Loading...
HomeMy WebLinkAboutCity Council-Minutes-9/30/1981 (J~'. /~!-c: -,1/ .F'~~.IJ{, 4' The regular meeting of the City Council of the City of Colleyville was called to order by Mayor Buck Hubbard on September 30, 1981 at 7:30 p.m. CITY COUNCIL MINUTES SEPTEMBER 30, 1981 The invocation was given by Council person Duffy afterwhich Mayor Hubbard lead the Pledge of Allegiance. Roll Call: Councilperson Denis Duffy, Smokey Vanover, Leonard Lear, Phil Kelly, Rex Darling were present. City Manager C.R. Ballenger, City Attorney Ross T. Foster, City Engineer David Washington, Chief of Police Joe Tozzi, Director of Public Works Bill LeGrand, and City Secretary LaVada Johnson were also present. Council person Kelly raised point of order. The Mayor over ruled. Approval of Mintues: September 1, 1981 Council person Lear moved that the minutes for September 9, 1981 be approved. Council person Vanover seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none Council person Kelly raised point of order. * The Mayor ruled correspondence would be heard f~rst. Coun[ilperson Kelly appealed. Vote on Mayor's ruling being: Ayes: Noes: Duffy, Lear, Vanover, Darling Ke 11 y Correspondence: Mayor Hubbard reported or read the following correspondence: 1. Tarrant County Clerk Madrin Huffman, dated September 25, 1981, notified the City that we have 15 votes in the Tax Appraisal District 2. Mark Huffman, dated September 19,1981, concerning afire hazard on Qua il Crest 3. Curtis McCaffity, dated September 30, 1981, concerning contract with the City 4. Memo from City Attorney, dated June 25, 1981, concerning contract with Tarrant County Waste Disposal 5. Council person Darling read a statement concerning the September 1, 1981 Council meeting (read after item 1 of correspondence) City Managerls Report: The City Manager discussed the following during his report: 1. The Texas Municipal League in San Antonio, October 24-27, 1981 2. City Hall and the surrounding property is paid for. OLD BUSINESS: 1. Citizen request to address the Council - Susana Grundy, 209 Timberline North, concerning the renewal of Ordinance 0-71-27 and Resolution R-79-197 refer to Charter Sections 13.03, 12.02, and 3.11 *amended 10-6-81 point of order concerning Robert's Rule of Order and have the unfinished business first. . ~ ----~~---.._._._-_._"..,~~."..._--,....__..,----"' -. .. . .._-_.."~..,.---_._-"'_-'.'~~' "',.-. -..---..-.,-....---,'--.,..,.-"- CITY COUNCIL MINUTES SEPTEMBER 30, 19S1 Page 2 *amended 10-6-81 Council person Kelly wanted Mrs. Grundy to be allowed to continue talking as she had the flObr~ Susana Grundy, 209 Timberline North, presented the Council with a copy of her statement and started to read it to the Council, when Mayor Hubbard ruled her out of order in that she was discussing newspaper articles. Council person Kelly raised point of order that Mrs. Grundy should be allowed to speak. Mayor Hubbard over ruled. Council person Kelly appealed. Vote on Mayorls ruling being: Ayes: Vanover, Lear, Darling Noes: Duffy, Kelly Mayor Hubbard proceeded to answer the questions that Mrs. Grundy had given the Council at their last meeting. After Mayor Hubbard answered the questions, Mrs. Grundy asked the questions again one at a time stating that she wanted to ask the questions herself. Mayor Hubbard answered her questions. Council person Kelly wanted*tQ-a5k-a-~~e5t~QR-Qf tRe-b~ty-Atte~Rey~ ~1ayor Hubbard over ruled and continued with the agenda. Council person Kelly appealed. Vote on Mayorls ruling being: Ayes: none Noes: Duffy, Vanover, Lear, Kelly, Darling Council person Kelly raised a point of order that item was on the agenda and he wanted it discussed by the Council. Council person Kelly read Section 13.03 from the Charter and requested a Public Hearing on the renewal of the contract with Tarrant County Waste Disposal. Council person Duffy discussed the Ordinance 0-71-27 and the intent of those passing said ordinance. Mayor stopped the discussion of information that did not have to do with the garbage issue, Council person Kelly raised a point of order, Mayor over ruled. Council person Kelly appealed. Vote on Mayorls ruling being: Ayes: Lear, Vanover Noes: Duffy, Kelly, Darl ing Discussion continued, Council person Duffy asked for point of privilege that the discussion stick to facts. Council person Lear attempted to answer Mrs. Grundy's questions. Council person Kelly called point of privilege to a statement that Council person Lear made. Mayor Hubbard ruled it would not be discussed at this time. Council person Kelly stated he wanted it made known and would bring it up at a later time. Council person Darling moved that the Council re-affirm the manner in which this franchise was renewed and that the subject does not warrant further consideration. Council person Lear seconded the motion. Ayes: Vanover, Lear, Darling Noes: Duffy, Kelly Mayor Hubbard moved item 2 under New Business up this time. Council person Kelly objected to the item being moved. Vote on the item being the next item on the agenda being: Ayes: Duffy, Lear, Vanover, Darling Noes: Kelly 2. Citizen request to address the Council - Charles D. Grundy, 209 Timberline North, concerning the renewal of Ordinance 0-71-27 and Resolution R-79-197 refer to Charter Sections 13.03, 12.02, and 3.11 Charles Grundy, 209 Timberline North, spoke to the Council on the renewal of the contract with Tarrant County Waste Disposal, his concern being a question of law not of service by the company. He requested that three Public Hearing and a ordinance be used to renew the contract. .----.........,......-----..".... .._.,.,.,,~~ ".,..-.,-.",...."..",..-,_."~...,, CITY COUNCIL MINUTES SEPTEMBER 30, 1981 Page 3 2. 3rd Reading and Public Hearing - Ordinance 0-81-426 - An Ordinance amending and changing a franchise ordinance with Lone Star Gas Company Mayor Hubbard opened the Public Hearing and read the preamble to Ordinance 0-81-426 AN ORDINANCE AMENDING AND CHANGING THE FRANCHISE ORDINANCE ENACTED BY THE CITY OF cOLLEYVILLE, TARRANT COUNTY, TEXAS, ON APRIL 30, 1963 AND BEING PARTLY STYLED "AN ORDINANCE GRANTING TO LONE STAR GAS COMPNAY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO FURNISH AND SUPPLY GAS TO THE I GENERAL PUBLIC IN THE CITY OF COLLEYVILLE, TARRANT COUNTY, TEXAS;" PROVIDING FOR A MODIFICATION OF THE DEFINITION OF THE TERM "SERVICE LINE" AND YARD LINE" AS PROVIDED IN SECTION 4 THEREOF, AND REQUIRING THE FRANCHISEE TO EXTEND SERVICE LINES FOR A CUSTOMER HOOKUP. Nell Dixon, representative from Lone Star Gas Company was present to answer any questions that the Council might have. There being no one to speak the Public Hearing was closed. Councilperson Kelly moved to approve Ordinance 0-81-426. Council person Duffy seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darl ing Noes: none 3. Plat approval and 2nd Reading and Public Hearing - Ordinance 0-81-423 (Z-81-271) Requested by Fred Joyce - Pool and Hall-Johnson Road, Whitten Survey, Abstract 1740, Tract 1 - from AG to CN Mayor Hubbard opened the Public Hearing and read the preamble to Ordinance 0-81-423. There being no one to speak the Public Hearing was closed. 4. Plat approval and 2nd Reading and Public Hearing - Ordinance 0-81-424 (Z-81-272) Requested by Alvin Reed - McDonwell School Road, McEwing Survey, Abstract 1154, Tract 1A3A - from AG to CN Mayor Hubbard opened the Public Hearing and read the preamble to Ordinance 0-81-424. There being no one to speak the Public Hearing was closed. 5. Plat approval and 2nd Reading and Public Hearing - Ordinance 0-81-425 (Z-81-267) Requested by Vera Enterprises, Inc. - Glade Road, Young Survey, Abstract 1756, Tract 1B and Haynes Survey, Abstract 785, Tract 1 from AG to PUD-R Mayor Hubbard opened the Public Those speaking were as follows: Brister, 5509 Valley View West. was closed. Hearing and read the preamble to Ordinance 0-81-425. Charlie Davidson; Linda Ahlers, 300 Glade Road, Don There being no one else to speak the Public Hearing NEW BUSINESS: 1. Citizen request to address the Council - Rey Gower request for water service outside City Limits CITY COUNCIL MINUTES SEPTEMBER 30, 1981 Page 4 Councilperson Lear moved to deny request for water outside the City. Council person Vanover seconded the motion. The vote being: Ayes: Noes: Duffy, Vanover, Lear, Kelly, Darling