North Roosevelt Boulevard SNAFU – Some Convoluted History and an Unpolitically Correct Suggestion to Stop the Bleeding

I drove down to Key West this past Tuesday afternoon (7 July 2013) to attend the North Roosevelt affected business owners meeting at the VFW, which itself is on North Roosevelt. Maybe fifteen people attended. Maybe half were affected business owners.  [Editor’s Note:  We counted about twenty persons associated with business.]

I got there about 45 minutes into the meeting, so I don’t know what was said before I arrived. Rick Boettger seemed to be the host. He lives in Key West and, as far as I know, is not an affected business owner.  [Editor’s Note: Boettger was the moderator, is the Secretary of the CNRAB and has worked on N. Roosevelt since 1996.]

An engineer spoke to the group for a while, then he introduced local attorney Robert Cintron whom I know pretty well. The long and the short of what Robert told the group was, as a general rule, landowners and businesses affected by road construction have no legal remedy unless their property is taken. Cintron said if there was a breach of contract by the prime contractor, DeMoya, which adversely affected the business owners, they might have a remedy as third party beneficiaries of the contract between the contractor and the Florida Department of Transportation, which hired the contractor. However, because of the third party beneficiary doctrine, FDOT’s contract with DeMoya had wording that they did not intend to create third party beneficiary rights by entering into the contract. After the meeting, Cintron and I wondered how that is legal, since third party beneficiaries did not sign the contract excluding them?

Cintron said most likely no cause of action (right to sue) for damages, if any existed, would arise until the contract period ran out, which is 820 days from the date the work was to begin. The completion date under the contract is January 31, 2014. By then, more businesses might go under. Cintron was not at all encouraging about litigation being successful in any event. However, he said he would look into it further if he was paid for his time, and if he felt he could win the case, he would take it on a contingency. He was paid nothing before he came to the meeting or for speaking at it.

The engineer suggested a lawyer he knew in Miami area, who specialized in construction law, who wanted $20,000 up front, against which he would bill at the rate of $450 per hour. That lawyer would not work on contingency. I said it would end up being $200,000.

I felt litigation was futile, as far as stopping the bleeding; and even to help damaged businesses down the road, it looked near hopeless.

When the audience was asked what we felt was needed?, I said faster work. Someone else said compensation. Someone else said quality work. Those were the three suggestions.

Faster work would help stop the bleeding. Quality work would prevent the road having to be dug up again and redone. Compensation was a steep haul.

Cintron said it looked to him that everything fell apart when the work began without a sheet pile contractor. That was the subcontractor who would drive sheet steel deep into the ground at the waterside, from basically the Key West police station up to Beachside at the triangle where US 1 enters Key West. The sheet piling would be the exterior water-impermeable load-bearing wall, inside of which everything else would happen:

Water and sewer lines laid, dirt filled in and packed down, road paved, sidewalk laid, etc.

The concrete cap over the sheet piling would be the new sea wall, outside the old sea wall, which was supposed to be dug up and removed, but was not dug up and removed according to Cintron and the engineer. After the meeting, the engineer told me, if the old sea wall is now dug up and removed, that could compromise the packing down and that could affect the sewer and water lines already laid, and would delay completion of the work. I think I recall that is an $8,000,000 line item, which could be knocked off of DeMoya’s compensation.

During the meeting, the engineer said there is no leverage over DeMoya, because it was paid its profit up front.

After the meeting, the engineer saud the sheet pile work was not even begun until three months after it was supposed to be completed. Then, instead of driving in sheet pile at the top and the bottom of the project, using two sheet-pile crews, working toward each other, they only used one crew, which started at the bottom, across from the police station, and worked up toward Beachside. The engineer said, best he could tell, the entire project will be finished in February 2015. The contract completion date is June 30, 2014.

The engineer said FDOT told the City of Key West the work would be done in three consecutive water-side segments, working up from the police station toward Beachside. That way, only parts of the water side of North Roosevelt would be torn up at any given time. When the upper waterside segment was completed, it would start over on the inland/business side of the road, and work up in three  consecutive segments. However, because the sheet pile subcontractor did not come on board until three months after the sheet pile work was to be completed, De Moya went ahead with other subcontractors laying sewer and water lines in all three segments, which closed all of the waterside of North Roosevelt.

Cintron said DeMoya did that to try to catch up and get the job finished on time. It also gave DeMoya free staging area for parking its vehicles and storing construction materials. The result, however, was every business on North Roosevelt took the full brunt of the waterside of the road being closed and all traffic on the land/business side of the road being one-way from the top of the US 1 key down into Key West.

Perhaps when the land/business side of the road is done, it will be done in segments and not all at once, so all of the businesses will not be clobbered for the full duration of the work. However, it looks to me that closing the business side of North Roosevelt will be even rougher on affected businesses than closing the water side was, unless the traffic is one-way from in Key West up to the key at the top of the island. With traffic one-way from the key into Key West, people have to go around the back way, to get to the businesses on North Roosevelt.

