City Council Meetings

Page 1 CITY COUNCIL PROCEEDINGS February 18, 2020 MINUTES OF THE MEETING OF THE CITY COUNCIL Wichita, Kansas, February 18, 2020 Tuesday, 09:00 AM The City Council met in regular session with Brandon Whipple, Cindy Claycomb, Bryan Frye, Becky Tuttle, Jeff Blubaugh, James Clendenin, and Brandon Johnson. Staff Members Present: Bob Layton, City Manager, Jennifer Magana, City Attorney, and Karen Sublett, City Clerk. Mayor Whipple called the meeting to order at 9:02 a.m. Approve the minutes of regular meeting of February 11, 2020 MOTION: Mayor Whipple moved to approve the minutes of regular meeting of February 11, 2020. Motion carried 7 to 0. Proclamation - National Engineers Week Mayor Whipple read aloud the proclamation. Service Awards: Joe Pajor Kerry R. Beals Mayor Whipple and City Manager Bob Layton presented Joe Pajor with a service award and a coin from the City of Wichita for his 40 plus years of service with the City of Wichita. Mayor Whipple and City Manager Bob Layton presented Kerry R. Beals with a service award and a coin from the City of Wichita for his 37 years of service with the City of Wichita. I) PUBLIC AGENDA 1.) Alan Trenary - Why won’t young people stay in Wichita. Alan Trenary stated he feels that a lot of the reasons young people leave Wichita is because we are not promoting enough pride in the community and the meddling in people's personal business. Stated messing with people's personal lives is a huge issue for why young people may not want to stay here. 2.) Russell Pataky - Century II. Russell Pataky stated he hears numbers approaching a billion dollars regarding the proposal to retire Century II and thinks that is crazy. Stated we have a lot of potholes in the streets, kids walking to school along busy streets with no sidewalks. Stated he has nothing against putting money into downtown development but we need to be putting money into the neighborhoods. Stated out of this billion dollars,  Page 2 CITY COUNCIL PROCEEDINGS February 18, 2020 he can tell us how to make Century II a destination for about 5 to 10% of that and we can put the rest of it into the neighborhoods. Stated Century II is a great building, it still looks contemporary but the sound system stinks. Stated we need to do an acoustical room conditioning and a top of the line sound system in each and every room. II) CONSENT AGENDA ITEMS 1 THROUGH 10 MOTION: Mayor Whipple moved to approve consent agenda items 1 through 10 in accordance with the recommended actions shown thereon. Motion carried 7 to 0. COUNCIL BUSINESS III) BOARD OF BIDS AND CONTRACTS - NO MEETING DUE TO HOLIDAY IV) UNFINISHED COUNCIL BUSINESS - NONE V) NEW COUNCIL BUSINESS 1.) QUARTERLY FINANCIAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2019. Attachment: Agenda Report No. V-1.doc Mark Manning Finance Department, reviewed the item. Mayor Whipple stated our general fund is $7.1 million under budget as of today. Mark Manning Finance Department, stated that was as of 2019. Stated last year we underperformed on the expenditure side. Bob Layton City Manager stated the net position of the City was $1.3 million. Mark Manning Finance Department stated yes. Mayor Whipple stated $7.1 million was under the budget as of this quarterly report, in addition we had the $1.3 million surplus, which brings us to $8.4 million in money we didn't count on. Mark Manning Finance Department stated yes, we underspent by $7.1 but we under-collected on the revenue side as well so that is what generated the $1.3 million surplus. Stated we actually did $1.3 better than we expected to. Council Member Blubaugh stated we are $880 million dollars from our debt limit. Mark Manning Finance Department stated yes. Council Member Blubaugh asked if we have on our legislative platform to where we are discussing the debt ceiling or is that something different.  Page 3 CITY COUNCIL PROCEEDINGS February 18, 2020 Mark Manning Finance Department stated he doesn't believe so, we have never been concerned about state debt limit, and we have never been close to state debt limit. Bob Layton City Manager stated there is something regarding the operating budget but not the debt. Council Member Blubaugh stated on public safety, we had a budget of $139.2 and it looks like we came in at $138.6, so we had a $600,000 surplus and is that because we have plenty of police officers and firefighters. Mark Manning Finance Department stated we under spent and most of that was in the fire service. Stated the Police Department has spent almost exactly the amount that they were budgeted. Council Member Blubaugh asked where that $600,000 goes. Mark Manning Finance Department stated that falls under our general fund reserves. Bob Layton City Manager stated which will be reprogrammed by the Council when we do the upcoming budget and will talk about that during the retreat. Council Member Clendenin stated you had mentioned there is a possibility of a structural deficit in the future and wants to clarify that we recognize that and are taking safe guards against it, we are not at that point. Mark Manning Finance Department stated that is correct. Council Member Clendenin stated we know that the current layoffs at Spirit are going to affect us one way or the other, probably in sales tax and asked staff if he has an estimate on how that could affect this upcoming budget. Mark Manning Finance Department stated that is definitely a challenge and his estimate would be if sales tax goes flat in 2020, that would cost the City of Wichita roughly $900,000 in revenue. Stated who knows what the impact will be or if there will be an impact. Council Member Johnson stated he has a question regarding the $1.3 million surplus. Stated is that the same funds that we use to make those investments in proficiency last year, or is this a new surplus going into this year. Bob Layton City Manager stated this is a new surplus, what we showed you last year were over the last two years we had lean initiatives that have saved us about a million dollars annually. Stated you could say if you wanted to that million dollars is showing up every year as savings for us. Mayor Whipple stated regarding golf, it is his understanding that switching from a pass system to a monthly membership model and theory behind that is that it is coming directly out of a bank account so it is easier to collect. Stated the price for a yearly membership has gone down compared to the past in hopes that we will grow our base of golfers and you said that so far since initiating that, the golf program has done a good job holding down its current members and asked if they have seen growth as well or is that something they are still working on.  