HomeMy WebLinkAboutLetter to Steven M. Mezynieski, Inc 07/2014 MARTIN D. FINNEGAN SCOTT A. RUSSELL
TOWN ATTORNEYSO y Supervisor
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martin.finnegan@town.southold.ny.us (/
STEPHEN F. KIELY
�Q� T OlO Town Hall Annex, 54375 Route 25
P.O. Box 1179
ASSISTANT TOWN ATTORNEY Southold, New York 11971-0959
stephen.kiely@town.southold.ny.us v,
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LORI M. HULSE �� ® ^� Telephone (631) 765-1939
ASSISTANT TOWN ATTORNEY �yCOUNT11 Facsimile (631) 765-6639
lori.hulse@town.southold.ny.us
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
July 22, 2014
VIA EMAIL and CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Steven M. Mezynieski Inc.
c/o Steven Mezynieski
110 North Magee Street
Southampton, NY 11968
RE: Town of Southold - Dike Rehabilitation Repair Project
Dear Mr. Mezynieski:
As you are aware, the Town of Southold entered into contracts with your
company, Stephen M. Mezynieski Inc. ("SMMI"), on December 18, 2013 to provide dike
rehabilitation services on four farms damaged by Superstorm Sandy. In accordance
with paragraphs 4, 5 and 6 of the Conditions of Contract, attached hereto for your
convenient reference, work was to commence within ten (10) days of the contract
signing or December 28, 2013 and be completed within the construction time allotted
under the contract for each dike. The Conditions clearly state that Time is of the
Essence with respect to SMMI's performance of its contractual obligations.
It is my understanding that notwithstanding days lost due to inclement weather,
SMMI has gone over the allotted construction time for the dikes at Wickham Farm, Terry
Farm and Latham Farm. Furthermore, as of this writing, over 200 days post-contract
execution, Wickham Farm and Salt Air Farm are the only farms where rehabilitation work
is complete, pending a final inspection. As of the date of this letter, no substantial work
has been completed on either Terry Farm or Latham Farm.
Also attached hereto is a spreadsheet detailing the available work days since
January 1, 2014. It is evident to the Town that SMMI has not devoted sufficient
resources and manpower to these projects to enable them to be completed in a timely
manner. SMMI's failure to timely complete the rehabilitation work is a clear breach of
the Conditions of Contract which has resulted in damages to the Town for additional
construction management and inspection services. Despite the ambitious schedule
provided for the completion of Latham and Terry Farms, it is evident that at the current
pace of work, these projects may not be completed for at least 30 days.
Mr. Steven Mezynieski
July 22, 2014
Page 2
Please be advised that the Town expects all of the remaining dike rehabilitation
work to be completed immediately. In light of SMMI's breach of the essential time
constraints in the Conditions of three of the four contracts, the Town is reserving its
rights in accordance with Paragraph 7 of said Conditions of Contract to deduct and
retain the sum of One Thousand Five Hundred Dollars ($1,500.00) from the money
owed under each contract as liquidated damages for SMMI's default for each and every
day the work remains incomplete.
Please be guided accordingly.
ry truly s,
Finnegan
Town Attorney
MDF/lk
Enclosures
cc: Hon. Scott A. Russell, Supervisor
Elizabeth A. Neville, Town Clerk
Michael Collins, Engineer
James Richter, Engineering Inspector
John Cushman, Comptroller
3. COMPENSATION TO BE PAID TO THE CONTRACTOR f r
(a) Agreed Prices: It is understood and agreed that the Contractor will accept as payment in full !
the summation of products of the actual quantities in place upon the completion of the work, as
determined by the Engineer's measurements, by the unit prices bid, no allowance being made for
anticipated profit or for reasons of variations from the estimated quantities set forth in the Form
of Bid. I'!
