HomeMy WebLinkAbout2005-09-06 MinutesMayor Dan Coody
City Attorney Kit Williams
City Clerk Sondra Smith
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ARKANSAS
City of Fayetteville Arkansas
City Council
Meeting Minutes
September 6, 2005
City Council Meeting Minutes
September 6, 2005
Page 1 of 23
Aldermen
Ward 1 Position 1
Ward 1 Position 2
Ward 2 Position 1 -
Ward 2 Position 2 -
Ward 3 Position I -
Ward 3 Position 2
Ward 4 Position 1 -
Ward 4 Position 2 -
- Robert Reynolds
- Brenda Thiel
Kyle B. Cook
Don Marr
Robert K. Rhoads
— Robert Ferrell
Shirley Lucas
Lioneld Jordan
A meeting of the Fayetteville City Council was held on September 6, 2005 at 6:00 PM in Room
219 of the City Administration Building located at 113 West Mountain Street, Fayetteville
Arkansas.
Mayor Coody called the meeting to order.
PRESENT: Alderman Reynolds, Thiel, Cook, Marr, Rhoads, Ferrell, Lucas, Jordan,
Mayor Coody, City Attorney Kit Williams, City Clerk Sondra Smith, Staff, Press, and
Audience.
Pledge of Allegiance
A presentation of the Final Check for the Blair Library Construction was given by Anne de
Noble, Library Board of Trustees and Louise Schaper, Executive Director.
Louise Schaper and Anne de Noble gave a brief update of the new Blair Library.
Anne de Noble stated the project has come in under budget. She presented the City with a check
in the amount of $416,500 from the proceeds of the sale of the old library to be used to pay the
last major invoice on the project.
Mayor Coody announced that today he had to declare Fayetteville a disaster area so that
we could be eligible for FEMA refunding of all the expenses that we are going to be facing
with the influx of evacuates and the influx of all the materials that we are going to be
experiencing.
CONSENT:
Approval of the August 2, 2005 and the August 16, 2005 City Council Meeting Minutes.
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Approved
Arkansas Parks and Tourism Outdoor Recreation Grant: A resolution authorizing the
Fayetteville Parks and Recreation Division to accept an Arkansas Parks and Tourism Outdoor
Recreation Grant in the amount of $40,000.00 for the Braden Park Project; and approving a
budget adjustment recognizing the grant revenue.
Resolution 167-05 as Recorded in the Office of the City Clerk.
Braden Park Contract Award: A resolution approving a contract with Midland Construction,
Inc. in the amount of $109,962.00 for the construction of Braden Park; approving a 10% project
contingency in the amount of $10,996.00; and approving a budget adjustment in the amount of
$20,178.00 for same.
Resolution 168-05 as Recorded in the Office of the City Clerk.
University of Arkansas Cost Share Agreement: A resolution approving a cost -share
agreement with the University of Arkansas in an amount not to exceed $40,000.00 from the
Economic Development Fund to obtain engineering services related to the continued
development of the Arkansas Research and Technology Park (ARTP)
Resolution 169-05 as Recorded in the Office of the City Clerk.
McClelland Consulting Engineers Task Order No. 11: A resolution approving Task Order
No. 11 with McClelland Consulting Engineers in the amount of $31,150.00 for detailed
architectural and engineering design for the Phase 1 renovation of the terminal building at the
Fayetteville Municipal Airport.
Resolution 170-05 as Recorded in the Office of the City Clerk.
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Cinnabar Service Company Easement Negotiation: A resolution to approve an additional
$42,000.00 for Cinnabar Service Company for easement negotiation assistance for the
Wastewater System Improvement Project.
Resolution 171-05 as Recorded in the Office of the City Clerk.
ADM 05-1662 Master Street Plan Amendment for Shiloh Drive: A resolution amending the
Master Street Plan, reclassifying Shiloh Drive south of Joyce Boulevard, north of Mud Creek
from a collector street to a local street in the manner recommended by the Planning Commission
for Large Scale Development (LSD) 05-1593.
Resolution 172-05 as Recorded in the Office of the City Clerk.
APAC Change Order Amendment: A resolution rescinding the change order contained in
Resolution No. 155-05 and approving a revised change order to the construction contract with
APAC Arkansas, Inc., McClinton Anchor Division reducing the contract amount by
$278,481.85.
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Resolution 173-05 as Recorded in the Office of the City Clerk.
Floyd S. Salser Jr. & Associates Water Meter Testing Purchase: A resolution awarding Bid
#05-52 to Floyd S. Salser, Jr. & Associates in the amount of $161,590.00 for the purchase of a
meter test bench for testing and repairing water meters; and approving a contingency in the
amount of $8,000.00.
City Council Meeting Minutes
September 6, 2005
Page 3 of 23
Resolution 174-05 as Recorded in the Office of the City Clerk.
Razorback Road W&S Relocations Protect Amendment #I: A resolution approving
Amendment #1 to the contract with McClelland Consulting Engineers, Inc. in an amount not to
exceed $116,960.00 for final design, bidding, construction administration, and resident services
during construction for water and sewer relocation for highway improvements to Razorback
Road.
Resolution 175-05 as Recorded in the Office of the City Clerk.
Wedington Drive W&S Relocations Project Amendment #I: A resolution approving
Amendment #1 to the contract with McClelland Consulting Engineers, Inc. in an amount not to
exceed $145,793.00 for final design, bidding, construction administration, and resident services
during construction for water and sewer relocation for highway improvements to Wedington
Drive.
Resolution 176-05 as Recorded in the Office of the City Clerk.
Alderman Jordan moved to approve the Consent Agenda. Alderman Marr seconded the
motion. Upon roll call the motion passed unanimously.
UNFINISHED BUSINESS:
Amend & 96.05 Motor Vehicle and Motorcycle Sound Limit: An ordinance to amend §
96.05 Motor Vehicle and Motorcycle Sound Limit of the Code of Fayetteville. This ordinance
was left on the second reading at the May 3, 2005 City Council meeting. This item was tabled
at the May 17, 2005 City Council meeting until the September 6, 2005 City Council Meeting.
