Man O’ Trouble

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The snail’s pace construction of a linear park up the spine of the Buffalo Niagara Medical Campus is a standing joke between the owner and patrons of Ulrich’s Tavern on Ellicott Street.

“We have an over and under if it would get done before the 2016 Olympics,” said owner Jim Daley, whose tavern provides a front-row seat to the construction.

It’s a simple enough project: The federal government earmarked $5.1 million of the $6.4 million project to landscape, resurface and otherwise improve about a half-mile stretch of Ellicott Street street through the medical campus. The idea was to improve traffic flow and add a green accent up the spine of the $1 billion campus, home to 8,500 employees, with 3,500 more expected by the end of the year.

Completing the work has been anything but simple, however, Investigative Post has found.

And rather than a completed project, portions of the park and pedestrian walkway look more like a crime scene. While most of the construction on the first phase is complete, a rust-colored snow fence lines about half of the six-block project and maintenance of the landscaping during the project has been hit and miss.

“A project like this should take no more than a year, start to finish, to design and build it,” said Matt Enstice, president and chief executive officer of the Buffalo Niagara Medical Campus.

Instead, Enstice said, it will take six years to complete, assuming the city wraps up a second phase by the end of the construction season next year.

Enstice’s frustration is such that two weeks ago, he and a medical campus crew took matters into their own hands.

“I went out there with my team and we picked all the weeds, we ripped down the snow fence,” he said.

Here are the problems Investigative Post uncovered:

• The $6.4 million project is well behind schedule. The lion’s share of funding was allocated in 2004 and 2005 and construction was supposed to start in 2010. But only half the work was put out to bid and construction didn’t start until May 2011. That work is about 95 percent finished. The other half of the job, primarily paving and other work to convert Ellicott Street to two-way traffic, hasn’t been put out to bid.
• Work has been slowed, according to Enstice, by a disagreement among two federal agencies about project plans that resulted in an eight-month delay and an understaffed city Public Works Department that was hard pressed to provide adequate oversight. Federal officials deny they are to blame for any delay.
• City Hall, to the consternation of some project participants, awarded the contract to Man O’ Trees, a contractor who had encountered problems with a road project in Niagara Falls. The company’s owner, David Pfeiffer, contributed a total of $17,000 to Mayor Byron Brown’s campaign committees in 2009 and 2010, making him one of the mayor’s largest donors.
• Problems with Man O’ Trees extend beyond failure to complete the project by the July 2012 deadline, for which the company may be assessed a $200 a day in liquidated damages since Aug. 1. As of last fall, the company had failed to meet equal employment opportunity hiring goals for women and minorities and at least three subcontractors have complained of not getting paid.

“That’s been a nightmare of a project,” said Timothy Trabold, transportation programs manager for the Greater Buffalo-Niagara Regional Transportation Council, has sat in regular meetings with city officials who have discussed this project.

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Listen to audio of an April 2, 2012, project meeting obtained through a state Freedom of Information Law request. At the meeting are city associate engineer John Bidell, Buffalo Niagara Medical Campus’s Mark McGovern, subcontractor Industrial Power and Lighting vice president of industrial services Greg McCabe and Foit-Albert employees Robert Sinicropi and John Selig (the identities of the speakers in the final two clips could not be established in the audio):

 Subcontractor refuses to continue work on park because of nonpayment.

Project managers talk about the lien on Man O’ Trees.

Project managers discuss what happens if Man O’ Trees bids on second phase.

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Public Works Commissioner Steven Stepniak doubted that the medical campus could have finished the project quicker and he didn’t think campus officials understood the complexity of the work.

“When you have multiple agencies like this and multiple funding sources in a very unique and challenging project, you are going to have some delays all the way around,” Stepniak said. “I truly don’t believe that the medical campus understood exactly what they wanted.”

A Main Street to recruitment

A revitalized Ellicott Street is envisioned as the main boulevard of the medical campus, regarded as the city’s major economic development project.

“Having that urban environment where you have green space, a nice environment, is critical to having people want to come down here and to recruiting the best people,” Enstice said.

Some $1 billion of public and private investment has been poured into the 120-acre campus over the past decade. Major facilities include Roswell Park Cancer Institute, Buffalo General Hospital and the Hauptman-Woodward Institute. Further expansion plans include relocation of the University at Buffalo Medical School from its south campus and Children’s Hospital from Bryant Street.

