School Architect Awarded $2.1 Million
By: Christopher Kazarian
As John S. Dale, the first assistant clerk magistrate for Barnstable Superior Court, read the verdict in the civil case between ARCADD of West Newton and the Town of Falmouth on Friday, Dr. Hisham N. Ashkouri began to weep.
The tears, in part, were tears of joy for Dr. Ashkouri, who was victorious in his lawsuit against the town as a 14-person jury found that Falmouth had breached its contract with the former architect for the $86 million Falmouth High School renovation.
ARCADD was awarded a total of $2.1 million, which includes roughly $1.5 million in damages with the remainder of money coming in interest, at a rate of 12 percent per year, since the suit was filed a little over three years ago.
The town had hired ARCADD in September 2001, but less than five years later, in June 2006, the firm was removed from the project and replaced with DiNisco Design Partnership LLC of Boston.
By then the project was a little more than a year underway and delays were slowly beginning to mount up. Since then the renovation has gone $18.8 million over budget and been plagued with setbacks as it had originally been scheduled for completion by December 2007. Estimates are that the project will be completed in full by January 2010.
In contrast to Dr. Ashkouri’s emotions were those of town officials that could be best summed up in one word—disappointment.
The sole representative of the town in court on Friday, Falmouth Town Counsel Frank K. Duffy Jr., had few words after the jury had reached a decision following a day of deliberations. “I respect the jury’s verdict,” he said, adding that he was unsure whether the town will appeal the decision.
Falmouth now has 30 days to determine what course of action it will take. Yesterday several town officials met to begin that process. Included in the discussions were Mr. Duffy, Falmouth Town Manager Robert L. Whritenour Jr., Chairman of the Falmouth Board of Selectmen Mary (Pat) Flynn, Falmouth High School Building Committee Chairman Donald D. Johnson, and building committee member Michael A. Duffany.
Last night at the selectmen’s meeting, Ms. Flynn updated residents on the status of those deliberations, which is still uncertain.
Unlike previous reports, she stressed that if Falmouth elects not to appeal, the $2.1 million will not come out of the town’s operating budget and will not lead to layoffs or cuts in services.
Instead the money would come from the project budget for the Falmouth High School renovation. The high school building committee will be meeting twice this week to evaluate this budget and determine to what extent it can accommodate these additional costs.
In a phone interview yesterday afternoon, Superintendent of Falmouth Public Schools Marc P. Dupuis said that roughly $2.9 million remains in the renovation’s contingency funds, which would be one likely source to pay off the court settlement.
Another $1.2 million remains from the $3.9 million budgeted for legal costs, although this will be depleted further as the town has yet to be billed in full for expenses incurred this month by Hinckley, Allen & Snyder, the Boston-based firm that represented the town during the three-week court case.
In assessing the results of the case, Mr. Dupuis admitted, “like everyone else I think this was a disappointing verdict, but that is the verdict and we will have to adjust and move forward.”
John K. Scanlan, a member of the building committee and owner of the commercial construction firm J.K. Scanlan Company, said the verdict reflects an opinion from the jury that “the town had not handled certain issues as well as it should have handled them, namely the termination of ARCADD.”
With his experience in the construction industry, Mr. Scanlan admitted that it is rare for an architect to be removed from a project. “I’ve worked on a fair amount of public projects and don’t recall anywhere that happened,” he said. “There are some strong ones [architects] and some not-so-strong ones, but usually you try to keep them on to keep the project patched together.”
That is not to say it could not happen, he said, as there are termination clauses specified in contracts that do allow for architects to be dismissed, but “they have to be followed to the letter of the clause.”
As to Friday’s announcement, Mr. Scanlan said he was not surprised by it, but he was taken aback by the amount awarded to ARCADD.
Before the trial began, he said, there was some discussion from both parties that they might settle, but it never happened.
Even as the jury began its deliberations on Thursday afternoon, Judge Gary A. Nickerson suggested that it was not too late for both sides to come to an agreement. “The agreement you make may be better than the verdict you get,” he said.
That never happened, however, and the town left matters up to the jury.
At least one bright spot to this, Mr. Whritenour said, is the town has some sense of closure, noting that “this lawsuit was sort of hanging over the project… This puts it behind us. The high school will be finished. There is some positive in having this resolved.”
Selectman Brent V.W. Putnam, who was successful last November in convincing Town Meeting members to authorize an investigation into the project once it is complete, agreed.
While he was neither happy nor surprised about the verdict, he was glad that the trial is over and residents have access to information contained in court records, such as the building committee’s executive session minutes, that were previously unobtainable. “I think that is a big positive,” he said. “We now will have a better understanding as to what happened.”
He also conceded that at least one argument made by ARCADD’s attorney, Kenneth B. Walton of Donovan Hatem LLP in Boston, was accurate—the town should not have painted the architect as the sole source of all problems. “I don’t think the lawyer was far off the mark from that,” he said, noting that the town had problems with the general contractor TLT Construction Corporation.
He added that it was not until the past year, when Falmouth brought on both Mr. Scanlan and Patrick J. Callahan, residents with experience in the commercial construction industry, to the building committee that the “project began to come around and things got back on track.”
As to what can be learned from the entire high school project, Ms. Flynn was unsure, but it would be nice for the building committee to one day assess those problems and report their findings to the town.
“I think they need to take a look at what happened and how it got to that stage,” she said. “I think we have to ask them to look at it. Knowing what you know, what could have been done differently and what suggestions do you have on how to avoid something like this in the future?”
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