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WPCNR PHOTOGRAPHS OF THE DAY. By the WPCNR Roving Photographer. February 11, 2007: The Hudson River aside from a small shipping lane was ice from shore-to-shore Sunday afternoon, causing ferries to close at Beacon and Haverstraw. The ice is a result of a week of temperatures in the 20s and lower.
Hudson Freeze.
Ice-Skating on Opperman’s Pond, Pleasantville, Sunday for the first time in years. Photos by WPCNR’s Roving Photographer
“GLOBAL WARMING, My Tailfeathers!” Mallards were annoyed at Rockefeller Estate Swan Lake.
Silver Lake, White Plains Frozen for the first time since 1996.
WPCNR White Plains Law Journal. By John F. Bailey. February 11, 2007 With Copy of the Federal Court Decision: The 40-page Memorandum & Order issued by United States District Court Sourthern District Judge Charles Brieant January 25, reveals changes inWhite Plains-generated specifications during the course of construction which contributed to circumstances thata project scheduled to be completed in one-and-a-half years took twice as long to complete.
Begun in January 2000, the “$28 Million” White PlainsHigh School renovation was scheduled to be finished by September, 2001. It was not officially completed according to the architect until June 16, 2003, as described in the Court Order issued January 25.The WPHS Class of 2003 spent their entire high school years with ongoing construction taking place in the school.
The Memorandum and Order would appear to indicate that White Plains City School District dispute with Travelers Casualty and Surety Company may cost the district more that the $2 Million speculated by Superintendent of Schools Timothy Connors to WPCNR last Thursday.
Payment Proposals Thursday
Both sides are to submit payment proposals on Thursday (February 15). Depending on whether White Plains has already paid off contractors they signed liquidating agreements according to the suit, the payment to Travelers may be the only liability. Mr. Connors told WPCNR the $2 Million was the only amount outstanding but that he really did not have the final figure.
The Court Order indicates the amount in dispute owed by White Plains to Travelers to be $2,147,573.35 plus 3 years and 3 months of court-ordered interest, WPCNR has been told by an attorney familiar with such interest that it is paid at 9% a year
The order denies the White Plains counter claim against Travelers of$7,295,564.31.
It is unclear whether the claims of other contractors (not the responsibility of Travelers) originally to be covered by the White Plains counter claim will be paid out of pocket by the school district now , or have already been paid. These figures are just what are contained in Judge Brieant’s Court Order, with the final monies scheduled to be discussed Thursday.
Road Map of the Decision
WPCNR has received a copy of Judge Brieant’s decision from the CitySchool District and as a public service we are providing a transcript as follows:
To give readers a walk-through of the sections of the decision, WPCNR provides the following guide:
Pages 1 to 5 identifies the parties involved in the project and the lawsuit, filed byTravelers Casualty and Surety Company, as Administrator for Reliance Insurance Company, against the CitySchool District. Pages 1 to 5 described the timeline of events leading up the filing of the Travelers suit October 15, 2003, and White Plains “Counterclaims” against Travelers and Tratoros Construction for $7,295,564.31. (page numbers appear at the bottom of each page.)
Page 6 – 7 describes White Plains obligations to two other contractors F.A. Burchetta, Inc. (the electrical contractor) in the amount of $2,015,966.31and Richards Conditioning, Inc. (the HVAC contractor) for $1,364,598 (not yet paid by the Board)
Page 8 notes the Judge’s decision on what White Plains owes Travelers for the unpaid balance of the bond contract ($1,026,019.76).
Pages 9- 23 describes a key architect change in the thickness of stone panels (1-1/2 inch as originally specified, changed to 2-1/2 inches, and the subsequent respecification of metal hangers to support the thicker, heavier tiles; RFPs, Trench Cover andChange Orders
Pages 24 to 34 report the Judge’s conclusions on when the high school project was substantially completed which figure prominently in this Court Order going against the CitySchool District.
Pages 35 to 38 report under the heading “Misconduct of the Architect,” the Judge details the circumstances that lead the judge to find misconduct.
Page 39 sets the date when the parties are to come to agreement on the payments owed Travelers.
Herewith, WPCNR Posts the Court Order in two parts in the next two stories. Read the posting after next block to see Part 1 of the decison.
WPCNR FOR THE RECORD, PART 2. From United States District Court, Southern District. February 11, 2007: Herewith is Part 2 of the Judge Brieant Court Order against the White Plains City School District.
Travelers’ current contention that WPPS improperly terminated Trataros before allowing Trataros to meet its new deadlines under the Forbearance Agreement is regarded as precluded or waived by Travelers’ agreement to complete the Construction Contract under §4.2 of the Performance Bond, and its entry onto the premises to accomplish that completion after WPPS’ demand for action under the Performance Bond. At that time, Travelers had the option to waive its right to perform and complete, and deny liability in whole or in part and so notify the Owner, under §4.4.2 of the Performance Bond.
Memorandum and Order at 1O.
There is a meaningful difference between this Court’s earlier finding which precluded
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Travelers’ procedurally-based argument that White Plains’ notice of default was insufficient, relieving Travelers of liability, and the one urged by White Plains at this stage of litigation, namely, that Travelers has waived the substantive defense that substantial completion was achieved by the date of termination. It has not.
“Waiver is an intentional relinquishment of a known right and should not be lightly presumed.”Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968 (N.Y. 1988). “Either party to a contract may waive any of its provisions made for his benefit.” Liberty MUL Ins. Co. v. Lodha, 131 Misc. 2d 670, 672 (N.Y. Misc. 1986).
While express waiver rests upon intention, and estoppel upon misleading conduct, implied waiver may rest upon either, for it exists when there is an intention to waive unexpressed, but clearly to be inferred from circumstances, or when there is no such intention in fact, but the conduct of the insurer has misled the insured into acting on a reasonable belief that the company has waived some provision of the policy.
The Court declines to conclude that there was an intentional relinquishment of a known right because Trataros on January 8, 2003, had already claimed substantial completion prior to the notice of default, a fact known to Travelers because it was signed by Mr. Carbone, then on the payroll of Travelers. See PX-l1. In previously finding Travelers’ argument regarding notice of default precluded, the Court declined to exalt form over substance. On September 27, 2001, White Plains requested that “the surety intervene in this matter immediately and provide sufficient supervision and construction expertise to Trataros so that the project can be performed pursuant to Contract Documents.” See DX-74. The request was described as an “urgent demand
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that the bonding company take an active role in this construction project on behalf of Trataros before we reach the point of no return and are forced to default the contractor.” Id. Travelers did as requested, as any competent surety should. It had already acted in the matter, by having someone on site to assist and monitor Trataros’ performance. To deny liability at that late stage in the Project, without a Certification of Substantial Completion from the Architect, could have presented a risk of additional liabilities for Travelers, which had already been actively involved in the completion of the project, pursuant to White Plains’ September 2001 demand. In consideration of this, the Court does not conclude that Travelers waived its right to argue substantial completion, when it essentially continued a work it had already begun, and when a notice of default issued only after Trataros had already declared that substantial completion was achieved. While Travelers could have denied liability at the time that White Plains declared a default against Trataros, it did not, by virtue of completing the job it had already begun to oversee, waive its right to claim that substantial performance was actually achieved by the default date.
Date of Substantial Completion/Performance
The Court of Appeals of New York has held:
In the execution of a contract for the construction of a building or of a public improvement, involving many details, there occurs a point at which performance is so nearly reached that were the work terminated, recovery might be had by the contractor for substantial performance — abatement being made to the other party for deficiencies on the part of the contractor. In such a case, if the work under the contract terminated, it may very well be that the doctrine of substantial performance would apply and the improvement be deemed complete within the statute.
Milliken Bros., Inc. v. New York, 201 N.Y. 65, 73 (N.Y. 1911).
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Plaintiff argues, and Defendant denies that substantial completion of the Project was achieved by the time of White Plains’ act of terminating Trataros on January 30, 2003. Plaintiff contends, and I find that the overwhelming percentage of the Contract work was then complete and that the school was occupied for its intended use well before that date.
Defendant argues that the Architect’s certification date of June 16, 2003, is the proper date of substantial completion. The General Conditions provide that the “date of Substantial Completion is the date certified by the Architect in accordance with Paragraph 9.8.” See PX-6 at 8.1.3. Paragraph 9.8 includes the following: “Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use” and “[w]hen the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion.” Id. at 9.8.1, 9.8.3. The Supplementary General Conditions also state that “[t]he occupancy of any portion of the building does not constitute an acceptance of any work as the Project will be accepted as a whole and not in units; Further, such occupancy alone shal not determine when substantial completion and performance has been reached.” See PX-7 at 9.9.4.
This Court earlier held that “[i}f substantial completion was achieved prior to the termination of Trataros, White Plains would be precluded from stating a claim for delay damages under the Performance Bond.” Memorandum and Order, p. 10. It held:
The Supplementary Conditions define the factual circumstances under which substantial
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completion could be certifiable, but did not revoke the authority of the Architect to determine such date. The Court concludes that in the absence of fraud, mistake or obvious error, the date certified by the Architect would the appropriate date of substantial completion.
Id., p. 9. In adherence to its earlier ruling and with the benefit of a plenary trial record, the Court now concludes that the evidence weighs strongly in favor of a finding of either mistake or obvious error, and additionally supports a strong inference of constructive fraud or unreasonableness by the Architect, such that the date of its certification cannot be determinative of whether delay damages may be awarded to White Plains.
