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Min 11/07/1995 28 Wichita Falls, Texas Memorial Auditorium Building November 7, 1995 Items 1 & 2 The City Council of the City of Wichita Falls, Texas, met in regular session on the above date in the Council Room of the Memorial Auditorium Building at 8 : 30 o' clock a.m. , with the following members present : Michael Lam - Mayor Don Johnston - Councilors Dan Shine - Angus Thompson - Bill Daniel - J. W. Martin - Harold Hawkins - James Berzina - City Manager Greg Humbach - City Attorney Lydia Torres - City Clerk Mayor Lam called the meeting to order. Invocation was given by Rev. Stephen Johnson, Edgemere Church of Christ . Item 3a Carla Guthrie, Utility Collections, was honored as Employee of the Month. Mayor Lam presented her with a plaque, City pin, theatre and transit tickets, dinner for two, and a check. Mayor Lam proclaimed the week of November 5, 1995 as "National Radiologic Technology Week in Wichita Falls . Item 4 Moved by Councilor Johnston that the minutes of the October 17, 1995 meeting be approved. Motion seconded by Councilor Martin and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins . Nays : None Items 5a-8h Councilor Shine requested that Item 6m be brought down to the regular agenda. Moved by Councilor Thompson that the consent agenda be approved with the deletion of Item 6m. 29 Item 5a-8h cont' d Motion seconded by Councilor Johnston and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 5a RESOLUTION NO. 179-95 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS AUTHORIZING THE CITY MANAGER TO EXECUTE AN ENCROACHMENT AGREEMENT WITH THE TANGLEWOOD LAKE OWNERS ASSOCIATION FOR AN ENCROACHMENT IN BLOCKS 5 & 6, TANGLEWOOD HOLLOW SECTION "C" , AND ALONG THE NORTH PORTION OF THE RIGHT-OF-WAY OF DRIFTWOOD AND RIDGEMONT DRIVE, WICHITA FALLS, TEXAS, FOR THE EXISTING PRIVATE WATERLINE LOCATED IN SAID EASEMENT IN ACCORDANCE WITH THE ENCROACHMENT AGREEMENT; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW Item 5b RESOLUTION NO. 180-95 RESOLUTION TO APPROVE JOINT FUNDING AGREEMENT WITH U. S . GEOLOGICAL SURVEY FOR OPERATION AND MAINTENANCE OF STREAM FLOW AND RESERVOIR CONTENT GAUGING STATIONS Item 5c RESOLUTION NO. 181-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, DECLARING CERTAIN PARCELS OF REAL PROPERTY AS EXCESS AND DIRECTING THE LAND TO BE SOLD BY SEALED BIDS; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Item 5d RESOLUTION NO. 182-95 RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE SUPPLEMENTAL AGREEMENT NO. 1 WITH THE FEDERAL AVIATION ADMINISTRATION Item 5e RESOLUTION NO. 183-95 RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE LEASE AGREEMENT WITH SOUTHERN AVIATION OF TEXAS, INC. FOR LEASE OF PREMISES AT THE WICHITA FALLS MUNICIPAL AIRPORT Item 5f RESOLUTION NO. 184-95 RESOLUTION AUTHORIZING THE MPEC BOARD TO EXECUTE A CONTRACT WITH TEXAS UTILITIES ELECTRIC COMPANY FOR THE INSTALLATION OF THREE PHASE ELECTRIC SERVICE TO THE RV PARKING AREA AT THE SOUTH SITE OF THE MULTI-PURPOSE EVENTS CENTER 30 Item 6a Award bid for two (2) , 3/4 ton pickups to Herb Easley Chevrolet, in the amount of $34, 365 . 00 . Item 6b Award bid for three (3) , 15, 000 GVW cab and chassis to R.L. Anderson International, Inc. , in the amount of $88, 368 . 42 . Item 6c Award bid for one (1) , 52, 000 GVW cab and chassis to R.L. Anderson International, Inc. , in the amount of $68, 997 . 75 . Item 6d Award bid for two (2) , 55, 000 GVW cab and chassis to R.L. Anderson International, Inc . , in the amount of $133 , 043 . 30 . Item 6e Award bid for one (1) , 35, 000 GVW cab and chassis to R. L. Anderson International, Inc . , in the amount of $41, 620 . 62 . Item 6f Award bid for five (5) , 1 ton cab and chassis to Ron Roberts Ford, in the amount of $85, 164 . 25 . Item 6a Award bid for nine (9) , 1/2 ton pickups to Ron Roberts Ford, in the amount of $123 , 196 . 50 . Item 6h Award bid for fifteen (15) , police patrol cars to Ron Roberts Ford, in the amount of $274, 365 . 30 . Item 6i Award bid for twelve (12) , 4 door sedans to Herb Easley Chevrolet, in the amount of $172, 598 . 88 . Item 61 Award bid for one (1) , mini-van to Herb Easley Chevrolet, in the amount of $17, 342 . 79 . Item 6k Award bid for one (1) , 1/2 ton cab and chassis to Ron Roberts Ford, in the amount of $13 , 564 . 75 . Item 61 Award bid for a truck mounted sewer cleaning machine to AEW Sales, in the amount of $58, 722 . 00 . Item 6n Award bid for two (2) 35 cubic yard hydraulic loading packer bodies to Davis Truck and Equipment, Inc . , in the amount of $91, 530 . 00 . Item 6o RESOLUTION NO. 185-95 RESOLUTION TO AWARD OF BID AND CONTRACT TO BOWLES CONSTRUCTION COMPANY FOR CYPRESS HIGH SERVICE PUMP MODIFICATION PROJECT 31 Item 6p Award bid for two (2) 52 inch front mounted rotary mowers to Construction Agricultural Supply Company, in the amount of $17, 306 . Item 6cr Award bid for two (2) 72 inch rotary ride on mowers to Goldthwaites of Texas, Inc . , in the amount of $21, 992 . 00 . Item 7a RESOLUTION NO. 186-95 RESOLUTION TO ACCEPT PROJECT TO INSTALL A NEW WATER LINE ON JALONIC STREET (CDBG) AND AUTHORIZE FINAL PAYMENT TO THE CONTRACTOR Item 7b RESOLUTION NO. 187-95 RESOLUTION TO ACCEPT THE CDBG WILLIAMS PARK TRAIL PROJECT AND AUTHORIZE FINAL PAYMENT TO BARNETT PAVING AND SEALING COMPANY Items 8a-8h Minutes of the meetings of the following boards and commissions were received. a. Wichita Falls Arts Commission, October 19, 1995 b. Board of Electrical Examiners, October 12 , 1995 c . Water Resources Commission, October 6 , 1995 d. Planning and Zoning Commission, October 11, 1995 e . Wichita Falls Park Board, October 26, 1995 f . Library Advisory Board, September 26 , 1995 g. Wichita Falls Traffic Safety Commission, September 6 , 1995 . h. Wichita Falls Traffic Safety Commission, October 4 , 1995 Item 6m Moved by Councilor Shine that bid for one (1) solid waste transfer trailer in the amount of $42, 686 . 