VIEWS: 4 PAGES: 8 POSTED ON: 8/26/2011
REGULAR CITY COUNCIL MEETING November 15, 2010 CITY ADMINISTRATIVE OFFICES 7:30 P.M. 511 N. COMMERCIAL PRESIDING: Mayor Keith DeHaven GOVERNING BODY MEMBERS PRESENT: Larry Emmel; Thom Noone; Adam Healy; Bryan Chapman; Jon Jenson GOVERNING BODY MEMBERS ABSENT: ALSO ATTENDING: Janise Enterkin, City Clerk; Jaci Reimer, City Administrator; Brad Jantz, City Attorney; Kelley DeGraffenreid, Harvey County Independent; Mr. Healy; Denice Bruce, ASR; Lynn Moore, PEC ADDITIONS/DELETIONS TO THE AGENDA MOVED BY CHAPMAN AND SECONDED BY NOONE TO APPROVE THE AGENDA WITH ADDITION OF 7B WORK SESSIONS. MOTION CARRIED. CONSENT AGENDA MOVED BY JENSON AND SECONDED BY EMMEL TO APPROVE THE CONSENT AGENDA ITEMS INCLUDING REGULAR COUNCIL MEETING MINUTES HELD NOVEMBER 1, 2010; PAYROLL CHECKS 24856 THRU 24879 AND GENERAL DISBURSEMENT CHECKS 56150 THRU 56202. MOTION CARRIED. PUBLIC COMMENT Denice Bruce, Communications Specialist, ASR Linn Moore project manager with PEC came to update everyone about the construction process on the ASR project. Denice Bruce gave Council her contact information. STAFF REPORTS Jaci Reimer, City Administrator gave an update on CDBG, Planning Commission will be meeting discussing the ASR project and re-zoning at 1st and Madison. Maintenance is selling a scraper. Wilson & Company Work Order for sidewalk connection, the other Work Order will be ready for the Dec. 6th meeting. A draft ordinance on meeting times and dates and quorum will be presented by city attorney. The mobile homes on Jefferson have not been removed yet. The cost estimate for a library elevator will be presented on Dec 6th. Reservations for Christmas party are due by November 22nd. Shannon Leeper sent an email saying that she appreciates the extra time given by council. The health insurance quotes were handed out to Council, 21% increase if everything stays the same. Jaci reviewed the insurance costs with Council. A Special Council meeting will be held on November 29th at 7:30 p.m. to discuss health insurance. Brad Jantz, City Attorney reported on LDS split filed, closing at end of month; draft on Drainage District sent to DWR; Charter Ordinance and draft of Ordinance will be added to the consent agenda on December 6th. MAYOR & COUNCIL REPORTS No updates. 1 NEW BUSINESS Jaci Reimer, City Administrator explained the Task Order #1 from Wilson & Company regarding a proposed Hike and Bike trail. Mayor DeHaven asked that action on the task order be tabled until Dec. 6. MOVED BY EMMEL AND SECONDED BY JENSON TO DISCONTINE WORK SESSIONS FROM THE COUNCIL MEETINGS. MOTION CARRED. OLD BUSINESS Council member Adam Healy requested an Executive Session for some brief comments to be made to the Council from him and the reason for the executive session was stated for proprietary information. Council member Jenson asked the City Attorney if it was a qualifier under the statutes to go into executive session. Brad Jantz, City Attorney said under KOMA proprietary information related to private business is accepted but he couldn’t say for sure under these circumstances because he didn’t know what was going to be discussed. Council member Emmel asked if Adam Healy was going to be represented as a Council member or a member of the business. Healy replied as a representative of the business. Council did not make a motion to adjourn to executive session so Adam Healy addressed the Council in open session. Healy requested a 5 minute recess before beginning discussion. Council agreed, recess began at 9:12 p.m. Council member Adam Healy stepped down from the bench to address the Council not as a member of Council but as a representative of Healy Biodiesel. He pointed out the letter from Ben Healy authorizing him to represent Healy Biodiesel. Healy explained the reason that he was representing the business. He said that he had been very diligent in refraining from making any comments relating to the business, not wanting to cause a conflict of interest and not wanting to blur the lines between council member and representative of that business. He said that in doing that he felt he was doing a disservice to both entities. It has restricted him from giving background information that may have helped the Council make a decision. He said he made a decision, rather then sit back and do nothing, he thought that when Healy Biodiesel matters come to this position to answer and questions and represent the company so there is no gray area. He wanted Council to know what had transpired since the last Council meeting and “hopefully bring resolution to the lease issue that is outstanding with the company and the city.” Healy explained that when Ben Healy addressed the Council, it did not go as Ben had planned and it didn’t get across some of the concerns that he had. “Immediately following that meeting I asked Jaci and Brad for their feedback on exactly what I am talking about now, being up on the bench with Council versus representing the business, if that was a reasonable idea, if that was an appropriate way to go moving forward and they agreed with that, that makes sense, and after that I requested that I meet with the two of them in relation to negotiating this lease. As my brother again had some items and the Council said to him basically we’d like our Administrator to handle that. Umm, we scheduled the meeting for Friday following the last Council meeting. Jaci, Brad and the Mayor, myself were in attendance to the meeting. We went through the entire lease, umm essentially word by word and I brought