4. Change Order/Final Acceptance/Nupac/Woodland Ct ProjectAgenda -May 27, 1997
AGENDA ITEM 4 - CHANGE ORDER/FINAL ACCEPTANCE OF NUPAC CONTRACT -
WOODLAND COURT PROJECT
BACKGROUND/CONSIDERATION: I have enclosed a memo from the City
Attorney concerning the final billing. (You have previously
received a copy of this memo.) Based upon the analysis of the
contract documents by our consulting engineer, the City Attorney,
and an independent engineer's review.
Based upon this review and meetings with the three parties (Nupac,
T D & H, City Staff), I have directed that T D & H prepare a change
order and final payment based upon the recommendation enclosed
within this memo.
RECOMMENDATION: Based upon the recommendation of our consulting
engineer, the City Attorney's review, and subsequent review of an
independent engineer, I concur with the recommendation for a change
order of $5,614 for extra services/material costs requested by
Nupac.
ACTION REQUIRED: Approval of the change order and final acceptance
of the Woodland Court project should be completed by RESOLUTION.
Thomas, Dean & Hoskins, Inc.
00L-
Engineering Consultants
f
I
May 23, 1997
Clarence Krepps, City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903-1997
RE: Woodland Court Project
Dear Clarence:
Enclosed is the Final Pay Estimate for NUPAC. We have included the items recommended for
payment by the City Attorney.
In all cases, the items added are increases to quantities of work included in the contract. A
Change Order is not necessary since there is not change in unit price or time.
Also enclosed is the Certificate of Substantial Completion. This should be accepted by the City.
After Council approval, the Pay Estimate and Certificate should be forwarded to NUPAC along
with the payment. NUPAC should sign and return the Pay Estimate.
Very truly yours,
THOMAS, DEAN & HOSKINS, INC.
W'J 'J
Michael W. Fraser
MWF:mj
K94-46-4
Encl:
a:may23kre.ltr
cc: Susan Moyer
Glenn Neier
690 North Meridian, Suite 101 • Kalispell, MT 59901 . (406) 752-5246 • FAX (406) 752-5230
CITY OF KALISPELL Date: May 23, 1997
PROJECT: WOODLAND COURT Pay Estimate No. 8 TIN)
JOB #: K94-46-4 Page 1 of 3
Amount Completed To Date $287,575.12
Less Retained Percentage (0 % of the total) $0.00
Subtotal $287,575.12
Dept. of
Amount Due
Revenue
Contractor
Estimate #1
$40,263.37
$402.63
$39,860.74
Estimate #2
$81,927.83
$819.28
$81,105.55
Estimate #3
$84,387.60
$843.88
$83,543.77
Estimate #4
$6,251.40
$62.51
$6,188.89
Estimate #5
$8,486.21
$84.86
$8,401.35
Estimate #6
$16,015.32
$160.15
$15,855.17
Estimate #7
$19,107.94
$191.08
$18,916.86
Less Previous Payments
$256,439.67
Amount Due Contractor
$31,135.45
Less 1 % Dept. of Revenue
$311.35
TOTAL AMOUNT DUE
$30,824.10
We hereby certify the work for which payment is hereon requested has been performed in accordance with the specifications.
CONTRACTOR: PACK AND COMPANY
Paul r m
We hereby certify the foregoing is a true and correct statement of the amount due the Contractor for construction, to date,
of the above project, and payment for same is hereby recommended.
ENGINEER: THO S, DE N OSKINS, INC.
By: MJW
sc a raser, .
CITY OF KALISPELL
APPROVED:
Susan Moyer, City of Kalispe1F-
CITY OF KALISPELL
Date: May 23, 1997
PROJECT: WOODLAND COURT
Pay Estimate No. 8
JOB #: K9446-4
Page 2 of 3
SCHEDULE I - SITE GRADING AND DRAINAGE IMPROVEMENTS
VALUE OF WORK
BID QUANTITY
UNIT
COMPLETED
ITEM
DESCRIPTION QUANTITY COMPLETED
PRICE
TO DATE
1.
