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01-23-1995 - Regular " . '- ~' \. CITY COUNCIL OF EDGEWATER REGULAR MEETING JANUARY 23, 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 7:08 p.m. Present Present Present Present INVOCATION, PLEDGE OF ALLEGIANCE The invocation was delivered by Reverend Roger Miracle, Friendship Baptist Church. There was a pledge of allegiance to the Flag. Mayor Hayman asked that Items 8A & 8B be reversed. There was no objection from Council. Proclamations presented by Mayor A. Police Employee of the Year 1994 Mayor Hayman called on Chief Schumaker to give remarks regarding the Police Employee of the Year 1994. The people considered for the award were Diana Floyd, Danny Richardson, Amy Stewart, Mark Stone, and Robert Hazelwood. Police Chief Schumaker commented on the tragedies in the Police Department during 1994. Mayor Hayman read the proclamation announcing the Police Employee of the Year for 1994 as being Rev. Roger Miracle. A plaque was presented to Rev. Miracle by Mr. Houghton from the American Legion Post 285. Rev. Miracle expressed his thanks for this award. B. Fire and Rescue Employee of the Year 1994 Mayor Hayman called on Chief Vola to give remarks regarding the Fire and Rescue Employee of the Year 1994. He spoke about how the levels of service have increased because of the efforts of Jill Landreville. Mayor Hayman read the proclamation announcing the Fire and Rescue Employee of the Year 1994 as being Jill Landreville. A plaque was presented to Ms. Landreville by Mr. Houghton from the American Legion Post 285. Mayor Hayman spoke about the animation club students at Edgewater Elementary winning international recognition for their efforts on an animated film they wrote. '-" "wtII , Mayor Hayman recognized the following teachers and counselors: Nancy Brown, Cathy VanLancker, Lillian Welenc, and Earnest Tucker, Principal of the School. Earnest Tucker, Principal of Edgewater Elementary, recognized Steve Hardock who was behind the whole thing and got them started. Mr. Tucker recognized the following students of the Animation Club for the wonderful job they did with their animated video: Jamie England, Zachary Fanelli, Holly Couchman, Brandon Scarborough, Ashley Steele, Chelsea Wood, Sean Wagner, Tiffany Yeomans, Ian Anderson, Tessa Hardock, Ashley Hatfield, Robert Jackson, Hans VanLancker, and Tina Lane. Mr. Hardock explained the ins and outs of the competition. Mr. Hardock spoke about having a banquet to help the children celebrate their achievement. He spoke about placing signs around the City. The video made by the students, "A Fish Out of Water," was shown to the Council. Mr. Tucker thanked Council for allowing them the time to be on the agenda and he stated any consideration would be appreciated. Councilman Hatfield stated at the last meeting, a decision was made to have a sign erected at each one of the city limits. He stated they are going to let the kids design their sign. Councilman Hays made a motion to donate $500 for the banquet for the children, second by Councilman Mitchum. The motion CARRIED 5-0. Mr. Tucker once again thanked the Mayor and the Council for their generous offer. APPROVAL OF MINUTES There were no minutes to be approved. CITIZEN COMMENTS REGARDING AGENDA ITEMS ONLY (Other than Dublic hearinqs) George Spofford, Executive Vice President, S & E Contractors, made a presentation at this time. This item was done verbatim by the City Attorney's office. (Exhibit #1) CITY COUNCIL REPORTS Mavor Havman Mayor Hayman spoke about correspondence he received from the Volusia Growth Management Commission regarding Mr. Spengler being unable to continue service. Mayor Hayman asked Mr. Karet for help from the LDRA in nominating someone to serve on the VGMC. Councilman Hatfield Councilman Hatfield commented on paperwork that was presented to the Council from Parks and Recreation Director Jack Corder regarding the lot purchase for the fund raiser Tour of Home. Mr. Corder stated he spoke to a real estate company and they have looked at lots and they found a lot that they particularly like and they have negotiated a price of $10,000 plus closing costs and payment of the sewer assessment. Page -2- Council Regular Meeting January 23, 1995 ~ ~ Mayor Hayman asked if this property was located at the west end of Indian River Blvd and Mr. Corder informed him it was. Councilman Hatfield made a motion to purchase this property subject to certification and verification there are no encumbrances on the title, second by Councilman Mitchum. Councilman Hays questioned whether or not the sewer assessment on this property can be waived. City Manager McMahon informed him the assessment must be paid. City Manager McMahon asked Council to reconsider the cost of the tickets from $20 to $10. City Attorney storey stated subject to verification that there are no encumbrances on the title, she requested Council make this sale conditioned on that. The motion CARRIED 5-0. Councilman Hays made a motion to lower the cost of the tickets for the Tour of Homes from $20 to $10, second by Councilman Mitchum. The motion CARRIED 5-0. Councilwoman Martin Councilwoman Martin had nothing at this time. Councilman Hays Councilman Hays passed information called "Pay As You Throw Refuse Plan" to city Clerk Wadsworth and asked to have copies made for the Council for their consideration before the upcoming budget review. Councilman Hays asked to have an update on what is going on with the new recording system at the next meeting. Councilman Mitchum Councilman Mitchum had nothing at this time. PUBLIC HEARINGS. ORDINANCES AND RESOLUTIONS There were no public hearings, ordinances or resolutions to be discussed. CONSENT AGENDA There were no items to be discussed on the consent agenda. OTHER BUSINESS A. Final pay reauest for Phases 3 & 4 of Florida Shores Capital Improvement proiect This item was done verbatim and is attached as Exhibit #1. Councilman Hays made a motion to approve and process the pay request through the state to receive reimbursement of SRF funds under the condition such funds will not be disbursed to S & E Contractors, Inc. until S & E agrees to, or a mechanism is established, to satisfactorily correct premature asphaltic pavement failures, second by Councilwoman Martin. The motion CARRIED 5-0. Page -3- Council Regular Meeting January 23, 1995 '-" ..""