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HomeMy WebLinkAboutCC Minutes 2009-09-14 Special 09/14/2009 3210 � STATE OF TEXAS )( CITY OF FRIENDSWOOD )( COUNTIES OF GALVESTON/HARRIS )( SEPTEMBER 14, 2009 )( MINUTES OF A SPECIAL MEETING OF THE FRIENDSWOOD CITY COUNCI� THAT WAS HELD ON MONDAY, SEPTEMBER 14, 2009, AT 5:30 PM AND A REGULAR MEETING AT 7:00 PM AT FRIENDSWOOD CITY HALL COUNCIL CHAMBERS, 910 S. FRIENDSWOOD DRIVE, FRIENDSWOOD, TEXAS, WITH THE FOLLOWING PRESENT CONSTITUTING A QUORUM: MAYOR DAVID SMITH MAYOR PRO-TEM ANDY RIVERA COUNCILMEMBER MICHAEL BARKER COUNCILMEMBER JIM HILL COUNCILMEMBER LESLIE REID COUNCILMEMBER BILL HOLBERT COUNCILMEMBER JIM BARR CITY ATTORNEY BOBBY GERVAIS CITY MANAGER ROGER ROECKER CITY SECRETARY DELORIS MCKENZIE Mayor Smith called the meeting to order. SPECIAL SESSION �. A discussion was held regarding the proposed FY2009-2010 General Operating Budget for the City of Friendswood. City Manager Roger Roecker commented that the Interim Administrative Services Director Cindy Edge will provide a PowerPoint presentation reflecting a historical overview of the budget process through today on the proposed budget revisions, effective tax rate, provided handouts to Council, costs per month breakdown, where does a Friendswood residents tax dollars go, water and sewer rates, long periods of time between rate changes, rate comparison for Single Family, monthly rates for area cities, discussed tax rate and perception by the public and supported no tax rate increase. Mayor and Council discussed the varying options for the budget process and thanked Staff for their dedication to this process. 7:00 PM—REGULAR SESSION The invocation was given by Co-Pastor Jon Petering with Hope Lutheran Church. Mayor Smith led the Pledge of Allegiance to the United States and to the State of Texas. SPECIAL RECEPTION A reception was held in the foyer of City Hall welcoming the new City Manager, Roger C. Roecker. PUBLIC HEARING Mayor Smith called a Public Hearing to order, to receive comments from the public, either oral or written, regarding the City of Friendswood proposed General Operating Budget for Fiscal Year 2009-10. ,�. Fred Krch, Friendswood resident, addressed Council and stated engineering should be looked at for various projects, stated he had given examples and asked why it has not been looked at, questioned the joint venture for a library with the school district that would save tax dollars. 09/14/2009 3211 � Bobbie Jones, Friendswood resident, addressed Council and stated she believes some things can be eliminated like removing Council facilitator and holiday decorations, there is a need of money for roads, eliminate entryway signs cost, this is not the time to consider signage, eliminate the parking lot striping at Centennial Park, these total over$92,000 if eliminated. Sherry Goen, Friendswood resident and Chair of Community Appearance Board, addressed Council and urged them to keep the City facility holiday decorations and entryway signs in the budget, are exploring joining Keep America Beautiful which is an organization that will make Friendswood eligible for grant funding, thanked Council for the opportunity to speak. Chris Peden, Friendswood resident, addressed Council and asked questions regarding the budget, stated he is looking for the balance sheet regarding expenditures for Hurricane Ike and asked what is the benefit of consultants Riveron as a grant writer and a facilitator versus adding a police officer. Mayor Smith stated the grant writer has been beneficial in getting the grants received for the expansion of the panhandle area and the facilitator has been productive in helping Council to work together. Mr. Peden asked about capital projects that have been identified and worked on over the years and the Mayor responded stating Council has been discussing this, is not in the budget but it is still being discussed. Mr. Peden stated at a time like this he believes there should be a freeze for employee's salaries and this would not be a bad message to send to the public, clients are struggling. The City Manager provided a PowerPoint presentation showing information on effective tax rate and stated the value has actually decreased. Information was presented on the water and sewer rates, projecting a tax, water and sewer rate reduction, cost per month breakdown for generat government, where does Friendswood residents tax dollars go, commended Council for continuing to give a 20% �--► homestead exemption, reviewed what is next, and stated a public notice will be published in the newspaper that will show tax rate calculation, no other publications are required because Council is cutting the tax rate. Staff will be bringing a budget forward with a tax rate of .5797 at the September 28, 2009, Council meeting. Janis Lowe, Friendswood resident, addressed Council and stated she commends City Manager Roger Roecker for commenting on following the law with publications, appreciates some of the budget cuts but still feels some other funds need to be addressed such as water rate reductions, increase street funding, park land dedication funds. Ms. Lowe asked Council to look at their budget for legal costs, less executive sessions would save dollars. Ms. Lowe stated she had submitted written comments which were submitted and would hope to get some response from Council. COMMUNICATIONS FROM THE PUBLIC Evelyn Timmons, Friendswood resident, addressed Council and stated her husband asked for current park utilization data and was told it did not exist, she knows it does exist and would like to get that information. Buddy Corbett, Friendswood resident, addressed Council and thanked them for the effort to get more park space, encouraged Council to continue that effort, provided statistics on numbers of players and the need of playing fields. Greg Hughes, Friendswood resident, addressed Council and commented on the youth sports fields needs, there are numerous studies on kids that are involved in sports, kids have fewer overall issues, worked on field needs over 12 years ago and the program cannot grow without more space, some Friendswood kids play home games in the Woodlands. '^'" 09/14/2009 3212 � Butch Brazzel, Friendswood resident, addressed Councii and spoke on sports fields needs and stated every year he has to go to the City requesting more fields and have to compete with other organizations for field use, has heard