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2003-05-06 SPMTuesday, May 6, 2003 5:30 pm Wappinger Town Hall SPECIAL MEETING AGENDA Call To Order Executive Session Resolutions: 2003-136 - Resolution Authorizing Justice Court Assistance Program Grant. 2003-137 Resolution to authorize the Town of Wappinger to Declare a Contractor Default Pursuant to 1999-2R No. 6. New Business/Comments Adjournment 05/06/2003.SPM A Special Meeting of the Town Board of the Town of Wappinger was held on May 6, 2003 at the Town Hall, 20 Middlebush Road, Wappingers Falls, New York. Supervisor Ruggiero called the Meeting to order at 5:50 p.m. Present: Joseph Ruggiero, Supervisor Robert Valdati, Councilman Vincent Bettina, Councilman Christopher Colsey, Councilman Joseph Paoloni, Councilman Gloria J. Morse, Town Clerk Others Present: Al Roberts, Attorney to the Town Jay Paggi, Engineer to the Town The Supervisor Scheduled the Special Meeting for May 6, 1998 to authorize the Justice Court Assistance Program Grant, and to discuss contract violations between Clayton Industries and the Town of Wappinger in reference to the Town of Wappinger Water Improvement Project known as 99-2(R) contract No. 6. RESOLUTION 2003-136 RESOLUTION AUTHORIZING JUSTICE COURT ASSISTANCE PROGRAM GRANT The following resolution was introduced by Councilman Paoloni and seconded by Councilman Colsey. WHEREAS, the Town of Wappinger Justice Court is eligible for a grant from the State of New York Unified Court System through the Justice Court Assistance Program; and WHEREAS, Town of Wappinger Justices, Carl S. Wolfson and Heather L. Kitchen, and the Town of Wappinger Justice Court Chief Clerk, Cheryl Hait, have recommended an application for such grant be made; and WHEREAS, Justice Carl S. Wolfson and Chief Clerk Cheryl Hait have prepared an application to the Justice Court Assistance Program Grant in the form attached hereto. NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby authorizes an application to be made on behalf of the Town of Wappinger Justice Court pursuant to the Justice Court Assistance Program for a grant in the amount of Three Thousand, Three Hundred Dollars ($3,300) as set forth in a copy of the attached application for said Grant. 05/06/2003.SPM The Town Board authorizes said application to be signed by Supervisor Joseph Ruggiero as well as Town Justices Carl S. Wolfson and Heather L. Kitchen and further authorizes and ratifies the actions of Supervisor Joseph Ruggiero who signed the certification attached to the application dated May, 2003. The foregoing was put to a vote which resulted as follows: JOSEPH RUGGIERO, Supervisor Voting Aye ROBERT L. VALDATI, Councilman Voting Aye VINCENT F. BETTINA, Councilman Voting Aye JOSEPH P. PAOLONI, Councilman Voting Aye CHRISTOPHER J. COLSEY, Councilman Voting Aye The Resolution is hereby duly declared adopted. At this time Attorney to the Town Al Roberts announced that the board has before them tonight, a very comprehensive Resolution authorizing a contractor default in connection with Wappinger Water Improvement Area 1999 24R) Contract No. 6 with Clayton Industries, Inc. He has notified Clayton Industries through their attorney, Frederick Maute, regarding tonight's meeting. Mr. Maute had faxed a letter to Mr. Roberts, dated May 5, 2003, that Mr. Roberts received at 3:42 p.m. suggesting that there was no response to some correspondence that he had submitted on May 5, 2003. Mr. Roberts would like to go on record that Mr. Maute's letter was received by his office after the close of business on Friday, May 2nd, and that the next morning, Saturday, he dictated a response which did not go out until Monday afternoon. Jay Paggi, Engineer to the Town also responded to Mr. Maute's request by fax dated May 2, 2003. There is also a letter from Mr. Maute dated May 5, 2003 complaining that there was no response. Mr. Maute presented a letter to Mr. Roberts several minutes ago dated May 6, 2003 hand delivered, addressed to the Town Board and signed by Harry C. Serviss III, President of Clayton Industries. The letter reads as follows: Attn: Hon Joseph Ruggiero, Supervisor Reference: Wappinger Water Improvement Contract No. 99-2R-616' Water Line Installation Town of Wappinger Dear Mr. Ruggiero: We are declaring you in Material Default of the contract and terminating the contract of the above project for the following among others. 1. The attempts by the Engineer to impose day to day management of the project despite the contract provisions not authorizing this. 2. The uncooperative actions of the engineer in starting the project back up. After the winter shut -down. 2 05/06/2003.SPM 3. The failure of the Engineer to respond to the work schedule faxed to them on May 1, 2003, and arranging for inspection of project so work could commence on May 5, 2003. 