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Minutes for Public Hearing and Regular Council Meeting

August 13, 2002

P.O. Box 246, Capitan, NM 88316 Phone: 505-354-2247 Fax: 505-354-2713
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Minutes
Regular Council Meeting
August 13, 2002
Public Hearing-6:30 p.m. for Valor Franchise
Regular Meeting-7:00 p.m.

The Public Hearing was called to order at 6:35 by Mayor Sederwall. Roll Call: John Whitaker, here, George Tippin, here, Bobbi Shearer, here, Leroy Montes, here. Also present were Kathryn Griffin, Village Clerk, Attorney, Don Dutton and Public Works Superintendent, Terry Cox.

There was a brief discussion about the proposed Valor Franchise, with a few questions being asked of the attorney by Trustee Tippin. After several questions from the public, the motion was made by Trustee Whitaker to close the public hearing and reconvene at 7:00 p.m. for the regular meeting. Motion seconded by Trustee Tippin. All in favor, motion
carried.

The regular council meeting was called to order at 7:02 p.m. by Mayor Sederwall. Roll Call: George Tippin, here, John Whitaker, here, Bobbi Shearer, here, Leroy Montes, here. Motion to approve agenda by Trustee Whitaker. Motion seconded by Trustee Tippin. All in favor. Motion carried.

Motion to approve minutes from July 9th by Trustee Whitaker, seconded by Trustee Tippin. All in favor. Motion carried. Motion to approve minutes from July 29th by Trustee Tippin.Motion seconded by Trustee Montes. All in favor. Motion carried.

Motion by Trustee Whitaker to approve the accounts payable, with the addition of the July LCSWA bill in the amount of $9,090.29. Motion seconded by Trustee Montes. All in favor, motion carried.

Motion to approve Ordinance 2002-03, the Valor Franchise, by Trustee Whitaker. Motion seconded by Trustee Tippin. Roll call: George Tippin, yes, Leroy Montes, yes, John Whitaker, yes, Bobbi Shearer, yes. All in favor, motion carried.

Motion to accept the Cox Encroachment Agreement by Trustee Whitaker. Motion seconded by Trustee Tippin. All in favor, motion carried.

The Village received two bids in response to their request for bids for gravel. Johnathan Lamay gave his recommendation, based on previous experience with both bidders. Motion by Trustee Whitaker to accept Pat Huey's bid for gravel 2002-2003 fiscal year. Motion seconded by Trustee Shearer. All in favor, motion carried.

Motion to approve Resolution 2002-12 by Trustee Whitaker, which is to finance the Dodge Durango Polite Vehicle. Motion seconded by Trustee Shearer. Roll Call: Leroy Montes, yes, Bobbi Shearer, yes, John Whitaker, yes, George Tippin, yes. All in favor, motion carried.

There was a discussion of adding PERA retirement. The extra money will come out of money budgeted for Village Administrator. Motion by Trustee Shearer to add PERA retirement as an option for employees. This will raise the amount matched by the Village to 10 % for non-law enforcement, and 15% for law enforcement personnel. Motion seconded by Trustee Tippin. Roll Call Vote: Leroy Montes, no, John Whitaker, no, Bobbi Shearer, yes, George Tippin, yes. Mayor Sederwall broke the tie with a vote of yes. Motion carried.

There was a discussion on the flashing lights for the school. Gary Tregembo gave a breakdown of cost as well as where the lights would be placed. Both the school and the Village will try to get funding from private sources for this project.

Mayor Sederwall brought Alex Trujillo's name to the Board as a Planning Board Member. Motion to approve Alex Trujillo to the Planning Board by Trustee Whitaker. Motion seconded by Trustee Montes, all in favor, motion carried. Mayor Sederwall then brought Peter Renich's name to the Board as a Planning Board Member. Motion to approve Peter Renich to the Planning Board by Trustee Whitaker. Motion seconded by Trustee Montes. All in favor, motion carried.

After a discussion about LCSWA rates and ordinances, the motion was made by Trustee Tippin to advertise for a public hearing in which both an ordinance change for the Village of Capitan as well as a proposed Joint Powers Agreement by LCSWA will be discussed. Motion was seconded by Trustee Montes. All in favor, motion carried.

