Nancy, We worked extremely hard to try and complete every item within our control and that the Town could consider against us being complete. We feel that the items that remain are all due to either change order work, work yet to be designed, materials we are physically unable to obtain or due to extenuating circumstances that we have openly disclosed and discussed with all parties. We have combined all four punch lists from the multiple walk throughs and have separated the items into complete or not complete. Tonight we will explain why each uncompleted item exists and believe that our reasoning is valid reason to remove the unfinished items from the completion consideration. We sincerely regret that you feel the momentum has faded on this project but we pushed ourselves and subcontractors to the limit to complete a 3.5 million dollar project in 9 months without a single weather day extension. Doing this much work this quickly does not allow for sufficient time to deal with design changes or project unforeseen conditions which still exists and need to be dealt with. We would hope that the Town would be understanding of this and act accordingly with these issues as opposed to charging us liquidated damages. I can assure you that if an item existed on the punch list that we could complete it would be done. I would ask that you review the list I will send tomorrow morning and then allow us to meet and explain our reasoning. I will get the documents together and send firs thing in the morning. I already have a meeting with Clay Tuesday morning so immediately following this meeting would be a good convenient time for us. If that doesn't work we are open to any other time that suits you. Liquidated damages this steep are very hard to swallow when we look next to our job at the trail job that appears to be very behind and we have noted several instances where the City is completing work for the contractor. Zach Fusilier North Texas Contracting Office - 817-430-9500 Cell - 817-819-6691 Email - zach@ntexcon.com From: Nancy Cline [mailto:ncline@addisontx.gov] Sent: Wednesday, August 31, 2011 7:06 PM To: 'Zack Fusilier' Cc: Clay Barnett; 'KentPower'; 'Barbier, Michael'; 'Bruce Dunne'; Slade Strickland Subject: RE: Outstanding items on Spring Valley and Vitruvian Way and impending disincentive charges Zack, Do you think the punch list items are complete? When would you like to meet? I do not anticipate bringing the city attorney. Nancy From: Zack Fusilier [mailto:zach@ntexcon.com] Sent: Wednesday, August 31, 2011 7:00 PM To: Nancy Cline; 'Josh Hodsdon' Cc: 'Andy Nord'; Clay Barnett; 'KentPower'; Slade Strickland; 'Barbier, Michael'; 'Bruce Dunne'; jmassey@icon-engineers.com Subject: RE: Outstanding items on Spring Valley and Vitruvian Way and impending disincentive charges Completely disagree. you will get formal correspondence in the morning. Please set up the meeting now so we can argue. If you are involving the city attorney let me know now so I can bring mine. Zach Fusilier North Texas Contracting Office - 817-430-9500 Cell - 817-819-6691 Email - zach@ntexcon.com From: Nancy Cline [mailto:ncline@addisontx.gov] Sent: Wednesday, August 31, 2011 5:20 PM To: 'Josh Hodsdon' Cc: 'Andy Nord'; 'Zack Fusilier'; Clay Barnett; KentPower (kpower@rhsitx.com); Slade Strickland; 'Barbier, Michael'; 'Bruce Dunne'; 'jmassey@icon-engineers.com' Subject: Outstanding items on Spring Valley and Vitruvian Way and impending disincentive charges Josh, Please be reminded that contract time does not end until all punch list items are verified as complete. At this time, we have another final walk through scheduled for Thursday, September 1 at 8 am. If there are any outstanding punch list items that will not be complete before the walk through, the time will not be halted. As you are aware, the revised contract time runs out Friday, Sept. 2nd and at that time, disincentive charges are charged at $3000/day. It is very disappointing with the momentum that was demonstrated throughout the project that at this important time, no workers would be present for Monday, Tuesday and Wednesday this week. Communication is important and we look forward to meeting with you tomorrow morning at 8 am for the walk-through. Attached for your reference below are a few excerpts from the special provisions that explain the bonus/final acceptance procedure for Spring Valley and Vitruvian Way. Thank you, Nancy Here are a few excerpts from the special provisions that explain the bonus/final acceptance procedure for Spring Valley and Vitruvian Way. SP-21 For purposes of this