John, Their actions indicate they are trying to avoid the responsibility for the direct supervision of the construction. The wording you have provided below with a reference to Nathan Maier’s scope does not show an acceptance and/or assignment of the responsibility. It is important that the folks responsible for the direct supervision of the construction be clarified. We can perform those duties is they are not able to but need to not assume that UDR is. Thank you, Nancy -----Original Message----- From: Ext_mail John Hill Sent: Wednesday, March 10, 2010 3:04 PM To: Lea Dunn Cc: Nancy Cline; Clay Barnett; Carmen Moran Subject: RE: How are you doing on the language we discussed yesterday? ***************************************************************************** IMPORTANT/CONFIDENTIAL: This message contains information from the law firm of Cowles & Thompson, P.C. which may be privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee, or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at our telephone number (214) 672-2000 ****************************************************************************** Attached is what I show to be the last draft of the construction management agreement for Phase IB (I do not have a signed copy). As you scroll down the document, you will see highlighted relevant instances when the words “inspect” and “observe” are used. As Lea notes, the language that Nancy forwarded on Monday that is used by TxDOT Aviation uses the term “observing.” Below is the first paragraph from that language (emphasis added): The Engineer shall furnish a Resident Project Representative, hereinafter called the "RPR," to assist the Engineer in observing the performance of the work of the Contractor. Services of the RPR shall be in accordance with Attachment C, "Duties, Responsibilities and Limitations of Authority of the Resident Project Representative" attached hereto and made a part of this agreement. There is, however, the statute (Section 1001.407, Tex. Occupations Code) that uses the words “direct supervision” regarding the construction of public works involving engineering: The state or a political subdivision of the state may not construct a public work involving engineering in which the public health, welfare, or safety is involved, unless: (1) the engineering plans, specifications, and estimates have been prepared by an engineer; and (2) the engineering construction is to be performed under the direct supervision of an engineer. If UDR won’t accept the “direct supervision” language, perhaps they would be agreeable to add an adjective or two, along with – as Lea suggested - the scope of services to be provided by Nathan Meier, in order to “beef up” the language; something like: Further, the Project Construction Engineer shall observe, oversee and review the engineering construction of the said Phase 1B of the Phase I Infrastructure, Phase 1C of the Phase I Infrastructure, and Phase 1D of the Phase I Infrastructure and consult with the City staff members and UDR regarding same as contemplated above. The work and services of the Project Construction Engineer includes the work and services set forth in Exhibit B attached hereto and incorporated herein. Exhibit B would be the scope provided by Nathan Meier. John ________________________________ From: Lea Dunn [mailto:ldunn@addisontx.gov] Sent: Wednesday, March 10, 2010 2:05 PM To: John Hill Cc: Nancy Cline; Clay Barnett; Carmen Moran Subject: FW: How are you doing on the language we discussed yesterday? John: I meant to copy you on this email. If Nancy can’t locate, do you have a copy of the construction management agreement for Phase 1 A, B. I wanted to see what we had with the first agreement. Thanks, Lea Lea Dunn Deputy City Manager 972-450-7037 ldunn@addisontx.gov -----Original Message----- From: Lea Dunn Sent: Wednesday, March 10, 2010 2:01 PM To: Nancy Cline Cc: Clay Barnett; Carmen Moran Subject: RE: How are you doing on the language we discussed yesterday? Nancy: What language did we have in the original construction assignment agreement for Phase 1A? I think that UDR may have some issue with the wording you suggested. What about if we took the wording you provided from the TxDOT agreement and modified it to read as follows: UDR shall furnish a Project Construction Engineer to assist the Construction Manager in observing the performance of the work of the Contractor. Services of the Project Construction Engineer shall be in accordance with Attachment A, "Duties and Responsibilities attached hereto and made a part of this agreement. We could attach Nathan Maier’s scope of services as part of the agreement and that way I think it will clearly spell out their responsibilities. Thoughts? Lea Lea Dunn Deputy City Manager 972-450-7037The Engineer shall furnish a Resident Project Representative, hereinafter called the "RPR," to assist the Engineer in observing the performance of the work of the Contractor. Services of the RPR shall be in accordance with Attachment C, "Duties, Responsibilities and Limitations of Authority of the Resident Project Representative" attached hereto and made a part of this agreement. ldunn@addisontx.gov -----Original Message----- From: Nancy Cline Sent: Wednesday, March 10, 2010 1:43 PM To: Lea Dunn Cc: Clay Barnett; Carmen Moran Subject: RE: How are you doing on the language we discussed yesterday? Lea, The contract looks acceptable except the wording on page 5 of 12 should state “Further, the Project Construction Engineer shall directly supervise the engineering construction of the said Phase 1B of the Phase I Infrastructure, Phase 1C of the Phase I Infrastructure, and Phase 1D of the Phase I Infrastructure and consult with the City staff members and UDR regarding same as contemplated above.” If UDR is not going to be responsible for the direct supervision of the construction, then the Town will need to be. If the Town is responsible, then we will need a funding mechanism to pay for it. Thank you, Nancy Cline -----Original Message----- From: Lea Dunn Sent: Wednesday, March 10, 2010 11:04 AM To: Clay Barnett; Nancy Cline; Carmen Moran Subject: FW: How are you doing on the language we discussed yesterday? All: Please let me know your thoughts. Thanks, Lea Lea Dunn Deputy City Manager 972-450-7037 ldunn@addisontx.gov -----Original Message----- From: Tom Lamberth [mailto:TLamberth@udr.com] Sent: Wednesday, March 10, 2010 10:32 AM To: Lea Dunn Subject: FW: How are you doing on the language we discussed yesterday? Lea- Take a look at the revised language relative to the civil engineer and their proposed scope of work. Leonard is working on the same issue with the construction services agreement and I will forward it over when I get it. Thanks. ****************************************************************************************************************** This e-mail and any files or attachments transmitted with it contains Information that is confidential and privileged. This document may contain Protected Health Information (PHI) or other information that is intended only for the use of the individual(s) and entity(ies) to whom it is addressed. If you are the intended recipient, further disclosures are prohibited without proper authorization. If you are not the intended recipient, any disclosure, copying, printing, or use of this information is strictly prohibited and possibly a violation of federal or state law and regulations. If you have received this information in error, please delete it and notify Hamid Khaleghipour at 972-450-2868 immediately. Thank you. *******************************************************************************************************************