Cape May Council Hires Engineers It Formerly Terminated, Then Sued

CAPE MAY — In a 3-2 vote, city council approved a one-year contract with Remington, Vernick and Walberg (RV&W) as city engineer. That is the same firm the city ended a contract with in 2008, then initiated a lawsuit, citing poor performance.
Mayor Edward J. Mahaney Jr. and Councilwoman Terri Swain voted against the contract on Mon., Nov. 15, while new council members Jack Wichterman, Deanna Fiocca and Bill Murray voted for the agreement.
Mahaney read the following:
“Following my election as mayor in May 2008, the then existing city council (including the outgoing mayor and outgoing city councilman) unanimously agreed, in executive session, to refer specific documented practices engaged in by the then-serving city engineer, who was an employee of RV&W to the County Prosecutor for further investigation. Relatedly, that same city council complained repeatedly in executive session regarding the poor performance of RV&W on city-authorized projects.”
Mahaney said the same complaints continued from the three remaining members of city council after he and Councilmember Terri Swain took office on July 1, 2008 and “despite earnest efforts by the city council, new city manager, and city attorney to discuss and resolve the particular issues and problems with authorized representatives of RV&W during the succeeding months, the city council was compelled to end the relationship with RV&W near the end of 2008 because there was no improvement in performance by RV&W.”
He said one of the principals of RV&W, who met with city representatives on multiple occasions, “admitted shortcomings in performance by RV&W, and promised to resolve the deficiencies and even to withdraw from providing engineering services for the city, but never did.”
“Despite the fact that the Washington Street Mall renovations and the Beach Patrol Headquarters improvements were completed projects when I assumed office on July 1, 2008, the city is still burdened with significant ‘punch list’ problems with the mall contract, and just recently settled ‘punch list’ issues with the contractor on the Beach Patrol Headquarters project,” Mahaney continued.
“This is all as a result of RV&W’s poor performance. Additionally, the city is still facing claims by the contractor on the USDA-funded inflow and infiltration contract for Michigan and Indiana avenues. This particular project was also coming to conclusion in the summer of 2008, but RV&W has left the city with an approximately $500,000 claim for change orders by the contractor,” he continued.
The mayor said, as a result, in December 2008, the city had to initiate a lawsuit against RV&W in Superior Court to end the engineering relationship and to move on with no financial penalty to either party. He said RV&W refused to accept the city’s proposed relief, and, in fact, countersued the city with the hope of obtaining significant financial gain.
The legal process in this matter was dragged on by RV&W for 18 months at considerable cost to the city, said the mayor.
He said, “miraculously,” just after the municipal election in May 2010, which brought in three new council members, attorneys representing RV&W proposed to Superior Court that the city’s lawsuit and RV&W’s countersuit be settled by ending the engineering relationship with no financial penalty to either party.
Mahaney said RV&W’s settlement proposal included a “gag order” that would prohibit any current or former council member, city employee or appointee from making any negative comment about RV&W and its performance as city engineer.
“The council members and I refused to settle this legal matter until the ‘gag order’ was removed from the agreement,” said Mahaney.
During public comment, resident John Fleming said “It seems a little odd to enter into a contractual obligation with someone who we sued.” He noted the litigation was recent and questioned why another firm was not chosen.
Deputy Mayor Jack Wichterman said council reviewed proposals from nine firms, which it narrowed down to four. He said he believed RV&W was the most qualified and their representative “lived right here in Cape May.”
Fleming asked if RV&W offered the lowest bid. Wichterman said they did not offer the lowest bid. Councilwoman Deanna Fiocca said RV&W’s bid was “in the middle.”
Wichterman said the high bid was about $165 per hour with a low bid at $95 per hour with RV&W somewhere between $106 and $120 per hour.
Fiocca said she worked with RV&W on the Lower Township Zoning Board and never encountered a problem with the firm.
Murray said he hoped there was no adverse inference that the three new council members “had anything to do with them (RV&W) dropping their lawsuit.”
He said RV&W was selected as the city’s engineering firm by an open public process.