VIRGIN VALLEY WATER DISTRICT REGULAR BOARD MEETING
VIRGIN VALLEY WATER DISTRICT OFFICE
FEBRUARY 16, 2010

Minutes of a Regular Board Meeting of the Virgin Valley Water District Board held on February 16, 2010, at the Virgin Valley Water District Office at 3:00 p.m. Attending were President John Paul, Vice-President Karl Gustaveson, Secretary-Treasurer Kenyon Leavitt, and Board Members Ted Miller and Mark McEwen. Also present were Michael “Boomer” Johnson Chief Hydrologist, Bo Bingham District Legal Counsel and Mary Johnson taking minutes and other interested parties of agenda items.

President John Paul called the meeting to order at 3:00 p.m.
Kenyon Leavitt offered a Prayer and Karl Gustaveson led the pledge.
Public Comment – There was no public comment at this time.

Discussion: Board Comments - None
President of Board Comments - None

CONSENT AGENDA:

Ted Miller requested that item #6 be pulled from the consent agenda for discussion.

Karl Gustaveson made a motion to approve the consent agenda items 1 through 5 removing item #6 from the consent agenda and making it the first item on the regular agenda. Mark McEwen seconded this motion and it was unanimously carried. 5-0

1. Discussion & Action - Approve Agenda – Item #6 pulled and heard as the first item after the consent agenda

2. Discussion & Action – Approve Minutes from 1/19/10 Regular Meeting Tabled from 2/2/10 Meeting

3. Discussion & Action – Approve Minutes from 2/2/10 Regular Meeting

4. Discussion & Action – Approve Minutes from 2/2/10 Closed Session Meeting

5. Discussion & Action – Approve Financial Statement for December 2009

** End of Consent Agenda**

6. Discussion & Action – Approve Bills Paid

Ted Miller made a motion that any invoices from George Benesch come before the board before we pay them.

Kenyon Leavitt stated that I think they do now and that is what this approve bills is for. Ted asked how the last one was paid and Kenyon stated that somebody made a motion to approve the bills to be paid and it was seconded and voted upon and it was paid. There was further discussion on the process of approving the bills to be paid or pulling the item from the consent agenda if there are any questions. Karl stated that he understood Mr. Miller’s concerns and questioned if it would be possible for the board members to receive copies of that bill prior to the actual voting in the next meeting, directing question to Mary. Mary stated that she could scan bill and e-mail to board members. Karl further stated that he didn’t think that we wanted to be thirty days behind on any of our bills. Kenyon stated that no work outside of the District is to be done without somebody’s approval, be it the general manager or the board. There was further discussion on how the bill process works and that any board member does have the right to challenge any bill.

The motion died for a lack of a second.

Kenyon Leavitt made a motion to approve the bills paid as submitted on the consent agenda in the amount of $201,793.45. Karl Gustaveson seconded this motion and it was passed 4-1 with Ted Miller opposed.

7. Discussion & Possible Action – Consideration to Approve a Cost of Living Allowance (COLA) for Virgin Valley Water District Employees Effective July 1, 2010 – Tabled from 2/2/10 Meeting

Karl stated that the board had received direction from staff and provided the board with copies from the Bureau of Labor Statistics stating the actual increase in inflation costs. This shows that it was actually a minus (-0.4) and a cost of living would actually be based on this number. Karl suggested that since there is no inflation, that a COLA would not be applicable and something we would not want to consider doing at this time.

Kenyon Leavitt made a motion to not give a cost of living or COLA at this time. Karl Gustaveson seconded this motion and it was unanimously carried. 5-0

8. Discussion & Possible Action – Consideration to Approve Interlocal Contract Between State of Nevada Employees’ Deferred Compensation Committee and Virgin Valley Water District

Karl stated that he understood that this was just a continuation of our current program and Ted stated that legal counsel had reviewed and agreed.

