30 listed Capolino's work at Winbrook as "100%" complete. The letter portion, however, stated that while the work was "substantially completed" there remained a dispute over the heat timers and vacuum pumps and that all payments to Capolino had ceased. (Exh. 51.) His Construction Update Status Chart stated that Schuyler was 92% complete, but the letter portion stated the day care center was still pending due to ERA's fault and the still pending approval of the window shop drawings. (Id.)
On December 9, Capolino reiterated that he had terminated both contracts as per HUD P 188.8.131.52. (Exh. 65.) On December 15th, Tascione sent two letters to Capolino (one for each contract), informing him that although it had requested specific performance on November 23rd, Capolino had not performed and that the Authority was therefore terminating the contracts upon the expiration of seven days notice. (Exhs. A78 and A79.) Tascione also sent letters to General, informing them of the default and pending termination, and requesting that General contact them to discuss the options under their bond. (Id.)
On December 16, Galli sent HUD a letter requesting an extension of time under the Winbrook CIAP, apparently from March of 1993 to September 1993, because of the delays it has incurred in reaching an amicable settlement with the Capolino firm as a result of the "timely termination" of Capolino's contract. (Exh. 114.) Although no litigation had yet been filed, on March 1, Galli wrote a second letter to HUD stating that the extension was necessary due to the "existing and time consuming litigation" with the Capolino firm. He concluded that the matter was still under investigation and will probably create additional delays for the Authority. (Exh. 115.)
At trial, Arnold testified that the Capolino firm or its subcontractors appeared and did miscellaneous work on both projects in November, December, January and into February. (Arnold, 302.)
Capolino argues that Galli's Project Construction Status charts show that he was completing the jobs. (For example, Galli's November 30th report includes a chart that lists Winbrook as 100% complete. However, the chart is in conflict with the text of the report that notes outstanding issues on the "validity of completeness" of the heat timers and vacuum pumps. (Exh. 51).) We do not consider Galli's Project Construction Status charts to be a reliable indication of the work done at the projects. Even though Galli's job may have been to offer a substantive evaluation of the status of completion of the projects, Galli testified that he simply relied upon the percentage completion that Capolino submitted in his applications! (See n.5, supra.) Thus, the best evidence of what work was being done are the letters detailed above.
On January 7, 1993, all three parties met to discuss settlement of the claims. Capolino was represented by counsel and did not personally attend, apparently at Tascione's request. A tentative settlement proposal was discussed whereby both parties would rescind their notices of default, General would complete the contracts and be paid the remainder, and would pay any monies owed to Capolino. (Exh. 71 (Brackenbury Meeting Notes (General's representative)).) A final settlement was never reached because, although the parties exchanged numerous drafts, they could not agree on issues such as whether Capolino would be paid for the work he claims he completed. (See Exhs. A86-A92, A118-A119.)
On January 25, National Heating filed a Notice of Lien against the Housing Authority for $ 1,639 for its "repair of vacuum condensation pumps, installation of cold water make-up lines, overhaul centrifugal pump assemblies" pursuant to its contract with Capolino on Winbrook. (Exh. A44.) On February 26, Naber Thomas filed a Notice of Lien against the Authority for $ 44,356 for furnishing and installing "complete fire alarm system, intercom system and heat timers." (Exh. A45.)
Between April 23rd and March 2nd, Tascione sent two letters to White Plains Officials and one to HUD stating that Capolino had been defaulted due to non-performance. (Exhs. 116-118.) On March 2nd, Tascione sent a letter regarding both Winbrook and Schuyler to Arthur Maurice, Director of the Office of Public Housing at HUD advising him that the Authority had declared Capolino in default and asking that "HUD consider appropriate sanctions against this contractor as a result of his non-performance and non-compliance with the terms and conditions of his contract. These delays have resulted in significant inconvenience and delays to the tenants residing in White Plains as well as management, ultimately resulting in increased costs." (Exh. 130.) Capolino was never sanctioned. (Tasc., 785.)
