S.J. Amoroso Construction - Change Order No. 85City of Gilroy
Engineering Division
7351 Rosanna St., Gilroy, CA 95020
Phone (408) 846 -0450; Fax (408) 846 -0429
CHANGE ORDER NO. 085
To contract for: New Gilroy Police Facility Project No. 03 -CDD -114
Contractor: S.J. Amoroso Construction Contract Date: 8/16/2004
This order shall become effective when it has been signed by the City Administrator, City Engineer,
Project Engineer, and Contractor. All copies forwarded to Contractor for signature shall be returned to
The City of Gilroy properly filled out. Upon acceptance by the City, the Contractor's copy will be returned
to him as his authority to proceed with the work.
RECITALS
This Change Order and Release of Claims is made with reference to the following
facts:
A. On or about August 16, 2004, Gilroy and Contractor entered into a written
contract entitled AGREEMENT for City Project No. 03 -CDD -114, New Gilroy Police Facility
( "Contract ") pursuant to which the Contractor agreed to construct the new policy facility as more
fully described in the Contract ( "Project ").
B. During the course of the Project, certain disputes and disagreements
arose between Gilroy and Contractor with respect to amounts claimed by Contractor for
extra work, delay, disruption, loss of efficiency, and additional costs and expenses
Contractor claims to have because of errors, omissions and conflicts in the plans and
specifications for the Project in connection with (a) interior damage to the Project caused
by water intrusion, the resultant consequential damage, and the repair and remediation
thereof, (b) modifications to the plans and specifications for the Project, (c) errors and
omissions in the plans and specifications for the Project, (d) roof pads and curbs for the
HVAC units, (e) roof deck inserts and hangers, (f) jail core foundation, and (g) pilaster
repairs.
C. The Contractor also asserted that its subcontractors had or have similar
claims and contentions. Gilroy denied any responsibility for the interior damage to the
Project caused by water intrusion, the resultant consequential damage, and the repair and
remediation thereof, and otherwise disagreed with the amounts claimed by Contractor.
Contractor withdrew that part of its claims and has not received any payment from Gilroy for
the interior damage to the Project caused by water intrusion, the resultant consequential
damage, and or the repair and remediation thereof.
D. Gilroy and Contractor wish to avoid the expense of litigation or arbitration
and therefore agree as follows:
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AGREEMENT
1. Incorporation of Recitals. Paragraphs A through D of the Recitals is
incorporated as though fully set forth herein.
2. Terms of Settlement.
(a) Payment by Gilroy. In exchange for the promises, conditions
and covenants undertaken by Contractor in this Change Order, the City of Gilroy shall, not
later than March 16, 2007, pay Contractor the sum of $1,850,000.00 for a total time
extension of 387 calendar days, of which 129 days are compensable and 258 days are
non - compensable as follows:
(i) Item 79A: Contractor to provide for all changes to roof deck
inserts (hangers /straps /wires) and all welded materials for support of piping, ductwork,
and lighting in accordance with response to RFI -600 series. All work performed under
force account in accordance with Field Directive No. 32 (CPE 217A -R3, 217B, 217C,
217D);
(ii) Item 79B: Delay cost due to roof deck insert, hanger,
support changes resulting from responses to RFI -600 series and Field Directive No. 32;
(iii) Item 79C: Delay cost due to mechanical equipment
pad /curb design changes at roof resulting from response to RFI -555 and drawing details
issued under Field Directive No. 25;
(iv) Item 79D: Delay cost due to built -up roofing conflicts and
design changes associated with responses to RFI -399, 549, 605, 624, 638, 639, and
Field Directive No. 62;
(v) Item 79E: Delay cost resulting from prosecution of change
order work and Field Directive work issued from November 2006 to January 2007
impacting completion; and,
(vi) Item 79F: The Contract completion date is hereby revised
from February 21, 2006 to March 15, 2007 for a total time extension of 387 calendar
days (129 compensable, 258 non- compensable). This time extension encompasses any
and all issues known or unknown through January 5, 2007. If Contractor does not
complete the Project by March 15, 2007, liquidated damages will be assessed in
accordance with the Contract (absent any delays caused by Gilroy based on events that
occur after January 5"', 2007).
