03-20-1995 - Regular
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CITY COUNCIL OF EDGEWATER
REGULAR MEETING
MARCH 20, 1995
7:00 P.M.
COMMUNITY CENTER
MINUTES
CALL TO ORDER:
Mayor Hayman called the Regular Meeting to order at 7:00 p.m. in
the Community Center.
ROLL CALL:
Mayor Jack Hayman
Councilman Danny Hatfield
Councilwoman Louise Martin
Councilman Michael Hays
Councilman David Mitchum
City Attorney Krista storey
City Manager George McMahon
City Clerk Susan Wadsworth
Police Chief Lawrence Schumaker
Present
Present
Present
Present
Arrived at 7:10 p.m.
Present
Present
Present
Present
INVOCATION, PLEDGE OF ALLEGIANCE
The invocation was delivered by Rev. Lauck, United Church of
Christ. There was a pledge of allegiance to the Flag.
APPROVAL OF MINUTES
Reqular Meetinq of February 6. 1995
Councilwoman Martin made a motion to approve the February 6, 1995
minutes, second by Councilman Hatfield. The motion CARRIED 4-0.
Reqular Meetinq of March 6. 1995
Councilman Hays made a motion to approve the March 6, 1995
minutes, second by Councilman Hatfield. The motion CARRIED 4-0.
CITIZEN COMMENTS REGARDING AGENDA ITEMS ONLY
(Other than public hearinqs)
Joe Martin, Chairman of County's Overall Economic Development
Plan committee, commented on Item 7D. He spoke about a
questionnaire being in the mail today to the City to fill in the
blanks in terms of the projects the Council had put in the
County's Economic Development Plan.
Mr. Martin explained in order to be Economic Development
Administration Fund eligible, for the city to qualify for any of
those funds, the project has to be in this document and it is
there. He explained the City has to have some local matching
funds set aside so the City can achieve the appropriate position
in the ranking process.
City Manager McMahon asked if they also consider, as part of a
match, the amount of money the city is considering tonight or for
the type of thing they are considering tonight such as the
preliminary studies which are required in order to do that. Mr.
Martin stated he believes that is true but he couldn't say for
sure. He informed Mr. McMahon he should check with EDA on this
matter.
Gary Fox, Volusia County Business Development Corporation, spoke
in favor of taking the first step under Item 7D to begin the
development of planning for improving the infrastructure on West
Park Avenue. He stated they are already working with two
companies in that general area through the opportunity fund with
almost $200,000 of commitment from that fund this year.
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Mr. Fox briefly spoke about the Park Avenue Corridor being a
primary industrial development area. He feels taking the first
step with a study such as this is a very commendable thing to do
toward that development.
Mayor Hayman asked Mr. Fox if he could comment on the $200,000
opportunity fund recipients. Mr. Fox stated one is Edgewater
Machine for a combined project they are doing with Dougherty
Marine and they have committed $108,000 of opportunity funds for
providing water service to that area which is in coordination
with the City's efforts as well. He stated they will be
supporting a similar effort at Coronado Paint for a little under
$100,000.
Alice Haldeman, 930 Lake Avenue, commented on Item 7J. She feels
making the Mango Tree property a public park would be wonderful
but she would like her and her neighbors to be insured they would
have some security because they have been spoiled by having this
property back there where there is no kind of transient activity.
City Manager McMahon stated the purpose of the City's interest in
acquiring that is really three-fold and the possibility of some
type of limited recreation area for passive activities is what
they would be looking at. When the area was not properly
supervised so they could protect it mostly out of concern being
for small children, we would provide security through the locked
gate and through the fence. He stated mostly the interest in the
City of acquiring that is the very low cost of providing the
means to help out our drainage throughout that area and as a
backup for reuse if we should need additional storage for water.
City Manager McMahon stated he would recommend to Council they
come up with a proposed recreation plan and then invite the
public in to discuss it with the Council. Ms. Haldeman stated it
sounds wonderful and she would be all for it as long as they know
what is going on and they have some security.
Dominick Fazzone, 302 Paradise Lane, spoke about items B, C and
E. He feels the amount of items to go before Council should be
raised to over $5,000 and those items under that amount be placed
on the consent agenda. He spoke about the lack of people
attending the meetings because of them being so lengthy.
Ken Reinke, General Manager, Halifax Used Cars, spoke about Item
71. He is possibly requesting they can do a year long on-site
tent sale.
Mayor Hayman stated if council has no objections they can dispose
of this item now. He explained this request and spoke of the
conditions that go with this request.
Councilman Mitchum stated he doesn't have a problem with this at
this point but he wants to point out this format was not designed
so people who are on the agenda could get their agenda item moved
up into citizen comments.
Mayor Hayman stated they will defer further discussion to the
appointed time in the agenda where they will deliberate and make
their decision.
Councilman Hays spoke on citizens comments regarding agenda items
and what the intent of doing this was.
CITY COUNCIL REPORTS
city Attornev
City Attorney Storey had nothing at this time.
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Council Regular Meeting
March 20, 1995
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city Manaqer
City Manager McMahon had nothing at this time.
