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1995-03-14 SPECIAL TOWN BOARD MEETING MARCH 14, 1995 6: 10 P.M. MTG #18 RES175-l76 BOARD MEMBERS PRESENT SUPERVISOR FRED CHAMPAGNE COUNCILMAN BETTY MONAHAN (entered meeting 6: 13) COUNCILMAN NICK CAIMANO COUNCILMAN CAROL PULVER BOARD MEMBER ABSENT COUNCILMAN THEODORE TURNER TOWN ATTORNEY PAUL DUSEK TOWN OFFICIALS Water Superintendent, Tom Flaherty Deputy Water Superintendent, Ralph VanDusen GUEST: Mr. Tony Geiss, O'Brien & Gere Engineers Supervisor Champagne called meeting to order ... Mr. Geiss-I guess the reason for the meeting prior to the PCB's which we'll discuss as a second item at seven o'clock is the Water Treatment Plant. The books are ready to go out. Paul has raised several questions concerning the contract language in there of which I have addressed the questions. There are a couple of open issues that he wanted to have the Board decide upon with respect to the contract books so that we could wrap it up. I would like to finish getting that done. Also, as an end point for today, whatever changes will be made, I will get that made. Look at advertising next Monday or Tuesday to take bids in five weeks which would be April 25th, it's a Tuesday. Mr. Flaherty-That's the opening of the bid? Mr. Geiss-That's the opening of bids and if you have a preference to open bids at another time, I just looked at advertising next Monday or Tuesday and opening bids that Monday or Tuesday. I referenced the Water Works, the Water Works meeting which I am already going to be in Saratoga for is that Tuesday, Wednesday, Thursday. So, the people involved in the job are going to be up in this area. So, we sort of said, let's do it Tuesday which is just before the rest of the meeting. Mr. Flaherty-That's fine. Councilman Pulver-It's okay with me. Mr. Flaherty-Let's get to the questions and answer them. (Councilman Monahan entered meeting) Mr. Geiss-Okay, I guess Paul, I'll leave it for you to go over what the open questions are for the Board. Attorney Dusek-Alright, maybe just by way of background, these are the contract books that were prepared by O'Brien and Gere. These are basically, well this one is for the I.MG water storage tank, we've got one for the sixteen inch water transmission main and then we've got one that's essentially for the water plant expansion project. All contracts, although the specifications are different, the basic guts of them are the same. So our review focused on this big one and basically as your attorney, I did a couple of things. One is, obviously you go through the specifications and make sure that this is in fact the project that was authorized by the Town Board resolution which I'm prepared obviously to tell you today that it is, that the specifications that I find in there, they are consistent. In addition to that, there was contract language or various language in the information to bidders, the invitation, information and the contracts that Tony and I went over and I don't know that you really want me to go through all of the items because some of the items we reached an understanding, an agreement on in terms of how they should read. Some were minor, some were major, some, you know just different odds and ends but we're both in agreement. What I tried to do though is the issues that seem to be significant that would, that I thought you ought to know about because they were exposing you to a potential for different results that we should tell you about, even if we agree or don't agree and it just so happens, I think one of them we don't agree and the other ones we kind of like are so, so on or I am and maybe that would be a good starting point. The one, the first big issue is these documents here do not provide for arbitration which means that if there's ever a dispute between the contractor and the owner, the town, you would be required to commence a law suit or the contractor likewise would be required to commence a law suit assuming we didn't agree if you want a result, you know if you want to bring the thing to conclusion. An arbitration clause on the other hand which is common in the construction industry provides you with an ability to go to arbitration instead of law suits and handle it that way. Now the town has had experiences in both arenas throughout the years. I know this Board is well aware of law suits and I know, maybe you're not as familiar with arbitration but just very briefly, I know Nick is and Betty is because and when you have an arbitration Councilman Caimano-My concern with arbitration is that you, the sum total is usually a split and you lose control. Attorney Dusek-Yea, I think that there's, you know there's no question that, certainly an arbitration and a court are too different ways of handling it and personally my reaction used to be the same way as yours, that I'd always rather go to court first because I felt like I had more control. I had the discovery, meaning I could get the other guys documents available to me. I knew that, although it may be a more arduous task in terms of getting to trial, I always felt in the back of my mind that I had an advantage, especially if I was right that I could walk away a net winner. On the other hand, I have had some experience with arbitration, in fact with town projects and in fact two projects and I'd have to say that the advantages of arbitration are that one, it's less expensive, no question about it, that's been my experience, it's less expensive. Two, it's faster, no question about that. Three, I think that the thought that's always in the back of your mind though is, are we going to necessarily win everything we should win in arbitration and that's always a question in my mind and I also wonder how much time they do that, splitting and stuff. But, to be honest with you, when I went in to weigh the time and I weighed the money and I weighed the fact that when you do go to arbitration, typically you have the right to go through a list of arbitrators and you can pick out or discard certain ones. I mean ultimately in the end it's like each party gets to discard who they don't like, you are able to manage it down to a few people who if you don't know anything about them, at least you start to get some idea from what you read about them anyway or maybe talking around, whether or not they would be a fair arbitrator and I think you have a reasonable shot at getting a halfway decent result. On a project of this nature and after giving it very careful consideration, my recommendation to the Board is going to be arbitration. Tony's recommendation and his attorneys, I guess is they advise them, they don't like arbitration primarily because of the reason I guess that Nick just stated. Mr. Geiss-I guess from our end and I wrote back to Paul when he referenced arbitration that we, from our experience with these contracts don't recommend arbitration. I guess and I went and talked to our attorney whose been working on these and he pointed out there's no rules or