OPINION: Rye Public Safety Building--The truth will out
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People continue to ask me: “What is the true story with the Rye Public Safety Building?"
The long sad continuing saga of this troubled project is one of an indifferent General Contractor who is, at best, hood-winking the Rye Town Officials in order to satisfy his greed; Town Officials who are indifferent, at best, and interested in moving into the far-from-complete RPSB despite its inferior quality and unknown cost (with which Rye will be stuck for many years to come); and an Architect who, at best, has been providing faulty documents and faulty advice to Town Officials in order to satisfy their own ends.
Well, Victor Azzi was fired by the Board of Selectmen (BOS), on March 31, 2006, from his volunteer, unpaid,, position as “Project Manager and Owner’s Representative” of the Rye Public Safety Building (RPSB) project. Victor was invited to this “status-review” meeting by Alan Gould, Police Chief and Acting Town Administrator. The venue was a BOS meeting convened in Town Hall without proper legal notice and held in mid-afternoon on a Friday, presumably to minimize public knowledge of and discourage public attendance at such a meeting. The meeting was conducted by the Mayor of the City of Concord, Michael Donovan, imported, at great cost to the Rye taxpayers, as the legal counsel to the BOS, to conduct the “meeting”. It turned out to be a stereotypical five-on-one “kangaroo court”, where facts were not welcome. No reason for the firing was specified. References had earlier been made by these “Town Officials” to the allegation that Victor was “not a team player” and that “his standards and expectations are too high”.
Victor pleads “guilty” to not being a team player when the “team” is composed of the members of the BOS, the Acting Town Administrator (ATA), and the Legal Counsel, considering their uninformed, deceitful, secret, unprofessional, damaging, undermining, behind-the-scenes, back-channel deals, and cover-up of the facts over the last two years.
A brief history is appropriate. Some members of the Rye Public Safety Building Committee (RPSBC), appointed by the BOS, have been working on this project for seven years. After little progress the first two years, a new initiative was undertaken to find the optimum site for a new combined facility for the Fire, Emergency Services, and Police Departments in a geographically and functionally appropriate location. After a long search, along with a companion feasibility study, the present location on Washington Road was chosen, the property acquired, the architectural programming completed, funding sources approved by warrant votes of the townspeople, architectural and engineering studies completed, and Construction Documents (drawings and specifications) prepared. The RPSBC oversaw these efforts, working with HKT Architects from Somerville, Mass. The RPSBC continued with the effort to pre-qualify General Contractors who would be interested in submitting competitive fixed-price lump-sum sealed bids for the construction of the RPSB.
Early in the design process, Victor was asked by the BOS to be the Project Manager and Owner’s Representative. This role included signatory responsibilities of design and construction documents and contracts, along with financial oversight. It was also discussed, acknowledged, and agreed that this project, as with all important construction projects, would need to be prosecuted with a tri-cornered organizational structure, with the delicate balance of a three-legged stool, wherein all communications and decisions needed to flow through one person representing the Architectural firm (HKT), one person representing the General Contractor (Horne Construction), and one person representing the Owner (the Town of Rye). The BOS asked Victor to take on this role for the Town because of his extensive professional experience wherein he has been responsible for the planning, architectural and engineering design, and construction for many buildings. Victor agreed to accept this responsibility, pro bono, as an unpaid volunteer, because he was made to feel assured that others, like himself, wanted to create an economical, durable, functional, institutional-quality, architecturally-distinguished building for the Rye Town Center. Victor chose to commit to this project, because he wanted to complete this building on time or early, of excellent quality, and within budget. In Victor’s professional career, he has accomplished this goal on many buildings, large and small, public and private, with an aggregate cost of some $200 million.
In this case, the RPSB has a Building Cost of $2,931,385 and a Project Cost of $4,374,525. There has not been a building project undertaken by the Town of Rye of greater value or consequence.