CITY COUNCIL
councilwoman Martin
councilwoman Martin had nothing at this time.
councilman Hays
councilman Hays commented on an article in the Legislative
Bulletin regarding Bill 526 - Annexing enclaves. He spoke about
Senator Dudley wanting to make it more difficult to annex
enclaves.
Councilman Hays stated he would like to reissue the Council's
position on that. He asked for support in sending letters out to
try to beat this down again.
It was the consensus of Council for support corresponding with
the legislative delegation encouraging them to oppose this bill
in both the House and Senate.
Mayor Hayman asked City Manager McMahon to prepare the necessary
correspondence.
Councilman Mitchum
Councilman Mitchum had nothing at this time.
Mayor Havman
Mayor Hayman stated at the closing of the meeting he would like
to talk about our water and stormwater rates.
Councilman Hatfield
Councilman Hatfield had nothing at this time.
PUBLIC HEARINGS, ORDINANCES AND RESOLUTIONS
A. Public hearinq/Resolution 95-R-05 Reauest of Donald Slaney
to abandon Railroad st. runninq South from West Park Ave.
(Continued from 11/4/94)
City Manager McMahon asked that Council make it a condition of
abandonment that the City would obtain a 20 ft. easement from Mr.
Slaney. He explained the reason for that is the City has the
ability to provide additional stormwater runoff drainage
improvements to the Edgewater Acres area and the most streamline
cost effective way of doing that is to use a 20 ft. easement on
the easterly side of that property.
Mayor Hayman presented the background for Res. 95-R-05.
Mayor Hayman read Res. 95-R-05.
Mayor Hayman opened the public hearing.
Robert Howard, Architect, representing Donald Slaney, explained
why he has a problem with a 20 ft. easement. He stated that is
impossible. He stated if this is the direction in which Council
is going to proceed, we will take it under advisement and get
back with City Manager McMahon.
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Council Regular Meeting
March 20, 1995
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City Manager McMahon asked if it is mandated that we actually
abandon that portion to the railroad. City Attorney storey
stated she doesn't know of any other mechanism that abandonments
are transacted. The case law and the historical methodology for
abandonment splits in half and goes to adjoining property owners.
Councilman Mitchum asked if Mr. Howard approached the railroad
about purchasing. Mr. Howard stated yes they did early on and
Florida East Coast is very hard nosed.
Councilman Mitchum stated over the last three years he has
managed to buy over 1,000 feet of their property.
Mr. Howard stated he was told once they receive the abandonment
to make them an offer.
City Manager McMahon stated one of the problems is if we look to
an easement to the westerly side of the property, it would be
much more costly for the City to transmit the water.
Councilman Mitchum referred to a memo from City Engineer Fegley
suggesting there might be a swale put on this thirty foot section
being talked about. He asked if that would be a help.
City Manager McMahon stated it would be a help if they could
locate it close to the railroad because the swale itself from the
southerly end goes very close to that.
Councilman Hays stated obviously they do need to do something for
an easement for the water runoff and that is a concern of the
people who signed the petition. He wondered if the City is
getting ahead of itself on abandoning the property. He suggested
putting in the swale and then abandoning it.
Councilman Hatfield suggested abandoning it and then condemn the
railroad property. He was informed that would be difficult.
Councilman Mitchum questioned why Mr. Howard needs the thirty
feet. He explained it gives them a better setback and better
access in from Park Avenue into the site.
Councilman Mitchum stated Councilman Hays' suggestion may not be
too far fetched if they built a retention area in there, if you
had this abandoned with the agreement that they need setback
requirements we could still build our swale and retain it as a
right-of-way could we not. The property would legally be theirs
but we would retain it as a right-of-way.
City Manager McMahon explained they would have to record it as
part of the abandonment. He asked if Mr. Howard's client would
have a problem with putting the swale in and retain a maintenance
easement for that swale. Mr. Howard stated he does not feel they
are at a point where they could answer that tonight. He asked
for time to study the possibility.
Mayor Hayman asked how they resolve the issue, do they ask the
petitioner to get with FEe and try and feel them out on what they
would do with their fifteen feet or does the City do it.
City Attorney storey spoke on her attempt to contact Mr. Aceball
from FEC but he was not available.
Mr. Karet questioned City Attorney storey regarding mechanics in
reference to the suggestion made by Councilman Hays. He asked if
we were to not record the abandonment it would have no affect
correct? city Attorney storey informed him that is correct.
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Mr. Karet stated if they were to put in the swale ahead of time,
if FEC didn't want to accept, we simply wouldn't record it and we
would retain that property with the swale on it. He asked if
that is correct.
City Attorney storey stated if FEC was not amenable to granting
the City an easement and if that was one of the conditions of the
abandonment, then she would be suggesting if Council determines
to abandon it would be with the conditions that both property
owners would be granted an easement and if those are never
forthcoming the conditions aren't satisfied and we simply don't
have an abandonment.
