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HomeMy WebLinkAbout31160 - MINUTES - City Commission ® r, ® CLARKE IvALDEN ATTORNEY AT LAW ROOCal C.OUDOW DANIA,FLOI2IDA September 30i 1966 SPEECIAL DELIVERY Mayor-Commissioner James G. Adams Commissioner Gus Brice Commissioner Frank Salvino Commissioner S. Ellis Young Commissioner Carl Zenobia Re: Our file number M-1856-W Gentlemen, ® Reference is made to the contract dated January 22, 1965, between City of Dania and M. B. Construction Company concerning the sanitary sewer project. 0 Initially, the engineer (Philpott, Ross & Saarinen, Inc. ) projected a completion date of Mla.y 24, 1966. When the contract was not completed on such date or within a short time thereafter, the commission, Mr. Philpott and the contractor had a meeting which I recall was held on or about July 5, 1983. At such meeting, the progress of construction was discussed and the contractor estimated that he could complete the work to the satisfaction of the A englneer by August 1, 1966. On the assumption that the contractor would use proper engineering methods and the necessary work crews and shifts, the en- gineer concurred that the estimated date of August 1,. 1966, was possible and reasonable. 6 When the work was not completed around August 1st, the city manager and I (at the suggestion of the commission) began holding frequent meetings and con erences. Usually, representatives of the contractor and the engineer were present. The basic purpose of the meetings was to attempt to obtain some r eliabie estimate of a completion date. We were never able to obtain a reliable ® estimate of a time for completion and I recall that we discontinued holding the meetings towards the latter part of August. On my own initiative, I telephoned the local agent for the insurance company which gave the surety bond that is a part of the contract. My first a call to the local agent was around the middle of August. The purpose of the call was to inform the agent of the delays that had been suffered to date and to advise of the impossibility of obtaining an estimated completion date. Finally, L bagan telephoning the insurance company, Peerless Insurance Company, at is home office in Keene, New Hampshire. My first telephone call to Keene a:as on August 18, 1966. Basically, the reason for the telephone calls was to advise tha surety of the situation which existed with reference to the perform- ance of the contract. As the result of the telephone calls, the surety has retained a Miami law firm, Blackwell, Walker & Gray, to act on its behalf in the matter. Mr. i CLARICE IVALDEaY ' z iwayor-Commissioner James G. Adams Commissioner Gus Brice m 4u Commissioner Frank Salvino 0 Commissioner S. Ellis Young Commissioner Carl, Zenobia �r. 131 September 30, 1966 �- page Two. ivelvin T. Boyd of the firm is actually handling the.matter for the insurance company. Further, the insurance company has employed a Fort Lauderdale engineering firm, Davis & Craven, Inc. , to advise it as to engineering mat- _ a ters. Mr. Craven is handling the matter for the engineering firm. I am aware '+r of tree fact that Mr. Craven has met with Mr. Philpott to discuss the engineer- ing problems and the progress of construction. Further, I understand that Mr. Craven and his firm have thoroughly reviewed the construction plans and specs- "t fications and that they havo made an on the job inspection in Dania. n Since August, I have also had discussions with Mr. Philpott as to whether the city should take any action to terminate the contract with the pre- ; sent contractor for any of the reasons set forth in the "general conditions" sec- tion of the contract. As late as September 7, 1966, (when Mr. Philpott ad- dressed a letter concerning the contract to the commission), Mr. Philpott has recommended that no attempt be made to change contractors. Such recommen- dat"ion is based on the idea that any change of contractors will simply lead to -art delays. Obviously, the recommendation is sound if the contractor is t_.ang diligent and proper methods to complete the contract in accordance with sound engineering principles. Last week, the city manager reported to me that he was receiving complaints from several commissioners to the effect that no substantial work leas being done on the project. I understood from him at the time that little work had been done for about two days around the intersection of Park Street and S. E. Second Avenue which seems to be the location of a major difficulty. -'.s a result of such report, I arranged a meeting with Mr. Boyd and Mr. Craven i^ _�Jiiami on Tuesday of this week. I had another meeting with Mr. Boyd in Mi- a ni yesterday. S In substance, Mr. Boyd assures me that Peerless Insurance Company recognizes its obligations under the bond and that it will take whatever steps are necessary to make certain that the construction will be completed in accor- dance with the contract. He further assures me that if the contract with the pre- sent contractor is terminated, in accordance with the "general conditions" sec- -Lion of