A road project that never ends

As of press time, we’re coming close to the Rubicon that runs metaphorically across Lewiston Road.

Niagara Falls Mayor Paul Dyster says he is ready to hold contractor David Pfeiffer’s feet to the fire.

“Critical decisions are going to be made soon,” said Mayor Dyster. “Their [David Pfeiffer and Man O’ Trees] contention that we owe them huge amounts of money for work is not reasonable.

“A conclusion is going to be reached [in days] to determine what the relationship [with Man O’ Trees] is going to be going forward or whether there is going to be a relationship.”

The Lewiston Road project started in August of 2009, and was to include new asphalt and concrete pavement, curbs, sidewalks, storm drains, sanitary and water lines and electrical work from Bath Avenue to the north city line. Lewiston Road had been deteriorating for decades.

It is already what could be years behind schedule and the contractor apparently stopped work on the project last fall.
Worse yet: the city is upside down on the job as far as payments are concerned with the city paying the contractor for nearly all of the job, which has increased by more than $700,000, with less than half of it completed.

Eighty percent of the job is paid with federal money and the remainder shared by the state and city on what was originally a $7,713,000 contract with Man O’ Trees of West Seneca.

Including extra money to remove additional and unforeseen quantities of radioactive material and other change orders, the new total contract for Man O’ Trees today is $8,490,743.

Paid to date to Man O’ Trees is $7,130,684, or 84 percent of the total cost.

According to published reports, the job is about 45 percent complete.

Today, in lieu of work being conducted on the project, talks are going on behind the scenes between assistant city attorney, Thomas O’Donnell and attorneys for Mr. Pfeiffer and his insurance company, Hanover Insurance, which issued the performance bond.

Mr. Pfeiffer hired high-priced Niagara Falls attorney John Bartolomei, who is widely known as a shrewd, aggressive lawyer who can create enough legal challenges to encourage settlement rather than lengthy and costly litigation.

Mr. Bartolomei told the Reporter via email that his client wants a “contract amendment for revised unit prices and for a revised completion schedule.”

That in effect means he wants to renegotiate the contract.

Pfeiffer’s main bone of contention is that he discovered six times more radioactive slag buried under the road that had to be removed than what was originally estimated.

It was never a secret there was radioactive slag buried decades ago or that when the road was dug up, the slag must be separated from the rest of the material and be subject to DEC regulations after removal.

Originally, however, it was estimated by Wendel Duchscherer, the city’s engineering firm for the project, that there were 550 yards of contaminated slag.

In municipal bids of this type, individual aspect of the jobs may be given a specific cost on a line-by-line basis. This way, in case there is more of a certain job than originally estimated, the contractor can bill the city based on the price he agreed to on that specific line item.

In his original bid, Mr. Pfeiffer bid $35 per yard for the excavation of radioactive slag.
His two competitors both submitted bids of $115 per yard.

In addition, the city agreed to pay up to $500,000, subject to receipts from a waste disposal facility or trucker, for the disposal of the contaminated slag. If more receipts were produced, the city would pay the difference.

Mr. Pfeiffer said his crews found not 550 yards but 3,000 yards of radioactive material.

At $35 per yard, under the contract he signed, he would be entitled to another $87,500. With segregation and storage charges, based on the original contract, he might be entitled to perhaps another $100,000 on top of that.
He wants more.

Mr. Pfeiffer’s position, reiterated by Mr. Bartolomei in letters made available to the Reporter, indicates that Mr. Pfeiffer wants $6.7 million (or what we calculate as $2,680 per yard) for all additional contaminated slag and another $2.9 million (or $1,160 per yard) for what might be characterized as Mr. Pfeiffer’s inconvenience.

“Impacts,” Mr. Pfeiffer calls it in a letter to Wendel, “due to schedule, materials, labor, bonding, (caused) by the overage of the radioactive contaminated material.”
In short, Mr. Pfeiffer wants $9.6 million more for the job, or what we calculate as $3,840 per yard going forward, instead of the original $35 per yard.

Even if we use the higher $115 per yard submitted by two other bidders for the job, Mr. Pfeiffer, in short, appears to want a $9 million raise.

Luke Moretti interviewing David Pfeiffer. Ch. 4 photo

And presumably the right to go back onsite, at the new prices and (hopefully) find more contaminated slag at thousands per yard.