Mr. Howard further answered Councilman Mitchum's question on why
they want the thirty feet. He stated there is a gravel bed for
siding there which would make it very advantageous for that site
and if a ditch were to be put in there it would just wipe out the
siding.
Mr. Howard stated the only way this abandonment would be
considered is if his client did grant some type of an easement.
Councilman Mitchum stated in this situation, he feels it is his
job to do what is best for the City. He feels it is their job to
maximize the benefits to the citizens of Edgewater. He suggested
they go back and take another look at this.
City Manager McMahon asked if Mr. Howard had a problem with
Council tabling this. Mr. Howard feels both parties are going to
need more time to review the alternatives.
Councilman Hays feels it is important to address the concerns of
the people who have petitioned their concerns. We need to be
sure the neighbors are satisfied with that.
Mayor Hayman expressed his concerns on this matter. He feels
this needs to be continued to another time. He stated they have
to meet their needs to accommodate the stormwater needs for that
segment of the city. He feels they need to get a feel of FEC.
Mayor Hayman closed the public hearing.
Councilman Hays made a motion to continue this request to the
April 3rd meeting, second by Councilwoman Martin. The motion
CARRIED 5-0.
B. Ord. 95-0-01 Comprehensive Plan Amendment
Mr. Karet presented the background for both Ord. 95-0-01 and 95-
0-02.
Mayor Hayman read Ord. 95-0-01.
Councilman Hatfield made a motion to approve Ord. 95-0-01, second
by Councilman Hays. The motion CARRIED 5-0.
C. Ord. 95-0-02 Rezoninq land located at 1229 Manqo Tree Drive
Mayor Hayman read Ord. 95-0-02.
Councilwoman Martin made a motion to approve Ord. 95-0-02, second
by Councilman Hatfield. The motion CARRIED 5-0.
There was a five-minute recess at this time.
CONSENT AGENDA
There were no items to be discussed on the consent agenda.
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OTHER BUSINESS
A. Attornev John Horan status report re: S & E
Contractors/capital improvements proqram
Attorney Horan explained he was retained by the city as special
counsel to assist City Attorney storey and City staff concerning
matters arising out of the pavement failures occurring in the
Florida Shores Subdivision and also potential claims that these
particular failures were caused by the contractor and caused by
the designer.
Attorney Horan presented the background regarding the Florida
Shores Capital Improvement Project. He explained the project was
a four phase horizontal construction project that was designed to
convert those residential areas from septic tank to City sewer
and to upgrade the underground utility piping, road paving, and
drainage in Florida Shores.
Attorney Horan commented on the plans and specifications for the
project.
Attorney Horan stated S & E Contractors won the contracts on
Phases II, III, and IV as the lowest bidder on each of the
phases. He stated Phase I was completed by a different
contractor without any substantial problems. He stated DRMP was
the design engineer for all four phases and provided all of the
design documents which depicted the work and specified the types
of materials and requirements for the project. DRMP did not
provide project representative services under the contracts. The
City was responsible for providing resident project
representative services and the City was responsible for
providing supervision of the project representative by a
professional engineer. The City was also responsible for
providing the testing laboratory services. Universal Engineering
was the city's testing lab, however, Universal was providing
periodic testing only and not continuous control of the
contractor's work.
Attorney Horan stated the duties provide a roadway and all of its
components sufficient to meet the specifications of the design
work was solely the contractors. He clarified the duty to meet
the design specifications was the contractors and this duty was
not excused nor relieved under the contract documents.
Attorney Horan stated he has concluded that under the contract
documents the pavement failures the City is experiencing in
Phases II, III, and IV are the responsibility of the contractor
under the contracts and should be fixed by the contractor. If
the contractor refuses to fix these particular areas, the City
under the contract documents has the right to give the contractor
notice and to back charge the contractor for the reasonable cost
of repairing those failures and the city has the right to retain
a sufficient amount of money under the contracts to cover these
reasonable costs. The City is holding at this time approximately
$500,000 on these three contracts.
Attorney Horan stated in reaching this conclusion, he has been
forced to review and analyze a great deal of material, most of it
uncovered by the contractor from the City's own records. He
stated large portions of this material seems to suffer in terms
of the correspondence over a period of time.
Attorney Horan stated the contractor just needs to come back and
fix the roads and the City then needs to pay the contractor for
its work. The City is not interested nor should the city be
interested in the contractors money. It only wants what it paid
for which would be the roads which were supposed to be built
according to the specifications of the contract.
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Attorney Horan stated when he was first retained by City staff,
the largest risk and danger facing the City at that time was the
contractor's contention and indications in documents that the
pavement failures were inevitable because the design parameters
provided by the Engineer were so inadequate the City could expect
all of these roads to fail in short order because of the lack of
design. If those were the facts then the City would of course
have a claim against the Engineer for damages far in excess of
the amounts the City is presently holding under these particular
contracts. He stated he has not found sufficient evidence to
warrant the City of bringing such a claim against the Engineer at
this time.
