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HomeMy WebLinkAbout1990-02-06 Minutes• MINUTES OF A MEETING OF THE CITY BOARD OF DIRECTORS r A regular meeting of the Fayetteville City Board of Directors was held on Tuesday, February 6, 1990 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, Ruse Kelley, Ernest Lancaster, Paul Marinoni, Jr., Shell.Spivey and Fred Vorsanger; Assistant City Manager Scott Linebaugh, 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 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 item 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 entire Board. He said any questions for the Board or staff should be directed to the Mayor. INCINERATOR DISENGAGEMENT LAWSUIT Mayor Martin introduced a report by the City's disengagement legal counsel on the status of the incinerator disengagement and the Freedom of Information Act (FOIA) lawsuits. Walter Niblock addressed the Board and stated that Judge Smith had made a decision ruling against the City on the FOIA lawsuit. Kitty Gay and Mr. Olive, counsel for the Springdale News, have been working together to present the decision of the finding of facts and laws to present to the court for its signature. Even though we lost the FOIA case, in a sense the judge did not disagree with the City. The court gave a lot of thought to the ruling and made specific findings of fact which will make for a focused document for appeal to the Supreme Court of Arkansas if the Board so authorizes. The judge did state that the city, because of the FOIA ruling, cannot receive a fair trial in this instance. The judge stated he felt the fundamental fairness is involved here and wanted to preserve this for the City and the citizens of Fayetteville. Niblock stated he felt this was a 'winnable• case to take on appeal. The judge stated he did not have the power to make a fairness exception in the FOIA rulings. Both Judge Smith and Mr. Olive would like to have definite rulings on this issue. The court set a $1,000 appeal bond so in the course of the appellate process, things will remain at status quo. The transcript of the case will be ready in about a month. Niblock stated he would be asking for an expedited appeal. This case has generated a lot of interest all over the state, so other government entities are interested in the outcome of the case as well. Niblock 37 St$ February 6, 1990 stated another city may want to file a 'friend of the court' brief and support the position Fayetteville is taking. A11 of the FOIA litigation stems from the incinerator case. The incinerator case is still where it was. The attorneys have agreed to include Washington County and West Fork as co-defendants. Mayor Martin stated he was impressed with the judge's fairness and thoroughness and felt he had given both sides a fair hearing. Martin asked if it was correct that the County Prosecuting Attorney stated he would not pursue criminal charges against city officials until a decision has been made on the appeal. Niblock confirmed this, and further stated that if the Supreme Court rules that the documents should be turned over, he will recommend this to the City. Martin thanked Andrew Kiser as well as Mr. Olive and the Springdale News for allowing the City to pursue the case on appeal without further threat of criminal prosecution. Martin stated he was unable to attend the second day of the hearing. On the first day, the judge indicated that he was looking for two types of documents: attorney work papers and any documents that would indicate that the Board might be trying to cover up something. He asked if the judge indicated that there were any indications of a cover up. Niblock stated the judge had found nothing to so indicate. Niblock further stated the judge has said that the City had made no attempt to do anything but follow their attorney's advice regarding the work papers and legal memoranda. Martin pointed out that there was not incentive for a cover up. Kitty Gay stated the judge was looking to see if the documents were of a nature to be 'open' or to be kept 'closed'. He indicated this was a marginal case and the documents were indeed work product of the attorneys. Current case law states that the documents have to be turned over. Mayor Martin stated that if the documents were turned over, the City would be unable to get a fair trial. If the case goes on to the Supreme Court, and since we all have a constitutional right to a fair trial, there could be a groundswell movement in the state to amend the FOIA. Gay stated this case focuses attention on the FOIA. The act was passed in 1967 to help the public. Courts have always interpreted it literally because it was for the good of the public. Now, the right to know has run up against the right for a fair trial. Green asked if counsel had an estimate of the cost of an appeal process. Niblock stated most of the research for the briefs was completed, so that would help keep the coats lower. Gay stated there would be the cost of the transcript and writing up the briefs. She pointed out that the custom is for the City to provide two briefs and the Supreme Court would probably want oral arguments. So the costs would include a trip to Little Rock. They were unable to give an estimate but did state that the costs would be much smaller than those already incurred. 