View Agenda for this meeting

REGULAR MEETING OF THE NOVI CITY COUNCIL
MONDAY, JANUARY 24, 2005 AT 7:00 PM
COUNCIL CHAMBERS Ė NOVI CIVIC CENTER Ė 45175 W. TEN MILE ROAD

Mayor Csordas called the meeting to order at 7:00 p.m.

PLEDGE OF ALLEGIANCE

ROLL CALL: Mayor Csordas (Absent), Mayor Pro Tem Landry, Council Members Capello, Gatt, Lorenzo*, Nagy and Paul*

ALSO PRESENT: Rick Helwig Ė City Manager

Craig Klaver Ė Chief Operating Officer

Clay Pearson Ė Assistant City Manager

Tom Schultz Ė City Attorney

Benny McCusker Ė Public Works Director

Kathy Smith-Roy Ė Finance Director

Barb McBeth Ė Planning Director

Rob Hayes Ė City Engineer

APPROVAL OF AGENDA

Member Paul added to Mayor and Council Issues Item 2, Grand River/Novi/Haggerty Widening; Item 3, IT Department; Item 4, Secrest Wardle Legal Bills; and Member Lorenzo added Item 5, Follow-up to the Target/Landon Wetland Mitigation Plantings.

CM-05-01-015 Moved by Gatt, seconded by Capello; CARRIED UNANIMOUSLY: To approve the agenda as amended.

Voice Vote on CM-05-01-015 CARRIED UNANIMOUSLY

Member Paul arrived at 7:03 p.m.

PRESENTATIONS

1. Proclamation Ė Tsunami Disaster Relief Month Ė February, 2005

On December 26, 2004, the worst recorded natural disaster occurred when 11 Asian countries were struck by a Tsunami, which caused deaths in excess of 150,000 and immeasurable pain and suffering to the survivors.

Mayor Pro Tem Landry announced that the Mayor of the City of Novi had proclaimed the month of February as the Tsunami Disaster Relief period and read the proclamation in Mayor Csordasí absence; he urged all residents and businesses of the community to join in the observance and participate in any endeavor to provide relief to the affected people.

Member Lorenzo arrived at 7:08 p.m.

PUBLIC HEARING: None

REPORTS:

1. SPECIAL/COMMITTEE Ė None

2. CITY MANAGER

Mr. Helwig thanked everyone for their participation Saturday in spite of the very severe winter storm in the goal setting session; he said Administration would have the resolution on the next City Council agenda to formally ratify the work from Saturday.

Mr. Helwig thanked everyone in the community for their cooperation over the weekend with the storm; with the high winds Saturday, it was very difficult. City crews cleared a road and the wind would make it look as though they hadnít been there. He said it was a 24 hour battle; everyoneís cooperation was appreciated. He said it was a very safe time in the community; people were able to get to emergency centers and go about their business fairly well, given the nature of the storm.

Mayor Pro Tem Landry stated that he thought it set a record; he thought the previous record was 11.9 inches for the whole month, and the City had already had 26 inches for the month of January. He said the Department of Pubic Works was certainly to be commended; he said those guys worked around the clock. He didnít think most people understood exactly how hard they worked; it was easy to criticize but hard to understand exactly how hard those City employees worked.

3. DEPARTMENTAL Ė None

4. ATTORNEY Ė Landon Wetland Obligation Update Ė Schultz

Mr. Schultz stated that in Council packets there was a brief update on the status of the MDEQ permit for the Novi Promenade Development; in a nutshell, it looked like, from City Attorney conversations directly with the MDEQ, that they were set to go in the spring to plant those materials, which the City had an appropriate guarantee to make sure that was done on time.

AUDIENCE PARTICIPATION

Chris Stone, 50861 Applebrook, in Park Place Estates Subdivision, stated there were a number of members there that wished to speak with regard to the drains, snowplowing and other issues.

Mayor Pro Tem Landry asked if he was speaking on his own behalf and not on behalf of the group.

Mr. Stone answered that he thought a lot of them were going to want to have their two cents as well when they got to the issue.

Mr. Stone stated that on January 13th, he received an email from Ray Cousineau of the developer, Park Place Associates, which was really an agent for South Hill Construction and Bob Harris, requesting that he sign a Park Place storm drainage maintenance agreement; he was also told in that email that the City would not plow their streets, that it essentially was going to hold snowplowing of their subdivision hostage until they signed the agreement.

Mr. Stone stated that they met with legal counsel and with members of the City; they agreed that, among other things, snow removal was not just a matter of convenience, it was a matter of public safety. He said that in the past, the owner of the road, Mr. Harris, had been responsible for maintaining the streets, and for some reason he thought he was no longer responsible. Mr. Stone stated that essentially they believed the City should be addressing the issue with Mr. Harris to make sure that he continued to comply with removal of the snow from the streets that he still owned.

Mr. Stone stated that he received a bill from the City for plowing snow the last time it snowed; he didnít know how that came to be. He stated that it was kind of unusual to charge private residents for plowing their streets; he was sure Council members didnít get a bill for their streets being plowed. He stated that the bill should certainly go to Mr. Harris, not to the owners in there.

Mr. Stone stated that, in general, the residents were pretty dissatisfied with the performance of Mr. Harris with regard to the streets, capping the streets way before they were done and not doing a particularly good job; there were already sinks through the caps. He stated they were not happy with the drainage; he said they had floods in a number of peopleís backyards when it rained heavily, and the landscaping wasnít exactly beautiful, either, so they were pretty dissatisfied with the developer.

Mr. Stone stated that the City seemed to be willing to accept the streets and the drains from the developer, and was unwilling to stand behind any of the drains that were not under the streets, so the drains that connected the streets to the storm water retention basins apparently got passed to them. He said they understood that because the storm water retention basins were, in fact, on private park lake, those were theirs; that was part of the way the sub was set up. It looked like they were stuck with that.

Mr. Stone stated that they were disappointed that the City was not willing to stand behind the actual drainage and piping system. He said, given the fact that they were very expensive houses and they paid a lot of long green for taxes, they expected better service.

Finally, Mr. Stone stated that his term as President expired on the 27th; he said they had a previously scheduled annual meeting where they would elect new officers, so they didnít feel it was appropriate for the current officers to be signing any agreement when they were essentially lame ducks.

Mr. Stone stated that ultimately what disappointed them most was that they were being held hostage and being bullied by the City Council to sign an agreement on short notice, yet there could be significant ramifications for that. Additionally, he said the same Council was not holding the developer to their end of the bargain and causing the developer to deliver the streets in good condition and maintain the streets. He said there was essentially a lack of courage to go after the developer but quite happy to beat up on the homeowners.

Mr. Stone stated that until they got a new board of directors, they were unable to sign off on that, but they also expected to be treated like everybody else and get their streets plowed as well.

Mary Jo Bertolino of 22257 Hillside Drive stated that her big concern about that was the liability. She said four years ago, she fell and broke her leg, basically due to improper snow removal. She said it was in Lake Placid, New York; they were well used to clearing snow and they still did a very bad job. She said she had a major lawsuit against them. She stated that liability would come down on the City of Novi and with Bob Harris, if something like happened to them. She said there were many children in the neighborhood; if a child happened to be playing on their property and somebody lost control of their car and hit that person that was on their property, that would come down to liability with Novi.

Mr. Bertolino stated that she happened to live at an intersection of Sunday Drive and Hillside Court; when she had snowblown the driveway, she also had to snowblow that intersection, because all of the snow got pushed into her driveway and she ended up not being able to get out. She thought if the snow plowing was done properly, she wouldnít have the problem of having to blow the road, too.

Doug Nietsche of Park Place Subdivision stated that, first of all, the City did plow the streets in the last event very nicely, so thank you for that. He said they took exception to having to pay, but he realized the City was kind of caught in a Catch-22 here. He said in one respect, the homeowners association asked for a higher level of standard, while the City Engineer had approved it, the homeowners association had not; that was kind of a little glitch in the system.

Mr. Nietsche respectfully requested that the linkage between all of that and snow removal somehow be removed, because it was a safety issue. He said it was a real controversial thing, too; it was really bad PR for the City. He stated that he had great respect for all of Council, but there were a lot of bad vibes amongst the residents in Park Place, just about snow removal. He thought some creative way to get that little thing solved in the interim would be a wonderful thing; that would be his request.

CONSENT AGENDA (Approval/Removals)

Member Lorenzo removed Item E, Approval of payment to Goretski Construction Company, and Item H, Approval of Final Pay Estimate 3 and Final Change Order 1.

CM-05-01-016 Moved by Capello, seconded by Lorenzo; CARRIED UNANIMOUSLY: To approve the consent agenda as amended.

Roll Call Vote on CM-05-01-016 Yeas: Landry, Capello, Gatt, Lorenzo, Nagy, Paul

Nays: None

Absent: Csordas

CONSENT AGENDA: (Background information for Consent Agenda items is available for review at the City Clerkís Office)

A. Approve Minutes of:

1. January 10, 2005 Ė Regular meeting

B. Approval of Resolution to opt to administer elections for Novi, Northville, South Lyon and Walled Lake School Districts and Schoolcraft and Oakland Community Colleges.

C. Approval of Resolution 1 for Special Assessment District 173 Ė Connemara Drive and Galway Drive Water Main Extension authorizing the preparation of plans, specifications and cost estimates.

D. Approval of resolution to authorize the purchase of additional service credit by City employee.

F. Approval of a License Agreement for installation of a private sanitary sewer forcemain benefiting Roberto and Michelle Martinez (25000 Glenda St) within an existing City sanitary sewer easement located on parcel 22- 22-176-032.

G. Approval to award quotation for printing of the Master Plan for Land Use document to Johnsonís Printing Services, the low quotation, in the amount of $4,985.72.

I. Approval of Claims and Accounts Ė Warrant No. 689

MATTERS FOR COUNCIL ACTION Ė Part I

1. Consideration of request to transfer ownership of 2004 12 months Resort Class C licensed business located at 31260 Wakefield, from Maples Country Club, Inc. to Maples Group, Inc.

Mark Snitchler on behalf of the applicant, Maples Group, Inc., stated that a package had been prepared and submitted to Council; he was there merely to answer any questions regarding the application.

CM-05-01-017 Moved by Capello, seconded by Lorenzo; CARRIED UNANIMOUSLY: To approve request to transfer ownership of 2004 12 months Resort Class C licensed business located at 31260 Wakefield, from Maples Country Club, Inc. to Maples Group, Inc.

Roll Call Vote on CM-05-01-017 Yeas: Capello, Gatt, Lorenzo,

Nagy, Paul, Landry Nays: None

Absent: Csordas

2. Consideration of request from G.F.G. Foods, Inc. for a City quota Class C license to be located at Honey Tree Restaurant, 41602 W. Ten Mile, in the Meadowbrook Ten Shopping Center.

Member Capello stated that about a year and a half ago, he represented a limited liability company that was developing a piece of property in Northville and two of the shareholders of G.F.G. Foods, Pete and Tom Goulas, were minority members of that company. He said it wouldnít affect the way he voted, but he wanted to make that disclosure.

