City and Contractor Trying To Resolve Differences Over Police Department Construction Project

October 31, 2020
By: Dwayne Page

City leaders and the contractor are seeking common ground on a plan to resume construction of the new Smithville Police Department building.

Construction recently ground to a halt only weeks after groundbreaking when areas of unsuitable soils were discovered on the site. In some places, the ground was too soft to proceed without significant soil removal and replacement which could add an extra $100,000 to the $2.5 million project.

The question is who should address the soil problem, the city or the contractor?

During a workshop and special meeting Thursday night, October 29, the Mayor and Aldermen met with the contractor for the project, Mike Boyce of Boyce Ballard Construction of Murfreesboro along with the city’s architect, Wayne Oakley of Studio Oakley Architects of Lebanon to seek a solution.

Mayor Josh Miller said the city went to great lengths to keep the cost of this project down before and even after bid letting and was assured there would be no surprises and he is frustrated to learn of this latest development.

“When this project started, the bid was right at $2,685,000 so we started cutting things and later the official bid was $2,395,000. We sold bonds for $2.5 million. I remember asking the question at that time is $2.5 million going to be enough money to build this project and maybe put some stock (furnishings) in the police department. That answer was I don’t see why not. I remember that very clearly. Well we haven’t even let the horses out to run yet and here we are asked to take a $100,000 hit. The cushion would be gone if this were our (city’s) part to pay,” said Mayor Miller.

The city’s position is that Boyce Ballard Construction bears the responsibility since the soil condition was identified in a geotechnical report prior to bid letting and that the intent of the contract documents was for any unsuitable soil removal and replacement to be included in the bid and contract amount. In other words, the contactor should have been aware of the soft soils issue and taken that into consideration when bidding on the project.

Ballard said he thought the cost or unit price for “undercutting” (replacing unsuitable soils) was to be added by the city after the bid because it was impossible for him to know the extent of the problem beforehand. Ballard also claims he never intended to walk away from the project and that he stopped work only until a solution could be found.

“When we did a proof roll and found out we had unsuitable soils we stopped work as the contract tells us to do. We notified (architect) Wayne (Oakley) and we had to get GEO Services for a recommendation on how to resolve it. We had no desire to halt the project. We want to continue and try to find common ground but I didn’t realize this was an issue until I received the letter from Wayne stating that you (mayor and aldermen) felt like it was our responsibility,” said Ballard.

“If you look at the contract and the price given for excavation the concern we have is that from day one there was a concern about soft spots in the area based on the evaluation of Geo Services and our understanding of the contract is you (Ballard) were to come here, evaluate the soil and the situation, and determine whether to increase the bid for the foundation of this building. My opinion is that the contract is written in such a way that you should be responsible for the removal of that soil and establishing sufficient foundation and work,” said City Attorney Vester Parsley.

Reading from the geotechnical report, Oakley said during a city council meeting on October 22 that “soft surface soil conditions were encountered in three of the soil test borings at depths ranging from 1 to 7 feet below the existing ground surfaces and these soil zones could potentially impact the performance of the building’s concrete slab foundation in the parking and drive areas”. The report went on to state that “we anticipate that some of these soft soils will be encountered and will require undercutting and replacement”.

After being notified by letter from the architect Monday (October 26) of the city’s position on the issue, Ballard responded with a letter of his own also quoting from the geotechnical report stating that “for bidding purposes, we recommend an allowance for undercut be provided and some consideration be given to the associated unit rates for undercutting,”. Based on this statement, Ballard wrote, we assumed that the architect or owner (city) would include an estimated quantity of undercutting and base their selection of the apparent low bidder with each unit price provided.”

Unit price bidding allows designers, consultants, and/or engineers to build in project contingencies for any unknown items that may occur during construction.

“It is best practice in the open bid market to provide bidding documents that are clear and concise for a fair and equal bidding opportunity for all competitive bids. The reason for a Design-Bid-Build type of project is so that each contractor has the same opportunity to bid the same things as all other competitively bidding contractors. No one can determine what is below the ground surface except for the location of the boring”.

Again referring to the geotechnical report, Ballard wrote “Information on actual subsurface conditions exists only at the specific boring log locations and is relevant to the time the exploration was performed. Variations may occur and should be expected between soil test boring locations”. It goes on further to state that “The stratification lines were used for our analytical purposes and, unless specifically stated otherwise, should not be used as the basis for design or construction costs estimates”.

“We clearly are not trying to get paid twice for the undercutting of unsuitable soils and are being as open and transparent as possible with you and the owner (city). We are anxious to get back to work on this project,” wrote Ballard.

During Thursday night’s meeting, Ballard said he might consider splitting the cost with the city for resolving the unsuitable soils issue.

City Attorney Parsley and Architect Oakley have recommended the city pay no more for addressing the unsuitable soil issue and leave that responsibility with the contractor.

The aldermen tabled any further action until Monday night’s regular monthly meeting, November 2 at 6 p.m. at city hall.

October 31, 2020
By:

The Smithville-DeKalb County Chamber of Commerce presented awards for Boo Bash “Best Costumes” and Boo Bash “Best Decorations” for participating businesses and offices.

