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HomeMy WebLinkAbout2002.0905.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL Lor September 5,2002 Mayor Jon Beydler convened the regular session at 5:00 p.m. AGENDA ITEM #1 - PURSUANT TO A.R.S. §38-431.03.A.4 AND A.R.S. §38-431.03.A.1, VOTE TO GO INTO EXECUTIVE SESSION FOR: DISCUSSION OR CONSULTATION WITH THE ATTORNEYS OF THE PUBLIC BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS ATTORNEYS REGARDING THE PUBLIC BODY'S POSITION REGARDING CONTRACTS THAT ARE THE SUBJECT OF NEGOTIATIONS, IN PENDING OR CONTEMPLATED LITIGATION OR IN SETTLEMENT DISCUSSIONS CONDUCTED IN ORDER TO AVOID OR RESOLVE LITIGATION, SPECIFICALLY MEDIATION AND APPEAL IN HOFFMAN/ROBINSON/KNAPP VS. TOWN, ET AL. AND FOR DISCUSSION OR CONSIDERATION OF EMPLOYMENT ASSIGNMENT, APPOINTMENT, PROMOTION, DEMOTION, DISMISSAL, SALARIES, DISCIPLINING OR RESIGNATION OF A PUBLIC OFFICER, APPOINTEE OR EMPLOYEE OF ANY PUBLIC BODY, EXCEPT THAT WITH THE EXCEPTION OF SALARY PUBLIC MEETING. THE PUBLIC BODY MUST PROVIDE THE OFFICER, APPOINTEE OR EMPLOYEE WITH SUCH PERSONAL NOTICE OF THE EXECUTIVE SESSION AS IS APPROPRIATE BUT NOT LESS THAN 24 HOURS FOR THE OFFICER, APPOINTEE OR EMPLOYEE TO DETERMINE WHETHER SUCH DISCUSSION OR CONSIDERATION SHOULD OCCUR AT A PUBLIC MEETING. (THE COUNCIL WILL DISCUSS CANDIDATE FOR THE TOWN ATTORNEY POSITION). Councilman Archambault MOVED to convene the executive session. Councilwoman Ralphe SECONDED the motion. The motion CARRIED unanimously. Mayor Beydler recessed the executive session at 6:15 p.m. AGENDA ITEM#2-RETURN TO REGULAR SESSION lbw Mayor Beydler reconvened the regular session at 6:30 p.m. Following the pledge to the flag and an invocation by Pastor Don Lawrence of Christ's Church,roll call was taken: ROLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor Jon Beydler, Vice Mayor Fraverd, and Councilpersons Kathleen Nicola, Mike Archambault, Rick Melendez, Susan Ralphe, and John Kavanagh. Also present were Town Attorney Bill Farrell, Interim Town Manager Sintra Hoffman, and Director of Administration/Town Clerk Cassie B.Hansen. Mayor Beydler reviewed the memorial events to be held this September 11 to commiserate the events of one year ago. Mayor Beydler read the Consent Agenda (1-6): AGENDA ITEM #1 - CONSIDERATION OF APPROVING THE MEETING MINUTES OF AUGUST 12 AND 15,2002. AGENDA ITEM #2 - CONSIDERATION OF THE SPECIAL EVENT REQUEST SUBMITTED BY THE CHAMBER OF COMMERCE FOR OKTOBERFEST 2002 SCHEDULED FOR OCTOBER 11, 12 AND 13 IN FOUNTAIN PARK. ALTHOUGH TRAFFIC CALMING MEASURES WILL BE TAKEN ON SAGUARO BOULEVARD FROM EL LAGO TO PALISADES, NO STREET CLOSURES WILL BE REQUIRED. AGENDA ITEM#3- CONSIDERATION OF THE SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY THE CHAMBER OF COMMERCE IN CONJUNCTION WITH THE OKTOBERFEST EVENT SCHEDULED FOR OCTOBER 11, 12 AND 13 IN FOUNTAIN PARK. Town Council Meeting Minutes of 9-5-02 Page 1 of 12 AGENDA ITEM #4 - CONSIDERATION OF APPROVING THE RENEWAL OF THE ANNUAL SLURRY SEAL CONTRACTS WITH SOUTHWEST SLURRY SEAL. AGENDA ITEM #5 - CONSIDERATION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND THE MARICOPA COUNTY SUPERIOR COURT FOR THE SERVICES OF AN AZTEC TRAINER TO TRAIN STAFF ON THE NEW DOMESTIC VIOLENCE MODULE AS WELL AS AN UPCOMING SOFTWARE UPGRADE. AGENDA ITEM #6 - CONSIDERATION OF ACCEPTING A BRONZE STATUE CREATED AND DONATED BY DR. RUSSO COMMEMORATING THE FIREMAN AND POLICE OFFICERS OF SEPTEMBER 11. Councilwoman Nicola asked that agenda items 1, 2, and 3 be removed from the consent agenda for discussion. Councilwoman Nicola MOVED to approve the consent agenda (Items 4, 5, and 6) and Councilman Archambault SECONDED the motion. A roll call vote was taken with the following results: Vice Mayor Fraverd Aye Councilman Kavanagh Aye Councilman Melendez Aye Councilman Archambault Aye Councilwoman Ralphe Aye Councilwoman Nicola Aye Mayor Beydler Aye The motion CARRIED unanimously. AGENDA ITEM #1 - CONSIDERATION OF APPROVING THE MEETING MINUTES OF AUGUST 12 AND 15,2002. Councilwoman Nicola stated the minutes of August 15, 2002 were incorrect. On page 2 of 12, Agenda Item#12 was a duplicate of agenda item 10 and should reflect the correct item verbiage. On page 11 of 12, she felt there was a word missing on page 11 of 12 (Agenda item#20). Councilwoman Nicola MOVED to approve the minutes ittaw as corrected and Councilman Archambault SECONDED the motion, which CARRIED unanimously. AGENDA ITEM #2 - CONSIDERATION OF THE SPECIAL EVENT REQUEST SUBMITTED BY THE CHAMBER OF COMMERCE FOR OKTOBERFEST 2002 SCHEDULED FOR OCTOBER 11, 12 AND 13 IN FOUNTAIN PARK. ALTHOUGH TRAFFIC CALMING MEASURES WILL BE TAKEN ON SAGUARO BOULEVARD FROM EL LEGO TO PALISADES, NO STREET CLOSURES WILL BE REQUIRED. Councilwoman Nicola asked if this was a major or minor event. Director of Administration Town Clerk Cassie Hansen responded this was a major event because there would be a major traffic change to Saguaro Blvd. Councilwoman Nicola noted that this application had been received less than the 90 days required date as specified on the application and there were several bL ;ks in the application. She asked if the applicant could correct the blanks in the application this evening. Director Hansen questioned which areas Councilwoman Nicola was referring to. Councilwoman Nicola asked if there was an agreement with MCO to utilize their dirt lot for parking and if there was a complete listing of the vendors with what they were selling. She noted that the admission charge was missing as well as a listing of the nearest residents that might be affected by the music. Councilwoman Nicola asked if it was appropriate for the $100 or the $500 event fee to be paid by the Chamber. Director Hansen responded that the $100 fee was appropriate as the Chamber was a non-profit organization and the organizer of the event. Director Hansen acknowledged that someone from the Chamber was present who could address those other items. She explained that her memo had indicated that the Chamber was in the process of getting the written permission for parking from MCO. She noted that some of the bookings had not been finalized at the time the application