(b) Payment of Contract Balance, Retention, and Outstanding
Change Orders. Nothing in this Change Order is intended to or does relieve Gilroy from its
obligations to pay (i) the unpaid Contract balance of $219,107.00; or (ii) Contract retention
in the sum of $2,441,210.00. Further, nothing in this Change Order is intended to or does
relieve Gilroy from its obligations to pay for only those change order requests previously
submitted and identified in Exhibit A, but only in an amount to be mutually agreed upon or
as determined through arbitration, or for work performed after January 5, 2007.
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M Full Compensation. By signing this Change Order, Contractor
acknowledges and agrees that the adjustments to cost and time contained herein are in
full satisfaction and accord, and are accepted as payment in full, for any and all costs
and expenses or claims known or unknown, including but not limited to labor, materials,
overhead and profit, delay, disruption, loss of efficiency and all other direct and /or
indirect costs or expenses associated with Items 79A through 79F above, any of the
matters described in Recitals A through C above, and any other facts or events which
have occurred up to January 5, 2007, whether known or unknown, except for the
payment of (i) the unpaid Contract balance of $219,107.00; (ii) Contract retention in the
sum of $2,441,210.00; (iii) payment for only those change order requests previously
submitted and identified in Exhibit A, although only with respect to this paragraph 2 (c)
(iii) the amount will be mutually agreed upon or determined through arbitration or trial.
(d) No Assumption of Design Liability. By signing this Change
Order, Contractor does not assume responsibility of errors and omissions in the plans
and specifications for the Project.
3. Release By Contractor. Except for the obligations of the parties under
this Change Order, Contractor, on behalf of itself, its representatives, insurers, attorneys,
successors, predecessors, affiliates, assignees, assignors, joint ventures, partners, parents
or affiliated entities, subsidiaries, agents, employees, officers, directors, shareholders,
owners or alter egos, subcontractors, suppliers, or sureties (collectively referred to as the
"Contractor Related Parties "), hereby releases Gilroy and its representatives, consultants,
insurers, attorneys, successors, predecessors, affiliates, assignees, assignors, joint
ventures, partners, parents or affiliated entities, subsidiaries, agents, employees,
officers, directors, shareholders, owners or alter egos (collectively referred to as the
"Gilroy Related Parties "), from any and all claims, liens, demands, obligations, actions,
causes of action, damages, liabilities, losses, costs or expenses, of any nature whatsoever,
known or unknown, past, present or future, ascertained or unascertained, suspected or
unsuspected, existing or claimed to exist, which Contractor now has or may hereafter have
against Gilroy or the Gilroy Related Parties, for compensation or remuneration of any type
or nature for any labor, materials, overhead and profit, delay, disruption, loss of
efficiency, time impacts or interference with its work associated with Items 79A through
79F above, any of the matters described in Recitals A through C above, and any other
cause, source, fact or event which occurred up to January 5, 2007 including errors and
omissions in the plans and specifications for the Project but by doing so, Contractor
does not assume responsibility of errors and omissions in such plans and specifications.
Provided, however, that nothing in this Change Order is intended to relieve Gilroy from its
obligation to pay Contractor (i) the unpaid Contract balance of $219,107.00; (ii) Contract
retention in the sum of $2,441,210.00; (iii) payment for only those change order requests
previously submitted and identified in Exhibit A, although with respect (iii) only in an amount
to be mutually agreed upon or as determined through arbitration or trial. Provided, further,
that this release does not extend to and does not include any claims, losses, expenses,
costs, obligations or liabilities Contractor or the Contractor Related Parties incur by reason
of Gilroy's future or subsequent breach or failure to perform any of its obligations,
covenants, or agreements contained in this Change Order. Provided, further, that if Gilroy
asserts a claim against the Contractor for defects in the labor or materials used on the
Project, then this release shall not prevent the Contractor from asserting whatever
defenses, set offs or rights of indemnity, if any, the Contractor would have had based on
actions or omissions of the Gilroy Related Parties, but only to the extent the defense, set
off or indemnity right asserted is /are based on the specific claim for defective labor or
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materials being asserted by Gilroy. By way of hypothetical example, if Gilroy were to
claim that the windows leaked, then the Contractor would be entitled to assert that the
Contractor installed the windows specified by the architect and /or followed the flashing
details specified by the architect, but could not assert a defense or set off based on an
issue related to the parking lot.