Chamber Winners for “2020 Boo Bash Best Costumes” are:

• 1st Place – U.T. Extension’s “Monsters Inc.”

• Tied for 2nd Place – Smithville City Hall’s “Star Wars” & Justin Potter Library’s “Mutant Ninja Turtles”

• Tied for 3rd Place – DeKalb Prevention Coalition’s “Alice in Wonderland” & Good Health’s Family Clinic’s “Hocus Pocus”

Chamber Winners for “2020 Boo Bash Best Decorations” are:

• 1st Place – Tennessee Skyline

• 2nd Place – The Office of Attorney Mingy Bryant

• 3rd Place – Upper Cumberland Human Resource Agency

October 30, 2020
By: Dwayne Page

Stray dogs from outside the city limits of Smithville will no longer be picked up or accepted at the DeKalb Animal Shelter.

The action was taken during a special called meeting of the Smithville Mayor and Aldermen Thursday night following a work session meeting with Marsha Darrah and Sue Puckett, Board members of the DeKalb Animal Coalition.

City officials are concerned with the liability and city expense of sending city employees out into the county for the purposes of animal control.

The shelter is approaching its third anniversary in business.

It opened in November 2017 on Transfer Station Road behind Tenneco Automotive under the guidance of the DeKalb Animal Coalition, a non-profit organization, with a mission to provide a safe location for neglected, abandoned and abused animals; to provide an alternative low-kill policy so these animals receive medical attention, reduce overpopulation, and be cared for until they can be placed in homes. The new shelter replaced an old dilapidated dog pound which the city operated and staffed on Smith Road

The two full time employees who work at the new shelter, Director Megan Moore and Emmaly Bennett are employed by the City of Smithville. The Coalition also funds a part time employee. The city provides a truck for the shelter which is used for animal transports and the city has other expenses related to the shelter as specified in a 99 year lease which the city entered into with the Coalition in 2015. The original agreement was for the city to fund only one full time and a part time employee but that was later changed due to the workload.

Both the City of Smithville and the DeKalb County Government appropriated $75,000 for construction of the shelter and the Coalition raised funds and borrowed money to complete it.

“We (Coalition) spent $150,000 on that building in addition (to what the city and county appropriated),” said Puckett

Also under a memorandum of understanding with the county, the Coalition is to pick up animals for the county when a request is made from the county mayor’s office or the sheriff’s department at a fee of $110 but city officials say the City of Smithville is not a party to that agreement.

Darrah said the Coalition was organized to serve all municipalities in the county.

“You’ve got a beautiful building and a well run shelter which is much better than what you had before” Darrah told the mayor and aldermen.

City officials say the City of Smithville has more than done its part.

“In fiscal year 2015 (before the new shelter was built) we spent roughly $60,000. In 2016 we spent $63,071. In 2017 we spent $64,000. In 2018, not counting the $75,000 that we gave toward building the shelter, we spent $118,372. In 2019 we spent $103,000 and in 2020 we have spent almost $115,000 so we have almost doubled what the city has been spending since before the building was built and what we have been contributing,” said Janice Plemmons-Jackson, the city’s financial advisor.

“What we committed to originally was one full time and a part time employee, a vehicle and utilities. In addition to that you have some salary payroll taxes, insurance, retirement, repairs and maintenance, supplies, uniforms, the vehicle operation, and we do insure the building. They (Coalition) insure the contents, etc. So our costs have doubled yet we are getting no revenue (from the shelter). I don’t see a whole lot of what they are contributing other than they have got the building in place for us,” said Jackson.

Currently 67% of the animals coming to the shelter are from the county.

“My biggest concern is our (city) employees having to go out into the county to get these animals. All the while they are on the clock for the city using city equipment with city liability. I don’t think that is appropriate without the county being involved. We are mandated by statute for animal control in the city but not in the county. My problem is when they get called out into the county, there is no way for them to take off their city hat and put on a county hat so we have crossed boundaries here that are legally fuzzy and dubious at best. I think for our city employees we don’t need to be answering those county calls until this is straightened out,” said Alderman Brandon Cox.

“I make a motion that the city employees at the animal shelter no longer go out into the county to pick up animals and that no county animals be accepted at the shelter at this time.” said Alderman Cox. County animals already being housed at the shelter may remain there.

Alderman Danny Washer offered a second to the motion and it was approved on a voice vote of the council.

“I am sorry they (aldermen) did that,” Puckett told WJLE after the meeting. “We are supposed to be a Coalition for all the county and that was in the preamble of our contract. I am hoping that we can get some solution. I am distressed over this,” said Puckett.

The lease/contract as adopted between the City of Smithville and the Animal Coalition in 2015 specified the following terms and conditions:

* The City is to lease to the Coalition the property for a term of 99 years beginning September 1, 2015 and ending August 31, 2114.

*The City shall pay to the Coalition the sum of $75,000 that has been appropriated for one-half of the anticipated cost for the erection of the animal shelter upon the land leased by the City to the Coalition.

*The Coalition shall be responsible for the erection of the building

*The City agrees to pay all utility bills connected with or which may accumulate directly or indirectly to Coalition’s term of occupancy.

