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HomeMy WebLinkAbout1995-11-21 Minutes499 MINUTES OF A MEETING OF THE CITY COUNCIL A meeting of the Fayetteville City Council was held on Tuesday, November 21, 1995, at 6:30 p.m., in the Council Room, of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Cyrus Young, Woody Bassett, Steve Parker, Jimmy Hill, Len Schaper, Heather Daniel and Kit Williams; City Clerk/Treasurer Traci Paul; City Attorney Jerry Rose; members of the staff, press, and audience. ABSENT: Alderman Stephen Miller CALL TO ORDER Mayor Fred Hanna called the meeting to order with seven aldermen present. PRESENTATION Mayor Hanna presented the Distinguished Citizen Award to Ray Ellis. Hanna stated Mr. Ellis was the first airport manager at Drake field, holding this job for 33 years while bringing aviation to Fayetteville and Northwest Arkansas. Since moving to Fayetteville in 1940, Mr. Ellis has been involved with almost everything having to do with airplanes and aviation in this region. Mr. Ellis is the third person to receive this award. Mr. Ellis thanked Mayor Hanna for this honor and accepted congratulations from the Council. SYMPATHY Mayor Hanna expressed his sadness at the passing of another distinguished citizen, Doctor Franklin Williams. He offered condolences to Alderman Williams for the loss of his father. OLD BUSINESS Mayor Hanna stated that items A and B were either taken off the CIP plan under the street program or changes were made or discussed in the Street Committee meeting. These items require a vote to be put back on the CIP. A. A resolution approving a budget adjustment and awarding a bid for the reconstruction of Rockcliff Drive from Hyland Park Drive to Cliffside Drive. The Council Street Committee voted unanimously to recommend the project, which was pulled from the CIP for further consideration. 500 November 21, 1995 Alderman Williams, chairman of the,Street Committee, reiterated that the committee did vote unanimously for this. It originally was to be in-house..paving project; then.the street. suffered more damage before it could be repayed. Now the staff believes it needs to be totally reconstructed, and that is why_it,is. before the Council. Williams, seconded by Parker, moved that the Council pass the budget adjustment and resolution and;that this be awarded to . begin construction. Upon roll call the motion passed on a vote of 7 to O. RESOLUTION 140-95 AS RECORDED IN THE CITY CLERK'S OFFICE ti B. Street Committee Recommendations a. The Council Street Committee.voted 3 to 1, with Alderman Parker voting no, to recommend keeping the $245,000 cost sharing agreement with the Cliffs in the 1996 CIP to enlarge the reciuired street into a boulevard and four lane road. Mayor Hanna'stated this was pulled from the CIP to give the Street Committee opportunity to discuss it. Alderman Williams, speaking for himself and not necessarily for the other committee members, stated his belief that this is.a good project. He favors constructing boulevards through residential areas as they are advantageous and beautiful. This is a continuation of a boulevard already begun with cost sharing by the City. If the City wants enhanced streets, like boulevards, it is only fair for the City to pay a cost-sharing part of it. Therefore, he supports this $245,000 in cost sharing, which raises the street from the level of a single, regular, local street to the size of a boulevard. Alderman Parker .265, one.of our from Highway 45 '.still"unfunded. would be to buy stated he is a strong supporter of seeing Highway main arteries, expanded. Expanding Highway 265 to Springdale is on various timetables but is A way to increase the speed of getting this done the right-of-way. Parker further stated that extending this boulevard would essentially serve a single development. The additional City funds expended on this project would make up about -25o of the money.it would take to accelerate the development of the northern stretch of Highway. 265. He would rather see that money goto the citizens of Fayetteville in general and help solve the traffic problem on Highway 265. 501 November 21, 1995 Alderman Bassett stated his belief that this boulevard would relieve some of the pressure on Highway 265 and Highway 16, and he agreed with Alderman Williiams' comments. Alderman Bassett explained he would not back out of a previously made commitment. Alderman Daniel explained she would consider seriously committing the City to a situation like this again because there are other places where boulevards would be much showier, like gateways into the city. She stated her support of the commitment already made in this case, but in the future would likely not vote for cost sharing in a situation like this. Alderman Schaper stated his concerns by recalling his objections to the arches over the road where it meets 265. After the last agenda setting meeting, he looked in the subdivision regulations to see how this kind of structure would be allowed. He asked Alett Little, City Planning Director, if there was specific action by the Planning Commission that permitted these arches to be built Little replied that this was not an item shown on the plans, nor did it go before Planning Commission. Alderman Schaper read two definitions from the subdivision regulations: Street: A strip of land including the entire right- of-way intended primarily as a means of vehicular and pedestrian travel which may also be used to provide space for sewers, public utilities, trees, and sidewalks. He noted it didn't say anything about arches. Setback Lines: A line on a plat generally parallel to the street right-of-way indicating the limit beyond which buildings or structures may not be erected except as provided in ordinances. Alderman Schaper stated the arch is a structure built right-of-way, which is against the definitions in the ordinances. This gives this street the appearance of private entrance; therefore, he cannot support giving money to beautify a street that has all the trappings private entrance. on the City subdivision being a public of a Alderman Williams stated this needs to be looked at in our definitions. These sorts of structures should go before the Planning Commission. However, what's done is done. There was nothing in there which said if you have an arch you must go before the Planning Commission. These sorts of beautifications