MOBILIZATION LUMP SUM
100 %
$10,000.00
$10,000.00
2
OROROWD 3900 CY
3527CY
$4.60
$16,224.20
3.
EXCAVATION, TYPE I
W/ TYPE A
BACKFILL 40 CY
40 CY
$7.00
$280.00
4.
12" STORM DRAIN
PIPE, CLASS II,
IN PLACE 120 LF
120LF
$25.00
$3,000.00
5.
12" CMP CULVERT,
IN PLACE 104 LF
104 LF
$35.00
$3,640.00
6.
STORM DRAIN
INLET 1 EA
1 EA
$1,500.00
$1,500.00
7.
RIP RAP,
IN PLACE 12 CF
12 CF
$20.00
$240.00
SUBTOTAL SCHEDULE I
$34,884.20
SCHEDULE H - WATER AND SEWER IMPROVEMENTS
WATER
1.
TYPE II PIPE
BEDDING MATERIAL,
IN PLACE 50 CY
OCY
$18.00
$0,00
2
IMPORTED
L 1050 CY
881.3 CY
$13.00
$11,456.90
3.
WATER MAINS, IN PLACE
8" PVC DR 18 1242 LF
1248 LF
$$17.00
$21,216.00
12" PVC DR 18 369 LF
363 LF
$26.00
$9,438.00
4.
GATE VALVES & VALVE
BOX, IN PLACE
8" 4 EA
4 EA
$750.00
3,000.00
12" 2 EA
2EA
$1,200.00
12,400.00
5.
FIRE HYDRANTS W/
AUXILIARY GATE
VALVES AND BOX,
IN PLACE 3 EA
3 EA
$2,500.00
$7,500.00
6.
3/4" WATER SERVICE,
IN PLACE -INCLUDING
PIPE, CORPORATION
STOP, CURB STOP
AND CURB BOX 24 EA
25EA
$600.00
$15,000.00
7.
CONNECTION TO
EXISTING WATER
MAIN, INPLACE 1 EA
IEA
$1,500.00
$1,500.00
8.
PRESSURE AND LEAKAGE
TEST, COMPLETED &
ACCEPTED -MIN OF
7§ % OF ITEM 7 LUMP SUM
100 %
$500.00
$500_00
CITY OF KALISPELL
Date: May 23, 1997
PROJECT:
WOODLAND COURT
Pay Estimate No. 8
JOB #/: K94-464
Page 3 of 3
VALUE OF WORK
BID
QUANTITY
UNIT
COMPLETED
ITEM
DESCRIPTION QUANTITY
COMPLETED
PRICE
TO DATE
---------------------
9.
----- ------ --------------- ----------------------------
CLEANING OF WATER
MAINS -MIN OF 7§ %
OF ITEM 7 LUMP SUM
100 %
$500.00
$500.00
10.
DISINFECTION AND
BACTERIOLOGICAL
TESTING OF
WATER MAINS -MIN OF
5 % OF ITEM 7 LUMP SUM
i EA
$500.00
$500.00
11.
CAST IRON FITTINGS,
IN PLACE 1240 LBS
2010 LBS
$3.00
$6,030.00
SEWER
12.
TYPE II PIPE
BEDDING MATERIAL,
IN PLACE 80 CY
76CY
$18.00
$1,368.00
13.
IMPORTED
CKFILL 3170 CY
3074.1CY
$13.00
$39,963.30
14.
EXCAVATION
TYPE 2 W/
TYPE A BACKFILL 2250 CY
3697.1 CY
$6.00
$22,182.60
TYPE 1 W/
TYPE A BACKFILL 1615 CY
0 CY
$6.00
$0.00
15.
SANITARY SEWER,
IN PLACE
8" PVC SDR 35 2423 LF
2428LF
13.00
$31,564.00
8" PVC DR 18 290 LF
31OLF
16.00
$4,960.00
16.