Alderman Thiel moved to suspend the rules and go to the third and final reading.
Alderman Jordan seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Thiel stated that she thinks that we need to look at this proposed ordinance again. She
stated the proposal that is before the Council would reduce the sound level decimals allowed.
She believes if we pass this ordinance it would give the Police Department an enforcement tool
and would also be consistent with other cities the size of Fayetteville and their decimal level.
Alderman Ferrell asked Chief Johnson how much additional work this would create for his
existing officers if this ordinance is passed.
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Chief Johnson stated that he does not know if lowering the decimal level would generate that
many more complaints.
Alderman Reynolds asked what effect this would have on Bikes, Blues and BBQ.
Chief Johnson stated that is not part of their plan to write additional tickets due to the decimal
level of motorcycles.
Alderman Reynolds stated he does not want to do anything to harm that festival.
Alderman Marr stated the ordinance that is before the Council recommends that this apply to
greater than a 1,000 pounds, the motorcycle section remains unchanged.
Alderman Ferrell said he understands some of the concern but he feels our Police Department
has plenty to do as it is and if there is a problem under the existing ordinance it can be policed.
Nelson Driver the Event Director for Bikes, Blues and BBQ informed the Council of some of
the things they are doing to try to reduce the noise during this event. He addressed some of the
problems they have seen.
Alderman Thiel stated this ordinance amendment does not deal with motorcycles at all: She
stated this proposal came about because of complaints about engine braking on hills. She said
she certainly does not want to do anything to adversely affect Bikes, Blues and BBQ.
Nelson Driver stated they are doing some proactive things to try to cut down as much of the
noise that they can during this event.
Alderman Ferrell said that he thinks that Bikes, Blues and BBQ is a great event here in this
town.
Alderman Lucas said she agrees with Alderman Ferrell about Bikes, Blues and BBQ.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 7-1.
Alderman Reynolds, Thiel, Cook, Marr, Rhoads, Lucas and Jordan voting yes. Alderman
Ferrell voting no.
Ordinance 4747 as Recorded in the Office of the City Clerk.
Malty Wagnon Road Sewer Service: A resolution to allow extension of sewer service outside
the City's corporate limits on a 25 acre parcel on Mally Wagnon Road less than a quarter mile
from the city limits. This item was tabled at the August 2, 2005 City Council meeting until the
September 6, 2005 City Council Meeting.
Crystal Goedereis representing the project gave a brief description of the project. She stated
the concerns that Planning had with this project have been addressed. She said that this project
will be developed to City specifications so that when this property is annexed it will meet the
City requirements. She stated they are 0.2 miles from the City sewer and they propose to pay all
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of the cost plus all the impact fees. She said it is costing them more to do it this way but she
feels the citizens will benefit from this.
Jeremy Pate stated that the Planning staffs concern was the plan that was presented showed this
developed to RSF-7 standards and we currently have an ordinance that doesn't allow for that
standard. They have changed this to allow for RSF-4 standards.
Alderman Reynolds thanked the Planning staff for working with the developer and thanked the
developer for developing this property to City standards.
Alderman Cook said the Water and Sewer Committee discussed the idea of extending sewer
services outside the City. They did not come to a conclusion on extending sewer services
outside the City. He stated this development is not the issue for him, the issue is does the City
Council want to make the decision to start extending services outside the City limits. He asked
why we would want to extend City services outside the City limits when it doesn't necessarily
benefit the citizens of Fayetteville. 1t is going to cost more for the City in the way of
maintenance. He asked how far do we go and how many more will request this.
Alderman Thiel said the residents of this subdivision are not going to expect fire and police
protection. She also said that the City would be getting a subdivision built to City standards,
they would pay impact fees, park land dedication and it would keep them from being on septic
systems.
Crystal Goedereis stated this would allow for affordable lots and allow for moderately priced
homes in this area
Alderman Jordan asked what price range she foresees for these homes.
Crystal Goedereis stated she hopes to sell the lots for around $40,000 and that probably
$150,000 to $180,000 homes would be built on this property.
Alderman Marr said this is a policy decision. He asked when will it be too far outside the city
if we start allowing services outside the City limits. He also asked if they bring these items in
will that be the new location point in which we go to?
David Jurgens, Water and Wastewater Director stated that it will be to far when the
proximity is such that it is not economical for the developer to hook up to the sewer system.
When a sewer system becomes adjacent to a property they must hookup. From my stand point I
think it would be better to own the system now so we will know it has good maintenance and
have it completely finished rather than having to go into a fully developed area and dig up the
yards to put in a sewer system.
Alderman Reynolds stated he will support this because it is being developed to City standards.
Alderman Lucas asked if the houses that are between the City and this development will be able
to tie onto the sewer without coming into the City.
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David Jurgens stated that those houses would have to petition to the City Council to be able to
tie onto our sanitary sewer system. He stated any connection outside the City limits must go
through this process.
Alderman Marr asked if we do give them services without them being a part of the City what is
the motivation for a person to annex.
City Attorney Kit Williams stated the applicant has agreed to be annexed into the City of
Fayetteville as soon as it is legally possible. I think that anyone that comes to you requesting
services, that this should be a condition for them also, that as soon as it is legally possible that
they will in fact annex.
Alderman Lucas stated she has a real struggle with this. She does not like things that are not
built to City standards and that we will not get impact fees on. She feels she has to be consistent
even though they have done a good job on this and therefore she can not support this.
Mayor Coody stated that eventually we would be annexing land that would have substandard
development on it, septic systems and all kinds of problems that we would be inheriting at that
point is probably the best argument as to why we should do this.