The New York Court of Appeals has held that “an unreasonable refusal on the part of an architect … to give the certificate dispenses with its necessity.” Arc Electrical Constr. Co. v. George A. Fuller Co., 24 N.Y.2d 99, 104-105 (N.Y. 1969). In Arc Electrical, the Court of Appeals also held that “[w]hen [the plaintiff] had substantially performed his contract, the architect was bound to give him the certificate, and his refusal to give it was unreasonable.” Id. The Court noted the reasoning behind the rule, and explained:
The rule is based upon the fact that the architect, in contracts of this sort, rarely a disinterested arbiter, is usually the representative of the party, often the owner, who must ultimately bear the cost of the work. … Since approval, when given, constitutes an admission that the work is acceptable, it may be relied upon as a good indication that the contract was, in fact, properly performed. On the other hand, there is no denying that the architect has some incentive to delay approval or even withhold it entirely.
Id. at 104, n.2.
The Second Department of the Appellate Division of the Supreme Court of New York
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determined that prior case law stood for the proposition that “where the plaintiff has performed the work so as to entitle him to the certificate, the refusal of the architect to give the certificate is unreasonable and the plaintiff is excused from its production.” Wilson vs. Curran, 190 A.D. 581, 584 (N.Y. App. Div. 1920), aff’d 232 N.Y. 587(1922).
[W]here the facts show that the duty rested upon the architect to issue the certificate, his failure so to do will be held to be unreasonable awl the contractor relieved from the condition that it must be obtained. It is a rule growing out of the practical difficulty of the architect’s serving two masters, and the milder word “unreasonable” is under the circumstances preferred by the courts to the words “constructive fraud.”
Id. at 585.
The lead Architect in this case, Mr. Davidson, certified that substantial completion was
achieved as of June 16, 2003. See PX-t0. It therefore is undisputed that by June 16, 2003, at the very latest, the Project was fully completed, with the exception of only de minimis punch-list items ($12,300), most of which the owner White Plains never finished, as of the time of trial. See PX82; PX-16, at 3. The evidence presented at trial, however, compels the Court to consider on the issue, the extent of the work accomplished before the default date of January 30, 2003.
Mr. Davidson testified that his office, as Defendant’s Architect, reviewed each line item
and/or work completed before it certified each of Trataros’ requisitions, and that it would make downward adjustments on requisitions for work not completed. See Davidson Tv. at 876-880. Defendant’s Architect certified that, during the month of September 2002, work under Contract # I in the amount of more than $217,000 had been done and approved; and that as of September 2002 the total work under the Contract done and approved was in the amount of $12,367,687.30
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minus $15,000, out of a total contract amount of $12,856,102.00, which represents 96.1% of the Contract as completed and approved. See PX-8, at WPSD 034142. Defense witness Joseph DePaul, who was at relevant times employed by Thomas Management, also testified that he reviewed Trataros’ Payment Requisition No. 28, for September 30, 2002, and that at that point in time the work by Trataros was represented to be approximately 96% complete. See DePaul Tr. At 760-61. Accordingly, by the end of September 2002, I find that Trataros had completed approximately 96% of the Contract.
The Architect certified that, during the month of October 2002, work under the Contract in the amount of more than $ 173,000 was done and approved; and as of October 2002 the total amount of work under the Contract done and approved was in the amount of $12,452,126.19, out of a total contract amount of $12,885,154.06, which constitutes over 96.6% of the Contract as completed and approved. See PX-9, at WPSD 034038. Accordingly, by the end of October 2002, Trataros had completed approximately 96.6% of the Contract.
The Architect certified that, between November 2002 and December 2002, work under the Contract in the amount of more than $141,000 was done and approved; and as of December 2002 the total amount of work under the Contract done and approved was in the amount of $12,601,092.48, out of a total contract amount of$12,914,755.94, which represents nearly 98% of the Contract completed and approved. See PX-1 I, at WPSD 033920. Accordingly, by the end of December 2002, Trataros had completed approximately 98% of the Contract.
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The Architect certified that, during the month of January 2003, work under the Contract in the amount of more than $54,000 was done and approved; and as of January 2003 the total amount of work under the Contract completed and approved was in the amount of $12,672,853.02 minus $13,800 Disallowed, out of a total contract amount of $12,914,755.94, which constituted over 98% of the work as completed and approved. See PX-l 2, at WPSD 033861. Accordingly, I find that within one day of the date of default, by the end of January 2003, the work on the Contract was more than 98% complete. See PX-8; Px-ii; PX-12; PX-13.
Although Architect Davidson testified at trial that the percentage complete listed on the payment requisitions did not accurately reflect the percentage of completion of actual work, because the percentage figures did not account for all faulty work and omitted certain punchlist work, he also testified that his office reviewed each line item and/or work completed before it certified Trataros’ requisitions for work not completed. See Davidson Tr. at 821; 876-880. This Court declines to find that the Architect certified work not actually done, or defective work. Nor may the Architect, as an agent for White Plains, be heard to impeach his own certifications simply because to do so would assist Defendant’s litigation position. See infra at pp. 35-38.
By the time the Architect certified substantial completion as of June 16, 2003, the items of actual “work” remaining were valued by KG&D and construction manager Thomas at $72,075, out of the over $12.9 Million Contract, a mere one-half of one-percent of the work, demonstrating that substantial completion must have been achieved long before then. See DX140, at Change Directive OC 42.
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As noted earlier, prior to the default, on January 8, 2003, Mr. Carbone’s application for payment No. 30 advised the Architect that “Trataros maintains that the Project at 98% completion is considered to be substantial completion.” See PX-l 1. Approximately three weeks thereafter White Plains declared a default. Mr. Carbone’s memoranda or letters to Trataros, which express an urgency toward completion do not, in the Coart’s view, contradict his posture that substantial completion was ultimately achieved prior to January 30, 2003. See e.g., DX-262; DX-230; DX- 265.
Defendant’s construction manager, Mr. DePaul, testified and I find that as early as October of 2002, Trataros was working on punchlist items. See DePaul Tr. at 761-762. Defendant’s expert, Mr. Mauzo, conceded at trial that by January 2003, all but “Punch List” work had been completed by Trataros. See Manzo Tr. 962-963. During depositions, Charles Ackerman, who worked for Thomas Management and served as White Plains’ construction manager for the Project, stated that as of January 29, 2003, the Project was “on its last legs.” See PX-200; Ackerman Dep. at 128:22-25.
Also significant is the fact that by letter dated September 10, 2002, the Architect requested the following from Trataros and the other prime contractors:
As per section 9.8.2 of the General Conditions of the Specification, please proceed to prepare a comprehensive list of open items that will require completion or correction prior to final payment. These “punchlists” … are to include a schedule of dates when the activities will be completed.
See PX-98. Section 9.8.2 of the General Conditions falls under Section 9.8, entitled “Substantial
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Completion.” See PX-6. It provides, in relevant part:
When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment…
See PX-6, at §9.8.2 (emphasis added). Accordingly, the request for punchlist on September 10, 2002 is regarded as an admission at that early date that the project was substantially complete. Trataros replied with what is designated a “Final Completion List,” which the Court regards as a punch list, and a proposed calendar schedule of remaining activities. See PX-99.
Ms. Catherine Dixon of KG&D authored the September 10, 2002 letter which directly invokes §9.8.2, implying rather directly that Trataros had achieved substantial completion by that date. Although at trial she testified that it wasn’t her job to determine substantial completion, when asked in an earlier deposition whether “substantial completion [was] achieved as defined [] in 9.8.1 in September 2002 for the entire project except for the art rooms,” she conceded: “1 think that because I wrote this, that we thought that was the case.” SeeDixon Tr. at 512-518.
The Vertex analysis dated December 12, 2002, which concluded that it would cost approximately $1,130,000.00 and take three months or thirteen weeks to complete the Project does not negate the Court’s finding. See DX-948. That estimate does not mean that substantial completion could not have been achieved within approximately six to seven weeks from that time, or by January 30, 2003.
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By letter dated December 9, 2002, Counsel for White Plains reported to Mr. Scarpellino of Travelers that Dick Lasselle and Don Carbone were “in agreement that in order to achieve substantial completion by December 31, [] there must be substantial acceleration of the work force.” See DX-293. Accordingly, the parties were collectively aware by early December of 2002, that substantial completion was possible by late December 2002, even if requiring enhanced effort. Certainly then, it was possible by the end of January 2003.
Although under the terms of the Supplementary Conditions, the occupancy and use of the school for its intended purpose was not to be dispositive of whether substantial completion was achieved, it is nevertheless of some probative value that the entire school was occupied in 2002. See e.g. Landow & Landow Architects, P.C v. Shorefront Jewish Geriatric Or., 289 A.D.2d 492,493 (N.Y. App. Div. 2001)(substantial completion of the project occuced no later than when the premises was occupied for its intended use). By September 2002, White Plains certified to the New York State Education Department that the building was safe for its students to use. Prior to the termination of Trataros on January 30, 2003, the State’s Education Department issued an unrestricted “Certificate of Occupancy” to White Plains, allowing for use of the total facility. See PX-10 at WPSD 023026; Connors Tr. at 547. The Certificate was dated to expire on November 1, 2003, and was presumably issued on an annual basis, meaning that it would have issued on November 1, 2002. See Kelly Tr. at 564. Mr. Davidson attached copies of the Certificate of Occupancy and the compliant Fire Safety Report to his Certificate of Substantial Completion, which he did not issue until June, indicating he regarded the issuance thereof as having some relevance.
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Also, by letter dated January 15, 2003, the Attorney for White Plains enumerated only 18 items with proposed deadlines requiring completion by Trataros and stated that “[i]fTrataros is unable to meet any deadline identified above, the School District will immediately send a notice of default to you and to the bonding company.” See PX-108a. Several of the items were listed as needing to be completed by May 1, 2003. SeeId. However, by confidential memorandum dated January 27, 2003, Mr. Lasselle sought from his superior, Mr. Connors (the Superintendent of Schools of White Plains) authorization to execute a notice of default to Trataros Construction “in the event that they fail to perform according to the latest schedule.” See PX-109 (emphasis added). The “latest schedule” was presumably the January 15 schedule of enumerated tasks composed by Defendant’s Attorney, which, as noted, contained several tasks not requiring completion until May of 2003. See PX-lO8a.
