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HomeMy WebLinkAboutSBB 2006-11-30 MinutesMINUTES OF THE SUBSTANDARD BUILIDING BOARD CITY OF NORTH RICHLAND HILLS, TEXAS NOVEMBER 30, 2006 1. CALL TO ORDER The meeting was called to order at 2:16 p.m. 2. Roll Call PRESENT Chairman Garry Cope Vice Chair Brian Crowson Place 4 Philip Orr Place 7 Bob McCary ABSENT Place 5 John Larriviere CITY STAFF Dir. Neighborhood Services Jo Ann Stout Building Official Dave Pendley Code Enforcement Officer Dena Milner City Attorney George Staples Assistant Fire Chief Kirk Marcum Fire Inspector Specialist James McClanahan Recording Secretary Tiffany Inay 3. CONSIDERATION OF MINUTES FROM SEPTEMBER 29, 2006. Garry Cope: Our first order of business is the consideration of the minutes from the last meeting. Do I hear a motion? Brian Crowson: I'd like to make a motion to accept the minutes. Philip Orr: I'll second the motion. Garry Cope: All in favor of accepting the minutes say I. Let the record show the motion was approved unanimous. (4-0) 4. SSB2006-5 PUBLIC HEARING FOR BLOCK A LOT 1 R GALLOWAY FARM ADDITION, KNOWN AS 7600 BOULEVARD 26 AKA 7650 BOULEVARD 26 Garry Cope: I would like all of those who wish to speak on the properties today to stand so that I may swear them in. Do each of you swear or affirm that the testimony you give today is the truth? Thank you. I'd like to hand the floor now to George Staples. George Staples: Mr. Chairman and member's of the board I'm the City Attorney and I'm going to try to get this testimony and all the evidence before you in such a way that will meet the requirements of the law. For the purpose of the record I'm going to offer into evidence at this time all the ordinances and exhibits that are relevant to this case with the understanding that we will be having testimony about this. I will also represent to you that all this material is contained in the packets that have been offered to you. The only thing that we will offer to you in addition is at the end of these procedures is the board proposal orders. At this time I'd like to call Dena Milner who is going to present to you a series of power point presentations concerning the condition of this property also with references to the ordinances or portions of the ordinances enclosed that there is a problem with. For your information, I think you realize that the property we are speaking about is formally known as North Hills Mall. The buildings have been vacant and closed and essentially striped for well over a year at this time. Dena will you go ahead and present your case? • Dena Milner: I'm Dena Milner a code officer for the City of North Richland Hills. I'm here to present cases SSB2006-05, SSB2006-06, SSB 2006-07, SSB2006-08. In your packet you find an aerial photograph indicating the location of each property. The zoning of these properties is C- 1commercial. The properties are currently unoccupied. The photo's I will present are true and accurate photos taken by Debbie Heizer, Trish Riley, Stephanie East, Candy Henderson, James McClanahan or myself. Case SSB2006-05 located at 7600 Boulevard 26 AKA 7650 Boulevard 26 Block A lot 1 R Calloway Farm Addition. The owner of the property per our records is La Verne Butterfield LP. And the deed from Tarrant County indicates the owner to be La Verne Butterfield LP. A Vacate, Repair or Demolish letter dated October 2, 2006 was mailed certified and first class mail. The owner of record was notified by certified mail of this hearing on November 17, 2006. We have not received the return receipt. At this time we have no permits on file. Case SSB2006-05 7600 Boulevard 26 AKA 7650 Boulevard 26 Block A Lot 1 R Calloway Farm Addition. Brief History- August 21, 2006 - A title search was requested. August 23, 2006 -The structure was inspected. September 7, 2006 -The title search received. October 2, 2006 -The Notice and Order was sent. November 9, 2006 - An inspection of the structure was attempted. There appeared to be no changes from the August 23, 2006 inspection. November 17, 2006 -The Notice of Hearing was sent. The next photo is an aerial photograph of the property. Photos 1 & 2 taken August 23, 2006 show mold caused by moisture within the structure. Photos 3 & 4 taken August 23, 2006 show standing water near the dock area. Photos 5 & 6 taken August 23, 2006 show rodent feces and a rodent carcass. Photos 7 & 8 taken August 23, 2006 show damaged walls. Photos 9 & 10 taken August 23, 2006 show missing railing around an escalator creating a drop from the 2"d floor to the 1St floor. Photos 11 & 12 taken August 23, 2006 show a defective escalator. The escalator is missing the steps. Photo 13 taken August 23, 2006 and photo 14 taken November 9, 2006 show deteriorated flooring. Photo 15 taken August 23, 2006 shows an accumulation of debris. Photo 16 taken August 23, 2006 shows an accumulation of garbage and debris. Photos 17 & 18 taken August 23, 2006 show deteriorated drywall and evidence of mold. Photos 19 & 20 taken August 23, 2006 show a visible opening at the top of two walls which allows rain and other elements to enter the building. Photo 21 taken August 23, 2006 shows missing and rotted ceiling covering. Photo 22 taken August 23, 2006 shows a hole broken in an exterior wall. Photos 23 & 24 taken August 23, 2006 show accumulation combustible materials. Photos 25 & 26 taken August 23, 2006 show an accumulation of combustible materials. Photos 27 & 28 taken August 23, 2006 show an accumulation of combustible materials. Photos 29 & 30 taken August 23, 2006 show an accumulation of combustible materials. Photos 31 & 32 taken August 23, 2006 show an accumulation of combustible materials, rat harborages, and debris. Photo 33 shows the main water line for the fire sprinkler system is disconnected from the remaining sprinkler system. Case2006-06 7570 Boulevard 26 AKA 7624 Boulevard 26. Legal description Block B Lot 1 R located in the Calloway Farm Addition. Brief History- August 21, 2006 - A title search was requested. August 23, 2006 -The structure was inspected. September 7, 2006 -The title search received. October 2, 2006 -The Notice and Order was sent. November 9, 2006 - An inspection of the structure was attempted. There appeared to be no changes from the August 23, 2006 inspection. November 17, 2006 -The Notice of Hearing was sent. The next photo is an aerial photograph of the property. Photos 1 & 2 taken August 23, 2006 show holes that were left when the heating, ventilation and air-conditioning (HVAC) units were removed. Photos 3 & 4 taken August 23, 2006 show that the structure no longer has electric service. Photos 5 & 6 November 9, 2006 show standing water within the structure. Photos 7 & 8 taken November 9, 2006 show evidence of insect and rodent infestation. Photos 9 & 10 taken November 9, 2006 show evidence of insect and vermin infestation. Photo 11 taken November 9, 2006 and photo 12 taken August 23, 2006 show evidence of rodent infestation and animal carcasses. Photo 13 shows improper maintenance and a drop off from the 2"d floor to the 1St floor & Photo 14 taken November 9, 2006 show improper maintenance. Photos 15 & 16 taken November 9, 2006 show improper maintenance. Photos 17 & 18 taken November 9, 2006 show improper maintenance. Photos 19 & 20 taken November 9, 2006 show improper maintenance. Photo 21 taken November 9, 2006 shows a damaged wall. Photos 22 & 23 taken August 23, 2006 show a public restroom where plumbing fixtures have been removed. Photos 24 & 25 taken August 23, 2006 show restrooms in suites with non functioning plumbing fixtures. Photos 26 & 27 taken August 23, 2006 show sagging and falling ceiling members. Photos 28 & 29 taken November 9, 2006 shows exposed electrical wiring which has not been maintained in good condition. Photos 20 & 31 taken November 9, 2006 show electrical wiring which has not been maintained in good condition. Photos 32 & 33 taken August 9, 2006 shows deteriorated drywall and evidence of mold. Photos 34 & 35 taken November 9, 2006 show openings to the roof which allows rain to enter the building. Photos #36 taken November 9, 2006 show moisture damage due to ineffective waterproofing. Photos 37 & 38 taken August 23, 2006 shows exposed wood framing which is a violation without a functioning fire sprinkler system. Photos 39 & 40 taken August 23, 2006 show an accumulation of combustible materials. Photos 41 & 42 taken August 23, 2006 show an accumulation of combustible materials. Photo 43 taken November 9, 2006 & Photo 44 taken August 23, 2006 show an accumulation of combustible materials. Photos 45 & 46 taken August 23, 2006 show an accumulation of debris. Case SSB2006-07 located at 7600 Boulevard 26 Block C Lot 1 R Calloway Farm Addition. The owner of the property per tax records is TX MERV LP and the deed from Tarrant Co indicates the owner to be TX MERV LP. A Vacate, Repair or Demolish letter dated October 2, 2006 was mailed certified and first class mail. The owner of record was notified by certified mail of this hearing on November 17, 2006. The return receipt has been received. At this time we have no permits on file. Brief History- August 21, 2006 - A title search was requested. August 23, 2006 -The structure was inspected. September 7, 2006 -The title search received. October 2, 2006 -The Notice and Order was sent. November 9, 2006 - An inspection of the structure was attempted. There appeared to be no changes from the August 23, 2006 inspection. November 17, 2006 -The Notice of Hearing was sent. The next photo is an aerial photograph of the property. Photos 1 & 2 taken November 9, 2006 shows the location of hole in the roof that was left when the heating, ventilation and air condition (HVAC) units were removed. Photos 2 & 3 taken November 9, 2006 show evidence of moisture and/or mold within the structure. Photo 4 taken August 23, 2006 and photo 5 taken November 9, 2006 show vermin infestation and an animal carcass left on premises in excess of 18 hours. Photos 6 & 7 taken November 9, 2006 show dilapidation and improper maintenance. Photo 8 taken August 23, 2006 & photo 9 taken November 9, 2006 show improper maintenance. A wall was partially