Open gate hours limited due to liability issues
DEC. 3, 2018- BROOKSVILLE CITY COUNCIL MEETING- City Manager Mark Kutney opened the staff discussion segment. He said that following the Nov. 19, 2018 meeting, there were several concerns identified by the city attorney. They held discussions with the Parks and Recreation Board and with the Enrichment Center (ECI) to get recommendations for solutions. Resident Ivy Cordell, who runs a fitness group, has been vocal about the gate hours to the parking lot at the Quarry. The Enrichment Center is responsibile for the gate and parking lot. Neither the Enrichment Center nor the city wish to take on additional liabilities associated with leaving the gate open additional hours.
Mike Walker, Parks and Recreation Director, recapped the events leading up to the Nov. 19 meeting and the issues raised by citizens at the meeting: the gate to the parking area is closed, but the walkway is always accessible.
The discussion resulted in further limiting the hours the gate would be open due to ECI liability concerns. Instead of city staff opening the gate at 7:15 am, the gate would be opened by ECI when they start their day at 9 am.
The City’s contractual relationship with the Enrichment Center began in 2009. The ECI contributed $1.3 million in the form of federal and state funding to build the special needs disaster shelter which was completed in 2011.
The ECI, as the lessee, can determine the schedule for the vehicle gate. Walker stated that the preferred schedule is Monday through Friday from 9 am to 5 pm, remaining closed on the weekend due to liability concerns. A Parks and Recreation employee opens the gate at 7:15 am during the week.
As a courtesy, when vehicles are in the parking lot at 5 pm, the gate is unlocked to allow the visitors to leave, but this also increases potential liability. Some areas of the Quarry site are concerning due to steep drop offs in holes, Walker said. Adequate signage would help.
Enrichment Center Director Deborah Walker-Druzbick scheduled a meeting for Nov. 28 with the citizens who expressed the most concern about access to the parking area. Walker said the meeting was to discuss options, including an offer to that citizen to participate under the ECI umbrella as a support group and use the building for her fitness program.
Another option offered was to utilize the batting cages on the property and could be a possible solution if the fitness group could store equipment there. At the time of the meeting, the group seemed amenable to using the batting cage area but later stated they were not ready to make a commitment.
At the Parks and Recreation Board meeting later that day, a similar discussion was held. Walker stated the department needed recommendations to bring to the city council. He presented several solutions:
Amend the language in the Enrichment Center’s 40-year lease relating to the parking lot area so that it absolves any liability to the Enrichment Center.
Research the use of batting cage area and make it available for public use.
Change the gate schedule to 7:15 am – 5:00 pm Monday through Friday and 7:15 am – 3:00 pm Saturday. The gate would remain closed on Sundays and holidays.
Open the gate from dawn to dusk and have the fitness group take on the responsibility of gate closure. The group stated this was not a workable solution, and Walker said he understood the group’s reasoning. The park staff cannot accommodate that schedule either.
Walker asked the council to set a schedule for opening and closing the gate. The signage should reflect a phone number citizens can call if they are locked in; to a towing company, for example. Contracting with a local service provider to close the park gate at dusk or at 11 pm (including the bathrooms) would cost the city $250 monthly, and the provider would be responsible to carry his own insurance. Installation of a perimeter fence is planned, Walker said.
Kutney agreed that the suggestions Walker gave would address the city attorney’s concerns. He added that the service provider in some areas is a park ranger, so having a local provider would be more cost effective than a full-time employee.
Kemerer stated there are two main issues: legal liability (addressed by the posts and cable wire fencing that Walker mentioned) and operations (access to the park). He invited Joe Mason, Enrichment Center board member and the Center’s attorney to the podium.
Mason said that ECI’s 40-year lease has an automatic 40-year renewal, so they have “exclusive occupancy of the center and its parking lot” on that site for a total of 70 more years, he said. Parking lot issues are not new. They were a problem when the golf course was operational.
Mason said a proposal at the time was to include additional property that could be converted into a parking area into the lease, but the city declined. Since then, the golf course has closed, and the parking area meets the Enrichment Center’s needs.
The contract between the city and ECI is clear. The parking lot is not public property. It is for the use of the Enrichment Center. The contract does give the city access to the building for programs or other uses, as renters of the space. The Parks and Recreation department handles the rental agreements, which include fees and proof of insurance.
Mason said the Center’s insurance provider will only cover parking lot incidents pertaining to the use of the Enrichment Center. The Quarry is described as “an attractive nuisance” he said, which includes those who not only like to enjoy the Quarry but those who see an opportunity to be destructive. The insurance provider is not obligated to provide coverage in the event someone is hurt, if the Enrichment Center provides access. The proposed perimeter fence may not be enough, Mason said.
While it is willing to work with the city, ECI is the lessee of the property, and only the Center can set the gate schedule. As a concept, Mason said, if the city wants to provide someone to open and close the gate at certain times and will accept liability if there is damage or injury, then an agreement might be possible. However, any agreement would need to be reviewed by legal counsel.
After 5 pm, when the gates are locked, Mason agreed that there should be some way for a person to get their vehicle out of the parking lot, whether they call the sheriff’s department, fire department, or Walker. The intention is not to lock the city out, Mason said, but to work with the city in this area as much as they do in others.
