Board of Aldermen Meeting

Meeting Agenda

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Meeting Minutes

MINUTES OF THE BOARD OF ALDERMEN MEETING
CITY OF BALLWIN – 300 PARK DRIVE
November 8, 2010

The meeting was called to order by Mayor Pogue at 7:21 p.m.

ALDERMANIC APPOINTMENT
During the Special Meeting held at 5:30 on this date, November 8, 2010, the Board of Aldermen approved Mayor Pogue’s recommendation to appoint Pat McDermott to fill the remainder of the term of office in Ward 2 following the resignation of former Alderman Frank Schmer.  This term will expire on April 25, 2011.  The Oath of Office was administered to Pat McDermott. 

             PRESENT                                                          ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN RON MARKLAND 
ALDERMAN PAT MCDERMOTT 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KEN MELLOW 
CITY ADMINISTRATOR ROBERT KUNTZ 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES

The Minutes of the October 25, 2010 Budget Workshop were submitted for approval.  A motion was made by Alderman Terbrock and seconded by Alderman Mellow to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion passed.

The Minutes of the October 25, 2010 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Mellow and seconded by Alderman Fleming to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion passed.

PRESENTATION
None.

PENDING ISSUES
None.

CITIZEN COMMENTS
Robert Klein, 2452 Capitol Landing Drive:  Mr. Klein asked who the Board thinks it works for.  He has been a Ballwin resident for 16 years and his family have live here for over 40 years.  He said he is appalled by the apparent and continued disregard for ethics, transparency and honesty among the people elected and the people hired to run the city.  It has now become public record that Alderman Frank Schmer recently resigned his position due to concerns he has with being able to condone or ignore the manner or process in which the City administration operates and obstucates facts needed by our elected officials to carry out the will of the Ballwin residents.  He said that last April, it was stated to the Board that one of the candidates running for elected office was not properly qualified to run for election.  That allocation and lack of integrity was completely ignored and the same person was recently unanimously approved to be appointed to a position of authority within the Ballwin government.  He said that he has read documents and possesses one document that implicates that Ballwin’s City Attorney may have had questionable ethics regarding a conflict of interest in his representation of both the citizens of Ballwin and Schnuck’s market at the same time.  He said that the City Attorney is being paid from the taxes and fees to lead the city’s defense against a group of Ward 2 citizens who are overwhelming in opposition to the Board’s approval of his client being given special zoning for the perspective development.  Mr. Klein asked if the Board has taken any action to verify if any outside ethics agency or the bar association would agree with his own self determination.  Mr. Klein said that this is a concern regarding timelines, inconsistencies, and formal unrecorded votings and other discrepancies regarding the TDD formation at the corner of Clarkson and Kehrs Mill Road.  The whole TDD affair reached a fabrication. 

Mr. Klein said that last year, Alderman Ron Markland brought several examples of questionable behavior regarding the city’s handling of purchasing.  He said it appears that there are still inconsistencies in this manner and the manner in which the newly written procedures are being implemented.  He said that the citizens expect the government to be run with unquestionable integrity and to serve the residents as honestly and efficiently as possible.  He said that it is necessary that our government not be subjected to self-serving hidden dealings.  Ballwin should be a shining example of responsible governing. 

PUBLIC HEARINGS
None.
NEW BUSINESS

LEGISLATION

BILL # 3647 - AN ORDINANCE AUTHORIZING THE CITY OF BALLWIN TO ENTER INTO AND EXECUTE A CONTRACT WITH ST. LOUIS COUNTY, MISSOURI FOR AN EMERGENCY COMMUNICATIONS SYSTEM, AND AUTHORIZING AND DIRECTING THE CITY ADMINISTRATOR OF THE CITY OF BALLWIN TO ENTER INTO, ON BEHALF OF SAID CITY, A CONTRACT WITH ST. LOUIS COUNTY, MISSOURI, FOR AN EMERGENCY COMMUNICATIONS SYSTEM.

A motion was made by Alderman Fleming and seconded by Alderman Boerner for a first reading of Bill No. 3647.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3647 was read for the first time.

A motion was made by Alderman Boerner and seconded by Alderman Fleming for a second reading of Bill No. 3647.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3647 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3647 with the following results: 
Ayes – Boerner, Markland, Fleming, McDermott, Leahy, Finley,  Mellow, Terbrock .    Nays – None.  Bill No. 3647 was approved and became Ordinance No. 10-36.

BILL # 3648 - AN ORDINANCE GRANTING A SPECIAL USE EXCEPTION TO FA XIAN YUAN d/b/a ROYAL BUFFET & GRILL FOR OPERATION OF A RESTAURANT WITH ALCOHOLIC BEVERAGE SALES BY THE DRINK FOR CONSUMPTION ON THE PREMISES.

A motion was made by Alderman Fleming and seconded by Alderman Boerner for a first reading of Bill No. 3648.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3648 was read for the first time.

A motion was made by Alderman Boerner and seconded by Alderman Leahy for a second reading of Bill No. 3648.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3648 was read for the second time.

