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MIN CC 10/27/1987fitTES OF THE MEETING OF OCTOBER 27, 1987 BOOK "0" PAGE 962 MINUTES OF THE HUNTSVILLE CITY COUNCIL MEETING HELD ON THE 27TH DAY OF OCTOBER, 1987 IN THE CITY HALL COUNCIL CHAMBERS, LOCATED AT 1212 /AVENUE M, IN THE CITY OF HUNTSVILLE, COUNTY OF WALKER, TEXAS AT 6:45 P.M. The Council met in a regular session with the following members present: Jane Monday, Mayor 0. Eugene Barrett Gary Bell Jim Carter Ila 6. Gaines William B. Green Percy Howard, Jr. Bill Knotts Gene Pipes, City Manager Scott Bounds, City Attorney Ruth DeShaw, City Secretary Member absent: William L. Hammock. ATTENDING CITIZENS The following citizens appeared to address the Council concerning the ordinance regulating smoking in public places, which is on the agenda for action. Mr. Hal Coleman (620 Hickory, Rollingbrook Apts., P. 0. Box 6334, Huntsville) advised the Council that he is in favor of this ordinance, noting private industry is ahead of the city in this area. He urged their adoption of . this ordinance to allow nonsmokers to enjoy the clean air. Mr. Bill Nash (2429 Robinson Way, Huntsville) expressed his support of the ordinance. He said this; ordinance relates to rights and freedom of a smoker as well as a nonsmoker. He noted one man's freedom ends where; another's begins and he feels this saying is very basic to tonight's issue and that is the right to smoke anywhere IF such right does not infringe on the rights of others. He said it must be the responsibility of the smoker to insure the freedom of the nonsmoker. He said the smokers he knows agree with this concept as they do not wish to impose upon anyone. He noted if there is a designated area in which to smoke, then smokers will not need to be . concerned about causing discomfort to others. He noted the Houston Chapter of the Restaurant Owners Association! supported the Houston Smoking Ordinance in the form in which it was passed. He said this ordinance provides for an orderly way to change a tradition which is too long imposed on individual's rights. He urged the Council to pass this Ordinance as It will mean the city does care about the health and welfare of its citizens. Cecil F. McKee (1728 -B 19th Street, Huntsville) indicated his support of the ordinance because he believes . nonsmokers have just as much right to their comfort in public places as the smokers do to theirs. He said if; smokers can smoke and keep the effects in their own private locale, let them smoke; but if it floats over into myj locale and causes a discomfort to me, then they will have to be regulated. He said he feels he is entitled to the same privileges they claim for themselves. He urged the council to adopt regulations in all places where the smoker has an unfair advantage over the nonsmoker. Marion Jobe (605 Avenue J, Huntsville) said she did not come to speak on the smoking ordinance, but rather to how the City is going to enforce this ordinance. She said the city has other ordinances, such as "no fireworks inside the city limits," "no dogs running at- large," "illegal parking," which are not now being enforced. She noted she Is having particular problems with these specific ordinance violations in her neighborhood. She noted she has been told by those in authority that these are "tricky laws" to enforce. She said her concern is that the Council may just be passing another ordinance which cannot be enforced. Mayor Monday noted it is the Council's policy to bring back a response to each citizen concerning a problem expressed in the citizen -input sessions. She noted the city staff will look into the problems she has just discussed and have a report back next week. Jerry Dowling (1613 19th Street, Huntsville) addressed the Council, noting his background comes from a long history of family involvement in the tobacco industry, so it is somewhat awkward for him to speak in support of the smoking ordinance. He said he feels this ordinance speaks to an issue whose time has come because there 1s a trend in this country where smoking is falling out of favor, primarily for health reasons. He said everyone is concerned about their fellow man's health and particularly concerned as it relates to one's own health through passive smoke Inhalation in public places. He felt the ordinance, as proposed, is a reasonable compromise. REGULAR SESSION Mayor Monday then closed the citizen input /inquiry session and called the regular session to order. Brother Luke Curtis of the Church of Christ State Prison Ministry was present to give the invocation. CONSIDER THE MINUTES OF THE PREVIOUS MEETING Councilmember Barrett made the motion to approve the minutes of the previous meeting of October 20, 1987 and Councilmember Howard seconded the motion. All were in favor and the motion passed unanimously. ATTENDING CITIZENS Consider comments from attending citizens requesting to speak on the proposed smoking ordinance Ralph Pease (217 Elmwood, Huntsville) advised the smoking issue is primarily an issue of individual and+ collective rights. He said government sets restrictions on speed limits, noise, air pollution - -all based on the right that one person's right ends with another person's ears, nose and clothes. He noted government intervened to provide rights for blacks, women, mentally retarded, handicapped, and rightfully so. He noted most of us have welcomed the government's intrusion into these areas. He said just as it would be objectionable i+or someone to enter a restaurant with a getto blaster playing loudly, a smoker would be just as unwelcomed. He said it would be inappropriate for everyone in that restaurant to have to leave because they did not like the music playing so loudly. He noted it is the person who is doing something actively who should be restricted. He said if smokers were all thoughtful, courteous and considerate, we would not need this ordinance. He said most of the restaurants in this town already have "smoking" and "nonsmoking" areas and we didn't have to do a thing about it, but some do not. He felt