September 14, 2020 City Council Meeting (held virtually)

 

Note: links to the video recording and the council packet can be found at the bottom of this post. Please note any errors or omissions in the comments. Anything noted between brackets was inserted by Clarkston Sunshine.

Meeting:

City Manager Jonathan Smith welcomed everyone to the meeting and reviewed the rules for virtual meetings as they were presented on screen.

Agenda Item #1, Call to Order (Video time mark 0:01:15):

Meeting called to order by Haven.

Agenda Item #2, Pledge of Allegiance (Video time mark 0:01:19):

Pledge of Allegiance said.

Agenda Item #3, Roll Call (Video time mark 0:01:42):

Eric Haven, Al Avery, Ed Bonser, Jason Kniesc, Joe Luginski, and Sue Wylie were present. Gary Casey was absent.

Agenda Item #4, Motion: Approval of Agenda (Video time mark 0:2:41):

Motion to approve agenda passed unanimously.

Agenda Item #5, Public Comments (Video time mark 0:03:32):

Chet Pardee:

• • The city hasn’t amended the current budget before seeking spending approval as required by Michigan law. The city manager proposed – and the council approved – $32,000 in spending even though the Department 44 budget was assigned $27,000. This is not a good example for new council members.
  • Our city officials and current HDC members committed to historic preservation but are more focused on railings on four Miller Street homes rather than preserving two historically relevant homes on North Main street that are deteriorating and have visible external damage. The owners haven’t sought HDC concurrence for exterior repairs. There are eleven entries on the city attorney’s September 1^st invoice relating to Miller Street railing issues.
  • The owners of the Millpond Inn listed their property for sale as a turnkey business.
  • Pardee wondered if the zoning records are correct for the 148 N. Main former muffler shop. The May 2014 city council minutes note the change from R1 to DC is conditional on the final site plan approval that never occurred. The current Master Plan’s 2017 existing land use map shows village commercial for 148 N. Main, and the current January 2019 Master Plan map shows the future land use as a single family suburban density residential. Pardee was not sure how this could occur without remediation of the contamination plume and subsequent removal of the MDOT excavation restricted markers. Thirteen of the eighteen documents withheld in the Bisio FOIA request involve stormwater issues at 148 N. Main. Hubbell, Roth & Clark has engineering knowledge of some of the withheld documents. This could shed light on the Clarkston and Oakland County Road Commission cost and repair risk of the Clarkston Road surface repair and stormwater drainage.

Wylie noted that Pardee has brought up the deteriorating homes on Main Street several times and wanted to know if the houses he’d mentioned were those that he’s addressed in previous meetings. Pardee said yes, and Smith has been involved in code enforcement on two others, but his concern is these two specific structures. Wylie asked Smith if there was anything that the Historic District Commission (HDC) could do to get the homes back into shape, because it seems that the HDC’s responsibility should include deterioration that detracts from the value of the homes in the historic district.

Smith agreed that it should be a focus and noted that Pardee raised the issue at last week’s HDC meeting. Smith said that notices have gone out to all five homeowners who have started work. Some of the homeowners have financial issues that are limiting the amount of work they can pay for. The HDC is aware of the demolition by neglect issue and has discussed this frequently. Pardee was concerned that exterior remediation and painting will not occur before winter begins.

Wylie asked Smith if he thought that the HDC was following up on Pardee’s concerns. Maybe the owners don’t know that they have to get permission to do repairs before they paint. City Attorney Tom Ryan said that no HDC approval is needed for ordinary maintenance, such as repainting and repairs. Smith said that he would follow up, but if the owners are making major changes that need HDC approval, that will slow things down. Pardee noted that HDC member Jennifer Radcliffe said that window framing repair would be involved in one of the homes.

Ryan said he believed that the HDC was satisfied that Smith was on top of the issue and that things will get done expeditiously. The HDC is meeting on the 14^th of next month and this is on their radar. Pardee wants to invite HDC Chair Jim Meloche to walk with him and said that Smith is welcome to join. Smith agreed to come.

Clerk Jennifer Speagle read Michael Fetzer’s public comments. Fetzer wanted to know what action the city has undertaken to ensure the safety and inspection of the Mill Pond dam; how often is the dam inspected and by whom; whether the dam owner has been requested or required by the city to show proof of insurance to the city for any dam failure; and whether the city formulated and communicated a policy concerning the city’s expectations for dam maintenance and inspection to the water resources commission.

Smith said that there was one more public comment from Cory Johnston, but the comments were seven pages long and can’t be read aloud within three minutes. Smith wanted to recognize that Johnston sent in his comments but he wasn’t sure what the council wanted to do with them because they are lengthy. Wylie said that Johnston discussed the city manager’s report as his first issue, and perhaps Smith could talk about these things when we get to the city manager’s report. Smith agreed.

Maria Zwiernik wanted to follow up regarding the passage of people onto Middle Lake from White Lake Road. She’d emailed and spoken with Wylie about it, but the conversation was tabled pending the receipt of further information from the city’s attorney. Wylie noted that it was on the agenda tonight and the rules required that public comments be limited to things that are not on the agenda. Zwiernik said that she would stay on the line until the issue came up on the agenda. Haven noted that it is Item 9d.

No additional public comments.

Agenda Item #6, FYI (Video time mark N/A):

There was no reference to FYI during the meeting. The discussion moved directly from public comments to agenda item #7.

Agenda Item #7, City Manager Report (Video time mark 0:19:36, page 3/65 of the council packet):

Haven suggested that Smith respond to Johnston’s comments.

Smith believed that the comments related to his project list, but before discussing the project list, Smith wanted to point out that this Saturday is the Depot Park Clean Up Day with the help of the Clinton River Watershed Council. We need volunteers for several projects from 9:00-12:00 this Saturday.