was submitted. Therefore, the list would be received prior to the event taking place and would be on file with the application. Frank Ferrera,Executive Director Of The Chamber Of Commerce He pointed out that this was the second time the Chamber had been involved with this event. They felt that this was an event that the community and the German Club wanted. If there were dissention among the Council, then Town Council Meeting Minutes of 9-5-02 Page 2 of 12 the Chamber would not hold it as he recognized that this event was not a grand fathered event. He explained that at the time the application was submitted it had been as complete as they could make it. He remarked that the supplemental information was available but could not be given tonight. He confirmed that the Chamber would be selling the Johnsonville Bratwursts and the beer. Councilwoman Nicola explained that as a new member of the Council her intentions were to make sure she had a full understanding of the event. Mr. Ferrera assured the Council it was not the Chamber's intention to do sloppy work. AGENDA ITEM#3- CONSIDERATION OF THE SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY THE CHAMBER OF COMMERCE IN CONJUNCTION WITH THE OKTOBERFEST EVENT SCHEDULED FOR OCTOBER 11, 12 AND 13 IN FOUNTAIN PARK. Councilwoman Nicola MOVED to approve Agenda items 2 and 3 and Vice Mayor Fraverd SECONDED the motion. Councilman Archambault asked Mr. Farrell if the Council would be setting a precedent by waiving the application criteria for this particular event. Town Attorney Bill Farrell responded no. He explained that there would be events where the sponsor could not provide the Town with all of the information required 90 days in advance. He acknowledged that events would always have an element of"work in progress". Mr. Farrell assured the Council that if the serious issues were missing, the Town would stop the event. Councilman Archambault pointed out that the application had been submitted on 8-5-02, which was clearly less than the 90 days required. He questioned if the Council would be setting a precedent by accepting this application? Mr. Farrell replied no. Director Hansen clarified that the intent of the special event ordinance requiring the 90-days was because staff had been receiving very last minute event applications. The 90-day statement was an attempt to get applicants into more of a pro-active frame of mind when submitting their applications. The fact that the application stated 90 days did not mean that staff would not take application. This was to help staff with the review process, as meetings had to be held with the various departments (Parks and Recreation, Street Department, Fire Department, and Marshals Department) involved to review the many aspects of an event. If the review deadlines could adequately be met, then staff was comfortable with the event. Councilwoman Nicola asked Fire Chief LaGreca if it were true that his staff would not be needed on site for the event and that they would be inspecting the tents. Fire Chief LaGreca indicated by a nod that was correct. Councilman Melendez commented that the Chamber was the heart and sole of the Town. He confirmed that he had attended last year's event and thought it had been successful. He added that from a security standpoint there hadn't been any complaints received. He agreed that the 90 days should be looked at more carefully, but he wanted to move on and pass this issue. Councilman Kavanagh suggested that if in the future the Council members saw small problems with an application, that they should contact the town manager for clarification. That would allow staff time to correct the problem and then these types of applications could remain on the consent agenda. Bruce Hansen, 15716 E. Sunburst(General Chairman of the Oktoberfest event) He stated the event was his responsibility. He said that if the Council did not want the Chamber to hold the event, they did not have to give their permission. He explained that the Chamber took over the event from the German Club due to their lack of resources. He pointed out that the Chamber was risking a lot to put on the event on and he had hoped that they would receive the support of the Council. The motion CARRIED unanimously. AGENDA ITEM#7 - CONSIDERATION OF APPROVING THE AGREEMENT OF SETTLEMENT AND GENERAL RELEASE BETWEEN THE TOWN OF FOUNTAIN HILLS ARIZONA MUNICIPAL PROPERTY CORPORATION AND TOWN OF FOUNTAIN HILLS, ARIZONA; BNY WESTERN TRUST COMPANY, AND MERRILL LYNCH & CO., INC, MERRILL LYNCH MONEY MARKETS, INC., MERRILL LYNCH GOVERNMENT SECURITIES, INC., AND MERRILL LYNCH, PIERCE, FENNER& SMITH INCORPORATED. Mr. Farrell gave a briefly reviewed the events to date. He stated with the assistance of the firm of Gust Rosenfeld .. (specifically Mr. Jim Marburger) the Town had recovered the entire $2.1 million dollars plus interest for the entire period in addition to$40,000 in attorney fees. He recommended approval. Town Council Meeting Minutes of 9-5-02 Page 3 of 12 Councilman Kavanagh MOVED to approve the settlement agreement and general release as presented and Councilwoman Ralphe SECONDED the motion. Councilman Kavanagh thanked Mr. Farrell for his efforts to regain the funds. He noted that the past Council had �ir� received criticism over this PG&E situation although it had been the investment people who had screwed up it up. Councilwoman Ralphe also extended her thanks to the lawyers who were present. She had expected that the Town would have to settle for a percentage on the dollar. The motion CARRIED unanimously. AGENDA ITEM #8 - DISCUSSION WITH POSSIBLE ACTION ON ESTABLISHING INSURANCE REQUIREMENTS FOR THE TOWN ATTORNEY AND TOWN PROSECUTOR. Interim Town Manager Sintra Hoffman stated that Councilwoman Nicola had requested that staff research whether or not other cities and towns require a certificate of insurance from their outside attorneys. She acknowledged that Accounting Supervisor Julie Ghetti had completed the research by contacting several municipalities. The results were that five out of eight cities did require a certificate of insurance from their outside attorneys. Ms. Hoffman proposed that staff could