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