., Councilman Hays made a motion to retain the firm of Foley and Lardner to represent the City's interest in this matter, second by Councilwoman Martin. The motion CARRIED 5-0. Councilman Mitchum made a motion to get direction from staff on what other problems exist, second by Councilman Hatfield. The motion CARRIED 5-0. There was a five-minute recess at this time. B. Dick Clark to hiqhliqht findinqs and make recommendations on Business Climate Analysis and Natural Linkaqe study Mayor Hayman presented the background on this request. Philip Fong, Chairman, Economic Development Board, commented on the interviews that have been held with Mr. Clark. Dick Clark, Right Associates, made a presentation regarding the Business Climate Analysis and Natural Linkage study. He explained why he feels this is a positive report. He went over the summary of recommendations. Mr. Fong stated it has been an encouraging experience to listen to the companies that are ready to expand that speak highly of the City. Mayor Hayman presented an overview and executive summation of the presentation made by Mr. Clark. Councilman Hatfield made a motion to accept this report, second by Councilwoman Martin. Councilman Hatfield thanked Mr. Clark for his time and effort on this report. The motion CARRIED 5-0. C. Confirm appointment of Glenn Barnhill to Board of Trustees for Police Retirement Plan (fifth member chosen by Board members) Councilwoman Martin made a motion to confirm the appointment of Glenn Barnhill to the Board of Trustees for Police Retirement Plan, second by Councilman Hays. The motion CARRIED 5-0. D. Confirm ap~ointment of Nancy Williams to Board of Trustees for Firefiqhters Pension Plan (fifth member chosen by Board members) Councilman Hays made a motion to confirm the appointment of Nancy Williams to the Board of Trustees for Firefighters Pension Plan, second by Councilman Hatfield. The motion CARRIED 5-0. E. Cancellinq or reschedulinq reqular meetinq of Monday. Feb. 20. 1995. due to Presidents Day holiday city Manager McMahon spoke about the topic of the February 6, 1995 meeting being the road improvement program. Councilman Mitchum made a motion to cancel the February 20, 1995 meeting and call a special meeting if it is needed, second by Councilman Hatfield. The motion CARRIED 5-0. F. Discussion of process for implementation of standard unsafe buildinq abatement code Mayor Hayman referred to the Land Development Regulations and one element of that being the legal mechanism to address derelict buildings. Page -4- Council Regular Meeting January 23, 1995 ~ ..""" Mark Karet, Director of Community Development, spoke about the issue of community appearance. He spoke about the process that staff has been working on to respond to since Councilmembers have expressed an interest in seeing some of the derelict buildings properly maintained or removed. Mr. Karet explained Chapter 9 of the Land Development Regulations entitled Construction and Technical Codes section 901J adopts the standard unsafe building abatement code. Mr. Karet explained the process in order to implement the standard unsafe building abatement code. There was a discussion regarding the Construction Regulation Board. Mayor HaYman stated the people that are currently serving on the Building Trades Regulatory and Appeals Board meet the qualifications of that board. He stated that board has not been changed although there is a need to redesign and redirect the board based on the new criteria. Mr. Karet explained the technical aspects of what has occurred. There was a discussion regarding the Building Trades Regulatory and Appeals Board being replaced by the Construction Regulation Board. Mayor HaYman stated the BTRAB have asked numerous times to speak to the Council about this transition and he feels the Council needs to do that. He expressed concern about the transition of the BTRAB being done with all due respect and dignity to the people who have served this City so well for so long. There was a discussion regarding the people serving on the BTRAB being able to reapply to serve on the Construction Regulation Board. City Manager McMahon recommended the Council with urgency conduct whatever meetings they believe are beneficial between the Council and the BTRAB and extend an invitation to have them serve on the new board simply by indicating an interest in doing that. He stated the Council needs to have an appeals board established quickly. He urged Council to schedule this in the very near future. Councilman Hays commented on the members of the CRB being residents of the City unless no qualified candidate complies. He feels it is important for the Council to decide if that is the way they want that. He feels it is important to have residents involved in this and he asked that the section unless no qualified candidate complies be struck out. Mr. Karet elaborated on the reason why unless no qualified candidate complies is stated. Councilman Hays made a motion to implement the standard unsafe building abatement code, second by Councilwoman Martin. Councilman Hatfield asked the time frame on the development of the Construction Regulation Board. Mr. Karet stated he hoped to have enough applications at the next meeting. Councilman Hatfield asked about the time table on the zone by zone enforcement. Mr. Karet stated they want to have the board in place and essentially they can begin that week but they won't hear any cases right away. Page -5- Council Regular Meeting January 23, 1995 ~ ,."", City Attorney storey explained one of the reasons Mr. Karet recommended the zone concept is because we do not need to be targeting particular buildings. She stated we need to have a systematic approach to the process. Councilman Hays commented on the image of the City and how the City looks and he commented on some of the buildings along u.s. #1. City Attorney Storey explained Mark has structured his zones to accommodate that. The motion CARRIED 5-0. G. Status report regardinq vacation of allevwav and portion of Guava Drive. Ord. No. 88-0-29 City Attorney Storey presented a background and status report on this vacation. She spoke about rescinding this vacation. She explained she and Mr. Karet are attempting to pursue some potential compromises. Jackie Levine, 1818 Fern Palm Drive, stated she understands there are some other innocent people that got involved but at the time when the City gave this land free to Perry Barrett it was never supposed to be used for building. It was supposed to be used for retention of the site plan that was originally passed for Perry Barrett's store. Mr. Karet stated he has spoken to Helen Lovell who represents the property owner along with Mr. Boyd DeLoach. He stated they have discussed some type of compromise in terms of an easement over a portion of Lot 500 and they are considering it. There was a discussion regarding Mr. Barrett's letter. Councilman Hays stated if we don't get the right-of-way across the back of that property in the proposed alleyway, then the only other option we have is to take it back to where it originally was before the agreement with Mr. Barrett. Mr. Karet explained the city's options. Bill Riggle, owner of the property to the west of the properties being discussed, commented on having five duplexes adjacent to the piece of property. He spoke about coming before Council back in 1989 regarding special exceptions for development of that property and it was granted a special exception to develop that property to Mr. Barrett. He expressed concern with the traffic in and out of that property. Mayor Hayman explained where they are at this point. City Attorney Storey stated the Council could make the ultimate decision to rescind that vacation and the mechanism for consideration of that would have to be a public hearing. She explained staff can try to work with all of the affected parties and try to come to a compromise and if ultimately they can not, then rescinding the vacation could be a last resort. Ms. Levine stated when the site plan was approved for the Jiffy Store, Lot 500 was part of that parcel. She stated that