in various places were handled by City staff, and maybe now we 502 November 21, 1995 need to have the Planning Commission do it. This street is.on our Master Street Plan and is clearly a way that will relieve pressure on the intersection of 265 and 16: This is a. public street -and this year with this money it will be built through. Williams stated he would like to see the City do this in other places. If the City wants boulevards, it must be willing to spend money in cost-sharing agreements with developers so that when streets are built, they can be made as beautiful as possible. Mayor Hanna stated that during subdivision meetings the entryways should be included. The staff did go out and look at the entrances of a number of subdivisions. Many of them have the name of the subdivision on some sort of structure placed in the center of the boulevard, which is in the right-of-way. The Planning Commission may need to take a look at the entrances when they come through plat review. Some decisions may need to be made about what is allowed. Alderman Hill asked for a report from the staff regarding.the - policy on this. Kevin Crosson replied that they are not reviewed. The right-of- way is there when needed and any landscaping or structure is removed. Such improvements are placed there at the owner's risk. The owner uses them to sell lots, and the City treats them as beautification projects and has no review process at this time. Alett Little stated that within subdivisions, owners are free to plant trees or landscape within the right-of-way and do so at their own risk. The City is not in the position of approving each of these situations, and it does not want the responsibility of having to pay if it needs to use the area. Alderman Parker asked if the City had approved this one. remembered seeing an approval of this. Mayor Hanna replied that the developer had asked if this wouldebe all right. He Alderman Young suggested to Ms. Little that she take the Mayor's advice and add this to the checklist. +}4 Little replied she would gladly do this if this is what. the Council wants. The Planning Commission would need to know what the Council wants before bringing forth a policy.. Crosson stated the City has no vested interest in the subdivision and can do it or not do it. 503 • November 21, 1995 Alderman Schaper stated he sees a big difference between a sign with some minimal structure that supports the sign in the median and a major structure like a guardhouse, arch, etc. A line must be drawn somewhere. Ms. Little asked a certain square entrances. if the regulation should state that nothing over footage would be allowed at subdivision Alderman Schaper wondered the sign ordinance. Little stated it does but not. if an brick entrance sign would come under walls do not and landscaping does In response to a question from Schaper, Crosson said some walls are built in the right-of-way and some are not. Many tend to come up to the edge of the right-of-way. Alderman Schaper stated his belief that in general structures should be kept out of the right-of-way. The right-of-way is for sidewalks, trees, landscaping, medians, maybe for a sign, but not for structures. Structures belong behind setback lines, as the subdivision ordinance says. Mayor Hanna stated that some have water features. In answer to a question from Alderman Hill, Mayor Hanna stated The Cliffs has no sign. Alderman Hill asked City Attorney Jerry Rose to see if the City has any liability on things like this that are approved by the City. Attorney Rose could not say that there was any high degree of liability. Rose stated the case law pertaining to this generally has to do with encroachments into rights -of -ways. The general rule is that the encroachment appears to be allowable if permitted by the City and can be regulated by the City, but under no circumstances can the City use the right-of-way and limit the people's access to a particular street. Alderman Hill asked if the boulevard would only go through the Cliffs and then turn back into a two way street all the way to Happy Hollow? Alderman Williams answered that even with this amount of money, there are no plans to enlarge the boulevard. It will be a four - lane road down to Happy Hollow. There is no money to upgrade Happy Hollow, which is now a two-lane road. It would make sense to enlarge Happy Hollow as it develops. It is built up from Fourth Street, so we wouldn't be looking at a boulevard there; .q. :kk • • 1 504 November 21, 1995 but that doesn't mean we wouldn'teventuallyexpand it to a, four- lane road. In response to Alderman Hill, Kevin Crosson stated widening this road is an unfunded project in the CIP. Alderman Hill expressed his concern that if we can't project that it will ever go anywhere, we'll just be funneling it down to a two-lane road. Crosson explained this was done as a planned event. It was discussed three years ago in an effort to provide relief at the intersection of 16 and 265. That is thereasonwe asked the developer to upgrade that to a four -lane road. In response to a question from Alderman Hill, Crosson stated the City would pay the difference. Alderman Williams stated the developer was giving the City more land'`while paying the same amount. The City would,pay the additional costs of the boulevard, which he favors. °•4 -In response to a question from Alderman Hill, Perry Franklin, City Traffic Superintendent; stated that the City would put: .street:signs up on public streets but not on private ones and "signs which need to be changed to City standards will. be changed. Alderman Hill stated he would like to see a."through street" sign put up because it is not obvious. Alderman Daniel stated she feels the arches are attractive and she appreciates the developers wanting to do something:;nice. However, she feels entryways should be reviewed. Alderman -,Parker asked Little if this boulevard was in fact a collector rather than a minor arterial as .stated before. Alderman Williams said that at one point it was an arterial but was moved down to a collector to convince the State highway department how vital it was that 265 was four -lane. Little stated that the change was made at the request of the highway. department. .She had furnished a.copy of the 1985 Master. Street Plan and the State rioted that the principal arterial at that time did follow this route and connect with Happy Hollow and said this would affect funding on 265, so we changed it. Alderman Parker commented thatit was noted that the developer was required to donate additional right -of. -way, but only required„ to fund a 31' street, just as they would if it were a -much, k smaller development with :less traffic. 