From: Steve Peiffle [steve@snolaw.com] Sent: Monday, June 30, 2008 1:30 PM To: James Kelly Subject: RE: Div 0 Docs Jim, I spoke with counsel for Kennedy/Jenks. I believe the way we left it on the two issues he and I were to discuss were: * GC 5.17: Leave as drafted. * GC 9.4: Substitute the alternative language referenced. Let me know if you need to discuss further. Steve Peiffle Bailey, Duskin, Peiffle & Canfield, P.S. P.O. Box 188 Arlington, WA 98223 steve@snolaw.com www.snolaw.com 360-435-2168 fax 360-435-6060 NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this email in error, and delete the copy you received. Thank you. From: James Kelly [mailto:jkelly@ci.arlington.wa.us] Sent: Wednesday, June 25, 2008 4:51 PM To: Steve Peiffle Subject: FW: Div 0 Docs Steve – My earlier message seemed to be a bit short, attached is the KJ response to our comments. Are you free to discuss tomorrow? Jim From: James Kelly Sent: Friday, June 20, 2008 3:41 PM To: 'Steve Peiffle' Subject: FW: Div 0 Docs Steve From: Chris Kelsey [mailto:ChrisKelsey@KennedyJenks.com] Sent: Thursday, June 19, 2008 6:13 PM To: James Kelly Subject: RE: Div 0 Docs Jim: Attached is a spreadsheet to with our responses/suggested resolution for all of your comments below, as well as the ones issued by Steve P. If we can concur on these, we should talk about expediting execution of the work - KJ could lead. Thanks - Chris ? 253-874-0555 | Direct: 253-942-3467 Cell: 253-670-5402 | Fax: 253-952-3435 From: James Kelly [mailto:jkelly@ci.arlington.wa.us] Sent: Monday, June 16, 2008 2:25 PM To: Chris Kelsey Cc: Steve Peiffle; Tom Giese Subject: RE: Div 0 Docs Chris - My comments: 1. GC Article 2: We need to add section in the SC stating that the MBR contract will be assigned to the contractor and is therefore part of the Contract Documents. Clarification also needs to be provided as to what clauses of the contract documents have precedence (MBR Procurement Contract or Specifications) 2. GC 2.8: Does KJ actually own the design documents? 3. GC Article 3: We need to include a new section in the SC that defines existing conditions to include that the construction site is also a functioning and operable WWTP as permitted by the State of Washington and MUST not have its operations hindered or interrupted without sufficient notice. Notice to be signed by Engineer, Contractor, Owner, and WWTP Supervisor (and DOE??); and must include a detailed plan of the interruption. 4. GC 3.3: Is there a soils report? If so, lets reference it in the SC and have it be part of the Contract Documents. 5. GC 3.7: Among the three conditions there seems to be a misplaced conjunction - "or" (minor comment) 6. GC 5.10: The City will be paying all building permit fees; this can be addressed and corrected in the SC. 7. GC 5.16 and 5.17 (and elsewhere): The City will not accept electronic documents transmitted on "floppy disks".........CD's only (minor comment). 8. GC Article 5 -We need to make the "Inadvertent Archaeological Discovery Plan (IADP)" part of the contract and the Contractor's responsibility to implement. 9. Forms - The GC references many contractual documents and includes several premade forms, I suggest that we also make the following forms for inclusion in the SC (these forms can includes notes and check boxes for items referenced in the GC - price increase, schedule increase, etc): Request for WWPT Operations Interruption Change Order Work Directive Minor Change Directive Request for Quotation Request for Information Project Claim Form Jim From: Chris Kelsey [mailto:ChrisKelsey@KennedyJenks.com] Sent: Mon 6/16/2008 9:59 AM To: James Kelly Subject: RE: Div 0 Docs Not bad Jim. Let me try to run these by our contract guys over the next day or so - will get back to you. Thanks - Chris ? 