4. The failure in responding to Clayton's counsel in his attempts with the Town Engineer and Town Attorney to recommence work on May 5, 2003 including letters conceding numerous points to the desire of the Town of Wappinger We will be submitting invoices for work completed to date. Very truly yours, Harry C. Serviss III, President cc: Paggi Martin & DelBene, LLP Hon. Gloria Morse, Town Clerk Members,, Town Board Attached to tonight's Resolution is a certification letter dated May 6, 2003 from Paggi, Martin & DelBene, signed by Joseph E. Paggi Jr., certifying to the various acts of non-compliance by Clayton Industries required by the contract dated August 15, 2002 in connection with Wappinger Water Improvement 99-2(R). At this point, Mr. Roberts wished to give Mr. Maute and/or his client an opportunity to be heard before further deliberations are made on the resolution. Mr. Maute explained when he first came here he had a favorable impression of everyone. He came in connection with " the progress meetings." He spoke to Mr. Roberts when a question was raised on July 2, 2003, by another contractor, which by the way was totally slanderous and untruthful. At that point the Town Board and Attorney to the Town undertook a fairly lengthy investigation and received recommendations that Clayton Industries work was good. The problems that were alluded to by Mr. Paggi were untrue. In any event, Clayton was awarded the contract after a six week delay and given notice to proceed. This is important because there was drought conditions at that time. When they were ready to start at the end of September, the rains came. The sub -contractor was only able to lay 60 feet of pipe a day rather than a few hundred because of the dry conditions. According to Mr. Paggi's remarks, the burden was always on Clayton. They had a change order when the contractor hit rock, which takes time, and under law books contractors are entitled to an extension of time for delays. He wished to also point out that never was the confidence or the integrity of Clayton ever questioned even at the presentation of the Surety Bond Company on April 24th. He directly asked the Engineer to the Town if there was any problem with confidence or performance and the answer was, no. It seems that several people in the Town do not like the president of Clayton. As you know the weather conditions this spring were terrible. Mr. Maute 3 05/06/2003.SPM had snow at his home across the river up through the second week of April. He kept getting letters from Mr. Roberts demanding that Clayton work on April 1st. He felt that all the issues that were raised were agreed to. The charge of failure to commence work on April 1st was due to three days of snow and three days of rain. Because the crew is union, it would have been very costly and nothing would get done. The charge to perform restoration of Cindy Lane and Wildwood Drive was due to the ground being very wet. Another factor concerned the supplier of pipe wanting to be paid instead of waiting several months until all the pipe is installed. The last point concerns the extension of time. The extension was granted until August 2nd or August 4th. When the contractor wished to come back to work in April 21st,he received a fax on April 18th stating the Town Board acted on April 14th to start default proceedings. The contractor was unaware of this proposed action. The entire group had met in March, and there was no indication that the town was not pleased with Clayton's work. Clayton was ready, willing and able to start work as soon as weather permitted. Mr. Maute vigorously protested the boards action. The April 24th meeting turned out to be a presentation by the Attorney to the Town to the Surety Company explaining reasons why Clayton should be in default. Mr. Maute thought they were all easily answered and they were reiterated in his letter of May 2nd. On April 24th Clayton returned to Cindy Drive to perform some work and they were directed by the Engineer to the Town to produce a work schedule, which was given on April 24th. They tried to discuss this at a meeting and were cut off saying there were no further discussion and the meeting was over. Clayton wanted to start work on May 5th, but an inspector was needed, but no one responded to their request. If there is a delay and you want the Surety Company to pay for this, they would have to have the opportunity to investigate, which would take additional time. Clayton has always intended to perform a good job. There may have been instances when the treatment of the residents came up. Mr. Maute had no hint that the problems could escalate to this. Clayton Industries wanted to act first, and sent a notice of default. They want to continue the job. What may happen is that the Town will act, call a counter default end up shaking hands, and Clayton will rescind their termination letter. Because Clayton will be the lowest cost performer, the Surety Bond Company will probably want Clayton back to finish the job, even though there are reciprocal defaults. In summary he wishes to say that the intent of Clayton has always been to do a good job for the Town of Wappinger. At this time Al Roberts wished to make several comments. 