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Home My WebLink About1999-10-11 - Agendas - Final • MEETING NOTICE The Advertising and Promotion Commission will meet on Monday, October 11 , 1999, at 2 :00 p.m. at the Chamber of Commerce office. ADVERTISING AND PROMOTION COMMISSION October 11 , 1999 2 :00 p.m. Chamber of Commerce office I Call to Order II. Reports A. Approval of Minutes for September 13 B. Financial Report C. Convention and Visitor Activity - Marilyn Johnson D. Blackwood/Martin/CJRW Report — Susan Wallace 1 . 2000 Marketing Plan 2. Web Site III. Old Business • IV. New Business A. Funding Requests for 2000 V. Adjourn Informational Items — Trolley Operations Report Hearing and Trial on Town Center Lawsuit will be Thursday, October 14 at 9:00 a.m. in Judge Mary Ann Gunn's court (Courthouse Annex — 2"d floor — corner of Center and College Sts.) • • GROUP: ADVERTISING & PROMOTION COMMISSION DATE: September 13, 1999 PRESENT: Joe Fennel, Heather Daniel, Joe Fennel, Fred Hanna, Alex Jerde, Carl Maguire, Curtis Shipley, Jim Waselues, and Marilyn Johnson ABSENT: None The regular meeting of the Advertising and Promotion Commission was called to order at the City Hall Council Chambers at 2:00 p.m. by Commissioner Joe Fennel. MINUTES Moved by Shipley, second by Hanna to approve the minutes of the August 9 meeting. Motion carried. FINANCIAL REPORT Kevin Crosson presented the financial report. Expenses in August were $23,791 with major expenditure for advertising. Collections for August were $ 103,688, up 13 .52% over last August. Year to date collections are $770,538, up 7.33%. • Moved by Shipley, second by Jerde to approve the financial report. Motion carried. CONVENTION AND VISITOR DEVELOPMENT REPORT Marilyn Johnson reviewed activity report in agenda packet. She has approval to put Fayetteville information in rental car contracts and is looking for a sponsor. Step on tour guide service will be provided for Panoramic Tours (Cape Girardeau, MO) in September. She announced the UA Track hosting the SEC Track Finals and the NCAA Track Finals at the new facility. Official Groundbreaking for the Town Center was held on August 24. During the month, Marilyn met with Julian and Jane Archer who wish to donate a sculpture for the Town Center plaza. They are working with an artist and will present the final design in about three months. ADVERTISING AGENCY REPORT Susan Wallace reported that A & P website on-line target date is October 1 . The site will be joined with the Chamber of Commerce site via a splash screen. Site visitor will then choose Visitor information or Chamber information. Slight drop in advertising inquiries because fall newspaper broke late. Advertising 2000 plan will be presented in October. • • Fayetteville.com was not recommended as a media purchase because 70% of the projected audience are Fayetteville residents. OLD BUSINESS Richard Alderman reported that the contractor was working diligently on the site demolition process. The front level has been cut down and no rock found. Excavation by Executive Square went okay by the plaza area. Cisterns (wells) were found on the site as expected. Dr. Jerry Hilliard and another archeologist from the University did a review of the site to add to historical maps of downtown Fayetteville. Next will come the digging of footings and drilling of piers. There have been a few problems with site utilities. The contractor and the city have worked as quickly as possible to repair problems. Architectural fee — A budget adjustment was needed to reflect the change in architectural fees since final price of project has been determined. Motion by Shipley, second by Jerde to accept the change in contract amount as presented in document in agenda increasing authorized amount by $54,995 .00. Motion carried. A & P Transfer to Town Center — A budget adjustment was required because the bond payment required more funds this year because bond payment start was delayed. Moved by Shipley, second by Daniel to approve a budget adjustment for $49,592. • ANNOUNCEMENTS Town Center hearing in Mary Ann Gunn's court will be held on Thursday, September 16 at 10 a.m. There being no further business, the meeting was adjourned. Respectfully submitted, Marilyn Johnson Director, Convention and Visitor Development • City of Fayetteville, Arkansas Monthly HMR Tax Collections 1997-1999 • 1997 1998 1998 1999 1999 Total Total Change Over Total Change Over HMR Taxes HMR Taxes Prior Year HMR Taxes Prior Year January $ 73,809 $ 82,157 11 .31 % $ 899125 8.48% February 739099 83,759 14.58% 88,757 5.97% March 76,808 803815 5.22% 91 ,271 12.94% April 88,050 89,603 1 .76% 94,588 5.56% May 879221 979309 11 .57% 96,120 -1 .22% June 84,417 98,318 16.47% 104,709 6.50% July 79,784 94,621 18.60% 102,279 8.09% August 84,099 91 ,336 8.61 % 103,688 13.52% September 82,984 93,903 13.16% 97,609 3.95% October 95,030 95,649 0.65% 0 November 88,147 98,784 12.07% 0 December 79,492 88,266 11 .04% 0 Total $ 992.939 $ 1 ,094,521 10.23% $ 