Mayor Pro Tem Landry stated that two or three years ago, he represented The Honey Tree Restaurant in their negotiations with the landlord on the lease; it was the only time he represented them. He said if anyone had a problem, he would be happy to recuse himself.

Michael Goulas spoke on behalf of his father, Thomas Goulas, and his cousin, Pete Goulas, the owners of The Honey Tree; the Novi location. He stated that they had been in Novi for 14 years; during the past few years, their dinners had been lacking because of increased competition in the area. He said the only way they could keep up with the increased competition was by offering an expanded menu of more authentic Greek food, which should include wine and liquor.

Mr. Goulas stated that they had also been looking for a freestanding building in Novi, but it had turned out to be very difficult to find; in the meantime, they planned on upgrading the current location. He said that would include two things: remodeling and upgrading the dinner menu to include more authentic Greek food; it would be beneficial for them to have the liquor license to remain competitive in the area. He said the breakfast and lunch menu would be left basically the same.

DISCUSSION

Member Gatt stated that he had been going to the restaurant since the present owners took over, actually many years before that, and he found it to be a very unique and very homey place; in fact, he had dinner there tonight. He stated he would support the motion because of its uniqueness; it was the only restaurant he knew of in Novi where you could have a home cooked family-like meal at a very reasonable price. He said if they wanted to offer wine and liquor with it, he thought it would be a move that was necessary at this time to stay competitive with the other restaurants in the area.

Member Nagy stated that she had a difficult time approving their liquor license transfer, because in the very same building a few doors down from them, Council turned down The Happy Sushi. She felt it was really unfair to turn them down when they came before Council, and then turn around and give The Honey Tree the license. She said there was another restaurant at Grand River and Haggerty called Greek Isles; they had Greek food as well. She said the problem she had was twofold: 1) It was the Cityís last Class C liquor license, and with all due respect, she understood they wanted to remodel and 2) she had a problem to saying no to Happy Sushi and yes to The Honey Tree, because it was important to their business as well.

Member Paul agreed with the previous speaker; she had been to their restaurant and it was very good and she enjoyed it very much, but the City had one liquor license left and several restaurants had applied for it. She could not say their establishment was unique; she couldnít give a liquor license for a very nominal fee when it was the last one. She said The Honey Tree was based more on food, where there were different establishments that only had a facility where they served alcohol; therefore, they would not be able to be in business. She said in the uniqueness criteria, that was the main reason why she couldnít support it. She said Council had turned down several restaurants for the same reason that they were establishments not based necessarily on only liquor; yours was based mainly on food. She said she would keep going to The Honey Tree; she didnít think their establishment actually needed alcohol to make her want to go there, that was why she enjoyed going.

Member Capello stated that he had a problem with the rationale that because Council turned the Japanese restaurant, Happy Sushi, down in the same shopping center that Council should turn down The Honey Tree. He saw them as completely different situations; Happy Sushi was a brand-new business that came into the City of Novi and did not have a track record. He said they had not been here for 14 years, and there had been four or five at least Japanese restaurants in the City. He didnít see where that was a comparison; he would compare The Honey Tree to Moeís. The City gave Moe a liquor license a few years ago; he did some fabulous improvements, increased his dinner menu, and he was doing well there. He said it was a restaurant that was really needed in Novi; that was more the comparison he would make. He did feel that he would like to see a Greek restaurant with a little more upscale dinner menu; their breakfast and lunches were wonderful, and he did think they needed beer and wine to be able to upgrade the dinner menu.

Member Lorenzo agreed with previous previous speakers; she appreciated The Honey Treeís longevity in the community but it was a double-edged sword because that was one of the reasons that she couldnít support giving it a liquor license. She saw the last liquor license as a valuable commodity as an incentive to encourage or entice a business that wasnít here yet to locate. For that reason, and also it didnít appear to her that the business had needed liquor license to be successful here in Novi, given its good track record. Actually, on the one side, that was a good thing; also, she didnít really see the restaurant as a unique entity, given the other restaurants that others had put forth tonight as being similar. For those reasons, she couldnít support giving them the last City liquor license; however, if they had a liquor license to transfer from another facility, she would be more than happy to support that.

Mayor Pro Tem Landry stated that the issue was an issue of a quota license; it was not an issue of whether the applicant could transfer or was worthy or capable of handling a liquor license; that was the issue when someone was transferring. The issue here was whether the City, which had a number of quota liquor licenses, would give the applicant a license; the City had one left. He said the first thing he analyzed, because those issues in his experience were very personal, depending on a particular Council memberís viewpoint of what to do with a quota liquor license.

Mayor Pro Tem Landry said the first thing he looked at wasThe Honey Tree restaurant was well known and they had been there a long time; they were not going anywhere. He said when Council gave out quota liquor license, they had a bad experience where Council had given it to somebody who hadnít been in the community and they ran off with it; they could turn around and sell. He said it was a very valuable commodity; when the City had one, it wanted them to stay here.

Mayor Pro Tem Landry stated that the Police Department had investigated The Honey Tree owners and had concluded that there was no reason to deny it a liquor license; so Council knew that they could handle the liquor license. He said they owned several other establishments with liquor licenses; there had been no violations as far as the record that he had seen, so they were certainly capable of handling alcohol. He said with those two things considered, it now became a discretionary matter according to how individual Council members thought quota liquor licenses should be handled. He said personally, his view as he had indicated many times in the past, was to reward businesses who had been in the City; he would much prefer the City taking something it had, an asset, and rewarding someone who had been here, paid taxes, employed our people, served its residents, served its other businesses, rather than to take a chance on someone who came in. He said the people who had been here had delivered.

Mayor Pro Tem Landry stated that the rationale put forth by The Honey Tree that they wanted to stay competitive, that the businesses around them had obtained liquor licenses, so it was hard to keep customers. He said that sounded like a good rationale to him; it was like the book, Who Moved My Cheese, if you didnít adapt, you stagnated. He much preferred to see businesses in the community adapt, change and stay in business, so he could support giving the last quota liquor license to The Honey Tree. He said there had been no motion on the table.

CM-05-01-018 Moved by Gatt; seconded by Capello; MOTION FAILED: To table Consideration of request from G.F.G. Foods, Inc. for a City quota Class C license to be located at Honey Tree Restaurant, 41602 W. Ten Mile, in the Meadowbrook Ten Shopping Center until a full Council could vote on it.

Mr. Schultz wanted to remind Council that for the motion-maker that listening to conversation, weíre talking about the standards, Section 3-14g of the Alcoholic Beverages Ordinance; the three that seemed to be the focus of discussion were Section 11, which dealt with establishing the public need for the license; 12, which dealt with the uniqueness, and the catchall was 20, other considerations of relevance. He wanted to remind the Council that whatever the motion was, it was in the context of the overall standards for review.

Member Nagy wanted to preface that her reason for not wanting to approve this was because she did not believe it was a unique situation and she didnít believe that longevity was one of the questions that was on the application that they must meet the criteria, and as much as she appreciated them and their business for the number of years here, she thought the previous speaker made a very good point which was that they had been in business and that they did well. She stated that she would support a transfer of a license.

Member Lorenzo stated that the only other one she was looking at in terms of the standards was number 8, the effect of the issuance upon the economic development of the area. Again, she said they were already existing, so theyíre not coming to Novi in terms of bringing any additional business to Novi; that was why she looked at that as well.

Roll Call Vote on CM-05-01-018 Yeas: Gatt, Landry, Capello

Nays: Lorenzo, Nagy, Paul

Absent: Csordas

CM-05-01-019 Moved by Lorenzo, seconded by Nagy; MOTION FAILED: To deny request from G.F.G. Foods, Inc. for a City quota Class C license to be located at Honey Tree Restaurant, 41602 W. Ten Mile, in the Meadowbrook Ten Shopping Center based on the criteria of the ordinance, Numbers 8, 11, 12 and 20.

Roll Call Vote on CM-05-01-019 Yeas: Lorenzo, Nagy, Paul

Nays: Landry, Capello, Gatt

Absent: Csordas

Mayor Pro Tem Landry asked Mr. Schultz for Councilís options at that point.

Mr. Schultz answered that the only one left was a motion to approve, in light of the fact that it was a motion to deny that failed. He thought that it would make sense for the record, and the next step, if there was one, that a motion to approve, if the Council was interested, would complete the issue. If no motion to approve was made, it would just be a denial for the reasons not really stated; those would sort of be the default reasoning. It was simply a denial at this point, because there was no approval.

Mayor Pro Tem Landry asked what happened if a motion to approve was deadlocked at three-three.

Mr. Schultz answered that the license was not authorized and it was treated as a denial. Although the motion to deny with the specific findings did not pass, the denial was what we would be defending in the next round.

Mayor Pro Tem Landry asked if the applicant could come back.

Mr. Schultz answered that there would need to be a reconsideration or an amendment to the license; the ordinance actually had a one-year period after a denial to resubmit.

CM-05-01-20 Moved by Lorenzo, seconded by Nagy; MOTION WITHDRAWN: To approve the request from G.F.G. Foods, Inc. for a City quota Class C license to be located at Honey Tree Restaurant, 41602 W. Ten Mile, in the Meadowbrook Ten Shopping Center based on the criteria of the ordinance, Numbers 8, 11, 12 and 20.

Mr. Schultz asked if the motion was by Member Lorenzo.

Mayor Pro Tem Landry answered yes, to approve.

Mr. Schultz stated that Member Lorenzo just made the earlier motion to deny. He answered that it was in the nature of a reconsideration; he just wanted to point that out.

Member Lorenzo stated that she would withdraw the motion.

CM-05-01-21 Moved by Paul, seconded by Capello; MOTION FAILED: To reconsider the request from G.F.G. Foods, Inc. for a City quota Class C license to be located at Honey Tree Restaurant, 41602 W. Ten Mile, in the Meadowbrook Ten Shopping Center based on the criteria of the ordinance, Numbers 8, 11, 12 and 20.

Mr. Schultz stated they would need some reasons; it was, again, in the nature of a motion for reconsideration, because Member Paul voted with the previous vote, and it was not a majority vote, so it was not a formal reconsideration. He said she could vote against her own motion, if she chose to do that.

Mayor Pro Tem Landry stated that a Councilperson who made a motion could vote against it.

Mr. Schultz stated that a Councilperson who made a motion could vote against that motion, if it was properly seconded, but that was in the nature of a reconsideration. He said typically a reconsideration dealt with the prevailing side; there was no prevailing side, except for the fact that the motion to deny deadlocked at three-three resulted in a denial, so it was in the nature of a motion for reconsideration. She would be permitted to vote for it, but it was a motion to reconsider.

Mr. Schultz stated there was a motion to deny that was deadlocked three to three, so it did not pass, so the approval of the license had not passed; the license had been denied. That motion by a member of the Council who voted in favor of that was in the nature of a reconsideration. It could be voted on as a motion to reconsider, but it was just the motion to reconsider.