0 05/06/2003.SPM 1. The Board has previously been given copies of all the correspondence that has gone on between his office, Mr. Paggi's office, Clayton Industries and Mr. Maute. The direct responses and answers to those statements are all contained in the correspondence which is also attached to this resolution before you, with specific requests that Mr. Maute had no idea that matters would escalate to this level. He would beg to differ, because he had numerous conferences with Mr. Maute, via telephone instructing him to get the job going and doing it in such a manner that everyone would believe that the job was going to get completed and on time. With references that neither he nor Jay Paggi responded to the request to start work on May 5th, going back to March they had directed that the work re- commence effective April 4th. There was in fact a job inspector available for May 5th to inspect the work. Mr. Paggi informed the Board that his office did receive a fax from Clayton with a proposed schedule that put the schedule past the allotted time. Mr. Roberts wished to refer to a letter that was received today dated May 5th from Fred Maute to Joseph Ruggiero. On the second page, third paragraph which states "Clayton Industries, Inc. is hereby giving notice again to the Town Engineer that a crew on behalf of Clayton will be working on Cindy Lane on May 6, 2003, whether or not the Town Engineer sends an Inspector, work will proceed." Mr. Roberts wishes to point out that this did not occur. The board had before them a detailed letter from Jay Paggi dated May 6, 2003 which he wished to have read into the record. At 6:25 p.m., Councilman Colsey moved to go into Executive Session, seconded by Councilman Bettina and unanimously carried. The meeting reconvened at 7:10 p.m. with all Board members in attendance. Jay Paggi, Engineer to the Town read the following letter he wished to have entered into the minutes. May 6, 2003 Town Board Town of Wappinger P.O. Box 324 Wappingers Falls, New York 12590 Attention: Hon. Joseph Ruggiero, Supervisor Reference: Proposed Wappinger Water Improvement 99-2(R), Contract No. 6 Clayton Industries, Inc. Dear Supervisor Ruggiero & Board Members: 05/06/2003.SPM With respect to the above referenced contract, this letter is written in our capacity as the authorized representative of the Town for this project and to certify to the Town Board those items, which in my professional opinion, Clayton Industries, Inc. (Clayton), has failed to perform in accordance with the terms of the above referenced Contract. Specifically, • That the rate of progress is not being fulfilled. • That the work has been unnecessarily and unreasonably delayed. • And to itemize the numerous violations of the specific provisions of the above referenced contract. Clayton was the low bidder on Contract No. 99-2(R)-6 of the Wappinger Water Improvement and entered into said contract on August 15th, 2002. The contract calls for the installation of approximately 17,400' of 16" ductile iron water main with associated appurtenances. This work was to be completed within one hundred -fifty (150) calendar days from the date listed in the Notice to Proceed. The Notice to Proceed was issued on August 19th, 2002, and the contract was to be completed by January 16th, 2003. Pursuant to Change Order No. 6, the contract completion date was extended to August 2nd, 2003. There have been numerous instances since the inception of the project up to and including recent times, where the Contractor, Clayton Industries, Inc., in my professional judgement has performed work or not performed work in violation with the Contract Documents. These instances include, but are not limited, to the following: 1. By letter dated April 10th, 2003 from Albert P. Roberts, Esq. , the Contractor was ordered to come back to work immediately. The Contractor has not come back to work as of today's date. 2. By letter dated April 11th, 2003 from our office, the Contractor was to restore the Cindy Lane area and cleanup the Wildwood Drive area immediately. It has not been done as of this date. It should be noted that the Contractor spent approximately 3 hours "rough grading" the area of Wildwood Drive on Wednesday morning, April 23rd, 2003. 