Misconduct of the Architect
The evidence developed at trial supports a finding of either mistake or obvious error by the Architect in delaying certification of substantial performance until June 2003, because by any measure of reasonable determination, substantial completion was achieved before the claimed default date of January 30, 2003. The evidence also supports a finding of unreasonableness or constructive fraud by the Architect in refusing to certify an earlier date. Relevant to the issue is the fact that prior to October 9, 2002, and several months prior to the notice of default, the Architect entered into an additional and wholly separate agreement with White Plains, which gave the Architect a contingent financial interest in the outcome of the instant litigation, on top of the inherent conflict of interest recognized in Arc Electrical, infra. In so doing, the Architect
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lost whatever objectivity it might have had.
Under the separate agreement, the Architect agreed to support and serve White Plains in already contemplated litigation over the Project. KG&D agreed to side with Defendant against Tratoras/Travelers by providing services to it in support of any “legal actions and defenses of claims related to the High School project.” At the same time, the Architect remained obligated to issue impartial certificates of completion and act on requests for change orders by Trataros. See PX-197. Such impartiality is precluded where, as in this case, all costs for additional litigation support services beyond two-thirds of customary rates were to be “paid only if these amounts are recovered from the contractors.” See DX-954.
KG&D was to send invoices for these newly agreed upon services directly to the office of Defendant and they were to be “separate and distinct from all of the services provided to the District as part of [the] Contract.” See PX-197.
“[T}here is no denying that [an] architect has some incentive to delay approval or even withhold [a certificate of substantial completion] entirely.” Arc Electrical, 24 N.Y.2d at 104 n.2. In Arc, the Court noted that “[I]t is well established that, where work has, in fact, been substantially performed in accordance with the provisions of a contract, the withholding of approval does not bar recovery.” Id. at 104.
The existence of the Architect’s October 9, 2002 agreement to support Defendant in any
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legal action or claim including this case, and its contingent fee interest in the outcome of this litigation bears heavily on the credibility of the Architect, and is certainly relevant circumstantial evidence of an incentive or possible bias in favor Defendant as early as October 2002, and of a constructive fraud in declining to earlier issue a certificate of substantial completion.
This voluntarily assumed additional conflict of interest and potential for bias amounting to constructive fraud is particularly troubling in light of the American Institute of Architects’ Code of Ethics & Professional Conduct. That Code provides in relevant part:
When acting by agreement of the parties as the independent interpreter of building contract documents and the judge of contract performance, Members shall render decisions impartially.
A Member shall not render professional services if the Member’s professional judgment could be affected by responsibilities to another project or person, or by the Member’s own interests, unless all those who rely on the Member’s judgment consent after full disclosure.
No contemporaneous disclosure of the separate agreement was ever made to Trataros or Travelers. Before the Notice of Default, at Least 98% of the work on the Project was accomplished and the contractor had accordingly declared substantial completion. Well before that time frame, the Architect had undertaken a clandestine personal financial interest in the outcome of the school’s anticipated litigation with Travelers.
Considering the totality of the circumstances in this case, the Court concludes that it was
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at least mistake or obvious error, compounded by unreasonableness, and probably constructive fraud, for the Architect to withhold until June of 2003, the Certification of Substantial Completion, which was part of its explicit duty to issue under Article 9.8.4 of the General Conditions, as well as under its own profession’s Code of Ethics & Professional Conduct. See PX-6. The Court finds and concludes that substantial completion was achieved before the date of the Architect’s certification and in all events by January 30, 2003, the date of default.
White Plains also argues that Travelers’ acceptance of its completion obligations necessarily requires acceptance of its obligation to pay for actual damages incurred by Trataros’ delays. It argues that the three conditions precedent contained in Paragraph 3 of the AlA 312 surety bond apply equally to the surety’s Paragraph 4 completion options and to its Paragraph 6 obligations to pay delay damages and that the default notice sufficient to trigger the surety’s completion obligation under Paragraph 4 is also sufficient to trigger the surety’s obligations under Paragraph 6. White Plains urges the Court to conclude that Travelers accepted its obligation to pay damages under Paragraph 6 of the Performance Bond when it accepted its obligation to complete the Trataros Contract under Paragraph 4 of the Performance Bond. The Court declines to do so.
[B)efore a surety’s obligations under a bond can mature, the obligee must comply with any conditions precedent. “A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises.
United States Fid. & Guar. Co. v. Braspetro Oil Servs. Co, 369 F.3d 34, 51 (2d Cir. 2004). “[A] surety’s liability to perform under a performance bond is coextensive with that of the principal
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contractor.” Id. at 67.
As just explained, the Court concludes that substantial completion was achieved by the time of notice of default. Furthermore, White Plains and its Architect are deemed to have had knowledge by the termination date that substantial completion was already achieved. For these reasons, no delay damages may be awarded to White Plains.
The liabilities or provisional liabilities willingly incurred by White Plains and asserted as pass-through claims owing to contractors Richards and Burchetta, are unrecoverable from Travelers, as either the Surety of Trataros, or from Travelers, as it stood in the shoes of Trataros as assignee of contract balances due.
In accordance with all of the foregoing, Counsel shall confer and thereafter submit within twenty (20) days, a joint proposed final judgment with the net amount due and owing, considering the adjudications herein made as well as any and all prior payments, credits, back-charges or relevant transactions affecting the net amounts due. If Counsel are unable to agree upon such a joint proposed final judgment, each shall submit their own. Any possible ambiguity, which prevents entry of final judgment, shall be promptly resolved by discussion, if possible or directed to the attention of the Court and opposing Counsel by letter. Pre-judgment interest is awarded on the net amount from October 15, 2003, to the date of judgment pursuant to New York CPLR § 5004.
WPCNR FOR THE RECORD. February 11, 2007: Here is the text of Judge Charles Brieant’s Memorandum & Order denying the White Plains School District over $7 Million in counter claims against Travelers Casualty & Surety Company, and directing that White Plains Schools owe Travelers over $2 Million.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRAVELERS CASUALTY AND SURETY COMPANY,
as Administrator for Reliance Insurance Company,
Plaintiff,
V.
WHITE PLAINS PUBLIC SCHOOLS,
Defendant/Counterclaimant,
TRATAROS CONSTRUCTION INC.,
Additional Defendant on the Counterclaims. 03 Civ. 8144 (CLB) (MDF)
Memorandum & Order
TRAVELERS CASUALTY AND SURETY COMPANY,
as Administrator for Reliance Insurance Company,
Third-Party Plaintiff,
V.
THOMAS MANAGEMENT SERVICES, L.L.C.,
Third-Party Defendant on the Counterclaims.
Brieant, J.
A non-jury trial was conducted from July 5, 2006 to July 20, 2006, in this diversity case involving a multi-prime Wicks Law project. The parties’ post-trial submissions were filed October 13, 2006. Familiarity of the reader with all prior proceedings in this case is presumed and certain undisputed facts are included herein for the sake of clarity. Having heard all of the evidence at trial and considered the parties’ post-trial submissions, the Court makes the following
1
findings of fact and conclusions of law.
Travelers Casualty and Surety Company (“Travelers”) is a Connecticut corporation with its principal place of business in Connecticut. Travelers is the administrator for Reliance thsurance Company with respect to certain bonds involved in this action. Reliance Insurance Company (“Reliance”) is a Pennsylvania corporation with its principal place of business in Pennsylvania. Both corporations are authorized to transact insurance and surety business in the state of New York. Plaintiff Travelers acquired all of the rights and obligations under the hereinafter described surety bonds issued by Reliance, and Travelers became, and is, the Administrator for Reliance with respect to those bonds. Defendant White Plains Public Schools (“White Plains” or “WPPS”) is a public entity in charge of maintaining, operating and constructing the White PlainsPublicHigh School in White Plains, New York. This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
On or about January 31, 2000, Defendant WPPS undertook the renovation, alteration and addition to the White PlainsPublicHigh School (the “Project”). See PX-5. The construction work took place within seven buildings (A through G). See PX-192; DX-955. On January 31, 2000, Trataros Construction (“Trataros”) entered into a prime contract for general construction (“General Construction Contract” or “the Contract”) with White Plains for general construction, including renovations and additions to the White PlainsPublicHigh School. The Contract incorporated by reference two additional agreements, the “General Conditions of the Contract for Construction” (“General Conditions”) and the “Supplementary General Conditions”
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(“Supplementary Conditions”). See PX-6; PX-7. Pursuant to the original Contract and prior to any amendments, the Project was to be completed by August 31, 2001. See PX-5. In accordance with the Construction Contract, Trataros delivered to White Plains a performance bond and payment bond issued by Reliance as Surety. See PX-l; PX-4. As earlier noted, after the issuance, Plaintiff Travelers succeeded to the rights and obligations under the bonds and became administrator for Reliance with respect to those bonds.
White Plains retained Kaeyer, Garment & Davidson Architects, P.C. (“KG&D” or “the Architect”) to serve as the Architect of Record for the Project, and retained Thomas Management Services, L.L.C. (“TMS” or “Thomas”) to serve as the Construction Manager and Owner’s representative for the Project. Among its other obligations, Thomas was responsible for coordinating the efforts of the several prime contractors on the Project, and for providing cost estimates for extra work and change orders arising during the course of the Project.
