HomeMy WebLinkAbout202-04 RESOLUTION• •
RESOLUTION NO. 202-04
A RESOLUTION TO RECOMMEND THE APPROVAL
OF THE LEGISLATIVE PACKET OF THE CITY OF
FAYETTEVILLE
WHEREAS, the City of Fayetteville, Arkansas would like to work with and have
the support of our local state delegation: State Senator Sue Madison and Representatives
Marilyn Edwards, Lindsley Smith and Bill Pritchard; for passage of the six items in the
City's Legislative Packet; and
WHEREAS, the City Council concurs that these proposed amendments and
changes to state law would be beneficial to Fayetteville and the State of Arkansas as a
whole.
NOW, THEREFORE, 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
endorses and recommends the passage of the Legislative Packet (attached as Exhibit A)
and requests the cooperation, support and advice of our state legislative delegation in
sponsoring and promoting these changes.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
invites our local state legislative delegation including: Senator Sue Madison,
Representative Marilyn Edwards, Representative Bill Pritchard and Representative
Lindsley Smithy to meet with the City Council and Mayor at a convenient time before the
start of the legislative session to discuss these proposed changes to state law and others
that might be proposed.
PASSED and APPROVED this 71h day of December, 2004.
ATTEST:
,,,,,aunurr
r\���G VT O�•SG,p�%
U• •/3
: FAYETT EVI LLE •
'a9s•9:QKANg; •\ta'_
i<14/06T01.4 G�•``•
BY:kom Y�1Mz' -/ovtakt
DRA SMITH, 1 y Clerk
By:
APPROVED:
DAN COODY, Mayor
NAME OF FILE:
CROSS REFERENCE:
Item #
Date
•
Resolution No. 202-04
Document
•
1
12/07/04
Alderman Agenda Request Form
2
draft
resolution
3
memo to mayor, City Council & staff
4
copy of legislative packet
5
memo to Kit Williams
6
7
8
9
10
11
12
13
14
15
16
NOTES.
ALDERMAN AGENDA REQUEST FORM
FOR: COUNCIL MEETING OF DECEMBER 7, 2004
44S
/z/7/60
thiatha
ackci-
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A Resolution To Recommend Approval Of The Legislative Packet Of The City Of Fayetteville
APPROVED FOR AGENDA:
g(
City Attorney
11-22 -O'
Date
• •
RESOLUTION NO.
A RESOLUTION TO RECOMMEND THE APPROVAL
OF THE LEGISLATIVE PACKET OF THE CITY OF
FAYETTEVILLE
WHEREAS, the City of Fayetteville, Arkansas would like to work with and have
the support of our local state delegation: State Senator Sue Madison and Representatives
Marilyn Edwards, Lindsley Smith and Bill Pritchard; for passage of the six items in the
City's Legislative Packet; and
WHEREAS, the City Council concurs that these proposed amendments and
changes to state law would be beneficial to Fayetteville and the State of Arkansas as a
whole.
NOW, THEREFORE, 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
endorses and recommends the passage of the Legislative Packet (attached as Exhibit A)
and requests the cooperation, support and advice of our state legislative delegation in
sponsoring and promoting these changes.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby
invites our local state legislative delegation including: Senator Sue Madison,
Representative Marilyn Edwards, Representative Bill Pritchard and Representative
Lindsley Smithy to meet with the City Council and Mayor at a convenient time before the
start of the legislative session to discuss these proposed changes to state law and others
that might be proposed.
PASSED and APPROVED this 7th day of December, 2004.
ATTEST:
By:
SONDRA SMITH, City Clerk
APPROVED:
0%111'F
By:
DAN COODY, Mayor
FAYETTEVII.LE
THE CITY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
A A
LEGAL DEPARTMENT
TO: Dan Coody, Mayor
City Council
Hugh Earnest, Chief Administrative Officer
Steve Davis, Finance & Internal Services Director
Peggy Vice, Purchasing Manager
FROM: Kit Williams, City Attorney
DATE: November 4, 2004
RE• Proposed Legislative Packet
Mayor Coody, Chief Administrative Office Hugh Earnest and others
have discussed the idea of our City presenting to our local state
representatives and senator a short Legislative Packet for proposed
amendments to state law. I have prepared a proposed Legislative Packet in
consultation with Purchasing Officer Peggy Vice, CAO Hugh Earnest and
Finance Director Steve Davis. This packet is attached.
