REGULAR MEETING OF THE COUNCIL OF THE CITY OF NOVI
 MONDAY APRIL 15, 2002 AT 7:30 PM
NOVI CIVIC CENTER – COUNCIL CHAMBERS – 45175 W. TEN MILE ROAD

Mayor Clark called the meeting to order at 7:35 PM.

ROLL CALL: Mayor Clark, Mayor Pro Tem Bononi*, Council Members Capello, Csordas, DeRoche-absent/excused, Landry, Lorenzo

*Mayor Pro Tem Bononi arrived at 7:38 p.m.

Mayor Clark presented plaques to the following commission and board members for their dedication and service.

• Beautification Commission – Barbara Kientz, Gretchen Pugsley
• Housing & Community Development Advisory Committee – Timothy Shroyer

The following were unable to attend the meeting:

• Board of Review – Katherine Cosentino
• Construction Board of Appeals – William Briggs and Charles Bunge
• Historical Commission – Linda Krieger

Mr. Fisher spoke about the property that fronted on 12 Mile Road and some significant characteristics of the property that needed attention. First, electric lines were being moved front of this property which would have some adverse impact because of its character, so negotiations were entered into that resulted in the burying of the electric line along the frontage of the property. Also, the property owner stated the frontage was master planned for office use and the rear was master planned for residential. This land was commonly owned by the same

company that developed a condominium project to the east and as a result of the overall building scheme and everything that occurred historically, what we would end up with was property zoned office in the front and a piece of residential property that would be landlocked in the back because a road was not approved earlier to give access to the property. Negotiations led to the notion that it might be to the property owners and City’s best interest if we would negotiate the potential for a consent judgment, whereby the property owner would pay for a portion of burying the electric service and the City would allow the rezoning of the entire piece of property for office use. However, to protect those property owners to the west, a large berm would be placed between office and residential. The proposed berm would be 6 ft. although there might be adjustments to the height or slope or both. This rezoning public hearing is for an effective rezoning contemplating the consent judgment.

Mayor Clark asked if there was anyone in the audience that wished to address Council on this item.

Norman Agrazian, property owner to the west, stated he owned three residential lots and the adjacent properties were mostly residential. The front was master planned for office then came the office zoning to the right and extended past his property to the west. He said his property is zoned R-1 and to the right is office zoning. If this property is surrounded by office, commercial and other multiples it would really depreciate the value of that property. He said he had offered to buy the landlocked piece of property and tie it to the residential but his offer was turned down. He asked Council to consider the outcome of this on the surrounding residential areas and changes to the color of the entire vicinity. Mayor Pro Tem Bononi asked how long he had owned the property? He replied about 4 ½ years.

Mr. Helwig introduced Sheryl Walsh and announced she would be starting with Novi April 22^nd. She is from St. Joseph’s Mercy of Macomb with a health services background. She had served in the areas of communications, community relations and marketing since 1996. She has dealt with crisis management issues, been instrumental in developing key publications for stakeholders, customers and colleagues. She has been very involved in speaking and preparing speeches and has worked with the media in the area. She graduated from Michigan State University with a BA in communication, arts and sciences with an emphasis in marketing and she holds professional memberships in the Public Relations Society of America as well as the Michigan Health Care Communications Association.

Ms. Walsh commented she looked forward to working for Novi for the betterment of the community.

Mr. Helwig stated they were almost through putting the pilings in for the boardwalk through the wetland from Orchard Ridge Estates to Novi Road. Also, two of our year 2000 Road Bond intersections are well under construction at Ten Mile Road and Cranbrooke and Ten Mile Road and Meadowbrook. He thanked all for their forbearance. The work on the Twelve Mile Gap program has started with the beginning of the utility relocation work last week and that project is officially underway.

Member Csordas asked Mr. Helwig about the new intersection at 9 Mile and Novi Road because someone dug it up and asphalted it in and there is a huge hole there? He noted Ameritech was working there for a while and said the curb is gone, the road is destroyed and it was brand new. He wanted someone to be held accountable and to fix the road. Also, asked for an update on the status of Grand River Avenue between Beck and Wixom? Mr. Helwig said the southern section profile was completed last fall and there is a single lane in each direction. The intersection had functioned pretty well this winter. The RCOC stated the improvements on the north side would begin this spring with five lanes and a center left turn lane going from Beck to Wixom and it would be done by the end of July. Mayor Clark asked Mr. McCusker about the 9 Mile and Novi intersection. Mr. McCusker said it was Ameritech, they have been notified and we have held their bond until they complete the work. The have 30 days to fix it and if they don’t the City will and they will be billed.

DEPARTMENT REPORTS

Mr. Klaver reported on the mediation program to train 10 residents to provide an alternative dispute resolution process for residents. All ten slots have been reserved and the training would begin next week. We will still continue to take names if other residents are interested.

ATTORNEY

Mr. Fisher said a rough draft of the Downtown Gateway Ordinance has been delivered to the City.

Asa Smith, 1294 East Lake Drive, concerned citizen and member of the Storm Water Community was present. Item #3 is a request for the approval of the first reading of the new Storm Water Management Ordinance. It has been diligently worked on and members felt the ordinance would be an upgrade and an asset to the City. He asked that Council look at it thoroughly and if the second reading looked applicable to put both into the motion.