253-874-0555 | Direct: 253-942-3467 Cell: 253-670-5402 | Fax: 253-952-3435 From: James Kelly [mailto:jkelly@ci.arlington.wa.us] Sent: Monday, June 16, 2008 9:51 AM To: Chris Kelsey Cc: Tom Giese Subject: FW: Div 0 Docs Chris - Comments from Steve P. What else do we need to do with Div 0? Jim From: Steve Peiffle [mailto:steve@snolaw.com] Sent: Fri 6/13/2008 9:29 AM To: James Kelly Subject: RE: Div 0 Docs Jim, now that my eyes have refocused from the fine print, here are a limited number of comments from me. General Conditions, document 00700: * review paragraph 2.8 to make sure this is acceptable to us. * paragraph 5.17 contains language which purports to limit the ability of the contractor to make a claim for delay damages. Specifically, it says: "To the fullest extent permitted by law, the Contractor on behalf of itself and its subcontractors, waive any and all claims for damages attributable to delays, interference, or acceleration caused by the Owner, the Engineer, the Design Engineer and each of their officers, employees, agents and consultants and the Contractor and its subcontractors shall be entitled to an extension of the Contract Time as their exclusive remedy." However, RCW 4.24.360 expressly prohibits this kind of clause. Specifically, it says: "Any clause in a construction contract, as defined in RCW 4.24.370, which purports to waive, release, or extinguish the rights of a contractor, subcontractor, or supplier to damages or an equitable adjustment arising out of unreasonable delay in performance which delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable. This section shall not be construed to void any provision in a construction contract, as defined in RCW 4.24.370, which (1) requires notice of delays, (2) provides for arbitration or other procedure for settlement, or (3) provides for reasonable liquidated damages." * If we want to try to limit potential delay damage claims, it might be best to amend the language above to provide a strict notice requirement which essentially would say that to the extent that the contractor intends to assert a delay damage claim, the Contractor must provide written notice within a certain number of days or the same is waived. The RCW above may limit the effectiveness of this but that might be better. As currently written, the language "to the fullest extent permitted by law" might essentially eviscerate the remainder of that paragraph. * Paragraph 9.4 contains a reference to a waiver of a California statute which does not have a comparable Washington equivalent. Perhaps the best thing is to end the paragraph after the words "...claims arising out of the change order." * Paragraph 9.12, first line, word "deletion" should be "deletions". * Preceding paragraph 12.10, the heading should be bolded. Let me know if you want to discuss. Generally these looked pretty good. From: James Kelly [mailto:jkelly@ci.arlington.wa.us] Sent: Wed 6/11/2008 1:30 PM To: Steve Peiffle Subject: FW: Div 0 Docs Steve – Attached are the General Conditions and Special Conditions; I believe these will be the main sections of Division 0. The other documents Chris references are mandatory Washington State docs. The end of this design phase is starting to come into sight……. Jim From: Chris Kelsey [mailto:ChrisKelsey@KennedyJenks.com] Sent: Wednesday, June 11, 2008 10:26 AM To: James Kelly Subject: Div 0 Docs Jim: Attached are 3 documents - our Div 0 TOC, as well as the General Conditions and Supplemental Conditions. Please review with Steve and get back to me. The bidding documents list in the TOC will need to be expanded to incorporate the forms from Mike Dawda for funding requirements... If these are workable for the City, we can figure a way to most efficiently execute. The italicized comments within parentheses are intended for guidance to the user, they are erased in the final document. <> <<00700 General Conditions.pdf>> <<00800 Supplementary Conditions.pdf>> ___________________________ Kennedy/Jenks Consultants www.kennedyjenks.com Christopher W. Kelsey, P.E. 32001 32nd Ave. South, Suite 100 Federal Way, WA 98001 ChrisKelsey@KennedyJenks.com ? 253-874-0555 | Direct: 253-942-3467 Cell: 253-670-5402 | Fax: 253-952-3435