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HomeMy WebLinkAbout1989-11-07 MinutesNovember 7, 1989 MINUTES OF A MEETING OF THE CITY BOARD OF DIRECTORS A regular meeting of the Fayetteville City Board of Directors was held on Tuesday, November 7, 1989 at 7:30 p.m. in the Directors' Room of the City Administration Building at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor William Martin; Directors Michael Green, Russ Kelley, Ernest Lancaster, Paul Marinoni, Jr., Shell Spivey and Fred Vorsanger; City Manager James Pennington, City Attorney Jerry Rose, City Clerk Sherry Thomas; members of the staff, press and audience CALL TO ORDER The meeting was called to order by the Mayor, with seven. Directors present. The 360.: Mayor asked those present to stand and recite the Pledge of•Allegiance, and then asked that a brief moment of respectful silence be observed. The Mayor welcomed the public watching the meeting on television, and those present in the audience. He said everyone present would have an opportunity to address the Board on every time under discussion. He asked that those wishing to speak introduce themselves, give .their place of residence, keep their comments concise and non -repetitive, and address the`entireBoard. He said any questions for the Board or staff should be directed to the Mayor. CONSENT AGENDA , a 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 explained that the Consent Agenda represents items on which there is thought to be unanimous agreement by the Board, but pointed out any Director may request the removal of an item from the Consent Agenda. The Mayor read the items containedin the consent agenda, as'follows: :1 A. Minutes of the October 17,-1989 regular Board meeting. B. A resolution authorizing the award of bid #89-40 for purchase compressor equipment to be used by the City Shop, Recommendation: Award Bid: $19,316.96 .r Budget $20,000.00 360.. 360.. 360.1 of air 360.` to lowest bidder, Choctaw Equipment RESOLUTION 103-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK C. A resolution by the Police Department for approval of an $8,500 off- 360.E setting budget adjustment for overtime from the Jail Contract Services account to the Patrol/Warrant Overtime Uniformed account; November 7, 1989 Board action is necessary because this $8,500 combined with an earlier adjustment in July, exceeds the City Manager's $10,000 approval limit. 361.1 The two main reasons for the increased overtime is the extended vacancies in three supervisory slots plus the increased levels of personnel training taking place in the Police Department. The three supervisory vacancies were filled in October, 1989. 361.2 The staff recommends approval of this budget adjustment. RESOLUTION 104-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK 361.3 D. A resolution authorizing a change order to an existing contract with CEI Engineering Associates, Inc., for water line replacements. This is for approximately 900 feet of additional damaged pipe on the Highway 62 project. Staff recommends approval of the $1,863.00 addition making the total contract price $10,063.00. RESOLUTION 105-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK 361.4 E. A resolution amending the AT&T Commission Agreement for telephone service at the airport. The original AT&T Commission Agreement was approved by the Board July 18, 1989, at a rate of 10%. A resolution authorizing this amendment which will allow for the rate to be paid at a base rate of 14% is being requested. A group called P.T.I. (of which our city is a member) requested proposals for long distance services for their members, and AT&T was selected. The rate is a base of 14% and can go as high as 20% based on the combined aggregate revenues generated by P.T.I. members. These rates have been offered to all members who currently have an AT&T Commission Agreement in place, and this will be additional unanticipated revenue for the Airport. The staff recommends approval of this agreement. RESOLUTION 106-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK 361.5 F. A resolution authorizing an "irrevocable license for the use of real property" between the City of Fayetteville and the U.S. Department of Commerce, National Oceanic and Atmospheric Administration; The Flight Service Station, operated by the FAA, provides weather service observations for aircraft using the Airport. Automated Flight Service Stations are being placed in service nationwide and all the manned stations will be closed by the year 1992. They are being replaced with electronic components that perform the observation functions. This lease is for the sites where these components will be installed. There is no cost to the City for the equipment or its maintenance. The sites have been selected and approved with the concurrence of the FAA and Airport Staff. RESOLUTION 107-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK G. November 7, 1989 A resolution authorizing approval fork.payment of $33,657.66 to the Niblock Law Firm for services rendered on the incinerator project for August, September, and up to and including October 9th. RESOLUTION 108-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK RESOLUTION RESOLUTION J. RESOLUTION 362.] A resolution authorizing the award of Bid #89-41 for purchase of 362.: telecommunications equipment to the lowest bidder, Centel Communications Systems, and approvalofa budget adjustment. This award also includes services for cross -connecting all trunk lines and stations lines from the old PBX switch system to the new Plexar II System provided by Southwestern Bell Telephone Company. RECOMMENDATION: Award,.to .lowest bidder, Centel Communications e 1 Systems BID: $24,864.42 BUDGET: $20,000 of which remains a balance of $9,525.00 requiring a budget adjustment of .$15,340.00 109-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK • A resolution authorizing'the award of Bid #89-45 for one (1) Four Wheel Broom Street Sweeper to be used by the Street Department. RECOMMENDATION: Staff Equipment Company BID: $109,960.00 BUDGET: $110,000.00 110-89APPEARS ON PAGE recommends • award to lowest bidder, Bucy 4 e9 OF ORDINANCE AND RESOLUTION BOOK A resolution authorizing the Parks'and Recreation Department to expend the Green Space Account funds as recommended by the Parks and Recreation Board as follows: t NE PARK DISTRICT: $34,213.97 = funds to be used as matching Land and Water Conservation Fund (LWCF) Grant at Gulley Park for development of the Master Plan. ; NW PARK DISTRICT: $34,883.12 - of which $700 is to be used for 362.E bleachers for the Asbell School Gym, with the remainder to be used for Walnut Grove Park Development (Green Space Land Dedication by Bryce Davis located on Highway 16 West). 362.: 362.( 362.! SE PARK DISTRICT: $7,008.20 - all funds to be used for Walker Park 362.: North Soccer Field Development. SW PARK DISTRICT: $4,758.13 7 funds to be used for Leverett Park 362.! Tot Playground apparatus and Youth Center Playground apparatus. 