CITY OF SALISBURY, MARYLAND
#17 MEETING AUGUST 28, 2000
PRESENT
Council President Lavonzella
Siggers Council Vice President Joseph L. Scott *
Councilwoman Rachel S. Polk
Councilman William Stacey
Councilman C. T. Webster
* left at 11:58 p.m.
IN ATTENDANCE
City Clerk Brenda Colegrove, Executive Officer John Pick, City Solicitor Paul Wilber, Police Chief Al Webster, Fire Chief William Higgins, Finance Director John Cawley, Director of Procurement & Parking Carol Turner, C.P.M., CPPB, BHZ Director William Holland, PW Director John Jacobs, and interested Citizens and Members of the Press.
ABSENT
Mayor Barrie P. Tilghman **********************************************************************************************
CONVENING - ADOPTION OF AGENDA
The Salisbury City Council met in regular session at 7:00 p.m. in Council Chambers. Council President Siggers called the meeting to order. The Lord's Prayer was repeated and the Pledge of Allegiance was recited.
Mrs. Polk moved and Mr. Scott seconded to approve the agenda as presented. Council President Siggers related that item #4, Ordinance No. 1777 appropriating funds for emergency repair to the Fitzwater Street manhole, was requested to be changed to an information briefing on the repair conducted at the Fitzwater Street manhole and a decision briefing on the repair of an adjacent wastewater line that had significant groundwater infiltration. Mrs. Polk moved and Mr. Stacey seconded to amend item 4 as addressed by Council President Siggers. Mr. Webster moved and Mr. Stacey seconded to insert item #16, consideration of the disputed change order to Waterwell 7B Rehabilitation Contract, after the payment of interest to Admiral, Inc.
The agenda was unanimously adopted as amended. Note: Since Mr. McFarland, representing American Waterwell Systems, was not present when the item was to be discussed, this item was discussed at the end of the agenda as originally presented.
APPROVAL OF SPECIAL MEETING MINUTES OF AUGUST 3, 2000 AND MINUTES OF AUGUST 14, 2000
On a motion by Mr. Webster and seconded by Mr. Scott, the minutes of August 3, 2000 and August 14, 2000 were unanimously approved.
PAYMENT OF INTEREST TO ADMIRAL, INC.
Mrs. Polk moved and Mr. Webster seconded to approve for discussion the payment of interest to Admiral, Inc. City Solicitor Paul Wilber briefed Council on Admiral Inc.'s request for interest in the amount of $1,282.73 on the $7,500 refund of pretreatment monitoring fees and penalties. Mr. Wilber pointed out that the City Codes is discretionary, but State law stipulates that the tax collector shall pay interest on the refund. Mr. Wilber recommended paying the interest on the refund to avoid litigation.
Mr. Todd Bailey, representing Admiral, Inc., believed State law should supercede the City's Code. He acknowledged that Admiral, Inc. made a mistake and paid the bill erroneously, but he did not believe they should suffer because of it.
After further discussion, all voted in favor of paying $1,282.73 in interest to Admiral, Inc. with the exception of Mr. Stacey who voted nay.
REVISION OF GODDARD PARKWAY RIGHT-OF-WAY AGREEMENT PERTAINING TO MOVEMENT OF DIRT FOR RT. 50 BY-PASS PROJECT
Mrs. Polk moved and Mr. Scott seconded to approve for discussion the revision of the Goddard Parkway right-of-way agreement. Mr. Michael Warring of Cherry Hill Construction, Inc., provided a briefing on the change to move the dirt via a conveyor system along the railroad right-of-way rather than utilizing dump trucks for the construction of the Rt. 50 by-pass. The proposal requires a portion of Armstrong Parkway to be closed between Marvel Road and Naylor Mill Road. Mr. Warring hoped to begin the conveyor operations on October 1, 2000 and estimated a November 30, 2001 completion date.
Public Works Director John Jacobs requested that Council give the Mayor authorization to approve the Memorandum of Understanding after a review by the City Solicitor, Police Department and the Public Works Department.
Council addressed their concern that not all businesses in the area were notified prior to coming before the Council. Mr. Warring related that he wanted Council's approval of the concept first, but he assured the Councilmembers that the businesses would be contacted.
After further discussion, Council unanimously agreed to give the Mayor authorization to approve the Memorandum of Understanding.