1 February 6, 1990 Vorsanger stated that Judge Gibson in the first trial indicated that Andrew Ziser could see the requested records in his office but would be for his and his staff's eyes only. Vorsanger asked if Judge Smith had changed that ruling in any way. Niblock stated the ruling remained. He pointed out that no criminal charges have been filed at this -time and none are expected regarding the documents that have been turned over. 'Spivey asked if Judge Smith had indicated that it would definitely hurt the City's case if the papers were •. turned over. Niblock confirmed this. Spivey stated he has been asked why the City is fighting the case so hard and spending so much money. He stated his responee'had'been that if the City were to go in default, they would suffer and the bondholders would probably not suffer because the bonding company would pay them off. However, the bonding company would then sue the city. This litigation could go on for years and cost the City millions of dollars more in legal fees. .It could also be determined that we have violated the securities laws, and thetdamages are then tripled which would mean $21 million. Fighting the case is the lesser of two evils. The Board is doing the best they know how to minimize losses and do whata.is beet for the City and citizens of Fayetteville. Currently, the bond 'payoff is being assessed at $2.02 per month on the sanitation rates until the year 2002. He further stated that it would be ludicrous for any of the Board members to participate in any cover up because there is too much to lose for everyone involved. 4. Gay stated that every document that had evert been.produced dealing with the incinerator was included in the 24-26 boxes that the prosecutor has access to. Spivey stated he felt the legislators that enacted the FOIA never envisioned that attorney work papers would have to be made public before a case went to trial. Gay agreed with this, and statedif the Supreme Court does not find for the City, then when anyone sues a public entity, they will be able to see all attorney work product, which will eliminate fair trials in all future litigation of this type. • Kelley asked what the next steps were that the Board needed to take. Niblock stated the transcript needed to be ordered and counsel directed to file an appeal. Lancaster stated he would like to call attention to the fact that the committee tried to keep the incinerator project alive. They pointed out that it would cost at least $10 million to get out of the incinerator project.before the citizens voted to do so. He stated Fayetteville still has a solid waste problem that has not been solved and will have to be addressed at some point in the future. Vorsanger suggested asking the City Manager and City Attorney to contact the Arkansas Municipal League regarding any possible help in financing the legal costs of trying to protect attorney work papers from falling under the FOIA for municipalities since this is such an important issue to every city and town in Arkansas. Delmar Embry addressed the Board and asked why the documents were not turned over before the lawsuits were filed. Martin stated outside attorneys had begun work on the incinerator project before the suit was filed, so the work product was too intermingled. 39 '40 February 6, 1990 Robert Reus addressed the Board stating he felt the City should not pursue the FOIA matter any further. He also stated that he felt some other attorneys would be cheaper for the City, and that he doubted tripple damages would be ed against the City for securities violation. Robert Barger addressed the Board asking why the people responsible for the incinerator problems were not being personally held liable, as he would be in private practice. Martin stated he was the only director who voted against the incinerator, but that every director had acted in good faith in the matter. Barger further asked why the citizens were being made to pay back the bond money. Martin stated it was the citizens who voted for the incinerator disengagement project, and they were informed ahead of time of the costs. In fact, the costs were listed on the ballot. Spivey stated there has been suit filed against various third parties that the City feels might have been negligent on the incinerator project. If the City defaults on the bonds, then there would be a large risk of harming the City's credit rating which would cost them dearly in any future bond financing attempts. He further stated there was no easy solution to the problem. CONSENT AGENDA The Mayor introduced consideration of items which may be approved by motion, or contracts and 1 hich 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 contained in the consent agenda, as follows: A. Minutes of the January 11, 1990 special Board meeting; B. Minutes of the January 16, 1990 regular Board meeting; C. A resolution awarding Bid #89-59 to Jones Olds -GMC -Buick, Inc., of Fayetteville, for one (1) Four Wheel Drive Pick-up with Snow Plow in the amount of $16,354.12; RESOLUTION 14-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOR D. A resolution approving payment of $18,511.93 to the Niblock Law Firm for services rendered on the incinerator project and the FOIA lawsuit for the time period of December 1-31, 1989; RESOLUTION 15-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK E. A resolution approving Amendments No. 2 and 3 with Crafton and Tull for Engineering on Highway 71 -Cato Springs Road water relocations; Staff recommends approval of the amendments