Findings:  A vote in favor of the bill finds that the Petition, as submitted, would not substantially increase traffic hazards or congestion; would not adversely affect the character of the neighborhood; would not adversely affect the general welfare of the community; would not over-tax public utilities; would not adversely affect public safety and health; is consistent with good planning practice; can be operated in a manner that is not detrimental to the permitted developments and uses in the District; and can be developed and operated in a manner that is visually compatible with the permitted uses in the surrounding area.  A vote against the bill means that one or more of these findings are absent.

A roll call was taken for passage and approval of Bill No. 3648 with the following results: 
Ayes – Boerner, Fleming, Markland, Mellow, Terbrock, Leahy, McDermott, Finley.    Nays – None.  Bill No. 3648 was approved and became Ordinance No. 10-37.

CONSENT ITEMS:  (Budgeted items which are low bid and do not exceed expenditure estimates and/or items which have been previously approved in concept.)

A. Royal Buffet Liquor License
 
A motion was made by Alderman Terbrock and seconded by Alderman Fleming to accept the Consent Item.  A voice vote was taken with a unanimous affirmative result and the motion passed.

MAYOR’S REPORT

Board Vacancy:  Mayor Pogue said that at a special meeting of the Board of Aldermen, the Board vacancy was filled by the appointment of Pat McDermott to the Ward 2 Alderman position, expiring in April, 2011.

CITY ADMINISTRATOR’S REPORT

Easement Vacation:  City Administrator Kuntz said this is a request to vacate the cross access and driveway easement on the assisted living parcel of the Ballwin Grove development.  This will require legislative action. 

A motion was made by Alderman Fleming, and seconded by Alderman Terbrock, to accept staff recommendation for the easement vacation, and to prepare legislation.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Sewer Lateral Repair Program:  City Administrator Kuntz said there are essentially three options:  1) Reduce the reimbursement cap from $3,500 to $3,000, which will require legislation; 2) Raise the tax from $28 to a higher amount, which will require voter approval; 3) Leave it the way it is.  There is a steady stream of eligible reimbursements under the sewer lateral insurance program.  On February 12, 2010, the waiting list started for reimbursement in 2011.  There are 62 people on the waiting list for the new funding at this time.  The total for the year will be about 67.  He said if the reimbursement amount is reduced to $3,000, it would be possible to serve approximately 5 or 6 additional repairs per year.  City Administrator Kuntz said that as houses age, the potential for the underground sewer problems increase. 

Alderman McDermott asked if the analysis takes into consideration the increase in cost for doing the work or is there a contract to cover this amount.  Assistant City Administrator Aiken said that annually there is a contract to establish values for pipe replacement and related work.  This contract is negotiated annually.  The majority of the sewer lateral failures are in clay pipe and is almost always due to root invasion.  Alderman Terbrock said that he has his sewer lateral pipe cleaned out every other year and there are always roots in the pipe.  Assistant City Administrator Aiken said that cleaning out the pipe in this fashion can cost a couple of hundred dollars, as opposed to paying several thousand dollars for a pipe failure.  The program was created to deal with the root issue, which is considered eligible for the program reimbursement.  All charges above the $3,500 limit is the expense of the homeowner.

Assistant City Administrator Aiken said that the program is relatively intensive administratively because every application requires the review of a camera view of the failed pipe. 

City Administrator Kuntz said that Mayor Pogue asked that this be discussed.  Due to the current economic situation, we have been reluctant to recommend a ballot initiative, but the backup for reimbursement payments is a cause for concern.  Alderman Fleming said that the questions are should the amount be modified and would there be an interest in a ballot initiative.  He supports lowering the amount to $3,000 to service more houses.  He is also not opposed to placing this on the ballot.  There will be an increasing number of sewer lateral repairs due to aging homes. 

Mayor Pogue explained to the audience that $28 per year is collected on the St. Louis County real estate tax invoice.  Currently, up to $3,500 is reimbursable to a homeowner for a sewer repair.  In the last couple of years, there has been a backlog of residents waiting to be reimbursed.  As of February 12, 2010, we have been out of funds for 2010 because of the backlog of repairs done in the previous year. 

City Administrator Kuntz suggested that a survey be taken to determine what other cities are doing in this regard.  This will give comparative data to use in making this decision.  City Attorney Jones said that he already has a spread sheet showing the amount collected in 26 cities. 

Alderman Terbrock said that he does not see any problem with putting this on the ballot.  He asked how long does the review process take after a sewer lateral back up occurs.  Assistant City Administrator said that the first step is to call the Government Center and report that the sewer is backing up.  A list of approved contractors that participate in the program is then provided to the resident.  The camera will be run through the sewer lateral and the tape reviewed to determine eligibility for funding.  The resident can then hire any of the contractors on the list to make the repair.  They all charge the same rate because this is a pre-negotiated rate with the City.  The repair is made, and the bill is submitted to the City.  A city inspection is made and there is no charge for the inspection because it is built in to the administrative fee that is taken out of the program.  There are priority inspections and are scheduled the same day the work is done so the homeowner is not without a sewer. 