is no longer in existence. She stated she doesn't understand how Kenny is going on with his plan when the site plan has been changed. Mr. Karet elaborated on if they were to declare the site plan null and void. Councilman Mitchum asked how the Walsh Trust wound up with this property. Mr. Karet explained there are two successors in titleship to Mr. Barrett, Sides and Mr. Hamel. When Mr. Hamel died, Walsh ended up with it. Page -6- Council Regular Meeting January 23, 1995 -- ..." Councilman Mitchum feels a compromise can be accomplished. Councilwoman Martin asked for a map with the property on it. city Attorney storey informed her a map was included the last time this was discussed. Councilman Hays feels we need to notify the parties involved and invite them to a meeting with staff to resolve this and if there is no response, Council should have a couple of options. He feels they owe something to the people who have been trying to resolve this and work this out. Mayor Hayman expressed concern for the senior citizens who reside in the area being discussed. Mr. Riggle feels any time changes are made to a site plan, it should be required the site plan be reapplied for. Mayor Hayman stated this would be continued until staff comes back with more detailed information. GENERAL CITIZEN COMMENTS/CORRESPONDENCE Judith Lichter, 826 Navigators Way, commented about the general appearance of Edgewater. She feels zoning situations need to be addressed. Ms. Lichter commented about beautification awards. Ms. Lichter spoke about a small parcel of land at Indian River Blvd. and u.s. #1 on the southwest side. She spoke about the newspaper boxes being placed on that property and the newspapers not paying Edgewater for the privilege of selling them at that location. She spoke about the bench advertising a funeral home. She feels this particular spot could be a beautiful spot. She asked Council to consider looking into this as a potential beautification focus. Doris Sanders, 1817 Edgewater Canal Road, spoke about the water line to DBCC that crosses her property. She stated she has had no word as of yet. city Attorney Storey stated she contacted the County Right-of-Way Department and when this was permitted it was determined that this is County right-of-way. She doesn't feel the City should be in a position of making a decision. She informed Mrs. Sanders she needs to contact the County. She recommended Council stay out of this issue. City Attorney Storey stated Mr. Wadsworth has recommended against allowing hookups without the payment of fees to the water line. Ms. Sanders stated two trees were removed from her property and she doesn't believe the trees were in the right-of-way. She stated she would like to know who issued the permit for them to run the water line in the first place. City Attorney Storey stated she would be happy to provide her with that information. Mario DiOrio, 1823 Evergreen Drive, commented on the roads. He feels the city is headed down the road to disaster especially if they get an inch and a quarter of road and six inches of shell mix. Mayor Hayman elaborated on Mr. DiOrio's concerns. Mr. DiOrio commented on the elderly people not being able to afford the paving. Mr. DiOrio spoke about when he had his problem with his roof, city Manager McMahon was instructed to write a letter to the regulatory board and the letter never went out. Page -7- Council Regular Meeting January 23, 1995 ~ .."" Mr. DiOrio spoke about replacing the BTRAB with the new CRB. Mr. DiOrio feels citizen comments should be earlier in the meeting. Mr. Karet addressed the matter of city Manager McMahon forwarding information to the BTRAB. He explained at that time, the BTRAB was not constituted to be a disciplinary body for the contractors. Mr. DiOrio expressed concern about why he was never told of the BTRAB not being a disciplinary body. Charles Gebelein, 1730 Umbrella Tree Drive, commented on citizen comment and citizens input. He commented about the changing of the Council allowing citizen input immediately after a presentation. Mayor Hayman elaborated on Dr. Gebelein's concerns. councilman Hays stated the Council is there because they were elected by the community to make decisions. He spoke about citizen input confusing some of the issues discussed. He agreed with the changes made to the agenda. He wants to see how this works for a while. Councilwoman Martin stated they can't ponder on everything on the agenda because it would take entirely too long. Dr. Gebelein doesn't feel changing the agenda is the solution to this problem. city Manager McMahon spoke about the availability of the agenda. Mayor Hayman commented about public involvement. Dr. Gebelein suggested the Council have an agenda regarding "simple items." Councilwoman Martin stated she doesn't find anything on the agenda that comes up simple other than the consent agenda. OFFICERS REPORTS city Attorney City Attorney storey had nothing at this time. city Manaqer City Manager McMahon had nothing at this time. Roger Harnack, News and Observer, commented about the issue of derelict buildings and the issue of public safety and children playing in some of these places. He stated he heard that having a priority list for some of these places may have some legal ramifications but he also heard that these districts were carved in order to meet some priorities and rid of some of the more obvious structures. He asked why is a random lottery process not being used rather than carving districts and prioritizing projects under the guides of carving districts. Mr. Harnack asked if this is truly an issue of public safety, why are derelict buildings in residential districts being addressed prior to a business district. Mr. Karet stated the districts that we have will include residences as well. Mayor Hayman informed Mr. Harnack there were no hidden agendas and they are trying to get rid of derelict buildings because of the obvious safety impact and the image the impact has on our City. Page -8- council Regular Meeting January 23, 1995 "-' """ CITY COUNCIL Councilman Hays Councilman Hays commented on community appearance being addressed through Code Enforcement. He asked to have this matter revisited. He asked Mr. Karet to put together his thoughts on this matter. He asked this to be brought back at one of the next couple of meetings. Councilman Hays commented about the Beach Trust commission. He questioned if it might not be appropriate for the Council to withdraw from the Beach Commission and give New Smyrna Beach our proxy vote. Councilman Hatfield stated he doesn't feel they have the authority to give someone else our proxy vote. Mayor Hayman commented about Mayor Musson's reputation on the Beach Trust commission as a person who is representing his City. There were no comments from any other Councilmembers. ADJOURNMENT There being no further business to discuss, Councilwoman Martin made a motion to adjourn, second by Councilman Hatfield. The meeting adjourned at 10:54 p.m. Minutes submitted by: Lisa Kruckmeyer Page -9- Council Regular Meeting January 23, 1995 George Spofford Mayor Spofford Mayor Agenda Item 8A: Mayor Fegley ~ ...., Exhibit fI1 City Council Meeting January 23, 1995 Citizen Comments: Executive Vice