Page 4 CITY COUNCIL PROCEEDINGS February 18, 2020 Mark Manning Finance Department stated he just looked at some cursory data and the retention rate was about 100%; they have roughly 1,000 pass holders most of whom are seniors and thinks they had about 277 that expired since August and think they sold 290 passes, which is slightly more than what had expired. Stated that is a small sample size but generally the trend looks favorable and looks like the model may be working as they expected it to. Mayor Whipple inquired whether anyone from the audience wished to be heard, no one came forward. MOTION: Mayor Whipple moved to receive and file the Quarterly Financial Report for the year ended December 31, 2019. Motion carried 7 to 0. 2.) L. W. CLAPP PARK MASTER PLAN PROJECT AND DESIGN SERVICES. (DISTRICT III) Attachment: Agenda Report No. V-2.docx Attachment: Resolution 20-046 Attachment: Contract.pdf Troy Houtman Director of Park & Recreation, reviewed the item. Council Member Frye stated you are asking us to approve $312,000 right now but the contract is for $206,000 with the remaining $106 to come back to us for approval later? Troy Houtman Director of Park & Recreation stated there are some additional fees that he mentioned in regards to serving and some mapping and thinks there are some incidental costs that we will have to eventually do. Stated if there are any other major costs or expenses, we will be coming back. Council Member Frye stated correct because anything over $50,000 would have to come back to the Council for approval. Troy Houtman Director of Park & Recreation stated yes. Council Member Clendenin asked if we have gotten any indication from our consultant on how they intend to go about the public engagement portion of the master planning process. Troy Houtman Director of Park & Recreation stated we have done a lot of work already and a lot of public engagement, and thinks they will want to get some more feedback, which will be a series of meetings. Stated we haven't discussed how many that would be but thinks it will be whatever is necessary to get the job done and thinks they want to also work with staff, Council and the Park Board to highlight the important things that are coming up from the public. Council Member Clendenin stated there will be at least one or two possible meetings where people will be able to give their last feedback on what they would like to see. Troy Houtman Director of Park & Recreation stated yes and would expect that at least two if not more.  Page 5 CITY COUNCIL PROCEEDINGS February 18, 2020 Council Member Tuttle stated she was excited when reading the analysis that there was seven proposals. Stated sometimes when we put an RFP out, we only get a couple so it sounds like it was a robust promotion process of this RFP and thanked staff for putting in the extra time and effort for that. Troy Houtman Director of Park & Recreation stated this is a great project and across the country a lot of folks are looking at Wichita and a lot of things that we are doing. Stated we are getting a lot of attention from folks with regards to what is our vision and the things that we are trying to get done here in Wichita. Mayor Whipple stated he wants to follow up on Council Member Clendenin's concerns. Stated he is from south Wichita and when he attended the neighborhood association meetings last summer, people felt that they didn't have an opportunity to voice their opinions and wants to echo his colleagues comments about at least two public hearings and asked if we know if those will be held after 6:00 p.m. and in that area and asked staff to explain the outreach efforts. Troy Houtman Director of Park & Recreation stated just as we did working with Council Member Clendenin, we did meetings after hours and held them near or around Clapp Golf Course and worked with all of the neighborhoods. Stated we held meetings at each of the neighborhood associations and attended somewhere in the neighborhood of 15 to 16 meetings and did online surveys and public engagement and got tons of feedback. Stated with that same philosophy, we are going to reach those folks after hours and in concentrated areas where there is real interest in this site. Mayor Whipple asked what the current status of Clapp is at this point. Troy Houtman Director of Park & Recreation stated we have removed all of the irrigation and added some other things in regard to changing some of the grass on the greens and tees, we have removed a lot of sand from all of the sand traps, did some work on the trees and this summer will be doing more mowing and cleaning out more spaces to have more open spaces. Stated we are waiting for the master plan to help us design what we are going to be doing for the park. Stated it doesn't look like a golf course anymore, we have folks still using the park, the trails are still out there in regards to the golf cart trails and people are biking out there. Stated there is a lot of activity with disk golf and we are getting a lot of positive feedback on it. Stated this summer we are going to be doing disk golf tournaments and have a couple of movies out there and will probably do some flag football. Mayor Whipple stated for the people who are concern with golf and Clapp in particular, at this point it is not practical to just reopen golf at Clapp, that part of it has been dismantled. Troy Houtman Director of Park & Recreation stated one of the reasons we closed it was because of the lack of infrastructure care and to go back and reopen it as a golf course, we would have to put back in some significant dollars in from the golf fund and as you saw earlier, the golf fund is not in good shape right now. Mayor Whipple inquired whether anyone from the audience wished to be heard, no one came forward. Council Member Clendenin stated he received a comment from one of the neighbors across from Clapp Park who said that the park looks better maintained now than it has ever has even as a golf course and they are appreciative of all of the care that staff is giving the green space.  