HomeMy WebLinkAbout1954-08-09 Board of Public Works Minutes August 9, 1954
The regular meeting of the Board of Public Works opened at
7:3o P.M.
Present were Chairman Kilgore, Messrs. Hopkins, Johnson,"Lanni,
Assistant Supr;rintendent Putnam, and Philip Welch.
Mr. Arthur Doucette, owner and builder of new dwelling house on
Lot 15, Dividence (Private) Road appeared before Board to request relief
from Water Department regulations regarding water main extension to his
property.
Voted that present rules of Water Department will not be waived,
regarding water main extensions.
Received letter of commendation from Nr. Lester H. ':a'allace, 389
Lowell Street, for work accomplished by Highway Department personnel
abutting his property.
Received letter from Mr. F. D. Sabin, District Highway Engineer, ,
State Department of Public Works, regarding construction of sidewalk
on North Main Street, Reading, Mass .
Voted to guarantee Type I surfacing of sidewalk, by the Town and
to maintain and remove snow therefrom. Also voted to request the State '
to construct sidewalks on other sections of North Main Street, as
recommended by Assistant Superintendent.
Received letter from 0. Menici :c Sons, Contractors, claiming extra
reimbursement for additional work on Bond Street storm drain contract
due to removal of peat and gravel fill in drain trench.
Voted to request opinion from Town Counsel on this claim.
Signed Order of Taking of Easement for Drainage and Sewerage
Purposes on Kenneth (Private) Road Extension.
Voted to approve action of Assistant Superintendent in installing
8" water main on Charles Street from Dana Road 700 feet Southerly in
locus of 1954 Chapter 90 Street surfacing contract.
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Discussed apparent deficit in 1950 New Wells account.
I Voted that Assistant Superintendent and Philip Welch should
confer on matter and report back to Board on same.
Discussed rental purchase of 1946 Elgin Street Sweeper and it
was stated by Philip Welch that X52700.00 was the agreed total purchase
price.
Received letter from Johns-Manville Sales Corporation concerning
indebtedness of $p!{1}25.16 which, they alleged, is owed them by Bagarella
Construction Company for material furnished by them for the Town of
Reading High School Sewer, and requesting that the Johns-Manville Corp.
be protected in payment of their account when Bagarella recei7es his
final contract payment.
Voted to follow .advice of Town Counsei on this subject, which is ,
in effect, that no action be taken by the Board until the matter of
liquidated damages is adjusted with the general contractor and not
then until the Engineer (Whitman & Howard) has made written recommen-
dation to the Town that such action as requested be followed.
Received opinion from Town Counsel Samuel H. Davis discussing
assessment of liquidated damages agaipst Bagarella Construction Company
as a penalty for overrunning the completion date of his contract.
After some discussion, voted to send Whitman & Howard a copy of
the Town Counsels opinion, and request Whitman & Noward to recommend
the amount of liquidated damages to be assessed Bagarella Construction
Company, insofar as Whitman & Howard and the Town of Reading are
concerned.
Voted also to follow advice of Town Counsel as set forth in
his letter dated August 9, 1954, which hereby becomes a part of these
minutes.
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Copy of letter;
Samuel H. Davis
Attorneys and Counsellors at Law
148 State Street, Boston,Mass.
August 9, 1954
Mr. James T. Putnam
Acting Superintendent
Board of Public Works
Municipal Building
Reading, Mass.
Re: Bagarella Construction Company ,
Dear Mr. Putnam:
I have considered your letter of August 3, 1954 relative
to the delay of the above named General Contractor to complete
the contract within the time specified by the contract and
furnish herewith my opinion to the specifj.c questions propounded
In your letter, as follows:
1. It is not mandatory to assess the liquidated damages
in the full amount as provided for in the contract.
2. The Board may by agreement with the General Contractor
assess smaller amount for liquidated damages .
