HomeMy WebLinkAbout2007-10-09 - Agendas - Final aye evr le WATER/SEWER COMMITTEE AGENDA
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Meet+ne to of Se tefnbeF 1"��
Meeting Date was October 9,2007
COMMITTEE: Chairman Kyle Cook; Alderman: Lioneld Jordan, Bobby Ferrell, Adella Gray
COPY TO: Mayor Dan Coody, Sondra Smith, Gary Dumas, Paul Becker, Susan
Thomas, Tim Conklin, Jeremy Pate, Ron Petrie, hannon Jones, Tom
Hubbard, Peggy Bell, Lynn Hyke, OMI
FROM: David Jurgens, Water and Wastewater Director
A meeting of the Fayetteville Water and Sewer Committee is pl in ed for October 9,
2007, at 5:30 PM, in Room 326, Fayetteville City Hall, following t Agenda Session.
Proposed topics include:
1. Approve Minutes of the September 11, 25 and 27, 2007 Water/Sewer Committee
Meetings.
2. WSIP U date.
Contract Description Contractor Cost %Complete
WL-1 Porter—Hamestring & Old Wire—Gregg Oscar Renda $ 7,186,957 100%
WL-2 North St—Poplar—Gregg Gravity Line T-G Excavating $ 4,413,664 100%
WL-3 Porter—Hamestring & Old Wire—Gregg Combined contract with WL-1 100%
WL-4 Gregg Ave—Hamestring LS Gravity Line Oscar Renda $ 10,613,447 86%
WL-5 Force mains Hamestring—West Plant Garney Const $ 4,752,287 100%
WL-6 Hamestring Lift Station Brasfield & Gorrie $ 6,279,806 85%
WL-7 Gram Ave Lift Station Crossland Heavy $ 1,527,000 21.3%
EP-1 Noland Wet Weather Improvements Wilson Brothers $ 1,327,794 34.42%
EL-1 Mally Wa non Lift Station and Force Main Garney Const $ 1,393,880 NTP 150ct07
EL-2 Happy Hollow—Noland WWTP 42" Gravity Rosetta Const $ 10,431,995 NTP 150ct07
EP-2 Noland WWTP Renovation Archer Western $ 14,836,631 100%
EP-4 Noland WWTP Oxygen Injection BluelnGreen $ 66,460 67.0%
WP-1 b Broyles Road Construction Crowder Const $ 3,737,965 8.99%
BWD-1 Geos ntec Consulting Geos ntec $ 199,883 0.0%
WP-2b Wetlands Mitigation, WWTP Site Green Scaping $ 145,200 100%
WP&L BP West Side(WL-6 &WP-3) Backup Power PowerSecure $ 1,986,897 69.7%
WP-3 West Side WWTP Construction Brasfield &Gorrie $ 60,398,785 72.2%
This contract is being cancelled due to the natural restoration of the site. The overall completion
percentage for the wetland mitigation site, including berms, water control structures, etc., is 75%.
s This project is substantially complete, meaning the work can be used to execute its mission.
a. WSIP Farmington Area Work. Design and easement acquisition are under way.
Final review is underway for RLF loan closing.
b. WSIP Easement Update. Fifty-three tracts were required for pipelines EL-1 and
2; 44 have been acquired. Of the nine remaining, we have verbal agreement on one, and
believe two more will be completed within the next two weeks. These are not on the
proposed condemnation list. The owners of the remaining six tracts (four owners) have all
been contacted via mail, telephone, and/or in person, and are aware of the City's intent to
turn any unresolved easement purchases over to the City Attorney to initiate the
condemnation process on November 6, 2007They are identified in the attached
recommended condemnation list. An updated matrix and information packet is attached.
W&S committee agenda 80ct07-swj
c. Contract Legal Review- West Plant Construction Contract. Three statements
of qualification were received: (1) Williams & Anderson, PLC; (2) Cross, Gunter,
Witherspoon & Galchus, PC; and (3) Harrington, Miller, Neilhouse & Keiklak. The selection
committee is scheduled to meet on 9 October to evaluate the statements.
d. WSIP Construction Schedule and Cost Update will be distributed at the
meeting.