With regard to Johnston’s comments, Smith noted that he provided a fairly complete list of projects that he has underway in his report, which is  something he hasn’t done in the past. Smith said that he would comment on the projects that Johnston mentioned:

• • Item #5 [regarding the City Hall rear storage area] – Johnston wanted to know if this will include screening the trash dumpster that existed at one time and is required by the city’s zoning ordinance. Smith said that they are putting a fence around the area to shield the appearance, but the screening is not included in the fence quote. A fence around the dumpster has been problematic because trucks hit the enclosure. However, it’s something we should do because of the ordinance. Smith said he would add it to the quote for the rear storage area.
  • Item #6 [East Alley storm drain repair] – the preparation of specifications and cost estimates were part of the original work that was authorized by council. Hubbell, Roth & Clark hasn’t provided an invoice for some time, so the scope of their work as well as what is happening in the East Alley remains unknown. Smith thought he made it clear that we are obtaining quotes and writing specifications for repairing the alley drain even though it’s not all on city property. This was not part of the original survey work. Hubbell, Roth & Clark knows that Smith has a limit on the amount of work they are allowed to do without previous approval from Smith. They haven’t notified him, so he assumes that this is within their normal cost allowance.
  • Item #12 [tree trimming and removal] – the trees will be trimmed above the sidewalks and streets as required by the city’s ordinance and other criteria. Some are quite low, and the winter snow will make them lower. This is part of the fall project that they are working on. They have a list prepared and will go through the city and do the tree trimming. Jimi [Turner] started on some of the low hanging tree work last week, and they will continue with the man lift; Smith will ride with Jimi.
  • Item #15 [deteriorated split-rail fence on Waldon] – Johnston is not sure why this is a city responsibility, but the HDC seems to be quite concerned about the fence. Johnston wanted to know if the HDC should be reviewing any existing or proposed fence work. Smith said that this is a damaged split rail fence that would be replaced with a like-for-like split rail fence, so Smith hadn’t planned on taking this to the HDC. It’s a decorative fence, but it also keeps people from falling into the Clinton River as it crosses under Waldon Road.
  • Item #18 [sidewalk flag replacements] – there will be a prioritization of work in view of the Americans with Disabilities Act (ADA), ordinances, and state and federal law. There has never been a full assessment. All proposed work was not completed two years ago when it was last funded. That work went 50% over budget, and there are numerous ADA and ordinance deficiencies throughout the city. There are probably not enough funds to do all the work so they should be assessed for priority. Smith said we will make a list of slabs to be replaced as we have done before, recognizing that we have a budget constraint. The reason it went over budget last time is because we did more work than planned. It’s an easy trap to fall into – the contractor says “I’m here, this slab is dangerous, should we replace this one too,” etc. Going forward, Smith will adhere to the budget no matter what. It’s difficult to get concrete contractors now, and it’s doubtful that work will be done this fall. Smith is working on it.

Johnston noted that the city clock was mentioned in past reports but was not listed in this report. Smith said that he’s mentioned replacing the city clock with an electrified movement several times, but he’s heard feedback that this is one of the council’s lowest priorities. Smith has the estimates ready to go in his files.

No further comments.

Agenda Item #8, Motion: Acceptance of the Consent Agenda As Presented (Video time mark 0:28:22)

• • 8/10/20 Final Minutes (page 6/65 of the council packet)
  • 8/24/20 Draft Minutes (page 8/65 of the council packet)
  • Treasurer’s Report for City Council Meeting (page 10/65 of the council packet)
  • Check Disbursement Report, 8/1/2020-8/31/2020 (page 11/65 of the council packet)
  • Carlisle Wortman invoices for August 2020 (page 20/65 of the council packet)
  • Thomas J. Ryan, P.C. invoices for August 2020 (page 23/65 of the council packet)
  • ASI Signage Innovations invoice (page 27/65 of the council packet)
  • Concrete construction invoice (illegible vendor name) (page 28/65 of the council packet)
  • Radarsign, LLC invoice (page 30/65 of the council packet)

Wylie said that Johnston had mentioned Ryan’s billings in his letter. On August 10^th, Ryan charged three hours of time ($285), but the minutes said that the meeting was only 56 minutes long. On August 24^th, Ryan also charged three hours of time ($285), but the minutes say that the meeting was only one hour and 55 minutes long. Why is there a discrepancy?

Ryan said that he’s always charged three hours of time for nighttime council meetings, including virtual meetings. If the council would like him to change that practice during COVID, he would be happy to do so. It’s a nighttime commitment, and he’s charged three hours since 1992. No one has complained before.

Wylie said that perhaps no one had ever looked before. She asked about meeting preparation, and Ryan said he charges one-half hour to review the agenda. Wylie said she couldn’t see why we should pay for three hours of time when the meeting lasted less than an hour. She believed that we should be charged for the actual amount of time, at least as it concerns attendance at virtual meetings.

Haven asked if there is a different schedule for evening versus daytime work. Ryan said that he hasn’t changed his rate since 1995 and doesn’t plan to do so. This charge has been on every bill since he started representing the city, no one has ever said anything before, but he acknowledged that he serves at the council’s pleasure. If the council wants him to change it, he would be happy to have a discussion. There have been meetings that have lasted four hours with travel time, and he has always charged for three hours because of the nighttime commitment. He’s not hiding anything. Haven noted that this has been public information all along.

Kniesc asked about the four-hour meetings for which Ryan had only charged for three hours. Ryan said that there are a few of those, but it was up to council regarding what to do for virtual meetings.