that the City may need to limit participation in youth sports due to lack of fields. Skip Marlow, Friendswood resident, addressed Council and stated he would like Council to adopt a rezoning ordinance changing certain areas from Single Family Residential (SFR) to Single Family Estates (SFE), the ordinance will help keep the area as it is now. Gabriel Davis, Friendswood resident, addressed Council and spoke in support of the sports program and spoke on the sidewalk located on Evergreen and Greenbriar, it is a small area and the only safe passage that students have that live north of the high school, would like to request the City to maintain it. The City has maintained it but states it is not City property, no one seems to know who put the sidewalk in or who owns it, that is not the point and the sidewalk needs funding to maintain that small portion of the sidewalk. Bobbie Jones, Friendswood resident, addressed Council and stated there is an urgent problem with pine bark beetles infesting area pine trees. Information needs to get out to residents that they must cut trees down in order for it not to spread, asked the City where to get rid of the trees and knows of at least 20 trees affected in the Forest Bend subdivision area. Fred Krch, Friendswood resident, addressed Council and gave out a copy of the Freedom of Information Act, stated he has asked for answers regarding the earnest money contract to purchase the 60 acres of park land and on the court ruling, learned from the newspaper that the City and the seller are discussing financial arrangements with the property owner and asked what case law would permit the City to discuss payment to property owner for a non-contract as ruled by the court and asked what legal right the City „�,,. has to pay the property owner. Janis Lowe, Friendswood resident, addressed Council and stated she was astounded to see an item on the agenda regarding considering action on the earnest money contract for the 60 acres of land for a sports park. Council does not seem to be listening to citizens or a Judge, who will Council listen to and asked about the field usage and policy in place, asked Council not to cause another lawsuit. Citizens are here to work with Council, Council needs to work with citizens. Deidre Brown, Friendswood resident, addressed Council and echoed what Mr. Krch and Ms. Lowe stated. Is sad of the loss of a long time Friendswood resident Evelyn Newman and amazed that citizens are asked not to clap but Council allowed clapping when Ms. Newman spoke on the 60 acres earnest money contract, misinformation was given to the public, candor is the biggest issue, there were some things Council did not know, the Mayor signed the wet/dry petition signed by 10 residents to get the petition process going, what interest did the Mayor have in this, stated the City is not following the law and questions the 60 acre contract being void. Leslie Roque, Friendswood resident, addressed Council and stated she is a part of the Friendswood 5 and supports parks for the children but asked Council to do it legally. COMMUNICATIONS FROM COMMITTEES AND SPECIAL REPORTS An annual report was given from Delinquent Tax Attorney Mike Darlow. The firm has been the City's delinquent tax collection attorney since 1987. Their efforts have been very successful in reducing the amount of delinquent taxes owed to the City. The fine and fee collection relationship began in 2008. Staff has been very pleased with the collection efforts which have resulted in approximately $500,000 to the City and to the State of Texas for court costs. .... 09/14/2009 3213 � ACTION ITEMS '"`Councilmember Hill moved to approve action regarding concurrence with the City Manager's appointments of Cindy Edge to Director of Administrative Services and Morad Kabiri to Director of Community Development. Seconded by Councilmember Reid. The motion was approved unanimously. **Councilmember Barr moved to amend the earnest money contract with Wight Realty to purchase the 60 acres of land as is. Seconded by Mayor Smith. Councilmember Holbert stated he placed this item on the agenda, is ready to move on beyond the subject and the reason he wanted to open this up for discussion is because he is perplexed, the understanding was that Council was going to Austin to ask to pay for this project with Certificates of Obligation (CO) and were told no and is perfectly fine with that. The answer to the other two questions that has not been given definitively is can the City buy land outside of the corporate limits and was that covered in the ruling. In addition, is this contract now voided. Is interested in both those subjects to move forward and put this to bed. There were some people that said they had some ideas that they wanted to discuss but stated he needs some help to clarify for himself. Mayor Smith asked City Manager Roger Roecker and the City Attorney to help Council think this through. There is an action item but not a definitive motion at this point for a specific action, is it possible to have this discussion or does Council need to a motion to begin with. The City Attorney stated for open meetings purposes it would have to be posted properly to have a � discussion but if it does not have a motion and a second it does not properly come before the body, would recommend some motion, maybe a motion to discuss, at least it would get the discussion item put properly before the body which is the Council. Councilmember Barr asked the City Attorney if a motion is made can that motion be amended or changed at any time, if a motion is made and turns out it is in the opposite direction that everyone wants to do then can the motion be amended. The City Attorney stated that is correct and Council does not have to vote for their own motion. Council can actually vote a motion to get it before the body and vote against it. Mayor Smith stated that the only time you have to speak in favor is if any initial comments are made on the motion that is made. The negative cannot be immediately spoken on, the first time spoken and the first thoughts on the motion will have to be spoken positively but as soon as someone else is heard from then they might change someone's mind then positive or negative can be spoken with regards to that motion or you just waive your initial right then anything you want can be said. Hopes all this makes a little bit of sense and apologized to citizens while waiting to get this straight so that it is done right. Councilmember Barr made a motion to amend the contract as is with Wight Reality Interest to purchase the land in Alvin as is and paying for the land and improvements that have been done to this point. He further stated he will be giving some reasoning, thoughts, and some of the homework that has been done. Mayor Smith asked Councilmember Barr if he would like to go with the motion to purchase as is and Councilmember Barr stated yes. Mayor Smith stated to facilitate the discussion there will need to be a second on the motion. The second does not say you agree with the motion but simply say you agree to discuss it. �. 