04-04-1977 Minutes1
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City of Salina, Kansas
Regular Meeting of the Board
of Commissioners
April 4, 1977
The Regular Meeting of the Board of Commissioners met in the Commi
Room, City -County Building, on Monday, April 4, 1977, at four o'clock p.m.
The Mayor asked everyone to stand for the pledge of allegiance to the
flag and a moment of silent prayer.
There were present:
Mayor Gerald F. Simpson, Chairman presiding
Commissioner Keith G. Duckers
Commissioner Karen M. Graves
Commissioner W. M. Usher
Commissioner Jack Weisgerber
comprising a quorum of the Board, also:
L. O. Bengtson, City Attorney
Norris D. Olson, City Manager
D. L. Harrison, City Clerk
Absent:
None
printed. The Minutes of the Regular Meeting of March 28, 1977, were approved as
STAFF AGENDA
A PUBLIC HEARING was held on the proposed assessments for the improvement
in Engineering Project 76-604:
Curbing, guttering, paving, grading and drainage of the
FRONTAGE ROAD from the south line of Lot One (1), Block One (1),
Sullivan Addition to the City of Salina, Saline County, Kansas,
to the north line of Belmont Boulevard, extended.
Curbing, guttering, paving and grading of PLANET AVENUE from
the south line of Saturn Avenue north Eight Hundred Sixty-two
and forty-one hundredths feet (862.41) to the existing pavement.
as authorized by Resolution Number 3282
passed by the Board of Commissioners'
on the 28th day of June, 1976.
No protests, written or oral, were filed, and no changes were made in
the proposed assessment.
A motion was made by Commissioner Weisgerber, seconded by Commissioner
Usher to approve the assessments and introduce the assessment ordinance for
first reading. Ayes: (5). Nays: (0). Motion carried.
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Ordinance Passed: Number:
A PUBLIC HEARING was held on the proposed assessments for the improvements
in Engineering Project 76-612:
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Construction and installation of Lateral Sanitary Sewer 554.
as authorized by Resolution Number 3293, passed by the Board of Commissioners
on the 27th day of September, 1976.
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No protests, written or oral, were filed, and no changes were made in
the proposed assessment.
A motion was made by Commissioner Weisgerber, seconded by Commissioner
Graves to approve the assessments and introduce the assessment ordinance for
first reading. Ayes: (5). Nays: (0). Motion carried.
Ordinance Passed:
Number:
AN ORDINANCE was introduced for second reading entitled: "AN ORDINANCE
providing for the amendment of Ordinance Number 8526, the same being Chapter 36
of the Salina Code, and the Zoning District Map therein and thereby adopted and
providing for the rezoning of certain property within the City and prescribing
the proper uses thereof." (For the rezoning of Lot 1, Block 1, Holmquist
Estates Addition, from RS (Single Family Residential Suburban District) to
P.D.D. (Residential Planned Development District). A motion was made by
Commissioner Usher, seconded by Commissioner Duckers to adopt the ordinance as
read and the following vote was had: Ayes: Duckers, Graves, Usher, Weisgerber,
Simpson (5). Nays: (0). Carried. The Mayor approved the ordinance and it is
numbered 8559. The ordinance was introduced for first reading March 21, 1977.
AN ORDINANCE was introduced for second reading entitled: "AN ORDINANCE
amending Section 22-150 of the Salina Code and repealing the existing section."
A motion was made by Commissioner Graves, seconded by Commissioner Weisgerber to
adopt the ordinance as read and the following vote was had: Ayes: Duckers,
Graves, Usher, Weisgerber, Simpson (5). Nays: (0). Carried. The Mayor approved
the ordinance and it is numbered 8560. The ordinance was introduced for first
reading March 21, 1977.
A MOTION was made by Commissioner Weisgerber, seconded by Commissioner
Duckers to introduce an ordinance for first reading amending Section 32-55 of
the Salina Code and repealing the existing section. Ayes: (5). Nays: (0).
Motion carried.