3. The Contract requires roads were to be restored prior to the close of the blacktop plants and/or November 15th, 2002. Addendum No. 1, specifically Items No. 2 and 10 of the Contract Documents, call for the roads not to be restored on a daily basis, but at the direction of the Highway Superintendent. The Highway Superintendent was very emphatic throughout the course of the Contract that they must be restored prior to the close of the blacktop plants. All the roads were not restored at the close of the blacktop plants leaving dirt ditches open for the winter. 4. In accordance with Addendum No. 1 and Items 11.01, Clayton was repeatedly asked to sweep the roads at the end of the day to prevent a dust situation from occurring. On a daily basis, it was a difficult task to get Clayton to sweep the roads as required and sometimes this work was not performed at all. Various nights we had to have them come back to sweep as it was not done at the close of the day. There were numerous days where the workday was extended well past the 6:00 p.m. required quitting time because of the necessity to sweep the road and complete the backfill of the trench. Please note that there was one (1) broom and one 0 05/06/2003.SPM (1) water truck for two (2) crews for the project. These crews were operating almost 3 miles apart and was very difficult, if not impossible, to cover both jobs with this minimal equipment. The Town Highway Department was required to come out on one weekend to sweep Cindy Lane because of the very dusty conditions. 5. Page GC -5 of the Contract calls for the contractor to give constant personal attention to the project and/or appoint a designated foreman. The principal of Clayton Industries was not on the job or available for discussions most of the time during the course of the work, and would randomly designate any one of a number of employees as designated foreman. When our inspectors asked the foreman of the day to perform something under the Contract Documents (i.e. broom, safety measures, etc.) the Inspectors were told they did not have the authority or equipment to do so. 6. Clayton was asked not to leave the trench box in the trench overnight to avoid a potentially hazardous condition to the travelling public and the roadway, which would have been in violation of Item 11.01 of the Contract Documents. Clayton stated to us that they were going to leave it any ways. Not until the Project Engineer, Charles Del Bene, came down to the job to insist they remove it, did Clayton remove it. This occurred on October 2nd, 2002. Item No. 5 of Addendum No. 1 of the Contract Documents requires the Contractor to use a trench box at all times to be in compliance with OSHA regulations. There were numerous times at which Clayton and HCS were advised to use the trench box and they refused. At various times, after constant and repeated requests by our office and Inspector, the Contractor(s) complied but not at all times. Examples of specific dates at which this occurred are: • Clayton Industries, Inc.: September 3rd, 2002 October 4th, 2002 • HCS Excavating: September 26th, 2002 7. Item No. 11.01 and Page DS -5, Item No. 36 of the Contract Documents require while working in the roadway areas, there was to be a flagperson to be at all times on the job keeping one lane open. At various times, flaggers were not on the job and they were refused to be provided. This happened during the month of September 2002 in Quiet Acres by Clayton Industries (see synopsis of notes by Inspectors). 8. Item No. 3 of Addendum No. 1 of the Contract Documents requires Clayton Industries to have repair materials for sewer lateral connections and water service connections onsite. They repeatedly did not have them on site and as they broke water services and/or sewer laterals, they would have to go get the materials resulting in an unnecessary and unreasonable delay. 9. Item No. 11.01 of the Contract Documents requires Clayton Industries to call 911 and the Wappinger Central School District as part of their Traffic Control Plan. Harry Serviss, III, President of Clayton Industries, advised us that he had on October 4th, 2002, but in fact, had not. This was determined by a Wappinger School Transportation Director being onsite and advising us that they had not called. The calling of these agencies is a practice that is customary in the construction industry in the area. 7 05/06/2003.SPM 10. One of the subcontractors, HCS, had numerous occasions on Old Myers Corners Road were they could not compact the ditch properly due to not having sufficient proper working equipment on the project, especially during September 30th through October 4th, 2002. This resulted in unnecessary and unreasonable delays for the job and was in violation of Page GC -9 of the Contract Documents. 