The engineer also said FDOT told the City of Key West that the work would be done in 700 days, and then, without telling the City, FDOT gave DeMoya another 120 days to do the work, which brought the total time for the work to 820 days.

I told the engineer maybe something like a shareholders derivative lawsuit could be brought as a class action: private citizens, business owners and non-business owners,= sue on behalf of the public because FDOT and DeMoya are in bed with each other, they are not living up to the contract, so a court needs to get that straightened out. That would not be a damage suit, but would be an injunction lawsuit. Cintron and I also discussed an injunction suit aimed at getting the work done faster to stop the bleeding for the business owners who had not yet gone out of business.

Sounds nice in theory, but litigation is a pain in the butt and the outcome ever uncertain and not likely a lawyer would work for free and maybe FDOT and DeMoya, as Cintron pointed out, countersue for attorney fees and litigation expenses because the injunction lawsuit is frivolous and the lawyer who brought the lawsuit – eek! – is a defendant in that countersuit.

Driving home, I called Naja Giarad, who, with her husband Arnaud, had been at the meeting saying little and listening. They publish Key West the Newspaper –www.thebluepaper.com. They had left the meeting and had not heard my ensuing conversations with the engineer and Cintron.

Turned out, Naja and Arnaud knew all of what I reported above, from already having talked with the engineer privately a few days earlier.

Naja said she had read the construction contract. She said, despite what may have been told to the City of Key West, despite what anyone thought was or should have been, FDOT’s contract allows DeMoya to move up to the next segment once one major element of the first segment is completed. So, if the sheet pile was done in the first segment, or the sewer line, or the water line, DeMoya could start working on the next segment. And, then on the next segment.

Naja said that was how all three segments on the waterside of the road got torn up. She said this was allowed in the contract to save DeMoya from having to lay off subcontractors, say the sewer line subcontractor, after a segment was done, and then bring the subcontractor from the mainland back down to Key West to do the next segment of the sewer line. It was suppose to save time and money by laying the sewer line all the way up the road, rather than to lay it in segments.  [Note from the Editor:  The contract also says that a segment may not be shut down unless all manpower and materials are on site to prosecute the work to be done on that segment.  We know that the contractor did not begin installing sheet pile until late January.]

Hearing that left me feeling litigation might be pointless, unless DeMoya does not finish by the contract deadline.

Enter what seemed to me to be the only hope for stopping the bleeding in the North Roosevelt businesses which have not yet gone under.

During the meeting, the suggestion was made by a physician that a publicity campaign be mounted and that Cintron, or some lawyer, head it up, since lawyers tend to get other people’s attention. Cintron and the engineer said DeMoya has lots of dealings with lawyers, has a big legal team, and would not feel threatened by a lawyer.

Further discussion led to a suggestion that North Roosevelt business owners have someone stand in front of their business holding a sign saying how much money they had lost. A thought came to me, which I did not state. Will expand on that further along.

There was talk of trying to influence Governor Scott to declare and emergency and get involved and lean on FDOT to lean on DeMoya to work faster, meaning, have more workers on the job. Throughout the work, there have only been a few workers. The engineer told me after the meeting that the job could have been done in one year with enough workers.

There was also talk of getting the local media involved.

I walked over and told the doctor to talk with City Commissioner Mark Rossi, who was at the meeting. I said Rossi could get him space in the Key West Citizen for a guest editorial. I went over to Rossi and told him what I had told the doctor. Rossi said he could get it done. I went back to the doctor and told him what Rossi had said. But all the doctor only seemed interested in was getting a lawyer to head it all up. Early on in the meeting, I had identified myself as a lawyer.

Back to the thought I didn’t state during the meeting, because I didn’t figure it would fly given how lovely-dovey and politically correct most political gatherings in Key West tend to be.

After the meeting, I told Cintron and the engineer, and Tim Gratz, who had stayed afterwards, he works at Domino’s Pizza, one of the affected businesses, that what should be on the signs is “Governor Scott Fucked Me!” Someone said, “Governor Scott Fucked My Business!” Laughter.

For a fact, if each North Roosevelt Business paid someone to stand out front holding that sign during working hours, work would get back to Governor Scott pronto. It would be reported in the local newspapers and on US 1 Radio. It would go viral.

When I told Todd German the next morning what I thought should be on the signs, he said he didn’t like it. He asked what could Governor Scott do about getting the work done faster? There are layers of people between him and FDOT.

I said Governor Scott had no trouble getting Angela Corey appointed special prosecutor in the Trayvon Martin shooting. Todd said that was because of the widespread publicity. I said “Governor Scott Fucked my Business” signs up and down North Roosevelt would create widespread publicity.

