Utility Board

Utility Board Minutes 7/08/2008

Written by Allison Leavitt. Posted in Minutes.

MINUTES

MONROE CITY UTILITY BOARD

JULY 8TH, 2008

6:00 p.m.

 

1.         Chairman Buddy Qualls conducting

            Meeting called to order

Prayer was offered by Board member   

            Approval of minutes of previous meeting

A motion was made by Board Member Craig Mathie, seconded by Board Member Perry Payne to approve the minutes of the February 22, 2008  Utility Board Meeting   with the grammar correction of post pone to postpone.  Added “and possibly contribute city funds as appropriated” to motion.    

Present:

Chairperson:

Buddy Qualls

Board members:

                        Craig Mathie

                        Jean Vigil, Council member

                        Perry Payne

            Council member:

                        Gordon Topham

            Other:

                        Devin Magleby – Public Works Supervisor

                        Rodney Wanlass – Water Superintendent

                        Chad Hunt – Richfield Reaper

                        Sandy Phillips – Richfield Reaper

2.         Discussion items

            (A) Water lines outside Monroe City Limits.

            Gordon Tophman reported to the board his findings on several questions from our last meeting.  First was the chance that the lines outside the city limits could be considered an emergency. Gordon attended the Rural Water Conference in St. George and while there visited with Keith Burnett, CIB administrator, and he explained that it would not be considered an emergency. Mr. Burnett stated that these lines outside the city limits are probably our responsibility. He suggested that Gordon visit with the Drinking Water Board.   He met with a couple of their people who were in St. George at the conference and then corresponded with the lady that takes care of these matters.  Roger Foisey had told Gordon that it could be considered a health hazard, this lady stated that she did not feel like it meets the requirements as a health hazard.  She offered to meet with Roger but still implied that she was pretty firm that it does not qualify as a health hazard.

            Second, Gordon has been in contact with our City Attorney, David Church.  Gordon explained our situation with water lines outside the city limits, the 1921 document, and the cities actions when problems have occurred on the lines.  Bottom line,  Gordon request from Mr. Church, was his opinion on who legally owns these lines. 

            Mr. Church’s response was as follows.

This is a very difficult question and I am not sure if I can give you a definitive answer.  This is not the first time it has been asked of me.  The written contract will always be the starting point to establish the relationship between parties.  The terms of the written contract can, however, be waived or varied by the conduct of the parties over time.  These changes to the parties’ legal relationship can be expressed changes (evidenced by some later writing or contract amendment) or implied changes based on the conduct of one party and the reasonable reliance by the other party.  Where one side to a contract is alleging the terms have been changed by the conduct of the other, and there is no agreement, the issue becomes difficult.  If it is the City’s position that the terms of the 1921 contract have not been changed or waived by the City, then it will be the water user’s burden to show that the conduct of the parties over the years has resulted in either an express or implied amendment to the contract terms.  This will depend on what facts they can prove and a judge’s view of the equities in the case.  I can not give you a definitive opinion as to which side would prevail if this matter were brought before a judge.  If the City can show that the written contract exists then the water users will bear the burden of proof that the written contract terms have either been waived or should not be enforced.  This will be the more difficult burden of proof and therefore the City has the better legal position.  However, all of the equities will be on the side of the water users and therefore it is my opinion that if a judge or jury can find a legal way to rule against the City it will.   

Gordon also talked with County Attorney Dale Eyre.  Mr. Eyre stated the same thing as Mr. Church, saying it depends on how both parties responded to the contract.  Craig Mathie stated that Monroe City has been good neighbors and have treated these water users the same as customers in town, when there is a leak the city crews respond and fix it.  Gordon informed the board that Council Member Warren Monroe wants a judge to tell us that it is our responsibility.  Board member R.K. Nielson phoned Gordon last night, because he could not attend the meeting tonight, he feels the same way.  He adamantly opposes spending any of the cities money outside the city limits.

Board member Mathie asked about our arrangement with David Church. Could he represent the city or do we have to hire an attorney who is familiar with water rights. This is going to cost the city money, Board member Perry Payne wonders if it would be better to spend this money on replacing the line.  Perry stated that he understands where Warren and R.K. are coming from and as a citizen of Monroe City he does not want to spend money on inappropriate projects.  However this document has been a headache ever since it was found, both parties only refer to the parts that best serve them, and he does not feel like it is even a good starting point.  We do not have an original document that has been signed or notarized. 