11. HCS ran into ground water in second week of October from the 7th to the 14th. They did not employ sufficient adequately sized pumps or enough pumps to dewater the trench efficiently. There was constant arguing with the Contractor to add additional pumps to make sure that the groundwater was kept to a depth below the invert elevation of the pipe. This resulted in unnecessary and unreasonable delays for the job and was in direct conflict with Contract Documents, specifically Page GC -9. 12. With respect to the pressure testing that was done on the first section of the pipe, the Contractor was to supply sufficient manpower and equipment to do the testing in accordance with Contract Documents, specifically Page GC -9 and Item 2.01. A review of the Inspector's log states that the manpower supplied by Clayton was not constantly present on the job site. In fact, the test was literally run by Dare Fitzpartick, who is a representative of Camo Pollution Control, operators of the Town Water system and inspectors of our office. In essence, my Inspector's reports that "Clayton spent very little time at the test site instead opting for Dare Fitzpatrick and myself to perform the required testing". 13. There was a significant amount of pipes, fittings, valves, hydrants, etc. left in the median of Wildwood Drive, adjacent to Wildwood Drive, and adjacent to Old Myers Corners Road. The Contractor was given a directive to store these properly for the winter months in accordance with Page GC -5 of the Contract Documents. That was not done and the materials lay scattered, unprotected on the site to date. The above is a partial list of the times is our professional judgement that the Contractor has violated the Contract Documents. Our office was required to have constant, attentive supervision by our project inspectors to insure that the Contract Documents were being adhered to. Our inspectors were required to be onsite and attentive at all times and give constant reminders and directives to the Contractors to insure that the requirements of the specifications were followed. As a matter of fact, our Inspector who spent the most time on the job, Ed Hansen, repeatedly reported to me that there was constant bickering with Harry Serviss, III and he was often treated with abusive and foul language by Harry Serviss, III. The work environment created by Harry Serviss, III was not conducive to a good working relationship with either our Inspectors, the Highway Superintendent, the Town Water System Operator, and/or numerous employees of Clayton Industries. This led to many inefficiencies and resulted in unnecessary and unreasonable delays for the project. We have been questioned numerous times by the Contractor that he could not complete the project because we had denied a request to start a third crew. We would like to make it perfectly clear that the Contractor was approved to start a third crew on September 19th, 2002. The facts and time line of this are as follows: • On September 11th, 2002, we received a memo from Clayton Industries showing three work crews proposed. 1-4 05/06/2003.SPM • On September 12th, 2002, our office sent a memo to Clayton Industries asking that the third crew not start until acceptable progress of the initial two (2) crews was obtained. • At the September 19th, 2002 job meeting, it was agreed that Crew 3 could start after we reviewed their references (they were proposed to be a subcontractor) and their M/WBE status. • On September 25th, 2002, after reviewing all the information submitted to us, we sent a letter to Clayton Industries indicating that Tri-State Construction Services, Inc. was acceptable for Crew 3. • After this date, we met with the principal of Tri-State Construction Services, Inc. and discussed prevailing wage rate requirements. After discussing these requirements with the principal and after he discussed them with Harry Serviss, III, we were informed by Harry Serviss, III that Tri-State would not be working on the project as the third crew. Therefore, the purported statement of not allowing the third crew by our office is a mere fabrication by Clayton Industries, Inc. It is my professional judgement that Clayton Industries, Inc. did not supply sufficient manpower and equipment during calendar year 2002 to comply with the Contract Documents. The completion date was extended due to unanticipated rock excavation in Quiet Acres Subdivision to August 2nd, 2003. To date this calendar year, the Contractor has not performed any work, and therefore, in my professional judgement it will be rather difficult, if not impossible, to complete the project by the date required. Furthermore, the Contractor has not come back to work this calendar year, and in the last 5 weeks there have been numerous days in which restoration work could have been done in the Quiet Acres area and Contract work could have been completed in other areas. The above statements are made in my professional judgement