President with S&E Contractors, I don't know if you would like to hear from me now under item #4 or when we get to other business down below regarding our pay request, its ah your preference. Ladies & gentleman of the council we can defer his presentation until that time if you like, he is affiliated with the company and is one of the executives; sir if you don't mind, we would appreciate it if at that time you would Not at all, okay Thank you Other Business Final pay request for Phases 3&4 of Florida Shores Capital Improvement Project (originally listed as item #8B on agenda but moved to item #8A) ...The final pay request for phases 3&4 of the Florida Shores Capital Improvement Program we also have a speaker representing S&E Construction with us here tonight, (cough) excuse me. In your packet you have the recommendation approve and process the pay request through the State to receive reimbursement of SRF funds under condition - such funds will not be disbursed to S&E Contractors, Inc until S&E agrees to or a mechanism is established to satisfy correct premature asphaltic pavement failures. Mr. Fegley you are the staff person responsible, do you for do you have a quick presentation on this and sir you might want to remain~at the podium during the time our guest makes his presentation as well. Kyle Mayor Fegley, City Engineer. and council persons. Good evening Councilman 1 ...... ...." Hatfield I would like to talk to your daughter a couple of minutes tomorrow. I have a couple of letters I have to manuscript and use her literary skills. Hatfield For a price. Fegley Get business at hand, as you mayor may not be aware, one of the stipulations in the contract once we have received the pay request is the city must render a decision within 30 days after receipt of such pay request from the engineer. We received the final pay request for phases 3&4, the amounts respectively $187,769.17 and $252,780.97, as such the city must respond positively or negatively in some manner to S&E to make sure we fulfill our obligations. At this point in time it has been my observation that the city has realized as you probably all are aware of all the numerous phone calls. Some some pavement deficiencies particularly with the asphaltic concrete roadways and at this point in time we have not had a commitment to restore these roadways to equal or better condition as they were at substantial completion. As such, I do not believe that we are justified as a city to release these funds at this time and I think that we should retain these funds until a decision is made on who is going to restore our roadways. But also at this time I also recommend that we submit these final pay requests to the state for reimbursement from the SRF state revolving fund loan such that we do have these monies in case we have to fall back and utilize them for correction measures. At this point in time that's my recommendation. These funds would not be issued to any further parties unless they have councils blessings and at this time that is my position and I also want to expound upon any other 30mments regarding this issue. Mayor Thank you. Mr. Stoffor Fegley Spofford, George Spofford. 2 "-" ..., Mayor I'm sorry, sir it would be appropriate now if you would like to present your remarks and feelings. Spofford Thank you. Mayor Once again, kindly preface your remarks with identification of who you are and who you represent. Spofford Again, my name is George Spofford. I am executive vice president with S&E Contractors in Clearwater, Florida, and to start with I've got some information I'd like to hand to the council if that's acceptable? Mayor Yes it is. Spofford I want you to bear with m~, some of these, I didn't know how many copies to make. I think I've got enough to go around. Hays Thank you. Mayor Thank you, ah let the record reflect that S&E's representative is passing copies of a document establishing that the City of Edgewater knowingly purchased road improvements with a design service life of 1 to 3 years, ah this addresses phases 2, 3 & 4 of the capital improvements project. Spofford Is there a time limit or how much time? Mayor Sir, normally we ask during citizens comments that they be very direct and although we have a provision for three minutes what I would ask that you do is essentially this, your presentation I understand is really this ah Spofford No. Mayor Substance of it, okay? Spofford No. Mayor Then what I would like for you to do sir is, ah we are interested in what you have to say - this is not a court of law, where we is - we are proceeding with the necessary paperwork with the state as you know to have the funds from the SRF loan released to us and we are 3 "w' ..", also upon receipt of that we will proceed through our staff working with your staff to resolve these differences, we are not here to try the case, we are not here to argue ... any information you give us would be for mostly appreciated. Spofford I understand, that's that's the intent of my presentation this evening. Mayor Okay, my last guideline to you is just as directly as possible we would encourage you to just to come right to the point with an executive summary if you could for us. Spofford Absolutely, that's all I attempt to do. Mayor We would appreciate that, thank you. Spofford Really, the purpose of of my presentation tonight is to get paid. The work has been done for a long time. You have got close to a half million dollars of our money and uh we have complied with the contract and what I am doing here tonight is trying to show you that we are in the right and that we are entitled to be paid as quickly as possible. The uh to get to the crux of the matter - we built this project pursuant to the City's design. The City gave us, the City Engineer gave us the plans and specifications and thats exactly what we built for the city. The city council made a decision to buy that design. They the documents in this booklet you can see, I'll walk you through some of them, you can see where the city council, your predecessors had the option of buying a better product than what you ultimately decided to buy. There was a lot of debate back and forth ultimately you went with a product that was not going to last as long as apparently ya'll thought it would. But that was a decision that ya'll made with recommendation of the city council uh I mean the city engineer's office so that's the bottom line. That we built the project that you asked us to build. The problem you have is if we're not paid, then we are going to be in a fire fight and that's what we are trying to avoid. The problem on a construction basis that you have is that you have one of asphalt eight 4 "'-'" ...." inches of just compacted shell and then you have non stabilized subgrade. And the best analogy I can give to you, that's the design you asked for and that's exactly what we built you. The best analogy I can give you is like building a house on a foundation built on sand. If you know your Bible, you know those things don't last very long and that's exactly what you have here. You have non stabilized sub base compacted shell and one inch of asphalt, that's a recipe for disaster in these site conditions. We first became aware of this problem in