laws which apply to arbitration. You're going to agree on how the arbitrators going to work when you set it up but there's no rules or laws. As opposed to the court which are, have laws and if you're right and you have the law behind you, the courts in your advantage and in fact, I asked, on my own I went to another attorney in the township where I sit on the Planning Board and I asked him what he thought of arbitration through his practice and things and he says, when he doesn't have the law on his side, he pushes for arbitration, when he wants, you know, he has a strong case but no law on his side, he pushes for arbitration because that, then he can get his, get together which on the other hand though the opposite is true and I guess the way we as engineers are looking at it, if you have the law on your side, you have an order to what's going on in the evaluation. This is what we look at as going to court with. Councilman Caimano-But the problem is as we just learned as a Town Board, you could have God Almighty on your side and it doesn't mean a hill of beans worth of difference. And so are you willing to take that gamble and all the money that it costs to have that gamble or are you better off saying hold it, I'll take what I can get, as quick as I can get it and get me out of here? Councilman Monahan-Tony, I think what we've seen too is the ability in the court system to drag this out for ever and ever and ever and I'll give a case where Bob's contracting firm as a sub was in arbitration, we brought our experts in there, we got them out of there and we weren't sitting around for days like you can be in court. I mean we had Bob Stewart as an attorney, you know what he charges, we had a roofing expert that flew in from the middle of Michigan on his own plane and etcetera and so on, you're sitting in court, we couldn't afford to have done that for a month or two while they're deciding the call. Councilman Caimano-More to the point, I think we've gone through three administrations on a case of our own and frankly, it's still not done. Mr. Geiss-The bottom line here is that whatever you want, I will include in the contract for you, don't get me wrong. I just give you what Councilman Caimano-I guess what I, after I left the other day, I gave it some thought based upon recent history and I'm willing to make the gamble and go to arbitration. Councilman Monahan-I am too. At one time I wouldn't have said that but I Mr. Flaherty-It depends on what the Board wants. Councilman Caimano-I wouldn't either. I wouldn't either but I'm so jaundice now based on the situation we got that it could go for ever. Mr. Flaherty-We could go with a cheaper attorney. Councilman Monahan-The point of it is, what they do Tom is they drag it out ... Mr. Flaherty-I was only kidding Paul. Councilman Monahan-You just give up, it costs so much. Mr. Flaherty-I was just kidding Paul. Attorney Dusek-This is, and I'll tell you there's no right or wrong answer here folks and that's why it's a decision for the Board. Mr. Flaherty-Then arbitration it is. Councilman Caimano- Y ou know why I'm making the decision. Attorney Dusek-And I'mjust saying, it's a judgement call and it rightfully belongs in the hands of the Town Board. Supervisor Champagne-Okay, let's do it, arbitration. Do we agree to that? Attorney Dusek-Carol? Councilman Pulver-Yes. Attorney Dusek-Okay, so I'll submit a clause to Tony tomorrow on that. Next issue, in the contract documents or actually as part of the bid procedure, the contractors will be required to submit bids in two fashions. One, on a unit price bidding situation which is, as I understand from Tony is the very minor part of the contract but there are certain unit prices they would have to bid for, certain types of work and he can explain this better than I can, he knows what they are. Another part of the bid will be for a lump sum bid to accomplish certain work. The contract documents provide in a clause that the unit, if the bidder should fail to complete all of the unit prices, so you have openings left in the bid, even though you're supposed to as a Board determine total cost against total cost, you can disregard the fact that they left out certain bidding items and go with that bidder who left out the items that he didn't bid on in the unit prices. Tony tells me that, that clause was added for purposes of allowing a municipality to take somebody who might otherwise be the lower bid rather then forcing the bid out should they have not filled in the blanks. My concern is as the attorney for the town in reviewing the documentation is that legally, there's nothing wrong with what he's suggesting to do. Practically, what my concern is, I want you aware that this is happening because you could find yourselves in a situation where a bidder leaves open amounts in the bid and then you decide you want to go with that or you decide you don't want to go with that but you open yourself up to a fight between bidders and a law suit because one guy is saying, well, you can't use that bid and the other guy is saying you can because the documents left it open for you to make that choice. My thought was, do away with that entirely. In other words, if the bid is not complete, simply say you're going to reject it, if it's not all filled in rather then even leaving the door open to have that as an option. I understand why Tony and his firm has recommended it and it's because they want to leave the option open and like I say, legally you can do it but I just want you to know that if you did it and there was somebody with an opening and he was the low bidder, you're also in my opinion exposed to litigation at that point. I'm not saying you wouldn't win but you're exposed to litigation at that point which could delay the project. Mr. Geiss-I think here and Paul and I don't disagree on this, it's just how do you want it to read and the phrase is right in here, it says, bids which do not contain a price for every numbered item contained in the applicable bid form, may be accepted. Supervisor Champagne-Well, whose going to complete those bids if they don't have them written in there? Mr. Geiss-The contractor is going to do it. Supervisor Champagne-At a later date, he's going to tell you how much it's going to be? Councilman Monahan-Where's the bid document in here or isn't it in the big one? Attorney Dusek-It's not Betty, no, it's right here. Supervisor Champagne-How do you get those blanks filled out? Councilman Pulver-I was going to say, my question is and let's do something simple. We're going to build that credenza there or we want a credenza built so we put out specs, you know, that we want it done and the contractor comes back and where it's got cost of wood and cost of discs, nuts and bolts and so forth. Say he leaves the bolt business blank but there's a total at the bottom and that's because maybe it was too insignificant and he just figured it was just all in there. Correct? Mr. Geiss-Right. Councilman Pulver-Okay. Attorney