Haven said that he heard no request for a change. Wylie said that she was asking for a change with regard to virtual meetings. We should be charged for the amount of the meeting, even though sometimes in-person meetings can last longer. Wylie said she would be happy to move this discussion to another meeting, and Haven agreed that would be a good idea.

Avery said that since Ryan has been doing this consistently no matter how long the meeting lasted, perhaps we should formalize the three-hour charge. Haven said that Ryan’s rate is exceedingly reasonable, and three hours is acceptable.

Kniesc understands that it’s virtual, but we don’t pay teachers less for virtual teaching. Wylie noted that she is a retired teacher, the city is already paying Ryan a half an hour to prepare for the meeting, but as Haven suggested, we can talk about this at another meeting.

Wylie said she had another comment about the legal billing that Johnston brought up relating to HDC’s legal work, though it could be discussed at a later time. Johnston asked what authority the HDC had to incur these legal expenses, and Wylie shares Johnston’s concern. The city manager can’t spend more than $1,000 without the council’s permission, and no council member can spend money without authorization, yet a group of appointed people can incur some significant legal expenses. Johnston said that the city has spent $14,000 on 42 W. Washington, and Wylie observed approximately $1,000 in legal expenses in July and August for two other cases. We have some financial issues and should look at authorization for legal expenses in the future.

Haven thought this was a good point. We have had some expenses with administrative law judges and Ryan has represented us. The HDC is going to incur these types of expenses from time to time. We should put this on the agenda and formulate a discussion item for this.

Ryan said unfortunately, we have two cases brought relative to Main Street that we are defending. 42 W. Washington has been sitting fallow for a while. At the start of the pandemic, we received a note that we are going to have a virtual hearing at the end of the month. There are three active HDC cases right now that we don’t normally have. Haven thought that was helpful.

Pardee said he counted eleven entries on Ryan’s invoice concerning the new fence construction relating to 10 Miller Road, and that’s why he differentiated between fence cosmetics and buildings literally being destroyed by neglect on Main Street. Haven said that Pardee was clear about that. Ryan said that 10 Miller Road is a railing issue, not a fence issue; 177 Main is a fence issue.

Smith said that Meloche [HDC Chair] has been very helpful and asks Smith for permission before he contacts Ryan. Meloche needs some legal assistance on the three cases that are in front of SHPO [State Historic Preservation Office]. Speaking to Wylie’s point, Smith has a $500 spending authorization generally which goes to $1,000 in an emergency. Smith said he doesn’t know if it’s possible in each of these cases to add things up to say he’s gone over $500. The legal support is necessary because they are in front of a court or an administrative law judge.

Pardee said that there is also an invoice regarding signs on the consent agenda, and he asked Smith if Smith believed we should have a budget amendment regarding this item. Smith said that Pardee had mentioned this in his comments. The approval amount was $32,758, and this amount is being charged to two fiscal years – $7,500 from the previous fiscal year and $26,000 from the new fiscal year. Council approved that. What you are seeing is that half of the contract amount shows that $8,750 came from the previous fiscal year and $7,629 from this fiscal year.

The motion to accept the consent agenda passed unanimously.

Agenda Item #9, Old Business

Item 9a, Resolution: Oakland Macomb Interceptor (Video time mark 0:44:29)

• • Motion – Oakland-Macomb Interceptor Drain Repair Assessment (page 31/65 of the council packet)

Haven said that the gist of the motion is that $84 million will be required to repair the drain, Independence Township’s share is over $2 million, and our portion of that is 4.915% or $98,921.06. The finance committee recommended a special assessment for a payment of $44.25 plus our related costs for four billing cycles so it won’t be a burden. This was referred to as a resolution, but it’s really a motion.

Wylie asked who is currently on the finance committee. Haven said that Luginski took [Scott] Reynolds’ place. Smith said Haven, Luginski, Avery, Smith, and Gregory Coté (Treasurer) are on the finance committee.

Wylie noted that we are moving some money from the water to the sewer fund to pay Independence Township. It will be a while before the sewer money starts replenishing those funds. Coté had some concerns about drawing the funds down too low – will that level be OK for the next four to six months? Smith said that the plan is to use the water fund to reimburse the sewer fund $100,000. That takes the sewer fund out of the construction loan and moves it entirely. We would have around $40,000 in the water fund and $146,000 in the sewer fund after the transfer. After paying Independence Township $98,000, we will have approximately $48,000 in the sewer fund. Coté didn’t want to go below $40,000. We can’t wait for the special assessment district (SAD) money to come in at $44 per billing cycle. We could recoup the money in one year’s time.

Smith said that he knows that the council is probably thinking about future billing disasters. We know that some are coming, though not to this level. The Great Lakes Water Authority (GLWA) notified the communities that a repair was necessary. They estimated the repair at $100 million but are only billing $84 million now. This is the lion’s share of the cost. We should pay this now and establish a SAD to recoup the fund. When the remaining $16 million expense arises, or if there is some other expense, we will have some money in our sewer fund. There are more repairs coming to every Oakland County community and that’s why we felt that a SAD is necessary to replenish our sewer rainy day fund as quickly as possible.

Pardee said that the next expenditure relates to the East Alley, and Smith previously said that the city’s share of that cost was $19,000. Smith didn’t recall the exact number but thought that was close. Smith believed that the total cost would be around $33,000. Pardee asked if that would also come from the sewer fund. Smith said that because it’s a storm drain, we can’t use sewer funds to pay for the repair. It will probably have to be paid out of the fund balance.

Kniesc said that if we know that there is another $16 million in repairs coming, can’t we just add $2.90 to the $44.00 monthly bills so we don’t have to come back and ask? Smith said we could do that. Ryan said is an estimate, not a concrete number. We shouldn’t start anything until the cost has been approved by the GLWA.

