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Minutes Accepted and filed with the Town Clerk on10/1/2013 by a vote of 5-0
6:00 p.m. – September 23, 2013
Sutton Town Hall, Selectmen’s Meeting Room
Members in Attendance:
Chairman John Hebert, Vice-Chair Kenneth Stuart, Selectmen Michael Chizy, Richard Hersom & David Hall
Town Administrator James Smith & Debbie Jacques, secretary
Chairman Hebert calls the special meeting to order at 6:00 pm followed by the Pledge of Allegiance.
TA Smith begins with the tour of the Middle School which was toured last Wednesday (9/18) by BOS Hersom, Stuart and Hall. They were concerned with the cleanliness of the facility as well as the lack of progression of construction. They discussed outstanding issues which were inappropriate dialogue to have as it was not a posted meeting. Some of the outstanding issues were clearly life safety issues such as the Fire Suppression, cleanliness issues, and elevator issues. Since the visit on 9/18, the elevator has been repaired and inspected, the fire suppression has been approved. Over the weekend, Pam Nichols met at the facility with John Couture and TA Smith and thoroughly documented with video and photographs, the punch list items. Prior to this meeting tonight, there was a site visit again at the facility, BOS
Hebert, Chizy and Hall attended along with TA Smith, Building Commissioner John Couture, Fire Chief Matt Belsito, representatives from SBS and Town Council. There was a vast difference to last week’s site visit. The temporary occupancy has been issued by the Building Commissioner and kids were in the middle school today. This special meeting tonight came about due to the site visit last week. We had made a formal claim against the bond company on September 5th and then a meeting on Friday, September 13th with SBS, TLT and his attorney, the Surety Company’s attorney, Town Counsel, Ted Friend and John Couture. We are awaiting a response from the surety company as to what is going to happen going forward. There is a follow-up to this meeting scheduled for October 3rd.
Selectman Hersom would like to disagree with some of what the Town Admin. has said. Rick states the reason he had started dialogue was due to a statement the Building Commissioner made when he said although all life safety issues have not been handled and approved and the fact the board on the elevator system has failed and even if that passed he was still uncomfortable and wanted direction on what to do in respect to the condition of the rest of the building. The amount of damage in the building to the floor and the continued shoddy workman’s ship, the fact
that the building is so far over deadline, even the deadlines that were renegotiated to meet the sole needs of the general contractor. At some point in time when a project goes very badly, and people fail to communicate, when people fail to execute, its time to put a stake in the ground, time to hold them responsible, time to move forward with new people to get this project successfully and in a timely manner complete it is what residents, taxpayers and especially the students most definitely deserve. Dating back to late July up until that time we were only getting cursory updates from our project manager. At this time Selectman Hersom asks the Chairman to release the Executive Session minutes from September 2nd to be made public so they become part of public record. Rick goes on to say he believes there are a lot of parties culpa able but what TLT has done is criminal in nature, Rick says he will make sure in whatever role he needs to take to make sure TLT does not
continue on this job and he will do everything in his power to make sure TLT can never do again to another town in the Commonwealth of MA. What they have done to Sutton.
Selectman Stuart also agreed to this meeting tonight. Ken was encouraged in the beginning with the potential of this project but when he went into the school last week he was appalled to see the condition. Ceiling tiles gouged, rusty rails, paint sloshed all over. To have parents go in and see the condition after we asked them for a sizable amount of money it is an embarrassment. The cleanliness was disgusting. The punch list, seeing what I saw, must be quite extensive. I said I would be willing to open the school on Monday (today) if the punch list is documented and signed off by the surety company. My fear is with a temporary occupancy we never see TLT again. We are not just talking about a couple thousand dollars; we are talking about a considerable amount of money and a building we want to last for 50 years.
Selectman Chizy says there is one culprit here and it is TLT. They have promised and promised. I do not envy the School Building Committee; they have done 1 heck of a job dealing with TLT. It should have never happened, this company is a disgrace to the state of Massachusetts, to the building trade, and I would like to see them barred from any public or private building in this state. I would like to hear from TLT, the surety company and SBS to tell us what is going to happen. TLT has promised for completion in April, May, June & July, every promise has been broken, who will hold their feet to the fire to complete the punch list?