Karl Gustaveson made a motion to approve the Nevada Public Employees’ Deferred Compensation’s extension of the program through 2012 with the VVWD. Ted Miller seconded this motion and it was unanimously carried. 5-0

9. Discussion & Possible Action – Consideration of Lease of Real Property for Telecommunication Tower Executed by the Virgin Valley Water District and Rebel Communications, LLC and Alternatives to Continued Operation Under Such Lease Due to Trespass and Unauthorized Use Issues Associated with the Site of Virgin Valley Water District Well #30. Consideration and possible action to determine other options for radio communications.

Karl stated that this item had been brought up at one of our last meetings and we must deal with the BLM Trespass Notice. There have been up to six extensions and we have been given a final extension and definitely a decision needs to be made on the direction we need to go on regarding the tower. The approval of the tower was voted on by this board with the assumed knowledge that there would be no costs to the VVWD and that revenues would come in by other people using the tower; and not only would it be paid for, but it would also be a profit center at the rate of 50% of whatever the revenues were at the time. Karl further stated that obviously this was not going to happen and that the tower must be removed or the tower must be put in VVWD’s name. No equipment is installed on the tower. Rebel Communications has been given an extension until March 5, 2010 and Karl’s suggestion was, at this point and time, that we consider letting Rebel take their tower or another option, which we may not be able to do on this agenda, but funding was not voted on and funding is not available in this budget to pay for this.

Bo Bingham stated that their understanding was the same, as of today, and that March 5th was a drop dead deadline to have the tower removed or transfer ownership or otherwise resolving the issue. Bo also acknowledged that Cody Whipple was here representing Rebel and he should have an opportunity to address and provide information, but before we get there, Bo wanted to answer Ted’s question. Bo stated that there are new developments as of today. Eric Wilbanks has been in touch with Beth Ransel of the BLM multiple times over the last several weeks, if not months, and at all times the indication was that this March 5th deadline was the deadline and the terms of her previous letter were controlling. She indicated today that this was not necessarily the case. She indicated today that the agreement will not be modified. Bo stated that on a legal stand point, they would feel more comfortable if the agreement were modified to take out some of the language prohibiting sub-leasing, prohibiting language that could somehow be construed that we could be in violation of the current permit under the current ROW; however she did indicate that if a letter was sent confirming the conversation that Eric had with her today, that it looks like there could be some additional options. Bo stated in his personal opinion that Boomer had raised some issues before the board regarding the need that perhaps this tower provides line of sight and other things we can get into, but Bo suggests that this might be addressed and discussed whether or not this is accurate. Does the tower provide some kind of additional benefit to the District that we don’t currently have or currently use or obtain in some other location? Bo continued and stated that it appears that we do have a little bit of room to possibly work something out with Rebel according with what Beth Ransel is indicating on behalf of the BLM. If the board is interested in doing something out along those lines there are issues along those lines. This is a very, very significant issue before the board right now. Bo stated he would like to see a lot of deliberation from the board on this; he’d like to see Boomer provide any information; he’d like to see Cody provide information, and if others have information regarding this issue they should provide it because he thinks we should act very carefully here. Potentially it could be a benefit to the District; on the other hand, if it’s not done correct he fears that litigation could ensue and in addition, we could run afoul of BLM requirements so we need to tread very carefully as the board considers this issue.

Ted questioned where we stand on the BLM trespass issue and John Paul stated that this was the next item, but Ted asked isn’t that going to have bearing on what we do here. Bo stated that yes, and as it stands right now, Beth Ransel of the BLM has unequivocally indicated that we can keep things as they are, meaning leaving ownership of the tower in the name of Rebel and beyond that March 5th deadline and still be okay. This is why Bo would like to draft a letter confirming the telephone conversation held today with Beth Ransel and in that letter stating that she agrees that we are going to proceed as we are right now. Bo further stated that before we get to that issue, the board needs to make a determination whether or not we want the tower; whether the tower will be beneficial to the District; does it make sense; what are the terms under which how things are going to be worked out with Rebel relative to paying for the tower; are additional revenues going to be generated; how are those going to be divided; can the District get into this area legally accepting revenues and entering into some type of agreement; along with a whole lot of other issues; and make sure we are fully informed.