it Is right and proper that the Council be considering this. He closed by saying: "...like Blacks in the 60's and women in the 70's, ... nonsmokers are saying that we're madder than hell and we're not going to put up with this anymore." He said we are going to have an ordinance - -if we don't get it from the City, we'll get it from the state; and if we don't get it from the state, we'll get it from the federal government; and, anyone who thinks differently, he said, is just not paying attention to what is going on. Brian Elvin (2828 Wolverton, Huntsville) advised he is p nonsmoker, but finds it ironic that the city is passing a law about this habit people have. He said governments at all levels are becoming more and more a part) of our lives and making more and more decisions for us. He said this leads to us letting government be our conscious, letting government be our good common sense and he has a problem with that. He said people should understand how to get along in public or in a crowd. He felt it would not be appropriate to make a law to dictate( one's behavior. He was also concerned about how an ordinance like this would be enforced. He was concerned aboutik 1 MINUTES OF THE MEETING OF OCTOBER 27, 1987 BOOK "0" PAGE 963 the cost to enforce an ordinance like this, noting the local governments are already stating they don't have enough money to provide current services. Charles W, Smither, Jr. (1210 12th Street, Huntsville) said he is a CPA in Huntsville and deals mainly with small businessmen. He came to speak in opposition to the ordinance as proposed, and then submitted his own suggested ordinance as an alternative. He felt that unless there is a pressing need to protect public safety, the less regulation by government is much better. He said another involved party in this ordinance is the owner of the establishment who has certain obligations and risks in providing services and he should have some rights as to how he operates his business within the health and safety factors, etc. He said it is not fair to the small businessman to make him do some of the arbitrary things this ordinance provides. He specifically objected to the ordinance because of clarity - -it is hard to read and also because of fairness - -he understands this ordinance does not affect the County offices or state offices (SHSU), and there seems to be some exemption given to city employees in this ordinance as all city facilities are public and therefore should be nonsmoking. He said if he is meeting with a city official in his place of business, he should not be subjected to his smoke. He said there is also a provision which requires that 70% of the common area be non - smoking with no thought or allowances for any particular needs of a particular type business or the clientele or customers of that business. He said the ordinance also provides for the granting of the ability to designate an entire establishment as nonsmoking (Section 14.4), but not the reverse - -this is not fair. Mr. Smither then referred to costs as it relates to small businesses in providing signs, separate ventilation systems, walls, partitions, separate waiting areas, modifications of existing buildings. He said so much of this ordinance is nice in theory, but it costs alot of money -- something the small businessmen in Huntsville do not need at this time. Mr. Smither then referred to his one page substitute ordinance which states that the owner or person in control of an establishment or area may designate any portion of that establishment or area up to and including the entire establishment as a nonsmoking area. The ordinance then set out the rules of what that person should do if he so designates nonsmoking areas (implement a written policy and make it available for inspection, prominently display reasonably sized signs, and provides facilities in sufficient number for extinguishing smoking materials). He said this would be going at this in a nongovernmental way. Ben Hardeman (a Bryan City Councilmember) advised he is a businessman in Bryan and very active in the Chamber of Commerce and other civic work. He said Bryan passed the smoking ordinance one year ago and he is here to relay information as to how the community responded and the impact of that ordinance in Bryan. He said one restaurant owner of five restaurants in Bryan advised that his smokers appreciated knowing that they were not bothering someone else. He said the Restaurant Association invited him to speak to their group about the proposed smoking ordinance, and after this discussion, decided to take a neutral position noting they did not feel it was an inappropriate action for their business in Bryan. He said they did modify the ordinance by changing a word or two, at the suggestion of one restaurant owner, and like all ordinances that are passed, they are subject to amendment if it is found a portion of it is causing a hardship of some kind. He said the only complaints he is aware of since the ordinance was passed were in regard to businesses not having their signs up. He said these complaints against businesses have not gone through prosecution and have all been resolved voluntarily. He said the only problem has been communication as some businesses did not even know the city passed the smoking ordinance. He said he has not heard any businessman in Bryan express concerns about the ordinance being an economic hardship to implement. He noted the proposed Huntsville ordinance is very similar to the ordinance Bryan passed, both being a derivative of the San Antonio ordinance. He said voluntary compliance is almost universal when the signage exists. He said clothing stores have been most appreciative of the ordinance because it served to reduce merchandise damage and it served to support their needs without their having to take the lead and perhaps offend their customers. David Cason (1519 Avenue 0, Huntsville) said this ordinance is important to some people and for others it may be viewed an an infringement on their constitutional rights. He said he resents