removed leaving a drop from the 2"d floor to the 1St floor. Photos 10 & 11 taken November 9, 2006 show im~roper maintenance. An elevator was removed leaving a drop from the 2" floor to the 1St floor. Photo 12 taken August 23, 2006 shows electrical wiring which has not been maintained in good condition. Photo 13 taken November 9, 2006 shows deteriorated drywall. Photo 14 taken November 9, 2006 shows an open rooftop door/ineffective waterproofing. Case SSB2006-08 located at 7550 Boulevard 26 legal description Block d Lot 1 R Calloway Farm Addition. The owner of the property per tax records is TX MERV LP and the deed from Tarrant County indicates the owner to be TX MERV LP. A Vacate, Repair or Demolish letter dated October 2, 2006 was mail first class and certified mail. The owner of record was notified by certified mail of this hearing on November 17, 2006. The return receipt was received. At this time we have no permits on file. Brief History-August 21, 2006 - A title search was requested. August 23, 2006 -The structure was inspected. September 7, 2006 --The title search received. October 2, 2006 -The Notice and Order was sent. November 9, 2006 - An inspection of the structure was attempted. There appeared to be no changes from the August 23, 2006 inspection. November 17, 2006 -The Notice of Hearing was sent. The next photo is an aerial photograph of the property. Photos 1 & 2 taken August 23, 2006 show holes that were left when the heating, ventilation and air-conditioning (HVAC) units were removed. Photos 3 & 4 taken August 23, 2006 show evidence of moisture within the structure. Photos 5 & 6 show evidence of moisture within the structure. Photos 7 & 8 taken August 23, 2006 show evidence of rodent infestation. Photos 9 & 10 taken November 9, 2006 show improper maintenance. Photos 11 & 12 taken August 23, 2006 show deteriorated drywall. Photo 13 taken August 23, 2006 and photo 14 taken November 9, 2006 show an open hatch which allows rain and other elements to enter the structure. Photo 15 taken August 23, 2006 & Photo 16 taken November 9, 2006 show combustible materials. Photos 17 & 18 taken August 23, 2006 shows wood partition framing. Photo 19 taken August 23, 2006 shows wood partition framing. The Fire Department, Planning & Inspections, Consumer Health, Animal Control and Code Enforcement departments were involved in these inspections. A representative from each of these departments is available to answer questions after Kirk Marcum, Assistant Fire Chief and Fire Marshall address's his concerns with the structures. Jim Harris: I'm an attorney with Thompson and Knight; I have just a few questions for the witness. I represent TX MERV LP, La Verne Butterfield that owns the land and improvements. 1700 Pacific Ave Suite 3300, Dallas TX 75201. Ms. Milner were you present at the inspection in August and November? Dena Milner: Yes Sir Jim Harris: Both occasions the building was un-occupied and the building is not in use at the current time is it? Dena Milner: It doesn't appear to be. Jim Harris: When you and other member's of the City were present at the structures there was nobody else in the structure? Dena Milner: Not while we were there. Jim Harris: You showed us a bunch of photographs of materials you characterized as debris. Did all of that material appear to you during your inspections as either building material that was pulled off during construction or was it left behind when the mall was closed? Dena Milner: As I recall it was both. Jim Harris: You didn't see any evidence of anybody bringing material to put into the mall. Dena Milner: There were clothes that appeared to be used, old food bags. Honestly I couldn't say. Jim Harris: There was a food court at the mall and departments stores that sold clothes. Dena Milner: Sure there were. The clothes weren't used and as far as I remember the food court didn't have a dominos pizza. I remember seeing a pizza box while we were there. We did not see anyone in the building while we were there but that doesn't mean there wasn't anyone in there. Jim Harris: Other then some used clothes and a domino pizza box did you see anything specific that you thought might have come from outside the building? Dena Milner: There were other things but I can't think of any right of the top of my head. Jim Harris: Looking at one of the photographs...was (correct that where the plumbing fixtures that had been removed that any opening that were associated with removal of those plumbing fixtures had been sealed? Dena Milner: Umm with old cloth. Somebody had shoved some old cloth. Jim Harris: There was something that sealed that opening though wasn't there? Dena Milner: They were covered but I wouldn't call that sealed. Jim Harris: At the time of either of your visits was the building heated? Dena Milner: No Jim Harris: At the time of either of your visits was the building air conditioned? Dena Milner: No Jim Harris: No further questions. George Staples: We'd like to call Chief Marcum at this time. Kirk Marcum: I'm Kirk Marcum. I'm a fire Marshall and assistant Chief for the City of North Richland Hills. I was present on the August 23, 2006 inspection for about half of the building and I didn't make the November 9th inspection but my personal were out there at that time. The Fire Marshals Office has conducted two fire safety inspections this year on the above addresses. The first inspection was conducted on August 23, 2006 and the second on November 9, 2006. Both inspections revealed a substantial accumulation of combustible materials, trash and debris throughout the entire mall facility that could be intentionally set. The fact that all fire sprinkler systems have been disabled would be a major contributing factor in the spread of a fire that could result in a substantial size building fire. That size building fire would create collapse hazards for fire fighters. If such a fire occurred there would be a delay in notifying the Fire Department because the fire alarm system has been disabled. This delayed notification would allow the fire to grow unchecked and add to the possibility of building collapse. Such a fire would emit hazardous smoke and fumes into the surrounding neighborhoods. The conditions present at this location would produce a large fire that would rapidly become unmanageable, thereby over taxing the fire fighting resources of the City and our mutual aid partners as well. In conclusion, it is the opinion of the Fire Marshal that this facility is currently considered to be a fire hazard. In a letter dated October 2, 2006 the owner was given notice to complete the following four items in order to abate the fire hazards: 1. The fire sprinkler system shall be returned to full operation within 60 days. 2. All plan reviews, testing and remote monitoring shall be approved by this office. 3. All trash and debris shall be removed within 15 days. 4. Fire alarm monitoring for the sprinkler system shall be reinstalled. As of this date no action to abate the hazards has been taken by the owner and a significant fire hazard still exist. Demolition of the building and removal or all demolition debris would abate this fire hazard. Garry Cope: Chief in looking at this building and the time you inspected it, is it apparent that there are violations of the fire code present? Kirk Marcum: Yes sir Garry Cope: As far as the City's ability or the fire departments ability to deal with a fire in a building like this are you saying that is a problem? Kirk Marcum: Yes sir Garry Cope: Now when you say there is a fire suppression system that is required for building this size is there not? Kirk Marcum: Yes sir it's been dismantled. Mr. Harris: You'd agree that the building is unoccupied and that it's not being used? Kirk Marcum: Yes Sir. Mr. Harris: When you say a fire suppression system, is that a sprinkler system? Kirk Marcum: Yes Mr. Harris: What is a plan review? Kirk Marcum: They'd have to bring us a set of plans how they were going to re- install asprinkler system back into it. Mr. Harris: Bring the system back in but before you do that we want to see how you're going to do it. Then the fire alarm system I assume that's part of the sprinkler system? Kirk Marcum: No sir that's a separate system. The system in the mall had smoke detectors, pool stations, AV devices, audio visual devices to warn the people. Mr. Harris: Is there some place in the fire code that specifies for a building such as this that you have to have a fire alarm system? Kirk Marcum: The fire alarm would be required because of the sprinkler system. To do the monitoring on the sprinkler system. That comes out of the International Fire Code Section, Chapter 3. Mr. Harris: So if the sprinkler system wasn't required then the fire alarm system would not be required. Kirk Marcum: Correct Mr. Harris: Let's address the trash. Kirk Marcum: In the Mervyn's there were items brought in. There were limbs and brush that had been brought inside. Mr. Harris: Would you characterize the material that had been brought into the mall as being a very small percentage? Kirk Marcum: Yes Mr. Harris: Would you agree with Ms. Milner's testimony that the building is both in August and November that the building is not air conditioned? Would you agree that the building is not heated? Kirk Marcum: Yes Mr. Harris: Would you agree with me that if we went to the building today that you could experience freezing conditions within that building? Kirk Marcum: Possibly Mr. Harris: You've seen buildings like that. You would agree with me that there is a real possibility that if we had water in that building or pipes that were still being used that those could freeze or burst due to the temperatures we're having today? Kirk Marcum: The fire code would have maintained heat to stop the freezing. Mr. Harris: Where does the fire code specifically require that? Kirk Marcum: Chapter 900 Mr. Harris: Wouldn't that be for a building that was actually occupied and used? Kirk Marcum: You have to maintain a fire system in an un-occupied building as well. It can be taken out of un-occupied buildings, but that is a decision made by the fire Marshall. Mr. Harris: Doesn't