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Time disparity seen in jail pacts

Jail critics filled the room at the Legislature meeting Wednesday night as county lawmakers deliberated for an hour about how to proceed, if at all, with the jail project.
May 29, 2019 02:36 pm

CATSKILL — Greene County officials Tuesday tried to explain the apparent disparity in the timeline for the signing of jail construction contracts, with Administrator Shaun Groden calling the May 23 signing date “irrelevant.”

Jail critics are questioning the ethics of county leaders after they say they were led to believe the jail project had been paused and contracts were consequently signed.

The Greene County Legislature passed a motion May 15 in a 10-4 vote to seek state assistance regarding the legality of a shared jail while the county waited for final permits from the state Department of Environmental Conservation.

On May 23, Greene County Attorney Edward Kaplan signed contracts with David J. Hummel Enterprises of Gansevoort, Bellamy Construction Co. of Scotia, Ashley Mechanical Inc. of Kingston and John W. Danforth Company of Halfmoon.

Kaplan’s signature can’t be construed as taking further action, Groden said, because the process started months ago.

Greene County Legislature Chairman Patrick Linger, R-New Baltimore, signed the contracts May 15. The contractors signed them April 18.

“When Pat signed them, the contractor had signed them weeks ago,” Groden said.

The other three contracts to James H. Maloy of Loudonville, Jersen Construction Group of Waterford and Nfrastructure Technologies of Clifton Park have also been signed, Groden said.

“The day [Kaplan] signed them is irrelevant,” Groden said. “The key is when the board approved the contracts.”

The legislature passed a resolution to award the contracts in March.

Groden maintains that this action, not signing the contracts, makes the county liable for liquidation damages.

The contracts do not include clauses for liquidation damages.

“There was no intention to liquidate,” Groden said. He added that the contracts are standard American Institute of Architects contracts.

This means that if the contract is terminated for reasons other than “for cause,” the parties will abide by Article 14.4.3, which reads, “In case of such termination for the Owner’s convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed.”

Despite signing the contracts, the language of the documents suggests that they are not binding at the present time.

“This agreement and any amendments to this agreement shall not become effective until concurred with in writing by the agency state director or the state director’s delegate,” according to the contracts. “Such concurrence shall in no way commit the agency to render financial assistance to the owner and is made without liability to the agency for any payment thereunder. In the event such assistance is provided, the agency’s concurrence merely signifies that the provisions of this agreement are consistent with agency requirements.”

The final hurdle for the contracts will be a review by the U.S. Department of Agriculture, where the county is borrowing $39 million at 3.5% interest for 30 years.

Additionally, a Notice to Proceed must be issued for construction to start, according to Article 3 of the contract.

Legislator Michael Bulich, R-Catskill, who asked the Legislature to pump the brakes on the $66 million project in the wake of recent criminal justice reforms, said he was not surprised by Kaplan’s actions.

“On May 15 I made a motion to ask for confirmation from the state,” Bulich said. “I couldn’t call it a pause because that would mean rescinding and canceling the project.”

Signing the contracts in anticipation of the project going forward was a likely response, Bulich said.

“It might look odd when we were trying to look for clarification from the state,” Bulich said.

In terms of permits, the county has received verbal approval from DEC, Deputy County Administrator Warren Hart said.

“We were told we would receive the permit yesterday or today but we have not received it yet,” Hart said.

No letters have been received from the state, Groden said.

“The board could change their mind tonight [Wednesday], but it won’t be because of a letter from the governor,” Groden said.

The Legislature will hold a special meeting Wednesday at 6 p.m. to discuss the matter.

“The day [Kaplan] signed them is irrelevant,” Groden said. “The key is when the board approved the contracts.”

Groden is either intentionally lying, or is extremely ignorant and incompetent. A contract is without legal force until it is fully executed and liquidated damages are never triggered by resolutions. They are triggered by failures to clauses causing provable injury by a party to the agreement recognized by settlement or force of judicial opinion or that of an arbitrator.
As a citizen, I hate being lied to, directly, or through my legislative representative being lied to. Michael Bulich is commendably restrained in his response to the behavior exhibited by the Chairman, and his employee, Mr. Groden, who none of us elected.
"The legislature passed a resolution to award the contracts in March.

Groden maintains that this action, not signing the contracts, makes the county liable for liquidation damages." Groden can "maintain" whatever he likes, but the facts have caused him and his allies embarrassment.