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HomeMy WebLinkAbout1994-02-01 Minutes20 • • MINUTES OF A MEETING OF THE CITY COUNCIL A meeting of the Fayetteville City Council was held n- Tuesday, February 1, 1994, at 5:00 p.m. in. the Council Room of. .the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Len Edens, Joe Box, Heather Daniel, Stephen Miller, Kit Williams, Conrad Odom, Woody Bassett, and Fred Vorsanger; City Attorney Jerry Rose; City Clerk Sherry Thomas; City Treasurer•Glyndon Bunton; Administrative Services Director Ben Mayes; Public;Works Director Kevin Crosson; members of staff, press, and audience. CALL TO ORDER Mayor Hanna called the meeting to order with eight aldermen present. CITIZEN'S COMMUNITY SERVICE AWARD PRESENTATION Alderman Miller presented the Community Service Award to Robert .;Sonny Wright. Mr. Wright has been a volunteer coach at the Youth "Center since 1988, and he .has been coaching children since he was -1r18 years old. He is a positive role model for the young people. OLD BUSINESS Mayor .Hanna introduced consideration of items that have been brought before the Council but were tabled or no decision made to allow further information to be presented. A. SETTLEMENT OFFER: Discussion of a resolution approving a settlement offer in Jones v. City of Fayetteville.. ,City,Attorney Rose stated the City was sued in 1991 by people who claimed the City erred in three ways: 1) by assessing improper fees according to state statute, 2) by dismissing cases upon payment of court. fees, and 3) by collecting fees for themunicipal judge's retirement system. Some weeks ago, the plaintiffs offeredito settle on this matter. The settlement included the City paying $47,500 in attorney. fees. This was considered unreasonable by the Council, and the'Council voted to offer $15,000 in attorney fees. The plaintiffs stated they did not agree with this, and .they countered with a $40,000 attorney fee. Rose stated he had poled most of the aldermen; and his understanding is that most of them do not feel $40,000 fee is unreasonable. The City's attorney, Mr. Angulo in his letter to the Council, has stated the most economical solution for the City is to 21 February 1, 1994 settle this case. Mr. Angulo stated if the Council does not agree to settle, he recommended the City confess judgment and ask the court to accept the settlement terms regarding payback of the fines and for the court to decide a reasonable attorney fee. Rose stated Mr. Angulo's letter warns that if the City opts to confess judgment, attorney fees could exceed the $40,000 level. Rose stated the decision before the Council was to either (1) accept the $40,000 counter offer or (2) give the attorney the authority to confess judgment, seek the remedies of the settlement and refund the fees, obey the law, and let the court decide the attorney fees. Alderman Miller stated the City's insurance policy has a $50,000 deductible. He asked if the policy would cover the city over $50,000. Rose stated the insurance company has told him if the City settles, they will cover the costs of the settlement in excess of $50,000. If the City does not settle, they have a reservation of right in that they may refuse to pay on the lawsuit. Alderman Williams stated he felt the insurance company did not have a good ground on which to claim a reservation of right because the municipal court was only enforcing state statutes it thought had to be followed. He asked if this case was being brought under the civil rights statute or on the grounds of an illegal exaction. Rose stated he was not sure. Alderman Williams stated under the civil rights act, the attorney would be entitled to an hourly rate but not a percentage of the proceeds, as he could under the illegal exaction theory. Mayor Hanna asked if there was an estimate on the amount that has been charged illegally. Rose stated there was not, but the settlement offer calls for a $60,000 pool to be set up for the refunds to come out of. Alderman Williams stated the plaintiffs' attorneys are saying they will settle for up to $60,000 for their clients if the City agrees to pay them $40,000 in fees. However, if the City does not agree, the attorneys want more money for themselves. Rose stated all of these issues that have been brought up this evening show the many possible areas of debate that could be brought up in the case and could lengthen the suit and also the attorney fees. Alderman Edens stated the City refunded sales tax, but the City had kept the sales tax money to use. The money collected by the 22 February 1, 1994 municipal -court has..not been retained. by. the City-rather:iflas been.set.to LittlesRock.. The City is,•beng asked tolpay back money it has never had the use of; this would-be"using taxpayer money.to pay_back.these.fines_and the attorney -fees.. Alderman Vorsanger:stated he felt this -suit should have been filed against the municipal court. Rose stated it was, but they, too, are a