Joseph J. Rosen, present on behalf of Robert Siemens of Royal Arc Welding. Mr. Rosen said their company had not been paid for services at the Novi Fire Station and he was present to go on record that the November services had not yet been paid for. He asked that Council expedite this process. They had some movement with the Liberty Bond Company but still have not received payment.

A. Approve Minutes of:

1. April 1, 2002 Regular meeting

2. April 6, 2002 Budget meeting

B. Schedule an Executive Session immediately following the regular meeting of April 15, 2002 in the Council annex for the purpose of discussing pending litigation.

D. Approval to purchase 25 sets of turn-out gear from Apollo Fire Equipment, the low bidder, in the amount of $27,375 through the Tri-County Purchasing Cooperative.

E. Approval of Traffic Control Orders 02-03 through 02-06 for permanent installation of traffic control signage in Turtle Creek Subdivision.

F. Approval of Traffic Control Order No. 02-07 for installation of Traffic Control signage on 9 Mile Road between Beck Road and Napier Road to prohibit this portion of 9 Mile from being used as a through-route by commercially-rated trucks.

G. Approve Claims and Accounts – Warrant No. 620

Terrence Jolly, attorney for owners of proposed restaurant spoke. He said it would be a small, unique restaurant that the owner has invested in across from Providence Hospital in West Market Square. It would be a 60-seat fresh seafood restaurant with a fresh fish market attached. Patrons would select a piece of seafood that would then be cooked to the patron’s specifications. There is no fresh seafood restaurant in Novi and he felt there was a need for this type restaurant in the city. Mr. Jolly said as a resident and public person in this community for 30 years we have always tried to make Novi different, outstanding and exceptional. The applicant picked Novi because it is a strong dynamic City and he wanted a good place for his restaurant and it will be the only fresh seafood restaurant in Novi. The length of time that the applicant has conducted business in the community has been about 4 months trying to build his leasehold property in West Market Square. He has spent ten years as an outstanding business community person in the City of Livonia and has received awards from the City of Livonia for his activity in community affairs. Mr. Jolly addressed the question of whether liquor licenses should be saved by Council for a big hotel or the big chain. He said that was not necessary because anyone who invests $1 million in any facility within a community can get a license from the State of Michigan and bring it into the community. Mr. Jolly said his client needed a free license because he was a small businessman and would invest about $200,000 to $220,000 into his leasehold improvement and definitely needed a license. He also built a facility in Troy.

Applicant Don Matarella noted he and his wife have owned and operated 2 successful Subways in the Livonia area for ten years. They live in New Hudson and have for the last five years. He and his wife, Terri, are the sole owners of Jake’s Fish House and have invested the last 14 months and $190,000 of their life savings in Jake’s just to get it going. Jake’s would have a cozy, intimate atmosphere with 60 seats. Customers will be able to talk with the Chef and food will be cooked to order when possible and all food will be fresh not frozen. Craig Ostrow, formerly of the Hotel Baronette and Too Chez, will be the Chef. He had provided copies of the menu. The mandate to Chef Ostrow is that their menu must be unlike anyone else’s and the seafood has to be of the highest quality and freshness available today. They would provide fresh seafood from the east coast, Louisiana, west coast and Hawaii.

Member Csordas noted the sign is already up so they’ve put some money in there and some things have come through the approval process. They have explained their uniqueness and the police, fire and building departments have approved this issue.

Mayor Pro Tem Bononi asked the applicant if he had ever held a liquor license before? Mr. Mattarella said he had not. Mr. Jolly stated, as a lawyer, he had looked at Mr. & Mrs. Mattarella’s background and he was certain they would qualify for the liquor license.

Member Capello noticed that under the type of license they had circled Sunday sales and outdoor permit but when he looked at the plan he didn’t see any proposed outdoor seating. Mr. Mattarella stated they were looking at outdoor seating as a possibility. Member Capello asked if there were any restrictions that could be placed on the granting of this license that if the business fails or there is any transfer of the business to a different type within so many years the City could get their license back? Mr. Fisher said no.

Mayor Pro Tem Bononi thought, per the seating plan, there would be about 420 people would be able to enjoy this celebration. Dan Cruise, of On the Border, couldn’t answer the question. She asked if they had been in touch with the Oakland County Health Department in regard to their requirements on outdoor food service. Mr. Cruise said they had. She asked if there would be water service outdoors. Mr. Cruise said there would be potable water available but they would have to make water available to wash their hands. She asked if there would be any barrier or fencing to the adjacent parking. Mr. Cruise said there would be temporary fencing about three feet high that would rope off the area where the tent would be. She asked

if there would be additional outdoor lighting. Mr. Cruise said not to his knowledge other than inside the tent. She asked about the band? Mr. Cruise said it would terminate at eleven but if requested would stay until midnight. She asked if they had the insurance required for this type of event? Mr. Cruise said it would be through their parent company, Brinker’s. She asked if they had contacted the Novi Police Department. He said an off duty officer would be present and would be paid by them.

