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MIN CC 10/06/1987CITY COUNCIL MINUTES OF OCTOBER 6, 1987 BOOK "0" PAGE 954 MINUTES OF THE HUNTSVILLE CITY COUNCIL MEETING HELD ON THE 6TH DAY OCTOBER, 1987 IN THE CITY HALL COUNCIL CHAMBERS, LOCATED AT 1212 AVENUE M, IN THE CiTY OF HUNTSVILLE, COUNTY Of WALKER, TEXAS, AT 6:15 P.M. The Council met in • regular session with the following members present: Jane Monday, Mayor 0. Eugene Barrett Gary Bell Jim Carter Ila G. Gaines William B. Green William L. Hammock Percy Howard, Jr. Bill Knotts City Officers Present: Gene Pipes, City Manager Scott Bounds, City Attorney Ruth DeShaw, City Secretary EXECUTIVE SESSION The Council convened into format session and then recessed to an Executive Session to consider pending litigation: Date Schaper v. City of Huntsville. No other items were discussed in this session and no formal action was taken with regard to the discussions. CONVENE FOR CITIZEN INPUT /INQUIRY SESSION Mr. Robert Vann Mr. Vann advised he is here to follow -up his request of soap four weeks ago germane to the use of city facilities by private organizations in order to insure and clarify that certain important issues regarding such use had, indeed, been addressed by the City; namely, the use of the city's swimming pool by the YMCA. Mr. Scott Bounds, City Attorney, stated the Council requested he advise than regarding the legality of the YMCA (a non- profit corporation) in the use of city facilities. He then recited the First Amendment of the U. S. Constitution which provides that Congress shall make no law respecting an establishment of religion and that Congress shall make no law prohibiting the free exercise hereof. He said these two clauses of the First Amendment established the clause of the free exercise to build a well of separation between church and state. He said the provisions further apply to any action of the City of Huntsville, as an entity of the State of Texas, because of the 14th amendment of the U. S. Constitution. Similarly, the Texas Constitution has a bill of rights separating church and state functions. He said he assumes that the state provisions will be interpreted generally along the same guides as federal law, . although there is a law between church and state, the law is not so fine that occasionally the church and state do not see each other. He said the City regulates a church building through building, fire, plumbing code, etc. The City has contractual relationships with churches through garbage, utility services, and the city provides general municipal services to churches such as police and fire service. Henceforth, he said, the church is a member of the community which may interact with the city in its daily affairs. The question, he said, is whether or not a contract with the "Y" for the use of the city's facilities falls • CiTY COUNCIL MINUTES OF OCTOBER 6, 1987 BOOK "O" PAGE 955 within the ends of an action prohibited by the First Mienclsent- -the general concern expressed four weeks ago. Mr. Bounds said the U.S. Supreme Court has adopted a three part test to determine whether a governmental act violates the establishment clause. The action in question must reflect a clearly secular,legislative purpose; secondly, the action must have a primary effect that neither advances nor limits religion; and finally, the action must avoid excessive government entanglement with religion, he said. Generally, the judicial application of this test has been applied to school education type cases. Whether or not a city may use a police department to protect children going to church schools- -which it said the city may. Whether or not we may use tax-raised funds to pay bus fares of parochial school systems- -the court says you may. Whether or not we may use the school premise for religious instruction of classes- -the court says we cannot. In the absence of precise judicial precedent, that is because there are no particular cases dealing with a city contracting with an entity to conduct the type of program of which we are now speaking, he would then offer the following observation with regard to the first test. It would appear that the development of a swimming program, as a general parks and recreation activity, is a clearly secular and judicial municipal function. Secondly, he said, the use of city facilities to promote a swimming program, even if the program is operated or encouraged by religious organizations, will have a primary effect that neither advances nor prohibits religion. Finally, he noted, the contractual relationship between the City and the "Y" will not necessarily involve such significant monies or other administrative assistance that it would foster excessive entanglement prohibited by the court's judicial test. He said he assumes and he will advise that the contract specify that no religious instruction occur during the swimming program and that participation in the program be open to "Y" and non - "Y" members on an equal basis. With those general caveats or restrictions, he would assume that a contract could be drafted with the YMCA, which would permit it to use or operate