage that happened many years ago where they assumed there Adopted Council Minutes Regular Meeting of October 11, 2005 Page 11 of 19 was insurance coverage since they hadn't received notice that the insurance had been cancelled. She stated Mr. Dutton just assumed that he had insurance, but he needed to contact Lexington Insurance Company. Mr. Dutton stated that he is guilty of a lot of things. He stated he is sorry that he didn't call Lexington Insurance Company. The Hays Company was his broker, and they didn't inform the City on the status of his policy. They were also responsible in getting information to him. He stated he feels that he is being "pin pointed" for something that he thought had been taken care of. He stated he is dumbfounded with this whole situation, as he takes this very seriously. He stated when he leaves the Council meetings, he feels dirty, as he is a good guy. He stated he feels there is a target on his back. Mayor Johnson assured Mr. Dutton that is not the case. She stated that when he applied for his liquor license in 2004, there were some issues that were attached to this location that weren't his, and the Council didn't hold him accountable for those incidents. She stated Mr. Dutton agreed and worked with the City and the neighborhood. She stressed that there has never been a target on his back, but the Council is trying to make sure that the letter of the law is being followed. Councilmember, Bildsoe pointed out to Mr. Tigue that he is wrong on his assumption that there was payment and insurance coverage in force. He stated the $1,777.39 payment made in June really brought the account current through June, covering the NSF payment. He stated notice was sent on June 13, 2005 from the Hays Company that the insurance had been cancelled. He stated if he were Mr. Dutton and he would've received a termination notice, he would've been very concerned. Mr. Dutton stated when he was on the telephone with First Insurance, he assumed that if he made payment, that would get his account up-to-date, and he was assured of that. Therefore, he doesn't understand what he did wrong. He acknowledged that he received the "Reinstatement for Insurance Coverage," but from his point of view, he thought it was taken care of. Councilmember Willis stated that the date of September 30 whereby Mr. Dutton submitted additional documentation to the City, formed the basis of the report which is before the Council this evening. He asked the City Attorney that based on the testimony that was received by Mr. Dutton and Mr. Tigue this evening, would any of this suggest a change from what's before them this evening. City Attorney Knutson replied that the Council needs to sort though the facts and the testimony. He stated Mr. Dutton and Mr. Tigue have given a different story this evening than from the previous Council meeting, but he has no recommended changes to the Findings of Fact and Decision contained in the packet materials. Mr. Tigue submitted a copy of the cancelled cashier's check dated June 15, 2005 in the amount of $1,777.39 to staff for the record. Councilmember Hewitt stated that it's pretty obvious that Mr. Dutton should've contacted the Lexington Insurance Company. She stated she still has a concern that the Hays Company issued a cancellation notice effective June 13, 2005, and now Mr. Dutton has new insurance dated September 21, 2005 through January 31, 2006. She noted that this just doesn't fit with Mr. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 12 of 19 Dutton's testimony. It doesn't appear that he had insurance, and he should've contacted the insurance company. Mr. Dutton misinformed staff. Councilmember Stein stated at the previous Council meeting, he was the one who requested to table this item until this evening in order to allow Mr. Dutton time to provide additional documentation to the City to prove his case. He stated there are so many inconsistencies with his story. Mayor Johnson asked Mr. Dutton that in addition to providing a copy of the cancelled cashier's check, does he have any documentation that states that the Lexington Insurance Company and the Hays Company accepted that payment. Mr. Dutton replied that he has been accused of a lot of things. He stated when he appeared before the Council for his compliance check violation, he became part of the City's Best Practices Program. Earlier this year, when he changed the coverage dates on his insurance, the City received notice. On July 23, 2005, he sent a check io the City for $4,100 for his second half payment on his liquor licenses, and that is missing. Mayor Johnson asked if the City has anything from