December 7, 1998

A regular meeting of the City Council was held on Monday, December 7, 1998, at 7:30 p.m. in the Council Chambers of City Hall. Mayor Black presided. The Pledge of Allegiance to the Flag was recited in unison.

Councilmen present: Drummond Black, John Coppage, John Moolenaar, John Tysse

Councilmen absent: Marty Wazbinski (excused)

 

Minutes Approval of the minutes of the November 23, 1998 regular meeting was offered by Councilman Coppage and seconded by Councilman Moolenaar. (Motion adopted.)

Comprehensive Review of Sanitary & Storm Sewer Systems Ordinance   Noel Bush, Director of Utilities, presented information on a  proposed ordinance that would allow staff to conduct a comprehensive review of the sanitary and storm sewer systems every five years in connection with the renewal of the National Pollution Discharge Elimination System Permit. Introduction and first reading of the following ordinance was then offered by Councilman Moolenaar and seconded by Councilman Coppage:

ORDINANCE NO. __________

AN ORDINANCE TO AMEND THE CODE OF ORDINANCES, CITY OF MIDLAND, MICHIGAN, BY ADDING A NEW SECTION WHICH NEW SECTION SHALL BE DESIGNATED AS SECTION 28-130 OF CHAPTER 28 THEREOF.

The City of Midland Ordains:

Section 2. This ordinance shall become effective upon publication. (Motion adopted. Considered first reading.)

PUBLIC COMMENTS:

Charles Hepenstal, 1317 North Parkway, opposed the use of a consent agenda for non-routine items. Mr. Hepenstal specifically complained about the placement of agenda item number 10, an agreement with the Bureau of Aeronautics and item number 15a, authorizing payment for contracted legal services. Mr. Hepenstal did not consider these items to be of a routine nature. Upon his request Council removed item number 10 and 15a from the consent agenda.

Dorothy Lengerman, 405 E. Nelson, commented on the recent MDEQ moratorium and the release of the same moratorium regarding additional connections to the sanitary sewer system. Ms. Lengerman felt the DEQ should not have to declare a moratorium and the City should be able to make the decision on a moratorium of sanitary sewer connections on its own. Ms. Lengerman also felt the City should present the "Sensible Sewer Plan" to the DEQ now.

Mayor Black indicated Council would schedule a special meeting on Monday, December 14, 1998, at 7:00 p.m. to discuss the sewer system.

Site Plan No. 170 James Schroeder, Director of Planning and Community Development, presented information to Council on the request from Letavis Soft Cloth Car Wash to approve Site Plan No. 170. Richard Fosgitt, 5700 Bloomfield, working with Letavis Soft Cloth Car Wash, stated he reconfigured the site by moving the entrance to increase site distance. This reconfiguration does not impact circulation issues. The company also will be putting up an 8’ fence as a buffer. James Branson, 207 Dartmouth Drive, an attorney representing residents of Sylvan Pines, opposed approval of the site plan, citing traffic safety issues. Rob Bankcroft, attorney for Letavis, urged Council to approve this site plan since Letavis has met all requirements. Natalie Brown, 4950 Grandview Circle, Jack McKelvey, 4929 Grandview Circle and Jack VanArsdale, 5111 Grandview Circle, all spoke in opposition to the approval of the site plan for Letavis Soft Cloth Car Wash.

Councilman Tysse stated that Letavis, as requested, submitted information on the type of equipment they intended to use and also was prepared to place an 8’ fence as a barrier between the condominiums and the car wash.

Councilman Coppage believed the safety concerns in this area were no different than other safety concerns along Saginaw Road. Robert Messler, 1401 Pheasant Ridge, questioned the current zoning and wondered if an error had been made on the zoning. Veronica Rogers, 4948 Grandview Circle, opposed the site plan, citing safety reasons. Rob Bankcroft, attorney for Letavis, stated the "B-2 Zoning" pre-dates residential zoning around this property. James Schroeder, Director of Planning and Community Development, stated that rezoning was not considered.

