Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY Wednesday, November 18, 2020 2:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Millich, Glenzer Absent: Yaqub (Alternate) Board Staff Assistant City Attorney Karin Salameh and Clerk Alicia Salas Present: Other Staff City Attorney Christine Davi and Director of Public Works Steve Wittry Present: CALL TO ORDER Chair Hawkins call the meeting order at 2:12 pm PUBLIC COMMENTS None. PUBLIC HEARING 1. Subcontracting Listing Law Violation and Penalty Assessment Assistant City Attorney Salameh, attorney for the Board stated for the record that she has not had any contact with anyone else in the City Attorney’s Office or with the Public Works Director regarding this matter. Andrew Van Ornum, attorney representing Stronghold Engineering Inc. (SEI), stated that he is concerned about the involvement of Assistant City Attorney Salameh in the matter. Mr. Van Ornum brought up the litigation between the City of Monterey and SEI in the Santa Clara Superior Court. City Attorney Davi stated that the City Attorney’s Office has a due process screen implemented and Assistant City Attorney Salameh has not had anything to do with this matter that is being heard by the Board. She also stated Eric Firstman would be representing the City of Monterey for the hearing and confirmed that she was only at the hearing as an observer. Mr. Van Ornum asked Mr. Fristman, to confirm that Ms. Salameh is a participant in the dispute between the City and SEI and may have had access to attorney-client privileged information regarding this matter. Mr. Firstman stated that the members of the City Attorney’s Office are on the pleadings in the litigation between the parties and that speaks for itself. Mr. Van Ornum stated he would need time to find the privileged disputes in which Ms. Salameh is identified as a participant in privileged communications and have it entered into the record. Mr. Van Ornum then questioned whether Stronghold should have the burden of proof in the hearing because the City is the one who is assessing the penalties and he feels the City has the burden of proof. Appeals Hearing Board November 18, 2020 Minutes Mr. Firstman said that Mr. Wittry made his findings, those findings were deferred to this Board because of Mr. Wittry’s involvement in the dispute. He continued to say that Mr. Wittry’s letter is very extensive and the exhibits number hundreds of pages. Mr. Firstman said Mr. Wittry’s letter and exhibits speak for themselves. Mr. Van Ornum continued to say that he believes the burden of proof is on the City as Mr. Wittry’s letter did not include any findings and it did not assess any penalties. He went on to say that he thought this was a violation of their due process rights. Mr. Van Ornum moved on to say that there is no basis to conclude that a violation of the Listing Law occurred within one year of the notice of this hearing. He said the affidavits and exhibits he provided speak for themselves. Mr. Van Ornum said he thought this was an extension of the City’s litigation tactics against SEI in the civil litigation and was being done for harassment purposes only. He said that Mr. Wittry’s office approved of all the substitutions of the subcontractors that are at issue in this case. Mr. Van Ornum said there wasn’t much he could add to what Mr. McGahey had said in the affidavit and feels as if they have responded to the City. Mr. Firstman and Mr. Van Ornum stipulated to enter Mr. Wittry’s letter and exhibits, and the affidavit of Mr. McGahey and its exhibits into evidence. Mr. Van Ornum said he was reserving his time to hear the City’s case and reiterated that he did not feel that SEI had the burden of proof. He said he did not feel they should continue to disprove claims that haven’t been established. Ms. Salameh responded that the Board was not looking for them to disprove anything, but was looking for SEI’s compliance with the Listing Law and the Board would find it helpful if he would present on SEI’s compliance with that. Mr. Van Ornum then said that all of the violations contained in both of Mr. Wittry’s letters dated September 14 and October 23 are untimely and cannot be considered at this point. Board Member Millich asked Mr. Van Ornum to help expedite matters, if he could point out which documents showed that the statute of one-year had been exceeded. Mr. Van Ornum said Code of Civil Procedure 340 establishes that a statute of limitations for action for penalties is one year. Chair Hawkins stated that he has