Board of Aldermen Meeting Agendas & Minutes
Every effort is made to ensure that the Agendas and Minutes provided on this and subsequent pages is timely and correct; however, users should keep in mind that this information is provided only as a public convenience. In any case where legal reliance on information is required, the official records of the City of Ballwin should be consulted.
The Board of Aldermen meet on the second and fourth Mondays of each month at 7 p.m. in the Board Room of the Ballwin Government Center, 1 Government Ctr. Schedule and place subject to change. Meetings are open to the public. All citizens are urged to attend.
Board of Aldermen Meeting
MINUTES OF THE BOARD OF ALDERMEN MEETING
The meeting was called to order by Mayor Pogue at 7:01 p.m.
The Pledge of Allegiance was given.
Walt Young, 634 Lemonwood Drive: Mr. Young reported on the drug take-back event on Saturday, February 20. He said they took in over 40,000 tablets to be destroyed. This is a valuable service. He said there will be another drug take-back on April 17 and as an on-going quarterly program throughout St. Louis County. Mayor Pogue said that the latest update is over 80,000 pills turned in.
Nancy Pino, Barn At Lucerne: Ms. Pino represents the Barn At Lucerne and is hoping that the Board will approve the “Farmer’s Market” at The Barn starting in May.
Ron Markland, 15908 Wetherburn Road: Mr. Markland spoke regarding the agenda items for the purchase of rock and concrete for Public Works to replace 1,850 yards of concrete pavement. He said that based on the work performed by Ballwin Public Works in his subdivision this past Fall, he was not impressed with the production rates. He also observed numerous OSHA violations, such as workers riding in bobcat buckets and not wearing safety glasses. Since OSHA cannot be enforced against municipalities, nothing could be done. He said he took videos of numerous clean water act violations. He observed employees dumping concrete cement waste into the sewer system which goes into the creek. These are violations of laws that Ballwin is enforcing against contractors, while at the same time being violated by the City of Ballwin.
Mr. Markland asked why the City did not ask for a proposal for a turn key operation to do the entire concrete replacement operation using a contractor who’s livelihood depends upon their being productive, and hopefully is buying rock and concrete at least at the same or perhaps a lesser price than the City of Ballwin. He said that the City might be paying lower wages, however, most contractors are set up to get production and make a profit so why not, prior to approving these purchases, get proposals to have the entire project done by private enterprise. He said that the City might also get a warranty that the reconstruction will last for at least one year. He said if Ballwin would outsource this work, there could be a reduction in Public Works manpower.
Jim Nelson, 15961 Downall Green Drive: Mr. Nelson asked to speak about the Transportation Development District. Mayor Pogue denied the request due to litigation being in process on this matter. Mr. Nelson asked if he can speak about freedom of speech. Mayor Pogue said yes as long as there is no discussion about litigation that is pending. Mr. Nelson said that at the last meeting, Alderman McDowell spoke about his admiration and support for the First Amendment of Freedom of Speech. He said that he is denied freedom of speech to this Board. Mr. Nelson said that City Attorney Jones should present one law, one court decision that prohibits speaking about something because there is a court action. The United States Congress, the House of Representatives, the Senate speak all the time on matters that are under litigation. The Missouri House and the Senate speak all the time on matters that are under litigation. He said that this Board denies it and it is a disgrace. He entered into the record the “West News Magazine” article outlines the Board’s refusal to allow him to speak at the previous aldermanic meeting.
BILL # 3616 - AN ORDINANCE AMENDING CHAPTER 18 OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN WITH RESPECT TO SUPERVISION OF THE CITY ATTORNEY AND PROSECUTING ATTORNEY.
A motion was made by Alderman Fleming and seconded by Alderman Leahy for a first reading of Bill No. 3616. A voice vote was taken with a unanimous affirmative result and the motion passed. Bill No. 3616 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. 3616. A voice vote was taken with a unanimous affirmative result and the motion passed. Bill No. 3616 was read for the second time.
A roll call was taken for passage and approval of Bill No. 3616 with the following results:
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. Street Sweeping (4 times per year / $20,750 for the whole year)
A motion was made by Alderman McDowell and seconded by Alderman Terbrock to accept the Consent Items. A voice vote was taken with a unanimous affirmative result and the motion passed.
FUTURE MEETINGS: Mayor Pogue proposed that the March 8 Board meeting be conducted at the Golf Clubhouse. There will also be a presentation on the Great Streets Initiative.
A motion was made by Alderman Suozzi and seconded by Alderman Leahy to conduct the March 8 Board meeting at the Golf Clubhouse. A voice vote was taken with a unanimous affirmative result and the motion passed.
