3rd Street Dam History, Agreement, and Issues, June 16th, 2011
Approximately eleven residents came to the borough council meeting on June 16th, 2011 to discuss their concerns regarding the legal agreement made by the borough council with Broomall’s Lake Country Club and the County of Delaware.
The History of 3rd Street Dam
The quick background on the 3rd Street Dam:
- 1999: The dam and roadway were damaged in Hurricane Floyd in 1999. The Borough closed the road and started the search for funds to repair the damage.
- 1999: In late 1999, the borough was awarded a grant to reconstruct the dam for 80% with a 20% local match. In order to receive the funding, it had to be classified as a bridge. The grant also required identification of the owner of the dam. Design work was begun.
- 2003: In 2003, Media concluded research on the title of the dam, which determined that Broomall’s Lake Country Club and the County of Delaware were, in fact, the owners of the dam.
- 2004: Design work was slated to be completed, however, Broomall’s Lake Country Club and the County of Delaware disagreed with the title findings of Media Borough and …
- 2004: In 2004, the parties agreed to allow the Delaware County courts to decide who the owner was.
- 2004-2009: Despite the borough’s efforts, the court case moved very slowly; according to Pete Alyanakian:
- “That particular case was heard by two separate judges … one judge changed halfway through … another another judge was assigned and it got on the docket and then it was delayed for a variety of reasons …” … Read the full quote here
- As of today, no judge has ever heard the case in a court of law. The stipulation agreement was a private agreement between the three parties.
- 2009: In July 2009, in frustration Media Borough Council voted unanimously to abandon the road above the dam. As a result of this, the County of Delaware and Broomall’s Lake Country club sued Media Borough.
- 2010: In January 2010, Peter Williamson found and facilitated the hiring of the current attorney (Guy Donatelli) due to issues with the previous attorney handling the 3rd Street Dam case.
- 2010: The design work for the dam began again in May 2010.
- 2011: The final stipulation agreement was approved unanimously by Borough Council in May 2011.
The Stipulation Agreement
To summarize the comments made by residents, they have the following issues with the agreement:
- It does not actually declare ownership of the dam, it simply assigns responsibility for various roles going forward.
- It does not outline who is responsible for replacement of the dam
- It does not specify a financial cap of responsibility for Media Borough
- If the state grant money for 80% of the dam costs does not come through, Media Borough will have to pay the full amount for the dam.
Resident’s Issues with the Dam Stipulation
Brian Hall, a democratic candidate for borough council in 2011 and also a lawyer, asked President Pete Alyanakian about what was stated at the last meeting, essentially surrounding the ownership of the dam. Mr. Hall asked Mr. Alyanakian whether he stated last month that the stipulation resolved the ownership issue. The exact words used by Mr. Alyanakian last month were:
Alyanakian, May 19th, 2011: “The borough owns the cartway, Broomall’s and the County own the dam.”
Mr. Hall confirmed that and then went on to indicate that this stipulation did not solve the fundamental issue of the dam ownership:
Hall: First of all, Mr. President, at last month’s meeting, you said that this stipulation clarifies, as you said, who owns the bridge, and who owns the dam. Is that correct?
Alyanakian: I think I said that, yes.
Hall: Okay, did you read the stipulation?
Alyanakian: I did.
Hall: Did you read it carefully?
Alyanakian: Brian, please, just go on with your questions….
Hall: The stipulation does not say who owns the bridge, it does not say who owns the dam. All it says is that the borough is responsible for the repair of the dam … and that the County of Delaware and Broomall’s Lake Country Club are responsible for repair and maintenance going to the future. It does not say who owns that dam, which was the whole point of the legal case that was brought 4 and half years ago. That’s important. And it’s important because in the future, if something goes wrong with the dam and there’s property damage, there’s environment damage, or god forbid somebody gets hurt, the issue will be … who owns the dam … who’s responsible? … We all know that dams last about 50-some odd years. They have a time limit, they expire. When they expire, we have to replace them. If you read the stipulation it does not say who is responsible to replace that dam. We’ll be in the same position some years down the road as we are today. Who owns that dam?
Alyanakian: Mr. Scott, in your opinion, does the stipulation preclude the borough from owning this dam?
Bob Scott, Borough Solicitor: I have not read the stipulation in two months, Mr. Alyanakian, and I frankly don’t recall.
Alyanakian: It was our attorney who represented us at the time who firmly believed that this agreement absolved the borough of any future ownership or repair of the dam, and that in fact, we would be responsible for the cartway moving forward. Mr. Smith, am I correct in that analysis? The intent of this settlement was followed through with what our wishes were?