BRIEFING ON THE REPAIR CONDUCTED AT THE FITZWATER STREET MANHOLE AND A DECISION BRIEFING ON THE REPAIR OF AN ADJACENT WASTEWATER LINE THAT HAS SIGNIFICANT GROUNDWATER INFILTRATION
Public Works Director John Jacobs gave a presentation on the repairs made on July 29, 2000 to the Fitzwater Street manhole and the adjacent wastewater line. The City Council had originally approved an estimated cost of $58,110 for repairs at their July 24, 2000 Council meeting. As a result of a combined team effort between the City's Public Works Department and American Paving, the cost for the repairs totaled $12,569.
ORDINANCE NO. 1778 - 1ST READING - BUDGET AMENDMENT - APPROPRIATING FUNDS IN THE MARINA BUDGET FOR PAVING THE PARKING LOT AND PAYMENT OF THE EXCISE TAX
Mrs. Polk moved and Mr. Webster seconded to approve for discussion Ordinance No. 1778, budget amendment appropriating funds in the marina budget for paving the parking lot and payment of the excise tax. Public Works Director informed Council that the payment of the excise tax was deleted from the ordinance. They anticipate a liability, but decided to wait until the excise tax bill was received. The budget amendment, as revised, amends the Fiscal Year 2001 budget by adding $15,000 to the existing marina budgeted funds of $10,000.
Mr. Jacobs briefed Council on the recommendation to replace the Marina's current gravel parking lot with a 2" bituminous asphalt parking lot with forty-two parking spaces for an estimated cost of $22,350; relocate a security fence and gate near the Dockmaster's office to improve security and pedestrian flow for an estimated cost of $850; and setting aside a contingency fund of $1,800 for unforseen construction. Budgeting for security fencing is anticipated for next year. Mr. Jacobs and Executive Officer John Pick explained that the slip renters were concerned with gravel dust going into their boats and with the loss of parking with the construction of the Brew River Restaurant.
Councilmembers debated whether paving the parking lot was a priority at this time and a suggestion was made that secured fencing should be done first. After further discussion, Ordinance No. 1778 failed to pass on a 3-2 vote. Mrs. Polk and Mr. Scott voted aye. Ms. Siggers, Mr. Stacey and Mr. Webster voted nay.
PUBLIC HEARING - RESOLUTION NO. 722 - JOHNSON ROAD/LANK ANNEXATION
Mr. Stacey moved and Mr. Webster seconded to approve for discussion Resolution No. 722, Johnson Road/Lank Annexation. Resolution No. 722, as outlined by Public Works Director John Jacobs, proposes to annex 9.05 acres bounded by the northerly right-of-way line of Johnson Road. Upon annexation, the area will be zoned R-8A Residential. Development plans include a 54 unit subdivision similar to Schumaker Manor. The annexation will be advertised four times in The Daily Times and will become effective upon the expiration of forty-five days subject to the right of referendum.
Resolution No. 722 passed unanimously.
PUBLIC HEARING - COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROJECTS
Ms. Deborah Stam presented an overview of the two CDBG projects currently in the process of being audited for closeout the Gallery Building Elevator and the Salisbury Neighborhood Housing Service (SNHS) - Purchase/Rehab/Resale projects. Funds in the amount of $175,000 were received for the Gallery Building Elevator project, but the project came under budget for an expenditure of $125,244. The remaining funds were recaptured by the State. CDBG funds in the amount of $210,000 were used to purchase four dilapidated houses in the SNHS targeted neighborhoods (two on E. Church Street and two on Hazel Avenue). The houses were rehabilitated and resold to qualified, low income residents.
Also reviewed were two CDBG projects currently in process the HotSpot Neighborhood Playground and the Salisbury Neighborhood Housing Service Rehabilitation Grant/Loan Program. CDBG funds of $60,000 were received for a new playground in the Church Street HotSpot Neighborhood and combined with $10,000 in HotSpot funds and City in-kind services. The project included land acquisition (516 and 518 E. William Street), purchase and installation of play equipment, safety surfacing, benches, fencing and landscaping. The project is anticipated to be completed by the end of September. A CDBG grant of $100,000 was received to create a city-wide rehabilitation program targeting owner-occupied homes of elderly and very low income residents. Ms. Stam reported that $2,064 has been spent for plumbing repairs to the home of a qualified resident.
REQUEST FOR ANNEXATION - U.S. ROUTE 13 NORTH - BARNES & NOBLE
Mrs. Polk moved and Mr. Scott seconded to consider the U. S. Route 13 North - Barnes & Noble request for annexation. Public Works Director John Jacobs introduced the annexation request of 6.57 acres located on the west side of U. S. Rt. 13N near the Lowes store. Barnes & Noble Booksellers, Inc., developers for the project, proposes to construct a 24,000 square foot bookstore and an additional 30,000 square foot store to be operated by another national retailer. A General Commercial zoning classification has been requested upon annexation into the City.