handle this action administratively by requesting a certificate of insurance from the outside attorneys. Councilman Archambault MOVED to give direction to staff to proceed as suggested by Ms. Hoffman and Councilwoman Nicola SECONDED the motion. Councilwoman Nicola requested a friendly AMENDMENT to the motion establishing that the Town's minimum insurance requirement be in line with those of the Southwest Risk Pool. Ms. Hoffman pointed out that the staff report indicated that the Arizona Municipal Risk Retention Pool (Southwest Risk) recommends that municipalities require a minimum of $1 million dollars for professional liability insurance for all outside professional contracts including attorneys, engineers etc. Southwest Risk also suggested that independent prosecutors provide professional liability insurance to cities and towns that would cover actions beyond the prosecutorial immunity provided by municipal coverage. She felt that the Town could use those standards. Councilman Archambault agreed. Councilman Kavanagh questioned that since the Town already had these people under contract and this might not be a term of their present contract, how would this additional requirement work. Mr. Farrell responded that the Council was in a unique position as far as the Town Attorney was concerned. In the past thirteen years there had not been a written contract with him as the town attorney. With regard to the prosecutor, he felt it might present a problem because he did not think that the prosecutor was performing anything other than prosecutorial duties. He pointed out that there was immunity for prosecutors. Mr. Farrell suggested that if the Council desired to have that additional comfort level, they might want to amend the contract to include the cost of the insurance in the contract rather than change the contract this year and reevaluate the bids next year. Mr. Farrell acknowledged that there was an agreement in place with the current contractor right now but it was not written for prosecution. He commented that this requirement would affect the new town attorney. However, whoever was selected would offer the Town at least $1 million dollars in E & O. Councilman Kavanagh asked how to handle the situation with the existing prosecutor. Mr. Farrell clarified the Council should not to assign any non-prosecutorial duties. The Council could indicate to the prosecutor that the Council would like to have a certificate of insurance. He pointed out that if the contract needed to be purchased, the contractor might ask the Town add the cost of the policy into this year's contract. Mr. Farrell stated that was a decision that the Council would have to make since they had not required the contractor to have it in place when the proposal was approved. Councilwoman Nicola understood that only the prosecutor's letter of intent had been accepted as part of the budget process. Mr. Farrell agreed there was not a written contract with the prosecutor at this time. Councilwoman Nicola noted that part of the prosecutors' duties were to provide advice to the law enforcement officers and some training. Director Hansen clarified that the costs associated with those duties were not included in this year's budget. Town Council Meeting Minutes of 9-5-02 Page 4 of 12 Councilwoman Nicola asked to see something in writing from Southwest Risk Pool regarding a contracted prosecutor vs. an in-house prosecutor to ensure that the Town was completely clear on that. Councilman Melendez asked Risk Manager Wally Hudson to comment on this issue. Wally Hudson He responded that the Municipal Risk Pool's basic contract automatically covered any Town employee. If the lawyer were an employee of the Town, he or she would be a beneficiary of all the benefits that Town employees receive. The Town's liability for his or her actions would automatically be covered. If a contract attorney were used, that did not follow. He acknowledged that the Town had used a contract attorney in the past and that the Town had never asked for a certificate of insurance from Mr. Farrell. He commented that with the type of claims that the Pool was receiving the Town should ask any non-employee attorney to furnish a certificate of insurance for professional and public liability in the amount of at least$1 million dollars. The prosecutor should have a clause in the contract that states he provides the Town with insurance or that he does not have insurance. He reiterated that if the prosecutor were a Town employee, then he or she would automatically be covered with no additional premium required other than the additional payroll as that was the basis of the Town's premium with the Pool. Councilman Kavanagh asked if the prosecutor currently had insurance. Ms. Hoffman replied she did not think he had insurance. Councilman Kavanagh commented that since the Town had negotiated an agreement with the prosecutor and this clause was just now being added that Council should proceed with Mr. Farrell's suggestion. Councilman Kavanagh AMENDED the motion to allow the prosecutor to place the cost of liability insurance into the contract. This was a new obligation placed upon the prosecutor, which had not been taken into account when bidding. Vice Mayor Fraverd SECONDED the motion. Mayor Beydler asked Mr. Farrell what the cost might be for the E & 0 insurance, as he did not think it was inexpensive. Mr. Farrell said he would be uncomfortable giving the Council a quote as it could be anywhere from $1,500 to$9,000. Mayor Beydler expressed he wanted to know what the cost would be before agreeing to add that amount into the budget. Mr. Farrell noted that another factor in the cost would be the deductible. He proposed that the Council ask for the quote first and then decide. Councilwoman Nicola asked Mr. Farrell if contract attorneys serving multiple municipalities buy separate liability insurance for each municipality. Mr. Farrell responded no. They would have one policy for their entire practice. Councilwoman Nicola remarked that she would not support paying for liability insurance for an independent contractor. She did not want to pay for insurance for other municipalities