00 be awarded to Davis Truck and Equipment Co. , Inc . Motion seconded by Councilor Martin. Councilor Shine requested clarification that Staff was recommending Davis Truck and Equipment Co. , Inc . Mr. Parker clarified that there was an error in the commentary and their recommendation was Davis Truck and Equipment Co. , Inc . Motion carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin and Hawkins Nays : None City Manager requested that Item 10e be moved up on the regular agenda. Item 10e Murphy Davis, 2104 Avondale, represents Sentry Management, Inc . and is acting as Council' s Financial Advisor. EPA has made required changes to City' s wastewater system and we have started the process for the financing of those required projects over a 32 10e cont' d five year period. We do not know if there will be an extension on those five years . We have the ability to lessen the burden on the rate payers of Wichita Falls by doing the financing with the Texas Water Development Board, if all the paperwork is in order. In past years we did another financing with the Texas Water Development Board and we were able, and are hoping to do the same with this financing, to issue the securities in a junior lien. They would not have prior lien status without outstanding bonds and at the same time get a rate using the Texas Water Development which would give us a rate of 60-70 basis points, or . 6 or . 7 of a percent less of what a AAA bond would be selling at . It is an excellent opportunity if we are needing to do the financing, and a very inexpensive way. This morning we are asking for your approval of a resolution which will give us the ability to work with the Council and City Staff to make an application to the Texas Water Development Board. With this application there will not need to be an underwriter, since we will be selling all the bonds in essence to the Texas Water Development Board. The yield or cost that we will be getting will be based upon whatever the AAA rated bond issue would be turning at that time minus that 70 basis points . From that perspective, it is an excellent opportunity for us to take advantage of some needed help to do the financing of the projects that Council has been considering. RESOLUTION NO. 192-95 RESOLUTION TO REQUEST FINANCIAL ASSISTANCE FROM THE TEXAS WATER DEVELOPMENT BOARD, AUTHORIZE THE SUBMISSION OF AN APPLICATION FOR SUCH FINANCIAL ASSISTANCE, AND DESIGNATE THE CITY MANAGER AND DIRECTOR OF PUBLIC WORKS AS THE AUTHORIZED REPRESENTATIVES OF THE CITY OF WICHITA FALLS FOR EXECUTING THE APPLICATION AND FOR APPEARING BEFORE THE TEXAS WATER DEVELOPMENT BOARD REGARDING THE APPLICATION Moved by Councilor Martin that Resolution No. 192-95 be passed. Motion seconded by Councilor Thompson. Councilor Martin asked Mr. Davis to inform, as a matter of clarification to the public, of the impact the bond situation in Orange County has in Texas . Mr. Murphy informed that it has had an impact and the City Council has taken action on a new investment policy and procedures which Mr. Werner has brought before this Council, and as a result, the Texas Investment Act that was just passed. We are all impacted by someone' s misuse of municipalities, at least implied, investments . But from the perspective of this particular financing and this City itself, it will have no affect, because we will be issuing twenty year bonds at 4 . 90% . From an impact of yield it has not had an impact but all municipalities have been directly impacted, however, not negatively in this particular instance as far as the yields are concerned. Councilor Thompson asked that since this is going to be financed over five years, how will this affect the citizens in regards to water bills . Mr. Davis replied that a study had been performed on the total impact and there will be a 3-4o increase . Mr. Werner informed that on the overall combined water-sewer bill we anticipate a 3-4% increase per year and a 6o increase each year on the sewer bill . Councilor Hawkins calculated that it would be a 30o increase over a five year period. Mr. Werner stated that it would have to be evaluated and it would depend on water consumption, how the interest rates go in the future, and whether or not the guidelines of the State would allow us to expand it over a period greater than five years . He informed that this was a 20 year bond and the demand will be over a five year period with two more financings coming back to Council . 33 Item 10e cont' d City Manager stated that in the last budget we have already taken care of an issue of revenue increase to cover the first $9 million. That work has started and that' s the first two or three major projects that we put in to cover with that money. Mr. Davis added that Council would be enabling them to proceed with the project but it will be in a multiple step project . We are only doing the financing that we can actually construct and it can be constructed within one year and two years, but it is a five year project . This is the cheapest way to go and if we are successful in listing it as a junior lien bond it will really help if we have to have additional finances in the prior lien bonds on normal day in and day out type projects . Councilor Johnston asked what the impact would be if it were spread over ten years instead of five years . Mr. Davis replied that it would be more palatable if it were spread out over ten years but we are under the mandate of five years to have the projects completed. If we got it over ten years, we do not know what the interest rate would be . But as far as principle pay back it would be more palatable, less of an increase to the users in the City of Wichita Falls . Motion carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9a ORDINANCE NO. 114-95 AN ORDINANCE AMENDING SECTION 25-63 OF THE CODE OF ORDINANCES BY EXCLUDING MPEC AS A REGULATED USE UNDER THIS ARTICLE; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Thompson that Ordinance No. 114-95 be passed. Motion seconded by Councilor Johnston and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins . Nays : None Item 9b ORDINANCE NO. 115-95 ORDINANCE WAIVING SECTION 27-30 OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING A SIDEWALK ON THE WEST SIDE OF WAURIKA FREEWAY (U. S . 79) , ADJACENT TO THE EAST LINE OF LOT 2-A AND 2-B, BLOCK 16, KEMP & NEWBY SUBDIVISION Moved by Councilor Johnston that Ordinance No. 115-95 be passed. Motion seconded by Councilor Martin and carried by the following vote . 