Dusek-No, that wouldn't be what happens. Councilman Pulver-No, but I mean is that why he would be Supervisor Champagne-He left the doors off. Councilman Pulver-Well, no but I mean if that were blank, say washers, you know little washers was blank it would be because maybe the amount would be in there but it would be too insignificant to break down? Attorney Dusek-No. Councilman Pulver-Then why would he have blanks? Mr. Geiss-Okay, he's got and here is a typical sheet, just for the general, you have six sheets that the general has to Councilman Pulver-Okay, like I'm looking at PVC valves here. Supposing he, yea it says twenty-five cents each, that's what caused my eyes. Mr. Geiss-No, twenty-five total and he puts the dollars, how much each. Councilman Pulver-Okay, so then he leaves this blank but he puts in the amount over here. Attorney Dusek-That's not what we're talking about, we're talking about... Mr. Geiss-Or he just leaves this whole thing blank. Councilman Pulver-Oh, he leaves the whole thing blank. Attorney Dusek-Right. Councilman Pulver-Okay. Mr. Geiss-Let me give you a little history on this because I went back and asked because Paul's question was very viable. I went back some twenty-five years and looked at books that we had, I went back ten years and found that it may be acceptable or may be accepted and then I went back twenty and twenty-five years and I found where it says, will be rejected, was the phrase and I said, why did it get changed. I went and asked why did that phrase get changed because that was just what Paul had asked for, what we had back in the early seventies in this book. And it got changed because there was a situation that occurred where somebody left a line blank and I'm not sure portion, all of it or a portion thereof but left it blank so it couldn't be added into the bid but the Board, it was the significant low bidder, the Board wanted to make it an award to them because they were low but when it said, will be rejected, they had no choice because the contract document said if you leave a blank, it will be rejected. Now, I went back and asked our attorney again, I said, can this be changed and his first reaction was maybe accepted or rejected and I said, if it was that simple, why didn't we say it. So we analyzed it again and actually it implies you have the right to reject the bid because he had the mistake but by adding, maybe accepted in there, you can also accept the bid and that's where we had the problem back in, I got to say the late seventies or somewhere, where the Board wanted to accept it but couldn't because the contract was worded such that it was blank, it's thrown out. Attorney Dusek-And the benefit behind going Tony's way is that it gives you that option of possibly taking somebody whose the low bidder but I think what the Board has to understand is with that option your given, also comes a new risk that wouldn't be there if you simply say it's going to be rejected. Councilman Caimano-Not a risk, certainly a responsibility. Attorney Dusek-And a risk for a law suit. Councilman Monahan-Tony, wait a minute, I've got to back up and find out which figure you're talking about. Are you talking about if they don't fill in these or if they don't fill in this one or if they don't fill in any of them? Councilman Caimano-Is there a difference? Any of them. Councilman Monahan-Alot of them, it can make a big difference. Yes, it can. Wait a minute, because I think Tony knows where I'm going so. Mr. Geiss-Okay, let's talk about the numbers you're looking at too. The numbers in these unit price items amount to less then one percent of the total project, they're basically contingent items that we're talking about here. Okay, if they left the lump sum of the project out which is ninety-nine percent plus of the project, then they wouldn't even be considered at all. Okay, now we're working with the unit price items, the contingent unit price items in fact and these are contingent items that you'll only use if you need them. They are items such as what we call, you mentioned the PVC valves, if we want an extra valve somewhere and there's also PVC piping like four hundred foot of it or five hundred foot, if we needed more piping, they'll give us a price and we'll use it if we need to. Excavation, what we call miscellaneous excavation, like we say, we want you to go over and locate that pipe over there and stake it, you go dig it, it's a couple of yards of digging, we'll pay you whatever price you put in here, we'll pay you to do that extra digging that we want you to have done and if we want you to over dig for something. We tell them how far he's got to dig to build this structure and we call it excavation below sub grade, if we see there's a couple of big rocks there we don't want ... we tell them dig them out, well, then we pay them for those extra few yards because we didn't know it before hand. Now we see it, we say take it down, pull it out and we'll be paying to put fill back in. These are the items that we're really talking about and they and I went back and looked at several water treatment plant jobs, they average just slightly less then one percent of the project. So, we're not working with the big portion of the project. If you were, you'd throw it out no matter what because they wouldn't be competitive. Councilman Monahan-Okay, let me ask you another question then. In this lump sum part of the contract, is there some rock excavation in there, is there some earth excavation in there so that this is only for that, that you don't foresee or is this also part of that, that you know they're going to have to do? Mr. Geiss-No, the work to build the water treatment plant, to dig it, to remove rock for that water treatment plant is in the lump sum portion of the project. Councilman Monahan-Okay, so these are things that you, are unforseen, you don't know if they're going to be there or not there. Mr. Geiss-Unforseen, we don't know if they're going to be there, it's special fill like once we get there and we say that pipe rather there's some rocks in the area, let's put some special backfill underneath it rather then the native material then we can pay for it, we've got a unit price to pay for it. What this establishes how we pay the contractor and it's part of the bid, it's not an arbitration or an evaluation after the fact and it also gives, when you're working with the project, you say I need some, it will be paid for under that unit price item. Councilman Monahan-So, then in other words, when we're totalling up this bid, we're not going to take all these and add them to the lump sum. Mr. Geiss-Yes you are. Councilman Monahan-We are? Mr. Geiss-You are. Councilman Monahan-For the comparison purpose. Mr. Geiss-For comparison purpose, yes you are. Councilman Caimano-Some people may not bid one or more of those items though. That's what this is all about. Supervisor Champagne-That's right. Attorney Dusek-It would be by accident ... Mr. Geiss-It would be by