NEW REVELATION: FDOT REQUIRED TO MAINTAIN TWO-WAY TRAFFIC ON BLVD / BUSINESS OWNERS CONSIDERING LEGAL ACTION

“Why aren’t they doing this work in sections?” “Why aren’t there more people working?”  “Why aren’t they working at night?  Working  on weekends?”   “And why-oh-why, don’t we have two-way traffic on the Boulevard?”  These were the nagging, mind-boggling questions asked over and over Tuesday night, during the first official meeting of unhappy N. Roosevelt Boulevard business owners.

Chances are the rest of you, who have been driving through Key West ‘s year old traffic jam, have also been asking yourselves these same questions.  And today we have answers.  As it turns out you‘ve been right all along.

When we finally got around to reading through all 1300 pages of the FDOT contract we discovered that the contractor is required to prioritize traffic and impact considerations.   Yes, the work is supposed to be done in sections and yes the contractor is, according to the contract, absolutely obligated to maintain two-way traffic.

Here is what the contract specs say:

Section 102-5.3  “Number of Traffic Lanes.  Maintain one lane of traffic in each direction.  Maintain two lanes of traffic in each direction at existing four (or more) lane cross roads, where necessary to avoid undue traffic congestion. (…)  The Engineer may allow the Contractor to restrict traffic to one-way operation for short periods of time provided that the Contractor employs adequate means of traffic control and doesn’t unreasonably delay traffic.”

The goal being clearly spelled out as a duty to  “minimize inconvenience to residents and adjacent business establishments.”  And of course, that requirement, very logically, includes finishing one section before gutting the next one:

“The Engineer may allow overlap of sequences one and two and two and three, if the contractor has sufficient manpower and equipment to perform construction on subsequent sequences without impacting production rates on preceding sequences.”

“The intention of this Contract,” wrote FDOT to the general Contractor, deMoya Group,

“is to maintain two-way traffic on Roosevelt Blvd north of Palm Avenue for maximum duration possible.”

So where is FDOT’s so-called “Engineer”?  Is he powerless?  Far from it.  Section 8-4.2 of the Standard Contract states:

“The Engineer may require the Contractor to finish a section on which work is in progress before starting work on any additional section. (…) Should the Contractor fail to furnish sufficient and suitable equipment, forces, and materials, as necessary to prosecute the work in accordance with the required schedule, the Engineer may withhold all estimates that are, or may become due, or suspend the work until the Contractor corrects such deficiencies.”  (The “estimates” are the monthly payments for work already completed.)

In other words, the “Engineer” can stop paying.  So why isn’t he protecting the interests of the “adjacent businesses?”

“What this calls for,” says John Key of NAPA Auto Parts, “is a grand jury investigation.”   John says he met the FDOT project manager, Charlie Phinizy after a City Commission meeting,

“All Phinizy was doing was praising the contractor – it was sickening.   It looks like there could be a conflict of interest which needs to be investigated.”

Key West The Newspaper has previously reported about this apparent “cozy relationship” between FDOT and deMoya.  The reader may remember that we questioned FDOT’s practice of crediting deMoya with excusable “rain days” when in fact it hadn’t rained at all, while each of those “rain days” are potentially worth over $16,000.

The question now is why has FDOT failed to enforce the contractual obligation to maintain two-way traffic?  One can easily see the financial benefit:  deMoya was paid $4 Million just to “mobilize” (bring) equipment and crew to Key West and has been allotted another $4.3 Million lump sum to “maintain” traffic.  Obviously two lanes going one-way is the cheapest way to go for the contractor:  No flagmen, no additional traffic lights, no third lane for crossover traffic.  DeMoya gets to put a huge chunk of this $8.3 Million directly into its pocket.

And then there is the fact that the “Engineer” has allowed deMoya to gut the entire Boulevard instead of working on one section at a time.  The Contractor’s justification is that it needs to “store equipment and materials on the construction site, as no other vacant land was available for a staging area close enough to the project.”  (See FDOT FAQ’s here.)

However Key West The Newspaper has been informed that various parking lots were offered for rent, including the defunct Taco Bell lot owned by Jack Anderson.  Obviously, deMoya found it cheaper to gut half of the Boulevard to store its trucks than to pay for a lot rental.  All of these little savings scraped together here and there by deMoya have triggered a corresponding disproportionate price tag for adjacent businesses owners.  DeMoya is saving on a storage lot and flagmen, but meanwhile, according to Tim Gratz of Dominoes’ Pizza, the combined losses on Boulevard businesses could be up to $10 Million already.  “Remember,” says Gratz, “deMoya is being paid $4.3 Million just to solve traffic issues.”

In response to all of these basic breaches of contract, the Engineer chose to look the other way rather than hold back payment.  To make matters worse, when looking into monthly payments we found that not only does the Engineer not withhold payment, she certifies payments even though mandatory payment application documents have not been properly submitted.

In fact, according to the contract, deMoya must provide monthly scheduling updates including written reports and colored diagrams showing the progress of work and projections on future completion dates.  We asked to see those reports and diagrams.   After being threatened with a Public Records Act lawsuit, FDOT finally sent us three scheduling diagrams, but where there should have been 11 narratives and 11 diagrams, FDOT acknowledged that deMoya had only submitted three diagrams.

So why did FDOT make all of those monthly payments?  FDOT answered our question in an email, stating they typically give contractors a “long leash” when it comes to scheduling reports.  Arguably, this “long leash” is hanging Boulevard business owners.  The latest of these “scheduling diagrams” contains an incomprehensible chart with work items listed as starting after they’ve finished.     An expert on FDOT contracts told us the mixing up of numbers is a method used to manipulate the computer program which handles those particular charts (called flow charts).     Not one mandatory monthly narrative scheduling report has been submitted.  Arguably, all of the disbursements to date are unjustified.

In the meantime, in the backroom at the VFW on N. Roosevelt Blvd last Tuesday, irate business owners decided to get organized.    “If you believe,” former mayor Morgan McPherson told the group, “that there is some political group out there that can do something for you, you are highly mistaken.  What you need is a lawyer to represent you.”

The lawyer option doesn’t please everyone.  It lacked traction until now because everyone assumed that an action would have to wait until the contractor had actually gone past the deadline.  However, with this new element of breach of contract based on the obligation to maintain two-way traffic and work in sections, the cause of action for lost revenue may have already accrued.

“Two-way traffic is everything.  Half the traffic equals half the clients and that means half the money,” says Gratz.

Local attorney Robert Cintron  who has been following the Boulevard construction debacle very closely, was unable to attend the meeting, but has pledged to review the issue on his return to Key West next week.

Stay tuned.