34 Item 9b cont' d Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9c ORDINANCE NO. 116-95 ORDINANCE AUTHORIZING A FRANCHISE TO PRESIDENTIAL LIMOUSINE OF TEXAS, INC. , TO OPERATE A TAXICAB SERVICE IN WICHITA FALLS Moved by Councilor Martin that Ordinance No. 116-95 be passed. Motion seconded by Councilor Thompson. Councilor Hawkins stated that this was just for the five existing cabs, not five additional cabs . Motion carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9d ORDINANCE NO. 117-95 ORDINANCE AUTHORIZING A FRANCHISE TO SKYLARK VAN SERVICE, INC. , TO OPERATE TWO SPECIAL SERVICE VEHICLES IN THE CITY OF WICHITA FALLS Moved by Councilor Thompson that Ordinance No. 117-95 be passed. Motion seconded by Councilor Shine and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins . Nays : None Item 9e ORDINANCE NO. 118-95 ORDINANCE WAIVING SECTION 27-30 OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING A SIDEWALK ON THE NORTH SIDE OF SEYMOUR HIGHWAY, ADJACENT TO THE SOUTH LINE OF LOTS 5-A & 5-B, BLOCK 1, GAGE ADDITION Moved by Councilor Martin that Ordinance No. 118-95 be passed. Motion seconded by Councilor Shine and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None 35 Item 9f ORDINANCE NO. 119-95 ORDINANCE WAIVING APPENDIX A, SUBDIVISION SECTION 9 (B) (2) (a) OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING CURB AND GUTTER ON THE NORTH SIDE OF SEYMOUR HIGHWAY, ADJACENT TO THE SOUTH LINE OF LOTS 5-A & 5-B, BLOCK 1, GAGE ADDITION Moved by Councilor Martin that Ordinance No. 119-95 be p passed. Motion seconded by Councilor Daniel and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9g s ORDINANCE NO. 120-95 ORDINANCE WAIVING APPENDIX A, SUBDIVISION SECTION 9 (B) (2) (a) OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING CURB AND GUTTER ON THE SOUTH SIDE OF RATHGEBER ROAD, ADJACENT TO THE NORTH LINE OF LOT 1, BLOCK 1, SCHULTE ADDITION Moved by Councilor Thompson that Ordinance No. 120-95 be passed. Motion seconded by Councilor Daniel . Councilor Martin was concerned about the flooding in Woodhaven Addition during heavy rains . He wanted to know if water retention had been addressed and Mr. Bonnett replied that under current ordinance there is no provision to address that . The only thing they will have to retain is the difference between the runoff after construction. Councilor Martin stated that as development occurs out there we should watch the water retention because all that field drains into Woodhaven Addition and floods there . He asked that this be looked into. Motion carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9h ORDINANCE NO. 121-95 ORDINANCE WAIVING SECTION 27-30 OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING A SIDEWALK ON THE SOUTH SIDE OF RATHGEBER ROAD, ADJACENT TO THE NORTH LINE OF LOT 1, BLOCK 1, SCHULTE ADDITION Moved by Councilor Thompson that Ordinance No. 121-95 be passed. Motion seconded by Councilor Shine and carried by the following vote . 36 Item 9h cont' d Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 9i A proposed ordinance was presented amending Section 25-49 of the Code of Ordinances as it relates to hours of operation. Moved by Councilor Martin that proposed ordinance be passed. Motion seconded by Mayor Lam. There was a concern regarding the consequences that later hours would present . Mayor Lam moved that this item be tabled and that staff review the consequences of later hours and also make a recommendation at the next Council meeting. Motion seconded by Councilor Thompson and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 91 ORDINANCE NO. 122-95 ORDINANCE APPROPRIATING FUNDS APPROVED FROM THE TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS (TDHCA) FOR THE EMERGENCY SHELTER GRANT PROGRAM; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW Moved by Councilor Johnston that Ordinance No. 122-95 be passed. Motion seconded by Councilor Thompson and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins . Nays : None . Item 9k A proposed ordinance was presented amending Chapter 18, Article VII, to repeal Section 18-103 , limitation of minors' access to tobacco products . Moved by Councilor Johnston that proposed ordinance be passed. Motion seconded by Councilor Daniel . Mayor allowed for discussion in support of and against this Ordinance . The following were in support of this Ordinance . 37 Item 9k cont' d Ed Bond, 3411 Glenwood, owner of Otto' s Grocery, stated that when the Ordinance first came before the Council it was a second hand smoke issue and since that time it has developed into other issues which have now included his business . It went from a second hand smoke issue to an anti-smoking issue and from that to an anti-business issue . If I have to place a product where I am going to have to service it, it is going to tie up more of my time and more of my employees' time . Being a self service fixture in the store, accessible to all people, is a convenience and is also a necessity for me . Tobacco companies do pay money for the displays, and if it is out of reach we will miss sales . I understand that it is within minors reach, and my argument against that is let' s teach the kids not to steal to start with. It is not the retailers responsibility to bring up these children to make sure that they do right and not wrong. The cigarette vending machines in Wichita Falls restaurants are more accessible to minors than coming into my store and stealing them. The majority who steal cigarettes are adults not minors . In the event the Ordinance is not repealed it will cost me substantial loss of income and one or two jobs to current employees . I ask that you consider the business aspect of it and leave the emotions out of it . You can see that it is the right of the business to sell a product and be able to display it . Councilor Hawkins asked Mr. Bond to estimate how many packs of cigarettes were stolen out of his store a year by minors . He replied that less than a carton in a year. He has surveillance cameras and the cigarettes are located within view of cash registers and they can police through the cameras and employees . Councilor Johnston asked Mr. Bond what type of measures he was using to properly identify persons purchasing tobacco products to make sure they were not minors . He said that Representative Hirschi performed a tobacco sting operation and a minor was sent into his store to attempt to purchase cigarettes and he was turned down. Representative Hirschi came in to his store and congratulated him. Mr. Bond said that bottom line is that they I .D. , and they do turn down a lot of kids . A lot