111-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK Motion was made by Marinoni, seconded by Vorsanger, to approve the consent agenda. Upon roll call, the motion passed unanimously. 362.! November 7, 1989 COMMUNITY DEVELOPMENT BLOCK GRANT BUDGET 363.1 Mayor Martin introduced a resolution approving the 1990 Community Development Block Grant Budget. 363.2 City Manager James Pennington asked that the Board table this item until the next meeting giving the staff time to (1) further analyze the bids on the recycling programs and (2) to research the child care facility concerns expressed by some citizens. 363.3 Kelley, seconded by Spivey, made a motion to postpone for two weeks. Upon roll call, the motion passed unanimously. 363.4 The Mayor apologized for the postponement and stated that anyone present who was unable to attend the next meeting that wanted to discuss the CDBG funds was welcome to do so. INCINERATOR REPORT 363.5 Mayor Martin introduced a report by the City's disengagement legal counsel concerning the status of the disengagement lawsuits on the incinerator project. 363.6 Tom Inglesby addressed the Board stated there were three matters that would be discussed: (1) the suit files against the City trying to prevent sanitation fees from being applied to the incinerator bonds, (2) possible third party claims, and (3) the Freedom of Information request that have been filed with the City. He stated that the FOI request was for documents not in the city's possession rather for documents in the possession of the Inglesby or Niblock firms that have been prepared in connection with the city's defense of the litigation filed against the City. 363.7 Steve Pflaum, a trial attorney and partner of the Inglesby firm, addressed the Board on the overall status of the litigation filed against the City. He stated that the City had been sued; the suit was filed in the Washington County Chancery Court. The plaintiff wants the suit to be a class action case on behalf of all the sanitation rate payers in Fayetteville. In this regard, all of the judges in Fayetteville were potential members of this plaintiff class, so they disqualified themselves from hearing the case. The case will be heard before Judge Oliver Adams in Bentonville. The plaintiff's complaint argues that the waste supply agreement is invalid. The plaintiff wants to prevent the City from paying any monies owed under the bonds. The plaintiff also wants to prevent the City from raising any sanitation fees to make that payment. The only defendants in the litigation currently are the City, the Authority, and Union Bank --the trustee for the bondholder. The problem with the complaint, aside from the lack of legal merit, is that it looks at the controversy with blinders on. The objective and goal of the firm is to see that the court sees the "big picture" regarding the case. There are many more interested parties than those that have been named, and the attorneys need to make sure that the courts are aware of all the issues. They also want to make the litigation as economical as possible for the City. In that regard, they want to make sure that all issues are decided in a single case and avoid multiple lawsuits. They want to make sure that everything relating to the City's ability to make the payments occurs in a single lawsuit, and that the case is decided in a forum which includes all parties that 1 November 7, 1989 have a stake in the decisiontof•the case. This should avoid the possibility of inconsistent decisions between multiple lawsuits. 'Mr. Pflaum then outlined their strategy for accomplishing their goals. They have 364.' filed a motion in court that asks the court to require the plaintiffs to compel missing parties. They feel FGIC, the company that issued the insurance on the bonds, the other members of the Authority (West Fork and Washington County), and the bondholders should have been listed as plaintiffs. They also intend to file pleadings that would add the missing issues. There are two other bases for the City to pay the shortfall under besides the waste supply agreement: (1) the City has the authority to pay the money because if it does not, the City would be subject to litigation by FGIC and the bondholders and potential damages could be assessed against the City; and (2) to avoid the potential damage to the City's bond rating program that would occur ifpayment is not'made. He further stated that there were .two aspects to the litigation. The first aspect is the City's ability to shift all or a portion of the liability to third party defendants. The potential defendants would include anyone from the former City Attorney, the special tax counsel, the bond counsel, the underwriters, and others. Before any of these people could be held liable and claims be brought against them, the City would have to establish that they owed a duty of care to the City and that they had done something wrong to damage -the City. There is a possibility that the City could seek to hold all or some of these potential third party defendants liable if a judge+decides that the City did not, in fact, have the authority to agree to the provisions`in the Waste Supply Agreement. That is the contingency --there would have to be that threshold finding in the first series of issues described earlier. The attorneys plan to argue that the Waste Supply Agreement is enforceable. Pflaum recommended that they be authorized to seek agreements from: the potential third party defendantsthat would "toll the statute of limitations" meaning that the City would not have to sue right away but could wait for a.dedision of the enforceability of the Waste Supply Agreement. There is no guarantee that the potential'third parties would agree to tolling the statute of limitations. If they dobot, Pflaum will report back to the Board and make a recommendation at,that time. 364.: Walter Niblock addressed the Board regarding the Freedom of Information (FOI) 364.: issues. At this time there is a suit.pending in the Chancery Court of Washington County asking the court to declare the law as it pertains to the documents, research, and work product in the hands of the city's attorneys. They are asking the court for a declaration in regard to this particular matter. The purpose of this is for everyone to get an even start. These papers of their strategy in dealing with this litigation. %They feel the court"will approve of this; however, the law is not clear on this matter. Responses have been filed to the suit they filed on behalf of the City. The suit is on the docket for November 20, and Niblock feels all the pleadings should be ready at that time. There are not many questions about the facts of this case --it is a legal matter to be determined by a judge. He feels the case should move right along. Mayor Martin stated that the public had actually sat in on a special presentation 364. by the City's attorneys outlining the facts and strategies of the case. He stated the attorneys were not open to questions, but welcomed the audience to ask questions of the Board or feel free to make comments. Leland "Tiny" Hamilton addressed the Board stating he felt the City should support their staff attorney by providinghim with sufficient staff to follow 364.. •.vvvL.,ca. , , .J.,J through with his duties of advising and representing the City. He questioned the need to hire the Washington D.C. law firm and pay that expense when the City had already hired the Niblock Law Firm. He felt that two full time attorneys under the guidance of the City Attorney and the City Board would be a wiser expenditure of tax dollars. 