ALPHARETTA, Ga. — City Council members took Alpharetta Mayor Jim Gilvin and staff to task Oct. 25 for signing an agreement last year that obligates the city to share costs for maintenance and repair of the dam at Lake Windward.
The document, signed in January 2020, came to light only recently when the Windward Community Services Association notified the city that it wants to be absolved from any financial responsibility for the risk of flood damage downstream. The association is calling on the city to execute a contractual indemnification and hold it harmless for any damage downstream arising from failure or damage to the Lake Windward dam.
Council members Donald Mitchell and Karen Richard said they knew nothing of the agreement until two months ago, and it has taken them that long to track down emails and correspondence that led to its signing.
“It felt like a very secretive thing that didn’t get out,” Mitchell said. “It felt like it was done in the dark of night.”
Mitchell said it is incomprehensible that the city would sign an open-ended agreement to share expenses without setting a limit or without a clear idea of what those expenses would be.
Councilman John Hipes said he, too, was in the dark, and he agreed with Mitchell that information about the agreement should have been shared with the full council. But he also said Mitchell should have brought it to everyone back in August.
Richard said she wants to know who determined the city should pay half the costs.
While the contract provides the HOA authority over the dam’s maintenance and inspection, it obligates the city to pay 50 percent of the costs. It also requires both parties to maintain insurance that covers the risks of loss associated with the operation and maintenance of the dam.
Whether a mud fence or a mortared mountain, the Georgia Environmental Protection Division regulates more than 4,000 dams in the state. The agency’s Safe Dams Program monitors all but the state’s largest dams, those operated by the U.S. Army Corps of Engineers.
According to the city’s internal emails and correspondence, in late 2018, the EPD notified the Windward Community Services Association that the Lake Windward dam was scheduled to be reclassified as a Category 1, meaning its improper operation or failure would result in a probable loss of human life.
With this reclassification, the EPD also named the city as a co-owner due to the public road at the top of the dam.
Owners of Category 1 dams are required to submit a permit application, complete an assessment of the dam (including hydrologic analysis of the pond), complete an Emergency Action Plan, have a quarterly inspection program, submit annual inspection results, complete maintenance as necessary, and have an approved Operations and Maintenance Plan.
The agreement to share costs was signed in January 2020 by Mayor Jim Gilvin and Angela Lyons, president of the Windward Community Services Association at the time.
Since that time, the city has already paid out expenses to the tune of more than $35,000 — that’s half the bill for a certified inspection of the dam for $45,000, and for additional site analysis with soil borings at $26,000. The expenses never came before the City Council because they fell well below the city’s procurement threshold of $50,000 required for council approval.
Public Works Director Pete Sewczwicz told the council that once the studies are completed, the EPD will issue a “to-do” list for the first year.
He said based on preliminary estimates, it could cost about $30,000 a year to perform preventative maintenance on the dam. The city would pay half that amount under the agreement.
No one could say for certain how the contract was drafted and signed without coming before the full council. Officials alluded that the document was drawn up and endorsed by City Attorney Sam Thomas, who died in August.
City Administrator Bob Regus said he wasn’t privy to the late city attorney’s reasoning.
“I just don’t know,” he said. “I do know that Sam must have given the mayor the comfort level, if you will, to sign his name.”
Gilvin said that as mayor, he signs hundreds of documents, ranging from legal forms to purchase orders.
“I am not an attorney, and I am not an engineer…” he said. “As mayor, I rely on my staff to a huge extent.”
Gilvin said he reads or scans all documents he signs, but he cannot parse each one with the technical skillset of an engineer reading a land acquisition document, for example.
He said the Windward agreement had been under negotiation for nearly a year before it was signed. When the document was finally drafted, Gilvin said, he was assured by Thomas that it would obligate the city to expenses below the threshold of the $50,000 required for City Council approval.
“I don’t sign anything — except a proclamation — that has not been reviewed by staff,” Gilvin said.
Though the Windward agreement dominated the council workshop session, officials agreed to work with the association to pursue an amended agreement that will address the issue of insurance liability. Right now, the homeowners association is finding it difficult to buy insurance to cover the potential magnitude of the risk defined by the Georgia EPD.