Mr. Fisher asked if he was aware of the conditions that the Building Inspector specified when he recommended this? Mr. Cruise said his boss had been called out to a manager’s meeting in Chicago and he was just filling in. Mr. Fisher recommended that Mr. Saven’s conditions be made a condition of the motion and approval and also provision of an insurance certificate before the event and also a fire marshal inspection after the tent has been installed but before the event. Members Csordas and Capello agreed to the conditions.

Mr. Fisher said there were some technical modifications they would like to make based upon the recommendation of the committee prior to the second reading. He wanted to incorporate them as well as the provision of the City Engineer. This ordinance has a very substantial appendix that Council would need before them to grant final approval and he was sure it would be provided before second reading.

Member Capello asked about the policy issue of Section 405, page 10, Review Procedures. He thought it said every storm water management plan comes to Council regardless of what entity had the site plan. The plan should follow the body that has the authority to approve the site plan and should not be approved by Council. Mayor Clark asked that this be conveyed back to the committee. Mayor Pro Tem Bononi agreed with Member Capello and said the language in that section should be qualified by saying "that a recommendation or the Planning Commission" when appropriate.

Mayor Pro Tem Bononi read the following letter she received from Donald Tilton, PH.D., President of Tilton & Assoc., Inc., regarding the proposed Storm Water Ordinance into the record.

Thank you for forwarding a copy of the Proposed Storm Water Ordinance for the City of Novi. I have reviewed the intent and language of the ordinance from the perspective of the Middle 1 Rouge River Watershed Plan coordinator. In general, the ordinance is an excellent document that deals with a number of the restoration and conservation goals outlined in the Watershed Management Plan and the Storm Water Pollution Prevention Initiative (SWPPI) developed by the City of Novi.

In more specific terms the proposed ordinance addresses seven of the ten goals identified in the watershed management plan and the SWPPI. The specific goals identified in the watershed management plan that are addressed by the ordinance are as follows:

Reduce flow variability;

Reduce nutrient loading;

Reduce soil erosion and sedimentation;

Protect and mitigate the loss of natural features;

Improve water quality’

Integrate storm water management in planning and land use approval process; and

Enforce action plans and increase accountability for storm water management.

In my view, the ordinance is an excellent step toward providing a unified approach to managing water resources in the City of Novi and I believe the ordinance represents a model that we can use throughout the watershed for communities who want to follow the lead of the City of Novi.

Thank you for providing me an opportunity to review the ordinance and if I can provide any other assistance, please fee free to contact me.

Nays: None

Member Csordas asked for clarification of sentence 4 of Recommended Action, "There remains some work to be done in the final takeover agreement to establish the exact work to be completed and the dollar amounts that represent the payments".

Mr. Fisher said Mr. Schultz is working on this matter and there are still some final discussions that need to occur. This is 95% negotiated and they are in the final aspects of this to determine how much work is left to do and that in turn will drive how much money is to be paid out. He noted with the exception of the costs borne to address the termination and the transfer of the project to the bonding company, there is every appearance that there is sufficient bonding wherewithal on this to complete the job without any additional cost to the City. Mr. Fisher said it is 80% complete and they put up the amount of the bond for completion plus double the amount so the project would have to go over more than 100% before there would be a problem. Member Csordas asked if we had a guarantee then? Mr. Fisher said there is no anticipation whatsoever that this would go over.

Member Landry said in paragraph 5 of the Takeover Agreement there is no completion date. Mr. Schultz said they were suggesting June 15^th but have not done the Surety to accept that and that is why it is blank but it is referenced on the cover.

Member Capello said it seemed that Greystone was not a party to this agreement and he didn’t care where the work fell whether 10% or 80% complete. His concern was if it is 80% complete and we have paid 70% of the money, our agreement requires us to give that extra 10% to the Surety. Is there any chance Greystone could come back and say they had 80% of the work done, you paid me 70% and now you owe me 10%? Mr. Fisher would make sure the agreement does not get signed if that is so. He had not been involved in those negotiations but would make sure it did not happen. Member Capello questioned page 1, Subsection 1, second paragraph "However, the Completion Contractor shall not perform any warranty work or corrective work as a result of latent defects without written approval of Surety". Mr. Capello

said it was his opinion that the Surety is still responsible for that and he didn’t know why that provision was in there. However, later on they do retract that and say "the Surety is responsible for any latent defect", so he asked why that sentence was in there. Mr. Fisher said it appeared the Surety was insisting on having a final review before they authorize the expenditure.

Nays: None

Member Landry asked Ms. McClain, City Engineer, why the lowest bid documents proposed for submittal were not acceptable. Ms. McClain said the documents they proposed to submit were 8 ½" x 11" sheets, giving a location map and a cross section and then quantities to be done. She said what they look for as a standard are 24" x 36" Plan Sheets with a plan of the subdivision delineating the areas to be done. Member Lorenzo asked if that was the only reason? Ms. McClain said it was the primary reason they were not selected. We wanted the typical documents that we normally see. They rated between second and third on most peoples list. Ms. McClain said they also did not propose to go out and do field survey and they propose to use our PASER system and just a visual survey rather than the typical survey.