09/14/2009 3214 � Councilmember Barr stated the last three weeks since the last meeting he has spent a lot of time trying to figure out what all of this meant, read 119 pages of the trial testimony from Austin and as he read it raised his eyebrows, tried to understand things and went back to read over it again, then read the prayer for a declaratory judgment and read the City's prayer cause that is the one that the Judge denied. Going through the testimony and out of the 119 pages there were some interesting parts of it in the very beginning the Judge indicates that this was not a normal exparte hearing because normally in an exparte hearing there is not an opposing party and in this case there was, there was the Friendswood Five. It was a different hearing starting and going through it and reading the arguments, it was very clearly argued does this City have the right to issue CO's without going to the voters or not and was it in violation of the Friendswood Charter, it was very clear that was very well argued. Later on the issue of could the City buy land outside of the City boundaries in another County in which it did not have jurisdiction, once again this was argued very well by both sides. The Judge asked a lot of questions of both attorneys and even asked questions based directly on Section 331, when got through reading this said well the Judge heard the Council's case and he ruled that Council could not do this. Then looked at the prayer and here is where the confusion is, this is the prayer. For many reasons expressed by the City respectfully praises this court upon trial and final hearing is subject to notice of intent being published and the petition period running in accordance with the act enter into a declaratory judgment declaring the City is authorized by law to issue the certificates, the City's resolution authorizing the publication notice of intention to issue the certificates is legal and valid and substantially the same form as exhibit B attached hereto, the City's ordinance authorizing the issue of the certificates is legal, valid and substantially the same as exhibit C attached hereto, the proposed expenditures of money raised by the issuance to certificates are legal and valid. The certificates themselves substantially in some form contain attached hereto are legal and valid. One of the attachments was the ability to buy the Alvin parkland, when that was read then said to himself that the Judge could not have ruled separately on the finro issues based on the City's prayer because the ,,,,,,,, City's prayer in all five issues was related to Certificates of Obligation (CO's) that everyone has heard much about. Asked a couple of attorney friends and did not give them any of the information, gave the attorneys an example and stated if suing and in a petition it is requested to receive a house, a car and a life insurance policy but in the prayer I only ask for the car and the house. Councilmember Barr commented to Deirdre Brown that she is laughing and stated he is not an attorney or an expert, but would appreciate the same respect Council gives her up at the podium and from him to her there. In the prayer if only asked the two of the three things and the prayer was granted what would he be entitled to. The two attorneys stated they have never heard of such a thing but would think he would only be entitled to the house and the car and would not be entitled to a life insurance policy. If it is not asked for in the prayer then it cannot be received, nowhere in the prayer was Section 331 mentioned. Had a meeting with Council, and attorneys Vinson and Elkins, City Attorney, and City Manager and asked them why Section 331 was not separated in the prayer and it was explained that in an exparte hearing it has to be a money related issue to be an exparte item, may not be wording it properly but basically it was telling him Council could not just ask for a ruling on the park so then he stated he asked if the Judge ruled or did not rule and it was stated if another Judge looked at the petition he could cite if the Judge did or did not rule and was not clear that the Judge did rule on this. Councilmember read the final judgment that the Judge sent down and part of his concern and frustration came from the final judgment because it is very generic in his opinion. It reads the court called this cause for trial on July 14, 2009, at which time the City of Friendswood and five of its citizens, Janis Lowe, Deborah Winters Chaney, Mel Austin, Kathy Rogers and Leslie Roque, self identified as the Friendswood Five, announced ready. The Attorney General of the State of Texas also appeared, trial was into the court which heard evidence and an argument of Council, after consideration of evidence and the arguments of Council the court hereby rules in the favor of the five citizens and against the City of Friendswood. A Judge ordered and decreed that the relief sought for the City of Friendswood is denied. The City takes nothing by reason of suit, the cost recorded tax against the City of Friendswood the judgment is full, is final and disposes of all claims, all relief not expressing granted is denied. This is where the confusion is because it did not say what the Judge was ruling on. If ,,,_, he is ruling on the prayer then Section 331 is not in it. This is why it was said to buy the land as is, the thought process is for the City to go forth and buy the land, it was mentioned the City still needs an animal control facility and that problem has not gone away. The City still has a park issue and that problem has 09/14/2009 3215 � not gone away, there are many different needs throughout this City and instead of spending money on an attorney to fight one way