government passing a law to tell people what their common sense should tell them to do. He felt a private arrangement in business and in government offices is by far preferred to protect an individual's constitutional rights than having a new law. He said if smoking is so bad, he'd like to see the federal government stop subsidizing the tobacco industry. He said the more laws that are passed restricting one's pursuit of happiness, albeit against smoking, the more confined will be the interpretation of our constitutional rights. CONSIDER ORDINANCE Consider Ordinance No. 87 -33 regulating smoking in public places Mayor Monday presented this ordinance, the caption of which is as follows: ORDINANCE No. 87 -33 AN ORDINANCE OF THE CITY OF HUNTSVILLE, TEXAS ADDING A CHAPTER TO THE CODE OF ORDINANCES OF THE CITY OF HUNTSVILLE, TEXAS, TO REGULATE SMOKING IN PUBLIC PLACES; DESIGNATING CERTAIN RETAIL AND SERVICE ESTABLISHMENTS, PUBLIC BUILDINGS, AND FOOD ESTABLISHMENTS AS NONSMOKING AREAS; PROVIDING SIGN REQUIREMENTS; PROVIDING MINIMUM STANDARDS FOR NONSMOKING AREAS; REQUIRING THE POSTING OF SIGNS REGARDING SMOKING AND NONSMOKING AREAS; REQUIRING WRITTEN POLICIES IMPLEMENTING THIS CHAPTER; PROHIBITING SMOKING IN DESIGNATED NONSMOKING AREAS; PROVIDING EXEMPTIONS; PROVIDING FOR THE REGULATION OF SMOKING IN WORKPLACES; PROVIDING THAT THIS ORDINANCE IS CUMU- LATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. Scott Bounds, City Attorney, advised this ordinance does basically track the San Antonio ordinance. He said he has reviewed the Bryan ordinance, which is very similar, since he prepared the current ordinance. He then suggested the following substantive changes in the proposed ordinance, as follows (note, additions are underlined and deletions are dash lined out): Section 14.3 (b) should read "A nonsmoking area must: ", and, "(1) be separated from the nonsmoking areas by a minimum of four feet of contiguous floor space, a partition, or a wall; and (2) be ventilaterind situated so that air from the smoking area is not drawn into or across the nonsmoking area, or the smoking area shall be separately ventilates; unless (X) percent of the dining area is designated as nonsmoking area (Bryan's percentage here is set at 50%). The other change is the addition of a subparagraph (5), as follows: T5i that the smoking area must not be larger than (X) percentage of the dining area. He said he realized a pro lem when looking back over the ordinance he had written in that although we have a limitation on the amount of a facility that can be designated as smoking, under the general rules of Section 14.2, there was no such limitation to Section 14.3 and no reasonable guidelines as to what percentage of the facility is to be designated as smoking. He said if we say the smoking area must not be larger than 70 %, that would mean that only 30% of the restaurant would be reserved for nonsmoking. He said Bryan's ordinance implies one can have more than 50% of the restaurant designated as smoking If less than 50% are nonsmokers, and it encourages one to designate a larger area than 50% of the restaurant as nonsmoking in order to avoid some of the ventilation requirements. He said this would be a helpful incentive to encourage that so he suggested the Council might consider this. Councilmember Bell made the motion to hdopt Ordinance No. 87 -33 and Councilmember Knotts seconded the motion. Discussion: Councilmember Green felt the changes suggested by Mr. Bounds above are appropriate. He sy gamed the percentage requirement in subsection (b) (2) be 50%. He noted he does have a problem with Section 14.2, which prohibits smoking in certain public areas, noting he recognizes the investment of the owner and the property associated with that and the customer who simply walks in does not have quite that same property right MINUTES OF THE MEETING OF OCTOBER 27, 1987 BOOK "0" PAGE 964 and that same investment. He said he is not sure how to resolve this point in order to be fair to both the owner, r and the customer. He said he will vote for this ordinance, but still does not like this section. He said he is anxious to hear anyone's idea of how to resolve this issue. Councilmember Gaines agreed with Councilmember Green. She felt for this ordinance to be appropriately enforced and complied with, it will be imperative that the city, conduct informational seminars for business and restaurant owners. She said people are most cooperative in this ; city when they understand. She said she will vote for this ordinance with the understanding that these seminars be conducted to explain and clarify it to the public. She said then if it becomes apparent that adjustments in the ordinance are needed, the Council should be open to review those changes, because we are never sure of the impact of a new thing until it is tried. Councilmember Knotts felt this ordinance protects the rights of both smokers and nonsmokers in restaurants- - �! it gives them a choice as to where they wish to sit to be the most comfortable. Councilmember Barrett felt people do need a choice, but he does not want to impose an imposition on business people or cause them an extra expense for extra ventilation or demand the percentages they have to have in their restaurants. He felt they ought to have a chance to decide what percentages they want because one business may not be like another business as one business may have more customers who smoke. He supported the ordinance, but agreed input from the business people is needed. He said if there is something that is totally disagreeable financially, the council should try to work with them. Councilmember Bell noted 73% of the nation does not smoke and that leaves only 27% who do smoke. Councilmember Bell was concerned that this ordinance is scheduled to go into effect ten days after passage. He felt the time should be extended to 30 or 60 days to allow the business pedple ample time to come into compliance., Mayor Monday felt that 60 days would be better in order to allow time for the seminars. Councilmember