Ordinance Passed:
Number:
THE CITY ATTORNEY reported on bids received March 28, 1977 for Engineer
Project 77-614. He said, "I have checked into the legality of tying the 2 bids
together, or whether these were separate bids. This was the question the Commiss
referred to the Engineer at the last meeting. I have checked the contract
documents and I find no provisions in the documents or in the instructions to
bidders whereby the City requested that a joint bid be submitted, and in view of
this fact I think that you must consider the single and separate bids and discoun
the joint bid because to do so would not be allowing any of the other contractors
to submit joint proposals. They all were single and that is all we requested,
and in view of this fact I think you must discount the joint bid that was
made."
Dean Owens, Attorney representing Brown & Brown, Inc. and Smoky Hill,
Inc., said, "It is the position of Smoky Hill, Inc. that it would be proper, in
the discretion of the Commission, to award a contract based on a combined bid
for both sections of the work. I have some legal authorities for this propositio
that it would be well within the authority of the Commission to do so. I am
sorry I didn't have an opportunity to review those with the City Attorney,
perhaps the best thing I could do would be to request this matter be postponed
for a week so that we would have an opportunity to discuss it, and the legal
authorities which I have. I am not really asking you to go against the counsel
of your City Attorney, but at the same time feel very strongly that it would be
proper to consider this on a combined bid basis, notwithstanding the fact that
the specifications are written in separate parts. I would like to have an
opportunity to discuss that with the City Attorney before the Commission makes a
final decision."
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Mayor Simpson asked if the bid specifications either prohibit or not
address the possibility of a joint bid?
Mr. Bengtson replied they requested Part I and Part II only. "I think
there is no question in my mind that what you, as a Board of Commissioners, have
the discretion, if you would want to, to reject any and all bids. You don't
have to accept the low bid, this is within your discretion if you have a valid
reason for not doing that, but my feeling is this, even though it might be
within your discretion you would be giving one contractor advantage over the
others if they are not afforded the opportunity of submitting joint bids.
Probably the others would want to submit joint bids, and probably their combined
bid may have been less. They did not have the opportunity to do this, and I
think to allow one to do it and not the others would be putting one contractor
at an advantage over the others. I would recommend if you have any thoughts of
this in the future you certainly could advertise and ask for joint bids, but I
would think in the situation such as this you should reject them all and then
ask for combined bids, because I think to allow one to submit a bid and you
accept it would be
p giving this contractor an advantage that the others do not �
have. In the future you could advertise and ask for joint bids, but I would
think that in a situation such as this, you should reject them all and readvertise
for combined bids."
Mr. Owens, said, "There was a project in 1975, 75-590, which was bid
on a combined basis very similar to the one now being considered by the Commission
that bid was accepted on a combined basis with a deduction of 1% for the combination
bid, and the City did accept that and did accept the benefit of the 1% discount
for the combined bid. This has been done in the past."
Mr. Boyer explained, "On that particular contract in 1975 Brown &
Brown, Inc. and Smoky Hill, Inc. were the low bidders on both parts of the
contract, and that the City did take advantage of the discount."
Commissioner Weisgerber suggested the bids be rejected, and readvertised
with instructions that the two parts could be tied.
Commissioner Usher asked if this is something new in bidding or if
this is a form that is universal in the industry?
Dick Brown, President of Smoky Hill, Inc. replied, "It is not uncommon
to have discounts or ties in one form or another. A tie is where one is accepted
contingent to the other and has more stringent restrictions normally than the j
discount. The State Highway Commission accepts discounts on their bids. We see
a lot of invitations come in the mail for projects and we see discounts accepted,
and occasionally we see jobs bid in parts that the invitation says 'these projects)
may not be tied', and it has always been our assumption, it was when we bid the
project in 1975 and it was on this one this time, that since there was no restrict'on
upon giving a discount if awarded both, that that was a permissible form of
bidding. The bidders we bid against this time were essentially the same bidders
we bid against in 1975 and I would assume they had the same knowledge now as
then about those other jobs and our discount that we always have coming."
Mr. Bengtson reported, he was not asked for a legal opinion about the
bids received in 1975. "However this contract did not request joint bids, they
were separate, and if you are going to do anything, then I think you ought to
reject all bids and readvertise, and if you do, specifically point out that they
can tie the bids if they so desire, but I think you would be on pretty shaky
grounds if you did accept the joint bid where the other contractors did not have
this same opportunity to submit a joint bid, or apparently had no knowledge that
they could."