or another, whether were entering into a legal issue with David Wight, would like to enter into negotiations with City of Alvin if interested to possibly annex that piece of property which will resolve all arguments. If that property became part of Friendswood then the City would be able to have it and whether Section 331 does or does not apply goes away. Does not know if these things are possible and not saying they are but before the City walks away and decides if the City has a valid contract or does not have a valid contract, the City has cause or does not have cause, the need is still there and the kids still need fields, would love to go forth and stop right where it is, get with the committees, sports organizations, citizens and decide as a community what happens out there, what is built, when it is built, how it is built, how it is done and so forth. This is not an easy situation to work through but it is something that has to be dealt with as a Council and at the end of the day Council set forth over a year ago looking for this parkland and the needs have not changed. There is a Youth Action Council (YAC) and one of the things they brought up was a teen center or some places for the kids where they can go. There are a lot of different things out there that this land has the possibilities to fit. From his side that is where he stands and what he has done, do not know if right or wrong. The City is in the middle of something and wishes would have been able to get a clear answer and wishes Council would have appealed part of this and asked the Judge before August 6, 2009, if Council could appeal if the Judge did rule on that part, would have liked a clearer answer. Councilmember Holbert stated this was his dilemma and asked the City Attorney if his firm can render a formal opinion on either of his two questions with the first question being did the ruling definitively, in the City Attorney firm's opinion, preclude the City from acquiring or grant the City the ability to acquire this parkland outside the corporate City limits, does not have an answer and that is his dilemma. The second question is can he get a formal opinion that the contract the City has with Wight Reality Interests is a valid or invalid contract, still cannot get that opinion. Is having trouble moving forward and doing anything without the ability to get a definitive answer to either one of those questions, have exhausted all avenues, �" has no intention to go and wanting to do something if the City has an invalid contract. Has tried to determine what are the City's damages and what is read in the contract is different than what is read in the paper. Has asked those questions to the City Attorney firm and had other members of the firm explain why it could not be done so it leaves him in the same position. Mayor Smith stated Council keeps running up against the wall of what Council cannot do and that has been the hard part when it keeps getting thrown at Council, shift the frame of reference and start thinking about what Council can do then that may move Council in a forward direction. He stated the questions in his mind in listening to Council and other commentary is first of all, is Council going to acknowledge that moving forward when it comes to park space is in the affirmative. If the answer is no, then that answers where Council can plan on going, if the answer is yes, recognizes that there is still a challenge and this issue needs to be solved. If the land is annexed to Friendswood, then the some of the issues go away, personally still wants to move forward with the issue of needing more park space to alleviate overcrowding. Councilmember Holbert stated he is volunteering as a Little League coach this year, which is great. There is an earnest money contract that the City has entered into that has an expiration date or default date that Council must either execute or not execute on or around the November 30, 2009. Woutd like to put it out there and have this discussion, it is not a question. Has always agreed with everybody that it would be great to have additional park space when Council entered into the whole process that was the issue, but that is not specifically what is happening here today or what is bringing to the table. Would like to specifically know what does Council do relevant to this particular contract that Council has to either execute or default against on or before the November 30. If Council is not going to get a legal opinion from either the City Attorney or a secondary source that Council has gone out for then what are the alternatives. If Council goes ahead, what does Council do. Does Council get another Judge to answer ,,,�,, the question. He stated this is his dilemma and is not arguing the point about batlparks or sports parks. Of course the City needs them but is very perplexed that he cannot get or the rest of Council cannot get a 09/14/2009 3216 .._. definitive opinion. It is understood given the expianations that Council has had and the smail army of people that have been marched in front of him to explain it, that for them to render an opinion would be more or less hypothesizing what a Judge would say. Councilmember Barker stated he would like the Council to answer the question that Councilmember Holbert asked and get on the record what Council had to say on both issues. The City Attorney stated Councilmember Holbert has gone straight to the heart of the issue because there are problems with the contract as it exists right now. Ultimately on buying the land it would require almost a second guess as to what a Judge would do as far as what the Judge actually ruled in Travis County as Councilmember Barr pointed out. Council got a take nothing answer and while most Judges cannot resist getting a large opinion as to why the Judge is ruling a certain way, this particular Judge just signed the judgment that stated "take nothing", which means you have to look at the prayer and not only the prayer but the whole statute itself that the City was going under had to be related to the Certificates of Obligation (CO) issue. So did, by the Judge saying, "You take nothing", did he deny the City's relief based upon the Section 331 issue or did it go down with the CO's, is not clear from what the Judge wrote. Therefore, in that sense, it would require second-guessing what a Judge would say. That is why it is so hard to give a straight