November of 1993 when we first started building the roads and the roads started failing as we were still building them. We raised concern and we told the city at that point this design won't work under these conditions, the city looked at it and I'll show you the documentation, the city looked at it at that time and rather than spend the money at that point which would have been less money at the time to fix it they made the decision at time again, no we don't want to go with the correct fix, we are going to go with a bandaid and get the job done and try to get these roads underway so that we can do the assessments against or towards the citizens. We first became aware of it in November of 1993, the City, which I found in the city's own records, I spent four days four and a half days going through the city's own records, I found that the City was first aware of this in December of 1990, five years ago, four and a half years ago the City knew that the product they were asked that they were telling us to build, hopefully were going to tell us to build wasn't going to work, nonetheless they made the decision let's go with that product anyway and get the job done. If you look to the first red tab in the booklet you have and we'll just go through these real quickly. I'm not going to go through every document in this package trust me. The first document is dated May 8, 1990, its from your designer. That designer is saying you can see the highlighted points, its saying 5 ...... ." there is not sufficient space within the right of ways to prepare typical roadway sections that meet all of todays DOT standards and attached to that they give you some typical roadway standards they're referring to those cross sections they say that these sections provide a better paving drainage and safety design than that currently used by the City and are consistent with budgetary guidelines. Again the designer was giving you a design and asking you is this what you are willing to pay. And if you look at the next page the typical cross section they're all relatively the same but the key parts are you have one inch of asphalt on the first one is six inches of cemented shell base on top of twelve inches of compacted subgrade that would have probably worked in these site conditions. The difference between this what the designer was originally specifying and what you told us to build, you did away with the cemented shell base. What you have out there is one inch of asphalt non cemented shell base on just compacted subgrade. The next document in the package, well let me jump forward, that was in October of 1990, the records I found show that Mr. Fegley and Mr. McMahon were aware of this by at least September of 1993 if not before. We haven't finished our review and we will find who knew what when eventually. The next document is the Florida Shores Wastewater Collection System Final Value Engineering Report you'll see that one its the next red tab. Going back to page 3 of that report, the report is I engthy I didn' t give you copies of the whole thing, you got it in your own file. On page 3 of that and what this document is is the City requested their own design engineer go back find out if there is a way we can save some money this is too expensive and you look at your own city minutes and there's a lot of debate on that issue trying to find a way to pay for this thing, and you were getting a lot of pressure from your citizens, they didn't want to pay for the expensive product that you were initially proposing. Anyway, Dyer Riddle commissioned a Value 6 ...... """. Engineering Report to find a way to save money. They came up with eleven different proposed solutions, ways to save money on this project, item #2 use it says completed but it should say compacted use compacted shell base in lieu of cemented shell base in pavement restoration potentially save $433,000.00. If you look at that the response by the VECP Committee was rejected bad idea that's not a way to save money it's it's penny wise and pound foolish. If you institute that solution in the long run you are going to end up replacing your roads quicker than you'd like to. That's exactly what we have now, because that's exactly what happened on this project. Somewhere between this point with the VECP report and the specifications that you gave us to build someone made the decision to depart from cemented shell base and use just compacted shell base. Your own engineers back in 1990 were telling you don't do that that's not a wise way to spend the citizens money but someone made the decision to do it anyway. Page 5 of that same report they give you a detailed explanation of why that's such a bad idea and I've given you the highlighted portions it states the idea is rejected the ground water elevations recorded during studies conducted by the geotechnical engineer indicate that the ground water will during wet season periods saturate the road sub base. The proposed CIP drainage improvements are not expected to significantly alter this condition. Pavement performance is increased using a rigid (cement) treated base instead of flexible base given this condition. They are telling you that point you have got to use cemented you got to use soil cement in your base like we've showing you in those drawings, don't go away from that or it's gonna fail. Continuing existing sub base materials will require further stabilization if flexible base is used at that point they are telling you, your own engineers are telling you you can do away with the soil cement base but if you do that you better stabilize the sub base in order to provide that foundation. What happened was not only did you do away with the soil cement but you didn't add any stabilization. So you took 7 ....... ....., away from the stabilization at the top and you didn't make up for it anywhere else. Next document I would like to refer you to is an October 14, 1993 memorandum from Mr. Fegley to Mr. McMahon, that's the third red tab in your book. Now in that report its several pages long but in that memorandum rather he Mr. Fegley states discussing the design and the problems encountered out there, this in combination with my analysis of the roadway conversation with design technicians and FDOT design engineer leads me to believe the City needs to consider alternate roadway designs. Now this is 93, the problems are already arising we've already found we've already raised the flag that this design is not going to work under these conditions. Continuing down the report Mr. Fegley also states, I also recommend constructing the remaining roads with a two inch type 83 asphal t course in lieu of the specified one inch. What that does is he's recommending in order to provide the stability that the roadways need add another inch of asphalt, if you are going to leave the roadways the way they are at a minimum add another inch of asphalt. The next doc, lets see, the next document the next red tab, that's a memorandum from Mr. McMahon to the Mayor and City Council, it's dated October 20, 1993, third paragraph he states it becomes very clear to me at this time it becomes very clear at this time to me that the City should take remedial action to stabilize streets and