which will increase the contract amount by $18,527.54. Amendment 2 is for the work done by Crafton and Tull in investigating alternatives to the originally February 6, 1990 planned and approvedroutes of the proposed water and sewer line relocations suggested by the Highway Department. The cost of this amendment of ($6,250.00) will be considered reimbursable by the Highway Department and be a part of the new Highway -Utility Agreement to be executed at a'later date. - • • Amendment 3 relates to the 'Highway Department Plan* and is for preparation of the detailed plans and specifications, taking bids on the project, preparation of required easement documents, and construction management. This cost of $12,277.54 will also be considered reimbursable as allowed by Highway Department Policy and 1.state law. 4 RESOLUTION 16-90 APPEARS ON PAGE ,j :OF,ORDINANCE AND RESOLUTION BOOK REZONING-CEDARCREST DEVELOPMENT, INC. Mayor Martin introduced considerationof a rezoning request as presented in Rezoning Petition R89-28 requested by Cedarcreat Development, Inc. • 4 g Size of Parcel: Approximately 18.acres Location: West of Crossover Road and south of Old Wire Road Property owner: Preston Ferguson on behalf of Cedarcrest Development Change requested: From A-1 •Agricultural• to R-1 •Low Density Residential' 1 Planning Commission Action: Recommend rezoning by a vote of 5-4-0. This petition was considered initially in a public hearing before the Planning Commission on October 9, 1989. A motion to deny rezoning failed by a vote of 3-4-0. 'A subsequent motion to rezone all the property outside the 100 year flood plain to R-1 passed unanimously. At the November 7, 1989 City Board meeting, the petitioner appealed the decision of the Planning Commission seeking authority to rezone the whole tract of land. The Board denied the rezoning appeal by a vote of 5-2. Upon the request of the attorney for the petitioner, the Board voted to table the matter. On January 8, 1990, the petition was brought before the Planning commission based on the fact that there was new information having to do with the restrictions on development within the flood plain. The Planning Commission voted to rezone the whole tract. Staff feels the applicant is offering a viable measure of assurance relative to the flood plain elevations on the property and recommends approving the rezoning for the entire tract of land from A-1 to R-1. The ordinance was read for the first time. Director Marinoni, seconded by Green, 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 41 February 6, 1990 time. Director Marinoni, seconded by Green, made a motion to further suspend the rules and place the ordinance on its third and final reading. The ordinance was read for the third time. Linebaugh pointed out that if the rezoning is approved, the proposed development would still go through the plat review and subdivision review processes before approval is granted. He stated there were several criteria that can be used to deny a rezoning. John Merrill, Planning Management Director, stated that the Planning Commission had reversed their decision and had now recommended approval of the rezoning. The Planning Commission and staff have given a great deal of consideration to the surrounding development and zoning. He stated the new flood zone map would be available at a later date. Currently, the Planning Commission is not recommending much A-1 zoning. Staff feels A-1 is a Molding zone' and is not appropriate for this property. There could be all types of farming operations as well as other types of business endeavors conducted on this property as it is currently zoned. Merrill further stated that the city has subdivision and flood control ordinances that address these issues that should be decided by the Planning Commission. The Board should be addressing the zoning question. He stated the staff feels it would be sound urban planning to rezone rather than to leave as A-1. A preliminary plat has been filed by the development engineer, Harry Gray. The plat will have to go before the Planning Commission, and the flooding question will have to be dealt with at that time. Kelley asked if the Board approved the rezoning and the plat was sent to the Plat Review Committee, could a decision be made without an updated flood plain study. He asked if the Board could direct the Planning Commission not to approve any plats until they received updated flood maps. City Attorney Rose stated he was not sure. He hesitates to not allow the discretion of the committees, but he understands that the Board has the right to give administrative directives. He would like to be able to research this point before offering advice. Martin stated he thinks the Planning Commission would be reluctant to act without that information. The question would be if the Planning Commission has to act on a plat that has been resubmitted. He asked if the potential of flooding was a legal basis for denying a rezoning. Rose stated it was not. Failure to rezone because of a flood plain is an inappropriate way,to deny rezoning. Reasons to deny cannot be arbitrary or capricious. Vorsanger stated the Planning Commission approved this and sent it to be Board on a 5-4 vote, so it was not an overwhelming decision. If the vote had been 4- 5 not to recommend, the petition would have been brought to the Board on appeal. If the Board denies the appeal, the question would not come