City Manager Protects Contractor ?

Note: Title to this piece is by this blog and best signifies the outrage. Further, referring to Environ as "scientists" is now a farcical misnomer. Engaging this business by the city manager is nothing more than retaliation against the citizens of Marco Island. To ask to waste $175,000 to prove -again - that we and the environment are being poisoned - when we already know that - is despicable cynicism by the reprobates seeking this action and those that will vote for it.

Open Letter to the Marco Island City Council by Mr. Butch Neylon follows:

Dear Councilors;

I have just seen the latest information regarding the additional $175,000 price tag from Environ to do the additional monitoring for H2S surrounding the dewatering process associated with the current contracts for the STRP. In a word, OUTRAGEOUS!

For many months now, I have been asking you to enforce the contracts and place the responsibility for these extraneous costs and conditions with the contractor. I know Mr. Moss says “We do not believe the contractors are contractually obligated to pay the monitoring expenses.”, and although there is no provision to specifically monitor for H2S there is clear responsibility placed with the contractor to comply with all laws in the prosecution of the work as shown in the following:

2.1. Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling and storage of materials; availability and quality of labor; water and electric power; availability and condition of roads; work area; living facilities; climatic conditions and seasons; physical conditions at the work‑site and the project area as a whole; topography and ground surface conditions; nature and quantity of the surface materials to be encountered; subsurface conditions; equipment and facilities needed preliminary to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation.

If any doubt remains as to who is responsible to execute the work under this contract and what standards they agreed to by signing the contract, please read the following clause:

13.3.2 Contractor agrees that in performing its Work, it will not create, use or dispose of any hazardous chemicals or substances in an unlawful or hazardous manner and shall be solely responsible for the lawful, proper and safe handling, storage and removal of all hazardous wastes, chemicals and substances which are introduced to the site, or removed from the site, by Contractor's operations. The term "hazardous wastes, chemicals or substances" shall mean those materials and substances prohibited, proscribed, or the use of which is controlled by any agency of the federal government or the applicable state or local agency having jurisdiction of such matters. In the event Contractor encounters material reasonably believed to be hazardous wastes, chemicals or substances, Contractor shall immediately stop work in the area affected and report such condition to City in writing. Contractor shall comply with all federal, state and local regulations dealing with the use, storage or disposal of all hazardous wastes, chemicals and substances. Contractor shall be responsible for any and all claims and damages resulting from its use, handling, storage, removal and disposal of such hazardous wastes, chemicals or substances from the Project, and will indemnify, defend and hold City harmless from any and all liability associated with such use, handling, storage, removal and disposal including all associated attorney's fees and costs and costs of all cleanup operations wherever and whenever required by any governmental authority or City.

You have received many emails and much information is posted on various blogs and websites clearly identifying sulfides and hydrogen sulfide gas as hazardous substances. Additionally, Environ showed us that the H2S concentrations were above the acceptable limits prescribed by law, and therefore could cause harm to our residents. Once again, I ask who is responsible to comply with the laws regarding execution of these contracts? Please read the following clause:

14.1. Contractor agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, worker's compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify Project Manager in writing.

You have been told that the contractors may be entitled to compensation due to the delay caused while the H2S problem is sorted out, specifically, I cite the following from the City Managers email “The contractor may be eligible for compensation due to the delay. One week may not be serious, but a delay until after the air monitoring status report date of October 15th may be problematic, from both a contractual and road closure perspective.”

The following contract clause clearly shows the contractors are NOT entitled to any additional compensation for this or any other delay. Their sole recourse is to seek an extension of time.

9.3. No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which Owner may be responsible, in whole or in part, shall relieve Contractor of its duty to perform or give rise to any right to damages or additional compensation from Owner. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if any, against Owner will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion.

This situation and the pressure exerted by Staff to force quick and costly decisions is clearly not in your or the city’s best interests. There are many alternatives to the proposed outrageous testing quotation, and you as councilors need time to adequately research them.

To pressure you into making decisions in the magnitude of $175,000 in a day when there is no actual time pressure is disingenuous. There are many alternatives to this testing and many other issues surrounding the H2S that need to be addressed in a careful and competent manner and that will take some time.

Need I remind you of the problems and expense associated with the simple change of the road median on Collier Boulevard. You had several weeks to go over that situation and ultimately went back to the original design when the quick fix proved to be unworkable.

This mad dash to complete this project has got to stop! We all need time to assess where we are and where we are headed. You just spent $58,000 taxpayer dollars for testing that confirmed that this dewatering process has likely harmed the health of many of our citizens. We have already heard that we can put the piped at a shallower depth if we add expensive lift stations. The plant to send this sulfurous groundwater to our new treatment plant has not been adequately researched, and you are being asked to make these critical and costly decisions with no time to adequately assess the consequences.

A prudent person would stop now, and not proceed until all alternatives have been explored and evaluated. There is no downside to this action. I offer the following contract clause to support this statement:

19.2. Owner shall have the right to suspend all or any portions of the Work upon giving Contractor not less than two (2) calendar days' prior written notice of such suspension. If all or any portion of the Work is so suspended, Contractor's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in the Contract Documents. In no event shall the Contractor be entitled to any additional compensation or damages. Provided, however, if the ordered suspension exceeds six (6) months, the Contractor shall have the right to terminate the Agreement with respect to that portion of the Work which is subject to the ordered suspension.

As Councilor Tucker is noted for saying, “This is a no-brainer,” suspend the dewatering and associated pipe installation at this point. Cap off the ends, fill the trenches, restore the swales, and pave the roads. Put the contractors on notice that their methods of dewatering violate the above noted contract clauses, and have likely endangered the health of our citizens.

Have the City Administration and the Utility Department step back, stop spending our money to support those who agreed to do these projects using their own resources. Put the contractors on notice to come up with acceptable methods of treating the sulfurous ground water to eliminate the release of toxins into our air or water. Portable anaerobic liquid and vapor phase treatment units that will render the sulfurous effluent harmless are available and will cost a whole lot less that the $175,000 that Environ wants just to monitor, not fix the problem.

This is the contractors responsibility. They agreed not to break the law, or harm anyone when they signed the contract. We have every right to expect them to perform this work in a safe and workmanlike manner and it is high time you placed the responsibility for that where it belongs. The City Manager, the Public Works Director, the City Project Managers and yes the Contractors work for you, and you work for the citizens of Marco Island.

Stop careening from one critical, costly emergency to another and restore some sanity to this process. If you do not the contractors will not and we, the taxpayers of Marco Island will all be left holding the bag. You have the authority to correct this if you will only exercise it.

Respectfully;

Butch Neylon