Page 6 CITY COUNCIL PROCEEDINGS February 18, 2020 MOTION: Council Member Clendenin moved to adopt the resolution, approve the budget, approve the vendor selection, approve the contract and authorize the necessary signatures. Motion carried 7 to 0. 3.) ADOPTION OF FRANCHISE AGREEMENT ORDINANCE FOR BLACK HILLS/KANSAS GAS UTILITY COMPANY, LLC. Attachment: Agenda Report No. V-3.docx Attachment: Ordinance 51-189 Jennifer Magana City Attorney, reviewed the item. Mayor Whipple inquired whether anyone from the audience wished to be heard, no one came forward. Council Member Johnson stated the agenda report states the City has the right to review and approve facilities placed in the right of way, so that means they would show us what this looks like before putting it in or will we have an opportunity to see it? Jennifer Magana City Attorney stated they work with Public Works staff and there is a permitting process in place so that is correct they do provide that information in the application process. MOTION: Mayor Whipple moved to approve first reading of the franchise ordinance for Black Hills and authorize the necessary signatures. Motion carried 7 to 0. COUNCIL BUSINESS SUBMITTED BY CITY AUTHORITIES PLANNING AGENDA VI) NON-CONSENT PLANNING AGENDA - NONE HOUSING AGENDA VII) NON-CONSENT HOUSING AGENDA - NONE AIRPORT AGENDA VIII) NON-CONSENT AIRPORT AGENDA 1.) CLEMENS AVIATION, LLC, USE AND LEASE AGREEMENT, COLONEL JAMES JABARA AIRPORT. Attachment: Agenda Report No. VIII-1.doc Attachment: Clemens Aviation Use and Lease  Page 7 CITY COUNCIL PROCEEDINGS February 18, 2020 (Council Member Johnson momentarily left the bench) Victor White Director of Airports, reviewed the item. Mayor Whipple inquired whether anyone from the audience wished to be heard. 1) Chris McElgunn stated he is here on behalf of his client Duane Clemens and Clemens Aviation, LLC. Stated what is before you is a request for approval of the agreement between the Wichita Airport Authority or the City and his client for the lease and construction of a hangar not to conduct fixed base operations (FBO) but simply to operate a managed aircraft operation which is a charter operation where the owners that manage the aircraft from this facility would be chartered to the public. Stated the operation will purchase fuel from another operator at the airport. Stated the anticipation is that there will be tens of millions of dollars of aircraft that will be hangered and managed from the facility and there is no reason to expect that this will be anything other than successful based upon his client's proven track record. Stated this first started out as a proposal for Clemens Aviation to construct and conduct a FBO and we have a constituency that had some issues with that and during this process he has changed the business focus of his operation in the hopes of bringing everyone together for approval. Stated the City's legal staff has reviewed this inside and out and thinks it is time for us to bring this before you and to ask for final approval of this part, the lease and building on this parcel 7. Stated there is no restrictive covenant that prevents this and FAA regulations generally encourage competition and positive development and prohibit any type of agreement or arrangement that places a stranglehold on competition and development. Stated this is not going to be a FBO this is a part 135 charter operation and operate privately owned leased and fractionally shared business jets and other aircraft. Stated you may hear from other constituents on this in particular the folks that operate out there MCA and we have been in negotiations to try to come to an arrangement to other pieces of the puzzle but this piece of the puzzle as to parcel 7 is independent of that. Stated his client is requesting to go forward, that development needs to start and the longer we wait the less advantageous it will be to his client. Stated they believe that this step is in the best interest of the community and the development of the airport operations and ask that you approve the recommendation and allow us to go forward and get started. 2) Charles Wittmack stated he is here on behalf of Midwest Corporate Aviation and they think this is a good deal for the City, it just needs to be done in the right way. Stated Mr. Clemens is our colleague and friend and would like to recognize that his father passed away on Friday and give him our formal condolences. Stated there is a little issue here, we think this is a good deal for the City but it is not being done in the right way and the reason for that is that there are two parcels that are being asked to turn over to Clemens Aviation, have previously been promised to Midwest Corporate Aviation (MCA). Stated because of that promise we had to file a lawsuit this morning about this matter in the local district court and understands it has now been served on City officials. Stated what makes this awkward is there really isn't a dispute between any of us, we think the interest of the City is the same as the interest of MCA, which is also the same as the interest of Clemens Aviation. Stated the problem is how this process has unfolded. Stated this has been underway for about three years, MCA has been working at Jabara Airport for about 36 years now and about two and a half years ago they reached out to the City to see if they could continue their development of parcel 7. Stated the Director of Airports came back and said we have received two simultaneous proposals and when that happens we have to issue a RFP. Stated that happened, MCA responded and was then told by the Director of Airports they made the only response and were told they were awarded the RFP and were then presented with lease agreements for up to 30 years, which encouraged them and required them to invest about $8 million dollars in this property. Stated they started out doing that and did many things as part of this understanding that they had and had been promised this opportunity. Stated a few months into that arrangement, there was a surprising  Page 8 CITY COUNCIL PROCEEDINGS February 18, 