868.147 6.94% • HMR Tax Collections By Month 120 100 80 a 3 � 60 .2 40 20 0 L [fl I I I I 1 11 1 1 January February march April May June July August septembe October November December D 1997 ® 1998 ® 1999 • \HMRTAX Advertising & Promotion Commission Financial Report - Expenditures For the Month Ending September 30, 1999 • 1999 YTD September Budget Item Budget Expenses Remaining Expenses 800 Telephone Number (Chamber of Commerce) $ 10,000 $ 7,500 $ 2,500 $ Audit Expense 150 150 0 Brochure Development 17,000 3,469 130531 Chamber of Commerce Operations Contract 100,000 100,000 0 Collection Expense - City of Fayetteville 22,500 17,363 5,137 1 ,952 Convention Support 61100 3,050 3,050 250 Public Notification (BMA Contract) 232,375 161 ,335 71 ,040 20,623 Town Center Architectural Services 281 ,789 212,385 69,404 6,687 Town Center Equipment & Furnishings 1001000 100,000 Town Center Marketing Manager (Salary/Expenses) 21 ,240 21 ,240 Special Projects AAAAA State Basketball Tournament 3,200 3,200 0 Air Museum 32,000 24,000 8,000 Annual Champions Day (State High School Championship) 3,000 3,000 0 Ark. High School Baseball Coaches All-Star Game 800 800 0 Ark. Overall High School Baseball Finals 0 0 Ark. State Boys Golf Tournament 0 0 Ark. State High School Cross Country Championships 1 ,200 1 ,200 Basketball Congress Int, State Basketball Tournament 800 800 0 • Botanical Garden Society - Master Plan 8,000 8,000 Fay. Public Library Genealogical Collection 21 ,094 21 ,094 0 First Night 2,800 2,800 Gary Hampton Memorial Tournament 1 ,600 1 ,600 HAWKS AAU Basketball Tournament 1 ,600 1 ,600 0 Holiday Hoops 91600 9,600 Joe Martin Memorial Stage Race 960 840 120 North Arkansas Symphony Society 1 ,248 1 ,248 0 Ozark Classic Cup XVI Soccer Tournament 20160 2,160 Razorback SAMS 3,480 3,480 Square Gardens 16,338 10,943 5,395 491 Trolley Operations 20,000 17,083 2,917 105 Univ. of Arkansas Museum 5,724 949 4,775 Walton Arts Center - Brochures 1 ,200 600 600 Washington County Historical Society - Roof Repl. 10,400 10,400 0 Wood Bat Classic 800 800 0 Rim Reapers (not to exceed) 4,620 4,620 0 Air Museum (Air Fest) 3,000 3,000 0 Razorback Baseball NCAA Tournament 3,001 3,001 0 Subtotal Special Projects 158,625 107,978 50,647 596 •TOTAL USES $ 949,779 $ 613,230 $ 336.549 $ 30.108 'W&PEXP99 • ACTIVITY REPORT September,1999 INQUIRY RESPONSES September 1999 Tourist — 297 1999 Year to Date — 2410 September 1998 Tourist - 360 1998 Year to Date — 2655 September 1999 Advertising Response — 2588 1999 Year to Date — 241448442& September 1998 Advertising Response — 3399 1998 Year to Date — 19618 September 1999 Relocation — 113 1999 Year to Date — 1146 September 1998 Relocation — 155 1998 Year to Date — 1406 September 1999 Total Inquiries — 1606 September 1998 Total Inquiries — 3914 Year to Date Total Inquiries 1999 — 248ft v1703 Year to Date Total Inquiries 1998 — 23679 CONVENTION ACTIVITY • Conventions — Reunion 2000 NACADA — national advising organization (7 states) for Architecture Tourist Activities - Panorama Tours Relations with Media — Southwestern Bell Yellow Pages (community pages) Elite Home magazine Miscellaneous — Larry Driver — GT programs in the junior highs Web pages ESPN program - Trout guide from Montana SAE — Patrick Stinson Top HMR Collections — August Clarion Jose's Hilton Red Lobster Chili's Ryan's Ozark Brewing Company • ADVERTISING INQUIRIES - 1999 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC TOTAL Tourist 0 ACW 1 1 2 AY 118 118 BH 18 28 26 72 CWT 0 FC 4 500 802 726 1094 396 20 3542 FBT 332 262 313 907 HT 70 10 182 47 36 5 10 1 361 H&A 151 138 43 332 Journey 11 84 65 21 98 279 MC 415 446 611 355 290 36 2153 ML 104 87 1429 728 274 233 231 394 3480 MT 146 77 19 242 MVG/TMG 773 535 359 1667 NATA 45 167 358 533 245 306 167 238 178 2237 OK 21 97 63 107 288 SL 43 33 454 383 250 259 130 493 221 2266 SNI 1304 183 38 15 1082 2622 ST 66 74 8 148 TA 12 12 TM 7 4 160 525 70 20 13 189 88 1076 T50&B 58 130 29 217 • USA 1257 399 1656 Vac 188 58 39 245 29 31 590 Meetings SM 0 TOTAL 255 303 3314 7188 4194 3145 1986 1294 2588 0 0 24267 ACW-Am. Civil War BH-Better Homes & Gardens CWT-Civil War Times D-D Magazine FC-Family Circle HT-Historic Traveler H&A-Home and Away MC-Mccal Is ML-Midwest Living MVG-Midwest Vacation NG-Nati Geog Traveler NTG-NATA OK-Oklahoma Today SL-Southern Living SMI-State Mag. Insert SM-Successful Meetings SV-Summer Vacation • TA-Travel America TJ-Texas Journal ADVERTISING INQUIRIES BY STATE - 1999 • JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC Tourist Reim TOTAL AL 2 2 46 48 42 45 43 33 26 287 AK 0 0 1 4 4 4 1 0 1 15 AZ 1 3 17 48 32 27 21 8 9 166 AR 7 20 547 201 108 162 208 64 387 1704 CA 14 17 72 187 120 143 80 38 25 696 CO 1 4 14 43 20 24 13 12 13 144 CT 0 1 11 26 25 22 9 3 2 99 DE 0 1 14 9 8 5 2 1 0 40 DC 0 0 3 1 0 5 1 1 0 11 FL 8 10 70 165 113 139 83 51 31 670 GA 4 5 42 61 46 51 41 27 17 294 HI 1 0 22 5 6 12 5 2 3 56 ID 0 1 9 10 10 9 2 2 0 43 IL 24 18 158 868 438 215 160 72 182 2135 IN 11 3 56 346 226 76 47 29 