Council Chambers
Municipal Building
March 13, 2007
The McAlester City Council met in regular session on Tuesday, March 13, 2007, at 6:00 P.M. after proper notice and agenda was posted March 9, 2007, at 5:00 P.M.
Present: Buddy Garvin, Haven Wilkinson, Sam Mason, Greg Rock, Travis Read and Don Lewis
Absent: Donnie Condit
Presiding: Don Lewis, Mayor
Staff Present: Mark Roath, City Manager; Bart Van Nieuwenhuise, Assistant City Manager; Robert Ivester, City Attorney; Jerry Lynn Wilson, Expo Director and Cora Middleton, City Clerk
INVOCATION
Pastor Jody Domingue, Victory Park Baptist Church
PLEDGE OF ALLEGIANCE
Mayor Don Lewis led the pledge of Allegiance.
SCHEDULED BUSINESS
Consider Action on Planning Commission Recommendation to Rezone Certain Property from R1-B (Single Family Residential) to R-2 (Two Family (Duplex) Residential)
ORDINANCE NO. 2252
AN ORDINANCE AMENDING THE GENERAL ZONING ORDINANCE AND ACCOMPANYING MAP THERETO KNOWN AS GENERAL ZONING ORDINANCE NO. 1843 (1989), BY CHANGING THE CLASSIFICATIONS OF THE ZONING DISTRICT FOR: LOT 5 BLOCK 63, NORTH MCALESTER, STATE OF OKLAHOMA FROM R1-B (SINGLE FAMILY RESIDENTIAL) TO R-2 (TWO FAMILY (DUPLEX)RESIDENTIAL).
Councilman Wilkinson moved to approve ORDINANCE NO. 2252 seconded by Councilman Read.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Mason, Read, Rock, Wilkinson, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Planning Commission Recommendation to Approve Use Permitted After Review on Property Located at 906 E. Wyandotte
Councilman Garvin moved to approve the Use Permitted after Review on the property located at 906 E. Wyandotte. The motion was seconded by Councilman Wilkinson.
There was no discussion, and the vote was taken as follows.
AYE: Councilman Wilkinson, Mason, Garvin, Rock, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Planning Commission Recommendation to Approve Use Permitted After Review on Property Located at 1308, 1310 and 1312 E. Wade Watts Avenue
Councilman Mason moved to approve the Use Permitted after Review on property located at 1308, 1310 and 1312 E. Wade Watts Avenue. The motion was seconded by Councilman Read.
Before the vote, Councilman Mason stated that in looking at the remarks in this Planning Commission case, Mr. McNally had pointed out that there would have to be a fence between the building and the residential house to the west of the location. Councilman Mason further stated that there were several other items that had been addressed during the Planning Commission meeting, one of which was the type of fencing to be constructed. He then stated that he had a prepared statement and he asked that the following be stated verbatim in the minutes of this meeting. Council Mason then read the following statement: “The Planning Commission has recommended approval of Case No. S.R. #101. In their approval it is noted that there would have to be a fence between the proposed building and the residential house to the west of the location. Said fence was not shown on submittal drawings. I propose that the Council requests the City Manager to direct that a building permit not be issued until a corrected drawing accurately shows the exact location of said fence, its height, type of material to be used, and other details of construction. All items are to comply with the land development codes. Following a submittal drawing meeting all requirements and final approval, the City Manager may direct the issuance of said building permit.”
Mayor Lewis asked if Councilman Mason wanted to make a supplemental motion concerning his statement.
Councilman Mason moved to have a detailed drawing of the fence, the type of material to be used, and an accurate location of the fence be submitted for approval before a building permit would be issued. Councilman Rock seconded the motion.
Before the vote on the supplemental motion, Councilman Read asked if the Council would be specifying the type of material they required to be used in the fence. Councilman Mason stated that would be at the discretion of the City Manager.
There was no further discussion on the supplemental motion and the vote was taken as follows:
AYE: Councilman Rock, Mason, Garvin, Wilkinson, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the supplemental motion carried.
Mayor Lewis asked if there was any further discussion on the original motion.
Councilman Rock asked what recourse the City of McAlester would have if the contractor did not follow the requirements of the Council. He said this had occurred in the past and nothing had been done except to refuse the contractor another building permit.
Mayor Lewis and City Attorney Ivester stated that the City could require that the fence be torn down and replaced with a fence that met the requirements or the contractor could be taken to court to deal with the situation.
There was discussion among the Council concerning a recent occurrence where a building had gotten through permitting with metal sides. When confronted by the City, the owner covered the sides with vinyl siding. It was also mentioned that the owner should have met the land development code before the permit was issued.
Councilman Rock stated that he just wanted the contractors to realize that if they did not follow City Code there would be repercussions.