answer on that. Councilmember Reid asked the City Attorney to explain the Section 331 issue to those that do not know what it is. The City Attorney stated Section 331 is part of the Local Government Code that was the issue as far as whether the City could buy parkland outside of the County limits. There are some City limits versus ,,,,� County limits arguments but this particular statute of the issue was outside the County limits. It was actually argued in the pleadings and the hearing but as Councilmember Barr pointed out it was not in the prayer. There is some question as to what basis did the Judge deny that relief and that is something the City has gone over with Vinson and Elkins. Councilmember Barker stated when Council entered into this contract the City Attorney was involved in developing it and at that time, it was advised to Council that it was a legal contract. The City Attorney stated as far as the contract form, yes it was a legal contract. It is a basic earnest money contract form the law firm has used for many other City purchases and not too dissimilar from what someone would use in purchase of their own house. It is a basic earnest money contract. It was the subject matter that got called into question later based on the Section 331 issue versus home rule authority. Councilmember Barker stated Council went into great depth to make sure this was legal. Can Council do this and were those questions asked. The City Attorney stated the question was asked based on the home rule authority and he stated yes. Councilmember Barr stated that he asked if Mr. Wight would be willing to amend the contract and sell the land "as is" and asked if there was an answer received from Mr. Wight. The City Manager stated Mr. Wight stated he would be willing to talk to Council about any options that there were. Mr. Wight did not say yes or no directly to that question, but that he would be willing to talk to Council. �. 09/14/2009 3217 .� Councilmember Barr asked the City Attorney if Council could amend the contract. The only way to get an answer to ail this is to go forth somehow, just cannot find another way. There is no "definitely you can" and "definitely you cannot" or whatever. Would like to know if Council can amend this contract or would Council need a new contract. The City Attorney stated call it what you want, Council is starting with a new contract, new basis and then still with the same legal issue. Therefore, in that sense it would probably have to be continued on an option, on or contingent on, the City Alvin allowing Friendswood to incorporate enough of the particular area and put it inside the City limits so Friendswood would be in Brazoria County. So there are certain things that would have to happen to have the subject matter not be challenged on the same basis that this was challenged on. Councilmember Barr asked if it was challenged and if Alvin stated, "No we do not want to annex, we are not interested", then what happens. The City Attorney stated if Council did that then Council would probably be challenged on the same basis. Councilmember Barr stated Council would be challenged then but it would only be on Section 331 and it would not be related to Certificates of Obligation (CO's) and it would be in Galveston County. The City Attorney stated if there are no CO's involved then obviously it would not be a subject to the CO statute that was used in Travis County. Councilmember Barr stated he thinks the CO's is pretty clear on what was ordered and ruled in Austin. So, hypothetically, if Council decided to go for a new contract or amended contract and went forth with it ...� and the land was not in Friendswood, then would it be challenged in Galveston County. Mayor Smith stated in Brazoria County. Councilmember Barr asked would it be in Brazoria or Galveston County being as Friendswood is in Galveston County. This is another question. The City Attorney stated there might be multiple venues for that but usually it would be in the county where the land is situated in. Councilmember Barr stated at what point would the Judge have the opportunity of either a) reviewing this testimony should the Judge want to, and b) finding out what goes on, and finding out if Council goes forth. While that is going on Council would also have the opportunity to find out from Alvin if there is any interest and what would the interest be. Council has had discussions and different options have been presented. Council is sitting here doing nothing and like Councilmember Holbert stated this contract has a November 30 date of execution of performance that since square zero Council is going to go somewhere here. Councilmember Holbert stated the City Attorney would have to wait for a Judge or it would be making an assumption on what a Judge would rule in order to offer a definitive opinion on the two points that have been raised. Therefore, in the event that Council defaulted on the contract and was subsequently taken to court by Wight Realty would the Judges in that case definitively answer both of those questions. The City Attorney stated Council would be facing a claim of relitigation from Mr. Wight on payment for damages, which might be the only issue before the Judge. That might be the validity of the contract because certainly that issue would be does the City have an obligation to pay Mr. Wight and that would be the center of the contract, which in a way is related to the validity of the contract as a whole. �,,, 09/14/2009 3218 __.. Councilmember Holbert stated he is looking at the contract and it seems that there are multiple pages of argument that says that Mr. Wight believes that we have a commitment to him. So it is assumed that this is exactly how it would be argued. There is a commitment to Mr. Wight and that commitment would have to be based in part on the validity of the contract, number one. Then secondly would be how does Council fold in the ability or the inability not to acquire the land outside the corporate limits or whether Council has that authority. Then, the last question is in the event that something like that were to take place and the City Manager and Council were taken to court does Council have any sort of liability or errors in omission insurance that would pay for those damages. The City Attorney stated probably not but would have to confirm that absolutely with that scenario laid out before the Texas Municipal