4 ,i_, 505 V November 21, 1995 Alderman Parker explained that in the future he would try to bring to the Street Committee something that will proportionately increase the developer's contribution for the road. Mayor Hanna opened the discussion to the audience. There were no comments from the public. Alderman Williams, seconded be Daniel, moved that the $245,000 cost-sharing agreement with the Cliffs be added back to the 1996 CIP project list. Upon roll call the motion passed on a vote of 5 to 2, with Parker and Schaper voting no. b. The Council Street Committee voted 3 to 1, with Alderman Parker voting no, to recommend moving the $368,000 Steele property bridge cost sharing from 1996 to 1997 in the CIP list. Alderman Williams explained that the committee took that action because they would probably not need this money next year. This money would expand the bridge size from a two-lane bridge, which they are required to build at their own cost, to a four -lane bridge. The difference is much less if you do it at the front- end as opposed to going back after it's built and making it bigger. If things change and they move faster than planned, we may need to find the money because we want to make it a four -lane bridge when it's built. Alderman Parker stated that he voted against that as he felt it should be struck altogether. Again, this is about a third of the money necessary for the 265 project. The developers have told the Council that it will take two years to build this road and bridge from the time they decide to do it. They have said they will not do it until they have buyers for the land between Joyce' Street and the access road to the south. So we have a two-year window to allocate the money for this project from when they decide to do it. Parker would rather take this money and put it into a fund for 265. This money added to the money from the previous project is over half of what would be needed. That is why he would vote against moving it to the 1997 CIP list. The Mayor asked for comments from the audience. There were none. Bassett, seconded by Williams, made a motion to move the $368,000 from the 1996 to the 1997 CIP. Upon roll call, the motion passed 6 to 1, with Parker voting no. s 506 November 21; 1995 c The Council Street Committee took no action concerning.. Alderman Williams' suggestion to change the four -lane road running south out of the Cliffs subdivision into Happy Hollow Road from the current four -lane road into a divided boulevard. The estimated cost increase for this 800' segment is $50,000. Alderman Williams made brief comments asking his fellow aldermen to think about this as it will not have to be addressed until the budget is considered. He stated he favors spending the money to change a four -lane road into an attractive boulevard. This would be a start, and in the future the Council can plan ahead to spend 20% more of the cost of a four -lane road to put in a boulevard. Alderman Daniel stated that while boulevards are great, the City; has so many needs with little CIP money to spread around.i ', $50,000 doesn't seem like a lot, but there are other -urgent needs a1 • • The Mayor asked for comments from the audience. There were -none.. d. The Council Street Committee requested cost estimates and potential benefits. from City staff concerning 74 - purchasing purchasing right-of-way and moving utilities- for. the widening of Highway 265 from. Highway 45 to Joyce Street. Kevin Crosson stated that the staff isworking on that. They . have done estimates in the past on right-of-way which were around the $2 million mark. It is staff's understanding that the 265 project is part of the Governor's bond issue, so it may be prudent to see how that comes out before. the City'commits•itself. Mayor Hanna stated that if the Governor's bond issue passes, it will be moved ahead. Crosson said it was his understanding that they have to have the contracts committed in seven years and spend the money. Alderman Williams asked if that would be dependent on the City buying the right-of-way. Crosson answered that is not staff's understanding. Alderman Bassett stated the bond issue also includes notonly widening and right-of-way of 265, but also Highway. 16 West and Highway 45. Mayor Hanna stated that if the bond issue passes, the City .would be throwing away money to buy the right-of-way. • 507 November 21, 1995 Alderman Schaper commented that it may be necessary to buy additional right-of-way in order to make that a boulevard, which he would support. Alderman Parker concurred that that would be a good place for a boulevard. Alderman Parker stated that he'd gotten his figures regarding the cost of right-of-way from Charles Venable, who had worked with the highway department. Mr. Venable was the one who gave him the figure of $1 million to $1.25 million for Highway 45 to the Springdale border. Regarding the bond issue, Parker stated he thought the Council would give the Street Committee a rough estimate and ask the highway department whether or not they would be favorable to the idea of a job similar to what the City did in the south. Mr. Venable stated that he did not believe the highway department would respond at this time until they know how the bond issue is voted on January 9. The City will know for sure and have time after that to proceed on this. C. Incinerator Case Settlement Discussion Mayor Hanna stated that City Attorney Rose wanted all the aldermen present for a vote. Because of illness, one alderman is absent from this meeting. Rose stated that settlements are not an attorney's decision, but rather a client's decision. As representatives of citizens of Fayetteville, the Council must decide what the client wants to do. Rose and attorneys for the plaintiffs, Dale Evans and Kent Hirsch, were available for questions. In response to a question from Alderman Hill, Evans said this is a contingency case and not paid for by the hour. Hirsch added that the approximate number of hours the team has worked is 10,000 and personally he has worked 3,300 plus. Alderman Hill asked if they planned to submit to the court