Alderman Reynolds moved to approve the resolution. Alderman Thiel seconded the
motion. Upon roll call the resolution passed 4-4. Alderman Reynolds, Thiel, Rhoads and
Ferrell voting yes. Alderman Cook, Marr, Lucas and Jordan voting no. Mayor Coody
voted yes thus breaking the tie.
Resolution 177-05 as Recorded in the Office of the City Clerk
Planning Commission Appeal (HondaPro): A request to appeal the Planning Commission's
motion to deny rezoning request RZN 05-1524 rezoning Lots 14, 15 and 16 of the Parker's Plat
of Valley View Acres from RSF-4, Residential Single Family, 4 Units Per Acre and R -O ,
Residential Office, to C-2, Thoroughfare Commercial. This item was tabled at the July 19, 2005
City Council meeting until'the August 2, 2005 City Council meeting. This item was tabled at
the August 2, 2005 City Council meeting. until the August 16, 2005 City Council Meeting.
This item was tabled at the August 16, 2005 City Council meeting until the September 6, 2005
City Council Meeting.
City Attorney Kit Williams: The Planning Commission voted 7-1 against this. It is up to the
City Council if you want to substain the Planning Commission or if you want to hear the appeal.
If you want to hear the appeal I will then read the ordinance.
Jeremy Pate gave a brief summary of the project. He stated the applicant has given a Bill of
Assurance. He stated the land use plan in the particular area is residential. He stated staff does
not recommend a C-2 zoning in this location.
Alderman Thiel asked even with the Bill of Assurance if staff was still opposed to this zoning.
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Jeremy Pate: I think it goes a long way. Even with the current business, staff has received calls
from the neighbors regarding noise issues with the property. Staff has also received several
phone calls in support of this rezoning.
Mayor Coody: Since this has changed so much since the Planning Commission heard it would
it be out of line to ask them to reconsider this?
Jeremy Pate: I believe that is one of the options the Council has.
Alderman Marr: This particular business is in a pretty industrial area I haven't received a
single call against it. The screening was a concern and the noise issue that was related to the
salvage operation, which I think has been taken care of and removed from the site. I have
received phone calls and letters in support of this business. I don't think we need to send it back
to the Planning Commission, 1 think they have addressed the things that needed to be addressed
if we are going to rezone the property.
Mayor Coody: If we refer it back to the Planning Commission it would go back now if we vote
it down it would be a year before they could bring it back.
Jeremy Pate: If you referred it back to the Planning Commission they would vote on it again
and it would also come back before the Council with a new recommendation based on the Bill of
Assurance offered.
Alderman Cook moved to approve the appeal. Alderman Reynolds seconded the motion.
Upon roll call the motion passed 6-2. Alderman Reynolds, Thiel, Cook, Marr, Rhoads, and
Ferrell voting yes. Alderman Lucas and Jordan voting no.
City Attorney Kit Williams read the ordinance.
Hannah McNeill with Key Architectural representing the owner of the property gave a brief
description of the project.
Alderman Cook moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Reynolds moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Lucas said she is concerned about the invasion into the neighborhood. She asked if
this could be rezoned R -O.
Jeremy Pate: Not with this particular business, that is the challenge. Staff would support
residential office. This business would not be allowed as a conditional use in an R -O zoning.
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Hannah McNeill stated R -O is very limited in what business can be in that zoning. It would be
financially better to do apartments there than R -O. You have C-2 zoning a little to the north.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 6-2.
Alderman Reynolds, Thiel, Cook, Marr, Rhoads, and Ferrell voting yes. Alderman Lucas
and Jordan voting no.
Ordinance 4748 as Recorded in the Office of the City Clerk.
R-PZD 05-1463 (Oakbrooke Subdivision): An ordinance establishing a residential planned
zoning district titled R-PZD 05-1463, Oakbrooke Phase 1, located west of Rupple Road and east
,of Bridgeport Subdivision, containing approximately 20.9 acres, amending the Official Zoning
Map of the City of Fayetteville; and adopting the associated Residential Development Plan as
approved by the Planning Commission. This item was left on the first reading at the July 19,
2005 City Council meeting. This item was left on the second reading at the August 2, 2005
City Council meeting. This item was left on the third reading at the August 16, 2005 City
Council meeting. This item was tabled at the August 16, 2005 City Council meeting until the
September 6, 2005 City Council meeting.
Jeremy Pate gave a brief update on the project. He stated staff is recommending that the
development be allowed to proceed without a connection for a sewer assessment. There has
been a lot of discussion with the neighbors and amendments to the project. Without a formal
amendment by the Council to adopt those amendments to this PZD, they will not be part of this
particular request. The amendments are to limit the attached lots to Lots 56 through 73 only and
a 1,400 square foot minimum on the homes.
Alderman Lucas: So there is nothing written up on these changes.
Jeremy Pate: The items are in the revised covenants however covenants can change without the
City being aware of the changes.
Alderman Jordan: We need to put those in the PZD as amendments to the PZD, will that lock
them in?
Jeremy Pate: Yes
John Nooncaster voiced his concerns about the sewer improvement district that has been
discussed. He stated the City does not have an effective or fair way to allocate sewer
improvements.
Karen Stewart a citizen, voiced her concerns regarding the drainage on the Oakbrooke property.
She stated there are wet lands on the property and detention ponds. She is concerned about the
removable of the detention pond.
Colleen Pool presented a petition to the Council stating the neighbors want homes that are a
minimum of 1,400 square feet.
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Tracy Hoskins, Paradigm Development stated the three changes he is willing to make to the
project due to concerns from the neighborhood.
Alderman Jordan stated the neighborhood was also concerned about the infrastructure in that
area. Rupple Road is a real concem to the neighbors.
Alderman Lucas stated the infrastructure was a concern at the neighborhood meetings that she
and Alderman Jordan had.
Sondra Smith, a resident of Bridgeport stated the citizens of Bridgeport do have a concern
with Rupple Road. She stated they understand that the developer can not do anything about
Rupple Road but it is something that we feel the City Council does need to address, it is a 10 foot
wide lane on each side. The total width of the road is 20 feet and you will be dumping three
schools and 1,000 additional trips a day onto that road.