of them do try and you cannot stop them from trying. There are State laws which prohibit the sale to minors and if you get caught you get fined. Go after those who break the law and sell to minors and leave the business men alone that are doing the right thing. Woody Oliver, 6904 Eisenhower, Lawton, Oklahoma, Division Manager of Circle Ks, stated that they provide rigid training programs for their employees on the sale of unlawful products and they feel very good about these training programs . He said they have removed all tobacco product displays off the counters, however, if the Ordinance remains as it is it will be a substantial loss to our company. It is not only this product that we receive allowances for but other products that are legal . We would appreciate your consideration in allowing us to put these displays back on the counters . Scott Haskins, 2525 Kell Blvd. , Eagle Mart Convenience Stores in the area, expressed his concerns about the tobacco protection order. He said the ordinance was designed to protect the public from second hand smoke, and as a non-smoker he agrees and supports that part of the Ordinance . The Ordinance is very clear on the second hand smoke issue and achieves the goals of the public and the City concerning second hand smoke . In my opinion, the issue on self-service displays by retailers was not clear when the Ordinance was presented to the voters . Eagle Mart has taken every action possible to comply with the majority of requirements set forth in the Ordinance as required by the law, and it is supported wholeheartedly by Eagle Mart . All persons purchasing tobacco products are required to prove their legal age . We have no desire to sell tobacco products to minors . As a parent I welcome this law and give it my total support . At all Eagle Mart stores, the displays are located next to the check out registers where the clerk has control over the dispensing of the product . Theft of the product by minors is highly unlikely 38 Item 9k cont'd because of its location. It is simply a display to present the product to an adult smoking customer of Eagle Mart . It is by no means the primary vehicle for the sale of tobacco products, and just as any other display it is a reminder to our adult customer that the product is available . It is true that most retailers and convenience stores just as supermarkets receive marketing funds from the tobacco companies . But, it is also a fact that marketing funds are received from soft drink and snack food companies to display their products . I encourage you to research the amount of revenue which is generated from displays of soft drink and snack food items . It is not a health issue or an issue of selling to minors; it is an issue of restraining free enterprise of law abiding businesses in the area. If a minor wants to smoke he will find a way. Ironically, in Wichita Falls it is not against the law for a minor to possess cigarettes . I would suggest that an ordinance be passed prohibiting the possession or smoking of cigarettes by minors, thus making the minor or the parents accountable . We have 14 Eagle Mart locations in Wichita Falls and approximately 130 employees, and if this Ordinance remains as it is we will have loss of revenue resulting in loss of jobs and increase in cost of tobacco products . The economy, merchants, and the City are all affected. This Ordinance limits how we can conduct business . Prohibiting our ability to participate in the marketing fund, you have eliminated approximately 3% of our merchandise gross revenue and 200 of our net revenue . We will have no other choice but to make adjustments in our operations and our proposed renovations in this City. By taking away our ability to display tobacco products you have nullified an existing contract with our vendors . Is the City willing to make up those loss revenues . What is the effect on the value of our stores? We suspect you have decreased the value of our stores by $1 million. Is the City willing to make up this loss value . All merchants in this area will be at a price competitive disadvantage which will result in further revenue loss . Mr. Haskins referenced the Federal Law, Title 15, United States Code, Sec . 1334b, 1988 and quoted, "Federal Law expressly provides no requirements or prohibitions based on smoking and health shall be imposed under State Law with respect to advertising or promotion of cigarette packages of which are labeled in conformity with Federal Law" . He asked Council to review this issue and change it in what is fair, right, and legal . He passed out handouts to the Council of Eagle Mart displays and information on fifteen other independent retailers which he represents today. David Bedingfield, Food Barn, 3707 Sheppard Access, has seven employees and if this Ordinance is not changed one job will be deleted. Employees are required to have the TABC Certification Class in the selling of tobacco and alcohol products . We were the first to have Cops in Shops Program and we did not have any minors come in to try to purchase tobacco or alcohol . Loss of income will be a hardship to small businesses . The following were against changing the Ordinance . Giola Kluver, 2938 Elliott, stated that Circle K removed the cigarettes from their cash registers last week, but they were there up until then. She said Otto' s was under a new name, new ownership. She said tobacco products should not be sold within a certain amount of miles within a school or church. Paul Jaco, 2921 Featherston, asked Council not to change the Ordinance because 600 of the people of Wichita Falls voted it in as it stands . I believe that the majority rules, but if you change what the people voted on what you are saying, in essence, is that their vote is not any good any more . Dr. Kent Ulrich, 2209 Berkeley, representing the Tobacco Awareness Coalition, said that there has been a considerable 39 Item 9k cont' d amount of discussion on this Ordinance as an economic issue and as a rights issue . You need to consider this Ordinance and it' s impact on our society, especially on our children. Within Texas, on a per year basis the direct and indirect cost of tobacco related disease represents about $4 billion and it is probably up by $5 million. Each year the tobacco industry spends $6 billion in marketing. On a per package basis, estimated direct and indirect cost on a per pack basis at $2 . 