Once completed, Ellicott Street will be reconstructed for two-way traffic with bike lanes. The adjoining right-of-way will function as a linear park, complete with landscaping, distinctive sidewalks, low-level lighting, electric car chargers, public art, bike racks and custom benches.

In 2004 and 2005, Congress appropriated $5.1 million to cover 80 percent of the project, with the city and state contributing 10 percent each. Of that federal money, $1.9 was from the Federal Transit Administration and $3.2 million was from the Federal Highway Administration. Stepniak said to save all elements of the project, the city kicked in an additional $500,000 above its $250,000 required match for the first phase project and another $800,000 for the second phase.

The split federal funding source caused problems, as the medical campus submitted design plans to meet Federal Transit Authority specs that the Federal Highway Administration subsequently rejected, Enstice said. Both federal agencies denied this happened.

Regardless, Enstice said the project was delayed by eight months for a redesign.

With the plans finally in place and responsibility for overseeing the work shifting to the city, bids were solicited for the linear park and other streetscape work in August 2010. Plans had originally called for the street reconstruction to be done concurrently, but that work was not put out to bid.

“These two projects were designed together as one cohesive linear park with independent utility,” according to the official minutes of a pre-bid meeting in July 2010.

Stepniak said the project did not run concurrently because of the funding split and because the second phase is the city’s right of way, but the second phase is not.

Engineers estimated the cost of what was now the first phase of the project at $3.3 million, but all three bids came in below that estimate. Man O’ Trees won the bid at $1.9 million to install landscaping, sidewalks, granite curbs, planters, benches, light poles and irrigation.

The city’s project manager, associate engineer John Bidell, said at the July 2010 pre-bid meeting that the majority of the work would be completed in the spring of 2011.

‘Our hands were tied’

Some involved in the bidding process were incredulous that city awarded the bid to Man O’Trees. Under law, public entities are required to select the lowest responsible bidder for work, but a project Man O’ Trees was handling in Niagara Falls raised questions with some over its ability to finish projects on time.

“We all rolled our eyes and said, ‘Are you serious that you are going to give it to them?’” said Trabold, of the Greater Buffalo-Niagara Regional Transportation Council. “If you think this one is bad, that one [in Niagara Falls] has weeds growing on the piles of dirt.”

Unbeknownst to many in the process, Man O’ Trees President Dave Pfeiffer was a major donor to Brown’s campaign committee, contributing $16,500 in 2009 and another $500 in 2010, prior to the bid opening.

Stepniak said the contributions did not influence the handling of this project.

The company in recent years has won bids to a number of large public projects, many of them on Buffalo’s waterfront, including Gallagher Beach, Erie Basin Marina, Union Ship Canal.

In addition to contributing to Brown, Pfeiffer has given $12,300 to Congressman Brian Higgins, D-Buffalo, since 2009. He gave $15,000 last year to Sen. Tim Kennedy, a Higgins ally.

Man O’ Trees has run into problems with at least two other projects besides the Ellicott Street work.

In Niagara Falls, Man O’ Trees got the contract to reconstruct a portion of Lewiston Road from under which radioactive waste had to be removed. The city accused Man O’ Trees of skipping out on the project; Man O’ Trees says the city owed $2.9 million more for the radioactive waste it had already removed beyond the contract terms.

Niagara Falls filed a lawsuit to rebid the project and Man O’ Trees in September filed a lawsuit against the city of Niagara Falls, Mayor Paul Dyster, the city council and the city engineers and its consultants to halt the rebidding. But a judge recently ruled that the city can move forward with rebidding the contract to someone else.

Man O’ Trees’ splash pad project at Martin Luther King Jr. Park was delayed for over a year. The project was supposed to be finished in June 2011, but work continued through this year.

Samuel Herbert, of the Coalition to Save Martin Luther King Park, said the splash pad project is finally nearing completion.

“If it wasn’t for the media we would have been looking at this getting completed next summer,” Herbert said. “Perhaps because of the negativity in Niagara Falls, Man O’ Trees don’t want to repeat that.”

Stepniak and City Engineer Peter Merlo said they were not aware that Man O’ Trees had any problems with other projects when the medical campus job went out to bid in August 2010.

“We’d have to have hardcore information to disqualify a vendor and we’ve had other projects held up trying to do things like that,” Stepniak said.