Mr. Ivester stated that the City could always refuse water and sewer service until they complied with the requirements.
Mayor Lewis, Councilman Rock, Councilman Read, and Mr. Ivester discussed that the proposed construction was to be done by a City employee and that the public could be assured that his work would not be on City time.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Read, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Agreement with Jeff Andrews, AIA, to Provide Architectural Consulting Services in the Wilkinson v. City of McAlester Lawsuit
Councilman Read moved to approve the Agreement with Jeff Andrews, AIA, to provide Architectural Consulting Services in the Wilkinson v. City of McAlester case. The motion was seconded by Councilman Mason.
Before the vote, City Manager Roath stated that the attorney representing the City had recommended that the City retain an outside architect to assist in his representation. He added that the contract before the Council was for Mr. Andrews’ services and, once the litigation was completed, his services would no longer be needed. He further added that the architect’s services were estimated to be $3,500.00.
Councilman Rock asked that, in the absence of an Architect for the City, would that leave the City in the position of relying on the other party’s expert.
Mr. Roath stated that Councilman Rock raised a good point, with the City having their own expert it would even the playing field and this would allow the City to counter the information provided by the plaintiff’s Architect.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Read, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Resolution Waiving Standard Bidding Procedures for the Repair of the Main Air Conditioning Unit for Southeast Expo Center and Declaring an Emergency
Councilman Mason moved to approve RESOLUTION NO. 07-03, to waive the standard Bidding procedures for the repair of the main air conditioning unit for the Southeast Expo Center and declaring an emergency. The motion was seconded by Councilman Garvin.
Before the vote, Mayor Lewis asked Ms. Jerry Lynn Wilson to explain this matter to the Council.
Ms. Wilson thanked the Council for allowing her the opportunity to speak about this issue. She stated that the cooling system at the Expo had been damaged during the 2007 Ice Storm and FEMA had decided that it was an allowable claim, but that FEMA wanted the City to file the repair with our insurance carrier before they would entertain the claim. She advised that our insurance carrier had agreed to pay the cost of the repair. She further stated that if the Council approved this resolution; then, it would take approximately 10 weeks before the repair parts were received to complete the unit.
Councilman Mason and Mr. Ivester discussed the facts that if this was covered 100% by the insurance why do anything except to use the insurance settlement to complete the work. After considerable discussion, it was decided that the repairs would be over $25,000.00 which required competitive bidding unless it was declared an emergency and said requirement was waived.
Councilmen Mason and Rock discussed their concerns with declaring an emergency and bypassing the competitive bid procedures. They noted that the lack of air conditioning could be seen as an inconvenience rather than an emergency affecting public health and safety. Councilman Rock stated that he was not comfortable with waiving the competitive bidding rules. Ms. Wilson stated that in the past few days the temperature in the offices had been around 80 degrees and several scheduled reservations in which people could be adversely affected by not having air conditioning in place. She also noted that some users of the facility had complained about the temperature. She further stated that if this repair was required to go out for bid it could take a month to receive the bids and then longer to get the repairs completed and that could affect the 72 bookings that were already made for the next several months.
Mr. Roath stated that he understood the difficulty of the situation; but the law was very broad in scope and allowed for Council action to declare this item an emergency. He stated that this repair was caused by an unforeseen event. He stated that this repair was eligible for FEMA reimbursement but that our insurance carrier agreed to pay the cost of the repair. He stated that reasonable people could differ on whether air conditioning was an inconvenience or a health and safety concern, especially depending on the health of the patron using the facility. He further stated that the failure to make this repair in a timely manner could result health problems for future patrons; thus, resulting in a potential liability risk for the City.
Councilmen Read and Garvin discussed that there were two sections in Statute 61; they were Sections 65 and 130. Councilman Read stated that Section 65 dealt with construction and section 130 dealt with repairs and used the word or instead of and he felt that it wasn’t an accident. He stated he felt this gave cities more leeway. He further stated that this met the unforeseen occurrence test and it didn’t need to meet the public health and safety test. Councilman Garvin stated that he agreed with Councilman Read in this matter. He added that no one wanted to get into trouble but the City didn’t want to get behind either.
Councilman Rock and Mayor Lewis discussed that there were areas that had been uncomfortable in the past before the ice storm and that the west end of the Expo has never been air conditioned.
Councilman Rock stated that he would like to have future information presented more clearly and since he had heard the information Mr. Roath and Councilman Read had presented, he more clearly understood the situation.
Councilman Mason still felt that since the repairs would cost more that $25,000.00 competitive bidding procedures should still be followed, so that in the future, no one could come back and say that it had been conducted illegally.
Mr. Ivester stated that, in his opinion, this met the emergency clause requirement and they needed to consider the employees that were currently working at the Expo. He stated that the Council also needed to consider all of the future events scheduled, and that if there was no air conditioning and someone attended an event and got sick, then the situation would affect public health and safety.