accident, they're told to fill out the entire document as part of this. Councilman Caimano-But the point of all of this, is that some people may not. Attorney Dusek-Right. Mr. Flaherty-Then how do you tell in the bid? Attorney Dusek-Right. Councilman Pulver-That's what I'm wondering. Councilman Monahan-Well, that's there responsibility as a bidder. Mr. Flaherty-Then how do you know it's the low bid, then? Councilman Caimano- That's right but that's what this is all about. Is do we, do we say it must or it's rejected or do we say, we may accept it. Attorney Dusek-Right. Councilman Caimano-And I don't see anything wrong with saying we may accept it because, may accepting it means we may not. Councilman Monahan-The only thing is you run into a situation like that and here's what's going to happen and you've got Supervisor Champagne-Smart contractors can play games with that. Councilman Monahan-You bet your life. You've got somebody on the job or you're ready to sign a contract with their low and you're not too concern because you don't think these are going to happen. So, then you're going to ask them for a price for some one of these items and it can be way off the ball game. Councilman Caimano- Then you reject it. You have the option. The other way, you have no option. Attorney Dusek-Well, I think Betty which you might be thinking of and the town has indicated to Tony, we're very sensitive to unbalanced bids and that practice. But that actually is addressed in a different fashion which I was going to get into after we got done with this issue but they've actually developed what I think is quite a clever system of helping to prevent the unbalance bid problem and I think we can satisfactorily address that concern after this issue because it's not, the idea of whether they put in the amount or not, is a different issue then whether they put in the correct amount in terms of playing games. Councilman Monahan-My whole point of it is though before I want to sign a contract with somebody based on just the lump sum knowing that this other is going to have to be done, I want to know those prices. Councilman Caimano-And you have a right to do that. Councilman Monahan-Before a contract is signed. Attorney Dusek-Oh, okay, you're saying if he accidently didn't fill it in. Councilman Caimano- Y ou have a right to do that. Mr. Geiss-Yes. Mr. Flaherty-Wunderlich had an unbalanced bid on the sewer project, he bid gravel a penny a yard and then that's part of the problem we got into in the battle. Councilman Caimano-But see, if we say, if we accept the language of may, then we have an option. Councilman Monahan-Wait a minute, but here's the only trouble. Once you've done that, all these bids are opened up and he knows what every body else has bid and the price he's got to beat by putting these in. Councilman Caimano- That's right. That's right and we've already run into that once this year. That's the danger of it. Councilman Monahan-That is a problem, right there and there's where I as a contractor would take you right to court. Councilman Caimano-Because all of sudden somebody says ... you can fenagle. Councilman Monahan-You bet your life you can. I'm going to smart, I don't fill it out, I'm going to try and make mine real low so you guys are going to look at it Councilman Caimano-Except, wait a minute Betty, he said that typically the total amount is less then one percent of the bid. Councilman Monahan-Yea but one percent on how much money are we talking about? Councilman Caimano- Thirteen million dollars. Councilman Monahan-I don't know what one percent of that is in my head. Councilman Pulver-A hundred and thirty thousand dollars. Mr. Geiss-It's even less then that even, thirteen is the total project cost. The construction cost is ten million. Councilman Caimano-It's less then a hundred thousand dollars out of almost thirteen million. Councilman Monahan-But I'll tell you, I've seen contracts go for a dollar and I'm talking about big contracts, the difference has been a dollar, unbelievable. Mr. Geiss-Betty, let's look, give you another for instance to go with that. If he fails to put a dollar amount in there, he doesn't, you don't have to ask him for a dollar amount, you can just delete that whole item from the evaluation also and then, once you have a contract with them, you can use that item or negotiate a price. If that item, say it's the gravel Councilman Monahan-Tony after what we went through with those sewer contract, I don't even want to talk about that scenario. Mr. Geiss-Well, see the sewer contracts different. These aren't items that are the major portion of the contract, they're contingent items which are used in addition to the contract not for the building of the prime contract. In the sewer contract where you've got a pipe line, those are true unit price items, that's how your contract is put together. Supervisor Champagne-What kind of savings are we looking at here possibly? Mr. Geiss-There's no savings, plus or minus on this. This is what you, when you look at bids the way you look at it and as I said, years ago and I went back to the beginning of my books and basically we had rejected at that point but there was the condition that if you say rejected, then you're locked into as a Board and if you get a bid you do want Attorney Dusek -You can't take it. Mr. Geiss-Boom, you're not going to take it because the book says will be Councilman Monahan-I know if I were a contractor, I'd take you to court. Councilman Caimano-I like the decision. I like the mayor may not, it gives an option. Supervisor Champagne-I do too, let's do it. Councilman Monahan-I don't to be honest with you because I think you're asking for court particularly around here. Councilman Caimano-It's certainly no different then court the other way. Councilman Monahan-No, not if everybody is bidding on the same field. Attorney Dusek-It stays. Okay, now this leads us right into the next point which I don't believe really, hopefully it won't be changed, I don't see a problem with this and as I mentioned I think it's actually a good idea but because it's an essential part of your bidding documents, I thought the Board ought to be aware of it. And the other thing you should understand of course is that this is not something that you have to do but it's something that you're engineers have recommended. Tony has at various points in the bidding documents actually set forth what the fixed maximum amount that can be bid on a particular item. Okay, so he's actually put a dollar and cent figure into the documents which will key in the contractor to know what they think is the appropriate maximum which the purpose of this is to help with the problem of unbalanced bids and also allow for the other items to get equally taken care of and also address the situation in advance that causes unbalanced bids which is the contractor trying to get as much money as he can up front as he gets into a job to be able to work his way through it. I think, personally