Council unanimously voted to move forward with the annexation request as proposed. The City Attorney was authorized to draft an annexation resolution for a future Council meeting.
The Council recessed at 9:02 p.m. and reconvened at 9:10 p.m.
APPROVING RENEWAL OF SALISBURY NEIGHBORHOOD HOUSING SERVICE'S ADMINISTRATION OF SPECIAL LOAN PROGRAMS
Mr. Stacey moved and Mrs. Polk seconded to approve for discussion the renewal of Salisbury Neighborhood Housing Service's (SNHS) administration of the Special Loan Programs. Executive Director Cheryl Minton requested Council approval for SNHS to administer the State sponsored Special Loan Programs on behalf of the City for the next two years.
After a brief discussion, Council unanimously approved the renewal of SNHS's administration of the Special Loan Programs.
RESOLUTION NO. 723 - DECLARING RESOLUTION NO. 709 (PROCEEDING WITH CONSOLIDATION OF THE CITY OF SALISBURY AND WICOMICO COUNTY DEPARTMENTS) AND RESOLUTION NO. 710 (PROCEEDING WITH CONSOLIDATION OF THE CITY OF SALISBURY AND WICOMICO COUNTY FINANCE DEPARTMENTS) NULL AND VOID
Mr. Stacey moved and Mrs. Polk seconded to approve for discussion Resolution No. 723 declaring Resolutions 709 and 710 null and void. City Solicitor Paul Wilber presented Resolution No. 723 and explained that Resolution No. 709 included that each City Department develop and implement a plan to consolidate all functions of each department with the County department performing the same function on or before June 30, 2005. Resolution No. 710 included that the City Finance Department develop and implement a plan to consolidate all functions of the Finance Department with the County Finance Department on or before June 30, 2002.
Mr. Stacey did not believe they should disregard the public's mandate and encouraged Council to vote against Resolution No. 723. It was the intent of the previous Council to have a benchmark to move forward with what the citizens voted upon in May.
Mrs. Polk supported looking at the issues of consolidating those departments which could provide more efficient service to the citizens, but she was concerned with the wording in Resolution Nos. 709 and 710 (develop and implement a plan to consolidate) and the time constraints placed on new personnel in the City and County Finance Departments. Mrs. Polk expressed that she was more interested in tax differential and would like to pursue that issue vigorously.
Mr. Webster opined that, even though no definite timetable was included in the ballot question, two or five years should be enough time to develop a plan. He believed it was an opportunity for the City and the County to match up duplicated services, but the County had to be a willing partner in the effort.
Mr. Scott was concerned with a department head having to serve two masters and questioned if it could be done successfully.
Ms. Siggers related that she supported the question which appeared on the ballot. Resolution Nos. 709 and 710 did not appear in the non-binding referendum that the public voted on, but were passed by the previous Council. Ms. Siggers noted that consideration of consolidation was already in process and would continue to be considered. She was 100% inclined to vote declaring Resolution No. 709 and 710 null and void.
Comments from the public reflected a desire for the Council to cast a negative vote on Resolution No. 723 and to proceed with the consideration of consolidation as mandated by the electorate in May.
After further discussion, Mrs. Polk and Ms. Siggers voted aye. Messrs. Scott, Stacey and Webster voted nay. Resolution No. 723 failed to pass on a 3-2 vote.
RESOLUTION NO. 724 - TRANSFERRING FUNDS TO FISCAL YEAR 2000 LEGAL BUDGET
Mrs. Polk moved and Mr. Stacey seconded to approve for discussion Resolution No. 724. Resolution No. 724, as outlined by Executive Officer John Pick, transfers $4,560 of unexpended funds in the FY00 Mayor's Office budget to the FY00 Legal Department budget to cover a deficit in the Legal Department budget. The transfer of funds would enable the payment of the City Solicitor's June legal bill. The June bill totaled $11,057, but only $6,519 remained in the Legal Department budget.
A discussion followed concerning whether it was proper to transfer the funds via Resolution or Ordinance. Mr. Stacey moved to table Resolution No. 724 in order for the City Solicitor to research, but no second was rendered. Mr. Wilber opined that the Charter states by Resolution, however, Mr. Wilber recommended a 2/3 vote for approval.
Resolution No. 724 passed unanimously.