Mayor Pro Tem Landry stated that if anyone other than Member Paul made the motion, it was not a motion to reconsider.

Mr. Schultz stated that was correct; it was a motion if one of the members who failed to convince the maker of the motion made a motion to approve, it was purely for the purpose of trying to create a record for review. He said at this point, the motion had been denied and there was no need for a motion to approve at all; that was why it was in the nature of reconsideration.

Member Paul asked in the motion to approve to reconsider, Mr. Schultz stated that Council would have to do that to extend that for a one-year review; that was her understanding.

Mr. Schultz stated that it was not necessary to do a motion to approve; there had been a motion on the table to deny, and while it didnít pass, if there was no motion to approve, the item was resolved and someone from that prevailing side would need to bring it up for reconsideration. He said if that didnít happen, they come back in a year.

Member Paul asked if Council did not have the motion to approve, if it failed or was approved, one way or the other, they could not bring it back for a year.

Mr. Schultz stated, under the ordinance, once a license had been denied, they could not come back for a year. He said the motion that had already passed was essentially a denial; a motion to approve, based on that vote, was not going to pass, so the motion was resolved.

Member Nagy asked what Mr. Schultz said was because there was a denial at this point, and at this point they would have to come back in a year, as to what happened at the table this evening.

Mr. Schultz stated that it was a three-three deadlock, at this point if there was no motion to approve that passed, it was denied. He said the application for the license did not go any further, and under the ordinance no new application could come for a year. He said if one of the members who voted against the motion to deny wanted to make a motion to approve, then they would be permitted to do it. He said if one of the three who voted for the motion to deny, since in a sense it was a prevailing motion, it would be a reconsideration, which was not, he thought, what was intended.

Member Nagy stated that right now as it stood, if there were no further motions, it was denied, and they would have the ability to come back in a year.

Mr. Schultz answered yes, except there was a motion on the floor at this point that had been made and seconded by Member Paul, which he thought had to be treated as a reconsideration, unless the maker of the motion wanted to withdraw based on the comments.

Mayor Pro Tem Landry stated there was a motion on the floor and a second. Council had heard from the Parliamentarian; did the maker of the motion wish to withdraw the motion.

Member Paul stated she would withdraw the motion.

Mayor Pro Tem Landry asked, before Council passed the issue, were there any other motions or discussions on the matter.

Member Capello had a point of order: Once a motion was seconded, the maker couldnít withdraw it unless the seconder approved.

Mr. Schultz answered that was correct, the seconder had to approve it.

Member Capello stated that the motion should still be on the floor because he would not accept the withdrawal. Second of all, he understood the logic that if it was a tie vote, the item on the agenda did not pass, therefore, it was just an actual denial because it didnít pass. He said as long as it was still on the table and still under discussion, he didnít agree with Mr. Schultzí analysis that because there was a tie vote, at the time of the tie vote it was denied. He said normally, you continued to vote, and there may be one tie vote, two tie votes, just like the ZBA did, but at the very end of the day, if it was not going anywhere, then it was a denial, and then the motion for reconsideration came up at the next meeting, not at the same meeting when it was under discussion.

Member Capello stated it wasnít made as a motion for reconsideration; he didnít consider Member Paulís motion a motion for reconsideration. He looked at it as a motion to approve.

Mr. Schultz stated that the way it typically occurred at the ZBA or at the Planning Commission, if there was a tie vote, the motion simply failed. He said there might be attempts at further motions, usually by someone making a different motion than what was on the floor or by the other side that didnít prevail making a motion to attempt to resolve the issue. He said here there was a three-three motion; the only reason to have someone on the other side make an effort at a motion to approve was to maybe fill out the record, but that was not necessary here where there was a denial with reasons that would go on to the reviewing entity. He said in the normal course of failure to take approval or even an affirmative denial was essentially treated as the denial and something needed to change in order for a case to get back on the ZBA agenda, for example, or the Planning Commission agenda. He stated that here the only difference was that the ordinance specifically said, unlike zoning ordinance, if there was a denial, it couldnít come on for another year. He said that was the difference.

Member Capello stated that his point still was that as long as Council was still discussing it, people had the ability and the right to change their mind until Council went to the next item on the agenda, there was no denial. He said right now there was on the floor a motion to approve, as far as he saw it.

Mayor Pro Tem Landry stated that was correct. He asked if that was correct because the seconder did not withdraw, that the motion to reconsider, as he pointed out, was still on the table.

Mr. Schultz answered that there was a motion on the table because the seconder did not agree with the withdrawal.

Member Lorenzo asked, for clarification, for legal purposes, was it a motion to reconsider, and then if that passed, then there could be a motion to approve.

Mr. Schultz stated that he would call it a motion to reconsider.

Member Lorenzo stated that if it failed, it just went away.

Mr. Schultz stated that he believed the item would be done until another motion was made.

Member Capello stated that the motion was to approve, not to reconsider. He said you couldnít have a motion to reconsider until there was a final decision on an issue; there had not been a final decision on the issue tonight because Council was still dealing with it. He said no motion was made to reconsider the tie vote; it was a motion to approve. He stated it was very important how Council was looking at the motion.

Mr. Schultz stated that he understood the comment; the analysis that he would make of it was because Member Paul was on the side that the motion was made that was deadlocked and resulted in essentially a denial, she had made what constituted a motion for reconsideration.

Member Capello stated that Mr. Schultzí conclusion that there was a denial was what he disagreed with, because there had not been a denial yet because Council was still discussing it. He said if anything, the motion didnít pass, so the motion to deny was denied; because it wasnít approved, so it was denied.

Mr. Schultz stated that he understood; all he could say was that in terms of applying the rules of motion-making, the failure of that motion in the absence of some other motion was a denial. If the motion maker voted to deny with the first motion, from his perspective, that was a motion to change the vote and to reconsider the earlier three-three deadlock vote.

Member Capello stated that Mr. Schultz just said exactly what he was thinking; in absence of another motion, the tie vote would be a denial. Another motion was on the floor right now to approve; if that was passed, the tie vote would not act as a denial. He said that was why he didnít see how he was considering that a reconsideration of the denial. He said another motion was put on the floor, there was nothing to prevent somebody that voted one way in a tie vote to change their mind and vote another way when the issue was still on the floor.

Mr. Schultz stated that maybe the easiest way to resolve the issue was simply to ask Member Paul if she wanted her motion to approve to be recorded as a motion to reconsider her earlier decision. He said if her answer to that was yes, then the issue was resolved without having to debate it any further.

Member Paul stated that her motion for reconsidering the approval, she was allowed to vote against, correct.

Mr. Schultz answered that was correct; she was permitted to vote against it.

Member Paul stated that initially his first comment was that Council needed to have someone reconsider this on the prevailing side who did not make the motion to end the discussion. She stated that was really what she was trying to accomplish. She said her vote was not going to change, but she was trying to resolve it legally so Council could get the matter closed.

Mayor Pro Tem Landry stated that he believed the Parliamentarianís question was, was her motion a motion to approve or a motion for reconsideration. He believed the record would show that she articulated a motion to approve; he said she did not say a motion to reconsider, but the Parliamentarian was in all fairness asking you, did you really mean a motion to reconsider.

Mr. Schultz answered that was correct.

Member Paul asked if she had a motion to reconsider, was that then going to put the motion to approve as another motion; she asked if she could vote against the motion to reconsider.

Mr. Schultz answered that she could vote against the motion to reconsider; if the motion to reconsider failed or was tied, then there was no requirement for any motion afterwards. He said that anyone on the Council would be free to make another motion. He said it did not guarantee that there would be a motion to approve.

Mayor Pro Tem Landry asked, in all fairness, what the nature of Member Paulís motion was.

Member Paul stated that it was basically to reconsider.

Mayor Pro Tem Landry answered that was what he thought everybody understood; there was a motion on the table to reconsider, there was a second on the motion. He asked if there was any further discussion on that motion.

Member Capello stated that he seconded a motion to approve; he thought that was the motion that was on the table. He asked, in the motion to approve, the person making the motion could not vote against his motion, correct?

Mr. Schultz answered that the maker of the motion could vote against his or her own motion in any motion.

Member Capello stated that he thought if a Member made the motion that Member could not vote against it; the seconder could vote against it.

Mr. Schultz answered that the maker of the motion could vote against it.

Roll Call Vote on CM-05-01-021 Yeas: Landry, Capello, Gatt

Nays: Nagy, Paul, Lorenzo

Absent: Csordas

Mayor Pro Tem Landry asked if there were any further motions or discussion on that matter. He said unfortunately, The Honey Tree did not get a quota liquor license tonight.

3. Consideration of Acceptance of Park Place Estates Streets and Sanitary Sewer adoption of Act 51 New Street Resolution accepting Applebrook Drive, Berwick Court, Boardwalk Avenue, Hillside Court, Hillside Drive, Park Place Court, Park Place Drive, Roberts Drive, Sunday Drive and Waterland Drive as public and approval of the Storm Drainage Maintenance Agreement.

Mr. Helwig stated that Administration had provided as much information as it could to bring forward in accordance with City Councilís wishes this matter on January 24th; there had been meetings held with representatives of the developer and with representatives of the neighborhood association. Administration was bringing it forward for consideration, which meant there was not an Administrative recommendation.

Mr. Helwig stated that Administration saw it as totally a policy decision by the City Council; Mr. Pearson was prepared to go into a great deal of detail. He said suffice it to say, with the policy that was in place for the acceptance of streets and utilities, Park Place Estates was in compliance when they applied for acceptance, because they had had active development for more than four years.

Mr. Helwig said the prior policy required 100 percent of active development of all of the lots; Administration had documented that, in fact, it was closer to 60 percent, so it was a judgment call; there were some unresolved matters which Administration had clarified and brought to Council attention, particularly in regard to the storm drainage maintenance agreement.

Mr. Helwig stated in terms of the importance of that matter, the acceptance of streets was about as forever as you got in urban life; it was not something taken lightly and there were obligations. He said, unfortunately, in that situation, and realize that he had seen many of those over three decades, he thought neither party had fulfilled its obligations in the spirit of street acceptance. He said it was very convenient, be it snow plowing or any other matter; it could be cracks in streets like City Council has had to deal with to the tune of $1.3-million special contract this summer. He said there could be all types of liability situations that accrued, and the Administration took street acceptance very seriously. He said they were in this business to serve, so the desire of the Public Works personnel, staff, himself, was to help people who needed help, but there were all kinds of ramifications to that and the insinuation that anyone in that organization had been bullying, he took great exception to. He thought it ran afoul of trying to resolve that in fair play, so Administration had provided all the information it could and asked City Council to make whatever call it felt was in the best interests of the community and public interest.

DISCUSSION

Member Paul asked if there was a person who had recused himself on the matter before because he represented them in the past and it was on record, could that person vote on it tonight.

