City Council

City of Olathe City Council 100 E. Santa Fe | Council Chamber Tuesday | September 15, 2020 | 6:15 PM 1. CALL TO ORDER Present: Brownlee, Campbell, McCoy, Bacon, and Vogt Absent: Mickelson Councilmember Mickelson arrived at 6:23 p.m. and joined the Executive Session. Others in attendance were City Manger, Michael Wilkes and City Attorney, Ron Shaver. 2. EXECUTIVE SESSION Consideration of motion to recess into an executive session to discuss the following items: A. For preliminary discussions with the City's attorneys which would be deemed privileged in the attorney-client relationship pursuant to the exception provided in K.S.A. 75-4319(b)(2) regarding Cedar Creek Development Company, Inc. and 30th Plat of Cedar Creek LLC v. City of Olathe, et al., Johnson County District Court Case No. 20CV03213. Motion by Campbell, seconded by Vogt, to recess into an executive session for preliminary discussions with the City’s attorneys which would be deemed privileged in the attorney-client relationship pursuant to the exception provided in K.S.A. 75-4319(b)(2) pertaining to the lawsuit Cedar Creek Development Co., LLC and 30th Plat of Cedar Creek, LLC v. City of Olathe, et al., Case No. 20CV03213 for 40 minutes. The motion carried with the following vote: Yes: Brownlee, Campbell, McCoy, Bacon, and Vogt Absent: Mickelson 3. RECONVENE FROM EXECUTIVE SESSION Motion by Campbell, seconded by Vogt, to authorize staff to proceed with the strategies as discussed with, and directed by, the Governing Body. The motion carried with the following vote: Yes: Brownlee, Campbell, McCoy, Bacon, and Vogt No: Mickelson 4. BEGIN TELEVISED SESSION – 7:00 P. M. Page 1 of 15 City Council Meeting Minutes September 15, 2020 5. PLEDGE OF ALLEGIANCE 6. SPECIAL BUSINESS A. Proclamation designating October 6, 2020 as National Night Out. Mayor Bacon read the National Night Out proclamation and presented it to Olathe Police Community Outreach Specialist, Beth Wendel. Ms. Wendel shared a few details about the event. B. Consideration of Resolution No. 20-1059 reappointing members to the Board of Code Review. Mayor Bacon invited Board of Code Review Chairman, Jerry Bachar, to introduce the members being reappointed. Mike Brossseit and Andrew Huber accepted their certificates. Gabriel Anderson was not in attendance. Motion by Campbell, seconded by Vogt, to approve Resolution No. 20-1059. The motion carried with the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt 7. CONSENT AGENDA Motion by Campbell, seconded by Vogt, to approve the consent agenda. The motion carried with the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt A. Consideration of approval of the City Council meeting minutes of September 1, 2020. Approved B. Consideration of a new drinking establishment application for Pan Kansas, LLC, d/b/a Panera Bread, located at 15108 W. 119th Street. Approved C. Consideration of a cereal malt beverage license application for Petro Sher, LLC d/b/a Flash Petro, located at 16620 W. 135th Street, for calendar year 2020. Approved D. Consideration of a pawnbroker/precious metal dealer license application for Warren Hannon Company, Inc. located at 128 E. Park. Approved E. Consideration of Resolution No. 20-1060 adopting the City’s Investment and Cash Management Policy. Page 2 of 15 City Council Meeting Minutes September 15, 2020 Approved F. Consideration of Consent Calendar. Approved G. Consideration of Engineer’s Estimate, acceptance of bids and award of contract to Gunter Construction Company for construction of the 175th and Lone Elm Traffic Signal Project, PN 3-TS-003-19. Approved H. Acceptance of proposal and consideration of award of contract to WesTech Engineering for the replacement of rotary distributor equipment at the Harold Street Wastewater Facility. Approved I. Acceptance of bid and consideration of award of contract to TT Technologies, Inc. for the rental of Static Pipe Bursting equipment for the Field Operations Division of Public Works. Approved J. Acceptance of bids and consideration of award of contracts to American Discount Office Supply, Inc., Pay-LESS Office Products, and Sumnerone for office supplies. Approved 8. NEW BUSINESS-PUBLIC WORKS A. Consideration of Ordinance No. 20-30, RZ20-0006, requesting approval for a rezoning from the M-1 (Light Industrial) District to the R-3 (Residential Low-Density Multifamily) District for KidsTLC, Inc., on approximately 5.16 acres; located at 400 S. Rogers Road. Planning Commission recommends approval 7-0. Senior Planner, Kim Hollingsworth, gave a presentation. KidsTLC Chief Administrative Officer, Steve Massey, expressed gratitude for the support from the City. Motion by