the Fire Code specifically provide an exception for buildings where there is a possibility of freezing conditions? Kirk Marcum: They can put in a dry system. Mr. Harris: I'm sorry that wasn't my question. Is there not a specific section in 311 of the Fire Code that says the sprinkler system doesn't have to be provided where the building will not be heated and the fire protection system will be exposed to freezing temperatures? Kirk Marcum: Sure I don't have my code book with me. Mr. Harris: That's fine. No further questions. Brian Crow son: You said the sprinkler was there but it wasn't operational correct? Kirk Marcum: Correct Brian Crowson: Even if it was operational it wouldn't be adequate to extinguish a fire for the whole building is that correct? Kirk Marcum: There was a picture of the wooden partitions that were put in the Mervyn's building. Those were put in; there were sprinkler systems in there to protect that. Brian Crowson: Is there evidence of transits occupying space in there? Kirk Marcum: I believe it was sweet 900 there was some graffiti on the wall that would give us some evidence that someone from the outside might have made entry. Brian Crowson: Are the any calls from the Police department that they have gone out there for suspicious activity? Kirk Marcum: I'm not sure. The sprinkler system was removed a little over a year ago. Garry Cope: Would that have been allowed had the building not been preparing for a demolition? Kirk Marcum: No Sir Brian Crowson: I've got one more question. Between your two inspections was there any evidence that there was any attempt to correct any problems? Kirk Marcum: I didn't go back on the November 9th inspection. I think they had covered some of the holes in the roof. Mr. Harris: Am I to understand from your testimony that the owner's of the building approach the Fire Department to get approval to remove the sprinkler system? Kirk Marcum: Yes Mr. Harris: Do you have to get a permit to do that? What do they submit? Kirk Marcum: I believe there were some letter's sent back and forth on dismantling. Mr. Harris: You don't have those letter's here today? Kirk Marcum: No I don't. Mr. Harris: You made reference to a demolition within a certain time, who communicated that to you? Kirk Marcum: At that time all of our communication were being done through Lori Dunlop. Mr. Harris: Did you personally talk to Ms. Dunlop? Kirk Marcum: No it was done by one of the building inspector's that was taking care of that building. Mr. Harris: So when you told us that the approval was given because the demolition was going to take place at a certain time, that wasn't based on any conversation that you had with anybody connected with the building? Kirk Marcum: Other then the memo that came back to me from my field inspector. Mr. Harris: Which you don't have today. Kirk Marcum: No Mr. Harris: Who in the Fire Department would have given approval to disconnect the sprinkler system? Kirk Marcum: It was me. Mr. Harris: Is there anything in the Fire Code that specifies the conditions which you can approve disconnecting the sprinkler system? Kirk Marcum: Yes George Staples: Mr. McClanahan James McClanahan: I'm a Fire Prevention Specialist I work out of the Fire Marshall's office. I was at both of the inspections. The one in August and November. Brian Crowson: Did you see any evidence of any kind of attempt to correct any of the violations you guys were sighting? James McClanahan: No, like he stated there were some corrections made to the vents in the ceilings. I saw no other indications of any changes. George Staples: You personally witnessed the fire hazards within the building is that correct? James McClanahan: Yes Sir George Staples: That included the in-operational fire sprinkler system and the fire suppression system? The fire hazards that you have mentioned and there were pictures of? You were present through all of that? James McClanahan: Yes sir Garry Cope: Any questions of the board? In the time between the two inspections did you see an increase in the debris and garbage or was it pretty much the same? James McClanahan: It was the same. Garry Cope: Thank you. Any other questions? George Staples: We'd like to call Dave Pendley at this time. Dave Pendley: I am a building official for the City of North Richland Hills. George Staples: You are over the building code correct? You were out there as one of the people making the inspections? Dave Pendley: That is correct. George Staples: Generally speaking, for the material that is contained within the Notice of Hearing, you personally witnessed the stuff under general conditions and the structural hazards and some of the nuisance, faulty weather protection? Dave Pendley: That is correct. George Staples: Are you able to say as a person that works with the building code that the violations that were depicted were present? Dave Pendley: That is true. George Staples: Would you say that these violations are serious violations? Dave Pendley: Yes I would. George Staples: Would this be considered substandard? Dave Pendley: Yes, it is definitely substandard under these conditions. George Staples: Would it be fair to say that this is a gutted building? Dave Pendley: Partially gutted. The building has been demolished on the interior partially because the mall authority sold out portions of the building to various individuals when they had their closing sale. During that process, walls were demolished, ceilings were brought down, wiring was removed, and HVAC units were removed. Which in turn left the building partially gutted. George Staples: Between the time you made the first inspection and the second inspection did you observe anything different? Dave Pendley: There were some attempt to close up or at least board up some of the holes in the roof. There were still other holes there that were still open to the weather. Mr. Harris: I'm assuming that if we went out to look at the mall today, from the outside we couldn't see any of the problems that were identified in these photos? Dave Pendley: For the most part yes. Mr. Harris: Would you agree with me that the process is that you talked about removing the wiring is an initial step before you do over all demolition of the structure? Dave Pendley: That is basically correct. Mr. Harris: If I understand correctly there are people that will go in an reclaim materials inside the building for reuse. Dave Pendley: Right to my understanding that was done over a year ago. Mr. Harris: Would you agree with me that a lot of what we saw was the result of folks that had come in to reclaim the property? Dave Pendley: That would be fair. Mr. Harris: You said that you had seen some effort to board up some of the holes between the first and second inspection? Dave Pendley: There is quite a few. On the first inspection there might have been thirty different holes and on the second inspection there might have been twenty. Mr. Harris: The holes you're talking about are on the roof correct? Dave Pendley: Yes. Mr. Harris: From what you're telling me there may have been as many as twenty holes in the roof? Can you tell me the size of those holes? Dave Pendley: They would vary from 12 inches in diameter to several feet. Mr. Harris: How did you gain access to the roof to see the holes? Dave Pendley: When it is day light outside you can view the size of those holes just from looking from below. Mr. Harris: If I was standing on the outside of the structure would I be able to see those holes? Dave Pendley: Probably not. Mr. Harris: Is there any access to the roof from outside? Dave Pendley: When you say access you have to be careful. Normal access for people like you and I, no. If kids want to get to that roof they can. Mr. Harris: To do so however, they would have to get past the chain link fence on the outside. You would have to also find someway to work yourself up to the roof of the building. How tall would you say that structure is? Dave Pendley: It is fifteen in some spots and thirty or forty in others. Mr. Harris: On the holes that you did see on the roof were those completely open or were there some steel grid patterns on the holes? Dave Pendley: Some of those holes had steel grid patterns approximately 12-18 inches in diameter. Mr. Harris: The grids are the actual roof support? Dave Pendley: They could be, yes. Mr. Harris: So what's happened in some places that you saw where the roofing material had been pulled away from the roof support? Dave Pendley: Some of the areas were 8 to 10 feet square and those were attempted to be covered by plywood. The plywood had either been removed or striped off by the weather. Mr. Harris: In the case of these holes, it would be possible to get plywood, go up on the roof and repair the holes? Dave Pendley: It would be possible, but it'd take some work. Garry Cope: Questions of the board? Brian Crowson: These holes that we are speaking about on the roof, I realize some of them like you said were caused by the HVAC units and what have you. What other reasons would there be holes up there? Dave Pendley: Ventilation, not just the air conditioning equipment for some of the restaurant vent fans, restroom fans. That's why the range of the sizes vary. Brian Crowson: The fence that was brought up, who put that fence up? Dave Pendley: The owner's of the mall, Lori might be able to be more specific as to what company put the fence up. Brian Crowson: The fence was put up to keep people out? Dave Pendley: There is a construction site behind the mall as well. Garry Cope: Is there access to the roof from the interior of this building? Dave Pendley: There are several places. Garry Cope: Once you access the roof, what's the general condition of the roof? Dave Pendley: The roof is in poor condition. It's leaking profusely in some of the building. Some of us in the group were a little nervous about going into some portions of the building because of the mold. Garry Cope: I assumed all this mold was caused by leaking through the holes in the roof? The roof its self is leaking? Dave Pendley: Not everywhere. Garry Cope: But in places. Brian Crowson: The roof is tar and gravel I assume? Dave Pendley: Correct Philip Orr: Can you access the building from the lower level? Dave Pendley: I've known people that made a personal goal to get to a roof like that. So if they tried then yes they could. The doors from the ground level are fairly secured. Garry Cope: During Dena's description, I thought I heard where there are actual holes in the exterior walls? Tell us about the size. Dave Pendley: The hole in the exterior wall that I'm aware of is two feet or so. It was in an area near a loading dock. I'm not sure if a person can fit through that or not. Brian Crowson: What caused the hole? Dave Pendley: I have no idea. Garry Cope: That hole can be patched? Dave Pendley: Sure George Staples: That concludes the City's evidence at this time. We'd like to offer the other folk's to put on the evidence that they want to put on. Mr. Harris: We call Lori Dunlop. Lori Dunlop: 7112 Timberlane Dr. NRH TX 76180. Mr. Harris: What is your position? Lori Dunlop: I am the property manager. The ownership of the mall property. I work for Boulevard 26 Management company. Mr. Harris: Their under contract with the owner's of the property to maintain or manage the building as it currently exists? Lori Dunlop: Correct. Mr. Harris: The building is not occupied at the time. Lori Dunlop: Correct Mr. Harris: You don't have any agreement to allow them to make use of the building? Lori Dunlop; No sir. Mr. Harris: It seized being a retail center approximately when? Lori Dunlop: October 15, 2004. Mr. Harris: There has been some testimony about a fence that surrounds the shopping center. Who installed that? Lori Dunlop; The ownership of the center. Mr. Harris: How much did the fence cost to install? Lori Dunlop: Approximately $22,000. Mr. Harris: Have there been any efforts made to seal the exterior or openings? Lori Dunlop: Yes sir. All opening, glass, etc have been boarded up and since the mall has closed doors to the exterior have remained locked. Mr. Harris: You heard some testimony about an opening on a loading dock of some sort? Lori Dunlop: The only damage to an exterior wall is in dock 7 and a truck backed into the wall and broke the exterior skin. To my knowledge you can not enter through that opening. Mr. Harris: When did the truck break the exterior? Lori Dunlop; During the removal of the items from the building. Mr. Harris: How often do you personally visit the site? Lori Dunlop: At least once a month. Mr. Harris: What do you look for during that time? Lori Dunlop: I physically pull every door to make sure the doors are secured. I go into the building and inspect to see if there is any new damage or if anyone has entered the building. Mr. Harris: Do you inspect the fence? Lori Dunlop: Yes, I do inspect the fence for any breaks, any damage, and any areas where it may look like anyone has tried to come over the fence. I do this on a monthly basis. Mr. Harris: If you see anything that needs correction do you have a contractor that you have a relationship with that you direct to come out and correct these problems? Lori Dunlop: Yes sir. Typically I call the out immediately and I wait for them to get there. Mr. Harris: If there was an opening to the building at a loading dock, is that something you would have seen? What would be your reaction? Lori Dunlop: I would have it boarded up. Mr. Harris: When was the last time you went out to take a look at the shopping center? Lori Dunlop: I was at the building November 9th with the City officials and I visited the building yesterday. Mr. Harris: On the November 9th inspection did you recall seeing an opening at the loading dock? Was in such opening pointed out to you? Lori Dunlop: No sir. Mr. Harris: If it's there right now and you can find it what action would you take? Lori Dunlop: I would immediately call a contractor out to board it up and have it secured. Mr. Harris: Have you had problems with kids at this facility? Lori Dunlop: Occasionally we had some windows broken out and that is what prompted us to board up the facility. We did have one incident where security observed one of the children from a local schools go under the fence, across the property and go back out. In reaction to that we contacted both schools and sent letters out all the parents asking for their assistance as well. Mr. Harris: Did you make any efforts to repair the fence? Lori Dunlop: Yes sir. Mr. Harris: Currently do we have security on site? Lori Dunlop: Yes sir. Mr. Harris: How many days a week and what are the hours? Lori Dunlop: Seven days a week. Monday-Friday 4pm to Sam and Sat and Sunday they are there 24 hours. Typically one officer. Mr. Harris: Is he in a vehicle of some sort? Lori Dunlop: Yes sir he patrols the area at his time. Mr. Harris: Where is your office located? Lori Dunlop: Less then a block away. Mr. Harris: Do you have a chance to personally see the center on a daily basis? Lori Dunlop: Yes sir. Mr. Harris: Who is the security guard supposed to contact if he see's a problem? Lori Dunlop: He calls me. Mr. Harris: Are the security guards told to call you if they see an opening in the exterior wall? Lori Dunlop: Yes sir. Mr. Harris: What security outfit do you use? Lori Dunlop: Texas Industrial Security out of Fort Worth. Mr. Harris: How much does that run you a month? Lori Dunlop: Approximately $8,000 a month. Mr. Harris: You've heard some description of holes on the roof. Have you personally seen any? Lori Dunlop: Yes sir. Mr. Harris: Why have those not been corrected? Lori Dunlop: We brought a contractor in to cover all of the openings that were created by the HVAC units. The parts that were not re-covered are areas where there are still grading in place. I haven't physically been up there to measure it, but I think they are smaller then a person can get through. Mr. Harris: What is ultimately going to happen to this structure? Lori Dunlop: My understanding is the plan is to demolish it. Mr. Harris: Do you have any understanding why it hasn't been demolished? Lori Dunlop: There is a lawsuit pending on the property. Mr. Harris: Is it an arbitration lawsuit? Lori Dunlop: Yes Mr. Harris: Is it your understanding that there is a dispute between several parties about who has ownership of certain parts of the mall? Lori Dunlop: Yes sir. Mr. Harris: Has that dispute impacted the owner's ability to demolish the property? Lori Dunlop: I believe they are concerned that if they take the mall down it will in some way affect the lawsuits that are in place. Mr. Harris: Is the individual who has brought the lawsuit present in the council chambers today? Lori Dunlop: Yes Sir, Burk Collins. Mr. Harris: Have we asked Mr. Collins would he allow the building to be demolished? Lori Dunlop: I haven't been included in those conversations. Mr. Harris: You heard some discussion about debris being the structure. Is any of that visible from the outside? Lori Dunlop: No sir. Mr. Harris: How long have you been a manager of this property? Lori Dunlop: I've been a manager since February of 2003. The mall was still in operation. Mr. Harris: You've visited the mall how many times? Lori Dunlop: Everyday that I worked typically 6 days a week. Mr. Harris: You've heard some discussion and seen the debris, what's the source of that debris? Lori Dunlop: The debris is from the liquidation of assets from the interior of the building. In order to keep those items from going into landfills and being re-used. Mr. Harris: What you're talking about is copper, wire and other materials that can be claimed and recycled. Lori Dunlop: Yes Mr. Harris: In your estimation is all the debris that you saw in those pictures part of the building at one point? Lori Dunlop: Yes sir. Mr. Harris: So the material that is on the ground used to be in the walls, ceiling or someplace else. Lori Dunlop: Yes sir Mr. Harris: You heard some testimony about there being pizza boxes and tree limbs. Have you seen this material inside? Lori Dunlop: Yes sir Mr. Harris: How much percentage of the total amount of debris inside would you say? Lori Dunlop: A very small percentage. Mr. Harris: Are the owner's of the building prepared to remove that debris? Lori Dunlop: We have obtained bids to do that. Mr. Harris: How long would it take to remove the bid? Lori Dunlop: The bid is 30 days. Mr. Harris: Have you gotten the go ahead from the owner's to spend the money to remove the debris? Lori Dunlop: Not at this time. Mr. Harris: You do have the bids and you have communicated what it would cost? Lori Dunlop: Yes sir Mr. Harris: What would be the cost? Lori Dunlop: The bid's range from $125,000 to $175,000. Mr. Harris: Am I also correct that, that material would also be removed once the entire structure was demolished? Lori Dunlop: Correct Mr. Harris: So all we'd be doing by removing the debris now would be taking it out in advance when it has to be removed by the demolition. Lori Dunlop: Correct Mr. Harris: Have you sought bids to demolish the shopping center? Lori Dunlop: Yes sir Mr. Harris: How many demolish companies did you contact? Lori Dunlop: Between 6 and 8. Mr. Harris: How many did you get bids from? Lori Dunlop: All Mr. Harris: Did you then review those bids in an effort to select the one's that you thought would do the best job? Lori Dunlop: Yes sir Mr. Harris: How many was that reduced to? Lori Dunlop: Two Mr. Harris: What were those two companies? Lori Dunlop: Linda Mood Construction and Lloyd Nabors Demolition. Mr. Harris: (handing bids to the board members) Mr. Harris: With respect to all the bids you received what was the shortest period of time any of them said to demolish the mall? Lori Dunlop: 3 months Mr. Harris: And what was the longest period of time? Lori Dunlop: 5 months Mr. Harris: Which of the 6-8 bidders did you feel would do the best job? What was the timeframe? Lori Dunlop: One said 3-4 months and one said 4-5 months. Mr. Harris: So from your stand point based on that, the shortest amount of time we can expect would be 3 months the longest we could expect would be 5 months? Lori Dunlop: Yes, that is my understanding. Mr. Harris: Can you just pick up the phone and call Mr. Nabors and say I need you out there tomorrow or there certain things that