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Court appeal could add to Phase 2 delay on sewer work

A court appeal may mean another delay for the start of Phase 2 of a Town of Tonawanda sewer project.

Last month, a lower court dismissed the Depew company's initial court challenge of the Town Board's decision in March to award the contract for Phase 2 of the Parker-Fries sewer project to the second-lowest bidder.

Last week, State Supreme Court Appellate Justice Salvatore R. Martoche agreed to hear the appeal filed by attorneys for the low bidder, Accadia Site Contracting Co., and issued an order that temporarily bars the work from beginning. The appeal is scheduled to be heard May 23.

"They have the legal right to appeal the decision. We feel that we have a strong legal ground to defend," said Town Attorney John J. Flynn.

Though Accadia's bid was more than $1.5 million less than that of Concrete Applied Technologies (CATCO) of Alden, which was awarded the contract, attorneys for the town argued -- and State Supreme Court Justice John F. O'Donnell agreed -- that Accadia's bid was conditional because of a letter sent by its project manager to the town's consultant.

The letter expressed concern about the potential for damage by installing temporary sheet piling, as required in bid specifications, and stated the company would be held harmless should damage claims arise.

Martoche ordered a $100,000 bond, or undertaking, be posted by Accadia. If the judge determines that Accadia wasn't entitled to an injunction, the money would be applied toward damages and costs incurred by the town because of it.

Attorneys for the town contended that the preliminary injunction, pending the appeal, would delay the project for at least six weeks. "Even this delay will cause the loss of a large portion of this year's construction season and subject the town to increased material and labor costs," attorney Paul. G. Joyce, of Colucci & Gallaher, wrote in a letter to the judge.

Joyce asked the judge to require that Accadia provide an undertaking of no less than $880,000 before the injunction takes effect.

Calling that amount "outrageous," an attorney for Accadia wrote, in part:

"Setting aside the fact that Accadia's appeal is set to be heard and decided on an expedited basis, which limits the extent of any purported delay in project commencement, the amount sought by the town is excessive and unjustified," said Jeffrey F. Reina of Lipsitz Green Scime Cambria.

"Here, even if it were determined that Accadia incorrectly received a preliminary injunction, the town fails to articulate with any particularity how its alleged damages would total $880,000," Reina wrote.

Accadia's attorneys asked that the bond be $10,000 or less.

Despite the town's victory in the first round of the legal challenge, the contract for Phase 2 of the project hasn't been signed, according to Flynn.

"When we won at the lower court, we sent the contract over to CATCO," Flynn said. "They didn't sign it before the appeal was filed."