Bell then made the motion to amend the ordinance from it being effective ten days after passage to its being effective 60 days after passage and Councilmember Barrett seconded the motion. All were in favor of this amendment and it passed unanimously. Councilmember Green made the nation to establish the percentage of 70% in Section 14.3 (b) (5) so that it reads: (5) that the smoking rea must not be larger than 70% of the dining area, and Councilmember Gaines seconded the motion. Councilmember Knotts felt this is one thing that ought to be at the discretion of the owner, as he has seen some restaurants where they move that smoking section up and down the aisle, depending on need at the time. Mayor Monday noted establishments are so different from one another in this regard- -for instance, a health bar may have no smokers. Councilmember Green asked if there is a proposed alternative to this 70 %. Mr. Bounds said if we do nothing here, then there is no requirement that any portion of the restaurant be nonsmoking. Councilmember Knotts said we need something, but there ought to be some flexibility here. Councilmember Carter' felt there should be some percentage in the ordinance. Councilmember Carter said if we pass this 70% requirement, it will then treat food establishments in the same way that we are treating every other business. Mr. Ben Hardeman of Bryan said his city faced this very same dilemma. He said the wording of the ordinance was such that the nonsmoking section shall be large enough to accommodate all of the nonsmokers requesting service. He said the. Council in Bryan recognized that this left it open ended and we might even have a restaurant that designated 90 %, but on some occasion, that might not be adequate and they would be subject to an offense being filed against them. So, he said, the Bryan Council came back and said that if they designated 50%, then that would be deemed adequate, if they designated 50% or more, then it would be interpreted as being adequate. He said at 1:00 A.M. in a 24 -hour restaurant, one owner said all of his customers were smokers and if the city required 50% to be nonsmoking, then he would not be able to use half of his restaurant, so we solved that by saying it should bei adequate for those requesting the nonsmoking section, but once they designated 50% or more, then they would bei deemed to be in compliance. Mr. Hardeman said it was presumed that "adequate" would mean sufficient seating for all those persons requesting nonsmoking seats. He said presumably a person would file a complaint if they requested nonsmoking and it was not available but if they requested nonsmoking and it was available, then it would ! be adequate. Mayor Monday provided the following example for clarification: it is one o'clock in the morning and there are 40 seats in the establishment and 40 people come in and they all smoke- -what Mr. Hardeman is saying is that the Bryan ordinance will give the flexibility, since there were no nonsmokers requesting seats, that the proprietor could seat all 40 people at one o'clock in the morning; however, if number 41 came in and he was a nonsmoker, and he requested a seat, then the proprietor would at that point, according to the ordinance, designate an area for him that is nonsmoking. Upon a vote on the motion on the floor above concerning Section 14.3 (b) (5) at 70%, all were in favor of this amendment to the ordinance except Ile Gaines; who voted opposed. The motion, however, passed by a vote of seven to one (note: Councilmember Hammock is absent). Mayor Monday noted she understands it is the consensus of this Council that upon passage of this ordinance, that there will be conducted, in conjunction with it, public seminars to communicate the provisions of the ordinance to the general public and the business community. The Council agreed this is their consensus. Mayor Monday then asked for a vote on the motion on the floor to adopt Ordinance No. 87 -33, as presented and amended above. All were in favor of the motion to adopt Ordinance No. 87 -33 and the motion passed unanimously. Mr. Gene Pipes, City Manager, advised the Mayor and Council they will be informed as to when these seminars will be held by next week and they will be held as soon as Mr. Bounds' schedule permits. CONSIDER CABLE TV RATE INCREASE REQUEST Consider a proposal by Huntsville Cable TV to raise rates for service - -Mr. Randy Rogers, Manager Mr. Scott Bounds, City Attorney, advised the City granted a franchise to Telecable, Inc. of Huntsville in 1976 to provide telecable service in the city limits. In 1980 -81, the city entered into negotiations with the telecable company, which resulted in a rebuild of their cable system to our current basic service of 24 channels and the basic rate structure that we have. A little over two years ago, Huntsville Cable TV bought the franchise from ICI and a small rate increase was approved by the Council. In October of 1984, Congress enacted the Cable Communications Policy Act of 1984 and that Act, among other things, significantly affected the a¢ility of cities to regulate cable service and rates. He said the Act provided that cities could only regulate basic cable service, which is 12 channels and that cable systems subject to effective competition could not be regulated by cities. Congress then required the FCC to define what is "effective competition," he said. The FCC generated, rules pursuant to that Act and determined that a city in a county where there were three or more Group B signals, was subject to effective competition and a city in that county could not regulate rates. He said Group B signals are primarily used in determining signal interference and licensing to avoid signal interference between stations. Mr. Bounds said Walker County is shown to have at least five Group B signals which are accessible in the county, including four Houston stations and one Waco - Temple station. He said those rules and regulations of the FCC were subject to judicial attack and in a decision rendered this summer by the American