Member Csordas, referring to memo of April 9^th from Ms. McClain, noted visual inspection is totally unacceptable and pavement borings are also referred to and we have to be sure that never happens. Ms. McClain said all three respondents proposed to use borings and have them evaluated by a soils engineer. Member Csordas asked if she and Mr. McCusker would make sure the appropriate number are taken and analyzed. He asked that they make sure we don’t have the Village Oaks situation. She said they are monitoring that closely. Member Csordas referred to last sentence on page 1 of memo "The proposed schedule for design is 8 weeks with a date of substantial construction completion of late October 2002"; he said that is not acceptable and asked how they could tighten that up? Ms. McClain said when substantial completion is discussed, they are not closing out the project at that point. We are holding part of it open for problems in the spring but that does include all the paving and the sod is supposed to be in. They would go back and hit additional punch list items that might be a problem in the spring. He asked if substantial completion would mean less than substantial payment? She said there would be approximately 10% held over the winter. He asked what made the Ayers, Lewis, Norris and May bid substantially higher in her opinion? She responded that basically they would do an actual field survey. They don’t have the existing records that JCK has of the subdivision and they will also have to take elevations. JCK said they would take elevations where drainage work is needed and Ayers, Lewis will have to take records of all of it when they do it. They would provide additional staking hours and would spend more time within the time period given.

Member Capello said it seemed that the difference between Finkbeiner and JCK is the amount of services they are providing to us. Ms. McClain agreed and said Finkbeiner does not plan on proving a staking during construction. He asked if the RFP specifically outlined what they are

to do? Ms. McClain said it has some specifics and is general in some areas and it has come to their attention that it needed to be tightened up further.

Mayor Pro Tem Bononi commented that she had never seen an engineering spec that didn’t require drawings to be sized. She would count on Ms. McClain to tighten up the RFP process because it does not put anyone’s bid on any kind of equal footing. She asked Mr. Fisher who owned the records and surveys that JCK has? Mr. Fisher it would depend on the arrangement under which they were provided. Generally, the City would be entitled to probably the original of the document but contractually it might have been worded otherwise. She said if we have a circumstance where the City of Novi paid for surveys in a neighborhood that is about to be improved, the simple fact that JCK is holding them doesn’t mean that they are the only entity entitled to have that information. Mr. Fisher agreed and said if the City paid for them then they should at least have copies of them. She asked Ms. McClain who paid for the surveys. She didn’t know but JCK said what they were going to use were the plat documents that were submitted for the subdivision for the layouts and they are public record. However, JCK already has them on their computers and that’s what they count on as being a lower price because they have used them for years with their GIS system. Mayor Pro Tem Bononi asked if as part of our fees, are we paying for the digitizing of these maps and if JCK no longer worked for us would they have to deliver all of that proprietary information back to the City of Novi. Mr. Fisher said that would depend entirely on the contract that was entered into. Mayor Pro Tem Bononi concluded that if we are not sure who paid for and owned the documents that we are talking about each of the respondents to the RFP are on an unequal footing unless we know that and in every case, being on an unequal footing unless they know that. She said considering the fact that that is unknown, she didn’t know how these prices could indicate anything. The fact that the specification is not specific didn’t indicate anything. She wanted to see this go forward but would not support anything conducted in this way; particularly with regard to saying that one of the primary reasons that JCK is the low bidder is because they have this information and we don’t if it is the City of Novi’s information that gives them an unequal footing. Her last reservation was that they seemed to be building on a tradition of cost overruns with regard to, particularly JCK, and asked is the low bidder really the low bidder or would the low bidder be hitting us with amendments as in the nearly 200% cost overrun in Village Oaks. She asked Mr. Fisher whether the City had a legal claim against JCK with regard to the non-completion of that job for the original bid price that we should even be entertaining bids from such a contractor. She felt this matter should be re-bid, the specs should be accurate and the ownership of the surveys that are giving JCK a leg up on this price should be documented. She would not be supporting this.

Mayor Clark asked if this matter were postponed until the next meeting to get an answer whether or not the information referenced by Mayor Pro Tem Bononi is equally accessible or property of the City, that we could then provide in a RFP to all bidders or is it information that belongs to JCK. Also, would that create a problem to the 2002 Neighborhood Roadway Rehab Program?

Mr. Helwig had been pushing so they didn’t have the problems of last year with Village Oaks. There is 8 to 10 weeks consumed with design stages so then we are into July and staff expressed concern that if this waited three weeks until the next regular Council meeting that is going to further push us at the rear end of this. That is a Council call. As far as the system that has been in place for 23 years here, he thought they knew his feelings. Ms. McClain is the first professional staff City Engineer and we have to create an ability here to not only have

documents that should be here, that are the taxpayers and should be made available, not just to engineers but to others in the City organization as they encounter a need for that work. We should have immediate access to that information. It was his objective to get two or three

engineers in this organization to provide this kind of oversight and information base that is so basic to sustaining and upgrading our infrastructure and that is a number one priority of this Council. We need people and information to manage that and it is his objective to get all that information here in this organization available to all. We are not a modern organization in terms of these practices and he, because of the price difference, would like to see this go forward. We have an obligation to the neighborhoods to get a work program as the streets in there are in dire need of work. He wanted to expand the fields of engineering firms submitting proposals to us and getting work from us. Other cities have six or seven engineering firms working for them all the time and we can barely get two or three.