Commissioner Usher stated, "I fell that is a matter of figuring your
bid and as long as you don't specify that you can't tie the two together, I
think that is a part of bidding. It appeals from what they say that that is
industry practice."
Commissioner Graves asked Dick Brown, if it is commonly accepted
procedure in bidding that it can be done jointly, unless otherwise specified?
Mr. Brown replied it is certainly not uncommon. He said he believes
the other contractors had the same opportunity that they had this time and 2
years ago also.
Mr. Owens stated, "The combined bid has substance because the 2 parts
of this project work are closely related and the contractors will be working in
the same general areas during the same period of time, and it is essential to
the completion of both parts of the project in as economical a way as possible,
and it is through the ability and knowledge of one knowing that that they can
coordinate and cooperate with the other that justified the discount should the
contract be awarded both parts to these joint venturers, they know they can work
together and minimize problems between them and expedite both parts of the
contract work at the same time. We do feel there is some precedent for this
insofar as city contracting is concerned as well as the construction industry in
general, and we request the Commission take this into consideration."
Commissioner Usher asked for the dollar figure difference in the bids.
Mr. Boyer reported $4.58.
Commissioner Usher asked if any other bidder is present to speak to
the issue?
Mr. Andy Johnson, Earth Excavation, Inc., said, "We don't include
legal fees and we are primarily contractors and not lawyers. We bid on them as
we interpret the specs and we also are only specialized in one aspect of the
bid."
Mayor Simpson commented, "This is one of the things that concerns me
is that if we are going to accept joint bids then it should be stated the project
may be bid jointly, otherwise it seems we may be creating the possibility of
eliminating some competitive bids from firms who specialize in one aspect of the
business or other. I am not sure that is entirely desirable."
Mr. Boyer said, "On the consideration between this and the one let in
1975, there the low bidder took it anyway, here you have a low bidder on the
bids the way you asked and now you are going to switch and change to another
contractor on both projects. I would like to point out if you wish to allow to
tie or not, yes it is certainly at your discretion. I think if we are going to,
I think we should specify which we are going to do. For the first few years we
were awarding all contracts combined, we did not separate any of them into parts
and we were instructed by the Commission at that time to separate them for this
purpose, that we have paving contractors and we have pipe contractors some of
them do both and some of them don't and they felt that forcing a combined bid
was maybe putting the individual small contractor at a disadvantage so we were
requested to take bids in separate parts from then on and we have done so since
then."
Commissioner Duckers asked Mr. Boyer if the City took the to discount
on the 2 part bid let in 1975?
Mr. Boyer replied the city did take the to discount as Brown & Brown,
Inc. and Smoky Hill, Inc. were the low bidders for both parts of 75-590.
Commissioner Duckers commented, "It seems to me we have established a
precedent."
Mr. Don Schoof, Smoky Hill, Inc., said, "It certainly is an advantage
to be able to coordinate this thing. Currently we have a project that we bid
Part I and another contractor bid Part II and we are unable to finish our Part
I until Part II is done. The fact is we will probably be working somewhere
else, we might not be available to come in and do. It is impossible to finish
Part I until Part II is done because of the nature in the work. There are some
water curb boxes that go behind the curb and they are supposed to go within one
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foot of the curb with concrete around them and you can't put those in until the
curb and gutter is put in and the curb and gutter is Part II. So it certainly
strings out Part I a long ways on these jobs the way they are set up. The State
Highway has it set up as a matter of policy. They have all kinds of little
things that they put in on their bids in order to tie and give discounts, change
the bids. In other words in their set up, if a contractor wishes to change his
bid at the last minute, rather than mark out the bid he notes it on the front of
the sheet that item so-and-so will read such -and -such, rather than going in and
changing it and refiguring it. Then they use the unit price to figure out the
bid. So it is a common thing with other agencies."
Commissioner Usher said, "I think we have set a precedent and under
those conditions I move we award the bids to Smoky Hill, Inc. and Brown &
Brown, Inc."
Commissioner Duckers seconded the motion. Ayes: Duckers, Graves,
Usher, Weisgerber (4). Nays: Simpson (1). Motion carried.
