City Council Minutes

Pursuant to due call and posted notice thereof, the regular meeting of the Victoria City Council was called to order at 6:30 p.m. by Mayor Hershberger Thun in the Council Chambers at 7951 Rose.

Members Present: Mayor: Mary Hershberger Thun; Councilmembers: Tim Amundsen, Tom O'Connor, Jim Paulsen and Kim Roden.

Absent: None.

Staff Present: Don Uram, City Administrator; Cara Geheren, City Engineer; and Mike Norton, City Attorney.

Others Present: Bill Cook, Tom Buchal, and Tim O'Donnell of the Metropolitan Council; Fred Chase and Dan Banken from Lametti & Sons and Craig Peterson, MCES Council Member.
 

A motion was made by Councilmember O'Connor, to adopt the Agenda as amended. The motion was seconded. With all members voting in favor, the motion carried. Vote: 5 Ayes, 0 Nays.
 

1. Memo from City Attorney re: Permanent and temporary easements for Phase II property owners

1. McClellan Easement (permanent and temporary)

2. Wagner Easement (permanent)

2. Memo from City Administrator re: MCES Responses to Questions and Comments

1. MCES Responses to Questions and Comments from Victoria City Council Workshop on June 22, 2009

3. Memo from City Attorney re: Review of MCES Legal Documents (Corwin)

1. Notice of Filing Order

2. Order Approving Petition

3. Stipulation and Settlement

4. Draft submittal of Amendment No. 1 and Exhibits listed above prepared for the June 22 council workshop (Redline documents are not available).

Mr. Uram explained this is an amendment to the cooperative construction agreement with the Metropolitan Council Environmental Services for the construction of the tunnel project and related improvements in the Bavaria and Smithtown area. He noted that this item was continued from the last meeting due to a number of documents that were submitted just prior to the meeting to give the City Council time to review the documents. Mr. Uram stated the easements have been reviewed by the City Attorney and summarized in memorandum form in the packet. He said the amendment includes three things: 1. Change in the timing 2010 to 2012. 2. Payment option which includes a daily rental rate and payment of reasonable engineering and legal fees. 3. Series of exhibits that will be attached to the amendment which specifies the level of service details. Mr. Uram stated that staff is recommending approval of the amendment as attached.

Bill Cook, Engineering Manager for Technical Services with the Metropolitan Council, introduced two representatives from Lametti & Sons; Fred Chase and Dan Banken. He said Craig Peterson, MCES Council Member, is also in attendance.

Pete Nelson, 800 Smithtown Terrace, said he applauded what he thinks is a step in the right direction, but wanted to express some continued concerns. He questioned what the additional $335,000 will be used for and said he thinks it should be used to make certain that the same kinds of problem do not occur as in phase one. He commented on exhibits F-I and said they are intended to provide some level of protection and said he has concerns with that. He stated he would like to see the project not go forward until the damage that has been done to their home and the Corwin home and to the others get fixed.

Mr. Nelson asked what the rush is and said given the economy it is not clear to him that this is needed at all at this time.

Mr. Nelson questioned what the agreements are with the homeowner and the Metropolitan Council. He said his concern is when homeowners are presented with easement agreements they are asked to sign away their rights. He stated the City needs to make certain the process put in the paper is absolutely fool proof.

Mr. Nelson commented on the people who had damage to their properties not being consulted. He said there are a dozen examples of things that should be fixed. He talked about the terms of the arbitration and said there is no guarantee that the Metropolitan Council will pay the damage fees. He stated there should be some hard requirements and the Metropolitan Council should pay for these kinds of fees. Mr. Nelson stated he would like to see a bond posted from the contractor and the Metropolitan Council with the City. Mr. Nelson said there is some potential that in the agreements this may be counterproductive and said another layer is created between the citizens and the Metropolitan Council if the issues aren't addressed. He said he does not see the need to go forward until the homework has been done and to make sure the people that have been affected have a chance to sit down and work with the City to come up with some documents that would provide adequate protection for homeowners in phase two. Mr. Nelson stated the soil has changed and caused many problems in phase one. He said safety has to be a big concern. He stated the process is a little bit different but he doesn't know if the end result will be any different.