Trataros was one of five (5) separate prime contractors retained by Defendant White Plains under New York’s Wicks Law (N.Y. GEM. Mur4. LAW § 101) to renovate and construct additions to the High School for the Project. See PX-5. The Project work was divided among:
Trataros, as general contractor; F.A. Burchetta, Inc. (“Burchetta”), as electrical contractor; Richards Conditioning, Inc. (“Richards”), as FIVAC contractor; L.J. Coppola, Inc. (“Coppola”), as plumbing contractor; and Maines Food Services, Inc. (“Maines”), as food service contractor.
Trataros is now apparently out of business. Trial witness Mr. Carbone served as the
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Project Supervisor for Trataros from October of 2001 through January 1, 2003. As of January 1, 2003, before the declaration of default discussed below, Mr. Carbone was on the payroll of Travelers. See PX-13.
During the course of the Project, White Plains sent notice pursuant to the Surety’s Performance Bond that it was considering declaring a default against Trataros. Following a mandatory meeting of the parties held pursuant to the requirements of the Performance Bond, on February 1, 2001, Trataros, Travelers and White Plains entered into a Forbearance Agreement, by which White Plains granted Trataros a right to complete the work within extended time limits. See DX-6. On January 30, 2003, White Plains sent a formal notice of default based upon Trataros’ alleged failure to meet the Forbearance Agreement deadlines. White Plains demanded that Travelers perform its obligation as Surety to see to completion of the Construction Contract. See PX-13.
Travelers exercised its right under §4.2 of the Performance Bond and assumed completion of Trataros’ work, and, among other things, paid amounts in arrears owed by Trataros to numerous laborers, subcontractors and materialmen, in order to induce them to continue. See PX-l3, at p. 2, ¶f2-3; Scarpellino Tr. at 20-24.
Travelers contends that it performed and completed its obligations in accordance with the Performance Bond and the Construction Contract, but was not paid the Contract balance, as well as additional costs for change orders and extras, net of deletions or back-charges, owed by
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White Plains. As further discussed infra, Travelers concedes that, as on all major projects, certain punchlist items were not completed. Travelers also contends that the Project was actually substantially complete by January 30, 2003, the date of the notice of default, and I so find.
On or about July 16, 2003, Travelers filed a Notice of Claim with Defendant White Plains, which it amended on September 3, 2003, seeking in excess of $2,000,000, for work, extra work, change orders and/or additional costs in connection with the Project. See PX-2; PX-3.
On October 15, 2003, Travelers commenced this action for Defendant’s breach of contract. It seeks to recover damages for White Plains’ breach of its obligations to Travelers as Surety, upon Travelers’ substantial completion of all the work required under the General Construction Contract between Trataros and White Plains. It also seeks to recover damages for extra work performed by Trataros and/or Travelers.
In its Answer, Defendant White Plains interposed Counterclaims for delay damages against Travelers and Trataros in the amount of $7,295,564.31, for an alleged failure to fulfill Trataros’ obligations under the General Construction Contract. It claims that damages suffered by White Plains include extreme delay damages, as well as additional liabilities incurred by White Plains by virtue of two delay damage liquidating agreements with prime contractors Burchetta and Richards, into which White Plains voluntarily entered.
On October 15, 2003, and November 17, 2003, White Plains entered into separate
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liquidating agreements with Richards and Burchetta, respectively. This occurred after White Plains’ Architect and representative, KG&D, originally rejected their claims on the basis of a no-damage-for-delay clause found in Section 8.3.3 of the Supplementary Conditions, and applicable to all five prime contractors.
Richards had earlier commenced a lawsuit against the Board of White Plains to recover increased costs due to the delay in the completion of the Project. White Plains later entered into a liquidating agreement with Richards, which contained this provision:
“Since the Board is legally liable to Richards for the impact of the delays caused by Trataros, the Board admits and acknowledges that it is liable to Richards in the amount of $1,689,598 for delays in the completion of the Project and other costs resulting from the delays caused by Trataros.” See DXIi at ¶3. It also provided that the Richards claim against the Board “should be properly asserted by the Board against Trataros and/or Reliance as a pass-through claim” and the “Board agrees, expeditiously and in good faith, to assert and prosecute against Trataros and/or Reliance a claim in the amount of $1,689,598 (“the Trataros claim”), consisting of the $1,364,598 (which has not been reimbursed by the Board) in costs and expenses incurred by Richards due to the delays caused by Trataros and the $325,000 of such costs (which has been reimbursed by the Board).” Id. At ¶4.
Burchetta had not sued, but filed a Notice of Claim with the Board to recover increased costs due to delays. The Liquidating Agreement with Burchetta provided that the “Board admits and acknowledges that it is liable to Burchetta in the amount of $2,015,966.31 for delays and
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interference in the completion of the Project and other costs resulting from the delays caused by Trataros.” See DX-12 at ¶1. It provided that Burchetta agreed “to accept in full satisfaction and discharge of its claim the amount the Board shall be successftil in recovering from Trataros and/or Reliance/Travelers with respect to the claim.” Id. at ¶2.
In an earlier decision, this Court dismissed Defendant’s second and third counterclaims for damages asserted expressly as pass through claims made “on behalf’ of Burchetta and Richards. The Court left to the benefit of a plenary trial record, any decision and judgment as to whether delay damages could be awarded to White Plains, and whether any liabilities incurred by White Plains in connection with Richards and Burchetta might properly fall into a category of delay damages incurred by White Plains. See January 27, 2006 Memorandum and Order at 16-17.
On December 17, 2004, Plaintiff Travelers tiled a separate pleading denominated as a “Third Party Complaint,” against “Third Party Defendant” Thomas Management Services. As earlier noted, Thomas was the construction management company for White Plains during completion of the Project. In this secondary Complaint, Travelers claimed that any delay damages it may be determined to owe White Plains on the counterclaims were the result of Thomas’ failure to coordinate the Project, and that if Travelers were ultimately required to pay for any delay damages, then Travelers, as Surety, would be subrogated to the rights of White Plains against Thomas. White Plains made no claim against Thomas relative to the Project.
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In its earlier decision, the Court dismissed Travelers’ secondary Complaint on the theory that any poesible delay damages that might ultimately be found owing to White Plains at trial would be only those that were proved to have been proximately caused by Trataros’ delays, as opposed to any such damages proximately caused by Thomas.
To date, White Plains has refused to pay any amount of Travelers’ claim, based on its assertion that the damages owed by Travelers on White Plains’ counterclaims exceed the contract balance owing to White Plains, by which balance amount any damages accruing to White Plains would be offset.
In its January 2006 decision, the Court found White Plains’ pleading admissions sufficient to form a basis for the grant of partial summary judgment as to White Plains’ liability for the Contract balance, and determined that the appropriate balance amount and extras owed under the Contract remained disputed issues of fact to be resolved with the benefit of a plenary trial record. Accordingly, the Court herein determines the Contract balance owed, the legitimate extras and back-charges, and whether any delay damages may be awarded.
Contract balance due to Travelers
“The general rule is that: the surety has a priority right to the unpaid balance of the contract funds[,] which it may use to complete performance of the bonded contract.” United States Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34,59 n.22 (2d Cir. 2004) (citation omitted). In its notice of default, White Plains stated that it “hereby agrees to pay the balance of
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the contract price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner.” See PX 13. It also stated that the “Owner demands that the Surety performs and completes the said Construction Contract.” Id. Travelers has shown, White Plains does not meaningfully dispute, and I find, that the outstanding balance of the Contract at the time of default was the sum of $l,026,019.76. See PX-17; PX-18; PX493, §2.
Extra Work Claims
Travelers has shown that it is entitled to the following four claims for extras pursued by Trataros, as these were legitimately submitted under the Contract. They include extras for exterior stone panels, additional metal framing, some approved change orders for which the approval amounts were insufficient, and a claim for the cafeteria’s aluminum trench cover installed instead of a specified steel trench cover.
Stone Panels
The original stone specification called for 1 inch thick stone panels for the trim on the exterior of the buildings, and designated Mankato-Kasota Stone (“Mankato”), an operator of a quarry in Minnesota, as the sole supplier of the stone to be used on the Project. See PX-19, at WPSD 015449; PX-22; Asimopoulos Tr. at 100; O’Neill Tr. at 180. After Trataros entered into the Contract, Mankato recommended, by facsimile dated March 9, 2000, that in order to achieve the desired result, the use of 2-1/2 inch thick stone panels was required, and that the originally specified 1 inch panels would be inadequate for the intended exterior application. See PX-24;
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Asimopoulos Tr. at 103-104, 106; O’Neill Tr. at 180-181. Approximately 11,500 square feet of stone panels were being used on the outside of the buildings and thus, had to be changed from 1 inch to 2-1/2 inch stone, which increased the weight of the stone panels by approximately 150% or more, thereby also requiring redesign of the steel upon which the stone was erected. See Asimopoulos Ti. at 102; O’Neill Tr. at 181.
Although Mankato had been the designated stone supplier in the original specification, KG&D delayed its approval of Mankato’s sample for approximately one year, because, as Erik Kaeyer of KG&D advised White Plains, KG&D “[had been] extremely concerned about the appearance and quality of the stone samples submitted” by Mankato and was “unable to resolve that issue through the usual channels.” See PX-19; PX-25; PX-27. Due to their concern, KG&D’s Calvin Black and Eric Kaeyer visited the quarry facility in Mankato, Minnesota, During that trip, the architects’ concerns about the appearance and quality of the Mankato stone were finally satisfied, as reflected by Kaeyer’s completion and delivery to Mankato on January 28, 2001, of a color range approval form and request to expedite a stone order. See PX-25; PX-27; Davidson Tr. at 900.