after over 30 years experience in the professional engineering field, 25 years with my own firm, and 17 years with my firm acting as Engineer to the Town of Wappinger. As a matter of fact, since approximately 1990, the Town of Wappinger has let approximately $50,000,000.00 work of sanitary sewer, water main, and storm sewer construction to public bid. To this date, we have never experienced a condition or response by a Contractor such as we are experiencing now. If there are any questions on any of the above information or if clarification is needed on any above items, please do not hesitate to contact me. Very truly yours, Joseph E. Paggi, Jr., P.E. JEP:law Enclosure — Inspector's Notes cc: Hon. Gloria Morse w/enclosure Town Board: File Albert P. Roberts, Esq. w/enclosure Hon. Graham Foster w/enclosure Michael Tremper w/enclosure 05/06/2003.SPM Al Roberts, Attorney to the Town read Resolution 2003-137 prior to its adoption. Councilman Valdati commented that our duty is to protect the town and residents to make sure that the contract is enforced, so we had no alternative but to pursue the matter in this fashion. Supervisor Ruggiero commented that after dealing with this contract for many months he is very sad that we have come to this point declaring a contract default. We have heard from the contractors attorney, Mr. Maute. We had a contractor who grossly underbid this project and we have repeatedly made requests if there was enough money to complete this job and at each request was told it was no concern of the Town's. It was between him and the Bonding Company. It is clear that this contractor has failed to return to work and the actions taken by the Town Board this evening to assure that this project will be completed properly, and that we protect the money expended by the Town residents to have the appropriate work done in the correct manner. Councilman Bettina commented that we must protect the integrity of the Town. RESOLUTION NO. 2003-137 RESOLUTION AUTHORIZING THE TOWN OF WAPPINGER TO DECLARE A CONTRACTOR DEFAULT PURSUANT TO WAPPINGER WATER IMPROVEMENT AREA 1999-2(R), CONTRACT NO. 6 The following Resolution was introduced by Councilman Colsey and seconded by Councilman Valdati. WHEREAS, the Town of Wappinger previously authorized the formation of the Wappinger Water Improvement Area —1999-2(R) for the purposes of constructing a supplemental water supply to various Water Districts and Improvement Areas in the Town; and WHEREAS, among the improvements to be made by Wappinger Water Improvement Area 1999-2(R) was the construction and installation of a dedicated pressurized water line from the Atlas well field located adjacent to Wappinger Creek to the Hilltop Water Tank located on Cider Mill Loop in the Town of Wappinger; and WHEREAS, the construction and installation of the dedicated pressurized water line from the Atlas Wellfield to the Hilltop Water Tank was awarded to Clayton Industries, Inc. (hereinafter referred to as "Clayton") has the lowest responsible bidder pursuant to plans and specifications prepared on behalf of the Town; and 10 05/06/2003.SPM WHEREAS, the Contract between the Wappinger Water Improvement Area 1999-2(R), Contract No. 6 and Clayton was entered into on August 15, 2002 and is hereinafter referred to as the "Contract"; and WHEREAS, the original completion date for the Contract was January 16, 2003 which was extended upon request by Clayton, and approved by Change Order No. 6, resulting in rescheduling the Contract completion date to August 2, 2003; and WHEREAS, the proposed water line will be the primary source of potable drinking water for approximately 8,000 families in the Town of Wappinger; and WHEREAS, during the course of the construction and installation of the dedicated pressurized water line from the Atlas Wellfield to the Hilltop Water Tank, the Town has encountered numerous problems with Clayton, which have unnecessarily and unreasonably delayed the progress of the work through no fault of the Town; and WHEREAS, the Town through its Supervisor, engineers, attorney and other representatives has made numerous attempts to resolve the aforesaid problems with Clayton in order to ensure that Clayton would complete the project as required under the terms of the Contract; and WHEREAS, Clayton stopped working on this project in December 2002 and has not recommenced work since that time; and WHEREAS, the Town Board determines that it is a matter of public necessity to complete the construction project in a timely fashion in accordance with the Contract Specifications; and WHEREAS, the Attorney to the Town, Albert P. Roberts, by letters dated March 12, 2003, April 10, 2003 and April 17, 2003 to Frederick Maute, Attorney to Clayton, has demanded that Clayton recommence work by April 1, 2003 and complete