Gordon commented that one thing that seems confusing is that the first time he read this document it appeared that the water being delivered was owned by these users.  Then as he talked to others and visited with the Department of Water Rights, there is no record of these people ever owning any water rights.  So we have to assume that the water we are delivering to them is ours.  They may have given water shares to the city before the Cox decree, however the Cox decree is what is now law, and there is no evidence that these users had water rights.  In the last part of the 1921 document, it states that if a person desiring an additional tap must first make arrangements as may be necessary to secure from the first party (city) the additional water that may be necessary for such purpose and for the right to have such water carried through the water system, basically making sure the city had enough water for this additional tap. Jean explained that when she was the city recorder years ago, the city was in the process of redoing the water system in town.  The city allowed HiRoe Dairy, Okerlund Dairy, Kay Mciff, and Vernon John to purchase additional water taps so that they would have enough water to water their cows.  They had to turn in water for these additional taps. Gordon stated then this was not part of this 1921 agreement then.  Rodney gave Gordon a list of the people that have tap rights outside the city limits. He stated that there are still some additional taps that have not been accounted for but we are working on them. 

Gordon informed the board that the city just spent $10,000 to fix the county road by the cemetery where the broken line had undermined the road.  We could have gone to court to see if a judge would tell the two tap owners on this line that is was their responsibility, but in the mean time someone would have got killed.  Gordon felt responsible along with the city council to replace this line.  In repairing this line, the water was shut off from going underneath the road, so we should not encounter another problem like this.  Because of the possibility of water pressure problems we could not connect this line with Glen Phillips.  Instead  a different route was taken and we will be installing a new line next week when the pipe gets here.

Gordon is here tonight to ask for  the boards’ advice on how to replace these lines.  He agrees with the plan to replace the line bit by bit as money is available, but would like a plan in place on the size of line and route to take these lines. 

Water lines:

HWY 118

8 inch line to city limits (by high school)

4 inch line to about 850 W (6 houses 1 livestock)

3 inch line to 1200 W ( 3 houses 1 livestock)

2 inch line to base of foothills (1 house)  

Perry asked if this line by the high school was first priority, Devin explained that the north line along 500 N is probably the first to be done, Gordon just explaining what he would like to do on each line not necessarily the order of doing.  There is an eight inch line right now that goes on 300 W to 400 N

500 N

4 inch line from 400 N to junction at 500 N and 300 W

3 inch line from 300 W along 500 N to approx 700 W

2 inch line from 700 W along 500 N to Brooklyn Rd (1200 W) to the two homes located S of 500 N

3 inch line along 300 W to service lines in fields

2 inch line in fields

Our goal here is to replace this line with the least amount of pipe and cost. We do not have to provide larger pipe for fire flow unless we get a loan, replacing or repairing the line does not requires us to provide this service.  We do need to provide equal service to these customers.  Buddy asked about additional taps after new lines are installed.  The city council at this time does not want to jeopardize the cities water infrastructure by adding new taps. 

The plan is to charge those water users that live outside the city limits an additional fee to help pay for the pipe replacement and repairs. Buddy stated that our first obligation is to the Monroe City residents, and that the cost of repairs to these outside lines should not cost the city residents money. Gordon stated since 1921 these water users have been paying the same rates as those users inside the city limits.  We understand that for some time the users on these lines did take care of the line. It was explained again that the city started to repair these lines when the county road was being damaged because of a leak and the county could not get the water users to fix it so the city did. Following this, the city basically started fixing all the leaks as they occurred and were reported to the city. Other cities do charge an additional fee for water taps outside the city limits. 

  We do need to take into consideration some kind of equity to these water users outside the city limits. Glen Phillips put in his own line at his expense and this does not cost the city more money to deliver him water as long as he always maintains his line.  We have a few residents that live less than fifty feet from the city limits line and there are no lines beyond their homes.  Others live more than two miles from the city limits. 

After some discussion, it was decided that we would prepare a proposed plan and have an information meeting with these tap right owners to explain our plan, listen to their concerns and answer questions. 

            Generally, the board feels like we are responsible for these lines because of our past actions in taking care of leaks. 

Our Proposal is   

            The City will put funds towards a gradual replacement plan.  Charge an additional twenty dollar base rate to water users outside the city limits. Water uses outside the city limits will still pay the original base rate of twenty dollars and one dollar per thousand gallons to cover costs of delivering them water. As funds become available from the city and with fees collected from water users, the line will be repaired or replaced systematically. The lines will only be replaced to each meter and it will be the owner’s responsibility beyond the meter.  

            A Motion was made by Board member Craig Mathie and seconded by Board member Perry Payne to Recommend that the City Council consider a gradual water line repair or replacement plan,  that will be funded by a combination of city funds and a monthly surcharge to the out of town water users at a minimum of $20 per month per tap.  We also recommend that an information meeting be held with the water users outside the city limits to answer questions and receive input on this proposal.  The board is in general agreement that the city has responsibility of ownership of these lines.   All were in favor.  Motion carried

Note: Board member R.K. Nielson could not be here tonight but informed Council member Gordon Topham that he was not in support of this plan.  His major concern is that this plan is penalizing the city residents by using city funds  to up grade water lines outside the city limits.

3.         Adjournment

A motion was made by Board member Craig Mathie and seconded by Board member Perry Payne.  All were in favor.  Meeting adjourned.

           

 

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