2020 development, which was Clemens Aviation announced that they were building a second FBO at Jabara Airport and the reason that was a problem was it wasn't consistent with the master plan and wasn't consistent with the RFP process and it was destroying the value of the promise that MCA was given by the Director of Airports and their greatest concern was that it was apparent that this conversation had been taking place for some time. Stated MCA began to raise their concerns about this and reached out to many of you at that time with a draft of the petition outlining what we thought happened but because we feel that all the interest here are aligned, at the same time we began that conversation with all of you we also began a conversation with Clemens Aviation on how we can all work together to achieve this shared interest and that conversation has been very fruitful and we are very close to reaching an agreement. Stated today the decision for you is not a yes or no decision, today the decision is to simply table this because the agenda report that your received is incomplete and fails to recognize the fact that there is active litigation pending on this issue right now. Stated what that litigation is doing is trying to help protect the City's interest that the planning documents will be followed, that the RFP process will remain consistent, that the promises made by the Director of Airports will be honored and that negotiations with the City will continue to happen at arm's length. Stated if you table this motion for the moment, it will give you the opportunity to check in with your legal counsel on the impact of the litigation. Council Member Johnson stated you mentioned conversations with the RFP process and the fact that you all bid, did any of that guarantee you to be the only operator there and there would be no competition. Charles Wittmack stated it didn't and what happened was MCA has been working at Jabara for a long time developing the airport gradually. Stated they reached out to the Director of Airports and asked to begin negotiation agreements to continue that development, the Director of Airports responded correctly saying there are two parties interested in that parcel. Stated based on advice of legal counsel, he then said the appropriate next step is to issue an RFP, which at that point it became a public process. Stated after that the Director of Airports came back and said you are the only submission in response to that RFP and there is dispute between the parties on whether or not he said you are awarded the rights of the RFP but that was MCA's understanding and what happened next is they acted in reliance of that conversation, signed a 30-year agreement for the land, signed a 10-year renewal for the fuel farm, built two $2 million dollar hangars and spent $350,000 updating the terminal. Stated there was no guarantee of exclusivity and we don't claim any right to exclusive development, we just claim that the development should be consistent with the master plan. Mayor Whipple stated you stated this has been a two and a half year process but today was the day you filed a motion to delay this further and asked if our legal counsel had a chance to review that motion before making a recommendation today. Charles Wittmack stated they have not and apologized for the timing of that. Stated this state of events has evolved a lot over the course of the last two and a half years, there have been negotiations that have been ongoing and today there is nothing urgent about this. Mayor Whipple stated the announcement of this agenda item was made on Friday, why didn't your staff attempt to get in touch with our legal staff or file the injunction then so we would have had time to review the document. Charles Wittmack stated the lawyers sometimes get in the way and legal counsel for Clemens Aviation and MCA has been pass agreements back and forth for maybe the last six months. Stated they got the three page agreement done last week, unfortunately Mr. Clemens' father passed away and the timing of that made the negotiation a little more difficult. Stated Mr. Clemens sent the agreement back with just one  Page 9 CITY COUNCIL PROCEEDINGS February 18, 2020 change which they perceive to be very minor and we perceive it to be an important view point and when talking to them now our agreement is that we are going to walk across the street after this meeting and try to hammer out that deal point. Stated he thinks we are very close. Vice Mayor Claycomb stated she is confused about the land, MCA believes they have access to this land that Clemens is requesting a contract on today. Charles Wittmack asked staff to bring up slide 8, stated MCA is south and the RFP was for this whole grassy section, which is considered parcel 7. Stated there are three lots within there called A, B, C, and D, the RFP dealt with all of parcel 7 and MCA's proposal was to build four hangars there and some other ancillary services. Stated so far they have built two hangars and the plan is to continue to develop them to the north of that and MCA's position is that all of that land that is green there has been promised to them. Stated what is happening now is there are lots C and D the City is now considering giving to Clemens. Stated we don't have a problem with that and thinks they are a good business partner, but think that for the benefit of the City, the planning documents need to be followed, the RFP process needs to be followed, and the award that was made needs to be followed. Vice Mayor Claycomb asked if he has a contract for lots C and D. Charles Wittmack stated they don't and the way this typically works is the leases continue to fold out as the property is developed so the RFP award conversation took place a year ago, MCA began developing the first two hangars and it was anticipated that additional leases would be signed as the development continued and the RFP contemplated that those specifically would be added in the future. Vice Mayor Claycomb asked for clarification for the City's legal staff. Jay Hinkle Law Department stated he would like to bring some clarity to what exactly occurred in the RFP. Stated the business proposed on the RFP, MCA now wishes to claim, never was created. Stated the proposer was to have