Motion to approve Resolution 2002-13, COG agreement by Trustee Whitaker. Motion seconded by Trustee Montes. All in favor, motion carried.

Motion to approve Resolution 2002-14, ICIP priorities by Trustee Whitaker. Motion seconded by Trustee Tippin. All in favor, motion carried. The list of priorities for 2002-2003 are as follows: 1. Drainage in the subdivision. 2. Chip sealing roads in subdivision. 3. Youth Center. 4. Health Clinic. 5. Street Lights. 6. Sidewalks in core area.

There was discussion about the Veteran's park and who was responsible for upkeep. Motion was made by Trustee Whitaker to contact Clifford Holcomb to ask if he is interested in a contract for this. Motion seconded by Trustee Tippin. All in favor, motion carried.

Motion to go to four-ten hour days, Monday-Thursday, hours from 7:00 a.m. to 5:30 p.m., for a trial period until the last day of December by Trustee Tippin. Motion seconded by Trustee Shearer. Roll Call Vote: John Whitaker, yes, Bobbi Shearer, yes, George Tippin, yes, Leroy Montes, no. Motion carried.

Bonita pipeline water issue: (transcribed verbatim as requested.)

Mayor Sederwall-"Bonita Pipeline water service to customers. I will open the floor-let's dance."

Bobbi Shearer-"Well., I have prepared this proposed resolution. I don't know if we can adopt it tonight. But basically, it comes down to 'we will/will not honor the terms of the grant of right of way easements...."

George Tippin-"Don, have you had a moment to read this? Cuz I'm not, I guess I'm confused with the terms of the ... My understanding was that the right of way easement was purchased for a dollar. Now, I didn't bring all that stuff with me..."

Don Dutton-" Well, the consideration for it was basically the fact of the tap, and the supplying of the water, the raw water. That was the consideration for the easements as stated in the easements.

George Tippin-"And it, it could have been just a monetary value, rather than a dollar and this, it could have been just a few dollars..."

Don Dutton-" Well, symbolically you say a dollar and other valuable consideration. The consideration in this case was the granting of the tap, installed at village expense, and the provision of the providing of raw water, gravity flow.

George Tippin-"Has there been any action taken on our..."

Don Dutton-"No one has contacted me after I contacted Gary Mitchell who contacted the folks and told them to get a spokesperson and to contact me."

Bobbi Shearer-"Don, do you think that these easement agreements constitute an agreement from the Village to the property owners?"

Don Dutton-"I think they are exactly what they are-easement agreements that provided for gravity flow raw water, uh, to be serviced to these people. I mean, I wasn't here in fiftyseven, when those agreements were made, so you just have to look at the language in there and see what it is, and uh, the times change. You know, I really thought that someone would contact me, speaking on behalf of the five residents. It hasn't happened. I really think the ball is in their court. You guys have stuck your neck out, you've bent over backwards, uh, and I just think it's time for the persons who are on that easement to come forward and say what they will do or not do. There are all sorts of.... I've heard that, I've heard that they are going to sue you, and I don't think that you can be held hostage to the threat of a lawsuit. Uh, the fact of the matter is, that you are going to-New Mexico law requires that parties be in good faith, and hiding behind a log is not being in good faith. If they want to have an agreement, they need to come forward. I've heard every rumor there is. I've heard the rumor that Gary is representing them. Gary told me he was not. I heard that they were going to wait until the water was cut off then they were going to bring a lawsuit because maybe that was going to get us in a better position. I don't think so. I think they have an affirmative duty to come forward. I'm not going to ... because I don't think it's a legal issue. I'm not going to tell you to act, or to not act on this. I think that's what you guys are being paid for. But just, just tell me where it is. Um, I honestly believe that if there is good faith on both sides, as apparently there was in 1957, uh, that these folks would have come forward and said that this is what we're willing to do, or not willing to do."

John Whitaker-"I couldn't agree more. I think that's exactly what ... We shouldn't be making their decision for them. I think the plaintiffs should tell us what they want, and that has not happened yet."