an amount of hours and Hirsch replied that if they have a contested battle, they will submit them. Alderman Williams compared this to how much the City paid to its attorneys who worked on an hourly basis and estimated the total amount, including the trustee's counsel, to be about $2.7 million. i 508 November 21, 1995 Alderman Bassett commented on that' -the trustee's lawyer has years ago by the City. Not a has had any ability to change the amount of the attorney .fees, been paid, -which was locked, in single person on the Council now that. Alderman Hill said the staff -had explained to him that the City had actually spent $1.3 on attorney fees. The other was taken without our acceptance. Some miscellaneous fees were paid to the Council for copying documents. Alderman Williams stated that what the City has actually paid is $2,682,000. Some of this was spent on the FOI lawsuit, some was spent prior to the lawsuit, and some was spent on the trustee's counsel, but it all was for attorney fees. This is what the City has paid for attorneys working against the plaintiff's attorneys. • Alderman Hill stated again that in defenseof this lawsuit the City has paid approximately $1.3 to $1.4 million, according to staff. Mayor Hanna stated that $800,000 was taken out and,held in trust. Alderman Hill stated this money was not used to defend this lawsuit. Disagreeing, Mayor Hanna asked City Attorney Rose to clarify -:this question. Rose stated it had been paid to Larry Burkes of Friday Law Firm. Alderman Hill said he understood that it was the Northwest Arkansas Recovery Authority who got the $815,000.. Ben Mayes, Administrative Services Director, stated they represented Union National Bank, which is a trustee of the Northwest Arkansas Resource Recovery Authority Bond. That money was deducted. Mayes further commented that the City has paid $372,000 to the Niblock Law Firm; we have paid $1,131,000 to McDermott, Will & Emery; we paid $296,723 to.Nixon, Hargrave, Devons & Doyle before the lawsuit was ever filed; Jim Rose was paid $64,806;.$815,081 was paid to trustee's counsel. This totals $2,680,000. Since the date the lawsuit was filed, this Council has approved payments of approximately $1,567,000 of the total.. Attorney Hirsch commented that as a result.of his efforts andthe victory at the Supreme Court, the bond fund for Larry Burkes's fee will not. need to be paid. Another group of lawyers in New York get paid between $300 to $600 an hour. a • s; 509 November 21, 1995 Alderman Hill asked if Section 2.4 of the settlement, reimbursing Katherine Barnhart $1,000, was required by law or not and would she normally receive the same as others in an action like this. Attorney Evans stated there is precedent for that. In many class action lawsuits the class representatives have been authorized to be reimbursed their expenses. They are not asking the City to reimburse anything but have agreed to take it out of their money. In answer to a question from Alderman Parker, Evans cited a securities case in New York which was paid $5,000 a day. Parker asked if class representatives weren't usually compensated at the level that the regular class members were. Evans responded that if that was causing difficulty, he would be glad to not have it in there and the money would go to his firm. Attorney Evans responded to a question from Alderman Hill regarding third -party lawsuits. He stated they don't believe the City has the right to bring an action against the other individuals at this point, that would be their own lawsuit. They have agreed not to do that and to supply the City all the information, research, and expertise the City cares to have. They want to end the litigation as far as it deals with the government against the people. They want to be on the same side as the City. This settlement brings their cooperation. Alderman Hill stated he did not see the advantage to the City because once the settlement is made all papers are under FOIA. Attorney Evans disagreed with this as they do not represent the City government. Alderman Bassett stated that the City has hired a good lawyer and if we settle this Evans and Hirsch will give the City access to any information it would be interested in for the pursuit of third -party claims. Evans stated they are not trying to represent the City or say that the City needs any of their information or that Mr. Patton needs help; they are merely willing to assist if asked. Alderman Williams said that even assuming the information this law firm has falls under FOIA, there is a big difference between just being given access to the documents and being given actual input based on the experience they've gained. City Attorney Rose doubted that this would fall under the FOIA. Attorney Evans guaranteed it's not FOI if there's no settlement agreement reached. 510 November 21, 1995 In response to a question from Alderman Young, Katherine Barnhart_ replied that she is in favor of this settlement. She added,that the total days she would be compensated for is 11. In response to a question about additional attorney fees from. Alderman Young, Evans replied that although the. City had charged them for everything they requested, they would not do that to the City. Attorney Hirsch made comments regarding the mutual cooperation aspect of this agreement. They have a retired judge, George Cracraft, who is incensed by the insurance company and the way the City has been treated. He is very interested in participating in the completion of this case "on the house." Alderman Bassett stated that Jerry Rose has recommendedthis. settlement and has done a good job of presenting it to us. The. incinerator issue has been a political, financial, and legal nightmare that needs to be put behind us. The Council should not forget that the third -party claims and the claims.. against the City still remain and should be resolved'as soon as possible to end this episode. Regarding the settlement offer, Alderman Bassett stated that he does not believe that any lawyer or group of lawyers is worth $2.5 million, although he respects the attorneys who have worked on this case. He does not believe the fudge would award a fee as high as proposed in thissettlement, but there is a risk. If either side appealed this case on the amount of the fee, it would continue to drag on. He will hold his nose and vote for this as, in the long run, it is in the