The Meeting of the Common Council was called to order at 7:04 p.m. on
Tuesday, July 12, 2005. It was noted
that the meeting had been announced and a notice posted at City Hall.
Roll call was taken, with the following members present: Mayor Jim
Bialecki, Ald. Mike Giese, Ald. Diane Oldani Wulf, Ald. Gary Gonczy, Ald. Jim
Olson, Ald. Kim Smith and Ald. Bill Leathen.
Also present were: Financial Services Director Fred Buehler, Human
Resources Specialist Liz Green, City Attorney Gerry O’Flaherty, Public Works
Director Ron Lund, and Land Use & Development Director Jason Gilman.
Item 2 - Pledge of Allegiance
The Pledge of Allegiance was declared.
Item 3 – Amend and Approval of minutes from previous meeting.
Mayor Bialecki noted that Lines 1 and 2 of the minutes of the previous
meeting should read, “June 14, 2005”.
Motion by Ald. Leathen, second by Ald. Wulf, to approve the minutes from
the previous meeting as amended, printed and on file in the City Clerk’s
Office. On voice vote, motion carried.
Item 4 - PUBLIC INPUT: (limited to 3 minutes/individual)
Mayor Bialecki turned the agenda item over to anyone wishing to provide
input.
Bill Rollins of Aquatica Design addressed the Common Council. Mr. Rollins read into the record a letter
dated July 12, 2005 from Mr. Rollins, to the Members of the Onalaska Common
Council:
“Common Council Members:
It is my understanding that the Common Council
will be asked tonight to reject payment to Aquatica for services rendered. This
letter is to inform the Common Council that non-payment would constitute a
violation of the contractual agreement between the City of Onalaska and
Aquatica Design LLC.
The contract Between the City and Aquatica is a
standard American Institute of Architects document, B 151, 1997 Edition. In this
document, a range of items are discussed including
Contingent Additional Services, Dispute
Resolution, Termination or Suspension, and Payments to the Aquatic Facility
Design Consultant. The invoices you will be asked to reject cover payment for
Basic Services, Reimbursable Expenses, and Additional Services, and were
approved by the Onalaska Aquatic Center Building Committee on July 5th, 2005.
Under Basic Services, Aquatica is billing for the
Construction Administration of the project in the amount of $1,785.54. Under
Reimbursable Expenses, Aquatica is billing for printing, postage and State
Review fees (in the amount of $519.08). Under Additional Services, Aquatica is
billing for time to address the State of Wisconsin's enforcement of a new Storm
Water Code, and the reimbursables associated with that enforcement (in the
amount of $4,158.47).
Under Article 3 (Additional Services) of the
contract, section 3.3.1.2 indicates that making revisions in drawings,
specifications or other documents are considered additional services when they
are "required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents". In this instance, the
site storm water design was completed by The Stubenrauch Architects, Inc. in
August of 2003. The City of Onalaska suspended completion of the construction
documents at that time due to budgetary constraints. Therefore, the services
provided by Aquatica during August and September of 2004 to address the State
of Wisconsin's enforcement of a new storm water code (which, incidentally, was
not officially in effect until October of 2004) constitutes Additional
Services.
Under Article 10 (Payments to the
Aquatic Facility Design Consultant) of the contract, section 10.2.1.2 indicates
that "fees paid for securing approval of the authorities having
jurisdiction over the Project" are considered reimbursable expenses.
Additionally, section 10.2.1.3 indicates that the cost of "reproductions,
plots, standard form documents, postage, handling and delivery of Instruments
of Service" are considered reimbursable expenses.
Also, under Article 10 of the contract, section 1
0.3.2 states "Subsequent payments for Basic Services shall be made monthly
and, where applicable, shall be in proportion to the services performed within
each phase of service".
Though attempts to receive a direct response from
the City of Onalaska have failed, Aquatica understands that the motivation for
denying payment to the firm is the concern of the Finance
Department related to the responsibility of
payment for outstanding Change Orders. However, section 10.5 of the contract
states "No deductions shall be made from the Aquatic Facility Design
Consultant's compensation on account of penalty, liquidated damages or other
sums withheld from payments to contractors, or on account of Changes in the
Work other than those which the Aquatic Facility Design Consultant has been
adjudged to be liable." Aquatica has not been adjudged of responsibility
for any items currently in dispute.
Additionally, Article 7 (Dispute Resolution)
indicates that disputes between the City of Onalaska and Aquatica Design LLC
are to be handled first by Mediation, and then by Arbitration if a resolution
cannot be reached. Specifically, under section 7.1.2 the contract states that a
"Request for mediation shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association." As of this
writing, no such document has been received by Aquatica.
Failure to approve Aquatica's payment this date
will be viewed as a violation of the contract”.
Mr. Rollins said, “As I understand it there are
primarily two issues on the Aquatic Center project in which the Finance
Department feels that we in some way might be liable.
“The
first is for a trench drain configuration that was designed around the
perimeter of the deck. This was designed by the Stubenrauch Architects. When we took over the project, we assumed
the drawings that they had already completed.
There have been issues with these drains. Aquatica has worked diligently
with the contractors in the field and the City to come to a conclusion on how
that can be installed.