3. Under the terms of the contract with Whitman & Howard
. Inc, the Town is burdened with the obilgation to pay the Engineer
the actual cost of the engineering work performed by the
Engineer After the time fixed for the final completion -
of the contract by the General Contractor. The Engineerts
contract further provides that such payment to the Engineer
shall not in any event exceed the amount of the liquidated
damages to be paid by the Contractor to the Town.
4. If the sum realized as liquidated damages exceeds the
amount of the Engineer' s bill covering the actual cost of
the engineering work performed after the date of the final
completion of the contract, the Town may retain the additional
amount.
5. It is my opinion that no further sums should be paid
to the General Contractor until the contract is finally
completed according to its tenor and the matter of the
liquidated damages has been finally adjusted.
The Engineer should make recommendation to the Board ,
relative to the settlement of the liquidated damages and when
the amount of the liquidated damages has been agreed upon between
the Board and the Engineer, the Engineer should endeavor to
negotiate for settlement of the matter with the General Contractor.
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With respect to the liquidated damages, the Courts have
held that if liquidated damages is merely penalty and not actual
damage, the Town could not retain the amount fixed as liquidated
damages in the contract, however, in this case the amount of the
additional services performed by the Engineer would clearly indicate
that the Town had sustained actual damage and therefore could
enforce the provision relative to the liquidated damages. The
Courts have also decided that in contract with Municipality the
amount to be deducted for delay in completion of the work could not
be treated as penalty or forfeiture and contractor would have no
relief against such deduction by the Municipality. Of course if
the delay was caused by the happening of events beyond the control
of the contractor, he would not be hold responsible to pay liquid-
ated damages.
I have assumed that the Town has not accepted the project
and therefore there should be burden on the part of the Engineer
to settle all matters in controversy between the Town and the
General Contractor. Has the Engineer furnished the certificate of
final completion of the project?
It has been called to my attention by two land owners, whose
properties have been encumbered by the taking of easement for the
construction of the sewer, that the General Contractor has allowed
surplus earth, refuse, rubbish and excavated material t o remain
within the easement area. If this is so, the Contractor has
violated the provisions of the contract as provided in Article 4.
The Engineer should make effort to have Bagarella complete the
contract according to its terms and also settle the matter of the
liquidated damages. In the event that the General Contractor fails
to complete the contract according to its terms after requested so
to do, the Surety Company furnishing the performance bond should
be notified of such neglect on the part of the Contractor.
I have endeavored to answer the questions propounded to me
in your communication, but if I have failed to do so in any detail,
please advise me.
Yours very truly,
(Signed) Samuel H. Davis 'I
SHD?JB. Town Counsel
Received letter from Birch.Meadow Study Committee regarding
construction of Hartshorn Street. No action taken.
Received request for abatement of an excessively high water
bill from Mr. Elwin S. Davis, 113-11$ Washington Street, because
of an undetected leak in a vacant upstair apartment .
Voted to abate the sum of $ 9.70.
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Discussed land damages incurred by widening of South Street.
Massachusetts Builders, Inc., set the amount of $2500.00 as their '
damage.
Voted to authorize Assistant Superintendent to negotiate a settle-
ment in the amount of $ 2000.00 if possible.
Conference with Board of Selectmen, Chief of Police Ellis, and Mr.
William Winter of Boston & Maine Rail Road Corp. regarding proposed Boston
& Maine parking area abutting Lincoln Street.
Voted to accept curb openings for entrances and exits as shown on
construction plans, and to permit drainage of parking area into Town
storm drain system.
Chief of Police Ellis also conferred with the Board relative to the
potential traffic hazards on Hillside Road, particularly at Main Street,
engendered by the opening of the new Senior High School.
Voted to effect specific repairs on Hillside Road with Department ,
personnel, within the bounds of the official street layout, including
rounding of the corners at Main Street.
Discussed plaque on Reading Sewer Pumping Station, Willow Street,
No action taken.
Discussed at some length use of new sewer disposal manhole at
Willow Street Pumping Station by cess-pool cleaning companies. No final
action taken.
Board adjourned at 10:15 P.M.
Respectfully- submitted:
Secretary