Campbell, seconded by Vogt, to approve Ordinance No. 20-30. The motion carried with the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt B. Consideration of Resolution No. 20-1061, SU20-0005, requesting approval of a special use permit for a Community Living Facility for KidsTLC, on approximately 11.4 acres; located in the vicinity of S. Rogers Road and E. College Way. Planning Commission recommends approval 7-0. Senior Planner, Kim Hollingsworth, gave a presentation. Mayor Bacon said he was thankful for all KidsTLC does in the community. Page 3 of 15 City Council Meeting Minutes September 15, 2020 Motion by Campbell, seconded by Vogt, to approve Resolution No. 20-1061. The motion carried with the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt 9. NEW BUSINESS-ADMINISTRATION A. Consideration of Resolution No. 20-1062 authorizing the Downtown Library Project, PN 6-C-020-20. Councilmember Mickelson asked for a presentation. City Manager, Michael WIlkes, gave a short overview of the project. Councilmember Vogt asked if the location would prevent future expansion. Mr. Wilkes said there is not a final design so nothing would be precluded. He said the whole site will not be utilized so it allowed for many options. Councilmember Vogt asked if this fit with the Envision Olathe Plan and Mr. Wilkes said it was different, but met the intent of the plan. Councilmember Brownlee expressed concern about the cost and the fees associated with acquiring the design. Mr. Wilkes said the fees would be assessed on the final budget. Ms. Brownlee asked about the cost of the land and Mr. Wilkes said one parcel has been acquired and the other is currently under contract. He said he believed the prices were reasonable. Ms. Brownlee asked if he thought it was a good transaction for taxpayers. Councilmember Brownlee suggested City owned property West of Kansas Ave. could be a good location for the Library since there would be no land to acquire. Mr. Wilkes said the City rarely pays the appraised value for land that is acquired. Ms. Brownlee said she understood paying more for projects such as necessary transportation projects. Page 4 of 15 City Council Meeting Minutes September 15, 2020 Councilmember Mickelson asked if the first item was just approving the library project and Mr. Wilkes said it was. Councilmember McMcoy said he believed the location was an important element and that if there was a possibility of raising the rails, the location West of Kansas Ave. would not be a viable option. Mayor Bacon asked about the full cost of the land acquisition and Mr. Wilkes said there was some flexibility in the budget. Mayor Bacon also asked about the timing and Mr. Wilkes said they anticipated closing on one piece the end of the month but the other one not until September 2021. He also said there are current conversations about design and perhaps would have concepts by November and could have construction by summer. Brandon Buckley, with Lane4, said they are committed to the downtown market and they are not asking for anything additional above what they have paid for the property. Motion by Campbell, seconded by Vogt, to approve Resolution No. 20-1062. The motion carried with the following vote: Yes: Campbell, Mickelson, McCoy, Bacon, and Vogt No: Brownlee B. Consideration of a Real Estate Contract and Development Agreement with ODL, LLC pertaining to the acquisition of certain real property for the Downtown Library Improvement Project. Mayor Bacon asked to see what exact parcels were being discussed. City Attorney, Ron Shaver, identified specifically where the property in question was located. Mayor Bacon was concerned with paragraph 31 of the contract and asked if it could be removed. Councilmember Mickelson said he was concerned with the costs outlined in the contract and that he believed there was a need for the library, but he didn't think it made financial sense. Brandon Buckley, with Lane4, said they were unable to sell the property without a development agreement. Mayor Bacon asked to clarify if that meant they could not remove paragraph 31 and Mr. Buckley said that was correct. Page 5 of 15 City Council Meeting Minutes September 15, 2020 Councilmember Campbell asked if Lane4 was selling the property for what they paid for it and Mr. Buckley said that was the case. Councilmember Campbell asked about the previous owner and how long they had owned the property. He also asked questions about the County's appraised value. City Attorney Shaver said the other property was the one Ms. Brownlee was referring to. Councilmember Mickelson asked why the two contracts were being considered as one and not voted on separately. City