Karl questioned how much more time we had. Bo stated that if the board was interested in pursuing this we could sign the settlement agreement now; attach a letter with it confirming the conversation; the ownership of the tower will not be changed; it will stay in the name of Rebel unless somehow the District wanted to purchase the tower. Karl questioned the ownership staying in Rebel’s name and Bo stated that he had a letter from Beth Ransel stating that the ownership of the tower has to change, but the settlement agreement does not expressly state that. The settlement agreement specifically states that we cannot sub-lease the tower. Bo further stated that he did not feel comfortable entering into a situation where we could be subject to either violating the ROW or something along those lines. It was discussed whether this could be tabled and moved to a different date so the board would be fully informed.

Ted questioned Boomer of the need for the tower in that location and Boomer stated that as of today, no, but down the line, yes, and that the District’s need is growth dependent and Boomer mentioned different projects coming down the line and that the tower is within the line of sight of all facilities of the District now and in the future.

Cody Whipple of Rebel Communications stated that a lot of communication systems are tone remote, meaning that you use antennas over land mobile radio systems to communicate, but as things progress, you have this digital age and that everything would come into a switch right here in the office which makes its way all through desktops in the office, but most importantly with that location, and that was a big benefit to the Water District, is that it would be a single point of radio and it has the ability to hit all the locations; it could bring all that broad band back into one location without having to use multiple towers around the area.

John Paul questioned the generating and splitting of revenues. Cody stated that he had sat down with Bob and Beth at the field office and they are very receptive to the idea of why this site is important, not only to the Water District, but also to the State of Nevada, Las Vegas Metro Police, Clark County and Lincoln County Sheriff’s Department. There are a lot of co-users out there interested in this site and that’s when they brought up that there is an RMP (Resource Management Plan) in process that if it’s passed will allow site type ROWs. Cody further stated that as in 2007,
he is here for the District’s benefit as well as his benefit. Cody further stated that he had the idea of creating one site that all the public safety users could join in and have a magnificent coverage area and all coverage areas are equal and in this aspect, the BLM is very understanding. Cody feels that the settlement agreement is where we need to start and get rid of the trespasses then he could come back in here again and Boomer could start looking for a grant or some type of way we could work together.
There was discussion of why this was even an issue when it didn’t need to be if things were done correctly in the past.

Bo made a statement that he was absolutely shocked today when the response came back that the position of the BLM had changed. One legal concern of the various legal concerns here has been somewhat alleviated now; we’re not in a position to give final legal direction at all because additional information needs to be obtained, but at least from this point, we have some time and perhaps since we are up against a deadline we need to have a workshop or something to make a determination if the information Boomer was given relative to site lines and all, that how viable that is.

There was discussion regarding statements made; timeframe in which things should happen; the telephone conversation with Beth Ransel on this date; the towers benefits, need and use in the future; the RMP in process; cost of tower, paying for tower and it not budgeted for.

Karl stated that this hinges on the BLM and changes take time, especially with the BLM and agreed with the need, but wondered if it couldn’t be done another way. Boomer stated that the BLM does update the RMP and is in that process.
Cody commented that with the settlement that we cannot go and lease that tower and that no work has been done to the tower since the cease and desist letter in the very beginning, but it doesn’t take away someone else requesting to use the site.

John Paul mentioned the signed agreement between the VVWD and Rebel Communications and was inclined to believe that Cody was not willing to re-negotiate the terms of this agreement between now and then and Cody stated that was well put. Cody stated that the agreement must be revised from the stand point that we would need to get in a work group session and revise, but we have to get rid of the trespasses first.

There was discussion regarding the ROW, sending the letter, paying the fine, ownership of the tower; Bo’s concerns and not comfortable with the agreement the District entered into with Rebel specifying for payments to begin in April of this year and believes that this should be resolved now and we need to figure out some of these issues now. Cody stated that he would share all his information, but with deadline, etc. he would agree to a workshop.

Another legal issue Bo anticipates is what happens when the BLM, even though they are telling us everything looks good, what happens if ultimately the BLM changes and we are stuck with a second agreement with Rebel and the BLM says no. From a legal prospective Bo recommended that we not get into that situation, but shift the burden to the other party.