as she felt that was the responsibility of the contractor. Councilman Kavanagh proposed that this item be continued. That would allow staff time to research what the cost of the insurance would be, determine if the prosecutor worked for other municipalities, or if the Town needed to require insurance at all. He reiterated that if the prosecutor were restricted to only prosecutorial duties, then Town would not have any liability. Councilman Kavanagh MOVED to continue this item until the next Council meeting (9-19-02) to give staff time to prepare their report and Vice Mayor Fraverd SECONDED the motion. The motion CARRIED unanimously. AGENDA ITEM #9 - CONSIDERATION OF ORDINANCE 02-13 AMENDING THE TOWN CODE, CHAPTER 12, ARTICLE 12-2, TRAFFIC CONTROL, SECTION 12-2-12, COMMERCIAL VEHICLES PROHIBITED ON CERTAIN STREETS, BY ADDING A SECTION OF TECHNOLOGY DRIVE AND GOLDEN EAGLE BOULEVARD AS TRUCK ROUTES; BY DELETING A SECTION OF TECHNOLOGY DRIVE, SAGUARO BOULEVARD, AND LASER DRIVE AS TRUCK ROUTES; AND BY ADDING EAGLE RIDGE DRIVE AND SUNSET VISTA DRIVE AS TOWN ENTRANCE/EXIT LOCATIONS FOR THROUGH TRUCKS. Councilman Archambault stated that upon Mr. Farrell's recommendation he was declaring a conflict of interest with regard to this item. Mr. Farrell confirmed that Councilman Archambault would not participate in the discussion or the vote. Councilman Archambault left the Dias. Town Engineer Randy Harrel reviewed his staff report. He stated that staff recommended approval of the truck route changes as written. r Vice Mayor Fraverd MOVED to approve Ordinance 02-13 and Councilwoman Ralphe SECONDED the motion. Town Council Meeting Minutes of 9-5-02 Page 5 of 12 Jack Bercel, 17220 Malta Dr. and Industrial Park business owner off Laser Dr. He stated he has always been against the gate on Technology Drive. He pointed out that Saguaro Blvd. had always bordered the Industrial Park. He said that the people in the Industrial Park should be allowed to use Saguaro. He pointed out that the Technology Drive access has always existed and yet the residential property continues to �• encroach on the Industrial Park. Mr. Bercel expressed he was against this proposal. Grace Jakubs, 16440 N Aspen Dr. She was against opening Golden Eagle Boulevard as a truck route. She asked the Council to reconsider that option because Golden Eagle Boulevard was where the high school was located. She pointed out there was a tremendous amount of bus, car, foot, and bicycle traffic generated at the school site. This was also the entrance to residential areas. She expressed concern for public safety. Vice Mayor Fraverd asked why would large trucks need to use Golden Eagle Boulevard. Mr. Harrel reviewed that Golden Eagle truck route would stretch from Palisades to the Sierra Madre intersection branching off to the collector streets. Trucks would be making delivers or pickups in that area. Mr. Harrel stated that this ordinance would make Golden Eagle the preferred route for trucks rather than Desert Canyon or Sunset Drive. Vice Mayor Fraverd asked for an example of what type of truck would use Golden Eagle. Mr. Harrel responded anything larger than a large pick up truck. Mayor Beydler expressed that the trucks were going to use those other streets anyway if they were delivering to someone's house. Mr. Hanel stated that trucks were allowed to go off the truck route to their destination by the shortest route. Councilman Melendez asked what was the weight of these trucks. Mr. Hanel replied 8,000-pound g.v.w. Councilman Kavanagh asked if the same thing could be accomplished by limiting the particularly heavy trucks on SunRidge Drive. He questioned if staff was trying to prevent trucks from turning from Palisades onto the streets. Mr. Hanel acknowledged that would be one of the reasons. Councilman Kavanagh inquired if small and medium sized trucks could be allowed, but ban large trucks from SunRidge Dr. That way Golden Eagle would not have to be made a truck route. Mr. Hanel explained staff would have to define a different type of truck route, perhaps an intermediate truck route. He expressed that right now the Town Code agreed with State Law, which did not differentiate between intermediate and large trucks. Councilman Kavanagh asked if large trucks were prohibited on SunRidge, would that remove the need to make Golden Eagle a formal truck route. Mr. Harrel pointed out that trucks were not allowed on SunRidge unless they were making a pick-up or delivery by the closest route. Councilman Kavanagh questioned why the Town was doing this. Mr. Hanel reiterated that although approved in 1997, the text had been left out of the ordinance itself. Councilman Kavanagh asked if there were problems in the area now. Mr. Harrel replied no. He felt trucks were currently using Golden Eagle, as they would be under these conditions. Councilman Kavanagh AMENDED the motion to delete Golden Eagle Blvd. from the truck route and Vice Mayor Fraverd SECONDED the motion. Rich Schultz, 13316 Vista Del Lago He commented that the school food service truck, which was a large truck, used Golden Eagle for deliveries. Mr. Harrel responded that did not make any difference since that would be the shortest distance to travel from the truck route. The amendment CARRIED unanimously (6 0). Councilman Melendez asked if Eagle Ridge turned in Palomino. Mr. Harrel responded yes. Councilman Melendez asked if there were signs on Palomino that prohibited truck traffic. Was Mr. Harrel suggesting that it be opened to truck traffic as an alternate route? Mr. Harrel affirmed that the signs would stay. He explained the ordinance only allowed trucks that were passing through the Town to use Shea Boulevard or go out McDowell Mountain Road. This ordinance would allow trucks to go out of Town via Eagles Ridge Drive and Sunset Vista Drive. He reiterated that this was a technical modification. Now Town Council Meeting Minutes of 9-5-02 Page 6 of 12 Mayor Beydler asked what was going on at the Target Center and he wanted to understand the purpose of what was being done there. Mr. Harrel described the previous truck route. He stated the section of Technology out to Shea was added so that there was