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HomeMy WebLinkAbout1989-02-21 Minutes4-1 MINUTES OF A MEETING OF THE CITY BOARD OF DIRECTORS A regular meeting of the Fayetteville City Board of Directors was held on Tuesday, February 21, 1989 at 7:30 p.m. in the Directors'; Room of the City Administration Building at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor Martin; Marinoni and McCord, City audience CALL TO ORDER Directors Vorsanger, Green, Lancaster, Kelley, Spivey; City Manager Pennington, City Attorney Clerk McWethy;: members of the staff, press and The meeting was called to order by the Mayor, with seven Directors present. The Mayor led those present in reciting the Pledge of Allegiance and observing a moment of silence. On behalf of the City Board, the Mayor welcomed members of the public watching on television and those present. He said all members of the audience would be permitted to speak on eachitem on the agenda and on matters under. Other Business. He asked that comments be concise and not repetitive, that they be addressed to the entire Board through the Mayor. CITY MANAGER'S MONTHLY REPORT TO PUBLIC The Mayor introduced the City Manager's report to the public and Board for the month of January, which he explained is a monthly report made at the second meeting of every month. City Manager Jim Pennington pointed out that expenses exceeded revenues this time of year, because of tax collections and a serie's of other things. Pennington reported that street -crews were on' duty 24 hours per day from Thursday, February 2 through Sunday, February i5,... -controlling snow and ice. Pennington congratulated those employees, commenting that they did a wonderful job. He said he thought the streets were in better shape than they were last year. He said approximately 250 tons of grit and salt were distributed on the roads. • Pennington reported planning consultants will be in Fayetteville on March 8 to meet with the Planning Commission 'in; a special session at noon that day, to discuss the draft of a new General Plan: 4 Reporting on the taxi subsidy program for the elderly, Pennington said that in a short period of time, over 61`elderly persons are"nowiparticipating, well beyond projections. Pennington thanked the Regional; Planning Commission and the Area Agency on Aging in Harrison for' their help. • • 4 51. 51. 51. 51. 51. 51. 51. 52.1 February 21, 1989 Reporting on the status of the Arts Center project, Pennington said the asbestos removal contract was awarded and is scheduled to begin tomorrow. He estimated the work would be completed in approximately twenty days. Pennington reported that, as of last Friday, the demolition contract was "still on go." 52.2 Pennington reported wastewater treatment plant improvements were proceeding on schedule and filter performance tests and other tests were still being conducted, as required under completion contracts. Pennington said the sewer collection system is a serious problem, noting there have been major problems at the lift stations during recent flooding. He said it will take a considerable amount of money to upgrade the collection system. 52.3 Pennington reminded the Board that the law firm of Nixon, Hargrave, Devans and Doyle would report to the Board at the last meeting in March regarding the status of the incinerator project. 52.4 Vorsanger asked Pennington to elaborate on the success of the taxi program Pennington said the Regional Planning Commission brought the concept to the city's attention, and noted a similar program was being used in the city of Springdale. He said the Area Agency on Aging provides $2,000 to Fayetteville to subsidize the program which benefits the elderly. He said the city advertised the program in the newspaper, and 61 elderly individuals who are eligible for the program have been served by the program. 52.5 Director Green, noting he had received several questions from citizens on the City's use of salt on streets, asked if there was a procedure which could minimize the amount of salt we use, since it causes deterioration of concrete and to autos. Pennington responded that at a certain temperature, no combination of materials placed on the road will melt ice. Public Works Director Batie said there has been an attempt to minimize the use of salt, primarily because of its cost, but also because of deterioration to concrete. He said they use a low mixture of salt with grit and chat. He said when temperatures are below 8 degrees, salt does not help without sunlight or heat. He said the city tries to keep its salt and chat stored inside buildings to heat it, so less is needed. Pennington added that in the last snowstorm the Airport had to be shut down because salt mixtures cannot be used on runways, because of how it could affect airplanes. He said if we want to continue to have our Airport open during such weather, we will have to use heated sand or a chemical composition which also can be used on streets but is very expensive. 52.6 Director Green asked if a Solid Waste Task Force was in place yet. Pennington said he was not ready to announce the names of the members until they receive letters from the City. He said the Task Force would be comprised of nine members who will meet in open public meetings in City Hall. He said he would ask the group to appoint its own chairperson. He said by the end of the week those appointed should have received letters and hopefully will accept their appointments. 1 1 February 21, 1989 Vickie Kelley, resident of Fayetteville, said she attended a recycling conference in Nashville which focused on city governmentand participation in recycling programs. She asked for an update on the city's program Public Works Director Batie reported he was in the process of interviewing candidates for the positions of Solid Waste Administrator and Recycling Coordinator, -which he said he hopedto complete next week. Vickie Kelley said her employer, Northwest Arkansas Waste Management, was struggling with some tests at the landfill, and she encouraged the City Board to remain open-minded until tests results are completed. She said when you have a contaminated spring, as has been identified, the tests should be approached in the nature of "let's find out how the spring got polluted" and not as if "we want to prove that the landfill did it." CONSENT AGENDA The Mayor introduced consideration of items which may be approved by motion, or contracts and leases which can be approved by resolution, and which may be grouped together and approved simultaneously under a "Consent Agenda." The Mayor said if any Board member wished to remove any item from the consent agenda, he may do so. The Mayor read the consent agenda .items for the benefit of the public: APPROVE: A. Minutes of the February 7, 1989 regular Board meeting; RESOLUTION: B. Authorizing approval(of budget adjustments as of December 31, 1988; • . Prosect The City Manager recommends approval of,the'following: > 4 Amount Account to be Decreased : y Administrative Services,Department 0 Shop Division Parts, Oil and Accessories Equipment Depreciation44- $31,727 95,531 Unreserved Fund Balance Unreserved Fund Balance c 53. 