There was further discussion regarding the letter to be sent to the BLM, other alternatives if an agreement couldn’t be worked out with Rebel and items within the agreement with Rebel. There was further discussion of times, dates, workshop or closed session, getting a letter response out immediately to the BLM, etc.

Kenyon Leavitt made a motion to table this item and that we set up a special work meeting to discuss this item February 22, 2010 at 5:00 p.m. Ted Miller seconded this motion and it was unanimously carried. 5-0

10. Discussion & Possible Action – Consideration to Approve Execution of the Proposed Settlement Agreement with the United States Bureau of Land Management to Resolve all Trespass and Unauthorized Use Issues Associated with the Site of Virgin Valley Water District Well #30

Kenyon stated that we’ve pretty well discussed this and that the only change is we would be sending out that letter along with the check. It was determined that the letter would be getting a better understanding from the BLM and where we are at, but as far as the execution of the settlement agreement we should wait until the next meeting and after approved, a check would be issued.

Cody stated that he would like to see the settlement agreement dealt with sooner than later along with his concerns. There was further discussion on the BLM accepting the letter and the settlement agreement. Bo stated that he felt we could accomplish both things by continuing to work with the BLM as quickly as possible getting additional clarification. Bingham & Snow will be sending a letter to the BLM regardless tomorrow confirming the conversation with Beth Ransel, but for legal reasons, Bo is not comfortable with just signing the settlement agreement right now. There was some discussion on the time frame and Kenyon questioned if this could not be taken care of at the meeting scheduled for the 22nd.

Kenyon Leavitt made a motion to table this item until February 22, 2010 at the special meeting and add this as an action item. Ted Miller seconded the motion and it was unanimously carried. 5-0

Boomer disclosed that he would not be able to attend the regularly scheduled meeting on March 2nd due to NWRA activities.

11. Discussion & Possible Action – Consideration of Appointment of Interim General Manager to Serve until General Manager Position is Filled. Possible Action May Include, but is not Limitited to, Appointment of Interim General Manager and Granting the Appointed General Manager with Authority to Temporarily Manage the Day-to-Day Operations of the Virgin Valley Water District

Kenyon stated that we were a bus with no driver and we needed someone to run the day to day operations and that we needed someone aware of what is going on and after looking at the possibilities of who could take care of that. His recommendation would be to appoint Boomer as the interim general manager as he is aware of the day to day operations and the issues at hand.

Karl stated that he has also had the opportunity to look at, and Boomer has made it pretty clear that this is something that he would prefer not to do. In fact he asked not to have that position.

Boomer stated that be believed at the last meeting, knowing that we were going to be advertising for a general manager, that he would not be applying for that permanent position, but he also agreed that he would do anything necessary for the District. Boomer further stated with his hydrological background that he would not want the general manager position, but he would assist in bridging the gap until a permanent general manager was hired.

Karl mentioned that we have an individual, William “Pete” Peterson, with a D-4 (Distribution-Grade 4) with 30+ years experience along with a T-2 (Treatment-Grade 2) and working on a T-3, hoping to take that up to a T-4 on a temporary permit. Karl further stated that he has had an opportunity to talk with Pete and he, like Boomer, doesn’t want anything permanent, but is willing to assist in the interim.

There was some discussion following proper procedures, pulling Pete into the front office and someone else taking his position, duties and allowances for a pay increase. There was discussion on an amount of an interim increase in wages.

Karl Gustaveson made a motion to appoint William Peterson as the interim general manger until the general manager position is filled with a 10% salary increase and to go back to his existing position and salary after a general manager is hired. Kenyon Leavitt seconded this motion and it was unanimously carried. 5-0

12. Discussion & Possible Action – Consideration of Preparation and Publication of Notice of Job Opening / Job Description for General Manager Position. Possible Action May Include Approval of Notice of Job Opening / Job Description, Instructions to Publish and Post Notice of Job Opening and Selection of Publications and Periodicals Within Which to Publish Notice of Job Opening