365.1 Director Green asked Mr. Hamilton what he proposed the City do with the additional full time attorneys after this case is settled --lay them off or retain them on the city payroll. Hamilton stated that the expected expenditure in excess of $1 million and all of the pending litigation that may be forthcoming could probably be used and well served to place the attorneys on staff until they retire. 365.2 Joe Robson addressed the Board and stated that the County Quorum Court had just decided to hire a second full time public defender for under $40,000 per year. He felt something like this would be good for the City. He stated he had basically completed his lawsuit by himself utilizing the University of Arkansas Law Library before Nixon Hargrave finished their report. TAXI SERVICE REQUEST 365.3 Mayor Martin introduced a public hearing and consideration of a resolution authorizing a Certificate of Public Convenience and Necessity for a taxicab service by Razorback Cab of Fort Smith, Inc. 365.4 Application for a certificate must include name and address of applicant, financial status, experience in transportation of passengers, facts proving public convenience and necessity, number of vehicles to be available for operation and the location of proposed depots and terminals, the color scheme or insignia to be used, the hours and days proposed and days which no service is to be provided, the rate schedule, and proof of automobile liability insurance. A public hearing is required on the application to determine if the requirements have been met by the applicant. 365.5 Mayor Martin declared the public hearing open. 365.6 Jesse Roller, owner of Razorback Cab of Fort Smith, Inc., addressed the Board. He stated that the Arkansas Insurance Department has issued him a certificate allowing him to be self-insured for the state minimum liability requirements. He has five cabs to start out with and an additional five if needed. He did not bring a written financial statement, but the self-insurance certificate states he has at least $50,000. He has operated his cab company in Fort Smith for 11 years and started with 1 cab and now has 33. 365.7 Mayor Martin asked the City Manager if the staff had determined if Razorback Cab had met the requirements as set forth in the ordinance. James Pennington stated that the ordinance was clear in requiring an insurance policy for the state minimum required limits of liability, which the applicant has not provided. He also stated that the ordinance requires the names and addresses of four residents of Washington County who have known the applicant for a period of one year and who will vouch for his sobriety, honesty, and general good character. He did state that the background check with the officials in Fort Smith indicated Mr. Roller provided good service without any particular problems. The city's main problem is the noncompliance with the ordinance. He further stated that Mr. Roller had been supplied with a copy of the ordinance and had complied with November 7, 1989 basically all aspects exceptthese.• Also, the financial statement requirements would have to be complied with. Upon granting the authorization to operate, each driver would have to comply with Ordinance 1910 and have a physical examination. Mr. Roller stated he only knew one person in Washington County. He also stated 366.] that he felt his self-insurance status with the state should be adequate for the ordinance. Mr. Everett Cole, owner of C&H Taxi, addressed the Board stating that he did not 366.: feel there was a necessity for an additional cab company.in Fayetteville. He operates 4 cabs in the City and does not see the need for 5 more. He stated in August, which was a busy month due to the fair, he had 1;591 runs with earnings of $7,180. He feels .he runs a good,tclean cab service with decent drivers. He stated Fayetteville also has a limo service, the University transportation system, Ozark Transit, Lifestyles, and motel and hotel courtesy vans. If he felt the need for additional cabs and earnings, he would gladly accommodate. Director Green asked Mr. Cole about his hours of,service. Mr. Cole stated they 366.`. operate Monday -Saturday from 5:00 a.m. to 1:00 a.m. Budweiser Brewery was paying the cab company to stay open from ,1:00 a.m-3:00 a.m.,4but the program failed because people would stay at the bars until just after 1:00 a.m. to be able to get a free ride home when they normally would have left earlier. Club West had also tried to work out a program with the taxi company to provide rides home for their customers. However, this is not proving cost effective.. either. Director Vorsanger asked how Razorback -Cab rates compared with those charged by 366.1 C&H Taxi. Mr. Cole statedthat he had only had one rate increase in 13 years. e Mayor Martin declared the public hearing closed. Director Lancaster made a motion td %deny the' application. He has not had a complaint about the cab company in 13 years... Prior to Mr.•Cole's business, the City was involved in all sorts of controversy dealing with cab companies. He also feels there is not adequate business to support two cab companies. Mayor Martin seconded Director Lancaster's motion based -an the fact that the 366.'. application is incomplete although he -sees no demonstration of public need. Director Vorsanger asked if there°'was someone who ,would take the calls 366.1 complaining about the taxi service. Mr. Pennington stated he had checked with the police chief, and there have been no complaints. 366.' 366.1 DirectorKelleysees this as a free enterprise issue. He feels if Razorback Cab 366.' Company meets the requirements of the ordinance, he feels the Board has to issue the certificate to operate. He stated if Razorback Cab Co. wants to return to the Board after complying with the requirements of the ordinance, the Board will have to vote on the merits of the application at that time. Director Green stated the Board was interested in promoting business growth in 366. the City and did not want this to indicate otherwise. He felt there would be no problem in getting established by Razorback Cab Company if they meet the requirements of the ordinance. November 7, 1989 367.1 Director Vorsanger stated that since the application contains rates and many aspects of a public utility. He is wondering if a cab service is classified as a public utility. If so, a need for the service would have to be demonstrated. 