a swimming program at a city facility, and which contract would not involve a violation of the first amendment. Councilmember Bell noted Mr. Vann`s concern is not so much with the church -state relationship, but rather "if we give a private entity access to the swimming pool, does that open it to any private entity that wants to use it ...a boy scout troop that wants a life saving course to be offered...do we have to provide...in the middle of the winter..." Mr. Bounds said there is no requirement that just because we enter into a contractual relationship favorable to the city that we enter into a contractual relationship with everybody else on the same terms and conditions. He said the city selects different private contractors to provide numerous services on an exclusive basis. Councilmember Bell said we are providing a structure in this case - -a facility. Gene Pipes, City Manager, advised we do the same thing for the baseball, soccer, and little dribblers - -all private organizations. Mr. Bounds noted the city contracts with the baseball league, which is a private organization, to operate the baseball program at a city park for the city. Because we contract with them, we don't have to contract with any other private organization that comes along. Councilmember Carter said the city is definitely assisting and maybe subsidizing the "Y's" program just by having the fixed structure already in place. He said he is not objecting to this, but the city would, in effect, be subsidizing this organization to this extent. Councilmenber Green asked for clarification on who will use the services of the "Y' while under contract with the city and if this participation is limited to "Y" only members, or open to all; similarly, can anyone play in the baseball program if they do not first sign up. Mr. Bounds said the "y" will have a fee for members and a fee for non- members. He said participation costs generally cover liability insurance costs, etc. He said whatever fee is charged to participate in their program at the pool should be the same for members and non - members. • • CITY COUNCIL MINUTES OF OCTOBER 6, 1967 BOOK "O" PAGE 956 Councilmember Green said one would have to be s member in order to be able to vote, however. Councilmember Carter hoped the contract will address "no exclusivity," so the facility is available for city residents outside the "Y." Mr. Pipes said the "Y's" program is now over for the summer because of the cool weather. He said the idealism of the initial approach from the "Y" was to run this program for a good deal further into the fell and this simply has not penned out. He said he does not know what this program will do, but for right now, this particular issue is over. Mr. Pipes said the city has had merry requests from the boy scouts and they have conducted life saving classes at the pool, etc., so the offering of the facility is consistent and other..groups with special interest have used it from time to time. Mr. Vann said his mein thrust was not the First Amendment concerns, but equal access because the citizens of Huntsville paid for the construction of the pool and the facilities where the pool is located. He said he met with the "Y" Director who said in addition to breaking even, it would also be considered that pert of their expenses would be a payment of a salary of a director, pert of the payment of their utility bill at their office, the rental of that office space, and various other costs that the "Y" incurs. He said it seems that we are giving then a license to run and control a city facility. As was mentioned, there would be a different price paid by members of the "Y" as opposed to the non - members of the "Y" and that the non- members are equally taxpayers and if they want to join the organization, that is fine. He said the boy scouts may have used the facility in the past, but they did not use it when the "Y" was in control of it. He was interested to know if the contract will reflect that these other agencies will have equal access at identical costs or use fees - -is there something for then that the "Y" will be responsible for damages that are done --whet is the insurance liability - -who is going to bear the cost of that. He said these questions represent what he wants to know, not only for this use, but just as a general guideline for the Council to consider now and with future contracts. What are we as citizens going to be obligated to if we start letting special interest groups, not just the YMCA (and he thinks they are great), but we need to address this matter just as a general principal, no matter if it is the YMCA or the Hell's Angels- -are we going to grant equal access on equal terms, and if not, how are we protecting ourselves in terms of liability insurance, damage, etc.? Mr. Bounds said liability and insurance problems are addressed as a matter of course in almost every contract presented to the Council and it is addressed by our own insurance policies. He said the equal access is his concern --if it is structured as a contract for services and the YMCA is to conduct a swimming program, then what we want to guarantee