TESTING COMPLETE
AND ACCEPTED -
MIN OF 3 % OF
ITEM 15 LUMP SUM
100%
$1,700.00
$1,700.00
17.
SANITARY SEWER
MANHOLE, IN
PLACE 10 EA
8EA
$3,665.00
$29,320.00
18.
SANITARY SEWER
DROP MANHOLE,
IN PLACE 2 EA
2 EA
$4,490.00
$8,980.00
19.
EXTRA DEPTH OF
MANHOLE, IN
PLACE 27 VF
33.8 VF
$180.00
$6,084.00
20.
EXTRA DEPTH OF
DROP MANHOLE,
IN PLACE 16 VF
16.4 VF
$180.00
$2,952.00
21.
SANITARY SEWER
SERVICE, IN
PLACE 712 LF
830LF
$10.00
$8,300.00
22.
CONNECTION TO
EXISTING SEWER 1 EA
1 EA
$500.00
$500.00
SUBTOTAL SCHEDULE II
$236,914.80
SUB -TOTAL SCHEDULES I & II
$271,7".00
APPROVED ADDITIONS AND DELETIONS
I. Connect to Existing Water Service (3)
$1,168.01
2. Water Main Adjustment
$8,261.11
3. Asphalt Pavement Replacement
$6,347.00
SUB -TOTAL ADDITIONS
$15,776.12
PROJECT
TOTAL
$287,575.12
CERTIFICATE OF SUBSTANTIAL COMPLETION
OWNER's Project No. ENGINEER's Project No. K94-46-4
Project: South Woodland Court
CONTRACTOR Pack & Company (NUPAC)
Contract For Schedules I & A Contract Date November 15 1995
This Certificate of Substantial Completion applies to all Work under the Contract Documents or to the following specified parts thereof:
Schedule I, Site Grading and Drainage Improvements
Schedule II, Water and Sewer Improvements
To City of Kalispell
Owner
And To Pack & Company (NUPAC)
Contractor
The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR and ENGINEER and
Work is hereby declared to be substantially complete in accordance with the Contract Documents on
August 16, 1996
DATE OF SUBSTANTIAL COMPLETION
A tentative list of items to be completed or corrected is attached hereto. This list may not be all-inclusive and the failure to include an item in
it does not alter the responsibility of CONTRACTOR to complete all the Work in accordance with the Contract Documents. The items in the
tentative list shall be completed or corrected by CONTRACTOR within N/A days of the above date do'ffSubstantial Completion.
The ENGINEER recommends acceptance of the Certificate of Substantial Colnpiegon in Jcordapce Wtttt)the Contract Documents.
THOMAS DEAN & HOSKINS INC. �1�11 (-(o /�yL/ c""� I/ " Z')
Engineer 1734 Date
The City of Kalispell accepts the work as Substantially Complete and will assume full responsibility there of on the day of
1997 at _ (time).
CITY OF KALISPELL
Owner
By:
Date
Incorporated 1892
Telephone (406) 758-7700
FAX (406) 758-7758
Post Office Sox 1997
Kalispell, Montana
Zip 59903-1997
Douglas Rauthe
Mayor
Clarence W. Krepps
City Manager
City Council
Members:
May 1, 1997 Gary W. Nystul
Ward I
Cliff Collins
TO: Clarence Krepps, City Manager Ward I
Norbert F. Donahue
FROM: Glen Neier, City Attorney Ward 11
Dale Haarr
Re: NuPac Change Ord quest on Woo and Court Project ward II
Jim Atkinson
Over the past several weeks I have been analyzing the Contract Documents for Site Grading, Ward 111
Street Paving and Water and Sewer Improvements for Woodland Court affordable housin�uren Granmo
and III
Project. You are aware that the Project was bid in three schedules with NuPac awarded
Schedules I and II Site Grading and Drainage and Water and Sewer Improvements) at Pamela B. Kennedy
( g g p ) ward IV
€, total price of $280,847.00. A-1 Paving received the bid for Schedule III at $108, 610.00.
