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Town of Mount Desert
Board of Selectmen
Special Meeting Minutes
April 29, 2013
A special meeting of the Board of Selectmen was held this date in the Meeting Room, Town Hall, Northeast Harbor, Maine.
Those present included: Chairman Tom Richardson; Selectmen Martha Dudman, Rick Mooers, and Dennis Shubert; staff members Town Manager Durlin Lunt, Public Works Director Tony Smith, Police Chief Jim Willis, and Town Clerk/Recording Secretary Joelle Nolan; and members of the public. Selectman John Macauley was excused.
I. Call to order at 4:00 p.m.
Chairman Richardson called the meeting to order at 4:00 p.m.
II. Minutes
A. Approval of minutes from April 16, 2013 meeting.
MOTION: Selectman Dudman moved, seconded by Selectman Mooers, to approve the minutes from April 16, 2013 meeting. The vote was in favor, 3-0-1 with Shubert abstaining due to his absence from the meeting.
III. Selectmen’s Reports
IV. Old Business
A. Highway Garage Bond Recommendation
MOTION: Selectman Mooers moved, seconded by Selectman Shubert, to support the recommendation of Public Works Director and award the General Obligation Bond to Bar Harbor Bank & Trust in the principal amount of $2,352,115 with interest of $491,121.60 at a rate of 2.61% for a term of 15 years ending May 2028, pending approval at the May 7, 2013 Annual Town Meeting, and authorize Town Manager to sign the bond as necessary on behalf of the Board of Selectmen. The vote was in favor, 3-0-1, with Selectman Dudman abstaining due to her position as a member of Bar Harbor Bank & Trust Board of Directors.
B. Sidewalk Issues, discussion
Selectman Mooers gave an overview of the sidewalk issue from the last several months. A meeting was held April 22 with the contractors, engineers, and Public Works Director Smith. A number of items were discussed, which he felt had little bearing for him on the issues at hand. He decided to do his own research which led him to the University of Texas at Austin, Auburn University, and the Department of Veteran’s Affairs; all having to do with 2% cross slopes and the impact on ADA best practices recommendations. The three studies showed differing opinions with regard to the 2%; all recognizing that there are many variables that come into play. All three studies did agree that the 2% is a laudable best practice and achievable, but does not seem to be sustainable, based on a number of factors, not the least of
which are environmental, geological, and topographical factors. He suggested many of these factors, such as bedrock, water runoff, and frost, come into play in our area and questions whether there is any sidewalk anywhere on Mount Desert Island that was constructed at 2% and has been able to sustain the 2% cross slope after one or more winters with accompanying frost. He concluded that barring any evidence of bad faith, poor quality of materials, or shoddy workmanship on the part of the contractors and engineers we must recognize that 2% at the beginning does not necessarily equate to 2% over time. He recommended that the Town pay the contractors and engineers what they are owed without imposing any credit due the Town and he so moved.
MOTION: Selectman Mooers moved, seconded by Selectman Dudman, that the Town pay the contractors and engineers what they are owed without imposing any credit due the Town.
DISCUSSION: Selectman Dudman requested Public Works Director Smith to explain the meaning of 2% slope. Public Works Director Smith said the cross slope is across the sidewalk perpendicular to the flow of traffic, that means when you lay a four foot level on that sidewalk, perpendicular to the road, you are allowed one inch in four feet, so that runoff goes into the road. He also stated the 2% is not law yet, although it is ADA’s recommended best practices. However, the 2% is a law for sidewalks connecting buildings. Selectman Dudman recalled that if the 2% becomes law the Town would not have to make any changes; Public Works Director Smith agreed.
Public Works Director Smith expressed concerns that some think he has a personal interest in this issue. He suggested that if representing the Town to ensure that the contractor adheres to the terms of the contract, then yes he does have a personal interest. He detailed the offers of credit: Atlantic Landscape has offered $5,500. Goodwin had offered $20,000. Public Works Director Smith suggests accepting $5,500 from Atlantic Landscape and Peasely, and $10,000 from Goodwin as an acknowledgement that they did not fulfill their end of the bargain. Although he agrees with Selectman Mooers, he does not want to set a precedent that if we hire somebody to paint a building green and they paint it red they’ll argue that the function of it is the same whether it is green or red. Chairman Richardson asked
when were the projects, as they are, completed and Public Works Director Smith replied late last fall prior to frost; however the measurements were also take prior to frost. Selectman Shubert asked what the greatest deviation was, and Public Works Director Smith replied 6%. The paving subcontractor, Peasley, pointed it out last fall and offered to correct it. Selectman Shubert asked how large a section is incorrect, and Public Works Director Smith replied about 125 feet. Selectman Dudman asked who oversaw the project; Public Works Director Smith replied the engineers, who consistently referred to the contract requirements. Public Works Director Smith said he was not aware of the slope problem until the final walk-through in Somesville late last fall. Chairman Richardson asked what typically takes place with engineer oversight on a project like this; are they on sight every day? Public Works Director Smith said the engineers were on sight
every day and made the contractors aware of the 2% issue. Discussion continued regarding the construction and core testing results. Selectman Dudman wondered if the credits are not accepted could future dealings be penalized. Public Works Director Smith said he has concern of setting such a precedent. Chairman Richardson disagreed, saying each situation would be considered on a case by case basis. Public Works Director Smith reminded the Board that the credit was offered by the contractors, not solicited.