Jeff Smith, Borough Manager: I can’t speak to the legality of it, I’m not an attorney. One section, I’ll refer to the attorneys to discuss it. There’s one paragraph.
Mr. Smith went on to read the relevant sections of the document (found in section 6b, and 6c):
Following completion of the Project Defendants County and the Swim Club solely will be responsible for all future required periodic inspections, maintenance and repair of the dam portion of the completed structure include the spillway hereinafter collectively the Dam Responsibilities. The cost of all Dam Responsibilities shall be shared equally by the County and the Swim Club. Borough shall cooperate with County to the extent necessary to enforce construction contracts and agreements warranties and rights with respect to the design and construction of the Project.
Following completion of the Project, Borough solely will be responsible for all future inspections, maintenance and repair of the roadway and road related improvements including but not limited to roadway subsurface, roadway, storm sewer inlets and piping, lighting, pedestrian sidewalks and sidewalls (hereinafter collectively the “Roadway Responsibilities”);
To clarify Mr. Hall’s points, responsibility is not the same as ownership. As well, nowhere in the document does it outline “replacement” of the dam, or discuss it. Media Borough is currently in the process of replacing the dam. Media Borough’s position is outlined in the letter from 2009 stating it would abandon the 3rd Street Dam. The discussion continued:
Alyanakian: To me, it’s definitive that we do not own this dam or are we responsible in any way moving forward after its repair for the future replacement of the dam. I think it’s clear in the stipulation, I’m sorry you didn’t read it in the same way, but that was the intent of what we instructed our attorney to do; it was the intent of the previous councils to agree to this type of agreement, and I believe we have achieved that with this agreement.
Hall: Well, I’ve read the stipulation, I’ve read it carefully, I can tell you – nowhere it says that the borough owns any part of that dam, or does it say that the county owns it, nor does it say that the club owns it.
Alyanakian: Listening to what Mr. Smith said, it sounds like exactly the opposite with what you said. Do you have any other questions for council?
Hall: I can read this if you want…
Alyanakian: Do you have any other questions for council?
Jim Cunningham: Well I can tell you who read it and who signed it. Judge Proud. Do you want to issue a habeus corpus and bring him in here for testimony?
Cunningham: If you spend money on the dam, or if you spend money on the road, you don’t spend money if you don’t own it. Judge Proud signed off on it, if it was good enough for Judge Proud, I think it’s good enough for the Borough of Media.
After some further back and forth, Peter Williamson made a statement:
If I were here to vote, I would have voted for it, too, but it is important to note that there is a very artful construction in this stipulation. I have to agree with Mr. Cunningham and Mr. Alyanakian that for all practical purposes the borough will not be responsible for the dam, however, it is also true that the lawyers who constructed this purposefully did not say anything about ownership, and they had a good reason for that. We have been fighting with … well, we have been disagreeing with Broomall’s Lake and the County for a long time about who owns this dam, and therefore nothing was happening at all. And so … what our lawyer did was … you remember that the suit was about who owned it. The two parties put before a court and said, Judge, we can’t make up our minds ourselves, please help us, you do it for us. A concern of our attorney and the attorneys for the other parties was that the judge might decide it against us. For goodness sake, Media Borough might end up owning this dam. That was one of the concerns of our attorney, so what ended up was an agreement about responsibilities, not about ownership. I’m not smart enough to know what that might bring in the future in terms of lawsuits. Attorneys are very clever, and can craft anything out of the tissue of thin air. But as far as the responsibilities of getting this project clear, I think they did clarify that with this agreement.
Mr. Hall went on to ask about the lack of any financial cap in terms of the boroughs responsibility in the stipulation for the dam. Mr. Alyanakian agreed, saying,
No, there’s no cap, we don’t know what the cost of the dam is. It could be 2 million or 1 million as well.
Mr. Hall indicated that because the cost 12 years ago was around 1.2 million dollars, that those numbers were likely inaccurate today.
Later in the meeting, resident Kent Davidson, also a candidate for borough council in 2011 (and editor of this site) asked where Pete Alyanakian came up with the number of $520,000 that the dam construction was going to cost the borough at last month’s borough council meeting:
Alyankian: I can’t remember … we had an estimate from … I don’t know how long ago it was. I don’t know what document I saw …
Davidson: You have no idea where you came up with that number?