my concerns to them which I think were very valid. What I don’t intend to do, what the company has not intended to do, is to argue every clause in the lease, umm try to negotiate every term of the lease. The companies desire is simply to operate, is simply be able to do business. And in order to do that we should have a good solid lease that protects both parties. The lease that was presented to us is one that was drafted by the City Attorney for the benefit of the city. It’s not a standard commercial lease. My feedback to my brother was if it was a standard 2 commercial lease, you fill in the blanks, and you sign it. It’s pretty straight forward. City wants this amount of rent, they want this term, they want this deposit, there is not a whole lot to negotiate We simply sign it, we accept or we don’t. That comment was made by some of my fellow Council members and what I think was missed was the fact that that was not in any way shape or form a standard commercial lease. It was again, umm drafted to be advantageous to the city and that was it’s primary goal. I really feel very strongly that some of the wording in that lease was very lopsided in respect to giving the city unusual options from the standard commercial lease and not having some basic protections for the company. Some of those basic tenant protections that are again in every standard commercial lease or specifically excluded from this one, there are items put into this lease that you would never find in a standard commercial lease and that I would say would probably never be accepted by any business that has had that lease reviewed by an attorney. That being said, there’s really not a lot that I am going to request, and I would very much appreciate it if the city would look at this from the standpoint of a business owner wishing to enter into an arrangement with a landlord. Nothing more, nothing less, simply our desire to operate this business under a reasonable agreement and have a good working relationship with the city, moving forward. Again, from my standpoint, we could take a couple of small modifications to this lease, and be perfectly acceptable with it or we can take this off the table, put a standard every day commercial lease on the table, we will fill in the blanks and we will sign it. Either one of those are acceptable to us. The meeting that we had Jaci, Brad, the Mayor and myself, I thought was very productive, it was professional, it went well, in terms of everybody understanding what the concerns were, umm our points being taken and the feedback I received was that those were good observations, that they made sense that they could see from my point of view. I felt confident leaving that meeting that all of those observations, recommendations, so forth would be carried out in this revised lease. The revised lease that you received in your packet, unfortunately did not cover all the things that we discussed. There were several important ones that were completely omitted. Most of the changes that I see here, umm again are fairly minor, are somewhat to the discussion that we had, but definitely not what I understood would probably be the lease that I saw. We are not here to argue about the amount of rent, we’re not here to argue about anything that a landlord would expect from a tenant. What I want is a reasonable contract that protects both parties, and that is all. At the same time I expect the same treatment for the business as would be any other business in town, as would be any landlord with any tenant. So, with that said, I have put in the same things essentially that Brad did but as I understood them from our meeting because that’s again not what I received and what you guys received in your packet. Now, when my brother kind of brought the same issue, he was somewhat shot down. I has based solely on procedure, that’s fine, understandable, that you guys don’t want to hash through all these details, you’d rather have staff do that. I took that advice, again I think we had a good meeting, but I don’t think the result that I got was reasonable. And that is why I am coming to you today because I took that avenue and it didn’t work for me. So, if you would so permit, I would like you to take a quick look at this lease and I will point out very specifically what I changed and it is our desire to execute this lease, have the agreement done and move forward again in a professional relationship with the city. Is that acceptable?” Council member Bryan Chapman asked Healy if he had the old lease that they had signed with the previous owner. Healy said he didn’t believe that they ever had a lease. Council member Chapman said he didn’t know what a standard, ordinary every day commercial lease looks like. “That is not a part of what I do, that is why I’ve got him (Brad Jantz, City Attorney) and if it is slighted toward the city that is because we pay him and you 3 know if you are not happy with the lease, I thought when I read this I didn’t go through and read all that lease cause I’m not sure of all the issues that you were worried about that’s why we gave it to our staff and if you guys can’ work it out, I don’t know what we are going to do, I don’t want to spend a lot of time and doing stuff that is their job. Our job is to set policy and make decisions, it’s not to do ordinary every day lease agreements for farm lease agreements. You know he made up the farm lease agreements we didn’t go through that page by page and word for word and decide it that was fair for the farmers or fair for us. They