4. Release By Gilroy. Except for the obligations of the parties under this
Change Order, Gilroy, on behalf of itself and the Gilroy Related Parties, hereby releases
Contractor and the Contractor Related Parties from all claims, demands, cause of action,
losses, liabilities or damages known or unknown, past, present or future, ascertained or
unascertained, suspected or unsuspected, existing or claimed to exist, which Gilroy now
has or may hereafter have against Contractor or the Contractor Related Parties for (a)
false claims, loss of use, liquidated damages, delays, increased administrative,
engineering, employee or management costs or any similar costs, losses or liabilities in
any way associated with the timeliness of the work associated with Items 79A through
79F, which occurred up to January 5, 2007, and /or (b) costs, administrative, engineering,
employee or management or similar costs Gilroy has incurred arising out of the
performance of Contractor's work up through January 5, 2007; Provided, however, that
this subparagraph (b) is not intended to include, and does not include (i) damages Gilroy
has incurred or incurs to repair or correct damaged or defective labor or materials,
and /or (ii) costs, or expenses Gilroy incurs to repair or correct damaged or defective
labor or materials. Provided further, that the parties intend this release to relate only to
the timeliness of Contractor's performance on the Project and /or out of pocket expenses,
increased administrative, engineering, employee or management costs or any similar
costs or expenses Gilroy has incurred arising out of the performance of Contractor's
work up through January 5, 2007 and then only to the extent provided herein, and to
specifically exclude any other rights, claims, demands, causes of action, or damages
Gilroy now has or may have in the future, whether based in contract, tort, or otherwise,
including but not limited to (a) the labor or materials used in the construction of the
Project, (b) the quality of, or defects in, the construction of the Project, (c) any indemnity
obligation owed by Contractor to Gilroy with respect to the Project, or (d) any obligations
Contractor may have under the Contract, except as provided above. Provided, further,
that this release does not extend to and does not include any defenses Gilroy may have,
or claims, losses, expenses, costs, obligations or liabilities Gilroy or the Gilroy Related
Parties incur by reason of Contractor's future or subsequent breach or failure to perform
any of their obligations, covenants, or agreements contained in this Change Order.
5. Claims Not Released. In addition to the exceptions to the releases
stated in paragraphs 2 (b), 3 and 4 above, the following claims are not released by this
Change Order and Release:
(a) No party hereto releases, acquits or discharges any claims for
indemnity (contractual, implied, or otherwise), insurance coverage or contribution related
to any third party claims for personal injury, death, loss of use arising out of a covered
property loss, or property damage relating to the Project.
6. Waiver of Future Claims. Subject to paragraph 2 (b), this Change
Order is a full and final release by Contractor and Gilroy as provided in Paragraphs 3
and 4 above. Contractor and Gilroy for themselves and their respective related parties,
expressly waive any right or claim of right they may have under the provisions of
California Civil Code section 1542, which they understand provides as follows:
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A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if
known by him or her must have materially affected his
settlement with the debtor.
7. Indemnification. Contractor will defend, indemnify and hold
harmless Gilroy and the Gilroy Related Parties from any and all claims, liens, stop
notices, demands, obligations, actions, causes of actions, damages, liabilities, losses,
cost or expenses, of any nature whatsoever, for labor, materials, overhead and profit,
delay, disruption, loss of efficiency and any and all other direct and /or indirect costs or
expenses associated with the matters described in Recitals A through C above, and /or
Items 79A through 79F, and /or any other cause, source, fact or event which occurred up
to January 5, 2007, whether known or unknown, which are now asserted or which may
be asserted in the future, in whatever manner and in whatever forum, by Contractor, its
owners, shareholders, alter egos, affiliates, assignees, employees, agents,
subcontractors or suppliers, or by any other subcontractor (of whatever tier), supplier,
material men, company or person.
8. Fees and Costs. Gilroy and Contractor agree to be responsible for their
own attorneys' fees and costs incurred with respect to the released matters. Provided,
however, that if any party to this Change Order commences any proceeding, at law or in
equity, against the other party, which proceeding relates to the enforcement of this Change
Order or the performance of their respective duties and obligations under this Change
Order, the non - prevailing party in such proceeding shall pay to the prevailing party the
prevailing party's reasonable attorneys' fees and other legal fees, expert and consultant
fees and other costs and expenses incurred in connection with such proceeding and those
incurred in connection with the enforcement of any resulting judgment or order. Such post
judgment right to receive attorneys' fees and other legal fees, expert and consultant fees
and other costs and expenses shall be specifically provided in such judgment or order.