*The City agrees that it shall be liable for and make all maintenance and structural repairs for the outside of the building, including roof and the heating and air conditioning units, except if caused by the negligence of the Coalition. The Coalition shall be responsible for maintenance of the inside of the building.

*The City shall not be responsible for any personal property placed on the premises by the Coalition, its agents, servants or employees, and it is understood and agreed that it is the Coalition’s responsibility to secure appropriate insurance to cover its personal property from any losses. Any personal property remaining on the premises 30 days after termination of this lease shall be and become the property of the City.

*The City shall insure the building with a reputable insurance company in a sufficient amount to replace the building if destroyed by natural disaster, fire, or other means.

*The City shall continue to provide to the Coalition the full time employee, as well as the part time employee and the animal control vehicle, to assist in the day-to day operation of the animal shelter and will budget funds for this purpose from year to year, subject to approval of the Coalition.

*The Coalition will maintain proper shelter and care for all domestic and wild animals and fowl that come into its custody.

*The Coalition will maintain suitable office hours at the animal shelter for the convenience of the public and for the purpose of transacting business in connection with the duties under this lease and for the purpose of receiving animals or for accepting applications for the redemption of impounded animals.

*The Coalition will, through duly appointed and legally qualified agents and officers, diligently enforce all animal regulation laws and ordinances and will capture and impound animals found running at large in the City in violation of those certain ordinances relating to stray animals and to the restraint of dogs running at large.

*The Coalition will provide proper food, water, shelter, and other humane treatment for such animals and fowl while they are in the Coalition’s possession and until placed or otherwise humanely disposed of by the Coalition.

*The Coalition will cooperate with the Health Department by following procedures required by the ordinance concerning persons or animals bitten by an animal in the City.

*The Coalition will investigate all reports of violations of City ordinances relating to animal control and regulation and, when warranted by the facts, shall cause to be prosecuted all persons charged with violation of said ordinances.

*The Coalition will be responsible for scheduling and overseeing all volunteers and staff.

*The Coalition will be responsible for providing foster homes and the adoption of the animals.

*The Coalition agrees to indemnify and keep harmless the City from all losses, damages, liabilities and expenses which may arise or be claimed against the City and be in favor of any person arising from the use or occupancy of said premises by the Coalition or arising from any acts, omissions, neglect or fault of Coalition, Coalition’s agent, employees or invitees.

*The Coalition agrees to take out and maintains public liability insurance with a reputable insurance company against property damage, personal injury, or death arising out of the use or occupation of the leased premises. The City shall be named as co-insured on all such policies, and Coalition shall furnish the City with a certificate of said coverage. Such coverage shall not be decreased or canceled without 30 days’ written notice to the City. All such policies shall be written as primary policies. This section shall not affect the indemnity or hold harmless provision in Section 17.

*The Coalition will collect all board, adoption, and impoundment fees and shall keep proper financial records to account for same. The Coalition will permit the City, at all reasonable times, to inspect and audit such records and shall make such reports of monies received as shall be required.

*The Coalition shall keep full and accurate records of all animals taken into custody and impounded, showing the date, place, reason, and manner whereby animals were brought into custody with a description of the animal and a record of its final disposition.

*The Coalition shall, in addition to the other duties outlined herein, be subject to call to rescue any injured animal or any animal or creature which is trapped, or is other unnaturally restrained and shall be responsible for providing humane treatment for same.

*The City hereby reserves the right to inspect the premises occupied by Coalition at any reasonable time.

*In the event the property is destroyed by fire or other acts of God or perils, the City is obligated to rebuild the building with the insurance proceeds, and, when rebuilt, this lease shall continue. Upon destruction or condemnation of all or a portion of the demised premises, the Coalition shall have the right, at its sole discretion, to stay at the premises or to cancel this agreement, on 30 days’ written notice without any further liability.

*In the event of failure of the Coalition to perform the terms and provisions of this lease, same shall constitute a breach of this lease and shall give the City, at option, the right to declare this lease forfeited, without notice or demand, and to take possession of said property and to recover any damages sustained as a result thereof, and, likewise, a failure on the part of the City to perform the terms and provisions of this lease shall give the Coalition the right to declare this lease forfeited and vacate said property without liability resulting from such breach.

*The property herein leased and the contract herein is not to be subleased, sold, mortgaged, or assigned by the Coalition, except with the written consent of the City. However, the City shall not unreasonably withhold or delay such consent.

*This agreement is to be governed by the laws of the State of Tennessee, and it is mutually understood and agreed to by the parties hereto that the City will defend this contract with all due and proper diligence should it be challenged by any action in law.

*City covenants and agrees with the Coalition that upon Coalition observing and performing all the terms, covenants, and conditions herein that the Coalition may peaceably and quietly enjoy the premises hereby demised.

*All covenants, promises, and agreements herein contained shall be binding upon, apply, and inure to the benefit of the devisees and successors of the parties hereto.

*This agreement contains the entire contract and agreement of the parties hereto and is signed in duplicate by the authorized officials of each party, with each party holding an executed copy hereof.