Contract, the Daily Value is $3,000. The Town desires to expedite construction on this contract to minimize the inconvenience to the traveling public and to reduce the time of construction. In order to achieve this, an incentive – disincentive provision is established for the contract. The total incentive payment shall not exceed $90,000. SP-22 EXPLANATION OF CONTRACT TIME: In the event the Contractor completes the Contract prior to the expiration of the Original Contract Time, the Town will pay the Contractor an incentive payment of the Daily Value amount specified in Provision 21 for each calendar day the actual completion date precedes the Original Contract Time, subject to the conditions set forth below. The term “Original Contract Time” as used in this Provision will mean the number of calendar days established by the Contractor for completion of the Work of the Contract on the date the Contract was executed. The term “calendar day” as used in this Provision will mean every day shown on the calendar. Calendar days will be consecutively counted from commencement of Contract Time regardless of weather, weekends, holidays, suspensions of Contractor’s operations, delays, or other events as described herein. For purposes of the calculation and determination of entitlement to the incentive payment stated above, the Original Contract Time will not be adjusted for any reason, cause or circumstance whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e., war, invasion, riot, declared state of emergency, national strike, or other situation as declared by the Town of Addison). The parties anticipate that delays may be caused by or arise from any number of events during the course of the Contract, including, but not limited to, work performed, disruptions, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, weather, weekends, holidays, or other such events, forces or factors sometimes experienced in roadway construction work. Such delays or events and their potential impacts on performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not extend the Original Contract Time for purposes of calculation of calculation of the incentive payment set forth above. Further, any and all costs or impacts whatsoever incurred by the Contractor in accelerating the Contractor’s work to overcome or absorb such delays or events in an effort to complete the Contract prior to expiration of the Original Contract Time, regardless of whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor in every instance. In the event the project is altered by work deleted, change order, supplemental agreements, utility conflicts, design changes or defects, extra work, right of way issues, or other situations which are not the fault of or a direct result of Contractor’s negligence which may impact the critical path of the project construction schedule, the Town may choose to negotiate the extension or reduction of the Original Contract Time with the Contractor. Original contract time for the project was 271 days which ended on August 15th. Due to change orders the town negotiated the addition of 18 days which moved the completion date to September 2nd. In the event of a catastrophic event (i.e., war, invasion, riot, declared state of emergency, national strike, or other situations as declared by the Town of Addison) directly and substantially affecting the Contractor's operations on the Contract, the Contractor and the Town shall agree as to the number of calendar days to extend the Original Contract Time so that such extended Original Contract Time will be used in calculation of any incentive payment. In the event the Contractor and Town are unable to agree to the number of calendar days to extend the Original Contract Time, the Town shall unilaterally determine the number of calendar days to extend the Original Contract Time reasonably necessary and due solely to such catastrophic event and the Contractor shall have no right whatsoever to contest such determination, save and except that the Contractor establishes that the number of calendar days determined by the Town were arbitrary or without any reasonable basis. The Contractor shall have no rights under the Contract to make any claim arising out of this incentive payment provision except as is expressly set forth in this Provision. As conditions precedent to the Contractor's entitlement to any incentive the Contractor must: (1) Reach a level of substantial completion so that all proposed travel lanes are permanently open to the public no later than July 15th 2011. Accepted by town of Addison 