Assistant City Administrator Aiken said that some residents get the sewer line cleared out and they live with it for a while.  This charge is not covered by the program; however, most of the contractors don’t charge for the cable process or cutting the roots if they are hired to do the replacement.  This is not a condition of the contract, but almost all of them waive the fee if they are hired to do the replacement work. 

Alderman Markland said that it doesn’t sound like raising the fee to $50 will solve the backlog problem.  Assistant City Administrator Aiken said that the funds come available around the first of the year.  The people who have been on the waiting list for reimbursement from the previous year will be paid first.  The current formula allows for approximately 90 repairs in a year.  If the fee is doubled, there will be about 180 per year. 

Alderman Boerner asked about the administrative fee of 10%.  Assistant City Administrator Aiken said this covers the city’s cost of reviewing the tape and doing the inspections.  Alderman Leahy said that he is in favor of lowering the reimbursement to $3,000.  He is also in favor of a ballot initiative.  Alderman Boerner asked if the administrative fee could be waived.  City Administrator Kuntz said the purpose of the fee is not to raise revenue.  It is done to reimburse costs.  There’s no charge for the inspection and no charge for the plumbing permit.  The process has been made as user friendly as possible. 

Alderman Finley said that he would like to see more information provided to the residents.  City Administrator Kuntz said that there is a pamphlet at the Government Center and is explained on the website.  We can run another article in an upcoming newsletter.

Alderman Markland suggested that the reimbursement be rolled back to $3,000 and eliminate the administration fee. 

Alderman McDermott asked if the administrative fee is eliminated, and later the fee becomes necessary, will this have to be placed on the ballot?  City Attorney Jones said that this would not have to be placed on the ballot.  If the Board wanted to change the $28 assessment amount, this would have to be on the ballot. 

Alderman Leahy said that he is in favor of lowering the reimbursement to $3,000 and leave the other items as is. 

Mayor Pogue said that staff time includes clerical to accept and process the application, personnel to review the video, an inspector on the site which takes about1 ½ hour, finance personnel to produce the check, yearly review of the contractors and establish the rates and re-establish the rates. 

A motion was made by Alderman Leahy, and seconded by Alderman Terbrock, to reduce the reimbursement to $3,000.  A voice vote was taken with a unanimous affirmative vote and the motion passed.

City Administrator Kuntz said that this change should not be retroactive for those who are already in the process of utilizing the program.  After legislation is adopted the $3,000 reimbursement cap will be effective. 

A motion was made by Alderman Leahy and seconded by Alderman Terbrock to reduce the reimbursement from $3,500 to $3,000 for new applicants for the Sewer Lateral Program effective upon adoption of legislation.  A voice vote was taken with a unanimous affirmative vote and the motion passed.

HVAC:  City Administrator Kuntz said that regarding the contract that was awarded at the last meeting, further research was initiated in response to a bidder that was designated non-responsive.  This process was conducted with an online bid announcement.  The bidders that responded also inspected the sites.  It was determined that there were two clarifications that needed to be addressed.  The information was communicated with the prospective bidders that we were aware of that had expressed an interest and we had their contact information.  There was a fifth bid and that bidder did not inspect the sites.  In the future, if a bidder is interested, they will have to contact the City and then provide the bidding information.  This will make sure that everyone has the same information. 

City Administrator Kuntz said that the low bidder that was not considered was $9,000 less than the contract that was recommended for award for the local person.  He said that there are no negative elements from the reference checks.  The bid was perhaps prematurely disqualified on the assumption that it was non-responsive. 

Alderman Markland said that he reviewed the proposals.  In the package on October 25, the statement was made that the low bidder was disqualified due to failure to list component parts.  He said this is not part of the requirements.  It was something that somebody made up as a reason to disqualify them.  He questioned why this was used as a purpose to disqualify the firm’s proposal.  Staff failed to keep the proposal information on the website current, and they did this by failing to put the two addendums that had been mailed out to bidders that they knew of, but they didn’t put it on the website.  The real reason that staff disqualified the low bidder was because they felt that Wilson had missed the two addendums, not because they failed to list.  He said he looked at the bid documents.  The bid form has no place to indicate whether the addendums had been received by anyone.  Staff had no way of knowing if anyone had incorporated two addendums in their proposals.  So again, the low bidder was disqualified for no valid reason.  He said it appears that we do not have a system in place for purchasing.  When he was talking with Code Enforcement Supervisor Jerry Klein, he borrowed a package from City Engineer Gary Kramer and put together his program.  He said that Mr. Klein did the best he could, but there isn’t a central program or plan as to how this is done.  He said he is glad the low bidder protested and that the error hopefully will be reversed and awarded to the low bidder, saving Ballwin residents $9,000. 

A motion was made by Alderman Markland to award the contract to Wilson Group. 