equal access to is the swimming program, just as we contract with an organization to conduct the baseball program, we want equal access to participate in the baseball program, not that every organizatian can run their own baseball program but just that anyone who wants to play baseball can participate in the program we decide or organize or sponsor through a specific agency --that they have equal access to that, which can be addressed by contract. This would have to be spelled out by the contract, just as we do in the besebell contract and he envisions it would be very similar to the baseball type contract. Councilmember Carter asked if the baseball, softball and soccer leagues returned any money to the city for utilities or upkeep and maintenance. The city responded that no money is returned to the city for these services. Mr. Pipes noted, however, the league participated in the construction of an additional field. Mr. Bounds said the concession stand at the baseball field is operated as a pert of the contract and the money generated by the concession agreement, the city has specified how those cronies can be spent, so that money is turned beck into the program. Mr. Bounds noted, however, that whatever program is sponsored, it would have to have the same fee for members as for non - mashers. Mr. Bounds said he would 3 CITY COUNCIL MINUTES OF OCTOBER 6, 1987 B00K "0" PAGE 957 envision the contract would state that the City will prohibit any charges being made to the city's property without its express written consent and that the Council approve any changes made, in advance, and that the Council determine what would happen after those changes were made. Mayor Monday noted the Council will have an opportunity to review all of this again if the "T" decides they would like to have an additional contract and additional usage of the pool for our approval. Councilmember Carter said it is his understanding the "Y" would make more money off of the swimming program than they need to run it and he didn't thin* the other leagues using city facilities really intend to fund their offices or pay their salaries, etc. with the money they make and this bothers him to some extent. He saidthe city may be subsidizing the "Y" beyond the swimming program in other activities as well if they are making a profit. He said we'll have to take a hard took at this if it comes up for consideration. REGULAR SESSION Mayor Monday call the formal session to order. The invocation was presented by Reverend Kathy Pigg of the Wesley Foundation. CONSIDER THE MINUTES OF THE PREVIOUS MEETINGS Councilmember Barrett made the motion to approve the minutes of the meetings of September 19, 22 and 30, 1987 and Councilmember Hammock seconded the motion. All were in favor of the nation and it passed unanimously. CONSIDER BIDS Consider bid for the annual tire contract to Len George Firestone in the amount of S7.242.93 to be inventoried and charged to the user division. as budgeted Mr. Gene Pipes, City Manager, advised this bid is to be awarded on an all or none basis and is effective from October 1, 1987 through September 30, 1988. He said it will be for the Garage Tire Inventory and tires will be charged to the user division as used from this inventory. He then recommended the Council approve the low bid-submitted by Len George Firestone of Huntsville in the amount of 57,242.93, the lowest of the three bids received. Councilmember Howard made the motion to accept this bid as recommended and Councilmember Bell seconded the motion. All were in favor and the motion passed unanimously. Consider purchase of expanded computer system equipment for the Design Engineering Department to Hewlett Packard in the amount of $57.633.70 as a single source for compatible equipment and budgeted in FT 1987 -88. Mr. Gene Pipes, City Manager, advised this is a single source proposal from Hewlett Packard for HP Series 9000 Model 350 Computer; 571 MB Fixed Disc Storage; tape drive backup system; two additional graphics display terminals; and related peripheral equipment. He recommended approval of this proposal in the amnount of 557,633.70, noting this system is budgeted in the (987 -88 budget year and delivery will range from eight to fourteen weeks. He noted there is a discrepancy in the amount needed and that which was actually budgeted, noting that there was an 18X discount on this equipment, but that over time, the 18% was deducted twice from the budgeted figures, and now we find we are some 57,633.70 short, however, two - thirds of that comes out of the utility fund capital construction which is the mein benefactor of this computer expertise y CITY COUNCiL MINUTES OF OCTOBER 6, 1987 BOOK 40" PAGE 958 snd this fund is healthy enough to support this and the capital construction and the reserve in sanitation funds are similarly in position. He was not sure of the fund balances in the unallocated reserve for general fund. Mayor Monday asked that we go beck and look at the proportional split there and look at the reserve funds and then take a look at capitalizing additional dollars here and how that would be ratioed among them which