not had a chance to review the entire packet submitted by Mr. Van Ornum which was submitted the previous day. Board member Millich is concerned as well about the amount of documents that they received from Mr. Van Ornum on the day before the hearing. Mr. Van Ornum said he responded to the notices that were provided to him and offered to review the Affidavit of Mr. McGahey with the Board. Mr. Van Ornum said there were four alleged of the Listing Law violations at issue and the affidavit addresses each of this allegations. He said in the Affidavit of Mr. McGahey; made it clear throughout the course of the contract that the shorthand name for (Danny Perry Coast Construction dba) West Coast Construction is often West Coast Concrete. He said they were doing part of the concrete and other related work. Mr. Van Ornum stated there was no substitution of contractor; it was the same legal entity (West Coast) that submitted the bid, the same entity that SEI contracted with and the same entity that SEI used for concrete work throughout the course of the contract. Mr. Van Ornum addressed the second allegation regarding substitution of Rinaldi for the paver work. He asked the Board to refer to the Affidavit of Mr. McGahey. He said SEI asked the City for a substitution in February 2017. Mr. Van Ornum referred the Board to an email from March 23, 2017, wherein there was a discussion between Mr. Harary and Mr. Connor (Ausonio). In 2 Appeals Hearing Board November 18, 2020 Minutes the email Mr. Connor passed along a substitution request to the City from SEI. He said there was a letter from Rinaldi attached asking for the substitution. Mr. Van Ornum said in that email Mr. Harary approved of the substitution to European Paving Designs. Mr. Van Ornum moved on to the third substitution issue related to stone veneer work, for which Rinaldi was listed. He went on to say that on April 10, 2017, SEI sought out approval for this substitution. Mr. Van Ornum referred the Board the email of the same date, that Mr. Harary sent and included Mr. Uslar, head of Public Works at the time, wherein he approved the substitution to West Coast. He also offered that Mr. Harary received an email in January of 2017 with a request for payroll records for Perry Construction dba West Coast Construction in the subject line. He said in the body of the email Mr. Harray says, “…West Coast Concrete payroll records have been requested.” Mr. Van Ornum said this show Mr. Harary knew that West Coast is Perry and that West Coast Concrete is West Coast and as SEI has contended all along that it subcontracted the concrete work with the very same subcontractor they received the bid from. Mr. Van Ornum addressed the forth alleged violation with Rinaldi and the waterproofing; he said SEI thought that Rinaldi had all of the scope covered in their bid. He referred the Board to the Affidavit of Mr. McGahey, wherein it identifies FD Thomas as the waterproofing substitute. He said that Ausonio confirms in an email that, they are getting permission to work directly with FD Thomas to help negotiate a change order. Mr. Van Ornum said there has not been any objections to FD Thomas from 2016- 2019. Mr. Van Ornum said the City knew that West Coast, South Coast and Robert Perry we all the same companies. He said Mr. Firstman deposed Mr. McGahey and that fact was made clear in April of 2019. Mr. Van Ornum concluded by saying of the four allegations, one was not a substitution, two were actually approved and the last one was known to the City. Chair Hawkins asked Mr. Van Ornum why he had submitted all of his evidence the night before the hearing when the hearing was three months in the works. Mr. Van Ornum said he felt has if he complied with the Notice and needed time to search for documents. Board Member Millich also asked why Mr. Van Ornum did not submit his response and exhibits sooner than then night before the hearing. He said he felt like Mr. Van Ornum dumped the documents on the Board and wanted then to figure it out. Board member Millich expressed his frustration. Assistant City Attorney Salameh asked Chair Hawkins if he would like to give the City an opportunity to cross examine Mr. McGahey since his testimony was received via his Affidavit. Chair Hawkins asked Ms. Salameh how he should proceed. Ms. Salameh asked Mr. Van Ornum if he was going to question his witness, Mr. McGahey. Mr. Van Ornum expressed an objection with how the hearing was proceeding so far. He then proceeded to asked Mr. McGahey questions regarding his