Mayor Lewis asked Mr. Ivester if, in his opinion, it wasn’t illegal and would require a two-thirds vote for this issue to pass.
Mr. Ivester stated that he did not consider it illegal and, yes, it would take a two-thirds vote.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Garvin, Rock, Read, Wilkinson & Mayor Lewis
NAY: Councilman Mason
Mayor Lewis declared the motion carried.
Consider Action on Bid Award to Frontier International Trucks, Inc. in the Amount of $101,529.94 for the Purchase of a New Commercial Roll-Off Hoist Truck and Chassis
Councilman Mason moved to approve the Bid award to Frontier International Trucks, Inc. in the amount of $101,529.94 for the purchase of a new Commercial Roll-off Hoist Truck and Chassis.
The motion was seconded by Councilman Read.
Before the vote, Councilman Mason stated that he wanted to make a point. He stated that, some time ago, the Council had been asked to waive the standard bidding procedures on this matter and they had not approved that request. He added that by following the standard bidding procedures they had saved the City of McAlester roughly $30,000.00. He stated that he could assure that with the past councils and managers, the standard bidding procedures had been waived many times, in violation of this law, and he did not want to be a part of that.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Mason, Read, Rock, Wilkinson, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Resolution to Direct Filing and Notification of the Publication of Biennial Supplements to the McAlester City Code of 1972
Councilman Garvin moved to approve RESOLUTION NO. 07-04, to direct filing and notification of the publication of Biennial Supplements to the McAlester City Code of 1972. The motion was seconded by Councilman Mason.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Mason, Read, Rock, Wilkinson, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
CITY MANAGER’S REPORT
Mr. Roath stated that he would make his report brief, since he understood that the Council still had the Executive Session to return to after this meeting.
Mr. Roath reported that the debris collection had begun yesterday. He noted that there had been some initial problems with the general contractor and his subcontractors, however that had been resolved. Mr. Roath thanked the citizens, on behalf of the City Council, for their efforts and continued patience with the debris clean up process.
MAYOR, COUNCIL, COMMITTEE REPORTS
Councilman Garvin reported that the cleanup had begun in 5th Ward or Zone 1 yesterday. He expressed concern about the small debris that had been left behind by the cleanup crews. He asked if the residents were being asked to clean up the small debris that was left.
Mr. Roath stated that the City was asking for the citizens’ assistance in cleaning up the remaining debris left by the contractor, but the City would also make every effort to assist residents, if need be.
Councilman Mason asked if he had missed the approval of the minutes.
Mayor Lewis stated that the minutes had inadvertently been missed but would be addressed before the close of the meeting.
Mayor Lewis stated that he thought it was important that the City of McAlester and MEDS got together and discussed what was expected from each other. He added that there was not one rule for the distribution of resources because there was only a limited amount of funds and it should be all inclusive. He further stated that the Council was responsible for the final decision of how the funds were used.
Mayor Lewis reported that the Centennial Committee was continuing to meet and was forthcoming with dates and plans for events. He also reported that the Downtown Merchants Association had met this past week to discuss issues concerning the central shopping area.
Mayor Lewis reported that the Puterbaugh Foundation had donated 100% of the cost and freight to replace the trees on West Carl Albert Parkway/U.S. 270 Hwy.
CONSIDERATION OF MINUTES—PRECEDING MEETINGS
Mayor Lewis stated that if there were no corrections to the minutes of the preceding meetings they would be approved as distributed.
Councilman Rock stated that he would like the minutes to reflect that he was the Councilman that had questioned Mr. Blankenship about contacting a bank and he was the Councilman that had stated that the City was not a bank.
Councilman Mason moved to approve the Minutes of the Special Meetings held on February 27, 2007, and March 1, 2007, and the Regular Meeting held on February 27, 2007, as amended. Councilman Read seconded the motion.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Read, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
(APPROVAL OF CLAIMS TO BE PAID AS FUNDS ARE AVAILABLE) – FISCAL TRANSACTIONS
Councilman Wilkinson moved for approval of claims as follows: General - $296,637.75; Nutrition - $6,165.16; Educational Fund - $23,449.77 and SE Expo Center Fund - $1,951.63. The motion was seconded by Councilman Garvin.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Wilkinson, Mason, Garvin, Rock, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
ADJOURNMENT
There being no further business to come before the Council, Councilman Wilkinson moved for the meeting to be adjourned, seconded by Councilman Read. The vote was taken as follows:
AYE: Councilman Read, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried, and the meeting was adjourned at 6:57 P.M.
ATTEST:
__________________________
Don R. Lewis, Mayor
____________________________
Cora Middleton, City Clerk