the project as required by the Contract; and WHEREAS, the Town Board hereby determines that Clayton has failed to recommence the work required and otherwise has failed to diligently perform its duties in accordance with the Contract documents including, but not limited to, failing to complete blacktopping and restoration of Cindy Lane and the clean-up and removal of construction material along Wildwood Drive; and WHEREAS, the Town Board by Resolution No. 2003-122 adopted at a regular meeting held on April 14, 2003, authorized the Attorney to the Town, Albert P. Roberts, to take all steps necessary to commence enforcement of the Performance Bond (Bond No. B21860213) issued by Gulf Insurance Company (hereinafter referred to as the "Bond") to the Town of Wappinger in 11 05/06/2003.SPM connection with this Contract to ensure adequate and timely performance and completion of the project as set forth in the Contract; and WHEREAS, Attorney to the Town, Albert P. Roberts, pursuant to the provisions of the Bond, requested a conference with Clayton and its surety, Gulf Insurance Company, to be held on April 24, 2003 as a required pre- condition to the Town declaring a contractor default; and WHEREAS, the conference between the Town and Clayton, with Gulf Insurance Company appearing by telephone, occurred on April 24, 2003 and proved unproductive in that Clayton failed to resolve how it was to perform and complete the project in accordance with the Contract terms; and WHEREAS, as a result of Clayton's failure to perform and complete the project in accordance with the Contract, the Town and its residents have incurred unreasonable and unnecessary delays and hardships with respect to the protracted hazardous, unsightly and unkempt conditions of both Cindy Lane and Wildwood Drive; and WHEREAS, the Engineer to the Town, Joseph E. Paggi, Jr., P.E., by letter dated May 6, 2003, has provided the Town Board with a written certification of Clayton's default and failure to perform in accordance with the terms of the Contract, including but not limited to: (1) failing to fulfill the required rate of progress; (2) unreasonably and unnecessarily delaying the construction; and (3) causing numerous and repeated other violations of the specific provisions of the Contract as discussed further therein; and WHEREAS, the Town Board hereby determines that Clayton has failed to perform its obligations pursuant to the Contract and hereby declares that Clayton is in default of said Contract including, but not limited to: (1) failing to re -commence construction as directed by correspondence dated March 12, 2003, April 10, 2003 and April 17, 2003; (2) failing to repave, reseed and restore disturbed areas in and on Cindy Lane; (3) failing to clean and remove debris and materials along Wildwood Drive; (4) failing to follow the directives of the Engineer to the Town; (5) failing to perform the work in a timely fashion; (6) failing to pay its subcontractors in accordance with General Municipal Law §106-b; and (7) failing to otherwise comply with the requirements of Contract; and WHEREAS, the Engineer to the Town Wappinger, Joseph E. Paggi, Jr., of P.E., has procured an estimate for the remediation of Cindy Lane and Wildwood Drive from a local contractor which estimate totals approximately $37,000; and 12 05/06/2003.SPM WHEREAS, the Town Board seeks to complete the construction of the pressurized water line and the proposed remediation work along Cindy lane and Wildwood Drive as soon as possible as time is of the essence; and WHEREAS, the Town Board determines that immediate corrective action must be undertaken to facilitate the blacktopping and restoration of Cindy Lane as well as general clean-up and removal of debris and materials along Wildwood Drive; and WHEREAS, Cindy Lane and Wildwood Drive have for a the past six months remained in a hazardous, unsightly and unkempt state, and as a result thereof, the Town Board seeks to direct the Town Supervisor, Joseph Ruggiero, Engineer to the Town, Joseph E. Paggi, Jr., P.E., and Attorney to the Town, Albert P. Roberts, Esq., to negotiate with Gulf Insurance Company and take immediate steps to repave, reseed and restore Cindy Lane and to clean and remove debris and materials along Wildwood Drive in accordance with law; and WHEREAS, in the event satisfactory progress with the bonding company does not occur within two weeks of the date hereof, the Town Board directs that Town Supervisor, Joseph Ruggiero, should procure at least three (3) written quotes from qualified contractors to undertake the remediation work, including letting a contract for same, and back -charging all amounts paid thereafter to Clayton pursuant to the Contract; and WHEREAS, the events of Clayton's non-performance and default have been documented in numerous