Brattleboro Board Approves Settlement with Kingsbury

August 5, 2016 GMT

BRATTLEBORO >> The Brattleboro Select Board reached an agreement with a contractor over a dispute related to the town’s Black Mountain Road sewer line.

On Thursday evening, the board announced it would be paying Kingsbury Companies $725,000 to settle a lawsuit the company filed against the town in Windham Superior Court about six weeks ago. Kingsbury was asking the court to award it nearly $1.5 million in payment for the work required to install a gravity-fed sewer line from Black Mountain Road to the sewer line on Putney Road.

The work was the last phase in the upgrading of the towns waste water system, which included a new pump house on Spring Street and a more than $28 million upgrade to the town’s waste water treatment plant. The total cost for all three phases was $32 million.

The agreement with Kingsbury was reached on Monday, Aug. 1, agreed to during an executive session prior to Thursday’s board meeting, and approved during the meeting itself.

When the town first began the project about six years ago, the plan was to rebuild a pump station on Black Mountain Road, but engineers suggested since the Putney Road sewer line was downhill, a gravity fed line would work just as well.

“The goal was to save money,” said Select Board Chairman David Gartenstein, especially considering a pumphouse has to be rebuilt every 20 years or so.

As part of the pre-construction phase, soil bores were taken to determine the nature of the ground under the mobile home park on Black Mountain, Interstate 91 and down to the VFW parking lot, where the connection was to be made.

Because portions of the pipe were going to be 40 feet underground, an open trench was determined to be unfeasible. A $900,000 contract was reached with Kingsbury, which included a “trenchless” operation of boring a small tunnel under the highway and installing a sleeve and pipe in that tunnel. But during the boring, Kingsbury ran into what is called “a latent condition,” near Locust Ridge Cemetery.

“It was impossible to determine what the obstruction was,” said Gartenstein. Possibilities were some kind of rock formation, a different kind of soil or buried debris from the construction of Interstate 91.

At the same time, the bore began to sag in several locations and a decision was made to install a plastic outer sleeve, rather than a metal one, which Gartenstein described as “Not the wrong decision at the time based on the information we had at the time.”

The difficulties between the obstruction and the sags in the bore required “substantial additional work,” he said.

Kingsbury ended up pushing a 16-inch pipe through the bore instead of the 24-inch pipe originally spec’d out, which the town rejected. The town demanded a bigger pipe and got it, but it was metal this time. This increased the cost by $605,000 over and above the original $900,000 contract.

“This led to an extended period of dispute between Kingsbury and the town that lasted well into 2016,” said Gartenstein, adding “a serious underling dispute” as to who was responsible for what led to the long-term mediation process.

Working with a legal expert, the town reached a conclusion if the lawsuit made it into court, the town would likely be found responsible for the $1.5 million Kingsbury was asking for, said Gartenstein.

The agreement reached on Monday resolves all claims filed against the town by Kingsbury. The town also agreed to pay $15,000 to repave the VFW parking lot.

But, Gartenstein noted, some of the additional costs were paid with money saved at different phases in the whole waste water upgrade, as well as $215,000 already allocated for the project and nearly $200,000 from the state’s revolving loan fund.

“And then we have about a $6.5 million surplus in the utility fund,” he said, from which the town will take the remainder of what is owed to Kingsbury.

As a result of the whole process, the town began a comprehensive review of town operations, part of which overhauls the way the town oversees such projects, including making sure Brattleboro has the “level of expertise we need inhouse to make sure that large jobs are being tracked and monitored properly,” said Gartenstein. “The last few years we have been cutting back to save money and our capacity to monitor big projects has dropped off.”

The experience resulted in appointing “an owner’s representative” for the town’s police and fire facility project, “To make sure our interests are being tended to,” he said.

In addition, the town will make sure that a latent conditions clause is written into any contracts going forward to shift responsibility to contractors.

Unfortunately, noted Gartenstein, one aspect of the project on Black Mountain has yet to be fully resolved.

In September 2015, a rain storm overwhelmed the town’s storm water system and resulted in damage to a number of business at Black Mountain Square on Putney Road.