69 ; considerably higher than the going rate of sales . These economic costs are certainly real to society, but there are also additional emotional costs and suffering of those individuals who are affected by tobacco related disease or watch their loved ones suffer. Five millions children in the U. S . are anticipated to die of a tobacco related illness . Three thousand children a day will begin to smoke and 750 will be expected to die as a complication of tobacco related disease . Additionally, tobacco has been studied and clearly researched as a gateway substance leading to marijuana and additional drug usage . Clearly, tobacco and use of tobacco related disease is the number one health problem in our society. Staggering numbers have been published in the Times Record News in the dollar amounts in contributions to our merchants from the tobacco industry, $1 . 2 million and $350, 000 . That is a tremendous amount of money. Figured on a per capita basis, $25- $75 per child in the WFISD in marketing. The tobacco industry places restrictions on what they are paying for them and the reason they are willing to pay such a large amount of money to display their products is replacement smokers . Three million smokers will quit or die and the tobacco industry needs replacements to keep their numbers constant . To this end this is where this $6 billion goes, 80% of that is spent in retail marketing since they have been banned from the air-waves . This recruitment is very carefully researched and studied and it is carefully aimed at addicting our children. Research studies have indicated that children can identify Joe Camel with smoking more often than they can identify Mickey Mouse, and this is in first and second graders . The tobacco industry has researched patterns of behavior in adolescents, and it is obvious that their ads are appealing to adolescents with their pictures of health, independence and social acceptability. This is sinister in our mind. The tobacco industry is well aware that addiction to tobacco begins at adolescence . 60% of all smokers start by age 14 , 80% by age 18 . If someone gets passed the years of 18 to 20 and is not addicted to tobacco they are very unlikely to become so. As few as one hundred cigarettes can addict you. We believe that restrictions in point of display will reduce the potential for our children to be addicted to nicotine . In 24 jurisdictions in California, such restrictions have not reduced sales to adults, but there have been significant reductions in sales to minors, which is illegal . Sherry Cannedy, 1481 Wranglers Retreat, stated that the public has spoken, and loudly. By their vote on May 6 they approved this Ordinance and supported Council' s decision to pass it . Now six months later, changes are being considered because opponents of the law are claiming that the public was unaware of what they were doing. Opponents claim that the public was in favor of a portion of the Ordinance but was unaware of one entire section. These folks say that because the public is too ignorant to know what they were voting for, the City Council should decide for them and change the Ordinance to reflect how they think the .ate public would have voted if they had read the Ordinance or been informed voters . The Tobacco Awareness Coalition believes that the public was fully aware of all sections of this Ordinance . There were many sources informing the public, such as newspaper articles, League of Women Voters Guide, efforts of PTA Council, the Citizens Against Government Interference flier, the television, the youth rally at the Plex, Speakers Bureau, and the City Council meetings . The voters were aware of the limitation of minors access provision. While it did not receive as much attention as the second hand smoke issue, we contend it is because it was not considered to be a very controversial issue . 40 Item 9k cont' d The overwhelming majority of the public supports limiting tobacco access by minors . The voters were aware of this section of the Ordinance and supported its inclusion. Should the Council change an ordinance which was voted in by 600-o of the people . We respectfully remind you that this Ordinance was passed by you long before it was voted on by the citizens, this was your Ordinance and the section in discussion was a part of it . If a majority of the Council felt it is inappropriate, how did it pass . If it was a valid provision and later validated by 600 of the people, the Council should not now be considering to change it because of tobacco industry pressure . There was a group which approached the Council after the election wanting modifications to the Ordinance, and you expressed the sentiment that the people had spoken and as elected representatives you had no intentions of going against their wishes . We ask that you stand firm behind that position. The public supported your Ordinance with a commanding 600-. vote and we ask that you now return that support . The public has spoken. John Hirschi, 2911 Sturdevant, commended Council for the present Ordinance . You were farsighted, wise and brave to pass it . I doubt that anyone here today has not been affected adversely by tobacco products . I doubt that anyone here would wish to have anyone of their loved ones become addicted to tobacco products . As the leading killer of our citizens, tobacco products or candy, or gum or motor oil, shouldn' t be merchandised as if they were such innocuous products . We restrict the placement of playboy type magazines and adult entertainment establishments to limit children' s access and rightfully so. If the cost of tobacco in lost health, suffering and medical bills dwarfs money tobacco merchants receive in slotting fees . As a personal example a one month' s bill at M.D. Anderson was in the amount of $70, 000 . In slotting fees we are talking about $350, 000 to $1 million. One third of the patients at M.D. Anderson are there because of tobacco. He mentioned the scenes there at the hospital, especially of the children affected by tobacco. Not all of the tobacco merchants did what Mr. Bond mentioned, two-thirds of his fellow merchants freely sold tobacco products to kids . This is an economic issue and the evidence supports limiting children' s access to tobacco