Alyankian: It was in a document which estimated the cost of the repair of the dam and I was able to extract that our part would be $520,000 … I don’t remember exactly what document that was from, we were all getting the same ones that had a estimate of what the cost to repair the dam was.
After deferring to Jeff Smith, Mr. Smith indicated that the document outlined that $644,000 was 20% the cost of the design and construction, if the dam is constructed in 2012. If projected outward, the engineer indicated that adding 5% to the total cost per year was reasonable.
Davidson: Just to do some quick math in my head, so that means we’ve spent $120,000 so far on design fees? Is that correct?
Alyanakian: Where’d you get that number from?
Davidson: $520 and he said $640, so… $120.
Jeff Smith: I’m not sure about that number $520, I’m not comfortable… I can get a detailed analysis on what the borough has expended. We’ve spent about $43,000 so far this year on design, and we get reimbursed 80%.
Mr. Smith went on to outline the additional funding available for the dam costs, including a $75,000 grant from the county to offset the design fees, and the borough is waiting to hear back on a state grant for an additional $591,000 grant to offset the borough’s 20% responsibility.
Davidson: And what’s the status of that $591,000 from the state?
Smith: At this point, we’re in a holding pattern, we haven’t been … verbally … the borough has received correspondence that we are on a list, but until we get a contractor in an agreement indicating that the terms and conditions at this point … we don’t have the grant so we’re hoping, our grants administrator seems to think that in the next month or so … hopefully we’ll hear back from the state on that.
Davidson: And who on Borough Council is responsible for procuring the $590, or following up on that?
Smith: There’s been a committee … (cut off)
Alyanakian: We’ve all been following up on that. Ms. Rehoric has been following up with Senator Pileggi’s office. I’ve been following up with the governor’s office as well as Senator Pileggi’s office.
Davidson: So, everyone on borough council is responsible, that’s what you’re saying?
Alyanakian: No. Individuals have been appointed to work on this particular issue.
Davidson: So you and Ms. Rehoric, that’s what you’re saying?
Alyanakian: That’s correct.
Davidson: What are the chances that the price will be more than $2.4 million dollars?
Alyanakian: How would we know that? It’s not been out for bid. How would we know that?
Davidson: Get engineers, investigate.
After further discussion, Jeff Smith indicated that Borough Council may want to update the cost estimates based on the recent design changes. The final questions regarded financing:
Davidson: If, for some reason, we don’t get the $590 from the state, does the borough have $644,000 dollars to spend on the dam?
Alyanakian: Depends on what year we’re talking about spending that money. That’s what we’re all here to do … to ensure that there are enough funds in our capital budget to pay for our obligations. This is something that is in our budget …
Davidson: So there’s a line item in this years budget, in next year’s budget?
Alyanakian: We have design costs, not for construction costs.
Smith: This year we have $250,000 for the design; one of the things I’d defer to the chair of the finance commitee.
Smith went on to outline that the Finance committee would be responsible for determining how to pay for the dam and where the funds would be allocated.
Later in the meeting, Mr. Davidson asked a final question regarding financing:
Davidson: If for some reason the state money doesn’t come through … the 80% … is there anything in that stipulation that gets us off the hook of actually paying for the bridge? Meaning if we don’t get 80% from the state, do we get out of the stipulation saying we are going to repair the dam?
Alyanakian: I have no reason to believe that the state would reneg on …
Davidson: That’s not the question.
Alyanakian: No, we have no other plans to get the dam fixed or to … break the stipulation.
Davidson: So we wouldn’t have to fix the dam if the state money didn’t come through … is that what you’re saying?
Smith: My understanding, and I’ll defer to the solicitor, but at the design phase if Borough Council decides not to continue on with the project, they can back out of the project. I think if they get into a point and a they are under construction, that council would elect to back out of the project, at that time they would run the risk of having to reimburse the government, the 80% that’s covered. That’s my understanding.
Davidson: More my concern is that if the state’s .. the money dries up, or because of the budget, anything could happen, for example, or maybe they say they’ll pay 80% of the cost it would be in 1999 when they originally they promised the money. In that legal agreement, where we say that we will repair and fix the dam, do we have an “out” if that money doesn’t appear on our side, or are we on the hook for the full amount regardless of what the state does.
Alyanakian: I believe in the agreement that we signed has in any way does it … Jeff, I haven’t looked at it in a while, Jeff, there must be a default clause in that agreement.
Smith: There is not.
Alyanakian: We’ll have to review it. I’m not sure.
Davidson: I’m just looking out for the borough.