Mr. Schultz answered that he was not familiar with exactly the facts that Member Paul was talking about, but the general rule for conflict of interest was that a current representation, meaning a current financial relationship, or the inability on the part of the person to fairly and objectively determine the issue before it. He stated those would be the guidelines that would govern the current issue or the inability to be fair.

Member Paul stated that January 26, 2004, and June 2, 2003, were two times when a member recused himself and was now permitted to vote on the subject.

Mr. Schultz answered that he was not certain, the way Member Paul asked the question, which issue was involved; he understood that there was before Council previously acceptance of offsite utilities, which was a different issue than what was before Council now. He needed to know more facts before he gave some kind of opinion. He said, again, it would be couched in terms of some kind of current financial relationship or some inability to render a fair decision.

Member Paul stated that she guessed that was up to the person who had recused himself in the past, but it was her understanding that once someone had been established with an organization and had been paid for services, they would either disclose that information or recuse themselves. She checked to see if there was some time that that happened, and in í04 and í03 that happened; she said she didnít go back any further.

With that, Member Paul said that it was a very difficult situation. She said they had residents that they all strived to take care of; they also had a situation where she saw the developer doing things a little bit differently than she would like to see happen.

Member Paul stated that Council knew that the development occurred previous to the Cityís financial guarantees but, with that being said, she kind of looked at that as a reference; they would accept the roads as a City Council once 90 percent or more of the homes had been completed. She stated that there were 99 units in the development; 60 homes were built. Therefore, a top coat was applied in May of 2004; the City had only $6,000 left for the streets and utilities, and her concern was that there were some letters there saying that the top coat was not done very well.

Member Paul stated that she didnít have a PASER evaluation to say what the base looked like; therefore, she was very concerned that the City would have problems with the roads. She said several residents who came forward tonight stated there were some sink holes; if that was the case, there might be some problems with the soil below it, which the City had had at Taft and other places. Therefore, she was very concerned that the City could have a real financial problem accepting those roads. She wanted to provide those people with their services for snow removal, because she understood the safety measures that were needed; she said that all of us waited for a very long time for their roads to get plowed. She stated that the City Manager addressed that with the wind blowing and the fine, powdered snow that we all had, plus the many inches.

Member Paul stated that it was also setting a precedence accepting roads with a top coat way before there was 90 percent of the buildings being done; there would be cement trucks, tractors and trailers that would go down the roads and it would cause more damage. She said without that being completed, you could see the situation Council was in; the last thing she wanted to do was to not give them snow removal. She said it was intended for public roads, and if it was intended for that use, she would like to provide that service. With that being said, the City had done some snow removal for them to try to help ease that burden, and what Council proposed was to do that at a small fee. She stated if they had paid for that service separate form the City doing it, it was usually quite a bit more. She said she had neighbors that paid $30 and $35 just for their driveway to be done.

Member Paul stated that she was trying to weigh what the best scenario was; City snow removal was only a portion of that; there was also storm water management and also drainage that were issues in peopleís backyards. There was some information given to Council by staff, but there was not a PASER evaluation there, and the precedent the City was setting was, to her, very much a concern. She agreed with Mr. Helwig that Council was not to take it lightly, but it was 2.204 miles of roadway that Council would have to accept, which didnít seem like a lot, but with all of the other roads that the City had, the DPW and Parks and Recreation Departments were small. She stated that everybody wanted to keep their taxes down, and Council kept adding more roadways before for Act 51, so she would not be able to support accepting those roads at this time.

Member Paul stated that she would like to see a PASER evaluation when someone only had 60 homes built and they put the second final lift of the asphalt prior to Councilís accepting them and really understanding what the base looked like, so for that matter, she would not be supporting it. She wanted to hear some discussion of what Council could do for the residents at this time. She felt for them; they were really caught in the middle, and it was very unfair.

Member Lorenzo stated that she had questions for either the Administration or Mr. Schultz. She asked in terms of the responsibilities, she wanted to know if it was Mr. Harris or the association.

Mr. Schultz asked if she was talking about snow plowing, general maintenance, all of the things that the City would have to do if the roads were accepted.

Member Lorenzo answered no; she was asking who owned the roads, who was the entity transferring them to the City, Mr. Harris as the developer/applicant or now the homeowners association.

Mr. Schultz answered that the entity proposing to transfer the property was the developer, not the homeowners association.

Member Lorenzo stated that they were still within his control at that point in time.

Mr. Schultz stated that he was the owner of the property; he was conveying the deeds and the bills of sale. He couldnít speak to his agreement with the homeowners association.

Member Lorenzo stated that she was not speaking to that; it would be a private issue, would it not.

Mr. Schultz answered that was how they had treated it at that point.

Member Lorenzo stated that her concern was several things; she agreed with the previous speaker. While she certainly sympathized with the residents, when Council was sitting up there, they were looking at the City as a whole, and while they might feel that they were being treated unfairly or uniquely different than other residents, if Council accepted their streets today, and they were already complaining that the streets were not up to par, then it became the taxpayersí as a whole of the City that became responsible to at some point go in and repave or maintain them in some fashion. She said that was why, while it was certainly not a good situation to be in for either party, Council had to look out for the entire good of the whole; she wanted them to understand where she and other members were coming from tonight.

Member Lorenzo stated that in terms of the homes, if there were only 60 homes built, that left 20-some homes left to be built; within that period of time, there would be all kinds of construction vehicles, including Michigan trains, those huge things that breaks up the streets. What was going to happen was that their streets would probably need to be repaired in less than the lifetime that they should have been. She said the taxpayers of the City as a whole could not be responsible for that. She stated that whether Mr. Harris would be responsible for that was perhaps the question. She understood that Administration had been discussing further issuance of a bond to cover those kinds of defects, costs that Mr. Harris at that point was not agreeable to extending the bond.

Mr. Helwig answered that that was a correct representation; one of the compromises, if you will given the unique nature of the developer selling off most of the lots to builders, was to, and realizing that everyone was forecasting that it would be several years to complete, but presumably would go beyond two years. Administration was hopeful that it could reach something that would significantly reduce the risk for the City, not eliminate it all, in the hopes of getting past the impasse and on with serving the residents and taking care of the streets, even though there were 39 more properties to be developed. He stated that Administration was not successful in that.

Member Lorenzo asked if Mr. Harris didnít have any obligation to continue here at that point in terms of those streets. She asked how under the new ordinance that worked; before they were under the situation where those were left out there forever and ever, and Council was waiting for them to come to the City for acceptance. She asked if anything changed; could the City obligate Mr. Harris in his pursuance of transferring the streets to the standards of putting forth the bond that was necessary to do so.

Mr. Schultz answered the City didnít have in place a specific ordinance provision that they could point to that said if he was going to do it with only 60 percent of the homes built, he had to post a double bond or extend the length of the bond; the City didnít have anything like that. Mr. Schultz stated that basically the Councilís option was the policy question that Mr. Helwig pointed out was Council ready to take them with the current bond that was required under the prior policy and the prior ordinance.

Member Lorenzo stated that was $6,000.

Mr. Schultz stated that the maintenance and guarantee bond was more than that, as shown in the documents, but it was a two-year maintenance bond, rather than the extended concept that they were talking about with Mr. Harris.

Member Lorenzo stated that the liability to the City was, if it continued to take more than two years, that bond was expired and that was the end of it; again, the taxpayers as a whole were left footing the bill for the deterioration of the streets.

Mr. Schultz stated that was the issue, a two-year bond, was the typical City bond that was required of other developers sufficient under those circumstances to guarantee Novi what it was used to getting in that kind of a development. He said that was the policy question before the Council.

Member Lorenzo stated in terms of the storm drainage, she asked if anyone from the City, engineers, go out to inspect the storm drainage, because what she read in Councilís letter was that the condition of the streets and the sanitary sewer met City requirements, but she wanted to know if the storm drainage met City requirements.

Mr. Pearson stated that the reference to the roads also referred to the storm sewer system within the road right-of-way, so that had been inspected in the same light, and just like the roads and sanitary, met the design criteria and the condition for consideration of acceptance. He stated that if he could draw a line between the basins, as he pointed out, that was private ownership that already was the homeowners association property and would continue to be, so the Administration wouldnít make the representation that the City had inspected that.

Member Lorenzo stated that the homeowners were contending that there was flooding in their yards; she asked if that had anything to do with the acceptance.

Mr. Pearson answered the yards, no; they were not accepting anything. He said what the City was being asked to accept was the physical improvements within the proposed road right-of-way, so that would not apply to anything that was done offsite in essence between houses, backyards, that was not applicable.

Member Lorenzo asked if there was edge drain installed under those streets.

Mr. Pearson answered that he would have to double-check.

Member Lorenzo stated that was a very important issue here.

Mr. Pearson stated that he understood; he just didnít want to misspeak.

Rob Hayes, City Engineer, answered that he didnít know definitively whether the City required edge drains at that time.

Member Lorenzo stated that obviously now the City did; also what the soil conditions were and also whether or not, she understood that was asphalt. She stated that they had addressed concrete, the underlayment of the streets; she wanted to know if the City had addressed asphalt; were the same issues inherent of asphalt that the City had with the concrete, where if the base wasnít appropriate that they started crumbling before their lifespan.

Mr. Hayes stated that the City had addressed the underlying soil conditions beneath regardless of the pavement type.

Member Lorenzo stated that was also current. The question was at the time the subdivision was built, under which conditions were they built with that surface.

Mr. Hayes stated that he did not know.

Member Lorenzo stated that was obviously another issue, because without knowing that, she didnít want to have the roads accepted and find out the life of the road should be 15 years and it was 6 years because of the soil conditions and no edge drains. She said the situation was very complicated. She stated that she would not be able to support it this evening. She stated that the City went through a neighborhood road program every year, and it hoped that the concrete and/or the asphalt lasted a certain amount of time so that everybody came into the rotation as it should, but what she saw potentially happening here, if and when the roads were accepted, if there was no edge drain and if, depending on what the subsurface soils were and what type of material was underneath the asphalt, there was a possibility that those roads could start deteriorating beforehand and then Park Place residents would come to the City and ask when their streets were in the neighborhood road program.

Member Lorenzo stated that what she had to say to Mr. Harris was before Council could accept the streets, the City had to have enough bond money. First of all, Council needed to know if there was edge drain; it had to know what the soils were and what the aggregate or material was underneath, and it had to know what the realistic lifespan of those roads was going to be, not only now but as the construction continued to take place and in the future; was Council going to have them live up to what asphalt should be under good conditions.

Member Lorenzo stated that once Council had that information, if Mr. Harris was willing to put that in the form of a bond and whether it was Mr. Harris or the homeowners association give Council the storm drainage agreement, then she would be in a position to accept those streets, but unless and until that happened, she couldnít possibly put the taxpayers at large at a liability.

Member Capello stated that he could see the problem continuing on for several years; Council needed to differentiate acceptance of the streets from acceptance of the sanitary sewer and storm sewer. He said he didnít think there was any reason not to at least accept the sanitary sewer and storm sewer tonight, because he had not heard anybody pose a question as to whether or not they were operating properly.