Alderman Ferrell stated the Street Committee is very aware of this. I brought up the
importance of Rupple Road at one of the meetings. I am trying to get this road moved up when
we start building.
Alderman Marr stated 780 square feet homes are selling in Ward 2 and increasing property
values. I understand the concerns though. I would like to hear about the infrastructure. I have a
concern about the sewer capacity.
Tracy Hoskins We have another development that has been approved that has 211 taps that
• were calculated into this new report. We are willing to subomate 109 taps from that
development to take care of the Oakbrooke development until the west side plant is complete.
Should by chance that development come on line before the west side improvements are
complete, we will be happy to pay any fees or assessments that are due at that time.
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Alderman Marr: Is that apart of this Bill of Assurance.
Tracy Hoskins: No.
Alderman Marr: Are you adding that tonight?
Tracy Hoskins: That is correct; I have submitted a draft copy of the Bill of Assurance to the
City Attorney.
City Attorney Kit Williams: Are you offering that now to the City Council?
Tracy Hoskins: Yes, that's fine; 1 have no problem offering that to the City Council.
City Attorney Kit Williams read the Bill of Assurance for the Council.
Alderman Thiel stated she is also concerned about the infrastructure.
Jeremy Pate stated the developer will pay approximately $7,500 in bridge assessment fees and
approximately $21,000 for Rupple Road assessments.
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A discussion followed on the fees this developer will pay for bridge improvements and street
improvements to Rupple Road.
Jim Ramsey with Paradigm Development presented a Power Point presentation regarding the
subdivision.
Alderman Lucas asked if the developer was going to be building the homes.
Jim Ramsey: Yes.
Alderman Lucas: So they are going to be built to sale?
Jim Ramsey: Yes.
Alderman Jordan. What will the price per square foot be for the homes?
Tracy Hoskins: We figure they will typically sale for $125.00 per square foot.
A discussion followed on the set backs between the homes.
Alderman Jordan: If you have a 1,200 square foot house at $125.00 a square foot that would
be approximately $150,000. The Chamber of Commerce has said that an attainable house is
$139,000. Jeremy isn't there another addition going in by this property called Bellwood.
Jeremy Pate: Yes.
Alderman Jordan: And then across the street we are going to have another one come before us
that is 1150 units. So will all these subdivisions cause some problems with safety on that road?
A discussion followed on Rupple Road and the possible improvements that will be needed to the
road.
Alderman Lucas stated there are several things that have concerned her about this project. One
of them is the PZD ordinance. I thought when we received the PZD we would know what is
being put in the PZD. My greatest concern is the infrastructure of Rupple Road. This PZD will
compound a dangerous condition. There are no bikers and no walkers on this road because there
are no shoulders, no sidewalks and no trails.
Kit gave us information some time back about rezonings and it stated that an issue would be
whether this proposed development would compound a dangerous traffic condition. It also
stated whether the existing and proposed transportation infrastructure serving the new
development can handle the anticipated increase flow without causing or compounding a
dangerous traffic condition. I feel like 1090 trips more on Rupple Road is compounding that
condition.
There has been public opposition to this and for very good reasons. These people opposed this
subdivision on the same basis as the people that opposed Vu Tara, a dangerous traffic situation,
safety of their children and compatibility with adjacent neighborhoods. These people have been
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maligned because they have insinuated that these people are against affordable housing when all
they are trying to do is protect their property and their investment. It's their investment and it's
their property. 1 want to make it clear that they were not against affordable housing, I am not
against affordable housing, I live in an affordable housing neighborhood. They have been
maligned by saying that they were against affordable housing because they were against this
development and that's not true.
A discussion followed on the present zoning of the property and how many units could be put.on
the property as it is currently zoned.
Alderman Marr: Was the assessment for this subdivision done the same as other subdivisions,
because several of us feel the assessment is low.
Ron Petrie, City Engineer: Assessments are based on the street frontage, the amount of traffic
and the cost of the street that could be built. In many incidents we use more than the frontage, as
long as it meets the rough portionality. This is just the recommendation by staff. Each
development is completely individual.
Alderman Jordan moved to amend Section 2 of the ordinance to add that the minimum
square footage of the homes will be 1,400 square feet, only lots 56 through 73 can have
attached units and lots 52 through 54 will be for Club House or residential homes only.
Further, based on the Bill of Assurance offered to the City Council on September 6, 2005
concerning subordinating 109 sewer taps from the previously approved Laureate Fields to
be used by Oakbrooke Subdivision Phases I and II. Alderman Ferrell seconded the
motion. Upon roll call the motion passed unanimously.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 5-3.
Alderman Reynolds, Thiel, Marr, Rhoads, and Ferrell voting yes. Alderman Cook, Lucas
and Jordan voting no.
Ordinance 4749 as Recorded in the Office of the City Clerk.
R-PZD 05-1555 (Oakbrooke Subdivision): An ordinance establishing a Residential Planned
Zoning District titled R-PZD 05-1555, Oakbrooke Phase II, located west of Rupple Road and
east of Bridgeport Phase II, containing approximately 11.5 acres, more or less; amending the
official zoning map of the City of Fayetteville; and adopting the Associated Residential
Development Plan as approved by the Planning Commission. This item was left on the second
reading at the August 2, 2005 City Council meeting. This item was left on the second reading
at the August 16, 2005 City Council meeting. This item was tabled at the August 16, 2005 City
Council meeting until the September 6, 2005 City Council meeting.
Alderman Ferrell moved to suspend the rules and go to the third and final reading.
Alderman Jordan seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to amend Section 2 of the ordinance to add that the minimum
square footage of the homes will be 1,400 square feet, only lots 56 through 73 can have
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attached units and lots 52 through 54 will be for Club House or residential homes only.