Mayor Clark said a tentative budget meeting had been scheduled for April 22^nd if needed. These concerns could be addressed by next Monday and then vote on this item then. Mr. Helwig said there was a lot of incentive to do that.

Member Lorenzo agreed and asked if the City went back to Finkbeiner and asked them to produce the sizes necessary. Ms. McClain said they did not. Member Lorenzo asked why? Ms. McClain said they took the three proposals just as they were submitted. Member Lorenzo said even when the specs didn’t specify the sizes desired? Ms. McClain said that is correct. Mr. Fisher said it is not proper bidding process to, once the bid is submitted, negotiate prior to the approval of the bids. It would have to come to Council and they would have to reject all bids and then there could be discussions. Member Lorenzo asked if they could ask Ms. McClain to ask Finkbeiner what they would charge for the specs that we are requiring? Mr. Fisher said it would essentially be asking Finkbeiner to change their bid. They have the right to submit any bid they want and they submitted this bid and we would be asking them to change their bid and not allowing others to change their bid and that would not be proper. She asked if everyone could be asked to change their bid if they had a change because of the size of the document? Mr. Fisher said if Council re-bid the whole thing. They would have to reject and re-bid. She said that was where she was heading then. She would not go with the mid bidder under the guise that they are the mid bidder when we don’t know if the other firm would have if they had the information or if the information that the low bid was based on is ours anyway.

Mayor Clark said that was his point of putting things over for a week because we need that question answered. If that information is proprietary to JCK and they have no obligation to make it available to others each bidder can submit whatever bid they want and it would be improper for us to then point out to a particular bidder what we feel are deficiencies in their bid to give them a second change. We have to take this a step at a time; first the answer to the question as to whether or not that information belongs to the City or to JCK. If it’s JCK’s then it is not available for everybody else and they don’t have to share it with the competition.

Member Lorenzo said the other part is that this bidding process is flawed. If it hasn’t been a priority, right now it is. We need people to start working on this and fix it as soon as possible so the next bid we have we won’t have this again.

Mayor Clark reminded her that Mr. Helwig said things have not operated in the fashion that he felt they should for a modern City and we have not had anyone in house until now.

Member Lorenzo said we have had two years of a new administration and Ms. McClain has been here for a little while now. If we know the process is flawed, we need to start making it a priority and work on it to make it right but we obviously haven’t because we have this piece in front of us, as did the bidders.

Mayor Clark said she was missing one point. It is easy to criticize and say you should have done this or that while at the same time you don’t give the person you are criticizing the tools he needs to do the job. We just finally provided one engineer. This probably could have been address already if in the last budget Mr. Helwig would have been provided the three engineers he requested.

Member Lorenzo was not sure revising the RFP was as monumental a task as one might be conceiving it. We are talking about words, paper and requirements that are pretty easy. Ms. McClain seemed to know right off the bat what this City needed in terms of the sizes of the specs. Just transfer it to paper it is very simple. It is a priority and she hoped that at this point in time the administration takes this seriously. This is a priority at this point in time, fix this.

Mayor Clark suggested tabling this matter until April 22^nd for purposes of a special meeting to proceed the budget session, if needed, and if not it would be a special meeting, one item agenda, to deal with this to the 2002 Neighborhood Road Program behind.

Mr. Helwig didn’t want there to be any doubt about how seriously he takes this issue. This City has not been functioning in a proper way in many ways. When he said a year ago an engineer was needed for roads and another for utilities, he meant it. If Council doesn’t want to support us then they don’t need us. You cannot absorb the amount of change that we have been absorbing in two years with one City Engineer on board since last September or August. You’ve had an incumbent leadership for double-digit years that was accustomed to doing things and had certain relationships; that’s gone.

The people who are here are working very hard to pick up the pieces, find out where we are in processes and conduct business the way he took very seriously. He said he

stakes his reputation on it every day. This City is not functioning and it has been hidden for a long time. We are willing to take abuse and try to get the job done short handed but he never wanted to be told they were not taking it seriously. He did not want to see Ms. McClain leave and add to the turnover newspaper articles because she’s not getting the support she needs. As far as he knew the Consultant Review Committee

and Council would put engineering services out for proposals this year just like legal services two years ago. He hoped they understood they had to operate a City in the meantime while that is happening and there may or may not be a change. In the meantime, with the firms that are submitting proposals with RFP’s that are not up to snuff, we still have to do business and get things done for this community. It is not pretty and he is not proud of it. Contracts were awarded for these Ten Mile Road intersections last October and they are just getting started. The leadership that was doing that is gone and we need your support to get through this period of transition. They don’t want to disappoint and want to get the results Council expects.

Mayor Clark said no member of the administration should take any abuse because they don’t deserve it, don’t need it and he didn’t think there was anyone who could say that there is any community where the staff and the employees work harder than they do in this city. Mayor Clark said if you want a quality City, you have to pay for it. You won’t get it on the cheap. When someone of Mr. Helwig’s caliber, character and experience expresses what he needs to get the job done, then it is time to support him and get him what he needs.

Member Landry asked Ms. McClain, regarding the ownership of the surveys depending on what was in each individual contract, if she knew what was in this contract as to how that issue was presented? Ms. McClain said in this contract it is required that they turn over a set of documents to the City and that they would be under our ownership. He said all such future contract would have that clause in them so this would not happen in the future? She said that’s correct. Member Landry asked Mr. Helwig if this was put over until next week would it seriously jeopardize the road program? Mr. Helwig said one week was fine but he would hate to wait three weeks.