3. Sanitary Sewer Rehabilitation Proiect Update.
a. Basins 1-5, 18 & 19 Sewer Rehab. T-G Excavating, $2,514,292, including
Change Orders 1 and 2. Pipeline construction is complete at Doc Murdoc's. The paving of
the parking lot is being coordinated with the property owner.
b. Farmington Area. The dig and replace portion of the Farmington Sewer
Rehabilitation is 35% complete. The lining portion (Insituform) has been cleaned and
televised. The lining work is scheduled to be completed in November 2007.
4. 36" Water Line Improvements.
The work on the 36" water line within the Fayetteville city limits between Joyce and
Overcrest has been completed. Acceptance testing will be performed on October 10th and
11 th. The remaining work at the Hwy 412 site is scheduled to commence on October 15th
and be completed by year end.
5. Romine Defense Expense Budget Adiustment is being brought forward to the 16
October 2007 City Council meeting. Details are in the attached memo.
6. Water/Sewer Committee Meetings are proposed for (1) Water/Sewer Rate Study, to be
determined; and (2) general topics, Tuesday November 13, 2007, 5:15, room 326 (following
Agenda Session).
Attachments: Easement Condemnation Packet
WSIP Easement Matrix
Romine Defense Expense Budget Adjustment memo
WSIP Construction Schedule and Cost Update (To be distributed at meeting)
W&S committee agenda 80a07-swj
City Council Meeting of November 6, 2007
CITY COUNCIL AGENDA MEMO
To: Fayetteville City Council
Thru: Mayor Dan Coady
Water and Sewer Committee
From: David Jurgens, Water & Wastewater Director
Date: October 5, 2007
Subject: Approval of four resolutions authorizing the City ttomey to seek condemnation and
possession of certain lands owned by the individuals and/or organizations listed herein.
RECOMMENDATION
Fayetteville City Administration recommends approval of four related resolutions authorizing the
City Attorney to seek condemnation and possession of certain lands owned by the individuals and/or
organizations listed on the attached pages.
BACKGROUND
The City of Fayetteville has been negotiating with land owners for easements in which to install the
new sewer lines EL-I and 2 that will carry wastewater flows to the Noland Wastewater Treatment
Plant. Fifty-three tracts were required for pipelines EL-1 and 2; 44 have been acquired. Of the nine
remaining, we have verbal agreement on one, and believe two more will be completed within the
next two weeks. These are not on the proposed condemnation list. The owners of the remaining six
tracts (four owners) have all been contacted via mail, telephone, and/or in person, and are aware of
the City's intent to turn any unresolved easement purchases over to the City Attorney to initiate the
condemnation process on November 6, 2007. They are identified in the attached recommended
condemnation list.
DISCUSSION
The remaining land owners generally want to be paid more money than staff feels is reasonable and
appropriate, or simply refuse to communicate with the City. The City is paying full fee simple
prices for all easements for the WSIP, based on appraisals conducted within the twelve months prior
to the original offer being made. Given that we are only obtaining an easement, in all of these cases
adjacent to the existing easement for the existing 36" sewer main, and the owner still owns the land,
paying more than this is not reasonable. Full fee simple is significantly greater than the easement
payment offers made by the Highway Department, other utilities, and significantly exceeds that
which the City has paid in the past for water/sewer easements. The City generally offered 25% of
full fee simple. Counter offers have been made in several cases; owners have either not responded
or refused the counter offer. Counter offers have included negotiated agreements pertaining to land
restoration, sequencing and timing of work, etc. At this point, there can be no deviations on the
selected route.
BUDGET IMPACT
Costs for the easements and fees are included within the WSIP budget.
Attachments: List of Potential Condemnations
Location Map
WSIP East Line Esmnt CnAmn CCMemo OctO7.doe
WSIP East Line Easement Condemnation List
Map
Reference Description
1. Easement Acquired.
2. EL7—Tract 5
Owner: James A. Cole and Linda L. Cole
Permanent and Temporary Construction Easements across:
Parcel No. 126-10003-000, Located within Lot C of Jim Blackston Subd.
Offer Amount: $2,520 (PUE: $1,800 for 2,546 sq. ft.;TCE: $720 for 10,605 sq.ft.)
3. EU—Tract 10
Owner: Kathy Denise Ferguson
Permanent and Temporary Construction Easements across:
Parcel No. 001-1 0602-000, Located within NW-SW 17-16-29.
