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Mehlville window, door work resumes after judge's ruling

Mehlville window, door work resumes after judge's ruling


Executive Editor

Window and door replacement work at four Mehlville School District buildings resumed this week — after being halted since December.

A federal judge last week cleared the way for the work to resume, untangling part of a snarl of lawsuits and counter suits that were filed after the work at Mehlville Senior High, Oakville Senior High, Traut-wein Elementary and Wohlwend Elemen-tary was halted.

The work at the four schools is part of a $3.7 million contract that was awarded to PrairieLand Construction Inc. in Novem-ber 2001 by the Board of Education. The contract also calls for future work to be performed at two middle schools — Oak-ville and Buerkle — and five elementary schools — Blades, Beasley, Bierbaum, Forder and Point — as part of the $72.4 million Proposition P districtwide building improvement program approved by voters in November 2000.

Suits and counter suits that ensued after work was halted included a bonding company suing the school district, the school district suing the bonding company, the school district suing the contractor, and the contractor suing the bonding company.

On Friday in U.S. District Court in St. Louis, Judge Catherine D. Perry ruled on three motions involving the Mehlville School District and the bonding company, the National Surety Corp.

Two of the motions — one for summary judgment and one to dismiss — were filed by the school district. National Surety had filed the third motion, which sought summary judgment.

"Basically what Mehlville was seeking was that the judge require National Surety perform its obligations under the bond and that's what she ruled,'' Randy Charles, assistant superintendent for finance and Mehl-ville's chief financial officer, told the Call Friday. "She ruled in favor of Mehlville on all three counts. She dismissed the motion from National Surety. She treated the motion to dismiss from Mehlville as a variation of the motion for summary judgment and then, of course, combined that with the motion for summary judgment, granted that motion and then entered an order for National Surety to perform its obligations and begin seeking a contractor acceptable to Mehlville to complete the work.''

In a memo to Central Office administrators and the school board, Charles wrote, "This was a good day in court for Mehl-ville. There are still issues to be addressed such as assessment of damages, payment of costs and fees and issues related to PrairieLand — this judgment only settled a disagreement between National Surety and Mehlville School District.

"However, this was the decision we really needed. This will force National Surety to secure a new contractor and to begin work once again on upcoming phases of window replacement,'' Charles wrote.

The McCarthy Construction Co. is serving as construction manager for Propo-sition P, and Jim Ulkus, McCarthy senior project manager, notified PrairieLand Construction in a Dec. 27 letter that the company had defaulted on its contract with Mehlville because PrairieLand had failed to complete the window and door replacement work at the four schools on time.

Under the terms of the contract between PrairieLand and the Mehlville School District, liquidated damages total $1,000 per day for each day of delay.

Ulkus then wrote a Dec. 30 letter to the the Fireman's Fund Insurance Co., which is affiliated with the National Surety Corp., the company from which PrairieLand purchased performance and payment bonds for the Mehlville project. The letter de-manded that National Surety "take immediate action to cause the contract work to be performed to completion.''

In January, National Surety filed suit against Mehlville School District in federal court, asking the court to "... order and declare that without a default termination of PrairieLand, National Surety has no obligation to cure or remedy the default of its principal PrairieLand under its bonded contract to Mehlville.''

The suit contended that the district refused to terminate its contract with PrairieLand "because doing so would cut off Mehlville's entitlement to liquidated damages ...''

The Mehlville School District subsequently filed a counter suit contending that PrairieLand's default triggered National Surety's obligations under the performance bond and asked the court to "enter judgment in its favor and against National Surety Corp. in an amount equal to Mehlville's liquidated damages at the rate of $1,000 per campus, per day of delay, as well as Mehlville's actual damages, attorneys' fees and design professional costs incurred by Mehlville as a result of the default ...''

In the meantime, Mehlville officials were aware that besides the halt in work at the four schools, the legal battle could jeopardize work planned this summer.

"... We were hearing from subcontractors, both suppliers and the manufacturer of the windows, which is EFCO (Corp.), and the installer that: 'Hey, you're up against a deadline here. If you don't pay us what's owed us for the first phase, we're not going to build your windows for the second phase,'' Charles said, noting that work on the second phase is scheduled to be done this summer.

"So we were at the point where we had to do something. The other part of it was we know that spring break obviously is coming up. That's an ideal opportunity for an installer to come in and get a lot of work done ... If we missed that opportunity, we would have been in the summer when we really should be working on phase two,'' Charles said.

"Our contract language allows us to bring in another contractor to do the work if the original contractor is declared to be in default and that's what we did. We contracted directly with Skyview, who was the installer who had been working under PrairieLand all along. We contracted with them to finish the phase one work only ... We also paid EFCO directly so that they would go ahead and produce the windows and not delay the projects any further.''

Of Friday's ruling, Charles said, "It's really good news. There are obviously still some issues out there regarding payments and costs that were incurred because of all this, but this was really the center of the whole issue and now that we're past this, above all, we can put windows in the buildings — no more plywood, no more gaps in the windows. Quite obviously, the kids and the employees and the parents have been unbelievably patient with all this. You can't overemphasize how important that's been to me because this has been so frustrating to deal with. If our community hadn't been so patient, it would have really been tough to handle. This was a good day in court for Mehlville.''

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