Member Capello said there are three questions they need answered by Monday.

1. Who has ownership of the information that Ayers, Lewis is telling us they have to reproduce?

2. What did we ask for in the RFP that any of the bidders didn’t provide (unknowns)?

3. Last year when JCK undertook the contract for engineering the road improvements their contract price exceeded by 200%; was it their engineering price that exceeded by 200% or was it the construction of the road paid to the contractor. How close was JCK to their engineering bid?

Mayor Pro Tem Bononi said as far as her opinions were concerned, this was not a personal issue. This does not have to do with emotional outbursts, threatening people who are leaving or might stay, this has to do with hard nosed business decisions that affect every dollar that every taxpayer who’s watching and who isn’t pays in order to have a good job the first time.

She knew they were short staffed but didn’t believe that throwing people or money at them necessarily solved problems. It had more to do with a teamwork effort of prioritizing what had

to be done right now. To suggest that this is one last wrong job, whether through process, price or qualification does not set well with her because the buck stops at this table when they are elected. We can’t do government without administration but spending each tax dollar rests with this group. It is not personal and we want a good job every time.

Member Lorenzo asked to speak to the applicant. David Harris, Van’s Skate Park, responded. She was concerned about this use and asked why he decided to do this outdoors? Mr. Harris said it was Van’s 12^th skate park nationwide and typically on all of them they try to do an outdoor area and six of the 12 have outdoor areas. She asked if the structure was already built? He said it was being built now and is an existing building that they are doing tenant improvement on the inside. She asked when contemplating the amount of total square footage did you contemplate having it outside because it seemed like an afterthought. Mr. Harris said when they got the space it was unclear with the landlord whether there was enough space to do an outdoor and that was why they were done at separate times. She asked if they had any particular skate parks where there was a loading, unloading and service area directly abutting the skate area? He said no, every development was different and depended on where they could get the space and whether the landlord would allow it or not. She asked what the safety records were in the areas that abut parking lots? Mr. Harris said it was completely enclosed by a ten-foot high fence. She said it is wall and wrought iron and asked how much was wall and how much was fence. Mr. Harris said it is usually six feet of fence and about four or five feet in cement blocks and is typical of Van’s. She asked how high a skateboarder could get in the air? Mr. Harris said not very high because these are concrete ramps and are not sloped as much as snowboarding. These are five to six feet at the tallest, slopes are much less and they don’t get the pushing area to go over the fence. She asked what age group would use this area? Mr. Harris replied typically the outdoor area is more of a peewee area. She asked what the gates are for? He said they were just for emergency egress and an alarm would sound if someone opened the gates.

Member Lorenzo asked Mr. Fisher if there was any kind of liability to the City in case of an accident or would Van’s be liable? Mr. Fisher said this is an area of the law that is

developing and he didn’t think, generally speaking, that traditionally or historically, municipalities have had liability in these kinds of situations. However, he could not absolutely say that in the future the law would not be modified or a new law would be made so the City would be totally immune. She asked if there was a movement towards municipalities becoming more liable in these situations? Mr. Fisher said actually there was a movement the other way in a sanitary sewer/ basement backup litigation where the Michigan Supreme Court held that a liability for a trespass nuisance was not proper loss and the only instance a municipality would be liable were those in which the legislature said they could be liable. At this point, he didn’t believe that this would be an instance in which the legislature had indicated that we have liability but it isn’t feasible that they wouldn’t say otherwise in the future. At this point, in order for there to be a liability we would have to know there would be a problem and give the approval. She was not guaranteed that people wouldn’t get over the fence and she didn’t know about the ramps and was concerned. She asked if the streets were all private streets? Mr. Fisher said within the development there are both public and private streets. Mr. Pearson said they were private in the service area.

Member Lorenzo said she would not support the project.

Member Landry commended the applicant for bringing in a recreational amenity to our youth and hoped they were very successful. He would have preferred an outdoor area so people could watch and be entertained by the kids.

Mr. Fisher commented he was certain there was no intent to create an impression to the contrary but he wanted to point out that the overhead showed the area in the northwest quadrant of Dixon Road and 12 Mile Road was C-1 and he believed it was residential with the prospect, depending on negotiations with Sandstone, that a portion of that could be utilized for C-1 type use.

Member Lorenzo said this is the only thing connected to SAD #155 that she would support because she felt the land use at this time made sense. She felt that at this point in time the community needed more Office to Residential particularly with the Sandstone development and others. We are gaining population faster than we are gaining a non-residential tax base. Given the changes that have occurred and the changes that might occur and the fact that Office had always been contemplated for the front portion of this is why she was in support of the land use. In terms of the Consent Judgment, she thought this was a better way to go because we are protecting your property more than they could have with a formal rezoning process. She would support the motion.