62 856 IA 7 13 29 396 158 76 46 22 57 804 KS 6 7 47 232 166 61 45 20 102 686 KY 4 3 37 63 41 56 30 17 10 261 LA 8 13 129 145 81 143 99 69 70 757 ME 0 1 4 16 4 8 2 0 0 35 MD 3 6 26 53 26 27 16 8 4 169 MA 3 3 28 30 30 24 9 2 3 132 MI 13 12 63 377 205 104 54 41 66 935 MN 10 6 50 434 214 68 30 22 43 877 MS 4 5 64 61 40 57 32 35 50 348 MO 16 9 344 572 366 218 133 92 286 2036 MT 1 3 4 5 12 6 3 1 1 36 NE 4 3 9 90 57 41 17 7 20 248 NV 0 0 14 18 8 6 9 1 1 55 NH 0 0 10 6 4 6 3 2 0 31 NJ 0 5 27 77 47 57 24 10 1 248 NM 1 5 11 13 21 20 8 3 9 91 NY 5 16 64 155 113 111 60 11 5 540 • INC 5 4 60 89 78 78 54 26 401 1 NO 0 0 28 18 9 19 8 1 1 82 OH 14 7 53 363 243 141 71 32 43 967 OK 23 9 233 244 170 107 52 34 267 1139 OR 2 5 15 31 21 27 13 5 6 125 PA 4 7 52 114 101 81 42 15 8 424 RI 0 0 6 7 4 4 1 1 0 23 Sc 3 7 35 38 29 37 21 8 9 187 SD 1 1 57 46 21 8 7 4 1 146 TN 3 7 107 85 64 59 40 52 80 497 TX 20 32 476 742 292 310 215 324 543 2954 UT 1 2 7 10 16 12 8 3 4 63 VT 0 0 7 8 2 4 0 1 1 23 VA 1 6 42 60 55 43 36 32 16 291 WA 2 3 24 33 29 25 22 6 10 154 W V 2 1 17 28 18 16 4 3 4 93 WI 14 14 38 469 213 105 41 33 84 1011 WY 0 0 4 9 7 4 3 1 3 31 APO 0 0 3 2 2 4 0 1 0 12 CAN 0 1 3 16 15 10 9 2 5 61 FOR 2 2 5 13 14 23 5 4 10 78 TOTAI 255 303 3314 7188 4194 3145 1986 1294 2588 0 0 0 24267 • • Advertising Inquiries by State - September, 1999 HT Jou ML NATA SNI OkT SL TM T50+ TMG Vac TOTAL AL 1 3 1 19 1 1 26 AK 1 1 AZ 1 2 3 1 1 1 9 AR 6 24 345 9 1 2 387 CA 2 12 3 3 1 2 1 1 25 CO 4 3 2 2 1 1 13 CT 1 1 2 DE 0 DC 0 FL 1 3 6 2 12 3 4 31 GA 1 1 13 2 17 HI 2 1 3 ID 0 IL 64 7 1 3 12 1 2 91 1 182 IN 26 3 2 1 3 1 23 3 62 IA 34 1 2 1 1 1 17 57 KS 19 4 6 1 2 69 1 102 KY 3 2 5 10 LA 1 6 40 20 2 1 70 ME 0 MD 2 2 4 MA 1 2 3 MI 43 4 2 1 16 66 MN 12 9 3 1 18 43 MS 5 28 16 1 50 • MO 66 12 114 1 6 1 84 2 286 MT 1 1 NE 13 4 1 1 1 20 NV 1 1 NH 0 NJ 1 1 NM 7 1 1 9 NY 2 1 1 1 5 NC 3 3 1 7 ND 1 1 OH 35 2 3 2 1 43 OK 8 7 171 70 5 4 1 1 267 OR 2 2 1 1 6 PA 1 2 1 2 2 8 RI 0 Sc 1 1 6 1 9 SD 1 1 TN 7 3 56 11 1 2 80 TX 89 8 32 292 4 49 67 1 1 543 UT 1 2 1 4 VT 1 1 VA 3 2 1 10 16 WA 1 3 2 1 1 2 10 WV 1 1 1 1 4 WI 29 7 1 2 2 38 5 84 WY 1 2 3 APO 0 CAN 1 2 1 1 5 • FOR 1 7 1 1 10 TOTAI 1 98 394 1781082 107 221 88 29 359 31 2588 RELOCATION INQUIRIES 1999 Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec TOTAL AL 3 2 3 1 1 1 1 12 AK 0 • AZ 5 5 6 2 2 3 1 1 5 30 AR 21 16 29 18 26 19 26 21 18 194 CA 9 7 14 21 10 6 8 5 4 84 CO 3 2 6 2 4 1 3 4 5 30 CT 1 2 1 1 1 6 DE 0 DC 0 FL 6 3 5 4 2 5 101 6 3 44 GA 3 1 1 5 4 2 2 4 22 HI 1 1 2 ID 1 1 1 3 IL 5 6 14 71 7 7 3 6 7 62 IN 1 1 2 1 1 2 1 1 10 IA 4 2 7 2 31 1 3 1 1 24 KS 1 2 5 2 4 3 3 3 23 KY 3 3 11 1 3 2 12 LA 1 3 4 7 4 5 41 10 1 39 ME 1 1 MD 1 2 11 1 6 MA 1 3 1 2 1 1 9 MI 7 4 4 3 3 2 1 24 MN 2 5 5 5 5 1 2 3 28 MS 1 2 2 1 3 2 11 MO 3 5 6 9 6 3 2 6 6 46 MT 1 2 1 1 5 NE 1 1 1 1 1 3 8 NV 3 1 1 1 6 • NH 1 1 2 1 5 NJ 1 3 2 1 1 2 2 12 NM 2 1 1 4 4 1 1 2 16 NY 2 2 1 1 1 3 1 11 NC 1 1 1 2 1 2 1 1 10 NO 0 OH 6 7 4 1 3 3 2 2 28 OK 5 4 4 3 8 5 8 7 8 52 OR 2 1 1 1 5 PA 2 2 1 2 7 PR 0 RI 0 SC 2 4 3 1 10 SD 2 1 1 2 2 8 TN 4 5 3 1 1 15 2 1 1 33 TX 17 10 24 12 30 16 17 16 142 UT 1 1 2 VT 1 1 2 VA 1 2 1 2 1 2flil WA 4 1 3 WV 1 1 1 1 WI 2 3 5 2 3 4 4 2 5 WY 1 1 APO 1 1 1 CAN 3 1 FOR 1 1 TOTAL 129 113 176 130 158 95 122 110 113 0 0 • Tourist In vides 1999 IJan Feb Mar Apr May Jun Jul Aug Se Oct Nov Dec TOTAL AL 3 2 5 1 1 3 2 17 AK 1 1 2 AZ 2 11 4 4 1 2 2 1 17 AR 46 471 91 43 57 36 52 39 66 477 CA 6 111 19 6 9 6 10 6 5 78 CO 3 5 3 4 1 2 1 19 CT 1 1 2 1 1 2 8 DE 1 1 DC 1 1 1 FL 41 21 15 3 7 2 4 2 4 43 GA 11 41 1 3 2 3 1 4 19 HI I 1 1 ID 2 1 3 IL 111 81 66 13 14 4 3 4 13 136 IN 3 21 15 4 10 2 2 2 40 IA 2 4 30 6 5 2 2 1 9 61 KS 7 101 31 11 14 3 5 9 10 100 KY 11 7 5 4 2 1 2 22 LA 41 10 39 10 17 6 9 7 17 119 ME 1 1 2 MD 1 21 1 2 3 1 1 11 MA 4 1 2 2 2 11 MI 4 7 161 3 6 1 2 4 43 MN 6 2 33 4 7 2 5 7 66 MS 2 4 8 4 5 1 3 7 3 37 MO 6 20 43 24 29 16 28 21 32 219 • MT 3 1 1 5 'NET-2 2 4 2 3 3 2 18 NV 1 1 1 1 1 5 NH 1 1 2 NJ 1 3 2 2 2 10 NM 1 1 3 1 3 1 10 NY 2 2 2 3 3 12 NC 2 4 1 2 2 2 13 ND 1 1 2 OH 3 5 24 4 7 4 1 2 7 57 OK 11 18 39 19 30 13 22 23 22 197 OR 1 1 3 1 6 PA 1 3 2 1 1 1 2 11 PR 2 2 RI 1 1 2 SC 1 2 1 1 1 6 SD 4 3 1 1 9 TN 2 4 10 6 6 3 5 5 6 47 TX 19 39 65 29 44 25 27 42 46 336 UT 2 1 3 VT 1 1 VA 2W23 2 3 2 1 3 14 WA 2 1 1 1 9 WV 1 1 4 WI 1 2 1 3 13 54 WY 0 APO 1 2 CAN 2 1 1 10 FOR 2 1 5 2410 166 224 635 230 316 140 2001 2021 2971 01 0 0 2410 • FAYETTEVILLE ADVERTISING & PROMOTION COMMISSION FUNDING REQUESTS - 2000 Requestor To Be Used For 1999 Recd 2000 Request Arkansas Air Museum Museum Support $ 32,000.00 $ 40,000.00 Fayetteville Athletic Dept. Saturday of Champions $ 31000.00 $ 51000.00 Arkansas State Cross Country Championships $ 11200.00 $ 11500.00 Botanical Garden Society Master Planning Services $ 21 ,094.00 $ 20,000.00 Committee for Mardi Gras Mardi Gras $ - $ 11171 .21 Downtown/Dickson Enhance- Staff/Advertising $ $ 509000.00 ment Project Fayetteville.com Web print media campaign $ $ 99000.00 First Night Fayetteville Advertising support $ 21800.00 $ 6,000.00 • Historic District Commission brochures $ - $ 71371 .00 (2 yr. Requ Holiday Hoops tournament $ 93600.00 $ 21 ,500.00 Joe Martin Memorial Stage Rac cycle event $ 840.00 $ 11000.00 North Arkansas Symphony brochure budget $ 1 ,248.00 $ 61156.00 Arkansas Comets Soccer Club Ozark Classic Cup Tournament $ 21160.00 $ 4,926.00 Razorback Sams Fall Samboree $ 33480.00 $ 41775.00 Square Gardens Gardens $ 16,338.00 $ 16,000.00 Trolley Operations/Maintenance $ 203000.00 $ 50,000.00 USSSA - Arkansas Chapter World Softball Tournament $ $ 61000.00 Wash. Co. Historical Society brochure $ 10,400.00 $ 21000.00 Walton Arts Center brochure distribution-Mall $ 1 ,200.00 $ 11800.00 Wood Bat Classic tournament $ 800.00 $ 11984.99 $ 256, 184.20 • City of Fayetteville - Trolley Operation Regular Route • 1998 Activity 1999 Activity Average Average Trip Days of Trips Per Trip Days of Trips Per Month Count Operation Day Count Operation Day Jan. 1 ,600 23.50 68.09 10457 22.00 66.23 Feb. 1 ,609 22.00 73.14 1 ,529 22.00 69.50 March 1 ,630 24.00 67.92 1 ,899 25.00 75.96 April 1 ,728 24.00 72.00 1 ,884 24.50 76.90 May 1 ,804 22.50 60.18 1 ,996 23.50 84.94 June 1 ,857 24.00 77.38 2,314 24.00 96.42 July 1 ,930 23.00 83.91 2,276 24.50 92.90 Aug. 1 ,844 23.50 78.47 2,852 24.00 118.83 Sept. 1 ,678 23.00 72.96 2,729 24.00 113.71 Oct. 1 ,973 24.50 80.53 0 0.00 0.00 Nov. 1 ,438 21 .00 68.48 0 0.00 0.00 Dec. 1 ,644 23.00 71 .48 0 0.00 0.00 20,735 278.00 74.59 18,936 213.50 88.69 Average Trips Per Day too 120 too ao • w y1 6040 20 s 0 Jan. Feb. March April May June July Aug. Sept. Oct. Nw. Dec. D 1998 m 1999 Trip Summary of Other Trolley Trips (August/September 19991 Count City of Fayetteville - City Council 26 University of Arkansas 27 City of Fayetteville - PlanningCommission 14 University of Arkansas 22 City of Fayetteville - PlanningCommission 14 Baptist Student Union 18 Conference for Russians 10 UBC Youth Group 16 UBC Youth Group 18 Margarget Ann Cole 200 UBC 19 U of A Admisssions 162 Central Methodist Church 22 UBC 20 Southw estem Bell 16 UBC 18 • TOTAL - OTHER TROLLEY TRIPS 622 \TROLLEY L IN THE CHANCERY COURT OF WASHINGTON COUNTY, A.RAS GEORGE WILLIAMS and DOROTHY COX, v For themselves and all others similarly situated, PLA&1 JFF§ rn 0 VS. E 99-1319-4 u, o y o CITY OF FAYETTEVILLE, ARKANSAS; ADVERTISING AND PROMOTION COMMISSION OF THE CITY OF FAYETTEVILLE, ARKANSAS; BEKKA DEVELOPMENT CO.; NABHOLZ CONSTRUCTION CORPORATION; and WITTENBERG, DELONY & DAVIDSON, INC., DEFENDANTS. SEPARATE DEFENDANT, ADVERTISING AND PROMOTION COMMISSION FOR THE CITY OF FAYETTEVILLE, ARKANSAS', BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT COMES NOW the separate defendant, Advertising and Promotion Commission of the City of Fayetteville, Arkansas, by and through its attorney of record, Kenneth R. Shemin, of Shemin Law Firm, and in support of its motion for summary judgment filed pursuant to Rule 56 • of the Arkansas Rules of Civil Procedure, submits this brief for the Court's review and consideration. I. Introduction The City of Fayetteville issued bonds to assist in financing the construction of the Fayetteville Town Center, a convention and parking facility. In addition to the bonds, the Town Center project is being financed with monies from two additional sources, monies pledged by the Advertising and Promotion Commission from its Advertising and Promotion Fund and from monies pledged by the City from its General and Off-Street Parking Funds. Plaintiffs challenge the pledge of monies over and above the specific bond amount as an illegal exaction. For the reasons set forth in the Advertising and Promotion Commission's Motion for Summary Judgment • 1 and the rationale set forth in this brief, separate defendant, Advertising and Promotion • Commission, should be granted summary judgment pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. II. Statement of Facts Separate defendant, Advertising and Promotion Commission for the City of Fayetteville (hereinafter referred to as the "A and P Commission"), adopts and incorporates by reference the background facts set forth in City of Fayetteville's, Brief in Support of Motion of Separate Defendant, City of Fayetteville, Arkansas, for Summary Judgment, pp. I through 5, as though fully set forth herein. II. Arguments and Authorities Separate defendant, A and P Commission, is entitled to summary judgment pursuant to • Rule 56 of the Arkansas Rules of Civil Procedure. Pursuant to this rule, summary judgment shall be entered, "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ark. R. Civ. P. 56(c) (Supp. 1999). Clearly, from an examination of the affidavits and voluminous pleadings on file in this case, Plaintiffs have failed to show there are any genuine issues of material fact with respect to the A and P Commission's pledge of monies toward the construction of the Fayetteville Town Center. As set forth in the facts adopted and incorporated by reference from Brief in Support of Motion of Separate Defendant, City of Fayetteville, Arkansas, for