Mayor Pogue said that aldermanic comments on this item should be heard before voting on this.  Alderman Finley asked if there are any legal ramifications for rescinding the award to Wiegmann and Associates.  City Attorney Jones asked if Wiegmann has posted a bond yet or obtained surety.  City Administrator Kuntz said that he understands that they have not.  City Attorney Jones said that a similar situation occurred several years ago.  The question was if funds had been expended in reliance upon our reward.  It was determined that they had not in that situation.  City Administrator Kuntz said that as soon as we received the protest, Weigmann was contacted and told to wait.  City Attorney Jones said that under those circumstances, he doesn’t think there would be a legal problem. 

Alderman Fleming said the following:  “Alderman Markland did a diligent job of inspecting all of the documents.  As I recall, his e-mail that was sent later that day, he said right decision but for the wrong reason.  In other words, he wasn’t required to itemize things out, but he didn’t respond to the addendum, so, that ended up being the real reason.  If that’s the case, maybe we made some mistakes and we can see an opportunity for improvement in the future.  He still didn’t respond to the addendums.  If he had communication with us, inspected the site, called us, he would have had the opportunity to respond to those addendums.  He bears at least some of the responsibility for being non-responsive to those addendums.”

Alderman Markland said, “He wasn’t required to – no one did.  Absolutely no one said that they had those addendums.  It’s a moot point.  The bid form didn’t even ask.  Most bid forms I’ve seen say that addendums 1 and 2 or such and such were received.”

Alderman Fleming said, “Help me understand how you went from the opinion of right decision for the wrong reason to understanding, after the gentleman protested, additional information?  Why was it unfair to him when he didn’t come out and invest the time to look at the site like anybody else.  That’s what I have concerns about.  I quite honestly have concerns being that much under, having never looked at the site, will he cut corners, will he be as responsive as somebody locally?  I don’t know.  I have concerns about that.  I would rather look at it as an opportunity to do better in the future than back up the truck and redo this one.” 

Alderman Markland said, “The difference was that I slept on it overnight and thought that this is ridiculous because there is no proof that anybody bid it with the addendums.  Absolutely none.”

Mr. Charles Welegala, of Heartland Alternative Energy, the project manager and grant administrator for the grant Ballwin has received from the State of Missouri, said that “all of the addendums were sent out to the prospective bidders of record.  In conversation with two of the bidders, they considered the addendum when they submitted their bid.  Under the document that was sent out, it said that the City of Ballwin has the right to reject any bid for any reason.  They don’t have to give a reason.  When we received the bid from the Kansas City company, we looked at the website and we did not see much documentation, they never visited the site as the other four bidders did.  Not that they didn’t have the credentials, but they weren’t an HVAC contractor as the other four bidders were.  They have experience, but they are a general contractor.  Usually a general contractor hires a company for the HVAC work.  They didn’t address the addendums.  These are the reasons why they were rejected.”

Mr. Welegala said the question was asked why we did not split the bid into three separate buildings – Government Center, Police Station, and Banquet Center.  He said the reason for that was because there would be additional costs with a crane to lift three air conditioning units from the roof of the Government Center, and one from the Police Station.  If three different people had it, there would be additional cost and not the full savings.

Mayor Pogue said that there was a section in the RFP that recommended a site visit.  Mr. Welegala said that the other four companies did make the site visit and inspected all three buildings and the work involved was put into their bids. 

Alderman Boerner said that according to the e-mail that he read, they came to the Government Center.  Is that correct?  City Administrator Kuntz said that the company that has protested did not come at all.  Alderman Boerner asked if they requested a list of the people who submitted a bid.  Mr. Welegala said that the bid was under stimulus money.  All of the bidders and bid that they submitted, after the bid is awarded, have to be published.  The low bidder does not have to be awarded the contract. 

Alderman Terbrock said that the e-mail that Alderman Boerner is referring to reads as follows:  “On October 19, I had Matt in my office call the City to inquire about bid results.  He spoke with Jerry Klein and was given the following information as the result:  1) Wilson ……”   

Mayor Pogue asked if there were any bidders present during the bid opening.  Mr. Welegala said that Wilson was not present but three of the other bidders were present. 

Alderman Terbrock asked if we award the contract to Wilson, will there be add on charges.  Alderman Markland said that someplace in the contract, it says if you don’t look at it, there’s no excuse in the future to ask for more money because there was something that they didn’t see.  If they choose not to visit the site, they do this at their own risk. 

Alderman Markland said that the paperwork that was received should have awarded this to the low bidder because none of the reasons we stated for rejecting it were valid. 

Alderman McDermott said that he is okay with going with the lower bid, but only if we know the details.  If there’s something that we have missed, we will spend more than $9,000 to make up the difference.  Alderman Fleming asked if Ballwin is on the hook for anything if it turns out that the low bid is wrong because he didn’t visit the sites?  Mr. Welegala said that he can submit for alterations.  Basically it would be his responsibility.  He said the Banquet Center has a very complicated system because under the stimulus package, you cannot use Carrier equipment.  Carrier is made in Mexico.  Replacing with the same units would require an alternative, and there could be an extra cost involved in that.  It stipulates in the contract that it has to meet all American made specifications. 

