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HomeMy WebLinkAboutMinutes from 7/14/2009PROCEEDINGS OF THE COMMON COUNCIL CITY OF OSHKOSH, WISCONSIN OlHKO1H ON THE WATER REGULAR MEETING held Tuesday, July 14, 2009 at 6:00 p.m. in the Council Chambers, City Hall. Mayor Esslinger presided. PRESENT: Council Members Tony Palmeri, Jessica King, Bob Poeschl, Burk Tower, Dennis McHugh, Harold Buchholz and Mayor Esslinger ALSO PRESENT: Mark Rohloff, City Manager, Pamela Ubrig, City Clerk, Lynn Lorenson, City Attorney, and Dave Patek, Director of Public Works Council Member Palmeri read the Invocation and led the Pledge of Allegiance. PUBLIC HEARINGS Resolution 09 -249 Approval of Final Resolution for Special Assessments for Concrete Paving, Concrete Curb and Gutter and Concrete Driveway Approach (Lane Street) MOTION: ADOPT (Tower; second, Palmeri) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger There were no appearances and the Public Hearing was CLOSED. Ordinance 09 -250 Approve Zone Change from R -2 Two Family Residence to R -2 Two Family Residence with a Planned Development Overlay for Property at 1958 Oregon Street, Vacant Lot adjacent to 1958 Oregon Street and Part of 2008 Oregon Street (Plan Commission Recommends Approval) [note: applicant requesting waiving of second reading] MOTION: SUSPEND RULES FOR CONSIDERATION (McHugh; second, King) LOST: Noes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger FIRST READING; LAIDOVER UNDER THE RULES Council Member Tower questioned the reason to waive the rules. PROCEEDINGS OF THE COMMON COUNCIL — JULY 14, 2009 Mayor Esslinger read the request provided by the developer -Del Tritt. He explained the developer wanted to proceed with commitment to the property owners involved and approval would allow the property owners to take advantage of the low interest rate for the proposed purchases. Approval would also allow the site at 1958 Oregon Street to be cleared and rid the neighborhood of the eye sore and proceed with plans for the development. Deputy Mayor Palmeri stated that he would not support waiving the rules. He explained that he wanted more information regarding pedestrian walkway and the vision of the overall project. Council Member Tower stated that he would not support the ordinance as he needed more time to review the development. Council Member Poeschl stated that he would not support the ordinance as he wanted more information. Council Member Buchholz questioned if the notices had been mailed to all the property owners. He questioned how many residents attended the meeting. Darryn Burich, Director of Planning, stated that the notices had been sent and there were one or two residents that attended. There were no other appearances and the Public Hearing was CLOSED. CONSENT AGENDA Approval of Minutes from June 9, 2009 Council Meetings. Approval of Bills presented by the Finance Director. Approval to Grand Opera House / Utilize Opera House Square, facilities and close Market Street for the Grand's 2009 -2010 Season Celebration / July 28, 2009. Approval to Oshkosh YMCA and the Dragon Boat Festival Planning Committee / Utilize City Streets for their 5k Running Event / September 26, 2009. Approval to Oshkosh Jaycee's / Utilize South Park & facilities for their 77 Annual Children's Day Parade / August 9, 2009. Approval to Canadian National Railroad / Perform Required Track Maintenance / July 22 and 23, 2009. Approval to the residents of Newport Court for a Block Party / July 28, 2009. Approval to the residents of Hayward Avenue for a Block Party / August 22, 2009. 2 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Approval to the residents of South Eagle Street for a Block Party / August 8, 2009. Approval to Mayor's Breakfast Committee/ Waive fee to Utilize Riverside Park and facilities (including Leach Amphitheater) for the 2009 Mayor's Breakfast / July 31, 2009. Approval to Michael Schroeder / Utilize 400 Block Parking lot behind Time Theater for his Straight Jacket Escape / August 1, 2009. Receipt of Claim filed with the City's Insurance Company / Larry Dietrich, for injuries alleged from hitting a pot hole on Tennessee Avenue. Receipt of Claim filed with the City's Insurance Company / Brian and Anne Kienert, for property damage alleged from sewer back -up in basement. Receipt of Claim filed with the City's Insurance Company / Thomas and Kay Mettlach, for property damages alleged from a sewer back -up. Resolution 09 -251 Approve Planned Development for Construction of Single Family Condominium Units at 1958 Oregon Street (Plan Commission Recommends Approval) Resolution 09 -252 Approve Conditional Use Permit for Automobile Sales at 640 North Main Street (Plan Commission Recommends Approval) Resolution 09 -253 Approve Granting Privilege in Street to UW- Oshkosh for Construction /Replacement of Underground Steam and Condensate Lines Adjacent to 845 High Avenue and 800 Algoma Boulevard (Plan Commission Recommends Approval) Resolution 09 -254 Approve Granting Easement to UW- Oshkosh for Placement of Conduit and Fiber Optic Cable along the Recreational Trail in Carl E. Steiger Park (Plan Commission Recommends Approval) Resolution 09 -255 Approval of Change Order No. 1 for Public Works Contract No. 09 -01 with Feaker and Sons Company Inc., for Various Utility Construction ( +$43,379.01) Resolution 09 -256 Approve Initial Resolution for Hot -Mix Asphalt Paving /Grade - Gravel (Stoney Beach Road, Stoney Beach Street, Stoney Beach Lane, 6th Avenue, Congress Avenue and Various Alleys) Resolution 09 -257 Approval of Extension of 1993 County /Municipal Recycling Agreement 3 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Resolution 09 -258 Approve Agreements with Wisconsin Department of Transportation for Reconstruction of US Highway 41 A) Witzel Avenue ($0) B) 20 Avenue ( +$43,000.00) Resolution 09 -259 Approve Agreement with Wisconsin