Affidavit and Mr. McGahey testified regarding the same. Mr. MaGahey testified that he meant for West Coast to do all the concrete work on the project. He said he meant West Coast, Bob Perry. Mr. McGahey said the license number for West Coast was not correct and that it belonged to South Coast Concrete which was all the same company, owned by Robert Perry. Mr. McGahey said it was not his intention to write the license number for South Coast Concrete. Mr. McGahey stated that he had reviewed the proposal from Rinaldi, but only briefly. He went on to say that he had someone call to confirm Rinaldi’s estimate because they wanted to make sure they covered everything the bid. Mr. McGahey said the estimate was extremely high for 3 Appeals Hearing Board November 18, 2020 Minutes the scope of work and wanted to make sure they had included everything because it was the largest part of the trade represented on the project. Mr. McGahey further testified that there was complete transparency with the City’s CM (construction manager) regarding assigning work to West coast for the stone veneer, to European Paving Designs for the pavers, and the waterproofing to FD Thomas. Mr. McGahey said the City was on site every day. He said he would have weekly meetings with the Construction Manager and a member of City staff. There was no objection by the City to the scope of work being done by the people that did them, including the pavers, stone veneer, or the waterproofing. Mr. Van Ornum asked Mr. McGahey if West Coast had started working on the stone veneer in April 2017, was it before the substitution was approved. Mr. McGahey said no, they started on the work after the substitution was approved. Mr. McGahey stated that West Coast never performed any paver work. Chair Hawkins asked City staff if the hearing should be continued as he felt he did not get enough time to review all of the documents from Mr. Van Ornum. Board member Millich said he thought the hearing should proceed as it had already been delayed previously. Assistant City Attorney Salameh asked City staff if they were able to proceed with the hearing and Mr. Firstman said he was. Chair Hawkins agreed to proceed with the presentation. Mr. Firstman, attorney for the City of Monterey began his questioning of Mr. McGahey. Mr. Firstman asked Mr. McGahey about the Gino Rinaldi bid for stone pavers and waterproofing and Mr. McGahey agreed that they were a tile and marble company. Mr. Firstman pointed out to Mr. McGahey that Rinaldi’s bid proposal excluded stone pavers. Mr. McGahey said that was why he had someone call their estimators the day of the bid to ensure they were covering the entire job. He said they were told that Rinaldi had the stone pavers and stone veneers on the project and that’s why they listed them on the bid. Mr. Firstman pointed out that Gino Rinaldi Inc. had been registered as a ceramic and mosaic tile company only two days prior to the hearing. Mr. Firstman stated on the State of California Contractor State License Board website it lists license number 287169 for Gino Rinaldi Inc. as a ceramic and mosaic tile company. He asked Mr. McGahey if he remembered them as a ceramic and mosaic tile company, to which Mr. McGahey said he remembered them as mainly a stone company. He also said the ceramic work was done by someone who may have been too small to list on the bid. Mr. McGahey disagreed that West Coast was not licensed to do pavers and said he believed they could do the job under a B license. Mr. Firstmand then asked Mr. McGahey if SEI had submitted the qualifications for West Coast Construction to install the pavers to the City at the end of 2016, with five years of evidence of installing pavers to which Mr. McGahey agreed. Mr. Firstman stated to Mr. McGahey that the architect said the submitted qualifications were not sufficient and that’s when SEI submitted a deductive change order substituting European Paving Designs. Mr. McGahey said there was only one contractor in Northern California to do the proprietary designs, which was European Paving Design. Mr. Firstman then moved to the pavers that had arrived on site; Mr. Van Ornum objected saying that issue was irrelevant to the hearing regarding Listing Law Violations. Board Member Millich asked Mr. Van Ornum to wait for Mr. Firstman to ask the question. 