(b) Extra Work: The Owner may, at any time, by a written order and without notice to the
Sureties, require the performance of such extra work or changes in the work as it may find t!i
necessary or desirable. The amount of compensation to be paid to the Contractor for any extra '!
work, as so ordered, shall be determined as follows:
h
1) By such applicable unit prices, if any, as set forth in the Contract; or
2) If no such unit prices are set forth, then by unit price or by a lump sum mutually agreed upon
by the Owner and the Contractor; or
3) If no such unit prices are so set forth and if the parties cannot agree upon unit prices or a lump
sum; then by actual net cost in money to the Contractor of the materials, permits, wages of
applied labor,premiums for Workmen's Compensation Insurance,payroll taxes required by law, f
rental for plant and equipment used (excluding small tools) to which total cost will be added
twenty (20) percent as full compensation for all other items of profit, costs and expenses,
including administration, overhead, superintendence, insurance, insurance other than Workmen's x
Compensation Insurance, materials used in temporary structures, allowances made by the
Contractor to subcontractors, additional premiums upon the performance bond of the Contractor o
and the use of small tools.
tf '
4. TIME OF ESSENCE .
INASMUCH AS THE PROVISIONS OF THIS CONTRACT RELATING TO THE TIME OF
PERFORMANCE AND COMPLETION OF THE WORK ARE FOR THE PURPOSE OF
ENABLING THE TOWN TO PROCEED WITH THE CONSTRUCTION OF A PUBLIC
IMPROVEMENT IN ACCORDANCE WITH A PREDETERMINED PROGRAM, SUCH
PROVISIONS ARE OF THE ESSENCE OF THIS CONTRACT.
5, CONE ENCEMENT OF WORK
The Contractor agrees that he will commence work immediately on and not later than ten (10) g
days after signing of the Contract. 14
6. TIME OF COMPLETION
M
The time of completion of the entire contract work shall be SIXTY (60) CONSECUTIVE
CALENDAR DAYS from the date the contract is signed by all parties. The date of such
completion shall be the date of the Certification of Completion herein specified. The entire work
must be satisfactorily completed so that the project improvements are available to the Town for ;
use. z r
CC-3
tg
x �i 444
t
CONDITIONS OF CONTRACT
The Owner reserves the right to order the Contractor to suspend operations, when in the opinion
of the Engineer, improper weather conditions make such action advisable, and to order the
Contractor to resume operations when weather and ground conditions pen-nit. The days during
which such suspension of work is in force are not chargeable against the specified completion
date.
7. LIQUIDATED DAMAGES FOR DELAYS
The time limit being essential to and of the essence of this Contract, the Contractor hereby agrees
that the Owner shall be, and is hereby authorized to deduct and retain out of the money which
may be due or may become due to said Contractor under this agreement, the sum of One
Thousand Five Hundred ($1,500.00) per day which amount is hereby agreed upon, fixed and
determined by the parties hereto as the liquidated damages, including overhead charges, services,
inspector's wages and interest on the money invested, that the Owner will suffer by reason of
such default, for each and every day during which the,aforesaid work may be incomplete over
and beyond the time herein stipulated for its completion in 6 —Time of Completion, provided,
however, that the Owner shall have the right to extend the time for the completion of said work.
S. EXTENSIONS OF TIME. NO WAIVER
If the Contractor shall be delayed in the completion of his work by reason of unforeseeable
causes beyond his control and without his fault or negligence, including but not restricted to, acts
ry of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes,riots, civil
commotion's or freight embargoes, the period herein above specified for completion of his work
shall be extended by such time as shall be fixed by the Owner.
No such extension of time shall be considered a waiver by the Owner of its right to terminate the
Contract for abandonment or delay by the Contractor as hereinafter provided, or relieve the
Contractor from full responsibility for performance of his obligations hereunder.
9. WEATHER
During unsuitable weather, all work must stop when such work would be subject to injury and
the Contractor shall transfer his men and materials to those parts of the work where weather
conditions will not have any effect on the workmanship. The Contractor shall not be entitled to
any damages on account of such damages or suspension, and he must protect any work that
might be injured by the elements and make good any work that is injured.