increase longevity of pavement this will involve change orders to the original contract and is estimated at approximately one hundred thousand dollars per phase to take care of the problem. That was rejected but at that point Mr. McMahon was recognizing if you want to solve the problem its going to cost more money. It's not our prob, its not the contractors problem we're building it the way you asked us to build it but they can increase the design by adding more asphalt but it'll cost more money. On the second page of his report he states and this is critical this is October 20, 1993, he 8 ... ..."" states "should the project be completed in compliance with the contract and original contract specifications I predict the City will experience rapid deterioration of roads in costs much greater than change orders now." In October 1993, he was predicting the roads were going to fail prematurely, thats exactly what we are encountering now only now, S&E is being asked to bear the burden of it. The next red tab in your report its a report from Universal Engineering Services it looks like that, this is a testing lab that the city hired to inspect that project the bottom line on this report is they've inspected S&E's work and as far as they're concerned our work is in compliance with the specifications. On the first page the testing lab states and these are registered professional engineers quote our sub base and base in place density tests and retests as well as our LBR tests and retests on the base met minimum project requirements at those locations tested. Second page "it is our professional opinion that the asphaltic concrete generally meets the intent of the project specifications" continuing down under the section entitled shell base, when he's the engineers discussing should give you cemented shell base or just non cemented shell base just compacted shell base. The engineers final ultimate position is the final decision of which base to utilize is a function of both serviceability and cost. Cost benefit analysis you need to decide if you want to pay for a cadillac or a ford. Later on in the report the engineer makes several recommendations - what would they do in this situation if they were designing the project Item # 1 maintain a minimum separation of 18 inches between the bottom of the shell base and the estimated seasonal high water table. That's not what was provided for in our contact. Our contract provided one foot and that's a departure from what this engineer recommended. Item #4 of the recommendations, we recommend confined pavement edges to minimize edge 9 ...... ...,. distress. In laymens terms curbs and gutters, what you have out there is asphalt and grass or asphalt and dirt. There is nothing to support to keep the edges of the asphalt from breaking away from when the mailman runs on it I've been out there - I've seen him out there, you can see his tracks. There is nothing there to keep the water away from the edges keep the water from percolating up underneath the pavement. There are no confined pavement, there's no curbs and gutters on this project. Item #6 we recommend pavement section design in accordance with the FDOT flexible pavement design manual. Your own engineer is recommending at a minimum follow the DOT standards, do what they do, their roads typically work, they have had a lot of experience at this. I've been through the reports, I've seen over and over where Mr. Fegley and other state, they assert our design is fine it meets DOT standards except we don't have a stabilized sub grade. Every report I've seen they start out with the assertion our design is find it complies with DOT standards, buried below there's a catch phrase a loophole that says except we don't have stabilized subgrade. Remember those that phrase stabilized subgrade thats the one thats going to come back to haunt the city if this thing is not resolved cause you don' t have a stabilized subgrade we told you in '93 that that was the problem the city new it at the same time or prior but didn't do anything about it. Your own engineer Universal Engineering Services recognized that problem also. The next red tab is a memorandum from Mr. McMahon to the Mayor and Council dated November 18, 1993, now these are all documents I ferreted out in your own files. I spent four and a half days going through those thing~ and found these things. In that memorandum on the second page Mr. McMahon states finally I wish to bring to your attention my professional opinion based on road paving and city manager experience this 10 ........ ...., is that I firmly believe the original engineering specifications lacked the quality of design intended or expected by the city. Continuing down addressing Dyer, Riddle, Mills & Precourt, at the same time he requests that they no longer do consulting engineering for the city on future projects. At that time November 18, 1993, Mr. McMahon recognized there was something seriously wrong with the specifications that we were being required to perform to. The last document in this package that I've highlighted is a January 10, 1994, memorandum from Mr. McMahon to the Mayor and the Council. Its one page long the critical iss... the critical text on that page is the last paragraph and that goes to who decided to go with a ford instead of a cadillac. Who decided to depart from that specification with a cemented a soil cement base and stabilized subgrade, who made that decision. Mr. McMahon writes "the contract conditions and specifications were presented by the consul ting engineers Dyer, Riddle, Mills & Precourt and approved by the city council at that time to minimize costs". I haven't found the meeting minutes or the written record where the city council debated this issue and made the decision to depart from recognized road building standards and go with something lesser. Eventually we'll ferret that out - we'll find out who was involved in that decision and who made the decision, the ultimate decision to save a buck then in order to get these roads approved by the citizens so that you'd get your assessments in place. But the bottom line on that statement is the City chose the design they wanted to build - they made the cost benefit analysis, spend the money then or spend it in 1 to 3 years. There is one other report - I don't know if its highlighted or not, its the December 22, 1993, engineering report from Mr. Fegley to Mr. McMahon. It's a lengthy report - in depth report but the end result of that report is what was driving that report was tell us how long these roads are going to last the way they are designed. His conclusion is anywhere 11 ....,. , .",., from less than a year to 3.2 years. You can't have something that will last less than a year. There is no longevity at all to that but that is based on the design that we were handed. Its not a 10 year road its not a 20 year road because that would have been much more expensive and if you'll take the time and go through the memoranda and documents that are in this package you'll see that the city governing body made the decision not to buy a 10 year road not to buy a 20 year road but to buy something to improve the conditions that were out there made it better than hopefully