Todd asked how Governor Scott could make DeMoya work faster? I said Governor Scott could get someone to tell DeMoya if it wants to do future business with FDOT while he is Governor (he is expected to run again and win), then DeMoya better get that job in Key West fixed pronto.

Todd asked, what political gain would Governor Scott get from that? I said he would get the “Governor Scott Fucked My Business” signs off of North Roosevelt, which gets lot of traffic from the mainland.

Todd said he preferred a more diplomatic approach. I said Mayor Craig Cates went to Tallahassee and tried that approach and it didn’t work.

Todd said such signs might cause a stir until the police stopped it. I said I thought the First Amendment allowed it if the signs were on the business owners’ premises.

At the meeting Tuesday night, someone said Cates says for everyone to be patient, the new road will be beautiful. While more businesses fail and other suffer terribly waiting for that beautiful moment.

Cates was not at the meeting, nor were any other city officials other than Mark Rossi.

Naja told me that in early August Governor Scott is sending officials to Key West to see what’s up with North Roosevelt.  [Editor’s note:  August 6 5:00-6:00 p.m. – townhall style meeting]

“Governor Scott Fucked My Business” signs all along North Roosevelt would tell Governor Scott what’s up on North Roosevelt.

That’s my best shot for trying to stop the bleeding.

I see little chance of affected business owners getting compensated.

I remain of the view that Key West officials dropped the ball. They could have been more on top of it before FDOT and DeMoya signed the contract. They could have insisted on working day and night.

The engineer told me at the meeting that Key West’s Toppinio construction company could have done the job in a year. The engineer didn’t seem to have any money stake in any of it. He seemed to be a concerned citizen.

COMMENTS:

Sloan,

This article about N. Roosevelt lack of construction is absolutely on point with a couple of minor corrections.

I attended the meeting and I understood that the engineer stated that Community Asphalt could have completed the project within one year. I am also sure that Toppino and Sons could have completed this project in a year as well. (especially as they are the suppliers of all concrete to this project).

I also understand the engineer at the meeting stated that the original contract was 700 days duration and that FDOT unilaterally changed the contract duration to 820 days prior to bids being requested.

Your suggestion of N. Roosevelt businesses holding placards outside their business or on N. Roosevelt “Governor Scott Fucked My Business” is the right idea. Maybe it should be “Governor Scott Fucked My Business with this delayed road construction”.

I was also recently informed by Dean Walters; PISS (Public Information Specialist) that the pile driving machine was broken down again. OOPS sorry should be Dean Walters; PIS.

Today I researched the “Historic American Engineering Record” THE SEVEN MILE BRIDGE.

Just to let everyone know. The Seven Mile Bridge was constructed in 36 months, 1909 to 1912. All of the work on this bridge was performed working from barges, with fast running currents, fresh water for concrete imported in barrels from Miami, with powder style cement imported from Germany. The engineers even designed and built their own steam pile driving and steam powered excavators as required between 1909 and 1912.

In 2013 we cannot renovate an existing 2.9 mile road project in less than 36 months. Absolutely ridiculous. Thank God FDOT did not schedule the 1909 seven mile bridge project – we would still be working on it.

It is my opinion that this 2.9 mile road rehabilitation project on dry land will not be completed at the present rate of work being installed until April 30, 2015 – 36 months duration. IS THERE SOMETHING WRONG HERE. obviously de Moya is working with PRE 1909 equipment and PRE 1909 construction management protocols.

Currently de Moya is using 1909 style wooden formwork for concrete pours at this Key West Project: where de Moya is currently using state of the art Aluminum Fly Forms and state of the art concrete pouring devices at the 836 / 826 intersection in Miami. ($536 million project).

It is my opinion that FDOT staff and their designated CEI personnel working on the 836 / 826 in Miami are kicking ass and taking names of people who are not performing.

Here in Key West FDOT employees have stated that they are giving de Moya a long leash as is customary on a project of this style.

It is my opinion that the FDOT staff designated to this N. Roosevelt Road construction project be removed, held accountable and reprimanded for their deficiencies, and replace them with competent FDOT staff; that will push the contractor to perform instead of molly coddling them and paying them when the contractor has not supplied all of the correct documentation in his applications for payment. It appears to me that this a misappropriation of public funds – dispersed by FDOT employees at their own whim.

Go Figure – One Human Family – but we are obviously second class citizens.

I have scanned and emailed the Historic Record of the Seven Mile Bridge to Sloan.

Thank you for allowing me to post.

I replied:

Thanks for weighing in – comparison to original Seven Mile Bridge construction is fucking hilarious. Tim Gratz dug this up today, which will be in tomorrow’s post, as well. Proof Gov. Scott is indeed where the buck stops.

I’m fine with the placard’s saying GOV. SCOTT’S FDOT FUCKED MY BUSINESS