Regular Meeting
December 19, 2006
The
Mayor and Council of the City of Fairbury met in regular session in the
Council Chambers, 612 D Street, Fairbury, Nebraska, on the 19th
day of December, 2006, at 7:30 p.m. Mayor E.M. Mueller called the meeting
to order.
Notice
of meeting was given in advance thereof by publication in the Fairbury
Journal News, Fairbury, Nebraska, the designated method of giving notice, as
shown by affidavit of publication. The Open Meetings Act is posted in the
Council Chambers as required by law.
Roll
call found the following Council Members present: Brown, Phillips, Byrd,
Trimm, Nelson, Bender, Fry, and Polson. Absent: none.
Mayor Mueller
read the Consent Agenda. (1) Approval of the minutes of the regular meeting
of December 5, 2006. (2) Approval of claims. (3) Approval of the November
2006 Reconciliation Report. City Administrator Jim Ferneau stated that the
City will not be paying the Police Department claim to Cit Technology
Financial Services as listed on the claim sheet due to the fact that the
lease was cancelled over a year ago. Ferneau also stated the claim to
Superior Outdoor Power listed under the Police Department is actually a
Parks Department claim. Ferneau noted the Intoxilyzer Fund has been added
to the claims and handed out a general ledger transaction listing for the
fund for the current fiscal year. Nelson stated he believed the minutes
should be amended to read that the motion to approve the agreement for waste
disposal with Wal-Mart would be amended to say the City would have the right
to pick up Wal-Mart’s garbage if in the future the City had the equipment to
do so. Byrd made a motion to approve the Consent Agenda with the minutes
amended to include the change in the motion to approve the Wal-Mart garbage
agreement. Motion seconded by Phillips. On roll call, Brown, Phillips,
Byrd, Trimm, Nelson, Bender, Fry, and Polson voted “yes.” Motion carried.
Mayor Mueller
requested approval of the following appointments to Standing Committees:
Finance & Keno Committee – Polson (Chair), Nelson, Bender, and Trimm;
Personnel Committee – Phillips (Chair), Polson, Brown, Fry, and Schacht
(BOPW); Public Safety Committee – Brown (Chair), Trimm, Fry, and
Byrd; Public Works Committee – Byrd (Chair), Bender, Phillips, and
Nelson; Planning Committee – Trimm (Chair), Nelson, Phillips, and
Fry. Byrd made a motion to approve the Mayor’s Standing Committee
appointments. Motion seconded by Trimm. On roll call, Brown, Phillips,
Byrd, Trimm, Nelson, Bender, Fry, and Polson voted “yes.” Motion carried.
Phillips made a
motion to approve the letter of resignation received from Greg Koerwitz from
the Citizens Advisory Review Committee. Motion seconded by Fry. Mayor
Mueller stated that there will now be two vacant spots on the committee.
Discussion ceased. On roll call, Brown, Phillips, Byrd, Trimm, Nelson,
Bender, Fry, and Polson voted “yes.” Motion carried.
Trimm
made a motion to approve the Mayor’s appointment of Greg Koerwitz to the
Planning Commission, term to expire September 2009. Motion seconded by
Brown. On roll call, Brown, Phillips, Byrd, Trimm, Nelson, Bender, Fry, and
Polson voted “yes.” Motion carried.
The
Council considered an Application for Relief from Sanitation Fees as
submitted by Kaleb Wehling. Byrd stated the Council has not allowed this
before and that he did not want to set a precedent of doing so. City
Attorney Tim Noerrlinger stated Wehling is receiving full utility services.
Brown made a motion to deny the request for relief from sanitation fees.
Motion seconded by Fry. On roll call, Brown, Phillips, Byrd, Trimm, Nelson,
Bender, Fry, and Polson voted “yes.” Motion carried.
The
Council considered Change Order No. 2 to the contract with General
Excavating for construction of Downtown Redevelopment Project Improvements
with an additional cost of $127,223.40. Ferneau stated General Excavating
has signed off on the Change Order and that the project was completed on
time. Byrd made a motion to approve Change Order No. 2. Motion seconded by
Trimm. On roll call, Brown, Phillips, Byrd, Trimm, Nelson, Bender, Fry, and
Polson voted “yes.” Motion carried.
The
Council was presented with a Retainer Agreement Contract with Tim
Noerrlinger, City Attorney. Noerrlinger stated the contract was basically
the same as the previous one except that it is now on an annual basis.
Bender made a motion to approve the City Attorney’s contract. Motion
seconded by Phillips. On roll call, Brown, Phillips, Byrd, Trimm, Nelson,
Bender, Fry, and Polson voted “yes.” Motion carried.