better than what it was. And probably the bigger concern if I was a citizen of Edgewater would not be potential litigation with S&E Contractors over a half million dollars debt that we feel we are entitled to. The bigger concern as far as I'm concerned if I was a citizen would be what about this new road that's going in out there. All this money that's being expended for this this new project where you are paving a lot more roads - I've seen the plans, haven't been provided with the detailed specs yet, I've asked for them, I haven't seen the details~ I'm not sure exactly what you're building out there - what your planning on building but if you don't fix this problem, if you don't build it the way it ought to be built you are going to be facing the same problems out there and if I was a citizen in the City of Edgewater I would be upset about that because you are getting ready to buy the same problems you have got with us. Mayor Thank you. Spofford Thank you. Mayor We appreciate your presentation and your information, I will ask the council not to address them at this time until staff can have an opportunity to look at them and unless the council directs otherwise I think whats most appropriate now is for our staff to take what you have and I am presuming that you've, what you have said here tonight you have said already to our representatives - our staff. If not, then I think that's really whats in 12 ~ 'WI' order for that sort of thing to take Spofford I've conveyed the information to them, whether they have conveyed it any further I don' t know. Mayor Ms. Storey unless I am off base would you please advise me regarding that decision Ms. Storey Regarding Mayor I prefer not to deliberate this at this time, I don't think that's the appropriate thing to do. Storey That's what I would recommend. Mayor Hayman and Council members at this time in reference to this matter, sitting to my left, I would like to introduce the Council to John Horan. As you know under my professional services budget, I have brought in Mr. Horan as a Construction Consultant and he has been working with staff and advising staff on this matter. Mr. Horan sat in on a meeting that we had with S&E - Mr. Spofford last week. At this point in time in reference to the recommendation that Mr. Fegley made to you further recommendation would be for the Council to pursue the direction that Mr. Fegley recommended. Further at this time I would like to request that Council formally retain Mr. Horans firm which is Foley and Lardner and authorize them to implement all necessary legal measures to protect the City's interest in this matter. Spofford Recognize as I conveyed to Ms. Storey and Mr. Horan last week; the way this is headed - you are headed to litigation with S&E. There is enough documentation in your own files that I found that shows that we are in the right in this matter. We built exactly what the City wanted built and if it doesn't perform the way you thought it was going to perform. I'm sorry, we are entitled to be paid for the effort that we put out that we complied with the contract. S&E Contractors will suit the City of Edgewater if we are not paid for the work we did. 13 '-" .." Mayor Sir, you have made your point and I appreciate this. Thank you Ms. Storey. One point of interest here, I believe that Mr. Horan has some reputation and repute as a mediator and I believe that we all know that litigation is the most costly thing that anyone can ever attempt. It is my hope that because of the complexity here and as you have pointed out very clearly. We are dealing with time going back to I think 1990, changes, interpretations, and reports and findings and I think what is really imperative that when we look not at a law suit but as resolving this in an agreeable amicable way through a collaborative effort not a hostile, protagonistic, antagonistic effort and I think that with the reputation of Mr. Horan as a mediator, I would hope that we would try to negotiate and mediate before certainly before we went to court. And I am not suggesting we are going to court. You may be suggesting... Spofford If I can respond to that? I am telling you we are headed to court. Mayor Very well sir. Spofford We have given you the information. The City made the decision to build this design. Mayor, may I address that please? Mayor Ladies and gentlemen, sir, would you please introduce yourself at the microphone. Mr. Horan, one of the things I am not interested in doing, I don I t think it would be appropriate as to get involved in a preliminary hearing of sorts regarding who is right and who is wrong. Horan And I certainly don 't intend to do that, I intend to address the point that you just made. When the City Attorney got me involved. Honorable Mayor, Council Members, my name is John Horan and I am with the firm of Foley and Lardne-r. Our firm is general counsel to the Greater Orlando Aviation Authority, general counsel to Ocoee, we are special counsel to St. Johns 14 ~ ...., County, Orange City and Port Orange with regards to annexation and construction related matters. I have been a construction lawyer for the last 16 - 17 years and I have a great deal of experience in representing public bodies concerning construction disputes of this type. As Mayor Hayman pointed out to you, I am also a certified mediator in the State of Florida. I have been involved these disputes. I understand the costliness of them. I understand the importance of being able to maintain control of the dispute and to resolve the dispute in a way that makes some sense. The first thing I did when I got involved with Attorney Storey and City Manager McMahon, was explain to them the first thing I wanted to do was meet with Mr. Spofford and his counsel to propose to them. And we did in fact meet last week, as a matter of fact we traveled to Tampa, to accommodate S&E and their travel schedule and their arrangements. So we could meet and engage and initiate a process where we engage in a collaborative effort to try to resolve this matter without litigation. I want to impress upon Council and impress upon S&E, as a matter of fact I received a letter from your counsel today in which he indicated that you were ready to cooperate and collaborate but that it shouldn't be unilateral. We are certainly ready to engage in a process that makes some sense other than litigation to proceed to try to resolve this matter and that is the way I will be representing the City, keeping in mind the costs involved because this is very very costly litigation and we are attempting to resolve the matters with the contractor in a way that makes some sense. I just wanted to address that particular point. Mayor Thank you sir. Ladies and gentlemen.. Spofford Can I say one last thing? Mayor Yes sir. Briefly please. Spofford I'll make it as brief as I can. As I explained to Mr. Horan and Ms. Storey last week, the only thing that makes sense to us 15 ..... 