the Hays Company or First Insurance that indicates that the policy was reinstated. City Manager Ahrens replied no. Mr. Dutton stated that he didn't receive his payment back. Mr. Tigue added that its their understanding that acceptance of payment isn't sending any payment back. Mayor Johnson asked Mr. Dutton if they received anything. Mr. Tigue replied no. Mayor Johnson asked if it's correct that there is nothing before the Council this evening that states that coverage was reinstated. Mr. Tigue replied that's correct. Councilmember Bildsoe stated that when he reviews Mr. Dutton's payment history, the payments are monthly, not quarterly. Mr. Dutton disputed that. He stated that he is tired, and he didn't do anything wrong. He's guilty of trusting someone that it was going to be done, trusting that he was going to be informed, and he wasn't. Councilmember Bildsoe stated that the Council is guilty of trusting Mr. Dutton. Mr. Tigue stated that the record clearly reflects that as soon as Mr. Dutton knew that he didn't have insurance, he sent a.cashier's check. Also, when the City hand delivered him a notice on September 19, 2005, he immediately shut down. Mayor Johnson stated the Council hasn't even touched on the issue of Mr. Dutton deceiving the City. In addition, there is the other issue that he didn't have insurance from June 13, 2005 through September 21, 2005. Councilmember Stein stated that he somewhat agrees that Mr. Dutton didn't intentionally mean to have his insurance lapse. He stated the Hays Company is somewhat negligent, as they didn't Adopted Council Minutes Regular Meeting of October 11, 2005 Page 13 of 19 send a termination notice to the City, so Mr. Dutton could've reinstated the insurance. He stated revoking the liquor licenses is somewhat drastic, as in Mr. Dutton's mind, that if he knew the facts, he would've acted accordingly. However, he didn't. Substitute Motion was made by Councilmember Stein, and seconded by Mayor Johnson, to approve the Findings of Fact and Decision, and removing the words "knowingly" in item No. 14 and "intentionally" in item No. 15, and to suspend the license for 60 days. With Stein, and Johnson voting yes, Black, Willis, Bildsoe, Hewitt, and Slavik voting no, the motion failed. Councilmember Slavik stated that this is the third time that Mr. Dutton has had to appear before the Council regarding his liquor licenses, and his story has changed from this time to two weeks ago. She stated the Council gave Mr. Dutton additional time to submit documentation. What Mr. Dutton provided to the Council indicates that the policy had been cancelled. She reiterated the language on that documentation that had been read earlier. Mr. Dutton stated that he didn't do anything wrong, and this business is his life savings. He stated he doesn't understand, and he stated that one has to have common sense too. Motion was made by Myor Johnson, and seconded by Councilmember Bildsoe to amend the Main Motion to remove the words "knowingly" in item No. 14 and "intentionally" in item No. 15 of the Findings of Fact and Decision. Mayor Johnson stated that a representative of the Lexington Insurance Company isn't present this evening to state whether the misrepresentation was there or not regarding the termination notice. She stated that is hearsay, and she doesn't feel that this has been proven beyond the reasonable common sense that is allowed. She stated at a minimum, Mr. Dutton didn't follow through with making sure there was insurance from June 13, 2005 through September 21, 2005. She acknowledged that Mr. Dutton was dealing with three different groups, and the insurance company didn't notify the City earlier on the cancellation of the insurance. She stated as a business owner, especially in this line of business, it's so important to make sure that these things are taken care of, because the risk to the public is so great. Councilmember Hewitt agreed, and she struggles with that as she feels there is misrepresentation according to the City Clerk's testimony. She noted that all of a sudden there is a new insurance policy beginning September 21, 2005. Therefore, she feels there had been misrepresentation so she wouldn't be supporting the amendment to the main motion. Councilmember Stein noted that the City invoiced Mr. Dutton for this second half payment of his liquor licenses that was due on August 1. When the City hadn't received payment, the City sent a letter to Mr. Dutton on August 26, 2005, and Mr. Dutton didn't make payment until September 9, 2005. The Council voted on the amendment, and with all members voting in favor but Hewitt, the motion carried. Councilmember Slavik stressed that the City isn't targeting Mr. Dutton. She stated she has tried Adopted Council Minutes Regular Meeting of October 11, 2005 Page 14 of 19 to give him the benefit of the doubt, and she wanted his business to succeed. Mayor Johnson stated that Mr. Dutton has been before the Council three times, and the Council didn't take action on the second time. There being no further discussion, the Council voted on the amended main motion. With all members voting in favor, the motion carried. 