 One strike of the gavel in honor of March and at seven o'clock, we will call the meeting to order of the common counts July 2nd 2012 console made. The clerk read the quote. Certainly cooperation is the thorough conviction that nobody can get there unless everybody gets there. Clerk call the roll please. Everybody could push their number one 16 present. A quorum is present. Tonight we have troop 801 boys go troop with us and they will lead us in the Pledge of Allegiance. Please join me in the Pledge of Allegiance. I pledge allegiance to the flag of the United States of America and to the Republic for which it stands one nation under God indivisible with liberty and justice for all. Maybe see you. Thank you. Alderman Hammond. Thank you, Mr. Mayor. I move to approve the minutes of the previous council meeting. It's been moved and seconded to approve the minutes of their previous council meeting. Is there any discussion? Hearing none, the clerk will call the roll. Thanks. 16 present. Quorum is present. Confirmation of the mayor's appointments Alderman Hammond. Thank you. One second till we get the microphones on. Keys broke Alderman Hammond. Thank you, Mr. Mayor. I move to appoint Mai Zhang to the mayor's international committee. Second. It's been moved and seconded to appoint Mai Zhang to the mayor's international committee. Is there any discussion? Hearing none, the clerk will call the roll. 16 ayes. Motion carried. Is there anybody for the public forum this evening? No, there is not. Hearing none, mayor's announcements. I hope everybody enjoys a good 4th of July and all the activities that are going around in the city. We'll be looking forward to that. And don't forget the women's PGA is this weekend too. So with a lot of things going good in the Shibuya County. Consent agenda Alderman Hammond. Thank you again. Mr. Mayor moved that ROs be accepted and placed on file and all RCs be accepted and adopted. Second. It's been moved and seconded that all ROs be accepted and filed and all RCs be accepted. Under discussion Alderman Vercy. Mr. Mayor, I'd like to be able to pull 2-4 for a separate vote please. 2-4 did you say Alderman? Yes. We will vote on 2-4 separately then and do that first. 2-4 is an RC by law and licensing recommending granting a class B liquor license. Look for a motion to accept. Thank you. Mr. Mayor move to accept and adopt. Second. It's been moved and seconded to accept and adopt the RC. Any discussion? All those in favor. Oh, I'm sorry. Clerk will call the roll. Go ahead. 15 ayes. One abstention and one abstention. Thank you. Okay. Now we'll be back to the motion of the consent agenda. Is there any discussion on the other items? Very none. The clerk will call the roll. 16 ayes. 16 ayes motion carried. Report of officers 3-1 on our roll from the chief administrator officer submitting the 2013 budget schedule. Alderman Hammond. Thank you, Mr. Mayor. I move to accept and file the report of officer. Second. It's been moved and seconded to accept and file the report of the officer. Any discussion? Hearing none, clerk will call the roll. 16 ayes. Motion carried. 3-2 through 3-8 will be referred with 3-7. With 3-7 being referred to both strategic fiscal and committee of the whole. Alderman Borden. Thank you, Mayor. Yeah, I didn't want that referred to the committee of the whole and I just wanted to give the other person the head, all the person that heads up that I will be having a committee of the whole meeting on Tuesday, July 31st at tentatively at 6 p.m. And right now it's just going to be concerning the 2013 budget. So if the other persons would make a note of that. Thank you. Okay. Those would be referred resolutions for Alderman Billinger. Thank you, Mayor. Would that 3-3 is being referred to committee of the whole to Jim? Would that be discussed at that meeting too? Yes. Okay. Thank you. 4-1 resolutions introduced. A resolution by Alderman Borden authorizing entering into a contract for purchase of two tandem axle dump trucks. Don't read. That will be referred to public works. 5-1, an RC from law and licensing recommended denying beverage license. Alderman Borden. Thank you, Mr. Mayor. I move the RC be accepted and adopted. It's been moved in seconded to have the licenses, the RC be accepted and adopted. Is Robert Bachnecht here? He is not here. We invited him two times to appear before committee and he did that call or show up so we had to deny his license. Is there any other discussion on the RC? Hearing none, the clerk will call the roll. 16 ayes. Motion carried. Committed report from law and licensing recommending denying taxi driver license 9590 Alderman van de willy. Thank you, Mr. Mayor. I move that the RC be accepted and adopted. Second. It's been moved and seconded that the RC be accepted and adopted. Alderman van de willy. Is David Dallas here this evening? He's not here. He did appear before the committee with an extensive record and the committee voted 5-0 to deny the license. Is there any discussion or questions? Hearing none, the clerk will call the roll. 16 ayes. Motion carried. 