367.2 Mr. Roller stated he felt his business would enhance Mr. Cole's rather than hinder it. He has received calls complaining about the cab service and asking him to come to Fayetteville. 367.3 Director Marinoni stated the City has not had any input from the public about dissatisfaction with the current cab company. He feels the inadequacy of insurance is the major problem with the application. He felt the application could be reconsidered if it were complete. 367.4 Upon roll call, the motion to deny the application passed unanimously. POLICE JAIL CLOSING 367.5 Mayor Martin introduced consideration of a resolution granting the Police Department approval to proceed with the planned closing of the Fayetteville City Jail on or about December 1, 1989. 367.6 The City Manager has recommended approval for the cost of this planning of $4,375.00. Director Kelley, seconded by Vorsanger, made a motion to approve the resolution. 367.7 Chief Watson addressed the Board outlining the steps the Police Department has been taking in considering closing the City Jail. He has been meeting with the Washington County Sheriff's department and with County Judge Williams. They have estimated that the prisoner population will increase somewhere between 600-800 a year for Washington County. The felony prisoners arrested by the City already are taken to the County Jail. 367.8 Director Kelley asked if the Washington County Sheriff has been cooperative in the City housing our prisoners there. He understood that state law says we can force our prisoners on the county, but he would rather it be a cooperative effort and not a forced relationship. Watson stated that they seemed to be resigned to the fact that they have to accept our prisoners if we close the jail. They do not particularly like it, but they are not totally opposed either. He further explained that the City Jail will have no holding facilities at all after the closing. If the jail maintains any type of holding facility, then all of the jail standards and requirements have to be met. 367.9 Director Marinoni asked if there would be a logistics problem. Watson stated this was one of the problems he was addressing currently, and that is why he needs to have approval to proceed so this can be worked out. 367.10 Director Lancaster stated he felt the City should provide facilities if we have a person that needs to be in jail. He asked if there would be some people turned loose because we have no jail that might otherwise have been jailed if we still had our facility. Watson stated that in the past, the City had jailed people for failure to appear, approximately 500-600 per year. With the County Judge's support, the people will be strongly encouraged to appear which should cut down on the number of these type of arrests. Lancaster expressed his concern that the fees the county charges might become excessive. Watson stated that the Attorney General's opinion address this by saying that the fee charged by the November 7, 1989 County could not be unreasonable. Also, Fayetteville and Springdale are the only two cities in Washington County that have a jail. Everyone else in the county uses the County Jail. Kelley stated this request was only for approval to proceed with the closing. 368.1 The final closing will be brought back to the Board. This was confirmed. Director.Vorsanger stated he was an;advocate of the jail closing. He feels the 368.2 county and the City should be working together to centralize the jailing function. He feels it is not economical to duplicate all: of the required jail facilities, especially when there is anew county jail to provide all of these services. ter Upon roll call, the motion to approve the request for proceeding with planning 368.: for closing the City Jail passed by .a vote of 6 to 1, with Director Marinoni voting in the minority. �'- RESOLUTION 112-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK e i REZONING APPEAL ;' . Mayor Martin introduced a rezoning appeal from a decision'by the Planning 368./ Commission regarding rezoning petition R89-28; requested by Cedarcrest Development, Inc. Size of parcel: Approximately 18 acres, *- Location: Location: West of Crossover Road and south of Old Wire Road Property owner: Cedarcrest Development, Inc. Change requested: From A-1 "Agricultural" to R-1 "Low Density Residential" Planning Comnission Action: Rezone to R-1 all property above the re-established floodplain. The petition was considered in a public hearing before. the Planning Commission October 9, 1989. A motion to deny rezoning failed by a vote of 3-4-0 with Commissioners Klingman, Seiff, and Cleghorn voting for the motion and Commissioners Hanna, Allred, Jacks, and Nash voting against. A subsequent motion to rezone all the property outside the 100 year floodplain to R-1 passed unanimously. This appeal is seeking the authority to rezone the whole tract of land including the area within the floodplain which was denied by the Planning Commission. 368. Director Kelley, seconded by Green, made a motion to deny the rezoning appeal. 368. Bass Trumbo, representing Preston Ferguson, owner of Cedarcrest Development, Inc., addressed the Board. He stated at the Planning Commission meeting John Merrill presented the city's position that the zoning be approved. Trumbo stated the A-1 zone is a temporary zone and is to be. changed to what is appropriate for the area. The adjoining property and all of the property in the general vicinity has been rezoned. They feel R-1 is the appropriate zone because the property is circled by R-1 zoned property. Most of the concerns at the Planning 368. November 7, 1989 Commission were regarding flooding. If the developer went ahead with the project and put in a subdivision, this would cause a more likelihood of flooding. All the owner wants to do is get the property rezoned to R-1, which is more restrictive zoning than A-1. The owner want to address the problem of flooding and do what is required. He is also willing to certify that the floodplain level will not be raised by his development. The owner does not want to buy lawsuits by having caused flooding problems. He wants to get the property rezoned, then spend the money on engineering to see if the project is feasible. Just because the rezoning is granted, that does not mean the project will be implemented because there are flood ordinances, subdivision regulations, building codes, etc., that are there to address the flood issue. Even if the property were not rezoned, the owner could develop it in ways that could create the same problems. If the requested rezoning is denied, then the property remains A-1 and is landlocked and practically useless. 