“Additionally, I’ve had conversations
today with the contractor who is responsible for that portion of the work. And
we have reached an agreement that if I can receive payment today, the change
order (in the amount of $1,467), that that will no longer be an issue for the
City’s concern. However, if I don’t
receive payment tonight, I will be unable to resolve that issue for the
City.
“Additionally in Wisconsin, under
Wisconsin law, it is the supervising professional’s responsibility – he is the
person liable – if there is a design fault in the drawings relative to
installation in the field. In this
particular case, because we were assuming drawings from Stubenrauch Architects,
we actually had the then-president of Stubenrauch Architects act as the
supervising professional. So,
technically if the City were to want to go after somebody relative to the
trench drains, they would actually go after Paul Dinkins, who is the president
of Stubenrauch, and not Aquatica.
“The second issue is relative to the
gutter configuration. One of the
directions of the Building Committee last week was that I provide a letter
indicating who or what caused the issue that we had relative to the gutter
problem on the project. I do have a letter that is complete, however I had a
conversation today – actually at ten minutes to 5:00 – I was finally able to
make contact with Lanita Dawkin, she is the supervisor for the State of
Wisconsin responsible for all aquatic projects in the State. So, she is the top
of the chain of command. Lanita
actually was present during the inspection by the State Inspector – his name is
Jim Winninger – and I was present as well.
And, in her estimation, if in fact the contractor should indicate that
somehow we have done something faulty on the drawings, it’s a red herring. There were a number of problems with the
gutter design. There are continuing to be problems with the gutter design as it
has been installed and they are not the fault of Aquatica.
“I would like to show some images of
another project that was constructed in 2002 under the same State of Wisconsin
code, the exact same detail, for a project in Plymouth; so you can see what
that gutter looks like. And then I will
show you images of what the gutter that you have installed on your project look
like”.
Mr. Rollins presented images to the Common
Council.
Mr. Rollins said, “The letter I was asked to
provide was also asked of the pool contractor. My understanding at this point
is that a letter has not been received”.
In response to a question from Mr. Rollins, Fred
Buehler stated that he had not yet received a letter from Badger Swim Pools.
Mr. Rollins said, “In the conversation I had with
Lanita Dawkin today, what she reinforced was that the gutter – in terms of the
slope of the gutter – had not been installed per the drawings; that the slope
that we had indicated bordered on – from her perspective – what would be
allowable by the State. But, what was actually installed was substantially more
than what was allowed. She also
indicated if the gutter had been installed correctly – in the case I showed
you, Plymouth, which is the exact same detail – there is about a quarter-inch
variation beyond what we had on the drawing. But, no State Inspector ever
noticed it because the gutter grading looking good in terms its installation.
In this case, the nosing of the gutter was so low – beyond what we had
indicated on the drawings – that the entire beach entry portion of the pool
would not skim.
“Certainly, from Aquatica’s
standpoint, we feel no responsibility for our contractor’s inability to perform
the work per the drawings, nor in compliance with the State code. We on this
project secured State approval – both on the pool drawings, on the bathhouse
and all of the site work including the storm drainage. There is no reason for the City to deny us
payment tonight.
“Additionally, I just want to point
out that there are conditions within the contract. Article 8, Termination or Suspension, 8.1 says that, ‘If the
owner fails to make payments to the architect in accordance with this
agreement, such failure shall be considered substantial non-performance and
cause for termination or, at the architect’s option, cause for suspension of
performance of services under this agreement. If the architect elects to
suspend services prior to suspension of services, the architect shall give
seven days written notice to the owner’.
“If we do not receive payment today,
we will issue a termination letter tomorrow morning.
“8.6 of the contract says, ‘In the
event of termination, not the fault of the architect, the architect shall be
compensated for services performed prior to termination together with
reimbursable expenses then due and all termination expenses as defined in
Section 8.7’.
“8.7 says, ‘Termination expenses are
in addition to compensation for the services of the agreement and include
expenses directly attributable to termination for which the architect is not
otherwise compensated, plus an amount for the architect’s anticipated profit on
the value of the services not performed by the architect’.
“Although Aquatica has no
responsibility for the trench drain scenario, as we did not design that work,
it is our intent – as it has been all along – to work in good faith with the
City of Onalaska. If we receive payment
today, we will make payment to Jurowski Construction in the amount $1,000 and
that change order for $1,400 goes away.
“Relative to the issue on the gutter,
the City has every right to come back to the contractor – and it is indicated
on a punch list, which we have completed, and the State has also identified it
in their approval – that the contractor needs to come back in the fall and make
that correct.
“It was through the pulling of a
substantial amount of strings on our part that the facility was allowed to
open. The gutter was in serious non-conformance and the pool did not skim. So, I would hope that you folks would consider
payment of Aquatica tonight. Thank you”.
Mayor Bialecki called three times for anyone
wishing to address the Common Council.
Jim Nelson, Post Commander of the Onalaska
American Legion addressed the Common Council.
Mr. Nelson said, “I’m here in response to Item – under the
Administrative Committee – it’s paragraph 8 in the agenda, subparagraph B, 1
& 2.
“I
had met with the Administrative Committee a week ago and we discussed the
agreement between the City and the Legion and we did not come to an agreement
on it at that time. As I stated at that meeting, we would discuss this at our
Executive Committee meeting, which was last night, and we did. What they have
recommended to me – and what I am here to do – in the spirit of cooperation
with the City, we are going to accept a couple of items. And, we are willing to go – rather than the
$800 – we would be willing to go and split that.