9. Representations and Warranties. As an integral and material part of this
Change Order (a) the parties represent and warrant that they are the sole owners of the
Released Matters, that they have not sold, transferred, conveyed, assigned or
hypothecated any of the Released Matters and that this Change Order as so executed
constitutes a legal, valid and binding contractual obligation enforceable against Contractor
and the City of Gilroy and (b) the individuals signing this Change Order and Release
individually represent and warrant that they each have the ability to bind their respective
employer (Contractor and the City of Gilroy) to the terms of this Change Order. The City of
Gilroy also represents and warrants that it is not aware of any defects in the labor or
materials provided by Contractor (or its subcontractors) on the Project that have not already
been disclosed to Contractor.
10. Understanding of Change Order. Each party hereto affirms and
acknowledges that each has both read this Change Order and all attachments hereto and
thereto (together the "Documents ") and has had an opportunity to have the Documents fully
explained by counsel of choice, that each fully understands and appreciates the words and
terms used in the Documents and their effect, that this is a full and final compromise,
release and settlement of the Released Matters, and that each signs this Change Order of
his or her own free will. Each party, or his or her respective attorneys, have carefully and
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fully reviewed and revised, or have had an opportunity to revise, the Documents.
Accordingly, the normal rule of construction that any ambiguities are to be resolved against
the drafting party shall not be utilized in the interpretation of any of the Documents.
11. Execution of All Documents. The parties to this Change Order agree to
execute any and all documents necessary to effectuate the terms, conditions, purposes
and aims of this Change Order.
12. Conflict/Amendment. Except as modified by this Change Order, the
terms of the Contract shall remain in full force and effect. In the event of any conflict
between this Change Order and the Contract, this Change Order shall govern and control
the intent of the parties. This Change Order may be amended, or any right or condition
hereunder waived, only by a written instrument signed by the party against whom such an
amendment or waiver is sought to be enforced.
13. Counterpart Signatures. This Change Order may be executed in any
number of counterparts, with the same effect as if all parties have signed the same
document, and each such executed counterpart shall be deemed to be an original
instrument. All such executed counterparts together shall constitute one and the same
instrument. True and correct copies, facsimile signatures or electronic copies may be used
in lieu of the original.
14. Benefit of Agreement. Each and every term of this Change Order shall
be binding upon and inure to the benefit of Gilroy and Contractor, their successors and
assigns and shall bind and inure to the benefit of those persons and entities described in
Paragraph 3 above, which persons are intended to be beneficiaries of this Change Order.
15. No Admission. This Change Order is the settlement of a disputed claim,
and is not an admission of liability by any party hereto.
I (We) agree to make the above change
subject to the terms of this Change Order
for the NET INCREASE of $1,850,000
Original Contract Price
Previous Change Orders to Date
Total to Date
This Change Order
Total Change Orders to Date
Revised Contract Price
PM
Cost Percent Initial
$22,377,000.00
$2,038,854.00 9.1% �f�f
$24,415,854.00
$1,850,000.00*
$3,888,854.00 17.4%
$26,265,854.00
*Requires emergency authorization if greater than 25 %.
Date:
RECOMMENDED BY:
Construction Manager Date
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ACCEPTED BY:
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CITY OF GILROY
NEW GILROY POLICE FACILITY
CHANGE ORDER NO. 085
EXHIBIT "A"
REQUEST FOR QUOTE —137
FIELD MEMO — 481
FIELD DIRECTIVE — 25 (CPE #196.1)
FIELD DIRECTIVE — 73R (CPE #264)
FIELD DIRECTIVE — 82 (CPE #309)
FIELD DIRECTIVE —108 (CPE #354)
FIELD DIRECTIVE —150 (CPE#414)
FIELD DIRECTIVE —159 (CPE#423)
FIELD DIRECTIVE —173 (CPE#440)
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SJA CPE #177.1
SJA CPE #220.1
SJA CPE #246R
SJA CPE #299
SJA CPE #317.1
SJA CPE #350
SJA CPE #361A &B
SJA CPE #366
SJA CPE#415
SJA CPE#427
SJA CPE#470
SJA CPE#470.1
SJA CPE#486
SJA CPE #317C
SJA CPE #364
SJA CPE #381 R
SJA CPE#451
SJA CPE #479
GILROY POLICE FACILITY
Breakdown of Contract Change Order No. 85
12/4/08
Item 79D — Built -up Roofing Conflicts
• Includes RFI- 399, 549, 605, 624, 638, 639 and Field Directive No. 62.
