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WILKES-BARRE — The contractor removed from the Solomon Creek wall project last summer said he hasn’t filed suit against the city, but is closer to doing so after Mayor Tony George’s comments.
George said Friday there’s no reason to pay Tony Popple, vice president of AR Popple Inc. of Wilkes-Barre, the low bidder the city hired in June at a cost of $1,548,448 to rebuild a portion of the channel wall.
“He didn’t finish what he started,” George said. “He’s not going to get paid at all.”
Popple reacted with caution, saying he and his attorney have been dealing with the city for months in an attempt to reach a resolution.
“We’ve been trying to do it amicably,” Popple said.
However, that could change after learning of the mayor’s position.
The city is exposing itself “to more than what could have been worked out amicably,” said Popple.
Wilkes-Barre is already paying more for the first phase of the construction project. In August, it hired Don E. Bower Inc. of Berwick. The contractor submitted the second lowest bid of $2,017,954 and has made considerable headway installing a new wall, made of prefabricated concrete sections, along Brook Street.
The wall has been a priority for George who, in 2015, campaigned on the infrastructure project to provide flood protection in South Wilkes-Barre. It took on a greater sense of urgency in December 2016 when a 40-foot section of the Depression-era wall collapsed into the creek. The city has committed $4 million in funds and secured $6 million in state money for multiple phases of the project.
Termination clause
The city has been reluctant to comment on its decision to take Popple off the job in July, citing the threat of litigation.
But George broke the silence. “He’s not going anywhere. He hasn’t got grounds to stand on,” George said.
Previously, Popple said the city had not given him an explanation why his contract was canceled. He said the city referred to a section of the contract entitled, “Owner May Terminate for Convenience.”
The section stated, “Upon seven days written notice to contractor and engineer, owner may, without cause and without prejudice to any other right or remedy of owner, terminate the contract.”
The section further stated that the contractor shall be paid for “completed and acceptable” work done in accordance with the contract and expenses for “services and furnishing labor, materials, or equipment,” prior to the termination, and “other reasonable expenses directly attributable to termination.”
It also spelled out what was not recoverable — the “loss of anticipated overhead, profits, or revenue, or other economic loss arising out of or resulting from” termination.
In previous comments, Popple estimated the city owes him $211,000 for work done before construction began. He said he used his own money to pay Oldcastle Precast for the design and manufacture of the wall. The city said it was done without approval of the project engineer, Borton Lawson. But the engineer later approved it for use by Bower.
Popple stands a better chance of getting paid for the demolition of the former Academy Market building, the mayor said. The contractor still has some work to do on that job, George noted.
Popple submitted a low bid of $19,000 to raze the vacant structure on Academy Street. The city allocated federal Community Development Block Grant funds for the demolition in June. Popple asked for additional money to cover the cost of removing tons of trash from inside the former grocery store. City council in July approved an additional payment of $3,800, lower than what Popple requested.