369.1 Director Kelley asked Harry Gray, engineer representing Cedarcrest Development, Inc., if the area has had a history of flooding and if a feasibility study had been completed on the project. Gray stated he thought there has been some flooding problems south of the area. The floodplain was in a study completed by the Corps of Engineers. A detailed, topographic survey will have to be conducted on this 18 acre site. It is heavily wooded, and the survey alone will probably cost about $2,000-$3,000, so the owner has to know about the rezoning before spending that type of money. 369.2 Trumbo stated that if the rezoning fails, then basically the project fails because they need the 18 acres in question to make the project feasible. 369.3 Director Green asked if the concern with the properties above or below Mud Creek from this development. Gray stated the major concerns were from people in the Cedarwood addition who own lots on the south side of the tract of land they are trying to rezone. Gray stated that there are several types of building possibilities that could occur zoned A-1 that would be more detrimental to the area than what the R-1 zone would allow. 369.4 Mayor Martin stated that he understood rezoning the property did not mean that it could be built upon. Rezoning states the land is appropriate for a particular type of development. To build on the land requires a plat review which has to be made with the City, and reviewed by the City, engineers, and utilities. 369.5 Trumbo stated that this case was somewhat unusual because the complaints to the rezoning were not due to the nature of the planned development. He stated the people with concerns about the flooding problems will be taken care of further on down the line through the Planning Commission. 369.6 Ken Edwards, on behalf of some of the concerned citizens, addressed the Board. The preliminary problem is that the floodplain issue has been taken from maps that are dated. There have been several subdivisions and developments that are not reflected on these maps. Over the past years there has been some flooding problems in this area. He stated there were differing opinions regarding the flooding based on the old maps. Based on the development that has occurred and the old maps, there is no way to know how the area will be affected. He further stated that there was a proposed plan to extend the cul-de-sac on the west side of the property. There is a petition from property owners on the Magnolia Street area who do not want this, and the City has been against the extension of cul- de-sacs all along. In addition, there is a proposed street off of Highway 265 November 7, 1989 h,. at a very dangerous intersectson.. This developerknew that the property was in as a "gulleywash" when he purched it. He is requesting the Planning Commission's recommendation be upheld. Mayor Martin asked Edwards if he understood that the proposed development could be disallowed at the plat review stage. Edwards stated that they understood; however, if rezoning is allowed at this point, the property might be clear-cut and then at a later stage find that:development is not feasible. They hate to have a watershed destroyed prematurely.] J. ` e Director Green asked if a Bill of Assurance from the developer not to raise the 370.2 floodplain would satisfy the area residents. Edwards doubted it because there have been flooding problems in the past, and the residents are very concerned about this. In 1981 due to flooding,'thetMagnolia Street bridge was under water, and there could have been a -disaster if. emergency persohnel'had needed into the area as that bridge is the only entrance into the area. Mayor Martin asked if rezoning to R-1 could prove beneficial to the area based 370.2 on the restrictions on construction. Edwards answered not in this particular area due to the fact of the way the land lays. ;There is a -creek running through the middle of the property and the land slopes drastically on both sides down to the creek. 370.1 Shay Lastra addressed the Board opposing the rezoning. She is aware of what type 370./ of construction could occur if the A-.1 zoning remains, but realizes it probably will not occur because it would not"be economical or feasible. She feels Mr. Ferguson was aware of the limitations of the,land.when he purchased it. Marilyn Kilby, a resident of the Sweetbrier Addition addressed the Board opposing the rezoning. She has lived, in her home for 11 years. During the flooding 5-6 years ago, the house next to her flooded, and.'the water lapped at her garage door. She talked with Conrad Battreal, of`the'Corps of Engineers, and they agreed that a new study was needed for the area duerto the development. The Corps stated that continued development could cause flooding problems. She quoted from Mr. Battreal's conversation stating the needs for detention ponds to handle the runoff. She understands that detention ponds are not currently in the developers plans and requests them if the rezoning and plat review are approved. She requested the passing of an ordinance that would require detention ponds when runoff is increased due to development. She also requested that this item be tabled until the Corps of Engineers could complete a new study of the area: Upon roll call, the motion to deny the appeal passed by a vote of 5 to 2, with Directors Green and Martin voting against the motion. Bass Trumbo requested that the Board table the item rather than to vote on the 370.. Planning Commission's decision. 370.` 370.1 Director Kelley, seconded by Marinoni, made a motion to table. Upon roll call 370.1 the motion passed unanimously. November 7, 1989 REZONING 371.1 Mayor Martin introduced an ordinance rezoning property as requested in Rezoning Petition R89-30. Size of parcel: 1 acre Location: South of petitioner's property at 2890 Crossover Road Petitioner: James Meinecke Change requested: From A-1 "Agricultural" to R-0 "Residential -Office" Planning Commission action: Recommended approval 7-0-0 subject to Bill of Assurance recommended by Staff. 371.2 The petition was considered in a public hearing before the Planning Commission on October 23, 1989. The Planning Management Director recommended approval of the rezoning, reporting the following to the Commission: 371.3 The property consists of approximately 1 acre and has been zoned A-1. Mr. Meinecke is purchasing the plot that is adjacent to his property (that has been rezoned at an earlier date) where he owns and operates a dance studio, Williams Dance Center, located at 2890 Crossover Road. He plans to build a new studio on the land and offers a Bill of Assurance that (1) would limit the use of the property, (2) the access would stay the same as it is currently, and (3) a wooded buffer of a certain width be left on the property behind the new building. 371.4 The ordinance was read 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. City Attorney Rose read the ordinance for the third time. 371.5 James Remby, 2870 Crossover Road, addressed the Board. He did not oppose the rezoning, but he had a question about the wooded buffer. He would like to have the Bill of Assurance on the old property amended so that the buffer would be placed at the rear of both the new and old properties. 