Further, based on the Bill of Assurance offered to the City Council on September 6, 2005
concerning subordinating 109 sewer taps from the previously approved Laureate Fields to
be used by Oakbrooke Subdivision Phases I and II. Alderman Lucas seconded the motion.
Upon roll call the motion passed unanimously.
Karen Stewart voiced her concerns about the street connectivity between Bellwood and
Oakbrooke.
A discussion followed on the connectivity between and from the subdivisions.
Kit Williams asked the developer if the Bills of Assurances that he offered in the previous
development are being offered to the City Council in this development.
Tracy Hoskins: Absolutely.
A resident of Bridgeport voiced her concerns about the traffic that cuts through Bridgeport
from other developments. She stated that Rupple Road is dangerous and that no one walks or
bikes on that road because they would get killed. She stated Rupple Road is very narrow road
and it is dangerous.
Mayor Coody asked staff to look at the traffic in this subdivision and the surrounding area to see
if there is a way to slow the traffic down.
Ron Petrie stated they have done a study and this area did not come close to meeting the criteria
in the traffic calming policy. I have heard a lot of complaints on the policy so you may want to
look at it in the future.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 5-3.
Alderman Reynolds, Thiel, Marr, Rhoads, and Ferrell voting yes. Alderman Cook, Lucas
and Jordan voting no.
Ordinance 4750 as Recorded in the Office of the City Clerk.
Hav Group Salary and Benefits Survey Contract: An ordinance waiving the requirements of
formal competitive bidding; and approving a contract with Hay Group, Inc in the amount of
$28,000.00 to accomplish the Salary and Benefits Survey Project; and approving a travel
contingency not to exceed $1,600.00. This item was left on the first reading at the August 16,
2005 City Council meeting. -
Alderman Marr moved to table the ordinance indefinitely. Alderman Ferrell seconded the
motion. Upon roll call the motion passed 7-0. Alderman Lucas was absent during the vote.
This ordinance was tabled indefinitely.
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HMR Tax Revision: An ordinance amending §§ 35.19 & 35.30 to change the definition of
• concession stands as it pertains to the collection of HMR tax. This item was left on the first
reading at the August 16, 2005 City Council meeting. This item was forwarded to the
Ordinance Review Committee.
Alderman Thiel moved to table the ordinance indefinitely. Alderman Jordan seconded the
motion. Upon roll call the motion passed unanimously.
This ordinance was tabled indefinitely.
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NEW BUSINESS:
The following item was added to the City Council agenda:
Firemen's Lawsuit: A resolution to approve the settlement agreement with the Plaintiffs in the
Peter T. Reagan, et al v. City of Fayetteville, Federal District Court Civil Case No. 05-5045.
Alderman Rhoads moved to add the Firemen's Lawsuit settlement to the agenda.
Alderman Jordan seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the resolution.
City Attorney Kit Williams: 1 would like to state in my 4 'A years as Fayetteville City Attorney
I have never recommended a settlement payment to a plaintiff that has sued the City until now.
Early in this litigation it became apparent that the complex and complicated issue surrounding
firefighter over time issues were neither clear nor easy to resolve. I had always thought overtime
rules were simple. Well, it is different with firefighters. Firefighters work 24 hour shifts every
three days and they have very different, complex and sometimes unclear over time rules. These
special rules, only for firefighters, start overtime at 53 hour per week or 106 hours for two weeks
or 159 hours for three weeks or 212 hours for four weeks. These varying look back periods
affect not only the amount of over time to be paid, but when it is paid. For many years
Fayetteville has used a three week look back period even though all employees were paid every
two weeks.
One of Assistant Chief Marion Doss's main jobs was figuring out the Fire Department's payroll
for this very complicated overtime computation formula. Basically the Fire Department has been
relied upon for at least 15 years to apply their unique rules to the Fair Labor Standards Act to
their payroll.
In July, 2002 Chief Bosch issued his mid -year report to administration, in this report he reported
that in the past we might not have been in compliance with the Fair Labor Standards Act. He
stated he had made changes in 2002 to "ensure that employees receive their overtime pay as
required by the Fair Labor Standards Act". Unfortunately shortly before this suit was filed the
City administration found out that Chief Bosch may not have brought the City into complete
compliance with the Fair Labor Standards Act, thus we immediately sought advice and
resolution to these issues by the Department of Labor. Many Firefighters had already sought
legal council and decided to go ahead and file suit.
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City Council Meeting Minutes
September 6, 2005
Page 14 of 23
Our Personnel and Payroll Department spent innumerable hours compiling and analyzing
firefighter payroll records in an attempt to see whether we had violated the Fair Labor Standards • "
Act. My analysis is that the City probably committed sufficient technical errors in applying the
law and that plaintiff's attorneys would likely be awarded attomey's fees against us. Those
technical violations were our apparent failure to include the bi-weekly $20.00 EMT and the
1-lazmat premium pay in overtime calculations. These were the primary components of the
resolution to the firefighters and the settlement offer that I made after consultation with Mayor
Coody.
Another much larger issue faced the City. For over a decade the Fire Department has sought to
even out bi-weekly pay checks by some sort of averaging procedure. Firefighters are scheduled
to work a 96 hour two week pay period and then two 120 hour two week pay periods. This way
each firefighter works one 24 hour day on and then has two days off. Three shifts of firefighters
can then man all the fire stations. The averaging method, which has probably been used for
more than a decade, over paid firefighters during this 96 hour pay period but then under paid
them during their two 120 hour pay periods. A two year analysis showed that the City had paid
about the right total amount to the firefighters. Even though this averaging method may have
been preferred by the firefighters, it does not appear to be sanctioned by the Fair Labor Standards
Act. The danger to the taxpayer is that we might not be allowed to set off our over payments
against the pay periods when we under paid. Two Federal Circuit Courts have held that a City
could not count over payments against these under payments. One Federal Circuit Court
determined that these could be counted to reduce or eliminate any under payment amount. With
the Circuit Courts of appeal in disagreement no one knew for sure how the Eighth Circuit Court
of appeals, which is our circuit, would decide that issue. If we could not count our over
payments to offset our under payments, then the Fayetteville tax payers would be out hundreds
of thousands of dollars.
