A meeting of the Fayetteville City Council began at 5:30 p.m. Tuesday, July 2, 2019 inside room 219 of City Hall, located at 113 W. Mountain St. in Fayetteville.

Listed below are the items up for approval and links to PDF documents with detailed information on each item of business.

Present: Sonia Gutierrez, Mark Kinion, Matthew Petty, Mayor Lioneld Jordan, Sloan Scroggin, Sarah Bunch, Teresa Turk, Kyle SmithAbsent: Sarah Marsh

An ordinance to waive competitive bidding and accept a quote in the amount of $33,190.40 plus applicable taxes and freight from Jack Tyler Engineering, Inc. for the repair of a submersible pump for use at the Farmington Lift Station. – Pass 7-0

Decision: The council advanced the ordinance to the final reading and voted unanimously to approve it.

An ordinance to amend 31.45(C) Duties of the Fayetteville City Code to affirm that the City Prosecutor has the traditional inherent power to exercise discretion to dismiss most misdemeanor criminal cases. – Left on the first reading

It is a clarifying amendment to the section of the city code detailing the duties of the legal department including the city prosecutor. Although prosecutors have traditional inherent discretionary powers to dismiss cases that should not be further prosecuted, that discretion is not currently reflected in the Fayetteville City Code.

City Attorney Kit Williams said this clarification is needed to recognize those discretionary powers especially for cases of simple possession of marijuana of less than an ounce for private, personal, adult use.

Discussion: Kinion said he brought it forward because he thinks it’s important that the City Council makes it clear that they want small marijuana cases to be a low priority when it comes to enforcement. He said this is in response to recently released statistics from a local group that show a higher than expected amount of marijuana arrests in recent years, despite a 2008 ordinance that intended to make minor marijuana possession a low priority.

The new language states that the City Council encourages the use of discretionary power by the City Prosecutor “to ensure that appropriate cases of simple possession of less than one ounce of marijuana for personal, private, adult use be considered for dismissal.”

Council Member Matthew Petty said he thinks this is a good idea, but hopes the council goes even further in trying to address this issue.

“It’s one thing to give the prosecutor the ability to dismiss cases and not put forward further penalties, but it’s another thing to correct the excessive issuing of citations and having disparities in the issuance of citations,” Petty said.

Petty also suggested amending the language to mirror state law misdemeanor possession amounts (less than 4 ounces) by replacing the words “…simple possession of less than one ounce of marijuana…” with “…misdemeanor possession of marijuana…” so as not to limit the prosecutor to cases that only involve less than one ounce.

Some residents who spoke during public comment said the ordinance should go further by instructing the prosecutor to ignore or dismiss all misdemeanor possession of marijuana charges. Williams advised against those suggestions and said it is a violation of state law to willfully ignore statutes. He said this current ordinance is as far as the city is legally allowed to go with this matter.

Kinion suggested holding the item on the first reading to allow the public more time to weigh in. The council agreed. The discussion will continue on July 16.

Consent items are approved in a single, all-inclusive vote unless an item is pulled by a council member at the beginning of the meeting.

1. Steve Landers (Details): A resolution to approve the purchase of a Dodge Ram 1500 quad cab 4×4 truck from Steve Landers of Siloam Springs in the total amount of $22,993.00, pursuant to a state procurement contract, for use by the Utilities Department. – Pass 6-0

2. Freedom Powersports (Details): A resolution to authorize the purchase of a Kawasaki Mule from Freedom Powersports of Fayetteville in the amount of $10,836.90 for use by the Airport, and to approve a budget adjustment. – Pass 6-0

3. Cintas Corporation No. 2 (Details): A resolution to authorize a contract with Cintas Corporation No. 2, pursuant to an Omnia Partners cooperative purchasing agreement, for the rental and purchase of uniforms, mats, mops and other items through October 31, 2023, with two additional two-year renewal options. – Pass 6-0

4. CEI Engineering Associates Inc. (Details): A resolution to authorize a professional engineering services agreement with CEI Engineering Associates, Inc., pursuant to selection #23 of RFQ 19-01, in an amount of up to $135,000.00 for design and construction administration services associated with the Phase I development of Centennial Park at Millsap Mountain, and to approve a budget adjustment. – Pass 6-0