“We are bound by New York State public bidding law,” added Merlo. “If you understand that law then you understand why our hands were tied in the process.”

‘Business is business’

Officials fault Man O’ Trees’ for its performance on the Ellicott Street project.

Concerns were expressed over the pace of work just a month after construction began in April 2011, according to daily work reports the city provided for a Freedom of Information Law request.

“The Stakeholders want to see better progress and a closer fulfillment of the Contractor’s planned schedule,” according to a May 2011 daily work report.

The daily work reports detail how Man O’ Trees rarely had enough workers on the job. Man O’ Trees crews were then unable to find the irrigation system valve boxes because no one documented their locations before the winter pause, and had to search each planter bed for them. Other times crews were late on the job, failed to maintain the plantings and spent days just pulling weeds from planters.

The city’s contract compliance office also warned Man O’ Trees in 2011 that it was failing to meet equal employment opportunity goals of having a 7.7 percent minority workforce and 6.9 percent female workforce, according to daily work reports.

“John Bidell and the Field Office clearly expressed the need for the Contractor to improve both their minority and female workforce participation numbers. Contractor acknowledged their hiring shortcomings and states that with upcoming landscaping work they will be improving their hiring goals, particularly the minority hiring percentage,” according to meeting minutes from 2011.

Stepniak said he didn’t have a report about the equal employment opportunity goals not being met and he was not sure what efforts Man O’ Trees made to meet those goals after the company had been warned.

Earlier this year, subcontractors started complaining about not getting paid on time.

According to a recording of the April project meeting, Man O’ Trees hadn’t paid at least two subcontractors. One of them, Greg McCabe, vice president of industrial services for Industrial Power and Lighting, said he had been chasing down Man O’ Trees for nearly $200,000.

McCabe said at the meeting that Man O’ Trees told him that the city was not approving the payments. But Bidell told McCabe that Man O’ Trees was signing off on paperwork that stated its subcontractors were getting paid. McCabe said he was “devastated” by this information. Neither Man O’ Trees’ Pfeiffer nor any other company employee was at the meeting.

“We are not proceeding with the project … until Man O’ Trees gives me roughly $195,000,” said McCabe during the recorded April 2 meeting. “I don’t want to know anything about this job with all due respect. I would expect that today. It still won’t make me warm and fuzzy to go ahead and finish this job 100 percent when I still have 80 percent of the monies out.”

Bidell told McCabe to file a mechanic’s lien on the project.

“I am hoping he steps up and does the right thing and pays you,” Bidell said at the April meeting. “He is signing papers saying he is paying his subs.”

During the meeting someone asked McCabe, “Didn’t you say your boss and him were buddies?”

“I guess not that good of buddies,” McCabe replied. “Business is business.”

An arborist told Investigative Post that he hasn’t been paid $250 for work he did at the site and Bidell said in the April meeting that another subcontractor was calling him regularly to complain that Man O’ Trees was not paying for completed work.

Lack of manpower?

Stepniak would not comment about the subcontractors complaining about not getting paid. However, he disclosed that Industrial Power and Lighting did file a mechanic’s lien against Man O’ Trees for this project. A mechanic’s lien is a way a subcontractor can secure payment for work.

The city has the right under its contract with Man O’ Trees to impose a penalty of $200 a day for uncompleted work. Aug. 1 was the trigger date for those liquidated damages, but Stepniak wouldn’t say if the city is collecting the penalty because the legal department is handling the matter.

Bidell said the snow fence needs to stay for safety reasons and to keep people off the park property in case something were to get damaged.

“We are pushing and pushing to get them done,” Bidell said about Man O’ Trees.

Man O’ Trees’ Pfeiffer did not return messages seeking comment.

Enstice said Public Works efforts to supervise the project were hamstrung by a lack of manpower.

“We have a Public Works Department that has very good people in it that work very hard,” he said. “I just don’t think they have enough manpower to deliver all the projects our community needs.”

Stepniak said although there is a high volume of work, he didn’t think that public works had a manpower problem for this project, but Man O’ Trees did.

“We recognized if we are going to do this, let’s get it right,” Merlo said. “It’s in the spine of the medical campus and it’s got to be done right.”

Meanwhile, Daley, the owner of Ulrich’s, keeps watching the flow of the medical campus project and can’t believe it isn’t finished.

“It makes for good conversation,” Daley said. “It’s your tax dollars at work.”