53. 53. 53. 53. 53. 53. 53. 53. 54.1 54.2 Overtime Water & Sewer Division Depreciation Depreciation Depreciation Depreciation Salaries Workers' Comp. Insurance Debt Service on W & S Refunding Bonds Wastewater Treatment Plant Construction Testing OMI Service February 21, 1989 Fire Department 20,000 Salaries and Wages Public Works Department 10,415 25,390 13,815 18,304 20,000 59,201 10,800 18,268 55,310 Airport Depreciation 102,539 Sanitation Nixon, Hargrave and R. W. Beck contracts Vehicle transfers to Motor Pool 188,081 457,247 Water Supply Tank Maintenance W & S Administration Sewer Mains Maintenance Sewer Mains Maintenance Various Water & Sewer Unreserved Fund Balance Construction Depreciation Fund Balance Unreserved Fund Balance Unreserved Fund Balance 54.3 C. Authorizing approval of budget adjustments which would roll forward funds from the 1988 unreserved fund balance to the 1989 budget; 54.4 The City Manager recommends approval of these adjustments which cover items ordered in 1988 but not received until 1989. 54.5 D. Authorizing approval of a change order to the City's contract with Sweetser Construction, for the Appleby Road construction project; 54.6 Approval is recommended for this change which would allow for reconstruction of the intersection of Bishop Drive and Appleby Road, work which was not included in the original project. ORIGINAL CONTRACT PRICE: CHANGE ORDER COST: NEW CONTRACT PRICE: BUDGET (1989): SCHEDULED TO BE SPENT: $229,913.35 $8,450.00 238,363.35 150,000.00 105,000.00 February 21, 1989 00 There being no requests to remove any items from the consent agenda, it was moved 55. by Director Kelley and seconded by Director Marinoni to approve the consent agenda. Upon roll call, the motion passed, 7-0. RESOLUTION NOS. 17,18..&'19 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK WARNER CABLE FRANCHISE The Mayor introduced a report from the City Manager regarding an action plan for moving forward on consideration of a proposed cable franchise ordinance; postponed indefinitely at. the January 17 Board meeting. City Manager Pennington said the staff developed a plan, should the City wish to proceed to build a City -owned cable system. He said this would not eliminate the idea of looking for another cable company. He said the plan consisted of three recommendations: 1. Retain the services of an experienced cable consulting firm. The firm would be required to review the market feasibility, estimated cost of construction including head ends, cable amplifiers, line relocation, pole rental, underground cabling and yard restoration, personnel and operating costs, etc., as well as a time frame in which this could be accomplished. The firm should be familiar with both the legal and technical aspects of cable television. Pennington estimated a cost ranging from $30,000 to $50,000. He added that a preliminary review could cost from $5,000 to $12,000. 55. 55. 55. As soon as possible after reaching the decision, form a Cable 55. Television Commission as required by statute with regard to the existing franchise holder. 3. It would not be cost effective to establish a "hot-line" for cable complaints to monitor Warner Cable over the remaining life of Warner's existing franchise, as suggested by some Board members. Instead, we should announce: clearly through public service announcements and newspaper ads that concerns or legitimate and provable complaints should be put in writing and directed to. the City Manager. Forms should be developed, clearly advertised' and made available in the community, which would be used for citizen comments. These will be included in a cable review file. These written documents would of legal necessity, have.to.be specific in nature rather than general. It should be noted that this item could- be used as a monitor to determine compliance, with not only the existing, but any new franchise if one is issued now orcin the future. ti Pennington said a letter was Sent? -to the City from Warner Cable and has been transmitted to the City Board, regarding some possible changes in the language of the proposed franchise. He said the changes dealt with the time frame when the franchise would go into effect. He said the letter, dated February 13, indicates • • .. -01 55. 55. 55. 56.1 February 21, 1989 that Warner requested the time frame not begin until the first customer was connected. 56.2 Pennington said, since that time, additional information has come to the City Manager and City Attorney. The City Attorney reported that, since receipt of the modified proposal, Warner contacted the staff and indicated the company would be agreeable to a franchise under which renewal would not be effective until the upgraded system was complete and the effective date would be the first day of the twentieth month after adoption of an ordinance approving the renewal of franchise, which is a time frame the company has agreed to, to complete transition of all existing customers to an upgraded system. McCord said the language agreed to by Warner had been distributed to the Directors. He said he had included an authorizing ordinance in the agenda if the Board cares to consider it. 56.3 The Mayor asked the City Attorney to read the ordinance. City Attorney McCord read the ordinance for the first time. 56.4 Director Kelley asked if the proposed five-year term, with an automatic ten-year extension, was still proposed. McCord said it was, clarifying that the renewal was proposed to take place only if Warner complies with all the provisions of the franchise. 56.5 Director Marinoni asked for the staff recommendation. Pennington said the staff negotiating committee recommended approval of the ordinance. 56.6 Director Vorsanger asked if the Board was being asked to consider the new proposal just brought to the Board's attention. The City Attorney said the new proposals would be incorporated into the ordinance if it is adopted. Vorsanger asked what we had done now which would improve the situation, and how does it compare to a suggestion he made recently regarding upgrading the system now. 56.7 Woody Bell, General Manager considering the agreement. proposal and the old meeting -- to build Warner to continue on for Warner in Fayetteville, thanked the Board for He said the significant difference between the new one speaks directly to what was heard at the last Board the system first. He said the proposal now would allow under the remaining two years of their current franchise, allows Warner to begin an immediate upgrade of the system, and earn the franchise. He said the effective date would be when the upgraded system is available for all current customers. He said Warner was trying to respond with a good faith effort and earn the trust of the community. 