5. Black Hills Energy (Details): A resolution to approve a limited service agreement with Black Hills Energy in the amount of $10,948.00 plus applicable taxes to install a natural gas meter and bypass valve for the thermal drying unit at the Biosolids Management Site, and to approve a budget adjustment. – Pass 6-0

6. Hach Company (Details): A resolution to approve the purchase of 3 automatic sampler units from Hach Company for the West Side Wastewater Treatment Facility in the amount of $17,783.54 plus applicable taxes, and to approve a budget adjustment. – Pass 6-0

7. Hawkins-Weir Engineers, Inc. Amendment No. 2 (Details): A resolution to approve Amendment No. 2 to the professional engineering services agreement with Hawkins-Weir Engineers, Inc. in an amount not to exceed $38,420.00 for construction management and observation services associated with the Goshen Water Tank Rehabilitation Project. – Pass 6-0

8. Bid #19-18 Leher Enterprises, Inc. (Details): A resolution to award Bid #19-18 and authorize a construction contract with Leher Enterprises, Inc. in the amount of $238,777.00 for the Goshen Water Storage Tank Improvements Project, to approve a project contingency in the amount of $23,877.00, and to approve a budget adjustment. – Pass 6-0

9. Ozarks Electric Cooperative Corporation Change Order No. 1 (Details): A resolution to approve Change Order No. 1 to the contract with Ozarks Electric Cooperative Corporation in the amount of $156,128.00 for additional electrical make ready infrastructure costs associated with the solar projects at the two Fayetteville wastewater treatment facilities, and to approve a budget adjustment. – Pass 6-0

10. Watchguard, Inc. (Details): A resolution to approve a five-year software as a service subscription agreement with Watchguard, Inc. for the purchase and implementation of mobile video recorder system replacement for the Fayetteville Police Department in the amount of $409,433.00 for the first year and $18,983.75 per year in years two through five, pursuant to a National Association of State Procurement Officers cooperative purchasing contract, and to approve a budget adjustment. – Pass 6-0

11. Bid #19-30 81 Construction Group, Inc. (Details): A resolution to award Bid #19-30 and authorize a contract with 81 Construction Group, Inc. in the amount of $167,009.24 for construction of parking and sidewalk improvements at Gregory Park, and to approve a project contingency in the amount of $16,700.00. – Pass 6-0

12. Benson Mountain Water Tank Land Swap (Details): A resolution to approve the purchase of 0.72 acres from Dustin and Ryan Davis in exchange for the conveyance of 0.06 acres of city-owned land and payment in the amount of $25,000.00 plus the city’s share of closing costs, payment in the estimated amount of $10,338.00 for water meters, impact fees, and the relocation of utility poles to facilitate the removal and reconstruction of the benson water storage standpipe, and to approve a project contingency in the amount of $2,000.00. – Pass 6-0

13. City of West Fork Utility Easements (Details): A resolution to authorize the conveyance of utility easements to the City of West Fork for the installation of sewer lines required for the treatment of West Fork sewerage at the Noland Wastewater Treatment Facility. – Pass 6-0

A resolution to approve an agreement with Food Recycling Solutions, LLC for the hauling of organic compostables and recyclable material in the City of Fayetteville. – Pass 7-0

Compost would be delivered to the city’s facility. Commercial recycling could go elsewhere, but if that occurred, the company would be required to report where it was delivered and to which re-manufacturer it ultimately ends up at.

June 18 Discussion: During public comments, one person asked about language in the contract referring to residential pickup and non-food waste collection.

A representative for the company said they do not handle residential pickup, and they only work with food waste.

Blake Pennington, the city’s assistant attorney, said that language should be removed. He suggested tabling the item to allow the agreement to be revised. The council agreed. The discussion will continue on July 2.

July 2 Discussion: The council voted unanimously to amend the resolution to the new language, as suggested at the previous meeting.