Member Capello stated that in regard to the streets, he could see all of it falling back on the residentsí lap in a couple of years. He stated that the City had $6,000 of a bond being held for the streets and the utilities. He stated that maintenance bonds had been posted, but they were only posted if Council accepted the streets, so if Council didnít accept those streets, he believed the City would have to release and return those maintenance bonds because Council wasnít accepting the streets. That left the City with the $6,000. He said the developer had sold all but maybe three lots; the homeowner association had taken over control of the association, so Council would have another Haverhill on its hands, the construction would continue and, of course, during construction the roads would get beaten up a little bit. He stated that the homeowners were going to have to come back to Council in a couple of years and say accept the streets, then they would have to post money to bring the streets up to standard and post the maintenance and guarantee bonds that were required for the two years that were required, as not the developer but the owners of the streets. He stated that all of that would fall on their laps.

Member Capello said the other alternative was to accept the streets as they were, take the two-year maintenance bond and try to work over the next two years with the limits of the maintenance bond, and he knew there were limits to it, and it was for faults of the road, construction of the road and not necessarily from a damage done by the contractors. He said at least the City had some type of a bond in place to assist it to repair the roads and do the best it could after two years. He said otherwise, it was all going to fall onto the residents. He said the residents were paying a lot in taxes to the City, and he thought Council needed to help them out here.

CM-05-01-022 Moved by Capello, seconded by Gatt; MOTION CARRIED: To accept the sanitary and storm sewer only for Park Place Estates.

Member Nagy asked Mr. Hayes if he had inspected or looked over everything with regard to the sanitary sewers at the present time.

Mr. Hayes answered yes, the Cityís engineering consultant had done a detailed inspection, as had the Cityís existing engineering division staff.

Member Nagy asked if all of the requirements had been met.

Mr. Hayes answered yes.

Member Nagy stated that there was a section that discussed that and said if the City Council elected to accept the sanitary sewer, it could make the action conditional upon the associationís execution of the Storm Water Maintenance Agreement and asked Mr. Schultz what that entailed exactly.

Mr. Schultz answered that in light of the comments of the residents and some of the information that counsel had gotten, and Mr. Stone commented that the homeowners association had not determined to accept the Storm Drainage Maintenance Agreement; they had determined that they were not going to put a current signature on that document.

Mr. Schultz stated he wanted to explain a little bit what that document was and give Council its options. He said that document was prepared by his office really recently in light of the relatively recent Storm Water Ordinance that was adopted a couple years ago. He stated that development obviously was in place, and Council had adopted a policy that said the new storm Water Ordinance would apply, essentially going forward, with some exceptions for sites that werenít too far along. He stated this one obviously was pretty far along. Doing the due diligence, Beth Kudla of his office, circulated that document which was really intended to put everybody on notice as to what their obligations were. He said it related only out of the right-of-way; it related only to the private storm water retention facilities that were owned by the homeowners association.

Mr. Schultz said if it were a development coming in today under the Cityís new ordinance, it would go right in the Master Deed and it would be clear to everybody that it was a private maintenance obligation for the homeowners, and if they didnít maintain it, the City would step in and do it and then bill them. He said it was really the agreement that was sent over to them; it probably came as a surprise or out of the ordinary because what they had was just a statement in their Master Deed documents or subdivision documents that acknowledged that the homeowners owned that and that they had the maintenance responsibilities. He said it didnít say what happened if they didnít maintain them. He thought it needed to be clear to the residents that they had the obligation to maintain those free of the Cityís involvement, and that if they didnít, if the agreement wasnít in place, maybe the City didnít have the ability to go onto the property since the City didnít have that agreement to go onto that property, but at the same time if they really werenít maintained, they begin to create a nuisance problem, what would likely happen would be that the City would have to institute some kind of nuisance proceedings.

Mr. Schultz stated that they viewed the document that they were reluctant to sign, which was a typical document and was signed, approved by Mr. Harris, and they thought from conversations with counsel for the association that it was more of a notice and really making it clear as to what would happen. He said if it was not signed, and they had actually modified it to make it a little less onerous, the normal document sent out under the new ordinance had a lien provision in it; they took that out of there because there was jumbled ownership, but if it was not signed, it was not the end of the world in terms of accepting the streets. He wanted to make clear that while they thought it was a good idea to sign it, if it was not signed, he would be reluctant to say to the Council that it ought to condition the streets or acceptance of anything in the right-of-way, what was going to be public property, on getting that document signed. He said if they didnít want to sign it, they thought it was a mistake and it was not going to be clear to association presidents from now what was going to happen. If they didnít want to sign it, they would live with what was on place and just monitor it as best they could.

Member Capello stated for point of clarification that the Storm Drainage Facility Maintenance Agreement didnít deal with the motion that was on the floor, which was the Sanitary and Storm Sewers, correct.

Mr. Schultz answered that he was correct on that.

Mr. Helwig, stated with all due respect, because Member Nagy asked a great question, he just wanted to dive in, since their office wrote that sentence and underlined it. He stated that the intent there was, not the motion that was going on now which strictly was sanitary and storm acceptance, if Council were to accept the streets tonight, that would be the last chance, the last leverage to get the other document, so that condition in his lay officeís opinion didnít relate to the motion Council was considering.

Mr. Schultz stated that he had one final comment in response to Member Nagyís point and that was that the documents were not set up to do that separately, which didnít mean it couldnít be done tonight, just that there would be another step. He said really, the way it was set up was to turn over the right-of-way and everything in the right-of-way, and everything in the right-of-way, storm drains and sanitary sewers and all that went with it, and the City got a bill of sale for that. He said if there was going to be a change from that, they would need another step, some additional documentation, but obviously if that was Councilís desire, theyíd find a way to figure it out.

Member Nagy stated that the reason she had hesitancy in supporting the motion was because the residents themselves said they would be having a change January 27th in terms of their board; she would rather table that, if you were going to separate the issue out, and let their new board come back.

Mayor Pro Tem Landry stated that the motion on the table was with respect to the sanitary and storm sewers, not the storm drainage retention facility, which was the subject of the maintenance agreement that they had so far said they wouldnít sign. He asked Mr. Schultz if he was correct.

Mr. Schultz stated that Mayor Pro Tem Landry was correct.

Mayor Pro Tem Landry stated that Member Nagy would be correct, in his opinion, were it the same issue; he would support that position. He understood it to be a different issue.

Member Nagy stated that she misunderstood the motion, then.

Mr. Helwig stated that in his humble opinion, he thought it would be most helpful to get the sanitary and storm sewer in the right-of-way accepted and behind us and move on; there was too much right now for everyone to digest. He said after they had their meeting and their leadership, to then move on to the storm water basin maintenance agreement which was private property, as Mr. Schultz commented, and then depending on where Council might want to go, on street acceptance or even some type of approach to snow plowing, those were going to be easier to get at and there would have been some credibility reestablished here through the discussion that Council was having right now.

Mayor Pro Tem Landry stated that the motion on the floor was to accept the sanitary and storm sewer system within the right-of-way, correct?

Member Paul asked Mr. Schultz when Council had Beck North Corporate Park, when Council accepted utility lines and the sanitary sewer lines and all of those items, it automatically made Council accept the plan and the lot and all of that. She asked if that in any way jeopardized Council if it accepted the sanitary sewers that were in the roadway and not accept the road and the right-of-way.

Mr. Schultz stated that was a good question and a fair point; he thought the answer started with acknowledging that 1) that they had been approved as public streets on all the development documents and the City had accepted some of the utilities already in connection with the development. He said it was contemplated that ultimately they will, assuming they meet ordinance requirements for their physical state, it was contemplated that they would be public, so in a way, yes, he supposed doing that would be one step further down the road that he thought Council was already obligated ultimately to go down. He stated that from his officeís perspective, the question wasnít whether the roads would be accepted as public but was it the right time to do it. He said in that sense, it was one step further; in light of that, he guessed the only point he would make about separating it out again, that the documentation was a little different. He stated that it had been presented by the property owner to the Council and to the City as a full dedication right-of-way and utilities. He thought it would be appropriate to ask the developer if, in fact, it was amenable to accept a partial acceptance.

Member Paul asked if Council accepted that portion, it was a very big financial portion off the developerís back. She asked what would help the City regain some of the financial wherewithal to have the bond money for the road repair that he was supposed to be doing, and heís not. She stated that he was asked to post bond money, and he said no. She stated if Council accepted part of that, she really felt like it was taking a very large burden off the developer, and he hadnít completed what the City asked him to do. She said she had full intention to accepting those roads when they were properly done and they were 90 percent built out. She said it was intended to be public; it was stated from the get-go that it was going to be public. She had been in the subdivision, and it was very attractive, but if Council accepted that portion, then what was the financial wherewithal that the City would have to mandate him on the roads.

Mr. Schultz answered that as he understood the motion on the floor, it was to not address the long-term maintenance and acceptance of the streets and to acceptance that only the storm facilities and sewer and everything in the right-of-way and what was intended to be public. He said the short answer was that it didnít specifically address at all the issue with regard to maintenance of the roadway. There was a separate bond posted for the utilities in the neighborhood of $80,000 that would deal with any maintenance or repairs. He couldnít speak, maybe engineering could speak, as to where exactly those utilities were in relation to the paved road surface. He stated that it was two separate issues; if Council accepted those now, we would have to change the way the documents were presented. He said it would be an easement to go in on the property to maintain those facilities, and it would be more like the City would do on a site condo where the roads were expected to be private but the City got an easement over the utilities. He said it would be a change to what was contemplated here, and it wouldnít relate to the roads.

Member Paul asked Mr. Cousineau, representing Robert Harris, the developer of Park Place, if Council accepted that portion that Member Capello had proposed, would he be able to post more bonds and provide snow removal to those residents.

Mr. Cousineau thanked Council for the opportunity; they were the petitioner in the request. He just wanted to offer points of clarity, at least from their perspective, which obviously would differ from the Cityís perspective, but not significantly. 1) The subdivision was designed and constructed with existing City policy and design standards at the time. He wanted to make that clear, because Member Paul had raised some excellent questions about groundwater conditions, edge drain; those were design-type issues that probably should have been addressed seven or eight years ago when the subdivision was originally designed. He said they were way beyond that now. He said the subdivision had existed now for probably four to five years in physical construction, so the design occurred prior to that. He said even though Member Paulís points were valid and the PASER evaluation of the existing pavement, but they were never part of the criteria that they designed, developed and constructed the subdivision under.

Member Paul stated that she asked a very pointed question, and was looking for some help. She stated if Council accepted that portion of their stormwater and their drains that Member Capello made a motion and it was seconded by Member Gatt, would he post money for the bond of those roads and provide snow removal for those residents.

Mr. Cousineau answered no, because they didnít feel that they were obligated to under the current policy.