Councilmember Roden commented on involving the public and asked Mr. Nelson what he thought that would be. Mr. Nelson stated he would have liked to have had a clear explanation of the timeline and the process for the legal pieces. He noted they didn't understand the process because they didn't have an attorney. He said they were never warned that the easement payments would come with giving up all rights to further claims. He commented on leaving the sheet pilings in place.

Mr. Norton said the language in the easements he has read related to the second phase indicate that they are not giving up any rights except rights to challenge the damages in the specific easement area that is described and attached to the easement. He noted the homeowner would have to give up the rights to challenge on easement areas because they would be getting compensation. He stated there was no language saying the right of damage to the house would be given up. He said these easements are typical for temporary and permanent easements for construction projects.

Councilmember Roden asked why Mr. Nelson has the ability since he did not sign the easement to appeal his claim directly to the Condemnation Commissioners and Mr. Corwin does not have the right to appeal his claim. Mr. Norton said he was told that Mr. Nelson did not sign the easement or the stipulation settling the condemnation matter. He said there is no language in the easements requiring them to give up any rights. The stipulation does indicate that payment received for the easement is in full settlement of the condemnation matter related to the easement. Councilmember Roden said she didn't understand why Mr. Nelson's claim can be appealed to the commissioners but not Mr. Corwin's. Mr. Norton explained the condemnation proceeding with the Corwin's and the Metropolitan Council was accepted by the court and that lawsuit is done with. Mr. Nelson's lawsuit is still pending. The Corwin's gave up their rights to appeal any damage claims relating to the easement issue. Councilmember Roden said she would like to know what happens when someone signs an easement and what rights they give away.

Mr. Uram asked Ms. Geheren to address the need for the project. Ms. Geheren showed the two existing lift stations L22 and L23. She explained that based on information provided from the Metropolitan Council in a table outlining the existing system capabilities and usage in the area, various different peak flow conditions through lift station L22 exceeds the capacity of the pumps. Ms. Geheren explained that when a new development goes in or the sanitary sewer system is extended the Metropolitan Council Environmental Services has to approve that permit to say that the system can handle that additional waste. She said they negotiated the amount of REC's that could be put into the system and based on the existing plats the map indicates there would be 260 available REC units left within that existing agreement. She noted from the Metropolitan Council's perspective they are already over capacity for the pumps.

Councilmember Paulsen asked how deep L22 and L23 are. Ms. Geheren said deep.

Councilmember Paulsen asked about the soil tests that would be done on phase two.

Mr. Norton clarified his answer to Councilmember Roden's question and said the Metropolitan Council has agreed to expand the Nelson's condemnation action from just the temporary to any claim of permanent damage.

Councilmember Roden said she sees enormous progress from phase one to phase two. She said that assuming the new process outlined was in place for phase one how would the outcome for Mr. Nelson or Mr. Corwin would've been different. Mr. Norton said he can't speculate how it would have been different in terms of a result, but there would have been a different process. He said it may have changed the relationship with the parties and may have had a better impact of what occurred. Councilmember Roden said that is a deciding factor and the process in place for phase one was inadequate.

Councilmember Roden said what makes the difference is how a quality construction contractor and a quality construction manager handle mistakes when they are made. She asked if there is better protection for homeowners in the phase two procedures. Mr. Norton stated he can't guarantee that there would be a better legal outcome. He said if these procedures would have been in there before it would have been much easier to arrive at a resolution. Councilmember Roden questioned if this would be a better process for homeowners in phase two if there are problems. Mr. Norton stated the exhibits provide a much better process.

Councilmember Roden asked if the contractor is also bound by these agreements. Mr. Norton said they are bound in the sense that the Metropolitan Council has agreed to impose these processes on themselves and on the contractor. He noted that the Metropolitan Council will be doing an addendum with the contractor or a change order that will bind the contractor to follow the timelines in the processes.

Councilmember Roden asked why they would use a different process with contingency fees than what they have found to be workable with the City. Mr. Norton said he did see all the bid documents and the Metropolitan Council is doing the same as any government entity would do. Councilmember Roden said they have no ability to influence the Metropolitan Council to take some of the contingency to address the issues with the affected homeowners. Mr. Norton said they don't have any independent ability to force that contract. Councilmember Roden asked what leverage they have if they have homeowners knocking on the door saying there is a repeat of phase one. Mr. Norton stated the Metropolitan Council has agreed to keep staff and the City Council regularly informed and they agreed to provide periodic reviews.