GREAT STREETS INITIATIVE: Mayor Pogue said that the 4th series of the visioning session for the Great Streets Initiative will be presented March 9 at Ballwin Baptist Church from 7:00 – 9:00 p.m., March 10 at Crestview Middle School from 7:00 – 9:00 p.m., and March 11 at Manchester United Methodist Church from 7:00 – 9:00 p.m.
MARCH MEETINGS: Mayor Pogue said that there are no agenda items for the March Planning & Zoning Commission meeting. There being a light agenda and this being the last Board meeting before the election, he proposed that the March 22 Board of Aldermen meeting be cancelled. A motion was made by Alderman McDowell and seconded by Alderman Leahy to cancel the March 22 Board meeting. A voice vote was taken with the following result: Aye: McDowell, Terbrock, Schmer, Suozzi, Leahy, Boerner, Mellow. Nay: Fleming. The motion passed by a vote of 7-1.
CITY ADMINISTRATOR’S REPORT
FARMER’S MARKET: City Administrator Kuntz said the city has been contacted by the owner of the Barn At Lucerne regarding the establishment of a Farmer’s Market beginning in May. The plan is to conduct a market of 20-25 vendors one evening each week over the summer months. The market would operate in the parking lot of the Barn. Ballwin’s zoning and licensing ordinances do not address this kind of use. There is no provision in these ordinances that in any way allows the sale of any merchandise outside of a fully enclosed building except for plant nurseries and auto dealers. There is also a special use exception process for licensed businesses to store and sell gardening supplies outdoors, but nothing that addresses an event like a farmer’s market. In the past, the special event regulations have been used by businesses to do similar outdoor sales, but that is limited to 3 days per event and three events per year. Ballwin has historically allowed Christmas tree lots to operate, but there is no ordinance that specifically provides for this activity. City Administrator Kuntz recommended that the proposed regulations to allow this activity be referred to the Planning & Zoning Commission for consideration at its April meeting. This could not have been considered at its March meeting because of the time requirement for publication of the public hearing.
Alderman McDowell said that the Planning & Zoning Commission is a review board that examines the development proposals to determine if they meet the current standards. There are no standards in place at this time for Farmer’s Markets, therefore, the Planning & Zoning Commission has no guidelines to use in this review.
Assistant City Administrator Aiken said that he has provided 12 points that he believes should be included in any regulations for this purpose. The Planning & Zoning Commission could include or delete any other criteria. Alderman McDowell said this is exceeding their authority.
City Attorney Jones said that this is similar to the procedure that was used when the C-1District regulations, the new non-conforming use regulations, and also the overlay districts were recently changed and adopted. The concept was first brought to the Planning & Zoning Commission and they met 3 or 4 months on the items. They made a favorable recommendation on the proposed criteria. It was then presented to the Board of Aldermen as a concept. A motion was entertained to draft legislation. The legislation was drafted and considered by the Board of Aldermen. He said it would be proper to use this approach.
Alderman McDowell said that at this point this is only a symbolic petition. The typical process would be to make a formal petition and then a Zoning Ordinance could be created. He said that legislation can be prepared to fit this petition. City Attorney Jones said that once this is adopted, no petition would be necessary. It would be an application for a permit. Many times the Board of Aldermen has directed the Planning & Zoning Commission to look at a particular set of standards and to present a recommendation for their adoption. The ordinance charges the Planning & Zoning Commission with this responsibility with changes for the Zoning Ordinance.
Alderman Suozzi said that the Planning & Zoning Commission is not just a zoning commission. It is planning and zoning. They are part of the process.
Alderman Schmer said that he is in favor of a Farmer’s Market in Ballwin. Other communities have tried to do this but have not all been successful. He asked Ms. Pino (Barn At Lucerne representative) if she knows vendors who are interested in this. She said yes, some of the vendors have contacted her about this and have access to farmers who will participate with their products. She explained the business plan that she believes will contribute to the success of this Farmer’s Market. Alderman Schmer said that several jewelry booths included in the market is a long way from a Farmer’s Market. Ms. Pino said that selling something made from a product that they produce on their farm would be acceptable, but it will primarily be produce – not jewelry sales. She said that she is working with a marketing manager to operate the market.
Alderman Terbrock asked if someone wanted to sell jewelry, how would this be handled? Ms. Pino said that it will be subject to management approval and would mostly likely be told that it is not allowed.
City Administrator Kuntz said that other issues that must be considered are noise, lighting, proximity to residential property owners, Health Department guidelines and other licensing standards. Alderman Schmer said that this could revitalize the Barn At Lucerne.