none 3. Appointment of representative to the GcISD Citizen Advisory Committee Council person Vanover moved to appoint Council person Denis Duffy as the City's representative to GCISD Citizen Advisory Committee. Council person Kelly seoonded the motion. The vote being: Ayes: Noes: Duffy, Vanover, Lear, Kelly, Darl i ng none 4. Consideration of budget adjustments Council person Duffy moved to approve the budget adjustments as submitted by the City Manager. Councilperson Vanover seconded the motion. The vote being: Ayes: Noes: Duffy, Vanover, Lear, Kelly, Darling none 5. Consideration of Planning and Zoning appointments Council person Darling moved to re-appoint Teri Fay. Council person Vanover seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none Council person Duffy moved to appoint Virgil Thompson. Councilperson Lear seconded the motion. The vote being: Ayes: Duffy, Vanvoer, Lear, Kelly, Darling Noes: none Council person Vanover moved to re-appoint Howard Collins. Council person Lear seconded the motion. The vote being: Ayes: Noes: Vanover, Lear, Darling Duffy, Kelly 6. Consideration of Board of Adjustment appointments Council person Lear moved to appoint Mary Helen Lowe. Council person Vanover seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kell y, Darl i ng Noes: none Council person Kelly moved to appoint Dave Hanken. Council person Lear seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Da.rling Noes: none Council person Darling moved to appoint Robert Van Til as alternate. Council person Vanover seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling <~._"._u"",_","__,_,_,.~_~"_,_,_",,.^___,_,,_,.,_~_,'_'~__~._..-..,. CITY COUNCIL MINUTES SEPTEMBER 30, 1981 Page 5 7. Consideration of change order to contract to Cheek-Sparger/Warwick drainage Council person Kelly moved to approve the change order of $5,558.50 on the Cheek-Sparger/ Warwick drainage contract. Council person Duffy seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none 8. Combination Plat approval - (Z-81-269) - Ralph M. Weinbaum Subdivision, Joseph White Survey, Abstract 1692 Council person Lear moved to approve the combination plat approval on case Z-81-269 for the Ralph M. Weinbaum Subdivision. Council person Darling seconded the motion. The vote being: Ayes: Noes: Duffy, Vanover, Lear, Kelly, Darling none 9. Discussion and possible authorization of extending a sewer line to eliminate the lift station in Woodbriar Estates Addition City Manager Ballenger explained this item and recommended that the City furnish the materials and pay a contractor by the hour to do the work. Council person Duffy moved that the CitYi:use City supplies and keep the labor at $4,000 to extend the sewer line. Also, if the project should exceed the $4,000 further Council action would be needed before additional funds could be authorized. Council person Vanover seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none Funds to be from the 1981-82 budget. 10. Consideration of request from citizen - replace current mobile home with a larger mobile home - Joe D. Burgin, 5508 Pleasant Run Road Mrs. Joe Burgin spoke to the Council stating that they wanted to upgrade their home by replacing it with a large mobile home. The mobile home was existing under the grandfather law as it had been there for 17 years. Council person Lear moved to deny the request for moving a large mobile home into the City of Colleyville. Council person Kelly seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none 11. Engineer's report on Springhollow drainage The Council decided to get with the citizens of Springhollow after City Engineer David Washington had explained what he had found. CITY COUNCIL MINUTES SEPTEMBER 30, 1981 Page 6 12. Resolution R-81-242 - Resolution regarding City of Colleyville' participation in Tarrant County's Community Development Block Grant program for the three program year period, July 17, 1982 through July 16, 1985 Council person Vanover moved to approve Resolution R-81-242. Council person Kelly seconded the motion. The vote being: Ayes: No e s : Duffy, Vanover, Lear, Kelly, Darling none BUDGET REPORT: no