back before the Board for a year. This would give the petitioner time for the new flood plain study to be done. Vorsanger stated he felt the property should be rezoned to R-1. February 6, 1990 t If the Board could table the issue or deny the rezoning, it would give time for the engineering studies and flood plain studies to be completed, and then everyone would have the opportunity to see how the proposed development would affect the area. A Martin asked Roseeif the Boardcould postpone the issue based on the fact that the studies have not yet been completed. Rose stated they could. RR _ . Merrill pointed out that the studies could take more than 1 year to complete. b Marinoni stated there was a se ies,of gates that the proposed development has to go through including the rezoning ,question and the possible accessibility and street questions. If the rezoning were to be denied based on one of these criteria, that might allow enough time for the new flood plain study to be completed. • Lancaster stated that the Board has the.authority to table the item indefinitely. He also asked if the current zoning laws precluded anyone from putting a new chicken house, or some type of agricultural business in that portion of the A- 1 zoned location if the business does not already exist. Merrill stated he had not located an ordinance that prohibited new agricultural construction in A-1 zoned areas located within the -city limits. t Green'stated the Corps of Engineers would update the current flood maps. There will be no change in the flooding problems. He felt the issue of flooding should not be mixed with the rezoning question. If the Board tabled for the flooding problem, they would be mixing the two issues. He would like to send a resolution to the Planning Commission that future development be delayed until studies have been made and everyone knows exactly where the new flood plain will be located. Vorsanger stated the purpose of the flood plain study would show if Mud Creek would need to be channeled. If this is needed, it would need to be done before any subdivision process. He further stated that Harry Gray said they were willing to offer a bill of assurance regarding the development, but Vorsanger stated he was not sure the bills of assurance are actually worth anything. He stated he would like to make everyone happy, but knows that is impossible. But if the Board listens to the campaign made by the citizens in the area, they should find a way to postpone the decision on the rezoning. Marinoni stated he felt the Board owed the property owner a decision. Kelley stated he had not intended to frustrate the property owner. His major concern is that the City not end up paying for damages to residences in the area because some bill of assurance cannot be enforced. The City cannot afford to incur more liability in these matters. Martin pointed out that if the Board votes to table, the issue is nondebateable. If they vote to postpone, the issue can continue to be debated. He then opened the floor for discussion. Bass Trumbo, representing the petitioner, addressed the Board. He stated that none of the citizens against the rezoning are arguing that R-1 is the incorrect 43 February 6, 1990 zoning. The collateral issue here is flooding. He stated the Board could be setting a precedent on future zoning matters. He stated there was a limit as to how much the Board could do. If the Planning Commission and staff recommend rezoning, and the City Attorney states that it would be arbitrary and capricious to deny rezoning because of flooding, the he feels the Board should approve the rezoning. It might take two years to get the flood plain maps updated. He stated the Board should vote the zoning up or down without any strings attached. If the decision by the Board is considered to be arbitrary, then the courts can decide the zoning question. If the Board approves rezoning, then the Planning Commission can use its discretion regarding the development in the flood plain. He stated it was unfair to the property owner to table based on the flooding issue. Martin stated he recalls times when significant neighborhood opposition to a rezoning was a basis for denial when their opposition was based on compatibility with the area. He stated there was considerable opposition here because the neighbors did not want to be flooded. Trumbo stated he was not saying the neighborhood did not have valid concerns. But, the question before the Board only deals with rezoning --not flooding. If the rules and regulations of the Planning Commission are not correct, change them to enable them to handle the flooding question. Lancaster stated the discussion has been based on turning down the zoning based on the flooding issue. He stated the rezoning could be denied in this instance based on other reasons. Green asked how the developer would guarantee that the new development would not affect the floodplain. Trumbo stated this would be a major problem. The mechanics of getting it done are not easy, and there is the question of what is the proper zone for the property. The developer may find the costs prohibitive in developing the land after a determination is made of what needs to be done. Green asked if moving dirt could change the floodplain. Harry Gray stated this was basically correct. Vorsanger stated all the directors had received a letter from Neil Albright. He would like Gray to respond to the letter. Vorsanger also stated he recognized the liability that would be put on the developer in building in this type of situation. Gray agreed and stated there was a lot of field work that needed to be done to be able to prepare plans for development. Marinoni asked if the bill of assurance states the developer of the subdivision would not raise the floodplain. He asked how a subdivision could be put in without raising the floodplain. Gray stated a retention pond would be built to catch the runoff waters. There are no specific plans at this time for the development because they first are now only dealing with the zoning question. Lancaster stated the City has looked at retention ponds earlier and has not used them because of the potential liability. 