Pardee asked if SAD costs would be approved without a public hearing. Smith said that they would not. This is a resolution to set up a city-wide assessment district to investigate the process. There is a lot of work and time to set up a SAD and it will include two public hearings. Independence Township has paid $98,000 and we can’t wait to pay them back. We would rather avoid paying them back over a year’s time with interest. We wanted to move the money from the water fund back to the sewer fund, pay off the debt, and investigate a SAD to build the sewer fund back up.

Wylie said that when we agreed to the city hall construction, we did so with the understanding that we were not going to raise taxes, but that’s what this is. She voted for the city hall construction because she thought it was the right thing to do, but if we hadn’t borrowed the money to pay for city hall, we wouldn’t have to be raising fees now. Haven said that this just happened, it was an unforeseen thing, we are trying to handle it expeditiously, and he thinks Wylie understands that.

The motion passed unanimously.

Haven said this begins the process. We will pay the $98,000 and the SAD will be established through public hearings. Smith agreed.

Item 9b, Discussion: Short-Term Rentals (Video time mark 0:59:51)

Haven said that we have a memo from Ryan regarding a Michigan Supreme Court decision that authorizes municipalities to adjudicate direct short-term rentals in R1 zoning districts. This is here for a discussion, not a vote, and it will be brought back as a resolution. What are the council’s thoughts?

Bonser said he reached out to Rich Little [Planning Commission] (PC) after the last meeting. Little said that the PC had already discussed this and gave their recommendations for proposed regulations to the city council on February 2^nd. This was emailed to everyone on August 26^th. We should review and vote on what was recommended.

Haven said we asked the PC to propose some regulations if we are going to regulate. The alternative is not to allow them in R1 districts. Short-term rentals are not part of the ordinance so by default they are not allowed. Everyone felt there was a need for some clarity and that we should include a statement in our ordinance concerning short-term rentals in R1 districts. He thought that the PC did a good job, and the question before us is whether we want to regulate or deny them.

Wylie said that the reason the PC came up with the regulations was that Ryan provided guidance that it would be in the city’s best interest to regulate them rather than deny them. When we learned that there was a pending Michigan Supreme Court case, we put that on hold. Last week, the PC said that they wanted some guidance from city council.

Ryan said that our planner, Carlisle [Carlisle Wortman], has experience with short-term rentals, but city council needs to decide if they want to regulate or ban short-term rentals.

Bonser said that Little’s email indicated that the PC did a lot of work on this in the fall and received input from the community. That’s how they came up with their recommendations and they can’t figure out why this was sent back to them. Wylie said it was her fault that it was sent back to the PC because we were waiting for the Michigan Supreme Court decision, but the PC needs to know what city council wants to do.

Bonser said that the council members should review what Little sent on August 26^th. The PC made a reasonable recommendation, and there is a way to inspect and generate a little income for the city. They recommended approximately nine regulations that the city council members should review and then vote on at the next meeting regarding whether we want to adopt or ban short-term rentals.

Haven said that he thought that creating a regulatory process adds a level of complexity to the small village staff. There are people who are for and against this, and it’s a controversial issue relative to the two properties that have exercised this opportunity in our community. The question is whether this fits into our R1 and whether we want to see this happen here. We can say they aren’t allowed or we can create a regulatory system of observations and fines. Haven suggested that the council decide the issue at the next meeting. He would like to see a resolution and ordinance language saying that we deny them. Ryan said that it should be a resolution, but an ordinance would have to follow if it passed.

Pardee asked if the next meeting could include an estimated cost to regulate them. Haven wasn’t sure how we could come up with a number. Smith said that he would have to look at what other communities are charging and make an educated guess regarding what it would cost the city. Ryan said that Carlisle can assist with that.

Item 9c, Discussion: Council Agenda Setting Procedure (Video time mark: 1:10:44)

• • City of the Village of Clarkston, City Council Rules of Procedure (page 32/65 of the council packet)

Wylie said she worked with Speagle on this issue. The language comes from the charter, our agenda rules, and the Michigan Municipal League (MML). The MML suggests that any member suggestions should be included on the agenda. Most other city council or board of trustee rules were similar to the MML recommendations. She noticed some corrections that she needs to make which includes citations.

Haven said that the underlying principle is that council has the right to establish its own procedures. Wylie agreed and said we would be voting on these. Haven said that Wylie was informing the council what others are doing so that we can decide what we want to do.

Speagle wanted to thank Wylie for working with her on this. She wanted Ryan to advise when a supermajority is required. Ryan said that he hadn’t looked at the charter, but there are four or five specific instances where it’s necessary, such as levying a tax and establishing a budget. He will provide that information to Speagle.

Smith wanted to know whether a supermajority is required when a discussion item turns into a resolution at a meeting. Ryan said it’s been discussed before but not written down. Ryan said that when you want to change the agenda, you need a unanimous vote because it’s a public notice issue. We could memorialize this if the council wants to do so. This was a very good work product.

Wylie said that other things were noted, such as putting special meeting notices online and explaining how to handle electronic meetings since we’re doing that. Wylie said that they were still working on it, and it may include something on recording meetings. Ryan suggested that Wylie consider authorizing one or two council members to appear virtually with prior approval if they are out of town or can’t participate in person after COVID is over.

Wylie assumed that they will be bringing this back to council. If anyone has things to add or things they don’t believe look right, please let Wylie and Speagle know and they will try to come up with a good final version.

Pardee suggested that the consent agenda include some mention of invoice approvals for payment, and item 2.7 appears to describe what the consent agenda items should be. Wylie said that she noticed that the Village of Lake Orion breaks down its consent agenda and approves each category. She can add that.