Offer Amount: No compensation offered. House located on our existing easement.
(Proposed PUE: 20,719 sq. ft.; Proposed TCE: 38,303 sq. ft.)
4. EL7—Tracts 18 & 19
Owner: Deloris Mae Tuck, Survivor of Franklin L. Tuck, Deceased
Permanent and Temporary Construction Easements across:
Parcel Nos. 001-10661-000 and 001-10647-000, Located within NW-SW 18-16-29
Offer Amount: Tract 18-- $728 (PUE: $364 for 990 sq. ft.; TCE: $364 for 9,898 sq. ft)
Tract 19--$1,760 (PUE: $962 for 2,620 sq. ft.; TCE: $798 for 21,700 sq. ft.)
5. EU—Tract 40 & 43
Owner: Gary Combs, Tract 40. Gary Combs, LLC, Tract 43.
Permanent and Temporary Construction Easements across:
Parcel Nos. 765-15268-101 and 765-24107-000, located within the N''/z 24-16-30, also
Known as Anderson Farm Plat AND Pt Section 23-16-30
Offer Amount: Tract 40 --$625(PUE: $300 for 2,577 sq.ft.;TCE: $325 for 28,180 sq. ft)
Tract 43 -- $700 (TCE ONLY 61,486 sq. ft)
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C.9
Romine Lawsuit Insurance Deductible
City Council Meeting of October 16, 20OTage 2 or s
CITY COUNCIL AGENDA MEMO
To: Fayetteville City Council
Fayetteville Sewer Committee
Thru: Mayor Dan Coody
David Jurgens, Water and Wastewater Director
From: Peggy Vice, Purchasing Manager
Date: 28 September 2007
Subject: Romine Lawsuit Insurance Deductible
RECOMMENDATION
Council approval of a resolution to pay expenses associated with the defense of David Jurgens,
Water and Wastewater Director, in all actions pertaining to the Romine lawsuit regarding the sewer
issues at 11 Trenton.
BACKGROUND
Ms. Romine sued the City of Fayetteville in June,2005,primarily for inverse condemnation.
Shortly before the trial was scheduled in 2006,Ms. Romine amended her complaint by alleging
more claims against the City and sued her neighbors also. In October, 2006, she amended her
complaint again and, after several legal actions,added David Jurgens as a"separate defendant."
David was forced at this point to retain Mr. Don Taylor as personal defense, as it seemed clear he
was being sued as a separate party, rather than in his official capacity, even though all actions
relating to this case were clearly related to his official capacity as a City employee. In arguments in
a Motion For Summary Judgment on September 12,2007,the Plaintiff, after questioning by the
Judge, informed the Judge in open Court that David was only being sued in his representative
capacity. This finding was memorized in the Court's Order denying David's Motion for Summary
Judgment.
This case,including the defense of both the City and David Jurgens, was referred to Scottsdale
Insurance, our carrier at the time of the incident. After much discussion and time delay, Scottsdale
finally agreed, in June, 2007,to handle the case. This decision came well after David had to hire an
attorney,so Scottsdale did not have any influence on the attorney selection.
DISCUSSION
As the Plaintiff has now unequivocally stated and the Court has recorded that David is being sued
solely in his capacity as a City of Fayetteville employee,it is fully appropriate for the City's
insurance to cover the case, leaving the City responsible for the$50,000 deductible. It appears,with
the current status and the complexity of this case,that the full $50,000 will likely be spent.
BUDGETIMPACT
This action was neither anticipated nor budgeted. The$50,000 insurance deductible is properly a
water/sewer expense. A budget adjustment is attached transferring funds unspent for Farmington
sewer rate refunds.
Jurgens Romine Defense CCMemo W07
C.9
FAYETTEVILLE Romine La Deductible
age 5 of 6
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST,CPPY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Dan Coody, Mayor
City Council
FROM: Kit Williams, City Attorney
DATE: October 1, 2007
RE: Defense costs in the Romine case
A year and a half into the Romine v. City of Fayetteville case, the
plaintiff filed a Third Amended Complaint that added David Jurgen as
a "separate defendant" and added a new civil rights claim against both
David and the City. The previous claims of inverse condemnation and
negligence were not covered by any insurance so I had provided full
defense and litigation efforts for the City (as I have in all of the other
successfully defended inverse condemnation or negligence cases).