Mr. Fisher noted this is a situation that arises out of a rezoning from 1995. At that point in time, the matter which relates to the Marty Feldman Chevrolet, an existing dealership, had residential property behind it. Some of it is multiple residential and is a very substantial area behind the dealership and in connection with their desire to make improvements to the property, they need to put in rear doors to service vehicles coming in and out. When the matter was before the Planning Commission, they indicated that if this improvement was made, they wanted a substantial berm to protect the residential adjoining. When it came to Council, they proposed a different requirement that there not be overhead doors.

Mr. Fisher said the first question is whether you can have conditional zoning in the first place and without a development agreement of some sort, that is an issue. He didn’t need to give a legal opinion because he didn’t think he could give Council a firm and solid opinion. Beside that, there is always the possibility there would be litigation on this or some other case.

However, at this point Marty Feldman Chevrolet has come forward and are now willing, based on negotiations of the City and representatives of the adjoining residential, they are willing to put a ten foot berm behind their property. So you would have the improvement, then the ten-foot berm, and then 300 feet or more between the improvement and the residential. The adjoining residential property owners were satisfied with that. However, they did not want to move forward approving this and allowing the overhead doors in the back of the building without presenting this to this Council because it is basically Council’s condition.

Mr. Fisher felt there were three choices the City could follow:

1. Move forward, allowing the berm to be constructed as the buffer and Marty Feldman

took a very strong position that they needed the doors in the back.

2. Indicate to them we are not going to allow this to happen and rezone the property

back to when it started in 1995, which may or may not result in litigation.

3. For the Council to be proactive and initiate litigation on whether or not the conditions

that had been established were supportable and should be of help.

Mayor Clark asked why they need more doors? Mr. Fisher didn’t know but they pressed very hard on this and they are firm that they need the doors in those locations. Mayor Clark said it seemed that there were representations made when they were before the Planning Commission that if they were allowed the number of doors that they have now, that would be it and they wouldn’t be back for more. Mayor Clark wanted to hear their justification for more doors.

Larry White, General Manager of Marty Feldman Chevrolet, said the reason they could not do what was originally set forth was because of the zoning for the B-3 versus the P-1. In order to do it without additional doors to access it, they would be doubling the width of their current service facility. The purpose of doing it this way is by putting a buffer in along with an additional landscape buffer closer to the building to block the complete visibility of those doors to our neighbors. The doors are to access service bays. They are proposing to construct an addition that is only half the width of the current shop which meant there would be no way to create an aisle way to service those bays without bringing them in directly through bay doors. Mayor Clark asked how many additional service bays they were talking about? Mr. White said he believed there would be 8 additional bays for a total of 13.

Member Landry asked about the grassy area. Mr. Harris said it would be left about 300 feet once the berm was put in. The first buffer would be the berm with the proper amount of landscaping through pine trees, etc. and the second would be closer to the building so that when coming through Fountain Park Dr. no matter which direction, you wouldn’t be able to see the doors. There will be trees on top of a ten-foot berm and a berm. The majority of the landscaping is for the trees they would like to see on their neighbor’s side, which he believed would make them happy. They had also gone through preliminary plans to put in an additional buffer made up of evergreens, etc., to be sure those doors are blocked. Member Landry asked if they had a copy of the plans available. Representatives showed the plan to Council.

Mayor Pro Tem Bononi called for a point of order. She asked why we are relegated to a site plan review here when there isn’t an application process in place? She thought it would be better if Council members asked what is intended here.

Member Capello thought they had come through site plan review that had all been worked out five years ago.

James Doichman, representing Fountain Park, said originally in 1995, Feldman Chevrolet wanted to maximize the use of the site and requested relief so that they could build a retaining wall, have the berm run up to it and on top of it to protect kids they would put up a wrought iron fence. They would landscape the entire berm. Now, they don’t want the fence because they are back to the full berm, which would run 70 feet.

Member Csordas was confused as to why this was here? He asked the Building Departments and administration’s opinion of this. He said the process seems a little unclear to him. He didn’t think this should be here at this point.

Mayor Clark said this was here to provide staff, Marty Feldman and the residential units behind it some sense of direction as to where they were going with this. The next step is for them to come forward with a formal plan to be looked at in light of the representations made by the Fountain Park Representative and Marty Feldman.

Mr. Fisher said the key here is we have a condition to the rezoning that was imposed by Council that has some issue on its validity. We are not saying that it is invalid but we are saying that there is an issue and a question on the part of all of those involved as to whether or not it is enforceable. There was a desire on the part of staff and administration not to circumvent the condition that it was established by this Council for obvious reasons. So, the real issue before Council is whether or not, given the willingness to install the berm, there is nonetheless the strong position on the part of Council that they wish to also enforce the condition for the rezoning that there not be overhead doors to the rear.

Mayor Pro Tem Bononi asked had this matter been brought back with regard to a generic discussion of whether or not this City had the ability to condition a rezoning then she was with them up to that point. Can we, in Michigan, condition a rezoning? Mr. Fisher said there is no definitive law on the subject. She asked if the Council could vote to remove the conditions from that zoning action. He thought Council could vote on whether or not they desire to enforce that condition given the fact that there is an issue of its validity. She asked how they could remove those conditions from that zoning approval? Mr. Fisher said there is no express law that authorizes the condition in the first place so you would be voting to indicate that you are not willing to fight on this particular matter as to whether you had authority to impose the conditions. She was looking for a clean vehicle and status quo. Next, in the regular meeting of Council the last paragraph to the minutes it refers to the motion itself and said "Mayor McLallen said the motion is to grant the request from rezoning from RM-1 to PD-1." She asked where PD-1 came in here because if this was correct then we are talking about the ability to condition? She believed the applicant should be presenting this and paying the fee and then it is our job to answer that. She is very uncomfortable with this. Secondly, oftentimes applicants are victims of their own success and business people outgrow their sites. She believed they had to pay the fee and ask the question.