“And,
also, as far as the benches – the modification of structure, the placement of
benches, et cetera – we would work with the City on that prior to any bench
placement. However, at this point we do
not have any sales of benches. That’s been terminated because of our space
issues.
“As
far as the brick issues on it, that’s within the purview of the footprint. That’s a replacement issue, it’s not an
addition to the Memorial. I offer that as a recommendation in good faith.
“We have also talked to the option,
which (is) the Statement of Intent.
And, I’ll just wait to see if you agree with this and we can move on”.
Mayor Bialecki called again for anyone wishing to
address the Common Council. Hearing
none, Mayor Bialecki continued on with the printed agenda.
Item 5 - REPORT FROM THE MAYOR.
A. Appoint members to
Administrative Review Appeals Board.
1. Joe Laux
2. Tom Brock
3. Bob Bue
4. Mike Herro, Alternate
Mayor Bialecki reported that if the appointments are approved, the
members would receive an orientation from Attorney Smith as to their new
role. Mayor Bialecki reported that the
Board would first meet in mid- to late-August, contingent upon necessary
paperwork being filed with the Clerk.
Motion by Ald. Gonczy, second by Ald. Olson, to approve the appointments
to the Administrative Review Appeals Board for Joe Laux, Tom Brock, Bob Bue,
and alternate Mike Herro. On voice
vote, motion carried.
B. Resolution 28-2005 – to amend the membership of the Mississippi
River Valley Communications Commission.
Mayor Bialecki reminded that approximately three years ago, the
Mississippi River Valley Communications Commission was formed on behalf of
numerous communities in Wisconsin and Minnesota that had concerns in regard to
cable television services and in attempt to find another provider.
Mayor Bialecki reported that the Minnesota communities have since found another
provider. The membership of the
Commission must now be amended by Resolution to only Wisconsin
communities.
Mayor Bialecki noted that the other members’ communities (see list of
members following the Resolution), also have or will be passing similar
Resolutions.
RESOLUTION 28- 2005
A RESOLUTION AUTHORIZING THE CITY
OF ONALASKA TO AMEND THE MEMBERSHIP OF THE MISSISSIPPI RIVER VALLEY
COMMUNICATIONS
COMMISSION
WHEREAS,
representatives of Wisconsin
municipalities of Onalaska, La Crosse, Sparta, Bangor, Tomah, West Salem,
Holmen, Town of Medary, Campbell and Onalaska have been meeting for the purpose
of discussing the provision of cable television and communication services to
said municipalities,
AND,
WHEREAS, the municipalities
involved in such meetings have concluded that a more broad-based and formal
organization could provide significant benefits to those municipalities who are
members of such organization,
AND,
WHEREAS, said municipalities
wish to amend the membership of the Mississippi River Valley Communications
Commission,
AND,
WHEREAS, the purpose of such
commission would be to explore all facets of the provision of cable television
to the commission members, including, but not limited to entertainment and
business applications of cable television, with the goal of providing high
quality, high capacity data transport services that are for the commission
members and their residents and businesses,
AND,
WHEREAS, the Common Council of
the City of Onalaska believes that the City, its citizens, and businesses would
derive considerable benefits from membership on this commission,
NOW,
THEREFORE, BE IT RESOLVED that
the City of Onalaska assist in the amending the membership of the Mississippi
River Valley Communications Commission, and that it encourages other area
municipalities to join in this effort.
BE IT
FURTHER RESOLVED that a
committee of these various municipalities shall be formed to propose the roles
and responsibilities of the Communications Commission. This committee will
consist of one elected member appointed by each municipality, and the committee
shall present its report to the member municipalities within six months;
BE IT
FURTHER RESOLVED that the City
of Onalaska shall appoint Mayor Jim Bialecki or his designee to serve as the
City's representative on said committee.
Dated this 12th day of July, 2005
CITY OF ONALASKA
BY:
______________________________
James S. Bialecki, Mayor
______________________________
Caroline Burmaster, City Clerk
Passed:
Approved:
MEMBERS OF THE MISSISSIPPI RIVER VALLEY COMMUNICATIONS COMMISSION
President John Chapman, Village of Holmen
Mayor John Gomez, City of Sparta
President Dennis Manthei, Village of West Salem
Chairman Scott Johnson, Town of Campbell
Mayor Mark Johnsrud, City of La Crosse
Mayor Chuck Ludeking, City of Tomah
Mayor Jim Bialecki, City of Onalaska
Chairman Wayne Lemar, Town of Medary
Chairman Dave Paudler, Town of Onalaska
President Gary Althoff, Village of Bangor
Dale Clements - Advisory Member
Mike Giese - Advisory Member
Motion by Ald. Gonczy, second by Ald. Giese, to approve Resolution 28-2005. On roll call vote: Ald. Smith – aye; Ald. Gonczy – aye; Ald. Leathen – aye; Ald.
Olson – aye; Ald. Giese – aye; Ald. Wulf – aye. Resolution passed.
C. City of Onalaska and Town of
Onalaska Interim Development Agreement.
Mayor Bialecki reported that this agreement was approved by the City of
Onalaska Common Council in June 2005 and recently was approved by the Town of
Onalaska Board. The agreement will
allow the City of Onalaska to provide to the Town of Onalaska engineering and
planning services as needed.