may help us make a decision on the added expenditure. Patricia Allen, Director of Finance, advised the funds would not have to necessarily come from the reserve funds in the operating account, but they could come from the reserve funds in the capital improvements fund which has sufficient funds. Mayor Monday indicated she would like to know what is the appropriate ratio there. Councilmember Green noted he finds some of the equipment out of line as far as costs are concerned. He asked if lesser expensive equipment might be substituted where it can be to cut down these costs, rather than having every piece of this system a Hewlett Packard, noting there may not have to be a single source for the cable, terminal, and every component; i.e., S700 for a table and S1,700 for terminal. Mr. Isbell said the table is an optional thing, but is a particular cabinet that this system fits in and it is made for that particular machine. Councilmember Green felt there are other comparable cabinets that are not 5815.00 that this thing can set upon. He realizes that the processor is locked in to HP, but there may be other parts of this purchase that are not locked in and tould be purchased elsewhere. He said any time we get toe single source and they know it, we are in trouble. He said he hopes we will never get into a situation again where we lock ourselves into a single source vendor. Mr. Pipes noted when we first purchased the Hewlett Packard equipment, there simply was not anyone else, except for Wang, who offered the type of capability we needed and at that time, Wang was getting out of the engineering field and getting into the business field; therefore, HP had someiat of a corner on the market. Councilmeeber Green said while he does not went to hold up the purchase of this equipment, he is interested to have some checking done to see if some of this equipment, such as monitors, tables, etc., can be purchased from someone other than HP, especially with the knowledge that we may be looking at adding as many as ten additional monitors in the future,so that we may realize some savings along these lines. Mr. Isbell felt the monitors may have to be HP because of the software applications. Mr. Pipes felt the cabinets included in this bid are probably very unit specific. Mr. Pipes advised the unallocated funds in the capital CIP for sanitation has (137,125 reserve; water and sewer has 5707,261 in capital CIP unallocated funds; and general fund has $125,000 in its cumulative total remaining in the general fund capital program. He said the split would be 67% for water and sewer; 3% for sanitation; and 30% for general and there are sufficient fads in each of the capital accounts to cover the additional $7,633.70. After some further discussion for clarification, Mayor Monday asked if the Council agrees Mr. Isbell should go beck to investigate alternate equipment and prices; or approve this item with the stipulation that he go back to see if he can get alternate pieces of equipment at a reduced cost. Councilmember Knotts made the motion to approve of the purchase of expended computer system equipment for the Design Engineering Department to Hewlett Packard in the amount of S57.633.70. to be split out among the departments as noted above. conditioned on the stipulation that Mr. Isbell seek alternate equipment and prices where feasible concerning compatibility. Councilmember Barrett seconded the motion. , All were in favor and the motion passed unanimously. Mayor Monday asked Mr. Isbell to get a report back to the Council concerning his actions on the stipulation in this motion. CITY COUNCIL MINUTES OF OCTOBER 6, 1967 BOOK "0" CITY MANAGER'S REPORT Consider the status of the Willow Street Construction Project (joint venture) PAGE 959 Mr. Gene Pipes, City Manager, noted the history on this project dates back to 1974 and was originally planned in with the Willow Street Apartments Project, but was dropped for one reason or another. Access to that apartment complex was gained off of Avenue H through a tenporary drive-way which has become very permanent. Other projects have been constructed there (Paper Moon Project, etc.). He said a certified letter of credit was put up to.build the planned improvements or that portion of the road of Willow Street from one end to the other to and across the full width of the property in front, but the project became completed and occupied and the letter of credit expired without any street construction going on. He said the city was ineffectual in getting the individual to complete his project until we started putting together a joint venture associated with all of the abutting property, or the vast majority of than that front on Willow Street. He said we have a partnership involving six individuals other than the city and the city has been in the project for several years to the pledge of about 5140,000 in water and sewer line relocation costs that we have promised to pick up. In addition, he said, we have a considerable amount of time in Glenn Isbell's staff and engineering design of that project, which is not inexpensive on the open and free market. Mr. Pipes