part of this.City.. In defense of.the municipal court, the statutes in Arkansas.pr-ior-to .1991 were extremely confusing aboutwhat fines could -be levied. The City of Fayetteville has done as good or better than any -other city in Arkansas .in interpreting the laws. The Arkansas legislature passed a':iaw.in-1991 to sort out all of these -statutes regardingfines, and ahe City has followed the law. But,'there is still ambiguity in this law, and we may have collected illegal fees. It has been the case of most municipal courts in Arkansas to drop cases. after the payment of court costs. Regarding the municipal judge's retirement fund, .the argument is= that. the ;municipal judge should not --have been assessing fees that go to his own benefit. These fees-- go to .a common fund :from .which. all municipal judges _ can •participate. However, Fayetteville/8 :municipal judge does not participate in this fund:. Alderman Edens asked if.the .City could get any of this money back from Little Rock. Rose stated not the attorney fees of the costs of the lawsuit. However, there is a possibility that the amount of refunds could'be requested from Little Rock. Alderman Williams stated he does not believe the City should•make a substantial- payment to the -plaintiffs' attorneys for more than :the hours they worked. He wants toknow more about the common pool theory. He .stated the City may- .want' to argue -they havet been following the law, and this may be right. Rose stated the lawsuit can be followed through, but thet"attorney fees will only get larger.- • Alderman Daniel asked if we are sure the City collected these fees. Rose stated the City did collect the.fees in question. - • Alderman Odom stated he does not want to pay.$40,000"either, but he feels it is in the best interest of the City to settle the suit, •; especially when bur own attorneys are telling.•us it would be in the _:..best interest of the City to .settle.. Alderman Daniel stated she agrees,.but she would like to talk with the. -state legislature- i about limiting the- attorney `fees . on - these types of cases. 23 February 1, 1994 Alderman Bassett stated the problem with this case is the attorney fees. The only way to solve this problem in the future is through the legislature. He would never vote to pay more than $30,000 in attorney fees because that is what the other cities have paid. Alderman Vorsanger stated he feels the City should plead guilty and let the court decide the attorney fees. Mayor Hanna stated he agrees with Alderman Vorsanger. He stated if the City's insurance policy is not good, he feels the need and value of the policy should be addressed. He stated he would just as soon let the plaintiffs' attorneys work for their money. Alderman Williams stated he agrees with the "do right rule." The City has done right whenever possible. In the long run, they may get more money from the City. However, he does not feel it is the right thing for the City to pay this ransom or extortion. If a judge tells the City it has to pay this money, the plaintiffs' attorneys will have worked for their money. Alderman Vorsanger, seconded by Miller, made a motion to go with the second option City Attorney Rose outlined. Alderman Odom reminded the Council that during this process, discovery proceedings continue as well as attorney fees. Mayor Hanna stated he does not want to pay them anything and would just as soon take this case to court. He stated he is not sure the City is liable because they were only following state statute. Alderman Williams asked if the City could get an attorney general's opinion on this. Rose stated he understood the attorney general did not issue an opinion on a matter that is in litigation. Alderman Daniel asked if the City has looked at other settlements by other cities. Rose stated the City's attorney has done so. Alderman Williams stated he feels that is probably the right way to go, but he has questions about the common pool theory under the civil rights act. He thinks this should be tabled until the next meeting in order to allow time to find the answers to his questions. Rose stated that is an option. But, he, too, reminded the Council about the continuation of discovery and attorney fees. Alderman Bassett stated if the City confesses judgment, it will cost $50,000. If the City fights the case, it will cost $50,000 24 February 1, 1994 unless the City wins... He feels the City. should:.get_out.and..control its own destiny regarding attorney fees. • Upon roll call, the motion. to proceed -with option 2 failed by a vote of 0 to 8. - Bassett, seconded by Odom, made a motion to offer to settle and pay $30,000 in attorney fees. Alderman Bassett stated if they did not accept this offer, he was for letting the case be tried in. court. Upon roll call, the motion to offer settle the case passed by a vote of and Williams voting no. CONSENT AGENDA • $30,000 in attorney fees and 5 to 3, with Daniel,. Miller, Mayor Hanna introduced consideration of items which may be approved by motion, or contracts and leases which can be approved by resolution, -.