RECOMMENDATIONS FOR APPROVAL
AND/OR POSSIBLE ACTION FROM THE FOLLOWING COMMITTEES/COMMISSIONS/BOARDS:
Item 6 - Finance & Personnel Committee
FINANCE
A.
Vouchers.
Motion by Ald. Smith, second by Ald. Giese, to approve Vouchers No. 1464
through No. 1718, expended since the last Common Council meeting of June 14,
2005 in the amount of $1,041,771.17, with the exception of Voucher 1521 in the
amount of $6,885.59, bringing the net total to $1,034,885.58.
Under discussion, in response to a question from Ald. Leathen, Fred
confirmed that the withheld Voucher No. 1521 is for Aquatica Design.
Ald. Wulf requested the advice of the City Attorney regarding withholding
payment from Aquatica Design.
City Attorney Gerry O’Flaherty said, “The prior week there had been a
meeting also involving representatives of the Pool Committee. And, the sum of the facts as it was
explained regarding various change orders and responsibility for these change
orders, some of the Jurowski items – the two biggest areas that were discussed
was the slope issue, which was referred by Rollins tonight as the gutter
problem. And then the other one was the
footings regarding the slide having to be redone, and that might be that same
$1,400 of concrete that is mentioned.
“It appears that – at
least last week the situation was – that there was really little involvement by
Mr. Rollins on helping to resolve these change orders and these claims for
additional payment from contractors.
“There is a contract in
existence, and Mr. Rollins has referred to it in his letter. It’s a contract
that’s dated February 23rd, 2004.
And, some of the issues are rather complex as to what role Aquatica
Design really has in taken over the project from Stubenrauch, the original
designers. I can’t comment on all the
past history on that.
“But, in looking at the contract, it does lay out
substantial areas of architect’s responsibilities. And a couple that come to mind really quickly… other than
supervising overall supervision of the work, specifically with respect to
claims and disputes with contractors, it says at 2.6.15, that ‘the architect
shall interpret and decide matters concerning performance of the owner and
contractors’ in this case that would be like Jurowski – prime contractors – or
Badger Pools, regarding the gutter issue. ‘Under the requirements of the
contract documents, on written request of either the owner or the contractor,
architect’s response shall be made in writing with any time limits agreed upon
or otherwise within reasonable promptness’.
“It also states at 2.6.17, ‘Architect shall
render initial render initial decisions on claims, disputes, or other matters
in question between the owner and contractor as provided in the contract
documents’
“It seems now that what the issue of when Mr.
Rollins hears that there may not be approval of some of his change orders and
vouchers – or payment requests – it sounds like there is some work going on
here trying to get letters and acknowledgements by, say, Badger Pools; that
they’re responsible for the gutter problems.
It looks like there’s some discussion about maybe making some resolution
regarding the concrete work. I think Mr. Rollins stated, ‘well if you pay the
money that I’m asking, I’ll remit either $1,000 or $1,400’ – I think he said
$1,000, but I think the Jurowski claim was more like $1,400 for some of this
concrete for the footings for the slide.
It sounds like he’s working on it right now, which I think would be very
helpful if these change orders – some of these things – were cleared up.
“But, Mr. Rollins is also spending significant
time in putting together – evidently on short notice – a rather impressive letter,
threatening his own claim and proposing to terminate the contract. It seemed like from the facts that were
related to me last week, that Mr. Rollins hadn’t been fulfilling his duties
under the contract and the Council could consider giving him notice to
terminate his services. Now it seems
he’s kind of getting active again here. It seems to go in streaks. But, he seems to be getting active and maybe
trying to resolve some of these issues with contractors. That would be great. If he does that, and
fulfils – these are just a couple of the provisions of the contract, there are
many others – if he’s able to start performing, that’s a significant
factor.
“The other item that’s come up is the threat of a
lien being filed by HSR. There were
calls to my office when I was out of town; attorneys threatening to lien. I
think the City Finance Director received a written communication from Don
Flynn, a managing partner of HSR Architects, saying that they haven’t been
paid. And, the understanding is that I had had all along the way was that much
of the money that was being paid to Mr. Rollins was in fact going to HSR. I know I commented at one point, it seemed
surprising, what’s keeping him motivated to keep working on the project - back
when we were trying to get those plans and specs from him, that was a little
difficult period – if he was really remitting all of his money to HSR. I guess HSR has now told us, no, they
weren’t getting the money.
“Mr. Rollins signed a certification saying that
the people that provided services to him, that they have been paid, that there
won't be any liens forthcoming as a result of the architectural services. Obviously that isn’t correct, based on what
we have heard from HSR saying that they have $18,000 and some change coming.
“So, those seem to be some of the issues. What’s
important is this whole process proceed.
We can go the route of mediation, or arbitration. That usually doesn’t
benefit anyone, particularly. The main
thing is to maybe to get some performance.
And maybe rather than sending a letter saying that he’s going to
terminate the contract in seven days, take care of these couple issues and then
I think definitely there’d be a sound basis for paying – if not all – a
substantial portion of his current applications for payment”.
Mayor Bialecki said, “Generally speaking, I need to tell you too I had a
casual conversation with Bill, but declined to respond, only in that of all the
meetings held on that Pool Committee, the one held last week – that I was
invited to – to go through a shopping list of concerns and a lot of things to
sort out…
“Generally speaking I’m going to support what you
say. You are our legal counsel and interpret our contract. I am not a lawyer. I am not an architect.