Duane Larson
4uPac has submitted a claim with the City for payment for extra work and materiaaard IV
associated with the project which increases the Project costs by $69,002.00 to $349,849.00.
For purposes of this discussion, I am only concerned with the NuPac claim extra
compensation.
I have been involved in at least two meetings with representatives from Thomas, Dean and
Hoskins, the City's consulting engineers on the Project and one meeting with NuPac
representatives to discuss the change order request. Suffice it to say there exists wide
disparity between the recommendations of the TD&H and the demands of NuPac. Because
alleged'extra engineering costs associated with the project, which TD&H suggests charging
against NuPac the final recommended contract pay amount totals $276,736.50.
The differences between the recommended pay amount of TD&H and the demand of NuPac
is contained in seven (7) bid items of the contract. After meeting with representatives of
TD&H and NuPac, I outlined the applicable contract specifications which described both
the "work required to be performed" and the "measurement and payment"for work
performed. After arriving at several conclusions based upon my interpretation of the
contract documents, I asked an independent engineer, Jerry Hanson, to review the contract
from an engineering prospective to determine whether "terms of art" used in the document
would lead to a different conclusion. Hanson's analysis of the contract documents
iAwp400dct.wpd Page 1 of 8
conformed to all but one instance to my conclusion. This report is based upon a thorough
review of the contract documents from a legal perspective as well as engineering opinion
as to the "standard in the industry" applicable to this type of contract. The discussion below
contains an analysis of and my recommendations to the Council, concerning each individual
item under dispute.
Construction Specifications, Division I, General Requirements, Section 01000, Special
Procedures, ¶ 11 states:
All excavated materials shall be immediately loaded into trucks, removed from the site and disposed
of by the Contractor. Excavated materials shall not be stockpiled on site. Native materials shall not
be used as backfill. Trench backfill within the public right-of-way shall consist of imported select
uncrushed material (Type A Trench Backfill) containing stones no larger than six (6) inches at its
largest dimension. This material shall provide a uniform gradation mixture in accordance with the
requirements of the current edition of the Montana Public Works Standard Specifications.
Section 02230, Street Excavation, Backfill and Compaction, Imported Borrow
Excavation states as follows:
imported Borrow Excavation shall consist of excavation made from borrow areas outside the
project limits and outside the normal grading limits for the completion of the embankments.
Borrow areas, or areas outside the project pits from which the imported borrow may be obtained, will
generally not be designated. However, any source chosen by the Contractor shall be subject to
approval of the Engineer.
Imported Borrow Excavation, if required, shall be paid for at the contract unit price for
Imported Borrow.
Imported Borrow Excavation shall be handled and placed as specified in Section 02230.04
EMBANKMENT.
NuPac is claiming that it handled and properly placed 3527 CY of material meeting the
definition of imported borrow. TD&H disputes this claiming that only 2648 CY of material
meeting the definition of imported borrow was placed on the site. A substantial part of the
discrepancy revolves around material removed from the trenches on site and placed on lots
within the Woodland Court subdivision. TD&H alleges that NuPac, TD&H and the City
agreed that NuPac could deposit trench excavation materials on site, at no extra cost to the
City. NuPac disputes, and claims that it rejected the "no cost" proposal. Documents made
iAwp\woodct.wpd Page 2 of 8
' available to this office indicate a discussion of depositing trench materials on site, there is
no indication of any agreement by NuPac to do so at no cost. Further, if an agreement to
dispose of material on site, in contravention of ¶ 11, above, was made, there should have
been a corresponding change order adjusting the haul costs because NuPac under the
contract was required to remove a excavated materials from the site.
Construction Specifications, General Requirements, Section 01010, Measurement and
Payment, ¶ 2.1.5 Disposal of Waste Material and If 3.4.5 Imported Borrow states as
follows:
2.1.5 Disposal of Waste Material No separate measurement or payment will be made for disposal
of waste materials. All costs related to disposal of materials shall be merged and included in the
contract price for related bid items. Waste material meeting the requirements of imported
borrow shall be wasted on -site. Disposal on -site shall be behind the curbs from the sidewalk
lotward.