my reaction was after I understood and also with the understanding that it can, those amounts can be changed by the way by the bidders, they're not locked into those amounts, they can write in different amounts. Mr. Geiss-They can write in a lower amount, not a greater amount. Attorney Dusek-Right. I'm not terribly bothered by that and I think it might even be a good idea but it's, it is in there and I feel you folks ought to know about it because you don't have to do it that way. You could just leave all amounts blank, that's another way of handling that. Councilman Monahan-Tony, you're talking about with these figures or once they get a job and they're able to, if they give you a progress schedule payment type of thing? Mr. Geiss-No, let me show you. For the general here, we're talking right here. Lump sum items, there's mobilization, fixed maximum lump sum. For the general is one hundred and forty-nine thousand dollars. Now, what that is and it's specifically stated in there that it covers his set up costs. His cost for mobilizing, get the trailer on site, his cost for bonding, setting up his insurance and there's provisions when he can get paid that also. This is an amount that we allow him once he's completed, I think it's five percent of the job, he can submit and get paid this amount of money which is his up front cost to set the project up. Councilman Caimano- Take it. Attorney Dusek-Leave it as it is? Councilman Pulver-Yes. Councilman Monahan-Yea, that's dirt cheap to start a job of that amount of, that magnitude. Attorney Dusek-Yea, I think it's Mr. Geiss-Yea, and if he wants, if he thinks that's too high and he wants to lower his price, he can lower it but he can't go any higher then that for up front. Councilman Caimano-It's done. Supervisor Champagne-Good. Attorney Dusek-Okay. Next item, insurance. Just so you know and I think Betty is already aware of the fact, we've reviewed this with Cool, the insurance provisions, I don't know if you want me to review them with you. Supervisor Champagne-No. Councilman Caimano-Not if you and Betty are happy. Attorney Dusek-Okay. There's an issue of change orders but we're going to wrap that up with separate understanding with Tony and his firm, just so you know. The concern always is of course, what the engineers can approve in change orders and we're going to take care of that by way of separate agreement with Tony. Next issue Mr. Geiss-We can't approve anything, let's stop there for a second. There's field orders, I think is right, you said change. Field orders can be issued by the engineer but they can not change the price of the contract. Okay. Change orders, he actually was using field order, change orders or modifications, what we worked out with the administration building would be the same thing. We would look to you to authorize Tom that if there's an amount of maybe a thousand or five thousand dollars, if it came up and it needed to be done right away, he would have authorization to approve so that we could proceed with work, up to a certain amount of money. Anything over, and then it would have to be brought to you with the next, at the next meeting. Anything over that has to be brought to you before we would do it and we would work out among us and Tom, what you could do so that we could keep the job moving for a minor amount of money, we're not going to stop a job and wait for a Board meeting. Councilman Pulver-Knowing whatever the cost of the project and whatever the cost of the changes are, would five thousand be enough, would that be a significant amount to? Mr. Geiss-I'd work, let me work with my construction department and make a recommendation. I think we used five on the administration building, is why I just referenced it but we would say, what is a reasonable amount. I'd ask them but five includes an awful lot of the work that has to be done and when you get, and maybe ten might be the number but I can come back to you with a real number and then you can authorize the water department, and these are items that need to be expedited. If they can wait, then he brings, we put the forms together and present them to you formally. Those would be modifications, change orders you would be voting on anyway because we would total up all the dollars and the modifications, they would come formally for your approval. Attorney Dusek-That's going to be addressed and the primary point of this, is just to bring it to your attention so that it's in the back of your minds and make sure that is addressed at a later date. Now, the next point on these documents, the way everything is structured and the way this thing is going out to bid, will require an additional engineering staff other then what you've already agreed to with O'Brien and Gere. You've agreed for one engineer... Mr. Flaherty-But it's not going to change the bottom line. Mr. Geiss-No, it's not changing the bottom line. Attorney Dusek-In your agreement it is, with us. Mr. Geiss-It's going to change the dollars in our agreement but it's not going to change the bottom line in the project cost. Originally, when we set this project up we talked about one contract doing all the general work and having one inspector on the project. We've broken it up into three prime contracts, actually three contract books, three separate contractors would be bidding on the prime and also in the water plant there's going to be four contracts actually with the electrical, HV and plumbing. The tank and the pipe line will require a separate inspector then the water treatment plant. So, we're looking at a separate inspector for about a six month duration. So, we've worked up the dollars and I'll get them to you in a formal a letter outlining that there still within the dollars as presented in the map, plan and report. Councilman Monahan-Is all this work going to be done concurrently, the three contracts? Mr. Geiss-The, originally it was set up as like a fourteen month, we've now got it set up for eighteen months of construction, that's set up for six months. They would all start in May of this year, those would be done by this Fall, this would go into next Fall. So, yes, concurrently but those would end this Fall. Councilman Monahan-But they're all going to start together. Mr. Geiss-They're all going to start together. Attorney Dusek-But the bottom line is, Betty and although they're within their projections, you are going to be paying more money to O'Brien and Gere under the contract and I wanted to make sure, there's going to have to be an amendment to that contract and I just wanted you to know that. Mr. Flaherty-The other thing is too just quickly, the plant contract and the water line crossing contract at Gurney Lane will be going on at the same time, our permit from the State of New York requires a full time inspector on the water line crossing. Councilman Caimano-Oh, it does? Mr. Flaherty-Yes, it stated right in the permit that there will be full time inspection. Mr. Geiss-Yes. Councilman