But, my reading of this whole thing is that you don’t build a house and
accept it and start making payments on it unless it’s built right. And, that’s
not quite where we’re at here right now”.
Mayor Bialecki addressed Mr. Rollins, “What if we did pay you today; what
am I going to do a week from now if you file for bankruptcy?”
Mr. Rollins responded, “Well first of all, the Attorney misspoke”.
Mayor Bialecki requested that Mr. Rollins answer the question. Mayor Bialecki asked again, “What if the
Council paid you tomorrow and next week you gave me notice, ‘I’m bankrupt’ and
I’m stuck with all those contractors and problems up there?”
Mr. Rollins responded, “Well, you would not be stuck. Aquatica is not
going out of business. There is no
threat of Aquatica going out of business.
I am in the process of going through a divorce, which has had an effect
on my personal finances. It has not affected Aquatica. Aquatica is solid and
fine. Personally, I need to get
payment”.
Mr. Rollins requested permission to address the City Attorney’s comments.
Mayor Bialecki responded, “I think we’d better vote tonight, because
you’ve made some statements here that he was not aware of previously. And I think where this really needs to go is
back to that committee to sort through everything and bring it back to this
group. That’s the group that’s going to make a recommendation to the Council”.
Mr. Rollins said, “But they have made a recommendation”.
Mayor Bialecki responded, “Bill, there is other information here tonight
and this is not a public hearing on the issue”.
Mr. Rollins said, “I would simply like to make two comments about what
the attorney said, if I could be allowed.
The first is that the attorney said that I have not been responding to
issues on this project. That is not true. There are two members of the Aquatic
Center Building Committee that are here today. They understand what my
recommendations have been relative to these change orders. However, the head of
the committee has taken issue with my recommendations and has challenged what
my interpretation is.
“Now, for each of the
bid documents that have gone out to each of the contractors, there is a clear
stipulation in the bid documents – it’s in the bid specification – that
indicate that I am the last authority in interpreting the drawings. And I have made determinations relative to
these change orders. And I have made my recommendations directly to the
committee. In the last instance, there
were a whole slew of change orders that came that I was not even given a copy
of. I was not made aware of them until
the actual meeting last Tuesday. But in
the meeting last Tuesday, I responded to each one of those, and I indicated who
I though was responsible for that.
“The second thing is
that the attorney brought up HSR. Last
week, the president of HSR, Jack Flag, was on vacation. A member of his company
– not understanding the relationship that I have with HSR contractually –
contacted an attorney, who got in contact with the City. I talked with Jack on
Monday and this is what Jack told me: Jack said when we – when Aquatica – took
over the contract, Stubenrauch had not paid HSR a dime relative to that
contract. And we then – Aquatica – assumed the liability for that amount of
money. But, there was an understanding that I had with Jack Flag and HSR, which
is I would pay them for additional services that we were then compensated for
when a contract was signed with Aquatica, on the front end and then over time
would pay the balance of the contract.
Jack is not going to file a lien.
There is no forthcoming lien from HSR.
That is a non-issue. It is a red
herring and should not be thrown before the Council.
“Lastly, I’d just like
to say that the attorney is mistaken. The issue of the $1,400 and change and
Aquatica assuming $1,000 of that, is actually relative to the trench drains
that go around the periphery; these were designed by the Stubenrauch
Architects. Technically, legally,
Aquatica has no liability for this. If
there is an issue that the City should take with this, they take it with the
supervising professional, which is Paul Dinkins. He is the stamped, supervising
professional on record with the State for that design. However, we have been able to work with the
City to take care of this and remove it from the table.
“Now, there is no reason
for the City not to pay us. We have performed.
And, if the City had been dissatisfied with our services previous, then
they should have issued a termination letter.
This Council looks for recommendation that comes out of committee. And, the
Aquatic Center Building Committee recommended that we be paid for our
invoices. Thank you”.
Ald. Smith wished to correct her original motion. The withheld voucher is
No. 1524 in the amount of $6,885.59.
Ald. Smith said, “In my opinion what needs to happen concerning the
payment to Aquatica, is that this needs to be referred back to the Pool
Committee, who needs to compile a concise list of the remaining work that needs
to be done on the pool and who is to assume responsibility for that. I think
that that will clear up a lot of the misunderstanding that’s going on
here. And then, once we have all that
information in a concise manner, it will be much easier to process”.
In response to a question from Ald. Giese, Ald. Smith reported that the
action by the Pool Building Committee was: Motion by Sally Young, second by
Lloyd Wuensch, to approve Aquatica invoices #2494 in the amount of $519.08;
#2495B in the amount in the amount of $4,158.47; and #2496 in the amount of
$422.50, with a vote of three to two.
Ald. Wulf noted that the minutes from that meeting incorrectly show Ald.
Wulf voting “yes”. In fact, Ald. Wulf
and Fred Buehler voted “no”.
Ald. Leathen noted that Mr. Rollins’ letter includes several references
to the terms and conditions of the contract.
Ald. Leathen asked the City Attorney if any of those references were,
“markedly incorrect”. Ald. Leathen said, “I’ve read an awful lot of terms and
conditions and everything in here seems consistent with other terms and
conditions that I’ve read”.