letters to Clayton and its Attorney, including, but not limited to, the following, which are incorporated by reference herein: 11/14/02 Letter from Harry C. Serviss III to Mr. Paggi and Hon. Joseph Ruggiero 11/19/02 Letter from Albert P. Roberts to Frederick Maute 2/7/03 Letter from Albert P. Roberts to Frederick Maute 2/19/03 Letter from Harry C. Serviss III to Jay Paggi 2/24/03 Letter from Albert P. Roberts to Frederick Maute 2/25/03 Letter from Albert P. Roberts to Harry C. Serviss III 3/12/03 Letter from Albert P. Roberts to Frederick Maute and Robert DiNardo 3/18/03 Letter from Albert P. Roberts to Frederick Maute and Robert DiNardo 3/20/03 Letter from Frederick Maute to Albert P. Roberts 3/31/03 Letter from Albert P. Roberts to Frederick Maute 4/2/03 Letter from Albert P. Roberts to Frederick Maute 4/4/03 Letter from Frederick Maute to Albert P. Roberts 4/10/03 Letter from Albert P. Roberts to Frederick Maute 4/11/03 Letter from Joseph E. Paggi, Jr., P.E. to Clayton Industries, Inc. 4/15/03 Letter from Frederick Maute to Albert P. Roberts 4/17/03 Letter from Jay B. Renfro to Clayton Industries, Inc. 4/17/03 Letter from Albert P. Roberts to Frederick Maute 4/23/03 Letter from Albert P. Roberts to Frederick Maute 13 05/06/2003.SPM 5/2/03 Letter from Frederick Maute to Town Board, Albert P. Roberts and Joseph E. Paggi, Jr., P.E. 5/5/03 Letter from Albert P. Roberts to Frederick Maute 5/6/03 Certification letter from Joseph E. Paggi, Jr., P.E. to the Town Board NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. For the reasons set forth in the Certification by the Engineer to the Town, Joseph E. Paggi, Jr., P.E., dated May 6, 2003 as well as for the reasons set forth in the above -identified correspondence and engineer's job inspection notes attached hereto and incorporated herein by reference, the Town Board hereby finds that Clayton Industries, Inc. has failed to perform its obligations pursuant to Wappinger Water Improvement Area 1999-2(R), Contract No. 6 dated August 15, 2002, declares Clayton Industries, Inc. to be in default thereof and directs the Engineer to the Town, Joseph E. Paggi, Jr., P.E., to immediately issue a Stop Work Order to Clayton Industries, Inc. Town Supervisor, Joseph Ruggiero, Attorney to the Town, Albert P. Roberts, Esq., and Engineer to the Town, Joseph E. Paggi, Jr., P.E., are hereby authorized to take all legal action necessary steps to enforce the provisions of the Contract, including but not limited to, sending written notices declaring a contractor default to all affected parties; and Town Supervisor, Joseph Ruggiero and Attorney to the Town, Albert P. Roberts, are hereby authorized to report said declaration of default to the bonding company, Gulf Insurance Company, pursuant to Performance Bond (Bond No. B21860213) and further to take all necessary steps to facilitate the enforcement of said Performance Bond including taking steps to remediate the conditions on Cindy Lane and Wildwood Drive by: (1) negotiating and coordinating with the bonding company, Gulf Insurance Company, for the completion of the work required by the Contract dated August 15, 2002, including the completion of the remediation work; or, (2) if satisfactory progress with the bonding company does not occur within two weeks of the date hereof, undertake the performance of all work required by the Contract including remediation work in accordance with law. Town Supervisor, Joseph Ruggiero, and Engineer to the Town of Wappinger, Joseph E. Paggi, Jr., RE, are hereby authorized and directed to take all necessary steps to facilitate the completion of the remediation work pertaining to Cindy Lane and Wildwood Drive and procure at least three estimates for the remediation work and upon the failure of Gulf Insurance Company to promptly undertake the remediation work, and to let a contract to complete such remediation and back -charge the costs thereof to the 14 05/06/2003.SPM Contract. Town Supervisor, Joseph Ruggiero, Attorney to the Town, Albert P. Roberts, Esq., and Engineer to the Town, Joseph E. Paggi, Jr., P.E., are directed to undertake all steps necessary and appropriate to ensure that the work required by Contract No. 6 is undertaken and completed as quickly as practicable including the commencement of legal action, if necessary. The foregoing was put to a vote which resulted as follows: JOSEPH RUGGIERO, Supervisor Voting Aye ROBERT L. VALDATI, Councilman Voting Aye VINCENT F. BETTINA, Councilman Voting Aye JOSEPH P. PAOLONI, Councilman Voting Aye CHRISTOPHER J. COLSEY, Councilman Voting Aye The Resolution is hereby duly declared adopted. There was no other business to come before the board. Councilman Bettina moved to close the meeting, seconded by Councilman Colsey and unanimously carried. The meeting adjourned at 7:40 p.m. 01 0 15