Tuesday February 5, 2013

ROCKINGHAM -- The town's attorney said there is no merit to lawsuits, or potential lawsuits, filed against the town in relation to Baybutt Construction Co. and its failure to pay sub-contractors for work on the Rockingham Free Public Library.

Stephen Ankuda said Lawrence & Lober Electric and Hodgkins & Sons are among the companies ready to go to court against Rockingham, Baybutt and architect Eric Palson of Sheerr McCrystal Palson Architecture Inc.

Baybutt, a company based in Keene, N.H., was hired by the town as the general contractor for a complete renovation project of the library. But the Rockingham Selectboard was one of several entities to terminate its contract with Baybutt for a variety of reasons, including the corporation's failure to pay subcontractors and secure a required performance and payment bond. Selectboard members also said Baybutt falsely stated, under oath, that all appropriate amounts were paid to subcontractors that issued certificates for payment.

Baybutt did not take out a performance bond or a payment bond, which act as a sort of insurance contract, as Ankuda said was a project requirement from the town. Baybutt submitted a statement, which said the business was entitled to be paid for percentages of the project completed and that it had a $21,000 performance bond, which it actually did not.


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Ankuda said he was told Baybutt thought it had all the necessary bonds.

Some sub-contractors, or subs, are now suing the town for not making sure Baybutt had the proper bonds and because they have not been paid.

Ankuda said Rockingham has already paid Baybutt roughly $900,000 for the percentage of work done on the library and for the performance bond that did not exist. He told the Reformer a general contractor is required to compensate the subcontractors within seven days of being paid. He said the town's contract was with Baybutt - not the sub-contractors - and the only legal obligation the town had was to pay the corporation.

When asked if this was his own legal opinion, Ankuda said it was the way the contract was worded. The subs were under a separate contract with Baybutt.

Lawrence & Lober Electric did not return a phone call and Russ Hodgkins, owner of Hodgkins & Sons, had no comment for the Reformer.

Joel Letourneau, owner of Joel Letourneau Drywall LLC in Surry, N.H., said his suit against Rockingham will be filed within a few days. He said he is suing the town for being negligent and not doing its due diligence in ensuring that Baybutt had all the necessary bonds. "They really dropped the ball," he told the Reformer on Monday before commenting on why he thinks the town has taken the position it has. "They're going to say what they have to say to protect their interests."

He said he has not been paid a penny of the $75,000 Baybutt owes him for the work he did.

Ankuda also said some sub-contractors have also filed mechanics liens in the Rockingham town land records office against the amount of money owed to Baybutt from the town. Once a lien is filed, he said, a judge must approve it within 180 days as part of due process in order to become a lawsuit. Ankuda said Lawrence & Lober's lien is set to go before a judge on Monday, March 4.

Work was halted at the site for a while when all sub-contractors refused to continue their jobs, insisting they have not been paid for the work they had done. But the library's board of trustees voted on Tuesday, Jan. 15, to have Engelberth Construction Inc. close in the building's roof and walls and to make sure the structure is reasonably weathertight. Municipal Manager Tim Cullenen said Engelberth is working to "button up" the building and a few of the subs were back to work.

Rockingham Selectboard Chairman Tom MacPhee said Engelberth has not been named the new general contractor, though that is a possibility. Cullenen said a letter has been sent to the project's previous bidders to determine if they are interested in the job.

MacPhee told the Reformer contracts with the subs and where the project should go from here will be discussed in an executive session at 6 p.m. tonight, before a Selectboard meeting in the Rockingham Town Hall Lower Theatre.

The state of Vermont also canceled a contract with Baybutt, which has been doing work in New England since 1964, due to problems similar to those in Rockingham. The next was the town of Antrim, N.H., which terminated a contract to build a new police station.

Domenic Poli can be reached at dpoli@reformer.com, or 802-2542311. You can follow him on Twitter @dpoli_reformer.