Summary Judgment, in 1977 the citizens of Fayetteville approved a hotel, motel and restaurant tax ("HMR tax") of one • 2 percent (1 %) for creation of an advertising and promotion fund to be administered by a • commission to promote the city, encourage tourism and develop a city convention center. Pursuant to Arkansas law, once voters approved an HMR tax, the city was to create an advertising and promotion commission to oversee the HMR tax revenues. Ark. Code Ann. § 26- 75-605 (1997). All taxes, interest, penalties and costs collected pursuant to the HMR tax are credited to the city advertising and promotion fund. Ark. Code Ann. § 26-75-604(a) ( 1997). When the Fayetteville electorate approved the tax, the city passed Fayetteville City Ordinance 2310 to levy the tax, create the A and P Commission and establish the Advertising and Promotion Fund. Arkansas law provides that the Advertising and Promotion Commission is given the sole discretion to decide how to spend HMR tax revenues held in the Advertising and Promotion • Fund for advertising and promotion of the city. Ark. Code Ann. § 26-75-606(a)(2) ( 1997). The Arkansas statutes even provide a laundry list of approved uses for the funds. Specifically, the Commission must use the funds for advertising and promoting the city and its environs or for the construction, reconstruction, extension, equipment, improvement, maintenance, repair, and operation of a convention center or for the operation of tourist promotion facilities in the city, and facilities necessaryfor, supporting, or otherwise pertaining to, a convention center, or for the payment of the principal of, interest on, and fees and expenses in connection with, bonds as provided in this subchapter in the manner as shall be determined by the city advertising and promotion commission. Ark. Code Ann. § 26-75-606(a)( 1 ) ( 1997) (emphasis provided). • 3 In the case at bar, the A and P Commission pledged $ 1 ,000,000.00 from the Advertising • and Promotion Fund for the construction of the Town Center project. Clearly from a review of these statutes, the A and P Commission's acts are within its statutory authority because the statute explicitly states the commission has authority to use the funds for construction and operation of a convention center and the facilities necessary to support it. In their Fourth Amended Complaint, Plaintiffs complain that the monies pledged were not held pursuant to a reserve fund agreement required by law. (See Fourth Amended Complaint, p. 16.) The money pledged by the A and P Commission came from the Advertising and Promotion Fund established by Fayetteville City Ordinance 2310 when the city levied a voter-approved HMR tax, and established the A and P Commission and Fund. As such, these monies, which were properly held in the Advertising and Promotion Fund, could be pledged for • the Town Center project. Plaintiffs, in their Fourth Amended Complaint, contend the A and P Commission's pledge of monies in addition to the amount authorized by the Fayetteville electorate is an illegal exaction. The A and P Commission has sole discretion to administer the funds collected from the HMR tax approved by the Fayetteville electorate in 1977. The A and P Commission can, pursuant to Arkansas law, pledge any or all of the Advertising and Promotion Fund toward construction of a convention center. Thus, the A and P Commission's pledge of $ 1 ,000,000.00 toward construction of the Town Center was appropriate and can hardly be termed an illegal exaction. In fact, regardless of the outcome of the other issues in this case, the A and P Commission clearly had the authority under the law to pledge any amount of the monies held in the Advertising and Promotion Fund toward construction of the Fayetteville Town Center. • 4 • Plaintiffs have failed to show from their pleadings or otherwise that there are genuine issues of fact with regard to the A and P Commission's actions. As such, the A and P Commission is entitled to summary judgment as a matter of law. IV. Conclusion Arkansas law is clear. The A and P Commission, may contribute all or a portion of the Advertising and Promotion Fund in its sole discretion toward the construction of the Fayetteville Town Center. The A and P Commission's actions do not constitute an illegal exaction. Plaintiffs have failed to demonstrate there are any genuine issues of material fact as to the A and P Commission's actions. As such, the A and P Commission is entitled to summary judgment pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. Respectfully submitted, • SHEMIN LAW FIRM One East Center Street, Suite 205 Fayetteville, Arkansas 72701 Telephone: (501 ) 973-4442 Facsimile: (501 ) 973-4443 By: Kenneth R:Shemin, ABA # 78138 Attorneys for Separate Defendant, Advertising & Promotion Commission • 5 • CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Separate Defendant, Advertising and Promotion Commission for the City of Fayetteville, Arkansas', Brief in Support of