Councilman Moolenaar felt that residents had a good point about safety concerns. He stated he was uncomfortable with traffic congestion in this area.

Councilman Coppage stated the developer met the requirements regarding safety issues, now it’s the City’s turn to look at the area.

Councilman Tysse stated concerns about the noise were valid and he was glad to hear the developer was willing to work on the noise issue. He felt this area was no different than any other Saginaw Road location and could not find a solid reason to say no.

Mayor Black agreed that traffic is a paramount issue and indicated the area could not be rezoned with pending applications. He commented if the City consultant had told us this was a dangerous situation, he would vote against the site plan.

Councilman Moolenaar commented if this was 40 years ago and it was suitable for a car wash then look at the differences now, adding this to the area would just add more chaos.

Mayor Black stated it is a street problem and the consultants have not told us it is dangerous.

The following resolution was then offered by Councilman Coppage and seconded by Councilman Tysse:

WHEREAS, the City Council has received the recommendation of the City Planning Commission for approval of Site Plan No. 170, the request of Ayres Associates, on behalf of Letavis Enterprises, for site plan review and approval of Letavis Soft Cloth Car Wash and Fast Eddie’s Oil Change, a commercial building of 9,300 square feet on 1.63 acres on the north side of North Saginaw Road east of Eastman Avenue; and

WHEREAS, the City Council has reviewed the proposed Site Plan No. 170, in accord with the provisions set forth in Sections 25.3 and 25.4 of the Zoning Ordinance of the City of Midland; now therefore

RESOLVED, that the City Council does hereby approve Site Plan No. 170, in accord with the drawing dated as received September 24, 1998. (Motion adopted. Yeas: Black, Coppage, Tysse Nays: Moolenaar)

TCO P-98-09 Martin McGuire, Director of Public Services, presented information regarding Traffic Control Order No. P-98-09.  This traffic control order prohibits parking on the south side of East Collins Street from 7:30 a.m. to 4:00 p.m. Monday through Friday. Christopher Collins, 221 E. Collins, thanked the City for allowing citizen input and stated he and his wife supported the recommendations as presented. Lecia L. Porter, 201 E. Collins, stated she was happy with the City’s recommendation not to widen the street, however, she was not happy with the traffic control order as presented. Ms. Porter would like to see the speed limit changed to a lower limit, or possibly block off Collins Street from Ashman or Rodd or block off George Street or place a traffic light at Rodd and Collins. The following resolution was then offered by Councilman Coppage and seconded by Councilman Tysse:

RESOLVED, that Traffic Control Order No. P-98-09 filed October 5, 1998 pursuant to Chapter 24 of the Code of Ordinances to establish traffic control as follows:

Be modified to change the ending time from 4:30 p.m. to 4:00 p.m. and is hereby made permanent. (Motion adopted.)

Zoning Petition No. 435 James Schroeder, Director of Planning and Community Development, presented information regarding Zoning Petition No. 435. The petition will rezone 4.00 acres located northwest of the intersection of Joe Mann Boulevard and Eastman Avenue from Community to Business B-2. (A public hearing was held on October 19, 1998 and action was postponed until December 7, 1998 for input from the Planning Commission). Greg White, 4703 Autumn Ridge Circle, requested Council support the request for rezoning. Councilman Coppage, seconded by Councilman Moolenaar, moved the following resolution to postpone action on Zoning Petition No. 435 until December 14, 1998, to allow the Planning Commission time to amend the land use part of the Master Plan to indicate General Commercial:

RESOLVED, that action on Zoning Petition No. 435 - rezone 4.00 acres located northwest of the intersection of Joe Mann Boulevard and Eastman Avenue from Community to Business B-2 is hereby postponed until December 14, 1998. (Motion adopted.)

 

Gift from the Midland Foundation - Senior Housing Carports     The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, the Midland Foundation has donated $340,000.00 to the City of Midland; and

WHEREAS, this donation is to be used for the construction of carports at Washington Woods and Riverside Place and the installation of security cameras at Riverside Place; now therefore

RESOLVED, that the City Council accepts this donation of $340,000.00 from the Midland Foundation; and

RESOLVED FURTHER, that the Council expresses its appreciation to the Midland Foundation for its generous donation in support of senior housing. (Motion adopted.)