Mr. Welagala said that city crews are doing a lot to help reduce the cost.  Covering part of the cost is removing a wall etc. for easier access for whoever gets the contract. 

Alderman Markland said that he didn’t see anyplace where it said list the equipment and materials.  He said that’s why the bid was thrown out.  By not putting a disclaimer at the back listing everything, there is probably more included than the company who wrote what would be included. 

Mayor Pogue said that in the Request For Bids packet it states the following:  “Each bid shall be itemized in component parts as set out in the bid proposal form to be submitted on or before the date and time for receiving bids.  Each bid shall specify unit prices for all items and shall make extensions based upon quantities listed.  Some of the products and quantities listed in the bid proposal for submitted multiplied by the unit price bid shall constitute the gross sum bid.”  He said the addendums are outlined in the e-mail that he sent back to Mr. Wilson.  It states that instalation of roof top units shall include curb adapters, economizer shall not be included on all roof tops, and the bid is to include air handlers and duct furnaces at the banquet center.” 

Alderman Boerner said that we don’t have enough information to award the contract to Wilson and Associates. 

Alderman Fleming said that, based on what Mayor Pogue read, Alderman Markland said that it didn’t require someone to itemize, but the contract states that it does. 

Mr. Welegala said that Wilson was the low bidder, but without the inspection, they couldn’t give a good bid because they didn’t know if there were any problems, etc.  He said we were trying to get the most value for the amount of bid to stay within the budget.  The other bids that were submitted were more detailed and accurate than the Wilson bid.  He said that when he looked on Wilson’s website, he didn’t see their qualifications.  That was another reason why it was believed that the local bidders were more qualified than the out of town bidder.

Mayor Pogue asked if the other four bidders itemize what sort of roof top units would be used.  Mr. Welegala said that he believes they did. 

Mr. Welegala said that the four St. Louis bidders submitted their maximum bid.  They knew the specifications and the difficulties and bid accordingly.  He said he cannot say that for Wilson.  Alderman Boerner said that it would appear to him that if someone is in this business, a bid would not include just a lump sum amount like Wilson did.  He said that the details should be stated what goes into the bid. 

Alderman Markland said that when you look at the two pages that he was given, all they had to do was list the individual buildings, and that’s what they did.  Alderman Boerner said that he finds it difficult to believe that someone in this business would assume that the only level of detail requested is just by building. 

Mr. Welegala said that it is a simple equipment replacement at the Government Center and Police Station.  The problem is at the Banquet Center where there are complications.  He said that in his business, he bids routinely on street lighting and indoor lighting on federal, state, and local contracts.  Specifics are always asked for per unit.  A routine bidder would break it down for the specifications.  Alderman Markland said that this was not handled very well at various different levels.  Mr. Welegala said that all he did was review the specs and give a recommendation.  It wasn’t his decision who was chosen. 

Alderman Terbrock asked if the bid form is ours.  The RFP states it has to be itemized, but the bid form gives no room for that.  Alderman Boerner said that this is the problem. 

Alderman McDermott asked Deputy Director of Parks John Hoffman for his professional opinion on this issue.  Deputy Director of Parks Hoffman said that he agrees with Charles and Jerry Klein.  The reason that he too wanted to award the contract to Weigmann is because Wilson did not come and look at the sites.  The Banquet Center is a difficult installation.  It’s not just lifting a crane and taking off the old one.  They will have to dismantle something to get it into position, the size of the units to be more energy efficient are bigger.  To get them to fit is a challenge.  He said that four of the bidders came multiple times to the sites with salesmen, technicians, and engineers to check it out.  The bidder from Kansas City didn’t come at all.  He said that worried him about their bid.  Alderman McDermott said that the unit is bigger and heavier, and going to be placed on the roof above the public’s head.  The company with the lowest bid did not come nor send an engineer, and we are assuming that they understand the installation.  Alderman McDermott said that we could potentially be putting ourselves in a difficult situation.  He said that he is willing to spend $9,000 because this is about safety with a lot of structural integrity required.  This should be a learning experience for the future and to continue with the award to Wiegmann. 

City Attorney Jones said that the bid has already been awarded to Weigmann. 

Alderman Fleming said that Alderman Markland had presented a motion to award the contract to the Wilson Group.  He asked Alderman Markland if he still wants to do this or take no action.  Alderman Markland said that it sounds like there is a lot of concern that Wilson didn’t look at the project, that a site visit was mandatory.  It didn’t say that in the contract.  Since it has been pointed out that this is so critical, $9,000 could be blown very quickly.  He withdrew his motion. 

The Board agreed to not take any action to rescind the bid.  City Administrator Kuntz said that re-confirmation will be made tomorrow and to process the contract based on this discussion.

Future Meetings:  City Administrator Kuntz said that the Budget Workshop will continue at the end of this meeting. 