Item 9d, Discussion: DNR Agreement (Video time mark: 1:20:33)

• • 9/10/20 Memorandum from Thomas J. Ryan, P.C., Subject: DNR Development Project Agreement with the City of the Village of Clarkston (page 37/65 of the council packet)
  • Michigan Natural Resources Trust Fund, Development Project Agreement (page 40/65 of the council packet)
  • Sample resolution (page 47/65 of the council packet)

Haven said that Ryan prepared a memo regarding the DNR (Department of Natural Resources) contract. There is a deadline for signature. The contract is in the packet along with some supplemental materials, entailing at least the legal description of the property with any exclusions that would be necessary for removal from any recreational purpose because the DNR grant is for accessibility and recreational purpose in perpetuity. There is also a boundary map that highlights the perimeter of the property and isolates any island of nonconformance to the recreational jurisdiction, which would be the city hall and perhaps the gazebo. We have to have the materials delivered back to the DNR by October 2^nd, so we have one more meeting to bring this back to the council. This is an old issue from September 25^th of last year. The council approved the application for a $50,000 grant. We were approved in December but told it would take three to six months for the Legislature to fund it. It took longer, and we learned in August that we were starting on the two-year period. The first year is for planning and getting details and the second year is when contractors do the building that would have to be concluded by August 31, 2022.

The information is in the packet. This meeting is just to discuss and get input. The issue is whether we should sign the contract with the DNR. The terms of the contract are outlined in the application for the grant, and include designating the property as being held as recreational into perpetuity due to the DNR trust fund investment. This is in keeping what we have always done with Depot Park. The DNR would look out for its investment and may conduct an audit. This will be brought back as a resolution next meeting.

Avery said that the contract appears to require us to front the money for the project. What are we going to do with the grant money? Gazebo? Path? Both? Haven said this was generally for ADA compliant pathways in the park around the gazebo. We’ve discussed reconstruction of the gazebo, but that was around $100,000 and wasn’t reasonable. We’ve discussed repairing the gazebo without reconstruction with an ADA ramp that goes around it. If we could lower the gazebo, the ramp could be diminished by 2/3.

Avery wanted to know if we had any idea how much it will cost. We are only going to get $50,000 and they are pretty specific about what we are supposed to do with it. How much will it cost generally? He doesn’t want to approve a $300,000 path when we are only getting $50,000. Do the Friends of Depot Park (FDOP) have a plan to get us the money? Haven said that the diagram will show that. The grant money won’t fix the gazebo; it’s just to put in a ramp for ADA purposes and we are hoping to diminish the cost of the ramp with the grant money.

Avery asked if we are telling the state that we are going to make the gazebo handicapped accessible if we sign this. Haven said yes. We are getting a little more because it’s a combination. The project is assessed at $127,000, which includes their $50,000 and the balance consists of city contributions and what was raised in actual cash. Avery noted that we had in-kind labor contributions from citizens. Haven said that it’s been documented and will be exercised at the time of the project.

Avery wanted to know if we are pulling money from the general fund or if there is money from an account somewhere. Haven said we can bill up to 25% as we go through, up to 90% of the project, we can be reimbursed periodically, the FDOP has over $20,000 in unrestricted assets, and part of the pledges will come through. We can begin the process with periodic requests for reimbursement. Avery didn’t see where it said that they would periodically reimburse us. Wylie said that 25% is only $12-$13,000. Haven said that it’s 25% of the $127,000 because they are basing it on the total valuation.

Wylie said that the commitments for money and in-kind work were made to the FDOP a long time ago – are we still going to get them? Things have changed with COVID. Haven said that we have volunteer labor, some of the pledges, and around $20,000 in the fund for the project. We have the money to get started. The whole country is trying to get back to work but you have to assume that people will meet their commitments. There is $133,900 in commitments on a spreadsheet, but the incremental commitments weren’t that large. Many were gifts in kind, up to $62,649, and that’s labor, materials, etc. The cash pledges were $13,500.

Pardee had questions regarding cash flow since the project is valued at $127,000 and we will be reimbursed for $50,000. Haven said that it is a matching grant, and we had to raise $50,000 to get their $50,000. We raised more than we needed to.

Pardee asked about timing and cash flow. Are we spending by quarter with reimbursement and is our out-of-pocket net cost $77,000? Haven said that the grant allows for in-kind gifts, which is a valuation of labor. It’s nice that they have offered cash as a compliment to civilian labor which has been detailed and includes the Optimists Club and the high school. Haven said that he reviewed this before when we applied for the grant on 3/25/19. Pardee said that our financial situation is different today and he was concerned about dollar output. Haven said that there is a DPW contribution to use our equipment for installation. No one is talking about dipping into the fund balance.

Smith agreed. Approximately $50,000 of the $77,200 is in-kind donations, and a big chunk of that is coming from DPW labor within normal working hours so there is no overtime. Once we’ve paid the $50,000 and accomplished the “to do” list in the grant application, we can ask for a $50,000 match. We only have to fund the $50,000 before we ask for reimbursement. We have to complete the project and are complicating things when we talk about a gazebo rebuild. If we leave it five-six feet off the ground, we will spend almost $50,000 just building the ramp. If we lower the gazebo to make it more user friendly and approachable, we could take off the railings, have it open, and it would reduce the amount of the ramp costs significantly. People probably wouldn’t like the look of a wrap around ramp, so we are talking about redesigning and lowering the gazebo. This goes above and beyond the DNR agreement. They aren’t asking for this, but we think it makes sense because it would lower the ramp cost.