Member Paul stated that she had a very hard time with that; she was willing to accept that portion if he was in favor of providing them snow removal. She stated that he had put Council in a worse situation, right back between the two of you; that was very unfair to those residents and very unfair to Council. She said he had asked Council to be a joint partner to help with the development; she was willing to accept a burden off his back, if he would help Council. She stated that she would not be in support of the motion because she didnít have any help from the developer here.

Mr. Cousineau stated that they were willing to comply with the City policies in effect at the time they developed and constructed the subdivision; he said if Council wanted to get them to do more, then that was not part of the deal. He said it was not a matter of being cooperative; it was a matter of did they do what they were supposed to do. He had heard from several people this evening, the residents included; everyone said no, they had not done as the developer what they were supposed to do. He said they took issue with that; they believed that they had. He said they had complied with City policy, and they were in compliance today.

Member Capello asked if the $6,000 current bond that the City was holding for street and utilities separate bonds for street and utilities, or was it a combined bond.

Mr. Pearson stated that it was combined; he said it was a completion financial guarantee, that was why the amount was so low because in their analysis the roads had been completed to that point in accordance with the design.

Member Capello stated that there was $6,000 for roads and utilities; if Council accepted the sanitary and storm today, he asked Mr. Cousineau if they would leave the $6,000 just for roads; technically, if it was a combined bond and not separate bonds, the City could keep it for roads anyway.

Mr. Cousineau stated that he couldnít answer that question; it was a question that Bob Harris would have to answer. He stated that they had two bonds posted right now with the City; one was for over $80,000, a two-year maintenance and guarantee bond for storm sewer and sanitary sewer. He said there was a second two-year maintenance and guarantee bond that currently existed with the City for over $90,000 for the streets only. He said that was in accordance with the Cityís current policy.

Member Capello stated that he thought the City could keep the $6,000; he didnít think Mr. Harris would have a problem with that to apply towards the roads and not try to take a portion of that for the utilities. He said Council could probably justify $6,000 for the roads, as it was; so Council would accept utilities and instead of having a $6,000 bond, now it had an $80,000 bond. He said the chances of the construction of residential home traffic hurting those utilities was pretty miniscule; if they did, it would be somewhat easy to figure out who backed over a sewer line or dug up a catch basin or anything of that sort. He said the City would be reducing one of its risks from having a very low bond to an $80,000 bond.

Member Capello stated he wasnít going back to the street issues right now because he wanted to focus on the sanitary and the storm. He stated that if Council didnít accept the sanitary and the utilities, the City had to release that bond. If the City didnít accept it, it couldnít require them to post the maintenance bond, which was a requirement of acceptance, correct?

Mr. Schultz answered that was correct; obviously, if there was no acceptance on that round and there was no contemplation that it would be soon on an agenda again, he thought the bonds would be released because they would be waiting for the next proposal. He stated that Mr. Cousineau sat down before answering the question of whether or not even separating out the utilities was even acceptable to them, as kind of a first phase of acceptance.

Member Capello stated that he just took that for granted. He asked Mr. Cousineau if that would be acceptable.

Mr. Cousineau answered that it was acceptable to them.

Mayor Pro Tem Landry stated that he wanted to remain very consistent in whatever position the City took in that matter. He stated the issue appeared to be whether or not the City on the one hand was prepared to accept certain improvements when there might be future obligations for repair because of damage; he was talking about the roads. He stated that was the issue; whether it was the roads or whether the City was in a position to accept something that it knew for sure it was just going to have to turn around and spend a lot of money to fix. He said that appeared to be the issue; with respect to sanitary and storm, that was not an issue.

Mayor Pro Tem Landry stated, as he saw it, to accept sanitary and storm improvements, there was no such risk. He could support accepting the sanitary and the storm sewer system because there did not appear to be a risk of putting the City at financial obligations for repairing something within the near future because it did not appear that the City would have to do that.

Member Lorenzo wanted to clarify Member Paulís question to Mr. Schultz; she thought what Member Paul was asking was whether holding onto the acceptance of the utilities sanitary gave the City any leverage with the developer for the posting of a bond. She thought she was really asking whether it made any sense to hold off from a leverage standpoint.

Mr. Schultz answered that he was uncomfortable talking about it in terms of leverage or not leverage; he thought Council had a policy determination because, while the utilities were in place and appeared to meet the ordinance requirements, the building improvements were not done. He understood Member Paulís question as did it harm the City going down the road or make it more likely that Council would have to accept the streets. His answer was that he thought Council was already obligated to accept the streets; this was just a stage of it. He said if Council declined to present sewer and water, that was the way it was presented as one set of documents, they would have to revise those. He said it didnít obligate Council any more than it was already obligated; it was not a leverage question. He said it was a question of were the streets ready.

Member Lorenzo stated that Mayor Pro Tem Landry seemed to think that it was not a liability question; she asked Mr. Schultz if it was not a liability question. She said that Member Capello gave some circumstances and there were several homes yet to be built; she had heard of instances when landscape companies went in and caused damage. If that happened, was the City covered.

Mr. Schultz answered that the City was covered in the normal course if the documents were revised to reflect that, as opposed to what was proposed. What was proposed was to turn over the streets and the right-of-way and essentially the City got a bill of sale for the sewer improvements and all of the other improvements in there, the paving and things like that. He said if Council was talking about separating them out, youíre talking about preparing easement documents which addressed things like liability in the normal course.

Member Lorenzo stated that would be the next step; if Council accepted it tonight, he would draft another document and have it airtight.

Mr. Schultz stated they would use their standard documents.

Member Lorenzo stated so there was no additional liability in case one of the other issues occurred.

Mr. Schultz stated that was how he understood the motion; they would then work on that documentation in the normal course.

Member Lorenzo stated that since there was no leverage issue and that Mr. Schultz would draft a separate document to make sure that the City didnít have any liability with regard to those issues, she would support that motion only.

 

 

Roll Call Vote on CM-05-01-022 Yeas: Landry, Capello, Gatt,

Lorenzo, Nagy

Nays: Paul

Absent: Csordas

Member Nagy wanted to make a comment; she said it was the most difficult situation that she had ever been in, whether it was the Planning Commission or as a Council person. She had never seen where the property was sold to individual builders and homeowners, so it was a little complicated; she didnít know how long some of the residents had lived here. She thought one of the obligations she felt she had as a Councilperson was to the City at large and the taxpayer at large. She stated that in 2000, the City had a road bond that was passed; it was predominantly for the residential roads, and now the road bond was expiring this year. She said one of the reasons she was hesitant to put the City in harmís way with regard to problems was because there were so many unknowns here, with regard to the roads, and because it was not built out yet. She said also the City was facing financial problems that every other city had, which was the bond was retiring and the City still had a lot of residential streets that had not been repaired and/or replaced. So, she thought the previous speaker when she said was saying, yes, you pay your taxes and yes, what would happen if two-three years down the road it wasnít built out and the roads were destroyed by trucks, so wholeheartedly felt for them and would like to protect your interests as well, but she had to protect the interests of the City at large.

Member Nagy stated that $500 seemed like an awful lot, considering you pay your taxes, but she lived in a condo and they paid an awful lot for snow removal; actually, for two miles, it was really not that much. She had never been in a position like that where there were so many unknowns; she wanted to do the right thing for everyone. She wanted them to know up front that she couldnít look at the roads to be approved the way it was right now.

CM-05-01-023 Moved by Lorenzo, seconded by Paul; CARRIED UNANIMOUSLY: To deny the acceptance of the Park Place Estates streets until such time as the City received financial guarantees that would protect the Cityís taxpayers from future obligations of having to repair the streets.

Mayor Pro Tem Landry had a question. He stated that Mr. Schultz made a curious comment earlier that the City did not have an ordinance on the books right now that would require a developer to post double financial guarantee if 90 percent of the homes werenít built. He asked if Council were to pass such an ordinance, he wanted to know if it would apply to that developer.

Mr. Schultz stated that he hesitated to give a definitive answer; he said it would be a nonzoning ordinance. He said it would be essentially a police powers ordinance, which did not have grandfathering, and theoretically it could apply to that property, but the question would be in reviewing the application of that ordinance to that property, was it reasonable. If the property owner were to challenge that, that would be the question; he thought that would be worth some debate on the part of Council in looking at that kind of an ordinance. He stated it would be a question they could certainly answer with a draft of an ordinance like that.

Mayor Pro Tem Landry asked if the developer currently owned the roads.

Mr. Schultz answered that the developer currently owned the roads.

Mayor Pro Tem Landry stated if the roads were in bad shape and someone were to get injured, they were not City roads; the City had no liability, correct.

Mr. Schultz stated that their position would be that if they were not City rights-of-way, that it wouldnít have the maintenance responsibility and it wouldnít have the duty.

Mayor Pro Tem Landry asked if someone were injured on the roads currently, the owner or the road, the developer, would theoretically be legally responsible as a result of the condition of the road.

Mr. Schultz stated that was their position.

Mayor Pro Tem Landry stated that his opinions were these; this was an emotionally charged issue. He understood the emotions from all sides; however, the fact that it was unusual that the developer had not finished all the houses, the developer had chosen to sell the lots, which was the developerís right to individual people who had chosen not to build the houses, unfortunately, there were homeowners who thought they were buying into a subdivision that was going to be developed like every subdivision. He said that didnít turn out to be the case.

Mayor Pro Tem Landry stated that the problem he had was that it was a dispute between the homeowners and the developer; he just couldnít see putting the City in the middle of that. He could see the City doing everything it could short of accepting increased liability on behalf of the City, so he was not prepared to accept the streets, knowing that they were just going to be torn up in the next couple of years and that the City was going to ultimately have the responsibility to rebuild the streets.

Mayor Pro Tem Landry said he would be willing to facilitate; he would be willing to pursue such an ordinance on behalf of the City if Council could put that before ordinance review; if Council could look at some of those issues; if the developer would be willing to come to the table and meet Council halfway and extend the guarantee, he could do that. He said that in and of itself it would be unusual; he would not hesitate to do that. If the developer would come forth and meet Council halfway and extend in some way the guarantee, he would be willing to accept some of the risk on behalf of the City, but he personally couldnít see putting the taxpayers at the risk for that unusual situation. He stated that yes they were caught in the middle; he was sorry. He would be willing to compromise, but he would not be willing to simply accept the entire responsibility, so he would support the motion.

Member Capello stated that the situation, even though Council spent a lot of time in its new performance guarantee ordinance and Mayor Pro Tem Landryís comments, had brought an idea to mind that perhaps wouldnít resolve the situation but could resolve the situation in the future. He said that the current ordinance, which he didnít think applied to Park Place, he didnít see an effective date and he didnít think applied to Park Place, but in regard to acceptance of the streets, it mandated that the developer, at the time that 90 percent of the building permits had been issued or within four years of issuance of the initial permit, had to put the final lift on and move forward for street approval. He thought Park Place was there; he thought Park Place started in the mid-2000ís. He said that in accordance with the new ordinance, they would have had to put the final lift on, and Council would have had to have accepted it in the condition that it was in. He wondered if Council could amend the ordinance. He said the City required performance guarantees when building permits were pulled for soil erosion, building permits on individual lots; he wondered if Council could require if the streets and utilities and rights-of-way had been accepted by the City, require the builder to post another form of bond at the rebuttable presumption in the ordinance that if there was damage to the streets or the utilities adjacent to the property that he was working on, that there was a rebuttable presumption that he caused it and he had to repair it. He said that would put the burden on the builder to follow up with his landscaper, his foundation guy, his basement wall guy to make sure that any damage that was caused, he would go back after them to repair it. He said it wouldnít help tonight, but it certainly could help the issue to get solved in the future, as long as they were talking about ordinance amendments.