By letter dated March 2, 2001, and prior to beginning any of the stone panel work, Trataros gave notice to Construction Manager Thomas, that its original bid of $389,737.65 for labor, materials and equipment for the stone panel work, had been increased to $706,593.47, because of the change from 1 inch stone to 2-1/2 inch stone, for a net additional cost of $316,855.82. Trataros requested a response from the Architect. See PX-28; PX-29; Asimopoulos
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Tr. at 101-102; O’Neill Tr. at 185.
By letter dated March 19, 2001, KG&D rejected Trataros’ submittal for additional stone costs, for failure to comply with notice requirements under the General and Supplementary Conditions because the claim was submitted beyond the time limitation for making a claim under the Contract. See DX-848; Davidson Tr, at 843-846.
Under the General Conditions of the Contract, “Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and the other party.” See PX-6, § 4.31.
Mankato-Kasota’s color range approval form states in bold lettering: “Fabrication of your order can not begin until we have received a completed copy of this color range approval form,” and KG&D Architect Russell Davidson admitted that fabrication of the stone had obviously not begun by January 28, 2001. See Px-25; Davidson Tr. at 901. As earlier noted, KG&D was informed on March 9, 2000, by facsimile from Mankato that the minimum thickness would need to be 2-1/2 inches, rather than the originally anticipated one inch. Before specifying this quarry as a sole source for decorative stone, the Architects knew, or should have known, or should have inquired, as to the proper thickness of the stone for exterior use (in order to avoid damage from freezing and spalling). See PX-24. KG&D thereafter took about a year to approve and order the Mankato stone, and ultimately informed Trataros of the stone selected and
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approved on February 12, 2001. See PX -26. As a practical matter, Trataros should not have been required to submit a claim until it was informed by KG&D what stone was actually chosen and approved, which did not occur until KG&D’s decision in February 2001, and neither KG&D nor White Plains can make a good faith claim of surprise or lack of notice of the increased price due to the adjustment to 2-1/2 inches, particularly bearing in mind that they were informed of the thickness issue in March of 2000. See PX-24; PX-25; PX-26; PX-27.
The Court finds that Trataros’ March 2, 2001 notice of claim for the extra stone work was timely and reasonable, as it was within 21 days from February 12, 2001, the date KG&D first informed Trataros that it had approved and ordered the 2V2 inch stone that Trataros would use on the Project.’ See PX-26; Asimopoulos Tr. at 107. Accordingly, the Court finds that Travelers is owed $316,855.82 for the change in the cost of the thicker stone.
Metal Framing Claim
Following the change to 2-1/2 inch stone siding, the steel framing had to be redesigned because the framing for 1 inch stone panels, which were in the original architectural drawings, could not be used with the thicker and heavier 2-1/2 inch stone panels. Compared with 1 inch stone, 2-1/2 inch stone panels required the use of more clips attaching the stone panels to the structural framing, additional headers, and thicker, stronger metal than the 16-gauge metal allowed in the original bid specification and drawings. See O’Neill Tr. at 180-183; Asimopoulos
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1Furthermore, as discussed infra, the contractually specified formalities for making claims for extras were loosely observed and effectively ignored by both sides in this case.
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Tr. at 109-112. The metal framing claim in the sum of $321,278.00, is for extra materials and work, necessitated by the change to 2½ inch stone, as well as by problems with the original drawings.
The Court finds that the redesign of the framing was also necessary because the original drawings called for steel angles to be installed at the head of the windows in Building G, even though the louver-covered air units were located over the windows blocking installation of the angles. As a result, Trataros had to use much heavier and costlier metal framing. See PX-37; PX-46; PX-34; Carbone Tr. at 325-326; O’Neill Tr. at 182-185; Asimopoulos Tr. at 112, 116-117.
Trataros retained CSC Engineering, a firm suggested by KG&D, to prepare shop drawings incorporating the changes to the metal framing as a result of the conflict between the steel angles/headers and the louvers and the change to 2½ inch stone. Calvin Black of KG&D formally approved the proposed changes by signing off on the shop drawings on April 4, 2001. See PX-38; Asimopoulos Tr. at 110-1 12, 117; Davidson Tr. at 849.
By a letter dated February 13, 2001 to TMS and copied to KG&D, and prior to commencing the extra metal framing work, Trataros submitted a revised quote in the sum of $321,278.00. This represented the cost of the work as reflected in the revised shop drawings, $417,875.00, minus the costs per the original specifications, of $96,597.00. See PX-32; PX-33; Carbone Tr. at 325; Asimopoulos Tr. at 117-118.
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After giving notice to TMS, Trataros commenced and completed the extra metal framing work under protest and forwarded a detailed estimate reflecting the additional scope of the work shown on the approved shop drawings for each of the affected buildings. See PX-32; PX-33; Asimopoulos Tr. at 118.
By a letter dated March 14, 2001, Trataros notified Thomas of the problems with the specified metal framing, and Calvin Black of KG&D responded by a fax memo to Thomas dated t’Jareh 17, 2001, instructing that the problems “should be resolved by Trataros, and any modifications submitted” and that “Trataros and their LMF [light metal framing] designer need to actually submit [the modifications}.” See PX-34.
Trataros’ February 13, 2001, notice of additional metal framing costs (PX-32) was timely under the contractual 21-day requirement for raising claims, as it followed immediately Trataros’ receipt of KG&D’s February 12, 2001 letter confirming that the stone had been selected and ordered.2 See PX-39. Trataros could not be required to submit its claim for additional metal framing before knowing that KG&D had approved and ordered Mankato’s 2-1/2 inch stone. Trataros gave notice before the metal framing work commenced, and immediately after Trataros discovered that it could not use the “L” shaped metal shelf shown in the original drawings to support the stone over the HVAC openings. In fact, Trataros had to redesign the metal framing system and needed much heavier and costlier steel in order to make up for the lack of “L” shaped
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2 Again, as further discussed infra, the Parties did not consistently adhere to certain Contract formalities during the course of the Project.
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shelf angles shown on KG&D’s drawings.
Accordingly, the Court finds that Travelers is owed $321,278.00 for the required change in metal framing.
RFPs 1,2 &3 (GC-9)
Travelers’ claim in the sum of$142,265.95, is made in relation to KG&D’s revisions to the original bid documents set forth in requests for proposal (“RFP’s”) 1,2 & 3. These changes included the addition of a bathroom, hardware and door changes, and other miscellaneous changes throughout the Project. Various additional changes were made to these RFP’s throughout the year following their original execution. See DX-l40; Asimopoulos Ti. at 124; O’Neill Tr. at 186.
Trataros provided cost proposals in response to the RFP’s in February of 2000, and as of May 24, 2001, Trataros had not received a response to its February 2000 proposal. See PX-40a; Asiniopoulos Tr. at 124. In May, Trataros alerted Thomas to the fact that the prior year’s estimate would need revision, as there had thus far been no response to it and no action was taken on the work. On June 20, 2001, Trataros sent Thomas revised proposals reflecting the escalations in price and changes in scope that had occurred in the intervening 16 months, in the total sum of $373,580. See PX-40a; PX-41. Prior to completing the work, Trataros notified KG&D and Thomas by a letter dated August 7, 2001, that it could not perform the work for the cumulative sum of $199,524.40, established by KG&D and Thomas, but that it would comply
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with the Change Order and proceed with the work under protest. See PX-43; O’Neill Tr. at 186- 187, 254-255; Asimopoulos Tr. at 125-128.
The work performed under protest by Trataros under RFP’s 1,2, and 3 constituted extra work performed with White Plains’ full knowledge of Trataros’ protest to the Architect’s estimate. The difference in price between Trataros’ proposal and White Plains’ is $74,055.60. With its June of 2001 proposal, Trataros submitted a detailed and facially reasonable accounting of the estimated costs for completing the extra work. See PX-41. White Plains has proffered no meaningful response to Plaintiff’s proposal, nor in support of the sum it paid of $199,524.40. A consulting group hired by Travelers’ counsel reviewed Trataros’ February 2000 cost proposal, its June 2001 escalated cost proposal, and White Plains’ May 2001 estimates, and concluded that Trataros should have received additional compensation of $142,265.95 for the work performed under the RFP’s. Accordingly, Plaintiffs claim for additional monies for RFP’s 1,2, and 3 is allowed in the amount of $142,265.95.
Trench Cover
The original contract specifications called for a steel trench cover, and upon the direction of Mr. Davidson at KG&D, his office sent Trataros a “catalogue cut,” or specification, for an aluminum trench cover manufactured by a company called Balco. See DX-836; DX-728; Davidson Tr. at 837; 897. Mr. Davidson testified, and I find that Trataros forwarded to his office a new submittal based on the Balco aluminum trench cover specification it had received from KG&D, along with the Balco specification itself, and that KG&D approved the new submittal on
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December 17, 2000. See DX-728; Davidson Tr. at 838.
On February 6, 2001, Trataros notified KG&D that it would proceed with the installation of the requested aluminum trench cover under protest, as Trataros was under the misimpression that trench covers were not within its scope of work. Trataros provided a detailed cost estimate in the sum of $19,859.07. See PX-44; PX-45a. Trataros thereafter realized that the contract documents specified installation of a steel trench cover, and it submitted a revised proposal on April 26,2001, in the sum of $15,741.45, representing the total cost of using an aluminum trench cover minus the total cost of using the specified steel trench cover. See PX-45b; PX-l93 at p.29; O’Neill Tr. at 179-780.
Thomas’ rejection (DX-636) of the change order was inappropriate as the alteration from a steel to an aluminum trench cover was reasonably interpreted by Trataros to be required by the Architect, and Travelers’ claim for $15,741.45 is allowed.