Obviously the initial demands on the plaintiffs D.C. attomey was quite large. Although that is.a
true risk I do not believe that the local Federal District Court or the. Eighth Circuit would agree
with those circuit courts and that over payments of payroll by cities could not be used to offset
under payments.
We are prepared to present additional theories in an effort to protect taxpayer funds. The
question is why I would recommend for the first time to accept this settlement offer. First, there
is a reasonable chance that despite our best efforts, the court could decide against in this issue of
whether over payments could be used to offset under payments. Second, the small technical
mistakes that we made in not including EMT pay and Hazmat pay and the overtime calculations
could justify very large attomey fees being awarded against us. The plaintiff, the firefighters
might receive Tess than they would under this proposed settlement, but it is likely that their
attorneys would receive much, much more. With pretrial discovery, motions, trail preparation
and the trail itself, the attorney's fees would probably be over $100,000. With hundreds of
thousands of dollars riding on whether we could offset under payments of wages with over
payments, the losing side would almost certainly appeal to the Eighth Circuitand maybe even
seek circuitry to the United States Supreme Court. Since we would probably end up paying both
our own retained lawyers, the specialist that we hired in 2004 and plaintiff's attorneys, the final
legal bill would likely be hundreds of thousands of dollars. That would be a giant waste of tax
payer resources since we can settle for the fair amount that is presented tonight.
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City Council Meeting Minutes
September 6, 2005
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This is where 1 need to acknowledge the plaintiffs firefighters attorneys especially Mark Martin.
If Marks's interest had been his own fee he would have never seriously negotiated. He would
simply have prepared for trial and then the appeal and wait for the City to write him a big
attorney's fee check. Instead Mark kept foremost in his mind the best interest of his clients who
could well receive Tess than the amount he negotiated for if this went to trial and appeal. He has
foregone a Targe fee to ensure his clients received a fair settlement. But, more than that Mark
and 1 during our negotiations tried to take the long view. A trail would be unavoidably divisive
and advisorial, while what would be best for Fayetteville and for the firefighters and the citizens
would be a fair resolution and a coming together of our government and our employees to do
what is best for Fayetteville. That is the third reason that I recommend this settlement. For those
reasons I can without qualification recommend a settlement to you. This settlement removes a
danger of a Targe judgment if our over payments are not allowed to offset our under payments.
The settlement pays attorneys fees of $20,000, which otherwise could top $100,000 easily and
most importantly provides a resolution of all possible payroll and employment issues so we can
come together, move forward and work to serve the citizens of Fayetteville to ensure that we
remain one of the safest, most livable and most prosperous city's in the nation. The settlement is
basically a payment of $30,000 to the firefighters and $20,000 to their attorneys. We do have a
signed agreement by the firefighter's attorneys after all the firefighters have agreed to it.
Alderman Rhoads: Which Circuit allowed for the offset of over payments?
City Attorney Kit Williams: It was the Texas Circuit that allowed that.
Alderman Ferrell: Do all the fire departments in Arkansas and throughout the country come
under the same Fair Labor?
City Attorney Kit Williams: That's my understanding. All professional fire departments.
Alderman Marr: All of our current pay practices are being done accurately at this point
forward as it relates to the issue of pay and what's included in the overtime calculation?
City Attorney Kit Williams: Yes that is correct and we are also working with the Department of
Labor for all the City employees. 1 don't know if every decision has been made in that particular
case but we were going to comply with what the Department of Labor tells us to do in how we
shall pay overtime for all City employees. The biggest problem was in the firefighters because
of such a complicated system that frankly I don't think we knew how to do it for many, many
years. It is only after this situation occurred that we really probably have figured out all the
latest rules and wrinkles that are required for this overtime pay.
Alderman Marr: So this settlement takes us all the way through the point at which we are now
paying correctly.
City Attorney Kit Williams: That's correct.
Mayor Coody: And when you said this case, talking about the DOL, just to make sure that
�• everyone knows, we are not being sued by anybody else in the City. We are working to resolve
any overtime or pay issues that we might have had over the last who knows how many years
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City Attorney Kit Williams: We invited the Department of Labor to come in to work out a
structured settlement. They have done that, they would not do that in relation to the firefighters
because after we invited them to come in the firefighters did institute suit and so they did not
want to get involved in that. We have been and will continue to talk with them to make sure that
we are paying every employee correctly.
Mayor Coody: Yes, which is our intent, to treat everybody exactly fairly and play by the law.
Alderman Marr: Do you anticipate when the rest of the employees will be resolved?
City Attorney Kit Williams: I think we are getting very close to that a lot of it has already been
analyzed; we have been working very closely with the Department of Labor and through our
own labor lawyer specialist who has been working with their person. So most of this should be
resolved very quickly now. I think it is in a matter of a month or two at the longest. We have
already done the hard work, which is analyzing the pay records and I think all of that should be
resolved verrquickly now.
Alderman Reynolds: How many departments did the Department of Labor go through?
City Attorney Kit Williams: They - went through every department. They interviewed
representatives from every department. They interviewed every division within the city with the
exception of the firefighter division because that was already in litigation.
Alderman Reynolds: So we don't know that conclusion?
City Attorney Kit Williams: Well we do to a large extent; we know there are very minor
problems but nothing substantial in any of those.
Mayor Coody: I want to say thanks to you Kit because I know how many long hours and how
much hard work you put into this and I know you don't recommend settling these things very
lightly. You and Mark have worked together very well. I want to say thanks to Mark too
because he has done a very good job and you have done a very good job and if it weren't for you
guys, if we had just left it all to the high dollar lawyers we would still be working this thing out.