signed it and were happy with it, maybe they weren’t happy with it, but they signed it and went on down the road, their farming it, they are giving us some money and they are getting what they wanted. I guess I don’t see that as part of my job on the bench to go through and counteract everything that the attorney is saying that is what is best for us cause that’s why I am paying him cause this is what he is saying that we need to do for the city to protect the city. Now if you guys can’t, and I understood that you guys had an arrangement and this is good with you and they made some alterations to it so you were happy.” Healy, “That is not the case.” Chapman, “And now you are not happy.” City Administrator, Jaci Reimer said, “That is not quite how if fell, correct me if I am wrong Brad. The meeting went well and we listened to the ideas that he asked to be in here. And at the end of the meeting Brad informed him that he and I would get together and go over those changes, decide which ones we could live with and put those in. And that’s what we did, the ones that we felt were legitimate changes that could be made got inserted into the lease that we presented you, umm I mean if you want to go back to square one. Brad and I both feel the first lease that was presented to you that you approved is fine but we felt this was the compromise, he didn’t get everything he asked for, we changed it a little, we altered the things that we though were not really that big of deal on way or the other, changed some language, change the length of time, things that out of that meeting we said well we can’t live with this, this and this, but we could live with this, this and this. And this wasn’t, I mean I don’t remember ever a conversation where we told him everything he asked for was going to be in the lease. So, we did listen and I do understand where he is coming from as an individual, but I am with Brad, our job is to come up with the best compromise lease that benefits the city and that’s what is in your packet.” Council member Chapman, “I certainly can’t supercede what the attorney is saying is best, if something happened, he would say well, I advised you not to do that but you did that. You know? Personally I don’t feel warn and fuzzy about going over a lease and changing what the attorney says is not to our benefit.” Adam Healy, “And this is where my first observation was and I would prefer to deal with a standard lease that you can find online that is used by realtors and landlords all over the state of Kansas. I reviewed that, and my feeling on that with Brad and Jaci and umm Brad concurred this is not in any way shape or form a standard lease. He takes elements from that lease and it omits elements from that lease and those things can be very, very impact-full to a business. Umm again I operated in good faith to discuss those items and where Jaci is absolutely correct in the statement that she made she didn’t say we are going to make all the changes that you requested, but I certainly had a good impression of what changes would be made and which ones probably wouldn’t and there were several items that I got, what I felt was an agreement from Brad that were in no way reflected in this lease. Things were completely omitted from our discussion.” City Attorney Brad Jantz, “I think somewhere Adam we misunderstood each other. I was there taking notes and you had staff persons there as well. There was no agreement, the only thing I can remember was specifically were things that I knew we would probably wouldn’t change, like 4 the one year, I think Jaci mentioned you could go to 2, and that is certainly still subject for discussion if you wanted to be but you were requesting 5 and I said no way did I think that the city would ever agree to that. There were some of the minor changes in here that I thought were more equitably written umm when you suggested things like an amount of time for any kind of notice of termination, those should be equally done and that the tenant should have the same rights as the landlord, no issue with that at all, and I put those all in. What I did was kind of take all the notes that I took that day and all the ones that and talked with Jaci, umm got instruction that didn’t seem to be objectionable and put them in umm and that’s what I did. I don’t know that I agree with you that this is the standard lease, God I have used this lease at least 20 times in the last 10 years with cities, and it is fairly standardized. The ones that I see that I see that are boiler plate oft used by a realtor with all due respect, I wouldn’t touch. Because a lot of them are meant to be just this stamp that you can use in a thousand different situations, to the extent that this is, has been specifically tailored for municipality particularly with regard to what potential future use there may be for that structure or that lot or whatever, yeah I would say that, that’s occurred I would say a little bit I do that every time, that’s my job it to tailor them a little bit but I don’t know that I could advise the city to take, well I shouldn’t say, I don’t know, if we are going online and picking up what someone might term as a standard lease, a lot of the time they are just junk in those things and I wouldn’t even consider putting them.” Council member Emmel, “I am going to interfere here with our comments Brad, cause number 1 I do not believe that you have to explain to this Council, or this individual, or this city, what you are doing to represent the city. I don’t believe you or Jaci