Gerry responded, “I just received this letter at the beginning of the
meeting, so I haven’t been able to compare it line for line with the
contract. But, essentially – I think –
where he is quoting language out of specific articles, I believe he’s probably
correct on that language. What he
doesn’t address at all is the architect’s responsibilities and duties to
perform timely and completely and accurately.
He doesn’t touch on that. He’s
indicating that all of his services were 100% accurate and correct and if there
ever was any shortcomings in the contract and documents, it was Stubenrauch’s
responsibility that predated his involvement.
And, I don’t know the history on that. I don’t know if when he did take
over the contract or the contract with Aquatic Design to what extent there is
any responsibility for Aquatic Design as to, say, deficiencies in design by
Stubenrauch, the prior firm. This thing has just kind of come up on some
specific issues on a couple vouchers.
And, I can’t say that I’ve been able to make a full analysis of the
entire history of this transaction and make a recommendation. I would be glad to, but probably at some
point if we’re going to be talking about possible litigation and strategy, we
should do it in closed session”.
Ald. Smith said, “Having just received this letter minutes prior to the
meeting, that it’s difficult to even have had time to read it. I’ve only just
briefly skimmed it. And so, I have an issue with taking anything it says in
that letter in consideration for making my decision”.
Ald. Giese said, “It’s been presented that the standard contract, when
failure to make payments in a timely manner creates a condition in which the
contract can be terminated. In other
words, from the City’s perspective, it may be potentially interpreted by the
architect that we are terminating the contract, or at least giving him cause to
initiate termination on his side. Is
that correct?”
Gerry responded, “That is essentially correct. If the only fact here is
the City refusing to pay for no proper purpose, that would definitely be a
cause for termination of the contract”.
Ald. Giese said, “My observation on that then is that I don’t mean to
dismiss $6,000 as insignificant, but on a several million dollar project and
being considerate of the timelines and the requirements of municipal decision
making, I would certainly hope that any professional that we have a contract
with would be understanding of that and realize that this Council receives
information from the committee, but still has a responsibility to make the
ultimate decision. And, this is part of
that process. And to force us into
making a decision tonight under threat of termination of the contract, I think
is being a bit imprudent and aggressive.
And hopefully that we would have sufficient time to work out these
differences. Because it’s certainly
obvious to everybody that there are some misunderstandings and some
disagreements in this issue. So, I am going to vote to withhold this one item
from the resolution for disbursement of funds”.
Ald. Wulf said, “Mr. Rollins did call me on Friday and we had a long
discussion. And I know that as an
elected official, and as a Common Council member, I remember Jason advised me a
couple years ago when I first came on, when talking with people to always make
sure to not counsel, advise, and whatever; to make sure that we never have any
legal culpability and such. So, I made
sure that I did not advise, and I tippy-toed around subjects and made sure that
I was very careful in my verbiage with Mr. Rollins.
“But, anytime anyone asks me for advice – whether
they be a constituent or an architect or a contractor, or what have you – I
always want to make sure that anyone who comes before our Common Council, that
they feel like they’ve been heard; that they’ve been treated fairly, try to
lead them through the process – something – so even if they walk out of these
doors, that at least they’ve been heard, that they’ve at least kind of had
their day in court, so to speak. Even
if they don’t get their way, that at least maybe they’ve been heard.
“And, regardless of what happens tonight, I did
try to tell Bill – and I don’t feel like he listened to the one thing that I
did tell him, that I felt was very, very important – that if you want this
Common Council to listen to what he was going to say, was that he needed to
have this faxed to us Monday. I think
your time is up, to be quite honest… That’s why I said to you, you can’t give
it to us – because other people have tried it – you cannot put something this
important, this imperative, before us, even if it’s two pages, right before we
vote.
“I believe we all sitting up here voting, we take
this very seriously. Whether it’s
$1,000 or $100,000 there’s a lot that we have to go through. The attorney, it’s
very difficult for him just to sit here – like he says – it all looks good, but
unless he can compare line for line and paragraph for paragraph, it’s very
difficult for him to also advise. So
that’s why I said, and you’ve already heard two people this evening up here say
that they need more time. So, that’s why I suggested to you, very strongly,
that we need to have it Monday.
Because, if you show up with this tonight, it’s not going to be good.
So, that’s where we’re at”.
Mr. Rollins requested permission to respond.
Mayor Bialecki said, “No. We’re
not going to have a public hearing on this. We’ve spent almost an hour on this
right now. And, I think there’s a lot
of new information out here and there are other things too. I think we should vote this up or vote this
down. If it gets voted to approve we move on. If it does not, it goes back to
committee. I’d like for that committee
then, if that’s the case, to meet again. But I’d also like for Bill the opportunity
to review any and all documents you have, but also the attorney – once again –
to have more than just one-hour rundown of what’s what here; where they both
will be present with that committee to go through any and everything and get
resolution to it.
“Furthermore, I would
only hope that any and all communication on who’s doing what will go through
the chair of that committee, who is Fred Buehler. My experience with this thing is that there’s been too many irons
in the fire making decisions that were not accurate. So here we sit tonight”.
Ald. Gonczy called the question.
On voice vote, motion carried five to one with Ald. Leathen voting no.
B. Police Department bullet proof
vest replacement.
1. Replacement of defective vests.
Motion by Ald. Smith, second by Ald. Giese, to approve the purchase of
twelve bulletproof vests to replace twelve defective bulletproof vests. On voice vote, motion carried.