Thanks very much for doing a good job for us.
Alderman Marr moved to approve the resolution. Alderman Cook seconded the motion.
Upon roll call the resolution passed unanimously.
Resolution 178-05 as Recorded in the Office of the City Clerk.
The following item was added to the City Council agenda:
Hurricane Katrina Funds: A resolution authorizing the use of up to $100,000.00 from the
Replacement & Disaster Recovery Fund for use in collecting and distributing aid to Hurricane
Katrina survivors; and the use of 1851 East Huntsville Road (Mexican Original Bldg) as a
disaster Relief Collection and Distribution Center; approving a budget adjustment in the amount
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City Council Meeting Minutes
September b, 2005
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of $100,000.00 recognizing grant revenue from the Federal Emergency Management Agency
(FEMA); and declaring an emergency.
Alderman Jordan moved to add the Hurricane Katrina Relief Funds to the agenda.
Alderman Thiel seconded the motion. Upon roll call the motion passed unanimously.
Mayor Coody: This is $100,000 that we would use from the emergency fund that we have set
up for disasters. Certainly the disaster on the Gulf Coast has repercussions up here that we have
to deal with.
Alderman Cook: You had to declare Fayetteville a disaster area for this to work?
Mayor Coody: Yes. In order to get a refund from FEMA.
Steve Davis, Finance and Internal Services Director: In order to prefect our claim for future
reimbursements for FEMA the Chief Executive of a local government unit has to declare a local
emergency. On September 3, 2005 the President designated all 75 counties in Arkansas as a
Category B disaster area related to Hurricane Katrina. The funds that we are asking to be
appropriated are interest earnings from the replacement fund. We fully anticipate that the
majority of these monies will be reimbursed by FEMA.
Mayor Coody gave a brief description of what the City of Fayetteville is going to do to help.
Alderman Jordan moved to approve the resolution. Alderman Thiel seconded the motion.
Upon roll call the resolution passed unanimously.
Resolution 179-05 as Recorded in the Office of the City Clerk.
The following item was added to the City Council agenda:
Taxicab Fee Adjustment: An ordinance amending Title XI: Chapter 117, Article IV: Taxicabs,
of the Code of Fayetteville to allow for a fuel surcharge; and declaring an emergency.
Alderman Cook moved to add the Taxicab Fee Adjustment to the agenda. Alderman Marr
seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Rhoads: What were these numbers before?
City Attorney Kit Williams: We added a fuel charge everything else is the same.
Alderman Rhoads: What happens if gas goes down drastically?
City Attorney Kit Williams: You are free to adjust it up and down as you see fit as long as it is
reasonable for the operations.
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Steve Davis: Gave a brief description of the meeting that he had with the taxicab owners.
A discussion followed on the rates that are currently charged and the vouchers that the City gives
out to citizens.
Alderman Reynolds moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Reynolds moved to suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Alderman Marr moved to approve the emergency clause. Alderman Ferrell seconded the
motion. Upon roll call the emergency clause passed unanimously.
Ordinance 4751 as Recorded in the Office of the City Clerk.
Walker House Demolition: A resolution to authorize bids and approve the lowest qualified bid
received for the demolition and disposal of the Walker House located at 901 South College
Avenue.
Alderman Jordan moved to approve the resolution. Alderman Thiel seconded the motion.
Upon roll call the resolution passed unanimously.
Resolution 180-05 as Recorded in the Office of the City Clerk.
Amend 4 34.27 Sale of Municipally Owned Real Property: An ordinance amending § 34.27,
Code of Fayetteville to exempt the dedication of real property to the Arkansas State Highway
Commission from the requirements of the ordinance; and declaring an emergency.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to suspend the rules and go to the second reading. Alderman
Cook seconded the. motion. Upon roll call the motion passed 7-0. Alderman Rhoads was
absent during the vote.
City Attorney Kit Williams read the ordinance.
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Alderman Jordan moved to suspend the rules and go to the third and final reading.
Alderman Cook seconded the motion. Upon roll call the motion passed 7-0. Alderman
Rhoads was absent during the vote.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 7-0.
Alderman Rhoads was absent during the vote.
Alderman Jordan moved to approve the emergency clause. Alderman Cook seconded the
motion. Upon roll call the emergency clause passed 7-0. Alderman Rhoads was absent
during the vote.
Ordinance 4752 as Recorded in the Office of the City Clerk.
Razorback Road (Hwy 112) Widening Project: A resolution approving the sale of 3 parcels
of land (approximately 18,441 square feet total) to the Arkansas State Highway Commission for
right-of-way associated with the Razorback Road widening for a total purchase price of
$34,475.00.
Alderman Marr moved to approve the resolution. Alderman Jordan seconded the motion.
Upon roll call the resolution passed 7-0. Alderman Rhoads was absent during the vote.
Resolution 181-05 as Recorded in the Office of the City Clerk.
Gregg Avenue (Hwy 180) Widening Project: A resolution approving the transfer of 2 parcels
of land (approximately 12,614 square feet total) to the Arkansas State Highway Commission for
right-of-way associated with the Gregg Avenue Widening.
Alderman Marr moved to approve the resolution. Alderman Jordan seconded the motion.
Upon roll call the resolution passed 7-0. Alderman Lucas was absent during the vote.
Resolution 182-05 as Recorded in the Office of the City Clerk.
Amend 6 166.05 Large Scale Development (LSD): An ordinance to clarify that the
miscellaneous requirements for large scale developments found in § 166.05 (C) (6) and (7) also
apply to preliminary plats.
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the second reading. Alderman Marr
seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
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Alderman Jordan moved to suspend the rules and go to the third and final reading.
Alderman Cook seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 4753 as Recorded in the Office of the City Clerk.
ANX 05-1628 (Lamberth-Carlton): An ordinance annexing that property described in
Annexation Petition ANX 05-1628 for property located east of Deadhorse Mountain Road,
containing 13.00 acres.