Member Capello stated that, given that, he did understand the problem that Council had; on behalf of all the other residents, Council didnít want to be in a position where the City would have to repair brand new streets. He said he frankly didnít think they were going to have any problem with the actual construction of those streets, because he was sure Bob Harris constructed other roads in the City, he thought not very often did Council have to go back to him and have him repair things; when Council did, he thought he did it with open arms. He said what Council was looking at was outside damage caused by the new builders coming in; if Council didnít resolve it somehow in the next 90 days, he could see that Council would have a real large problem in the future.

Member Capello stated that when there was snow plow problems last winter, Council agreed to continue plowing the streets. He said last year, Council pretty much directed the developer to put the final lift on, because it was going to be resolved over the summer, the City would take the streets over the summer and be done with it, and here Council was and the final lift was not on; now weíre saying again that Council wouldnít accept the streets, even though Council indirectly directed them to put the final lift on. He didnít know if there was an answer or not; he would support the motion as far as it went tonight. He hoped Council would able to work through some other issues and address that in the near future.

Member Paul stated that, as a Council Member when they discussed the option, Council talked about the snow removal, and they only had one or two more snows that could possibly fall (it was the end of February); with that, Council decided to go ahead and finish the snow removal at that time, but that was going to be the final time that the City would provide snow removal to any streets that did not have Act 51 money accepted. That was her understanding. Also, Council said they were going to look at the subdivision to see where they were in the street acceptance. She, as a Council Member, did not direct that developer to put a final top coat of asphalt on, so that might be something that he thought, but she wanted to make it very clear to the residents that was not what she thought. She stated that Council recently had a financial guarantee committee to basically prevent that from happening, and they fell right in the middle, as well as many other subdivisions. She said there were several others. She wanted to explain to them that they were trying to prevent that from happening again where someone could go halfway with their development and then dissolve their limited liability corporation, and Council had no where to go because they were gone.

Member Paul stated that Council had decided to take more financial guarantee money up front; that had helped Council; they had just started that. She thought it was a very good positive move for the City, so that it didnít have their situation occurring again. With that being said, Council had a situation where they still did not have snow removal; she was hopeful that Council could get the developer to agree to something like that tonight. She was not successful in doing that, and he said he was not legally responsible. She wanted them to understand that all of Council wanted them to have snow removal; all of Council wanted them to have their roads accepted. She said that was not the question; it was just what the condition was that Council was currently being asked to have that done. She stated that there were going to be many heavy trucks in that area; she thought that the ordinance that Member Capello and Mayor Pro Tem Landry suggested was a good one, but she wanted to offer one more point of clarification.

Member Paul stated that when she spoke with Marina Neumaier about the financial guarantee today, she specifically asked if a developer had not completed its development within the four-year requirement what would happen. She said it wouldnít automatically be accepted; what would happen was, she thought that was what Member Cappello mentioned, at four years, the developer would come to City Council and he would have one six-month extension that only our Building official could give. That would be if the MDEQ permit was being delayed for whatever the MDEQ delayed permits for or weather conditions. She stated that any other circumstances, this body of seven people would decide what it was going to do; at that time, Council would increase the amount of money it would collect. She said it wouldnít be at the 1.5 percent; it would be at 2 percent. She wanted to offer that clarification that just because four years had expired, Council was automatically going to be forced to accept those roads; that was absolutely not accurate. She wanted to make it perfectly clear that Council wouldnít get in a situation like that again; financially, for all of the taxpayers, that was no wise practice.

Member Paul stated that all of Council felt for them, but it was not wise practice for Council to accept the roads at that time, not knowing what the base was and not knowing why they were having flooding in their backyards, etc. She said there were many situations that were still unknown. She hoped Council could get it resolved, come up with an ordinance that would be helpful to Mr. Harris, Mr. Cousineau and this City.

Roll Call Vote on CM-05-01-023 Yeas: Landry, Capello, Gatt,

Lorenzo, Nagy, Paul

Nays: None

Absent: Csordas

Member Capello asked if there was something that Council do to keep the streets plowed the rest of the year without charging the residents $250.

Mayor Pro Tem Landry asked Member Capello if he wanted to make a motion or open it for discussion.

Member Capello stated that he wanted to make a motion that the City continue to plow Park Place . . .

Member Lorenzo asked for point of order; she stated that once an issue had been resolved, wasnít that it.

Mr. Schultz answered that it Mayor Pro Tem Landryís determination whether or not Member Capello had the ability under Item No. 3 of the Council Agenda to make the motion; if he recognized him, it was an appropriate motion.

Mayor Pro Tem Landry asked Member Capello to make his motion; Council wasnít going to spend a lot of time on that.

CM-05-01-024 Moved by Capello; seconded by Gatt: MOTION FAILED: To charge the homeowner association of Park Place Estates $50 each time the City plowed their snow and the City plowed their snow for the remainder of the year; hopefully by charging them, it would prevent any argument coming forth in the future that Council had de facto accepted the roads.

Member Nagy stated that with all due respect, the residents took over the association, so if they were a normal association, they would be monetarily obligated for the snow removal. With all due respect, she could not support the motion.

Roll Call Vote on CM-05-01-024 Yeas: Capello, Gatt

Nays: Lorenzo, Nagy, Paul,

Landry

Absent: Csordas

AUDIENCE PARTICIPATION

Terry Gibney, 511 32 Sunday Drive, in Park Place Estates subdivision, stated for the record: 1) The deed restrictions and covenants that were submitted here and approved here in the City Council were not of a typical nature relative to the turnover of development to a homeowners association. He stated that the City approved a clause that stated when 75 percent of lots were sold, the development could be turned over to the homeowners; note lots sold, not lots sold and homes built. He said that based on that clause, there had been an assumption that by default, the homeowners of Park Place had accepted responsibility for the maintenance associated with a traditional homeowners association; that was not the case.

Mr. Gibney stated that their attorney, Matt Quinnís legal interpretation of their covenants stated that a transfer of responsibility by default was the process. He stated there were no signatures placed on any document that stated the homeowners of Park Place accepted responsibility for any maintenance. A few of the issues why they would not accept were: 1) When he considered purchasing in Park Place, he reviewed the same rendering that City Council reviewed; it was a beautiful development, and when he purchased, he expected that. He said that was not what they received. For example, front entrance design, there was no electricity at that front entrance; no properly provided mailboxes, inoperable sprinkler systems; never any description of that irrigation system provided; constantly flooding streets; filthy, muddy streets; overgrown vacant lots; unplowed roads. He said he wasnít just talking winter issues; they were also talking summer issues with the construction traffic. He said the point was that if they had police service, fire service, why would they not have plow service to allow the police or fire to come in if there was an issue. He said the issue wasnít that they cared that the development wasnít quite done; it wasnít that somehow the developer submitted a fast one and got the City Council to approve a deed restriction to allow individual builders to come on site and eliminate his liability; that was what the deed restrictions said. He stated that Mr. Harris was doing everything that was in his right; the issue was the signoff of the deed restrictions. He said it was a dysfunctional situation caused by the approval at the Planning Commission and at the City Council.

Mr. Gibney stated that if it was a typical situation, they wouldnít be there. Frankly, the homeowners didnít care about the issues between the developer and the City Council; all they wanted was a place to their children to grow up.

Chris Stone, President of Park Place Estates, stated that there were three issues they were trying to address. First, the storm water maintenance was really what precipitated all of that; if he were staying on, he would probably sign it; that wasnít a big issue. Second, was the quality of the overall construction, which Terry addressed, but specifically what he wanted to bring up, because it seemed like they were all tied together, was the quality of the roads. There were big cracks where repairs were made. He asked City Council to make the streets right; Council should tell the developers to do the job right. In any business, the customer was the one who defined quality.

Mr. Stone stated that the third point was the snow plowing. He stated that Member Capello stated something about the residents owning the streets; he didnít think they ever owned the streets. He said the developer owned the streets; he transfers the streets to the City. He said that whoever owned the streets ought to be maintaining those streets. He said that was the same for landscaping and everything else. He said that their expectation that the City would pick up the streets, drains and everything under the streets to make sure the developer maintained the property while he owned it.

Mayor Pro Tem Landry recessed the meeting at 9:08 p.m.

Mayor Pro Tem Landry called the meeting back to order at 9:20 p.m.

MATTERS FOR COUNCIL ACTION Ė PART II

4. Consideration of the request of Toll Brothers for approval of the language for the fourth amendment to the Island Lake of Novi RUD agreement, which allowed for the removal of the barn from Phase 5A. (Consistent with the concept approved by the City Council on November 10, 2003)

CM-05-01-025 Moved by Lorenzo, seconded by Capello; CARRIED UNANIMOUSLY: To approve the request of Toll Brothers for approval of the language for the fourth amendment to the Island Lake of Novi RUD agreement, which allowed for the removal of the barn from Phase 5A. (Consistent with the concept approved by the City Council on November 10, 2003).

 

 

Roll Call Vote on CM-05-01-025 Yeas: Capello, Gatt, Lorenzo,

Nagy, Paul, Landry

Nays: None

Absent: Csordas

5. Consideration of the request of Toll Brothers for approval of the language for the fifth amendment to the Island Lake of Novi RUD agreement, which allowed for the addition of a 10-acre parcel along the north side of Ten Mile Road. (Consistent with the concept approved by the City Council on October 18, 2004)

CM-05-01-026 Moved by Capello, seconded by Gatt; MOTION FAILED: To approve the request of Toll Brothers for approval of the language for the fifth amendment to the Island Lake of Novi RUD agreement, which allowed for the addition of a 10-acre parcel along the north side of Ten Mile Road. (Consistent with the concept approved by the City Council on October 18, 2004)

Roll Call Vote on CM-05-01-026 Yeas: Gatt, Landry, Capello

Nays: Lorenzo, Nagy, Paul

Absent: Csordas

6. Approval of Ordinance No. 05-149.08, an Ordinance to amend Chapter 3, Article 1 of the City of Novi Code of Ordinance to adopt recent amendments to the Michigan Liquor Control Code regarding the purchase, possession, or consumption of alcoholic liquor by minors. Second Reading

CM-05-01-027 Moved by Lorenzo, seconded by Paul; CARRIED UNANIMOUSLY: To approve Ordinance No. 05-149.08, an Ordinance to amend Chapter 3, Article 1 of the City of Novi Code of Ordinance to adopt recent amendments to the Michigan Liquor Control Code regarding the purchase, possession, or consumption of alcoholic liquor by minors. Second Reading

Roll Call Vote on CM-05-01-027 Yeas: Lorenzo, Nagy, Paul,

Landry, Capello, Gatt

Nays: None

Absent: Csordas

CONSENT AGENDA REMOVALS FOR COUNCIL ACTION

E. Approval of payment to Goretski Construction Company, Inc. in the amount of $7,497.60 for construction of a 5-foot concrete sidewalk along the south side of Grand River Avenue just east of Taft Road in association with the Grand River Avenue Widening Ė Beck to Lannyís Road Contract.