Don Dufton-"And this is in keeping with what Mayor Sederwall said, uh, I had a real heart to-heart with him, and my concern was that we go out and we do these things, and it's um, it's not acceptable to them, and we're involved in a lawsuit anyway. So my point was, let them come say to us, 'we're willing to do this, if you're willing to do that.' Negotiation takes two people. I mean you can sit in front of a mirror and talk to yourself all day, you're not going to get anything resolved, and that's what I think you're doing"

Bobbi Shearer-"You think they have an obligation to re-negotiate these easements?"

Don Dufton-"yeah, uh, yeah, yes, and there's just, there's just a lot of stuff that comes up. Now Mr. Brewer's, that's a different deal. I think we need to get something settled with him as quickly as we can."

Village Clerk-" Probably within the next month is what I'm hearing with CDBG. If we don't get Mr. Brewer's easement on the storm drainage project the money will go back to the state. That's $360,000.00"

Bobbi Shearer-"And we'll never get that back, never be able to recoup that money?"

Village Clerk-"Last month, a community down south had to send money back to CDBG for lack of an easement. I asked our engineer on the project-we saw him this morning-and he said without Brewer's easement there is no project. It's a consideration."

Don Dufton-"What I can't understand is why wasn't the pipeline put where the easement is?"

Village Clerk-"No, we're talking about two different projects. This is the Storm Drainage CDBG Project, not the RUS Water project."

Don Dufton-"Oh, oh, sorry."

Village Clerk-"Without Don Brewer's easement, the $360,000 CDBG grant will go back."

Don Dufton-"Oh, you know, so you may want to do it, I mean, my crystal ball isn't any clearer than anybody else's. You may want to do, or to act on the Resolution. On this particular one, I don't understand what 'honoring the remaining terms of the contract' means, so I would want it spelled out that you are going to provide treated water to them, if that's what you are going to do, and you are going to put the pump in. And, you know, if it means costing $60,000 you have a balancing test here. I don't know if the two are in fact tied together. Uh, you know, I think someone needs to visit with Mr. Brewer, and see, you know, see if he's really saying, 'go fly a kite."

Mayor Sederwall-"He called me ... and that's pretty much what he said, he said, 'I feel like I've been a good neighbor,' and he felt like we were not."

Don Dutton-" You know, and I don't mean to be wishy-washy about this, but you know, I didn't understand about this $360,000 loss, um, you are going to have to balance something. I feel like, my suggestion..."

John Whitaker-"Is it an unreasonable request to ask the people to tell us what they wantIs that unreasonable on our part? I don't think so." Molly Mason-"They want water." John Whitaker-"Then just tell us how they want that water, what they are willing to do, we don't know...."

Lots of voice, indistinguishable from one another.

Don Dufton-"Will they pay the electric charge, will they pay for the pump, can it be done over a period of time, I mean all these things have been thrown out, and I've heard nothing, so I don't know."

Molly Mason-"Before they got raw water, and now it's going to be treated water, if they get it, so that's a different thing, isn't it?"

Don Dufton-"So, what should they do, should they pay for the electricity for the pump, the pump, ?"

Molly Mason-"If they are paying one and a half times, that ought to be enough."

Angie Provine-"That's what I think."

Lots of arguing voices, indistinguishable...

Bobbi Shearer to Stan and Jan Cox at the back of the room-"Do you guys have an interest in seeing us keep that storm drainage project?"

Stan Cox-"Absolutely-the water comes into our home when it rains hard."

Lonnie-"Why don't we separate out Brewer from the others? Because he had a different agreement to begin with."

John Whitaker-"And a different contract."

Lonnie-"So let's separate that out and deal with that, Don, and deal with the other..."

Voice from the audience-"All right, John (Whitaker), you handle that."

Fred Cheney-"The more and more this is played with, its seems like the worse it is getting. Not only is it getting worse, George, you of all people that is always worried about where we are standing, are we in the black, are we in the red, the more and more we play with this, the more and more we throw out, the more money we lose-It's a simple matter-do we give them water, or do we not give them water. And we're throwing, we're putting ourselves at such liability, and the consulting, and attorneys, and if we don't do it, we've got to dig the water line up, it's asbestos."