Monahan-What do you estimate the price, what the general is going to come in under? Mr. Geiss-I think it's around eleven million bucks, Betty. Councilman Monahan-Do you really think penalty clause of a hundred dollars a day is enough on that kind of a project? I mean if I had equipment I wanted to take to another big project, I'd probably just as soon pay a hundred bucks a day to you. Mr. Geiss-If you've got a, that's liquidated damages, over and above that, you've got to show, you can show real damages on top of that for what you've got, that you're eligible for to. Okay, that's liquidated damages because you get, alot on top of that, you can get challenged for being excessive also. Councilman Caimano-We have decided haven't we that we're not going to pay a premium for finishing early? Mr. Geiss-That's right. We can make that a hundred and fifty but if you try to make that five hundred, I don't think you would ever make it stick. Councilman Monahan-Really? Mr. Geiss-Yes. Councilman Monahan-I thought I remembered seeing some pretty big ones in some of them. Mr. Geiss-Our experience, let's get away from what the paper says and Paul can tell you the experience says, you're probably going to get paid your real damages, not any of the liquidated damages ... Councilman Monahan-I mean they're used to be just a penalty clause, I mean maybe I'm not looking at the same kind of a thing but I've seen penalty clauses in here, you don't finish by your certain time, you're... Attorney Dusek-Therein lies the big distinction and I shudder when somebody calls them a penalty clause because under New York State Law, a penalty clause, if it's truly a penalty, is illegal. What the clause is designed to do is to, as Tony just mentioned, actually what you're saying is, it will be very hard for us to calculate our damages so we're going to say a hundred dollars a day will cover our damages as a realistic number should you not finish the job on time. And I agree with Tony, under the law, you do have to be reasonable in that number. I mean, a hundred, a hundred fifty, two hundred, I don't know what the number is but if it's a hundred and Tony feels comfortable that, that probably is some where in the range of what our damages would be every day that it's not done, then that's what you leave it at. Councilman Monahan-Well, I wouldn't quibble between a hundred and a hundred and fifty. I mean Councilman Caimano-She was thinking more of a hundred versus a thousand. Mr. Geiss-Right, five hundred wouldn't pass here. Attorney Dusek-But see if you put it in as a penalty, a court will strike it out anyway on you because ... Supervisor Champagne-Okay, we've got that settled. Mr. Geiss-Engineering and other things are in addition to that too. Attorney Dusek-Next item. As I mentioned to you, your contracts cover everything that your originally resolution covered. However, it's been brought to my attention that there's another element of your plant that you would like to take a look at which is the filters, repairing the filters and Tony and I discussed the concept of trying to put that a part of this particular bid document. Obviously from an engineering standpoint, I think from what I understand from Tony, is that he's not going to have any problem putting together some specifications and putting them into your contract documents, put it out to bid. He would put them in as I understand it as an alternative bid. Yet two problems with that scenario though from a practical and legal standpoint. One is you have no authority whatsoever to put that out to bid because you have to go through a 202B public hearing just like you did for the project and you have to, you're going to have to up the amount of money that you've authorized for the project presumably because you have thirteen point two and whatever this extra cost is going to be you're going to have to go up further. Mr. Flaherty-Even if it comes in under bid? Attorney Dusek-Well no, you wouldn't then but you'd still have to do the resolution authorizing ... Mr. Flaherty-Okay, but I'm just making that point. Councilman Monahan-How about if they took it out of surplus that they've got over there so we don't have to bond for it? Attorney Dusek-You're total project cost is dictated by the resolution. You've got to increase that if you do go over it and it doesn't matter where the money is coming from because see what you've done is you've represented to the taxpayers in the district that this is what the project is and this is what it's going to cost. If you change it and you add a significant increase of an expense of some kind and you add something that's not even contemplated in the document, you have to go back to that public hearing process. Mr. Flaherty-Just a quick question, could you put it in there as an alternative if the bids came in under bid and you could cover it? Attorney Dusek-Well, that's what we we're going to talk, the thought is, is that and Tony and I kind of wrestled with this thought. Well, what if we go ahead and just put it in the specs because I as an engineer can do that, I'll put it as an alternate so that we're not stuck with it. And the game would be to see if the Town Board could get through the proceedings fast enough because even if it's in there, if you don't get through those proceedings fast enough to authorize it, you will not be able to accept it because you can not award a contract with out having the authorization and the money in place. So, assuming though that, now play it out a little step further. Let's say he puts it in, let's say you go through the proceedings, you're willing to get that out of the way and now, the last leg of the journey is you've got a contractor whose bidding or contractors who are bidding and I know that these guys don't seem to think it will happen but I see it as an outside shot, you have one contractor who comes in and bids one part of it high and one part of it low and the other guy does just the reverse, so now all of sudden you've got two different bidders bidding, you know, two different amounts on the alternatives. Now, you've got incompatible bids because you've included this alternate. I originally raised this as a concern when I was reviewing the documents because it provided for alternates there in the documents without even knowing about this other thing and Tony at that point told me, well we don't have any alternates. So, I said, okay, I don't care about that element of the bidding which is why I didn't raise it to you. But if we're going to put in an alternate bid at this point, I think here again, you're exposing yourself to two things. One is, having to get through the proceedings in time and two, having the potential and maybe it won't ever happen but you do have a potential a problem if you've got two different bids coming in. Councilman Caimano-How much money are you talking about? Mr. Geiss-Equipment only, fifty grand and that's a written quote that we've got from the supplier. Councilman Caimano-And