2. Donation acceptance to offset vest cost.
Ald. Smith noted that no action had been taken by the Finance &
Personnel Committee on this item.
Motion by Ald. Smith, second by Ald. Olson, to accept the donation from
the insurance company to cover the cost of the bulletproof vests. On voice vote, motion carried.
C. City Library
Signage/Cost/Funding.
Motion by Ald. Smith, second by Ald. Wulf, to approve the purchase of the
Library sign in an amount not to exceed $628, with the money to come from the
Library budget.
Under discussion, Ald. Giese said, “I am definitely a friend of the
Library and very supportive of the Library.
However, I’m going to be voting no on this one because of concerns for
budget discipline, noting that this is not an urgent or a safety issue. So, I
think it would be most appropriate to come up during regular budget process”.
On voice vote, motion carried five to one with Ald. Giese voting no.
D. Renew existing contracts.
1. Heating, Ventilation, and Air Conditioning Services for City Hall, City Library, Community Center and Street & Utility Shop and Park Facilities (WHV, Inc.).U
Motion by Ald. Smith, second by Ald. Olson, to proceed with the renewing
of the contract with WHV, Inc., in the total cost of $5,776 for Heating,
Ventilation, and Air Conditioning services for City Hall, the Library, the
Community Center, the Street & Utility Shop and Park Facilities. On voice vote, motion carried.
2. Cleaning services for City Hall, Police Department, Library and Community Center. (JACS Cleaning Service).
Motion by Ald. Smith, second by Ald. Gonczy, to approve the contract
renewal for JACS Cleaning Service Inc., for cleaning services at City Hall, the
Police Department, the Library, and the Community Center, with a 2% increase,
and the potential for an early-pay discount. On voice vote, motion carried.
3. Mat Replacement Services for City Hall and Police Department (Aramark Uniform Service).
Motion by Ald. Smith, second by Ald. Gonczy, to enter into a five-year
contract with Aramark Uniform Services, with no increase in the first three
years of the contract and a 4% increase in the fourth year and in the fifth
year. On voice vote, motion carried.
4. Transcription Services – 2006 – 2007 (Holly
Traffas).
Motion by Ald. Smith, second by Ald. Wulf, to proceed with renewal of the
contract with Holly Traffas for transcription services at a rate of 13-cents
per line in 2006 and 14-cents per line in 2007. On voice vote, motion carried.
5. Auditing Firm 2005 – 2006 (HABCO).
Motion by Ald. Smith, second by Ald. Olson, to extend the contract with
Hawkins, Ashe, Baptie & Company for auditing services for the year 2005 in
the amount of $18,400 and for the year 2006 in the amount of $18,900. On voice
vote, motion carried.
E. Emergency phone near Police
Department back door and funding of same.
Motion by Ald. Smith, second by Ald. Giese, to approve the purchase and
installation of an emergency phone near the back door of the Police Department
at a cost not to exceed $679.64, with the money to come from the Building
Fund. On voice vote, motion carried.
F. Consideration of background
checks for contracted services.
Ald. Smith reported that this item had been briefly discussed at the last
Finance & Personnel Committee meeting.
No action was taken. Ald. Smith
turned over the item to Liz Green.
Liz reported that the Finance & Personnel Committee requested more
information on the background checks for contractors. Liz noted that that information regarding the cost and nature of
the background checks is included in the members’ packets. Liz noted that a copy of an email from the
Sales Manager of Verified Credentials also is included in the members’ packets.
Ald. Smith asked if it were correct that the background checks were being
considered primarily for the cleaning service.
Liz stated that is correct. It is being considered because of the
cleaning staff’s access to all areas and after-hours access.
Ald. Wulf asked if the current contractor has been contacted to learn if
they already perform background checks on their employees. Ald. Wulf noted that the cost to the
contractor to use Verified Credentials is $40 per employee. Ald. Wulf noted that the Common Council,
earlier in this agenda, had approved the renewal of the cleaning service
contract. Ald. Wulf said, “If this is
something that we would ask for them to do, maybe this is something that they
would have liked to built into their bid”.
Fred noted that the current cleaning contractor is bonded and that there
is language in the contract regarding the City’s satisfaction with the
contractor. Fred stated that he is not
aware what type, if any, background checks the contractor makes on its
employees. Fred added that the City is
provided with a list of the contractors’ employees. Fred stated that none of the contractors had been approached
regarding background checks.
Ald. Leathen suggested that the contractors should be contacted for
input.
Mayor Bialecki concurred. Mayor
Bialecki said, “From a legal point here too, you’ve got a private company that
wants to do background checks on the world.
Maybe there’s information of mine I don’t want them to know – to have me
in a database way across the country. How do I know that that’s protected?”
Ald. Wulf noted that the Common Council also have after-hours access to
City Hall and asked if background checks would be performed on the Common
Council members.
Motion by Ald. Gonczy, second by Ald. Wulf, to refer the item back to the
Finance & Personnel Committee, taking into consideration that contracts
already have been renewed, and that Finance & Personnel Committee shall
make a recommendation for a policy regarding background checks including the
type of background checks and to whom background checks would apply. On voice vote, motion carried.
Item 7 - PERSONNEL
A. Job Descriptions:
1. Recreation Supervisor.
Motion by Ald. Smith, second by Ald. Gonczy, to approve the revised job
description for Recreation Supervisor.