have to be done before they can begin their work? Lori Dunlop: There are certain things that have be done. Mr. Harris: Does the building contain asbestos? Lori Dunlop: Yes Mr. Harris: Does the asbestos have to be removed before any demolish can begin? Lori Dunlop: Yes sir. Mr. Harris: Do you have to hire a consultant to prepare a asbestos removal plan? Lori Dunlop: Yes sir Mr. Harris: What's your understanding of what that consultant has to do with that plan once he's prepared it? Lori Dunlop: They have to file it with the Texas Department of Health. Mr. Harris: Some approval is necessary to the TDA correct? Lori Dunlop: That is my understanding. Mr. Harris: Is that anything that is under our control to the length it takes? Lori Dunlop: No sir Mr. Harris: The 3-5 estimate assumed that there would be some time to obtain the asbestos removal or was the 3-5 months after the asbestos has been removed? Lori Dunlop: I believe that includes that. Mr. Harris: In addition to the development of an asbestos removal plan for this sort of work is it necessary to develop a storm water discharge plan? Lori Dunlop: Yes sir Mr. Harris: What does that Intel? Lori Dunlop: We would have to hire someone to prepare that plan and submit it to the city and obtain approval. Mr. Harris: Additionally there is still some utilities that are in existence or what I'll call live at that location? Lori Dunlop: Yes sir. Mr. Harris: Is there one sewer line that runs sort of through the center of the property? Lori Dunlop: Yes sir Mr. Harris: Is it still in use? Lori Dunlop: Yes sir Mr. Harris: Does it serve a restaurant sort up upstream? How deep is that? Lori Dunlop: To my knowledge at the shallowest point it is 4 feet deep. Mr. Harris: How deep is the foundation for the mall? Lori Dunlop: According to what I've been told approximately 3 feet. Mr. Harris: So would it be necessary as the manager to do something about that sewer line before you could begin the demolition project? Lori Dunlop: Yes sir. Mr. Harris: Are there electrical transformers onsite? Lori Dunlop: Yes sir Mr. Harris: Who can remove those? Lori Dunlop: They are the property of TXU. Mr. Harris: Do they have to be removed before demolition can begin? Lori Dunlop: Yes sir Mr. Harris: Do you have any estimate from TXU as to how long it would take to remove the transformers? Lori Dunlop: Yes sir, I've been told it would take from 4-6 weeks from the date that the order was signed and fees were paid. Mr. Harris: Is that typically something that is undertaken before the actual demolition begins? Lori Dunlop: Yes sir Mr. Harris: Are there other active utilities at that site that need to be addressed before demolition can begin? Lori Dunlop: The City is doing camera test on both water and sewer lines to establish any issues that may exist on that matter. Mr. Harris: Has the City completed that work? Lori Dunlop: No sir Mr. Harris: Have they given you any estimate as to when the work would be completed? Lori Dunlop: Sewer part should be finished sometime next week. I have no idea on the water. Mr. Harris: Is it necessary for the City to complete that work before demolish can begin? Lori Dunlop: In my opinion yes. Mr. Harris: Is demolish cheap? Lori Dunlop; No Mr. Harris: What's the amount of the bid? Lori Dunlop: For just the building the most competitive bid is approximately $640,000. Mr. Harris: In order to pay for that will the owner's have to borrow money? Lori Dunlop: To my knowledge yes. Mr. Harris: So in addition to everything else we've talked about there is also a necessity of going out and getting financing. Lori Dunlop: Yes to my knowledge. Mr. Harris: Is it a fair statement to say there are a lot of moving parts that have to come together in order to demolish a building? Lori Dunlop: Yes sir Mr. Harris: Based on your experience, is it your opinion that demolition of this building is more likely to take 5 months rather then 3 months? Lori Dunlop: This is my first demolition. Mr. Harris: There not willing to guarantee 3 months? Lori Dunlop: No sir Mr. Harris: The fire sprinklers have been disconnected is that right? Lori Dunlop: Correct Mr. Harris: Is the building currently heated or air conditioned? Lori Dunlop: No Mr. Harris: Would you be concerned about pipes bursting if we had freezing conditions? Lori Dunlop: Yes sir Mr. Harris: If there was a leak, would that be obvious from the outside of the building? Lori Dunlop: No sir Mr. Harris: Did we ask the City for permission to discontinue to sprinkler system? Lori Dunlop: Yes Sir Mr. Harris: Do you recall giving them an estimate about conducting a demolition? Lori Dunlop: Not that I'm aware of Mr. Harris: In other words when you were given the ok, did someone tell you that they will let you turn off the sprinkler system but only if you have the building demolish within a certain time? Lori Dunlop; No what was told to me was that we were allowed to turn off the sprinkler system when there was nothing of value in the building. The fire department told me that. Mr. Harris: You recall who? Lori Dunlop: I'm sorry I don't. Mr. Harris: Have you spoken to several people in the fire department? Lori Dunlop: Yes sir Mr. Harris: When was the sprinkler system turned off? Lori Dunlop: September 15, 2005. Mr. Harris: The city was aware of that and yet nothing has been said to us until August of 2006? Lori Dunlop; Not to my knowledge Mr. Harris: Did the fire dept make any requests to keep any fire apparatus in the building? Lori Dunlop: We were asked to maintain the fire extinguishers. Mr. Harris: How many are in the building? Lori Dunlop: Approximately 10-15. Mr. Harris: Is there any periodic inspection to the interior of the building and how often? Lori Dunlop: Yes sir, once a month. Mr. Harris: Do the security guards know where the fire extinguishers are in the building? Lori Dunlop: Yes sir Mr. Harris: Do they have keys and access to the interior of the building? Lori Dunlop: Yes sir they do. Mr. Harris: So if they saw smoke or something else they could respond immediately. By calling the fire department and using the extinguisher. Lori Dunlop: Yes sir Mr. Harris: Have you ever visited any other shopping mall that are waiting to be demolished? Lori Dunlop: No sir George Staples: You were the person who basically got the sprinkler system turned off is that correct? Lori Dunlop: A combination of myself and Buddy Campbell who is the operation's manager at the time. George Staples: Was that a part of the process of selling off the interior? Lori Dunlop: Yes sir George Staples: At that time was there a lawsuit in place? Lori Dunlop: I don't know the time of the lawsuit but I believe there was. George Staples: There was a plan to demolish the building correct? Lori Dunlop: We had obtained bids, I don't know what you mean by plan. George Staples: You wouldn't get the bid's unless you're thinking about demolishing it. This lawsuit existed at that time. Lori Dunlop: I don't know the exact date. I believe it did. George Staples: Why didn't you have it demolished then? Lori Dunlop: I haven't been given the go ahead by the ownership to do that. George Staples: The ownership is afraid to demolish it but they still striped it and sold everything out. Didn't they worry about that? Lori Dunlop: I can't answer about the ownership. George Staples: You don't know why the property wasn't demolished before the lawsuit. Lori Dunlop: No sir I'm sorry I don't. George Staples: The place has been closed since 2004 hasn't it? Lori Dunlop: Yes sir. George Staples: So this business of shutting down the sprinkler system and starting the striping was in September of 2005 if I understood you. Lori Dunlop: Correct George Staples: You don't know why it was demolished before that? Lori Dunlop: No George Staples: You also indicated that the transformers belong to TXU and they have to remove them? Why haven't they removed them? Lori Dunlop: There is a cost involved and they expect the owner to bear that cost. George Staples: So what you're saying is the only reason that hasn't been done is that the owner isn't willing to pay for it. Lori Dunlop: I guess so. George Staples: It's not because he's worried about the lawsuit it's because he'd have to pay money? Lori Dunlop: I don't know his thoughts I'm sorry. George Staples: If you're going to talk for him I get to ask you those questions. As far as the transformers that's not because of the lawsuit it's because he hasn't paid to do it. Lori Dunlop: Correct George Staples: You say that you had gotten bids to have the place cleaned up inside correct? Lori Dunlop: Yes sir but I just got the bids yesterday. George Staples: Did you get copies of the notices that the City sent out? Lori Dunlop: Those were sent to the corporate office in California. George Staples: You didn't get them? Lori Dunlop: No sir Brian Crowson: I know you worked for North Hills Mall for around twenty years is that correct? Lori Dunlop: Yes sir Brian Crowson: You've seen many management changes I'm sure. I heard you mention Burk Collins. Is he part owner of this? Lori Dunlop: He was part owner in North Hills Creek Mall Lp. I believe. George Staples: Mr. Collins does plan to speak. Brian Crowson: In the past twenty years, have you witnessed anybody gaining access to the roof from the outside of the building in years past? Lori Dunlop: Not that I'm aware of. Brian Crowson: It seems like when I was a police officer here for the City, we had a call or two for that. I can't remember exactly what it was. It seems like somehow somebody got access to the roof. Lori Dunlop: The roof hatches have locks on them. Brian Crowson: There were ladder's on the exterior of the building correct? Lori Dunlop: Yes Brian Crowson: What was your reason for putting up the fence? Lori Dunlop: We were trying to move the public away from the building. We had begun experience with window's being broken out. Brian Crowson: You mentioned the Fire Department mandated that fire extinguishers be left on the property. You said you had a security guard that had access to them. Would it not be unreasonable to think that would not be adequate to putting out that large of a fire? Lori Dunlop: There are also fire hydrants on the property. Brian Crowson: Yeah but security personal does not have equipment or experience to do that correct? Lori Dunlop: Correct, the security does have a cell phone with them onsite at all times. Philip Orr: Are the fire extinguisher's up to date and in good working order? Lori Dunlop: To my knowledge yes. Brian Crowson: Those have to be inspected every year or two. You would have to be there for those inspections to occur. Lori Dunlop: Typically we have a fire extinguisher contractor come in and recharge those at the date of expiration. Brian Crowson: When was the last time that was done? Lori Dunlop: Sometime last year, I couldn't tell you the date. Philip Orr: You would be responsible for the building and the grounds? Lori Dunlop: Yes sir Philip Orr: When they were tearing things out and selling things off did you participate in this? Lori Dunlop: I oversaw the operation yes sir. Philip Orr: Were you not concerned at all when you saw this going on and the testimony we've seen today? Lori Dunlop: I was under the impression the building was to be demolished but I did not have a timeframe for that. Philip Orr: If you were responsible for that you should have. Lori Dunlop: According to my understanding the demolish would remove all the debris with conjunction to the building. Garry Cope: Any other questions? Mr. Harris: Are there any ladder's on the exterior or the interior? Lori Dunlop: There are roof hatch ladder's on the inside of the building. Mr. Harris: We call Burk Collins Burk Collins: 1848 Norwood Plaza, Hurst TX. Mr. Harris: Mr. Collins, are you in a dispute with TX MERV LP, TX BERG LP and La Verne Butterfield. Mr. Collins: I'm in a dispute with several of Michael Kest's inanity. Mr. Harris: Does the dispute involve the North Hills Mall? Mr. Collins: That's correct. Mr. Harris: Are you claiming that you have some sort of ownership interest in that mall? Mr. Collins: I'm not claiming I do have 50% ownership in that mall. Mr. Harris: Have you been approached by Mr. Kest about demolishing the building? Mr. Collins: He's never asked me. Mr. Harris: Has he asked your representatives? Mr. Collins: If he has, they haven't told me. Mr. Harris: Would you object to the building being demolished? Mr. Collins: Yes I would. Mr. Harris: Why Mr. Collins: Because it devalues my collateral. Mr. Harris: So if Mr. Kest asked you to demolish the building you would object? Mr. Collins: Yes sir Mr. Harris: If he demolished the building you would attempt to use that in some way in the legal you two are currently involved in. Mr. Collins: Absolutely. George Staples: Anything you want to tell the board today? Mr. Collins: Yes sir. The reason I want to speak today is I've been through about three years of litigation on this case and spent many of hundreds of thousands of dollars. I was removed from this property as the general partner and had I of stayed with this property it wouldn't look like this today. I own property all over Dallas, Ft. Worth and I don't have a single property that looks like this. There has been a lot of false statements made in this case today. There was one made here that I'm surprised that council here didn't correct it. Ms. Dunlop stated that filed a lawsuit. That is incorrect. Mr. Kest removed me as general partner and sued me and I simply counter sued him. I had this mall 85% pre-leased, totally designed and ready to go and Mr. Kest is the reason we're at where we are today. I can't discuss the details of the case but I wanted to set the record straight. I'm surprised that Council didn't correct that. George Staples: You don't dispute the condition of the mall today. Do you? Mr. Collins: I haven't been on the site but looking at the pictures I would be ashamed. George Staples: You don't dispute what the condition is that they have testified to. Do you have any interest in spending your money to do anything with the mall? Mr. Collins: No Garry Cope: Does the board have any questions? Brian Crowson: You do claim 50% ownership. I know in the past that the building as we know as Foley's, that Foley's owned that property. Mr. Collins: Yeah saying 50% of the mall is probably not an accurate statement. When we purchased the mall we purchased all the inline space. Mr. Kest purchased the main anchor stores. Brian Crowson: Seeing that you do claim 50% ownership you should be help at least 50% responsible for the upkeep. Mr. Collins: Well you're asking me to get into some legal issues and as much as I'd like to answer your question I prefer not to go any further with that. Brian Crowson: 1 understand that. I am familiar with some of your developments here in North Richland Hills for example and I know the City would like to see the some sort of income from that Mall. You do not want that demolished. Mr. Collins: I want the mall redeveloped into a quality product but I want it done in a fair basis. Brian Crowson: If this lawsuit was settled, you would have some sort of action plan to get this off an going? Mr. Collins: If I wind up with the mall, I'd have this thing developed within 18 months. It's a legal issue so who knows? If Kest wins or we settled, I'd help him. It's just terrible what has happened to this. Brian Crowson: I know you can't go into anything but it seems like he wants it all for himself, and you want at least your share of it. From listening to you talk you want this mall to be a mall again, I don't know what his take is. Mr. Collins: I have developed in this city for thirty years and I'd love to see that Mall developed. I can't go down the drain doing it. Brian Crowson: Do you know what his plans would be? Mr. Collins: He says he's going to develop it but then I hear that he plans to sell it. Brian Crowson: When you say he's is trying to sell it, you mean his share? Mr. Collins: I've had brokers out in the field tell me that he's talked to people about selling it. It's just hear say. Brian Crowson: Would you buy his share out? Mr. Collins: Sure Mr. Harris: Does your development plan involve demolishing the existing mall? Mr. Collins: Probably 60-70% of it. Mr. Harris: When did your legal disputes begin approximately over this mall? Mr. Collins: I think we owned it about a year before it started. Mr. Harris: I'm looking a for a month or a year. Mr. Collins: I'd be guessing, it's been about 5-6 years ago. Mr. Harris: Legal disputes you're having with my client began perhaps in 2001. Mr. Collins: Could be Mr. Harris: Clearly were you in court by 2002, 2003? Mr. Collins: I'm sure we were. We've been in court 3 maybe 4 years. George Staples: I have a request at this point. Having heard the testimony concerning what the situation is. It's pretty obvious the only reason it hasn't been demolished it the owner doesn't have the money and has a legal dispute. That leaves the City and its citizens with a mess on our hands. As much as we hate doing it. We think it's time to do something about this and move on. It doesn't appear that thing has a lot of value left in it. We are asking you to consider making some findings and then ordering some relief. What we have in mind on this thing is that you make a determination that its appropriate to take sometime within the next 30 days for the owner to take out a demolition permit. That because it's going to take more then 90 days to complete you need to require a bond on this. There is four properties here. You've heard these estimates for the cost. I don't know what it is but it seems like a million dollars ought to be appropriate for something like this. We think that January 15th is an appropriate deadline to post a bond like that. That demolition ought to be complete by late March. We think if we break it down it'd be a lot easier, because we're not that firm as to what they have to do. We think they ought to have to start within 75 days of this order. We think it ought to be through within sixty days thereafter. If they need more time they can start sooner. That gives them 120 days from today's date to get the mall down. We think this is one project so we lumped it in. I've put together four order's and I'm sorry that there is scribbling on them but I've tried to take into account what you have heard today about the time and everything else. I don't question the intent of any of the parties, but we've got a problem and we need to deal with it. I think it's appropriate that the board having heard the evidence it's obvious that that things a mess. It's been striped and gutted, they intended to demolish it but it didn't happen. It's been sitting there in this condition. I don't think that those rodents need to be there. This thing violates so many codes you saw how we had to present it. Now having said this, I need to give Council and Mr. Collins a chance to respond to this. If anyone wants to look at the proposed order I'd be happy for any body to take a look at them. That is going to be our recommendation for the board. Garry Cope: Yes and then I'll have some question's of your proposal as well. Mr. Harris: We have a couple of points we'd like to make. One is I don't think there is any question that the board can only do what is authorized in the ordinance. Unfortunately the way the City's ordinance is written you can't do anything with respect to this building. I know your reaction to me is you've got to be off your rocker to suggest that, but if you take a look at Section 98-461 in the Substandard Board ordinance, it says these regulations or intended to, and I paraphrase, establish minimum standards for the continued use and occupancy of all buildings. Every person that testified in front of you said that this building is not being used or occupied to begin with. So what these standards go to are buildings that are being used and occupied. That makes certain intuitive sense if you discontinued use of the building and nobody is occupying that building then why is it necessary to satisfy all of these standards? Why should we have commodes and sinks when nobody's occupying the building? Why should we have heating and air conditioning if nobody's using the building? Why should we have electrical service. Essentially what the city is asking is to put the building back into shape where it can be used and occupied when we all know it's not going to be used and occupied. So the ordinance allows you to direct things to be done when you have a building that is going to be occupied but not when you have a building that is not being used and occupied. Now from a fire hazard stand point I think you've heard testimony. The hazard hasn't increase. It's simply material that was already present in the building that has been moved around. Apart from that I asked the Fire Chief about being able to discontinue the use of the sprinkler system and the reason I did that is because again in your packet the staff shared with us under 2000 International Fire codes Section 311 Vacant Premises. We can see this is vacant. 