Department of Transportation for Resurfacing of Snell Road from Jackson Street to US Highway 41 ($4,000.00) Resolution 09 -260 Approve Amendment to Agreement with Wisconsin Department of Transportation for Reconstruction of Main Street ($899,592.00) Resolution 09 -261 Award Bid to: A) Packer City International for Tandem Axle Truck Chassis for Water Distribution ($75,225.00) B) Monroe Truck Equipment for Tandem Axle Dump Body for Water Distribution ($31,571.00) Resolution 09 -262 Award Bid to Kitz Pfeil Inc. for Utility Tractor with Cab and Hydraulics for Street Division ($39,917.00) Resolution 09 -263 Award Bid to: A) Packer City International for Tandem Axle Truck Chassis for Sanitation Division ($88,642.00) B) Stepp Equipment Company for Roll -Off Body for Sanitation Division ($35,941.00) Resolution 09 -264 Disallow Claim by Liberty Mutual on behalf of Thomas and Kay Mettlach (for property damages alleged from a sewer back -up) Resolution 09 -265 Disallow Claim by / Doris Matulle (for property damages alleged from a sewer back -up) Resolution 09 -266 Disallow Claim / Joe Honsa (vehicle damage from alleged city crew doing concrete work in area) Resolution 09 -267 Disallow Claim / Brian and Anne Kienert (for property damages alleged from a sewer back -up) Brian Kienert, 1647 Sanders Street, explained this was the first time in eighteen years that there was a back up. He stated that the water truck was at the intersection of 17 Avenue and Sanders which was the wrong place to clear obstruction and avoid flooding. He explained the correct way to clear the system was from the end of Sanders Street. He stated that he had incurred several thousand dollars of damage due to the back up in his basement. He explained that it was unethical not to notify him that his claim was on the agenda for PROCEEDINGS OF THE COMMON COUNCIL - .JULY 14, 2009 denial. He stated that there was proof that the City was responsible for the damage to the three homes in the area. Deputy Mayor Palmeri questioned if he had been contacted by any person from the Water Department. Dean Braun, 1635 Sanders Street, explained that a snake should have been run on Florida Street prior to flushing. He stated that he had not received notice that this would be on the Agenda. He explained that he spoke with employees from the Water Department that acknowledged a mistake to Mr. Mettlach. Mr. Kienert stated that Mr. Mettlach had spoken to the Water Department employees that acknowledged wrong doing and was unaware of the resolution going before Council tonight. Deputy Mayor Palmeri questioned if the City's Insurance had contact with Mr. Kienert. Mrs. Kienert stated that she had received a letter, no phone call. Mayor Esslinger requested staff to explain if notices were sent to the residents informing them of the resolution on the agenda. Ms. Ubrig explained that her office received notification that the Insurance Company recommended denial of the claim and letters were not sent out to residents informing them that it would appear on the agenda. She stated that it could be implemented. Mayor Esslinger stated that the residents should be allowed the ability to speak on their behalf. Mr. Rohloff explained that this was not the venue to have discussion as it could be a potential lawsuit against the City. He stated that it was not a hearing; it was to take action upon recommendation of the City's Insurance Company based on facts discovered during their investigation. Ms. Ubrig stated that a certified letter would be sent after the denial to the residents. Mayor Esslinger stated that the letter was sent after the fact. He stated that it was in the jurisdiction of Council to accept claims rather than deny. Ms. Lorenson stated that the City would need to set up a closed session, gather information from the Insurance Company as it was a matter that may involve litigation. Resolution 09 -268 Disallow Claim / Mary Kay Rathe (for injuries due to allegedly falling at the Senior Center during a soup luncheon) PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Resolution 09 -269 Approval of Special Class B Licenses, Agent Change for Combination "Class B" License, Combination "Class B" License, Operator's Licenses, Taxicab Licenses and Junk Collector Licenses MOTION: ADOPT CONSENT AGENDA EXCLUDING ITEM #4 BILLS PRESENTED BY THE FINANCE DIRECTOR; ITEM #12 APPROVAL OF MAYOR'S BREAKFAST COMMITTEE / WAIVE FEE TO UTILIZE RIVERSIDE PARK AND FACILITIES (INCLUDING LEACH AMPHITHEATER) FOR THE MAYOR'S BREAKFAST / JULY 31, 2009, RESOLUTIONS 09 -251, 09 -257, 09 -259, 09 -260, 09 -264, 09 -265 AND 09 -267 (Poeschl; second, McHugh) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Approval of Bills presented by the Finance Director MOTION: ADOPT (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Deputy Mayor Palmeri explained that he had e- mailed the Finance Director regarding some items in the warrant register. He stated that there was an amount of $4,170 to an outside attorney for contracted municipal prosecution services for municipal citations; he questioned why an outside attorney was used. Ms. Lorenson stated that it was a time issue. Approval to Mayor's Breakfast Committee / Waive fee to Utilize Riverside Park and facilities (including Leach Amphitheater) for the 2009 Mayor's Breakfast / July 31, 2009 MOTION: ADOPT (Poeschl; second, Palmeri) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Council Member Tower questioned why the Parks Department secretary requested the use of the park. He questioned if the Mayor's Breakfast Committee was separate from the Parks Department and where the fiscal responsibility would be. Mr. Rohloff explained that it was not being put on by the City and that the secretary for the Parks Department had been a member of the Mayor's Breakfast Committee in the past. He stated that she wrote the letter on behalf of the Committee and