7/15/2011 (2) Actually complete all Contract requirements, including the completion of all punch list work, and obtain final acceptance by the Town prior to expiration of the Original Contract Time. Not Accepted, 4 punch lists were sent to the contractor on 8/25/2011 after a walkthrough outlining remaining contract items to be completed prior to final acceptance. Town is waiting on the contractor to complete these items before performing a final walkthrough and delivering final acceptance. (3) The Contractor shall notify the Town in writing, within 30 days after final acceptance of the Contract by the Town, that the Contractor elects to be paid the incentive payment which the Contractor is eligible to be paid based on the actual final acceptance date, and such written notice shall constitute a full and complete waiver, release and acknowledgment of satisfaction by the Contractor of any and all claims, causes of action, issues, demands, disputes, matters or controversies, of any nature or kind whatsoever; known or unknown, against the Town, its employees, officers, agents, representatives, consultants, and their respective employees, officers and representatives, the Contractor has or may have, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers or subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations, extended or unabsorbed home office or job site overhead, lump sum maintenance of traffic adjustments, lost profits, prime mark-up on subcontractor work, acceleration costs, any and all direct and indirect costs, any other adverse impacts, events, conditions, circumstances or potential damages, on or pertaining to, or as to or arising out of the Contract. This waiver, release, and acknowledgment of satisfaction shall be all inclusive and absolute, save, and except any routine Town final estimating quantity adjustments. Should the Contractor fail to meet the substantial completion milestone, actually complete the Contract and obtain final acceptance by the Town prior to expiration of the Original Contract Time, or should the Contractor, having timely completed the Contract and obtained final acceptance by the Town prior to expiration of the Original Contract Time but having failed to timely request the incentive payment for any reason, including but not limited to the Contractor choosing not to fully waive, release and acknowledge satisfaction as set forth in (2) above, the Contractor shall have no right to any payment whatsoever under this Provision. Notwithstanding the Contractor's election or non-election of the incentive under this provision, the disincentive provision applies to all circumstances where the Work in the Contract is not finally accepted by the Allowable Contract Time. Should the Contractor fail to complete the Contract on or before expiration of the Allowable Contract Time, as adjusted in accordance with the provisions above, the Town shall deduct from the monies due the Contractor the Daily Value as shown in Provision 21 for each calendar day completion exceeds the Allowable Contract Time. The term "Allowable Contract Time" as used in this Provision shall mean the Original Contract Time plus adjustments pursuant to the statements above. This deduction shall be the disincentive for the Contractor's failing to timely complete the Contract. This shall be strictly enforced. In the event the Contractor elects to exercise this incentive payment provision, should this provision conflict with any other provision of the Contract; the Contract shall be interpreted in accordance with this provision. From: Barbier, Michael [mailto:mBarbier@Halff.com] Sent: Thursday, August 25, 2011 1:13 PM To: Josh Hodsdon Cc: Clay Barnett Subject: Spring Valley Punch List 8-25-2011 Josh, Attached in my punch list from this morning. Let me know if you have any questions. Thank you, Michael Barbier, P.E. Civil Engineer HALFF ASSOCIATES, INC. 1201 North Bowser Road Richardson, Texas 75081 Phone 214-217-6643 Fax 214-739-0095 www.halff.com ************************************************************ This e-mail and any files or attachments transmitted with it contain 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. ************************************************************ 吠睯楦慮獥楴慭楴杮焠慵瑮瑩⁹摡番瑳敭瑮⹳਍਍桓畯摬琠敨䌠湯牴捡潴⁲慦汩琠敭瑥琠敨猠扵瑳湡楴污挠浯汰瑥潩業敬瑳湯ⱥ愠瑣慵汬⁹潣灭敬整琠敨䌠湯牴捡⁴湡⁤扯慴湩映湩污愠捣灥慴据⁥祢琠敨吠睯牰潩⁲潴攠灸物瑡潩景琠敨传楲楧慮潃瑮慲瑣吠浩ⱥ漠⁲桳畯摬琠敨䌠湯牴捡潴Ⱳ栠癡湩⁧楴敭祬挠浯汰瑥摥琠敨䌠湯牴捡⁴湡⁤扯慴湩摥映湩污愠捣灥慴据⁥祢琠敨吠睯牰潩⁲潴攠灸物瑡潩景琠敨传楲楧慮潃瑮慲瑣吠浩⁥ 畢⁴慨楶杮映楡敬⁤潴琠浩汥⁹敲畱獥⁴桴⁥湩散瑮癩⁥慰浹湥⁴潦⁲湡⁹敲獡湯‬湩汣摵湩⁧畢⁴潮⁴楬業整⁤潴琠敨䌠湯牴捡潴⁲档潯楳杮渠瑯琠畦汬⁹慷癩ⱥ爠汥慥敳愠摮愠正潮汷摥敧猠瑡獩慦瑣潩獡猠瑥映牯桴椠㈨
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