-and which may .begrouped-.together _and -=approved simultaneously under a "Consent Agenda": A. Minutes of the January 18, 1994 regular City Council meeting. B . A resolution awarding Bid 93-47 to Fayetteville Door Co./Cozart & Company, Inc., in the .amount of"$37,257...for door requirements for the Fleet Operations Center. RESOLUTION 14-94 AS RECORDED IN THE CITY CLERK'S OFFICE • C. A resolution awarding Bid 94-3 to.Mitchell Oil, Inc., in an -amount not to exceed $92,400 for the 1994 gasoline - -requirements for the City fleet. RESOLUTION 15-94 AS RECORDED IN THE CITY CLERK'S OFFICE D . A resolution awarding Bid 94-4 to Mitchell Oil, Inc., amount not to exceed $128,500 for the 1994 diesel requirements for the City fleet. - RESOLUTION 16-94 AS RECORDED IN THE CITY CLERK'S OFFICE E . Removed from the Consent Agenda, now -Item 2A -- A resolution awarding Bid 93-13 for the radio maintenance contract for the Motorola 800 MHz Smartnet Trunking System -to Motorola, Inc., in the amount of $40,458..90. Motorola was the low bidder, and the contract will be awarded for a 10 month period, with•options-to renew -fork more years. • in an fuel February 1, 1994 RESOLUTION 17-94 AS RECORDED IN THE CITY CLERK'S OFFICE G . A resolution approving a grant agreement between the Arkansas Development Finance Authority and the City for a HOME grant in the amount of $175,466, and approval of a budget adjustment. In December, the City Council awarded a portion of this grant to Life Styles, Inc., and the remainder of the funds will be used for the Residential Rehabilitation Program. RESOLUTION 18-94 AS RECORDED IN THE CITY CLERK'S OFFICE H . Pulled from the Consent Agenda. I. A resolution approving the purchase of Motorola Centracomm II console in the amount of $23,322.80 from Motorola, Inc. This is specialized equipment that can only be purchased from Motorola to work with the City's network, so no bids were taken. The addition of the Centracomm II will allow the workload to be redistributed to other dispatchers at a third location and to help handle emergency situations. It will also be used for training. RESOLUTION 19-94 AS RECORDED IN THE CITY CLERK'S OFFICE J . A resolution approving a consent judgment in City v. Sonneman. The City filed suit against the owners, E. H. & Beatrice Sonneman, in order to obtain a permanent water and sewer easement across property located at 653 W. 6th Street. The City deposited $1,450 with the court as estimated just compensation for the easement. Negotiations have continued, and the defendants have offered to settle for $3,500 and have submitted an appraisal reflecting this amount. RESOLUTION 20-94 AS RECORDED IN THE CITY CLERK'S OFFICE R. A resolution approving Amendment #3 to Task Order #1 in the amount of $22,300 with McClelland Consulting Engineers for construction observation necessary to cover expenses associated with the Taxiway Extension Project (AIP #17). The additional work was required as a result of the discovery of a historic site in the south project area. RESOLUTION 21-94 AS RECORDED IN THE CITY CLERK'S OFFICE L . A resolution approving Change Order #2 in the amount of $70,957.20 with Mitchner Excavation for expenses associated with the Taxiway Extension Project (AIP #17). 25 26 February 1, 1994 The additional worl@was required -as> a -result-°of the discovery of -a historic site in the south project area. RESOLUTION 22-94 AS RECORDED IN THE CITY CLERK'S OFFICE • M. A resolution approving a contract modification with the Mt. Olive Water Association, • This modification allows Mt. Olive to purchase water from Fayetteville as well as other sources. It also provides for a minimum."take-or-pay" amount, iwhich,guarantees-payment•to the City for a minimum of 2.7 million gallons of water per month. RESOLUTION 23-94 AS RECORDED IN THE CITY.CLERK'S OFFICE* Mayor Hanna stated Item H needed to be pulled from the Consent Agenda and voted on separately. Vorsanger, seconded by Odom, made a motion to approve the consent agenda.- Upon roll call, the motion passed by a vote of alto 0.. Item H H. A resolution approving the Farmington sewer line and lift station maintenance contract. This is a renewal of the original contract that was approved in 1979. The proposed new agreement is much like the original except that it contains (1) provisions for pretreatment of industrial waste and (2). addresses the problems of infiltration and inflow. Mayor Hanna stated staff is asking the Council to approve this contract contingent upon the Farmington City Council's approval. Williams,' seconded by Vorsanger, made a motion to approve the resolution. Upon roll call, the motion passed by a vote of 8 to 0. RESOLUTION 24-94 AS RECORDED IN THE CITY CLERK'S OFFICE • COMMUNITY DEVELOPMENT STREET IMPROVEMENTS Mayor.lHanna introduced consideration of a-resolutioh',•awarding a contract to McClelland