best interest of the City to get it over with. Alderman Daniel stated the winners were really the losers in this case .as the City would have been better off with the incinerator: Alderman Parker appreciated the remarks by Bassett and Daniel and agreed all are tired of the game. However, since the Council is dealing with taxpayers money, the game is not over yet. Alderman Parker stated that normally Evans and Hirsch would get one-fourth to one-third of .the kitty and if we say -that it is $4.5 million, that would give them about $1.12 .to $1.5 million; but their argument is that it a much larger amount than that and that they could ask for as much as $5 million.. Alderman Parker explained he looked into that argument and found too little chance of that happening to vote for the settlement. Parker explained he supports a remedy based on,an-illegal exactions case, rather than accepting the proposal -or even thinking that the court will favor a proposal based on a contracts remedy. 511 November 21, 1995 Parker disagreed with what should happen to the surplus funds. He stated that under this agreement, $2.5 million would go to the team of attorneys that battled this out and $2 million would be restored to the ratepayers. If the City cannot find some of the ratepayers and that money comes back, the plan is to give that money to the General Fund. Parker stated he thinks the money from unidentified ratepayers should be distributed out and supplement the amount the others get back. Since the City of Fayetteville was found to be in the wrong, he feels it should restore every penny it can to the citizens. Alderman Parker stated he would vote against this settlement because he believes the court will award $1.12 to $1.5 million instead of the $2.5 million. Alderman Bassett read from Arkansas Code regarding cases like this which stated unclaimed money goes back to the General Fund. Parker agreed with this but restated his preference for the City to return every penny to the citizens. Mayor Hanna stated that all City monies do belong to the citizens and go back to them in the form of services or infrastructure, etc. Alderman Williams responded to Parker's suggestion by saying it would be easy to vote against this settlement but since we are not merely playing with taxpayer money here, we must be careful with it. If we guess wrong here then we are risking a lot of taxpayer money. This is a point City Attorney Rose brought home. Originally, the figures that the ratepayers' attorneys were demanding were totally out of line. Williams agreed with Bassett that this has been a long festering sore and that we need to put it behind us. If a settlement is not agreed to, the ratepayers won't get anything for another year or so. He wondered if the City really lost. The citizens of Fayetteville, if the suits against the City are not successful, are not going to have to pay the more than $16 million that they would have had to pay if we had won. When there was a contract that we were paying under, that makes it a contract action. When the Supreme Court said that was a void contract, that doesn't mean the action is no longer a contract action. It means the people saying the contract was bad won and we lost. To be responsible with our General Fund, to protect against the chance that the Supreme Court would award the larger amount, is reasonable. The lawsuit can be ended now with money we have without putting a serious crimp in our finances. Accepting the settlement is the only reasonable, though difficult, thing go do so we can resolve this and go forward. _4. 512 November 21, 1995 Alderman Hill stated that by accepting this settlement, the City. is taking it out of the judge's'. hands, although he would still. have to approve it. We are being asked to pay a 60°% settlement fee on a $4 million lawsuit. Research by City Attorney Rose has showed that -across the country settlements have been 15% to 500 and we are being asked to pay over 50% plus interest because the only thing decided by the courts is the $4 million settlement. The contract issue has not been heard. Alderman Williams remarked that in the most recent case:.the{City was involved with, Mr. Lisle got two-thirds of all the moneyf twice as much as all the refunds combined, based on the higher_,. figure just like they might get in this case. •f Alderman Hill disagreed that they could base it on the higher figure in this case without.our attorneys.. keeping this in court for another year or so. It is not a reasonable action for this-' judge to make. Alderman Bassett stated that he understands what Evans and - Hirsch's theory is and frankly disagrees with it. However, he is unwilling to gamble on what the courts would find and wants to go on. Alderman Hill stated that the calls he's received from citizens oft this issue were overwhelmingly against settling. Only one wanted to settle; -the majority were outraged at the amount of the fee, even with the chance of the courts ruling against us.• Alderman. Bassett agreed that he, too, does not like'it; but,the citizens are not chargedwith the responsibility of making.a decision that may be painful but would be best in the long run. Alderman Hill stated he wanted to. listen to his constituents and weigh that in his decision. He does not want tospendthe taxpayers money on the small chance something might happen.: Alderman Young claimed his title as resident trOUblemaker:0 When - he was a member of the audience and'not on the Council, he spoke to the incinerator issue. The Council is talking about who won and lost; but the best way to look_at itis as a .learning , experience; a tragic one. If the City had held a hearing on -this ..issue early on; the citizens could have asked questions that possibly would have caused the City to rethink,their decision. In retrospect, what the citizens did in voting to•pull•out of the incinerator was the cheapest way t�getout'of it- The citizens L he -has spoken with regarding this settlement have all said they don't like it. One in particular was Very knowledgeable about the incinerator and finally advised accepting the settlement i ,,.because it limits our liability. Young -stated he will vote in favor of this settlement. 