Final Plat - Hillside Subdivision James Schroeder, Director of Planning and Community Development, presented information on the final plat for Hillside Subdivision. The following resolution was then offered by Councilman Tysse and seconded by Councilman Coppage:

WHEREAS, the Final Plat of Hillside Subdivision is in conformance with the approved Preliminary Plat, and all requirements of Chapter 23 of the Code of Ordinances of the City of Midland have been met; now therefore

RESOLVED, that the City Council does hereby approve the Final Plat of Hillside Subdivision, in accord with Section 23-18 of the Code of Ordinances of the City of Midland; and

RESOLVED FURTHER, that in accord with Section 23-80 of the Code of Ordinances of the City of Midland, a variance is granted from Section 23-73 as it pertains to a contract between the proprietor and the City of Midland to insure installation of all required improvements, as the City of Midland is the proprietor of said subdivision, and based on the determination that the granting of the variance will not be detrimental to the public welfare or injurious to other property in the area in which said property is located; and

RESOLVED FURTHER, that the City Clerk is hereby authorized to execute the said record plat on behalf of the City. (Motion adopted.)

House Bill 4932 The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, funds distributed to the City of Midland from the Michigan transportation fund for expenditure on the City's major street system cannot be used on the local street system in an amount greater than 25% of the annual amount returned to the City from the state except in an emergency situation where an additional 15% may be expended on the local street system provided that prior approval is given by the state transportation department; and

WHEREAS, this restriction can result in those streets most needing repair not being given priority attention; and

WHEREAS, HB 4932 would maintain the existing priority on the major street system and remove the 25% and the additional 15% restrictions on the use of major street fund money on the local street system conditioned upon adoption of a City Council resolution with a copy to the Michigan transportation department setting forth all of the following:

  1. A list of the major streets in the City
  2. A statement that the City of Midland is adequately maintaining its major streets
  3. The dollar amount of the transfer
  4. The local streets to be funded with the transfer

; now therefore

RESOLVED, that the City Council hereby expresses its endorsement of HB 4932 and urges Senator Bill Schuette and Representative Jim McNutt to support this legislation; and

RESOLVED FURTHER, that the City Clerk is hereby authorized and instructed to send a certified copy of this resolution to Senator Schuette and Representative McNutt. (Motion adopted.)

 

Washington Woods Re-lighting Resolution Amendment The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, bids were received for re-lighting the common areas of Washington Woods; and

WHEREAS, funds are available in the 1998-99 budget, account number 536-9120-912.97.20; and

WHEREAS, Blasy Electric has submitted the low bid of $28,330.00; and

WHEREAS, a resolution approved on November 23, 1998, accepted a proposal from Blasy Electric for this work in the incorrect amount of $18,330.00; now therefore

RESOLVED, that the November 23, 1998, resolution accepting the proposal of Blasy Electric is hereby rescinded; and

RESOLVED FURTHER, that the proposal of Blasy Electric is hereby accepted in the amount of $28,330.00, and the Purchasing Agent is authorized to issue a purchase order; and

RESOLVED FURTHER, that the City Manager has the authority to approve any change orders modifying this contract in an amount up to $5,000.00. (Motion adopted.)

Agreement - Replacement Fuel Tank at Barstow Airport     Jerry Hammond, City Engineer, presented information on an agreement with the Bureau of Aeronautics for the installation of a replacement fuel tank at Barstow Airport. Wilma Diesen, 5802 Flaxmoor, felt the contract was much more restrictive than previous contracts and urged Council to postpone action on the agreement until more information could be gathered. Charles Hepenstal, 1317 North Parkway, agreed with Mrs. Diesen. He was unclear why tanks were necessary. He questioned whether it is worth it for us to buy tanks ourselves rather than go through the State with restrictions placed on us. If a fixed operator has tanks, why do we need tanks, we should examine turning this over to the fixed base operator. Councilman Coppage, seconded by Councilman Moolenaar, moved the following resolution to postpone action on an agreement with the Bureau of Aeronautics for a replacement fuel tank until January 11, 1998:

RESOLVED, that action on an agreement with the Bureau of Aeronautics for the installation of a replacement fuel tank at Barstow Airport is hereby postponed until January 11, 1999. (Motion adopted.)