what are you thinking about for total project? Mr. Geiss-Okay, he quotes the project, if he did the two projects Mr. Flaherty-That's a savings of fifty grand. Mr. Geiss-Yea, savings of fifty grand. Councilman Caimano-No. How much is it going to cost us to do the filter project? Mr. Geiss-Equipment, nine hundred, if he does it as one project, nine hundred and eighty thousand. Ifhe does it as two, a million thirty thousand and those are, it's a quote from the supplier here. Councilman Monahan-Is that just material or is he figure roughly given a figure in for labor? Mr. Flaherty-That's material. Councilman Caimano-And we save fifty thousand dollars. Attorney Dusek-On a million dollar job, well over a million dollar job. Mr. Geiss-Yes. Mr. Flaherty-It's not including labor, is it? Mr. Geiss-It doesn't include labor. Mr. Flaherty-You'd save money on labor too. Mr. Geiss-It would have the, the benefit of including this in the, there would be a savings because you've already got a contractor on site doing the work. So, there would be an additional savings to the equipment. Councilman Caimano-I think you're asking for a big problem. Councilman Monahan-Hopefully, if you bid it after you do the first contract and you re-bid this out for this, that guy on the job is going to bid low because he's already there. Councilman Caimano-I think we're asking for a big problem. Supervisor Champagne-For fifty thousand dollars, it's Councilman Monahan-You mix these together and Mr. Geiss-Let me offer another thing that you could do. You also could make this a change order to the contract too. Attorney Dusek-Oh, no. Councilman Monahan-No, no you can't, not legally. Attorney Dusek-That I would not recommend, Tony. Councilman Monahan-If you want to end up in court because here's what could happen with this alternate in here. You look at the base lump sum and that's one low guy, you'll get one low guy, you add this in you may change your low guy and you take a chance on this and then you can't make this fly and you're in a mess. Supervisor Champagne-Let's do it in November. Councilman Monahan-Bid it while the guy is on the job and you know Supervisor Champagne-That's right. Councilman Caimano-I don't think it's worth it with the risk. Five percent is not worth the risk. Attorney Dusek-And the other thing is that you can still do it and just, we'll, he's got to do a map, plan and report yet anyway, we'll go back through the proceedings and authorize it. Councilman Pulver-I think we should do it and we should work on it. You know, we've had alot of trouble with those filters. Mr. Flaherty-Just be aware that we've got to move ahead with it, that's all. Councilman Caimano-We got to do that job, the question is, do we do it as part of this contract. Mr. Flaherty-My concern is whether you can save enough money on it. Councilman Caimano-I don't think it's worth the risk. Mr. Flaherty-That's fine. Mr. Geiss-Okay, real quick. If you do it as a separate contract, no matter when you bid it, you can't touch those filters until the contractor that you have there has new filters in place and working. Okay? Supervisor Champagne-Is that right? Mr. Geiss- We can't take those others out of service. So, regardless, yes we get it going and we can actually get it bid and it would be to the advantage because you've got a contractor on site but the time table would be dictated by the contractor when he finishes and has the existing filters up and operating, then the old filters can be taken out of service and worked on. And it might be even, that if the existing general that you get doesn't do the work, you probably don't want anybody out there, you want him to almost be off site and then bring the new guy on. Supervisor Champagne-Okay. Mr. Flaherty-One of the other things too Councilman Monahan-But you can write your specifications to take care of those things. Mr. Geiss-We can do that. Mr. Flaherty-One of the advantages that would be is you'll know whether you saved, how much you've saved on the original and you'll know how much you've got to spend too. Attorney Dusek-Next item, just as a brief note. Tony and I discussed the importance of keeping the water plant obviously fully operational and as I understand, Tony, I didn't read this thing where but you made additional revisions to make sure that, that plant is fully operational. Mr. Geiss-Yes, we've got several provisions in here to talk about keeping the plant fully operational. First we informed that the plant here is to make potable water and supply potable water and that's the prime concern when anything is done. We tell him he's got to do the work on a schedule and he's got to submit the schedule and then also, if any interruption has occurred, any interruption or reduced capacity is caused, he's got to stop all his work and correct the problem and work continuously to correct the problem. Not just interruption but, and reduced capacity. So, any hampering of it. We also say any valves are, has to coordinate with the owner and the owner operates the valves but he's got a two week coordination before he can do that. Attorney Dusek-New item that cropped up, asbestos tiles. Mr. Flaherty-We don't have any choice on it. Attorney Dusek-Yea, but I think, Tony or Tom want to explain to the Board what's entailed there and it's going to be an added cost beyond what you've already... Mr. Flaherty-In the modifications of the plant there's, we have to take up some floor tiling and we had a feeling that there may have been a problem, we had a quick test done to make the story short, there's asbestos tile on the floor. The tile on the floor is asbestos which means that we have to go through a full bloom asbestos removal program to get it out of there. Councilman Monahan-Can you cover them some way? Mr. Flaherty-No. The other part of that program was and I talked to Tony about the other day. We were only going to take a portion of it out and I suggested to Tony if we've got to do the full bloom program for asbestos removal, we go in there and we take all the asbestos tile out and get it out of there now because if we ever have to go back and do another project, we've got to go through the full bloom thing all over again and pay the up front price. Attorney Dusek-If you authorize this, this will be an addition to what's currently in the documents right now and you can of course, expect an added expense. I tried to pin Tony down to see whether or not this would bust the threshold of your resolution of authorization. I think it's included by the way under the resolution, but I don't think it's a matter of having to go back through special proceedings because you already had planned to take out the tiles anyway. But the question is, is whether or not you're going to blow through the threshold of the project cost. Mr. Geiss-And I've got to say, I don't believe so at this point in our estimate, we're under the estimate. This should not upset it, but again, the best way is to bid it. Here to date, the