56.8 Bell said the system would be upgraded capacity; initially have 27 channels pay channels, including Movie Channel, have a price of $15.95 for basic cable roll back the price of pay services to a 400 megahertz system; have 54 channel for the purpose of expanded basic; have 5 Showtime, Disney, HBO and Cinemax; and with 27 channels. Bell said Warner would from $12.95 to $10.95. He said they were exploring bringing in a regional sports service. 1 February 21, 1989 v Bell said Fayetteville Open Channel would have full-time channel' space and their 57. continuation would be ensured through the donation of $230,000 for the purpose of the City purchasing new housing for Fayetteville Open Channel. He said a $35,000 grant would be provided at the fifth year and at the tenth year of the franchise for the purpose of upgrading equipment,. in addition to a $75,000 grant given to Fayetteville Open Channel'about 1 1/2 years ago to update their equipment. Bell said the new system would have a feature called "addressability" which 57. allows Warner to contact the customer who can make a transaction from his home. He said communication would be through a converter box. He said the "tiered system" which provides five additional channels at an additional charge would be done away with, and those channels would become part of basic service. He said, if a customer has a cable -ready television set, the customer will be able to hook his set tocable without a converter or any other device to receive basic service. He said premium services will still necessitate the use of a converter which will be "addressable " He said Warner intends to launch two channels which will have "pay per view" services, meaning movies would be offered and a customer would have the option to pay only for the view of a particular movie. He said an automatic.response unit would be installed to allow customers to order movies if they have a "touch tone" telephone, or a hand held unit can be provided a customer without a touch tone telephone. Bell said technical standards are written into the franchise which :Warner will be 57. required to 'maintain or be in violation of the franchise. He said consumer protection clauses are contained dealing with responding to customers. He said a timeline is required during which the system must be installed, with penalties provided in the event the company fails to comply. Bell said the proposed franchise contained excellent provisions for the protection of the community, the protection of the customer, meets the demands of the community now, and provides a system that will have long life in the future and meet growing demands. Bell said if Warner meets all the material terms of the agreement during the first five years, it will earn the right to have a renewal. The City Attorney explained that, under the proposed agreement, if Warner does 57. not complete the upgrade Within the 19 -month period they have committed to, Warner Will be imposed with a liquidated damage provision of $100 per day, from the deadline until the completion date, and Warner will have to put up a $250,000 letter of credit to guarantee payment of those liquidated damages. He said the negotiating committee recommended the franchise renewal because (1) the committee determined it would be the quickest method by which customers in Fayetteville could receive a state-of-the-art cable television communications system; and (2) the franchise is not exclusive,meaning eithera...competing cable operator can construct an overbuild and compete with Warner, or the City can construct its own system and compete with Warner. He said approval of the franchise would not preclude a competing cable operator. He reminded- the Board the City solicited proposals for an overbuild from 29"cable operators, received nine responses, none of which expressed any interest; E • Director Vorsanger said with any ,expansion mbst' citizens have indicated they 57. would like to have a weather '''Station/ which ,-he said he understood was not February 21, 1989 58.1 proposed as part of basic service. Vorsanger said Melba and Al Graves, residents on Route 112, in the city limits for five years, are asking why cable has not been extended to their area. Bell responded that the two lines going in that direction currently stop at Bradford Place on North Garland, and the other one at Razorback Golf Course. He said they presently are considering a five -mile extension to that area, from the road where the old Suzie Wong Restaurant was past the Salem Community Church to Wooded Hollow Estates. He said there were about 80 homes there now and for the first time it may be economically feasible for Warner to build service in that area. 58.2 Vorsanger said he received a letter requesting there be no monthly charge for extra outlets. Bell said that has been considered. He explained that there was a law called the "cumulative leak index law" that will go into effect in July of 1990, which he said basically states a cable system is a closed system, that the cable operator has the responsibility for maintaining a closed system. Bell said Warner's responsibility doesn't end at the house. He said the law puts the burden on the cable operator to meet certain criteria or lose the right to many channels, undergo heavy fines, or lose the entire system. He said Warner is responsible for maintaining their property inside the house. He said if a customer installs his own additional outlet or moves his outlet around and allows the signal to leak, Warner has to maintain that. 58.3 Vorsanger said he would feel more secure if the ordinance could be left on its first reading, to give a lot of citizens an opportunity to speak for or against the new proposal. 58.4 Director Green said he had read the revised proposal and in essence, Warner was asking the Board to approve the ordinance granting the franchise, but just not start the clock ticking until the subscribers are placed on the system. He said in essence the franchise the Board would be considering would be for 17 years rather than 15 years. He said it was insulting, and he didn't think it was a concession at all. He said if it was showing good faith on Warner's part, the Board wouldn't need to be approving a franchise ordinance now, but would consider the ordinance after the system was put in place. Green said at the end of the first five years, the City would be encumbered to prove that Warner has not complied with any of a very narrow set of standards, and if they don't comply, the City has to notify them six months prior to the expiration of the five-year franchise, giving Warner six months to answer. He said, if there are any problems involved, the ten-year franchise would automatically be renewed anyway. 58.5 Green suggested Warner be encouraged to initiate the upgrade, commenting that it would make a tremendous difference in the public perception and acceptability of Warner. 