STAFF REPORTS

Message Signs:  Assistant City Administrator Aiken said the Board had passed a moratorium on the issuance of any permits for electronic message signs.  Research has been requested as to what kind of regulations may be appropriate for Ballwin to put in place for signage in the community.  On a Missouri interstate, signs cannot be closer than 600 feet apart.  On Manchester Road, signs could be much closer.  The issue is the nature of the way the sign changes and how often it changes.  Areas that have a lot of vehicular traffic are more limiting in the frequency and nature of change than areas that are pedestrian oriented because the danger is not so great.  His suggestion is based on the Minnetonka, Minnesota regulation with a  20-minute change rate and no sequential messages.  Human nature is to watch a changeable message to the end.  The danger would be that drivers are watching the changing message instead of traffic.  He said he tried to write the recommendations in the fashion that the current sign code is structured. 

City Administrator Kuntz said that the sign regulations do not go through Planning & Zoning, but are a Board of Aldermen regulation.

Alderman Markland said that tonight, the City of Creve Coeur is voting on the same thing.  It might be helpful to see what happens.  Assistant City Administrator Aiken said that Creve Coeur has a 3 face billboard that changes, and the question is should it change more frequently for more variety with an electronic format. 

Alderman Terbrock said that the message sign on Manchester Road that has red and blue lights is very distracting because it appears that police car lights for an incident are in use.  Assistant City Administrator Aiken said that he believes it is stated in the code that signs cannot conflict with emergency vehicles and traffic signals.  He said that there’s no purpose in creating a standard that cannot be measured and enforced, which is what some cities have done with the brightness issue.

Alderman Finley asked about the statement “such signs should be at least 200 feet away from any single-family residential zoning district on the same side of the road and 100 feet from any single-family zoning district on the opposite side of the road”.  Assistant City Administrator Aiken said that this issue comes into play on Clayton Road, most directly for Ballwin Grove Development at the corner of Clayton and Henry.  There are residential uses across the street and adjoining residential uses next to commercial.  There is some of this mixture at the corner of Clayton / Kehrs Mill where Claymont Plaza is located.  If someone lives across the street from commercial zoning, there will be some disruption.  At a distance of 100 feet or 200 feet away, the brightness will be lessened. 

A motion was made by Alderman Finley and seconded by Alderman Terbrock to draft legislation as proposed in the memo by Assistant City Administrator Aiken, taking into consideration the aldermanic suggestions.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CITY ATTORNEY’S REPORT

Clayton Corners Development:  City Attorney Jones said we have submitted additional materials to the surety bond safeguard company.  He contacted the adjuster and she said that there will be a response this week from the surety.  He said we demanded that the work be done by October 31.  The did not do the work by October 31.  Under the existing bond document, the only option we have is to do the work ourselves and then try to recover it from the surety company.  We are running out of time to do this this year.  He said he is hoping that there will be an opportunity after the surety responds to negotiate something that can be done in the Spring, hopefully through a negotiated contract, as opposed to the City doing the work, spending the money, and then trying to get it back.  The proposal that this Board authorized on September 13 was to release $28,000 if the contractor would use it to complete the street.  The developer / contractor has refused.  They said no, we should keep $28,000 and release all the rest of it to them.  They will use that cash to do the streets, and then the remaining $28,000 would be released like they should have all along.  He said they contend that this bond allows for line item releases.  He said it clearly does not.  It’s performance and completion with a maintenance bond, which is not governed by line item releases.  He said that if the surety does not provide a good result, we could end up with a situation where we are either thinking about initiating litigation ourselves, or we may be in a situation with the developer who may sue the City of Ballwin. 

ALDERMANIC COMMENTS

No Left Turn:  Alderman Terbrock said that there is a big problem with cars waiting to turn left from Ramsey onto Manchester Road.  He said this causes a long backup on Ramsey Lane.  He suggested that a left turn time limitation be applied at this location like there is on Steamboat for left turns onto Manchester Road.  City Administrator Kuntz suggested that  Police Chief Schicker conduct field verification and make a recommendation for Board consideration at a future meeting.  This is not an accident issue.  It is a congestion issue.  There is not a left turn lane to accommodate left turns like there is on Steamboat.  The Board agreed that evaluation of left turns at this location is necessary.

Cell Tower For Ferris Park:  Alderman Fleming said that the petitioner has withdrawn their petition for this project. 

U-Gas Proposal:  Alderman Fleming said the U-Gas proposal was approved by the Planning & Zoning Commission.  He said the vote was 6-2 with one abstention.  He said that he voted in favor of the proposal and Mayor Pogue voted against it.  He encouraged the Board members to carefully consider the plan.  He said the proposal includes a strip of land owned by the City that is near the Government Center along Seven Trails Drive that will require building a retaining wall.  The Board will have to make a decision how this will be handled. 

Bids and On-site visits:  Alderman Leahy said that under certain circumstances on bids, onsite visits should be required before placing a bid.  Mr. Welegala said that an on-site visit can be a mandatory requirement. 

