Minutes of Special Commissioners Meeting - March 22, 2013
Prior to the opening of the meeting, Mr. Groon led those present in the Pledge of Allegiance to the Flag.
The special meeting of the Board of Commissioners, Borough of Wildwood Crest, Cape May County, New Jersey, was held in the Municipal Court Room at 9:30 a.m. On roll call the following answered to their names:
Gould - Groon – Yes Cabrera - Absent
Mr. Groon read the following statement: In compliance with the Open Public Meeting Act, Chapter 231, P.L. 1975, the notice requirements have been satisfied as to the time, place and date of holding said special meeting by posting notice on the bulletin board in the Borough Hall and by fax transmitting and mailing same to the Gazette-Leader, the Herald and The Press on March 19, 2013.
Mr. Groon next announced the one-way in and the one-way out method of ingress and egress in case of emergency.
The Clerk reported that he had provided to the governing body a copy of an e-mail “trail” between he, the CFO and the Engineer regarding the recent nor’easter storm which “ravaged” the beach.
The Clerk indicated that the Engineer, the CFO and the Public Works Superintendent were present at this time for this special meeting discussion.
The Clerk stated that the purpose of this discussion was for purposes of funding the work necessary outside the scope of FEMA since it was believed that this damage was not directly related to Hurricane Sandy. He added that the Borough was in the midst of the beach grading project which had recently been awarded in the amount of approximately $192,000 from the special emergency appropriation. He indicated that it was his understanding that the discussion would be with regard to funding of the most recent work to be done above that contracted amount. He indicated that a change order for the current contract could be utilized; however, there is a limit of a 20% increase on such change orders. If there is an additional change due to an emergency, there is the ability to exceed the 20% limit. The key element is the ability to fund the emergency and where those dollars would come from.
The Clerk also reminded those present that the budget adoption was scheduled for Wednesday, March 27, 2013, and depending upon how the work is funded, it could impact the budget as introduced.
The Clerk stressed that the notice given for this special meeting indicated that formal action could be taken with regard to the subject matter, in the event a resolution was necessary or required.
The Engineer stated that the beach re-grading project, as a result of Hurricane Sandy, was in progress. He added that severe damage was done to the beach as a result of the nor’easter storm that came through two weeks prior. The contract for the current work calls for redistribution of 40,534 cubic yards of sand and with the additional work, a minimum of 65,000 cubic yards will be required. He added that he had negotiated with the contractor to reduce the unit price to $4.60 c.y. Therefore, using the minimum 65,000 cubic yards, the total would be $112,543.60. At 70,000 cubic yards, the total would be $135,543.60. He added that since this was not a named storm, the additional cost will not be eligible for FEMA reimbursement. The Engineer indicated that there would be no additional engineering costs associated with the extra work.
The Clerk inquired of the CFO if the award of the ice cream vending contract were to be done prior to a change order or adoption of the budget, would that lessen the impact of this extra expense on the budget. The CFO responded that, as long as the Borough receives DLGS approval, that should be a possibility. He added that both the ice cream concession contract, as well as the revised sand redistribution contract, would have to be sent for approval evidencing revenue and expenditure before the budget could be adopted.
The Clerk stated that the remaining $30,000 would have little impact on the budget. He reported that the ice cream concession bids came in at $100,000 for 2013 and $232,000 for 2014.
Mr. Groon stated that he would like to hear more options. The CFO stated that since it is a known cost, it must be included in the 2013 budget. Mr. Groon inquired of the CFO why the Borough cannot utilize some of the funding put aside for Hurricane Sandy repairs. The CFO responded that those funds must be utilized for Hurricane Sandy damage. Mr. Groon inquired if the funding mechanism could be amended to include the current damage. The CFO responded that it could not due to the emergency nature of that funding specifically for Sandy relief. He added that the most recent storm was not declared an emergency by the state.
The Clerk stated that ultimately the unused portion of the emergency funding could be cancelled, amend the budget and take what would then go into surplus as an offset.
Mr. Groon requested that the CFO list the options available to the governing body. The CFO responded:
1. Increase the expenditures in the budget to include the added project ($135,000) which would increase the tax rate for 2013. This option would be part of the budgetary process. The CFO indicated that it would be a minor amendment and could potentially still enable adoption of the budget on March 27, 2013.
2. Utilize the ice cream concession bid to increase revenues in the budget. The ice cream concession bid would have to be awarded prior to the adoption of the budget. The revenues would be increased by $100,000 and the expenditures would be increased by $135,000; therefore, the tax increase would be minimal. The CFO was unsure if the budget could be adopted on March 27, 2013 under this scenario because of the new revenue line which would have to be approved by DLGS. It could, however, potentially be done by March 27, 2013. Since the ice cream concession contract cannot be awarded until March 27, 2013, the budget adoption would have to be delayed. The Clerk indicated that the delay would be approximately two weeks.
