ROCKINGHAM — The town will receive $100,000 in a settlement from an architectural firm that handled the renovations at the library.
However, this is a measly sum to many members of the community, as the whole process has cost the town about $700,000 for the project, according to Town Manager Willis "Chip" Stearns. In 2013 the town filed suit against Sheer McCrystal Palson Architecture, charging the firm with being negligent. The firm was hired to uphold the July 2011 contract for the $3 million construction project and to provide services for the repair, rehabilitation and renovation of the library. However, the firm was faulted for failing to ensure the construction company, Baybutt Construction of Keene, N.H., had taken out the required performance and payment bonds. The town paid $23,000 for the bonds, which Baybutt never took out.
"This is not one of our shining moments," said Rockingham Select Board Chairman Lamont Barnett who was elected in March and was not involved in the contract process or oversight of its implementation.
Town Attorney Stephen Ankuda announced this tentative settlement at the Tuesday night Rockingham Select Board meeting. Ankuda said they have been negotiating on a settlement for a few years with multiple depositions, and that the money will come back to the town in the next week or so. He noted this settlement case did not cost the town anything out of pocket.
In 2012, Baybutt's financial problems were brought to the forefront when subcontractors at the library walked off the job, stating that Baybutt had not paid them.
Ankuda wondered if the architects had "screwed up on day one," how could the town have lessened the impact? He provided the example that if July 1 was the first day that the request for payment was effective, and if the architects had known by July 15 that subcontractors were not being paid, they would have stopped the project and made sure Baybutt was paying the subcontractors.
Ankuda added that if Baybutt had been paying the subcontractors, it would have been fine, but if not, as was the result, the architects and the town should have searched for the bond and would have found it was not taken out.
"There are duties on both sides. The municipality had a duty to make sure the bond was in place; it wasn't free from that obligation. The architects, in our opinion, had a duty to make sure the bond was in place. So there was a sharing of the fault," Ankuda said.
Another factor was that under the contract through the architects the extent of their liability was limited to the amount they were paid under the agreement. According to Ankuda, the contract was for $238,000, which was negotiated as part of the agreement.
At the time workers had walked off the job, the library remained under construction with its roof open and Baybutt was removed from the project. In order to get the subcontractors to complete the project as modified with a full warranty, the town made a deal saying it would pay the contractors half of what Baybutt owed them at that time, according to Ankuda. He said the town still has some accounting to do with the 15 to 20 subcontractors.
Baybutt owner Fred Baybutt later filed personal bankruptcy and the construction company went out of business, with a financial disaster left behind involving construction projects in Brattleboro, Bellows Falls, Keene, N.H., and Nantucket, Mass.
Ankuda noted that no cases in the history of the country were discovered where an architect was found responsible for not making sure the performance and payment bonds were in place, which hampered the town's case for reimbursement.
In addition, the cuts to the project totaled $313,000, according to previous statements by Stearns, including the elimination of custom millwork.
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