10. CONTRACT SECURITY
(a) The Contractor shall furnish a Performance Bond, or other acceptable security, equal to one
hundred percent (100%) of the amount of the bid as security for the faithful performance of the
Contract, and for the payment of all persons performing labor or furnishing materials in
connection with this Contract. The Performance Bond shall be written so as to remain in full
force and effect as a maintenance bond for a period of not less than one (1) year after the date of
acceptance of the work by the Engineer.
U
CC-4
a3
Date Weather Observed Temp(Hi/Lo) Salt Air(120) Wickham(90) Latham(90) Terry(60)
Wednesday,January 01,2014 Cloudy 31/24 Delay Delay Delay Delay
Thursday,January 02,2014 .57 in snow 34/17 Delay Delay Delay Delay
Friday,January 03,2014 0.08 in snow 18/8 Delay Delay Delay Delay
Saturday,January 04,2014 Cloudy 32/8 Delay Delay Delay Delay
Sunday,January 05,2014 0.06 snow 49/26 Delay Delay Delay Delay
Monday,January 06,2014 0.1"R 54/31 Delay Delay Delay Delay
Tuesday,January 07,2014 - 31/10 Delay Delay Delay Delay
Wednesday,January 08,2014 - 21/11 Delay Delay Delay Delay
Thursday,January 09,2014 0.01"R 30/16 Delay Delay Delay
Friday,January 10,2014 0.05"R 40/20 Delay Delay Delay Delay
Saturday,January 11,2014 0.72"R 55/40 Delay Delay Delay Delay
Sunday,January 12,2014 - 48/35 Delay Delay Delay Delay
Monday,January 13,2014 - 49/31 Delay Delay Delay
Tuesday,January 14,2014 0.92"R 50/42 Delay Delay Delay
Wednesday,January 15,2014 - 48/34 Delay Delay Delay Delay
Thursday,January 16,2014 - 41/36 Delay Delay Delay Delay
Friday,January 17,2014 - 43/31 Delay Delay Delay Delay
Saturday,January 18,2014 0.04"R 43/32 Delay Delay Delay Delay
Sunday,January 19,2014 - 38/28 Delay Delay Delay Delay
Monday,January 20,2014 - 46/33 Delay Delay Delay Delay
Tuesday,January 21,2014 0.38"S 33/16 Delay Delay Delay Delay
Wednesday,January 22,2014 0.01"S 19/10 Delay Delay Delay Delay
Thursday,January 23,2014 - 20/8 Delay Delay Delay Delay
Friday,January 24,2014 - 19/10 Delay Delay Delay Delay
Saturday,January 25,2014 0.05"S 39/17 Delay Delay Delay Delay
Sunday,January 26,2014 - 34/19 Delay, Delay Delay Delay
Monday,January 27,2014 - 45/24 Delay Delay Delay
Tuesday,January 28,2014 0.16"S 24/16 Delay Delay
Wednesday,January 29,2014 0.0111S 23/15 Delay Delay Delay
Thursday,January 30,2014 - 28/14 Delay Delay Delay Delay
Friday,January 31,2014 - 41/18 Delay Delay Delay Delay
Saturday,February 01,2014 - 45/31 Delay Delay Delay Delay
Sunday,February 02,2014 0.24"S 50/37 Delay Delay Delay Delay
Monday,February 03,2014 0.35"S 41/31 Delay Delay Delay Delay
Tuesday,February 04,2014 0.38"S 36/25 Delay Delay Delay Delay
Wednesday,February 05,2014 - 35/29 Delay Delay Delay Delay