the calls would go to the Convention and Visitors Bureau. He stated that the City's phone number had been listed in error. He explained that it was on the Agenda to waive the fee and to allow use of the park. A: PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Mayor Esslinger stated that there was an account set up for expenses through the Oshkosh Credit Union and was financed by the Committee. Mr. Rohloff stated that the key to the City had been an expense of the City and would be presented at the breakfast. Council Member King questioned what the fee was. Mr. Rohloff stated that the fee was approximately $500 for a community non - profit organization to use the park. Council Member King stated that this would set a precedent for potential other non - profits that held community wide events. Resolution 09 -251 Approve Planned Development for Construction of Single Family Condominium Units at 1958 Oregon Street (Plan Commission Recommends Approval) MOTION: ADOPT (Poeschl; second, Palmeri) MOTION: LAYOVER UNTIL JULY 28, 2009 MEETING (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Deputy Mayor Palmeri explained that since the rules were not suspended for the zone change (09 -250) it would be appropriate to layover this resolution as it was the same development. Mayor Esslinger questioned staff if this was interrelated and if that would be a wise move. Mr. Rohloff stated that Mr. Burich indicated that it would be an appropriate move of action had the ordinance (09 -250) been approved. Mr. Burich explained that the conditional use permit could not be used due to the request to waive the rules on the ordinance (09 -250) was denied. Resolution 09 -257 Approval of Extension of 1993 County /Municipal Recycling Agreement MOTION: ADOPT (Palmeri; second, Tower) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Council Member McHugh questioned if this was common and why the City agreed to an extended timeline of ten years and an automatic renewal of five years. N PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Mr. Rohloff stated that it was not unusual for planning purposes; it allowed the City to have a six month notice to request not to extend the contract. He stated that because of the investment the company needed to know that the community partners were on board with them for long term. Council Member McHugh stated that it was a long time for commitment of something so large without precedence. He questioned if there were concerns the Council should be aware of such as rates being raised. Mr. Rohloff explained that the purpose was to acknowledge that there was a nine plus million dollar investment from the three participating counties and they needed to know that the municipalities participating would continue to participate. Mr. Patek explained that the understanding was that Winnebago County needed the cooperation of all communities to receive the best price. Mr. Rohloff stated that there was a 1993 county municipal agreement and that was amended or had been in effect for fifteen years. He explained that investment such as this generally had longer agreements. Mr. Patek explained that it had been a 25 year municipal agreement with amendments due to the change to single streaming and eliminating the allowance of blue bags. Council Member Buchholz questioned the last page article six regarding the funding. Mr. Rohloff explained that the County did the work and would continue to that, the City would receive reimbursements under the state program. He explained that the tipping fees had increased. Resolution 09 -259 Approve Agreement with Wisconsin Department of Transportation for Resurfacing of Snell Road from Jackson Street to US Highway 41 ($4,000.00) MOTION: ADOPT (Poeschl; second, Palmeri) MOTION: LAYOVER UNTIL JULY 28, 2009 MEETING (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Resolution 09 -260 Approve Amendment to Agreement with Wisconsin Department of Transportation for Reconstruction of Main Street ($899,592.00) MOTION: ADOPT (Palmeri; second, Buchholz) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger E PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Deputy Mayor Palmeri questioned if resolutions needed to be reviewed more closely. Mr. Rohloff stated that this was an updated agreement. Steve Gohde, Assistant Director of Public Works, explained that the plans for Main Street were at 90% as they had been developed along the guidance of the BID and the previous study completed by LDR. He explained the changes for the street were due to the requests for pedestrian accommodations since biking was not prohibited on sidewalks in the City. He stated that there was not enough space in the right of way to allow for all of the requests. Deputy Mayor Palmeri questioned if future requests would be included in the project. Mr. Gohde explained that it would delay the bid and risk delaying the project. Council Member Tower stated that the bike lanes would not work downtown. He questioned if other requests would be added if they were consistent with the general plan. Mr. Gohde stated that if small items were to be added, they needed to be worked on diligently as final plans were due August 1 St of this year in order to meet the project schedule. Mr. Rohloff explained that features such as benches could be added at a later date. Council Member King explained that there was funding added for landscaping trees, street lighting and brick pavers. Resolution 09 -264 Disallow Claim by Liberty Mutual on behalf of Thomas and Kay Mettlach (for property damages alleged from a sewer back -up) MOTION: ADOPT (Palmeri; second, McHugh) MOTION: CLOSED SESSION ON JULY 28, 2009 TO REVIEW CLAIM AND LAYOVER UNTIL AUGUST 11, 2009 FOR ACTION ON CLAIM (Palmeri; second, Esslinger) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Deputy Mayor Palmeri stated that the City was responsible for clearing the main sewage line and unfortunately it caused a back up; however the insurance company recommended denial that the City was not responsible. He explained that the next step for the property owner was circuit court and the chance to prevail in court was unlikely. Ms. Lorenson explained that because the matter could involve litigation, discussion should be held in a closed session. Deputy Mayor Palmeri questioned if the citizens would be involved in the closed session. 