5-3 and 2-5-5 will be referred. Ordinance is introduced. 6-1. An ordinance by Alderman van Akron, Carlson, Lissar, Wongam and repealing the recreation section of 7451. Alderman van Akron. Thank you, Mr. Mayor. I would make a motion to suspend the rules. Second. It's been moved and seconded to suspend the rules. Is there any discussion on suspending the rules? Hearing none, we'll take a vote on just suspending the rules. 16 ayes to suspend. Alderman van Akron. Thank you. Again, Mr. Mayor, I then would move that the ordinance be put upon its passage. Second. It's been moved and seconded to the ordinance be put upon its passage. Under discussion. Alderman Borden. Thank you, Mayor van Akron. As in committee, I will not be supporting this tonight. I have concerns about the, even though we have recreational immunity, I have some concerns that if there would happen to be a tragedy down there, the city could be sued. And right now, I believe our deductible after talking to Attorney McLean is up to possibly as much as $125,000. And as usual in these cases, the attorneys sue everybody in sight. So I have a problem with the exposure, even though we have the recreational liability. Also, a couple of weeks ago at Public Works, I'd like to make a friendly motion. To this document, if it does pass, I'd like to make a motion that the city attorney draft a whole harmless agreement for people renting the quarry for different types of events. We had talked about that a couple of meetings ago at Public Works before we were talking about even opening up this, opening this up to swimming that if people were using that facility, we wanted the city attorney to draft this whole, whole harmless agreement for people that are renting. And I talked to Attorney McLean earlier today and he seemed to agree with me that for people that are going to be renting that facility, it wouldn't hurt to have that in the agreement when the people rent that at Public Works that they hold the city harmless for anything that may happen down there regarding the swimming at the quarry. So I would, I would entertain that motion a friendly or a friendly motion or amendment to the document. It's been moving seconded to amend the document to have the city attorney drop up a whole harmless agreement that would be handed out in the cases where the quarry is, has been rented out by a group. Right. It would be part of the rental agreement. Right. Is there any discussion on the, on the amendment and we'll vote first on the amendment unless you wanted to talk about the amendment or loading on the amendment. 16 eyes on the amendment. Alderman Hammond. Thank you, Mr. Mayor. I'm assuming we're talking about the document. Attorney McLean, maybe I know you drafted a document for Alderman Collison to myself explaining the risks and liabilities and that and essentially took the time to do that. Could you maybe share your findings with the group as to what the city exposures liabilities might be? And your legal opinion as to whether it's okay to do it. Attorney. Thank you. Alderman Carlson had asked whether or not the city would hold any liability if we open up the quarry with swim at your own risk signs posted. And I advised Alderman Carlson and provided a copy to Alderman Hammond at his request that the city has recreational immunity under quite broad state statute section 895.52 of the Wisconsin statutes. Recreational activity under the statute is an outdoor activity undertaken for the purpose of exercise, relaxation or pleasure. And for purposes of discussion on the quarry it covers water sports and under that law the city as owner including any officer employee your agent of the city does not owe to any person who enters the owner's property to engage in a recreational activity any duty to keep the property safe for recreational activities or any duty to inspect the property or any duty to give warning of an unsafe condition use or activity. And except the in a couple areas which I'll touch on in a second. Neither the city or nor any officer employee or agent of the city is liable for the death of injury to or any death or injury caused by a person engaged in the recreational activity on the city's property. The exceptions are a death or injury that occurs on property of which the city is the owner at an event for which the city charges an admission fee for spectators. So that would not be the case for quarry and the second is a death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition which an official employee or agent of the city knew which occurs on property designated by the city for recreational purposes. The purposes of the exception conduct is malicious when it's the result of hatred ill