The
Council discussed the franchise agreement with Aquila, natural gas service
provider. Aquila representatives Rick Schwartz and Jan Davis were present.
Davis addressed the Council stating Aquila is asking for a 25 year franchise
agreement which would be a 15 year agreement with a 10 year rollover. Davis
stated a longer agreement term is being sought to enable the company to
recoup costs associated with improvements made to the system within the
community. Davis stated Ferneau initially wanted a 5 year agreement term
but that the majority of the agreements renewed within the last two years
have been 25 year agreements. Nelson questioned the City’s ability to
revoke the contract. Noerrlinger advised the City would be required to show
good cause to find Aquila in default of the agreement; otherwise the City
doesn’t have a case to revoke. Nelson asked if the majority of other towns
are at 5% of gross receipts. Davis and Schwartz stated most towns the size
of Fairbury are at 5% and that most of the smaller communities are at 3% of
gross receipts. The Mayor stated he did not like to see long term contracts
due to energy market volatility. Nelson questioned a section in the
agreement pertaining to the Nebraska Public Service Commission and Aquila
not having to collect the franchise fee if the NPSC no longer requires it.
Davis stated this means that if the NPSC says Aquila can no longer collect
the fees, then Aquila is no longer obligated to do so. Ferneau requested a
clause be in the agreement stating a 9% penalty will be assessed if Aquila
fails to remit the franchise fees by their due dates. Davis stated yes,
that could be put back in the agreement. Davis and Schwartz requested they
be allowed to meet with the City Administrator and City Attorney to complete
the agreement. Council Members were in agreement that this would be
appropriate. Discussion ceased. No action was taken.
The
Council considered Resolution No. 645 creating a special committee to
negotiate with Fairbury Steaks regarding its Memorandum of Understanding (MOU)
with the City for a grant of LB840 funds and repealing any conflicting
resolutions. Council Members to serve on the committee are as follows:
Byrd, Nelson, Fry, and Polson. Noerrlinger stated two different versions of
an MOU were presented at the first meeting in December and that there were
several differences between the two. Noerrlinger stated this committee is
being created to negotiate terms of the agreement with Dennis Brown and
Fairbury Steaks. Nelson requested permission to abstain from any final
votes on this matter to avoid a potential conflict of interest; Nelson
stated he did want to be a part of the special committee. Ferneau informed
the Council that he had been contacted by Kevin Burnison of the Southeast
Nebraska Development District (SENDD) and Mary Simmons of Aquila with an
offer of assistance in development of the MOU with Fairbury Steaks. Ferneau
stated both Burnison and Simmons are experienced in writing MOUs for LB840
funds and that it would make sense to work with them on this project. Fry
stated she would like to see the City work with Burnison and Simmons.
Dennis Brown expressed his dislike with the situation, stating an agreement
was reached with the City Administrator and Attorney and that the City is
now reneging on what was decided. Ferneau stated there are no statutes
governing MOUs such as this, but that many MOUs follow what is done for
dispersement of federal and state funds. Dennis Brown stated he believed
that it was agreed upon that funds would be dispersed in the form of a
one-time lump sum payment; Mayor Mueller disagreed stating that at the
meeting where the Council approved the grant to Fairbury Steaks it was
stated funds would not be dispersed all at one time. Trimm stated the
Council and Mayor want to see Dennis Brown expand his business and that they
have tremendous potential to do so, but that as representatives of the
citizens of Fairbury the Council must be judicious in the distribution of
such funds. Kent Preston, member of the Board of Public Works, stated the
City Administrator and Attorney must develop an agreement and bring it to
the Council for decision. Mayor Mueller declared the purpose for adopting
Resolution No. 645 and creating the special committee is to iron out details
and bring an MOU before the entire Council for decision. Phillips made a
motion to adopt Resolution No. 645. Motion seconded by Byrd. On roll call,
Brown, Phillips, Byrd, Trimm, Bender, Fry, and Polson voted “yes.” Nelson
abstained. Motion carried.
Noerrlinger reported additional steps are being processed in regards to the
non-reappointment of Police Chief Rick Carmichael prior to bringing the
matter to hearing. Ferneau stated a Loudermill Hearing between Carmichael
and the Mayor must first take place. Bender asked if Noerrlinger would be a
part of the Loudermill Hearing. Noerrlinger stated yes, he would
participate in the Loudermill Hearing. Noerrlinger stated Carmichael
remains on administrative leave. There were no other reports.
Bender made a
motion to adjourn the meeting. Motion seconded by Byrd.
On roll call, Brown, Phillips, Byrd, Trimm, Nelson, Bender,
Fry, and Polson voted “yes.” Motion carried. Meeting adjourned at 8:25
p.m.
E. M.
Mueller, Mayor
Tami Arnold, City Clerk
