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HomeMy WebLinkAbout01/08/90 Board of Public Works MinutesREGULAR MEETING JANUARY 8, 1990 The regular meeting of the Board of Public Works was convened at 9:32 a.m. on Monday, January 8, 1990, by -Board President John E. Leszczynski, with Mr. Leszczynski and Mrs. Patricia E. DeClercq present. Board member Ms. Katherine Humphreys was not in attendance. Also present was Assistant City Attorney Jenny Pitts Manier. APPROVE MINUTES OF PREVIOUS MEETING Upon a motion made by Mrs. DeClercq, seconded by Mr. Leszczynski and carried, the minutes of the January 2, 1990, regular meeting of the Board were approved. INVOKE EMERGENCY POWERS OF THE BOARD Mr. Leszczynski advised that at this time he would like to invoke the emergency powers of the Board. He stated that at the end of the year some pressure testing was done at the Wastewater Treatment Plant and it was discovered that two (2) tanks did not pass the air testing as required by the State and therefore they have to be removed and replaced as quickly as possible. He therefore made a motion that the Board authorize solicitation of two (2) quotes for this removal and replacement work. Mrs. DeClercq seconded the motion which carried. It is noted that pursuant to I.C. 36-1-9-11 the Board can declare an emergency in matters that could not reasonably be foreseen and which may threaten public health, welfare or safety and which require immediate action. APPROVE FIRE ALARM ASSISTANCE CONTRACT - CITY/UNIVERSITY OF NOTRE DAME Mr. Leszczynski indicated that an annual Fire Alarm Assistance Contract between the City and the University of Notre Dame has been submitted for approval and execution. It is noted that this Agreement provides for the City's assistance to the University in the coordination of fire dispatching procedures by authorizing the use of the City's Centralized Communication Center for this purpose. By this Agreement, the University agrees to pay the City the sum of one hundred and thirty-five dollars ($135.00) per month as a service fee for the term of the Contract which is January 1, 1990 through December 31, 1990. Mrs. DeClercq made a motion that the Agreement as submitted be approved. Mr. Leszczynski seconded the motion which carried. APPROVE LEASE PURCHASE PROPOSAL - ONE (1) 1989 TYPE I MODULAR AMBULANCE Mr. Leszczynski advised that in October the City purchased one (1) new ambulance for the Fire Department Emergency Medical Services and at this time it is being recommended that the Board award the Lease Purchase Proposal of MNC Leasing Corporation, Nottingham Centre, 502 Washington Avenue, Towson, MD, for this ambulance. Mr. Leszczynski noted that the Proposal of MNC Leasing is 8.150 interest with semi-annual payments of $10,917.96 for three (3) years for a total cost of $65,507.76. Therefore, Mrs. DeClercq made a motion that the Lease Purchase Proposal as submitted by MNC Leasing Corporation be approved and executed. Mr. Leszczynski seconded the motion which carried. APPROVE RELEASE OF EASEMENT - LOT 54 - KENSINGTON FARMS EAST Mr. Leszczynski advised that pursuant to the request submitted to the Board on December 18, 1989 by Lang, Feeney & Associates requesting that the City vacate an existing easement on Lot 54 in Kensington Farms East and move the easement, the City Attorney's office has prepared a Release of Easement which is contingent 12 REGULAR MEETING JANUARY 8, 1990 upon the granting of a new Leszczynski therefore made be approved and executed. which carried. Easement by the developer. Mr. a motion that the Release of Easement Mrs. DeClercq seconded the motion APPROVE CHANGE ORDER NO. 3 - ST. JOSEPH/WAYNE STREET PARKING GARAGE Mr. Leszczynski noted that Walker Parking Consultants, 7330 Shadeland Station, Indianapolis, Indiana, and Carl J. Reinke & Sons, Inc., P.O. Box 3095, South Bend, Indiana have submitted to the Board for approval Change Order No. 3 for the above referred to project. The Change Order indicates an increase of $33,702.02 for a new Contract sum, including this Change Order, in the amount of $3,261,830.49. Mr. Leszczynski noted that the primary reason for the increase is due to interior painting and addition of some bumper posts. Mr. Leszczynski made a motion that the Change Order as submitted be approved and executed. Mrs. DeClercq seconded the motion which carried. AWARD BIDS - SALE OF ABANDONED VEHICLES Mr. Leszczynski advised that the Department of Code Enforcement has reviewed the bids opened on January 2, 1990 for the sale of abandoned vehicles and has made the following recommendations: MRS. NINA A. TESKE 54830 Pear Road South Bend, Indiana VEHICLE NO. TAG NO. AMOUNT BID 20. 12506 $ 56.60 TOTAL: $ 56.60 MR. GENE HANCZ STEVE & GENE'S AUTO TRUCK SALVAGE 3109 Gertrude P.O. Box 2883 South Bend, Indiana 46680 VEHICLE NO. TAG NO. AMOUNT BID 21. 12597 $ 39.75 TOTAL: $ 39.75 MR. PAUL KOWALSKI K AUTO SALVAGE 56670 Sonora Road South Bend, Indiana VEHICLE NO. TAG NO. AMOUNT BID 2. 11114 $ 63.00 3. 11123 $ 37.00 8. 11832 $101.00 9. 11864 $ 63.00 10. 11952 $140.00 1 13 REGULAR MEETING JANUARY 8, 1990 12. 