PCO’s
Testimony at trial revealed that the Owner’s representatives, Thomas and KG&D, did not always adhere to formalities when it came to extra work. Russell Davidson of KG&D testified on cross-examination that the contract’s 21-day written notice rule, which applied to claims by either party, did not apply to the Owner’s claims for back-charges against Trataros because notice was given “during part of the normal communications on the job site” and “nor would you necessarily” have documented notice. See Davidson Tr. at 921-925. White Plains, KG&D,
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TMS, and Richard Lasselle, who served as the Assistant Superintendent for Business for White Plains, are all sophisticated parties who were on-site regularly, or even daily. See Dixon Yr. at 506-508; DePaul Tr. at 714; Laselle Tr. at 600. They had actual notice of the extent of the extra work undertaken by Trataros at their request, and that there would be additional costs. They are thereby deemed to have waived the contractual 21-day written notice requirement. This conclusion of the Court comports with its January 2006 decision in which it rejected Travelers’ contentions that White Plains was precluded from stating delay claims for its failure to furnish proper or sufficient notice of delay claims. In that decision, the Court noted that there was sufficient correspondence and practical knowledge as to the possibility of delay issues, considering the notice of possible default, the forbearance agreement and the notice of actual default. As earlier noted in this decision, White Plains’ handling of the PCO’s and Claims for extra work asserted by Trataros/Travelers, and of its own forced credit change directives, demonstrated that it had modified and/or waived the formalities described in the Contract, with respect to the claims and the change order process, as is allowed by law. SeeTridee Assocs., Inc.
v. NYCSCA, 739 N.Y.S.2d 179, 181 (2d Dep’t 2002).White Plains directed that the work be done and had actual notice of the extra work comprising the PCO’s.
The Court has considered the numerous PCO’s claimed by Travelers, numbered sporadically between the numbers 1003 and 1096, as well as the responses of White Plains to each of the PCO claims. Having considered the evidence and arguments, and with the exceptions noted below, the Court adopts the findings of fact proposed by Plaintiff Travelers in its proposed findings found in ¶¶l08-156, ¶¶l63-1 70, ¶¶ 77-237, and ¶¶242-260.
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The claim under PCO # 1003 is allowed in the amount of: $ 8,850.00
The claim under PCO # 1004 is allowed in the amount of: $ 64,546.00
The claim under PCO # 1006 is allowed in the amount of: $ 43,574.97
The claim under PCO # 1007 is allowed in the amount of: $ 2,553.35
The claim under PCO # 1011 is allowed in the amount of: $ 1,938.90
The claim under PCO # 1012 is allowed in the amount of: $ 750.00
The claim under PCO # 1014 is allowed in the amount of: $ 16,489.50
The claim under PCO # 1015 is allowed in the amount of: $ 2,961.22
The claim under PCO # 1017 is allowed in the amount of: $ 30,938.55
The claim under PCO # 1026 is allowed in the amount of: $ 14,308.00
The claim under PCO # 1030 is allowed in the amount of: $ 16,784.00
The claim under PCO # 1031 is allowed in the amount of: $ 4,645.00
The claim under PCO # 1085 is allowed in the amount of: $ 2,125.00
The claim under PCO # 1086 is allowed in the amount of: $ 21,461.00
The claim under PCO # 1038 is allowed in the amount of: $ 7,475.00
The claim under PCO # 1039 is allowed in the amount of: $ 17,236.97
The claim under PCO # 1042 is allowed in the amount of: $ 5,200.00
The claim under PCO # 1050 is allowed in the amount of: $ 17,241.00
The claim under PCO # 1054 is allowed in the amount of: $3,716.00
The claim under PCO # 1055 is allowed in the amount of: $ 3,503.00
The claim under PCO # 1060 is allowed in the amount of: $ 5,807.50
The claim under PCO # 1065 is allowed in the amount of: $ 5,642.00
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The claim under PCO # 1079 is allowed in the amount of: $5,047.35
The claim under PCO # 1080 is allowed in the amount of: $ 5,095.65
The claim under PCO # 1081 is allowed in the amount of: $953.58
The claim under PCO # 1088 is allowed in the amount of: $ 565.00
The claim under PCO # 1096 is allowed in the amount of: $ 3,352.21
The Court does not adopt Travelers’ proposed findings for PCO # 1029, PCO # 1082 and PCO # 1090. These three PCO claims are reduced or denied as set forth below. See generally, Proposed Findings of Fact submitted by White Plains.
The claim under PCO # 1029 is allowed in the reduced amount of: $ 6,311.80
The claim under PCO # 1082 is allowed in the reduced amount of: $ 3,188.90
The claim under PCO # 1083 is allowed in the reduced amount of: $ 3,151.00
The claim under PCO # 1090 is denied in whole.
Change Orders & Credits or Back-charges
The are several change order directives, which, according to White Plains, were negative change orders (credits to the Trataros Contract) representing back—charges for work done by other prin-ie contractors for the benefit of Trataros or to repair damage caused by Trataros or its subcontractors, and paid for by White Plains. See DX-127 at WPSD 001858; DX-l40 at WPSD 012834-882.
GC-25 is for temporary light and power supplied to Trataros by Burchetta in the amount
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of $3,019.94 represented by five different invoices. See DX-127, DX-140 at WPSD 012852-859. The Court agrees with Travelers that White Plains should not have paid for, nor back-charged for the temporary light and power provided in 2001 and billed in December 2003 via Change Order #CC-25, as the Owner was not to be involved in arranging for temporary power and lighting. However, the Court discerns that White Plains was likely billed for two out of five invoices referenced in the change order. Invoices ## 14316 and 13915 appear to show charges to White Plains of $235.32 and $823.62, respectively. Accordingly, Equity requires that the amount of $1058.94 be allowed as a back-charge. Upon production of documentary proof that the Owner paid Burchetta for the remaining invoices listed as part of GC-25, they may be also allowed.
GC-32 is a charge for repair to pole lights. Trataros acknowledged damage caused to the pole lights in the amount of $5,404.79 and only disputes the additional charges of $243.66, for installation of temporary power for Terrazzo repair ($162.44) and for the disconnect and removal of temporary power for Terrazzo repair ($81.22). See DX-127, DX-140 at WPSD 012860. For the same reasons applied to GC-25, the Court agrees with Travelers that the additional $243.66 for power services should not have been back-charged by White Plains, and the invoice documentation submitted in DX-140 does not clearly show if White Plains did pay Burchetta for those services, and in what amount. Accordingly, the amount of $5,404.79 is allowed as a back- charge. Upon production of documentary proof that Owner White Plains actually paid Burchetta for the power services, the additional amount of $243.66 may also be allowed.
GC-36 concerns damage to data cables allegedly caused by Trataros’ demolition efforts in
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the amount of $1,483.01. See DX-127; DX-140 at WPSD 012878-882. The evidence reveals that this cost was not properly back-charged by White Plains, as Burchetta was responsible for protecting the wires it removed prior to the demolition efforts. This back-charge is disallowed.
GC-39 concerns damage allegedly caused by Trataros to piping during the window replacement, requiring Richards to drill new holes and cut and cap the piping, at a cost of $2,015.44. See DX-127; PX-1 93. While DX-140 does not appear to contain a copy of the change order, the evidence shows that the damage most likely occurred as a result of a coordination issue, which should have been managed by Thomas, and in any case there is insufficient documentary evidence to allow the back-charge. GC39 is disallowed.
GC-40 for $52,571.00 concerns a credit sought by White Plains for Trataros’ and Travelers’ non-performance of terrazzo patching ($47,507) and ceramic tile work ($5,244) on entrance lobby columns, valued by KG&D for a total of $52,571.00. See DX-l27; DX-140. White Plains contends that the terrazzo patching was required and that the specifications called for tile on the columns. Travelers contends that the Architect’s drawings reveal a deliberate act by the designer to omit the tiles in the column area, in contrast to the background wall tiles, and that KG&D deliberately deleted the terrazzo base intended for the columns in a conversation with the flooring subcontractor. White Plains argues that any such discrepancies discovered by a contractor were to be addressed with the Architect. rt is not disputed that with regard to the tile work valued at $5,244 by KG&D, the Architect’s drawings differed from the specifications. Defendant’s exhibit DX-140, however, includes a copy of a memo dated August 17, 2001,
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written by Specialty Flooring Systems to Trataros, and copied to Erie Kaeyer at KG&D. The memo memorialized, from a meeting held that same day, an agreement between the Architect and the flooring subcontractor to the effect that the terrazzo base was deleted and that in lieu of a credit for that deleted work, the flooring contractor would install a thicker form of terrazzo elsewhere. See DX-140. The Court finds that the Architect knew of and approved this change from the specifications. Accordingly the portion of GC-40 representing a back-charge for tile work ($5,244) is disallowed.
Travelers contends that the terrazzo patching was not included in the contract, but by its expert report, concedes that the demolition drawing stated: “When you remove the old unit ventilator (UV), you must patch and paint.” See PX-l93. The report goes on to state that when the UV’s were removed in the corridors, “it was discovered that the UV’s were installed prior to the previous terrazzo being installed” and “TCI agreed to patch this area with concrete and then paint this area.” Id. With only minimal evidence and testimony having been offered on this matter, the Court finds that the necessity to patch the actual terrazzo was unforeseen and that the cost for the terrazzo cannot properly be back-charged by White Plains, where Trataros had agreed only to patch with concrete and to paint the area. Accordingly the portion of GC-40 representing a back-charge for terrazzo work is disallowed.
GC-41 involves the numerous PCO’s adjudicated supra.