Selectman Shubert suggested there are two issues. One is that the Town has 125 feet of new sidewalk with a slope that is higher than it should be; however, he can accept the sidewalk. The other issue is that there was a clear contract that was not followed. Money isn’t the issue so much as not allowing the contractors to bid on future projects. Public Works Director Smith agreed to a point. He sees the offer of money as an acknowledgement that the contract was violated. Selectman Mooers said he is concerned with the history of how this issue evolved and took on a life of its own. He became involved because the citizens in Somesville believed the new sidewalks were going to be torn up and redone. We have gone from tearing them up to remediation with the meeting on April 22nd which resulted
in a contractor offering an amount to make it go away. That figure was then used to determine what the other contractor would have to pay; then the amounts were halved. He said he not only disagrees with this method, it makes him wonder what the issue really is. The Town has no liability, and we have moved from tearing up sidewalks to obtaining penalty money from contractors to acknowledge that they stepped outside the parameters of the contract. He reiterated his findings about slopes; he is convinced the 2% not sustainable and suggests we pay the contractors what we owe, walk away, and do better next time. Selectman Shubert thinks the point is not to hire contractors again who do not adhere to the contract. Public Works Director Smith reviewed again the events leading up to remediation. Selectman Dudman said she appreciates Public Works Director Smith’s point of view and knows he is very conscientious; however, she agrees with
Selectman Mooers that it is done, it will work, we can live with it, and look for another contractor next time. There should be more oversight by the engineers as the job is being performed. We have learned something from this, now let’s move on. Public Works Director Smith clarified from the beginning the contracts were very specific, the contractors were made aware of, and acknowledged, the requirements. The penalty is an acknowledgement that they did not follow the contract. Chairman Richardson said he has thought about this a great deal and is leaning toward taking some kind of credit from the contractors for the violations of the contract. Although he is not sure what the amount should be or how to achieve, he thinks even a token amount to reflect that the project was not done to the contract specifications would be appropriate. Selectman Shubert suggested, although he does not condeon, the penalty should be the avoided costs;
equal to the cost to rebuild the sidewalk because that is what the contract says. Chairman Richardson agreed he would not be comfortable with that, but perhaps with something less than where we are now for the purpose of an acknowledgment that they did not adhere to the contract. Chuck Bucklin, local building contractor, suggested the Town has learned a lesson from this – someone needs to keep on top of the project.
VOTE: The vote was in favor, 3-1, with Chairman Richardson voting against.
MOTION: Selectman Shubert moved, seconded by Selectman Mooers, that John Goodwin and Peasley O’Hallorhan not be allowed to submit bids for Town of Mount Desert projects for a period of 3 years.
DISCUSSION: Selectman Shubert suggested there is a knowledge deficit regarding this matter and asked that the Town Manager look into the legality of his motion.
MOTION: Selectman Shubert moved, seconded by Selectman Dudman, to table his former motion until the Board’s May 20th meeting allowing the Town Manager to research the legality. The vote was in favor, 4-0.
C. Consideration of DOT-TMD Storm Drain Construction Reimbursement Agreement
MOTION: Selectman Mooers moved, seconded by Selectman Dudman, to approve the Local Project Agreement between the State of Maine Department of Transportation and the Town of Mount Desert regarding reimbursement of funds, not to exceed $35,800, to install approximately 700 feet of closed system drainage plus an additional catch basin and outlet on Route 3 in conjunction with the Town’s sidewalk construction project. The vote was in favor, 4-0.
V. New Business
A. Matching Fund Grant for Radar Units
MOTION: Selectman Dudman moved, seconded by Selectman Mooers, to authorize the expenditure of $1,990 from the Police Equipment Reserve account #G20-24104-05 as matching funds for 2 Stalker Radar Units. The vote was in favor, 4-0.
B. Such other business as may be legally conducted
None presented.
VI. Adjournment
MOTION: At 4:40 p.m., Selectman Mooers moved, seconded by Selectman Dudman, to adjourn the meeting.
Respectfully submitted,
John B. Macauley
Secretary
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