8.3) Reconstruction of County Road 101 between 12th Avenue and 301h Place North (5102) Public Works Director Cote reported that since the September 13 Council meeting in which this item was tabled, staff has been working with the County on refining the cost estimate of Layout No. 4 for the above project and meeting with the residents on 25th Avenue who expressed concerns about the potential for increased traffic resulting from the realignment of the intersection of County Road 101 and 25th Avenue/26th Avenue. He reiterated that the County was originally seeking approximately $4.1 million contribution from the City, and the City had budgeted for a $1.2 million contribution based on correspondence received from the County prior to the design work on the project. City and County staffs have discussed potential cost savings for the City while preserving the integrity of the County's cost participation policy. They were able to make changes to the design, which would reduce the City's cost by 1,560,970, and make the City share of the project cost at $2,607,687. Councilmember Slavik stated that the trail that was proposed for the west side of the roadway is now being eliminated in order to save $53,000. She requested that the Council reconsider this because if the trail were eliminated, there would be a gap on the west side. Councilmember Black agreed that the trail should be left in. She stated since the project wouldn't be bid until 2007, there would be a few opportunities to allocate funds in the Capital Improvements Program for this portion of the trail. Motion was made by Councilmember Bildsoe, and seconded by Councilmember Black, to adopt a Resolution Approving Layout No. 4 for County State Aid Highway 101, from 12th Avenue to 30th Place North (5102 — Res2005-390,) with keeping the trail on the west side. With all members voting in favor, the motion carried. 8.4) City Center Entrance Sign Project (5120) Councilmember Slavik voiced her concern on the cost of this project with the lowest bid coming in at $201,919. She acknowledged that signs are necessary, but it's hard to justify the high cost. She suggested that perhaps the signs could be redesigned, or review how many signs, relocate the signs, etc. Motion was made by Councilmember Slavik, and seconded by Councilmember Willis, to reject the bids and to direct staff to redesign the signs, review how many signs, and if they should be relocated. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 15 of 19 Councilmember Hewitt stated that she wouldn't support the motion as the design of the signs is very effective, and they would be complimentary to the area. Councilmember Stein agreed. Councilmember Black stated the shortfall would be covered out of the Capital Improvement fund; therefore, she asked what projects would be deferred. Finance Director Hahn replied the projected balance at the end of the year for that fund is $200,000. He stated this fund would increase approximately $100,000 the following year. Councilmember Stein asked if funds could be used from the Community Improvement fund. Finance Director Hahn replied there is approximately $6 million in that fund, and those funds could be used for this purpose. Councilmember Willis stated that he supports identification for the City Center area; however, he is more concerned about the concept for the design as the design appears to be more extravagant for a conservative city. He stated he wouldn't be supporting the motion due to the high cost. Councilmember Bildsoe agreed. Mayor Johnson asked if revenue could be generated from the electronic reader portion of the sign. Community Development Director Hurlburt replied no. Mayor Johnson asked if the City could eliminate one of the signs. Planning Manager Senness replied each sign costs approximately $52,000, and the signs were bid as a package. City Attorney Knutson added that the City can't change the scope of the project once it's bid. Councilmember Black stated she would be supportive of removing the proposed sign at the theater. She stated the signs should be large enough so they could be seen. Substitute motion was made by Mayor Johnson and seconded by Councilmember Bildsoe, to refect the bids and rebid the project with the elimination of the sign at the northeast corner of Vicksburg Lane and Highway55. With Black, Willis, Bildsoe, Slavik and Johnson voting yes, and Hewitt and Stein voting no, the motion carried. The Council voted on the amended main motion and with all members voting in favor, the motion carried. 