HVAC and In-car computers:  Alderman Markland said, “When looking at the HVAC bid information, I got really upset when I started reading the language and then found out that it wasn’t true and misleading.  That caused me to look back at the September 27 meeting when we were asked to approve the purchase of the in-car computers.  I found that it’s the stuff that isn’t told that is probably the most important.  First, reading the information that we were given, staff said they went to the Missouri website and obtained a Panasonic quote for a Tough Book, probably perfect, legal, pre-negotiated, a safe harbor.  Then they went directly to Data 911 to get a quotation.  When I was sitting in the audience and giving the Board trouble regarding purchasing, then last February, you came up with a purchasing ordinance.  You said that if it was in excess of $10,000, it had to be bid.  I believe this has to be bid because it is in excess of $10,000.  However, staff decided that Data 911 was a sole source supplier and they went directly to them for a purchase price.  That is contrary to Section 2.4.2 of what you wrote that says if it’s a single source, the Board of Aldermen may waive the requirements of competitive bids for proposals when the Board has determined in writing and entered into the Board minutes.  We had never been approached about it.  They went off and did it, saying it’s a sole source.  It isn’t.  How in the world could Panasonic that is a large company, not supply something similar to what Data 911 had, and the key to what we were looking for was the removable keyboard so that they could put it on the steering wheel and type.  If they had gone out for bid, like they should have, and not just say I want a Data 911 quote, we can’t do that.  We need to say we want a monitor, keyboard, central processor, and here’s what we want to do with it.  Then we will get competitive bids.  I have no idea what Panasonic would charge you for this.  We don’t either.  We didn’t ask for it.  They made the decision that it was sole source.  It took me two telephone calls to find out that there are other options.  People that are essentially in the business of buying that stuff should be a little bit more aware of how to do it.  We’re just not doing it right.  Basically, our purchasing process is out of control.  I want to know what our City Administrator is going to do to assure that his job duties, under Section 2.148b, says that supervise the operational activities of all city departments, agencies, and offices.  Number 10 is supervise the preparation of all bid specifications for services and equipment.  It’s not being done.  2.148f says, supervise in the manner prescribed by ordinances, the purchases of all material supplies and equipment for which funds are provided in the budget are appropriated by the Board of Aldermen.  This is where it starts.  We’re discussing HVAC, and we made a gross error in Police Data 911.  We did not follow the ordinance.  I had asked that this be made an agenda item so that everybody would be prepared to discuss it.  That request was refused.”

City Administrator Kuntz said that he got the request at 7:30 on Friday night.  Alderman Markland said that it wasn’t sent to him on Friday night.

Alderman Markland said, “We were assured at the last meeting that a refusal to add an item would never happen.  It happened.  Five of us voted to make it a policy.  If Frank Schmer would have been here, I’m sure he would have voted to make it a policy and it would be a policy now.  In part, I think that was part of Frank’s frustration and that’s why he’s not here tonight.  This kind of stuff, whether it got on the agenda or not, I can bring it up under Aldermanic Comments, but I don’t think it’s the appropriate way to do it.  I think an agenda item is where it belongs.  I brought it up right now, since there are some severe problems in purchasing.  It’s out of control, and I think it needs to be immediately corrected.”

Mayor Pogue said, “Alderman Markland, I have a copy of the e-mails.  It shows that this e-mail was sent on Friday, November 5, at 7:57 p.m.”.  Alderman Markland said he will check it.  Mayor Pogue said that at that time, the packet had already been distributed. 

Alderman Markland said, “You know what, you are absolutely right, because you did respond to my request.  I asked if I could see the RFP, and I finally got that on Friday.  At that point, it’s when I said it should be an agenda item to discuss.”  City Administrator Kuntz said, “The dates are there and I’m not trying to make any of this up.”

Alderman Markland said, “If the bids had it been handled correctly, we would have $9,000.  I don’t know if we spent any money for the Data 911, but some of the stuff I got from Panasonic, it sounds like it might be cheaper to buy the three parts than to buy a Tough Book laptop.  There were no prices quoted.  I think we all need to think about this.” 

Alderman Terbrock asked, “What do we do from here?  This has been your issue that you brought up when you were standing out there in front of us.  We did change all of that.  We have to move toward implementing it better.  Is that what you are stating?”  Alderman Markland said, “At that time I thought they’ve got the solution.  Just having it and not acting on it, because it doesn’t appear that anybody is following it.  I do mean anybody – Public Works, Administration, Police Department – we’re not following it.  It’s pretty clear what you wrote.”

Alderman McDermott asked for an explanation of what has been purchased.  Police Chief Schicker said it was a replacement of four Panasonic computers that were purchased in 2005.  The IT department went out for the bidding on that and provided the information.  He conducted an internal survey of use of both the Panasonic and the Data 911 Tough Book, and provided that information to IT.  We were replacing 4 computers for purchase in 2005.  This was different equipment.”

