Wednesday, September 2, 2015

No Engineering Contract on the Park Project


Lloyd Supervisor Ray Costantino admitted last week that he did not sign a separate contract with Hudson Land Design [HLD] for them to perform engineering work at Tony Williams Park project, despite the firm's representative, Jon Bodendorf, citing it in his Project Specifications booklet: "The Engineer may also furnish observation of Construction, subject to the terms of his contract with the Owner [town], for compliance of the work with the contract documents." [General Conditions of the Contract; Article 3; Engineers Duties and Status; 3.01 paragraph 2].

Typical engineering contracts contain an Errors and Omissions clause, which in the case of a design error, the cost to fix it falls upon the engineer and not upon the town. When more than $30,000 in change orders and additions were discussed by the Town Board, no mention was made if they should be paid for by the engineer or corrected by the contractor. Instead they were paid for by the town.

Costantino said he received only a proposal from HLD.

"There was a proposal for so much cost to design the thing," he said. "There is no contract. We don't have a contract with [town attorney] Lew DiStasi. We don't have a contract with [town engineer] Bill Rohde. We don't sign contracts. These are hire and fire at will. We don't need to do anything but proposals."

Costantino said there were negotiations with HLD of a fee per hour to "do their thing and if we don't like it, they're gone . . . I don't remember any formal contract [with HLD]."

Costantino, however, did sign a contract with contractor Daniel Rosinski of G.DanRos and Sons, a copy of which is contained in the Engineer's Specifications booklet, dated Nov. 9, 2009 - entitled 'Agreement between Owner and Contractor, Tony Williams Park, New Garage, Pavilion and Associated Improvements.'

Under another FOIL request, the town released monthly bills from HLD to the town dating from Sept. 18, 2009 through May 31, 2010 totaling $6,837.50 for their design work at the park. There appears to be 4 general categories HLD billed for: Master Plan Preparation; Bid Package Preparation; Construction Support Services and Mileage/Map Reproduction reimbursements. Each month's bill contains total billable hours; however there is no itemized breakdown to show exactly what was done by HLD.

The Town Board also admitted they did not know if Rosinski met all of the requirements in HLD's Specifications book, especially on critically important soil compaction tests prior to placing the concrete for the garage, pavilion or dugouts, or tests on the concrete itself [slump test], or compressive strength testing. The board also has no evidence that prior to laying the asphalt, a town Field Representative and/or the Engineer was present to check and approve the soil compaction and witness Rosinski proofroll the subgrade, as is called for in HLDs plan. If done the town would have the assurance that the subgrade will support the pavement structure.

These critical quality control tests determine if the concrete has achieved its specified design strength and if the asphalt subase was prepared properly so that the town can expect the project to have a reasonable life span.

General Conditions of the Contract, Section 5.09 states that Rosinski is the one responsible for "All inspection and testing, as specified in the Contract Documents [and] shall be paid for by the contractor." It goes on to clarify that he is also "responsible for obtaining the required certificates of inspection, testing or approval and delivering same to the Engineer [HLD]." According to the Town Board, it appears Rosinski failed to perform this work since the Board admitted they have not seen any documentation attesting to their completion.

Costantino said for this project he relied on Bodendorf.

"That's why we hired Jon," Costantino said of the testing. "I don't have any. I haven't seen any [inspection reports]. That doesn't say there wasn't any done [but] if there was none done, then there was none done."

Costantino, however, said it was up to the engineer to certify the quality of the work.

"We rely on his expertise," he said. "If he approved the source of the contract, did he look at what was done? That's really up to him."

The Supervisor's comments, however, run counter to HLDs plan, since they advised the board to appoint a Field Representative to act on their behalf and they did not.

Bodendorf, in a June 15, 2010 email response to a second FOIL request for all HLD inspections and testing reports, stated that his firm “did not perform any testing of any kind."

The agreement Rosinski signed indicates that he would perform all of the work in the HLD Specification Book for $159,350. The Change orders and additions pushed the total to $190,302. By not performing these tests, the town not only paid Rosinski for work he failed to perform, but the town accepted a finished product they are unsure meets engineering specifications.

To date, the town has not received an 'As-built' survey on the finished project. HLD indicated one will soon be provided; however, the HLD plan calls for a survey to be done by an independent firm hired and paid for by Rosinski, and not by HLD, at the close of the project.

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