George Tippin-"No we don't, I don't believe. Because, we also have that same type of line in the Village."

Bobbi Shearer-"But we're abandoning this line."

George Tippin-"We did abandon some on Mt. Capitan."

Village Clerk-"If we abandon the line, the owners can ask to have that line removed."

George Tippin-"But we did abandon line on Mt. Capitan, that's what I understood from the water supervisor, that there's a section of pipe that's not going to be used..."

Terry Cox-"no, not on Mt. Capitan."

Angie Provine-"Well, I was misquoted in the Lincoln County News, and I talked to Doris about it and she said she was going to make a correction. Leroy was the only one in this room, and myself, that has any history of what this town had for a water system. If it had not been for those people giving us a water easement, we wouldn't of had water in our town ... and my husband and I and children used to read those meters. Those people, and I called four of the people, three of the people and told them I was misquoted. Give those people water. Buy the pump. It's going to cost the Village a lot less. Kathryn has worked on this Storm Drainage Project-she did hours of work on that, and if we don't get that, we're going to lose that $360,000. Isn't that stupid?"

Fred Chene -"Yes."

Molly Mason-"Yes."

Many other "Yes" comments heard from the audience.

Angie Provine-"And our water situation in Capitan was pretty bad in the 50's-I know."

Mayor Sederwall-" Last time we were here, we asked for a draw down report on the status of our wells-I think it's in the packet, but we haven drawn the water down at all since October of 1998."

John Whitaker-"The water's not the issue, the issue is we need them to tell us on a piece of paper, a written statement of what do they want from us."

Angie Provine-"They were at all the meetings."

John Whitaker-"They've been at the meetings, but they haven't-there's not-any of those people that have asked us..."

Angie Provine-"Well I'll just call all four of them and tell them."

Cliff Smith-"Can't we just tell them what we would provide and see if they will sign it?"

John Whitaker-"I don't think that's the right way to go."

George Tippin-"That's what we did. I mean, we..."

Bobbi Shearer-"They have a contract. Why should they re-negotiate. In my mind they negotiated for their water in 1957, and as Angie says, only two people in this room were even living here then. So they had a contract for their water before I ever even bought my property."

John Whitaker-"They bargained for raw water ... and they are not bargaining for raw water now

Bobbi Shearer-"Only because we can't continue to provide it."

John Whitaker-"No, that's true." Bobbi Shearer-"It's our fault, not their fault."

John Whitaker-"No it isn't, it's Alamogordo's fault."

Bobbi Shearer-"No-Alamogordo is not a party to this agreement."

John Whitaker-"We've got-I think they should provide us with what they want."

Bobbi Shearer-"These people-we're only talking about the people who entered into agreements in the 50's."

Mayor Sederwall-"Here's something you need to keep in mind-about the middle of August, if we don't order that pump we will not, we don't have time before they shut the water off."

Everybody in the room talking at one time with raised voices....

Don Duffon-"Mr. Mayor, there are a lot of comments from this side of the room, that you should buy the pump, install it, charge them the one and a half percent (time and a half) and the Village pay the monthly electrical charge. So, I don't know, do you guys want to make a motion, or do something, but like you said, I think it's time for them to come forward, or do something. Apparently they are not going to come forward, because they don't think that you are going to act, whether it is a threat of lawsuit or not, but I think it's just, the immovable object and the irresistible force is what I'm getting, and so, I think it is up to you guys to vote it up or down, but no more walking around the bush. Vote it up or down."

Lonnie-"I agree. As Bobbi said just a minute ago, they think they have a contract, and near as I can tell, they do. Uh, we evidently can't find our copy of this agreement, can we Kathryn?"

Village Clerk-"Yes, we have all the easement agreements, they are right here."

Don Dufton-"Yes, they are all recorded in the County Clerk's office as well."