4 Appeals Hearing Board November 18, 2020 Minutes Mr. Firstman asked Mr. McGahey if he agreed that 20% of the pavers arrived on site damaged. Mr. Van Ornum objected again. Board Member Millich told Mr. McGahey he could proceed to answer the question. Mr. McGahey said he could not remember the exact percentage but agreed it was somewhere around 20%. Mr. Firstman asked Mr. McGahey if he had contracted with Gino Rinaldi, a tile contractor, to do the stone veneer work. Mr. McGahey corrected Mr. Firstman and said they are a stone contactor. Mr. Firstman then asked why later SEI contracted with Perry Construction for the stone veneer work. Mr. McGahey said it was discovered after they bid the project that Rinaldi would not enter into the contract with those scopes of work. Mr. McGahey stated that he did not recall when this happened and did not recall if he told the City in 2017 that SEI had contracted with Perry a year earlier for this work. Mr. McGahey said the main issue was the stone lead time and how long that was going to take. He said the pavers and materials needed to be ordered right away as they had a six-month lead time and they needed to get that started as soon as possible. Mr. McGahey acknowledged that when looking at the Monterey Conference Center List of Subcontractors from January 2016, three months after bid day, it still shows Gino Rinaldi for stone veneer, waterproofing and pavers. Mr. McGahey said he did not know where the contractor license number West Coast Concrete listed in the bid came from. It was a mistake. The Board took a recess for 10 minutes. Mr. Firstman questioned Mr. McGahey regarding the waterproofing work performed by F.D. Thomas. The original scope of work was $235,000 and the additive alternative item related to Jeffers Plaza totaled $245,000. Mr. Van Ornum then asked a few follow up questions of Mr. McGahey who testified that the Listing Law does not apply to work added by change orders to a contract, and the Jeffers Plaza work was added with a change order. Mr. McGahey then testified that Change Order 22, dated May 22, 2017, was for deductive work issued to West Coast Construction because they were utilizing European Designs for the installation of all the pavers. Mr. McGahey agreed that from the time of SEI’s bid submission and award through March 2016 the date of Change Order no. 2, SEI had been working with the City to reduce the cost of pavers. He went on to say the City was given a credit of $602,130.00 on Change Order no. 2 as a benefit of the negotiations on the pavers. Mr. Van Ornum then showed the Board the privilege log supplied by the City Attorney’s Office in the SEI v. City of Monterey, Santa Clara County Superior Court, Case no. 18CV329015 wherein Ms. Salameh’s name appears several times on the log and she is listed as one of the City Attorneys who has claimed privileged. Mr. Van Ornum concluded his questioning of Mr. McGahey. Ms. Salameh stated again for the record, she has not had any communication with staff regarding the subcontracting issues before the Board. Mr. Firstman had a few follow up questions for Mr. McGahey regarding the paver work. Mr. Firstman asked if the qualifications of West Coast Construction were submitted and rejected by to the architect SOM in January 2017 because they did not meet the specifications. Mr. McGahey said he believed it was for a different reason but they were rejected by the architect. He added that European Paving Designs did the pavers and it was approved by the City. 5 Appeals Hearing Board November 18, 2020 Minutes Mr. McGahey confirmed that Rinaldi did not do the paver work. Mr. Firstman concluded his questioning of Mr. McGahey and Mr. Van Ornum state that SEI had no further witnesses. Mr. Firstmand then presented the City’s case. Steve Wittry, the Director of Public Works since 2018 was called to testify. Mr. Wittry gave his qualifications and gave details of the project. Mr. Wittry said the contract was bid in late 2015, and the prime contract was awarded to Stronghold Engineering Incorporated (SEI) at the end of 2015. He said the Conference Center building was under construction for about two years. Mr. Wittry said in Spring 2018 the construction was done and the City took beneficial occupancy. Mr. Wittry testified that the Listing Law is part of every Public Works project. He said it requires contractors to list the name of all subcontractors who will be performing one half of one percent of the work. Mr. Wittry said it protects public dollars and the City. Mr. Firstman asked Mr. Wittry about the concrete work on the project. Mr. Wittry said concrete work was very extensive. He said there was a lot of demolition, floor space was expanded, structural concrete had to be