because the cost is much greater there than in the small amount of money that is lost in the slotting fees, which many people think is to cover the stealing that takes place of these products . A payback by the tobacco company. He asked Council to have the courage to continue to support the Ordinance as it is presently written. Dr. Cliff Burrows, 2414 Brentwood, Director Family Practice Residency Program, addressed the issue of merchandising. We contest the statement that this is a merchandising issue not a health issue . A study in the October journal of the National Cancer Institute refutes the tobacco industry' s contention that peer pressure on teenagers, not marketing is the biggest factor in deciding to smoke . Researchers found that young adolescents are twice as likely to be influenced by cigarette advertising and promotion than by peer pressure and family. The FDA Commissioner was quoted as urging physicians that if they can get kids to age 18 or 19 without starting to smoke, they will not only reduce the number of smokers but in a generation disability due tobacco will go the way of smallpox. These issues are one of money, not one of merchandising; it is an issue of greed versus need. One of our contentions is that while we are depriving them of making money and, therefore, we cannot afford to do that here in Wichita Falls . I contend that we cannot afford to do it, otherwise, but to protect our youth. We need to tell these gentlemen that they need to make their living the way others do without taking advantage of those who are less fortunate, less educated, or by their youth unable to make distinctions . I think the same contention can be said about those who are selling illegal drugs such as crack, cocaine, marijuana, and amphetamines . They can say they are just trying to make a living, just give us the ability to do so. I do not want to label our 41 Item 9k cont' d people in business here in the same category but I think you can make the case that it is the same as they are contending that they are trying to make a living. He showed pictures of violations still occurring in the some local stores . It is not fair that certain stores are not obeying the law and trying to contend that they are . Blair Phillis, 2605 N. Leighton, 14 year old student at Notre Dame, asked Council not to change the Ordinance and help protect teens from stealing tobacco. He is aware of teens who purchase and steal tobacco products and are addicted to the product and will become full time smokers . He asked Council to be a positive force in deterring young people from becoming addicted to tobacco products . The people who voted for this Ordinance did not intend for it to be changed later. The teens of today will grow up and become the leaders of tomorrow making decisions that will help teens to keep from smoking. He asked that Council do the same for the teens today. Jeanine Cavender, 1515 Polk, is a partial owner in a small local business . She said she was and still is against the smoking ordinance, but it passed as it was written and wants it to remain as it is . If you begin to make exceptions with one, you should do it for all . Dianna Norrie, 4814 Belair, said she was a new mother and the thought of changing this Ordinance scared her and she felt it would only result in negative consequences . She works with high school students and a large portion of them already smoke, having started in junior high. Changing this Ordinance will increase the likelihood that minors will attempt to purchase tobacco products and be successful . Making the tobacco products inaccessible will deter them from making such attempts . She asked Council to keep the Ordinance as it stands . Councilor Martin stated that after listening to the people speak, he is in favor of not changing the Ordinance . The only way to change it would be to take it back to the people for a vote . We have merchants who have gone to a great extent to comply with the Ordinance and I think it would be unfair to change it now. Councilor Daniel offered the Tobacco Awareness Coalition an opportunity for Council to table this until next meeting in order to allow them time to discuss it further. They declined. Councilor Johnston stated that he felt this was an infringement upon the right of the individual shop owner to run his shop the way he felt . He said he had no problem with substituting an amendment to read that it is illegal for a minor to possess tobacco. It is up to the merchant to display his merchandise the way he wants and sell it legally. A child can possess tobacco but cannot purchase it . We are not getting at the point that the child should not have tobacco. Councilor Hawkins brought up the issue of vending machines and the fact that the Tobacco Awareness Coalition wanted to prohibit vending machines in public places open to minors . This was struck from the Ordinance and not voted on by the people, yet it was highlighted by the Tobacco Awareness Coalition as being very important . He said he voted against the smoking ordinance and today he will vote to strike that portion of the Ordinance because it is not smoking. Those cigarettes do not cause anyone' s underwear to stink, only when they are lit up. He would vote for declaring it illegal for persons under 17 years of age to possess tobacco products . Councilor Thompson stated that he would have wanted to have all the information which was presented today earlier. I believe that the voters who voted were informed and were right in the decision they made . I do not believe that 60% of the citizens could be wrong, and I believe we should follow the dictate of the 42 Item 9k cont' d majority. I do not feel it is fair to selectively amend the Ordinance because it affects some segments of our population, realizing that other segments affected by it, such as restaurants, bowling alleys, etc . , are not going to receive relief . I think that is the wrong way to go about it . It is the children who will be affected by it . What is being requested of this Council is that we sacrifice our children for dollars to be put in the pockets of merchants . I think we also need to keep in mind that we will be paying out in large medical bills . To say that it is not a health issue that it is about economics, is the most crass, most cynical, most unbelievable argument that