Councilmember Roden asked what the process will be if additional connections need to be made. Mr. Norton said the contract describes what is going to be done in the various locations and only covers a period of time. Councilmember Roden asked if phase one is considered to be completed. Mr. Norton said he thinks the project is completed but is not sure about the claims. Mr. Uram stated there has been a final walk thru of the project but the damage claims are still outstanding. Councilmember Roden asked about dealing with the same sheet pilings as with phase one at the end of this three-year process that will affect the same homeowners. Mr. Uram explained that at some point they will need to go back and they expect Smithtown to be open approximately a month but the extent of the construction will be significantly less than what has happened previously. Ms. Geheren said while they are tunneling, a hole will have to be dug to connect the two pipes together. Mayor Hershberger Thun clarified that it is in the center of the road. Ms. Geheren noted they will be in the city right-of-way and the contractor will have to get a permit from the city.

Councilmember Roden asked about the status of the water that has chlorine in Mr. Corwin's home. Ms. Geheren said they discovered there was a pipe that was leaking within his home.

Councilmember Roden asked why it takes three years. Mr. Cook said this is a very linear project and they would be tunneling through ground that has lots of boulders and is slow work. He stated they can't do a lot of things concurrently but they will work with the contractor to do it as quickly as possible. Mayor Hershberger Thun asked if there is a comparable project. Mr. Cook said they just completed a project called the Minneapolis East Interceptor which was a large tunnel. He noted the bulk of the work is in drilling the hole. Councilmember Paulsen clarified that the drilling would be in one direction.

Councilmember O'Connor clarified that the recommendation from Ms. Geheren is to go forward with the project.

Councilmember O'Connor referred to exhibit H on the safety and asked Mr. Uram if he is comfortable that the process in place will be as safe as it can be made. Mr. Uram said they need to rely on the experts in this area from a tunneling standpoint. He said he has conversations with the Fire Chief who has indicated that the first responders have limited experience and they will be bringing in experts to analyze the safety program.

Councilmember O'Connor commented on the first phase and the lack of effective communications and referred to page F-4 and the MCES's project Citizen Liaison is Tim O'Donnell and the damage claim appeal process contact on page F-3. He asked what the sequence is for the homeowner if something goes wrong. Mr. Cook said they tried to make it very clear. He said the affected property owner needs to talk to the construction contract administrator who will be available after hours and by phone and email. He said then it becomes the contract administrator's responsibility to work the contractor and the affected homeowner to try to get an immediate resolution. In the event there is not an immediate resolution there is a timeline in the process. Councilmember O'Connor asked who should be called. Mr. Cook said Tom Buchal and said his title was referenced as opposed to the name. Councilmember O'Connor said the right sequence of steps needs to be clear if an issue arises.

Councilmember Amundsen asked where the tunneling will start. Ms. Geheren said it will start in the South Lake Virginia Shores Park. Councilmember Amundsen asked if on part A to B if there is any easement near or within the same proximity to any home as the Corwin's or Nelson's. Ms. Geheren said she would like to look more specifically at that but her reaction is no. Mr. Cook said there is a larger setback from the easement to the homes. He stated there is quite a bit of additional separation between the easements and the property compared to the first phase. Councilmember Amundsen asked if on the Highway 7 portion if there are any homes within a similar proximity to where the tunneling is going. Mr. Cook said no. Councilmember Amundsen said he would like to see the extra documents in the real packet as opposed to the add on packet in the future. He said that some of the questions should have also been anticipated.

Councilmember Amundsen asked if there is any proximity with the tunneling and is the hole going to be similar. Mr. Cook said it will be different because this is an excavation to remove the tunneling machine and to connect two pipes. He noted it doesn't require the delivery of culverts and concrete. Mr. Cook said the hole will be as deep but not as wide. He said they are exploring ways to build that without driving sheet piling.

Councilmember Amundsen clarified that if technology should improve with the construction and any unforeseen circumstances come up they will be able to discuss options to minimize or mitigate any negative impact. Mr. Cook said yes.