RESOLUTION NO. 725 - ACCEPTANCE OF BOUNDLESS PLAYGROUND GIFT
Mrs. Polk moved and Mr. Scott seconded to approve for discussion Resolution No. 725. Ms. Deborah Stam introduced Resolution No. 725 accepting the gift of a handicapped accessible playground to be constructed with a grant from Boundless Playgrounds and matching funds from Frank and Mitzi Perdue.
Public Works Director John Jacobs provided an overview of the two sites under consideration, the softball field at the Zoo and the Boy Scout field along North Park Drive.
Resolution No. 725 passed unanimously.
RESOLUTION NO. 726 - APPROVING CONTRACT OF SALE FOR CYPRESS STREET PROPERTY
Mrs. Polk moved and Mr. Stacey seconded to approve for discussion Resolution No. 726. City Solicitor Paul Wilber presented Resolution No. 726 to purchase 4.63 acres located on the easterly side of Cypress Street in Salisbury for the location of a fire department building. The purchase price is $145,000. Mr. Stacey asked that the City be cautious in regards to the soil tests before committing to purchase the property.
After clarification from Mr. Wilber on the soil tests to be performed on the property, Resolution No. 726 passed on a 4-1 vote with Mr. Stacey voting nay.
RESOLUTION NO. 727 - APPOINTMENT OF JANET S. HORNE AND TIMOTHY MEAGHER TO ETHICS COMMISSION
Mr. Scott moved and Mrs. Polk seconded to approve for discussion Resolution No. 727. Executive Officer John Pick, on behalf of Mayor Tilghman, presented the names of Janet S. Horne and Timothy Meagher for appointment to the Ethics Commission. Mr. Pick suggested staggering the terms one to a two year term and the other to a four year term. City Solicitor Paul Wilber informed Council that a change was made by Ordinance No. 1750 establishing staggered four year terms for Ethics Commission members.
Resolution No. 727 passed unanimously.
AWARD OF BIDS
No bids were presented to be awarded.
CONSIDERATION OF DISPUTED CHANGE ORDER TO WATERWELL 7B REHABILITATION CONTRACT
Mrs. Polk moved and Mr. Scott seconded to consider the disputed change order to the Waterwell 7B rehabilitation contract. A copy of the information provided by the Public Works Director and American Water Well President John McFarland is included as a permanent part of these minutes.
Public Works Director John Jacobs provided an overview of the contract claim of $14,533 by American Water Well. The work performed was in addition to the original contract awarded for $9,844. Mr. Jacobs contended that American Water Well did not follow a contractual provision on change orders. The contract, signed by John A. McFarland of American Water Well, stipulated that no claims may be made by anyone that the scope of the project or that the contractor's/vendor's services have been changed unless the changes or adjustments have been made by written agreement to the contract signed by the Purchasing Agent and the contractor/vendor. It also stipulated that no oral conversations, agreements, or changes to the scope of the contract made by anyone would be honored or valid unless followed by a written agreement. The Purchase Order also included references that the order was not to be filled at a price or quantity higher than shown without first contacting the City Purchasing Agent. However, since the City benefitted from the contract and the work needed to be done, a compromise settlement in the amount of $6,576.50 was offered. This included $4,500 for five additional days of acid neutralization, $526.50 for thirteen bags of caustic soda, $350 for labor and $1,200 for pump rental.
Mr. John McFarland presented American Water Well's position. Mr. McFarland contacted Edward Johnson, the City's project engineer, on the fourth day of the contract and informed him that they would need to continue to pump because the water was not at the point where it was supposed to be. Mr. Johnson told them to continue pumping the well. According to Mr. McFarland, the city street was blocked off day after day and their equipment was left at the plant on weekends, so he thought it was unusual that no one from the City knew they were there pumping for more than five days. Mr. Johnson also visited on-site and they were told to continue to pump the well. At the end of April, American Water Well submitted a bill to the City in the amount of $15,654. No reply was received from the Purchasing Department that they had exceeded the contract limit so they assumed they were to continue pumping. Mr. McFarland indicated that various representatives from the City stopped by the job site including Chip Messick on May 2, 2000 which was after the initial contract period. On May 9, 2000, a PH water sample test was done at the Water Treatment Plant. Since the water was still not up to 5.0, they were again told to continue pumping. On May 10, 2000, Ed Johnson was contacted concerning obtaining a written change order. Mr. Johnson directed them to call the Purchasing Department. The Purchasing Department requested Mr. McFarland to call Chip Messick who informed them to shut the project down after he was told how much the project was costing. A subsequent meeting was held with Carol Turner, Ed Johnson and Chip Messick in which a proposal for settlement was offered. On May 19, 2000, Mr. McFarland wrote a letter to Mrs. Turner requesting that American Water Well be paid. On May 21, 2000, Lt. Mark Tyler called and asked him to report on May 24, 2000 to the Salisbury Police Department to be interviewed on the handling of this situation. At the conclusion of the interview, the two officers indicated to him, based upon their conversation, that American Water Well should be paid. In summary, Mr. McFarland thought his company operated in good faith with the representatives of the City and did what they were told to do.