513 A -r November 21, 1995 Alderman Hill had a question based on remarks made by City Attorney Rose at the last meeting when he said if we don't settle this and a fudge ruled to a fee that the attorneys didn't accept and appealed to the Supreme Court, we would be talking about hundreds of thousands of dollars to defend this. Alderman Hill asked where this amount came from. Attorney Rose responded that if they successfully appeal an award, their attorney fees are still running. Under that circumstance, they would be paid for those additional hours. If we win, we would not be out more attorney fees. Alderman Hill wanted that clarified. We would be out more money only if these attorneys prevailed. Alderman Williams noted for the record that the people who had contacted him regarding this issue wanted to settle and get it resolved. No one wanted to reject the settlement. Alderman Bassett mentioned for the record that he had one phone call in two weeks from someone concerned about the amount of attorney fees. After discussion, this citizen agreed ending it now is the best option. Since no one was contacting him, Alderman Bassett began asking people for their opinions. All supported getting it over with. Alderman Williams stated it is the Council's decision. He had .a few people contact him, but certainly no ground swell. Attorney Hirsch stated that the Supreme Court addressed the issue on the contract and ruled the contract was void from the start. They determined this type of contract is not enforceable in Arkansas, so the issue of the validity of the contract has already been decided. Regarding the earlier comment that $16 million doesn't have to be paid, Hirsch said a tax paying entity that has a cancellation of indebtedness has a taxable debt. The IRS says that it is a benefit and you have to pay taxes on it. On the Milsap rule. to the be the theory, issue of the economic benefit, Hirsch made reference to vs. Lang that plainly specifies the substantial benefit In that case the court awarded 78% of the economic benefit lawyers and said the upper limit of recovery of fees would total economic benefit. Based on the economic benefit he is asking for 16%. Alderman Parker mentioned that the city attorney, while in favor of the settlement agreement because it saves the City potential liability, has in past discussions agreed that it is less than likely that the court will find in favor of that particular contract argument. • • 514 November 21 ,.1995 The Mayor asked for further comment or. motion. Alderman Williams moved that the Council,accept the settlement as proposed by the City Attorney. Alderman Daniel seconded.. Upon. roll call the motion passed on a vote of 5 to 2 with Parker and Hill voting no. RESOLUTION 141-95 AS RECORDED IN THE CITY CLERK'S OFFICE. `Alderman Parker noted that the absence of one. alderman had no affect on the outcome of the vote, except for the influence his arguments might have had. CONSENT AGENDA iMayor-Hanna introduced for consideration 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": A. Minutes of the November 7 regular City Council meeting. B. A resolution approving a grant application and designating $44,467 as Local matching funds for the continuation of the drug enforcement grant. RESOLUTION 142-95 AS ON FILE IN THE CITY CLERK'S OFFICE. Young, seconded by Williams, made a motion to accept the consent agenda.,: Upon roll call, the motion passed on a vote of 7.to'0. AIRPORT EXPANSION PHASE II Mayor. Hanna stated that he feels the cost is too high and recommends itbe sent back to the airport board to find a way to stay within the original proposal. Dale Frederick, Airport Manager, was present and gave a history of how the need for expansion was determined, evaluated, and: analyzed by many professionals beginning in 1990. r ,o S Frederick noted that this request was taken to the State aeronautics commission when a bid came .in much more than was ..-v, estimated and the commission awarded $60,000 to help fund.. this ?.J facility. In answer to a question from Alderman Williams, - 44 Frederick said at the beginning oftheyear:they will collect;$3,, per passenger and this money will be available to pay-for.this project. Some adjustments need to be made in cash.floW.up,front' , then reimbursed as the money comes up. He anticipates nothing happening in the near future to change that funding.. 515 November 21, 1995 Architect Richard Alderman reviewed the plan included in the agenda packet and which he also had with him. Adding all the numbers together equals about 3,750 sq. ft. at about $124 per sq. ft. cost. Much of the cost is in the outside which can be backed out to leave $110 per sq. ft. It may seem more than normal but is reasonable for a mayor public building now. Seven bidders gave a good representation of what this should cost. Alderman Bassett asked why costs have doubled. The architect answered that the figures hadn't been updated as much as they should have and took responsibility for this. Alderman Bassett acknowledged the need for this addition but still found the increase in cost disturbing. Frederick stated that the airport has been in a debt -free status since 1992 because of the unanticipated growth of the airport. Mayor Hanna stated he has been hearing that the passenger fees at the new airport will not be competitive and we've been trying to figure out how to keep Drake Field a commuter type airport. Yet we talk about adding $3 fees bringing us closer to what they are at the regional airport. Alderman Parker off by the time addition to the operating costs noted that the larger surcharges to recover. the $3 we add hopefully will be paid airport opens for business. In they may put on, they will have Our airport is paid for and theirs is not, so we will still be better off financially if we accept this fee now to put ourselves in the best competitive position when the new airport opens its doors. Alderman Williams agreed with the Mayor in that we must make sure we are competitive in the future and also agreed with Parker that we'll have this paid for and have a nice facility when competing with the new airport. If this were a bigger project for a longer term, he would not favor it. However, since it can be paid off quickly, despite the doubling in cost, he believes it is something the airport needs to remain competitive. Mayor Hanna stated that the airlines will be making their decisions next year, not the day after the new airport opens. They will be examining these charges now. Alderman Schaper stated that from experience he is aware that there has been an outrageous escalation in construction costs in this area. He does not find $100 to $110 per sq. ft. at all out of line in today's market. 