HomeMy WebLinkAboutCity Council-Minutes-9/30/1981
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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. .
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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.
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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
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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 \.
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La Vada Johnson
City Secretary
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Approved on:
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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
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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:
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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.
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