3.4.5 Imported Borrow. Approved material accepted in place for site grading shall be
measured in place and paid for at the contract unit price of "Imported Borrow". Price shall
include all labor, equipment, and incidental items necessary to complete the work. Material
removed from the storm water retention area bordering the south side of lots 10 through 16
shall be included as imported borrow.
Under the provisions of these paragraphs it is not clear whether or not payment should be
made for "Waste material meeting the requirements of imported borrow shall be wasted on
site." Placement of borrow for embankment purposes involves more than simply hauling
the material away and dumping it. No document available to this office indicates that the
material removed from the trenches was placed as other than embankment. It further
appears that for purpose of site grading material accepted in place was to be paid for at the
unit price for "imported borrow"
The difference in amount of borrow between NuPac and TD&H cannot be reconciled.
Ambiguity in the contract will be construed against the City, as TD&H , the City's agent
drafted the contract documents. I don't believe that the City can rely on the fact that some,
maybe even a substantial amount of the material, removed from the trench and placed on the
site as reason to deny payment on this item. If the material met the requirements of imported
borrow placed as embankment, it should have been paid for at the unit price of "Imported
Borrow". NuPac therefore is entitled to a change order totaling $4,043.00 under Schedule
II, Item 2.
iAwp\woodct.wpd Page 3 of 8
2. Schedule I, Bid Item 2, Excavation Type 1 w/ Type A Backfill
According to documents in my possession the estimated quantity was 40 CY at $7.00 per
yard for a total bid of $280.00. In a letter to Clarence Krepps dated March 18, 1997, TD&
H calculates the quantity at 31.1 CY. The difference between the quantities amounts to
$62.30. Rather than haggle over $62.00 it is advisable to pay the amount and issue a change
order for $62.30 under Schedule II, Bid Item 3.
•r : i rIII r11111 r ;�, ,
Construction Specifications, General Requirements, Section 01010, Measurement and
Payment ¶'s 3.16.1 Section 02713, Water Mains and 3.16.4 provide as follows:
3.16.1 WATER MAINS. Measurement of water mains shall be made in lineal feet along the center
line of pipe through all valves, fittings and appurtenances. Payment for water mains will be made
at the contract unit bid price bid per lineal foot for "Water Main, in Place" for the various sizes
called for, which price shall include furnishing and installing pipe Type 1 or Type 2; excavation
and Tvne A backfill, furnishing and placing Type 1 pipe bedding; and all other work
!lecessary or incidental for completion of the item.
3.16.4 Imported Backfill. Imported backfill accepted in place for water mains shall be measured
by suitable means and paid for at the contract unit price of Imported Backfill. Price shall include
cost of all imported material, labor, equipment, and incidental items necessary to place and compact
backfill material to the contract specifications. Imported material shall be a granular material
meeting the requirements of Type II Bedding.
NuPac claims that the Contract -Documents contain no specific wording regarding
excavation of trenches for water mains. NuPac, therefore, claims a quantity of 1594 CY of
material based upon measurement and total tickets. TD&H calculated backfill requirements,
at 881.3 CY, based upon Type 1 or Type 2 trench, excavation and Type A backfill.
Section 02221, 04, B, and D, Montana Public Works Standards describes TYPE 1
TRENCH EXCAVATION as follows:
B. Excavation performed as Type 1 will not be shored or sheathed. The sides of all
trenches greater than 5 feet in depth shall be sloping back to the angle of repose to
preclude collapse, in accordance with Table P-1, Section 1926.653 of OSHA Safety
and Health Regulations for Construction as shown on Standard Drawing No. 02221-
iAwp\woodct.wpd Page 4 of 8
1. In no case shall trench walls above the 5 foot level be slopped steeper than one
foot rise per one foot horizontal (1: 1), except for rock excavation.