have to do that. These people are responsible representatives for this city. Flat out. Their the ones that are going to negotiate this, not this Council in my opinion. So, I have not changed my position on that from the beginning. They are the representatives; this Council by a majority vote approved the language of this lease. Now if the City Administrator and the City Attorney who are representing the best interest of the City of Sedgwick, and the wishes of this Council feel its necessary or proper to negotiate certain aspects of that, that’s fine. That’s the position I took last time and that’s what I am taking now. This may or may not be a standard lease, Adam I don’t know, perhaps it is, perhaps it isn’t, the fact is this is the lease we have to work with. So, my suggestion is to go back to them and work it out. They are the representatives, not this Council, is not involved in this negotiation that you have or this company has with these representatives of the City of Sedgwick.” Mayor DeHaven, “I guess I would like to make a comment. I did attend the meeting, only as an observer because the Governing Body directed the staff to take care of that. If you heard that they were going to change everything that you submitted to them, I did not hear that. Adam Healy, “That is not what I heard.” Mayor DeHaven, “And I think that they have been more then willing at trying to take a look at all the issues again, and they have done that. And as far as I am concerned, if the Governing Body will accept those as they are now, we’ve got a lease, you either sign it or make other arrangements.” Adam Healy, “I would like to ask the Councils opinion on the Mayor’s statement. In reflecting on the long term desire of the Council to operate in partnership, in a professional arrangement with Healy Biodiesel. Based on what we have seen presented to us originally in a lease, what we brought for negotiations on the lease, comments made as to take it or leave it, comments made as to we don’t even want to hear your logical arguments on why this is not an acceptable lease 5 for our company to sign, I want to know does this body have the attitude of take it or leave it? Sign our lease or pack your bags? Is that the attitude….” Council Member Emmel, “I’ll answer that one right straight forward Adam. My position is no different today then it has been since we started this. These 2 people here are the people that this company negotiates with. This contract, this agreement was drafted by the City Attorney and approved by the majority of this Council. My self included. Okay? And as I said before, the language of that can move, based upon what these people decide in negotiation with you. Okay? I am not saying its a take it or leave it, I never said that.” Adam Healy, “That is what the Mayor just said.” Council Member Emmel, “Excuse me, I’m not Mayor DeHaven. I am Councilman Larry Emmel, that’s what my nameplate says, so when we are talking about this we’re talking about you and me. Okay? I have never said that and never will. I would say if this company is dissatisfied with the lease agreement they need to work with these 2 people. I have said that before, I will say that again, I will say it 2 weeks from now, if it comes up again, I will say it is I am elected when this comes up again year after year I will say it. This Council approved this contract now its up to these people to negotiate with this company to make it happen. That’s pure and simple, I mean that’s all I can say.” Adam Healy, “What is your recommendation when that fails to happen? Now that’s what I am here to ask you. Where do we go Larry?” Council member Emmel, “If that comes to that point, if neither side is going to move, then obviously there is a stalemate. And it seems like was there, in there if there is not a lease, If the agreement wasn’t signed, if there wasn’t a contract then it was going to be a month to month was that…okay so it stays like it is and you operate month to month. No body is saying that Healy Biodiesel has to leave.” Adam Healy, “They are saying that we can leave with a 30 day notice. That’s what month to month is. You can receive notice from the Administrator…” Council member Emmel, “But this member of this Council is not saying that Healy Biodiesel should leave town. That is what you are wanting me to say and I am not going to say that. And it is not a take it or leave it. It is not a take it or leave it. If it reaches a point where you guys can’t negotiate it out, then obviously it is at a point of a stalemate and the conditions that have been discussed is it is a month to month. That doesn’t mean that Healy Biodiesel can’t exist, it means that you will not accept, Healy Biodiesel will not accept the contract and it also means that the city in protection of the best interest of this city, is not willing to move any further. But that doesn’t mean that Healy Biodiesel does not continue to do business. If Healy Biodiesel chooses not to do business that is Healy Biodiesel’s decision to make. The City of Sedgwick is not making that and this Council member is not making that.” Adam Healy, “The only decision that we have in front of us is whether to accept the lease that has been presented to us.” Council member Emmel, “The only decision that Healy Biodiesel has to make is whether to accept this lease agreement or to negotiate it out, that’s correct.” Adam Healy, “I am coming to you guys to express the fact that I had worked on negotiating.” 