As we initiated the construction phase, it became evident that the Construction Documents (CD’s) produced by HKT were less than complete, had built-in conflicts and contradictions, and were not “rigorously-coordinated” as we had instructed and contracted with HKT to do. Steps in the architectural-design phase had been skipped, which left the project and the taxpayers vulnerable to likely negative consequences. Upon my protestations, we were assured by HKT that the CD’s were “adequate enough”, that HKT would make corrections in a timely manner, and that we should continue with the process. The prequalification process, and the bidding and contractor-selection process, resulted in the awarding of the construction contract to Horne Construction Company of Rochester, N.H., with construction intended to commence on December 09, 2004.
The contract called for “substantial completion” within 364 days, or by December 09, 2005. Further, the contractor agreed that failure to achieve “substantial completion” would allow Rye to deduct from each monthly invoice, an amount equal to $1000.00 per day as “Liquidated Damages” for every day beyond December 09, 2005 that the RPSB was not “substantially complete”. This date of December 09, 2005 was later changed to December 21, 2005 by agreement.
As required, Horne produced a Construction Schedule, or timetable, intended to inform the Architect and Owner of the order and rate at which the construction phases would be undertaken and completed and the projected dates for “Substantial Completion” and “Final Completion”. [Although the documents allowed for 12 months, Ralph Blackington, President of Horne Construction, boldly proclaimed in December of 2004 that Horne would complete the RPSB in eight months, as it was a “piece of cake”].
A SLOW START
Horne got off to a very slow start. The sitework and excavations fell months beyond what was projected in the Horne-prepared schedule. The completion of the follow-on work would be correspondingly jeopardized. We were assured by Horne that they would work diligently to catch up and that Rye should not be concerned. Periodically, we would request, and sometimes need to insist, that an updated schedule be delivered. Soon we found that each “updated” schedule was neither realistic nor accomplishable. Often the work phases and dates shown on an “updated” schedule were already DOA. In the last 17 months, some eight “updated” schedules were created, each bearing less reality than the previous. However, Blackington continued to assure us into December, 2005 that Horne would complete the RPSB by December, 2005. Well before December, it became obvious to all, even a passersby, that a completion on schedule had been made impossible. Too much work had run late, too many things had to be undone and redone, and too few workers appeared to be on site, particularly through many months of ideal construction weather. The construction schedule and the opportunities made available by excellent weather, and of achieving “Substantial Completion” by December 2005, had been squandered.
To make matters worse, some major elements of the work had been done badly and wrongly and needed to be undone and redone. The most obvious example to all observers was the roof-insulation panels for the Apparatus Bay. The sandwich panels arrived much too early and were stored like cordwood in the Town parking lot neighboring the Rye Congregational Church without adequate protection from the weather as required and stipulated by the manufacturer’s warranty and the Construction Documents. The panels, now wet, were finally moved to the building site, languished there while awaiting installation, still not properly protected from the weather. Despite our protestations, those wet panels were installed onto wet roof sheathing. Without the water and vapor barrier applied, the panels continued to take on more water. Instead of removing all of that wet and likely mildew and molding material, the contractor applied asphalt shingles to that wet sandwich during a nasty driving days-long rainstorm. The wet molding mess continued to fester there as Horne refused to accept the responsibility for what they had done. We insisted that what had been done was unacceptable, because it voided warranties, deteriorated the structural and thermal properties, and created a bad molding result. After several months of impasse, Blackington finally admitted, even to the press, that what they had done was wrong and needed to be undone and replaced. He proposed to remove the panels, take them to a heated warehouse in Rochester to dry them out, and then, once the measured moisture content was acceptable, to return the panels to the job site for reinstallation. Many panels had to be pried loose from the roof sheathing because the water had frozen the panels to the sheathing; the removal process caused the delamination of some of the panels. Although damaged, the panels were returned to the jobsite and reinstalled in February 2006, some eight months late.