Jeremy Pate gave a brief description of the annexation.
City Attorney Kit Williams read the ordinance.
Alderman Ferrell moved to suspend the rules and go to the second reading. Alderman
Cook seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to suspend the rules and go to the third and final reading.
Alderman Cook seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 6-2.
Alderman Reynolds, Thiel, Marr, Rhoads, Ferrell and Lucas voting yes. Alderman Cook
and Jordan voting no.
Ordinance 4754 as Recorded in the Office of the City Clerk.
RZN 05-1629 (Dixie Development): An ordinance rezoning that property described in rezoning
petition RZN 05-1629 for approximately 8.8 acres located at Lot 12 CMN Business Park,
northwest of the Van Asche and Mall Avenue intersection from R -O Residential -Office to C-2,
Thoroughfare Commercial
City Attorney Kit Williams read the ordinance.
Alderman Cook moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
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Alderman Cook moved to suspend the rules and go to the
Alderman Ferrell seconded the motion. Upon roll call the motion
City Attorney Kit Williams read the ordinance.
City Council Meeting Minutes
September 6, 2005
Page 21 of 23
third and final reading.
passed unanimously.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 4755 as Recorded in the Office of the City Clerk.
RZN 05-1696 (Stages): An ordinance rezoning that property described in rezoning petition
RZN 05-1696 for approximately 0.68 acres located at 2824 S School Avenue from C-2,
Thoroughfare Commercial to R -O, Residential Office.
City Attorney Kit Williams read the ordinance.
Alderman Reynolds moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to suspend the rules and go to the third and final reading.
Alderman Rhoads seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Ordinance 4756 as Recorded in the Office of the City Clerk.
ADM 05-1656 Adoption of the Downtown Master Plan Street Classification System: A
resolution amending the Master Street Plan and the General Plan 2020 to adopt the Downtown
Master Plan Street Classification System and cross sections as proposed by Dover Kohl and
Associates.
Alderman Marr moved to approve the resolution. Alderman Jordan seconded the motion.
A discussion followed on what boundaries the resolution includes.
Tim Conklin, Director of Current Planning: College Avenue, Archibald Yell, School Avenue
and Sixth Street west of School has been removed for a later discussion.
Alderman Jordan moved to amend the resolution to remove College Avenue, Archibald
Yell, School Avenue and Sixth Street west of School. Alderman Lucas seconded the
motion. Upon roll call the motion passed 6-2. Alderman Reynolds, Thiel, Rhoads, Ferrell,
Lucas and Jordan voting yes. Alderman Cook and Marr voting no.
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Daniel Hintz, Executive Director of Downtown Partners asked
items that were removed in a timely manner.
Upon roll call the resolution passed unanimously.
Resolution 183-05 as Recorded in the Office of the City Clerk.
City Council Meeting Minutes
September 6, 2005
Page 22 of 23
that the Council look at the
Adoption of §161.08 District RSFH-8: An ordinance amending Title XV: Unified
Development Code, of the Code of Fayetteville, to provide a new Residential Zoning District.
Alderman Thiel moved to table the ordinance indefinitely. Alderman Jordan seconded the
motion. Upon roll call the motion passed unanimously.
This ordinance was tabled indefinitely.
Amend § 166.08 Design Standards: An ordinance to amend § 166.08 Design Standards by
adding a new subsection to Section (F) Residential Lots.
City Attorney Kit Williams read the ordinance.
Alderman Reynolds moved to suspend the rules and go to the second reading. Alderman
Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to. suspend the rules and go to the third and final reading.
Alderman Ferrell seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed 5-3.
Alderman Reynolds, Thiel, Rhoads, Ferrell and Lucas voting yes. Alderman Cook, Marr
and Jordanvoting no.
Ordinance 4757 as Recorded in the Office of the City Clerk.
Steve Davis: The taxicab companies would like a motion toreconsider their item because
apparently I did not fully state their case. They also need an increase in the mileage rate
Alderman Reynolds moved to reconsider the ordinance. Alderman Ferrell seconded the
motion. Upon roll call the motion passed unanimously.
Brice Curry, Dynasty Cab gave a brief description of what they need in the way an increase.
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Tony Catroppa, Tony C Cab stated they needed an increase of the
increase from $1.50 to $2.10 per mile and a $2.00 pick up fee.
A discussion followed on the rates that are charged in other city's in the
City Council Meeting Minutes
September 6, 2005
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$1.00 surcharge and an
area.
Alderman Rhoads asked that we get some input from staff before increasing the mileage.
City Attorney Kit Williams: If you table this you have not done anything. The motion to
reconsider put this back before the Council at square one. Nothing has been passed at this point
in time the issue is now before you. If you table it the $1.00 surcharge will not be in affect. You
would need to pass this again just like you did the first time to keep the $1.00 surcharge in affect.
Alderman Ferrell moved to add the $1.00 surcharge. Alderman Marr seconded the
motion. There was no vote on the motion
City Attorney Kit Williams read the ordinance.
Alderman Ferrell moved to suspend the rules and go to the second reading. Alderman
Marr seconded the motion. Upon roll call the motion passed unanimously.
City Attorney Kit Williams read the ordinance.
Alderman Jordan moved to suspend the rules and go to the third and final reading.
• Alderman Marr seconded the motion. Upon roll call the motion passed unanimously.
Brice Curry gave the Council information on the cost of running his cab company.
Alderman Rhoads stated he has some questions about the increase. He stated he is concerned
about making that kind of increase without having adequate independent research by the City.
City Attorney Kit Williams read the ordinance.
Mayor Coody asked shall the ordinance pass. Upon roll call the ordinance passed
unanimously.
Alderman Marr moved to approve the emergency clause. Alderman Jordan seconded the
motion. Upon roll call the emergency clause passed unanimously.
Meeting • journed at 10:30 PM.
Dan Coody, Mayor
Sondra mith, City Cler r reasurer
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