said the city was successful earlier in the summer in getting an agreement and getting money put up by letters of credit and cash deposits and authorizations to draft on all of the necessary funds to build the project, including SHSU, Gibbs Bros., Mr. Amick, the Willow Street Apartments which are now the Miami Apartments, Cornerstone, and Paper Moon Apartments and one other. He said we were trying to acquire a few additional easements, one of which was a drainage easement across the Miami Apartments' existing driveway because this is the low point in the fall of the land there where drainage off of Bowers Boulevard and Magnolia Street would come together. He said the water should be intercepted there, picked up off the street, and piped over to the underground drainage structures that run underneath all of the intermurat fields and emptied out down at Bearkat Boulevard north of the campus. He said the owner of the Miami Apartments has recently re- acquired them and was not willing to, at least initially, consider that necessary drainage easement. He said his letter of credit was on the table for the project, as was all of the other partners, but that easement, along with a couple of others, was outstanding. We have now acquired all of the easements but this one. We have made almost daily attempts to make contact and to try to press forward to get the necessary commitment to the signing of the easement and now also an extension of the letters of credit. If we begin this construction project today, he said the letters of credit would be insufficient in terms of time in order to complete the project. He said several efforts have been made over the pest several weeks, including a trip to Houston by Mr. Isbell and the pending contractor on the job to assure this owner that we would do everything possible to minimize the inconvenience of his tenants. Mr. Piperi has responded indicating his understanding of the situation, but wanting to work out a solution to going through his property because of his concern that his tenants may be stranded and because he is not in a financial situation currently to withstand a toss of tenants (income). Mr. Pipes said he does not feel the city has any alternative, at this point in time, except to declare this project "dead' and withdraw the funds authorized and allocated for the purpose of relocating the water and sewer tines as our portion of the project. He recommended the Council authorize the notice to the contractor that this project is being withdrawn and refund all of the deposit money and sureties beck to ea CiTY COUNCIL MINUTES OF OCTOBER 6, 1987 BOOK "0" PAGE 960 the individuals. Couicilmenber Knotts made the motion to withdraw the protect and return the funds committed and Councilmember Barrett seconded the motion. Discussion: Councilmember Carter was concerned that perhaps we should wait a little longer if a little more time is all that is needed. Councilmember Green said he would vote against this motion to dispense of this project, until such time as a more worthy project presents itself. He noted we may have to rebid it but now we do have letters of credit and people who are willing to extend those letters of credit for some period of time. He said he would hate to return all those and walk away from the project. Mayor Monday said this project carrot be done without the easement. Councilmember Green suggested we make one more attempt to find out if Mr. Piperi intends to give the letter of credit and the easement and then if he says he is not going to do that, then we can abandon the project. City Attorney Scott Bounds said at this point, the city carrot physically perform the contract because of the six month deadline put into the contract. For that reason, we carrot hold it up indefinitely and we are holding other people's money just because we cannot peform our portion of the contract. He seid we need to return their portion of the contract. Councilmember Bell suggested looking at the concept of eminent domain because of his concern that one person could hold up a project of this magnitude. Mr. Bounds said the city has the legal right to deploy emminent domain, but we also have to have the money to compensate a person for the taking of the land; which will create an equity problem and make the city's cost for this project escalate. The Council was hesitate to abandon the project, but considering the situation, a vote was then taken on the motion. All were in favor of the motion to withdraw the proposal at this time EXCEPT COUNCiLMEMBER BELL. who voted against the motion. The motion. however. passed by a vote of eight to Consider authorization of fund transfers for computer equipment in the City Secretary's office. Mr. Gene Pipes, City Manager, advised that the Council approved funds for a computer, printer and software for the City Secretary's office on August 25, 1987. He said the mart approved totaled (3,750, of which 12,500 was designated for the computer and printer and 51,150 was designated for software. These amounts were established in early summer in order to complete the decision packages at that time. Subsequent