“Questions have been asked of the town whether the town will take steps to make the landowner and her tenants whole,” said Gartenstein. “The responsibility for the damages at that site do not rest with the town. The rain was forecasdt, we communicated with Kingsbury about that and we urged them to close the sewer pipe under construction so that the storm waters would not flow through that open pipe and into the town’s storm and sewer system.”

Gartenstein said the businesses and the building owner will need to work with Kingsbury to resolve the lasting costs of the damage. The settlement agreement prevents Kingsbury from attempting to reclaim any costs from the town related to the flooding, he said.

“It’s a bitter pill to swallow, but I have spent 30 to 40 hours evaluating, understanding and dealing with this. Any claims that might be asserted are not covered by this agreement.”

In addition, Kingsbury’s bore under the highway resulted in a sag in the roadway. According to the agreement, it’s Kingsbury’s responsibility, not the town’s, to pay to fix the sag.

The settlement was approved by the board, 4 to 1, with board member John Allen voting no.

In other business

• Board member Dick DeGray asked that at a future meeting the board consider installing additional safety lighting at crosswalks in Brattleboro that have been the site of a number of accidents that have resulted in injuries, some of them fatal, to pedestrians after being struck by vehicles.

“We had another accident on Western Avenue last week,” he said. “At our last meeting we approved a couple of grants to apply for safety lighting with a cost of around $7,000. It’s imperative that we move forward with purchasing safety lighting for several of these high-volumn traffic crossing areas and not wait to apply for grants.”

DeGray noted that at the 2013 Representative Town Meeting, reps discussed spending $50,000 on traffic safety, but the board declined the offer.

“I believe those lights are a big advantage to pedestrians and certainly to drivers,” he said. “They do make a difference. By not doing anything, we jeopardize a lot of people who use their feet as a mode of transportation. I don’t believe we are doing enough.”

• The Select Board set the Fiscal Year 2017 homestead tax rate at $2.8126 per $100 of value. That’s 2.5 cents lower than last year’s tax rate and is due to a one-time change in how the state counts pre-schoolers in Brattleboro.

“The reduction is because this year the state is providing support for preschoolers,” said board member David Schoales, who is also a member of the Brattleboro Town School Board. “Brattleboro schools have been providing support to qualified pre schools but we have never been able to count those students until now. That decreases the per student cost, but this reduction won’t happen again.”

The non-residential tax rate was set at $2.6768 per $100 of value. The downtown improvement district tax rate is an additional $0.1357 and the Tri-Park special assessment rate is an additional $6.6535.

The tax rate is expected to raise $13,884,618 for the town. The town’s grand list was assessed at $11,595,534.

• Over the last year-and-a-half, Town Manager Peter Elwell has been working with department heads to develop the comprehensive review of town operations.

“We began this almost immediately after I arrived and the real hard work in the early months was being done by the management team while getting me familiar with town operations,” said Elwell.

The CRTO looks at how the municipality organizes and delivers services to the community, he said.

“It’s a significant undertaking, and doing that hard look in the mirror was a chance to build upon the prior efforts to reduct the cost of government.”

However, noted Elwell, those prior efforts had an unfortunate consequence of reducing services to the community.

“The emphasis has been upon improving services rather than saving money,” he said about the CRTO.

He noted that previous boards and current and former town staffers had done a really good job of identifying savings. But “the prolonged period of emphasizing cost effectiveness,” which admittedly led to efficiencies and improvements, in some cases “went too far and harmed our ability to serve the community. Being really frugal has left ourselves at a disadvantage.”

The CRTO identified goals that the town was in the process of attempting to achieve, as well as short-term and long-term goals, he said.

“I want to be careful that we are aspirational in the document,” said Elwell, and it’s not a schedule that is specific in its implementation. “It leaves open the ability to re-evaluate our priorities.”

The members of the Select Board will review the CRTO and are also asking community members to take a look at it and submit their suggestions. The document will be available online on Aug. 8 at brattleboro.org under “News” along with a link to click and send comments. Comments can also be sent to townmanager@brattleboro.org by Friday, Sept. 9. Staff will review all public comments and submit a revised draft for Select Board consideration at the meeting on Sept. 20 or Oct. 4.

“This is great piece of work that will serve as a model and a series of guidelines for moving forward and improving town operations,” said Gartenstein.

Bob Audette can be contacted at 802-254-2311, ext. 160.