516 November 21, 1995 Schaper said he understands the PFC game is being played by more• and more airports around the country as a way to fund operations. If we are not in this game, we really short change ourselves. He agreed with the Mayor in that even if we do hold onto our airline traffic after the new airport opens, we won't need an airport capable of carrying 240,000 passengers a year, then we'll have an over -built airport. However, in terms of livability with what we have, this is a good plan, though in a few years we may be over built. Alderman Daniel stated she thinks this project is worth the investment with what construction costs are now and is in favor of this. Alderman Bassett stated he will vote for this having been persuaded that the addition is needed and can be paid back quickly. In the future, he will be very reluctant to vote for anything with this kind of increase. Mayor Hanna asked for comments from the audience. There were none. Hill, seconded roll call, the by Young, moved to accept the resolution. Upon resolution passed on a vote of 7 to 0. • RESOLUTION 143-95 AS RECORDED IN THE CITY CLERK'S OFFICE GENERALNPLAN 2020 DISCUSSION Tim iConklin, Associate Planner for the City, referred to the draft of general plan 2020 and draft 5 of the future land use plan given at the aldermen. The Planning Commission voted. 6 •t� 1 to adopt the plan on November 13, 1995. Under consideration is both the text and map. It is a policy document. The revised comprehensive land use plan is in response to Resolution 13-95 which directed planning staff and the commission to develop a new future comprehensive land use plan. The future land use map has been revised from the 2010 plan, from four categories to twelve. It includes special flood hazard areas'as delineated by FEMA. Also attached to the plan are the State planning statutes, Resolution 13-95, and responses from questionnaires sent to utilities. A summary of the changes to draft 3 of the revised comprehensive land use plan was also included. Conklin stated that the Planning Commission and staff have provided numerous opportunities for the public to give input on the plan and the map. Seven public meetings and hearings were held over the last five months. Notification of the availability for review of the 2020 plan was sent out with every water bill. The future land use map was published twice in local newspapers. Copies of the maps and plans are 'available for review in the planning office, library, and City Clerk's office. 517 November 21, 1995 Conklin went through the plan to explain how it is put together. He also used overheads to show the progression of the plans, the guiding principles of the 2010 plan, the future land use map, projections of future land use, etc. He reminded the Council that the Planning Commission has adopted this document. Any changes made should be voted on by the Council. Alderman Schaper thanked the planning staff and Conklin in particular for the work done on this. He called attention to the population figures on page 24 of the document. The current projection is 71,000 by the year 2010. The old plan projected 55,000 people. Out of date population projections were used in the 2010 plan which is why it was essential to do a new plan. Schaper suggested putting this on the agenda for the next meeting for further discussion and to give the public opportunity to comment on the plan. Alderman Parker thanked the planning staff and the many people who have worked towards this plan. He noted that no one has asked whether or not the projected growth is desired. Stating he was not taking a no -growth position, he felt the question should be asked and the consequences of the growth we are encouraging should be considered. Alderman Young thanked the citizens who participated in the hearings; the planning department for their efforts; and the Planning Commission, particularly praising them regarding the hillside provisions as there was an effort to take that out of the plan. He cautioned that this is a guide, not an ironclad document. It is an ongoing process. This resolution says the next major revision will be in the year 2000. He envisions a review every five years with a major overhaul in 20 years or so. Conklin said the intent of the resolution was to not call for a major revision every year. Young suggested the wording may need to be changed. In answer to a question from Alderman Williams, Conklin said questionnaire data was summarized in chapter five. Alderman Williams noted on the Parks questionnaire, the Walker Park Senior Citizen Center is not mentioned. This questionnaire may need to be updated in light of the passage of the new tax. In answer to a question from the Mayor, Alett Little said this was not presented with the expectation of a vote tonight. There is no schedule for adopting the plan. Little explained she would like for the Council to take action by the end of 1995. The Mayor asked for other comments. There being none, it was decided to add this to Old Business on the next agenda. November 21, 1995 FOUR-WAY STOP The Mayor stated that Alderman Parker had asked that this be tabled while he gathers more information. Alderman Parker agreed he would like to add this to Old Business for the next meeting in order to give Perry Franklin time to discover if a four-way stop at Leverett and Sycamore would meet the City's criteria for traffic needs. PROCEDURE FOR ELECTING ALDERMEN City Attorney Rose read the ordinance for the first time. Alderman Bassett stated that in 1992 the Council was asked to vote on making elections by ward, at large, or some combination of this. The vote was 7 to 1 with him casting the dissenting vote. He still feels the best thing for Fayetteville is for each ward to have one alderman elected from the ward and.anothert alderman elected at large. This is not aimed at anyone currently on the Council, nor is it meant to help anyone get reelected. He " has chosen to bring this up now rather than next year, which is. an election year. He believes strongly in having two members , from each ward. It is important to have aldermen inclined to devote attention to the needs of a particular ward. This, gives someone not in a position to conduct a city-wide