On voice vote, motion carried.
2. Recreation Coordinator.
Motion by Ald. Smith, second by Ald. Wulf, to approve the revised job
description for Recreation Coordinator.
On voice vote, motion carried.
B. Post and Advertise:
Office Clerical
Support – Finance/City Clerk.
Motion by Ald. Smith, second by Ald. Leathen, to authorize the posting
and advertising for Office Clerical Support – Finance/City Clerk. On voice vote, motion carried.
C. Hire fulltime Firefighter.
Ald. Smith reported that this item was not considered by the Finance
& Personnel Committee.
Liz reported that there recently was a separation in the Fire
Department. There is an eligibility
list for the Fire Department.
Motion by Ald. Smith, second by Ald. Olson, to proceed with hiring a
fulltime firefighter.
Under discussion, Ald. Gonczy wished to confirm that this action is to
fill an existing vacated position.
On voice vote, motion carried.
Mayor Bialecki recommended that Agenda Item 10D should be addressed
next. There was no objection.
Item 10 PLANNING COMMISSION:
D. Consideration of CSM filed by Mr. Dave Evenson, Evenson
and Company, 1025 Riders Club Road, Onalaska, for the purpose of subdividing
the parcel located at 1001 2nd Avenue SW containing 3.45 acres (Tax
ID# 18-945-0 & 18-947-0).
1. CSM
Fee of $40.00 + $10.00 per lot x 4 = $80.00.
2. Green Fee of $246.00 + $33.00 per
acre x 3.45 = $359.85.
3. Storm Sewer Fee of $5,506.00 per
acre x 3.45 = $18,995.70.
4. Owner shall coordinate utility
connections with Public Works Department.
5. Owner shall verify floodplain
information.
6. Site Plan Permit required for
improvements. Owner is responsible for
upgrade of street to City Standards per City approval. Improvements shall be completed prior to
more than 50% of lots being developed.
7. Owner
shall coordinate all new addresses with the City Planning Department.
8. Owner shall submit a master drainage
plan for review and approval by Public
Works Department.
9. Owner/developer must pay all fees and
have all plans reviewed and approved by the City prior to obtaining a building
permit. Owner/developer must have all
conditions satisfied and improvements installed per approved plans prior to the
issuance of occupancy permit.
10. Owner/developer must notify the City
prior to any utility connection to public utilities.
11. All conditions run with the land and are
binding upon the original developer and all heirs, successors, and
assigns. The sale or transfer of all or
any portion of the property does not relieve the original developer from
payment of any fees imposed or from meeting any other conditions.
12. Any omissions of any conditions not
listed in the Plan Commission Minutes shall not release the developer/property
owner from abiding by the City’s Subdivision Ordinance and Zoning Code
requirements.
Motion by Ald. Giese, second by Ald. Olson, to approve with 12 conditions
the Certified Survey Map filed by Mr. Dave Evenson, Evenson and Company, for the
purpose of subdividing the parcel located at 1001 2nd Avenue Southwest containing 3.45 acres. On voice vote, motion carried.
Mayor Bialecki recommended that Agenda Item 16A should be addressed
next. There was no objection.
Item 16 - TOURISM COMMISSION
A. Centering Onalaska Downtown Hanging Baskets.
Ald. Olson wished to comment on the “beautiful baskets that are hanging
on Main Street” and to commend the Centering Onalaska organization. Ald. Olson reported that the baskets were
prepared by Rockwood Gardens and by Redwing.
Ald. Olson said, “What a beautiful job they are and how beautiful they
are”.
Ald. Olson distributed to the members photographs of the baskets provided
by Tourism Director Jean Lunde.
Item 8 - ADMINISTRATIVE
COMMITTEE:
Item A - Approval of Operator’s Licenses
Lornalyn F. Alo Kwik Trip Renewal
Melissa J. Alysworth Hillside Inn New/Provisional
Megan M. Baures Woodman’s New
Provisional
Lori M. Bennet Coulee Golf Bowl New/Provisional
Laura J. Berra Hillside
Inn New/Provisional
LuAnn S. Buehler Kwik Trip Renewal
Debbie A. Cade Hock’s Scoreboard Renewal/Provisional
Iris S. Dus Kwik
Trip Renewal/Provisional
Erin C. Fauerbach Stoney Creek Inn New/Provisional
Kimberly E. Finnell Applebee’s New/Provisional
Ashlie E. Fischer Hillside Inn New
Provisional
Sheila L. Fox Kwik
Trip Renewal
Daniel L. Hauser Kwik Trip Renewal
Raphi S. Hindeleh TGI Friday’s New/Provisional
Melissa A. Howe Kwik Trip Renewal
Sarah L. Huber American Legion Renewal
Jacob S. Johnson Applebee’s New
Warren S. Johnson Coulee Golf Bowl Renewal/Provisional
Dustin A. Kamrowski Kwik Trip Renewal
Sue A. Kelley American
Legion Renewal/Provisional
Richard A. King The Wharf Renewal
Cheri A. Mally Scoreboard Renewal/Provisional
James A. Mueller Kwik Trip New/Provisional
Kathyrn M. Mueller Applebee’s Renewal
Teresa R. Oehler Scoreboard Renewal/Provisional
Kate L. P