another route to get into that area. In addition, there was a gate on Technology at the south end. The ordinance was merely pulling those two truck routes away from that gated area. Essentially, this would legally accomplish what had already physically been done as required by the prior Council's 1999 stipulation for the Target Four Peaks Plaza complex. Councilwoman Ralphe asked Mr. Harrel to clarify what the Council was being asked to approve. Mr. Harrel reviewed that in 1999 the Council had approved closing Technology Drive at Saguaro Boulevard. He confirmed that had been done. Staff now needed to modify the Town Code designating the truck route that would go through that area where the gate was. This Council was being asked to acknowledge the reality of the previous Council's decision made. Councilwoman Ralphe questioned if this was an opportunity for this Council to take a fresh look at the previous Council's decision. Mr. Harrel responded that the Council was free to review any previous Council's decision that they wanted to. He felt at this point it was premature to know what type of affect the Target Center would have on traffic. He commented that staff had taken traffic counts prior to Target's completion and would take traffic counts again once Target was open. Mr. Harrel acknowledged that if the Council wanted to bring forward a modification after the Target Center was operational and the evaluation complete,that could be done. Jack Bercel He said that in the future if things didn't work out and the gate needed to be open, that was fine with him. He stated the purpose of this traffic change had stemmed from the concern expressed by the residents in the area as to whether or not Saguaro Boulevard was blocked. He felt with a complex of that size, the traffic should be able to circle the entire complex. He did not agree that Technology Drive North would be adequate for him as a business owner. Mayor Beydler restated that staff would monitor the situation and the Council could consider modifications if the data so warranted. The amended motion CARRIED unanimously. AGENDA ITEM #10 - DISCUSSION WITH POSSIBLE ACTION REGARDING MEDIATION. (THIS ITEM WAS CONTINUED FROM THE AUGUST 15,2002 COUNCIL MEETING.) Councilman Archambault returned to the Dias. Councilman Kavanagh MOVED to appoint an adhoc citizen committee to study various methods of the delivery of fire and ambulance service and the effects the different plans would have regarding overall costs and quality of service. The committee would be comprised of three to five residents who were somewhat neutral in the fire issue. He proposed that these individuals should not be employees of Rural Metro, former Fire Board members, or individuals involved in the present litigation yet these individuals should have some prior experience in the area fire or emergency medical services. If Council approved this action, direction should be given to staff to solicit resumes from interested residents immediately so that the committee appointments could be completed within two weeks. Vice Mayor Fraverd SECONDED the motion. Councilman Melendez asked if this would be a commission or a committee. Councilman Kavanagh responded the committee would simply exist for this purpose. The committee would have to comply with State Statues, the open meeting laws, and all notice requirements. He said they should also have access to town staff. Councilwoman Ralphe agreed this was a great way to obtain public input on this issue. Mayor Beydler pointed out that time was of the essence. He understood the intent of this adhoc committee was to complement the ongoing mediation process and was not an attempt to elongate the process. Councilman Kavanagh confirmed that was the intent of the committee. Mark Van Boekel, Cabrio Drive He agreed it was time for public involvement in this issue. He like the idea that qualified people would be utilized. Mayor Beydler expressed that the Council wanted the public to have a participatory role but they must understand that this was a judicial process and there were some constraints. The motion CARRIED unanimously. Town Council Meeting Minutes of 9-5-02 Page 7 of 12 AGENDA ITEM #11 - DISCUSSION AND POSSIBLE ACTION ON A MOTION TO HIRE A SETTLEMENT ATTORNEY FOR PURPOSES OF REVIEWING A PROPOSED SETTLEMENT AGREEMENT INVOLVING HOFFMAN/ROBINSON/KNAPP V. TOWN OF FOUNTAIN HILLS. (THIS ITEM WAS CONTINUED FROM THE AUGUST 15,2002 COUNCIL MEETING.) Mr. Farrell stated that he had provided information to the Council in executive session. The Council gave staff direction on how to proceed. He commented that the responses to the settlement counsel would be made available to the Council prior to the next meeting (September 19, 2002)for their consideration that evening. Bob Barbanica,Hyde Park Place He understood Mr. Farrell to say that the Town has a very good case. He wanted to know if the new town attorney agreed that the Town had a good case or not. Mr. Farrell responded that he had not changed his evaluation of this case. He noted that the settlement counsel would not only visit that exact issue (strengths and weaknesses of the case) but this Council would give direction to the newly appointed town attorney to become involved in this process as early as the September 19th Council meeting. He felt that the new town attorney and the settlement attorney would have an opportunity to become familiar with the case and form their own opinions over the next several weeks. Mr. Barbanica recognized he was a little premature with his question at this time and Mr. Farrell agreed. Mr. Barbanica remarked that if the new attorneys agreed with Mr. Farrell's opinion, then why would the Council even talk about mediation. He stated the Town should not be subjected to possible heavy monetary settlements when it might not be necessary. If the had Town relied on Mr. Farrell's opinion for other issues and the Town was doing well by following the advice, then why go forward with mediation. He asked that the Council listen to the attorneys and be guided by them. He did not want to pursue those ideas that may cost the Town a great deal of money. He felt the Town