questions PAY BILLS: Council person Vanover moved to approve the bills. Council person Duffy seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none Adjourn the meeting: Council person Vanover moved to adjourn the meeting. Council person Duffy seconded the motion. The vote being: Ayes: Duffy, Vanover, Lear, Kelly, Darling Noes: none Respectful. ly SUb.mitLtd \. ~~t7 ; La Vada Johnson City Secretary lvj D~ /P. If II tJ4; ~~ , Approved on: f MEMORANDUM TO: Colleyville City Council DATE: June 25, 1981 FROM: Ross T. Foster, City Attorney SUBJECT: Renewal of Garbage Franchise The Council ha~ requested an opinion as to whether or not the current grantee of the garbage franchise has the right to uni- laterally renew the franchise contract. As is relevant, the franchise provides: "This franchise is to take effect and continue and remain in full force and effect for a period of ten (IO) years, with option of renewal re- served for grantee, by grantor. This franchise may be extended for an additional period by mutual consent of the grantor and grantee." The drafter of the above ordinance obviously intended to grant some type of option of renewal to the franchisee. However, the drafter does not specify the terms, conditions or duration of such an option. More importantly, he does not specify whether the option of renewal can be exercised solely by the franchisee without the consent of the City. In trying to determine whether the above provision provides for unilateral renewal, it should be first considered that options are normally unilateral. In other words, if one party grants to another party an option to do something then the party who has the option normally can either act or refuse to act without any further consideration by the person granting the option. If the franchise did not con- tain the second sentence in the above quote, then it would be reasonable to interpret the first sentence as granting to the franchisee the right of unilateral renewal. However, because the franchise does include the second sentence and because that sentence provides that extensions of the fran- chise for a period in addition to the original term of the fran- chise must be by mutual consent of the grantor and grantee, the interpretation of the first sentence becomes unclear, and either of two constructions of the whole provision becomes reasonable, to-wit: Renewal of Garbage Franchise June 25, 1981 Page 2 (1) That the franchise was granted for a ten (10) year period only, and that the option of renewal for any additional term be it ten years or otherwise must be by mutual consent of both the franchisee and the City, or (2) That the franchise was granted for a ten (10) year term, with a unilateral option of renewal for the grantee without further consideration of the City, presumptively for an addi- tional ten years; and that an extention of the period in excess of the original term plus any renewal must be by mutual consent of the grantor and grantee. Since the provision in question is susceptible of more than one meaning, it is ambiguous, and we may go outside the terms of the instrument itself to determine the intent of the parties. In determining the effect of an ambiguous contract "the cardinal rule to be observed . . . is to ascertain and give effect when- ever possible, to the real intention of the parties, as that intention is revealed by the language used in the agreement." 13 Tex. Jur. 2d 287 (Contracts, Sec. 122). Therefore, in order to interpret the contract an effort must be made to determine which of the above alternatives was intended by the parties at the time the franchise was entered into. As can be seen by his letter of June 17, 1981 directed to the Council by the franchisee, Mr. McCaffity would state that the intent of the parties at the time was the adoption of the second alternative. However, in examining the history of the garbage franchise, it is discovered that the provision being considered is a modification of a prior franchise agreement between the City and Mr. McCaffity dated November 17, 1960. In that franchise agreement the renewal provision provided: "This franchise is to take effect and continue and remain in full force and effect for a period of ten (10) years, with a ten (10) year option of renewal reserved for grantee by the grantor. This franchise may be extended for an additional ten (lO) year period by mutual consent of the grantor and grantee." The 1960 contract clearly provides that the franchisee shall have the right to unilaterally renew his contract for a ten (10) year period. The drafter of the current franchise agreement H___._.q ._______._ __._ _____ ____ _ __ _h_ _____ ____H'.'