one could put forth. This is about economics but most of all it is about the health of young people who are not really able to make sound judgement . If merchants wanted to make displays, they could find ways, but they want to make it accessible . It is my hope that we be courageous and stand up for what the citizens stood up for and that we would reciprocate their faith in us by having faith in them. Councilor Daniel said that he had struggled with this even more than with the original Ordinance and a lot of discussion, thought, and prayer went into that . The City Council does have the right to go back and review an ordinance even if it has been voted on by the City under petition or referendum. It is possible for an item to be included in an ordinance that is unconstitutional or wrong and Council is responsible to review and change the ordinance if it so chooses . I view this particular item as a punitive measure and it is designed to hurt businesses and therefore, to try to move them in a certain direction. It is much more effective as a punitive measure than it is as a control measure as far as restricting access to cigarettes . It is not my nature or philosophy of government . I believe that we cannot legislate societal change and should not, However, two things are a fact . The City voted on this Ordinance, and more darning is that this Council voted on this Ordinance . We had an opportunity to discuss this issue at that time and to delete the display portion and we did not, as we did the vending machines and deleted them. The fact that the Council voted on it at that time, would even be a bigger mistake to go back and change what Council voted on at that time . I have decided to vote against the change . Councilor Shine said he also had strongly weighed this issue and he feels the Council must have the right to change things . He complimented everyone' s efforts who spoke today. He commended the Council for the numerous hours spent on this issue from the beginning and they came up with the same position as the voters did. The voters voted to justify what Council had already done . Some of the Council members seem to think that they should go by the vote, but I think Council has the right to change things . I think that businessmen do have the right to display products if it' s legal . I am against second hand smoke and for the health issue of it I couldn' t be more in favor for, and I would even work hard to disband cigarettes . However, I need to vote for the change . Mayor said that he would be against any amendment because today we are dealing with displays and not a possession issue . The possession issue could be dealt with later in order to prevent clouding this issue . Councilor Johnston asked if a minor purchases tobacco product can merchants be charged with a violation. City Attorney replied that was correct under State law, but the minor could not be . Motion failed by the following vote . Ayes : Councilors Johnston, Shine, and Hawkins Nays : Mayor Lam, Councilors Thompson, Daniel, and Martin 43 City Council recessed at 10 : 05 a.m. and reconvened at 10 : 20 a.m. Item 10a RESOLUTION NO. 188-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS NOMINATING TWO MEMBERS TO SERVE ON THE BOARD OF DIRECTORS OF THE WICHITA APPRAISAL DISTRICT; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW Moved by Mayor Lam that Councilors Shine and Hawkins be appointed to serve on the Board of Directors of the Wichita Appraisal District . Motion seconded by Councilor Thompson and carried unanimously. Moved by Councilor Thompson that Resolution No. 188-95 with the nomination of Councilor Dan Shine and Councilor Harold Hawkins be passed. Motion seconded by Councilor Johnston and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None RESOLUTION NO. 189-95 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, GRANTING AN EASEMENT AND RIGHT-OF-WAY TO T.U. ELECTRIC COMPANY TO PROVIDE ELECTRICAL SERVICE TO THE EXHIBIT HALL PARKING AREA OF THE MPEC; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW Moved by Councilor Shine that Resolution No. 189-95 be passed. Motion seconded by Councilor Johnston and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 10c RESOLUTION NO. 190-95 RESOLUTION FINDING NO ADVERSE IMPACT ON HAROLD JONES PARK AS A RESULT OF THE PROPOSED BROAD/HOLLIDAY ELEVATED EXPRESSWAY Moved by Council Martin that Resolution No . 190-95 be passed. Motion seconded by Councilor Shine . 44 Item 10c cont' d City Manager informed that several years ago several meetings were held to discuss the possible project of elevating Holliday and Broad. The State has reactivated the engineering and the process necessary to bring that project back for further review and consideration. This resolution would reaffirm the City' s position allowing for the slight alteration of Harold Jones Park. Essentially, if the project is done, some of the support columns would be in the curb line on the north end of the Park on both Holliday and Broad. Mayor stated that it is very critical that the City go on record as understanding the changes which will be made and supporting them if we do. We need to move forward on it . Councilor Johnston stated for the record that there would be some realignment of the sidewalks and asked Mr. Bonnett who would pay for that . Mr. Bonnett replied that the State Department of Transportation would be responsible, and the only exposure to the City would be 10% of any right-of-way which was not a part of the freeway. Motion carried by the following vote. Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 10d RESOLUTION NO. 191-95 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS AMENDING THE SCOPE OF SERVICES FROM RENOVATION TO OPERATING/MAINTENANCE FOR THE 1995 EMERGENCY SHELTER GRANT SUB-RECIPIENT AGREEMENT WITH MATERNITY COTTAGE AND THE CITY' S CONTRACT WITH TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW Moved by Councilor Thompson that Resolution No. 191-95 be passed. Motion seconded by Councilor Johnston and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 10f RESOLUTION NO. 193-95 RESOLUTION APPROVING TRANSFER OF OLD UNCOLLECTIBLE ACCOUNTS RECEIVABLE TOTALING $68, 540 . 36 FROM AN ACTIVE TO DORMANT STATUS Moved by Councilor Martin that Resolution NO. 193-95 be passed. Motion seconded by Councilor Shine and carried by the following vote . 