Attorney Horan stated the most important thing is none of those
particular design problems appear to be causely related to what
is occurring right now in terms of the pavement failures that the
City is experiencing. The pavement failures identified on the
project all appear to be causely linked primarily to a problem of
either workmanship, quality control or problems with the quality
of the base material that was provided. In each of the areas of
failure, there is at least one specific identifiable failure in
the contract of workmanship. In many of these areas we have
tested, for example as little as 4 1/2" of base material was
provided. The specs calls for 8". In others, the backfill in
the trench provided by the contractor to place the pipe does not
meet the compaction requirement. He stated these are problems
that were experienced by the contractor. The contractor is
responsible for meeting that spec.
Attorney Horan stated it would appear that the pavement failures
that are being experienced at the present time are in fact
isolated and can be remedied relatively easy. However, other
isolated problems may continue to occur over time especially
related to places where the contractor has neglected to provide
appropriate compaction backfill in the trench area.
Attorney Horan stated accordingly it would be his recommendation
to the City to pay the contractor on the outstanding applications
but that after appropriate notice withhold a sufficient amount of
money to cover the reasonable cost of repairing the areas that
have been identified to the contractor and if the contractor
refuses to fix those particular areas that the City utilize those
funds to perform the fix and the sooner the better. The longer
these areas are exposed to the elements the greater the cost of
the fix.
Attorney Horan stated he has observed that there has been a
little too much high drama that has been interjected into this
situation. He stated his investigation into this matter has
disclosed that the contracting firm of S & E Contractors is in
fact a fine firm which historically has performed many jobs
successfully.
Attorney Horan stated DRMP is a fine engineering firm and he is
sure both firms want to put the matter behind them.
Attorney Horan stated he has limited his review on this matter to
the pavement failures and the City's rights and remedies
concerning those particular failures. During the course of the
meetings with the Contractor he has learned that the Contractor
has threatened to file suit against the city concerning the right
to recover large sums for claims unrelated to these pavement
failures.
Attorney Horan stated given the gravity of such a threat it would
probably be prudent for the City to resolve this dispute in such
a manner to resolve any particular pending claim that might be
out there.
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Mayor Hayman asked Attorney Horan to go back to his
recommendation again with respect to payment.
Attorney Horan stated the recommendation he would make is that
you authorize the City Attorney to draft the appropriate notice
letter to the Contractor with regards to performing the repairs
and with regards under the contract to notice that we are going
to pursue the repairs and that with regards to the amount of
money that should be withheld that a reasonable amount of money
be withheld to cover the cost of the repairs if in fact the
contractor does not wish to proceed with it. with regards to the
rest of it, payments can be made on outstanding payment
applications.
Mayor Hayman asked how they determine what we pay and what we
retain. Attorney Horan stated a reasonable amount is something
that can be determined by the city Engineer, City Manager and
City staff.
Attorney Horan stated the City Engineer has done an engineering
estimate of how much it will cost to fix those particular areas
and it is well within the amount the City is holding right now.
Mayor Hayman stated earlier Attorney Horan had determined based
on the evidence he found there was not a design flaw or fault.
Attorney Horan stated there are some flaws he saw in the design
specifications but they are not causely related to the problem
that are out there right now.
Attorney Horan commented on the road base. He stated the areas
where the City is experiencing some problems are related to
quality control problems.
Councilman Hays asked if enough research has been done on the
roads so that when this is complete we won't have roads caving in
or find new problems later on. Attorney Horan stated he doesn't
think enough research can be done to do that.
Attorney Horan commented on the areas that have been tested in
regards to compaction of the backfill trench.
Councilman Hays stated if the design called for 8" and there is
4" and just because we are not having a problem, shouldn't that
still be addressed and corrected. He expressed concern with the
time factor on getting this done before it gets worse. He feels
there would be some wisdom to that.
City Engineer Fegley stated according to the comments he has
received, yesterday. He commented on quality control during
construction.
Mr. Fegley stated as far as giving the contractor ample notice,
city Attorney storey and himself will review the contract
documents and according to the ACC and general conditions to see
what an appropriate time frame is to give that notice and they
will manuscript that letter and proceed with fair bids to correct
the work that is not done by the contractor. He stated hopefully
that will be done between two and four months.
Councilman Hays stated he would like to see it done faster than
that. He stated he hoped S & E would decide to move off center
and decide to work with the city. If not, he is prepared for
staff to go ahead and advertise this because the problem needs to
be corrected.
Councilman Mitchum questioned if the 300 foot testing is done on
a random basis daily or would the contractor know exactly where
the test was going to be. Mr. Fegley informed him that was done
on a random basis.
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councilman Mitchum commented on Attorney Horan's observation that
Phase I was done by a different contractor but to the same specs.
Mayor Hayman presented a summary of where they are at up to this
point.
George Spofford, Executive Vice President, S & E Contractors,
stated they disagree with a lot of what they have heard tonight.
From day one, they said if there is a construction problem out
there, which they are responsible for, they would take care of
it. The information they have had access to is the case that is
not a constructability problem. The problems they did identify
have been taken care of.