9 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Mr. Rohloff stated that it would be inappropriate to have them included due to the potential of litigation. Deputy Mayor Palmeri questioned if the Council had an opportunity to allow the claim and how that would be done. Mr. Rohloff explained to listen in closed session and understand the recommendation and then citizens could speak at the August Council Meeting. Deputy Mayor Palmeri stated that the insurance investigation did not include contact with all parties involved and that was odd. Mr. Rohloff stated that he would discuss that issue with staff. Council Member King questioned if the claim went to litigation and the City lost would the insurance company cover the loss. Ms. Lorenson stated with that scenario it would be within insurance coverage. Council Member King questioned why the City would have insurance policies if the Council would set precedence that claims would be adjudicated. She stated that the financial impact and payout would come from the operating budget unless it went through the judicial process where it would then be covered by the insurance company. Council Member McHugh questioned if all claims were denied. Ms. Lorenson stated that not all claims were denied. She explained that the claims that come before Council were the denied claims. Mr. Rohloff explained that paid claims did require Council approval. Council Member McHugh questioned if claims that were allowed were settled outside of court and if all claims were sent to the insurance company. Mr. Rohloff stated that claims that were valid were paid for by the insurance company and all claims were sent to the insurance company. Deputy Mayor Palmeri stated that the problem was to prevail in court was impossible. The chance to prevail was if the Council would make that decision for the claimant. He explained that it was clear that the citizen was not at fault. Mr. Rohloff explained that it was not a question if the property owner had done anything wrong; the question was if the City had done something wrong that they would be liable for under the statutes. He explained that the basis of the denial was that there was no negligence on behalf of the City of Oshkosh. He explained that the City did not have prior notice of a blockage. 10 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Council Member Buchholz questioned what the next step was if the resolution lost. Ms. Lorenson stated that if the resolution lost it would not allow the claim. She explained that there would be a time frame and after that time frame passed it would be deemed denied under the law. Mr. Rohloff explained that this would start the process for the property owner to file a lawsuit if they chose to. He stated that the time frame was six months and if no action was taken on the resolution at this time it would not hurt the property owner it would delay the six month time frame for response. He stated if Council did nothing then in 90 days it would be deemed denied; by taking action it would allow more time for the claimant to respond. Council Member Buchholz questioned if the preference was to have claims go to litigation versus the closed session approach. Mr. Rohloff suggested that once Council was provided information from the City it would be sufficient to deny the claim. Council Member Tower explained that all evidence needed to be reviewed prior to a decision to recommend payment to the claimant. Council Member McHugh suggested looking into a different insurance company. He stated that it was against his judgment to have Council reviewing all the claims. Deputy Mayor Palmeri stated that he did not suggest making a decision tonight; however, he would like to provide citizens the opportunity to make their case. Mayor Esslinger questioned if residents were notified when the City conducted routine maintenance for out lines. Mr. Patek explained that notification was not needed if the resident had a back flow preventer. He stated that notification was not mailed to residents and that was why the City urged home owners to install aback flow preventer. He explained that generally there were no problems when flushing lines. Mayor Esslinger questioned if the City changed insurance carriers. Mr. Rohloff stated that they did not. Mayor Esslinger explained that it was troubling because an individual from the insurance company stated that they guaranteed claimants would be contacted. He stated that these claimants had not been contacted. He urged the City to gather information regarding other insurance carriers. He questioned why the City continues to pay for insurance if the City had immunity from claims. 