1 February 6, 1990 Ken Edwards, representing the neighbors against the rezoning, addressed the Board. He agreed with Lancaster that there were a number of reasons for voting down this rezoning. Also, if it is voted down now, it might be done because it is not proper to rezone the property 'at this time.' The property owners have agreed that when the Corps of Engineers assures them that flooding will not occur, they will agree to the rezoning. . He stated the Planning Commission is willing to let the rezoning go,through in spite of the flooding problems. He agreed that the situation is mixing the rezoning and flooding issues, but this has been put in the directors' laps based on' both' of these facts. The new evidence that brought the rezoning back to the Planning Commission and Board was based on the bill of assurance.* He agrees with the commonly held opinion that bills of assurance are not worth a whole.lot. Any development will create a difference in the flooding problem. He encouraged a decision to wait until the topographical study can be conducted. He stated if this takes years, no one is depriving the property owner of the use of his land, rather this is an inconvenience for him. If the property were rezoned, there are only two entrances into it --one being an extension of a cul-de-sac and the other off of Highway 265 on a dangerous curve. If the Board were to vote not to rezone based solely on the flooding issue, the vote might be considered arbitrary. However, taking into consideration the other -factors involved, the rezoning could be voted down as being inappropriate at this time. The presumption of the Board voting on an arbitrary basis would have to be proven, and the issue leans favorably toward the City initially. Lois Fordyce addressed the Board in opposition to the rezoning. She requested the rezoning not be allowed until the updated flooding map studies were completed. She stated there was something wrong with the old maps anyway because of the flooding that occurred in 1982. She is actually worried about two issues with the rezoning: (1) flooding and (2) devaluation of the property if flooding occurs. Shay Lastra addressed the Board asking that the rezoning be denied. She presented the Board with newspaper clippings from the 1982 flood and several petitions from groups against this rezoning. She also expressed her concern with the erosion problems in the area. She also asked for a feasibility study for the channelization of the creek. She stated a bill of assurance was a covenant that runs with the land, so the developer's liability would be gone when the property was Bold. Phillip Yocum addressed the Board in opposition of the rezoning. He stated the neighborhood had suffered considerably from flooding, and in the past 8 years trees have been cut and the creek devastated. He stated about every home in the area was for sale because of the problems. Jim Yocum addressed the Board in opposition of rezoning stating his concerns with flooding, land erosion, trees falling over as a result of erosion, and the fact that drainage pipes underneath several bridges have been filled in with dirt. Mr. Barger addressed the Board and stated Ferguson, the property owner, knew the property was zoned A-1 when he bought it. February 6, 1990 Dorothy McGuire gave the Board pictures of the flooding that occurred in the area. She asked what new information the Planning Commission received in their packets that enabled this question to be brought back before the Board. She stated if the R-1 zoning is allowed, the developer can work in the less than stringent ordinances of the City. She feels she is being intimidated. Martin stated the property is surrounded by R-1 zoning, so the property cannot be used as A-1. He stated all potentials had to be considered. Basically, without the rezoning, the property owner is in an economic gridlock. McGuire stated that everyone would be in a better position to make a decision if the amount of additional runoff created were known. Dr. Don Johnson addressed the Board stating it was not the City's responsibility to assume someone's bad judgment on taking a risk on a piece of property. He felt the Board was trying to take on someone else's problems. He stated the land was not situated and sculptured well enough to allow use as agricultural, so he feels this argument is ridiculous. Robert Reus addressed the Board asking City Attorney Rose if Arkansas had statutes allowing rezoning based on health considerations. Rose stated there were statutes of this nature making zoning an option for protecting people in the floodplain. Rose stated the State of Arkansas want cities to prevent