Commissioner Usher said, "I would also like to further state that the
instructions be given so that in the future this situation isn't confronted by
other commissions, and unfortunatly we learn by doing as we go through this
bidding process. This isn't the first time we have run into stone walls."
Mr. Boyer asked, "Are you saying that you desire that we instruct the
bidders that they may tie? Is this what you are saying?"
Commissioner Duckers replied, "Separate, but they may tie or they may
discount."
Mayor Simpson commented, "I think everybody should have the opportunity
to bid on the same basis, and I am not personally convinced that was the case
here, through no one's fault, but just the way that it was."
PUBLIC AGENDA
PETITION NUMBER 3630 was filed by the Salina Presbyterian Manor, Inc.
for the approval of the plat of Salina Presbyterian Manor, Inc., Subdivision. A
motion was made by Commissioner Usher, seconded by Commissioner Duckers to refer
the petition to the City Planning Commission for a recommendation. Ayes: (5).
Nays: (0). Motion carried.
COMMISSION AGENDA
A MOTION was made by Commissioner Usher, seconded by Commissioner
Duckers to add appointments to Boards and Commissions to the agenda for consideration.
Ayes: (5). Nays: (0). Motion carried.
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THE MAYOR, with the approval of the City Commission, made the following
appointments:
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Citizens Advisory Committee
Area H
Robert Lewis, appointed to fill the space created by reapportionment
in October, 1976 for a term to expire November 25, 1978
Area I
Marguerita Carnal, appointed to fill the unexpired term of Grace Young
to November 25, 1977.
Frances Hobbs, appointed to fill the unexpired term of Lorina Knoll to
November 25, 1979.
Inez Urie, appointed to fill the space created by reapportionment in
October, 1976 for a term to expire November 25, 1978.
Area J
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Opal Stull, appointed to fill the unexpired term of John Loftus to
November 25, 1977.
Emmett Erwin, appointed to fill the unexpired term of Warren Young to
November 25, 1977.
Area L
Loren Pardee, appointed to fill the unexpired term of J. Q. Rodriguez
to November 25, 1979.
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The Mayor said the Commission needs two members for Area K and at the
present time there are no volunteers.
Mr. Olson asked the City Commissioners to consider a request by Gary
Morgan for the approval of the preliminary redevelopment plan for Lot 1,
Block 8, Northeast Industrial Park, with two waivers of the Urban Renewal Plan
requirements, concerning setbacks.
A motion was made by Commissioner Duckers, seconded by Commissioner
Usher, to add the consideration of Gary Morgan's request to the agenda for
consideration. Ayes: (5). Nays: (0). Motion carried.
Mr. Morgan approached the bench and discussed the setback waivers with
the Commissioners.
The City Planning Commission recommended the waiver request for the
front yard setback be approved, the waiver request for the side yard setback be
denied, and the redevelopment plan be approved, subject to an appropriate change
to reflect the sideyard setback.
Commissioner Usher asked Jim Maes of the Planning Department about the
City Planning Commission's recommendation.
Mr. Maes replied, "The feeling I got from them is that first of all
the Northeast Industrial Park is supposed to maintain a park -like appearance with
setbacks and everything like this and that he has sufficient room to the north
to move his whole plan to the north 15 feet without in any way damaging the
overall concept. They did waive the 30 foot front yard setback because he was
insistant on this wide of a building or this length of a building. They went
along with that. Also if they waive this 15 foot requirement he could put any
type of permanent structure there he wanted to, there would be no guarantee that
it would be just a roof over some pipe. They wanted to maintain this and not
set a precedent in the Industrial Park Area."
After further discussion of the plan with Mr. Morgan, a motion was
made by Commissioner Duckers, seconded by Commissioner Usher to accept the
recommendation of the City Planning Commission and approve the development plan
and the waiver of the front yard setback, and deny the side yard setback. Ayes:
Duckers, Usher, Weisgerber, Simpson (4). Nays: Graves (1). Motion carried.
The Commissioners did not bring any other item to the floor for
discussion.
A MOTION was made by Commissioner Usher, seconded by Commissioner
Weisgerber that the Regular Meeting of the Board of Commissioners be adjourned.
Ayes: (5). Nays: (0). Motion carried.
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D. L. Harrison, City Clerk