Lonnie-"So if they have a contract, we are bound to fulfill it. Give them the damn pump, let them pay it back because we charge them higher water rates, and if they are using it to water their cattle, it will be above the 4000 gallons per month minimum, and we'll get our money back faster."

George Tippin to Don Dufton-"Do they have a contract?"

Don Dufton-"There is an easement that their ancestors, and some people who are not even ancestors, made with the Village in the 50's to provide a pipeline easement, and in return to have taps provided by the Village so they could receive raw water from Bonita, to paraphrase the easements."

John Whitaker-"That's the contract-raw water."

Bobbi Shearer-"Do you want me to read it out loud?"

John Whitaker-"We're going to be sending them potable water."

(She then reads from one of the easement agreements.)

Bobbie Shearer-"This is the grant of right-of-way and use agreement."

Don Dufton-"That's all it is, that's all it is. I'll tell you what-How many people in this room favor providing a pump and the electricity for the water. (show of hands, approx. 80%) Then how many in this room favor not doing that?" (8 hands counted, including three trustees) You know, if this is a representation of your population, then that's what you've got, and I think you see the answer."

Wendell Powers-"You provide potable water in place of raw water, let me ask this-I buy a piece of property outside (the Village limits) why can't I petition and or expect to receive water to my home."

Village Clerk-"Because you don't have an easement agreement in place since 1957."

Don Dufton-"That's John Whitaker's concern because there is a moratorium, that's John Whitaker's concern, and Mr. Montes, I don't want to speak for them, but their concern is that there is a moratorium, and they don't want to open it up. An argument could be made, and a valid argument could be made that these people are grandfathered in because they were receiving water prior to the moratorium, and therefore they should receive it. They received a different quality of water, but it's still H20. None of these are easy answers."

Voice from the audience-"Why aren't these people getting in touch with ya'll?"

Bobbi Shearer-"They've been to every meeting."

Don Dufton-"But they've never spoken."

Village Clerk-"The moratorium was violated just this year with the Barton's when we gave them a water tap in return for land to put the new tank on."

Bobbi Shearer-"It was also violated with Brewer."

Mayor Sederwall-"January, 2001, 1 have a letter from Bohannan Huston concerning Jimmy Barton, uh, it says the Village will provide water service to your property, so the moratorium is kind of just like, we wink at it, or pull it up and wave it like a gun when we want it, and when we don't..."

John Whitaker-"Well, that's kind of how you do things ... you don't look at this, you're saying it doesn't apply."

Mayor Sederwall-"No, we're saying there's a moratorium on water outside the Village, we're giving these folks water because we want their..."

John Whitaker-"But he gave us a place for our tank. We have a contract that says if Alamogordo cuts off the water, they no longer get any water, and that's exactly what the contract says."

Mayor Sederwall-" What I'm saying is, we got something for the water we gave this guy, not gave it to them, yet in '57, we're there with our hands out, begging..."

John Whitaker-"It's in-kind service, it was an in-kind deal..."

Don Dufton-"That was a consideration that the former mayor and trustees voted with Mr. Barton in order to get an easement agreement with Mr. Barton."

Bobbi Shearer-"The exchange of an easement for water-"

Don Dutton-" Exactly." Bobbi Shearer-"Okay, this is an exchange of an easement for water?"

Don Duffon-"Well, yes, but..."

Bobbi Shearer-"Why can we breach this contract, but not that one?"

Don Dufton-"We're not breaching this contract-Alamogordo is shutting the water the off, not Capitan. Alamogordo is shutting the water off."

Anna Gail Grassie-"Can I ask a question?"

Mayor Sederwall-"Yes ma'am."

Anna Gail-"I'm sifting here wondering what's going on, but Mr. Barton, did you not pay him for that easement?"

Village Clerk-"Yes, we paid him $10,000 and a water tap."

Anna Gail-"Then what's the problem? I know Mr. Montes, that you don't like for me to speak, but I'm going to anyway. Those people have been here at every meeting except for this one. If you look at the minutes, they've asked for the water, they've asked for the pump, they've said..."

John Whitaker-"I want to say one thing-All I know is that the mayor is fighting that baffle for them and they have not once, not one individual, not one person...."