If passed by the Arkansas Legislature, these proposed amendments to
existing law would:
(1) protect cities from illegal exaction lawsuits by using the same
uniform publication requirement for ordinances as found elsewhere
throughout the Arkansas Code;
(2) Allow cities to cooperate, coordinate and contract with
universities and other governmental agencies more efficiently;
(3) Create uniform statutory bidding requirements for all cities and
towns above a more realistic monetary level;
• •
(4) remove contradictory statutory language to ensure cities may
legally assist state colleges and universities within their community; and
(5) ensure cities can legally regulate the fees charged by local towing
companies for nonconsensual tows to eliminate arbitrary and unreasonable
fees charged to some citizens;
(6) remove an inconsistency within the sales tax statutes so that
newly taxable "collection and disposal of solid wastes" A.C.A. §26-52-316
(a)(2) is not exempted by old language in A.C.A. §26-52-301 (2).
There are obviously many more concerns or proposals for possible
amendments or new laws that could be presented. * However, the City
should keep its requests down to a management number of fairly clear and
needed proposed changes. If any of these possible proposals are
objectionable, unclear or undesirable, please let me know so changes,
substitutions, additions, or deletions to the Legislative Packet can be made.
Once the Mayor and City Council are in substantial agreement about
he Legislative Packet, I believe we should pass it by Resolution and then
schedule a meeting with our local delegation to present it to them, express
any concerns about the other proposed legislation and generally attempt to
increase the cooperation and coordination between the City and our local
state representatives.
* Mayor Coody may in coordination with the Municipal League propose an
extensive new anti -litter law. Such a major and detailed bill should be the
focus of a separate discussion apart from this Legislative "Clean-up" Packet.
• •
LEGISLATIVE PACKAGE
of the City of Fayetteville
The City of Fayetteville requests its local state representatives and
senators to sponsor the following bills or changes to state statutes:
(1) A.C.A. §14-55-206 Publishing or posting requirements.
The publication requirements for county ordinances and virtually
every other statutory municipal publication requirement to provide public
notice to citizens is that notice "be published in a newspaper of general
circulation in the city." Unfortunately in 1993, this language was changed in
§ 14-55-206 Publishing or posting requirements for publication of city
ordinance to a "newspaper published in the municipality."
This change can create substantial dangers for cities which might
mistakenly believe a newspaper of general circulation is published in their
community. If a tax ordinance, bond ordinance, or water or sewer rate
ordinance is inadvertently published in a non -qualifying newspaper (because
it technically is not "published" in the town), the ordinance would be
invalid. If no paper is published in a small city or town, the city cannot use
a newspaper of general distribution in the city, but must post the ordinance
in five previously designated areas. A "publication" mistake invalidates an
ordinance and could cost cities millions of dollars. {Fort Smith had to repay
• •
two companies $800,000.00 for failing to publish a sewer rate ordinance
properly. City of Fort Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W. 2d
96 (1987).}
This statutory publication requirement is designed to notify the
citizens, not reserve business for a locally published newspaper. Requiring
publication in a newspaper of general circulation in the community ensures
such public notice and would be much easier to defend in Court than the
stricter (and tricky) term "published".
Does "published" mean it must be printed in town? Is it enough that
the newspaper is fully composed in town even if printed elsewhere? Must a
newspaper have most of its reporters, sales personnel, departments,
editors, etc. in town, or just some? What if the newspaper is just a local
edition of a larger paper? Cities should not have to risk landing in Court
and facing an unanticipated answer to those questions which could
invalidate a water or sewer rate ordinance or a sales tax or bond ordinance.
Annexations and rezonings might not be lucrative targets, but all ordinances
would be invalidated by a successful court challenge to an ordinance
generating enough revenue to put a few hundred thousand dollars in class
action attorney's pocket.
2
• •
The current requirement to put a notice in a "newspaper published in
the municipality" might often mean no newspaper publication at all since
many smaller cities have no newspaper actually published in town even
though they are served by a newspaper published close by and in general
circulation in their community. Technically, all those towns should post all
ordinances rather than publish them in the local paper. Publishing them in a
newspaper in general circulation in the city would provide better notice to
the citizens than posting them in five locations, but would not be statutorily
authorized and would render such ordinances invalid.
A.C.A. § 14-55-206 (a)(1)(A) should delete "published" and replace
it with "of general circulation" in the municipality. This will provide
better notice to citizens and prevent illegal exaction cases for mistakenly
published ordinances.
(2) §19-11-251 Intergovernmental use of commodities or services
now reads:
"Any public procurement unit may enter into an agreement,
independent of the requirements of §§ 19-11-204, 19-11-228
— 19-11-240, and 19-11-263 which refer to source selection
and contract formation, and §§ 19-1 1-205, 19-11-242, and
19-11-243, which refer to commodity management, with any
other public procurement unit ...."
This language is contradictory to A.C.A. § 14-58-303 which requires
bidding for any contract over $10,000.00 unless waived by ordinance for
3
• •
"exceptional circumstances where this procedure is deemed not feasible or
practical."