will or revenge or is undertaken when insult or injury is intended. So it's very broad immunity. I talked Alderman Warren this afternoon or this morning there there's been a number of cases interpreting the statute over the years because it's so broad and the courts have liberally construed it because the statute says it's to be liberally construed in favor of granting immunity to suit. And I know there was one case involving a school district school where a child was injured at recess on playground equipment and they sued the school district and the school and their immunity was not granted on the basis that it really wasn't the recreational activity because the recess was part of the regularly scheduled school day and it was basically a required activity. But other than that there's there's cases. I think it was either Kenosha or Racine where there was suit brought for against the lifeguards at the at the beach down there for negligent training negligent supervision and failure to perform their duties appropriately court said recreational immunity applies no liability. So I think recreational immunity is very broad in Wisconsin the purpose the legislature had was to give landowners property owners and governmental agencies assurance that they could open up their property to the public to use for recreational purposes without getting sued. So that's been the intent and it's it's been very broadly construed as I say not the only caveat as that I would give as Alderman born mentioned we are self-insured for liability and we've got the insurance over and above our threshold $125,000 self-insured retention. So the first hundred and $25,000 of expense whether it's defense costs or whatever in a lawsuit is out of the city's pocket. We're not insured for anything over that is covered by our insurance policy. So you know one thing that the council has to weigh and I think it's it's clearly a policy decision by the council and it's a discretionary decision on your part is whether to open up the quarry without lifeguards or to go back to what the situation was previously where you did have lifeguards obviously cost to that to provide the lifeguards and I think that's what you have to balance against the opening up at your own risk and just allowing members of the public to use it on their own. The other other comment I had made and it doesn't really address it's not so much the recreational immunity issue because I think it would probably be covered by recreational immunity as well because even man-made objects if they're recreational in nature and provide for recreational activities would be held harmless or immune but in looking at the facility there's old stairs going up to the former water slide. That's like three stories worth of wooden stairs there. I think right now there's a chain link fence locking it off but wouldn't be very difficult to climb that fence and have kids climbing up those stairs and falling off the stairs and that really isn't designed as it's not currently in use as a recreational facility certainly was when there was a water slide there but I guess my suggestion was to take that structure down and any other structures that there may have been in that area that related to the water slide and so forth. So that was that was the essence of the opinion I gave. Thank you Alderman Hammon. Thank you. Just really two quick follow-up questions. Attorney McLean if we're charging admission and this is just more so again we're going into this or with our eyes wide open if we're charging admission to use the quarry facility is that the same or charging a rental fee to use the quarries at the same as admission as a as a spectator and secondly how is what this would be doing different than what we currently do at Lake Michigan you know with with respect to swim at your own risk. As far as what we do with Lake Michigan it's basically the same. There are risks at the at the lakefront as well. We had a drowning from the whatever was Riptide or undertow or whatever so that's that can be dangerous out in the lake as well. The other aspect of your question was we rent out the quarry is that the same as charging admission. The only exception is if the city as owner at an event for which the city charges an admission fee for spectators. So this is like if you had a stadium there or okay and charge admission for the spectators. It's not for the participants under the under the law. It's just spectators. So no opening up rental on the quarry view center separate and apart from the quarry. I don't think triggers or acts an exception to the liability on them and born. All them and born. Thank you again. Mayor attorney McLean. I also in our discussion today and I think this followed up that one public works meeting you were in consultation with the city's insurance company Sivmic about the possibility of opening up the quarry without