Civil Liberties Vs. FCC and also a consolidated case involving the City of Dubuque,. Iowa, the Washington D. C. Court of Appeals struck down some of the. FCC rules that had been enacted regarding the cable act, in particular, the court found that the method the FCC was using to determine effective competition may be suspect and the result of that is that the FCC; has recently re- entered its rule making process and is now in the process of generating new rules which might be forthcoming in the next year to determine where cities may regulate cable companies. He said the City of Dubuque, Iowa is very similar to the City of Huntsville and they argued that although in certain locations within the community, one could receive three or more Group B signals with a 30 foot antennae if one were on the right hill, that as a general rule, it follows that the fluctuations and elevations in the city and other structural geographic peculiarities, that the general public in that community could not receive three or more stations; through normal television reception. He said the FCC is not in favor of city regulation of cable service so any MINUTES OF THE MEETING OF OCTOBER 27, 1987 BOOK "0" PAGE 965 rules they generate will be fairly narrowly structured in favor of the cable industry; however, he said, it Is not clear whether or not the City of Huntsville will be able to regulate cable service (rates and services provided) after the FCC finishes its current rule making procedure. Mr. Bounds advised Cable TV proposed this increase assuming the City could no longer regulate their rates under FCC rules. He said the FCC did adopt emergency temporary rules after their rules were struck down by the Court of Appeals, and under those rules, we would not be able to regulate Cable TV. After discussing the matter with Cable TV and explaining that it is still the city's position that it is not clear whether or not Cable TV is still subject to regulation and that it is possible that a city like Huntsville should be able to regulate the cable service If the general public cannot receive three or more television stations with a good deal of picture quality. He said if FCC generates such rules, the city would exercise such regulatory authority. He said we do understand that Cable TV has, within the last two years, had increases in cost of programming of at least 44 cents per outlet, primarily for CNN, CBN, ESPN and National Network. The City Attorney advised that under the cable act, even if the City were able to regulate a cable franchise, because there is no effective competition, the FCC has established some general guidelines as to what that rate making authority would permit a city to do. He noted FCC said a cable company would be entitled to an automatic five percent increase in their rates each year and that, in addition to that, they would be permitted to pass through any costs for programming to the consumer each year. The court in the American Civil Liberties case, struck down the provisions the FCC had, as far as permitting them to have automatic pass throughs of programming costs, but did permit the FCC to require cities regulating rates to permit the cable company to increase their hates at least five percent per year. As a result of his visit with Cable TV, Randy Rogers, Manager of Huntsville Cable TV, has modified their request for a rate increase to an increase for basic cable service of 45 cents per month, from $9.50 to $9.95, which is less than a five percent increase, and to an increase of 50 cents per month for the extra outlet charge for additional cable outlets, from $1.50 to $2.00 per outlet. Mr. Bounds said these increases would generally be permissible by the cable act and that this request should be granted. He said he would keep the Council advised as to any further action taken by the FCC on its rules. He said if the Council wishes to submit comments to the FCC with regard to whether or not to regulate them, they should so advise him. Mayor Monday then asked for a motion in this matter. Councilmember Barrett made the motion to approve of this rate increase as noted by Mr. Bounds above and Councilmember Howard seconded the motion. Discussion: Mr. Bounds said this increase is on the basic cable services of 24 channels, or all the channels one can get without a scrambler under the present service. He said this is 12 more channels than the city is permitted to regulate under FCC rules which define basic cable as 12 channels. Councilmember Barrett said there is a long list of towns similar In size to Huntsville and the rate we are paying does seem In line with what other cities are paying for basic charges. All were in favor of this motion and it passed unanimously. CONSIDER RESOLUTIONS Consider Resolution No. 87 -12 endorsing and urging citizen support for a proposed Constitutional Amendment No. 17-- Liability Immunity for Municipalities. Mr. Scott Bounds, City Attorney, presented this resolution which endorses Amendment No. 17 to the Texas Constitution relating to tort reform. He said Senate Joint Resolution 26 (Amendment 17) passed by the 70th regular session of the Texas Legislature was an Integral part of the Texas Municipal League backed tort reform package, and it would authorize the legislature, not the courts, to define the "governmental" and "proprietary" functions of Texas cities that define their municipal liability exposure. He encouraged the Council to support this particular amendment. Councilmember Howard made the motion to adopt Resolution No. 87 -12 and Councilmember Knotts seconded the motion. All were in favor and the motion passed unanimously. Consider Resolution No. 87 -13 endorsing and urging citizen support for a proposed Constitutional Amendment No. 23- -Bonds for Water Projects Gene Pipes, City Manager, introduced this resolution which encourages voter support of Amendment No. 23 -- Additional Water Development Bonds. Mr. Pipes said the 1987 Texas Legislature enacted several laws as part of the "Build Texas" program and there is a severe shortage of