flooding, but generally it is not done at the zoning level but later on. Shay Lastra pointed out that the topographical maps are to be updated every 5 years, and the ones the Planning Commission is currently using is 12 years old. Merrill stated he was trying to point out to the Board what could happen. He feels this is a two -fold issue --zoning and subdivision plat issue. Martin stated if the zoning is approved, then a gate would be opened without concern of the flooding issue. He asked what the developer would have to submit for approval to the Planning Commission according to the regulations it administers. Merrill stated the next step would be to submit a plat for review. Martin stated that procedures could be developed in view of all the facts that have been heard. He asked if the current regulations are stiff enough that would provide the Board with a basis of denial until the floodplain is reviewed. Merrill stated he felt the Planning Commission would look at the regulations on the books and could postpone the plat without any additional information. Spivey asked City Attorney Rose to go over the inverse condemnation laws. Rose stated the effect of the decision on the land could diminish the value of the land to the owner. You can diminish a man's property by an action to a point that under the law, you have to reimburse him for his loss. In essence, the Board could be condemning the land by failing to rezone because it cannot be utilized as the new zoning permits, and it is not feasible for use as the current zoning permits. Martin stated the neighbors are opposed to the rezoning because of legitimate reasons. He has not heard anything that would eliminate their concerns. He 'February 6, 1990 f• stated common-sense dictates that•if people have a legitimate reason for opposing the rezoning, then he does not feel that denying the rezoning could be illegal. He feels the neighbors have a bona fide reason for opposing the rezoning at this time. Vorsanger stated he does not think people who have objections are being unreasonable with their demands. They merely want the opportunity to study the effects of the proposed development. Marinoni stated the petitioner could come back to the Board in 1 year and by then maybe the new studies will have been completed, and the Board could be on firmer ground to make a decision. , Green stated the public opposition•to the rezoning should be considered, but he is worried the opposition is based'solely on the flooding issue. If there were other valid reasons for public opposition, he could agree totally. He feels the Corps of Engineers should be pursued to get the studies completed. There being no further discussion, the ordinance to rezone failed by a vote of 6 to 1 with Director Green voting in the minority. OPEN END CONTRACTS/WATER, SEWER, AND STREETS Mayor Martin introduced consideration of a resolution authorizing open end engineering contracts with McClelland Engineers, McGoodwin Engineers, and Milholland Engineers. Staff recommends approval of the open end contract which will allow the City to utilize one of these firms quickly when circumstances are such that timing is an important factor, or when the job is relatively small, or in any situation when it is considered in the best interest of the City to utilize the contract. The open end contract does not mandate that the City utilize one of the three firms. Separate task orders are required for each job and must be negotiated, approved, and executed by both parties before funds are obligated. The City still maintains the right to follow the Professional Services Policy and select any engineering firm for any class of work desired. The committee recommendations on award of the open end contract are: FIRM CLASS OF WORK MAXIMUM FEE PER JOB McClelland Engr. McGoodwin Engr. Milholland Engr. Sewer Water Streets $35,000.00 $35,000.00 $25,000.00 MAXIMUM YEARLY FEE $250,000.00 $250,000.00 $100,000.00 Linebaugh stated this would save time and money by allowing staff to not have to go through the selection process on the smaller jobs. The professional selection policy was used to obtain these three firms. February 6, 1990 Director Kelley, seconded by Lancaster, made a motion to approve the open end contracts. Upon roll call, the motion passed unanimously. OESOLUTION 17-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK SLUDGE MANAGEMENT PROJECT Mayor Martin introduced consideration of a resolution approving Amendment #2 which amends Task Order #12 between CH2M Hill Southeast, Inc., and the City. Staff recommends approval of the request for $7,042,72 for services rendered from December 1988 through March 1989. The engineering services were provided during the time period preceding the lawsuit filed by the bonding company at the Sludge Management Site. The case was settled and funds retained from the final payment to the bonding company to be paid to the engineer. This was one of the agreements in the lawsuit settlement on this project. Director Kelley, seconded by Vorsanger, made a motion to approve the amendment. Upon roll call, the motion passed by a vote of 7-0. RESOLUTION 18-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK WHEELER WATER MAINTENANCE AGREEMENT AND FIRE HYDRANT AGREEMENT Mayor Martin introduced a request to address the Board by the Wheeler Water Association concerning the placing of fire hydrants in the Wheeler area and the request for