'W given the documents you have in front of you and the information we have found. Pay us the money and then lets sit down and talk about trying to work together to solve your problem. It is not our problem. We would be more than happy to give you the knowledge and the benefit of our years in the business to try and find a solution out there. But we are going to be hard pressed to do that when you have got close to five hundred thousand dollars of our money sitting in your bank account. Mayor Thank you sir. Ladies and gentlemen of the Council we have actually 2 requests before us this evening. The fist one which was agendaed for us was the request for approval to process the pay request to the State to receive SRF funds but with the caveat to that asking us for approval to withhold disbursement to S&E until satisfactory corrective premature asphaltic pavement failures or remedial action is agreed upon on that. The next part coming out of this presentation and our discussion here is recommendation from Council to retain the firm of Foley and Lardner to represent the City interest in this matter. Because of obviously S&E has indicated they have a strong interest in possible litigation in this. I would like to address the first request of staff first. Is there a motion to approve the request of our City Engineer for to submit the request for reimbursement for SRF funds and withholding the payment to S&E. Mitchum I Move to approve. Martin Second. Mayor Mr. Mitchum has moved for approval. been seconded by Mrs. Martin. It has Hays The motion was for approval of pay request? Mitchum No. Mayor Yes sir. The motion: approve the process and process the request to the State for reimbursement of SRF funds under the conditions. 16 . ..... Martin Was that to the State? Mayor Excuse me. Let me read the recommendation again which is really the motion. They are asking us to approve the process in process, excuse me, the pay request through the State Martin To obtain the funds from the State. Mayor to receive reimbursement of SRF funds under the condition that such funds will not be disbursed to S&E Contractors until S&E agrees to or a mechanism is established to satisfy, correct premature asphaltic pavement Mitchum That's the request that I made the motion on. It is in no way paying S&E at this point. Mayor Thank you for the clarification Okay, we have a motion and second. any other discussion? on that. Is there Hays The only discussion I have on the motion, I understand that Ms. Storey doesn't want us to get into much discussion on this right now, but I do think it's important, that myself being a part of this from the beginning if you will, I understand what the representative from S&E has said. The context of some of the things I really don't you know you can take anyone paragraph out and sometimes it's represented a little bit differently than it is if you read the whole story. The comment that its not S&E's problem. There were things that we discussed here many times that I believe were problems created by S&E and because of that I can't see us going with payment until those issues are resolved and I would hope that the representatives from S&E will sit down and resolve this so we don' t have to take it to court. That's the worst way to go. The best way is to sit down and resolve, there are some legitimate problems and those weren't brought out here tonight. Mayor Any other discussion? Roll call please. Clerk Mayor Hayman? Mayor Yes. Clerk Councilman Hatfield? 17 .....- ..., Hatfield Yes. Clerk Councilwoman Martin? Martin Yes. Clerk Councilman Hays? Hays Yes. Clerk Councilman Mitchum? Mitchum Yes. Mayor Now, ladies and gentlemen of the Council, with respect to the suggestion from Council which brings forth another motion to retain the firm of Foley and Lardner to represent the Cities interest in this matter. Hays So moved. Martin Second. Mayor Was that you Mr. Mitchum? Mr. Hays. Thank you. Motion by Mr. Hays seconded by Mrs. Martin. Any discussion. Roll Call? Clerk Mayor Hayman? Mayor Yes. Clerk Councilman Hatfield? Hatfield Yes. Clerk Councilwoman Martin? Martin Yes. Clerk Councilman Hays? Hays Yes. Clerk Councilman Mitchum? Mitchum Yes. Mayor Is the gentleman from S&E still here? Sir, we do appreciate your presentation and I hope you don 't - this act of ours tonight, these 2 motions doesn't create a hostile situation 18 ..... ..... between us. We are acting on behalf of our constituents in the way that we think is best at this point. There is no hostility towards us between us and your firm. And we appreciate your attempt to work with us and our staff to resolve this in a amicable manner. Thank you very much. Spofford Thank you for the opportunity. Mayor You are welcome sir. Mitchum Mr. Mayor, might I add something? Mayor Yes Slr. Mitchum Obviously we've all talked to Ms. Storey on this and without getting into an adversarial position, I happen to think that agree with Mr. Hays, that it's all not the city problem. I happen to think that it's part S&E's problem. So I want to go on record as saying that. I want to at some point get a presentation backing this stand. I want to know where we stand. If we don't stand on solid ground which has been the subject that we've had all night then there is no need taking this further. Okay. But if the City is on solid ground I want to know it. Right now we have heard one side of it. I want to know if we're standing on solid firm ground. Spofford Mitchum I do happen to know that passage in the Bible. Mayor I think - I am not trying to put words in your mouth sir. I believe you are asking for a commitment or given directions to staff with our attorney to come back after they have done a review to tell us Mitchum I want to know where we stand. Mayor All right. Is there a second to that? Hatfield I'll definitely second that. Spofford Your Honor. That's twice now. Mr. Hays and Mr. Mitchum have said other problems that need to be addressed. My conversations with Mr. Fegley and Ms. Storey lead me to believe that 19 ....... ..., " those are not hindrances to our getting paid. The sole issue that's keeping us from getting paid is the asphalt condition, now if there are other problems out there that need to be addressed, I need to know about them and either you all need to be brought into the loop with Mr. Fegley and Ms. Storey and myself or I need to be brought up to speed on what other problems are out there. Mitchum Well, you just heard me ask for us to brought into the loop. Spofford Okay, I am asking now. are you aware of? What other problems Mitchum I am not going to discuss anything at this point. Mayor Sir, I think what will happen sir. As staff prepares this, you definitely will be informed of what their deliberations and their perusals suggest. And I would certainly assure you as the Mayor of this City you will certainly have access to the presentation as we get it Spofford Okay. Mayor We don't have secrets, we work in the Sunshine here. Spofford Very good. Thanks. Mayor Okay. Then no further discussion. have the roll call please. May we Clerk Mayor Hayman? Mayor Yes. Clerk Councilman Hatfield? Hatfield Yes. Clerk Councilwoman Martin? Martin Yes. Clerk Councilman Hays? Hays Yes. 20 ...... ..."., . . ... Clerk Councilman Mitchum? Mitchum Yes. Mayor Thank you. Then the 3 things that we have deliberated on and the last - to which Ms. Storey and Mr. McMahon we would like to work towards a public presentation on our position. Thank you. The next item. Mrs. Martin, did you want to take a 5 minute recess? 21