Manager, Michael Wilkes said that pre-COVID, the additional property would have been needed. Since the project has been modified, it might not be needed now but it could be in the future. Councilmember Mickelson asked if Mr. Buckley could explain the commission rate and Mr. Buckley said it was market rate commission. Mr. Mickelson asked if they had obtained an appraisal, and Mr. Buckley said they usually do not and had not in this situation. Mr. Mickelson asked if this agreement could be entered into without going out for bid. City Attorney Shaver said there would be plenty of opportunities for the Council to address this project in the coming months. Mr. Wilkes said there would be additional contracts being brought to the Council for approval. Mr. Mickelson asked if Lane4 had gotten bids. and Mr. Buckley said they had. Ms. Brownlee asked if Lane4 could provide that information to the Council and Mr. Buckley said they would. Ms. Brownlee asked about expenses being reimbursed on top of fees and Mr. Wilkes said that was standard practice. She then asked Page 6 of 15 City Council Meeting Minutes September 15, 2020 what was standard cost for a construction manager over a three year period. Senior Build Design Project Manager, Jeff Blakeman, said the standard is around 3% and couldn't recall what the standard owners rep fee is. Ms. Brownlee said she just wanted to know what this contract included. Councilmember Campbell said he believed everyone wants the library project to move forward but wants to be comfortable with it. He asked what would happen if they tabled items B and C until the next meeting. Mr. WIlkes said it would push the closing date out a little further, but wouldn't hurt anything. Mr. Campbell said that would give everyone time to get their questions answered. Motion by Campbell, seconded by Vogt, to table the Real Estate Contract and Agreement for consideration at the next council meeting. The motion carried by the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt C. Consideration of a Project Management & Owner’s Representative Agreement with Lane4 Property Group, Inc. for the Downtown Library Improvement Project. Motion by Campbell, seconded by Vogt, to table the Project Management and Owner's Representative Agreement for consideration at the next council meeting. The motion carried by the following vote: Yes: Brownlee, Campbell, Mickelson, McCoy, Bacon, and Vogt 10. NEW CITY COUNCIL BUSINESS Councilmember Vogt recognized the Harold Street wastewater facility for an award they had received. Councilmember McCoy said the Parks & Rec Department stands out among other cities for all the activities that they have continued to provide to the community in responsible ways. Mayor Bacon announced that nominating committee made up of himself, Mayor Page 7 of 15 City Council Meeting Minutes September 15, 2020 Pro Tem Campbell and Councilmember Brownlee had been formed to evaluate the applications to fill the vacant seat on the Council. He said a recommendation would be made to the Council in October. 11. END OF TELEVISED SESSION 12. GENERAL ISSUES AND CONCERNS OF CITIZENS None 13. CONVENE FOR PLANNING SESSION A. DISCUSSION ITEMS 1. Discussion regarding Chapter 5.43 of the Olathe Municipal Code (Distance-Restricted Businesses). (15 min) Deputy City Attorney, Chris Grunewald, gave an overview presentation of Chapter 5.43 of the Olathe Municipal Code. Councilmember Brownlee said council members had been contacted by two different organizations wanting to locate in Olathe and were having difficulty finding an approved location. She asked if it was a change the Council might want to consider. Councilmember McCoy said he would support some kind of variance that would allow these organizations to open. He said it would create traffic in the area and reduce vacancies. Deputy City Attorney, Chris Grunewald, pointed out the definition of a thrift store. Mayor Bacon asked if this would require a change in the ordinance and Mr. Grunewald said he believed it would. Councilmember Mickelson asked if Goodwill had closed and Mr. Grunewald said they still have a valid license. Councilmember Mickelson said he was open to considering options. Page 8 of 15 City Council Meeting Minutes September 15, 2020 Councilmember Vogt asked what property was being looked at and Ms. Brownlee said the old theater. Councilmember Vogt said that would take a lot of renovations and wanted to be very careful about how to proceed. She said she didn't want to close the door to a great business doing good work but wanted to be cautious. She said renovations would have to meet code and she believed that was going to be difficult. Mr. Grunewald