Marco Island may be able to recoup costs of dealing with the hydrogen sulfide gas problem from contractors, though City Attorney Alan Gabriel seemed skeptical Monday night about the extent to which the city could claim the contractors’ liability.

His opinion stemmed from a memo produced at the request of councilmembers who expressed interest in seeking recompense for hydrogen sulfide testing and treatment fees, the result of problems stemming from the release of gas during sewer construction.

Testing costs have totaled $95,000 to date, and the council recently approved the combined lease and purchase of treatment equipment at a rate of $430,000 a year.

Additionally, it seems that contractors D.N. Higgins and Quality Enterprises may be seeking their own remuneration because of delays in work caused by the concerns that the gas, which occurs naturally below the soil, was causing a public health threat when released in the course of sewer installation.

Public Works Director Rony Joel said one contractor had put the city on notice that it has been impacted by the delays, and the other contractor was intending to do the same.

Gabriel outlined a provision in the contract for Quality Enterprises’ work in the West Winterberry District called a “differing site conditions clause.” The clause, which Gabriel wrote has been upheld by Florida courts in other cases, states that the contractor can seek compensation if crews run into unanticipated conditions that delay work and cause a material cost increase.

Photo by LESLIE WILLIAMS HALE

Eagle staff

Dewatering pipes lead to the hydrogen sulfide treatment system set up for testing in the North Barfield sewer assessment area during October. While the city has expressed interest in recouping the costs of testing and treatment from sewer contractors, City Attorney Alan Gabriel says the city may have to deal with contractors seeking restitution for delays and increased material costs.

“Under the current facts, the contractor could argue that it relied on the dewatering plan specifications provided by the city, which fails to reference any potential hydrogen sulfide issues relating to the dewatering operations,” Gabriel wrote.

A contract for work by D.N. Higgins Inc., in the North Barfield sewer district, lacks this clause, which Gabriel says would make it harder for Higgins to seek damages. Gabriel told the council that the case for collecting compensation from the contractors was all the more unstable because of recent declarations by the city that hydrogen sulfide is an island-wide problem, and not confined to those two areas. Also, he said, there has been no specific declaration by a regulatory agency stating that the hydrogen sulfide amounts to hazardous waste.

Council argued back and forth over this point, questioning Gabriel on the validity of tests that found gas concentrations exceeding limits set forth by the Centers for Disease Control. Gabriel said that without a reasonable belief that the levels were hazardous while work was underway, the contractor had no responsibility to contain it.

“But there is a data sheet that says hydrogen sulfide is a hazardous material,” said Councilor Rob Popoff. “We needed to go through all of this testing. Even though we know at this point we’ve got it under containment, it is a hazardous substance. What you’re telling us is because it’s after the fact, we don’t have a case?”

Popoff went on to ask what might be the repercussions of seeking restitution from the contractors.

“Frankly, I’m uncomfortable in an open forum providing a legal opinion on this, but I’m trying to respond to council’s questions,” Gabriel responded. “There was no evidence at the time that that was a hazardous material in the way they were handling that material.”

He said he expected the issue to arise again, and that the council could continue to asses its options if and when the contractors file for time extensions because of the delays.

In other business, Council voted to go forward with the Kendall and Mackle Park sewer districts, both scheduled for construction in 2009. One of the items passed Monday night will allow the city to authorize engineering for the two districts in advance of the request for bids to go out to contractors in 2008.

All items relating to the sewer districts — from the authorization of the special assessments to the engineering approval — were split on a 5-2 margin, with councilors Ted Forcht and Chuck Kiester dissenting.

A discussion on appointees to an ad hoc committee to draft possible short-term rental ordinances was tabled because the council expressed a desire to generate a larger pool of interested citizens for the committee. With only nine residents expressing interest in seven positions, the city may advertise again for appointees in hopes of gaining a more diverse pool.

Council also agreed to add a representative from the Marco Island Restaurant Association, to join the representatives from the Chamber of Commerce, the Association of Realtors and a rental agency representative. That would bring the number of voting committee members to 11.

The appointments will come before council again at its next regularly scheduled meeting Dec. 3.

If you are interested in becoming a member of the committee, call City Hall at 389-5000.

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