02-02-1948 Regular MeetingFebruary 2, 1948
The regular monthly meeting of the Mayor and Council was held
at the City Hall on February 20 1948, at 6:30 P.M.
The meeting was called to order by the Mayor, Mrs. Lorena P.
Pruitt, with all members present: M. D. Collins, H. D. Durham,
Henry Konigsmark, Jr., H. P. McCollum and P. P. Shaw.
Attorneys Willingham and Edwards were present and presented
Contract signed by Cordon Combs, as Attorney for C. A. McDaniel,
Waterworks Contractor, in settlement of liquidated damages claimed
by the City of Smyrna for the amount of $1,307.56. They also
presented Contract signed by Merritt 8: Welker, Engineers, releasing
all claim -to their share of the �2,150.00 claimed as liquidated
damages against C. A. McDaniel.
Motion was made by Mr. Durham, seconded by Mr. McCollum and
unanimously carried that the following resolution be adopted:
Resolution - Re: Merritt & Weber (attached)
Motion was made by Mr. McCollum, seconded by Mr. Durham, and
unanimously carried that the following resolution be adopted:
Resolution - Re: C. A. 1.46Daniel (attached)
Motion was made by Mr. Durham, seconded by Mr. McCollum and
unanimously carried, that the following resolution be adopted:
Resolution - Re: Ralph and W. V. Cobb (attached)
Minutes of January meetings and Financial Statement for the month
of January were read by the Clerk. Motion was made by Mr.
McCollum, seconded by Mr. Shaw and unanimously carried that they
be approved as read.
Motion was made by Mr. Durham, seconded by Mr. Shaw and unanimously
carried that all bills be approved for payment.
Motion was made by Mr. Konigsmark, seconded by Mr. -Shaw and
unanimously carried, that at the Plumbing Inspectn its request, fee
charged for plumbing permit for the Presbyterian Church be refunded.
Motion was made by Mr. Konigsmark, seconded by Dr. Collins, and
unanimously carried that the Girl Scouts be allowed to construct
a Scout Hut in Brinkley Park, the building to have as good an
appearance as that of the Boy Scout Hut located nearby. No fee
will be charged for the building permit.
Motion was made by Mr. McCollum, seconded by Mr. Durham, that the
salary of'Councilmen remain the same. Motion was carried, Dr.
Collins and Mr. Shaw voting Negative.
Motion was made by Mr. Konigsmark, seconded by Dr. Collins, and
unanimously carried that the budget attached hereto presented for
approval be adopted.
Motion was made by Mr. K._onigsmark, seconded by Mr. Durham, and
unanimously carried that the financial operation of the City
continue in the same manner for another motikh..
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Motion was made by Mr. Durham, seconded by Mr. McCollum and unani-
mously carried that the f ollowing resolution be adopted:
WHEREAS, a dispute exists between the City of Smyrna and its
Engineers, Merritt and Welker, a firm composed of A. T. Merritt, Jr.
and A. P. Welker, as co-partners, as to the final amounts -due them
under the terms of their contract of employment of October 3, 1946
by the City, and
WHEREAS, said dispute is caused by the fact that; the city
contends that the Engineers are liable to damages to the City and
to certain property owners of the County owning property adjacent
to the site of the City's new Sewer Disposal Plant by reason of the
fact that portions of the said Disposal Plant were erected off the
property of the City of Smyrna purchased for the purpose and on the
real estate and property of Ralph and W. V. Cobb, and
WHEREAS, said dispute further exists with the Engineers by
reason of the fact that no mutual agreement has heretofore been
reached as to the amount of construction actually achieved, and as
to, the amount of plans, and as to the amount due for the plans
drawn, and
WHEREAS, said dispute further exists because under terms of
the aforementioned contract of employment with the Engineers of
October 3, 1946, and under terms of the contract of the City of
Smyrna with its Water Contractor, to wit: C. A. McDaniel, certain
liquidated damages are allegedly due and payable by the said
C. A. McDaniel to the City of Smyrna and its Engineers by reason of
the fact that the -,-said Water Contractor exceeded the time allotted
to him for completion of the water improvements by some forty-two
to forty-six days, and
WHEREAS, said above described disputesbetween: the City and
its Engineers have been arbitrated between the parties by and
through the Attorneys of the City of Smyrna, and a satisfactory
solution of same has been evolved,`.