was being put in jeopardy by participating in mediation under these circumstances. AGENDA ITEM #12 - DISCUSSION AND POSSIBLE ACTION ON A MOTION TO AUTHORIZE THE APPEAL OF A PORTION OF THE RULING IN THE CASE KNOWN AS KNAPP V. TOWN OF FOUNTAIN HILLS. (THIS ITEM WAS CONTINUED FROM THE AUGUST 15, 2002 COUNCIL MEETING.) Councilman Archambault MOVED to continue this item to the November 7th, 2002 Town Council meeting and Councilman Melendez SECONDED the motion. The motion CARRIED unanimously. AGENDA ITEM #13 - DISCUSSION OF AN ETHICS POLICY FOR THE TOWN OF FOUNTAIN HILLS WITH POSSIBLE DIRECTION TO STAFF TO DRAFT A DOCUMENT FOR COUNCIL CONSIDERATION. Councilman Archambault said this was a forward movement of the Town's communication process. He felt that this Council held themselves to a higher standard than what the public realized. He noted that this document was what the Town of Paradise Valley had in place as their ethics policy. He stated that if this Council were to profess these standards in writing, it would say a lot about the community. He remarked that the Council needed to gain the trust of the people and by putting this in writing it would tell people Fountain Hills was a quality place to live, a quality place to raise a family, and it would build interesting conversations with businesses looking to relocate. He felt that this would set an example of what the Town stood for and what the public could expect from their Council, committees and commissions. The document was visually displayed and Councilman Archambault reviewed the eight individual items. He stated that he was not proposing that the Council accept this specific policy tonight but MOVED that staff use it as a starting point with direction to draft a document. He remarked that Paradise Valley did not object to the Town utilizing this document. Councilwoman Nicola commented that she had picked up the City of Phoenix's Code of Ethics at the League Cities and Towns Conference. It covered the State Statutes that were applicable to elected and appointed officials as well as staff. She felt it was an excellent source of information, which identified the proper steps to be followed under various circumstances. Councilwoman Nicola directed staff to create a similar policy that could be utilized as a helpful and understandable guide for everyone. 401.0 Town Council Meeting Minutes of 9-5-02 Page 8 of 12 Councilman Melendez referred to Mr. Farrell memo where it discussed the Council should consider including some type of penalty or enforcement clause for any policy violation. He agreed that accountability was very important but he asked for input on penalties. Councilman Archambault suggested that this policy did not require penalties since there were already penalties for officials who violated the public's trust. The public would not re-elect the official. If the public's trust were continually violated, the public would probably start a recall. If the open meeting laws were violated, this policy would only strengthen the State's case. He expressed he was not looking at this policy as needing penalties. This was a public statement as to how elected and appointed officials should act. Mayor Beydler pointed out that when staff was looking at a proposed ethic policy the Town's attorney would also look at current state statutes and laws to ensure there wasn't any conflict of penalty on a local level. Councilwoman Ralphe noted that Mr.Farrell's memo had pointed out that there maybe some contradiction between portions of the proposed ethics policy and State Law (conflicts of interest). Mr. Farrell responded he was not sure if the ethics policy he referred to in his memo of June 6 was the same one as on display. Councilman Archambault confirmed it was the same policy. Mr. Farrell referred to item#7 under the section "Private Employment". He interpreted it to say that members of the Council could not do business with the Town because it would require the Council to vote on whether or not to accept the council member's services. In reality the State's Conflict of Interest Law was written so that type of situation could occur as long as controls and safeguards were in place. He clarified that State law said the Town could seek work from those council members who were in business through the use of public competitive bidding so long as the council members refrained from attempting to influence the outcome. Mr. Farrell acknowledged that the new town attorney would have a copy of this. He with direction from Council he felt staff would now have time to draft a policy that the Council would be comfortable with, that the citizens would be proud of,and that would not violate any State law. Councilman Kavanagh expressed he did not have a problem having an ethics policy. He agreed that this policy had merit. He stated problems existed where there was vague language and where the policy went too far. He stated he was slightly skeptical since this policy was initially part of a political campaign during the recent Council election. Ads had been placed in the paper. He suspected that there had been an implication by the ads that there had been ethical problems with the existing Council. Councilman Kavanagh felt there was a cloud over this policy because it had been used politically. He commented that he did not have a problem getting past that although those political full-page ads still troubled him. Councilman Kavanagh discussed a problem he saw with the use of the term "appearance" of impropriety. He said he found the definition of "conflict of interest" vague. He wanted the legislative intent of this policy clarified. Mayor Beydler stated he had hoped to circumvent some of the discussion this evening since the request was to direct staff to look into this and cross-reference the policy with State Law to ensure that the Council did not approve something that was incongruent. He thought Councilman Archambault was suggesting that the Council look at the policy for optimal goals and behavior and not as a penal code. He wanted the town attorney and staff to have time to analyze the policy based upon the direction given to them by the Council