An ordinance to amend Chapter 33 Departments, Boards, Commissions, and Authorities of the Fayetteville City Code to expand opportunities for Fayetteville residents to serve on city boards, commissions and committees. – Pass 7-0

This change would allow non-citizens to serve on some city boards, commissions and committees. The current law restricts those positions to “registered voters within the corporate limits of Fayetteville.”

The goal is to attract a more diverse group of candidates to serve on the local boards, following the city’s recently adopted Welcoming Plan, which recommends the city “explore barriers and encourage civic engagement for new Americans who wish to participate in boards, committees, commissions and other leadership positions.”

June 18 Discussion: Council member Scroggin asked if these changes inadvertently remove age requirements for volunteers. Council member Smith, who sponsored the proposal, said it wasn’t intentional when the ordinance was drafted, but he thinks encouraging a wider variety of age groups to apply is a good thing. Scroggin agreed, and said he only asked to make sure there wouldn’t be a later issue with recommendations made by minors. Scroggin said he’d love to see younger residents involved in the advisory board process.

Assistant City Attorney Pennington recommended holding the item to allow more time to investigate whether the ordinance violates the Arkansas “sanctuary cities” statute. The new state law prohibits cities from adopting any new policy that “grants to illegal immigrants the right to lawful presence or status within the municipality in violation of federal law.” Pennington said the city could be susceptible to losing discretionary state funds during an appeal if the Attorney General interpreted the ordinance to be in violation of that statute.

Paul Becker, the city’s finance director, said the amount of funds the city could lose may be up to $6 million.

Smith said he’s in no rush to immediately adopt the ordinance, but he doesn’t think the ordinance will be in violation of the statute.

The discussion turned to the state bill itself. It’s been said that the governor supports amending the ordinance to make it clear that the intention of the statute is to stop cities from neglecting to properly enforce federal laws regarding immigration, and not to regulate non-citizens’ eligibility to volunteer on a local advisory board.

He said leaving the current proposal up to the discretion of the current state attorney general is worrisome, especially at the risk of losing discretionary state funds.

City Attorney Kit Williams agreed, and said even if the city tried to fight the state statute in federal court, the city would lose those discretionary state funds in the meantime and likely would never recover it.

Council Member Kyle Smith said obviously the risk of losing funding was never an intention of the proposal. He thanked the City Attorney’s office for working with him on this proposal.

About a dozen residents spoke in favor of the ordinance. Many said that just because someone isn’t a citizen, it doesn’t mean they aren’t capable of presenting good ideas to the City Council for consideration. Having more diversity among the people who make recommendations to the council, they said, could only be a good thing for Fayetteville, and that it could also help fill some of the vacancies on those boards.

A couple of people said they didn’t like the ordinance at all, and insisted that only U.S. citizens should be allowed to serve.

Steve Clark, president of the Chamber of Commerce, said he’s against the ordinance. He said the council should instead look at ways to get more participation to fill board vacancies. He said anyone who wants to speak to the council can always come to council meetings and speak at the microphone.

Smith said speaking at council meetings is often the microphone of last resort when it comes to making recommendations, and that the goal is to have more diverse recommendations at a much earlier point in the policy-making process. He also reminded the audience that the boards the council is talking about are not policy-making bodies, but rather groups that make suggestions to the actual lawmakers.

Mayor Jordan thanked Smith for bringing the proposal forward. “We want all our residents to know they are welcome in Fayetteville,” Jordan said. “This item helps remove barriers and encourages city engagement from residents who may not yet be citizens but who are legally allowed to live or work here.”

A resolution to authorize the purchase of four Peterbilt 520 Side Loader Trucks with New Way Roto Pac bodies from Arkansas Municipal Equipment, Inc. in the total amount of $1,130,820.88, pursuant to a Sourcewell cooperative purchasing contract, for use by the Recycling and Trash Collection Division. – Pass 7-0

An ordinance to enact Chapter 75 Electric Motorized Scooters and Scooter-share Programs. – Left on the first reading

– Limiting the total amount of e-scooters that could operate within the city to 1,000. – Creating a permit process to require each vendor to pay a $150 fee plus $20 per scooter every six months. Vendors would be limited to 250 scooters, but could increase their total to 500 after the initial six-month permit period ends. – Prohibiting users from riding e-scooters on sidewalks that a building faces. – Requiring e-scooters to be parked in a way that doesn’t impede pedestrian or vehicular traffic, and that doesn’t interfere with the Americans with Disabilities Act. They must be parked standing upright, and must not block transit shelters, commercial loading zones, railroad tracks, passenger loading zones, disability parking, street furniture, building entryways or vehicle driveways. – Limiting the per-minute charge to be no greater than one-fifth of the unlock charge. – Requiring vendors to provide access to the e-scooters to residents who don’t own a smart phone. – Requiring the e-scooters to be equipped with GPS technology that allows no-ride and slow-ride zones.