Luginski said that the finance committee discussed where to cut or look for money if we have to come up with a large amount. While he understands that things have changed, are the in-kind donations we were given still valid? We are on the hook for 60% of the $77,000, so he wanted assurance that it will not come out of the general fund or elsewhere.

Luginski was also concerned that the contract would give the DNR decision-making and veto power over things that the city might want to do in the park. There was a similar proposal last year that we turned down because we didn’t want to lose control of the park. Haven said that was the North Oakland Watershed proposal. Luginski said we may be getting $50,000 but wondered if it worth it to come up with 60% of the project to turn ownership over to someone else.

Ryan said that was a good question. He’d flagged item 16a of the contract and was going to ask Smith to follow up with the DNR. They are talking about purchasing property to go into the public trust for restoration. We already own the property and this will enhance recreation, not start recreation. We would have lost full control of the park if we’d granted the conservation easement a year to year-and-a-half ago [re: the North Oakland Watershed proposal], and the conservancy would have made our decisions. This is a win-win because we aren’t going to use the park for anything but recreation so our goals align with the state. There is no free money – they have conditions, want their guidelines followed, and want to make sure that whatever is done is done correctly. They will ask for periodic audits to make sure we are doing what we said we would do. We maintain it and put in pathways. We aren’t giving up control; we are agreeing to some reasonable requests to make improvements for public recreation.

Luginski said that made him feel better. Under the previous proposed agreement, we would have had to get approval if we put in a pavilion that could be rented for family gatherings. Ryan said we might have to do that under this agreement because it would be a change in what we have, but there is a procedure in the contract for that. Luginski said that they could say no and maybe we would have to give them a percentage of the proceeds. Ryan said we would give up some control.

Avery said that the purpose of this is so that we don’t use the money for a gazebo and then turn around and sell it for a nonpublic use. They don’t want to pay for an improvement that we use for something different. Ryan said that is correct – we have certain criteria that we would have to follow and report to them so that they know that we did what we said we would do. Avery didn’t think that the state would have anything to say about a pavilion because the money wouldn’t go to that improvement.

Luginski said he didn’t see a map in the materials. Haven said it’s being prepared and suggested that we add some exclusions on the legal description. Luginski said that the land area has not been agreed on. Haven said that it’s part of the legal description in the contract and there is an actual diagram of the property that shows the excluded areas.

Wylie wanted to know if the one person that we have for DPW work is going to be able to manage city work and this project. Smith said that would be a concern if we were starting this today, but we are actively pursuing additional employees and Smith hopes to have a full staff by next spring.

Wylie was concerned about the procedural bureaucracy required by the contract and whether Smith could manage everything, especially if we get income from weddings and have to report it. It seems as though we are adding to the city manager’s responsibilities every week. Smith is concerned about the detail that the agreement requires, which goes on into the future after construction. This will require filling out endless spreadsheets and reports.

Luginski wanted to know if we would have to ask permission to use the park for events like concerts and Art in the Park. What if they don’t approve them or require that we pay them half of the proceeds? Smith said that’s a valid question, Ryan said that would never fly, and Haven said if it’s not part of the contract, then we are assuming it’s not part of the contract. Luginski said we shouldn’t assume.

Haven said that the contract refers to equivalency between residents and nonresidents, so if we charge residents a certain amount, then we can’t charge non-residents more than twice that amount. Revenue generating is considered, but they haven’t said that anything goes to the state.

Ryan said we will ask the questions and come back next meeting.

Pardee wanted to know if there is a project timeline that includes inputs for cash requirements and reimbursement across time. Smith said that it’s likely something that will be required, a graphic that shows them when things are being done. When there is a concern about cash flow, it’s good project management to estimate where the outgoing expenditures would be, including DPW salaries. Pardee said if our financial future were more certain, he would have less of a concern.

Smith said that he would work with Ryan to get the answers from the DNR and prepare a resolution on the 28^th for approval. We are entering a new area and don’t want to commit our resources beyond what we are comfortable with.

Haven wished that the timing was different, but it’s an exhilarating project. He hopes we will go ahead with it and encouraged everyone to give it some thought.

Item 9e, Discussion: Middle Lake Access From White Lake Road (Video time mark: 1:59:32)

Haven noted that this was the item that Maria [Zwiernik] called in earlier about.

Smith said he was working on quotes for fencing primarily for 12-18 feet to extend the bridge toward Dixie to make the area safe so that no one unexpectedly falls off the bridge. They fixed the erosion problem but haven’t completely resolved the potential for a fall.

Wylie thought there was fencing there originally and asked if it was gone. Smith was not aware that there was fencing on that side of the bridge.

Wylie said this was discussed at an association meeting. People can’t be prohibited from using it because it’s public property. We could add as much fencing as possible along with signs that say that people swim at their own risk. Do we need a legal opinion regarding what we can prohibit on the property? They wanted to make clear that this is not a safe place to go swimming because there are boaters that don’t expect swimmers. It’s also spot where kids drink and do other things, so it would be good if we could limit the kids down there. Ryan said you can alert people to danger but he’s not sure what else could be done. Haven said that it’s a negative message even if the reason is for safety. Ryan said that we have signs at Deer Lake beach. We tell people that they can utilize the beach but must understand that there are ramifications if they want to use it.

There was discussion regarding whether there was a sand bar there. Wylie said that it’s not a real sand bar, just sand coming from Deer Lake that piles up at the end of the stream. People swim, fish, and come from Deer Lake on kayaks, but it’s mostly the young unsupervised kids that people object to because they leave trash behind.