League(TML)attorney. Councilmember Holbert stated if, and not saying Council is, but if this Council decided to go ahead and pay the damages in the contract the way it is written, what would be the City Attorney's advice to this body. The City Attorney stated as much as he understands the desire to pay Mr. Wight and as much as it pains him because he has met the gentleman and Mr. Wight has been super through the whole thing and would have to say it is in the City's best interest in that particular case to take the position. The City has no obligation to pay Mr. Wight and go for that position and negotiate from that position because of the problems with the appropriation and Charter issues on that side. So if the City is looking at paying Mr. Wight then would have to take the position that it is the City's best interest to say we have no obligation to pay Mr. Wight and start from that position and negotiate from there. ,,,,,,,, Councilmember Barker asked if Council decided to pay Mr. Wight what would happen then. City Attorney stated it would be in violation of the City Charter for personal liability. Councilmember Barker asked the City Attorney what he would suggest Council do knowing the contractual obligations that Council has, what would the City Attorney recommend. The City Attorney stated it depends on whether the City wants to go forward and try to find a way to get a valid contract with Mr. Wight or if the City wants to not take that route, further stated his interest in the City is that it benefits the City and that reduces the obligations or eliminates the obligation, which he had as the City's Attorney saying that is in the best interest of the City to take that position. Councilmember Barker asked which would be the least perilous position for Council to take, should Council proceed on and try to do something like Councilmember Barr suggested or just wait to be sued. The City Attorney stated it depends on the ability to do so, given Alvin or if there is another purpose besides the park purpose the City might want to be there for because ultimately the City has a contract for 60 acres. The park use is the issue, if there are other uses that could be used then there might be a way to still do that. Councilmember Reid stated the choices are saying no to the contract and Mr. Wight is out whatever money he has spent to improve that land or pay and honor what the City stated they would do and then risk being sued personally for that. That is two of Council's choices right now. The City Attorney replied, yes. 09/14/2009 3219 � Councilmember Hill stated this has been a case where has never seen anything that was planned to be so good turn out so bad, appreciates Councilmember Barr and the Mayor wanting somehow to salvage this situation and appreciates ali these people from the sports association showing up tonight. There is another aiternative which is the only one that he would probably support. That is all you guys standing up here that support parks get together, put it on a referendum and find land in this town that will cost the City probably two or three times what the Alvin land would cost. If the people want them, they will pay for them, which is the only solution. Council asked from the beginning if it could buy land in Brazoria County in Alvin and were told yes. The same issue was raised regarding issuing the Certificates of Obligation (CO). Council was told it is no problem. The City was told the exparte route would cut the grief to the City and cut the time down. To get park land for the kids and the right way to do it is go to the voters and let them decide if they really want park land for the kids. He stated he feels desperately sorry for Mr. Wight, the only thing that man has done wrong is try to help the City of Friendswood and for that he may suffer substantial losses, thinks that we will drag the people of Friendswood through this ordeal even longer and his money is on getting a referendum and let the people decide what the City should do next. Councilmember Rivera stated his dilemma is similar to Councilmember Holbert and other Councilmembers. At the end of the day, Council still has a problem because the City still has a need for land to build parks. Council needs to do something with Certificates of Obligation (CO's) so that Council can spend the six million dollars in pavements that Council wanted to do for the City's streets. Council wanted to do a dog pound and a storage facility. Council is going to have to go back to the people and say "Hey, we need to do these and will you approve them?" At some point in time we are going to have to go back to the people and ask them for a tax increase because that is the only way Council can do it unless the CO's allow Council to issue it without an increase in taxes. But that does not solve the problem that the City has as to what does the City do with the kids so that they have park places to work out of. Mr. Wight has to request the annexation and he has to be willing to work with the City to do that. I think Council has got a little bit of time before exploring all options. If the City of Alvin is willing to work � with Council and build a regional dog pound and put some of our other facilities there, then it makes sense to buy that land and do it. Council should always try to honor contracts, but if iYs an illegal contract the Council does not have much choice. Councilmember Barr stated one of his concerns was if this does go to court and Mr. Wight is awarded damages then the City could spend a half a million dollars give or take. If he went to court Mr. Wight would ask for more than what we are assuming he is asking for now. Would want it to happen so that it is everybody's project and not just a few. Council heard from the Friendswood Five today that they would support a park for Friendswood if is done the right way. Do not want to see the potential of three to five hundred thousand dollars or whatever the number may be flushed away and the City walk away with nothing. When Council goes to buy other parkland, Council may pay two or three times the price. It just does not make sense and stated that is why he has struggled here with what made the most sense and was the most frugal with the tax dollars at this point given what Council had in front of them. Mayor Smith stated it seems that Council has a few issues in front of them that have to be answered for