been the existing MCA leadership plus Russ Meyer, Tom Dondlinger, and other individuals as well. Stated Russ Meyer actually signed that RFP proposal as a co-proposer. Stated those additional parties brought management skills, additional financing and customer contacts; none of that actually took place. Stated MCA stands here alone. Stated when those relationships fell through, MCA scaled back its lease requests to significantly less than half of what the proposal had promised. Stated there was no fuel farm, there was no public restaurant, half of the land originally to be under lease was requested, half of the hangars to be built were to ultimately be under construction and those of a lesser quality, are ones that did not have office space within them to be used by the pilots. Stated the airport saw this as a substantial variance from the proposal and exercised the authority that it has available to it, and rejected the proposal. Stated there is always language in every proposal that says that the City or in this case the Airport Authority always retains the option to reject all proposals and in this case there was only one and that one was rejected. Stated in good faith and in recognition of MCA's status as a long-term tenant at the airport, airport staff began negotiations with them to develop a lease for the parcels that have been shown here as lots A and B or parcel 7 so that they could meet the desires of MCA under their scaled back plan. Stated that is the lease that they signed and that came to this Council. Stated the Council never saw the expanded RFP because MCA never wanted to go forward on that lease. Stated there has been talk today also of lack of adherence to the master plan, that is a master plan from 2005, many of the assumptions that are contained in that master plan never came to be. Stated master plans are fluid documents and general guidance but they do not require rigid adherence and a reasonable interpretation of the 2005 master plan would find proposed Clemens lease to be in compliance with that plan. Stated MCA has shown in the past and in their presentations to the Airport Advisory Council that they interpret that  Page 10 CITY COUNCIL PROCEEDINGS February 18, 2020 plan to give them a de-facto monopoly as the only aeronautical service provider at Jabara Airport and that kind of monopoly status is expressly prohibited by the FAA. Stated he has not seen the lawsuit that was filed this morning but has seen the proposed lawsuit that Mr. Wittmack handed out to the Airport Advisory board members on January 4, 2019. Stated he knows that petition had speculations and different interpretations of the facts that were unsupported and did not have a viable basis to go forward as a lawsuit. Council Member Tuttle stated something was filed today, and now a case is being made that we should postpone this because something has been filed and asked staff how that ties in and if we could proceed? (Mayor Whipple momentarily left the bench, Vice Mayor Claycomb in the chair) Jay Hinkle Law Department stated he does not know what is in the lawsuit, it could contain language that calls for an injunction and prevents action by this Council and thinks if it would have contained that, Mr. Wittmack would have said so. Stated not having seen it and knowing what was contained in the documents that were proposed back in January 2019, sees no basis to delay, there was nothing in there that would have prevented that delay. Stated the course of the lawsuit, depending on what claims are presented could be very extensive and the delay could be considered by the FAA to be a denial of the request by a qualified operator to be an airport support service provider. Stated the FAA is clear that actions or policies or inaction are just as vital of the spirit of the regulation as actually coming down and saying your application is denied. Stated what is a stake if the City is in violation of the grant assurance, that the FAA determines that grant assurance violation exists is that they simply don't fund the airport with grants no longer and that extends to future grants and potentially extends to grants that are in progress and clawback or past grants. Mayor Whipple stated you mentioned that inaction on this or an action to delay might be interpreted by the FAA as negative to the extent that we could jeopardize our grants and asked if there is a timeframe on that and have we heard anything from the FAA. Jay Hinkle Law Department stated he had a letter from the FAA in May 2019, that said the choice to deny Clemens Aviation the opportunity to operate at the airport, will be a violation of grant assurance 23, which is going against exclusive rights. Stated because the issue of delay or inaction by the Council based upon the request that Clemens Aviation put forth, that was not presented to the FAA so there is no way to determine what kind of time frame would exist there. Mayor Whipple stated the letter in 2019 referred to the language of denial and not delay and it didn't include a timeframe. Jay Hinkle Law Department stated that is correct. 3) Barbara Autry owner of Midwest Corporate Aviation asked the Council to delay this so that Mr. Clemens and she can have another chance to resolve this. Stated we have actively been working on and take a few steps forward and a few steps back but is hopeful that we can get something together. Stated what she is having trouble with today is because this action has been asked to be taken prior to her having in writing that he will not be an FBO and what she has been working for years for is that we stay with the master plan. Stated she and her husband built that out there for the last 40 years according to the master plan; yes we reviewed it in 2005, there were many opportunities for new things to be said or done and they weren't. Stated she has been adhering to the master plan for that many years and can help Mr. Clemens be successful at Jabara just like we have other part 135 people that base with them but the fact  Page 11 CITY COUNCIL PROCEEDINGS February 18, 2020 that this was going to be voted on before she has in writing that Mr. Clemens will not fight against her about an FBO, she cannot move forward because that is what the Croix that this has been since Marvin Autry's