Mr. Spofford stated from day one they have been saying pay the
money you owe us and we will be more than happy to come out here
and help the City solve the problems. He stated he doesn't know
what amount of money is being contemplated being paid to them,
what portion of the $500,000 plus. We have asked Mr. Horan to
give us access to the reports upon which he is basing his
opinion. If he has a valid basis to these opinions, let S & E
consider it. We have shared with you what we have, let's see
what you have so we can make an informed decision. He stated the
response they got back was no, that is Mr. Horan's information
and the only way to obtain it is if there is litigation. Mr.
Horan was hired as a mediator, one who can avoid litigation.
Mr. Spofford again asked to see the reports. He stated perhaps
PSI has made an error. Perhaps they are in error, but if the
only way they can get that is through litigation, it makes no
sense to S & E that that is the only way to obtain the
information. He thinks the reports are in error and perhaps that
is the only way they can get it. He stated he would like to know
the basis for his opinions. He professed being a mediator. He
is a fine lawyer, but he said by his own admission, that he is
not a contractor or a designer and he has to get someone else to
educate him on these things.
Mr. Spofford stated Mr. Horan stated Mr. Fegley has identified
the areas to be fixed. He asked what they are talking about.
Mayor Hayman stated S & E is asking the City to make available to
them the basis for which Mr. Horan has developed his conclusion.
He stated the other thing S & E is looking for is they would like
a more definitive breakdown of the dollar amount that Mr. Horan's
recommendation would represent that they would give them up front
and the amount of money they would withhold from the total
amount. He asked Mr. Spofford if that was correct. Mr. Spofford
informed him it was.
Mayor Hayman stated with respect to this request, what are
Council's feelings.
Councilman Mitchum commented on getting more flies with honey.
He stated in both of S & E's encounters with the Council and in
letter form, their honey has been to threaten to sue the City of
Edgewater. He stated he never seemed to get an indication from
Mr. Spofford that there was any willingness to budge on this
issue. As a matter of fact, your comments ended the first
meeting with Council that if they had to go to court that is
exactly what he would do. He stated that is not a threat to him.
His duty is to represent the citizens of Edgewater in the best
manner possible and if you feel you need to go to court then we
will go to court. I don't want to do that, I'd like to get this
straightened out.
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Councilman Mitchum stated he thinks Mr. Horan has a valid point.
He would like to hear what seems like a legitimate request that
he be presented with that. He stated it seems like a valid
request.
Councilman Mitchum stated he wants to go about this the easiest,
best way but he does not intend to be backed into a corner and he
does not intend to be threatened.
Attorney Horan stated there is the attorney-client privilege that
protects communication between an attorney and a client and vice
versa. He spoke about a work product privilege which means that
an attorney's mental impressions, the information an attorney
gathers under threat of litigation or when a dispute has arisen,
those particular materials are considered part of the attorney-
client privilege and therefore are not discoverable in
litigation. Mr. Spofford is an attorney and he well knows that
he would not be able to get this information in a court of law.
If he files for litigation, then he will have Mr. Horan's mental
impressions of his consultant which is the reason why he was the
one who got the consultant. He stated Mr. Spofford is trying to
get through the back door what he can't get through the front
door in a court of law.
Attorney Horan stated under no circumstances would he advise the
City as his client to release the materials he has that the City
is going to pay for. He stated if Mr. Spofford wants to sign a
full release and promise to never sue that is fine, he will let
him look at whatever he wants. Mr. Spofford well knows that that
particular material is protected under the work product
privilege. If those particular experts go ahead and testify at
trial their reports are discoverable but I am not going to go out
and get somebody else to consult with me and basically ruin the
value of what you have contracted for.
Mr. Spofford stated going back again to the purpose for Mr. Horan
being brought on board. If he is here to solve this problem,
rather than posture his case for litigation, if he is confident
with the information and it is the truth and it supports the City
position then what harm is there in showing it to them to
convince them before litigation ensues that S & E is wrong. He
stated they are not after Mr. Horan's mental impressions. All
they are looking for is the data upon which he based his opinion.
If the city wants to resolve this, the City has the authority and
ability to waive any privilege that he might be bringing up. If
you think the information that has been presented to Mr. Horan
and staff is valid and supports the City's position, then the
City can tell Mr. Horan that they are willing to take the chance
that S & E may sue the city.
Mr. Spofford explained all they have access to is information
they have corne up with. He stated Council has the ability to
tell their lawyer what to do.
Councilman Hays commented on comments from Mr. Spofford regarding
data that he needs. He stated if he understood Mr. Fegley
clearly, months ago S & E was given a memo outlining specifically
what the problems were and what the scope of the work is that
needs to be redone.
Councilman Hays stated the dispute is not whether or not there is
a problem. He agreed with Mr. Horan that the City needs to
protect their own interest on this matter.
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Councilman Hays commented on S & E coming to the City originally
in an honest effort to fix the problems. He said they never did
that. He never saw that demonstrated. He (Mr. Spofford) stated
you give us the money you owe us and then we will talk about it.
He (Councilman Hays) stated once that money leaves the City,
there are no guarantees anything is ever going to be fixed unless
its fixed at the taxpayers expense. He feels it is their
responsibility to make sure that this is done properly and the
burden is not put back on the taxpayers.