58.6 Green said he thought the City should pursue a municipal system, but commented that he didn't think we needed a $30-$50,000 feasibility study. Green said he thought a study could be done a step at a time, beginning with a preliminary study. } , % February 21, 1989 ' b • 1 Green said Fayetteville was not alone in its quest, noting the issue is all 59. across the country, and cities are realizing how the Cable Act of 1984 has stripped the rights of the public and legalized a deregulated monopoly. Green said he thought there would be pressure put on Congress to re-evaluate the law within the next two years. He said, if the City grants a franchise now, it will eliminate one other option it may have if any changes are made in the law. . Green, referring to the leakage question raised earlier, said the FCC regulations 59. put very stringent testing requirements on electromagnetic interference allowed from tv cable systems. He said Warner will have to comply with this by July of 1990, about six months before their present franchise expires. He said we may find that if Warner does not comply, their alternative is to rebuild the system or shut down. Green said he didn't think the City should be in such a hurry to grant the franchise. He suggested the Board continue to postpone the issue indefinitely or reject it outright Green said the only thing he would be agreeable to at this point would be a term not to exceed five years, at the end of which time a new franchise could be negotiated. He said to have an automatic extension is "an insult to our intelligence." Director Spivey said he took issue with the statement that it is not an exclusive franchise. He said that may be "in name only." He said there seemed to be a reluctance on the part of cable companies to come into.each other's markets in an overbuild situation. He said he didn't understand what protection the franchise gives Warner Cable in the first place. Spivey, reading from Broadcast Magazine, said Warner Cable's average market penetration in the United States is around 54% and he said he thought Warner has admitted it is over 80% in our market. Spivey said in such a situation their revenue goes up substantially. He said he learned from the .New York state cable commission that the average franchise in this country is approximately ten years'. He said it just makes sense that an upgrade here would amortize off faster than what the average would be around the country. He said the $5.5 million cost of the upgrade will obviously pay for itself at a more rapid rate in Fayetteville than it would in an average community. 59. 59. Addressing the length of the franchise, Spivey said the Board would be derelict 59. if they didn't listen to the forum which was held at the Center for Continuing Education [reference to November 1988 public hearing]. He said the proposed franchise is not a five-year contract with a ten-year extension, but is a 17 -year contract.. He said whatever is done now in five or ten years could be totally obsolete, andto try to put the City in a position of committing to Warner Cable for 17 years is not prudent. Heqsaid he was concerned that, if the agreement is signed, the City will be in la position in five years of trying to encourage Warner to upgrade the system again-. Spivey said he thought there had been some concessions, and would rather not see 59. the City get in the cable business,:but said if weicould arrive at a compromise we may be able to arrive at a franchise we all can live with. Ihr 60.1 February 21, 1989 Spivey said he was concerned about people on a fixed income, especially the elderly population, who will have to face rate increases. He suggested the cost of basic service be held down so as not to rule out a whole segment of the population having access to cable. 60.2 Spivey moved to amend the ordinance to limit the term of the franchise to five years. The motion was seconded by Green. 60.3 Lancaster said he failed to find where concessions had been made. He asked what a $100 per day penalty was to a multi-million dollar operation. He noted that the language in the agreement states that Warner would "be entitled to a three month extension of the upgrade period specified if the delay is due to no fault of the grantee." Lancaster said to him it was ridiculous to think the proposal before the Board now was for anything less than 17 years. He said he made the statement to Woody Bell that Warner Cable could be in Fayetteville, if they want to stay, twenty years from now without any franchise whatever. 60.4 Director Marinoni said his position towards Warner Cable has been very positive from the beginning. He said he thought Warner's proposal was very good and if any other company made a similar proposal, he thought the Board would accept it. He said he thought the only reason the Board was dragging its feet was because of Warner's reputation and public sentiment. He said the only negative aspect to the proposal was the term of the contract which he said was a little bit lengthy. Marinoni said he concurred with Spivey's motion to reduce the term. He said he thought it was pretty risky to expect Warner to bankroll a $5.8 million upgrade without a franchise. 60.5 Director Martin said the citizens he has heard from all want better service. He said the negotiating committee thinks this is the quickest way to get better service. He said the terms of the franchise would unequivocally give local control back to cable tv operations, if the Cable Act is changed. Martin commented that we don't have that now, and said he was concerned the Board may be overlooking "a diamond in the rough before us." Martin said the franchise wouldn't go into effect until everybody has been hooked up, it commits Warner to programming changes and service changes, and gives the City the chance to re - regulate Warner if the government ever allows that. Martin said he favored the renewal. 60.6 Director Kelley said he would support a five-year contract. 60.7 Martin invited the public to comment, but reminded them that the Board had received a lot of input at a public hearing which was held in November, and volumes of information has been provided to the Board. He said the public's input was welcome on the question of whether or not the Board should renew the franchise, and whether or not the term should be for five years. He asked citizens to be concise and not repetitive. 