lifeguards. Could you share with the council with their position was the insurance company for the city. Steve can you speak into your mic a little bit because people are having trouble here. All right. If that's what I said all the one born as I apologize I did not speak to anybody from Sivmic. I think it was Dave Bebel or or David Cook hook had spoken to a representative at the cities and villages mutual insurance company and my recollection of what was said at the this is that came up at one of the parks and recreation and marina committee meetings was that Sivmic was not in favor of the city opening up at your own risk. Could we get a clarification from Mr. Bebel in that near director public works director David Bebel. You answered the question for us please. It's my understanding that our park superintendent Dave Cook hook had a conversation with Sivmic and being an insurance and risk industry clearly it wasn't their recommendation to open it being that they're going to be our provider of the insurance if it would be a situation. Thank you. Is that answer thank you. Okay. Thank you David Alderman Wongerman. Thank you Mr. Mayor. I appreciate Alderman born's concern but if we look at all the other parks we have we take Kiwanis Park we could rent out the shelter house there. You have the shelter down at the end of the north pier children could easily walk out there and fall off to pier. You have the south side beach where swimming is done and you have that new facility down there. So it exists in all the parks and I think it's just part of our culture that people like to be in your water when they have picnics. So I think it's to the point where parents of course have to share that obligation to look after their children wonder in these things and it seems to me to be quite clear that unless the circumstances were quite extraordinary that the city would not be how liable. So it would be my vote to go ahead with the opening of the quarry. Thank you. Thank you Alderman Wongerman Alderman Carlson. Thank you. Mayor just in an effort to clean this up and make sure we're all on the same page. I'd like to offer an amendment that DPW DPW removes all the man-made objects such as the slide tower the fence line and anything else that we may deem not necessary anymore. Second and move the second that we amend the initial ordinance to include requesting the deep Department of Public Works to remove the man-made objects like fencing and the tower to reduce our liability. I think they were intended to do that under anyway but they will clear this up this way. Alderman it was our second idea. Okay. All the men on the amendment all them in hand. Thank you Mr. Mayor. I think this is a great idea and it'll take maybe a few extra to a week to get this thing open but tell them and cleans our attorney McLean's you can always be an Alderman if you want attorney McLean's point. I mean anytime you have that kind of temptation why not just remove the temptation. So I would support the amendment. All right we're going to vote on the amendment first but you want to speak on the amendment on the amendment. Yes. Then I've got a question. On the amendment. Thank you Mayor. Last time I'm going to speak and I just want to hold you to that. We do have a group of citizens out there that have volunteered to assist DPW to take all this stuff down and since that article came out in the paper I've had three or four more people contact me via email that also want to join that group. So you'll be in contact with Dave on that. Yes. Thank you. Alderman come on the amendment. We'll vote on the amendment first. Sorry. Yeah one comment. I guess I would prefer that the ordinance be clean. I know what you're proposing to do as sort of items to go with with the change in the ordinance but I don't really think you want those sorts of things in the general ordinance book like me drafting up an ordinance that have that or hold harmless agreement. You don't actually want that in the ordinance. Those are. Sort of administrative things you want the staff to to do. Following up upon change in the ordinance that would allow. Swimming there. Alderman Hammond. Thank you Mr. Mayor. Then I would move we pass the ordinance and direct the city attorney's office draft to hold hotlermost agreement and DPW to remove all the equipment and fencing as part of the beginning of the operations of the quarry. So we're back to we'll pass the resolution as stated and we'll draft the resolution. We'll just direct the city attorney's office to direct the city attorney to hold armless and DPW to clean up the area down there. It's been moved and seconded to remove. Are you are you willing to remove your amendment? I mean that that's fine if you want to put it all together as long as it the whole whole motion. Well basically what I'm doing here is just to amend to include administrative documents not in