3. The final option would be to increase the anticipated surplus by another $135,000 to offset the expenditure of $135,000. That would be a similar process as No. 2 above.
The Clerk indicated that the cancellation of the unused portion of the emergency resolution would enable surplus to be replenished at a later date after all expenditures have been made from the emergency fund for Hurricane Sandy.
The Engineer was asked what the timeline was for this work. The Engineer responded that the work needed to be authorized “right away.”
Mr. Groon asked if the emergency resolution could be amended to reduce the amount by $200,000 and move that $200,000 immediately into surplus. The CFO responded that the expense line would still have to be inserted into the budget.
Mr. Groon inquired if a final determination was required at this meeting in order that the budget could be amended or adopted on March 27, 2013. The Clerk responded in the affirmative.
The CFO stated that another option would be to utilize finds from the beach maintenance line item to finance a portion of this work.
Mr. Groon confirmed with the Engineer, the CFO and the Public Works Superintendent that they had met with Mr. Cabrera and reviewed the situation, and Mr. Cabrera concurred that the work was required. All three responded in the affirmative that Mr. Cabrera independently met with the Engineer and DPW Superintendent, toured the beach, and found the conditions to be emergency based.
At 9:50 a.m., Mr. Groon requested a brief recess. All responded in the affirmative.
The meeting reassembled at 10:15 a.m.
The Clerk reported that he, the Engineer, Solicitor, CFO and the Superintendent of Public Works had discussed the available options. As a result of those discussions, and the subsequent representation by the Borough Engineer, it was determined that the emergency repairs to be made are exclusively to the back beach area, and the severe erosion problems caused by the nor’easter storm are a direct result of Hurricane Sandy damage to the dune system.
On that basis, the recommendation of administration, upon the certification from the Engineer, was that the resolution that authorized the $800,000 special emergency appropriation on 12/12/12 will be further depleted by $135,543.60. That resolution will be considered at the meeting of March 27, 2013 in conjunction with the budget adoption. The certification from the CFO will be provided for a change order to the work that is presently being completed by Don Rogers, Inc. The Clerk added that the Borough will be exceeding the 20% limitation on the change order in conjunction with NJAC 5:30-11.9 which specifically provides that “a change order may be allowed when an unforeseen circumstance or differing site condition is combined with a situation which renders execution of a new contract an unreasonable interference with the efficient completion of the work.” He indicated that he, the Engineer, the CFO and the Public Works Superintendent agreed that those circumstances were present in the instant matter.
The Engineer explained the connection to Hurricane Sandy as follows:
“It is related because Hurricane Sandy decimated the Borough’s dune system. The Borough had not completed the repairs, because there had not been sufficient time since Hurricane Sandy. If the dune system was not decimated by Hurricane Sandy, the recent nor’easter would not have done damage to the back beach because the dune system would have protected the back beach. There was erosion from this recent nor’easter, but we would have had protection for the back beach if our dune system wasn’t destroyed by Hurricane Sandy. There is a direct connection to Hurricane Sandy. The damage that needs to be repaired now is directly related to Hurricane Sandy. As a result of the dune system no longer being in place to provide protection we suffered additional erosion in the back beach that otherwise would have been prevented if the dune system was in place and this recent storm would not have destroyed the dune system and the dune system would have prevented the tidal waters from continuing to expand upon the erosion that occurred during Hurricane Sandy. I think it’s reasonable that your funding in place, since it is all related, should cover this expense. I will give you a letter in writing explaining that because the dune system was destroyed by Hurricane Sandy, you have now suffered additional damage.”
The Clerk inquired of the CFO if the Borough would now have to do anything with respect to the budget. The CFO responded that the Borough would not. He added that the funding is already there so no change will be needed to the budget. The Clerk went on to state that the intent would be to adopt as planned with no changes to what currently is in place and place a resolution before the governing body for a change order exceeding the 20% limitation in accordance with the above rule.
Mr. Groon stated that he was comfortable with the Engineer’s explanation. The Clerk concurred, adding that all administrative staff were comfortable with the explanation as well.
The Clerk asked the governing body if they were on board with moving the process forward because he and the CFO would have to then prepare the necessary resolutions for the meeting of March 27, 2013. Mrs. Gould responded in the affirmative. Mr. Groon responded in the affirmative.
There being no further matters for discussion, and no public comments, Mrs. Gould motioned, seconded by Mr. Groon, that the meeting be adjourned.
Vote: Gould-Groon-Yes Cabrera-Absent
Dated: March 27, 2013
M. Yecco, Borough Clerk