8.5) Site Plan Amendment, Conditional Use Permit and Variances for the Waterford Plaza Shopping Center (Provident/Waterford, LLC — 2005070) Councilmember Willis stated he is concerned with the proposed entrance to this development as the revised plan indicates a right out turn only. He stated that the traffic traveling westbound on County Road 6 to Revere Lane is going to conflict with people exiting the development. He noted that it appears this is very close to the intersection, and it doesn't fall within the recommendation of the traffic consultants. The City would be intensifying the use and making it worse. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 16 of 19 Public Works Director Cote explained how the plan had'changed from the original plan. He stated on the revised plan, the main site entrance along 6th Avenue would be repositioned approximately 45 feet west of its present location and a new "right -out only" exit point to 6th Avenue would be added just west of the new retail building. He stated that he discussed this situation with the City's traffic consultant today, and they indicated that with the limited number of vehicles exiting the site, it wouldn't be significant with the traffic at the intersection of 6th Avenue and Revere Lane. Councilmember Willis asked what the distance is from the 6th Avenue and Revere Lane intersection to the access of the development.. Public Works Director Cote replied approximately 140 feet, and with only a right -out, staff and the traffic consultants are comfortable with residents approaching the intersection. Philip Jaffe, representing the developer, stated their goal is to revitalize the shopping center. They are trying to renovate the shopping center, since currently it has a 40% vacancy rate, and to implement the extension of Revere Lane. He explained there is a need to have a outlot building with a coffee type business. He stressed that if they don't have a right -out, there would be no access to that building, and that would cause more problems in trying to exit the property. He stated that there aren't that many vehicles traveling on 6th Avenue. Motion was made by Councilmember Bildsoe, and seconded by Councilmember Slavik, to adopt a Resolution Approving a Site Plan Amendment, Conditional Use Permit, and Variances to Provident/Waterford LLC, for "Waterford Plaza Shopping Center" to allow a new Retail Building and Changes to the Parking Lot and Site Access, for Property located in the Northeast Quadrant of Hi way 55 and Revere Lane (2005070 — Res2005-391). With all members voting in favor but Willis, the motion carried. 8.6) Conditional Use Permit for Property located at 9600 54th Avenue (WCL Associates, Inc. — 2005102) Councilmember Willis stated the above project involves an Interim Use Permit that would allow reduced parking on one side of 54th Avenue, with private shuttle bus service for employees who would park at ev3's manufacturing facility located approximately one mile away from 4600 Nathan Lane. He stated he doesn't believe that a shuttle bus service is going to be effective, as employees will be parking on 54th Avenue. He suggested that the City post no parking on 54th Avenue. Councilmember Black stated the traffic flow in this area generated from U.S. Foods, and parking on 54th Avenue would be an issue with the semi trucks from U.S. Foods. Motion was made by Councilmember Black, and seconded by Councilmember Willis, to adopt a Resolution Approving a Conditional Use Permit for Over 50 percent Office Use and Interim Use Permit for Reduced Parking for WCL Associates Inc., for Property located at 9600 54th Avenue 2005102-Res2005-392) with the condition that 54th Avenue be posted no parking. With all members voting in favor, the motion carried. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 17 of 19 8.7) Preliminary Plat for "Larkin Ponds" (2005078 — Calhoun Development) Councilmember Willis voiced his concern with the proposed "hammerhead" turnaround, as it would be problematic. He suggested there be a cul-de-sac even though the developer would lose one buildable lot. Motion was made by Mayor Johnson and seconded by Councilmember Hewitt, to adopt a Resolution Approving a Preliminary Plat for Calhoun Development for "Larkin Pond," a Subdivision of Four Lots for Sin Family Dwellings located at 1010 Harbor Lane North 2005078 — Res2005-393), with a public cul-de-sac with anon -standard (hammerhead) turnaround (Option B). Floyd Calhoun, from Calhoun Development, stated they have spent a considerable amount of ut ne working with Staff and the neighbors ori this design. He requested that the Resolution state Floyd Calhoun Development." Councilmember Willis stated with the "hammerhead," he is concerned about public safety vehicles accessing this area as well as difficulties in snowplowing the area. Public Works Director Cote explained how the snowplowing would occur. He acknowledged that it's not the most convenient; however, it's something that staff would do. Councilmember Willis asked staff if they would prefer a "hammerhead" or a cul-de-sac. Public Works Director Cote replied a cul-de-sac would be the preferred option, but a "hammerhead" is acceptable, and they are in other parts of the City. Community Development Director Hurlburt added they discussed what the City policy is, which is a cul-de-sac. The developer indicated that they weren't willing to construct a cul-de-sac, as it would reduce the number of lots, and they proposed a private street, which wouldn't meet any of the City standards. She stated that staff wouldn't approve a private street, and staff wouldn't necessarily prefer this option, but they didn't have any other alternatives in keeping the four lots. Councilmember Willis asked staff if there are engineering standards for "hammerheads." Community Development Director Hurlburt replied yes. Councilmember Stein stated that he would support the motion, as it's a good compromise between what the developer and residents want. Motion was made by Councilmember Stein, and seconded by Mayor Johnson to call the ue stion. With all members voting in favor but Willis, the motion carried. The Council voted on the main motion and with all members voting in favor but Willis, the motion carried. Reports and Staff Recommendations Adopted Council Minutes Regular Meeting of October 11, 2005 Page 18 of 19 9.1) Joint City Council/Planning Commission Meetings for the Land Use Plan for Northwest Plymouth Motion was made by Councilmember Hewitt, and seconded by Councilmember Bildsoe, to schedule Joint Meetings with the Planning Commission on November 14 and November 30 at7:00 p.m. Substitute motion was made by Councilmember Slavik, and seconded by Councilmember Bildsoe, to schedule Joint Meetings with the Planning Commission on November 15 and December 6 at 7:00 p.m. The motions on the table were withdrawn without objection. Motion by was made by Councilmember Black, and seconded by Councilmember Bildsoe, to schedule Joint Meetings with the Planning Commission on November 30 and December 6 at 7:00 p.m. With all members voting in favor, the motion carried. 9.2) Reschedule November 22 RegularCouncil Meeting Motion was made by Councilmember Hewitt, and seconded by Councilmember Stein, to adoptta Resolution Rescheduling the November 22 Regular Council Meeting to November 29 (Res2005- 394). With all members voting in favor, the motion carried. 9.3) Notice of Special Election for State Senate District 43 Mayor Johnson reported that there would be a Special Election on November 22 in the City for Senate District 43. If necessary, a Primary Election would be held on November 1. 9.4) Truth in Taxation Hearing Notices Mayor Johnson lead the Council in a discussion of new legislation that allows cities to include information in the Truth in Taxation notices that the County sends. She explained that staff prepared a one-page handout to explain the City's budget process to be sent with these notices. However, the County has rejected the notices that were sent by cities and schools, as they want to do their own version. City Manager Ahrens stated that staff is seeking direction from the Council on how to proceed at this point. She noted that the County Board hasn't considered this issue. Councilmember Hewitt stated that each city and school district is unique; therefore, it's difficult to be included in with the County's general notification. Councilmember Black suggested that a letter be sent to each of the County Board members allowing cities and school districts to include their own information in the notices. If necessary, the Council and staff could follow up with phone calls to the County Commissioners. Adopted Council Minutes Regular Meeting of October 11, 2005 Page 19 of 19 Adjournment Mayor Johnson declared the meeting adjourned at approximately 11:20 p.m. 4 vi'&wak andra R. Paulson, City Clerk