Contractor sues Eminence over pool bid

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By Jonna Spelbring Priester

General Manager

The saga of the Eminence swimming pool continues as the City of Eminence finds itself the defendant in a breach of contract civil suit.

The suit, filed by Stewart, Roeland, Stoess, Craigmyle and Emery PLLC, of Crestwood, and on behalf of Roger Bowman, alleges the city committed a breach of contract after “failure to abide by a contract bid which was accepted” by the city.

Bowman owns Our Backyard Leisure Specialties, of Smithville, Tennessee, the company that in March was awarded the bid to repair the Eminence swimming pool.

In the complaint, Bowman claims acceptance of the bid constituted a binding contract. In the city’s response, drafted by City Attorney Bill Brammell, the city admits only that the minutes reflect that the city council accepted the bid.

Brammell said that while in many situations acceptance of a bid can be binding, that does not necessarily apply to the current situation.

“I think it doesn’t apply to this situation simply because of the obvious inability of the bidder to accurately reflect the scope of the work in the contract documents,” he said.

The complaint also states that when the city rescinded the bid award, Bowman was damaged because work on the project already had begun, and “certain profits were reasonably anticipated from the work that was to be performed.”

Making Waves committee chairwoman Manda Gingrich, who headed fundraising efforts, said the suit was “a direct result of the arrogant dysfunction that is so prevalent with the present Eminence City Council.”

Gingrich, who issued a press release about the suit on July 18, said Brammell warned the city about backing out of the bid after awarding it.

“Now the city is paying for its arrogant disregard,” Gingrich stated in the press release. “Even if the city doesn’t lose the lawsuit, the city attorney’s fee could most likely be in the thousands of dollars. Who pays that? The citizens!”

Brammell said that in the event of a lawsuit, he receives no extra pay. “I don’t get paid an extra nickle,” he said, adding that he is paid a flat retainer fee by the city each month. However, there may be some extra costs associated with depositions and court fees.

In the Making Waves press release, Gingrich alleges fiscal mismanagement by the city council “who is spending money like the proverbial drunken sailor.”

Gingrich said the city’s fiscal mismanagement includes $30,000 to be spent on a sound study at the community center, $60,000 for a new backhoe, and “paying employees to not take health insurance at approximately $21,000 per year cost to the taxpayer, when they already have insurance through previous retirements.”

In the budget package presented to the Eminence City Council, Petitt included a list of items that were “major budget changes/additions.” Among those, was a $30,000 item for “Community Center for new floor and engineering study for sound.”

Petitt said that while bids still have to be submitted, estimates for a new basketball court in the community center could run approximately $25,000. He added that he was budgeting approximately $5,000 for a sound study for the center. Tuesday morning, Petitt said it was a distinct possibility that the sound study could be done at no charge.

In her press release, Gingrich questioned backhoe allotment because “most digging is done by contractors because Eminence doesn’t have a licensed plumber on staff?”

Petitt said the new backhoe is a necessity for the city, whose current backhoe is at least 20 years old. He challenged the insinuation that the city doesn’t need a backhoe.

“We use it ... anytime we have sewer problems, water lines break, we’ve got to dig them up in the middle of the road,” he said, adding that most digging work is done by city employees, not contractors. Sometimes, he added, the city will use the backhoe for snow removal. Rarely, he said.

Petitt also said that to his knowledge, the city of Eminence isn’t required to have a licensed plumber on staff, nor was he sure the relevance of having one for a backhoe. He did say that Public Works Director William Smith does have licensure relevant to his position — certification in waste water and water treatment.

Finally, just three city employees qualify for a program that provides a monthly incentive for saving the city money on health insurance.

City Clerk Sandy Doane said the incentive program was put in place in 2004 by a prior mayor and council, when the three city employees qualified for, and took, state retirement. They also accepted insurance through the state. The intent of the program, Doane and Petitt said, was to reward employees for saving the city money.

That incentive program pays the three employees a total of $1,638.44 each month, for a total of less than $20,000 per year.

Were each of those employees to accept insurance offered through the city, the city’s portion of that benefit would cost $1,309.76 per employee per month, for a monthly total of almost $4,000, or an annual total of nearly $48,000.

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