to this, the decision was made to use existing software and upgrade the printer to a laserjet printer to enable the city to do a greater variety of printing tasks by this and other departments, such as brochures, newsletters, etc. He noted permission is requested to transfer the $1,066 from designated software funds to hardware funds and to transfer the remaining S18 needed from Audits, Contracts and Special Studies (balance of $2,706.08) to complete this purchase in FY 1986 -87. (Note: the conputer system will be acquired from IBM for $1,934 (other bids: $2,205 and $2,450); and the printer from Hewlett Packard of Huntsville in the amount of $1,750 (other bids: $1,849 and $1,996). Councilmember Bell made the motion to authorize the transfer of these funds as described above and Councilmember Hammock seconded the motion. All were in favor and the motion passed unanimously. Consider pending litigation: Date Schaper v. City of Huntsville. Mr. Scott Bounds, City Attorney, noted es a result of the discussions in the Executive Session concerning this matter, he then requested the Council's permission to advise the attorney for Dale Schaper that his request for a public hearing before the City Council is denied. Councilmember Knotts made the potion to approve of this authorization and Councilmember Bell seconded the motion. All were in favor of this motion and it passed unanimously. t-r CITY COUNCIL MINUTES OF OCTOBER 6, 1967 BOOK "ON MAYOR'S ACTIVITY REPORT Consider Resolution No. 87 -10 nominating Dr, Jerry Dowling to the Appraisal District Board Mayor Monday presented this resolution, the caption of which is as follows: RESOLUTION NO. 87 -10 PAGE 961 A RESOLUTION OF THE CITY OF HUNTSVILLE, TEXAS, NOMINATING DR. JERRY DOWLING TO THE WALKER COUNTY APPRAISAL DISTRICT, AND MAKING OTHER PROVISIONS RELATED THERETO Councilmember Knotts made the motion to adopt Resolution No. 87-10 and Councilmember Bell seconded the motion. All were in favor and the motion passed unanimously. COUNCIL ACTION Sign on 11th Street Councilmember Bell expressed his dismay that the tall sign on 11th Street was not removed when Howerds Discount Center went out of business because now the new Brookshire Brothers 'Budget Chopper" sign has been placed into it so we will now have to keep that sign there. He understood a charge of use would require coming down to a 40 foot limit in height. Gene Pipes said there is a 50X of the value triggering mechanism so that if only a new plate is being slid into the existing sign frame, they are not affecting 50X of the value of it. Councilmember Bell asked that Dale Brown, City Planner, check into the requirements on this and report beck. Councilmember Bell felt if the 50X criteria is in the city's existing sign ordinance, he is concerned that perhaps we need to revise the sign ordinance as it will be almost impossible to get the tall objectionable signs down over time. Mayor Monday noted the sign ordinance was accomplished with compromise some time ago, but if the Council feels it should be re-evaluated, it can certainly be brought beck to a work session. Councilmember Green asked that we NOT have a work session on the sign ordinance. Scott Bounds, City Attorney, advised to eliminate existing signs, we would have to establish an amortization period to say that at the end of five years, seven or ten years, or whatever a reasonable amortization period might be, that the sign will have to be brought within the limits. Councilmember Bell asked if the Council would be willing to discuss that. Councilmenbers Knotts. Bell. Carter and Howard and Mayor Monday asked staff to bring the sign ordinance back for a work session review. Application for position on Citizen Board or Commission Councilmember Bell asked if it would be appropriate for the Huntsville Item to publish the application form in the newspaper so that citizens might have the opportunity to apply for future openings on city boards and commissions. He asked that the City Secretary include in the City News Notes article a description of the boards and caamissions on which there may be an upcoming vacancy or an existing vacancy so that interested citizens can respond to that vacancy. 1 • CITY COUNCIL MINUTES OF OCTOBER 6, 1947 Fire Call Statistics BOOK "O" PAGE 962 Councilmenber Bell asked for a comparison of in -city miles versus county miles, a listing of the kind of equipment that was used for the in -city calls versus the county calls, as well as the merpower requirements for in -city calls vs. county calls. Mr. Pipes advised he will took into this information. No Smoking Ordinance Councilmember Carter asked theft the "no smoking ordinance" be brought back for consideration in the near future. Mobile Home Lot Size Requirements in City Councilmember Carter indicated he would like to see the raising of the requirements for mobile homes within the city to meet the same lot size requirement as any other structure. Ne asked that there be some additional discussion on this and possibly bring it beck for formal consideration. ADJOURNMENT TO WORK SESSION espectfully submit i Ruth DeS aw, October 6, 1987 etary