campaign -the opportunity to run just in a ward, opening the process td -More people. Bassett stated his overriding ,belief that citizens should have the right to vote for five of their elected representatives at each election rather than just two. Most of the decisions the Council makes affect the whole town. Also, the next census will put Fayetteville over the 50,000 population mark. This means that Council terms will be for four years instead of two years. Bassett stated that no person or group had asked him to bring this forward. He believes inhis heart and mind this is the fairest, most democratic way to elect our Council. Bassett stated thattoo many times special interest groups dominate issues. If five aldermen are elected at large, the chances are better that the collective judgement of a town will prevail. Again, he was not targeting any particular organization. Alderman Daniel commented that this may be a way for special interest groups to control the council if -they could elect five aldermen of their choice. However, it would also give citizens who like the work of an alderman not in their ward the ability to elect that person. 519 November 21, 1995 In response to a question from Alderman Hill, Bassett said this could be referred to the Ordinance Review Committee but feels there is really no need to. He would like to see it go through three readings then voted on at the second meeting in December. Alderman Williams stated that though he was convinced philosophically that this was right, he voted against it last time because his constituents were against it. They wanted two aldermen responsible only to them. He will listen to them again as it is their choice. Alderman Young made the point that one of the reasons for the change of government was to close the wards so each ward could vote on their own aldermen. Alderman Bassett responded that this proposal in no way indicates his dissatisfaction with this form of government. He believes the mayor -council form of government is right for Fayetteville. It can just be made better. Alderman Schaper stated he was not sure what could be achieved in terms of better representation. Fayetteville already has wards five times bigger than what is needed to be a first-class city in Arkansas. It would change how campaigns are run. It would be possible to create a situation where most would want to run only in their ward with only a few people running city wide. The city-wide campaign would cost much more to run. Alderman Bassett once again stated that no one is pushing him to do this. Not wanting to bring it up in an election year and not planning to run again himself, this is simply his last chance to do it. Alderman Daniel mentioned that there is one section of the city with historically greater voter turnout representing a certain mindset, which concerns her. Alderman Parker answered for Ward 3, which has the highest voter turnout. Stating that because the wards are now evenly divided between numbers of voters, it provides a more balanced representation than would be achieved with the proposed system. Ward 3 does turn out more voters and they would have a higher degree of influence. To turn it over to a city-wide election allows big money control of the election. Unless he gets a lot of opinions to the contrary, he would strongly oppose this as being anti -democratic. Alderman Williams hoped that the Council would not prey on people's conspiracy theories in Fayetteville. He has run city wide as others have. The numbers showed he ran the same in every ward. • 520 November 21, 1995 Alderman Daniel explained she feels it is very different now than when -611e and others ran the first time city wide. •Daniels stated one reason she reacted so negatively to this is because.,of the input'she has received from people who think they could have more influence on the Council if there were more at -large positions. Alderman Schaper noted it was interesting that position two wasn't -considered for the at -large position. City. Attorney Rose 'replied he had used a State statute for this. Amendments could be made. The Mayor noted that there will be two more meetings to discuss this or the people could vote on it. Robert Reus stated that this ordinance is a step in the wrong direction for several reasons. It will cost at least four times as much to run for office. It will be impossible to canvass the whole city. It can concentrate power from a single organization.. The present system is working. Lloyd Calhoun, general plan. the plan. from the audience, asked a question about the He did not see an agricultural classification on Alett Little explained that when lands are taken into the City, they are automatically classified as agricultural. The land use plan provides the basis for change. Agricultural land was not classified because there is no intention -to invest money in buying land for that purpose. This does not mean that lands cannot remain in the agricultural state. The Mayor pointed out that the City rarely initiates a rezoning. The person who owns the land normally asks for rezoning. The plan is just to show what rezoning is possible. Arm` Mr. Calhoun commented that "hillside" was to big a designation. g The Mayor agreed that this is what the City is attempting to deal with now. Alderman Williams stated it will be properly defined. Mr. Calhoun recommended that not just the surface aspects be delineated but also the soil down to considerable depth. Fran Alexander, a citizen in the audience, spoke regarding the city-wide election of aldermen. The crux of the whole issue is the cost of running city wide. The cost of running at the ward level is about the only manageable campaign left to run, when compared to a state or national campaign. It is crucial to understand that the citizens changed this government in order to have two representatives in each ward who were known to them. • • 521 November 21, 1995 She took exception to calling public interest groups special interest groups. Special interest groups are ones that will financially benefit from an action. She urged the Council not to consider changing the aldermen selection process. OTHER BUSINESS The Mayor brought forth a request regarding the December 5 meeting being started earlier to accommodate a basketball game. It was decided to discuss this at the next agenda session. The meeting was adjourned at 9:40 p.m