Haven said that we already have stipulations regarding alcohol in the park. If we have signage that says no swimming in this area for safety reasons, that would give law enforcement an opportunity to enforce it. We have a list of rules near city hall. Wylie hadn’t considered that there is no alcohol in the park, but she didn’t think that everyone would see the signs. Maybe it would be good to put something up about no alcohol. Ryan thought that would highlight that this is a place that people can go. Since this is a seasonal problem and it’s September, let’s talk with Lt. Hill and see what signage can be put up for next season. It’s not clear how much time the Sheriff has for enforcement.

Wylie said we don’t want to highlight what most people don’t know about. Smith agreed and thought that maybe this was a COVID-related spike because people want to get out. He didn’t recall this as an issue during the last two summers. Wylie said it’s always been an issue, but there is definitely a COVID spike. Haven asked whether Wylie wanted to take another look or let it die for the season and monitor it. Wylie said that she hasn’t seen anyone on the lake in a week.

Zwiernik was in favor of saying that there is no swimming allowed. The activities are ongoing and there are up to fourteen people there at a time; many are unmasked. When asked if they live on the lake, they say that they know someone. We live here and aren’t able to utilize the lake because kids in their teens and early 20s are hanging out in the area.

Zwiernik asked about the timeline for installing the fence. Smith said he would be bringing a proposal to the council for it, but it’s about safety, not precluding entry. Zwiernik thought a fence would discourage the number of people willing to walk in the muck that leads to the marshy area. She thought it would be appropriate to extend the fence within a reasonable budget. Haven asked what length Smith was considering for the fence, and Smith said 12-18 feet. Zwiernik thought that would work.

Zwiernik also had a twofold concern about erosion – the sidewalk where it meets the road, and the foot traffic walking down the hill. The foot traffic has caused the tree roots to be exposed and has redefined the shoreline. A chunk of asphalt has been repaired so it’s a continuous safe pathway, but there is significant erosion at the ingress. Haven said it is a steep gully, and he would encourage Zwiernik to bring her observations to Smith. Haven said that the colder weather will keep people from wanting to go there.

Agenda Item #10, New Business

Item 10a, Resolution: Parking Lot Sealcoating (Video time mark: 2:17:08)

• • Resolution – Parking Lot Maintenance (page 48/65 of the council packet)
  • Comparison of Bids, City Parking Lot Repair, Sealcoating and Restriping (page 49/65 of the council packet)

Smith said this is important to protect our assets for as long as possible and to keep holes from appearing that could cause injuries. Though it’s another expense, Smith thought it was important to bring to council for an up or down vote.

This would include sealcoating and crack fill on three parking lots – the Washington/Main paid parking lot, the Mill Street lot between The Fed and Rudy’s that is owned by the city that has not maintained for a number of years, and the Depot Road parking lot. It has been at least two years since maintenance was done and we need to keep the repairs current.

Smith reached out to five sealcoating companies and three replied. Smith apologized for not including the actual bids along with the overview and said he could bring them back for next meeting. Doug’s Seal Coating is local and a Clarkston-approved no coal tar company. They submitted a bid for $11,200 that allows for some patching. This is more than Victory Paving but not as much as Birmingham Sealcoat. Smith thought that Doug’s Seal Coating provided a reasonable quote that includes patching, crack filling, cleaning, and sealcoating. They will also come back and restripe the parking lots. Smith added a 5% ($560) contingency allowance for unforeseen issues, bringing the total request to $11,760.

Avery noted that Victory Paving was $4,000 cheaper. If there are concerns about the very low price, then we should research further. Smith said that they aren’t local and he didn’t know if they would stand by their work. He couldn’t get an answer from Victory Paving regarding why this was a good price; they said that this was the cost that they thought was necessary and that didn’t give Smith a good feeling. Avery circled back to this issue later on in the discussion and said we should have more documentation. Otherwise, what’s the point of bidding? We can just call Doug’s Seal Coating every year. Smith said that he has to rely on the contractor to provide the best professional advice. The contractors will decide what can be filled with sand and emulsion or where the alligator pavement needs replacing. Avery asked if we could have specified that they give us a square footage; Victory Paving didn’t do that.

Luginksi and Smith discussed the difference between hot and cold asphalt patching and noted that hot patch is better and lasts longer but can only be used in the summer. Doug’s Seal Coating did work on Luginski’s driveway and it was great. Victory Paving would use cold asphalt. Luginski prefers local businesses and likes Smith’s recommendation.

Bonser noted that this would be funded by the kiosk fund, and Smith agreed. Smith noted that we are leaning a lot on the parking fund. We had $106,000, but if we do this and repave North Holcomb this season, our parking kiosk fund would be largely depleted. It’s not helpful that we don’t have paid parking. Smith hoped that a COVID vaccine would bring us back to normal and we could resume paid parking again on January 1^st.

Kniesc wanted to know how the scope of the work was laid out. Smith said he discussed sealcoating, crack filling, major damage, and missing pieces of asphalt, but he didn’t specify hot or cold patching. Birmingham Sealcoat would have done the repairs as though they were fixing their own driveway and would have removed and replaced the alligator asphalt. If funds weren’t an object, he would love to do that, but he left it to the vendors to decide how much hot patching they would use as they assessed the lots. Kniesc said that Victory Paving could have determined that not much was needed but the other two contractors provided square footage for the patching they would do. It doesn’t seem like an apples to apples comparison with a 400% difference between the lowest and highest bids. It would help to tighten up the bidding process, but it seems like we are going to get more with Doug’s Seal Coating.

Ryan said that the standard isn’t the lowest bid, it’s the lowest and best bid. If we don’t know about Victory Paving, we could check their references. There must be some reason why one bid is preferred over the other if we aren’t using the lowest bid.

Haven asked if Smith would consider the difference between using hot and cold patch as the reason for not selecting Victory Paving. Smith said that it was the “as needed” comment that was in their bid along with the fact that they aren’t local.