311.2.2 Fire Protection says specifically fire alarms, sprinklers shall be maintain in an operable condition at all times for a vacant building. Makes sense. It has two exceptions, the second exception says where buildings will not be heated and fire protections systems be exposed to freezing temperatures. Fire alarm and sprinkler systems are permitted to be placed out of service. Everyone agrees that it's subject to freezing temperatures and the Fire Department in fact allowed us to put it out of service consisted to what your own fire code allows. So the fact that there's neither a fire alarm nor sprinkler system in place is not a violation of the Fire Code. It specifically exists as an exception of that situation. So from our stand point the board does not have the ability to order the demolition of a structure that is not in use or occupied. There is no requirement, in fact there's a specific exception that allows us to continue to have that building in place without an alarm system or sprinkler system. We are however, have offered to go ahead and address the debris issue inside within a period of time. From our stand point quite frankly if you disagree with all of this and say Mr. Harris that's interesting but we disagree with you, and if you still want to demolish the building then the only evidence that you've have heard today is from Mr. Dunlop. That's 3-5 months and given everything that's going on out there that we're probably looking at a 5 month period this board has specific authority under the statue that allows the ordinance to be established to set whatever period of time that you want that you think is appropriate based upon the evidence that you have heard. We would submit to you that based upon what you've heard in the legal difficulties that are involved the period of 5 months would be an appropriate amount of time. From what Mr. Staples has suggested is that rather then (60) sixty days from February 15tH that we go with (90) ninety days from February 15tH. If the board is inclined to require demolition of this structure. I'm sort of hearing two things from Mr. Collins and he was very straight forward which is we've been delayed in demolishing this building because he has said he would use that against us in a lawsuit. We are in an impossible position. We have attempted to maintain the facility in a way that protects it from the citizens and for the citizens. Therefore we will submit to the board that if you incline to require demolition even though we think it's a legal matter, you don't have that ability and that we take a look at (90) ninety days from February 15tH Brian Crowson: So you're inclining to have it demolished yourself? Mr. Harris: Yes Brian Crowson: So if we do not have the authority to do this you would take it based on your client that you guys would demolish this. Mr. Harris: We would. You've heard Mr. Collins. Brian Crowson: You can not demolish it because of the pending litigations? Mr. Harris: That is correct. Brian Crowson: If we can not based on what is written here is there not a nuisance City ordinance that can be done through nuisance or can we prove criminal activity? George Staples: Let me answer you in broader fashion, because I don't agree with council's opinion as to what 98-461 does. That's like a whereas clause. The rest of the ordinance establishes what you can do. It basically says these conditions establish when something is substandard. Then it goes on to say if its substandard you can order it to be demolished. Also it does cover nuisances. One of the things it says in there is if a nuisance is not corrected that also gives you jurisdiction to do it. We also disagree with the reading of the provision out of the fire code. That cover's vacant premises. If you read the whole section it says when there's not contents or storage. All of that debris and trash is contents that's in there. It's one thing to say you don't have to maintain the sprinkler system live if there's nothing in there to do but if it's got trash in there then that's a different story. The other piece of the thing is, it says that it will be maintained as a dry system. That means it is operational, not dismantled. It means you can cut off the water, it doesn't mean you can take the thing apart. I was handed this by staff. Having said that if you guys don't have jurisdiction to this and you order something done, that's going to be my problem and I tell you right now I'm not worried about it. You have the jurisdiction to do this, I assure you. It's very much within your jurisdiction. Now I really think before we get through with this thing you owe Mr. Collins a response because he is being affected by this. Ask me questions, but we need to get everything we can on the record. We stick with our recommendation. I'd like to feel though that I'm representing the City in this situation. Mr. Harris: We said we would address the debris. We intend to be successful in the legal dispute. At the end of the day we plan to be in control. Ms. Henry can speak to that. We intend to demolish it so why would we go through the expense of putting electrical systems back in and the lavatories back in. Brian Crowson: Is that what the City's asked you do to? Mr. Harris: Yes, we'd be putting back in what we plan to take out. Which doesn't make any sense. At least from the debris stand point I can understand. We've talked about picking that up and taking care of that. Brian Crowson: What is your client's intent? Mr. Harris: To demolish and redevelop it. It's in a prime location. Neither parties are making any money. Garry Cope: You do realize that our concern is not rather you occupy the building, repair it or tear it down. It's the condition of an empty building. The repair of this situation is more our concern. Mr. Harris: I understand and frankly I haven't had a chance to see the building until today. There was short notice on this. I was expecting to drive by and see something that was listing to one side and had gapping holes and frankly from driving the exterior it doesn't strike me as an eye sore. I was up in Collin county this morning and drove by a boarded up outlet mall that doesn't look any different from this one. I understand the frustration about the tax base but that's tied in the litigation. If it were over and we were successful this building comes down immediately and the lands not going to stay vacant long. That's part of our frustration. Your asking us to do what the City would like is what we had hoped to accomplish a couple of years ago. I disagree with Mr. Staples and that's what makes for horse races in lawsuits about what these ordinances and fire code means. I would submit that if the word doesn't mean what it says it shouldn't be in the ordinance to begin with. Dry status relates to the stand pipe not sprinkler system. You guys can read the ordinance yourself though. If your going to order us to do it at least give us the period of time that is reasonable to accomplish it. Bob McCary: You don't think there is a fire hazard there? Mr. Harris: I honestly don't think so. We've also offered to address the debris that is in the interior. Brian Crowson: You don't have the experience to make that. Mr. Harris: No I didn't suggest that I did. I was just answering the question. Brian Crowson: That property that you drove by that was boarded up you would you be representing that building? Mr. Harris: No, one boarded up building is enough. Garry Cope: Is there anyone else who would like address the board? Mr. Collins: I'd like to say that I find it heard for my heart to bleed for Mr. Kest. This is a billion dollar organization and had he honored his part of the partnership we wouldn't be here today. He had the choice at the time that he filed that lawsuit if you want to close it close it but leave the water on in the landscaping and mow the grass, keep the building up. It looked pretty decent today but his desire to get his hands on a few thousand dollars he striped that building out and caused this problem. He's wanted to say Mr. Collins caused this problem. His client caused this problem, that is why we are in the mess. Garry Cope: Any questions? Brian Crowson: I was going to say that obviously both parties do not want this building demolished, well I take that back. Mr. Harris: In fact you heard from Mr. Collins that he would demolish 60-80% so the point is we'd demolish the whole thing and he'd do 60-80% but he's un-willing to say he won't use us demolishing the building against us in a lawsuit. What are we supposed to do? Brian Crowson: He has a plan for the property and you don't know. Ms. Henry: He does have a plan with respect to the property. Then they have been building the medical office that you're aware of. That's just not what we were supposed to be addressing at this hearing today. Bob McCary: Who asked to fire sprinkler off? Lori Dunlop: The ownership of the mall. George Staples: I need Mr. Cunningham to say what he needs to say. Mr. Cunningham: I am the City Manager. I did want to clarify something. When the City of North Richland Hills entered to an agreement with Mr. Kest several years ago the intention that Mr. Kest made to us, the representation that Mr. Kest made to us and that has been present to civic groups in North Richland Hills is the mall would be demolished within 6 months from