death, three years ago is has to be towards a master plan if there is going to be this second FBO, it should be as the master plan says on the east side of the runway and not right next door to her and when it was said she needed to do the RFP, she respectfully submitted and her competitor did not submit and she was told that she won the RFP and that her competitor did not submit. Stated two months later she was sent a letter that said it is being rescinded, she is ahead of schedule on that RFP and is building from the south to the north versus the RFP said to build from the north to the south. Stated she sat down with 20 plus of her base customers and asked them if they want offices and they do not and they do not want more conference rooms, which we already provide. Stated what they wanted was aircraft storage hangars and they didn't want the price of fuel to go up because of all this other ancillary stuff and is asking the Council to give them another week or two to get this finalized and that this not be decided today. Council Member Johnson stated if the shoe was on the other foot and you were trying to apply to develop something that you wanted and for two and a half years you continued to have various hurdles; would you still want that delay or would you be ready to have that decision made? Barbara Autry Midwest Corporation stated she would never attack things the way that they have been attacked. Stated I would do it by the rules and this has not been done by the rules and would say to delay it and let us private individuals get it on paper, how we are going to operate together and then the City can do whatever it needs to do. Council Member Johnson stated as the Airport Authority we should kind of be referees and not really pick sides, so would you see it as picking a side if we delayed this as you requested or would you see us as being indifferent if we approved it because this individual has been trying for two and a half years. Barbara Autry Midwest Corporation stated she also has decisions or opinions from the FAA and what they don't want is preferential treatment towards an individual. Stated in no way did she ever say that we are a monopoly or that she wants to be a monopoly. Stated we have known that from the beginning that a second FBO could go on the other side of the runway and thinks it is the right thing not because of her but for her base customers, for general aviation, for the City of Wichita and the east portal, which is Jabara Airport. Stated the best thing for all of those stakeholders is to delay this and for Mr. Clemons and Barbara Autry to hammer this out and get it signed. Stated it was to be signed by end of business day, Friday, which is what they agreed upon and then the misfortune of the passing of Mr. Clemens's father and then yesterday was President's Day. Stated we did this lawsuit because of the timing and no one would listen. Council Member Tuttle stated she wished this could have been arranged between the two parties before it was brought to us and asked staff if it matters to this agreement if they have an agreement. Stated it is her understanding that this is a lease agreement between us and Clemens and the business between these two entities; does it matter to our lease agreement with Clemens because she wants to make sure we are following the spirit of the law and following FAA guidelines. Stated does it matter to us at this point what agreement they have. Jay Hinkle Law Department stated there is no pre-existing control over parcel 7, lots C and D. Stated if MCA had controlled that and was trying to arrange a sublease, then yes, their agreement would affect us. Stated it sounds as if their agreement that they are working on deals with operational issues and that is not something that is going to directly impact the Airport Authority. Stated we have heard from the attorney for Clemens Aviation talk about purchasing fuel from the provider, it might relate to that for example.  Page 12 CITY COUNCIL PROCEEDINGS February 18, 2020 Stated without knowing what their agreement is because we haven't seen it yet, or without knowing what the sticking point is except for what Ms. Autry has described, is wanting to seal down the FBO status for MCA, which sounds like an exclusive right. Council Member Tuttle stated it sounds like the sticking point between their contract negotiations is whether or not it is an FBO versus hangars. Jay Hinkle Law Department stated that is what he has heard today. Council Member Tuttle stated for us, does that matter in this agreement, this is land that we would be leasing; does that matter to us. Jay Hinkle Law Department stated the Airport Authority should not condone an agreement that shuts down the competitive possibility of another FBO. Vice Mayor Claycomb stated we heard today from Clemens that they have no intention of setting up and FBO but with this agreement that we sign today, could they set up an FBO? Jay Hinkle Law Department stated there would be an option that might be possible. Vice Mayor Claycomb asked if that would be through the negotiation of that contract. Jay Hinkle Law Department stated there is a provision in the contract that lists the allowed uses and there is also another provision lists prohibited uses. Stated there is no listing of FBO in a prohibited use and there is a provision that allows the allowed uses to be expanded, which is common, you asked me if it is possible; yes it could be negotiated. Vice Mayor Claycomb stated it sounds like your scaled back proposal was based on what your customers wanted. Barbara Autry, MCA stated yes but debates that is not right, it is not a scaled back proposal. Vice Mayor Claycomb asked if today's vote would stop negotiations between you and Clemens Aviation if we voted yes on this contract or would you just stop all negotiations. Barbara Autry, MCA stated she hopes not but what she has trouble with is it was understood between Clemens Aviation and MCA that before this vote took place, that it would be in writing that he would not be a FBO operation and the fact that things happened as they did, she does not have reassurances that he could not take those two blocks and make it into a FBO and is why she had to take action because we have nothing in writing. Council