Council to move forward. Both of those issues require other folks in the discussion that requires Wight Realty Interests, and it requires the City of Alvin to try to answer those questions. The only way to answer that question is to have some further dialogue with them. Council is going to do it as right as they possibly can and stay within the boundaries of our Charter and the boundaries of the law. There are possibilities that Council could move forward, it might be a small step, and it might not be all sixty acres. Maybe it would only be part of it, but there are mutual benefits for the City of Alvin and for the City of Friendswood to partner together and to work together, that we bring things to the table that would be attractive to them for them to consider the deannexation of all or maybe part of that property to Friendswood. Would like to consider the possibility of amending the original motion, for this Council to give direction to our City Manager and our City Attorney to explore those two possibilities before Council ,,,�,,, makes a definitive decision about what is right for Council to do. Let us go have those conversations with 09/14/2009 3220 those two entities first, and find out if there is an interest for the City to mutually make a significant change of what Council is doing now and see if there is a way for Council to move forward with it and see if Council can find a win out of all of it. Councilmember Barker stated he would like to suggest that it is done in a public town hall meeting with the City of Alvin Council, Friendswood Council, and David Wight. If that is what Council decides to do, it needs to be done in a public venue someway, somehow so that everybody can participate, citizens of Alvin and citizens of Friendswood, rather than just go over there and meet with them, let us do it publicly. Councilmember Rivera stated that he would like to at least explore whether Mr. Wight and Alvin want to do so. If there is interest on their part to work with us then let Council have the public meeting. The City Manager and his Staff can work that interest issue and as soon as Council finds out that, there is some mutual interest then Council can all sit down and talk together. If Council is going to have a public meeting, which will not lead to any decision because Council is just exploring the issue, Council is not going to be any further than we are today and more important, the City is eating into Mr. Wight's time. Councilmember Reid stated she agreed with Councilmember Rivera. There is no reason to schedule a meeting with Council there to show up and then Alvin Council or David Wight say no I am not interested. Let us find out if either parties are interested before Council calls a big meeting together. Councilmember Holbert stated he still has tunnel vision, has asked two questions starting weeks ago and keep asking them repeatedly, debating them. The decision process is number one is this a valid contract and number two can the City buy land outside our corporate limits and have a definitive answer to both of those questions. � Mayor Smith stated if there is a possibility of making a change, which takes this existing contract off the table and therefore the question if the contract is legal goes away, there is no more question about whether that particular contract is valid or not. Secondly, if Council has an agreement with Alvin where it can move forward on annexation then the question of whether or not Council can buy property outside the corporate limits goes away. So, both of those would be answered if Council has affirmation from those two parties that they were interested in making those respective changes. Councilmember Holbert stated the option of paying for it through a Certificates of Obligation that is paid for through current revenues that does not raise taxes, is not an option. Now the option is to march down this path without the definitive knowledge if the City could buy land outside the corporate limit and then have the issue of the contract to deal with along with that. Now faced with to go ahead and pay the cash to do it, not so sure that Council can do all of the things that is talked about. Walking through the door to speak to the Mayor and the City Manager of Alvin and saying hey look by the way the City of Friendswood wants to swap 180 acres of your land that we are going to build an animal control facility and that we need to do this within the next number of days is daunting. How is it that this City can get a judgment rendered against it for gosh knows how many different other things and our insurance not cover or the multiple forms of insurance that we have not covered. That is the first place to go and look because if it is the case and Council did go to court with Mr. Wight, the City loses. Councilmember Barker stated Council needs to decide whether they are going to abide by the terms of the contract or is the contract not legal and not binding. Stated many people have sat here and accused him of wrongdoing and that he has profited by this. That was not what happened, thought it was an economical good way for the City to get some sports land and dragged his friend Mr. Wight through this. Mr. Wight has lived here for forty years and thought it would be something good for Friendswood on an economical basis. He further stated he is the first person that would like to have him caused damages, ,..�.. which it looks like he has done. Council came up with this idea to begin with. 09/14/2009 3221 � Mayor Smith stated if there is a way for us to solve all these problems and Council has not taken the opportunity to investigate that, then Council could be making a mistake. It would not take much to go over and have that conversation with the City of Alvin and with Mr. Wight to discover if there is a possibility that there is not a way for everyone to benefit from the situation. That is the first perspective and the second perspective is to ask this body to make a deliberation on a legal issue about whether Council thinks the contract is valid or not and state that publicly for someone who Council may face in court or against legal proceedings would be a mistake. *'"`Mayor Smith moved to amend the motion to give direction to the City Manager and City Attorney to see if there is interest by Alvin in an annexation and set up a joint meeting with the City of Alvin City Council in a public