Throughout this painful ordeal, repeated efforts were made to report the status of the project and the deteriorating gravity of the situation to the BOS. They wanted to hear none of it. In a conference call with the BOS and Town Legal Counsel on October 05, 2005, I was scolded for talking to them about the failings of the construction and construction quality, about the failings of the Construction Documents prepared by HKT, and about classic “bait and switch” tactics that were being foisted on the taxpayers of Rye I was criticized for being too demanding and for having standards and expectations that were too high. I offered to take the Selectmen on a tour of the building but received only silence. They did not want to know the status of any problems with the building (which at that time was still promised to be completed two months hence). They especially did not want the townspeople to know about those matters. They censored and rewrote my status report written, at their request, for the Rye Town Newsletter. They further told me that they no longer wanted any writings from me for the quarterly Town Newsletters nor for the Town Annual Reports, both of which had been regularly carrying RPSB status reports written by me for the previous three years. They warned me not to talk about problems, quality, contractual requirements, (public) documents, missed deadlines, impending liquidated damages, errors and omissions, change-order costs, the budget, etc… The BOS wanted the Townspeople to believe only that the building was progressing satisfactorily. When a resident at the Town Meeting Deliberative Session raised the issue of the RPSB status on February 04, 2006, the Rye audience received a misleading uninformed response from Selectman Joe Mills.
The Selectmen, knowingly or unknowingly, were out of touch. It has appeared that they wanted to retain a state of “plausible deniability” during the course of this project. Volumes of records show otherwise. Mills, who had agreed to be the “Selectmen’s Representative” to meet regularly with the RPSBC during the Design and Construction phases of the RPSB in order to provide liaison to the BOS, attended one-half of one meeting of the RPSBC in the period of the last three years. So much for liaison.
I persisted in my efforts to keep the BOS informed. When I expressed concerns, I was told that the completion schedule should not matter since, in spite of the contract language, completing on schedule was not important and perhaps Horne might produce a better quality building if Horne were given to June/July 2006 to complete; and further, I was told that the Fire and Police Departments were in no need or hurry to move. I was further told that, if Rye refrained from withholding “Liquidated Damages” from Horne invoices, perhaps Horne would (hopefully) do a better job. And, when I raised concerns about the ever-increasing number of Change-Orders being presented for my approval and signature to cover the alleged costs for additions, changes, corrections, errors, omissions, etc., among other things, and at obscenely-exaggerated costs, the BOS told me to sign those change orders in order to not delay the project completion, and that we would reconcile our differences with HKT and Horne once the RPSB was complete and occupied. I cite these exchanges, above, because the responses and instructions tell, all too well, the naiveté and lack of understanding of the nature of the design and construction industry, of construction law, and the character and motivation of some of the people in the construction industry.
I was further instructed by the BOS to negotiate with HKT and Horne to effect a change in the language of the Construction Contract with Horne that would defer the date for “Substantial Completion” and reduce the daily rate for “Liquidated Damages”. In our attempts to negotiate with Horne, it quickly became obvious that there was nothing to be gained for Rye and its taxpayers. There was nothing that Horne was willing to concede as a quid pro quo. Horne only became more demanding in their change orders, more irrational, less productive, and more surly. Clearly, there was nothing in the protracted negotiation that would benefit Rye. I reported these results repeatedly to the BOS. I asked the BOS, I asked the RPSBC, I asked the ATA, as I asked myself and others, “What’s in it for Rye and its Taxpayers?” I refused to execute a change in the date for “substantial completion” and the rate assessed for “Liquidated Damages.” Foregoing the “Liquidated Damages” would cost Rye some $180,000 between December 2005 and June 2006. Why were some individuals, the BOS and the ATA, so intent on making this change and giving away Rye’s legal rights and precious resources?
I continued to insist that “Liquidated Damages” at the rate of $1000.00 per day be withheld from the monthly payments to Horne, starting with December 21, 2005. I wrote a strong letter into the record. The Selectmen were still reluctant to withhold, then decided to do so later, saying they would withhold only on the recommendation of the Architect; this BOS position is contrary to the contract language. The construction contract is between the Town and the Contractor. Without a new agreement between those two parties, Liquidated Damages must be withheld. When Victor continued to push, pointing out the errors in their reading of the contract language, “Liquidated Damages” were finally withheld, belatedly, until March when they ignored their own contract and granted Horne a $7000 break from the February invoice, withholding only $21,000 rather than $28,000.