Director of Procurement & Parking Carol Turner reiterated that the contract specifically states that the Purchasing Agent must be contacted if overruns occur, permission must be in writing to continue and Change Orders must be approved by Council before the work is performed. The Police Department conducted interviews as an impartial party to determine if there were staff problems with this particular project and if the City had internal problems on how projects are administered. Mrs. Turner stressed that this was not a criminal issue.
Councilmembers expressed their surprise that the Police Department was asked to investigate a vendor bill. Ms. Siggers was disappointed that Council was put in this position, but she held the City and the vendor responsible. Rather than voting on the issue now, Ms. Siggers asked that Council address the issue further in Thursday's work session.
Mrs. Polk wanted to know exactly what Mr. Johnson, the Wastewater Treatment Plant supervisor and Mr. Messick knew of the contract. Mrs. Polk moved to table the issue, but no second was received.
Council questioned whether they could make a final decision in the work session. City Solicitor Paul Wilber opined that Council could discuss the item in the work session, arrive at a consensus, and then have an emergency Special Meeting following the work session to formally vote.
Upon a motion by Mr. Stacey and seconded by Mrs. Polk, the Council unanimously approved an emergency Special Meeting on Thursday, August 31, 2000, immediately following the work session, to vote on the American Water Well issue.
After further discussion, Mrs. Polk moved to table the consideration of the disputed Change Order to the Waterwell 7B Rehabilitation Contract in order to discuss it on Thursday, August 31, 2000. Mr. Stacey seconded and the vote was unanimous to table. Mr. Scott left before the motion to table was obtained.
MAYOR'S COMMENTS
Executive Officer John Pick relayed the following comments on behalf of Mayor Tilghman:
working on "condemn and take" ordinance with hopes of having legislation on the September 21, 2000 work session; and
Task Force making progress on issue of cracker box houses and anticipate having legislation on the September 21, 2000 work session.
COUNCIL COMMENTS
Mrs. Polk referred to an item being deferred from the previous Council agenda. She had requested that the Council President defer the item because she wanted to be part of the discussion. Her request stemmed from the Rules of Order established by a previous Council. Councilmembers thanked those who stayed for the duration of the Council Meeting.
PUBLIC COMMENTS
Mr. Robert Ryan commended Council on rescheduling their work sessions to the evening.
COUNCIL PRESIDENT WRAP-UP
Ms. Siggers acknowledged that the work sessions were moved to 6:30 p.m. with the exception of the August 31, 2000 and the November 22, 2000 work sessions. In regards as to why she did not vote for the marina parking lot item, Ms. Siggers voiced that she did not view it as an urgent matter at this time.
With no further business, the meeting adjourned at 12:13 p.m.
CITY OF SALISBURY, MARYLAND
CLOSED EXECUTIVE SESSION
SEPTEMBER 7, 2000
TIME & PLACE: 9:13
p.m., Room 302, City/County Government Building
PURPOSE:
Consult with counsel - potential litigation (settlement discussion)
VOTE TO CLOSE: 3-1
CITATION:
Annotated Code of Maryland Sections 10-508(a)(7)(8)
PRESENT: Council President
Lavonzella Siggers, Council Vice President Joseph Scott,
Councilwoman Rachel
Polk, Councilman William Stacey,
City Clerk Brenda Colegrove, Executive
Officer John Pick,
City Solicitor Paul Wilber
ABSENT: Councilman C. T. Webster
***********************************************************************************************
At 9:13 p.m. in Room 302 of the City/County Government Building, Mr.
Scott moved to convene in Closed Executive Session to discuss with legal
counsel a proposed settlement agreement with Linens By The Week as permitted
under the Annotated Code of Maryland Sections 10-508(a)(7)(8). Mrs. Polk
seconded the motion. All voted in favor with the exception of Mr. Stacey
who voted nay.
City Solicitor Paul Wilber briefed Council on the proposed settlement agreement. After discussion, Council arrived at a consensus to modify the proposal. The City Solicitor was directed to proceed with continued negotiations based upon the modifications.
At 9:19 p.m., upon a motion by Mr. Stacy and seconded by Mr. Scott,
the closed session adjourned and Council reconvened in open session.
City Clerk
Council President