Motion for Summary Judgment, was either hand-delivered or transmitted by facsimile addressed as follows: Honorable Mary Ann Gunn Woody Bassett Washington County Circuit Chancery Judge Bassett Law Firm Courts Building, Second Floor P.O. Box 3618 41 E. Center Street Fayetteville, AR 72702-3618 Fayetteville, AR 72701 (Via Facsimile) (Hand-Delivered) Jerry Rose William Jackson Butt, II Fayetteville City Attorney Davis, Cox & Wright, PLC 113 W. Mountain St. P.O. Drawer 1688 Fayetteville, AR 72701 Fayetteville, AR 72702- 1688 (Via Facsimile) (Via Facsimile) • Ronald L. Boyer Mark Pryor Boyer, Schrantz, Rhoads & Teague, P.A. Attorney General 221 N. 3ro St. 200 Cattlett-Prien Tower Bldg. Rogers, AR 72756 323 Center St. (Via Facsimile) Little Rock, AR 72201 -2619 (Via Facsimile) Marshall Dale Evans E. Kent Hirsch P.O. Box 1986 107 W. Emma Fayetteville, AR 72702- 1986 Springdale, AR 72764 (Via Facsimile) (Via Facsimile) E. Lamar Pettus P.O. Box 1665 Fayetteville, AR 72702- 1655 (Via Facsimile) Kenneth R. Shemin • 6 p W • IN THE CHANCERY COURT OF WASHINGTON COUNTY, ARKiS�tS a GEORGE WILLIAMS and DOROTHY COX, s O For'tkemselves and all others similarly situated, PLAIlII FS-Io rn y 3 0 VS. E 99-1319-4 N o y a v� s CITY OF FAYETTEVILLE, ARKANSAS; ADVERTISING AND PROMOTION COMMISSION OF THE CITY OF FAYETTEVILLE, ARKANSAS; BEKKA DEVELOPMENT CO.; NABHOLZ CONSTRUCTION CORPORATION; and WITTENBERG, DELONY & DAVIDSON, INC., DEFENDANTS, SEPARATE DEFENDANT, ADVERTISING AND PROMOTION COMMISSION FOR THE CITY OF FAYETTEVILLE, ARKANSAS', MOTION FOR SUMMARY JUDGMENT COMES NOW the separate defendant, Advertising and Promotion Commission of the City of Fayetteville, Arkansas, by and through its attorney of record, Kenneth R. Shemin, of • Shemin Law Firm, and for its motion for summary judgment against the Plaintiffs on their Fourth Amended Complaint pursuant to Rule 56 of the Arkansas Rules of Civil Procedure, states: 1 . Plaintiffs have now filed their Fourth Amended Complaint seeking injunctive relief and disgorgement of monies paid to contractors, claiming that monies pledged to the City's Town Center project, including those pledged by the Advertising and Promotion Commission, over and above the revenues derived from a bond issuance for the project constitute an illegal exaction. 2. As indicated above, a portion of those monies pledged over and above the revenues derived from the bond issuance were pledged by the Advertising and Promotion Commission (hereinafter referred to as "A and P Commission") from the Advertising and • 1 • Promotion Commission Fund. 3 . Under Arkansas law, the A and P Commission has complete discretion to decide how to appropriate those monies. The A and P Commission may pledge fund monies for the construction of a convention center. Ark. Code Ann. § 26-75-606 ( 1997). Pursuant to that statue, it is clear that the A and P Commission, not the City of Fayetteville, has control over the Advertising and Promotion Fund. Id. 4. Regardless of this Court's rulings pertaining to the ballot title issue and the propriety of city appropriations and/or contracts, the A and P Commission's actions are completely proper and specifically authorized by Arkansas law. 5 . For all these reasons, the Plaintiffs have failed to show that there are any genuine issues as to any material fact pertaining to separate defendant, A and P Commission's actions. • As such, the A and P Commission is entitled to judgment as a matter of law. Ark. R. Civ. P. 56 (c) (Supp. 1999). 6. A Brief in support of this motion for summary judgment is filed contemporaneously and incorporated as though fully set forth herein. WHEREFORE, separate defendant, Advertising and Promotion Commission for the City of Fayetteville, Arkansas, prays this Court enter an order for summary judgment against the Plaintiffs on Plaintiffs' Fourth Amended Complaint, for its costs, attorneys fees and such other and further relief as the Court deems just and equitable under the circumstances. Respectfully submitted, SHEMIN LAW FIRM One East Center Street, Suite 205 Fayetteville, Arkansas 72701 40 2 • Telephone: (501 ) 973-4442 Facsimile: (501) 973-4443 — / Kenneth R. Shemin, ABA # 78138 Attorneys for Separate Defendant, Advertising & Promotion Commission CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Separate Defendant, Advertising and Promotion Commission for the City of Fayetteville, Arkansas', Motion for Summary Judgment, was either hand-delivered or transmitted by facsimile addressed as follows: Honorable Mary Ann Gunn Woody Bassett Washington County Circuit Chancery Judge Bassett Law Firm Courts Building, Second Floor P.O. Box 3618 41 E. Center Street Fayetteville, AR 72702-3618 Fayetteville, AR 72701 (Via Facsimile) • (Hand-Delivered) Jerry Rose William Jackson Butt, II Fayetteville City Attorney Davis, Cox & Wright, PLC 113 W. Mountain St. P.O. Drawer 1688 Fayetteville, AR 72701 Fayetteville, AR 72702- 1688 (Via Facsimile) (Via Facsimile) Ronald L. Boyer Mark Pryor Boyer, Schrantz, Rhoads & Teague, P.A. Attorney General 221 N. 3'd St. 200 Cattlett-Prien Tower Bldg. Rogers, AR 72756 323 Center St. (Via Facsimile) Little Rock, AR 72201 -2619 (Via Facsimile) Marshall Dale Evans E. Kent Hirsch P.O. Box 1986 107 W. Emma Fayetteville, AR 72702- 1986 Sprindgale, AR 72764 (Via Facsimile) (Via Facsimile) • 3 • E. Lamar Pettus P.O. Box 1665 Fayetteville, AR 72702- 1655 (Via Facsimile) t Kenneth R. Shemin • • 4 • IN THE CHANCERY COURT OF WASHINGTON COUNTY, ARKANSAS . GEORGE WILLIAMS and DOROTHY COX, L r For themselves and all others similarly situated, PLAINTIFFSI, o 7� 2 W vs. E 99-13194 v o m CITY OF FAYETTEVILLE, ARKANSAS; ADVERTISING m AND PROMOTION COMMISSION OF THE CITY OF FAYETTEVILLE, ARKANSAS; BEKKA DEVELOPMENT CE ) CO.; NABHOLZ CONSTRUCTION CORPORATION; and WITTENBERG, DELONY & DAVIDSON, INC., DEFENDANTS. SEPARATE DEFENDANT. ADVERTISING & PROMOTION COMMISSION FOR THE CITY OF FAYETTEVILLE, ARKANSAS', ANSWER TO PLAINTIFFS' FOURTH AMENDED COMPLAINT AND COUNTER-CLAIM FOR DECLARATORY JUDGMENT COMES NOW the separate defendant, Advertising and Promotion Commission for the City of Fayetteville, Arkansas, by and through its attorney, Kenneth R. Shemin, of Shemin Law • Firm and for its answer to Plaintiffs' Fourth Amended Complaint, states: 1 . Separate defendant, Fayetteville Advertising & Promotion Commission (hereinafter referred to as the "A and P Commission") denies each and every allegation contained in Plaintiffs' Fourth Amended Complaint unless specifically admitted herein. 2. The A and P Commission is without sufficient knowledge or belief to either admit or deny the allegations contained in paragraph 1 of Plaintiffs' Fourth Amended Complaint and therefore, the same are denied. 3 . The A and P Commission admits the allegations contained in Paragraph 2 of Plaintiffs' Fourth Amended Complaint that the City of Fayetteville, Arkansas, is a first class municipality located in Washington County, Arkansas, and that the same is organized as a mayor-council municipality. The A and P Commission also admits that the Advertising and • 1 • Promotion Commission of the City of Fayetteville, Arkansas, is a commission authorized by law and by the voters of the City of Fayetteville, Arkansas, to oversee the city' s Advertising and Promotion Fund. The A and P Commission denies the remaining allegations contained in paragraph 2. 4. The A and P Commission admits the allegations contained in paragraphs 3 and 4 of Plaintiffs ' Fourth Amended Complaint. 5 . The A and P Commission adopts by reference paragraphs 6, 7, 8, 9, 10, 11 , 12, 14, 177 18, 289 29, 303 34, 37, 389 395 433 44, 453 463 479 48, 49, 50, 53, and 64, of City of Fayetteville, Arkansas' , Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgement and adopts and incorporates the same as though fully set forth herein. 6. With respect to paragraph 15 of Plaintiffs' Fourth Amended Complaint, the A and • P Commission incorporates each admission and denial which it has stated in paragraphs 1 through 5 above, including those incorporated specifically in paragraph 5 from the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgement. 7. With respect to the allegation contained in Paragraph 16 of Plaintiffs Fourth Amended Complaint, the A and P Commission admits it decided to appropriate monies from the Advertising and Promotion Fund for the Town Center project. The A and P Commission denies the remaining allegations contained in paragraph 16 of Plaintiffs' Fourth Amended Complaint. 8. With respect to the allegation contained in paragraph 23 of the Complaint, the A and P Commission states affirmatively that the expenditure of advertising and promotion funds does not require a vote by the city electorate. Ark. Code Ann. §§ 12-43-502, 14-59- 101 et seq, • 2 • and 14-73- 101 et seq. 9. The A and P Commission denies paragraphs 192 20, 21 , 22, 245 259 26, 31 , 323 339 35 , 40, 41 , 51 , 54, 55 , 56, 57, 58, 59, 60, 61 , 62, 63 and 65, of Plaintiffs' Fourth Amended Complaint. 10. With respect to paragraph 27 of Plaintiffs' Fourth Amended Complaint, the Advertising and Promotion Commission incorporates each admission and denial which it has stated in paragraphs one through nine, including those incorporated specifically in paragraph 5 above from the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgment. 11 . With respect to paragraph 36 of Plaintiffs' Fourth Amended Complaint, the Advertising and Promotion Commission incorporates each admission and denial which it has • stated in paragraphs one through 10, including those incorporated specifically in paragraph 5 above from the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgment. 12. With respect to paragraph 42 of Plaintiffs' Fourth Amended Complaint, the Advertising and Promotion Commission incorporates each admission and denial which it has stated in paragraphs one through 11 , including those incorporated specifically in paragraph 5 above from the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgment. 