As this Kabuki theatre played out, I requested, on many occasions, a meeting with the BOS through Priscilla Jenness, then Chairman. I was stone-walled for many weeks receiving many excuses why they could not find time to meet with me. Finally, as I continued to insist, they did schedule a meeting (the meeting requested) that included “a cast of thousands”: members of the BOS, the RPSBC, the ATA, Michael Donovan, Seth Goldfine (of HKT), and perhaps others--everybody but Victor. The meeting was held on a day and time, January 31, 2006, when they knew I would not be available. To this day, I still do not know what was discussed or decided, in spite of repeated requests for information, minutes, and audio recordings, of those now-infamous secret public and non-public hours-long meetings of January 31, 2006.
What I now know, and what they have admitted to, is that the BOS, the ATA, and their Legal Counsel had been engaged in secret, back-channel, underhanded, destructive, cozy conversations and negotiations that had been going on for months, clearly contrary to the organizational protocol that had been agreed to. Without Victor knowing, Horne and HKT were secretly told, behind the scenes, that the BOS and ATA were going to get rid of Victor because Victor was insisting that HKT and Horne uphold and implement the requirements of the CD’s and the conditions of the Construction Contract. They even told the Clerk-of-the-Works, who was working for Victor, of their decision to get rid of Victor. Their irrational action was/is especially bizarre and contrary to the Town’s interests since Victor is the only professional person representing the Town’s interests in this project. Victor, who has had substantial professional experience in institutional building construction, is the only person who has known the flaws, errors, and omissions in the HKT-prepared CD’s, and who has been keeping a detailed, running “punch list” of the construction problems.
CHANGE ORDER NO. 4
Meanwhile, HKT began to charge the Town of Rye for substantial “additional services,” because the RPSB project was running well beyond its contract timeline, and the pace and exorbitant costs for Change Orders from Horne continued to accelerate. A Change Order number four (CO#4) was prepared in mid-February to cover the aggregate costs of several small changes agreed to earlier. At a meeting on February 16, 2006, when Victor was not present, Alan Gould signed off (in a place designated for Victor’s signature, the Owner’s Representative). What Gould signed was a document, changing the provisions of the original construction contract between Horne and the Rye. The document had already been signed by the signatories for HKT and Horne; the document changed the date required for “Substantial Completion” from December 21, 2005 to “T.B.D.” (to be determined). Horne and HKT had presented to Gould, for his signature, a document with a crucial change effected by striking (crossing out) the original December 21, 2005 date and writing “TBD” (to be determined) in its place. By signing this, Gould gave away or negated the Town’s legal rights to collect (or continue to collect) liquidated damages of $1000.00 per day for every day starting with December 21, 2005. This change was brought to my attention at a job-site meeting one week later, February 23, 2006, when Ralph Blackington, sticking a copy in my face, gleefully proclaimed to me that the Town could no longer withhold Liquidated Damages from payments to Horne because of the Town’s signature on that change to “TBD.” Seeing this document for the first time, and incredulous at what had been done, I later asked Gould about what he had done, and why he had done it, particularly since there was no urgency for him to sign it on the morning of February 16th, because he knew I would be back in Town just a few hours later. What moved him to sign it; a need to feel important, or something more? I received four different answers at four different times; take your pick: (1) “I didn’t see the changes that ‘they’ had made;” (2) “I didn’t understand the changes that ‘they’ had made;” (3) “‘they’ must have made that change after I signed it;” and (4) “it doesn’t matter that I signed it because it doesn’t mean anything.” My request for a legal opinion from the Town’s Legal Counsel, Michael Donovan, continues to go unanswered.
Clearly, the time had come to get rid of Victor because he was asking too many questions.
A meeting was scheduled for Wednesday March 15, 2006, ostensibly to discuss the status of the RPSB. Victor insisted that the meeting be held in public session. The well-scripted meeting covered little of substance because much of the time was spent on a long angry tirade by Selectmen Joe Mills demanding to know from Victor why Victor had invited a Portsmouth Herald reporter to the meeting. Victor responded that he certainly had not invited nor informed the reporter of the meeting; besides, the reporter did not need any invitation or notice from Victor, or anybody else for that matter. After all, it was a “public” meeting, wasn’t it? After several increasingly angry unsuccessful attempts to get Victor to “confess” to his inviting the reporter, Mills’ anger was redirected to the reporter, telling the reporter to admit that Victor had informed the reporter. Taking more than enough abuse, the reporter finally informed Mills that the information about the meeting came from Portsmouth Herald editors. Now, why was this so important? Why was Mills so angry that the public knew about the existence of a “public” meeting? Why had this valuable time been squandered, again?