meeting to discuss the possibility of disannexation and annexation of 60 acres and animal control facilities. Seconded by Councilmember Rivera. The motion was approved 4-3 with Councilmembers Barker, Hill and Holbert opposed. Council asked for an action item to be placed on the September 28, 2009, Council meeting agenda in case action is needed regarding the 60 acres. *'`Councilmember Hill moved to approve a license agreement with the West Ranch Community Association relating to the use of property within the Viejo Crossing right-of-way and authorizing the Mayor to execute the agreement. Seconded by Councilmember Rivera. The motion was approved unanimously. CITY MANAGER'S REPORT .,�, No City Manager's Report was given. ACTION ITEMS **Councilmember Rivera moved to approve a notification letter to be sent to applicable property owners relating to the Single Family Estate zoning category (SFR-E) of a Town Hall meeting to discuss all options. Seconded by Councilmember Reid. The motion was approved unanimously. Community Development Director, Morad Kabiri will develop parameters and bring back to Council to have a Town Hall meeting with all the landowners that would be affected. Councilmember Reid left the meeting at this time. **Councilmember Rivera moved to approve revising a 2007 Consulting Services Contract with Freese & Nichols to provide updates and amendments to the Zoning Ordinance, and re-appropriating funds originally approved, but not spent. Seconded by Councilmember Holbert. The motion was approved 6-0. RESOLUTION Councilmember Rivera moved to approve Resolution R2009-50 - a Resolution of the City Council of the City of Friendswood, Texas, supporting H-GAC's recommendations and position statement on the CDBG Second Round Funding Allocation Plan. Seconded by Councilmember Barker. The motion was approved 6-0. .,..� 09/14/2009 3222 �... ORDINANCES "*Councilmember Hill moved to approve the Second and Final reading of Ordinance No. T2009-18, an ordinance amending Appendix C of the Friendswood City Code, said Appendix C being City of Friendswood, Texas, Ordinance No. 84-15, as amended, originally adopted the 19th day of November, 1984, and being the Zoning Ordinance of the City, by changing the zoning classification of a certain 1.033 acre tract of land located at 907 S. Friendswood Drive, within the City, from Neighborhood Commercial (NC) to Downtown District (DD), such tract also being Lots 3, 4 and 5 of Southern Breeze, a subdivision recorded in Volume 18, Page 353 of the Galveston County Map Records, Galveston County, Texas; providing for the amendment of the City's official zoning map; providing a penalty in an amount not to exceed $2,000 for each day of violation of any provision hereof; and providing for severability. Seconded by Councilmember Holbert. The motion was approved 6-0. **Councilmember Barr moved to approve the Second and Final reading of Ordinance No. T2009-19, an ordinance amending Appendix C of the Friendswood City Code, said Appendix C being City of Friendswood, Texas, Ordinance No. 84-15, as amended, originally adopted the 19th day of November, 1984, and being the Zoning Ordinance of the City, by amending Section 8, Supplementary District regulations; providing a penalty of an amount not to exceed $2,000 for each day of violation of any provision hereof; and providing for severability. Seconded by Councilmember Rivera. The motion was approved 6-0. *"Councilmember Rivera moved to approve the First reading of Ordinance No. T2009-20, an ordinance of the City Council of the City of Friendswood, Texas, ("City") approving negotiated resolution befinreen the Gulf Coast Coalition of Cities and CenterPoint Energy Entex ("CenterPoint" or"Company") regarding the �,,, Company's Cost of Service Adjustment ("COSA") filing; declaring existing rates to be unreasonable; requiring the Company to reimburse cities' reasonable ratemaking expenses; adopting tariffs that reflect rate adjustments consistent with the negotiated resolution and finding the rates to be set by the attached tariffs to be just and reasonable; adopting a savings clause; determining that this ordinance was passed in accordance with the requirements of the Texas Open Meetings Act; declaring an effective date; repealing any prior ordinances inconsistent with this ordinance and requiring delivery of this ordinance to the company and legal counsel. Seconded by Councilmember Barker. The motion was approved 6-0. COMMUNICATIONS FROM THE MAYOR AND COUNCILMEMBERS Councilmember Hill reported on the passing of past Mayor Evelyn Newman, has gained great respect for her over the many years. Ms. Newman served this City for 19 years and is a remarkable lady and she will not be replaced. Councilmember Holbert reported that he knows what everyone was doing at this time last year and it was following Hurricane Ike. Mayor Smith reported on the second day of Hurricane Ike, Staff came in and asked to find something that Council can do and that this Council got active. It was a good memory and is a chance to reflect on the work that everyone did and thanked everyone for working together. Councilmember Holbert reported that even Hurricane Ike could not keep City Secretary, Deloris McKenzie from taking minutes. Councilmember Rivera reported that Hurricane Ike brought this City, Council and Staff closer. � 09/14/2009 3223 ..., Mayor Smith stated he sends his sympathy to the Newman family, she lived an awesome life and served as a role model, great mentor to the community for many years, a good friend, service to this community and thanked the Lord for her. CONSENT AGENDA **Councilmember Barr moved to approve the Consent Agenda as presented A. Approve contract with auctioneer company for online auction services to dispose of City equipment and vehicles. B Approve Memorandum of Understanding MOU) for the U.S. Marshals Service District Fugitive Task Force and authorize the Mayor to execute. C Approve agreement with Friendswood Independent School District for use of the Sesquicentennial Swimming Pool. D Accept August 2009 Property Tax Report. C. Approve Minutes of July 16, July 20, July 27, August 3, August 13, August 17 and August 24, 2009, Meetings. Seconded by Councilmember Rivera. The motion was approved 6-0. A motion was made and approved to adjourn at 10:12 PM. Ma r Dav . . Attest: � FR�ENO �4 d'�y ... ' � O Delo �s McKenzie, TRMC v O City Secretary * * �P � ��°rF oF j��' .�,