GC-42 concerns interior and exterior work. Travelers concedes that $12,300 worth of
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punch-list items were left incomplete. The Court concludes that the forced change directive GC42 issued on November 19, 2003, was based in part on incomplete or old information. The amount of $ 12,300.00 is approved as a back-charge for work never ultimately completed by Trataros or Travelers.
Waiver of Substantial Performance Argument
Defendant urges the Court to conclude that Travelers waived its right to argue substantial performance because it failed to dispute Trataros’ default and to deny liability, but rather elected under Paragraph 4.1 to step in to complete the job, which it would not have had to do, had substantial performance been achieved by January 30, 2003, as argued by Travelers. It argues that if the Project had been substantially complete by January 30, 2003, Travelers would have had no further obligation under the Forbearance Agreement or the Performance Bond. Under the totality of the circumstances in this case, the Court disagrees.
With regard to a wholly separate issue earlier raised by Travelers, this Court held:
WPCNR NEWS AND COMMENT. By John F. Bailey. February 11, 2006: Monday marks the birthday of Abraham Lincoln, whose Presidential performance during the Civil War (1861-1865) was perhaps the most troubled of any American President. He had to create things as he went, dealing with a complex political issue: slavery, while deciding to fight a war to preserve a divided nation. How did Abraham Lincoln handle pressure and political opportunists? He did not have press agents and spinmasters and talk show hosts critiquing his every move and loading him up with advice. Let’s take a look.
In the days of Lincoln, media coverage was simply print media, however, the amount of reporting on the burning issues of the day was far more detailed than today with dozens of newspapers presenting the chronicles of burning issues. For Lincoln’s presidency was the presidency of the nation’s greatest crisis in its eighty-five year history:
The Civil War.
It is interesting to note how President Lincoln conducted himself in dealing with America’s interests, its factions, pulling him to free the slaves.
When Lincoln was running for the Presidency in 1860 at the Republican Convention in riproaring Chicago, he was up against James Seward, a powerful New York politician. However, the western states at the time were highly distrustful of the New York political machine. Lincoln won over support by taking a position of what was good for the nation as a whole.
Taking a Position and Working To it
Lincoln first gave notice of his potential for the Presidency when he impressed Horace Greeley, influential editor of the New York Tribune with a fiery speech at the Cooper Union in February, 1860, delivering a sharp criticism of the South, hard on the heels of South Carolina’s secession from the Union. The speech included these words,
You say you will not abide the election of a Republican President. In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! (The northern states) That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, “Stand and deliver, or I shall kill you, and then you will be a murderer!”
Greeley printed the speech in his Tribune the next day, scooping the other New York papers, by simply asking Lincoln for a copy of the speech. The subsequent printing in the popular Trib, sent Mr. Lincoln on his way. As William Harlan Hale’s biography of Mr. Greeley (Horace Greeley: Voice of the People)describes the scene at “The original Trib’s” offices, as remembered by Amos Cummings, a young proofreader:
Amos Cummings, then a young proofreader, remembered the lanky westerner appearing over his shoulder amid the noise of the pressroom late at midnight, drawing up a chair, adjusting his spectacles, and in the glare of the gaslight reading each galley (of the Cooper Union speech) with scrupulous care and then rechecking his corrections, oblivious to his surroundings.
A Comeback President
Lincoln had been a highly successful politician from Illinois in the 1830s and 1840s. He was three times elected to the state legislature, and The Kunhardts’ The American Presidency reports he was “a recognized expert at forming collations…he learned how to keep secrets, how to trade favors, how to use the press to his advantage. And he cultivated his relationship with the party hierarchy.”
Graff’s book writes that Lincoln was described as “ruthless,” that he “handled men remotely like pieces on a chessboard.” Humor and frankness were character traits.
Lincoln was elected a congressman, only to serve just one term.
Lincoln had been practicing corporate law privately and had lost interest in politics by 1854, until the repeal of The Missouri Compromise, which had restricted slavery to the southern states. Lincoln felt stirred to come back. He spoke out against the spread of slavery, running for the senate in 1858 against William Douglas, unsuccessfully.
Saving the Union His Mantra
As the furor over slavery and the South’s threats to secede grew, a crisis of spirit and purpose in this nation which makes today’s concerns about terrorism as a threat to America, pale in comparison, Lincoln realized that the Union was the larger issue. He expressed this in response to Horace Greeley, editor of the New York Tribune, an influential figure at the Republican (Whig) Convention in Chicago in 1860. Greeley was the kingmaker at the 1860 Chicago convention who eventually swung the western states for Lincoln, giving the man from Illinois the nomination on the third ballot over William Seward, the candidate of the Thurlow Weed “New York Machine.”
Greeley then tried to influence the President-Elect to free the slaves. (Lincoln was being lobbied by the still-powerful Weed-Seward faction to compromise with the southern states on the issue of slavery).
Standing Tall Against Pressure.
Lincoln refused to free the slaves as one of the first acts of his presidency, standing firm to hold the union together, when he announced his attention not to do so, on his way to Washington after being elected. His words in this time of international tension, are worth remembering as America considers starting a war for the first time. Lincoln said:
I have often inquired of myself what great principle or idea it was that kept this Confederacy (the Union, he means), so long together. It was not the mere matter of separation of the colonies from the motherland, but that sentiment in the Declaration of Independence which gave liberty not alone to the single people of this country, but hope to all the world, for all future time. It was that which gave promise that in due time the weights would be lifted from the shoulders of all men, and that all should have an equal chance.
Seeing the Big Picture.
After Fort Sumter was fired upon, Lincoln was pressured harder to free the slaves. Still, Lincoln held firm. Mr. Greeley published a blistering open letter to the President, he called “The Letter of Twenty Millions,” meaning his readers (slightly exaggerated)in The New York Tribune. Greeley’s letter took the President to task for not freeing the slaves now that the Civil War was on, writing, “all attempts to put down the rebellion and at the same time uphold its inciting cause are preposterous and futile.”
President Lincoln responded with an open letter which Greeley published in The Tribune. President Lincoln’s letter is instructive as to how a President moves in crisis, when a nation is ripped apart to calm and state his position. He begins with a conciliatory tone, calming Greeley’s bombast:
…If there be perceptible in it (Greeley’s letter) an impatient and dictatorial tone, I waive it in deference to an old friend whose heart I have always supposed to be right.
As to the policy I “seem to be pursuing,” as you say, I have not meant to leave any one in doubt. I would save the Union. I would save it in the shortest way under the Constitution.
The sooner the national authority can be restored the nearer the Union will be – the Union as it was.
If there be those who would not save the Union unless they could at the same time save slavery, I do not agree with them.
If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them.
If I could save the Union without freeing any slaves, I would do it – if I could save it by freeing all the slaves, I would do it – and if I could do it by freeing some and leaving others alone, I would also do that.
What I do about slavery and the colored race, I do because I believe it helps to save this Union, and what I forbear, I forbear because I do not believe it would help to save the Union.
I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I believe doing more will help the cause.
I shall try to correct errors when shown to be errors, and I shall adopt new views so fast as they shall appear to be new views.
I have here stated my purpose according to my views of official duty, and I intend no modification of my oft-expressed personal wish that all men everywhere could be free, Yours
A. Lincoln
Wearied by War
Horace Greeley described the toll the Civil War had taken on Mr. Lincoln, seeing him in person shortly beforeGeneral Lee surrendered. Greeley wrote:
Lincoln’s face had nothing in it of the sunny, gladsome countenance he first brought from Illinois. It is now a face haggard with care and seamed with thought and trouble…tempest-tossed and weatherbeaten, as if he were some tough old mariner who had for years been beating up against the wind and tide, unable to make his port or find safe anchorage…The sunset of life was plainly looking out of his kindly eyes.”
WPCNR STAGE DOOR. From Westco Productions. February 10, 2007: Westco Productions, Westchester County’s vibrant and growing multi-media impresarios will present a musical performance of an original show called “From Roots To Rap” at Thomas H. Slater Center in White Plains February 22 at 7 PM featuring 23 children ages 8-13 from low-income families in White Plains. The performance is the culmination of eight weeks of preparation and rehearsal. It is part of Westco’s ‘Page To Stage’ program, an after-school cultural arts/literacy assistance workshop for disadvantaged children. The program’s intent is to aid children in learning words, reading, memorization, and self-confidence through the vehicle of theater.
“From Roots To Rap,” traces music history from early African rhythms to present day popular music. During the course of rehearsals, the children learned about various writers and artists, their biographies and the techniques they used. They also read and learned about the relevance of music during the time of slavery and how rhythm and blues influenced the American music scene during the 20’s and 30’s. Diane Hadley is the Director with Musical Direction by Rev. Frozine Smith and Choreography by Min. Virginia Young. Stage Manager/Historian is Dr. Alvin Pulliam.
The performance will take place on Thursday, February 22, 2007 at 7:00 pm at The Thomas H. Slater Center, 2 Fisher Court, White Plains and is free to the public.
The program is made possible through grants from The Edith Glick Shoolman Children’s Foundation and The Paul & Harriet Weissman Family Foundation. For information on Page To Stage or any of Westco’s other programs call 914-761-7463 or visit their website at www.westcoproductions.org.
WPCNR GALLERIES, GLITZ GUESTS & GLAMOUR. From Ann Brady, Purchase College. March 10, 2007: The Purchase College School of the Arts, School of Art+Design presents the BFA Thesis Exhibition Series 2007, rotating exhibitions showcasing the diverse talents of its undergraduate students, beginning this Monday, March 12 through May 4, 9AM-5PM, Monday-Friday. The weekly exhibitions will be on view in various spaces and galleries in the Art+DesignBuilding. The series is free and open to the public. For more information, call 914-251-6750. Each exhibition will highlight the work of graduating seniors in the areas of painting, drawing, sculpture, video, sound, photography, printmaking, graphic design and installation. Purchase College, State University of New York, is located at 735 Anderson Hill Road, Purchase, N.Y.