For example, Mason explained the rental fees that Walker collects are divided equally between the City and the Enrichment Center. ECI is willing to compromise and is concerned about statements that are not constructive, statements such as the city should simply make the decision without compromise. A separate, short-term, renewable agreement could be made without changing the current lease agreement.
The city council would be better served by waiting until the attorneys presented a compromise agreement. “Any decision on any kind of issue like this by (the city) council would be terribly premature,” Mason said. “And somewhat blinded by the lack of input of counsel on both sides coming to you with an agreement counsel believes both is legal, enforceable, advantageous, and convenient.”
Some solutions have been presented, but Mason suggested that other ideas may be proposed. He recommended that the item be tabled again, promising cooperation from ECI so that the needs of both parties could be met.
Erhard asked about membership cost, which is $15.00 per year. Support groups are not charged fees to use the Center. If the fitness center had the proper insurance and could qualify as a support group, Mason said, they could have access as well.
Bernardini asked for clarification about a separate agreement. Mason restated the position that ECI has sole control of the parking lot due to the lease agreement, but they could arrange for the city to have access to the parking lot. The current contract allows the city to use the parking area for scheduled events that the two parties coordinate.
Battista stated he felt the lease agreement left out some important areas and the language was not clear, for example, the term “additional space.” At the time of the agreement, the company running the golf course was able to use the parking lot. Mason agreed, stating that the number of parking spaces the golfers used caused issues for ECI. The “additional space” referenced was for potential expansion if ECI obtained funding, but not parking.
Stuparich agreed with several of Mason’s statements. Referencing Walker’s list of suggested solutions, Stuparich said option #1 (Amend the language in the Enrichment Center’s 40-year lease relating to the parking lot area so that it absolves any liability to the Enrichment Center) is not recommended because the city will take full liability. The grant for the building was based on approved site plans with parking designated for ECI use.
The fencing was discussed at the previous meeting and is taking action. While it will reduce the risk, its effectiveness is unclear based on the materials suggested. The operational issues will have to be discussed by the attorneys representing each party. Amending the lease to address parking is not recommended.
Battista stated that it appears ECI is not willing to have the parking lot used as it is now. County residents see the Quarry and parking area access as a right, he said. What he heard from Mason was that the parking lot is for people going to the Enrichment Center and the city can use the parking area only if it is scheduled and coordinated, not daily.
Kemerer said it appears that the current schedule was acceptable with the public having access during the hours already in place, unless ECI members are unable to park or if the situation becomes “burdensome” and increases ECI’s liability. The city cannot take on the additional liability either.
Bernardini remarked that he heard what Battista did: that ECI will have the gate open from 9 am to 5 pm for ECI guests only. According to the lease agreement, ECI is responsible for the parking lot and building. He did not think it was reasonable to pay a service provider to open and close the gate.
Brayton stated that in the past, this situation would be handled differently, with law enforcement responsible to open and close the gate. The arrangement with the Sheriff’s Office could work the same way, he said. The deputy could unlock the gate at 7 am and close it at 11 pm. Brayton said it would be a simple solution and ECI would have no problem with it.
Mason returned to the podium, explaining that it did cause a problem because of the liability. Brayton responded that he understood that, but the easiest issue to resolve was the time the gate is open. Bernardini said that even the fire department could open and close the gate, but it does not address ECI’s liability over any incidents that occur outside ECI’s hours.
Referring to the lease agreement and a letter provided by Mason, Battista confirmed ECI’s hours of operation as 9 am to 5 pm, Monday through Friday. If the city agreed to indemnify ECI, then the hours could be adjusted, but constitutionally, Battista said it was not possible.
Kemerer asked Mason if ECI was willing to maintain the current schedule, with a park employee opening the gate at 7:15 am and an ECI employee closing at 5 pm. Mason stated that ECI and the city communicate special events so they are not in conflict. ECI is willing to work out an arrangement with the city so the parking lot can continue to open at 7:15 am, Mason said, but “the devil is in the details.”
Kemerer reminded the council members that Parks and Recreation Department is planning changes to the Quarry area which will likely impact the Enrichment Center and the parking lot, and will require a broader discussion. For now, he said, an interim agreement is needed to maintain the status quo.
The initial step is signage and a contract with a towing company. When the Enrichment Center is closed, so is the parking lot. If the towing company is needed to unlock the gate, the vehicle owner will be charged. There was consensus from the counsel that because the Quarry is under the control of ECI, signage and a towing contract should be the responsibility of ECI.
Kemerer asked for Risk Management to see if the proposed fencing solution would be appropriate and provide adequate protection as well as identify any other safety risks at the Quarry. Since this is the third meeting where safety issues at the Quarry were discussed, Bernardini suggested using temporary orange barricade fencing material to block dangerous areas.
Brayton disagreed, saying that Walker already priced the materials for the post and cable fence at $700. He moved to approve purchase and installation of the materials. Battista seconded the motion, which carried 5-0.
There was also consensus from the council to research the viability of using the batting cages since they can be accessed via the parking area at McKethan Park.
The city will no longer open the gate at 7:15 am. The Enrichment Center parking lot will be open during business hours.