a resolution approving the contract with the Wheeler Water Association, Inc., for supplying water to the Wheeler community. Wheeler has applied for a grant to be administered by the Northwest Arkansas Economic Commission and a loan from the Farmers Home Administration for the purposes of extending water service to their citizens. The water system shall be connected with the system owned and operated by the City of Fayetteville, The City will handle all the billing, collection, and maintenance of the system upon its completion. Upon retirement of the loan by FHA, the remainder of the system will be owned by Fayetteville. Staff recommends approval of this agreement. Wheeler is also asking that fire hydrants be placed by the City of Fayetteville in the Wheeler Water Area at the time the water lines are constructed. Staff pointed out that City policy has been to provide hydrants only to areas within the corporate city limits and to Farmington and Greenland. Therefore, staff does not recommend hydrants for the Wheeler area. Linebaugh pointed out that these are two completely different issues. He recommended taking action on the agreement and waiting on the hydrant■ for a later date. Engineering studies will have to be performed to determine if there is adequate water flow available for hydrants. Also, the cost of maintaining the hydrants would have to be determined. Martin asked if staff was recommending the contract or just the concept. Linebaugh stated the contract was being recommended. 1 1 ,February1.6,.1990 'p George Butler -addressed the Board pointed` out that Wheeler has their own fire department. If hydrants are installed, then the residents would get a break on their insurance rates and get better fire protection as well. They are greatful for the City's cooperation but feel this one point is important. The potential for vandalism is speculative because the area is densely populated and the hydrants would not be placed in remote areas. Regarding the issue of taking away the incentive for annexation, it.seems",it would be more attractive to the City if hydrants were already installed,, and the Wheeler residents have already expressed their willingness to be annexed. 'Wheeler already has fire protection, so they are not asking Fayetteville to extend any service. In addition, there is a current reciprocal agreement between Wheeler and Fayetteville. They are asking Fayetteville to reexamine their policy on fire hydrants. Mayor Martin stated he was a director of Northwest Arkansas Economic Development, but since they have no interest in this, he feels there is no conflict of interest. Kelley asked about the time frame for the project. Carol Lindsey stated there was no definite time frame. They have asked for funds to be earmarked for them. while working on the project. The area has to be reviewed and the growth pattern analyzed. She stated that since Wheeler was willing to buy the hydrants, she is requesting that Fayetteville consider using them as part of a good neighbor policy. Kelley asked if the fire hydrant policy has been looked at in relation to the growth area. Linebaugh stated this is being done at this time, but it is not far enough along for a statement to be made. He expressed his concern about the possibility of low water pressure in the area. He doesn't want to have the system installed and the expenses incurred and then not be able to supply the water. Kelley stated he felt we should support the project and look at the policy. . Marinoni stated the City would be in a position to say where the hydrants area located, etc. Linebaugh stated they would be placed according to the .recommendations of the engineering study. However, this has not yet been completed. Lancaster stated the question is whether the hydrants will work or not. The City has always had a standing policy that no hydrants were to be provided outside the city, then no one would want to be annexed because they already have the benefits without paying for them. Linebaugh agreed that this was correct, but the main issue here is whether there is adequate water to provide the protection. Martin asked how much time there was before a decision had to be made regarding the fire hydrants. Lindsey stated the main concern with Wheeler is the imminent health threat of their current water system. Robert While, with McClelland Engineers, stated the bids would be opened in 3 weeks and the bid review process would take about 3 more weeks. So, a decision would need to be made in about 6 weeks. February 6, 1990 Martin asked that the staff look into the policy and determine if there will be adequate flow for the system. David Malone addressed the Board stating that putting this project together has been a major undertaking. There were many departments and groups that had to work together. He encouraged the City to look at their policy because the people want and need fire hydrants. He understands the reasoning behind the policy regarding annexing. However, the Wheeler community has already expressed that they are ready to be annexed when Fayetteville is ready. Marinoni stated he felt there were two variances in this case: (1) Wheeler is agreeing to be annexed whenever possible, so the incentive question is not relevant and (2) they are going to provide the fire hydrants at no cost to the City. Malone pointed out a third variance --they already have fire protection. Green stated that this