A motion was made by Alderman Terbrock and seconded by Alderman Leahy to refer the proposed regulations allowing Farmer’s Market in the C-1 District to the Planning & Zoning Commission. A voice vote was taken with a unanimous affirmative result and the motion passed.
SLAB REPLACEMENT: City Engineer Kramer said that advertisements for bids for concrete pavement replacement with milling and concrete replacement with no milling were advertised in the “St. Louis Business Journal”, on the City’s website, and in Reed Construction Data, FW Dodge, and Construction Market Data. The announcement was also sent to 21 contractors. On January 29, 2010, nine bids were opened and read aloud. The bid specifications are on file in the Public Works Department.
City Engineer Kramer said that as part of the evaluation of the bids, a check was made for OSHA and prevailing wage violations within the past five years. Kelpe had some OSHA violations in the last 5 years, but no prevailing wage violations. Dura Seal had prevailing wage violations but no OSHA violations. City Engineer Kramer said that not having experience with Dura Seal Paving, he contacted 5 cities (Des Peres, Kirkwood, Creve Coeur, Maplewood, and Arnold) for which Dura Seal had done work. All of these cities reported that they would use Dura Seal Paving again. In addition, Superintendent of Streets, Jim Link has previous experience with Dura Seal Paving. Based on this information regarding Dura Seal Paving, and Ballwin’s own experience with Kelpe Construction, he said that either contractor can perform the required work of concrete pavement replacement with milling.
City Engineer Kramer said that the concrete work should be completed by the end of June in order to allow time for pavement placement before school begins. Having one contractor do all the concrete work would jeopardize getting the paving done before school starts.
City Engineer Kramer recommended that the contract be awarded to either of the two low bidders for an amount not to exceed the available budget amounts for concrete pavement replacement with and without milling.
Alderman Terbrock said that a resident said he has video of a Ballwin crew committing an OSHA violation and violating clean water regulations. City Engineer Kramer said that MSD, which wrote the clean water regulations, was contacted about how to dispose of the left-over concrete. Its recommended procedures were followed. It was later discovered that MSD was not following correct environmental procedures. The error has been corrected. The procedure that is now used is a filter cloth is laid on the ground in the grass, the left over concrete is dumped on the cloth, the liquid soaks into the ground, and the filter cloth is removed and disposed of in the same manner as broken concrete.
Mayor Pogue recommended that the Public Works staff complete the OSHA 10-hour course, even though this is not required by law. City Engineer said that this will be done. Alderman McDowell said that individuals can act unsafely and not be committing an OSHA violation. City Engineer Kramer said that is what happened with an employee ridding in the bucket.
Alderman Boerner asked if there are any overages, will there also be presented to the Board for approval? City Engineer Kramer said that if there is an overage beyond the budgeted amount, this would have to be presented to the Board.
Alderman Schmer said if there is an overage, this isn’t something the Board can say no to because this will be in the middle of the project. City Engineer Kramer said this is correct. He said that if an overage is not approved, it could result in bad construction practices with deteriorated concrete being left in place under new asphalt overlays.
City Administrator Kuntz said that the bids came in under budget. The proposal is for approval for an amount up to budget. Alderman Boerner said that this would allow an expenditure as much as 60% in excess of the bid. This is not responsible.
Alderman Fleming said that an overun of up to 10% over the bid amount would be acceptable to him but not as high as the budgeted amount. The budgeted amount would allow for an overage of $60,000 on this contract.
City Administrator Kuntz said that there will usually be some changes. He suggested a 10% or 20% buffer. Anything in addition to that amount requires a Board appropriation approval. Alderman Fleming said that a 20% buffer will put the amount in the middle of the high bid and the low bid. He said he is in favor of this. Alderman McDowell said that history has shown that on street repairs, depending on the location of the repairs and the material underneath the surface, the overage can vary a great deal.
A motion was made by Alderman McDowell and seconded by Alderman Terbrock to accept the low bid from Kelpe Contracting with a 20% buffer for concrete pavement replacement with no milling. A voice vote was taken with a unanimous affirmative result and the motion passed.
Alderman Suozzi asked who is liable for prevailing wage violations? City Engineer Kramer said that if the contractor errs in the prevailing wage, the State will impose a fine on the contractor. If Ballwin did not put into the specifications the prevailing wage requirement, Ballwin would be responsible. He said that the prevailing wage requirement is in the bid specs. This is required by State law.