Paul Marinaccio, who built Center Road in Lewiston and is owner of Accadia Site Contract Inc., a company that has used Man O’ Trees as a subcontractor in the past, denounced Mr. Pfeiffer’s numbers.

“It’s slag,” Mr. Marinaccio said. “I removed 60,000 yards of slag last year. It does not cost $1,000 per yard, maybe $50 per yard.”

Mayor Dyster maintains the city has always been prepared to pay the fair and agreed upon price for contaminated slag removal and the contractor knew from the start there might be more radioactive slag than what was originally estimated. That’s why they called it an estimate. That’s why there is a line item cost in the first place.

Many among the more than one dozen people in the construction field familiar with the job, whom the Reporter spoke to, including a contractor who worked for Mr. Pfeiffer, suggested that the dirty little secret is that Man O’ Trees underbid the job in the first place and, combined with their inexperience in hazardous waste removal and delays occurring as a result of that inexperience, got hopelessly behind.

They needed any excuse to get out of the deal or get paid enough to get back in, according to their assessment.

Here are the facts: In 2009, three bids were submitted for the job.
Catco Inc., of Alden, bid the job at $9,303,231.

Yarussi Construction Inc. of Niagara Falls, bid $9,043,231.

Man O’ Trees bid $7,713,000.

Man O’ Trees was $1.3 million (or 15 percent) lower than the next lowest bidder.

“I was told, I wasn’t there in the room,” Mayor Dyster said, “but when they read the bid, the contractors gasped, because it was so low. They knew he could never get it done.

“Maybe Man O’ Trees gasped, too, because he left $1.3 million on the table and perhaps began to wonder if he had made a mistake.

“Our engineers probably gasped, too, and they went through the bid line by line to see if Man O’ Trees had omitted something.”

They did not find anything, and, Dyster said, “we could not legally say they were an unqualified bidder.”

A radiation technician who had worked as a subcontractor for Man O’ Trees had another theory: That Mr. Pfeiffer purposely underbid the project.

“They [Man O’ Trees) came in and knew they were going to make money off of the radiation in the road,” said Stu Pryce who worked at the site in 2011 for Great Lakes Environmental. “So they significantly underbid the project.”

Groundbreaking was in August, 2009, and delays occurred right from the start. Man O’ Trees lost a construction season as Mr. Pfeiffer awaited a license from the Department of Health to haul away the hazardous slag.

Contractors, contacted by the Reporter, said Mr. Pfeiffer could have subcontracted the work to a licensed hazardous waste removal company – such as Sevenson Environmental of Niagara Falls - and got the job started at once.

Once they started work, according to numerous residents, Man O’ Trees’ crews put in a half-hearted effort and worked minimal hours.

Robert Brooker, of Lewiston Road, said, “If you saw eight people, you saw a lot. How are you going to finish the job with eight or nine guys – only one excavation crew?”

According to numerous residents, nobody remembered seeing Man O’ Trees work past 3 p.m., which is uncommon for a road construction project during the short summer season.

“He underbid the job,” said Mr. Marinaccio of Accadia. Mr. Marinaccio said he first staked Mr. Pfeiffer to a construction loan in 1999 when Mr. Pfeiffer came to New York from Florida.
He later had to sue him.

“He does not have the right people, the right supervision and he does not even know how to build a road,” said Mr. Marinaccio, “and the people over there on Lewiston Road are suffering because of this idiot and you can quote me on that.”
After Mr. Pfeiffer obtained the license to remove the slag, nothing much happened for a year and a half and the city was looking to remove the contractor.

The dispute reached the public in a rather interesting, and perhaps for Mr. Pfeiffer, a self-serving way.
The work was far behind schedule. Mr. Pfeiffer, perhaps cognizant by now that he had underbid the job, wanted his line items raised.
Mr. Pfeiffer went to the media with claims of extreme radioactive danger, claiming Wendel Duchscherer asked his company to stay within the scope of the contract and not “chase” radiation in other areas where it may be present along or near Lewiston Road.

In a blitz to practically every media outlet in the area, he said Wendel, “won’t let us go into the front lawns of people and chase the radiation.”

He said his company found material ranging from 40,000 to 140,000 counts per minute on a Geiger counter. The New York State Department of Environmental Conservation set background for radioactive material along Lewiston Road at a far less 9,000 counts per minute.