Alderman Markland said, “Again, I am saying that the procedures that you laid out are being violated.”  City Administrator Kuntz said, “I asked the City Attorney to review the purchasing ordinance because I don’t think it’s as clear cut as Alderman Markland indicates.”  City Attorney Jones said, “This is the first time that I’m aware of a sole source purchase since this purchasing policy was adopted as an ordinance.  The section does require that the City Administrator or a representative of the appropriate department make a presentation at the meeting, and that the Board of Aldermen verify that it is indeed a sole source for the purchase.  There was such a presentation made.  There was material in the packet, there was the State bid, there was the comparison pricing from the sole source vendor, a recommendation from staff, and the Board of Aldermen considered it, voted, and made a decision.  As long as that documentation is then attached to the purchase order, it appears to me that section 2.4.2 was followed.” 

Alderman Markland said, “If you are going to declare it a sole source, you have to get approval.  They had already made the decision and got the proposals, and it turned out it wasn’t even a sole source.”  City Attorney Jones said, “I understand what you are saying.  That would be one way to read it, but it appears to me that this section requires that finding before the purchase, not before the bid and not before the staff report.  You didn’t purchase it.  Staff gave the options to this Board.  This Board considered the options and made a determination.  It appears to me that the section was followed.”

Alderman Boerner said, “Alderman Markland is saying that it was not a sole source because Panasonic apparently manufactures a similar product.  On the other hand, within that ordinance, we have built in, that also, at our discretion, if we are justified, we can do pretty much whatever we want to do, if we have justification for doing so.  I agree that if there was another source, than that should not have been a sole source, and if there was another reason for us doing it, then we could have done it.”  City Attorney Jones said, “In Section 2.4.4, it says that the Board of Aldermen shall have the power to waive all or any of the above criteria if in the opinion of the majority of its members it is beneficial or expeditious for the city to do so.  I don’t believe that there was such a finding made at the October 25 meeting.  Perhaps there wasn’t such a finding made even with regard to the sole source, but it was presented that way and was voted upon by the Board.”

Alderman Markland said, “It was presented as a sole source.” 

Alderman Fleming said, “I remember right after we implemented the new purchasing policy, there was an item on the agenda later that night or at the next meeting, that clearly we all would have fired up our hands and said Aye, so I said to wait a minute because we just put in this new policy and we don’t have three bids on this.  We went back and got a couple more bids.  The point is stuff like that can sneak by sometimes.  Maybe that’s what happened at this meeting, but we had the opportunity to say something about it that night, and no body said anything about it that night.  If it’s apparent to you now, it should have been apparent to you then.  It would be more productive for us to say it at the time instead of after the fact.  Anytime you bring something like that to their attention ahead of the meeting, they always address it.  If you would have brought that to everybody ahead of time, some people might have…..”

Alderman Markland said, “I am not going to accept the responsibility for doing their job.  If they f_ _ _  with me, then they’re lying to me.  And that’s the difference.”  Mayor Pogue said Alderman Markland is out of order.  Alderman Markland said, “I’m out of order, but they still owe us the truth.”

Alderman Fleming said, “All I’m saying is, it’s been my experience ahead of time, the will address it.  It’s easier to address at the time rather than a couple of meetings later.  I don’t think I’ve ever spoken against your right to try and bring up these good points, and I wouldn’t as the President of the Board.  It’s productive to bring up good points.  It’s more productive at the time than two meetings later.”

Alderman Markland said, “I do not appreciate being lied to by staff, by giving us information that they should have known better.  If you’ve got an IT person that doesn’t know and can’t ask this, then we’ve got the wrong person doing that research.  I have a habit when somebody tells me something, I believe it’s true.  I don’t believe it anymore, and I don’t think any of us can, and you just said we better double check everything.  I don’t think that’s in our job description.”

Alderman Fleming said, “I know I personally ask questions about the laptops in the past, because I have some experience in the field.  Having asked those questions in the past, I didn’t see the need to ask them this time.  I guess I would say that if there’s a concern that you have, you are more than welcome to reach out to me as well.  I remember we talked about this before, and here’s what we talked about.  I’d be happy to share any of that with you as well.  From my perspective, that’s why I didn’t ask because I kind of remembered the discussion of the pros and cons of each in the past.  For me it came down to, yeah, I remember.  If I’m 5’9” and 185 lbs. sitting in the squad car, I’m cramped.  There are a lot of police officers bigger than me, so that detachable keyboard helps.  I remembered that from the past.  That’s why I didn’t ask anything else about it.” 

Alderman Markland said, “That’s deceptive and becomes …..”

Mayor Pogue asked if anyone else would like to comment on this topic.  There were none.

Adjourn:  A motion was made by Alderman Fleming and seconded by Alderman Leahy to adjourn.  The motion passed unanimously and the meeting was adjourned at 9:35 p.m.

TIM POGUE, MAYOR

ATTEST:
ROBERT A. KUNTZ, CITY ADMINISTRATOR

MC