Selectman Hall says the level of consternation you heard in Ricks voice sums up the feeling we had the other night when we were there. The position we are in, I would not have wanted to occupy this building today in the condition it was in but with the situation we had on the other side balanced the need we had to get into the building because we had an educational situation that was desperate. The only reason we did was because we had to. Let’s be clear, there is a lot of work to be done, work that will be difficult to complete because it is now occupied. We were in a position that we couldn’t really win. The punch list is of utmost concern as to how that list gets dealt with in terms of who, when and the quality of the work.
Chairman Hebert says there have been a lot of negative comments but with the work over the weekend by our Building Commissioner and Fire Chief working along other people to make sure the life safety issues were met is a big plus. It was a good step to get into the building today, it boosts moral and gets everyone moving in the right direction. There are a lot of things that have to be done, some will be done before Wednesday but there are a lot of things to be done and as Rick pointed out the scrapes in the floor, the rusty railings are all on the punch list. Someone will be held accountable. Chairman Hebert says it is shame that sub contractors have not been paid, they live paycheck to paycheck. Work ethics and morale is on the back burner. There are a couple people here from TLT, Tom Hood and Jerry
Edmond, they are trying to make things right but their hands have been tied through the owner.
At this time the board invites TLT, the Attorney for the Surety Company and SBS up to the table.
The Attorney for the Surety Company Brad Carver assures the BOS as a representative of the bond company they know how to arrange for completion of schools. There are 3 parties involved, the bond company, the town and TLT. The obligation flows all the way around. The bond company has heard from the Town and now needs to hear from TLT.
President of TLT Tom Kostinden passes out an outline prepared by TLT. This is a summary for phase 2 work to be completed. It states TLT will prepare a weekly update on the punch list items. Next week TLT is preparing to go to 2nd shift so they do not disturb the school day. The punch list which was compiled by the architect has been submitted. Tom Hood (TLT) says they are continuing to punch out the list. TA Smith asks about the damaged stairwell and the door that is scraping the floor. At this time Building Commissioner John Couture says for clarification the punch list that he had worked on Saturday is not the same punch list TLT is talking about. Tom Hood says the list they are currently working on is from the architect (Flansburgh). The video punch list will be an additional punch list. Selectman
Stuart asks when the new list can be expected. John Couture said he will work on getting it done this week. Selectman Stuart said there are quite a few items that are damaged and they need to be listed and addressed. Selectman Hall says to say the punch list is almost completed and to say the 2nd punch list is similar to the 1st .you can’t say that, not only are there items to be repaired but there are items that have never been punched. There are wall panels missing, you can’t say this to our town and have us take you serious.
Selectman Hersom asks the surety Attorney, Brad Carver, to articulate what the remedies are. ATTY. Carver says #1- TLT completes the job, #2- bring in another gen contractor and #3 monetary settlements. Selectman Hersom asks who would make this decision, Carver states it depends on the bond form, in this case, the Town has stated TLT is not fulfilling their contract. The problem is TLT wants to finish this job. It would be very difficult to bring another contractor on with TLT as the contractor of record. Selectman Hersom says that we had agreed that if the school was to be open, we would want written assurance from the bond company that the items are being taking care of in a timely fashion along with high workmanship, how does your surety company guarantee this board and the residents of Sutton that will be taking care
of? Carver states I am not the person to answer that but if the surety company gets involved the job will be complete. The entire project along with the punch list will be completed but I cannot speak for TLT. We have a plan of action, we have hired a consultant, Vertex Engineering, and they will come to the site and meet with SBS, TLT and Flansburgh. This is information we need, to make an informed decision to see what is needed to complete the job. Carver goes on to say if TLT is the contractor of record, it is up to the Town, SBS and Flansburgh to make sure TLT completes project. When a company is terminated, the surety steps in to make sure the project is completed. Hersom states we have not yet taken the next step to terminate our relationship with TLT. Selectman Hall says some of the sub contractors have not been paid, can the surety company insure they get paid? Carver replies that there is a payment bond in place. Some of the sub contractors have asked for
direct payment and a few have filed claims. ATTY for TLT Paul James says they have gathered information and are looking for $900,000.00 to pay sub contractors; he will give this list to our Town Counsel. Selectman Stuart asks if we can make sure the payments go to the sub contractors. Carver says TLT is requesting sub contractors be paid directly. Selectman Hall is concerned that we ensure that if we have already paid for services that we not pay twice for the same service. Selectman Hersom says this is ludicrous, why are we negotiating with someone that placed us in this position. Selectman Hall is in agreement with Rick, and asks how we legally get to the next step, what are the implications. Who makes that decision? I understand there could be financial penalties to the town. ATTY Carver says we do not terminate contractors, we finish jobs. Dave is confused as to how to do one without the other. TA Smith asks if there is any damage if we fire TLT, ATTY Carver refers that
question to Town Counsel. Chairman Hebert asks the BOS do we want TLT to complete the punch list or terminate now, Selectman Hersom says I am only one member but I would like to hear from town counsel. Hebert feels he has a common sense approach to allow TLT to complete punch list, Hersom responds we have already given them the opportunity but their track record has shown they cannot complete and the surety company cannot supervise, there is no contractual relationship between the surety company and the general contractor how do we know we won’t be in the same place next year.