11 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Mr. Rohloff explained that if the City was negligent the insurance company pays. Mr. Patek stated that in various situations claims were paid. Mayor Esslinger suggested that notification be provided to residents regarding the date their claim would go before Council. He questioned if Council would be allowed to speak to the claimant as to the discussion during closed session. Ms. Lorenson stated that there needed to be more information regarding the matter due to potential litigation. Council Member Buchholz questioned how there would not be precedence set that Council was educators for future claims brought before Council. Deputy Mayor Palmeri explained that in order to vote he needed information regarding what was being voted on and if gathering information prior to a vote was setting precedence then it was good to set it. Council Member McHugh questioned if the purpose of the closed session was for fact finding and not to determination. Mayor Esslinger stated that was correct. Resolution 09 -265.. - Disallow Claim by / Doris Matulle (for property damages alleged from a sewer back -up) MOTION: ADOPT (Palmeri; second, McHugh) MOTION: CLOSED SESSION ON JULY 28, 2009 TO REVIEW CLAIM AND LAYOVER UNTIL AUGUST 11, 2009 FOR ACTION ON CLAIM (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Resolution 09 -267 Disallow Claim / Brian and Anne Kienert (for property damages alleged from a sewer back -up) MOTION: ADOPT (Palmeri; second, Buchholz) MOTION: CLOSED SESSION ON JULY 28, 2009 TO REVIEW CLAIM AND LAYOVER UNTILAUGUST 11, 2009 FORACTIONON CLAIM (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger 12 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 ACTION TAKEN ON ORDINANCES AND RESOLUTIONS Ordinance 09 -270 Approve Various Amendments to Chapter 30 Zoning Ordinance to add a new definition for "Adaptive Reuse" and Permitting the Adaptive Reuse of Specific Buildings in Residential Districts as Conditional Uses (Plan Commission Recommends Approval) MOTION: ADOPT (Palmeri; second, Tower) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Ordinance 09 -271 Change Hours of Enforcement for Monthly Parking Spaces MOTION: ADOPT (Poeschl; second, Palmeri) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Ordinance 09 -272 Revision of Parking Permit Programs and Removal of Parking Meters from West 8th Avenue and Riverside Park Municipal Parking Lots MOTION: ADOPT (Palmeri; second, McHugh) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Ordinance 09 -273 Approval of Traffic Control Changes on Michigan Street, McKinley Street and West 12th Avenue and Parking Regulations Changes on Algoma Boulevard, Eagle Street, Lincoln Avenue and Vine Avenue MOTION: ADOPT (Palmeri; second, Poeschl) CARRIED: Ayes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Ordinance 09 -274 Create an Ordinance Designating Portion of Public Way (Alley) Located Between the 400 Block of North Main Street and the 400 Block of Jefferson Street as a Pedestrian Mall (Plan Commission Recommends Approval) FIRST READING; LAIDOVER UNDER THE RULES 13 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Resolution 09 -275 Approve Granting Privilege in Street to Mark Glomstead, etal for Placement of Private Irrigation System within the Terraces on Fox Fire Drive and East Pheasant Court at 400 Fox Fire Drive (Plan Commission Recommends Denial) MOTION: ADOPT (Palmeri; second, Poeschl) LOST: Noes (7) Palmeri, King, Poeschl, Tower, McHugh, Buchholz, Mayor Esslinger Mr. Rohloff explained that Mr. Glomstead had been compensated for removal of the irrigation system in the terrace. Mayor Esslinger explained that by denying the resolution was not to replace the irrigation system into the public right of way as the staff and Mr. Glomstead had reached an agreement. Council Member Poeschl questioned the payment process and where in the budget would the funding come from. Mr. Rohloff stated that the payment had been processed and was within the financial boundaries. He explained that it would come out of the utilities fund. Council Member McHugh questioned the agreement. Mr. Rohloff explained that the agreement was to remove the irrigation system in the public right of way. Council Member McHugh questioned if the privilege would not be allowed in the terrace. Mr. Rohloff explained that in the agreement it was stated that he would not seek future permits for irrigation in the right of way. Resolution 09 -276 Approval of Combination "Class B" License / Screwballs MOTION: ADOPT (Palmeri; second, Buchholz) CARRIED: Ayes (6) Palmeri, King, Poeschl, Tower, McHugh, Buchholz; Present (1) Mayor Esslinger Mayor Esslinger stated that he would vote present as he had relations with the establishment. Resolution 09 -277 Amend Developer Agreement Terms with Oshkosh Riverfront Development LLC MOTION: ADOPT (Poeschl; second, CARRIED: Ayes (5) King, Poeschl, To Noes (2) Palmeri, McHugh Esslinger) Ner, Buchholz, Mayor Esslinger; 14 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Council Member McHugh stated that the visioning report was excellent. He stated that he was surprised at the high percent of people urging for the completion of the river front project and the river walk. He stated that he did not believe the residents' vision was for the new development as described. He explained that he would not support the resolution as what was planned for development was not the vision he had hoped for. Council Member Buchholz questioned if areas one and four of the project for other developers to present ideas. Jackson Kinney, Director of Community Development stated that was correct. Council Member Buchholz questioned if the Riverfront Developers would then be allowed to present similar plans. Mr. Kinney explained that Oshkosh River Development would be allowed to bring forward projects for review and consideration. He explained that the change would allow the City and the Redevelopment Authority to solicit and consider proposals from other developers for use that have not been proposed by Oshkosh River Development to date. He explained that another developer would not be allowed to bring forward a proposal for a use that had been proposed by Oshkosh River Development. Council Member Buchholz questioned if there was a timeframe. Mr. Kinney stated that the timeframe for Oshkosh River Development rights in that area would run through December 31, 2012. Council Member Poeschl questioned what type of development would be allowed on areas one and four. Mr. Kinney explained that anything other than the uses that had been proposed. He stated that the Oshkosh River Development had proposed office building, residential apartments and condos, mixed commercial residential structure and a stand alone restaurant. He stated that a hotel development would be desirable, a resort, or entertainment facilities something of that venue. Council Member Poeschl questioned if a stand alone restaurant use was to come forward would they need to work with Oshkosh River Development. Mr. Kinney stated that was correct because that was included in one of the excluded uses. Council Member Poeschl questioned what would happen if the developer did not want to work with the Oshkosh River Development. Mr. Kinney stated that they would not be able to bring a stand alone restaurant without working with the Oshkosh River Development. 