6 Council member Emmel, “You’re coming to this Council Adam, your coming to this Council asking us to supercede the work of the people that are intended to do this work. That’s the way I am seeing it from this position, as a representative of the city, not as a business owner.” Adam Healy, “Just as you have the opportunity to approve, reject or alter the original lease that was brought to you, you have the opportunity to do the same again.” Council member Emmel, “I am not as a City Council member going to negotiate with Healy Biodiesel, I am not going to do it. These people are the ones that are assigned by the City of Sedgwick to represent the wishes of the Council for the best interest of the city in negotiation with Healy Biodiesel and any other business in this town that would be in the same situation. Farm contracts, just as Bryan was mentioning earlier, there’s a contract for farmers, you have open spaces there that where you can put in the date and the amount and those are negotiated out, it’s a standard template contract that’s approved by this Council. We don’t get in the day to day operations. Just like it was advised that I go down and meet your brother, Council members go down and meet with your brother that day to talk about the contract, I was not interested in doing that not because of any anxt at all about Healy Biodiesel. But I am not going to go out and talk to a farmer and sit out there in his field and have him complain and want to negotiate a contract with me that is not with me, it is with the City of Sedgwick. That’s my point.” Adam Healy, “That point is taken.” Council member Emmel, “This City Administrator and this City Attorney, I will say it one more time. They represent the wishes of this Council and the best interest of the City of Sedgwick. May be not for Healy Biodiesel but the best interest of the City of Sedgwick. That’s why I believe it should stay with them. I will be that way 2 weeks from now, a month, a year, or whatever, same thing. That’s who they are, I am not going to usurp their responsibility. I will say this to you that before I came to Council I attended meetings, I sit out there and I observed cases where the City Council usurped the responsibility, in my opinion of the City Administrator and her job. And I didn’t think it was appropriate then and I don’t think it is appropriate now, and I am not going to be a party to it. And again it is not directed at Healy Biodiesel, it’s the principle of the point, the point is, these people represent us in my opinion but that’s just me.” Council member Chapman, “We don’t want Healy Biodiesel to move out of the City of Sedgwick. I thought we were going out of our way when we reduced your lease, you were paying $1,650.00 to $1,200.00, I’m thinking now that’s the way to treat somebody you want to take care of. And now we can’t even get you to sign the lease because, I don’t know why, I don’t really want to know why, because it is their job and I am not going to usurp their authority just like you said because if the attorney says this is what we need to have, that’s what we need to have. I don’t know how punishing it can be from what I see, you know you want a 5 year lease and we can’t do more than 2, I don’t know that we want to do more then 2. I don’t think you would want to do more then 2, there’s always that out, you know, and we’re not going to change things.” Adam Healy, “What I want to make statement of is that the actions the representation of this lease, is that we can’t wait to get you guys out of town. We can’t wait, I should re-phrase, we can’t wait to get you off that piece of property, at our whim, anytime we decide to, for any reason we decide to and that has not been the consensus or the feeling I have gotten from this governing body. Comments that have been by this governing body that hey if you guys are doing everything right, you are doing everything you are suppose to, you can be on that corner as long as you need to be. One year, two years, five years, ten years, what is the difference? 7 What are you guys doing with that property other then having a paying tenant occupy it? This lease does not concur with those statements. This lease isn’t worth the paper it’s written on because of item 3 reservation of right to terminate during the term. It’s not a lease if the city unilaterally could just say we don’t want to lease anymore, here’s the notice, get out. That is not appropriate for any business to undertake.” Discussion continued reiterating what had already been stated. No decision was made. Mayor DeHaven asked that the bids for fence be tabled until an acceptable lease has been agreed upon. Fence bids will be on the next agenda. MOVED BY EMMEL AND SECONDED BY JENSON TO ADJOURN TO EXECUTIVE SESSION FOR DISCUSSION OF PROPERTY ACQUISITION FOR A PERIOD OF 10 MINUTES BEGINNING AT 10:01 P.M. WITH MAYOR, COUNCIL, CITY ADMINISTRATOR, CITY ATTORNEY AND CITY CLERK IN ATTENDANCE. MOTION CARRIED. No binding action was taken in Executive Session. MOVED BY JENSON AND SECONDED BY NOONE TO ALLOW CITY ATTORNEY TO DRAFT A PROPERTY ACQUISITION CONTRACT AND ALLOW MAYOR TO SIGN CONTRACT FOR PURPOSE OF PURCHASING LAND FOR BENEFIT OF DRAINAGE FROM WILLIAM JOHNSON FOR $3,000 AN ACRE. STAFF IS TO NEGOTIATE CLOSING COST. MOTION CARRIED 4-1. EMMEL OPPOSED. MEETING REMINDERS Christmas in the Country, December 4 City Christmas Party, Dec. 11 – RSVP by Nov. 22 MOVED BY EMMEL AND SECONDED BY CHAPMAN TO ADJOURN. MOTION CARRIED . Meeting adjourned at 10:20 p.m. _________________________________ Janise P. Enterkin, CMC City Clerk 8
"REGULAR CITY COUNCIL MEETING"