60.8 Dan Mauritson, resident of 1925 Brower asked, if expire for two years, why they are coming before because Warner knows they cannot comply with Title Warner's franchise does not the Board now. He said it was 47, Section 76.611 of the Code 1 :February 21, 1989°?' a. • 61 of Federal Regulations, Mauritson;saidWarner is. asking the City to give them a 61. franchise so that when the FCC Rwants'to know why:; they aren't in compliance in July of -1990, Warner will pullout the ordinance and say the citizens are happy, and the FCC will let them continue to operate. Mauritson recommended the franchise be denied and said .he believed in the formation of a joint city/county independent commission on cable. He said the public didn't understand that Warner doesn't just serve Fayetteville, but serves parts of Elkins, Farmington, Greenland and Springdale, and those communities should have 'some input into the decision-making process. He said he favored the installation of a nationwide 800 hotline. He said Warner owns 104 cable systems in the country. Mauritson said he didn't think the local complaints were unique to Fayetteville. He said this would be a good negotiating tool. Mauritson repeated a recommendation he made at the last board meeting that the city send a representative to a cable tv conference in San Antonio. He said at that conference there would be a discussion of regulatory and legislative changes that affect cable. Mauritson said in the February 19 issue of the Northwest Arkansas Times the City Manager said "we need a firm with high expertise in cable technology,municipally owned systems, and federal regulations." Mauritson said "that is a bunch of bull" because there are people in the community with the expertise. Mauritson said an extension of the franchise at thistimewould be a fatal error on the part of the Board. Leonard Ostendorf, resident of Zion Road, said he thought there ought to be more respect for private property .on the part of Warner Cable,, and they should give consideration to the protection of the public. George Blackwell, resident of Fayetteville, showing cable rates.. in a neighboring Fayetteville residents have to pay for a Springdale provides in their basic service. He said he didn't think people would be,opposed to a five-year contract if they could receive services similar to that which Springdale residents receive. Blackwell said he could not sanction the City Manager's recommendation that the Board accept the franchise. He said it was so vague he didn't see where it was the best thing for the citizens. The Mayor reminded Blackwell that the recommendation was from the entire committee, not just a. single individual. provided city. converter a handout to the Directors Blackwell complained that box to get channels which Charles Cone, new resident of Fayetteville, said he was impressed with the Board's handling of the issue,,commenting that the five year contract was "the only way to go." Cone said there were many cable systems that do not charge for additional outlets. He said in the future there would be increases in the number of channels and said he believed there would be rate increases. He said he would push for more basic satellite channels. He said the problem is the converter box is a cost to the cable company. He said we were hearing a good proposal "in words" but what Fayetteville demands "is deeds now" and deserves a $5.8 million 61. 61. 61. 61. 61. 61. 61. February 21, 1989 52.1 system which it has paid for. He pointed out that addressability feature is something any new cable system has and, if a subscriber does not pay their bill, the company can flip a switch and turn their service off. He said illegal hookups will continue, unless basic cable is made addressable too. 62.2 Woody Bell, responding to comments by Director Green, said maintenance of the system through signal repair is an alternative to the cumulative leak index problem. He extended an invitation to Green to visit his office so he can show him Warner's operational procedures. 62.3 Bell, in response to comments by Mauritson, said the FCC doesn't consider public opinion but interprets law accurately. He said Warner will meet the CLI in 1990. 62.4 Bell, in response to Ostendorf, said Warner has a franchise to give them the right to operate in the public rights-of-way and in public easements. 62.5 In response to Blackwell, Bell said, because of the proximity to Springdale, heavy consideration was given to their channel lineup and rates. He said it was true that Springdale has 30 channels at $16.50, and noted Warner's proposal is for 27 channels at $15.95, with a Little Rock channel, addressability and "pay for view" which Springdale does not have. 62.6 Addressing the converter box, Bell said a customer with a cable -ready television set will not need a converter to receive basic service. He said, for customers without a cable -ready set, Warner will install a converter at no charge for basic service. 62.7 In response to Charles Cone's comments about cable companies who don't charge for additional outlets, Bell invited Cone to visit him to discuss that matter. He said Warner does not charge for service calls, something he said may distinguish them from companies which do not charge for additional outlets. 62.8 Bell said the franchise will allow the upgrade to begin immediately and bring services as quickly as possible to the City. 62.9 Jerry DeGrazia, Senior Director of Government Relations for Warner, said he was in charge of the franchise renewal processes across the country and had a lot of experience in that area. DeGrazia said he negotiated an average of 50 franchise renewals a year for Warner and they normally have terms from 10-15 years. He said Warner has signed one 5 -year agreement with a ten-year extension. He said there were certain states which limit the agreements to ten years, such as Massachusetts, and certain states where the state cable commission frowns on terms longer than ten years. He said 48 other states have no restrictions on term length. 62.10 DeGrazia said Warner would invest $5.8 million in the rebuild, and said they constantly re -invest in their systems on an annual basis. He said work they have done in Fayetteville in the past two years attest to that, giving as an example a new on-line billing system. 013 `-February 21; 1989 f a a JIP DeGrazia said their proposal is for an initial term of five years and, based on 63. .Warner's compliance with over 40 different items, then a ten-year extension would be granted. DeGrazia said the City is responsible'for franchise administration and Warner knows they will be held.;to task if they do not comply with the agreement. He said Warner expects to comply so .they can earn.the additional term. ' .. DeGrazia said Warner is hearing two things from citizens - that they want new 63. services and that they aren't happy with the current system. He said Warner wants to make the investment to upgrade the system to turn their image around and provide the customers new services they want. He said Warner discussed the suggestion:: which was made at the last Board meeting that they build -the system first.- He said Warner had never signed an agreement such as the one they now propose,that the franchise not be effective until after the upgrade is completed. He said that Warner's proposal was not a reuse for a 17 -year franchise. Addressing the motion on the floor to limit the franchise to a five-year term, DeGrazia said Warner feels strongly the initial five-year term with a ten-year extension is a very satisfactory franchise term for the package of commitments Warner has made. He said Warner could not accept a five-year franchise term. Mayor Martin said he thought the Board and community wanted a review of the franchise after the.first five years. Martin moved that the motion :-.to amend the ordinance provide that, -if after five years the terms specified in the ordinance have been met, there be an automatic five-year renewal, bringing the total term to ten years.. The motion was seconded by Marinoni. Lancaster said he thought the City should make an effort to follow through on a study to convince the people it is not feasible or cost-effective for the City to own their own system. He said it was useless for the Board to vote on the motion if Warner is not going to accept it. 63. 