this evening and to come back with a policy. Councilman Kavanagh felt that if the Council did not point out the wording vagueness and if they did not delineate what was prohibited, he asked how staff could come back with anything. Ms. Hansen asked for clarification. She noted that Councilman Archambault had made a motion but she hadn't heard a second to his motion. Councilwoman Nicola clarified that she had SECONDED the motion before beginning her amendment to Councilman Archambault's motion. Councilwoman Nicola AMENDED her amendment proposing that a committee be created to formulate the ethics policy. The committee would be comprised of one but not more than two council members, staff members, and the town attorney. The committee was to create a document that the Council could consider for approval. Mayor Beydler SECONDED the friendly amendment to the amendment. Councilwoman Nicola asked if there might be citizens interested in participating. Vice Mayor Fraverd requested that this policy be put off for a month in order to put some closure on one of the critical issues currently facing the Council. This would also allow the two new key people(town attorney and town manager) time to deal with this issue. Vice Mayor Fraverd MOVED to continue this item for one month and Councilman Melendez SECONDED the motion. Town Council Meeting Minutes of 9-5-02 Page 9 of 12 A roll call vote was taken with the following results: Councilman Kavanagh Aye Councilman Melendez Aye Las Councilman Archambault Nay Councilwoman Ralphe Aye Councilwoman Nicola Nay Mayor Beydler Nay Vice Mayor Fraverd Aye The motion CARRIED on a vote of 4—3. AGENDA ITEM #14 - DISCUSSION AND POSSIBLE ACTION ON THE COMMUNITY CENTER PROPOSED RATE CHANGES. Community Center Director Jim Willers reviewed his staff report. Mayor Beydler asked if these new rates had been utilized over the past year, what would have been the revenue net gain. Director Willers responded the net gain would have been approximately $5,500. Mayor Beydler asked if that would be revised upwards because increased utilization. Director Willers responded yes at approximately $18,000 annually. Mayor Beydler asked what was the operating deficient. Director Willers replied approximately$335,000 per year. Councilwoman Nicola noted the bartenders were not employees. She asked if they were considered to be leased employees or were their services contracted. Director Willers said they were independent contractors paid hourly for the time that they worked. Councilwoman Nicola said she had reviewed the memo from Risk Manager Wally Hudson dated August 21, 2002 regarding leased employees. She had also reviewed the Town's liquor license policy for the Community Center. Councilwoman Nicola stated it was her opinion that the Town's insurance company (Southwest Risk) would not be paid for any claims resulting from actions of leased employees as of Nov. 1, 2002. Councilwoman Nicola directed staff to look at this issue and determine whether the Town has adequate liquor liability insurance and if the current employment structure was problematic. She questioned whether or not those employees should be required to provide their own liability insurance. Director Willers responded that he would confer with the town attorney to ensure that the Town was covered properly. He noted that each tenant and user of the facility must provide insurance to the Town. Councilwoman Nicola asked if they provided their own bartenders. Director Willers replied no. The service was provided by the Community Center. Councilman Archambault asked Accounting Supervisor Julie Ghetti which budget funds paid for the Community Center bond. Ms. Ghetti responded she believed the debt service payment was budgeted from the excise tax monies. Councilman Kavanagh recused himself this discussion. He stated that he had a family member associated with the Community Center and he left the Dias. Vice Mayor Fraverd MOVED to approve the rate changes as presented and Councilman Melendez SECONDED the motion. The motion CARRIED unanimously (6—0). AGENDA ITEM #15 - DISCUSSION AND POSSIBLE ACTION ON RESOLUTION 2002-35 AMENDING THE PERSONNEL POLICIES AND PROCEDURES FOR THE TOWN OF FOUNTAIN HILLS BY AMENDING CHAPTER 3,PAY PLAN. Councilman Kavanagh returned to the Dias. Interim Town Manager Sintra Hoffman reviewed that this Resolution would amend the personnel and procedures policy in two specific areas. It clarified the way overtime would be paid. Overtime would be paid on a weekly basis (hours worked over 40 hours per week). Ms. Hoffman stated that in the past the Town had paid overtime on a daily basis. Councilman Kavanagh asked what would the end result be with this change in the policy. Ms. Hoffman stated there would be an annual savings of approximately $65,000. Councilman Kavanagh asked how that savings would be achieved. Ms. Hoffman deferred to Human Resource Administrator Joan McIntosh. Ms. McIntosh explained how it would eliminate paying employees overtime if they had used a vacation day or sick days during that same week that the overtime was worked. She had found a strong pattern of where some employees were taking e advantage of this policy. She explained that this had been tracked over the last six-months and the $65,000 savings Town Council Meeting Minutes of 9-5-02 Page 10 of 12 would have been realized had the Town been utilizing this new policy. Ms. McIntosh agreed that paying overtime over 40-hours was State Law, but employers could do better than that if they chose to. Councilman Archambault asked what the practice would for a holiday weekend. If the employee worked over 32 hours, would they be considered working overtime? Ms. McIntosh responded no, not with this policy. She acknowledged that another policy would define what "hours worked" meant. Employee have pointed out that "holiday hours" have not been counted as "hours worked". She stated she would like to see the policy changed to reflect"holiday hours"as "hours worked"but not include vacation or sick days as "hours worked". Councilman Kavanagh asked if this was forced or voluntary overtime. Ms. McIntosh commented that no one has ever been forced to work