Thursday,February 06,2014 - 29/23 Delay Delay Delay Delay
Friday,February 07,2014 - 30/23 Delay Delay Delay Delay
Saturday,February 08,2014 0.1"S 28/22 Delay Delay Delay Delay
Sunday,February 09,2014 - 33/23 Delay Delay Delay Delay
Monday,February 10,2014 - 30/21 Delay Delay Delay Delay
Tuesday,February 11,2014 - 27/18 Delay Delay Delay
Wednesday,February 12,2014 0.16"S 31/13 Delay Delay Delay Delay
Thursday,February 13,2014 1.49"S 39/32 Delay Delay Delay Delay
Friday,February 14,2014 0.01"S 41/32 Delay Delay Delay Delay
Saturday,February 15,2014 0.56"S 38/28 Delay Delay Delay Delay
Sunday,February 16,2014 0.05"S 31/24 Delay Delay Delay Delay
Monday,February 17,2014 - 31/18 Delay Delay Delay Delay
Tuesday,February 18,2014 0.31"S 43/22 Holiday-Presidents day
Wednesday,February 19,2014 0.31"R 45/27 Delay Delay Delay Delay
Thursday,February 20,2014 0.01"R 48/34 Delay Delay Delay Delay
Friday,February 21,20140.18"R 53/37 Delay Delay Delay Delay
Saturday,February 22,2014 - 47/36 Delay Delay Delay Delay
Sunday,February 23,201410.09"R 54/38 Delay Delay Delay Delay
Date Weather Observed Temp(Ni/Lo) Salt Air(120) Wickham(90) Latham(90) Terry(60)
Monday,February 24,2014 - 43/27 Delay Delay Delay Delay
Tuesday,February 25,2014 - 31/25 Delay Delay Delay Delay
Wednesday,February 26,2014 0.02"R 30/18 Delay Delay Delay
Thursday,February 27,2014 0.04"R 33/13 Delay Delay Delay Delay
Friday,February 28,2014 - 24/11 Delay Delay Delay Delay
Saturday,March 01,2014 - 37/1 Delay Delay Delay Delay
Sunday,March 02,2014 0.03"R 42/22 Delay Delay Delay Delay
Monday,March 03,2014 - 33/16 Delay Delay Delay Delay
Tuesday,March 04,2014 - 27/9 Delay Delay Delay Delay
Wednesday,March 05,2014 - 38/19 Delay Delay Delay Delay
Thursday,March 06,2014 - 30/15 Delay Delay Delay Delay
Friday,March 07,2014 - 37/23 Delay Delay Delay Delay
Saturday,March 08,2014 - 57/26 Delay Delay Delay Delay
Sunday,March 09,2014 0.03"R 42/32 Delay Delay Delay Delay
Monday,March 10,2014 0.01"S 46/32 Delay Delay Delay Delay
Tuesday,March 11,2014 - 63/37 Delay Delay Delay Delay
Wednesday,March 12,2014 0.4"R 54/37 Delay Delay Delay Delay
Thursday,March 13,2014 - 46/20 Delay Delay Delay Delay
Friday,March 14,2014 0.04"R 41/14 Delay Delay Delay Delay
Saturday,March 15,2014 - 59/34 Delay Delay Delay Delay
Sunday,March 16,2014 - 43/30 Delay Delay Delay Delay
Monday,March 17,2014 0.01"S 31/26 Delay Delay Delay Delay
Tuesday,March 18,2014 - 41/13 Delay Delay Delay Delay
Wednesday,March 19,2014 0.41"S 43/26 Delay Delay Delay
Thursday,March 20,2014 - 56/39 Delay Delay Delay
Friday,March 21,2014 - 49/27 Delay Delay Delay
Saturday,March 22,2014 - 62/21 Delay Delay Delay Delay
Sunday,March 23,2014 - 44/22 Delay Delay Delay Delay