D. TRENCH DIMENSIONS. Trench dimensions shall be as specified below.
(1) Width. The width of the trench shall be such to provide adequate working
room for men to install and join the pipe in the specified manner. The width of that
portion of the trench ... (b) from the bottom of the trench to a maximum of 5 feet
above the bottom of the trench shall for Type 1 Trench Excavation, shall be as
follows:
a) A minimum of 3'-6" for pipe sizes 12 inches and under.
b) A minimum of 2'-0" plus the outside diameter for pipe sizes
greater than 12 inches or a greater minimum width as specified
by the pipe manufacturer.
c) A maximum width as specified in the Special Provisions.
Section 02221, 05, C, (2) reads as follows:
Type A. Trench Backfill. Materials used for backfill shall be carefully deposited in
layers as specified above, wetted to within 3% of optimum moisture content, and
compacted to at least 95 percent of maximum dry density, as determined by AASHTO
T-99 or, for material which does exhibit a typical well-defined moisture -density
curve, 70 percent relative density as determined by ASTM D4253 and D4254.
Standard Drawing No. 02221-1, Montana Public Works Standards and the Sections quoted
above from the Standards describe the work to be performed in trench excavation Type 1,
with Type A Trench Backfill. Method of payment for the work is set forth in Section 3.16.1
and Section 3.16.4. It is acceptable industry standard to measure the work to be performed
by determining the dimensions of the trench and calculating the backfill required based upon
the placement of appropriate material back in the ditch. Nothing contained in the
representations of TD&H or NuPac indicate to me, that any other method of payment was
appropriate. A contractor should not be compensated for over excavation resulting in an
increase in the amount of backfill required, when the over excavation was occasioned for
the convenience of the contractor.
The monetary difference between the amount claimed by NuPac and the amount
*ecommended for payment by TD&H amounts to $9,265.00. Based upon the contract
i:\wp\woodct.wpd Page 5 of 8
language, I would respectfully decline to recommend a change order on the NuPac claim.
4. Schedule II, Bid Item 11, Cast Iron Fittings In Place
NuPac has requested a change order for 2165 # of cast iron fittings in place at $3.00 per
pound.. TD&H recommended payment for 2010--41. According to my notes it was agreed
NuPac's claim was well taken. The difference of 155# amounts to $465.00. I recommend
a change order based upon the NuPac claim.
5. Schedule II, Bid Item 12, Type II Pipe Bedding In Place
NuPac claims a pay quantity of 76 CY of Type II Pipe Bedding which is according to the
Montana Public Works Standards used in to replace soft, spongy or otherwise unsuitable
material in the trench bottom. NuPac indicates that it encountered groundwater in the trench
because the existing sanitary sewer was set up as a "french drain". I am not sure that the
NuPac can be held responsible for site conditions which were not at all observable upon
inspection or anticipated. Over excavation may have been necessary because of the infusion
of ground water from the existing sewer. TD&H has recommended payment for 18 CY of
material. The difference in money amounts to $1,044.00. I would recommend a change
)rder to NuPac based unforseen circumstances.
Caveat: If NuPac knew or should have known, with the exercise of reasonable diligence, of
the groundwater problem, there is potentially a defense to the claim. This would involve,
however, require an involved fact-finding process.
6. Schedule II, Bid Item 13, Imported Backfill, Sewer
NuPac has requested a change order for placement of 5550 CY of imported backfill
involved the sewer excavation on the Woodland Court project. TD& H has recommended
payment for 3074 CY. The situation here is very similar to the situation discussed in 3
above. Additionally, Construction Specifications, General Requirements, Section
01010, Measurement and Payment, ¶ 3.4.4.1, states as follows:
3.4.4 Excavation.
3.4.4.1 Trench Excavation and Backfdl for Sanitary Sewers, Service Lines and Storm Drains.
Trench excavation and backfill shall be measured by the cubic yard of excavated material in its
-riginal for and condition prior to removal. The volume of excavation and backfill shall be
iAwp\woodct.wpd Page 6 of 8
t
computed in the following manner:
The length of trench shall be determined by measuring along the centerline of the
pipe from the face of the manhole through all manholes to the end of the pipe being
installed. Three feet will be added to the trench length at each service lines. The
width of intersecting trenches will be subtracted if that width was previously included
in trench excavation quantities.