Member Lorenzo removed E because the explanation was that the City requested the original contractor doing the work under the Grand River Widening Ė Beck to Lannyís Road Contract to construct a 5-foot sidewalk segment. She asked if that was an additional phase to the project or if it wasnít included with the project from the County.

Mr. Pearson answered that it was in the original contract; it was not able to be constructed at the same time because there was a utility pole in the way. He stated that as soon as it was done, Administration got the contractor in, got the same unit prices and they completed it.

Member Lorenzo asked who was paying for it.

Mr. Pearson answered the City was; it was just like the City did with the rest of the project. He stated that the Grand River between Beck and Lannyís was a City project, and it was done the same way. It was deducted out of the first contract, and you see it before Council tonight.

Member Lorenzo stated that it was deducted out of the first contract.

Mr. Pearson answered yes; the City would not have paid for that the first time through.

CM-05-01-028 Moved by Lorenzo, seconded by Capello; To approve payment to Goretski Construction Company, Inc. in the amount of $7,497.60 for construction of a 5-foot concrete sidewalk along the south side of Grand River Avenue just east of Taft Road in association with the Grand River Avenue Widening Ė Beck to Lannyís Road Contract.

Voice Vote on CM-05-01-028 CARRIED UNANIMOUSLY

H. Approval of Final Pay Estimate 3 and Final Change Order 1, in the amount of $22,874.80 to Alís Asphalt Paving Company for the asphalt portion of the 2004 Neighborhood Roadway Rehabilitation Program contract.

Member Lorenzo stated that she pulled H was that it appeared that it came in under bid; she wanted clarification. She said the original contract amount was $212,433.50 and the final contract amount was $194,593.05, so it actually came in under. She said that was very commendable; that was why she brought it up.

CM-05-01-029 Moved by Lorenzo, seconded by Paul; CARRIED UNANIMOUSLY: To approve Final Pay Estimate 3 and Final Change Order 1, in the amount of $22,874.80 to Alís Asphalt Paving Company for the asphalt portion of the 2004 Neighborhood Roadway Rehabilitation Program contract.

Voice Vote on CM-05-01-029 CARRIED UNANIMOUSLY

MAYOR AND COUNCIL ISSUES

1. Geotechnical Quality Control Ė Member Paul

Member Paul asked Mr. Hayes, City Engineer, to answer some questions. Approximately two months ago, Ayes Lewis had Phil Loud, the engineer who was at the podium, who said he didnít actually do the core samples, that the design engineering firm, URS, did. Then the construction came forward and those engineers had to live with the core samples; when they got into the project, there were many discrepancies with what they found. She said that therefore it was a $90,000 increase. She believed the same thing happened on Taft Road with JCK; they didnít do the core samples, but they did the construction.

Member Paul stated that she had a conversation with the Finance Department; they said often when there was a design engineering and a construction engineering firm that differed, there were cost overruns because they had to communicate back and forth with one another, therefore, the time and labor involved was more extensive; often it went over the cost of what was anticipated. With that conversation, she talked with Mr. Hayes, trying to understand what Mr. Loud had brought forward, which was the geotechnical quality control. She asked Mr. Hayes to explain and tell Council his thoughts about who it should be done by.

Mr. Hayes answered that in an ideal situation, you would have the same consulting engineering firm do the design and do the construction; that way, any geotechnical work, whether it was soil borings, or pavement corings, or any construction materials testing that got done during the construction phase was all done by the same firm. That way, there was uniformity across the phases of the project. He said by having the design engineer do the geotechnical testing right up front, the borings or, in the case of a road rehab doing pavement corings, that firm had ownership of that data; it collected that data, evaluated that date, used it as a basis of design for what was eventually going to be bid on and built. He said that was the ideal situation.

Mr. Hayes stated that they structured the qualifications based selection process, where seven firms were identified that would receive requests for proposals such that, assuming they had good performance during the design phase, they would more than likely be awarded the construction phase as well. He said that would hopefully eliminate any cross-over between multiple firms. He said Chapter 11 of the Ordinance required that soil borings be taken as a preliminary step in the design process, and we specify what the maximum interval was on a roadway project and to what depth. He said it was key that they got existing soil conditions at those data points; they got depth to groundwater, so that they knew if they had clay soils that they knew whether or on they would have a water issue that would cause those clay soils to expand. He said there was a lot of data that was gleaned from that initial bit of data by doing a simple soil boring.

Mr. Hayes stated that the same thing applied to corings through an existing pavement on a rehab project. He said they got key soil information, key information about the existing pavement structure, whether or not it was sufficient, as well as groundwater information. He said it was real important that the design engineer was the same firm that if they didnít do it themselves that they maintain a subcontractor with a geotechnical firm that gathered that data for them.

Member Paul asked if it would be his recommendation for Council to go out for design and construction bids with for both of the design and construction, each firm, and bid those seven people against each other for both parts of the project so that Council could get a long-term look at what the whole cost was going to be instead of separating those two out.

Mr. Hayes answered that was what they were doing now; they were asking for prices for design, which would include that upfront study cost, as well as the hard design cost, and then on top of that, the construction phase services so that when they got a proposal, they got a price for all of that.

Member Paul asked Mr. Hayes if he was no longer going to be asking for it to be split any longer, because that was something that Council was doing for a while. She said that practice cost the City about $200,000 or more. She stated that she just didnít want to see Council that was laboring over cost of snow plowing spend $90,000 just at a whim at a project; she said that was just one subdivision. She thought Taft Road, was $120,000 overrun, she couldnít remember; she just remembered that coming to Council there was a $90,000 overrun for Ayres Lewis and another one with JCK, a very large sum of money, both situations being the same. She thought the City had a situation on South Lake Drive that was similar; she just wanted his clarification as to what they were doing as a policy.

Member Nagy asked Mr. Hayes if he, as an engineer, recommend that a firm or engineering company be directed to do soil borings in January.

Mr. Hayes answered that he wouldnít advise that.

2. Grand River Avenue Between Novi Road and Haggerty Ė Member Paul

Member Paul stated that Council received the document from the RCOCís road report; she read that there was going to be a $500,000 preliminary engineering to widen Grand River from two lanes to five lanes from Novi Road to Haggerty. She asked, since Novi just endured the widening project, when that was going to take place.

Mr. Helwig stated that City Council had identified that widening in a formal resolution as its number one priority into the future after all the other projects on the books were completed. He said the Road Commission was aware of that, and though legislative representatives they were able to obtain the very first funding of what was estimated to be about a $13-million undertaking at todayís estimates, $500,000 for preliminary engineering. He stated that no other dollars were budgeted for that; they had not included any funds in the road bond which was near completion for east of Novi Road, it would not be happening for some time unless there was some particular federal or state line-item capital project funding that Administration was not aware of that would happen in the future.

Member Paul stated that it was through Thaddeus McCotter; she was thrilled to see that the City was actually going to have that looked into, but she was not looking to it for the very near future because it was so painful so recently.

3. Information Technology Ė Member Paul

Member Paul stated that recently in the goal setting session, Council had a discussion that it would like to improve the IT Department; there four different components in the IT. She said that City staff couldnít communicate with one another with the four IT components; therefore, it would be a very large sum of money to rectify the very old dinosaur software and hard drive that the City had. She stated that she would like to really look at what their inventory was, what did the City own and what it was going to need in the future. She wanted to ask Council if it needed to set up some subcommittee of people for a very finite amount of time that could come together in the community and give it their expertise.

Mayor Pro Tem Landry stated that Council just had the goal setting session, and he believed the Administration was going to take those goals, work on them, and come back to Council either at budget time or perhaps before then with some sort of suggestions.

Mr. Helwig stated that what Mayor Pro Tem Landry described was Administrationís approach. He said Administration would like to have the budget document be the first catalyst, there might be more and there may be the need and the benefit of some type of committee of experts or what have you. He said that before asking people to do something like that, he thought they really needed to frame the scope of the challenge, nature of it; he said they could do that in-house, just like Council had asked be done in-house before bearing any expense, and then there might be all kinds of opportunities for fresh eyes perspective, in addition to Council oversight. He would like to have the opportunity to bring forward some thoughts on that; he appreciated that suggestion. He said Administration had talked about that previously.

Member Paul stated that to add to that, if Mr. Helwig could have at the budget time a list of what did exist in the City, because she didnít understand it and would like to ask some people that did for that information. She would be interested to see whatever his proposal was.

4. Secrest Wardle Bills and Faxes Ė Member Paul

Member Paul stated that when Council did Secrestís legal agreement, it was her understanding that Council had a percentage that was going to be for all the copies, the FAXís, and phone calls, that the City wouldnít be billed separately for that, so when she looked at the bill for January 18th, there were different charges for $279.34 for those expenses that she thought would be a percentage of the bill. She asked Mr. Schultz for clarification.

Mr. Schultz stated that he would need to take a look at those to make sure they comply with the agreement reached with Council; he said through Secrestís billing department and Ms. Smith-Royís office, they would make sure whatever it was supposed to say it said.

She would appreciate his looking into that; it was one of the final parts of the agreement that she was understanding; if that was how it was going to be, she thought they needed to reclarify what the agreement was. Her understanding was that it was 1 or 2 percent for the total bill and that Secrest wouldnít have to itemize all the phone calls, FAXís, copies; it would just be a lump sum.

Mr. Schultz stated that whatever the agreement was, they would go back and check the bill that went out against that, and if it needed to be changed to comply, they would do that.

5. Target/Landon Wetland Mitigation Ė Member Lorenzo

Member Lorenzo stated that she appreciated the update from Mr. Schultz in the packet with regard to the previous question related to the MDEQ permit; it was good to know that they could move on without any further permitting necessary. The question now became had they contracted for those plantings; just like landscapers, you needed to contact people now so that they were ready to do the work in the spring.

Mr. Schultz stated that he would be happy to raise that; it was his understanding that they were just as anxious to get the item off their plate as everyone else. He would check and give an update.

AUDIENCE PARTICIPATION Ė None

 

 

ADJOURNMENT

There being no further business to come before Council, Mayor Pro Tem Landry adjourned the meeting at 9:38 p.m.

 

______________________________ _________________________

Lou Csordas, Mayor Maryanne Cornelius, City Clerk

 

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Transcribed by Sue Troutman

Date approved: February 7, 2005