Councilmember Amundsen questioned the control of the City and asked why the City is not a party to the process. Mr. Norton said the Metropolitan Council has the only legal authority to address the storm water and sewer issues. He said they own the pipes and have the authority to do the projects even if the city didn't want them to. He noted the City's authority is very limited in this area.

Councilmember Amundsen commented on the accountability and suggested highlighting the point of contact for damage claims is the construction contract administrator.

Councilmember Amundsen asked Mr. Norton how the communications process has gone to get these changes. Mr. Norton said his personal view is the Metropolitan Council has been ready and willing to work with the City. He said they have tried to be as accommodating as they could.

Councilmember Amundsen stated he is most concerned about is the preconstruction inspection process. He asked if there are significant changes in the preconstruction inspection process and how do the changes benefit the homeowner. Mr. Cook said they have made changes to the preconstruction process. He explained the process they had before was they had the contractor hire an inspector come in and do a video record. He stated they have decided to do a different inspection process and said the Metropolitan Council now hires an independent home inspection firm and they are also bringing in structural engineers to do an assessment of the structure before they start construction. Mr. Cook said they also have a much larger body of technical review initially in the inspection. Mr. Norton said they also asked that the homeowner get more involved in the process and point out issues in the video. Councilmember Amundsen said it doesn't mean that people won't have a right to a claim. Mr. Norton's aid he does not see this as a limitation on the Metropolitan Council's liability.

Councilmember Amundsen asked if anything should be put in the document saying what the City Council's responsibility should be and the expectation of the City's role. Mr. Norton said there is staff history and the expectation would be the City Administrator and City Engineer need to make sure this gets followed.

Mayor Hershberger Thun asked if all the easements for the tunnel project have been signed. Mr. Cook responded yes.

Mayor Hershberger Thun commented on the hole that will be south of Virginia Drive and asked if it would be bounded by orange fence. Mr. Cook said yes. Mayor Hershberger Thun asked if pedestrians will be able to get by it. Mr. Cook said he doesn't know about pedestrian access. He said the hole will be 50 feet deep and it will be 50 foot square at the top. He stated it will fit in the right-of-way. Mayor Hershberger Thun clarified that no trespassing signs will be posted. Mr. Cook said yes.

Mayor Hershberger Thun asked if there would be any reason for any property owner to be talking to the contractor. She asked if the contractor questions to residents would go through Tom Buchal. Mr. Cook said that is the intent of the communications document. Mayor Hershberger Thun clarified there should be no reason for the contractor to be knocking on doors. Mr. Cook stated all communication should be going through Tom Buchal or the resident inspector.

Mayor Hershberger Thun clarified that Tom Buchal will try and fix any problems and asked who she would go to if he can't fix it. Mr. Cook said if Tom Buchal can't fix it he will move it up the chain of commands. Mayor Hershberger Thun asked if there would be any reason for property owners to contact the contractor's insurance company. Mr. Cook said in this procedure they have asked that the homeowner have some rights and obligations with respect to filing claims with the contractor. He stated the claims need to be filed through the Metropolitan Council.

Councilmember Paulsen stated they are not a party to the contract and have no rights to enforce the contract. Mr. Norton said that is a fair statement but the Metropolitan Council has agreed to come back and give updates. Councilmember Paulsen said the city really has no authority. Mr. Norton said they could try and enforce the contract in court. Councilmember Amundsen commented on the condemnation documents and said to him the first line of recourse is directly with the Metropolitan Council and if that is not satisfactory it is who ever the elected official is.

Councilmember Roden asked if the city has police powers. Mr. Norton said the city has police powers but the Metropolitan Council has the authority. Councilmember Roden asked what recourse the city has to issue a stop work order to protect the health and safety of the residents. Mr. Norton said OSHA or others could be called in. Councilmember Roden asked how often OSHA has been called Ms. Geheren said she can't think of any situation that they needed to call OSHA.

Councilmember Roden asked what the construction impacts and traffic impacts will be on the church buildings. Mr. Cook said that has been worked out in the easement agreement and as they get closer to that time they will sit down with the church to work out an appropriate timing so the impact is minimized. Councilmember Roden said there are issues on that road now and there is also stacking at the intersections of Highway 5 and Rolling Acres and Highway 7 and Rolling Acres. She asked how that would be dealt with during rush hour periods. Mr. Cook said they have a traffic management plan requirement that the contractor has to submit. He stated a substantial amount of the work is underground and most of the work will not affect surface traffic. He noted they will not be working on weekends.