_._--,-.. ________,_ Renewal of Garbage Franchise June 25, 1981 Page 3 obviously used the prior franchise agreement as a form, but made changes in the renewal provision. In investigating the minutes surrounding the passage of the 1971 franchise to determine why this change was made, it is discovered that the minutes of June 8,' 1971 provide that the City was to prepare an ordinance "granting a ten (IO) year contract to McCaffity Solid Waste Disposal contract (sic) with the option of renewal reserved by mutual consent of grantor and grantee," which motion was passed. It would be reasonable to conclude that the drafter of the 1971 agreement, using the 1960 agreement as a form, made the modification in Section 2 of the franchise agreement in order to specify that any renewal would be only upon the mutual consent of the grantor and grantee. Otherwise stated, the drafter intentionally removed the option of the unilateral renewal from the 1971 contract based upon the motion made at the meeting of June 8, 1971. ~ In the event the matter is submitted to the courts for construc- tion, any evidence with relationship to the intent of the parties would be considered in trying to interpret the contract. It is suggested that the people that sat on the Council at the time the contract was passed be consulted to determine their under- standing of the intent of the provision in question. It should be noted that in the event the franchise agreement is submitted to a court for construction clearly established rules of construction will be applied. "The contract here involved is subject to the construction set out in Galveston Wharf Co. v. Gulf, C. & S. F. Ry. Co., 81 Tex. 494, 17 SW 57, 59, wherein the court quoted with approval from Proprietors of Passaic and Hackensack River Bridges v. Hoboken Land & Improvement Co., l3 N.J. Eq. 81, as follows: 'Public grants are to be strictly construed. Contrary to the rule adopted in the case of priva~ contracts, they are to be taken more strongly against the grantee, and in favor of the public. If there be a doubt as to the extent of the grant, the doubt is resolved in favor of the public.' "The same rule of construction is set forth in 23 Am. Jur., Franchises, S16, Page 725, in these words: -..-.... "-.'-'-- .-...-.... ..._._.__.._-_....__._.....~.......... ... Renewal of Garbage Franchise June 25, 1981 Page 4 'It is the accepted doctrine that all grants are to be construed according to the inten- tion of the parties, yet there are certain general rules of construction by the light of which such contracts are to be examined. These rules are well settled by numerous authorities. One is that all grants by the government to individuals or corporations, of rights, privileges and franchises, the words are to be taken most strongly against the grantee, contrary to the rule applicable to the grant from one individual to another. '" Southwest Texas & International Flying Club, Inc. v. City of Del Rio, 324 SW 2d 40 (Tex. Civ. App. - San Antonio, 1958, n.r.e.). Although the matter is not without doubt it is my opinion a court applying the above rules of construction to the contract and considering the extrinsic evidence which I have discussed, would rule that the franchisee did not have a unilateral right of renewal for a ten year period. However, as I previously stated, there may be additional evidence available, which upon consideration would demonstrate that the intent of the parties at the time the contract was entered into was otherwise; thus establishing the grantee's right to unilateral renewal. If additional information is required, please advise. RTF kr