operating revenue at the state and local levels and a decreasing level of federal involvement in water projects. This amendment to the Texas Constitution on the November 3 ballot would permit the Texas Water Development Board to issue $400 million in bonds to finance water supply projects, water quality projects, and flood control projects. He said bonds such as these have greatly assisted the City of Huntsville and other local governments and saved the taxpayers money. He said the Huntsville Regional Water Supply System was built under the auspices of the Trinity River Authority with bonds approved by the State of Texas and financing made available at a cost that was much less than would be on a monthly utility rate basis had we had to finance it through conventional means and secure it through the City of Huntsville debt service. He said we would not have been able to accomplish that in the first place without the water development bonds. He encouraged the Council to support this resolution so as to help other such cities in the state. Councilmember Barrett made the motion to adopt Resolution No. 87 -13 and Councilmember Knotts seconded the motion. All were in favor and the motion passed unanimously. CITY MANAGER'S REPORT Consider termination of a contract for administration of the City's health insurance program for employees with Smith Administrators Mr. Pipes advised recently the Texas Legislature passed some reform in terms of insurance regulations which required that administrators of self- funded insurance programs be licensed to operate in the State of Texas. He said Smith Administrators, based in Salt Lake City, Utah, with offices in Houston and other areas throughout Texas, has elected NOT to become licensed in Texas and has, therefore, located alternate companies to supply that service for us. He said the Council needs to formally cancel the contract we have with Smith Administrators before we enter into another with the new firm. Councilmember Howard made the motion to cancel the contract between the City and Smith Administrators and Councilmember Barrett seconded the motion. All were in favor and the motion passed unanimously. Consider a contract for administration services with Employer Plan Services, Inc. for the remainder of the plan year Gene Pipes then asked the Council for their consideration of the firm of Employer Plan Services, Inc. to provide the administrative services contract for the city's health insurance program for the remainder of this plan year, which expires July 1, 1988. Councilmember Barrett made the motion to authorize the City Manager to enter into a contract with Employer Plan Services k, Inc.. along the same lines as the contract we had with Smith Administrators ' to administer the City's health insurance grogram for the employees for the remainder of the plan year ending Jul 1988 and Councilmember Knotts seconded the motion. All were in favor and the motion passed unanimously. CONSIDER TELEPHONE FRANCHISE STUDY COMMITTEE Consider authorization of participation in a Telephone Franchise Study Committee to acquire needed expertise in MINUTES OF THE MEETING OF OCTOBER 27, 1987 BOOK "0" PAGE 966 negotiating a new franchise agreement in 1989. Then, approve resolution No. 87 -14.— Gene Pipes, City Manager, recommended the city join with other cities in negotiating a model telephone hise agreement for use by those cities who have been experiencing difficulty in the negotiation of such an eement. He noted in order to develop additional resources for resolving the franchise problem, representatives from 40 cities that are served by the Southwestern Bell Telephone Company met recently to establish a steering ! committee and to retain the law firm of Butler and Casstevens of Austin, as outside legal counsel. He said the Telephone Franchise Study Committee, with the legal services of Attorney Don Butler, will develop a model ordinance with explanatory notes, prepare a memorandum that will set forth the legal rights and remedies of the city and provide a way for participating cities to share information regarding current negotiations and establish procedures for ensuring proper payments are made to cities. He clarified, however, that the study committee will serve as a resource for cities but the final authority for approving or enforcing the franchise ordinance will always remain with the City Council for each city. Mr. Pipes advised in order to cover anticipated expenses, it is necessary that participating cities contribute 1/2 cent per capita, not to exceed $1,000 for out -of- pocket expenses such as printing costs, as well as professional fees. He said it would be funded out of the unallocated reserves in the proprietary funds and the general fund budget. A pro -rata refund of unexpended funds will be made upon completion, he said. The Council was advised the City's current contract with Southwestern Bell expires in, 1989 and it is not too early to start work on a replacement franchise agreement with SWBT, who is the local supplier of service to this area. He said it will be much less expensive to do this cooperatively with a number of other cities. Councilmember Knotts made the motion to adopt Resolution No. 87 -14 authorizing participation by the City in the Telephone Franchise Study Committee and authorizing payment of the participant fee and Councilmember Howard seconded the motion. All were In favor and the motion passed unanimously. CONSIDER TV EQUIPMENT Consider purchase of T.V. inspection equipment for use In sewer and storm drainage system infrastructure rehabilitation. Mr. Gene Pipes, City Manager, advised the Council of a request from Mr. Boyd Wilder, Director of Public Utilities, to purchase the city's own TV equipment to perform the televising of the city's sewer system in- house . as opposed to continuing with the Insituform Gulf South Company contract. He reminded the Council that the city is currently inspecting its sewer collection system as part of the Capital Improvements Program. He said this inspection is being performed