situation appeared to have more positive than negative sides. He is concerned about the hydraulics involved in providing adequate flow. Bob Kelly stated that currently we can supply the water, but two years ago when the area hit peak capacity, the City was put on a rationing program. The agreements would require rationing to Wheeler and possibly to have to cut them off totally which would render their fire hydrants useless. Director Martin, seconded by Green, made a motion to approve the contract to provide Wheeler with water. Upon roll call, the motion passed by a vote of 7- 0. RESOLUTION 19-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK OTHER BUSINESS SOUTH WASHINGTON COUNTY WATER PROJECT The South Washington County Water Project asked the Board to approve the concept of selling water to the area. They are in the process of seeking financial assistance with the program and need this declaration from the City. This project will involve about 850-1000 customers. The requested water consumption will be approximately 9% of the City's total water usage. The project is expected to take two years. The new line from Beaver should be completed in about 3 years, so there would be one year with questionable amounts of flow to provide adequate service. Green asked how much demand Wheeler was going to add to the system. It was stated that approximately 180 customers would be added. 1 February 6; '1990 Marinoni stated that the four cities that get water from the Beaver Water District, Fayetteville, Springdale, Bentonville, and Rogers, become in essence distributors of water to the other users. He asked .ifthere was a limit to the amount of water Beaver will sell Fayetteville., Linebaugh stated they will sell the City a percentage of water based on the total available. Beaver is planning on updating their system and have asked the City to enlarge their water line to a 36' line. Beaver is paying for the line enhancements to provide water to the areas west of Fayetteville. '' Lancaster asked if the water Fayetteville sells comes from out total entitlement from Beaver. Linebaugh confirmed this. Bill Perrett, a member of the RDA Board, addressed the Board stating they needed to be able to file their applications. He had talked with Little Rock and was informed that the Beaver Water District has filed plans to update their system. Director Lancaster, seconded by Green, made a motion to approve the concept of selling water to the South Washington County Water Project. Upon roll call, the motion passed unanimously. RESOLUTION 20-90 APPEARS ON PAGE OF ORDINANCE AND RESOLUTION BOOK BOND COUNSEL CONTRACT/WALLACE, DOVER & DIXON Linebaugh informed the Board that the contract with Wallace, Dover & Dixon, the bond counsel, was in the process of being cancelled due to the fact that the law firm has broken up, and the key people the City was dealing with are no longer a member of the firm. Linebaugh stated the selection of a new firm has already been started. BUDGET Linebaugh pointed out that staff is working on areas to cut back and service levels that can be changed in order to cut spending. These areas will be presented to the Board at the Board retreat. CABLE TV Vorsanger stated he had received a letter from the Arnold & Porter Law Firm regarding the cable television system. The FCC is conducting a study and reviewing the areas of franchises, cable rates and services, and competition. These are the very things most of the citizens have complaints about. He suggested asking the City Manager and the City Attorney work together and draft a letter to submit comments regarding Fayetteville's concerns and needs and submit the letter for the public hearing. The letter needs to be submitted by March 2. February 6, 1990 Lancaster stated he had asked about the use of a microwave system regarding the new Little Rock station to be installed on the Warner Cable System. He was informed today that a microwave system is being used from Russellville on the ETA station. Green encouraged the City's involvement regarding the cable system at the federal level. CITIZEN COMMENTS/SAM GUIDO Mr. Guido addressed the Board requesting additional police protection for the residents of Hillcrest Towers. He stated he had had three more tires cut. He stated police patrols had been increased for several days after his last appearance before the Board, but the patrol■ soon slacked off. He asked why the Police Chief did not follow the directions of the Board and provide Hillcrest Towers with additional patrols. Martin stated the Board would look into this situation again. He stated that an analysis has been done of the situation, and it was found that patrols are made of the Hillcrest Towers areas as much as possible. Martin further stated that the City would pursue working the management of the Towers to increase security measures. The police will be active in the area as well, and the Board will get back to Mr. Guido. Guido asked why 8 cars were always in the police department lot and not on patrol. Martin stated that would require an additional 8 people on the payroll that there wa■ not funds to cover. He stated the Police Chief was carrying out the directives of the Board. He further stated he did not feel it was fair to cast blanket accusations against the Chief. The security problem with the Towers needs to be looked at by their own management first. ADJOURNMENT The meeting adjourned at 11:48 p.m.