12191 $ 50.00 13. 12230 $103.00 14. 12264 $ 39.00 15. 12302 $ 92.00 16. 12308 $ 83.00 17. 12323 $103.00 18. 12335 $ 37.00 19. 12497 $ 36.00 TOTAL: $947.00 MR. PAUL E. SCHULTZ SUPER AUTO SALVAGE CORPORATION 3300 South Main Street South Bend, Indiana 46614 VEHICLE NO. TAG NO. AMOUNT BID 1. 10999 $ 30.00 4. 11715 $ 26.25 5. 11749 $ 27.75 6. 11793 $ 22.50 7. 11804 $ 22.50 11. 12150 $ 68.79 TOTAL: $197.79 GRAND TOTAL: $1,241.14 Therefore, Mrs. DeClercq made a motion that the recommendation be accepted and the above indicated bids be awarded. Mr. 'Leszczynski seconded the motion which carried. AWARD PROPOSAL - EMPLOYEE ASSISTANCE PROGRAM Mr. Leszczynski advised that Proposals received on August 7, 1989 for the above referred to service have been reviewed by the Employment Assistance Program Committee and it is their recommendation at this time that the Board award the Proposal of Madison Center for an annual fee of $15,000.00. Upon a motion made by Mrs. DeClercq, seconded by Mr. Leszczynski and carried, the recommendation was accepted and the Proposal awarded. APPROVE REQUEST TO ADVERTISE FOR THE RECEIPT OF BIDS - GASOLINE AND DIESEL FUEL OIL FOR CALENDAR YEAR 1990 Mr. Phil St. Clair, Director, Division of Equipment Services, requested that the Board advertise for gasoline and diesel fuel oil to cover 1000 of the City's needs for calendar year 1990. Mr. St. Clair advised that the following are the approximate amounts required for the calendar year 1990: 1. 506,000 Gallons Mid -Grade Unleaded Gasoline 2. 350,000 Gallons Diesel Fuel #1 and Diesel Fuel #2 3. 100,000 Gallons Fuel #4 Mr. Leszczynski noted that this is the first time the City will not be seeking bids for regular gasoline. It is noted that regular leaded gasoline has been eliminated from the specifications and the unleaded gasoline has been ungraded to a higher octane rating. The higher octane level will allow all gasoline powered vehicles to function under one fuel. Mrs. DeClercq made a motion that the request be approved. Mr. Leszczynski seconded the motion which carried. 14 REGULAR MEETING JANUARY 8, 1990 APPROVE REQUEST OF MARTIN LUTHER KING FOUNDATION TO CONDUCT WALK FROM COUNTY -CITY BUILDING TO CENTURY CENTER - MONDAY, JANUARY 15, 1990 In a letter to the Board, Ms. Gladys Muhammad, Martin Luther King, Jr., Foundation, Inc., 1522 West Linden Avenue, South Bend, Indiana, advised that the Foundation is once again requesting permission to have their traditional March from the County -City Building on Jefferson Boulevard to the Century Center on January 15, 1990. Ms. Muhammad advised that the March will begin at approximately 1:15 p.m. and the participants should arrive at the Century Center by 1:30 p.m. She also noted that it has been suggested that, based on the size of the crowd drawn in the past, that participants utilize the street this year instead of trying to confine the marchers to the sidewalk. Mr. Leszczynski advised that the appropriate City departments and bureaus have reviewed this request and approval is recommended. Therefore, Mrs. DeClercq made a motion that the request be approved. Mr. Leszczynski seconded the motion which carried. FILING OF ENVIRONMENTAL CLEAN-UP OF LOTS REPORT A report from the Department of Code Enforcement indicating a total of fourteen (14) properties cleaned on December 27, 1989 and December 28, 1989, was submitted. Upon a motion made by Mrs. DeClercq, seconded by Mr. Leszczynski and carried, the report as submitted was filed. APPROVE CLAIMS Mr. Juan Manigault, Executive Director, Employment Training Services of St. Joseph County, submitted a list containing fifty (50) claims and recommended approval. Upon a motion made by Mrs. DeClercq, seconded by Mr. Leszczynski and carried, the claims were approved and the report as submitted was filed. PRIVILEGE OF THE FLOOR: CONCERNS REGARDING AIRING OF "RACE AND REASON" ON HERITAGE CABLEVISION PUBLIC ACCESS CHANNEL Mr. Richard Trowbridge, 1020 South 30th Street, South Bend, Indiana, addressed the Board and advised that he initially wrote a letter voicing his displeasure in a program that was being aired on Heritage Cablevision and that Heritage Cablevision refused to act and take the program off the air. He stated that it is his belief that this type of program does not need to be on a public access channel. Mr. Trowbridge informed the Board that he has recently received a letter from City Attorney Richard Nussbaum indicating that prohibiting the program, "Race and Reason," from airing on the public access channel might conflict with First Amendment rights. He stated however that he has never said that the sponsors do not have a right to air their views, but his contention is that the sponsors do not have a right to have the program air on a public access channel. Mr. Trowbridge stated that he did receive a copy of the public law regarding this matter which states that rules may be adopted that pertain to public access channels and that the franchise authority has the power to make a decision on that matter. Mr. Trowbridge noted that the information he