13 . With respect to paragraph 52 of Plaintiffs' Fourth Amended Complaint, the Advertising and Promotion Commission incorporates each admission and denial which it has stated in paragraphs one through 12, including those incorporated specifically in paragraph 5 • 3 • above from the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint, and Counter-Claim for Declaratory Judgment. 14. The A and P Commission denies that the Plaintiffs are entitled to any of the relief requested in the prayer for relief contained and set forth in the Plaintiffs' Fourth Amended Complaint. 15 . The A and P Commission affirmatively states that the plaintiffs have failed to state facts upon which relief can be granted and as such, the A and P Commission is entitled to a dismissal of Plaintiffs' Fourth Amended Complaint, or to a judgment on the pleadings. Ark.R. Civ. P. 12 (b)(6) and (c) (Supp. 1999). 16. The A and P Commission affirmatively states that the City of Fayetteville does not control the A and P Fund. Additionally, the A and P Commission has discretion under • Arkansas law in deciding how to appropriate those monies for purposes of construction of a convention center. Ark. Code Ann. § § 26-75-605, 606 and 613 (1997). 17. The A and P Commission pleads the following affirmative defenses: 1 . Waiver; 2. Estoppel; 3. Laches. WHEREFORE, separate defendant, Advertising and Promotion Commission of the City of Fayetteville, Arkansas, prays that Plaintiffs take naught by their Fourth Amended Complaint, for an order dismissing the Fourth Amended Complaint, for its attorneys fees, costs, and such other and further relief as the Court deems just and equitable under the circumstances. • 4 • II. COUNTER-CLAIM COMES NOW the separate defendant/counter-plaintiff, Advertising and Promotion Commission for the City of Fayetteville, Arkansas, and for its Counter-Claim against the plaintiffs, states as follows: 1 . The separate defendant/counter-plaintiff, Advertising and Promotion Commission for the City of Fayetteville, Arkansas, (hereinafter referred to as the "A and P Commission") incorporates by reference each and every admission, denial, positive and negative averment, affirmative defense and pleading incorporated by reference and set forth in its Answer to Plaintiffs' Fourth Amended Complaint. 2. This Court has jurisdiction over the subject matter of this action and over the counter-claim by the A and P Commission, jurisdiction over the parties and venue is appropriate • in this Court. 3. The A and P Commission prays that this Court will declare and enter a judgment finding that its actions, and the actions of all the above-named defendants to this lawsuit were legal and proper under Arkansas law and under the facts of this case. The A and P Commission further prays that this Court declare and enter judgment finding that the Town Center project may proceed pursuant to the terms of the contracts which the City and other defendants have entered into for construction of the Town Center project. 4. The A and P Commission and the remaining defendants are entitled to a declaratory judgment in their favor as to all the allegation contained in Plaintiffs' Fourth Amended Complaint. • 5 • WHEREFORE, separate defendant/counter-plaintiff, Advertising and Promotion Commission for the City of Fayetteville, Arkansas, prays that this Court grant it a declaratory judgment, along with its attorneys fees, and such other and further relief as the Court deems just and equitable under the circumstances. Respectfully submitted, Advertising and Promotion Commission For the City of Fayetteville, Arkansas By: Kenneth R. Shemin (ABA # 78138) Shemin Law Firm 1 East Center Street, Suite 205 Fayetteville, Arkansas 72701 Telephone: (501 ) 973-4442 Facsimile: (501 ) 973-4443 • CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Separate Defendant, Advertising and Promotion Commission for the City of Fayetteville, Arkansas', Answer to Plaintiffs' Fourth Amended Complaint and Counter-Claim for Declaratory Judgment, was either hand-delivered or transmitted by facsimile addressed as follows: Honorable Mary Ann Gunn Woody Bassett Washington County Circuit Chancery Judge Bassett Law Firm Courts Building, Second Floor P.O. Box 3618 41 E. Center Street Fayetteville, AR 72702-3618 Fayetteville, AR 72701 (Via Facsimile) (Hand-Delivered) Jerry Rose William Jackson Butt, II Fayetteville City Attorney Davis, Cox & Wright, PLC 113 W. Mountain St. P.O. Drawer 1688 Fayetteville, AR 72701 Fayetteville, AR 72702- 1688 (Via Facsimile) (Via Facsimile) • 6 • Ronald L. Boyer Mark Pryor Boyer, Schrantz, Rhoads & Teague, P.A. Attorney General 221 N. 3rd St. 200 Cattlett-Prien Tower Bldg. Rogers, AR 72756 323 Center St. (Via Facsimile) Little Rock, AR 72201 -2619 (Via Facsimile) Marshall Dale Evans E. Kent Hirsch P.O. Box 1986 107 W. Emma Fayetteville, AR 72702- 1986 Springdale, AR 72764 (Via Facsimile) (Via Facsimile) E. Lamar Pettus P.O. Box 1665 Fayetteville, AR 72702-1655 (Via Facsimile) Kenneth R-.- Shemin - 7 : Shemin7