45 Item 10f cont' d Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 10q RESOLUTION NO. 194-95 RESOLUTION APPROVING CERTAIN GRANTS TO ARTS AGENCIES AS RECOMMENDED BY THE WICHITA FALLS ARTS COMMISSION AND AUTHORIZING THE CITY MANAGER AND THE ARTS COMMISSION TO ENTER INTO CONTRACTS WITH SUCH AGENCIES Moved by Councilor Thompson that Resolution No. 194-95 be passed. Motion seconded by Councilor Shine and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item lla Moved by Councilor Martin to award bid for a utility tractor with rear and side flail mowers to Construction Agricultural Supply, Co. , in the amount of $46, 084 . 00 . Motion seconded by Councilor Shine and carried by the following vote . Ayes : Mayor Lam, Councilors Johnston, Shine, Thompson, Daniel, Martin, and Hawkins Nays : None Item 12a Sue Ann O' Shea, 1080 Wenonah, complained about Section 8 tenants who have criminal records and are subsidized by our tax dollars and continue to disobey the law. She asked the Council for relief . Mr. Clark said he would look into this situation. Mayor said Council will instruct Staff to get as strict as we can if that program is housing people with a criminal element and continue to disrupt the neighborhood. We will look into our ability to control that . Giola Kluver, 2938 Elliott, expressed her appreciation for a few good men who voted to keep the Ordinance without changes . She commended the City workers for the good job they did on their new alley. She said 1907 Ardath needs to be checked by Code Enforcement . Zachary Taylor, 2204 Buchanan, mentioned a chain of burglaries in his block and asked about lighting in the middle of the block. City Manager said that security lighting is not put in by the City, but Staff will check to see if City is meeting standard distances, which is all that the City can do. The 1800 block of Buchanan will also be checked. 46 Item 12b Councilor Shine commended Mr. Clark and his department for occupancy on the first of the Urban Homestead houses . Mr. Clark said they now have eight houses to which they have title to and expect another two. They are also working to move other houses to another area with the aid of the school district . We will have ten to twelve houses, and this seems to be a win-win situation. Councilor Martin reminded citizens that today was election day to vote on Constitutional Amendments . He encouraged voters to get out and vote . Councilor Daniel said that the City of Wichita Falls has a bright future ahead and he suggested that Council create a planning committee of Council, staff and primarily citizens . This committee would adopt a time period of ten or twenty years for which to develop a coordinated plan for the City from which Council could receive guidance as to which ordinances to develop, etc . This would be used as a development tool . Mayor asked that each Council member consider this and provide suggestions on the structure at the next meeting for discussion. He directed Staff to place this item on the agenda as a discussion item. Councilor Johnston stated that at a transportation meeting the quality of the City bus drivers was discussed, and it was all positive . The riders were very complimentary of the bus drivers, and he asked that this be relayed to them. Councilor Hawkins reported that he learned at the TML Resolutions meeting that several recommendations which will be beneficial to cities will be presented at the next session. One is that some of the funds collected as gas tax would come back to the cities to be used on their roads or infrastructure . Another is that the funds generated from the lottery be shared with the cities to be used for infrastructure and community development . Councilor Thompson requested that the lights on Scott Street be checked for additional needs . City Manager said they would run some traffic counts and report to him. Item 12c Fire Chief reminded Council and citizens of the presentation on the Oklahoma bombing disaster to be held on Tuesday, November 14 at Memorial Auditorium at 7 :30 p.m. . There will also be a special presentation, by invitation only, at MSU Clark Student Center at 3 : 30 on November 14 . Parks Director announced that they are starting another landscape project with Texas Department Of Transportation which is presently a concrete median directly in front of Sheppard' s main gate . City Attorney gave a briefing on the concealed hand gun ordinance vis a vis public buildings . City attorneys had a discussion at TML as well as Attorney General' s comments on city regulations prohibiting individuals from coming into city owned buildings with a concealed hand gun. There seems to be a concern whether or not such an ordinance may violate a section of the Government Code prohibiting cities regulating the keeping of fire arms . I personally do not think that there is a conflict there but there is a recommendation going out that cities should address this in a different way by posting signs on their public buildings indicating that the carrying of concealed weapons in the premises would be unlawful and the individual would be subject to prosecution for trespassing. This is the cautious approach until we get some opinions on the concealed hand gun statute . I would suggest that this be brought back as an action item in an order directing City Manager to post the appropriate signage on our publicly owned buildings prohibiting folks from carrying concealed hand guns . 47 Item 12c cont'd Councilor Daniel asked how we can post those signs and it be unlawful if we have not passed an ordinance . City Attorney replied that under current State Law we have the authority to prosecute individuals who are trespassing if they carry a concealed hand gun on public property. Councilor Hawkins commented that it has to be posted. It puts Council in the same position as any other business by posting a sign that makes it illegal to carry a concealed hand gun into that business . Mayor directed Staff that this be discussed at the next ° meeting. Item 12d The City Council went into Executive Session at 11 : 00 a.m. as authorized by Section 551 . 074 of the Government Code, and reconvened at 1 : 30 p.m. The City Council adjourned at 1 : 30 p.m. PASSED AND APPROVED this ��St day of ) ck ,i`19g i Michael La Mayor ATTEST: LydAa Torres Cit,Y Clerk