Anna Gail-"Excuse me John, you interrupted me..."

Mayor Sederwall-"Let her finish, John."

Anna Gail-"If you go back on the minutes you will find where some of these people came to a meeting and said they would be willing to pay for that pump, did they not?"

John Whitaker-"There's nothing in writing. All I want is for them to request of us in writing, on a piece of paper, what they want, and then we can go from there. We're fighting both sides of this battle over here, and this makes no sense."

Anna Gail-"Mr. Brewer came and talked to you, I think David's talked to you, Cora Dutton was here to talk to you."

John Whitaker-"I don't have any problem with any of them getting water. My problem is I don't want to give them, start opening up a box we can't close ......

Anna Gail-"But you said you're going to grandfather them in..."

John Whitaker-"I didn't say that."

Anna Gail-"It was suggested."

John Whitaker-"I didn't say that."

Unidentified Voice-"How come you want them to come kiss you to get water?"

John Whitaker-"I don't want them to come kiss me to get water."

Don Dufton-"David, will you pay for the electricity to pump the water?"

David Cox-"No sir."

Don Dutton-"Will you pay for the pump?"

David Cox-"No sir."

Don Dufton-"okay."

Bobbi Shearer-"Do you expect us to honor the 1957 agreement?"

David Cox-"Yes."

Don Duffon-"Okay, it seems we have raw water in that pipeline and we'll pump it to you..."

Al Barton-"Yeah, it says raw water."

Bobbi Shearer-"We don't have the ability to pump raw water anymore."

Lonnie-"Mr. Whitaker-as I understand it you are willing to sacrifice $360,000 ... to spite."

John Whitaker-"It says raw water-we're not spiting anybody. We're trying to save the city's interest in losing their water. The reason why we have good water is because we have tried to protect it over the years. We've succeeded. You can see that by the draw down report. It's not a problem of the water itself. We didn't draw the thing down in five years, not one foot. I don't have a problem with giving them the water. I just don't want to give everybody water. You can't pick and choose who you give water to."

Mayor Sederwall-"We're doing it-we gave Jimmy Barton water."

Lots of people arguing....

Don Dufton-"The first contract that I drew up for you guys, it covered yourselves, it provided for water to go to these people at time and a half rates, it gave them no rights whatsoever, it gave you the absolute authority to cut them off if you ever got in danger, and that was the first, so I would say that maybe we need to go back and look at that contract that I did from the beginning, I think it provides the safeguard that John wants, whether or not these people will sign it, I don't know. All it did was provide that they would pay all costs associated with water. That can be taken out if that's your desire. it could be taken out, and you could pay the cost and they could pay the I and a half percent (time and a half), but I think it's time for some sort of impasse to be resolved, or not. I think you need to vote up or down and be done with the issue."

From the audience to Bobbi Shearer-"Make a motion."

Bobbi Shearer-"Oh no, it will die for lack of a second."

Joel Crossno-"On Main Road, that black top is dangerous, and $6,000 would go a long way to fixing it. I would like to see it fixed ....."

Lots of voices arguing.

Lonnie-"When Mayor Renfro and I investigated that road we requested that the Highway Department take care of it, they paved that road originally, re-paved it..."

Don Dufton-"We're off the subject"

Leroy Montes to Mayor and Bobbi-"Well, if you don't want to make a motion..."

Mayor Sederwall-"Well, I can't make a motion..."

Bobbi Shearer-"I've made all the motions I know how to make."

Leroy Montes-"The only motion I'll make is to adjourn, if anybody wants to second that."

Fred Cheney-"Ya'll aren't working for the benefit of the city, you're doing it for your own pride."

Several people asking "Make a motion" from the audience

Bobbi Shearer-"I move that we order the pump."

Mayor Sederwall-"I have a motion that we order the pump, do I have a second?"

No second-Motion dies for lack of a second

Bobbi Shearer-"I move we adjourn."

Leroy Montes-"I second."

Meeting adjourned.



Steven Sederwall, Mayor


ATTEST:


Kathryn Griffin
Village Clerk-Treasurer
Village of Capitan

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