Councilman Hays suggested going along with the recommendations
that were made and give some type of notice that if S & E is not
willing to come and take care of the scope of the work, then we
will put it out for bid and have somebody else come and do it.
Mr. Spofford stated there may be a misunderstanding about what
has been provided by S & E. We received a laundry list of
addresses and locations of problems. He stated there is no
identification of what is causing the problems.
Councilman Hays stated that if Mr. Spofford feels that S & E
doesn't really understand what the City is asking of them, he
would attempt one more time to give them the street names between
blocks. The work is unsatisfactory, put it to specs. He doesn't
feel they need to spend a bunch of time and engineering to go
back and reengineer a problem. If the work is not satisfactory,
come make it right.
Councilman Hays stated his recommendation to staff is just one
more time to make sure the recommendations we are making and
where the problem areas are identified and give them an
opportunity. If S & E wants to send their people out to do their
samples to make sure there is a problem, then show us.
Councilman Hays commented on putting S & E on notice and give
them a chance to correct the problems. If they don't, we will
find someone that will. If they have to litigate it, that is
what they will have to do.
Mr. Spofford stated Councilman Hays made an informal
representation. You don't have any problem with S & E coming out
and doing their own studies. He made the request. He asked if
they can send their own lab out here. Mayor HaYman informed him
that would be the prudent thing to do.
Mr. Horan informed Mr. Spofford (being a member of the Florida
Bar) if he would stipulate on a public record right now, you will
not seek any discovery of any materials, I will call you off and
give you the locations. He asked Mr. Spofford if he would
stipulate right now that he will not seek further information.
Mr. Spofford stated he wouldn't make any stipulations without
counsel.
Councilwoman Martin stated we should have a notation of the area
and the degree of material and work done as compared to what the
City contracted for.
Mayor HaYman stated the motion might be to direct staff to
commence with a notice letter for communications regarding
repairs per the contract to S & E Construction and do that
expeditiously.
Councilman Mitchum asked City Engineer Fegley if there is some
sort of time frame we should give them to expedite this. Mr.
Horan stated the contract provides seven days. It is a seven day
written notice.
Mr. Horan stated he believes we have already given written
notice, on several occasions, to S & E that these areas need to
be repaired and then the contract provides an additional seven
day notice before we can proceed with repairs ourselves.
As a reault of amcndmonIo made at the 4/3/95 COUIIcil
mcctin&, oorrcctions am identified in parentbcacs.
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Council Regular Meeting
March 20, 1995
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City Manager McMahon asked City Engineer Fegley how long it will
take to summarize what is necessary to incorporate that with the
letter that City Attorney storey would be sending out.
City Engineer Fegley stated he can assemble general guidelines,
specifications, criteria and material makeup of workmanship,
probably by next week. Mr. Horan stated the only thing we need
at this time, is a correctly crafted notice letter pursuant to
the contract.
City Manager McMahon asked Council to authorize the letter to be
drafted.
Councilman Hays made a motion to give S & E fourteen days to
respond either with a time table of when they want their people
to come in or no they aren't going to do it and then they will go
out for bid and find somebody that will.
Councilman Hays asked if they are given the seven days to allow
them response. Mr. Horan read from the contract, owner may after
seven days written notice to contractor correct and remedy any
such deficiency.
Mr. Horan suggested that the letter he is going to be provided by
City staff be a letter that basically says we are withholding a
certain amount of dollars on this contract because this work
needs to be done pursuant to the contract provision.
Mayor Hayman questioned if the letter will articulate the amount
of concern which is related to the amount of work that we say
needs to be done.
Mr. Horan referred to previous correspondence given to S & E by
City Engineer Fegley. He stated you can go ahead and pay on
these payment applications you just need to hold a sufficient
amount of money.
Mayor Hayman stated it is a reasonable request from S & E to know
what that amount is. He wants to be able to quantify the damage
we are really talking about.
Councilman Mitchum asked if attorney costs can be subtracted from
that. Mr. Horan stated if they do not proceed to do that yes
they can.
Councilman Hatfield asked the motion be repeated.
Councilman Hays stated the motion was to send out a letter for
the initial seven days, second by Councilman Hatfield. The
motion CARRIED 5-0.
B. utilities Director's request for lift station #2 repairs from
Assured Mechanical Services. Inc. at $2.950
Councilman Hays made a motion to approve this request, second by
Councilman Mitchum.
Mayor Hayman asked if this is budgeted 0 & M. Mr. Wadsworth
stated it is in the Wastewater Budget under Repair and
Maintenance Services. The motion CARRIED 5-0.
C. utilities Director's request to Durchase master meter for
Southern Service Area from Sunstate Meter and SUDDlv. Inc. at
$2.293.53
Councilman Hatfield made a motion to approve this request, second
by Councilwoman Martin. The motion CARRIED 5-0.
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Council Regular Meeting
March 20, 1995
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D. utilities Director's reauest to declare Western Reserve
Plannina Area Water and Wastewater Master Plan impact fee
eliaible and authorize Hartman and Associates to perform studY
for $31.568
Councilman Hays asked if the $31,568 was the only quote. Mr.