Discussion: Council Member Sarah Bunch said she’d like to ensure that the batteries from the e-scooters are recycled when they can no longer be charged. City staff said the ordinance does require the companies to have a battery recycling policy in place.

Scroggin said he’s concerned about inadvertently creating a monopoly by only allowing a certain amount of scooters and then having one company fill that maximum amount. Bunch suggested the number be revisited in six months and possibly again after 12 months.

Petty said he’d like to start with the 1,000 number that staff recommended since it’s not always easy to revisit and change a law after it’s implemented. He said maybe an automatic adjustment system could be implemented that’s based on usage numbers.

Council member Turk said the city needs to go slow in the process, and said she’s in favor of Bunch’s suggestion to lower the maximum amount of scooters allowed.

City staff said since there’s still one more council meeting before the state law goes into effect, the council could wait another two weeks before making a decision if more time is needed to fine-tune the ordinance.

An ordinance to waive competitive bidding and accept a quote in the amount of $49,492.00 plus applicable taxes and freight from Jack Tyler Engineering, Inc. for the purchase of a submersible pump for use at the Farmington Lift Station. – Pass 7-0

An ordinance to rezone that property described in rezoning petition RZN 19-6666 for approximately 0.40 acres located at 119 and 127 S. West Avenue from NC, Neighborhood Conservation to MSC, Main Street/Center. – Left on the first reading

The applicant has stated that the MSC, Main Street/Center rezoning is necessary to expand the development options of the property, including the potential for an art gallery, office, restaurant, or bar. While the current NC zoning district does allow for small offices, restaurants, and retail as conditional uses, there is no allowance for bars.

Turk suggested holding the item on the first reading to allow for more time for public comment. The council agreed. The discussion will continue on July 16.

An ordinance to rezone that property described in rezoning petition RZN 19-6678 for approximately 0.69 acres located at 2280 W. Stone Street from RSF-4, Residential Single Family, 4 units per acre to RMF-24, Residential Multi Family, 24 units per acre. – Pass 6-0

An ordinance to approve VAC 19-6672 for property located along Marks Mill Road to vacate portions of two conservation easements. – Fail 2-5

The subject properties are located in the southwest corner of the Summit Place Phase 2 subdivision, south of Township Street, and east of College Avenue. The lots were platted on February 23, 2017.

Discussion: Council Member Mark Kinion said he’s concerned about losing the protections gained during the previous rezoning. Turk said she has the same concerns. She said the drainage easements are established for a reason, and the council would need a good reason to change it – which she has not yet seen.

City staff said the Planning Commission’s recommendation of an extended diversion berm would be sufficient in making sure water still drains into the retention pond.

City Attorney Kit Williams said he’d like to amend that condition of approval to read as follows: “The diversion berm shall be extended to the south if determined by City Engineering staff to be necessary or advisable to protect the downstream property owner adjacent to the west. The extended berm shall be inspected for completeness.”

Petty said he is always skeptical in situations like this, but he trusts the city engineering staff’s opinion.

An ordinance to approve VAC 19-6689 for property located at 1923 N. Candleshoe Drive to vacate a portion of a general utility easement. – Pass 7-0

Both the Planning Commission and city planning staff are in favor of the request with the following condition of approval:

Discussion: A representative for the applicant said the easement comes right up to the back door of the home, and that any patio improvements are currently impossible. The applicant is asking to vacate 10 feet of the 20-foot easement.

– The use of fireworks in Fayetteville is legal through July 4, with some exceptions. – City offices are closed Thursday, July 4.

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