Monday,March 24,2014 - 34/17 Delay Delay Delay Delay
Tuesday,March 25,2014 0.01"S 37/13 Delay Delay Delay Delay
Wednesday,March 26,2014 - 37/26 Delay Delay Delay Delay
Thursday,March 27,2014 - 38/20 Delay Delay Delay Delay
Friday,March 28,2014 - 52/38 Delay Delay Delay Delay
Saturday,March 29,2014 3.96"R 51/30 Delay Delay Delay Delay
Sunday,March 30,2014 0.06"R 59/39 Delay Delay Delay Delay
Monday,March 31,2014 0.09"R 44/33 Delay Delay Delay Delay
Tuesday,April 01,2014 - 52/32 Delay Delay Delay Delay
Wednesday,April 02,2014 - 49/29 Delay Delay Delay Delay
Thursday,April 03,2014 0.04"R 61/28 Delay Delay Delay Delay
Friday,April 04,2014 0.02"R 43/41 Delay Delay Delay Delay
Saturday,April 05,2014 - 57/39 Delay Delay Delay Delay
Sunday,April 06,2014 - 54/21 Delay Delay Delay Delay
Monday,April 07,2014 0.79"R 51/29 Delay Delay Delay Delay
Tuesday,April 08,2014 - 56/46 Delay Delay Delay Delay
Wednesday,April 09,2014 - 61/30 3 8 2 3
Thursday,April 10,2014 - 51/24 4 91 3 4
Friday,April 11,2014 - 64/46 4 5
Saturday,April 12,2014 - 66/45 Delay Delay Delay Delay
Sunday,April 13,2014 - 61/32 Delay Delay Delay Delay
Monday,April 14,2014 - 64/52 6 5 6
Tuesday,April 15,2014 1.14"R 57/39 Delay Delay Delay Delay
Wednesday,April 16,2014- 47/31 Delay Delay Delay Delay
Thursday,April 17,2014 - 45/33 Delay Delay Delay Delay
Friday,April 18,2014 - 46/35 71 121 6 7
Date Weather Observed Temp(Hi/Lo) Salt Air(120) Wickham(90) Latham(90) Terry(60)
Saturday,April 19,2014 - 65/30 Delay Delay Delay Delay
Sunday,April 20,2014 - 51/28 Delay Delay Delay Delay
Monday,April 21,2014 - 58/23 8 7 8
Tuesday,April 22,2014 0.01"R 59/33 9 8 9
Wednesday,April 23,2014 - 58/37 10 9 10
Thursday,April 24,2014 - 60/43 11 10 11
Friday,April 25,2014 0.33"R 58/33 11 12
Saturday,April 26,2014 0.07"R 55/45 131 191 12 13
Sunday,April 27,2014 - 58/36 141 201 13 14
Monday,April 28,2014 - 62/36 14 15
Tuesday,April 29,2014 0.14"R 49/43 15 16
Wednesday,April 30,2014 0.84"R 49/42 Delay Delay Delay Delay
Thursday,May 01,2014 0.04"R 61/50 Delay Delay Delay Delay
Friday,May 02,2014 - 64/40 17 Delay Delay
Saturday,May 03,2014 0.01"R 65/33 Delay Delay Delay Delay
Sunday,May 04,2014 - 66/47 Delay Delay Delay Delay
Monday,May 05,2014 - 67/43 161 17
Tuesday,May 06,2014 - 68/37 19 17 18
Wednesday,May 07,2014 0.05"R 63/33 18 19
Thursday,May 08,2014 0.16"R 55/40 21 19 20
Friday,May 09,2014 0.02"R 61/53 22 28 20 21
Saturday,May 10,2014 0.14"R 71/53 231 291 21 22
Sunday,May 11,2014 - 76/53 24 30 22 23
Monday,May 12,2014 - 76/43 23 24
Tuesday,May 13,2014 - 65/48 26 24 25
Wednesday,May 14,2014 0.01"R 58/47 25 26
Thursday,May 15,2014 0.02"R 71/57 28 26 27
Friday,May 16,2014 0.84"R 65/60 29 271 28