Wadsworth explained that amount has been negotiated down.
Councilman Hays made a motion to approve this request, second by
Councilwoman Martin.
Councilman Hatfield stated the sooner we get everything planned
the better our chances will be and this is one item to make that
advantageous.
The motion CARRIED 5-0.
E. utilities Director's reauest to declare Reclaimed Water
Master Plan Update impact fee eliaible and authorize Hartman and
Associates to perform Plan Update at cost not to exceed $3.178
Councilman Hays made a motion to approve this request, second by
Councilman Mitchum. The motion CARRIED 5-0.
Councilman Mitchum stated this is going to sound contradictory
from before when they didn't let the gentleman speak under
citizen comments, but he asked to move him up due to reports
coming up.
I. Halifax Used Cars' reauest to hold on site tent sale at 1207
S. Ridaewood on March 24. 25. 26
Councilman Hays stated he has no problem with this but he feels
they should come before Council each time they hold a tent sale.
Councilman Mitchum stated if it is a situation where it can be on
the consent agenda, that might speed these things up. If there
was a problem, it could be placed under other business. If
Council has a problem, it can be taken off the consent agenda.
Councilman Mitchum made a motion to approve, second by Councilman
Hays. The motion CARRIED 5-0.
F. Report on Miami International Boat Show bv Economic
Development Board Chairman Philip Fona and Chamber of Commerce
Executive Vice President Steve Dennis
Philip Fong, Chairman, Economic Development Board, introduced
Steve Dennis, Executive Vice Chairman, Chamber of Commerce.
Mr. Dennis commented on operation Quick Start and it being
included in the Business Climate and supplier Linkage Study. He
commented on the purpose of the trip to the Miami International
Boat Show.
Mayor HaYman commented on the two phase program through Right and
Associates. He spoke about coming back to Council with a
presentation on the tourism part of the program.
Mr. Dennis commented on most of the businesses that relocate to
the area have either visited someone in the area, have been a
tourist in the area or spent a vacation here. They rarely drop
into the community uninformed about the area.
Mayor HaYman stated Mr. Fong and the Economic Development Board
are proceeding on the survey for sites available for industry to
industrial development and they are developing that list similar
to what Port Orange recently did which was an important part of
networking with tourists who come in through the Chamber.
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Council Regular Meeting
March 20, 1995
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Mayor Hayman informed Mr. Fong he needs to get back to Council on
tourism because he is interested in hearing what it is. He asked
for a written notice to pass out to his colleagues so they would
have an opportunity on some feedback regarding when to place it
on the agenda.
Mayor Hayman feels this is a great report and commented on the
database and asked Mr. Fong if he is going to be making action
plans for that. Mr. Fong informed Mayor Hayman they are in the
process of doing that.
Mr. Fong stated since the trip they have already received two
responses.
Mayor Hayman thanked Mr. Fong and Mr. Dennis for their hard work.
G. Appointments to Economic Development Board
11 Due to resiqnation of Richard Kowalewski. with
recommendation of Board to appoint Karl Gerwe
Councilwoman Martin made a motion to appoint Karl Gerwe, second
by Councilman Hays.
Councilman Hays questioned Mr. Gerwe residing in New Smyrna
Beach. City Attorney Storey explained the by-laws of the EDB say
resident, property owner, or work in the city. It does not say a
business owner in the city.
Councilman Mitchum questioned a recommendation being made by the
EDB to appoint Mr. Gerwe. Mr. Fong stated they reviewed the
applicants on file with the City and based on the talents and
skills they needed, Mr. Gerwe would be a tremendous asset to the
City.
The motion CARRIED 5-0.
21 Due to expiration of term of John Browninq. who
requests reappointment
21 Due to expiration of term of Scott Porta. who requests
reappointment
Councilman Mitchum made a motion to appoint John Browning.
Councilman Hatfield asked to reappoint John Browning and Scott
Porta in one motion.
Councilman Mitchum included John Browning and Scott Porta in his
motion for reappointment, second by Councilman Hays. The motion
CARRIED 5-0.
H. Library Board's recommendation to resolve issues with lease
with Volusia County and request County to expedite parkinq lot
expansion
This item was withdrawn from the agenda.
I. Halifax Used Car's request to hold on site tent sale at 1207
S. Ridqewood on March 24. 25. and 26
This item was discussed earlier on the agenda.
J. Deed from Volusia County for Manqo Tree Drive shell pit
City Manager McMahon recommended approval of the conditions that
they are receiving the property of being a reverter clause that
if we do not use it for government purposes it will revert back
to the County.
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Council Regular Meeting
March 20, 1995
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Mayor Hayman stated there was public comment from Ms. Alice
Haldeman in support of this.
Councilman Hays made a motion to approve the deed.
Councilman Hays stated he is glad to see this cooperation. He
thanked County Council and County Staff for working with Council.
He asked a letter be sent back to Mr. Kelton and County Council
thanking them for working with Council.