the ordinance. It's like having the job description after the ordinance for a T.O. So that's what you would be voting on. If that's what you want. Back to the thank you. Alderman Billinger. Thank you Mayor. Attorney McLean recently within the last couple weeks of the Racine or Kenosha opened up their quarry without lifeguards. There was a death there. Have you been in contact with that city attorney about what's going on there? Is there any pending litigation that you're aware of regardless of their immunity? And I'm just is another follow-up. I'm just wondering what would this do? Should we go ahead and open the quarry up due to our future insurance premiums seeing as how the insurance carrier is kind of telling us they would prefer that we not do this. Do you have any ideas as far as that goes? Sure. No, I haven't had any contact with people in Racine. I believe David Bebel had received a video or has a video, some news article or something from TV or something down in Racine area. But I do understand that there was a drowning after they opened up their comparable quarry, I guess. And I'm not aware I haven't read anything as to whether there's any litigation. It's pretty soon as to typically there would not be right away. But that's a very real concern. There's no doubt about that. But I, and I don't know the facts and circumstances of that case, but I would just assume that the defense in a case like that if Racine was sued, it's going to be recreational immunity as well. And unless there was something, some malicious conduct again on the part of the municipality or its officers, agents or employees, the city would be held immune from the suit. As far as effects on insurance premiums, as we mentioned in the last council meeting, we're a member of an insurance risk pool of, I think there's now about 43 different municipalities throughout the state, some larger, some smaller. And typically any payouts from one community for one particular year are not going to impact that community's rates. That's the advantage of a risk pool is, the assumption is somebody somewhere is probably going to get hit in any particular year or any given year, but in the aggregate there's not going to be a great deal of exposure throughout the entire pool. So typically the insurance pool, which we're not just an insurance holder on that, we're actually a member of the risk pool. It's not likely that an incident like that, if there was a payout, would impact our premiums in any particular year. To answer your questions. Yes, thank you. Alderman Vanakeren. Thank you, Mr. Mayor. I've been in several meetings over the last couple of weeks about this issue and it talks with Director Bebel. It is my understanding that if we do pass this ordinance change that the Department of Public Works would take about approximately a week to clean up the area, remove the fence, put in the proper signage as well as life-saving equipment similar to the north and south beaches. Obviously the only difference being that the quarry doesn't have the current problems that we do on Lake Michigan. So I honestly think it'll be a safer environment for people to go and swim recreationally. So I do support this going forward. As I said, Director Bebel indicated it would take about a week or so to accomplish once we give it our blessing if that's what we decide to do. And hopefully we can then allow for the last, you know, two months here of the summer that people are able to utilize that. Any other discussion? Hearing none, clerk will call the roll. First we have to vote on the motion to include administrative documents to amend too. Okay. So we need to do that first. And that would be 16 ayes. Now we'll need to go back. We need a motion as amended. We already have that. I will make the motion as amended. Yes, we do. Okay. Yeah, we do. And we'll vote. Hold on, let me get it. We'll vote on the ordinance as amended. Any other discussion? We'll take the vote. Yep. 14 ayes, two nos. Motion carries. Six two will lie over. Six three will be referred. Matters lied over. The resolution on RO from the purchasing agent submitting quotes for purchasing a four diesel powered vacuum when born. We factors. Thank you, mayor. If I could, I would like to take document 7172 and 73 together for the people watching at home. They're pretty similar. Seven one just says the RO by the purchasing agent submitting quotes for the purchase of four diesel powered vacuum leaf collection trailers for the motor vehicle department. The motion I would make on all three of them would be a motion to accept and file the RO past the resolution and accept and adopt the RC. Second. It's been moved and seconded to accept and file the RO and pass the resolution and accept and adopt the committee report under discussion. Under discussion, mayor, these new diesel powered vacuum leaf collection trailers are to replace the system that we've been using the last few years where allegedly the view of the driver was obscured by the vacuum cleaner being in front. These will be trailers. It'll be a two man operation. They'll be the person driving the truck with an unobstructed view and then there will be another staff member walking behind the truck and actually vacuuming up the leaves. So that should. We saw a report on this from director Bebel at one of the recent public works meetings and it looks like a very efficient system while eliminating some of the concerns of visibility while they're being collected. Thank you. Thank you. Alderman born. Is there any other discussion? We'll call the roll. 16 ayes. Motion carried. 