What was it, and what is it, that the members of the BOS and the ATA are trying to hide from the Public?
A NEW PROJECT MANAGER
It is speculated by some that the “firing” was intended to occur at the March 15th meeting but was aborted because of the presence of the press at that “public” meeting and the glare of possible public scrutiny. The firing of Victor finally occurred on Friday, March 31, 2006, a BOS meeting to which Victor was invited by Gould. At this meeting, conducted by Town Legal Counsel Michael Donovan, Mayor of the City of Concord, Victor reported on the status of the project, gave a detailed analysis of the history, the process, the building, the design documents, the agreements, the previously-agreed organizational protocol, the participants, the alarming damaging consequences of CO#4 signed by Gould on February 16, the secret back-channel contacts and deals, the fraud, the lies, the deceit, the malfeasance, the corruption or worse.
Following Victor’s remarks, the BOS, with little discussion, voted to remove Victor from his positions of Project Manager, Owner’s Representative, and Member of the Rye Public Safety Building Committee. The BOS, continuing with its tightly-rehearsed script, then quickly moved to replace Victor with Alan Gould, the Police Chief, the Acting Town Administrator, the Emergency Management Director, and now the Project Manager and Owner’s Representative for the RPSB. [Just how many hats does he want?].
It is noteworthy that Victor Azzi, a dedicated professional engineer with over thirty years of successful experience in award-winning architecture, engineering, planning, and institutional building construction in some $200,000,000 worth of projects, has now been replaced by a policeman whose qualifications for this position are, by his own admission, that he “built a house once.”
It is further noteworthy that the RPSB, now in the 19th month of construction, is still far from complete, is still of largely inferior quality, still has an unknown cost, and still sits there with the Fire Department packed and planning to move in. Further, a “Punch List” has still not been prepared by the Owner, nor apparently has one been prepared by the Architect, and reconciled, and implemented by the Contractor to effect all of the changes dictated by the list. [A “punch list” is prepared by the Owner, sometimes in conjunction with a list prepared by the Architect, detailing all of the items related to the building that need to be fixed, completed, repaired, changed, or otherwise made right in order for the completed building to conform rigorously to the contract requirements as delineated by the Construction Documents (drawings and specifications)]. It is a given, among those who are knowledgeable and experienced in this business, that an Owner should never, never, occupy a building, with few exceptions, unless and until all of the “punch list” items have been implemented to the Owner’s satisfaction. [Victor’s running “punch list” for the RPSB is now several hundred items long].
There are several members of the BOS and the RPSBC who say, perhaps in their naiveté or otherwise, that Rye should have HKT develop the “Owner’s Punch List.” These are the same people, including ATA Gould, who argued recently that we should have HKT take on the responsibilities of the “Clerk-of-the-Works.” I should remind us all of the three-legged organization, wherein each of the three entities, albeit working together, are looking to serve and protect their own organization’s interests. This is even more crucially important when there are substantial questions about the quality of the Construction Documents, the quality of the Construction and Change Orders, the Liquidated Damages, and who owes what to whom. Having the Architect be responsible for the Owner’s punch list, or to be the Owner’s Clerk-of-the-Works, is akin to having the proverbial “fox in the hen-house."
Meanwhile, because the RPSB project is running so late, the Clerk-of-the-Works, a full-time construction professional working for the Town of Rye (and who had been reporting to Victor Azzi), has had to leave in order to work his next project in Lowell, Massachusetts. Clerks, in this business, go from job to job, usually lining up their next job based on the scheduled duration and completion date of their current job. Because of his dedication to his profession and to the RPSB, he continues to visit the RPSB once or twice per week, devoting between five and ten hours per week to the RPSB. The previous combination of two construction professionals, the Clerk and Azzi, together spending some 75 hours per week in overseeing the project in detail, has been replaced by the current situation where there is only a part-time Clerk spending about 7 hours per week on the job. Under the control of the police chief, the RPSB project is getting essentially no professional oversight -- and this at a crucial time when the General Contractor is trying to represent the work as complete, no punch list has been prepared nor implemented, and the Town Leaders appear hell-bent to get the Fire Department, and perhaps even the Police Department, to move in prematurely so that they can declare victory, cut the ribbon, raise the flag, and take their bows.