15 PROCEEDINGS OF THE COMMON COUNCIL — JuLY 14, 2009 Deputy Mayor Palmeri questioned if the amended agreement was rejected would the project proceed. Mr. Kinney explained the project would continue because there was a development agreement in place with Oshkosh River Development for the entire Phase II area. Mayor Esslinger explained that the issue and focus of the amended agreement was that there was a potential for a different development. He stated that this would allow for developing something exciting as opposed to what was proposed. Mr. Kinney stated that the Dumkes would be willing to work with a developer for the correct combination of uses. Mayor Esslinger explained that Oshkosh River Development had the developer's agreement until 2012; however, there was a chance that another developerwould want to work with them on something with excitement. Council Member Poeschl questioned what would happen to the proposal if the amendment was not approved. Mr. Kinney stated that the current agreement would remain in place. Council Member Poeschl questioned why the developers would want to amend their agreement. Mike Goudreau, 230 Ohio Street, explained that they were asked to agree to this and stated that they had wanted what was best for Oshkosh. He stated that they would continue to move forward with their proposal; however, if another developer came forward with something better, they would support them and step aside. He stated that they were trying to be a good partner and that was the only way everyone would win. Art Dumke, 2020 Menominee Drive, stated that working with the City on the project had been a good experience. Council Member Tower explained that the Mayor had gone to the developers and requested that they open the chance for other opportunities of development in the area. He stated that this was a can not lose proposal for the City. Mr. Rohloff stated that part of the risk of the amended agreement was that the valuation requirements may not be met as the Dumkes would not have control over it; therefore, the valuation requirements would be lifted. Mr. Dumke explained that by lifting the valuation was not exempting the City to more risk. Deputy Mayor Palmeri questioned the risk. 16 PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Mr. Rohloff explained that the risk was a guarantee that Dumkes were required to provide $28 million in development, and if not fulfilled, the obligation could be pulled; however that obligation would no longer be there with the amended agreement. Deputy Mayor Palmeri questioned if the resolution was rejected there would be less risk. Mr. Rohloff explained that was correct. He stated that he had expectations that the Dumkes would perform their obligation. Council Member Poeschl questioned who the land owner was. Mr. Kinney stated that the Redevelopment Authority owned the land until conveyed under the terms of the development agreement. He explained that Oshkosh River Development had a current agreement and the amendment would allow potential ideas from other developers to come forward. Mr. Goudreau explained that it was not uncommon for a parcel this size to take longer for development. He stated that a substantial amount of money had been invested. Mr. Dumke explained that there would be four buildings going up within the next year. He stated that the development was something to be proud of and would be a beautiful buffer. Council Member Buchholz stated that he would support the resolution. He questioned if the Oshkosh River Development was waiting to see what happened with parcel one and four. Mr. Dumke stated that their previous commitments had pulled out due to economic reasons. He explained that they had focused on the other four projects so there had been little time to focus on these parcels. Deputy Mayor Palmeri explained that he had been at the boat club and there was little enthusiasm for the senior housing project. He stated that he would not support the amendment due to concerns with the risk the City would be taking. Mayor Esslinger stated that he would support the resolution. He explained that if there was hope of other development to the area, Council members should vote in favor of the resolution. He thanked the Oshkosh River Development for all that they have done. Council Member King thanked the Mayor for addressing the issues regarding potential development for the residents of Oshkosh. She stated that she was excited for development to happen and the City had an aging population and needed access to development without the need to drive. She stated that she supported the resolution. liVA PROCEEDINGS OF THE COMMON COUNCIL - .JULY 14, 2009 OTHER BUSINESS 2010 Budget Kick -Off Discussion Mr. Rohloff explained that the City was on track to remain within budget in 2009; interest earnings were down and safety would remain a priority and there were conservative investments. He explained that to the expenditure were added tip fees, and bids for road salt were coming in very poor compared to what was expected. He stated that fuel had been budgeted at $3.50 and $4.00 