Alderman Leahy asked for an explanation of the prevailing wage requirement. City Engineer Kramer said that this is the minimum wage each tradesman has to be paid, including the description of how much they get in benefits and actual wages. The State sets the minimum wage and minimum benefits for each tradesman, and all workers on all public improvements including buildings, roads, sewers, etc. for the public good have to be paid at least those amounts.
Alderman Fleming said that a couple of years ago, Ballwin had an issue with Dura Seal regarding the prevailing wage. Since this was a problem then, why is the Board in favor of approving the award of the contract to this company at this time? He said that he didn’t have any problem with this then. A prevailing wage violation is less serious in his mind than an OSHA violation. Sometimes the error is simply a bookkeeping error. Mayor Pogue said that when City Engineer Kramer sends out the bid information, the question is asked if there are any prevailing wage or OSHA violations. This allows the contractor to disclose this information and to show what has been done regarding previous issues and to prevent this from happening again. He said that in this case, Dura Seal has shown no incidents over the last couple of years. Paperwork was received from Krupp and Kelpe showing correction of their past violations.
A motion was made by Alderman McDowell and seconded by Alderman Mellow to accept the low bid from Dura Seal Paving for concrete pavement replacement with milling, in the amount of $140,537.83 plus 20% at the discretion of staff. A voice vote was taken with a unanimous affirmative result and the motion passed.
ASPHALT OVERLAY: City Engineer Kramer said that request for bid notices were sent to 13 contractors. This was also advertised in the “St. Louis Business Journal”, Reed Construction Data, FW Dodge Reports, Construction Market Data, and on the City’s website. On January 29, 2010, six bids were received and opened. The bid specifications are on file in the Public Works Department. As part of the evaluation of the bids, a check was made for OSHA and prevailing wage violations within the past 5 years. He said that L. Krupp Construction has completed several projects for the City of Ballwin, including asphalt paving for several years. In 2007, County Asphalt was the paving contractor for the new parking lot in Vlasis Park and the repaving of Park Drive. Based on this information and experience, he believes that either of these contractors can perform the required work. He said that the contract could be awarded to either company at their respective total bid amount. He said that based on cost and quality of work, he recommended the low bidder.
Alderman Suozzi asked what happens if a contractor says that asphalt is now 20% more than it was when the bid was submitted. City Engineer Kramer said that communication is with the people who make the asphalt, which is Fred Weber. There is a formula for the pricing of asphalt built into the contract. They know what percent of the final product is oil. There is an index that is printed monthly. This is used in the formula and the unit price is determined. He said that this is in the bid specifications. The asphalt price is adjusted based upon the index at the time the asphalt was used. It’s not possible to get a cheaper price in January because the contractor will estimate what the oil price will be in June, July, and August. That will be the higher price that they use. He said the high price will be locked in. In this way, if the price goes down, we benefit. If the price is higher, they benefit. He said that indexing is used by St. Louis County, the State, and other cities.
A motion was made by Alderman Terbrock and seconded by Alderman Boerner to accept the low bid by Krupp Construction. A voice vote was taken with a unanimous affirmative result and the motion passed.
ASPHALT ROLLER: City Engineer Kramer said that the request for bids was sent to five equipment suppliers for the purchase of a 2009 vibratory steel dual drum roller. Bids were advertised in the “St. Louis Business Journal” and on the City’s website. On February 12, bids from six suppliers were received and opened. The bid specifications are on file in the Public Works Department. The bid specifications were fully satisfied by only one bidder, Luby Equipment Services. The others did not meet the specifications. The pressurized sprinkler system sprays water on the steel drums, which is essential when rolling hot asphalt. The water keeps the hot asphalt from sticking to the steel drums. The Cocoa mats remove debris from the drums. They are made with fibers from the outer husks of the coconut. Except for the roller offered by Luby, all other rollers have hard plastic scrapers. Plastic scrapers wear quickly and unevenly, whereas, the Cocoa mats are almost indestructible.
City Engineer Kramer said that the low bidder offered a roller that lacks the pressurized sprinkler system and the Cocoa mats. The second low bidder’s roller lacks the sprinkler system, back-up alarm, and the mats. The third low bidder’s roller lacked the sprinkler system and the mats. Luby Equipment Services’ roller, though the fourth lowest bid, is equipped as specified. He recommended that the roller from Luby Equipment Services be accepted with the trade-in for a net cost of $16,800.
A motion was made by Alderman McDowell and seconded by Alderman Mellow to accept the bid from Luby Equipment Service for the net cost of $16,800. A voice vote was taken with a unanimous affirmative result and the motion passed.