The resolution passed with Avery voting no.

Item 10b, Discussion: Match-On-Main Agreement (Video time mark: 2:38:37)

• • 9/11/20 Memorandum from Thomas J. Ryan, P.C., Subject: Match-on-Main Grant Agreement (page 50/65 of the council packet)
  • Main Street Oakland County COVID-19 Small Business Relief Program Grant Agreement Between Oakland County and the City of the Village of Clarkston (page 51/65 of the council packet)

Haven thanked Brandon Still for his work on getting the money for the city during COVID.

Still said that Match-On-Main was started by Main Street Oakland County as part of COVID relief and involved an online crowdfunding campaign that we completed at the end of July. We raised $2,180 from citizens and local businesses that Oakland County will match if we sign the agreement. We are eligible for another $2,600 donation from PNC bank, bringing the total to $6,690. Still put a grant review board of five people together and they reviewed eighteen applications from businesses in Clarkston. We don’t have an established nonprofit Main Street organization or a DDA [Downtown Development Authority], so we need to work with the city to transfer the funds from Main Street Oakland County to the businesses. This was a good team effort.

Haven said they’d done a great job and wanted to know how many applicants would receive a distribution. Still said that they settled on six of the eighteen applicants before the PNC donation. The review board will get back together and review the other twelve applications in light of the donation.

Ryan noted that there was an error in the last line of the third paragraph of his memo. The memo said that the city would have to match the deficiency if the private funds do not match the funds requested. There is no liability for the city, and he wanted to correct the error.

Haven wanted to know what was needed at the moment. Smith said that there is an agreement that has to be signed with the County to get the match. This has nothing to do with the PNC donation.

Haven asked if there was a timeline and whether the resolution could be pushed to the next meeting. Haven said the intention was to have a discussion here tonight and bring it back. If it can’t wait, then we need a vote to change this to a resolution.

Still said that the only obligation that we have with Main Street Oakland County is that the funds need to be distributed by the end of the year. The quicker we sign the agreement, the quicker we can get the funds to the grant winners to stay afloat. It’s up to the council.

Wylie wanted to know why we couldn’t do this tonight, and Haven said if there’s a majority, we can go ahead. Ryan said that we would need a resolution to authorize the city manager to approve the contract and it needs to be unanimous.

Avery was concerned that the city would be responsible if someone has a problem with the program and decides to sue Main Street. He wanted everyone to understand that there is some exposure. Haven asked if there was a shared responsibility, and Avery said that the grantee is responsible for any liability.

Haven asked Still if they were a 501(c)(3). Still said they don’t operate under a nonprofit or a DDA so there is no separate organization for the funds to flow through. A small group has been working to get a 501(c)(3), but it didn’t happen quickly enough. That is a goal.

Haven said we need to decide unanimously. There could be a lawsuit if someone gets their nose out of joint regarding the money. Avery said that was correct and there is a long list of things that the grantee is responsible for. He assumed we could handle this since we aren’t talking about a million dollars.

Haven asked Ryan for input, and Ryan said that it was similar to the DNR grant. There are a lot of obligations on behalf of the city; a subcommittee is handling the process, not us; and we have to follow up and do publicity. There are also some obligations for the city administration under this agreement. Still said that most of these items have already been completed with the help of Main Street Oakland, and he can get the documentation to Smith or the council.

The resolution passed unanimously.

Still thanked everyone in the community who helped and donated and he thanked Smith for his time on this. It was a team project that he was happy to be part of.

Item 10c, Motion: SEMCOG Delegate (Video time mark: 2:52:46)

• • 9/1/20 Email from Smith to the City Council members (page 64/65 of the council packet)

Smith said that the sole responsibility of a delegate is to attend three meetings per year in Detroit that are being held virtually now. Wylie noted that Smith indicated that having a SEMCOG (Southeast Michigan Council of Governments) delegate could provide us with earlier information regarding sewer problems. Smith agreed, but said that they are also knowledgeable about grants, communities, and had a wealth of data about pedestrian and vehicle traffic. A delegate would bring this information back to the city. We haven’t had a delegate for a while, and they periodically ask us about it. It has to be an elected official, but Smith or a council member could be an alternate.

Avery volunteered to be the delegate and Haven volunteered to be the alternate.

The motion passed unanimously.

Item 10d, Motion: Annual Tootsie Roll Drive (Video time mark: 2:56:18)

• • 9/1/20 letter from Geoff Wright, Charity Chairman, Subject: Charitable Funds Solicitation: Knights of Columbus – “Tootsie Roll Drive” (page 65/65 of the council packet)

Haven said that we have a nice letter form Geoff Wright, Chairman of the Knights of Columbus. This has been a very successful event for over 45 years and has raised half a million dollars. Haven likes to see that SCAMP and Drew’s Home are beneficiaries. This is one of the more lucrative corners in Oakland County.

Haven wanted to know if there are any insurance other issues that the council needed to know about. Smith said that it is expected that they will provide us with a certificate of insurance that adds the city as an additional named insured. Ryan said that we need to make sure that they abide by whatever distancing and mask rules that are necessary in light of the Governor’s COVID order. Haven asked if this needed to be part of the contract, and Ryan said no, but the reference to insurance and compliance with the Governor’s order should be part of the motion. Haven said that it could be put into the minutes.

The motion passed unanimously.

Agenda Item #11, Adjourn (Video time mark 2:59:05)

Motion to adjourn was approved unanimously.

Resources:

• • Link to video recording: – http://216.11.46.126/Cablecast/Public/Show.aspx?ChannelID=2&ShowID=3260
  • 20200914 – City Council packet