poured, new beams, and a new deck. He also added that the extensive concrete work required a skilled set of hands to handle it. Mr. Firstman asked Mr. Wittry if he ever became aware there wasn’t a West Coast Concrete. Mr. Wittry said was not aware of the fact during the construction process; he became aware during the research for the violation letter. Mr. Firstman asked Mr. Wittry if it mattered to him if Mr. Perry’s company (West Coast Construction) had a general builders license and they were doing concrete work on the Monterey Conference Center project. Mr. Wittry said in his 20 of experience a Class B contractor would do a sidewalk or a driveway not structural work. Mr. Firstman asked Mr. Wittry if he was concerned the structural concrete was done by a general building contractor. Mr. Wittry said he was very concerned due to the extensive concrete work at the conference center and because it’s vitally important to the integrity of the building, especially in earthquake country. Mr. Wittry testified that many of the pavers came to the project site broken and uninstallable. Mr. Firstman asked Mr. Wittry to confirm that he did not know SEI had contracted with West Coast Construction for the structural concrete work until the time of the Listing Law issue was brought to his attention which was only within the past few months. Mr. Wittry answered in the affirmative. Mr. Firstman asked Mr. Wittry if he had any follow up with the Department of Industrial Relations (DIR) in regards to the project. Mr. Wittry said that recently the DIR had performed an investigation and found improper dealings with Certified Payroll and fined Perry Coast Construction 2 million dollars for this project. Mr. Wittry said it appears they were not paying prevailing wages as required in the contract. Mr. Wittry testified that the City received warranties from FD Thomas for the work they did on the waterproofing, which he added shows they did the work. Mr. Firstman then moved to the water damage the site sustained in 2017. Mr. Wittry said the site was not protected and in January it rained and water infiltrated the entire project. He said it caused substantial delays and substantial disappointment on the City’s behalf in terms of what the delay was going to cost. He said there was also some damage caused to the hotel and they had to work with the hotel to resolve the issue. Mr. Firstman then showed as an exhibit a letter of default, received from SEI in the civil lawsuit, dated June 22, 2017 from SEI to West Coast Concrete. He asked Mr. Wittry if he was aware of any problems with the concrete work. Mr. Wittry said he was aware there was a problem with 6 Appeals Hearing Board November 18, 2020 Minutes the concrete but he was not aware the relationship between SEI and West Coast Concrete had gotten to this point of discord and disagreement. Mr. Firstman asked Mr. Wittry if he had received a substitution request for the vehicular pavers in February 28, 2017 from SEI to the City, Mr. Wittry said he did. He asked Mr. Wittry if he was involved with evaluating the substitution, he replied he was not involved. Mr. Firstman then asked if Mr. Wittry if he thought pavers where in the scope of work for a tile company. Mr. Wittry said not generally. Mr. Wittry said he was not aware of Perry being under contract for the pavers. He recalled that European Paving Designs was mentioned as someone who could do it. Mr. Firstman then asked about another substitution request for Rinaldi for the stone veneers that was sent from SEI to the City on April 10, 2017. Mr. Firstman asked Mr. Wittry if he had been informed that SEI had contracted with Perry over a year earlier to which Mr. Wittry said he did not know. Mr. Firstman asked Mr. Wittry his opinion on whether he thought SEI had violated the Listing Law. Mr. Wittry said he believed there were too many little errors that showed lack of attention and SEI did not provide the appropriate tools to protect the City and public interest. An error in the contractor’s license number is something that should be corrected right away. SEI never told the City that the concrete subcontractor was not the company the subcontractor list. Mr. Wittry also testified that he thought it was clear that SEI never intended Rinaldi to do the paver and stone veneer work for which they were listed as the subcontractor. Mr. Firstman asked Mr. Wittry if FD Thomas, who was contracted to do over $800,000 worth of work for the waterproofing, was listed on the subcontractors list to which