 

Payment to MDOT for US-10/Bay City Road Interchange     Jack Duso, Assistant City Manager, presented information on MDOT Contract No. 95-0352 to construct certain improvements at the US-10/Bay City Road interchange. Per the contract, the City is to pay all costs and expenses related to the acquisition of the property necessary for the construction of the improvements anticipated by the contract. The City has received an invoice from MDOT in the amount of $1,160,385 for costs associated with the acquisition. The following resolution was then offered by Councilman Moolenaar and seconded by Councilman Coppage:

WHEREAS, an Agreement between the City of Midland and the Michigan Department of Transportation was approved on February 5, 1996 which requires the City to be responsible for all costs associated with the acquisition of right of way necessary for the construction of the improvements to the US-10/Bay City Road interchange; and

WHEREAS, the City has received an invoice from MDOT in the amount of $1,160,385 which must be paid by MDOT as a requirement of the condemnation process for the balance of parcels necessary for right of way for this project; now therefore

RESOLVED, that in accord with said agreement between the City of Midland and the Michigan Department of Transportation (MDOT Contract 95-0352), the Director of Fiscal Services is hereby authorized to issue payment in the invoiced amount of $1,160,385 to the Michigan Department of Transportation, said payment to be made from Road Millage revenue located in the Major Streets Construction Fund. (Motion adopted.)

Sewer Cleaning Truck The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, sealed proposals have been advertised and received in accord with Article II, Chapter 2 of the Midland Code of Ordinances for the purchase of a replacement sewer cleaning truck for the Wastewater Treatment Department; and

WHEREAS, funding is provided in the Wastewater Treatment Capital Outlay Account; now therefore

RESOLVED, that the lowest sealed proposal submitted by Burke Equipment Company in the amount of $167,914.00 is hereby accepted and a purchase order is authorized. (Motion adopted.)

Phone MI Telecommunications License Agreement The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, the City of Midland ("CITY") and BRE Communications, Inc., a Michigan Corporation, entered into a Telecommunications License Agreement ("Agreement") dated August 24, 1997, whereby BRE Communications, Inc. agreed to pay Municipality a fee for access to the City’s right-of-ways; and

WHEREAS, BRE Communications, Inc. has changed its corporate structure to a Limited Liability Company (L.L.C.) and is now known as BRE Communications, L.L.C., a Michigan Limited Liability Company; and

WHEREAS, BRE Communications, Inc. desires to assign its interest under the Agreement to BRE Communications, L.L.C. ("BRE"); and

WHEREAS, the City agrees that this assignment is appropriate; and

WHEREAS, paragraph 1(A)(6) of the Agreement states: "In the event that a public or private non-profit educational facility requests BRE install and maintain fiber optic strands for use by the educational facility, and BRE agrees to install and maintain said fiber optic strands for the educational facility, BRE and Municipality agree that this License Agreement shall be amended to accommodate such use."; and

WHEREAS, the Midland Public Schools ("MPS") has contracted with BRE to build a condominium fiber network ("Network"), which Network shall consist of cables, some of which contain fibers owned entirely by MPS, and others which will contain fibers owned separately by MPS and by BRE, with each party responsible for their own expenses and costs; and

WHEREAS, the City supports MPS’s efforts to provide the schools with low cost, high quality telecommunications services, and understands the importance of the condominium project in the achievement of this goal; and

WHEREAS, the City desires to waive the right-of-way fee that would be paid pursuant to paragraph 11 on that portion of the fiber footage owned by MPS; and

WHEREAS, three subparagraphs, agreed to between the parties during the negotiation of the Agreement, were inadvertently omitted from the final document executed by the parties; and

WHEREAS, it was the parties’ intent that these paragraphs be included in the final agreement; now therefore

RESOLVED, that the First Amendment to the Telecommunications License Agreement is approved; and

RESOLVED FURTHER, that the Mayor and the City Clerk are authorized to execute the Agreement. (Motion adopted.)