the time we signed that agreement. He told me many times that he would demolish the mall and do that in a timely matter. This was way before any kind of litigation. He made intentions to do that but he never did and now the contention that he is making is that the reason he can't demolish it is because of litigation. He had many months to do that prior to that time. He told me personally, Ms. Dunlop and she represented some of the development plans and the mall would be coming down. In fact it was supposed to be coming down in the summer following the time that we approved the incentive agreement. I just wanted to make that comment because there was plenty of time to demolish it prior to litigation and the litigation may be impacting his desire to do it but it certainly was available to him prior to that. I want you to be familiar with that because in my opinion this is an excuse rather then a reason. Brian Crowson: When you entered this agreement with Mr. Kest was Mr. Collins involved? Did you know his connection with the property? Mr. Cunningham: He was not involved with the agreement. Brian Crowson: Were you aware that he was part owner? Mr. Cunningham: No t was not. Ms. Henry: If I may speak to the issues you've addressed here about the timing and about what Mr. Kest knew about at the incentive and such. I have been representing him in the litigation that was going on in Tarrant County and that has been transferred to arbitration. The suit was originally file in January of 2004 as an injunction relief action sought by Mr. Kest against Mr. Collins and then the matter was referred to arbitration. Nothing happened and Mr. Collins filed a claim against Mr. Kest and TX Mall claiming he was a 50% owner. At that time he filed a lest penance but didn't notify us and we didn't not know about it until December of 2005. It was because of that that any action that Mr. Kest may have taken in 2004 and the early part of 2005, he understood he was the sole owner of the property. He felt he could be doing thing with the property. When he found out someone was claiming 50% ownership of the property lenders and such were not willing to loan money for this development to go forward. So we filed an action with the state court in Tarrant County to get the penance removed. The court granted our motion. We thought we could proceed, well Mr. Collins appealed that and it went to the court of appeals. We thought we were going to prevail on that so in the summer of 2005 the Kest entities and mall ownership were still getting ready with the salvage sale and everything and I believe in October of 2005 that we get notice from the court of appeals that reversed it, so the put lest penance back in place and we realize we have to start over with respect to that. So we filed another motion at State Court and tried to get it removed and then the judge sent us back to arbitration in California. So in representing my client it hasn't been false promises and no intention. His hands truly are tied. There is a hearing set in February that we hope to get it removed so that we may go forward with the demolition. Larry Cunningham: If that is true what you have said Mr. Kest misrepresent to the City of North Richland Hills from the very outset if he was aware of that. He entered into an agreement with us in bad faith. Regardless he did represent that he would demolish the property within a time frame and he did not do so. Mr. Harris: It's a cloud on the title. It basically says that somebody else is claiming an interest on the property and if anybody take lest penance they run the risk of losing whatever interest they have. If there is one on the property it is virtually if not impossible to either get financing or sell the property. I hear what the City Manager says, we'd have to go back and set some timelines. George Staples: Let me confirm that, with a lest penance there it is no way interfered with his ability to tear down the mall it did however interfere with his ability to borrow money. He has been under no legal impediment to go ahead and tear that thing down. Did you have further questions? Philip Orr: He's maintaining that he can't do anything until the lawsuit is settled. George Staples: He doesn't want to do anything until the lawsuit is settled. He can do it. Philip Orr: If he can't do it and nothing is going to be done until the lawsuit is settled why are we wasting our time? George Staples: We want you to order him to do it. We are asking you to do is to order him to do and if he doesn't do it as you order it then the City take it over and we will tear it down and put a lien on the property. That's what we're doing. Garry Cope: Ms. Henry can we get your name and address? Ms. Henry: Jennifer Henry with Thompson and Knight my address is 801 Cherry St. Suite 1600 Ft. Worth TX 76102. Mr. Collins: I'm amazing that Council keeps going down this blind road. When we got the lest penance, I instructed my law firm to notify the other side. It doesn't do any good for me to get one unless they know it's on there. Ms. Henry was notified and I'd be happy to give you a copy. Garry Cope: Are there any further comments? Does anyone else want to address the board? The board is going to discuss the proposal of the city. We might want to go over this proposal as the City Attorney has given us. Any comments? Brian Crowson: Mr. Staples, I've got a question for you. If the board decides to go by your recommendations here and Mr. Harris' client is so un-inclined to do what is deemed by the board, the City will bear the expense is that correct? Do you have to get a separate demolition bid? George Staples: We would have to under that set of circumstances. There are several possibilities. The order basically gives them so much time to perform and if they don't do that then we have to turn to the lien holder and say ok you've got the same amount of time to do it. There's other possibilities in there. If he goes with this and does the bond, we would never go to the lien holder because we would be secured. Let's just say that all that fell apart and neither one of them stepped up to the plate. At that point then the city's going to have to perform essentially what is public work, which means that we would have to go out and request bids and obtain contracts and award those through the city council for the demolition work. We would not have to come back to the board again. Brian Crowson: How long does that take to get the bid? Do we need to discuss the time that you need? George Staples: No sir, it doesn't give us a time to do it. The city can't do things as efficiently and cheaply as a private party would. The way we drafted this order is we would just do it the way we had to do it. We'd have to ask the City council where that money's coming from as well. Brian Crowson: This property is apparently worth more then the demolition? Do we know what the value is? George Staples: It's on the tax rolls, it in the million's. It's in excess of fifty acres. Brian Crowson: What North Hills Hospital is doing out there, are they consuming some of that property are or they using that to store equipment there. George Staples: There is something going on. Mr. Kest didn't just own the property with Mr. Collins, they also bought up other parcels of property. My understanding is they have sold some of the property to the hospital. The land only value is $15,471,647.00 . Brian Crowson: What is the City's share of tax on that? George Staples: We don't get anything like that. We get 60 cents for the 100 dollar. We get a percentage of the value as taxes each year. Obviously we would be interested in having it developed because it was worth 80-90 million when it had business and that doesn't include the fact that we get sales tax off of any retail business. Brian Crowson: Ms. Dunlop showed us some of her bids which looked like it consumed the parking lot and asphalt. George Staples: We wouldn't be taking up the asphalt. We would much rather it be done by the private person. Failing that and that is the reason that we put the bond. If they went in and did, put up the bond, if they didn't do it then we would pay their contractor. Mr. Harris says his only reservation is that he would prefer 90 days instead of the 60 days in the final portion of it. Garry Cope: That would bring us to something else we would discuss and that's the time frame. We have to decide what to do? Rather or not we decide on repair or demolition. We need to decide on a time frame. I do not agree with Mr. Harris that isn't not in our per view as a board that we are not allowed to make order's that keep the buildings in our city clean. That is what we do. Out there on that monster lot is nothing but a big. No different then other little barns that we've set here and deliberated about. The people have gone and put debris and trash in there and it's become a health hazard. It can set there empty, if they want it to. They can not allow it to set there in that manner. We should order them at the very least to clean it up and then they can fight over the shell all they want to. Brian Crowson: There are no plans to improve it and Mr. Harris stated that they don't want to repair it. They want it on their time frame. Mr. Collins doesn't want it demolished. Garry Cope: Why should we as citizens of this city be held captive to these kinds of conditions and the threat they pose to us while they fight about it? Bob McCary: Something needs to be done. It's been two years now and the city has been deceived long enough. Brian Crowson: I agree. I'm sure the City would like an establishment that brings in money. Garry Cope: Our responsibility is to see that structures are maintained that are in our City limits. Do any of you have a motion or comment? Philip Orr: I make a motion to accept this document as written by the City of North Richland Hills. Brian Crowson: I'll second that motion. Garry Cope: We have a motion and a second. All in favor say I. Let the record show the vote was unanimous. (4-0). With that I bring us to adjournment. 4. Adjournment The Vice Chairman adjourned the meeting at 5:23p.m. Chairman: Vice Chairman: ~~~