said several neighboring cities have similar ordinances. Councilmember Vogt said she was curious why they are moving and Councilmember McCoy said they were not moving, but looking to expand. Ms. Vogt said she thought we needed to keep in mind how it affects surrounding businesses. Councilmember Brownlee said there had been excellent points made. She said she didn't think the interest was to impact all distance restricted businesses, but just thrift stores. She also acknowledged that they would need to comply with all building codes. She also wanted to know if there could be a variance or if the ordinance would need to be changed. Mr. Grunewald said that code would need to be met. He said one answer could be to change the definition or could create a variance process. But there could be different options. Councilmember McCoy asked if perhaps for this one category if there could be two businesses operating within the two mile radius. Mr. Grunewald said they could make that change for one category. Mr. Campbell said the ordinance has worked very well in the past and it became challenging when there was a specific name attached. He said trying to design something just for one category was a slippery slope. He asked if there Page 9 of 15 City Council Meeting Minutes September 15, 2020 were other locations they could go and Mr. Grunewald said there were. Councilmember Mickelson said he didn't support exceptions and asked if it was possible to provide them with other potential locations. Mr. Wilkes said he knew the Chamber of Commerce had worked with at least one of the organizations in the past. Mayor Bacon said he believed he was understanding that the Council might consider an adjustment on distance and perhaps the number within a certain radius. He asked staff to bring back some recommendations. Deputy City Attorney Chris Grunewald said they would provide options and seek feed back. 2. Discussion Regarding Section 10.01.114.4 of the Olathe Municipal Code (Unlawful Operation of Golf Cart). (15 min) Deputy City Attorney, Chris Grunewald, gave a short presentation. Councilmember Mickelson asked if this would be enforced on private streets. Deputy Police Chief, Jack Fahrnow, said it would not, but they could use it as educational opportunities. Councilmember Mickelson asked what made a Low Speed Vehicle legal and Mr. Grunewald provided additional information regarding the current law in Olathe. Councilmember Mickelson asked for clarification regarding where they could be driven. Councilmember Campbell thanked staff for the report. He suggested there be some specific guidelines that might include only a restricted distance from a golf course, a Page 10 of 15 City Council Meeting Minutes September 15, 2020 licensed driver, less than 25 miles per hour and only in the daylight. He said he wondered how bicycle injuries stacked up against golf carts. Mr. Campbell asked if there was interest from the Council to move forward. Councilmember Brownlee said she had received citizen comments regarding golf carts. She asked if there had been any accidents in Lenexa and Mr. Grunewald said there had not been. Councilmember Vogt said she would support something that was very narrowly drawn and wondered if perhaps it could include neighborhoods without through traffic. She said there are areas that make sense and others that do not. She said safety was the most important aspect and wanted to proceed with caution. Mayor Bacon asked that staff at least bring proposed language forward to present to the Council later in the year. 3. Discussion regarding proposed revisions to the Debt Management and Fiscal Policy. (15 min) Resource Management Director, Dianna Wright, gave a short presentation. Councilmember Campbell thanked Ms. Wright for the presentation. He said interest rates are very low and asked if the City is taking advantage of such low rates. Ms. Wright said they, have while still meeting current guidelines. Councilmember Campbell pointed out that this is a great time to finance the amount for the proposed library. Councilmember Mickelson asked about why the policy is set at 70% when we never come close to that and why there isn't something more fiscally responsible. Mayor Bacon asked how long the 70% has been in place and Page 11 of 15 City Council Meeting Minutes September 15, 2020 Ms. Wright said it had been at least 10 years since the policy had been amended. City Manager, Michael Wilkes, said he thought it was some time in the early 2000's. Mayor Bacon asked if the graph went back 10 years if it would still show approximately 30% and Ms. Wright said it probably would. Councilmember McCoy asked if there was a benefit