Mr. Wittry said they were not listed. Mr. Wittry clarified that the Jeffers Plaza item was not an additive alternative, but was a deductive item meaning that the subcontractor should have been listed for the work. Mr. Firstman asked Mr. Wittry if he found a violation of the subcontractor Listing Law to which Mr. Wittry said he found the violation a few months prior to the hearing. Mr. Firstman ask Mr. Wittry if he had assessed penalties; Mr. Wittry said he thought the penalty should be the highest allowed by law, which is 10% due to the intentional confusion created by SEI and by not being forthright, it cost the City, it cost the project and it cost the public. Mr. Van Ornum cross-examined Mr. Wittry. In response, Mr. Wittry said he did not have any legal experience but based his experience on his twenty years as a professional engineer. Mr. Van Ornum stated that Mr. Wittry did not have a direct role in the project until June 7, 2017, when Mr. Harary left. Mr. Wittry said Mr. Harary did report to him during that time he was in charge of that project. Mr. Van Ornum asked Mr. Wittry if the damaged pavers factored into his decision to assess penalties for as a Listing Law violation. Mr. Wittry said the overall incompetence of the contractor to provide the material weighed into his decision. Mr. Van Ornum asked Mr. Wittry if water damage factored into his decision to assess penalties to which Mr. Wittry said that it did because the waterproofing was performed by a firm that was not willing, or capable or licensed to do so. He said it was identified as Rinaldi as doing the waterproofing, but we have documents that say it wasn’t part of their scope. Mr. Wittry said because of that lack of attention to detail, that caused damage to the project. Mr. Van Ornum asked Mr. Wittry with all the small errors on the bid, such as the incorrect name or initials of a company, was that enough for you start this process. Mr. Wittry said it’s one thing to put the wrong name or abbreviation of a company but it was the combination of the incorrect name and the incorrect license number, that’s what lead him to start this process. 7 Appeals Hearing Board November 18, 2020 Minutes Mr. Van Ornum asked Mr. Wittry why the City was bringing this issue up five years after the bid and after the Conference Center was done. Mr. Wittry said because all of this was found out during discovery in the civil suit. Mr. Van Ornum asked Mr. Wittry if he agreed with Mr. McGahey assessment that to do the paver work it required special contracting. Mr. Wittry said he did not agree that it was “proprietary” as Mr. McGahey said, but thought it required someone who had experience installing pavers in the specified method. He added that, if they were not a paver contractor they could not do the work. Mr. Van Ornum finished cross-examining Mr. Wittry. Mr. Firstman had no re-direct and the City concluded its case. Public Comments Public comment was received from Paul Bruno, one of the owners of Monterey Peninsula Engineering, a local contractor of 40 years. Mr. Bruno said his company signed a contract for work with SEI for the Conference Center. He said he would never do business with them again based on this experience. He continued to say the Listing Law is very easy to comply with and that most of the pre-work on the bid can be done ahead to avoid the “mad rush” Mr. McGahey mentioned. Closing Arguments The Board asked the attorneys to keep closing arguments to a five-minute time limit. SEI Closing Argument Mr. Van Ornum objected to the process of the meeting. He stated that SEI’s position is straight forward and the evidence has shown that West Coast Concrete was on the bid list initially and they were referred to as West Coast in emails with Mr. Harary and throughout the job. Mr. Van Ornum said secondly, SEI received the bid from West Coast Construction, that’s the bid they used, they signed the contract with West Coast Construction. He said they were the intended subcontractor, and it was not a substitution, so there is no violation. Further, Rinaldi was scheduled to perform three scopes of work and they refused to that work. Mr. Van Ornum stated there were emails with the construction managers and Mr. Harary approving European Paver Designs as the substitute. He said they did the work and the substitution was approved, so no Listing Law violation occurred. With regard to the stone veneer Mr. Van Ornum said the work was done by West Coast Construction, which was approved by Bob Harary in an email dated April 