with TV camera equipment under contract with "Insituform Gulf South, Inc." He said to -date, we have completed approximately 75,000 feet of an estimated total of 625,000 feet, or 12 percent of our . total system. He said under contract, the cost of this work is 51.00 per foot of pipe with the contract amount at 5200,000. He noted this 5200,000 is "seed" money to get the project going and it was originally anticipated to require more funds. Mr. Pipes said there has been some controversy between the contractor and the city as to how the billing will be calculated and the staff has also encountered coordination and communication problems between the contractor's field personnel and the contractor's office personnel. He noted the City has been billed $1.00 per foot of pipe televised, which the city agreed to in the contract; however, if the camera becomes stuck in the line, it has to be pulled out, the area dug up and repaired, and the camera started over again and the company then refilms the same area already filmed and has been billing the city for it again (and one line may have several blockages where this would have to be done, which can bring the cost to 53.00 or 54.00 per foot). He said after three meetings with Insituform Gulf South representatives without resolution of the billing problems, the staff has decided not to issue any more work orders until something is agreed upon in reference to the method of calculating the cost of the work performance. The staff has also investigated the possibility of acquiring this equipment and doing it in -house as an alternative to contracting it out, Mr. Pipes advised. He said the equipment would cost approximately 5100,000 and the annual OUl for equipment and personnel would be approximately 548,000 (includes the hiring of two additional personnel). He said over a three year period, this would be approximately 581,000 per year. Compared to the 51.00 per foot cost under the current contract, he said, the city would be required to televise 81,000 feet per year to break even. He noted this equals to approximately 310 feet per day. Mr. Pipes advised to complete 200,000 feet per year would require a daily average of 770 feet, which is a very conservative (low) figure as to what can be expected. The Council was advised this equipment can also be utilized for storm drainage work or for inspection of new construction. Mr. Pipes said funds available out of the current 5200,000 contract total 5115,000 and unallocated funds available in the utility department capital improvement program total 5900,000. In summary, he presented the staff's request to be authorized to inspect the city's entire system with its own equipment and personnel for approximately one -half of the cost of contracting this much work out. It was noted the equipment would then be ours and should last about four to five years (analysis for cost effectiveness- - equipment will actually last longer than this). He said these estimates are based on a three year program and the staff thinks it can possibly complete the program in two years, which would allow an even greater savings. It was noted the contractor will be agreeable to the cancellation of this contract, according to Boyd Wilder, Director of Public Utilities. Councilmember Green said when we originally began this project, he did not anticipate there was a desire to televise the entire city system, but rather just on those streets where we were going to perform major construction or major overlays so that we would not be overlaying a street that may have some water or sewer line problems. He said the fact the city has only done 12% of the total area does not indicate to him what is the total percentage done of the area originally intended to be done. He said it may mean that we have already done. 50 or 60% of the originally intended area. Mr. Pipes said the city has done probably 90% of the major streets on this past year's capital list (Avenue I, University Avenue, Avenue M and Avenue 0 have all been done as well as . many of the other streets that were in the project list - -Lake Road, Normal Park; all the Spring Lake Roads; and the Easley Circle Roads - -the later of which are relatively new but had a number of breaks because of ground, movement and not because of the age of the lines). He agreed with Councilmember Green that the original intention; was to do all of the lines in conjunction with the street construction projects before overlaying. He said itl would only follow then that when we've done 85 miles of streets in our network, and that is maybe 3/4 of all of the sewer lines, that we can go ahead and complete the project and make our sewer system as operationally sound as possible through this investigative method. He said it is perhaps an oversight on his part that the efficiency' of the project has been such that we have presumed that the Council would desire to go ahead and complete the entire analysis, however, this may not be the case and we may just need to do the streets that are going to be planned and under construction each year and not do the entire system; this is whatever the Council desires.;i Councilmember Green asked about the talent required to operate this equipment that are not readily available in the marketplace. Mr. Pipes said he thinks the city would train individuals on staff who have been assisting th contractor already and be able to train them very quickly. He said the two people who would be hired would b base employees and will either be absorbed into the work system over the time we are doing this complete analysis ! work or, in fact, would be out of a job when it came time to complete that work. Councilmember Green noted his uncomfortable feeling in adding additional employees at this time in our budget situation. Mr. Pipes said these employees would be paid out of the same funds that are available to this contractor now. Councilmember Barrett asked why we didn't look purchasing our own equipment in the first place, why the,' contract did not detail just how billing would