overtime. Councilman Kavanagh asked if there had been a situation where someone had to work overtime on an emergency basis. He felt that would be forced overtime. Ms. McIntosh said that situation had occurred. Councilman Kavanagh asked if there would be a problem calculating forced overtime at the daily 8- hour rule. If it were not forced overtime, then the 40-hour rule applied. Ms. McIntosh saw a problem, as she did not know how the Council was defining "forced overtime". She remarked those employees who were called out in an emergency were paid time and a half even though they might not have worked 40 hours. Councilman Kavanagh said the definition of "emergency" should be sufficiently broad enough to cover unusual circumstances. Mayor Beydler did not see a problem with the standard practice of paying overtime over a 40-hour workweek. Councilwoman Nicola stated that the employee manual dictates that if a job needed to be done and the supervisor asked the employee to stay, then that employee needed to stay. She did not see a problem with the way it was written. She asked how this proposal would affect public safety officers who worked longer shifts. Ms. McIntosh stated that presently there weren't any officers scheduled that way. She restated that no matter what department the employee worked in, if the employee worked actually worked over 40-hours in a seven day period, they would be paid time and a half. Councilwoman Nicola observed that was really a department management issue. Ms. Hoffman reviewed that the second part of the policy that addressed "stand-by" pay. Ms. Hoffman stated that currently the Town has one employee that was designated the "stand-by" employee for all emergency situations. This employee was called out whenever something needed to be handled. She commented that this request was to amend the policy in order to broaden that issue organizationally. She deferred to Public Works Director Tom Ward. Director Ward reiterated that an employer would not want one person to do this job continually (seven days a week for twenty-four hours a day). Currently, it was Tony Marchese who was doing that job. Director Ward explained that approximately two years ago he discovered that this situation existed, which he felt increased the Town's liability. He stated meetings were held with Tony and Joan McIntosh to determine how a policy could be created that would be beneficial to staff town wide. He acknowledged that those discussions resulted in the policy currently before the Council that included "stand-by" and "call-out" pay. He noted that a typical emergency "stand-by" schedule and a list of call outs responded had been provided to the Council in their packet materials. Director Ward stated staff had researched various towns and cities to give the Council examples of how other municipalities treat this situation. He recognized that this was nothing new in the valley but the Town has never had this policy. He felt that the Town needed to adopt this policy to eliminate liability. He commented that the employees had been informed of this policy and they were in favor of it. Director Ward stated that approximately ten employees would be volunteering for this service. The estimated cost was $13, 052 based upon the information provided. He confirmed his department would absorb these costs in this year's budget but would be asking the Council for that amount of money in the future. Councilwoman Nicola asked if public safety officers were exempt from this policy. She understood off-duty officers were ready to report to work as needed, as would be the case for future fire department employees. She asked that public safety workers be exempt from this policy because of the potential expense. Ms. McIntosh said she had talked with Marshal Tate about that issue. Marshal Tate had explained he utilized a calling list if officers were needed, as some officers may not be available. Therefore, they would not be eligible for the "stand-by" portion of the policy but they would be eligible for the overtime if they worked over the 40-hour requirement or the Town Council Meeting Minutes of 9-5-02 Page 11 of 12 emergency portion of the policy. Ms. McIntosh confirmed that she spoken to each department head about the policy. No other department felt this policy would apply to them except for the Public Works Department although it would be open to any department. Councilwoman Nicola asked Mr. Farrell if he felt the Resolution was clear. Mr. Farrell replied yes. Councilman Archambault MOVED to approve Resolution 2002-35 as written and Vice Mayor Fraverd SECONDED the motion. Councilman Kavanagh AMENDED the motion to pay overtime for "mandatory or ordered overtime" based on an 8-hour workday and pay for"voluntary overtime" based on the 40-hour criteria. The amendment DIED due to the lack of a second. The motion CARRIED on a vote of 6— 1. Councilman Kavanagh cast the nay vote. AGENDA ITEM#16- CONSIDERATION OF APPOINTING A NEW TOWN ATTORNEY. Mayor Beydler MOVED to appoint Andrew McGuire (Law Offices of Jorden, Bichoff, McGuire, and Rose)as the new town attorney with the contract effective no later than September 16, 2002 (or earlier) and Councilwoman Nicola SECONDED the motion. The motion CARRIED unanimously. Mayor Beydler introduced Mr. Andrew McGuire and he came forward. Mr. McGuire acknowledged that the contract would be signed as soon as possible. AGENDA ITEM#17- CALL TO THE PUBLIC AND ADJOURNMENT. Vice Mayor Fraverd MOVED to adjourn the meeting and Councilwoman Nicola SECONDED the motion, which CARRIED unanimously. Mayor Beydler adjourned the meeting 8:55 p.m. TOWN OF FOUNTAIN HILLS cor By: Jon Beydler M or ATTEST: . Ae�,,t . Cassie B. Hansen, Director of Administration/Town Clerk PREPARED BY: /6k)&44d-e-* Bev Bender,Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular and Executive Meeting held by the Town Council of Fountain Hills on the 5th day of September 2002. I further certify that the meeting was duly called and that a quorum was present. DATED this 19`h day of September 2002. )JL Cassie B. Hansen,Director of Administration/Town Clerk Town Council Meeting Minutes of 9-5-02 Page 12 of 12 w,