Member Clendenin stated this contract allows part 135 operations on those parcels, the restrictions and exemptions do not mention FBO by name at all? Jay Hinkle Law Department stated that is correct, this lease is set up for a commercial hangar operator, which is a special classification acknowledged in the Airport Authority's leasing policy. Council Member Clendenin stated for Mr. Clemens to decide to operate in that FBO, he would need to come back and renegotiate the contract and then would have to come back to Council? Stated if the  Page 13 CITY COUNCIL PROCEEDINGS February 18, 2020 contract doesn't specifically mention FBO, the he is wanting us to get to the point in this contract to know whether or not it would have to come back to us for him to develop a FBO. Jay Hinkle Law Department stated he doesn't think that point is expressed in the contract, you certainly have the authority to direct that. Mayor Whipple stated it seems that when we approached this issue on Friday that there was more of an agreement between the two parties, however, given the death of a family member in one party it seems that perhaps last minute negotiations wasn't possible and a legal injunction has been filed, which our legal staff and the counselors have not been able to see. Stated this is a two and a half year process and it needs to come to a close and our counsel has said they have not seen the lawsuit that was filed this morning but May 2019 was when we last heard from the FAA to get moving on this, it hasn't been a full year and because of that he will make a motion. MOTION: Mayor Whipple moved to take the item off the non-consent agenda and place it on the agenda of March 3rd under the business of Non-Consent so that we will take final action on that day. Council Member Johnson stated after listening to everything, feels that we are kind of involving ourselves in a matter that those businesses should work out as far as the contract. Stated that really has nothing to do with what we are approving and the risk that we take with that and FAA is too great. Stated if we delay there is nothing that to guarantee that this wouldn't happen again and thinks FBO conversations would be between those business owners and Mr. Clemens has for two and a half years, been trying to do some business here in the City of Wichita. Stated he will not be supporting a delay and supports approving this today and allowing those parties to deal with that themselves. Council Member Tuttle stated she also is not going to be supportive of delaying and feels this process has been delayed long enough and with FAA guidance that we cannot have a monopoly situation, thinks that eventually we are going to have to approve this lease anyway. Stated we have people who want to do business in the City and we always say we want to roll out the red carpet and not the red tape and thinks that is exactly what we are doing in this case and will not be supportive of a delay. Council Member Clendenin stated the reason for his second is in light of not knowing what is in the lawsuit that was filed this morning and thinks taking any action without knowing what is in the lawsuit is risky. Stated he agrees that the FAA has made it very clear to us what their desire is when it comes to our leases, but in the light that a lawsuit has been filed and we have been notified and served, would like to know what is in that lawsuit before we take action. Council Member Frye asked if it would be possible to hear from MCA's attorney on what is in that lawsuit. Mayor Whipple stated he doesn't think they can speak to the motion. Jennifer Magana City Attorney stated there is a motion up for discussion and if you have a question you can call upon anyone to answer the question. Council Member Frye asked if it is fair to ask counsel to reveal whatever is in the lawsuit. Jennifer Magana City Attorney stated yes if you would like to ask that question.  Page 14 CITY COUNCIL PROCEEDINGS February 18, 2020 Charles Wittmath stated to clarify the timeline that is supporting the litigation, we have thrown around the concept of this being a two and a half year dispute today and that is misleading. Stated this lease was only approved by advisory board at their last meeting, this is the first time the City Council is being asked to vote on this matter. Stated two and a half years ago the request that was made was to develop this same land, the City decided to pursue an RFP, MCA responded to that and began developing. Stated Clemens then decided to develop a different parcel at the airport then there was a whole conversation about that that lasted maybe a year. Stated we only found out that Clemens had new interest and was approaching the City about this original parcel 7 again at the last advisory board meeting. Stated the litigation that has been filed is whether or not this has happened in consort, there was a conversation among friends and their concern is the same concern you have, is if the City is showing a preference to one operator over another. Stated we are all concerned about how the FAA is going to look at this and we believe the FAA will be concerned if the City suddenly offers another source provider an opportunity to do things that are inconsistent with the master plan, inconsistent with the public process, negotiated secretly and negotiated through personal terms that are not done with transparency. Stated we believe that is going to be the FAA's concern. Stated the letter that your counsel is talking about is very narrow and was dealing with an issue that was not even before you now, it was dealing with the issue of could they put an FBO down in the corporate division and what the FAA said was we are not really going to opine on that now, all we are going to tell you is what the case law says is that you can't show a preference and you can't give one FBO exclusivity. Stated the FAA issues are really not in front of you right now and what the litigation is, is whether or not the Airport Authority, the Director of Airports knew that there was some other plan in the works at the time they asked MCA to invest millions of dollars in new hangars, sign a 30-year lease, and sign a 10-year fuel farm. Stated we think the evidence in that litigation is going to show that they