Councilwoman Martin asked if our local representative did some
work on this. She asked that Ms. Plaskett also be recognized.
The motion was second by Councilman Mitchum. The motion CARRIED
5-0.
GENERAL CITIZEN COMMENTS/CORRESPONDENCE
Ron Prekup, 1829 Lime Tree Drive, complained about the cost of
his water bill. He commented about the highest cost of his water
bill when he lived in Miami was $44 which included water, sewer
and stormwater and that was based on 10,000 gallons.
Mr. Prekup spoke about his water bill last month being $120.
Mr. Prekup commented on the 10% late charge or penalty for the
water bills. He also commented on the late charge being added
after twenty days.
Mr. Prekup stated when this is addressed, he would like to see
the twenty days changed to thirty days and do away with a late
fee but have a disconnect and reconnect fee.
Mr. Prekup spoke about a comment made by one of the
Councilmembers who stated we supply you with the water, you do
what you want with it.
Mr. Prekup spoke about using the toilet two or three times before
they flush it and they are also cutting back on laundry.
Mr. Prekup asked Council to take that into consideration.
Mr. Prekup feels a $100 water bill is ridiculous.
Mr. Prekup stated with Edgewater the more water you use, you get
penalized for the higher amount of uses. He stated he has six
people in his household and feels each person should be allowed
to use 2,000 and still pay the same amount that a household of
one would pay.
Mayor Hayman feels Council and staff need to relook at the water
rate schedule to see if it is equitable and fair. He feels it is
not fair to large families.
Mayor Hayman asked for Council's approval to get with Mr.
McMahon, Mr. Wadsworth and Quentin Hampton to look at different
options to see what can be done to rectify the problem. He
stated he is looking for equity. He feels this needs to be
revisited.
Councilman Hays spoke about the conservation of water being an
issue with him when they discussed this earlier. He stated part
of his justification for going along with the tiered scale was to
try and encourage conservation. He feels they need to look the
number of people per household.
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Council Regular Meeting
March 20, 1995
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City Manager McMahon commented on the 10% penalty. He stated he
would like to take a look at whether or not this can be reduced.
He has no problems with adjusting the water rates to make it more
comfortable for the residents as long as they cover their debt
service obligations.
Mayor HaYman explained why he is striving for equity.
-Councilman Hays suggested looking at late charges and deposits.
city Manager McMahon stated he does not agree with the telephone
company who charges 1 1/2% late rate on an advanced bill.
Mayor HaYman asked for Council's and staff's support in looking
at this. Councilman Hatfield asked if they needed a motion on
that.
City Manager McMahon stated he could be given direction and he
would follow through with Mr. Wadsworth.
Councilman Hatfield suggested reviewing at this one more time.
Councilman Hays commented on rental property and water. He
stated part of the problem for the person who is renting the
property is that if they have a bad tenant who does not pay their
water bill, they can get stuck with a couple months of water
bills when the tenants leave because we bill the property owner
and not the renter. He stated they may want to look at having
the renter put up the deposit and bill the renter instead of the
property owner and make sure the deposit is large enough to cover
a month or so outstanding bill.
Councilman Hays asked consideration for if a property owner rents
a piece of property and the renter is not paying the water bill
and the property owners picks up the phone and calls the City to
tell them to turn off the water, he would expect the city to turn
the water off.
Councilman Mitchum stated when you get into the rental business
you know those things.
Mayor HaYman asked City Attorney storey to report back on this.
Councilwoman Martin stated on the late charges, she feels 10% is
pretty absurd and they should go down to 1 or 1 1/2%.
City Manager McMahon commented on motivation being an issue. He
stated he doesn't have a problem with using 5% instead of 10%.
He stated consciously they have to be aware of the collection
rate. He stated he would come back to Council with a report.
Councilman Mitchum commented on abandonment and land clearing
costs. City Manager McMahon stated his effort is going to be to
try to make it rational and reasonably responsible for the person
to make economic development in that area.
Mr. Prekup commented on rental properties paying different rates.
Mayor HaYman explained why the bill is in the property owners
name and not the renters name.
ANY OTHER COMMENTS
city Attornev
City Attorney storey had nothing at this time.
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Council Regular Meeting
March 20, 1995
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citv Manaqer
City Manager McMahon advised Council that they should have the
Dept. Monthly Report. He stated they are intending to continue
that on a regular basis.
city Manager McMahon stated city Attorney storey has been able to
work out the details for the easement for Riverwalk. The
gentleman is due in tomorrow morning to sign the easement that
will allow us to take care of the dangerous area.
citv Clerk
City Clerk Wadsworth had nothing at this time.
Councilman Hatfield
Councilman Hatfield commented on putting more of the general
items on the consent agenda. If there is a problem with it, they
can always take it off the consent agenda and discuss it.
ADJOURNMENT
There being no further business to discuss, Councilwoman Martin
made a motion to adjourn, second by Councilman Hays. The meeting
adjourned at 10:00 p.m.
Minutes submitted by:
Lisa Kruckmeyer
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Council Regular Meeting
March 20, 1995