371.6 Mr. Meinecke agreed to the buffer area on the new property but does not want to hinder his overflow parking area at the rear of his present location. 371.7 Director Marinoni stated that the City could not require a Bill of Assurance -- the property owner can offer one. 371.8 There was discussion about the location of the proposed buffer zone with some confusion and differences between the petitioner and his neighbor, Mr. Remby. Both parties requested that the issue be postponed for two weeks to work out the location of the buffer zone. 371.9 Director Martin, seconded by Kelley, made a motion to postpone for two weeks. Upon roll call, the motion passed unanimously. 371.10 The Board recessed at 10:10 p.m. and reconvened at 10:15 p.m. November 7, 1989 PROPERTY CLEANUP Mayor Martin introduced consideration of an ordinance ordering the abatement of unsightly conditions and the razing and removal of unsafe structures located at 4105 East Huntsville Road. The City Manager recommends approval of -the ordinance.,. The property is owned by Melvin R. and Ann Romine which is in violation of City Ordinance 1448. Notice was given by the City to the property owner to obtain the required permits and correct the violations on April 24, 1989. As of this date', the violations have not been corrected. 4 4 The ordinance was read for the first time. • Director Kelley, seconded by 372.. Marinoni, made a motion to suspend theirules and place. the ordinance on its second reading. Upon roll call, the motion passed by a vote of 6-1,.with Martin voting against. The ordinance was read for the second time. Director Lancaster, seconded by Marinoni, made a motion to furtheresuspend'the rules and place the ordinance on its third and final reading. Upon roll call, the motion passed by a vote of 6-1, with Martin voting in the minority. The ordinance was read for the third time. 372.] 372.. • At this time, Freeman Wood, Inspect'ion'Division Superintendent, gave a slide presentation showing the violationsofrthe property. Mr. Romine addressed the Board and stated that he misunderstood the papers that he received. He thought he could use the building as .storage and be in compliance. He has owned the property -4 or 5 years and has made. improvements to the property on a continuing basis. He asked the Board for more time to get the building brought to code.w, • ` Director Marinoni asked him how much time he would need. Mr. Romine stated he did not know how much time he wouldrneed to complete the,job, but he would like at least 30 days to start cleaning up and working on the building. He will not be able to afford to complete the whole project immediately. • 372.4 372.' 372.E Director Green asked if Mr. Romine knew what all did need to be done to the 372.; property to bring it into compliance with the code. Mr. Romine stated he had the letter telling him of the violations. '') Director Vorsanger asked staff for assistance in what type of requirements would need to be met for a storage building rather than a residence. Freeman Wood stated that the building would still have to meet the building code, but the plumbing and electrical requirements would be different for storage. He stated that his department would be glad to work with Mr. Romine on the requirements he needs to meet for a storage building. Director Kelley, seconded by Vorsanger, made a motion to postpone for 30 days and give Mr. Romine time to bring his property up to code. Mayor Martin stated Mr. Romine would need to look and see if bringing his building up to code is feasible. Mr. Romine stated he could not complete the project in 30 days. Mayor Martin explained to him that the City would be 372.1 372.! 372.: NOvanber 7, 1989 willing to work with him, but he has to show that he is definitely working on the house. 373.1 Upon roll call, the motion to postpone passed unanimously. PROPERTY CLEANUP II 373.2 Mayor Martin introduced consideration of an ordinance ordering the abatement of unsightly conditions and the razing and removal of unsafe structures located at 1723-1725 West Mitchell. 373.3 The City Manager recommends approval of this ordinance. The condemnation is requested for the vacant, dilapidated, and unsafe building located at 1723-1725 West Mitchell. Notice of violation was given to the property owners, Myrtle Winkle and Madeline Tribble, on January 26, 1989. 373.4 The City Attorney read the ordinance for the first time. There being no motions on the ordinance, it remained on first reading. EASEMENT VACATION 373.5 Mayor Martin introduced consideration of a request by Clifford and Bonnie Walker for an ordinance vacating and abandoning a portion of the utility easement located on Lot 21 and a part of Lot 1, Block 2 of the Broadview Subdivision. The vacation is requested in order to allow the sale of the property. The house was constructed in 1957. The public utilities and Warner Cable agree to the easement vacation, and the Staff recommends the portion of public easement being encroached upon be vacated. 373.6 The ordinance was read for the first time. Director Kelley, seconded by Vorsanger, 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 Marinoni, 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 City Attorney read the ordinance for the third and final time. Upon roll call, the ordinance passed unanimously. ORDINANCE NO. 3461 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK UNDERCOVER VEHICLES 373.7 Mayor Martin introduced consideration of an ordinance waiving the requirements of competitive bidding for the purchase of two used undercover vehicles for use in the Drug Enforcement Program 373.8 The City Manager recommends approval of the bid waiver, as it will allow the Police Department to purchase the vehicles "on the spot." The cost is $6,000 and the budgeted amount is $6,000. 373.9 The ordinance was read 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 Lancaster, made a motion to further suspend the rules and place the ordinance on its third and final November 7, 1989 R ay. reading. Upon roll call, the.motion passed, 7-0: The ordinance was read for the third and final reading.' Upon roll call, the ordinance passed, 7-0: ORDINANCE NO. 3462 APPEARS ON PAGE 7411 OF ORDINANCE AND RESOLUTION BOOK )(XV SEWER LIFT STATIONS-CH2M HILL/OMI CONTRACT Mayor Martin introduced consideration of CH2M Hill/OMI for renovation, work to„the waiving competitive bidding. a resolution awarding a contract with sewer lift stations, and an ordinance 374.] The City Manager recommends approval. ,* The bid waiver 'is for the labor and 374.: miscellaneous cost of OMI personnel performing the renovation. OMI presently has the operating and maintenance contract for the sewer lift stations. OMI has identified the necessary repairs to the lift stations, and it is in the best interest of the City to have OMI perform the renovations. w • Director Lancaster, seconded by Marinoni, made a motion to adopt the resolution. • Bob Kelly stated the estimated cost for the project is $222;000 and $225,000 was the budgeted figure. Director Marinoni.asked if the specific figures would be brought to the Board for final approval.