63. 63. Vorsanger said it seemed to him that Warner had made concessions. He said one 63. problem with considering the ten-year renewal is that the City does not have a good record of what the problems have been so far. He said the Cable Act says, if you are not going to renew a franchise, you've got to have good cause. He said the proposal gives us a five-year period of time to set up a mechanism to monitor their performance. Spivey said any action the Board takes would almost surely wind up in litigation, 63. if the City opted to get rid of Warner Cable. He said the Board is supposed to represent the general public and it has been loud and clear that the thing to do would be to limit the franchise. DeGrazia said he thought it was dangerous for a City,, Board to negotiate with a 63. cable company on the floor. the said, if there is dissension among the Board relative to the length of the term, he would suggest there be further discussion with the Board and staff. Martin said the Board was not really negotiating, and unless there was a motion to table, the Board would move forward with the matter. 64.1 February 21, 1989 The Mayor said that, procedurally, the Board would vote on the amendment to the amendment, would vote on the amendment, and then the ordinance would remain on its first reading unless the Board votes to suspend the rules. 64.2 The Mayor stated "it has been moved and seconded that the amendment to limit the franchise to a total period of five years be amended to include a five-year renewal if the terms of the franchise are met after five years." Upon roll call, the motion passed, 4-3, Directors Vorsanger, Martin, Kelley and Marinoni voting "yes" and Directors Green, Lancaster and Spivey voting in the minority. 64.3 The Mayor stated "it has been moved that the ordinance be amended to limit the initial term to five years, with a five year renewal if the conditions of the franchise are met." Upon roll call, the motion passed, 4-3, Directors Vorsanger, Martin, Kelley and Marinoni voting "yes" and Directors Green, Lancaster and Spivey voting in the minority. 64.4 It was moved by Marinoni and seconded by Martin to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion failed, 3-4, Directors Martin, Kelley and Marinoni voting "yes" and Directors Vorsanger, Green, Lancaster and Spivey voting "no." The ordinance remained on first reading. The Mayor said the item would be considered again at the next Board meeting. 64.5 Lancaster asked if there could be some indication from Warner as to whether or not they will accept the changes to the ordinance. The Mayor said the Board would be receptive to an indication from Warner about their feelings on the ordinance as it now stands, with a five-year term and a five-year renewal. He suggested this be communicated to the City Manager. 64.6 DeGrazia asked for some clarification as to the Board's action. Martin said the ordinance would now contain a five-year tailing term instead of a ten-year tailing term. DeGrazia said Warner would be happy to communicate with the staff. "YOU CAN!" CONTRACT 64.7 The Mayor introduced consideration of a resolution authorizing the Mayor and City Clerk to execute a one-year sub -grant agreement with the Economic Opportunity Agency of Washington County, for funding of the "YOU CAN!" program to assist impoverished Fayetteville residents in the areas of job training and operation of family child-care businesses. 64.8 Martin explained that, at a previous meeting, the Board authorized the City Manager to negotiate the contract. He asked if the contract before the Board was jointly agreed upon by both parties. City Manager Pennington responded that it was, noting a couple of items were changed by the City Attorney. 64.9 It was moved by Kelley and seconded by Lancaster to approve the resolution. I $'February 21 1989 E a Vorsanger noted the agreement* calls for' The City to make a $2,000 home • 65.: improvement loan. He asked how: the loans would be.repaid. Ralph Nesson, EOA Executive Director, said the terms of the loan would be negotiated between the staff and the families. He said., all the funds would be returned to the City. He said EOA would make every effort Ito ensure the loans are fully repaid and any funds EOA receives will be immediately returned to the'City. Vorsanger asked why we wereasking recipients to repay loans (in the case of those setting up child care centers in their homes).‘ : Nesson said many of the participants in the program are tenants, low income persons who do not own their own homes. He said EGA feels it is part of their responsibility as small-business owners to repay the loan. He said part of the program includes budget planning with the families. V v Upon roll call, the motion passed, 7-0. 65. RESOLUTION NO. 20-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK RECESS The meeting was recessed at 9:50 p.m. and reconvened at 10:00 p.m. 65. REZONING/R89-3 The Mayor introduced an ordinance rezoning approximately ten acres west of Rupple 65. Road and north of Franciscan Trail, from A=1 "Agricultural" to R-1 "Low Density Residential. He explained the petitioner, Dr. James F. Moore, was heard before the Planning Commission on February 13, 1989, that the Planning Commission recommended approval, 9-0, and the Planning Management Director recommended approval. Martin reported there was no public opposition at the hearing. The City Attorney read the ordinance for the first time. Director Marinoni, 65. seconded by Lancaster, moved to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Marinoni, seconded by Lancaster, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. f . The Mayor noted that the petitioner was present earlier in the meeting but was 65. "on call" and was not present at this time. The Mayor asked if anyone wished to speak for or against the ordinance. No 65. public opposition was expressed. Upon roll call, the ordinance passed, 7-0. ORDINANCE NO. 3406 APPEARS ON PAGE ys% OF ORDINANCE AND RESOLUTION BOOK XXIV February 21, 1989 REZONING/R89-4 66.1 The Mayor introduced an ordinance rezoning 8.11 acres located south of E. Huntsville Road and west of Happy Hollow Road, from R-1 "Low Density Residential" to R-0 "Residential Office". He explained the petitioner, Dr. Bryan Abernathy, was heard before the Planning Commission on February 13, 1989, that the Commission had recommended approval, 9-0, and that the Planning Management Director recommended approval as well. 66.2 The City Attorney read the ordinance for the first time. Director Lancaster, seconded by Kelley, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Lancaster, seconded by Kelley, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. 