be calculated, and will the contractor agree to canceling the contract. Mr. Pipes said we are going to pay the 51.00 as the contract says "unit cost at 51.00 per foot." Mr. .I • rw utcJ 'Jr inc I'ICCI U&IUOLM L/, 1Vd, DUU "u" rnuc yo/ Pipes said we didn't purchase the equipmen.outright because we had no experience or expertise in this field, but now- -have- the experience from working w t _this contractor. -He said the contractor will agree to cancel the 'contract, but he will find out for sure. Councilmember Barrett said he is always appreciative of the staff doing work in- house, especially if we can save money and do it better. Councilmember Knotts felt we may be on the way to creating a bureaucratic monster that in time we'll find ;ourselves trying to feed. He said it is like our engineering section budget, which is a little bit over a half „million dollars now with all the personnel, noting we just spent some S50- 60,000 on more computer equipment. He 'asked what are we going to do with all of this when we get through. He felt we should strengthen our contract !'writing. He referred to the Willow Street paving project, noting if we had a performance bond or a payment bond ;rather than a letter of credit, we may well have been able to build that street. He said then if they defaulted on it, the bonding company would have funded us and we would have had the money to finish the project. He said he is in favor of construction and is in favor of private enterprise. He said the construction industry in 'Huntsville was, at one time, a good industry. He said he would oppose buying this equipment. He said he would 'rather rent the TV equipment and then at all deliberate speed do all the work for the next month and then let the equipment go back. Mr. Pipes said he sees the research and analysis work as ongoing. He said it is a loose -leaf volume and will be constantly updated and maintained. He said he expects the city to grow and when new areas are I, taken in, additional research and data will have to be generated. Mayor Monday noted she recalls authorizing televising only major arterial and collector lines involved with lour street paving program and also for some particularly troubled areas, but does not recall being approached by staff for a decision that we would do every line in Huntsville. She said we do have a pool of dollars in the !,capital improvement program, but the use of that pool of dollars has to be decided upon by the Council. She suggested this is the first decision this Council needs to make, but she does not have adequate data to make this ;decision now. She said we need a chance to decide whether we do want to endorse a comprehensive program and spend 'these dollars. Mr. Pipes advised he will bring back an analysis of all the capital construction project fund balances next Tuesday night. Mayor Monday noted whenever we spend dollars, there is always something else standing in line that did not get funded and it behooves us to look at each item carefully. Councilmember Carter 'noted he is impressed with the information that the staff has produced by modern technology, as it is far superior ''to the information many other cities have; however, he agrees with the Mayor that we 1 irst need to make a policy decision about whether or not we need to televise all of the lines before we purchase equipment. Mayor Monday asked for this item to be brought back in the next meeting. 1987 -88 Budget Presented - -Mr. Pipes presented the newly bound budget to the Council. Liability Insurance Cost Decreased from Anticipated Gene Pipes advised the Council that the city attorney's preliminary review and information obtained today indicates the city may have a substantially decreased cost for liability insurance for this year. He said a complete analysis of that will be available at mid -year for review and possible reallocation of those funds in the ! range of $50,000. MAYOR'S ACTIVITY REPORT !Consider a Parks Board Appointment Mayor Monday then presented the name of Mr. Dan Leasure to serve out the unexpired term of Dr. Barbara Hart, who has recently moved out of town. It was noted her three year term continues until January of 1990, at which 'time Mr. Leasure would be eligible to be appointed to a "full" three year term. It was noted the other members of .the Parks Advisory Board are: Gary Bonner, Barry Tacker, Janet Fair, Judge Horton, Ralph Pease, Nancy Tiller and Laverne Warner. Councilmember Green made the motion to approve of this appointment and Councilmember Howard seconded the motion. All were in favor and the motion passe unanimously. Minutes of other City Boards Mayor Monday advised the Council that copies of all other board and commission meeting minutes will be provided to the Council in their agenda packets in the future so that each member of the Council will always know the status of the work of these various bodies. Huntsville Film Commission Mayor Monday advised this commission met with State Film Commissioner, Mr. Dana Shelton, and prospective film sites were identified. She said the Council will be kept advised. COUNCIL ACTION Loss of former Mayor Pro -tem and Councilmember, Larry Corley (died.on October 24, 1987) Councilmember Gene Barrett asked that the minutes reflect that we all sincerely regret the loss of Larry Corley to his family and to this community. Mayor Monday noted she is reminded of his most famous quote: "That dog won't hunt," that we have all heard him say so many times. She said a part of Larry is in this city and it will always be in this city and we are very proud of his contributions. Impact Fee Legislation Councilmember Knotts expressed his appreciation of the impact fee legislation information, noting he would like for the city to pursue this along with a rebate of utilities for future development. Illegal Dumping on Roans Ferry Road Councilmember Howard asked for "no dumping" signs on Roans Ferry Road at the left turn off of 9th Street, 'noting there is a significant amount of trash collecting there. ADJOURNMENT y October 27, 1987