Saturday,May 17,2014 - 68/53 30 28 29
Sunday,May 18,2014 - 69/42 31 29 30
Monday,May 19,2014 - 70/44 32 30 31
Tuesday,May 20,2014 - 76/38 33 31 32
Wednesday,May 21,2014 0.27"R 69/46 34 32 33
Thursday,May 22,2014 0.28"R 57/54 35 33 34
Friday,May 23,2014 0.22"R 64/55 36 34 35
Saturday,May 24,2014 - 67/53 37 35 36
Sunday,May 25,2014 - 70/52 38 36 37
Monday,May 26,2014 - 78/48 Holiday-Memorial Day
Tuesday,May 27,2014 - 85/54 37 38
Wednesday,May 28,2014 0.15'R 57/52 38 39
Thursday,May 29,2014 - 60/40 42 39 40
Friday,May 30,2014 - 64/36 40 41
Saturday,May 31,2014 - 66/43 441 49r 41 42
Sunday,June 01,2014 - 77/451$505 42 43
Monday,June 02,2014 - 77/50 43 44
Tuesday,June 03,2014 0.01"R 80/59 44 45
Wednesday,June 04,2014 0.12"R 66/59 45 46
Thursday,June 05,2014 0.3"R 67/56 46 47
Friday,June 06,2014 - 77/55 E47 48
Saturday,June 07,2014 - 81/55 48 49
Sunday,June 08,2014 - 83/5852 57 49 50
Monday,June 09,2014 0.35'R 70/60 50 51
Tuesday,June 10,2014 0.07"R 72/64 51 52
Wednesday,June 11,2014 - 69/59 52 53
Date Weather Observed Temp(Hi/Lo) Salt Air(120) Wickham(90) Latham(90) Terry(60)
Thursday,lune 12,2014 0.11"R 70/58 61 531 54
Friday,June 13,2014 0.09"R 70/60 57 62 541 55
Saturday,June 14,2014 - 78/59 58 63 55 56
Sunday,lune 15,2014 - 75/57 59 64 56 57
Monday,June 16,2014 - 79/59 65 57 58
Tuesday,lune 17,2014 - 73/64 58 59
Wednesday,June 18,2014 - 88/68 67 59 60
Thursday,June 19,2014 0.27"R 74/64 68 60 61
Friday,June 20,2014 - 78/58 69 61 62
Saturday,June 21,2014 - 74/58 65 70 62 63
Sunday,June 22,2014 - 75/53 661 71 63 64
Monday,June 23,2014 - 79/54 72 64 65
Tuesday,lune 24,2014 - 76/61 73 65 66
Wednesday,June 25,2014 - 77/67 74 66 67
Thursday,June 26,2014 - 86/65 in 75 67 68
Friday,June 27,2014 - 77/61 Isms= 76 68 69
Saturday,June 28,2014 - 79/53 721 77 69 70
Sunday,June 29,2014 - 76/55 731 78 70 71
Monday,June 30,2014 - 77/67 79 71 72
Tuesday,July 01,2014 - 81/71 80 72 73
Wednesday,July 02,2014 - 81/72 81 73 74
Thursday,July 03,2014 0.26"R 81/71 82 74 75
Friday,July 04,2014 1.96"R 74/64 Holiday-4th of July
Saturday,July 05,2014 - 80/64 79 831 75 76
Sunday,July 06,2014 - 82/62 80 841 76 77
Monday,July 07,2014 - 76/67 77 78
Tuesday,July 08,2014 - 79/69 78 79
Wednesday,July 09,2014 0.07"R 81/69 80
Thursday,July 10,2014 - 82/68 88 80 81
Friday,July 11,2014 - 81/66 81 82
Saturday,July 12,2014 - 82/60 86 90 82 83
Sunday,July 13,2014 - 77/69 87 91 83 84
Monday,July 14,2014 0.20"R 82/70 92 85
Tuesday,July 15,2014 0.27"R 76/69 89 93 85 86
Wednesday,July 16,2014 0.24"R 90/68 90 94 86 87
Thursday,July 17,2014 911 95 87 88
Friday,July 18,2014 1 921 100 88 89
I o„,`' :indicated construction report available
"35" :indicates numbered calendar day
Delay :indicated day is considered a weather delay