66.3 It was noted the petitioner was present, and that Directors had viewed the property. The Mayor asked if anyone present wished to speak for or against the ordinance. No public opposition was expressed. Upon roll call, the ordinance passed, 7-0. ORDINANCE NO. 3407 APPEARS ON PAGE lin OF ORDINANCE AND RESOLUTION BOOK Xxr� REZONING/R89-5 66.4 The Mayor introduced an ordinance rezoning 6.3 acres located along Shiloh Drive south of Dorothy Jeanne Street, from R-2 "Medium Density Residential" to C-2 "Thoroughfare Commercial." He explained the petitioner, Kemmons Wilson, being represented by Ery Wimberly, was heard before the Planning Commission on February 21, 1989, that the Planning Commission recommended approval, 8-1, and that the Planning Management Director recommended approval as well. 66.5 The City Attorney read the ordinance for the first time. Director Marinoni, seconded by Lancaster, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Marinoni, seconded by Kelley, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. 66.6 It was noted that Ery Wimberly was present on behalf of the petitioner. 66.7 Director Lancaster asked the City Manager if, when this development came before the Plat Review Committee, negotiations could be made to clear up the traffic problem. City Manager Pennington said that would definitely be part of the discussions. f • ,February 21;•1989 4i'g • The Mayor asked if anyone present wished to speak•for or against the ordinance. 67. No public opposition was expressed. Upon roll call:the ordinance passed, 7-0. ORDINANCE NO. 3408 APPEARS ON PAGE .4'4/ OF ORDINANCE AND RESOLUTION BOOK XXid r WATER RATE INCREASE The Mayor introduced an ordinance amending the City Code to increase water rates 67. ,and water, meter service charges by 20%, effective,March 1, 1989; and approval to conduct the next five-year rate study in the next six months. The Mayor -explained this rate increase was recommended by the City Manager and 67. would be the first of three annualincreases anticipated to cover an increase in wholesale water rates being charged to the City by the Beaver Water District. Martin said the Directors had received an analysis of the effect of the increase on customers' water bills. He said the increase would be in addition to a five- year series of water and sewer rate increases adopted in 1986 and extending to 1990. He said the most recent increase went into effect in September of 1988 (5% water and 5% sewer), and the remaining increases in that series will take place in August of 1989 (5% sewer) and September of 1990 (5% water). Martin mentioned that another water and sewer rate increase was anticipated for later this year to cover the 1989 water and sewer bond issue. The City Attorney read the ordinance for the first time. Director Marinoni, 67. seconded by Martin, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, .7-0. The ordinancewas read for the second time. director Marinoni, seconded by Martin, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. Director Green stated he was concerned about automatic increases such as this 67. over which the Board had no control. He commented that the City may either become non-competitive from an economic development standpoint or may find some fixed income families who will have atough time paying their bills. He said he hoped the firm which does the rate study would strongly consider how these additional, cumulative rates can have the least impact on economic development and on low-income families. The Mayor asked if anyone present wished to comment for or against the ordinance. 67'. No public comment was expressed. Upon.roll call, the ordinance passed,•7-0. ORDINANCE NO. 3409 APPEARS ON PAGE 4143 OF ORDINANCE AND RESOLUTION BOOK XXI✓ • t y M EASEMENT VACATION/CHARING CROSS February 21, 1989 58.1 The Mayor introduced a request from Kent Elston for an ordinance vacating and abandoning a 20' utility easement located on property on Charing Cross in the Huntingdon Subdivision. He explained the vacation was requested in order to build a house on the property. He said the easement contained a 6" sewer line which has been relocated at the expense of the owner. He said letters of concurrence were on filed from all public utilities and Warner Cable. He added that the City Engineer recommended approval. 58.2 The City Attorney read the ordinance for the first time. Director Marinoni, seconded by Kelley, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Marinoni, seconded by Kelley, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. The Mayor asked if anyone present wished to speak for or against the ordinance. No public comment was expressed. Upon roll call, the ordinance passed, 7-0. ORDINANCE NO. 3410 APPEARS ON PAGE 4/46 OF ORDINANCE AND RESOLUTION BOOK )(Mt) EASEMENT VACATION/STEARNS STREET 68.3 The Mayor introduced a request from ERC Properties for an ordinance vacating and abandoning a portion of a utility easement located on property on Stearns Street in the Brookhollow Subdivision. He explained the developer wishes to vacate a five foot strip along the north side of a 25' utility easement running along the rear of Lots 50 through 64 of the subdivision, that utility companies and Warner Cable had filed letters of concurrence, and that the City had no water or sewer lines in the easement and did not anticipate any use of the easement in the future. 68.4 Martin reported the staff recommended the request be approved, but only for Lots 54, 59 and 63, because homes have already been constructed there. He said the staff recommended against vacating the easement on the remainder of the lots because they are large enough to allow for a reasonable building area. 68.5 The City Attorney read the ordinance for the first time. Director Kelley, seconded by Martin, made a motion to suspend the rules and place the ordinance on its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Kelley, seconded by Martin, made a motion to further suspend the rules and place the ordinance on its third reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. 68.6 Tom Hopper, engineer for Crafton, Tull and Associates, was present on behalf of the owner. Director Marinoni asked Hopper to explain how the request came about. Hopper said that there were 15 lots in question, four of which contain homes. He 4 ?Februaryn.214, 1989 . • a i 9 said two months ago the Board granted &vacation for a portion of the easement on Lot 51. He said the lots were 110 feet deep with a.25 foot setback on the front, and a 15' drainage easement on the rear, with''an additional 25 foot utility easement added to that, making ;a: total of 65' of non -buildable space on an 110' deep lot, leaving 45' of buildable space. He said ittwas hoped that when utility companies find'some space in the easement is not needed, they would give the developer and owner a chance to retrieve some of that non -buildable space, by vacating some of the easements. 