- - o- Director Green asked what had been done in determiningfthesscope of work to be performed. Kelly stated that the project had been reviewed by Mike Batie. The actual recommendations came from CH2M Hill/OMI. Green asked if the contract was on a cost plus basis. He wanted to know if all repairs were reimbursable on the lift station side of the contract. y, t Gary Vaughn, Project Director for OMI, stated that the contract presently in place to operate the plant and lift station is a cost plus. The agreement before the Board at this time is a lump sum This contract is for work to bring the lift stations up to design standards. There are no engineering costs in these figures. Bob Kelly. stated that this would also include a quick connect for an emergency generator. Vaughn stated that an electrical disconnect service will be installed on every lift station so that a portable generator will be able to be used at any station. 374.: 374.' 374.` 374.E Director Green pointed out that he wanted to make sure everyone involved 374... understood the reason for waiving competitive bidding on a project of this size. He wanted to make sure that this waiver is justifiable and in the best interest of the citizens and for the City. The ordinance was read for the first time. Director Marinoni, seconded by 374.1 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. Director Lancaster wanted to make sure that someone of the City Staff would 374.! follow the contract and make sure that each item or job charged is actually used November 7, 1989 or performed. Bob Kelly stated that the contract would have to be approved by City Staff before payment is made. 375.1 Upon roll call, the ordinance passed unanimously. ORDINANCE NO. 3463 APPEARS ON PAGE /G Y OF ORDINANCE AND RESOLUTION BOOK 375.2 Upon roll call, the motion to approve the resolution to award the contract passed unanimously. RESOLUTION 113-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK ON -PREMISES CONSUMPTION OF ALCOHOL 375.3 Mayor Martin introduced consideration of a request from the Advertising and Promotion Commission for a resolution requesting the Fayetteville Board of Directors call a referendum election o the question of authorizing the sale of alcoholic beverages for on -premises consumption at all hotels and restaurants in the City of Fayetteville (pursuant to Ark. Code Ann. 3-9-202). 375.4 The Advertising and promotion commission requests the Board adopt this resolution in order to benefit the tourist and convention industries in the City and related areas which would in turn benefit Fayetteville and the State of Arkansas. 375.5 Director Green, seconded by Vorsanger, made a motion to approve the resolution. 375.6 Director Kelley asked how many signatures would be required on a petition to get this question on the ballot. City Attorney Rose stated that there were two ways according to Arkansas statute to get an election on this issue: (1) by a majority vote of the governing body of the city or (2) by a petition filed with the City Clerk and signed by qualified electors of the city numbering not less than 15% of the votes cast in the city for the office of governor in the last election. 375.7 Director Kelley asked when the last time was that the Board of Directors voted to approve or put something on the ballot of this nature. He feared the Board might be setting a precedent for other special interest groups to bring things to the Board calling for an issue to be placed on the ballot. He stated the Board in the past had not followed through with this type of request. 375.8 Mayor Martin agreed with Director Kelley. He favored a referendum but did not think the Board should call for it, rather it should be the result of public sentiment as expressed in the signing of petitions. 375.9 Director Green stated that he felt this was different from other special interest groups since the Advertising and Promotion Commission is a legal commission set up by state statutes for the benefit of city government. He felt based on this standpoint, the feared precedent may not be established. He finds it difficult to vote against letting the people vote on an issue. 375.10 Director Vorsanger stated he shared Director Green's sentiments, especially since there is a law that was set up to do the thing the Board is being requested to do. V November 7, 1989 Director Marinoni stated he was opposed: to the Board calling for the referendum 376.] election. He supports the petition process. Director Lancaster concurred with Director Marinoni's opinion. He further stated 376.; that the definition of a restaurant would need to be clarified Director Vorsanger asked how the incinerator vote came about. Mayor Martin 376.: stated that the Board called for an election.•',However, he recognized a substantial difference in the terms of public interest aad&concern and public dissention on the two matters. } Coy Kaylor addressed the Board. He felt there were misunderstanding about the 376.' intent of the A&P Commission. The legislature said there were two ways to put this on the ballot -- petition or governing body of the city -could request it be done. He stated this was a liquor -by -the drink referendum. Fayetteville currently has liquor -by -the drink that is setFby state law. He felt in order for Fayetteville to compete for tourists, this issue must be passed. He felt requiring a petition was a waste of time. ; • Upon roll call, the motion to call a referendum election on liquor -by -the drink 376.' failed by a vote of 2-5, with Directors Marinoni, Spivey, Lancaster, Martin and Kelley voting against the motion. REAL ESTATE TAX Mayor Martin introduced consideration of an ordinance levying the real estate 376.E taxes within the City of Fayetteville for the year 1989:' This is not a new tax, rather the annual renewal of the current tax levy with 376.7 one change as required by law, personal property millage has been recalculated from 4.2 to 3.7 mills. The breakdown of mills is as follows: General Government Operations: Police Pension Fund: Fire Pension Fund: TOTAL: Real Property Personal Property 2.1 mills . 5 mills . 5 mills 2.5 mills . 6 mills . 