to lowering the 70% or if it was just perception. Ms. Wright said this is Council Policy, so anytime the Council wanted to go above what the policy stated they could make that decision. Councilmember Mickelson asked if they are held to the policy or if they could peak over it without actually changing the policy and Ms. Wright said that was correct. She did say there might be consequences with the rating agencies if there were exceptions to the policy often. Mayor Bacon asked if the rating agencies would look at it unfavorably if the limit was lowered to 50%. Ms. Wright said she didn't think so. Mayor Bacon said he thought they would leave it as it is for now. Ms. Wright said they would be bringing this back to the Council for formal adoption with the changes recommended by staff. 4. Discussion on Economic Development Policies. (30 min) Assistant City Attorney, Daniel Yoza, gave a short presentation. Councilmember Mickelson asked what the requirement is for health insurance. Mr. Yoza said it was just a question that was asked on the application. Page 12 of 15 City Council Meeting Minutes September 15, 2020 Mayor Bacon confirmed that this was one of the items that came out of the survey. Councilmember Vogt said that if they were covering health insurance the City might consider a higher abatement. She said she didn't know what the intent was, but might want to give them an extra 5% if they were paying higher wages and covering health insurance. Mayor Bacon also mentioned that the percent is flexible. He also asked for Mr. Yoza to explain "stacking." City Attorney, Ron Shaver said stacking could mean layering multiple tax incentives. Resource Management Director, Dianna Wright, said she thought in conversation with other council members it was more about layering our own incentives. Councilmember Brownlee said she is probably the one who had used that word because it was something that concerned her. City Attorney Shaver said he believed we were doing a better job on this. Ms. Wright said she also believes we are working better with the Chamber so we are not surprised if they are pursuing other State incentives. Councilmember Mickelson asked for clarification on the art requirement and Mr. Shaver provided this information. Mr. Mickelson asked for further requirements to be sent to the Council. Councilmember Mickelson asked why the TDD policy had not been repealed if it wasn't used. He said it appeared to be unnecessary. Mr. Wilkes said the TDD is an older tool but could always Page 13 of 15 City Council Meeting Minutes September 15, 2020 could be brought back if requested. Councilmember Vogt said she would ask that staff talk to the Chamber to see if this is a tool they need to draw business before it is removed. City Attorney Shaver shared specific information about the art requirement and Mayor Bacon asked to have information about the historical use of this requirement. Councilmember Campbell clarified that there are two policies that will expire at the end of the year. He said he thought any changes should come from the Chamber and Staff. He also suggested that nothing be taken out of the tool box. Mayor Bacon asked if there was a health assessment done for the IRBs and TIFs so the Council could see what works and what doesn't work. Resource Management Director, Dianna Wright, said there is an annual report that is presented to the Council and is also on the website. She said the report includes additional information after the project has been completed to see how they perform. Councilmember Brownlee asked if there are any clawback provisions in any of these. City Attorney Shaver, said they can be found in default, however the City Council's position has not wanted to punish them for under performance. Mayor Bacon asked if they could see this again by the end of November instead of the end of the year. 14. ADDITIONAL ITEMS Councilmember Brownlee said she believed there was a need for a nice downtown library. However, she pointed out the current unemployment rate and wanted to encourage the Council to consider ways to build the library to reflect Page 14 of 15 City Council Meeting Minutes September 15, 2020 some degree of savings. She also thanked staff for the discussions, especially the information they shared regarding thrift stores. Mayor Bacon said he had realized he had accidentally muted himself and it would take time to get used to his new place on the dais. He also encouraged council members to take breaks as needed during the planning session as generally they probably would not have a formal break. 15. ADJOURNMENT The meeting was adjourned at 10:06 PM. Brenda D. Long City Clerk Page 15 of 15