7-4 resolution by Alderman Heidemann authorizing and executing agreement for access of property and environmental remediation. Alderman Heidemann. Thank you, mayor. I move that the resolution be put upon his passage. Second. It's been moved and seconded that the resolution be put upon his passing. Under discussion, Alderman Heidemann. Okay. Under this resolution, this allows the Great Lakes Regional Program Office to use this area for parking equipment, for the dredging, dewatering and the transportation of sediments from the Shubwagon River. And that project could be completed in the Bay of 2013. Thank you. Alderman Heidemann. Is there any discussion? Seeing none, the clerk will call the roll. 16 ayes. Motion carries. 8-1 and 8-2 under other matters will be referred. 8-3, an aural from the purchasing agent submitting bids for Shubwagon River area concerns for habitat restoration. Alderman Heidemann. Thank you, Mr. Mayor. I would request that we take 8-3, 8-4, 8-5 and 8-6 together, please. Is there all relative to each other? It's been moved and seconded. Second. To accept all the 8-3 through 8-6, the aural and the two resolutions be put upon their passage. Under discussion. Thank you, Mr. Mayor. And as part of this also would ask that we suspend the rules. Second. On all those documents. So we will vote on suspending the rules first. Any discussion on suspending the rules? Otherwise, the clerk will call the roll. 16 ayes. Thank you, Mr. Mayor. Make a motion to accept and file the two ROs and pass the two resolutions. Second. It's been moved and seconded to accept and file the two ROs and pass the two resolutions. Is there any discussion? Alderman Hammond. Thank you. Just for the, as Alderman Bourne indicated for the people at home, this is for the Sheborgen River area concern of habitat restoration projects, which is restoration improvements for Islinging Park, Wildwood Island, and the Riverbank adjacent to Kiwanis at the EPA. Part of this will be getting funds or accepting funds from the EPA. Part of it is appropriating funds from the EPA to the project. And again, for the restoration of those three areas. Thank you. Under discussion, Alderman Bourne. Thank you, Mayor. Also for the benefit of the people at home during our discussions on this at Public Works, these funds also contain money to continue to monitor this restoration for a period of five years. So the city really doesn't have to do it. The funding provides for, I guess it would be the EPA, whoever is going to do it, but for five years. So for example, the enhancements that are going to be made by Kiwanis Park, for example, that will be monitored for five years to see that it's effective before we would have any responsibility as a city. Thank you, Alderman Bourne. Any other discussion or questions? Hearing none. Clerk will call the roll. 16 ayes. Motion carried. Pull them in Hammond. Thank you, Mr. Mayor. I would move motion to convene in closed session under the exemption. He's got a couple more other matters. I'm sorry. Let's do that. Take care of people. Yeah, I don't see it. City attorney. Thank you, Your Honor. 8.7 is an RO by the city clerk submitting various license applications for the period ending June 30, 2013 and June 30, 2014. That will go to law and license. And 8.8 is an RO by the city clerk submitting communication from Kelly Hine, executive director of Meals on Wheels, that they have submitted an offer to purchase a piece of land behind the Taylor Drive property, formerly the Shookert parcel. That will go to the plan commission. Actually, it will go to finance. Finance. Thank you. Alderman Hammond. You ready? Yep. Motion convening closed session of the exemption contained in section 19.85, subsection 1G, Wisconsin statutes for the purpose of conferring with legal counsel for the city who is rendering oral advice concerning strategy to be adopted by the city with respect to litigation, which it is and which will be likely to become involved. I can move second to go into closed session. Any discussion? All those in favor? The clerk will call the roll. 16 ayes. Motion carried. We'll ask the convener and the crowd to and we'll convene in about five minutes.