Fayetteville would like to make this exemption for bidding
requirements of government to government procurement contracts refer
specifically to A.C.A. §14-58-303 and §19-11-801 — 806. Please insert
after "source selection and contract formation," the following:
114-58-303 which refers to purchases and contracts
generally, §19-11-801 — 806 which refer to procurement
of professional services,"
This change would clearly allow Fayetteville to contract for services
from the University of Arkansas without the public, sealed bidding
requirements of §14-58-303 and without possible problems with §19-11-801
— 806 if any of the services might be deemed legal, engineering,
architectural, or other "professional" type of service.
(3) §14-58-303 Purchases and contracts generally now reads:
"In a city of the first class, where the amount of
expenditure for any purpose or contract exceeds the sum
of ten thousand dollars ($10,000.00), the mayor or the
mayor's duly authorized representative shall invite
competitive bidding thereon by legal advertisement
in any local newspaper."
The statutory requirement for public bidding on contracts for first
class cities should be raised from $10,000.00 to $25,000.00. This statute
4
• •
now allows second class cities and towns to provide by their own ordinance
their own "procedure for making all purchases," (emphasis added)
regardless of amount. So second class cities and towns do not have to
follow formal statutory bidding procedures (advertising, sealed bids, etc.)
even for a $150,000.00 contract while first class cities must formally bid
contracts in excess of $10,000.00. It seems unifying the statutory
requirements for all towns and cities and raising the amount to $25,000.00
for required statutory bidding procedures would be reasonable.
(4) §14-58-504 Financial Aid to state colleges and universities.
This statutory provision is in conflict with A.C.A. §14-58-505
Financial Aid because subsection (c) of § 14-58-504 requires financial
support to "be paid out of donation or gifts received by the city ...." No
such limitation is found in §14-58-505. Since cities rarely receive
generalized gifts, subsection (c) thwarts the legislature's intent to allow
cities to aid local colleges.
In order to harmonize these two statutes, the first line of (c) should be
deleted.
"The financial aid granted and paid to the state -supported
college or university shall be paid out of donations or gifts
received by the city or town for general purposes."
5
• •
This change will harmonize this statute with the following statute that
contains no limitation on where the revenues to assist colleges and
universities must come from. Without this change, a city wishing to aid a
state college pursuant to A.C.A. § 14-58-505 could be legally challenged if
the city did not comply with Section 504 (c) also (since all statutes are
supposed to be read together and harmonized, if possible).
(5) A.C.A. §14-43-609 Public Utilities and carriers.
Although nonconsensual towing of parked cars from private property
can probably be regulated pursuant to A.C.A. §14-57-201, specific inclusion
of "Vehicle towing companies for nonconsensual tows and storage fees," as
number (6) in § 14-43-609 would clear up any ambiguity that might now
exist. Many citizens and visitors have complained about the inconsistent,
arbitrary and exorbitant towing and storage fees charged by towing
companies for nonconsensual tows from private parking lots. Cities need
the right to set reasonable, maximum fees for nonconsensual tows and
storage charges which would not only fairly compensate tow companies, but
protect citizens whose car or truck was properly towed, but who should not
have to pay arbitrary and unreasonable tow and storage fees. We ask that
the legislature add a new subsection (6) as follows:
6
• •
"(6) Vehicle towing companies for nonconsensual tows and
storage fees."
This regulation would have no effect on fees agreed upon by a person
desiring or requesting his or her vehicle be towed. Citizens and towing
companies would retain the full legal right to agree to whatever fee they
desire for a consensual or requested tow.
(6) A.C.A. §26-52-301 (2) Tax levied.
The legislature amended A.C.A. §26-52-316 Services subject to tax
by adding "Collection and disposal of solid wastes." However, the Arkansas
Legislature did not remove the exception from sales tax granted to
"sanitation or garbage collection services" found in A.C.A. §26-52-301 (2).
In order to remove this inconsistency and any argument that the sales tax on
collection and disposal of solid wastes could be invalid, subsection (2)
should delete "sanitation or garbage collection services" so the new (2)
would be as follows:
"(2) Natural or artificial gas, electricity, water, ice,
steam, or any other utility or public service, except
transportation services and sewer services."
7
1
aye evl e
ANKANSAS
City Clerk Division
113 West Mountain
Fayetteville, AR 72701
Telephone: (479) 5754323
Fax: (479) 718-7695
city_clerk@ci.fayettevi I le. a r.us
1 DEPARTMENTAL CORRESPONDENCE
To: Kit Williams
City Attorney ,�gQ
From: Clarice Buffalohead-Pearman'�'"
City Clerk Division
Date: December 13, 2004
Re: Res. No. 201-04
The City Council passed the above resolution, December 7, 2004, approving the legislative
packet. I have attached a copy of the resolution recognizing that decision.
The resolution with attachments will be recorded in the city clerk's office and microfilmed. If
anything else is needed please let the clerk's office know. Thanks.
/cbp
attachments
cc. Internal Auditor