Mr. Fisher believed Marty Feldman would pay the fee and go to the Planning Commission but not to Council and it is really Council’s condition. She asked if it was advisable for them to remove that condition. Mr. Fisher thought it was advisable to either vote to remove the condition or grant staff the discretion to determine what was best for all property owners involved. She would not be looking for an administration resolution to come to Council but would expect it to come to Planning Commission. She did think that would be an administrative decision.

Member Capello asked since this was a rezoning and the rezoning was the B-3 with conditions, whether enforceable or not, wouldn’t it take another public hearing and rezoning to go from B-3 with conditions to B-3? Mr. Fisher said if you conclude or

assume that the condition is valid, there is no question that it would take a rezoning to change the original zoning. The point is that it is of questionable validity and if the site plan is denied based upon that condition, we are going to be defendants in a lawsuit. He questioned if that is really what the city wants?

Member Capello’s concern was in the event there are other properties out there that are rezoned with conditions, he wouldn’t want to set a precedent with this one to say that maybe it was unenforceable. He thought they could work through this with Marty Feldman and that all they wanted was to know what direction they have to take. He would suggest that they come to Council before they do their site plan from a rezoning from the B-3 with conditions to a straight B-3. That would make it clear and protect us with our other conditional zonings.

Member Lorenzo thought if they would have been asked a question as opposed to saying this was a policy discussion it would have made more sense. If we were asked to remove the condition, that’s one thing or if we are being asked not to assert our authority over the condition that is another issue. We are not being asked to make any decisive action tonight and that is the problem we are having here. We can’t remove the condition and the validity of the condition is being questioned but we can choose to not enforce the condition. Mr. Fisher said that was how he presented it to Council. Member Lorenzo said does Council want to enforce the condition based upon the circumstances at hand should have been the agenda item. Mr. Fisher said that was correct. She requested it be on the next Council agenda. Member Landry asked why they couldn’t vote to remove the condition. Mr. Fisher said if it were a valid condition it would be a part of the ordinance and it would have to be amended with another ordinance. Member Landry said then our choices are to vote whether to enforce it or send it back for rezoning. Mr. Fisher said yes. Member Landry said if they go back to the Planning Commission, they hold a public hearing, they make a recommendation and then it comes back to Council. He would not be in favor of voting to not enforce a condition, which means the applicant will have to go back to the Planning Commission.

Mayor Pro Tem Bononi asked Mr. Fisher that in the event a property ownership changes before or after the improvements are made, then what are our concerns. Mr. Fisher said they would need to insure there would be an enforceable method of making sure the berm was there, maintained and was permanent. If Council determined not to enforce the condition for this particular owner for this particular development, a time limit could be put on as well. Her concern was with property ownerships changing, opinions could change, a neighbor who wouldn’t be thrilled anymore and the non-enforceability part concerned her. She thought it was more and more looking at Mr. Capello’s B-3. Member Capello agreed with Member Landry and said the Planning Commission is its own body and didn’t have to listen. He commented, on behalf of the body without taking action, he thought if they came back with the rezoning to remove the condition they would probably be treated favorably.

Mr. McCusker said they would continue to work on the design of the Cranbrooke and Ten Mile intersection. Nancy McClain has looked at it this last week and there is opportunity for further improvements and he hoped it would be a wash in terms of cost, less concrete and more sod.

CONSENT AGENDA REMOVALS FOR COUNCIL ACTION: (Consent Agenda items, which have been removed for discussion and/or action)

Member Capello asked that this be removed because the second lowest bidder at $200 more was McNish Sporting Goods. He said McNish is a local business, paid taxes and he didn’t see why, for $200, we didn’t give them some business back.

Member Csordas asked if any of the other companies were Novi companies? Mr. Fisher said rather than using a local preference, as a basis is to put this back and determine who is the lowest qualified bidder, which is where you want to go with it. Mayor Clark thought a bad precedent would be set and one that would be subject to challenge. Member Capello amended his motion and added "because their delivery date is immediately as opposed to two weeks for delivery".

Kevin Brady, 21455 Cranbrooke, thanked the staff for their quick response about why so much of the boulevard was being moved. Mr. Brady spoke with Mr. Pearson, Mr. McCusker and Nancy McClain and appreciated the staff for listening, being accessible, and open to ideas. He was appreciative of the way they treated him and this whole issue and commented that it was a strong example of good government.

1. Letter from George Krieger Re: Library Board.

2. Letter from David Ingmire, Re: Complaints to City departments

There being no further business to come before Council, the meeting was adjourned at

10:06 PM.

________________________________ _______________________________

Richard J. Clark, Mayor Maryanne Cornelius, City Clerk

Transcribed by:_________________________

Charlene McLean

Date approved: May 6, 2002