Karl asked Bo to bring them up to speed. Bo presented a draft for the board to consider and stated that this was a work in progress and revisions could be made today and ultimately the board would approve what language to use and we could get this published. Bo gave some background where this draft came from and discussions they have had. Bowen & Collins provided assistance in drafting the job description, free of charge and they have also been involved in hiring processes and interviewing processes. Other assistance was obtained from the City of Mesquite,
Ted Miller and the District’s Administrative Assistant. There was further discussion on places to advertise and the costs associated; and with the length of the job description we may need two versions, one for newspapers and one for websites. There was discussion on forming a committee with no more than two board members and possibly Pete and possibly others to review the resumes as they come in and other different options to streamline the process. The board then discussed a salary range for the position for a great length of time.

Kenyon Leavitt made a motion to take the job summary and handout received from legal counsel with a salary range of $71,000 - $95,000 and to post in the websites listed, the local papers and all the regional papers and on the AWWA website, in the Review Journal, Salt Lake Tribune, Deseret News, Arizona Republic, NWRA. All those listed here is where we should post it. Mark McEwen seconded the motion.

Bo questioned if the Board was going to continue deliberating on this or does this also include an approval of the job description as written; do you want to give an abbreviated version of the job description for the newspapers; do you want to set a budget amount on what you want to spend; do you want to set a time of how long you are going to publish for? There was further discussion on the length of time to publish for and the costs associated. Tim Hacker suggested that you hit Sunday in the newspapers and that newspapers were more of a formality because you will probably get most of your job seekers with the on-line publications and cautioned about too many newspaper prints because of costs.

Kenyon modified/amended his motion to limit postings to the Review Journal, Salt Lake Tribune and the Arizona Republic and websites as posted; on a Sunday for the newspapers and 21 days on the websites.

There was further discussion on length of publication and closing dates and then Tim Hacker mentioned that the trend is now that you state “First closing of the position is a such and such date but the position will remain open until filled”.

Kenyon Leavitt stated that he was scrapping both motions and starting over.

Kenyon Leavitt made a motion to accept the job description as presented and post in the Review Journal, Salt Lake Tribune and the Arizona Republic for one weekend within time frame of now until March 12th and that we post in websites as listed and the District’s website; and that the wage range be from $71,000 - $95,000; and to state that the first closing date is March 12, 2010 with the verbiage that the position will remain open until filled.

Bo questioned if you wanted an abbreviated job description for the newspapers?

Kenyon stated that yes we wanted an abbreviated job description for the newspapers and to direct them to our website. Karl Gustaveson seconded the motion.

Mike Chandler asked if relocation would be required. There was discussion on this matter and then John Paul called for a vote.

The motion passed with a vote of 4-1 with Ted Miller opposed.

13. Hydrologist’s Report and Power Point Presentation as Given by Michael Johnson to Public Lands

Boomer informed the board that his lap top booted up earlier, but it won’t boot up now so he went through the presentation with the information included in the packet. Boomer reviewed the size of the Virgin River Basin; the VVWD municipal system; the VVWD arsenic treatment plants; the District’s ground water resources; the District’s surface water resources; the District’s population and use; conservation; and the growth and challenges.

After his presentation, he informed the board that the City of Fallon would be having a mandatory pre-bid meeting here on March 18th for their project of retrieving the tank they purchased from the District and its erection. Boomer also informed the board that he had filed an extension of time for one of our permitted water rights last week and has made some corrections/modifications to four of the applications that we re-filed in Basin 222 and that he was meeting with Fish & Wildlife on Friday. He also stated that after having legal counsel review Ordinance IV, it would be coming back before the board and that the cost of an EDU has gone from $550 to $275.

14. Public Comment

Morris Workman asked if the District was involved or have used pipe that is in the lawsuit filed by the State of Nevada against J.M. Manufacturing. Boomer explained that this was a classic Whistleblower lawsuit and that chances are that we do have that type of pipe in the ground.

15. Adjournment

President John Paul adjourned the meeting at 5:50 p.m.

The minutes of this meeting have been tape-recorded and will remain on file in the District office for a one-year period for public examination.

• Board Meeting Minutes: 2010-02-16 (.pdf 32K)