2. The depth of the excavation shall be determined by measuring from the ground or
payment surface down to the flowing of the pipe. Measurement to the flowline of the
pipe shall be increased by 0.4 feet to allow for bedding material and pipe wall
thickness. All measurements shall be to the nearest 0.1 feet.
3. The width of the trench shall be considered to be as shown on Construction Standard
No. 02201-3 (Does not exist) for Type 1 Excavation or 3.50 feet for Type 2
excavation for the full depth of the trench regardless of the actual trench width or
shape actually constructed.
4. Excavation for manholes shall be considered to be 25 S.F. times the depth from the
top of the manholes to a point 0.4 below the manhole base.
The measured numbered of cubic yards of trench excavation for sanitary sewers,
service lines, and storm drains will be paid at the contract unit price per cubic yard
for "Excavation Type 2 with Type A Backfill" or Type 1 Excavation with Type B
Backfill" as shown on the proposal form and on the drawings. The contract bid
price shall include the cost of all excavating, select backfill, backfill, compaction
shoring, bracing, dewatering, asphalt and concrete removal, disposal of
unusable materials, asphalt, and concrete and all other items incidental or
necessary to the complete work except as otherwise provided in these
specifications.
One problem with the above, as noted is that Construction Standard No. 02201-3 does not
exist. A scrivener's error will not create an ambiguity in a contract. Additionally, it should
be noted that Section 02221, Montana Public Works Standards contains the necessary
language describing the work to be done, and references Construction Standard No. 02221-
1. Any ambiguity created by the typo -error is cleared up in Section 02221. Contracts shall
generally be construed as a whole so as to not create an ambiguity.
NuPac requested change order amounts to 2476 CY @ $13.00 per yard for a total of
$32,188.00. Based upon the foregoing, I believe TD&H's analysis to be correct and
recommend that the Council deny the change order under Schedule 11, Bid Item 13.
iAwp\woodct.wpd Page 7 of 8
7. Schedule III, Bid Item 1, Subbase Course Material in Place
NuPac is claiming a change order for placement of 1807 CY of subbase course material
placed upon the site as subbase course material under the Street Paving Improvement portion
of the contract. TD&H recommends that the City deny the claim because the work was
under the Schedule awarded to A-1. A couple of questions present themselves on this issue.
Was NuPac directed by TD&H to deliver the material? Was the material subbase course
material or borrow? Why was there not a corresponding reduction in A-1 contract for the
material? TD&H states that the material placed by NuPac was imported borrow for which
NuPac was compensated under Schedule I, Bid Item 2. Because the resolution of this issue
involves a - factual dispute, not subject to either legal or engineering resolution, I must
respectfully decline to recommend payment for this change order in any amount. The
disputed amount involves $22,134.00. _
In total I am recommending NuPac receive a change order for Schedule I, Bid Item 2,
(Imported Borrow), Schedule I, Bid Item 2, (Excavation Type 1 w/ Type A Backfill,
Schedule II, Bid Item 11, (Cast Iron Fittings), and Schedule II, Bid Item 12,( Type II
Pipe Bedding In Place) totaling $5,614.00.
In reviewing the contract documents and related documentation within my possession for
this memo, I have reason to question some of drafting techniques and construction
administration practices employed by TD&H. While on most points, I have agreed with
TD&H's assessment, I cannot say that the practice of letting change orders go until the
contract has been completed and then having what appears to be a catch-up change order is
an acceptable practice. Further it appears that day-to-day monitoring of the construction
process seems to have been weak because the City was not informed of problems in a timely
manner.
i:\wp\woodct.wpd Page 8 of 8