received from Heritage Cablevision stated that when a sponsor applies for local public access use they must comply with Heritage's operating rules. If the sponsor does not comply, the request is denied. He stated that one of the rules is that you cannot allow use to REGULAR MEETING JANUARY 8, 1990 any organization whose intent is to sway public belief. He stated that the public access channel is for public education or governmental use of which the program "Race and Reason" is neither. Mr. Trowbridge informed the Board that he has had communication with Mr. Alfred Sikes of the Federal Communications Commission and has been advised that he has a right to say he does not want the program on the air as it does not go along with community standards and he is therefore stating that he does not want the program allowed on the public access channel and he feels it does not go along with City standards. In the matter of the City being liable should the show be pulled off the air, Mr. Trowbridge stated that the Board has the power to pull the show as it is a direct violation of rules. He therefore stated that the show should be pulled off the public access channel. Mr. Trowbridge asked that the Board take action by voting on the matter or taking his concerns under advisement. He informed the Board that it is his opinion that this is not a First Amendment issue. Board Attorney Jenny Pitts Manier advised those present that the Cablevision Act allows the City to require public access programming and as such, the City has, as part of the Franchise Agreement with Heritage, required the creation of the public access channel. The public access channel was created as a vehicle for public expression on a first come first served nondiscriminatory basis. In essence, the City has created a public forum and First Amendment rights attach as a result. The Board cannot enforce rules that exclude users from the public forum based on their viewpoint and cannot exclude a sponsor based on the program content. Ms. Manier stated that the Board's purpose in doing so would be a proper area of inquiry by a court. Ms. Manier advised that Mr. Sikes' letter referred to a specific Section of the Cablevision Act that on the one hand allows the City to require the establishment of a public access channel and on the other allows the City to enforce rules and regulations under which public access channels can be used by Heritage for uses other than public access. This section does not address Mr. Trowbridge's particular concern and makes no mention of community standards. Ms. Manier stated that it is her understanding, based on a recent telephone call from Heritage Cablevision to the City Attorney's office that a meeting will be arranged with Heritage Cablevision, Mr. Trowbridge and someone from the City to discuss the issue and Mr. Trowbridge's concerns. Ms. Manier reiterated that the Board has no authority to act in this matter. The City created the use of the public forum and the First Amendment rights are implicated by that action. To exclude a show because of the content or viewpoint is government action taken to suppress speech. Mr. Trowbridge questioned the rules that were written at the time Heritage was given the franchise agreement. Ms. Manier noted that rules can be written that perhaps can be illegal or unenforceable. She also noted that the provisions of the Cable Act cited by Mr. Sikes, and which the Heritage rule is understood to be in violation of, have been interpreted as creating substantive federal rights, the deprivation of which under color of state law, is actionable under federal law. She advised that Heritage's rules will be discussed at the proposed meeting. Mr. Leszczynski advised Mr. Trowbridge that the Board is not here to debate the issue. The City Attorney's office has reviewed Mr. Trowbridge's concerns and has advised that there is nothing the Board can do in this matter as anyone has the right to use the public access channel. He noted that there is case history in 16 REGULAR MEETING JANUARY 8, 1990 this type of situation with another entity having had to pay fines because of a decision to prohibit the use of the channel by a particular group. Ms. Manier briefly explained the case to which Mr. Leszczynski referred and.Mr. Trowbridge stated that he is aware of that case but the circumstances are different than the issue at hand. Mr. Trowbridge again stated that he does not know why the sponsor of this show cannot be made to move to a channel where they would have to pay. He was advised that to do so would deprive them the use of the public access channel and would be in violation of federal law and illegal. Mr. Leszczynski reiterated that the City agrees with Mr. Trowbridge's position regarding the content of the program but there is nothing the Board can do regarding this matter. ADJOURNMENT There being no further business to come before the Board, upon a motion made by Mrs. DeClercq, seconded by Mr. Leszczynski and carried, the meeting adjourned at 9:53 a.m. ATTEST: Sandra M. Parmerlee, Clerk Patricia E. DeClercq 1 LJ L J