Under the assumption that Tascione's letters of default and termination to Capolino were valid, General and the Authority signed an agreement for completion of the remaining work on the Winbrook and Schuyler contracts ("the Completion Agreement") after the settlement negotiations broke down in early March. (Exh. P1.) The Completion Agreement provided that the Authority would pay General the remaining contract balances plus any additional amounts resulting from change orders. The amounts remaining under the contracts were $ 33,857 for Winbrook and $ 66,127.15 for Schuyler. Ackerman Construction Consultants, Inc. ("ACCI"), whose principal was Norman Reu, was approved as a qualified contractor for the completion of the work. Attached to the Completion Agreement were two letters written by Arnold on February 9, 1993 listing the work either to be corrected or completed by ACCI on each project. (Id.)
General spent the reasonable sum of $ 55,739 to complete the Winbrook Contract. These costs were as follows:
1) $ 1,750 to Cali Brothers to patch holes in the stairwell floors at Winbrook. (These holes had been improperly cut for conduit relating to the fire alarm system later installed in the elevator shaft.) (Stip. # # 62-66.)
2) $ 250 to Cali Brothers to perform miscellaneous painting. (Stip. # # 67-69.)
3) $ 44,356 to Naber Thomas to complete its electrical work under its subcontract with Capolino.
(Stip. # # 84-87.)
4) $ 1,639 to National Heating to complete its mechanical work under its subcontract with Capolino.
5) $ 7,744 to ACCI to perform work on the vacuum pumps to replace the check, gate and relief valves. (Pl. Exh. 26.)
This work, though perhaps unnecessary,
was required by General Requirements Section 15500 P 1.02(C) (3) "Replace valves, etc. at each pump." As discussed above, Capolino had written misleading notations on the specifications it originally provided National Heating, thus its subcontract bid did not include replacement of these valves as the contract required.
In addition, General spent $ 24,470 to do work demanded by the Authority that was outside the scope of the Winbrook Contract, as follows:
1) $ 11,591 to ACCI to repair damage to the fire alarm system at Winbrook under protest that it was not under the contract.
(Stip. # # 88-93; Exh. 36.) This was extra work, since the HUD General Conditions P 34(C)(4) clearly provided that the Housing Authority assumed all risk of loss due to vandalism.
Arnold testified that Capolino had previously done this work and there was no evidence that the vandalism was traceable to Capolino. (Pl. Summary of Salient Deposition Testimony p. 3, Arnold Dep., pp. 43-46.)
2) $ 1,331 to ACCI to furnish and install additional transformers and relays to accommodate upgraded electric door locks installed by the Authority after Capolino was terminated.
This work was not contemplated by the Winbrook Contract. (Cap., 1176.)
3) $ 11,548 to ACCI to refurbish the steam control valves and replace a linkage on a boiler valve under protest. (Pl. Exh. 35.)
As discussed above, this work was not contemplated by the contract, which required the heat timers to tie into existing steam control valves.
The Authority paid General the $ 33,758 remaining on the Winbrook Contract upon General's satisfactory completion of the project. (See Stip # 31; Exh. A37.)
General spent the reasonable sum of $ 59,416 to complete the Schuyler Contract. These costs were as follows:
1) $ 22,334 for the delivery and installation of the elevator windows. This included the $ 13,100 ACCI paid to ROMCO upon delivery of the windows (which had been ordered by Capolino) and $ 9,234 of labor to Terance Maughan for their installation. (Stip. # # 32-41; Cap. 381, 454-55.)
2) $ 2,615 to Naber Thomas for electrical work he had done at Schuyler under his contract with Capolino. Naber Thomas performed this work, but was never paid by Capolino. (Stip. # # 76-81.)
3) $ 22,300 for the purchase and installation of 26 double hung EFCO windows. This included:
a) $ 9,975 to Terance Maughan for the EFCO windows (Pl. Exh. 29; Stip. # # 41-46);
b) $ 2,850 to Terance Maughan for their installation (Id.);