NOW THEREFORE, be it ordained, and it is therefore ordained
by the Mayor and Council of the City of Smyrna, as follows:
That the tentative accord and satisf action,arranged by the
Attorneys of the City of.Smyrna and reduced to a written agreement
by the Attorneys of the City of Smyrna,. be ratified and accepted
by the Mayor and Council of the City; and
Be it ordained further` 'that by the proper execution of said
contract of -accord and satisfaction by Merritt and Welker, Engineers
of the City of Smyrna, that the Mayor of the City be authorized and
directed to execute same for and in behalf of the City, and that the
City Clerk be authorized and directed to attest the signature of the
Mayor,, and
Be it further ordained that the Clerk of the City of Smyrna
be authorized and directed to draw a check payable to the order of
Merritt & Welker, Engineers, on the Cobb Exchange Bank against the
City Vlaterworksc and- Sewerage Construction Fund on deposit in said
Bank, in the amount of $1,762.84, and deliver same to said Engineers
in full payment for all obligations of the City to said Engineers
under the aforementioned contract of employment of said Engineers of
October 3, 1946, and of -any and all `other matters or claims incident
to the construction, or planned construction, of Waterworks and
Sewerage Improvements made possible by, or incident to, the issuance
by the City of $215,000.00 of Revenue Anticipation Certificated
during the year 1946.
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Motion was made by Mr. McCollum, seconded by Mr. Durham, and
unanimously carried that the following resolution be adopted:
WHEREAS, on the 19th day of April, 1947, C. A. McDaniel did
enter into a contract with the City of Smyrna .f or the erection and
construction of certain enumerated improvementsand extensions'to
the waterworks system of the City of Smyrna, for the sum of
$17,110.00, more or less, the final amount to be psybble based on
the quantities shown in the proposals prepared by the Engineers
and made a part of said contract, and
WHEREAS, under the terms of said aforementioned contract,
the contractor and party hereto, C. A. McDaniel, agreed to complete
said work within ninety (90) days ,from the date of said contract,
and
WHEREAS, in the event the contemplated contracted work was
not completed within the said 90 days, there was contained in said
contract a provision for liquidated damages to the City and its
Engineers, as follows:
and
"If the work is not completed within the time stated above,
the Contractor shall be liable and hereby agrees to pay to the
Owner as liquidated damages and not as a penalty, the amount
of Twenty -Five Dollars (25.00) per calendar day for each and
every day or part of a day thereafter that said work remains
substantially incomplete, and Twenty -Five Dollars ($25.00) per
diem additional as liquidation of the extra engineering expense
incurred by the Owner."
WHEREAS, the work was not completed within the said ninety
(90) days, and the said C. A. McDaniel took some forty-two to
forty-six extra days to complete said contracted work, and
WHEREAS, the City of Smyrna on its final estimate.for said
work, prepared by its engineers, Merritt & Welker, did assert a
claim for "liquidated damages" against said contractor, C. A.
McDaniel, under the above quoted "liquidated damages" section of
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said contract of April 19, 1947, in the amount of $2,150.00, and
WHEREAS, the aforesaid water contractor, C. A. McDaniel,
did contest this claim, and has placed the final estimate of the
Engineers submitted to him, in the hands of one Gordon Combs, a.
Marietta attorney, for the purpose of commencing a legal action
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thereon, and
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WHEREAS, the attorneys for the City, to wit: Willingham,
Cheney, Hicks and Edwards, and the said attorney for the said C. A.
McDaniel, to wit: Gordon Combs, have reached a compromise -agreement
on said matter which embodies in accord and satisfaction in the
matter of the following terms and conditions:
1.
That the amount of liquidated damages is agreed to be
$1,307.56 instead of $2,150.00, and
2.
That the amount due said Water Contractor by mutual agreement
is $4,500.00, computed as follows: Amount of final estimate
$ 5,916.62, less enumerated credits thereon to the City of Smyrna
$109.06 and less compromised liquidated damages $1,307.56.
NOW, THEREFORE, be it ordained and it is hereby ordained
by the authority of the Mayor and Council of the City of Smyrna:
1.
That the action of the Attorneys of the City of Smyrna be
ratified and approved in arranging for a settlement of the within
above enumerated dispute.
2.
That the Mayor of the City of Smyrna is hereby authorized
and directed to execute for and in behalf of the City of Smyrna
a contract -of accord and satisfaction with its said Water
Contractor, C. A. McDaniel the sum of $4,500.00 in complete
settlement of all claims that the said C. A. McDaniel may now
have, or may hereinafter have against the City of Smyrna, arising
from and by reason of said contract of April 19, 1947 between
the said Contractor and the City; and the Clerk of the City of
Smyrna is authorized and directed to attest the signature of
the Mayor thereon.
'3.