for diesel and, therefore, the items offset one another. He explained that over the past five years increases had average 2.83% and remained under 3.5% which demonstrated there had been fiscal restraints due to the resources. He stated that for 2010 there was $700,000 to the negative and the levy limit was 3% which estimated to approximately $836,000 and that would leave approximately $100,000 to play with for many unknown factors. He stated that there were wages and an increase of health insurance to be approximately 8 %; diesel fuel and gas should come down. He stated that the City would follow the lead of the State. He stated that the collective bargaining process would begin soon; and no increase to operating budgets, and a 3% to 5% reduction. He explained that the budget would be delivered to Council by October 7th with the budget hearing to be held on November 10 He stated that he welcomed feedback and suggestions from the Council to help improve the process. Deputy Mayor Palmeri urged the City to be aggressive in collecting payment from those facilities that were in lieu of taxes. He explained that Sheboygan had cut positions and the City could potentially be in a position to make painful cuts. Council Member Buchholz questioned if the recycling effect would be less or more expenditure. Mr. Rohloff stated that there would be a reduction of 2 personnel in that department that created savings. Council Member Buchholz questioned the $300,000 shortfall and if that was referring to a particular item. Mr. Rohloff stated that for 2009 the major increase was the tipping fee and road salt. He stated that there were two $300,000 numbers for 2010 and that was the first bullet on page nine in the City Manager's Report. Council Member Buchholz questioned consideration for the Grand Opera House would be determined in the 2010 budget. Mr. Rohloff explained that the Grand Opera House improvements would be part of the capital improvement. He stated that the memo was referring to the operating budget. m PROCEEDINGS OF THE COMMON COUNCIL - JULY 14, 2009 Council Member Buchholz questioned the difference between the revenue and expenditure levy. Mr. Rohloff explained that the $64 million represented general fund expenditures plus levy allocations to all other funds listed. He stated that items pertaining to the levy were net cost to taxpayers. He stated that there needed to be a better explanation regarding that information. Council Member King urged discussion regarding a community -wide incentive program pertaining to the recycling program to encourage recycling. CITIZEN STATEMENTS Dan Lynch, 310 South Eagle Street, stated that his son had passed away from lung cancer. He explained that his radon level in his basement may have been the cause as well as second hand smoke. He explained the levels of radon. He explained actions that could be taken to ban second hand smoke. He urged property owners to have their basements checked for radon. Dave Reimer, 1038 McArthur Road, stated that the City was working on a credit for homeowners regarding the storm water sewer run off credit. He questioned if the Town of Algoma was charged for storm water run off. He explained that he resided on the lake and his run off went into the lake and questioned why he paid for run off at all when he did not use the storm sewer. He questioned why there was no policy to solve this problem and how long it would take for a policy to be created. Mayor Esslinger instructed staff to send a memo to the gentleman with answers to his two issues and add to the next meeting for Council Member statements. Patricia Diener, 1316 Broad Street, thanked Mrs. Schmidt for organizing Sawdust Days and Festival Foods for the fireworks. She questioned how long New York Avenue would be under construction. Mr. Patek stated that construction would continue through fall. Steve Barney, 1335 Summit Avenue, urged Council to pass an ordinance regarding the use of clear plastic bags for trash. He explained that this would help to ensure residents to recycle. He urged Council to move forward to create an urban wildlife committee and that committee could review a contraception study. He stated that he attended a public hearing regarding the community block grant application and was disappointed with the process of the hearing. He stated that the City needed to formalize the public hearing process. He stated that the vision plan was a smart growth plan and the EPA provided assistance to City's on revising zoning ordinances and grants. He urged the City to utilize the EPA with their assistance in the vision plan. He explained that the Sustainability Board was notified by Susan Kepplinger that the City had not begun to draft a sustainability plan. He suggested that the City seek help from the University regarding that issue. 19 PROCEEDINGS OF THE COMMON COUNCIL — JULY 14, 2009 COUNCIL MEMBER ANNOUNCEMENTS, STATEMENTS AND DISCUSSION Council Member Poeschl urged the Council Members to be present at the Saturday Farmer's Market along with City resources. He explained that he would commit to attend every third Saturday of each month until October. He stated that he would have the invitation noticed. Council Member Buchholz questioned if it would be broken down into shifts for Council Members to be at the Farmer's Market. Council Member Poeschl stated that there was not much of a response from members; therefore he went the informal route. He stated that if Council Member were interested he would arrange time slots. Council Member Buchholz explained his concerns with the length of time the public hearing had taken regarding O'Brian's liquor license. He suggested two options: 1 - being to separate those special hearings from regular meetings; and 2 - to add time limits to the presentations. He questioned the basics of hearings. Ms. Lorenson explained that public hearings were