were. Stated we filed a number of KORA requests asking for emails between the City and Clemens Aviation that they believe will establish the fact that those conversations were going on the entire time. Mayor Whipple stated that doesn't sound like it will be done in two weeks so if his motion is to succeed, we will take action in two weeks and will that result in another injunction? Charles Wittmath stated he doesn't know. Council Member Johnson stated from his perspective, we are giving preferential treatment to one FBO, the one that is there by delaying, by doing what this operator is asking and Mr. Clemens has also been comprised from whatever the initial application was to now because of this current FBO. Stated delaying or continuing to delay is showing preferential treatment to MCA and not allowing their own process to work out. Council Member Whipple stated right now there is no evidence of risk within two weeks that FAA is going to pull our grants, which has been thrown out here. Stated our last communication with the FAA was made in 2019 and did not give a timeline. Stated the goal is to extend this to two weeks with a final action taken on this item and is not to table it indefinitely. Stated when people talk about the red carpet, does not think it is responsible to spend taxpayer money on litigation if we can avoid it. Stated the people who are asking for a delay have used the terms one to two weeks so hopefully they will come to an agreement to save the taxpayers that money. Stated he doesn't think it is transparent to move forward with litigation that our counsel has yet had a chance to review and the opposing counsel describes as "super complicated." Motion failed 3 to 4 (Nays: Claycomb, Frye, Tuttle and Johnson).  Page 15 CITY COUNCIL PROCEEDINGS February 18, 2020 MOTION: Council Member Johnson moved to approve the agreement and authorize the necessary signatures. Motion carried 5 to 2 (Nays: Whipple and Clendenin). COUNCIL AGENDA IX) COUNCIL MEMBER AGENDA 1.) APPROVAL OF TRAVEL FOR MAYOR WHIPPLE, VICE MAYOR CLAYCOMB AND COUNCIL MEMBERS JOHNSON, TUTTLE, CLENDENIN AND FRYE TO ATTEND THE NLC CONFERENCE AND HILL VISIT, MARCH 6-11, 2020, WASHINGTON, D.C. MOTION: Council Member Blubaugh moved to approve the travel expenditures. Motion carried 7 to 0. X) COUNCIL MEMBER APPOINTMENTS AND COMMENTS 1.) Board Appointments. Vice Mayor Claycomb appointed Alayna Welch, who is the new youth member for District VI. Mayor Whipple appointed himself to the Law Enforcement Training Center Board and appointed the following members to the Board of Electric Appeals: Brad Ragland, Mike Kilian, Tony Naylor and Cole Hawkins. MOTION: Mayor Whipple moved to approve the appointments. Motion carried 7 to 0. RECESS - EXECUTIVE SESSION (Council Member Frye momentarily left the bench) MOTION: Mayor Whipple moved to recess into Executive Session for 45 minutes for an employee performance appraisal pursuant to K.S.A. 75-4319(b)(2): to discuss personnel matters of non-elected personnel. The Executive Session is required to protect the privacy interests of an identifiable individual. The Executive session will begin at 11:20 a.m. and end at 12:05 p.m. The meeting will resume in the Council Chambers. Motion carried 6 to 0, (Absent: Frye). The City Council reconvened in the Council Chambers at 12:02 a.m. MOTION: Mayor Whipple moved to extend the Executive Session until 12:30 a.m. Motion carried 4 to 0, (Absent: Frye, Tuttle and Johnson). MOTION:  Page 16 CITY COUNCIL PROCEEDINGS February 18, 2020 Mayor Whipple moved to extend the Executive Session until 12:50 p.m. Motion carried 4 to 0, (Absent: Frye, Tuttle and Johnson). ADJOURNMENT MOTION: Mayor Whipple moved to adjourn the meeting. Motion carried 7 to 0. The meeting was adjourned at 12:56 p.m. Respectfully submitted, Karen Sublett, MMC City Clerk  Page 17 CITY COUNCIL PROCEEDINGS February 18, 2020 ATTACHMENT 1 - CONSENT AGENDA ITEMS 1 THROUGH 10 II) CITY COUNCIL CONSENT AGENDA ITEMS 1) Applications for Licenses: a.) Applications for Licenses. Attachment: Applications for Licenses Feb 18.docx 2) Applications for Licenses for Cereal Malt Beverages: a.) Applications for Licenses to Retail Cereal Malt Beverages: Attachment: CMBs for February 18, 2020 3) Preliminary Estimates: a.) Not To Be Advertised Preliminary Estimates for Siena Lakes 2nd Addition Phase 3. Attachment: NTBA Cover Sheet for Siena Lakes 2nd Addition Phase 3 Attachment: NTBA PEs for Siena Lakes 2nd Addition Phase 3 4) Petitions for Public Improvements: a.) Over Estimate Bid for Paving Improvements to Clear Creek Addition. (District II) Attachment: Agenda Report No. II-4a.doc Attachment: Supporting Documents Attachment: Resolution 20-047 5) Agreements/Contracts: a.) Design Services Agreement for The Villas at Oak Creek Addition. (District II) Attachment: Agenda Report No. II-5a.docx Attachment: Design Service Agreement 6) Minutes of Advisory Boards/Commissions: Wichita Airport Advisory Board, December 2, 2019 Joint Investment Committee, December 5, 2019 Library Monthly Activity Report, January 2020 MABCD Board of Refrigeration, Air Conditioning, Warm Air Heating and Boilers, January 9, 2020 Board of Park Commissioners, January 13, 2020  Page 18 CITY COUNCIL PROCEEDINGS February 18, 2020 Library Board of Directors, January 21, 2020 7) Second Reading Ordinances: a.) Second Reading Ordinances. (first read February 11, 2020) Attachment: List of Second Reading Ordinances 02-18-2020.docx II) CONSENT PLANNING AGENDA ITEMS 8.) SUB2019-00009 -- Plat of Ballpark Village Addition Located on the North Side of West Maple Street, on the West side of South McLean Boulevard. (District IV) Attachment: Agenda Report No. II-8.docx Attachment: Supporting Documents 9.) No Protest Agreement for Future Paving for ZON2019-00028 Located 1,000 Feet North of West Central Avenue on the East Side of West Zoo Boulevard. (District VI) Attachment: Agenda Report No. II-9.docx Attachment: Supporting Documents 10.) No Protest Agreement for Future Paving for Lot Split LSP2020-00001 -- Plat of Orchard Park Addition Located South of West Central Avenue, West of North West Street. (District VI) Attachment: Agenda Report No. II-10.docx Attachment: Supporting Documents II) CONSENT HOUSING AGENDA ITEMS - NONE II) CONSENT AIRPORT AGENDA ITEMS - NONE