 

Natural Gas Pipeline Franchise Agreement Patti Halm, City Attorney, presented information on a Natural Gas Pipeline Franchise Agreement with Mercury Exploration Company. This agreement would authorized Mercury Exploration Company to utilize the public right-of-ways to transport natural gas to The Dow Chemical Company and the Midland Cogeneration Venture. Councilman Tysse, a recent retiree of The Dow Chemical Company, requested that he be allowed to abstain from voting on this issue. Council unanimously agreed to the abstention. The following resolution was then offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, the City of Midland has recently been contacted by a representative of Mercury Exploration Company, a Texas Corporation ("Mercury"); and

WHEREAS, Mercury is in the process of acquiring from The Dow Chemical Company an existing natural gas pipeline known as the Beaver Creek Pipeline and intends to expand the existing pipeline elsewhere within the City; and

WHEREAS, Mercury intends to utilize the pipeline system to transport natural gas to The Dow Chemical Company and to the Midland Cogeneration Venture; and

WHEREAS, pursuant to Public Act 69 of 1929 of the State of Michigan, being MCL 460.501, et seq, Mercury must obtain a "certificate of public convenience and necessity" from the Michigan Public Service Commission ("MPSC") before it can provide this service; and

WHEREAS, pursuant to Section 3 of said Act, before Mercury may file an application for this certificate with the MPSC, Mercury must first obtain from the City either its consent or a franchise that authorizes Mercury to transact business within the City; and

WHEREAS, the City is willing to permit Mercury to transact a natural gas pipeline business in the City and to permit Mercury to construct, use and maintain the pipeline within the City’s public right-of-ways; now therefore

RESOLVED, that the City of Midland gives its consent to Mercury Exploration Company, a Texas corporation, pursuant to Section 3 of Public Act 69 of 1929, for the purpose of allowing Mercury to conduct the local business of transporting natural gas to The Dow Chemical Company and to the Midland Cogeneration Venture; and

FURTHER RESOLVED, that the Mayor and the City Clerk are authorized to execute the attached Natural Gas Pipeline Franchise Agreement. (Motion adopted. Yeas: Black, Coppage, Moolenaar Nays: None Abstained: Tysse)

 

Legal Services - US-10/Bay City Road Interchange Project Patti Halm, City Attorney, presented information on the invoice for legal services from Miller, Canfield, Paddock & Stone relating to the Bay City Road Interchange project. Charles Hepenstal, 1317 North Parkway, felt the City was spending an exorbitant amount of money on legal fees and the City could hire an attorney for $150,000 to work in-house on these projects. Mayor Black indicated that legal fees were paid to firms that had several attorneys working on cases together and it is not feasible for the City to have the needed counsel in-house to work on these cases. The following resolution was then offered by Councilman Tysse and seconded by Councilman Coppage:

WHEREAS, the City of Midland has entered into an agreement with the Michigan Department of Transportation to construct a full interchange at the intersection of Bay City Road and US 10; and

WHEREAS, the services of the law firm of Miller, Canfield, Paddock and Stone have been retained to assist the City of Midland with its efforts in the acquisition and condemnation phases of this endeavor; and

WHEREAS, on August 11, 1997, Council authorized payments to Miller Canfield for the aforementioned services in a total amount not to exceed $100,000.00; and

WHEREAS, on May 11, 1998, Council authorized payments to Miller Canfield for the aforementioned services in a total amount not to exceed $200,000.00; and

WHEREAS, the cost of continuing said services is expected to exceed the previously approved amount and therefore approval of the City Council is required under Section 2-18 of the Code of Ordinances; and

WHEREAS, said services are hereby determined to be professional services within the meaning of Section 2-19 of the Code of Ordinances and do not require sealed proposals; now therefore

RESOLVED, that payment to the law firm of Miller, Canfield, Paddock and Stone for continued legal services in the matter of the aforementioned Bay City Road/US 10 Interchange is hereby authorized in a total amount not to exceed $309,000 for the acquisition activities phase. (Motion adopted.)