Consulting Engineers, Inc. -in the amount of $54,342.72 "for services in conjunction with construction --•of improvements to selected streets in the Community Development Southeast Target Area. He stated neighborhood streets are the focus of this project, and improvements are aimed at making the streets safer and more "pedestrian friendly." Sidewalks will be constructed on one side of the street wherever poss'ibie,�driving 27 February 1, 1994 surfaces will be overlayed, storm drainage inlets and piping will be installed, and curb and gutter improvements will be made. Jan Simco, Community Development Coordinator, stated this contract will provide engineering services for designs, plans and specs, and construction management for the street construction. She stated there will be storm drainage, sidewalk, and street overlay improvements made on County Road from Center to Mt. Comfort, on Center from County to Walnut, on E. Mountain from County to Willow, on E. Rock from Mill to Willow, and on Washington. They will clear the obstructions from Tin Cup Creek. There are alternates bid in the contract to be done pending the availability of funds. Those alternates include sidewalk improvements and street improvements on Huntsville from Mill to Willow, on Willow from Spring to Center, on Mill from E. Rock to School, and on South from Washington to College. Simco stated engineering for the project will take about 90 days, and construction should begin in June. Alderman Miller stated it is not City funds rather Community Development Block Grant funds that will be used for this project. He congratulated Simco on receiving the grant. Alderman Daniel asked if they will put in any type of device to help keep the debris from building up again on Tin Cup Creek. Simco stated they have considered cutting some of the trees. However, at this time, they will only be clearing obstructions, trash and tree limbs, etc., which should greatly improve drainage. Alderman Williams stated he talked with Jesse Bryant, county justice of the peace, about their use of county prisoners to help clean up in this area. He thanked her and the Bank of Fayetteville for their efforts in this area. Williams, seconded by Miller, made a motion to approve the contract. Upon roll call, the motion passed by a vote of 8 to 0. RESOLUTION 25-94 A8 RECORDED IN THE CITY CLERK'S OFFICE REZONING R94-1 Mayor Hanna introduced consideration of an ordinance rezoning .35 acres located at 1397 E. Huntsville Road from R-2, Medium Density Residential, to R -O, Residential -Office, as submitted by Tony Pretty. The Planning Commission voted 8-0-0 to recommend the rezoning. City Attorney Rose read the ordinance for the first time. Williams, seconded by Miller, made a motion to suspend the rules 28 February 1, 1994 and,placsthe;ordinance on its .second reading. Upon -roll call-, the motion passed by.a vote of 8 to 0, and the City Attorney read, the ordinance for the second time. Miller,. seconded by Box, made a motion to further suspend the rules and place the ordinance on its third and final reading. Upon roll call, the motionpassed by a . vote.. of ='8 to O. ' . City Attorney Rose read the ordinance for the third time. Upon roll call, the, ordinance passed by a vote of 8 to 0. ORDINANCE 3759: APPEARS ON PAGE / a 7 OF ORDINANCE BOOK. X X ‘,// • BID WAIVER Mayor Hanna introduced -consideration of.an ordinance waiving the requirements of competitive bidding and approving the purchase..of used over -the -road tractors for use in the Street Maintenance and the Solid Waste Disposal Programs.. This bid waiver will be for the purchase of three tractors up to a maximum total -amount of $90.,000. Alderman Edens stated the. ADR Committee approves of this purchase. By. buying: used tractors, it will .save money. :Two of: the,tractors will be used in the solid waste,compacting-program, and the -other one will be used to move the street overlay equipment. City Attorney. Rose read the ordinance for the -first time., • Miller:, seconded by Edens, made a motion to -suspend the rules and place the ordinance on -its second reading.. • Upon rollcall,, the motion passed by a vote of•8 to 0, and the City Attorney read the.ordinance:for thesecond time. Odom,, seconded by Edens,•made notion to further suspend the rules and place the ordinance on its third and. final reading.. Upon roll call, the .motion passed. by a vote of 8.to 0. City Attorney Rose read the ordinance for.the third. time. Upon roll call, the ordinance passed by a vote of 8.to 0.•. ORDINANCE 3760 APPEARS ON PAGE /62? OF ORDINANCE BOOK X4 -fry", rr OTHER BUSINESS NOMINATING COMMITTEE REPORT Alderman Edens, seconded by Odom, made a motion to reappoint Rick McKinney to the Airport :Board for a term ending January 1, 19991 and to appoint Truman Smith to the Airport Board to .fillan unexpired term ending January 1, 1998. Upon:roll call, the nominations were approved by a vote of 8 to O. ADJOURNMENT The meeting adjourned at 5:57 p.m.