HomeMy WebLinkAboutmin brd of selectmen 05/16/01 Exec
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Board of Selectmen
Executive Session Minutes
May 16, 2001
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Present: Louis P. Amoruso, Chairman; Michael W. McCue, Clerk; Bradford E. Wills,
Vice Chairman; and Selectmen David W. McCarter and Daniel Donovan.
Town Manager John O. D'Agostino and Attorney Susan Jacobs; DPW Director Lee
Azinheira and Manager of Buildings and Special Projects, Mike Ahern.
The Executive Session convened at 7:01 p.m. for the purpose of discussing strategy
regarding litigation on the Town Hall air conditioner.
Town Manager D'Agostino noted he requested Attorney Jacobs be here to update
the Board on the status of the chiller/air conditioner at Town Hall. We are going
to mediation to attempt to get funds from Strekalovsky and Hoit for improper
design. The unit was originally supposed to go on the roof, but to save money on the
roof support structure necessary it was put on the ground, causing a great deal of
noise. Drainage issues are also a part of the mediation. Selectman Donovan asked
if there is an echo from the building because of the placement of the chiller.
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Attorney Jacobs said the lawsuit was filed in September 1999 and we have a trial
date of August 2pt or 22nd of this year in the Superior Court. The date, however,
is unreliable but it at least provides an incentive to settle the case. Carmen Reis is
being used as the mediator and Attorney Jacobs explained the mediation process.
Our number going in is $75,000, which it has been from the beginning. They will
not make an offer prior to the date of the mediation.
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Our position on the case is they've caused us tremendous problems because the
chiller is much too noisy and it is placed in a sound-sensitive area in addition to
being a noisy type of system. Strekalovsky and Hoit has admitted they considered
only the aesthetics and not the noise in the placement of the chiller. The sound
attenuation structures have become a much more expensive problem to deal with
than the aesthetics would have been. They did not alert us to the problems we
would have with the noise and did not provide the information necessary to properly
evaluate the merits of placement. We're now at about $60,000 in costs for the
attenuation measures. For $75,000 we would be able to place a roof over the
ground structure. We will need to work with Trane to provide a solution that will
not void the warranty. The mediation will most likely take place in July and it is our
belief they will come forth with an offer. An arbitration is not necessarily less
expensive than a trial and there is no right of appeal of the arbitrator's decision.
Executive Session Minutes of May 16, 2001
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f' Roger Hoit, in his deposition, has said the unit was faulty when it was first run,
emitting a terrible high-pitched noise which "sensitized" everyone's awareness of
the noise. The $75,000 is based on the cost of the sound consultants, the cost of
building the sound attenuation structure, the cost of the roof and its design. The
cost of correcting the drainage problem was not significant due to the solution
provided by Lee Azinheira, who at the time was Town Engineer.
Strekalovsky and Hoit is claiming the problem is related to the site, noting the
chiller is not designed to be used in a noise-sensitive area. The Town was not given
the option of where the unit was placed. The decision early on was that this is the
location that made the most sense, without consideration of the noise factor. If
we are not satisfied with the results of mediation, we still have the option of going
to trial. $75,000 is what we're claiming their mistake has cost us and will cost us.
The cost of a trial, with expert witnesses, will probably be about $10,000.
Attorney Jacobs stated she believes Roger Hoit does not believe the problem is
the result of an error in judgment on their part. They claim no responsibility for
the drainage problem, only the cost of cleanup. Mr. Azinheira noted they created a
low point and installed concrete sidewalks that provided a raceway for the water to
run down and into the building.
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Chairman Amoruso noted we need to know how much it cost us to remediate the
drainage issue ($15,000) and the cost of the noise attenuation ($60,OOO--of which
$45,000 was out of pocket). The voters at Town Meeting have chosen not to spend
any more money to address the problem. It is not clear at this point that putting
the roof on the housing structure will solve the problem. We are now within the
limits set by DEP, but not within the limits established by the Board of Health.
There are presently lead blankets on the compressors.
Attorney Jacobs noted there is some difficulty in convincing a jury that this
expense was not inevitable; however, to suddenly in June turn on the air conditioner
and discover the noise and have to shut it down is not acceptable.
Motion: To go to mediation and come back with a figure for the Board's approval
(McCarter-no second)
Attorney Jacobs noted she needs parameters established in which to work at the
arbitration. If we have to walk away from the table to get authorization, the
mediation process will be undermined.
Selectmen Wills said he would settle for half of the $75,000 ($37,500), but does
not want to put a roof on the structure. Strekalovsky and Hoit say the complaints
,-.. are not reasonable at this point. Selectman Donovan said anything between that
and $45,000 would be acceptable to him. Chairman Amoruso suggested $50,000,
Executive Session Minutes of May 16, 2001
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and if the offer is only $10,000-$20,000 he'd rather go to Court. Selectman
McCarter stated he would prefer that whatever is done will be subject to the
Board's approval.
Town Manager D'Agostino noted that if the Board does not feel comfortable
providing parameters, he would suggest they go to the mediation and settle it right
there. The mediator always will like to have someone present authorized to make
the decision on acceptance of the offer. They're starting at $45,000 now and
we're asking for $75,000. based on what they have determined are reasonable
damages.
Motion: To accept $45,000-$50,000
(Wills-Donovan)
McCue, aye; Donovan, aye; McCarter, nay; Amoruso, aye; Wills, aye 4-1 Passes
Attorney Jacobs will also be having additional discussions with our consultant (Bob
Copeland) regarding the cost of the roof.
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Motion: To adjourn and reconvene in Open Session at 7:42 p.m.
(Amoruso-Wills)
Roll Call Vote: Wills, aye; Donovan, aye; McCue, aye; McCarter, aye; Amoruso, aye.
5-0 Passes
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Signature of Clerk
J3 MAY/) I
Date of Approval
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Date of Release
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Executive Session Minutes of May 16, 2001
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