However, many problems, some obvious, some hidden, continue to plague the RPSB. To mention just a few of a very long list: The roof still leaks in several places. The pavers are not what were specified by the CD’s. The Apparatus Bay floor has not been properly prepared, sealed, nor hardened. The Apparatus Bay floor has been damaged, soiled, and stained. The Apparatus Bay floor does not drain properly, and puddles. The heating system/boiler is not what was chosen, the classic result of an apparent “bait-and-switch” maneuver. Many interior and exterior walls are not straight, not flat, not plane, and are even bulging. Many interior finishes are not what was specified. Wood exterior materials are below grade and vulnerable to rot. Materials of the wrong properties and dimensions were used in several areas. Many design details have been compromised and/or not implemented. Some important warranties do not exist or have been compromised.
Now comes the word that the Town of Rye has retained, in its naiveté, or worse, a “Construction Claims Consultant (CCC),” to look after the Town’s interests in this growing debacle. This would be the right thing to do if the Town had a capable knowledgeable Project Manager in place, and the Town independently sought and selected an objective independent CCC who would work independently to protect the Town’s interests. However, if the CCC comes from a recommendation of Seth Goldfine of HKT Architects (a recommendation we received from HKT some three months ago), of a CCC who has had a previous relationship with HKT, then all kinds of flags and questions come to the fore, including those recited above regarding the Clerk-of-the-Works and the Owner’s Punch List. Whose interests will this CCC person serve? To whom is he/she beholden? Is this just another potential “fox in the hen-house?"
Finally, and in summary, I do plead “guilty” for having “high standards” and “high expectations,” and I do plead “guilty” to not being a “team player” of the kind that would be part of the team made up of those who have worked hard to undermine Victor and his role as he tried to do the Town’s work with those high standards and expectations. As Victor worked to create the high-quality RPSB, on-time and within budget, which we promised to the Town, the Taxpayers and the Historic District Commission, for the Rye Town Center, what were the rest of these “team players” up to, and to whose benefit and why? Why the shenanigans, the secret deals, the cozy relationships, the cover-up, the coddling of those who were/are intent on causing harm to the project and to Rye?
Many Rye residents feel the threat of possible legal action and escalating costs to the Town and what those costs will do to the tax rate: substantial escalating demands from the General Contractor with claims of over $500,000; contractor demands to require the town to pay exorbitant costs for uncontrolled change orders; extra charges by the Architect for additional services; costs of the ever-eager Legal Counsel retained by all parties, costs of the Construction Claims Consultant of questionable motivations; et al. I expect that the BOS, the ATA, and their Legal Counsel are overly eager to settle this matter out of court, not on the merits of the matter and not in a way that will protect the people’s interests, but in order to keep the voters and taxpayers in Rye from knowing just how badly the “leaders” in this Town have botched this RPSB project and their responsibilities. This will be an expensive settlement whose only rationale will be to save face and avoid embarrassment as they conclude their cover-up.
As we enter the 19th month of construction on what was contracted to be a 12-month project, and for which Horne Construction said would take only eight months, the people of Rye deserve some honest answers.
While I put my professional credibility and integrity on the line, giving the project a sense of respectability, what were the others doing? I contributed, without charge to the Town, more than 4060 costly professional hours to this RPSB. What can all these others say, and how did they use their time as they conspired, knowingly or naively, to squander the Town’s resources and the opportunity to create a really great building of which we could all be proud? Obviously, some individuals were striving to create some political advantage for themselves, or, at least in one case, to pursue a lust for higher administrative office. Again the ultimate test for all these actions is:
What’s in it for the Town of Rye?
(Victor Azzi, PhD, PE, is a consulting engineer and a resident of Rye)
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