for zoning matters and those types were for citizens to have the opportunity to speak. She stated that the liquor license hearings were a different type of hearing. Council Member Buchholz stated that he would suggest removing public hearings from regular Council Meetings as it affects citizen's statements due to the time frame. Deputy Mayor Palmeri stated that the liquor license non - renewal hearings were rare; however, they should be held on an evening other than at the Council Meetings. Ms. Lorenson explained that at the O'Brian's hearing there was a time issue and the hearing needed to take place at the June 23 meeting. She stated that revocation or non - renewal hearings could be reviewed and held on a different evening. ' Council Member Tower stated that they tend to be rare and could be reviewed from year to year. He explained that it had been a debate for years as to when citizens should be allowed to speak. Council Member King stated that she had no issue moving citizen statements to be held after the Pledge of Allegiance. Mayor Esslinger stated that citizen statements being at the end were the option for residents and the business meeting was why the Council was there. He explained that residents could contact Council Members at anytime. He stated that he was not in favor of time limits regarding license renewal. He was in support of holding hearings at a special time. 20 PROCEEDINGS OF THE COMMON COUNCIL - JULY 94, 2009 Council Member Poeschl stated that he would not support time limits on hearings; however, he would support that they be moved to a different day and time and would consider moving citizens statement to the beginning of the Agenda. Council Member Buchholz explained that the response was different from citizens contacting Council by email as to presenting information before the Council. He stated that equal time limits could be given to both parties providing presentation at hearings or a special session would be appropriate. Mayor Esslinger stated that Council rules could be changed at anytime. He urged staff to move the West 8 Avenue improvements to the 2010 CIP. Mr. Rohloff explained that based on comments received the City was working on accelerating the street replacement schedule and it would involve West 8 Avenue. Council Member McHugh questioned if there were other areas in the community in poor condition as 8 Avenue was or in worse condition. Mr. Rohloff stated that the process was to evaluate the streets and infrastructure and 8th Avenue was next in line to be moved up. He explained the method to prioritizing streets. Council Member McHugh questioned the progress of hiring a firm to study the storm water and sewer system. Mr. Rohloff stated that the infiltration and inflow study was in process and had been under contract since March. Council Member McHugh questioned if it included televising. Mr. Patek stated that it did not; it was flow monitoring and manhole inspections. Mayor Esslinger stated that there was a public meeting that was held regarding the deer issue. He explained that those that attended were there to plan a wildlife committee rather than a deer committee since there were problems with other animals such as rabbits and geese. Deputy Mayor Palmeri questioned if the DNR would assist in creating a committee. He urged the City to review how other municipalities created their committees. He stated that expertise was needed to form the committee along with citizens. Council Member McHugh questioned the intent of the committee. Mayor Esslinger explained that the committee would identify the problem and then create a way to solve the problems. 21 PROCEEDINGS OF THE COMMON COUNCIL - .JULY 14, 2009 Deputy Mayor Palmeri explained that the committee would continue educating citizens regarding issues with wildlife. Mayor Esslinger urged staff to create an analysis of how other municipalities conduct their committees and have it on the agenda for the August 11 meeting. Council Member Buchholz questioned what department the committee would stem from. Mr. Rohloff explained that research needed to be completed to see how others operated. Deputy Mayor Palmeri suggested a workshop regarding liquor licenses and a demerit system. Mayor Esslinger suggested that staff set up the workshop so there would be no conflict with schedules. Council Member Tower questioned the high speed rail workshop. Mr. Rohloff stated that it was decided not to have the workshop on July 28 He stated that the Sawyer Creek study would take longer and Council may want to have a separate date and time. Council Member Tower suggested a separate date as it interested residents. He questioned the extra meeting due to some Council Members that worked full time. Mayor Esslinger announced that there was the strategic planning meeting to be held and that meeting would take approximately four hours. CITY MANAGER ANNOUNCEMENTS, STATEMENTS AND DISCUSSION Mr. Rohloff stated that there was a large amount of interest in the project of updating the Grand Opera House. He explained that the opening of the bids was pushed back to July 29th. He explained that the inspector for the ceiling had not completed his investigation. He explained that the State was active in the project as part of the City receiving a grant from them. He stated that the State would not complete their inspection until some time in September. He stated that the manhole and inlet castings have been purchased and the formal bidding was waived. He explained that work was continuing on Snell Road with Strand and Associates so it would be ready for the State when they would begin construction. He stated that there would be a joint workshop with the Plan Commission regarding the vision study on August 17 from 5 pm to 7 pm. MOTION: ADJOURN (King; second, Palmeri) CARRIED: VOICE VOTE The meeting adjourned at 9:30 p.m. PAMELA R. UBRIG CITY CLERK 22