WPCNR’S THE HOMELESS NEWS. By John F. Bailey. February 9, 2007: Chair of the County Board of Legislators White Plains’ William Ryan (District 5), reacting to the County Executive Andy Spano’s scrapping the plan to build a new facility for the hardcore homeless at the Westchester County Police Headquarter in face of angry opposition, told WPCNR Thursday he would move to involve county Mayors, Supervisors and leaders of the Westchester towns, villages and cities in “substantial discussion” of “equitable distribution around the county of those who choose to live on the streets and not take advantage of Department of Social Services programs.”
Ryan Calls on Municipal leaders to Address the Hardcore Homeless Distribution Problem. Would Work with Mayor Delfino towards a leaders summit on equitable housing and distribution of the street people.Photo, WPCNR News ARCHIVE
He said it was his intention to make the hardcore homes “a major topic” at the next meeting of the Westchester Municipal Officials Association, which convenes the chief executives of county towns and cities to deal with major issues.
“It’s time to look at Westchester in its entirety as to how to serve the homeless street people in Westchester,” Ryan said.
Asked if he would reach out to Mayor Joseph Delfino of White Plains, who has for the last year advocated for such a countywide discussion, Ryan said he would be willing to team with the Mayor in presenting the situation to county leaders.
Ryan said, (noting recent rhetoric over housing hardcore street people) suggested leaders needed to “relax, take a deep breath, stop thinking politically and bring to the table a reasonable understanding of what the (hardcore homeless) situation is.”
Wednesday evening, Mayor Delfino, told WPCNR that since White Plains had the 85 Court Street shelter and was seeking to have it removed, and that he had taken the stance that all the homeless there would be returned to White Plains anyway even it the shelter had been moved, he was in an awkward position asking other municipalities to take the homeless. He said he advocated a county wide discussion among leaders on devising a system where homeless persons from individual communities were cared for by those communities.
Ryan said some certain communities housed more than their fair share of the homeless, naming White Plains as one of them. He said the County Department of Social Services and the county’s community leaders needed to address the distribution problem as a team: “It’s needed now. It has to happen.”
Asked why County Executive Andy Spano had backed off the Police Headquarters placement of the new “hardcore homeless shelter,” Ryan said the County Executive was committed to closing the 85 Court Street shelter: “He made the decision to close 85 Court Street. A mistake was made. Mount Pleasant threatened to sue. He probably consulted with the county attorney, and decided they would lose the suit based on the agreement.” Ryan suggested other locations are being considered.
WPCNR SCHOOL DAYS. By John F. Bailey. February 8, 2007: As first reported last night by WPCNR, the school district has lost a lawsuit in U.S. District Court, filed by the Travelers Casualty and Surety Company, seeking payment as part of its assuming responsibilities of the Trataros Construction Company, original contractor for the $28 Million White Plains High School renovation completed in 2003.
According to Superintendent of Schools Timothy Connors speaking to WPCNR this morning, the district is subject to a court order directing the district to pay $2 Million to the Travelers Casualty and Surety Company. Mr. Connors indicated this afternoon that there is no further payment the district would face other than this payment, saying “The only payment we have here is the court order. There is nothing else out there to my knowledge.”
Connors also said there was $800,000 in funds left in the high school project, for the district to draw on to pay the court order sum, but that he did not know what the exact amount the district would have to pay “until our lawyers advise us.”
Asked if $2 million was the maximum possible amount the district faced stemming from the oft-delayed high school construction, Connors said, “our attorneys are reviewing it to see what the actual cost is.” Asked if the reported $6 Million other contractors had sued the district for in 2004, were still owed money from the project, Connors said “Some of that is part of this order,” (the $2 Million court order), but he emphatically said, “there is nothing else out there.”
WPCNR asked Mr. Connors this morning if the district was going to appeal the ruling. Connors said the district was to meet with their attorneys to see what its options were, had not ruled out an appeal, and to review the $2 Million payment, mentioning there were some “offsets,” but did not explain.
WPCNR has asked a follow up question to Mr. Connors this afternoon, whether the $28 Million project, completed in 2003, considering this court order and the district claim of $7 Million from the Travelers Casualty being thrown out means the actual cost of the high school project was $37 Million, and was not “under budget” as glowingly reported by the district at its conclusion. Mr. Connors said he could not answer that question because he did not know what I was referring, but he would give a final total.
No full disclosure
The Court Order is a surprise because the existence of the suit and detailed circumstances and disputed dollar amounts of this on going legal action involving the school district with Travelers Casualty, and other contractors was not disclosed publicly by the Board of Education at any public meeting since the completion of the high school project.
The suit was not disclosed or addressed publicly by the board when Kaeyer, Garment & Davidson was under consideration as the artchitect to conduct the District facilities review and estimates for facility improvements. The school district used KG & D estimates as the basis for developing the scope of its $69.6 Million capital project.
The existence of the court order the district faces was not disclosed to the Annual Budget Committee which met for the first time Tuesday evening to review the proposed $174.5 Million budget.
Mr. Connors is at the Strategic Plan Core Committee meeting at the Crowne Plaza Hotel through Friday.
WPCNR West Side Story. By John F. Bailey. February 8, 2007: Mayor Joseph Delfino, four of his commissioners, the Executive Director of the BID, and members of the Mayor’s staff made an earnest and positive start to the “renaissance of South Lexington Avenue” last night. The energetic Mr. Delfino, in a virtuoso peformance, acted more as emcee of the meeting, taking questions for 3 hours as he and his staff sought the ideas and dreams that Winbrook residents, merchants and property owners have for their East Post Road and Lexington Avenue neighborhood.
The Mayor did not ruleout eminent domain to achieve cooperation among business owners, but held out hope that compromise and negotiation would make eminent domain unnecessary. The Mayor also said another meeting would be held with the neighbors after the BID vote had been taken. The Mayor said a mix-use of affordable housing on Lexington Avenue was the city’s idea on how to revitalize, but said only if the neighborhood agreed with him.
Mack Carter, Executive Director of the White Plains Housing Authority, galvanized the community with an earnest declaration that the residents needed to express their vision for the kind of face they wanted their neighborhood to have, and to create for their children the atmosphere that would help their children fulfill their potential. Carter criticised the present establishments landlords rented to along the Lexington Avenue across from Winbrook, saying that had to change to change the neighborhood.
Carter said many of the stores were much higher priced than stores elsewhere in the city for food goods and that the food was not good food for the residents, being of the fast food nature. He also criticised the multiple liquor stores on the Lex stretch. Carter’s talk which I have just sketched here galvanized the audience who agreed with encouraging comments that Carter was right on the money.
Mayor Delfino started the meeting telling the residents that “Winbrook is here to stay,” imploring the residents to contribute their ideas how how they wish the west side of South Lexington Avenue to look. He had his Commissioner of Planning, Susan Habel, and Commissioner of Public Works Joseph Nicoletti explain the street scape designs scheduled to be installed on South Lexington Avenue this summer, beginning at Main Street and working South towards East Post Road. The Mayor announced a $1 Million grant secured by Senator Hillary Clinton for the street facelift. A more precise explanation of the grant is expected from City Hall Thursday morning.
About twenty speakers came to the podium and spoke on concerns and visions. Topics that the residents said needed to be addressed to make the neighborhood prosper was the need for jobs for young people 14 to 25. One speaker said the youth unemployment rate in the neighborhood was 45%.
At least seven persons spoke on the need to improve the Thomas H. Slater Center. The Mayor said he was waiting input from the ministers of the area and anyone else who wished to give the city their ideas for upgrading the center.
There were a few comments about the need for affordable housing in the area, but they were far outweighed by complaints of residents about parking, fears that Albert Moroni (Commissioner of Parking) was going to install meters along Winbrook curbs.
There were about five persons who stressed the need for more minorities and minority contractors to be hired on jobs in the future Lexington Avenue rebuilding. The mayor responded by agreeing at Mack Carter’s suggestion to create a Directory of Minority Contractors to provide to contractors as the rennaissance hit Lexington Avenue.
The Mayor said that beyond the streetscapes the character of the neighborhood would depend on what the neighborhood, the property owners on Lex and East and West Post Road would envision it to be. Later in the meeting the Mayor said his vision was to build more affordable housing and said he would work to rezone to make the Lex stretch multi-use zoning (mix of residential and retail) which the Mayor said would enhance the value of property owners’ parcels.
The Mayor said affordable housing was the city’s vision of what would uplift the Lexington Avenue neighborhood but hastened to make it clear to the residents that if that was not what they wanted, the city would not force it.
Asked by one property owner if the city would use eminent domain to acquire properties, the Mayor said the city and the Common Council had not used eminient domain in the past and was reluctant to use it. He said he hoped to negotiate with property owners to convince them to bring about the new businesses that could revitalize the stretch. One resident suggested a large supermarket with better prices. The Mayor explained he did not think that was possible because of the parking requirements most large supermarkets required for viability.
The Executive Director of the Downtown Business Improvement District, Rick Ammirato, explained the benefits the BID would bring to the area, and said that a meeting would be held in March to explain all the BID could do to business owners in the Lex corridor, to be followed by a vote. He said that if 51% of the business owners or 51% of the largest property owners voted against joining the BID, he would attempted to assemble businesses on an individual basis to join the BID. He noted that The Galleria is in the district and is currently not in the BID.
Mayor Delfino told WPCNR that after the BID decision was made, he would hold another meeting with the neighborhood just as he did tonight to encourage them and draw out from them more reaction and to articulate more of their vision.
The neighborhood support for the renaissance coming to Lexington Avenue was there.