“That’s some hot stuff,” Mr. Pfeiffer told TV and print news. “I would not want to be living on top of something like that.”
Mr. Pfeiffer said he had been seeking and digging up radioactive materials, “chasing” it, even if it was outside the boundaries of the road project.

He said he was doing it for the people.

The project, however, was not a remedial clean-up project but a DOT road project.

The radioactive material would not be dug up if it were not for the road repairs.

DEC officials said they believed the slag posed no immediate threat to residents as long as it was handled properly or left buried under the road.

Mr. Pfeifer was changing the scope of the project to a large-scale remedial job.
But there was no money budgeted for remedial clean up.

At the height of the Pfeiffer-blitz last summer, Lori Severino, a spokesperson for the state DEC, told the press that the DEC rejected Mr. Pfeiffer’s claims, adding he was acting imporperly by “chasing” material outside the scope of the project.

“As a federally funded road project, to ‘chase’ materials would be fraudulent,” Ms. Severino said. “Currently, there is no funding mechanism by which to remove the materials.”

Mr. Pfeiffer said he knew better than the DEC on environmental issues.

"All I want to do is let everyone know that it's there," Mr. Pfeiffer told The Buffalo News. "It's there, and it's bad."
He claimed the city was trying to do a cover- up.

"We've been leaving material in place that's off the map insofar as radiation goes," Mr. Pfeiffer said. "This has been at the direction of (City Engineer) Jeffrey Skurka and representatives of Wendel."

"… By not saying anything, we can be sued civily and even prosecuted for doing what we're being told by Dyster's people. The first time somebody dies of cancer up there, they're going to come after us."

The 2011 season came and went with little work done.

Over the winter, Mr. Pfeiffer, continuing to act like a savior of the people and watchdog of the DEC, told the Niagara Gazette in February, “We have a responsibility to the young people in our community to protect them. So does the DEC.”

Now we are well into the 2012 construction season, with no discernible work being accomplished by Man O’ Trees.
It seems fairly clear he has walked off the job.

Last month, the city council invited Mr. Pfeiffer to talk to the council. Mr. Pfeiffer declined.

Mr. Bartolomei sent an email to Council Chairman Sam Fruscione on May 29, 2012.

“It is my conclusion that your invitation to meet with Council, rather than being a genuine proposal to discuss a solution, is simply a ‘grand stand’ that is meant to move the problem from the City Council and Administration, where it belongs, to a contractor, who has been diligently trying to perform the contract.”

Mayor Dyster is in a spot.

On the one hand, residents are inconvenienced with road work stalled for what could be yet another season with the road in places half closed and their yards dug up.

As resident Vincenzo Cappello said, “I’m worried about the winter and that someone is going to get hurt. Last year, we had light snow, and one lane of the road was turned into two-way traffic.”

Mr. Cappello’s wife, Elena, echoed what every neighbor said: “Dust in the house. Dust after dust. Come in and see our dining room table. I just cleaned but you can write your initials on it.”

Businesses have been hurt too.

Omar Majad operates the Deveaux Minimart.

“It hurt the business more than 50 percent,” he said “we lost a lot of customers who have not come for a long time.”

However, curiously, not one resident we interviewed believes Mr. Pfeiffer’s claim that they are in danger from the radiation he was trying to save them from.

Should taxpayers be punished if the truth is that Mr. Pfeiffer saw a chance to rip off the city and will stop at nothing to embarrass, shame, and ultimately sue his way to a big payday?

“We tried to be reasonable,” the Mayor said, “where they had reasonable claims. Where we believe that they are making claims that are unjustified, we have denied those claims.”
Ultimately, it may go to court.

Hanover who issued the bond might be forced to pay.

If that is the case, Mr. Pfeiffer will have a difficult time in getting a bond again eliminating him as a contractor for public works.

In the words of Paul Marinaccio, the man who launched Pfeiffer’s career in Western New York and later had to sue him: “He’s broke and he is done being a contractor. He is shut off at a lot of places. He has no men on the job. He is behind on his union dues.

“The city should grow a set of balls and throw the (expletive) bum out of there so those poor people on 104 don’t have to put up with the dust and inconvenience.”

Mayor Dyster must either make the decision to cross the Rubicon or bend low and allow all or most of Mr. Pfeiffer’s seemingly excessive claims to stand.

By the time you read this or soon after the Rubicon will be crossed.

Stay tuned for more.

(David Pfeiffer did not return numerous calls seeking comment.)