testing, the town did some sampling, they were tested by a certified lab, the tile showed only asbestos. You're into a minimum containment but you have to contain it because it is, but when you take it up it's not a... material like if you were taking tile out of the ceiling and things. But it would be to the advantage to get it done and Tom brought up the point, if you're going to do half the plant, do it all and then the plant is asbestos free. But half has to come out because we're tearing walls out and doing work in that area and half has to come out because we're resurfacing in that area. Councilman Monahan-Paul, does this really have to be a part of that project or can it be maintenance work that we're doing because we want to get rid of asbestos tile so we don't have to worry about if it affects that. Attorney Dusek-I think you can separate it. Mr. Flaherty-Why don't we let the contractor do this, Tony as part of his job? Mr. Geiss-He will, we can include it in the bid. It's not separate bids. Mr. Flaherty-It's not a separate bid, the contractor is going to do it. Attorney Dusek-Right, but Betty's question was could you bid it separately and of course you could. Mr. Flaherty-Yea, but it's not. Councilman Caimano-He's going to bid it only to find out if he's going to go through the ceiling of the contract, right? Mr. Geiss-Yes, that's all. Councilman Monahan-But then if it does, it could be done as a maintenance type of thing, we take it out of surplus funds or something. Mr. Flaherty-Yea, but it's got to be, we don't have any choice, it has to be done. Councilman Monahan-I'm not saying that but I'm saying there's two ways of financially approaching it. Attorney Dusek-Right. Mr. Geiss-You need, we would write the spec that a certified, you have to have a certified asbestos remover do this work. Okay, so the general, if he isn't he would hire somebody to do this work. And I think we have a proposal in front of you which I think totals out to ten grand for doing the engineering to set up the testing, the investigation, testing and drawings that would be required to set this up as an item in the contract. Supervisor Champagne-Ten thousand dollars for engineering to remove the asbestos? Mr. Geiss-Not more then, it's not to exceed. You have to do field work ... Councilman Monahan-What do you think the contract will be for them to do the work? Mr. Geiss-I don't really know. Councilman Caimano-He's got one more issue here guys. Attorney Dusek-The final note on this is that, there were a variety of minor issues, such as bid dates have to be inserted, mailing addresses still need to be straightened away on the bid documents, we'll need to talk about that. And there's an issue of pre-bid conference, whether or not your going to do that. But these are like alot of these little issues which I'm not going to take up your time with now but I just wanted you to be aware of, these may just change ever so slightly in those terms, nothing substantial. The question for the Board at this point is, one do you want to go ahead and approve these documents with the changes we've discussed tonight and basically authorize this to go out to bid or how do you want to move from here? Councilman Monahan-Why don't we do it Monday night? Supervisor Champagne-Let's do it right now, get it done. I'm ready. Councilman Monahan-I would think something like this, you would want to do it in a regular public session, frankly. Councilman Pulver-This was advertised, wasn't it? Councilman Caimano- Yes. Let's do this, first of all, I'm not going to be here Monday night and Ted is not part of this meeting. So, now you're running short. All I suggest is, if you want to, we take the vote now and you can make a full presentation of what was done at the meeting tonight. Supervisor Champagne-The point is, we had the public hearing, we've handled this thing long enough. Mr. Flaherty-We don't need another public hearing to accept the bids. I mean, do you accept the contracts or don't you? Councilman Caimano-I would go along with Betty if we needed a public hearing, we had a public hearing. Everybody has had plenty of time. Attorney Dusek-This is primarily mechanical type work. Mr. Flaherty-Let's go with it. Councilman Monahan-Okay. Supervisor Champagne-Alright, let's do it. Attorney Dusek dictated the following resolution into the record: RESOLUTION AUTHORIZING ADVERTISEMENT OF BIDS/QUEENSBURY WATER TREATMENT PLANT EXPANSION RESOLUTION NO. 175, 95 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Nick Caimano WHEREAS, the Town Board of the Town of Queensbury has been presented with three sets of contracts, bidding documents for the Queensbury Consolidated Water District, Water Treatment Plant Expansion for l5MG, Queensbury Consolidated Water District 16 Inch Transmission Main and Queensbury Consolidated Water District lMG Water Storage, and WHEREAS, the Town Board has reviewed these documents with Tony Geiss of O'Brien and Gere Engineering and also Paul Dusek, the Town Attorney, as a result of that review has determined that the documents are acceptable and that the engineers may proceed to going to bid or advertising for bids provided that certain changes be made: 1, that an arbitration clause be inserted in the agreement, the arbitration clause to meet with the approval of the Town Attorney and will be deemed acceptable to the Town Board, 2. that specifications and criteria for asbestos removal be included and that no other changes shall be made to the documents other then minor changes such as bid dates, small language changes, incorrect mailing addresses and perhaps pre-bid conferences and other similar types of information to be changed at this point, and WHEREAS, as part of the bid documents also have been presented to the Town Board are-draft of certain pages to the Water Treatment Plant Expansion to 15 Million MG contract 31 A,B,C and D with several revisions, NOW, THEREFORE BE IT RESOLVED, the Town Board of the Town of Queensbury hereby approves the bid documents as described in the preambles of this resolution and also authorizes changes to the bid documents as described in the preambles and hereby further authorizes the engineers to arrange to advertise for the bidding of the Water Treatment Plant Expansion project and the Transmission Main and I.MG Water Tank by releasing the same on Tuesday, March 21st with a bid return date to be Tuesday, April 25th. Duly adopted this 14th day of March, 1995, by the following vote: AYES: Mrs. Monahan, Mr. Caimano, Mrs. Pulver, Mr. Champagne NOES: None ABSENT: Mr. Turner RESOLUTION TO ADJOURN RESOLUTION NO. 176, 95 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mrs. Betty Monahan RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns. Duly adopted this 14th day of March, 1995, by the following vote: AYES: Mr. Caimano, Mrs. Pulver, Mrs. Monahan, Mr. Champagne NOES: None ABSENT: Mr. Turner No further action was taken. RESPECTFULLY SUBMITTED, DARLEEN M. DOUGHER TOWN CLERK-TOWN OF QUEENSBURY