ATTY McEnaney (K&P) says there are a number of issues that still need to be addressed, ATTY Carver is waiting for TLT’s response and they will offer a recommendation based on that as well as a list of unpaid sub contractors. This will help with a decision on where to go.
Superintendent Ted Friend is asked by Selectmen Hersom now with the kids in school, knowing what we all want, teachers, school building committee, me as a parent, we want it right: for the sake of making sure it is done right, done timely in an undisruptive manner, is there anything not finished today that is compromising the kids education, Mr. Friend replies no, today was fantastic, obviously what you have discussed today, damages to the new floor, stairs, those things cannot be accepted. But those do not impact the education process. Rick says if Mr. Friend came back with an answer that the education process is being hindered he would be willing to take a different approach, if we continue to deal with the culprit we have been dealing with we will be going down a slippery slope. When phase 2 is complete along
with the completed punch list, we have the final phase needing to be completed, unless there is a compelling reason I never want to see TLT again.
TA smith asks when we will get the plan from the engineer hired by the surety company, ATTY Carver responds they will be here in the next few days; they communicate their findings to the surety company. At that point we formulate the best way to respond to the request to the performance bond you have made. If you do not have issues with the contractor the best way to finish the job is to use the contractor on site, if you choose to replace the contractor it takes time to demobilize and remobilize a new contractor.
Selectman Stuart says if we feel the kid’s education is not compromised, maybe we need to look in that direction and come up with a new contractor. Hearing the responses tonight does not make me feel any better, promises have been broken it is an awful situation, our next BOS meeting is October 1st, will we have a goal or direction at that point? Selectman Hersom would like Town Counsel at the next meeting in Executive Session, give us background information so as the executive board of the Town of Sutton, we can make an informed decision if we choose to terminate TLT. Selectman Chizy says as much as he hates to say it, let TLT make a promise as to what they can do, if they do nothing then we know what to do, we will have to get another contractor in there. Selectman Hersom asks TA Smith what happens
tomorrow at the job site, do they continue to work? TA Smith replies yes they will be pouring concrete in the court yard, putting up black paper for the panel boards and they are going to hydro seed. Selectman Stuart would like to see what progress is made in a week, by next Monday we better see some significant things taken off this punch list. Selectman Hall asks if the Building Commissioner has issued a moratorium on work while school is in session for the safety of the occupants. John Couture says his biggest concern with occupying the building while work is ongoing is public safety, the next 3 days is worked out on how to roll back the work area to consolidate. Some of the items on the punch list will take longer than a week. Selectman Stuart says to TLT we want to see the things on this list moving down very aggressively, if it is not moving in an aggressive manner we will have to make a decision. Selectman Chizy asks John Couture to provide an updated list weekly
to the Town Administrators office for the Boards review.
TA Smith says we will have all the information at Exec Session so Town Counsel can advise us. There is an entire new phase to be completed; the high school is 35-40% of this entire job. Do we have the option to finish this phase and go to a new contractor in the next phase? Once the middle school is complete we have a place for the kids the pressure is off us.
Hearing no further comments Selectman Chizy motions to adjourn, Selectman Hersom seconds passes 5-0
Meeting adjourned 7:07 pm
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