10, 2017. He went on to say no violation occurred because West Coast Construction did the work. FD Thomas’ scope of work was originally listed for Rinaldi, which decided they didn’t want to do the work. SEI had to find a replacement and that was FD Thomas. He said there was no objection from the City to FD Thomas doing the work despite the City being involved in the change order for waterproofing, FD Thomas completing the work and giving the City warranties for the work. Mr. Van Ornum said the City is not entitled to penalties because Mr. Wittry testified he was influenced by his own perception of the Listing Law as well issues like poor work quality, which he said has nothing to do with the Listing Law. He said the substitution was appropriate and that it is well past the time to assert these claims. 8 Appeals Hearing Board November 18, 2020 Minutes City Closing Argument Mr. Firstman said the listing of a concrete subcontractor and then contracting with a general building contractor not only is a violation of the Listing Law but it’s irresponsible and it deprives everyone from protecting the public. He said a general building contractor should not be taking a concrete subcontract, they are not qualified to do the work. Mr. Firstman continued to say the work required a C8 license and everyone was entitled to know that the subcontractor did not have a concrete license at all. He said the Listing Law was to protect from exactly this kind of situation. Mr. Firstman moved to the pavers and veneer, work for which he said Rinaldi was not licensed to perform. So they couldn’t contract with Rinaldi, but they did contract with Perry, which is the same contractor they don’t mention on the subcontractor list. Mr. Firstman said Rinaldi didn’t even bid the work; they excluded it all. He said then a couple of months later Perry ends up with the work; this is called bid shopping. Mr. Firstman closed by saying there is a sense of entitlement to break the law from this contractor (SEI) and it needs to be stopped. Board Member Discussion Board member Glenzer asked what is an acceptable substitution? Is an email an acceptable form of substitution? Mr. Van Ornum said an email is acceptable and the City did not dispute it. He said if it’s disputed, then it’s the City’s duty set a hearing on the matter. There was no dispute from the City, which approved the substitutions. Mr. Firstman said when you look at consent, you have to look at the information it was based on. He said when false information is given to the decision maker, that decision is not valid. Board member Millich said he felt violations did occur and have been proven in his mind. Specifically, he stated that there was no question that Perry subcontract and the listing of West Coast Concrete was a violation of the Listing Law. He said that the paver change order and the stone veneer smacked of bid shopping. He pointed out that the standard was preponderance of the evidence, which means more than likely than not. Finally, Board member Millich said that no one seemed to be in charge of the waterproofing and it should have been the general contractor. He felt the violations had been proved and the Board could discuss the penalties. Board member Glenzer said he felt that the preponderance of the evidence did not show a violation for the paver and the stone veneer. He felt like the evidence showed that the substitution was approved by the City. He heard Mr. Firstman’s argument but he fells there is not enough evidence to say that the violations occurred. He also said that he felt as if the other violations were proven by Mr. Firstman and the evidence attached to the Public Works Director’s memo. Board member Millich made a motion, in light of what has been said, to assess a 10% penalty in the sum of $291,000 for the Perry subcontract, find no violation and not assess anything for the pavers and stone veneer as having been approved by change order, and assess a $50,000 penalty relating to the waterproofing subcontract, for a total of $341,000. Chair Hawkins seconded the motion. Assistant City Attorney Salameh asked the Board to include in their motion the Board will approve the language of the actual order at its December 7 meeting. Board member Millich amended his motion to include Assistant City Attorney Salameh’s language. 9  Appeals Hearing Board November 18, 2020 Minutes The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Hawkins adjourned the hearing at 6:03 pm. Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 10