the contract, the insurance company will then employ another contractor to col plete the construction. If the city takes no action towards terminating t he contract, I understand from Mr. Boyd that the insurance company will still ran:air. interested I the job and that every cooperation will be given to the city and to the present contractor in working together towards completing the con= tract at the ear7.iest possible date. The "general conditions" section of the contract provides: "OWNER'S RIGHT TO TERMINATE CONTRACT - If, in the opinion of the Owner, the Contractor shall be improperly performing said work, or shall neglect or refuse to take out No ®.. -MEW o CLARICE WALDEN Vayor-Commissioner James G. Adams Commissioner Gus Brice Commissioner Frank Salvino ® Commissioner S. Ellis Young Commissioner Carl Zenobia September 30, 1966 Page Three. or rebuild such work as shall have been rejected by the Engineer as being defective or unsuitable, or if at any time the Owner.shall be of the opinion that the said work is being unnecessarily delayed and will not be finished. within the prescribed time, they shall no- tify the Contractor in writing, and if the Contractor shall not within ten (10) calendar days thereafter, take such measures as will, in the judgment of the Owner, ® insure satisfactory performance, construction and completion of the work, the Owner may notify the Con- tractor to discontinue all work under this contract. The Contractor shall immediately respect said no- tice and stop said work and cease to have any rights ® in the possession of the ground and shall forfeit his contract. The Owner may thereupon advertise and let a contract for the uncompleted work in the same manner as was followed in the letting of this contract and charge the cost thereof to the original Contractor upon his contract; any excess of cost arising there- ® from over and above the original contract price shall be charged against the original Contractor and his surety or sureties who shall be liable therefor. If the Contractor shall assign this contract or any money accruing thereon or approved thereon, or abandon the work, or shall refuse or neglect to com- ply with the instructions of the Owner or Engineer relative thereto, or shall in any manner fail to com- ply with the specifications and stipulations herein con- tained, the Owner shall have the right to annul and cancel this contract and proceed to advertise and re- let a contract for the unfinished work, and such annul- ment shall not entitle the Contractor to any claim for damages on account thereof, nor shall it affect the right of the Owner to recover damages on account of such failure." It is not my nlnction or duty as city,attorney to recommend to you mhetner you should exercise the termination rights under the contract. You srould make the decision based on the daily reports of the engineer, any recommendation from the engineer and the recommendation of the city man - acer. 1 talked with Mr. Philpott,yesterday and he declines to estimate a com- letion date because he simply does not have exact information as to the pro- cedures, number of crews, etc. that the contractor is willing to employ on the job. CLARKE WALDEN Mayor-Commissioner James G. Adams Commissioner Gus Brice ® Comraissicner Frank Salvino Commissioner S. Ellis young Commissioner Carl Zenobia September 30, 1966 Page Four. • Mr. Boyd is willing to meet with the city to discuss the situation further. 1 understand that he will try to meet with Mr. Mears today or to- morrow and such meeting may cause him to have information that will assist ® you. I have asked Mr. Boyd to be at the city hall on Monday, October 3, 1966, at 7:30 to meet with you informally. He has agreed to try to do so although another committment may make it impossible to attent. It is my opinion that the city has given the contractor every oppor- tunity to complete the contract and that the point has been reached where some action must be taken to bring the matter to an immediate conclusion. I do strongly suggest that you consider at the next commission meeting whether the city has reached the point where the contract should be terminated either because of inability or unwillingness of the contractor to perform in a reason- ® able and diligent manner. I feel that Mr. Philpott would concur in my sugges- tion to you and you may want to invite him to the meeting. A resolution will be necessary in order to take the preliminary steps required under the contract. I enclose herewith a form of resolution which ® may be used in the event the commission wants to take action. Yours very truly, Clarke Walden CW/sc enclosure • cc (with enclosure) to: Melvin T. Boyd, Esquire Mr. Stanley Goldberg c/o Blackwell, Walker & Gray City Manager Attorneys at Law City of Dania ® First Federal Building Dania, Florida Miami, Florida Mr. j. H. Philpott Mr. Warren S.' Craven c/o Philpott, Ross & Saarinen, Inc. c/o Davis & Craven, Inc. Engineers Engineers 207 East Broward Boulevard 1699 East Oakland_ Park Boulevard e Fort Lauderdale, Florida Fort Lauderdale, Florida