6 mills 3.1 mills 3.7 mills The ordinance was read 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. Upon roll call, the ordinance passed unanimously. ORDINANCE NO. 3464 APPEARS ON PAGE /69 OF ORDINANCE AND RESOLUTION BOOK KO/ 376.8 INTERGOVERNMENTAL COOPERATION COUNCIL Mayor Martin reported that the Mayor serves statutorily on an Intergovernmental 376.9 Cooperation Council which consists of the mayors in Washington County and the County Judge. It meets periodically to review items of general concern. At its November 7, 1989 November 2 meeting, there was a request for a show of sentiment concerning raising the county millage for road improvements from the current 1.3 mills to a total authorized 3.0 mills. Of this the City of Fayetteville gets 80% and the county gets 20%. He felt it was not proper for him to express a position for the City Board on whether or not the county should recommend to the Quorum Court that the millage be raised. He asked if anyone had a strong feeling about the millage, they should express it to the County Judge. USF&G SETTLEMENT PROPOSAL 377.1 Mayor Martin introduced consideration of a resolution authorizing approval of a Settlement Agreement in the matter of United States Fidelity & Guaranty Company vs. CH2M Hill Southeast, Inc., and the City of Fayetteville and approval of a budget adjustment. 377.2 USF&G sued the City and CH2M Hill for approximately $6 million in funds USF&G paid over and above the contract total (for construction of the wastewater treatment plant), after the contractor defaulted on the project and it was taken over by the insurance company. 377.3 The staff recommends approval of the resolution. Under the agreement, USF&G would dismiss, with prejudice, its lawsuit against the City. The City would pay the $144,000 remaining balance in connection with the wastewater treatment plant construction project. The City would dismiss, with prejudice, its counterclaims for liquidated damages in the amount of $64,800 and extra engineering services in the amount of $55,000. 377.4 Mayor Martin, seconded by Green, made a motion to approve the resolution. 377.5 Director Kelley stated by voting on this issue, the Board would be showing a great deal of faith in the negotiating team that derived this settlement. He stated the agreement was extremely difficult to understand, and he hoped it was in the best interest of the City. 377.6 Mayor Martin stated that as a member of the negotiating team, he felt very good that the City had not given up any substantial claims. 377.7 Director Marinoni asked if the $144,000 was the remaining balance due the contractor and the money had been set aside, why was a budget adjustment required. Scott Linebaugh, Assistant City Manager, stated the budget had been done incorrectly at the beginning of the year. It did not include the entire balance due on the contract because they did not know what type of settlement was going to take place. 377.8 City Manager James Pennington stated they were very pleased with the negotiated settlement. CH2M Hill will still be responsible for any latent defects in the plant. 377.9 Director Vorsanger asked for City Attorney Rose to define the term "with prejudice". Rose stated that then no one could sue again on any issue in this lawsuit. 377.10 Upon roll call, the resolution and budget adjustment passed unanimously. RESOLUTION 114-89 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK OTHER BUSINESS - •y r+ DICKSON STREET IMPROVEMENT DISTRICT #1� • November 7, 1989 Director Vorsanger asked if the•resolution presented the Board by the Dickson Street Improvement District meant they were lowering their assessment from 8% to 4%. He asked what the 4% was to be used for.' � Y James Pennington stated the Dickson Street Improvement District had agreed to do the initial start-up of other improvements in the area after the City agreed to construct the parking lot. The initial assessment figure was about. $1.8 million. However, the actual assessment now is -only several hundred thousand dollars. : - ' _ A+f Director Vorsanger asked if Bob Kelly could give the Board a report of the status of the parking improvements that need t� be made before the November 15 deadline. Bob Kelly stated that construction was proceeding on the south half of the property and also on Dickson Street itself. The RN Plan group is to present a proposal on Thursday (November 9) about how to spend the required money by November 15. He stated the old ice house building may have to be removed. Regarding the total construction ofthe site, there has been nothing designed in the far most corner of West Dickson. He understood.thatfunding and a recommendation from Frank Sharp wouldtbe presented about what to do there. If this is not the case, then his department can proceed on. .Kelly stated that the City had already purchased the property. — V 378.1 378.2 378.3 Director Lancaster thought the City was obligated to build 500 parking spaces 378.4 and nothing more. James Pennington stated he understood that the direction of the Board was to go 378.5 ahead with parking on the entire tract of land. Director Lancaster asked if the property had to be condemned in order for the 378.6 City to buy it. Mr. Pennington stated that it had been condemned -for public use. Pennington stated that none of the parking lots designed were "plain asphalt 378.7 lots". They are all designed with aesthetic characteristics, i.e., trees, shrubs, and landscaping. Mayor Martin stated that he understood the "hurry up" money was being spent on 378.8 the southwest corner of the property and involved drainage and parking. There was always a plan to have a green space between the parking and the arts center. He understood Mr. Sharp and Mrs. Dunn were concerned that the City's plan was going to obliterate the green space in the effort to spend the money. The Board indicated that they would work with Sharp and Dunn on some type of a park on that particular corner, and they would provide the funding. The corner was never intended to be raised. In all the plans it was designated to remain as a green space. Pennington stated there were concerns about utilizing all of the land for parking facilities. There is a problem of a lack of funding to do this. Bob Kelly stated the City had worked at complying with the November 15 spending requirement. They have no complete plan of any of the parking. After the November 15 deadline, a regularly scheduled project will be conducted. 378.5 378.1 November 7, 1989 Mayor Martin stated there was a plan developed for the parking. The plan envisioned not just asphalt across the property but green space as well. Before trees are removed and the green space eliminated, the community developed plan needs to be followed. No one is wanting to build a park with city funds. But the City does not want to cover up the park with a city parking lot just to spend some funds. Director Vorsanger stated he felt there should be closer coordination between what the Board thought they approved and what is happening. He felt if the people want a park on the property owned by Tom Pearson, let them buy it. He felt the Board should not be spending parking funds for that purpose. Mayor Martin suggested that Staff get together with the Arts Center people and find out what is planned to be done at that area and report to the Board. MINUTES Director Vorsanger, of the Fayetteville Upon roll call, the ADJOURNMENT The meeting adjourned at 11:43 p.m. 1 379.1 379.2 seconded by Marinoni, made a motion to approve the minutes 379.3 City Board of Directors Retreat on June 9, 1989. motion passed unanimously. 379.4 1