NORTH POINTE POOL RETROFIT: Director of Parks & Recreation Bruer said Federal law passed in 2007, requires that pools have specific modifications to intake in order to prevent injuries and deaths related to entrapment. The deadline for compliance with the new standard was December 31, 2009. The Pointe pool was brought into compliance last summer, with North Pointe modifications budgeted for work to be completed prior to opening of the 2010 season. The St. Louis County Health Department is the local regulatory agency for this requirement and issues permits for operation based on compliance.
Director of Parks & Recreation Bruer said that a request for proposal was advertised in the newspaper, Dodge Reports, the City’s website, and sent to several pool contractors, including Westport Pools, Pro Pools, and Capri Pools. Only one bid was received. That was from Westport Pools of Maryland Heights in the amount of $21,231.00 with a self performance alternate of $7,131.00 for the city to perform a portion of the labor, as was done at The Pointe, for a total cost to the city of $14,100.00. She said that $12,000.00 was budgeted in the North Pointe operating budget for this expenditure.
Director of Parks & Recreation Bruer said that although only one bid was received and it is approximately $2,000 over budget, she recommended awarding the contract to Westport Pools in the amount of $14,100.00 with the city performing a specified portion of the modification. She said that this is a time sensitive issue and Westport Pools is prepared to work with Ballwin, as well as St. Louis County, in order to prepare the pool for opening as scheduled.
Alderman Terbrock asked where the $2,000 over budget amount will come from. Director of Parks & Recreation Bruer said that this is part of the Operating budget and she expects that there will be sufficient surplus by year end to cover the overage. City Administrator Kuntz said that this is not a discretionary expense because the pool cannot be operated without this modification. If necessary, the budget may require a re-appropriation to cover the overage from surplus.
Alderman Boerner said that under the Purchasing ordinance, three bids are required except under certain circumstances. He asked why is the normal bidding process being waived for this purchase. City Attorney Jones said that the bidding process was used and there was only one bid received. City Administrator Kuntz said that the request for bids was advertised in the newspaper, Dodge Reports, and the City’s website, in addition to several pool contractors. In spite of the best efforts to secure multiple competitive bids, only one bid was received. Alderman Boerner said that when three bids are not received, the Board can decide that three bids are not needed that’s contained within the ordinance. City Attorney Jones said that when a purchase is sent out for bids, and only one bid is received, nothing has been waived and it is still a competitive bidding process. Some bidders may have decided that they couldn’t meet the criteria and decided not to bid. It was still competitively bid when only one bid was received. The Board is not waiving anything because the project was competitively bid and only one bid was received.
A motion was made by Alderman McDowell and seconded by Alderman Fleming that based on the bid received and the specificity of the work, the Board accept the lowest bid of $14,100.00. A voice vote was taken with a unanimous affirmative result and the motion passed.
CITY ATTORNEY’S REPORT
BILL 3616: Alderman Fleming said that in this meeting, the Board defeated Bill 3616, by a vote of 4-5, which would have had the City Attorney reporting to the Board instead of the City Administrator. He said that he is very disappointed that this Bill was defeated. There is an evenly split philosophical difference among the aldermen as to what the Board’s job is. He said he sees three aspects to the responsibilities of the Board: 1) Enact legislation, 2) Be good representatives of the City of Ballwin, 3) Provide oversight to City Staff. Some people want to provide more oversight than others. In 2009, there were four times when the City Attorney had a report. Three were for closed session and one was for purchasing policies in December. He said that he would like to have more reports from the City Attorney. There were significant billings toward the end of the year. He said he thinks these billings were related to the Schnucks development, but he is not sure because this was not explained in the form of a report. The Board should consider how much oversight should be provided. Sometimes the oversight is too much. At this moment, given some of the issues that have been solved this year, more should be provided temporarily.
BILL 3616: Alderman Boerner said that the members of the Board have different backgrounds and experiences. He said he agrees with Alderman Fleming that the Board has the responsibility of oversight. The Board owes it to the citizens of Ballwin to check into issues.
BILL 3616: Alderman McDowell said that he does not have any problem with the defeat of Bill 3616. He respects all of the aldermen’s opinions, but there is a philosophical difference. The Board has been diligent to make sure the procedure aspect takes place. Looking at the tenure of the administrative staff of the City of Ballwin, it is a group of individuals that has a great deal of tenure. Oversight of that group by this Board has been more than diligent over the years. Any information request that an alderman would like to have has always been at their disposal with just a phone call. Information is provided by the City Attorney in the same way. He said that he has confidence in the staff.
ADJOURN A motion was made by Alderman Suozzi and seconded by Alderman Schmer to adjourn. The motion passed unanimously and the meeting was adjourned at 8:38 p.m.
TIM POGUE, MAYOR