Councilmember Roden commented on the number of homes right up against Rolling Acres and asked where the tunneling will be as it relates to those homes. She said those residents are already unhappy with the noise and the speeds. Mr. Cook said they have vibration sensors along the alignment. He said there will be public information meetings before they start construction and the contractor will explain the noise and vibration that each property owner could anticipate and when.

Councilmember Roden asked if this process will be used on other construction projects or is it only specific to phase two. Mr. Cook said they have implemented this on projects going forward. He noted the preconstruction inspection work is being implemented on all the projects.

Councilmember Roden commented on homeowners having to file the claims and asked what compensation is provided to the homeowners for their time spent. Mr. Cook said the assistance they are asking for with respect to the claim is not filling out paperwork. He said all they need is appropriate signatures. He stated they are trying to make this as low impact on the property owners as they can.

Councilmember Roden asked about the access for emergency vehicles. Mr. Cook said that is part of the traffic plan and there are requirements that the contractor has to provide access for emergency vehicles at all times. He noted there is a window of time the contractor has the ability to close a driveway. He stated this project is considerably different because it is a linear project.

Councilmember Roden said she asked Bryce Pickart why they didn't get a new contractor with phase one after all the problems and he said there wasn't a plan to get a new contractor. Mr. Cook stated it is very difficult to terminate a contract. He said on the phase two project they pre-qualified contractors.

Councilmember Roden asked who the insurance company is for the contractor in phase two. Fred Chase responded CNA. Councilmember Roden asked what CNA's status is economically. Mr. Cook said he will find out.

Councilmember Roden commented on the contractor that did the dredging behind the homes and said they had significantly improved customer service procedures. She said she hopes in phase two there is awareness on how important homeowners feel their property is to them.

Mayor Hershberger Thun called for a recess at 8:15 p.m.

Mayor Hershberger Thun reconvened the meeting at 8:19 p.m.

Mayor Hershberger Thun clarified the benefits of this tunnel are to provide future development activities which provides future commercial activities which provides future economic opportunities for Victoria which affects all residents. Ms. Geheren said there would also be the facilities.

A motion was made by Councilmember O'Connor, to Approve Resolution No. 09-81, A Resolution Approving the Amendment to the Construction Cooperative Agreement between Metropolitan Services (MCES) and the City of Victoria. The motion was seconded.

Councilmember Roden thanked the City Attorney, City Administrator and Metropolitan Council Staff for making what she thinks is a much improved process for phase two. She stated she cannot vote for this motion because phase two should not be started until phase one has been adequately closed out. She said there are still pending claims on phase one. Councilmember Roden said the right to do business and construction in her town is based on past performance for her. She noted that she would never sign an easement because of what happened in phase one.

Mayor Hershberger Thun commented on the homeowner's damage and the comments that the Metropolitan Council has not taken care of the homeowners and said she can't comment on if the claims are legitimate or not. She noted the City Engineer did warn the Metropolitan Council that the phase one project was not going to be an easy project. Mayor Hershberger Thun stated she cannot hold up a future project that will benefit all the citizens of Victoria. She said she believes the tunnel project is something the City of Victoria needs in terms of future development. Mayor Hershberger Thun encouraged the Metropolitan Council to work closely with the City Administrator and City Engineer and asked them not to forget what is in the documents.

With the majority of the members voting in favor, the motion carried. Vote: 3 Ayes (Hershberger Thun, O'Connor and Paulsen), 2 Nays (Roden and Amundsen).

Councilmember Amundsen said he talked to Representative Kohls and a meeting will be set up with him. He commented on the accountability. He said he would also like to see the Metropolitan Council Representative show up for the meeting with Representative Kohls.
 

A motion was made by Councilmember O'Connor, to adjourn the meeting at 8:32 p.m. The motion was seconded. With all members voting in favor, the motion carried. Vote: 5 Ayes, 0 Nays.

Respectfully submitted,

Tanya Schmieg
TimeSaver Off Site Secretarial, Inc.