That the City Attorneys', Messrs. Willingham.. Cheney, Hicks
and Edwards,are authorized and directed to procure,or prepare,
an amended final estimate giving effect to the settlement herein
agreed to, and that the City Attorneys submit such amended.final
estimate to the said Contractor, C. A. McDaniel, f or his written
approval thereon.
4.
That the City Clerk is hereby authorized and directed to
draw against the City's Waterworks & Sewerage Construction Fund
on deposit in the Cobb Exchange Bank, Marietta, Georgia, payable
to the order of".Gordon Combs, Attorney- at Law, for C. A. McDaniel",
in the amount of $4,500.00, which amount represents the accord
and satisfaction herein agreed upon.
5.
That the Clerk of the City is further authorized and directed
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to deliver unto the Attorneys of the City of Smyrna said check
payable to "Gordon Combs, Attorney at Law, for C. A. McD m iel",
for`. delivery?unto said Gordon Combs,when he delivers unto the
Attorneys of the City of Smyrna said amended final estimate with
the written approval of the Contractor, C. A. McDaniel, thereon.
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Motion was made by Mr. Durham, seconded by Mr. McCollum and
unanimously carried, that the following resolution be adopted:
WHEREAS, through mistakes of the Engineers,or.otherwise,
the new Sewage. Disposal Plant was partially erected off the
property of the City of Smyrna; purchased for the purpose, and
on the properties of Ralph and W. V. Cobb, and
WHEREAS, the Engineers, in partial settlement of the
damages occasioned thereby,have released unto the City of Smyrna
said claims which said Engineers had against the Water Contractor
of the City of Smyrna, the said C. A. McDaniel, and or, the City
of Smyrna, and
WHEREAS, there has been collected from said Water Contractor
the sum of $1,307.56 for liquidated damages by reason of said
Water Contractorts exceeding the time limit on the contract of the
new Waterworks System, all in accordance with original contracts
with the said Water-.C-ontractor and said Engineers and supplemental
contracts arising therefrom of accord and satisfaction with said
Water.'Gontract.or and Engineers, and
'WHEREAS, said $1,307.56 is nova on deposit in the Waterworks
& Sewerage Construction Fund in the Cobb Exchange Bank, Marietta,
Georgia, and is available for settling damages to the said Ralph
and W. V. Cobb for damages arising by reason of the erection of
portions of the new Sewage Disposal Plant on said properties, or
for the purachse of such affected properties from the owners
thereof., and
WHEREAS, the said Ralph and IV. V. Cobb have agreed and are
willing to sell unto the City of Smyrna for the sum of $1,000.00,
2.11 acres of land adjacent to the said new Disposal Plant of
the City of Smyrna and on which were erected by mistake, as above
enumerated, portions.of the said new Sewage Disposal Plant,
NOW THEREFORE, be it ordained and it is therefore ordained
by the Mayor and Council of the City of Smyrna, that the offer
of the said Ralph and W. V. Cobb to sell unto the City of Smyrna
2.11 acres of land adjoining the new Disposal Plant of the City
of Smyrna, and on which certain portions of said Sewage Disposal
Plant have been erected by mistake, for the sum .of t1,000.00, be
accepted, and
That the Attorneys of the City of Smyrna, Messrs.
Willingham, Cheney, Hfcks-and Edwards are hereby authorized and
directed to draw a Warranty Deed from the said Ralph and W. V.
Cobb to the 2.11 acres of land and to attain the proper
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execution thereof as grantors by the said Ralph and W. V. Cobb,
and
That the Clerk of the City of Smyrna is hereby authorized
and directed to draw a check against the Waterworks €c Sewerage
Construction Fund of the City of Smyrna on deposit in the Cobb
Exchange Bank, Marietta, Georgia, payable to the.order of Ralph
and W. V. Cobb in the sum of $1,000.00, and
That the Clerk of the City is further authorized and
directed to deliver unto the said Willingham, Cheney, Hicks and
Edwards, Attorneys for the City, said check for $1,000.00,
payable to the order of said Ralph and W. V. Cobb and said
Attorneys are authorized and directed to deliver said check to
the payees thereof when said payees deliver unto said Attorneys
duly executed Warranty Deed to the above described 2.11 acres of
land adjoining the new Sewage Disposal Plant, and
That upon the delivery of said check and the receipt of
said deed the Attorneys for the City, Messrs. Willingham, Cheney,
Hicks and Edwards are. authorized and diredted to file such deed
with the Clerk of Superior Court of Cobb County for the due and
proper recording thereof.
February 2, 1948 (Contid)
There being no further business the meeting adjourned.
a
Thelma D. Myers, er k
p
Mayor