'He'said he went,through the Plat Review process and did agree to the easements as platted, but as the homes have been built, the 45' of buildable space has been shown to be limiting to the type and size of homes that'can be built on the lots'. Hopper said,:after the problem with Lot 51, and the problem of an overhang-into°the easement on two other lots, they felt the vacation was necessary, as well as to make the other lots more buildable. Hopper asked the Board to consider expanding the easement vacation to accommodate his request. asked if anyone present wished to speak for or against the ordinance. comment was expressed. Upon roll call, the ordinance, as read, was 7-0. The Mayor No public approved, ORDINANCE NO. 3411 XXt APPEARS ON PAGE VG 7 OF ORDINANCE AND RESOLUTION BOOK BID WAIVER/ZONING ORDINANCE The Mayor introduced a request from the Planning Management Director for an ordinance waiving the requirements of competitive bidding for professional services; and approval of an extension to the City's contract with RM Plan Group, to prepare a new Zoning Ordinance and related growth management ordinances. The Mayor explained the original contract was entered into in November of 1987 for the preparation of a.General Plan. He said the Planning Director recommended approval of extending it, and increasing the scope of the contract to provide the following services: preparation of a new Zoning Ordinance plus six months of follow-up services and integration with subdivision regulations; preparation of an illustrated guide to property development; preparation of a tree protection 'and reforestation ordinance; preparation of a landscaping ordinance; integration of City Board and Planning Commission policies; analysis of fiscal capacity to provide capital improvements, identification of alternative financing mechanisms, and analysis of impact fees; assistance in preparation of Transportation Element and Major: Street Plan; and preparation of an annexation policy. Martin explained the contract would be extended an additional nine months, or a total of 21 months, at an additional cost of $68,200. He said budgeted funds total $75,614 (including funds rolled forward from 1988). He said the entire project would be concluded no later than August 23, 1989. The City Attorney read the ordinance for the first time. Director Lancaster., seconded by Kelley, made a motion to suspend the rules and place the ordinance on u 69. 69. 69: 69. 69. 69. 1 February 21, 1989 70.1 its second reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the second time. Director Lancaster, seconded by Kelley, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed, 7-0. The ordinance was read for the third time. 70.2 Director Vorsanger asked if bidding had been waived on the originalcontract and it was explained that the City's professional selection policy had been used, with no bid waiver involved. 70.3 Director Marinoni asked if there were any results seen yet from the work which has been done thus far. City Manager Pennington responded that the draft of a General Land Use Plan was scheduled to be presented to the Planning Commission on March 8. 70.4 The Mayor asked if anyone present wished to comment for or against the ordinance. No public comment was expressed. Upon roll call, the ordinance passed, 7-0. ORDINANCE NO. 3412 APPEARS ON PAGE 2/4 OF ORDINANCE AND RESOLUTION BOOK XX(t) OTHER BUSINESS COMMENTS FROM DIRECTOR VORSANGER 70.5 Director Vorsanger reported on a trip he recently made to Washington, D. C. (at his own expense). 70.6 Vorsanger said he visited Congressman John Paul Hammerschmidt's office (although Hammerschmidt was not there) and was introduced to staff who serve on a subcommittee on aviation. He said the City of Fayetteville has been expecting an MLS landing system and prospects do not look good, because the main contractor, Hazeltine, is in default. He said the FAA is now preparing solicitation for new bids from other companies. He said it could be at least 18 months before we hear any word about an MLS system for Fayetteville. 70.7 Vorsanger said there is a 1992 time frame on receipt of an ASR9 radar system for Fayetteville, and said the FAA is signing a "sole source" contract with Westinghouse to provide these. 70.8 Vorsanger said the Airport finds itself, in his opinion, in a situation where, if we aren't careful, we're slowly going to be pushed out of our regional designation. He said the airports at Rogers and Springdale are trying very hard to capture some of our business. He said the opening of the Bypass to Rogers has really made our airport more accessible, and he said he thought the City should make a concentrated effort to expand an keep what we have. Vorsanger recommended the Mayor either appoint a Task Force or a Committee to work on and for our Airport. He said he thought Fayetteville was one of the few cities in America with an airport like we have which does not have an Airport Commission. He said •!1 '.February ' 21, the commission's duties would be to operate, and manage the Airport and its 71., relative properties and `facilities. 3.He recCiMmended we work towards the establishment of an Airport Commission for the Yayetteville Airport. s The Mayor asked the City Manager topoll�the Directors and advise the Mayor as to whether the Directors feel the formation of a committee to evaluate an airport commission would be desirable.• t _ K. S Vorsanger reported he visited the main headquarters of Partners for Livable Places. He said the City Manager; former Mayor, John,Lewis and William Mitchell originally suggested the City work with this group. Vorsanger said PLP would visit Fayetteville in March, that we are one of 36 -cities participating in a 3-5 year plan called "Shaping Growth'in American Communities." He said other cities participating, for example, were Phoenix, San Diego and Sacramento. He said a conference on the future of communities would be held on April 16 through 19 in Indianapolis. He said another conference will take place in August on "town/gown relationships." Vorsanger said he thought theBoardand Planning Commission should attend all the meetings when the group is here, and publicity should be done, because open forums will be held for all citizens. He said the purpose is to make Fayetteville a more livable place. He said one plan is to make the area between the Square and the Arts Center a more livable place. Vorsanger reported on the Santa Fe. Seat Belt Committee to which he was appointed by the Mayor. He said the committee's work is a continuing education program for schools regarding seat belt usage. He said the committee will continue to work with a big push this summer, and is competing for a national prize with the city of Santa Fe. He said Fayetteville is also having a contest with Jonesboro, Arkansas. Both the Mayor and Director Lancaster expressed their thanks to Director Vorsanger for his efforts. ADJOURNMENT 71. 71. 71. 71. The meeting was adjourned at 10:45 p.m. - 71.