Residents bring up issues of design
Several residents expressed concerns regarding the design as outlined in the working meeting on June 2nd:
Susan Garrison, of 513 West Front Street:
I had a number of concerns about what was proposed … in the way of getting rid of the dam itself, the loss of trees, the parking, some things that I know are not decided, such as sidewalks and bicycle things so I realize that that’s all up in the air. What I want to know is … will council call a public meeting that is well advertised so that all of the people can be affected can come to speak to this issue? Because, I didn’t even know about it and I’m right around the corner.
After clarifying she was referring to the June 2nd, Third Street Dam design review covered on Media, PA News, Mr. Alyanakian responded that they would have a public meeting in July, August or September with the engineering firm to do an explanation of what the process will be. He indicated that it is in the design phase, it was around 60% complete, and the design phase will end next year, and then go out to bid in 2012 or 2013.
After further questions regarding the design and its finish date, Jeff Smith, borough manager, stated that due to issues with the wetlands below the dam, the design would not be ready until until next year. According to Mr. Alyanakian, the borough does not have a lot of impact on the design of the dam.
Councilman Eric Stein added at the end the more public input we can get on the design for the things that the borough can control, that he would welcome that input from residents.
Resident Randy Gaboriault asked “Is there an opportunity of Delaware County and the users of the park to have an impact on the design variables? So one thing that was a concern for me was that the design was independent of those folks that ultimately will use the park, and several of my neighbors here and myself and my family are involved as caretakers of the park including the watershed cleanup. So it’s very important, it’s going to be a dramatic change, we would like to see the opportunity to mitigate the degree of change.”
Eric Stein asked afterwards which committees would be responsible for the designs. Jeff Smith indicated that Pete Alyanakian and Monika Rehoric, as heads of the Properties Committee, and Peter Williamson, as head of finance, would be responsible.
Mr. Gaboriault came back later and asked:
“What was the philosophy that was set forth to the designers? Because I just heard it is 60% through the design process. If you think that you’re building a house, or whatever, do the conditions say designers … just go and mitigate the problem as low cost as possible, or at the other end of the spectrum, maintain the integrity of the lush tranquil environment. So what was the mandate sent forth for those doing the design work?”
Mr. Alyanakian deferred to Jeff Smith, stating he couldn’t remember back that far. Mr. Smith said:
“The design engineer can explain to the public. There are working with two state agencies, that they have to … there is literally a two or three page checklist of every submission … has got to be reviewed and signed off by Pennsylvania Department of Transportation, and the Pennsylvania Department of Environmental Protection, so I believe, and I’ll certainly defer to our borough engineer, there’s specific rules and regs related to this type of earthen dam projecting out into the future the way it has to be designed and constructed. I think that when Council has a public hearing, maybe the design engineer can explain here are the constraints we are up against.”
Eric Stein then reiterated his support of having public comment through public hearings, and that if there was room to modify the design that council should do so.
Resident Stephanie Gaboriault also spoke, and indicated her surprise at the loss of the waterfall, and the substantial changes to the park out outlined in the design. She requested that if there was any way to preserve the waterfall, or preserve what is there now that she would support it. She expressed her concern that public input later in the design phase may be too late to receive input to the design plans. She asked how residents can get the information about the dam design, and other issues, and indicated that she was lucky to stumble across the information about the dam yesterday, finishing that they loved the park and would like to preserve it.
Pete Alyanakian responded:
I think I can speak for everybody on council and say we all love the park. I’m a park board member there, and I played down there with my kids many times as well. Quite frankly, when I saw that design I was taken aback by how, I guess, large area that will now be consumed by the spillway and the gentle slopiness of the spillway. It was an eye-opener to me as well. I think all of us on council were a little surprised by the dramatic turn that area of the park will take. We will definitely go through a public hearing on this.
Peter Williamson suggested:
Mr. President, if I may suggest, I know a lot of folks here have expressed concern about their ignorance and really … council’s ignorance about some of the finer points here… and given that the design is fairly far along … should we be able to make decisions based on public input and our own input that would affect the design … given how easily this design process is delayed… it probably behooves us to have this public education as soon as possible, instead of waiting until there is some set point in the design process. So I would encourage you to have that special meeting for … next month if we can.
Alyanakian: “We’ll discuss it at the next workshop.”
Jeff Smith then added that because 80% of the project is funded by the state, that a large portion of the design is based on the requirements of PennDOT and the state money, and that the additional funds that differ from the costs in 1999 would have to be approved again by the state.