When civil right cases (excessive force, wrongful arrest, etc.) are
filed against our police, our insurance company supplies defense
counsel with whom I cooperate and assist. We have been 100%
successful in all these (mostly frivolous) civil rights cases. Thus, I
notified our insurance company when the civil rights claim was first
lodged. At first the company appeared ready to take over the claim, but
later declined coverage. I disagreed with this decision, but went ahead
and defended the City and David on these civil rights claims (as well as
everything else).
Initially I was able to get the complaint and summons against
David quashed on procedural grounds. Plaintiff then worked through
the proper procedure and brought David in as a separate defendant. I
agreed to represent David through the filing of a Motion To Dismiss
which I hoped would result in dismissing the case against him. When
C.9
Romine Lawsuit Insurance Deductible
Page 6 of 6
this was not successful, I recommended David retain private counsel
(which should be paid for by the insurance company or City because he
was sued for doing his job). Since David could argue certain defenses
(such as he was following directions from City supervisors) that I could
not make for the City, he needed separate counsel. Our insurance
company was still denying coverage.
Our insurance broker continued to press the matter with our
insurance company which finally partially agreed it had coverage for
this claim. By then it was too close to trial, so I suggested to the
insurance company that we continue with David's lawyer, Don Taylor.
Don Taylor of the Davis firm has proven to be a hard-working,
conscientious and effective litigator. When his Motion For Summary
Judgment was denied shortly before trial, David Jurgens decided to
appeal the denial of his statutory immunity. I needed to join the appeal
for the City for procedural reasons.
The budget adjustment requested is needed to pay for Mr.
Taylor's expenses and fees to date and to fund the appellate costs, plus
additional pre-trial costs including the judge's recommended mediation
scheduled for December. Any expenses in excess of our $50,000.00
deductible should be paid by Scottsdale (although we still might have
to fight Scottsdale over this). I recommend passing the budget
adjustment as proposed.
i
C.9
Romine Lawsuit Insurance Deductible
Page 3 of 6
RESOLUTION NO,
A RESOLUTION TO APPROVE A BUDGET ADJUSTMENT
IN THE AMOUNT OF$50,000.00
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves
the attached Budget Adjustment for legal expenses incurred in the Romine case.
PASSED and APPROVED this 16t" day of October, 2007.
APPROVED: ATTEST:
By: By: -
DAN COODY,Mayor SONDRA E. SMITH, City Clerk/Treasurer
City of Fayetteville,Arkansas s
Budget Adjustment Form Romine Lawsuit Insurance Deductible
6
Budget Year Department: Water and Wastewater Date Requested Adjustment Number
2007 Division: Water&Wastewater Director
Program: Water&Wastewater Director 928/2007
Project or Item Added/Increased: Project or Item Deleted/Reduced:
Legal expenses line item to cover the insurance Farmington Sewer Rate Refund.
deductible for the case in which the City is being sued by
Ms. Romine, 11 Trenton, regarding sewer issues.
Justification of this Increase: Justification of this Decrease:
These funds are required to cover the insurance Over$200,000 remains in this budget line, all refund
deductible for the case in which the City is being sued by requests had to be submitted by 30 September 2007 to
Ms. Romine, 11 Trenton, regarding sewer issues. receive this refund.
Increase Expense Budget(Decrease Revenue Budget)
Account Name Account Number Amount Project Number
legal services 5400 1800 5314 01 50,000
Decrease Expense Budget(Increase Revenue Budget)
—_-__— -Account Name _ — Account Number Amount _ Project Number
Sewer Rate Refunding_ _ 5400 1840 5311 10 — 50,000 07022 1_
A royal Signatures - Budget Office Use Only Type: A B C D E
Requested B Date
- - _..-- - -------------
a —Y---- -- —�-- `v�
u g t nager Date Posted to General Ledger
--- ------
�p�- Initial Date
Depa ent rector Date' Posted to Project Accounting _ ___ __
Initial Date
_ 'a. Q —q_A e
Fi ne &Internal Services Director Date Entered in Category Log
Date__
Initial
Mayor Date