 

Appraisal Service - Related to MCV Assessment Appeal     The following resolution was offered by Councilman Coppage and seconded by Councilman Moolenaar:

WHEREAS, the Midland Cogeneration Venture (MCV) has appealed to the Michigan Tax Tribunal the 1997 and 1998 assessments and taxable values of certain property it owns located in the City of Midland; and

WHEREAS, the appraisal firm of George E. Sansoucy, P.E., has been utilized in assisting the City of Midland in its defense of said appeal; and

WHEREAS, on July 13, 1998, payments to Mr. Sansoucy for appraisal services in said appeal were authorized in an amount not to exceed $100,000; and

WHEREAS, to complete his appraisal of MCV, the cost of Mr. Sansoucy’s services will exceed $100,000.00 and therefore approval of payments to Mr. Sansoucy requires approval by the City Council under Section 2-18 of the Code of Ordinances; and

WHEREAS, a total of $70,000 has been appropriated to date for this purpose in the 1997-98 and 1998-99 fiscal years; and

WHEREAS, supplemental funding is available for this purpose in the Revaluation project account in the Special Construction Fund (representing the balance remaining from revenue received from the 1997-98 one-percent tax administration fee) and in the Revaluation account in the 1998-99 General Fund budget for Public Improvements; and

WHEREAS, said services are hereby determined to be professional services within the meaning of Section 2-19 of the Code of Ordinances and do not require sealed proposals; now therefore

RESOLVED, that payments to the appraisal firm of George E. Sansoucy, P.E. for its assistance in connection with the aforementioned appeal are hereby authorized in an amount not to exceed $250,000.00; and

RESOLVED FURTHER, that the Director of Fiscal Services is hereby authorized to transfer a total of $180,000 to the MCV Tax Appeal Activity in the General Fund from the following sources: $137,180 from the Revaluation project account in the Special Construction Fund and $42,820 from the Revaluation account in the 1998-99 General Fund budget for Public Improvements. (Motion adopted.)

 

Quitclaim Deed & Easement - Eastman Ten Development LLC     Patti Halm, City Attorney, presented information on a quitclaim deed to Eastman Ten Development LLC conveying a 22.76’ wide by 200’ long strip of land located perpendicular to Eastman Road and the acceptance of a Grant of Easement for water and sewer purposes from Eastman Ten Development LLC for property located west of Eastman Road and running perpendicular to Airport Road. The following resolution was then offered by Councilman Tysse and seconded by Councilman Coppage:

WHEREAS, a lawsuit was filed in the Midland County Circuit Court against the City of Midland by the Jerome C. Kole Living Trust, said lawsuit being known as Jerome C. Kole Living Trust v City of Midland, 95-4781-CH-L; and

WHEREAS, in settlement of that case, the City of Midland shall quitclaim a certain parcel of property it owns located north of Airport Road and running perpendicular to Eastman Road, said parcel being 22.76’ wide by 200’ long, while retaining an easement for water and sewer purposes; and

WHEREAS, in exchange, Eastman Ten Development, LLC, shall grant the City an easement for water and sewer purposes on and through property it owns located west of Eastman Road and running perpendicular to Airport Road; now therefore

RESOLVED, that the Mayor and the City Clerk are authorized to execute the attached Quitclaim Deed on behalf of the City of Midland; and

RESOLVED FURTHER, that the City of Midland accepts the Grant of Easement from Eastman Ten Development, LLC. upon execution of said document. (Motion adopted.)

 

Being no further business the meeting adjourned at 10:41 p.m.

 

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Penny K. Kovacevich, City Clerk