• Contractor submitted TIA dated 7/11/06 requesting 100CD compensable time
extension (100CD at $9,000 /day = $900,000).
Contract Specifications:
• Section 07535; Modified Bitumen Membrane Roofing (Addendum #1).
Contract Drawings:
• Detail 4 /A10.10; Parapet Detail.
• Detail 5/A10.10; Cricket Detail.
• Detail 6/A10.10; Roof overflow drain installation at steel deck.
• Detail 7/A10.10; Pipe Roof Vent: Notes galvanized steel pipe roof jack, typ.
• Detail 8/M -8.5; Pipe Mounting Detail, and 1/M -8.6; Duct on Roof Support Detail:
These details do not show or note any flashing for the tube steel supports
penetrating the roofing, nor is there any reference to Section 07535 or other
details.
• Detail 10/E7.1; Conduit Roof Penetration, and 8/E7.3; WP Recept. Mounted on
Roof: These details do not show or note any flashing or how the roof penetrations
are to be sealed, nor is there any reference to Section 07535.
Summary of Events:
3/9/05: SJA submits RFI -399; Built -up Roofing Flashing: Mechanical drawings show
details for tube steel supports penetrating built -up roofing but with no flashing around the
vertical steel. WKW proposes to modify details by using round pipe in lieu of tube steel,
and apply roof jack details to vertical pipe supports. Architect's response instructs the
Contractor not to modify the drawing details, to reference Section 07535 for TS roof
penetrations and detail l l /A10.11, and not to deviate from specifications and detail.
Thereafter, Contractor submits RFI- 399.1: Siplast rep pointed out problem with specific
application of Parapro -123 as noted in detail ll /A10.11, stating that the material at the
base of the TS is a rosin material which is not compatible with a solvent based adhesive
such as that of the Siplast cold applied adhesive. Architect replies that according to
Siplast there is no problem with the application of the Parapro -123, and reiterates not to
deviate from plans and specifications.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page I of 6
8/3/05: SJA submits RFI -549; Inquires whether alternate material to the 16 gauge
galvanized sheet metal shown on the roof drain detail (6/A10.10) can be used. Architect
responds that lead may be substituted in lieu of the galvanized sheet metal. (Note:
galvanized sheet metal was installed per contract detail 61AI0.10).
9/22/05: SJA submits RFI -605; Parapet Cap: Requests clarification of parapet cap detail
4 /A10.10; detail shows 5" on inside of wall, on west 'end at D.5/11 and E.5/11. States the
parapet is below the roof line, and parapet cap as detailed will not work, suggests raising
height of parapet wall. Architect responds that contractor should raise parapet on
particular gridlines as well as raise 45 degree parapet at main entry tower by 12 ", per
attached partial elevation drawing clarification.
In review of RFI -605 response, Lombardo advises SJA that the walls in reference are
complete, and requests a detail showing the correct way to extend the walls. On 10/3/05
Architect provides detail sketch for wall extension (RFI -605.1 response). On 10/12/05 a
revised detail sketch is transmitted to SJA (with Engineer stamp and Building Dept
approval).
11/3/05: SJA submits RFI -624; Roofing deviations: Alcal (roofing sub) points out
problems noted by Siplast (11/2/05 letter) regarding details 4, 5, and 7/A10.10; (1)
Lombardo installed gypsum sheathing per detail 4 and 5 /A10.10, roofer needs sheathing
replaced by either Densprime or plywood. (2) Installation of galvanized roof pipe jacks
per detail 7/A10.10 needs to be changed. Architect responds that the exterior gypsum
sheathing installed is acceptable as a substrate, and instructs Contractor to provide Siplast
Parapro -123 in lieu of galvanized roof jacks. Note: Siplast letter of 11.12105 to Alcal
clearly states that the paper faced gypsum sheathing is not a suitable substrate for
application of its Veral product.
11115105: SJA submits RFI- 624.1; Veral flashing membrane: Alcal inquires if can install
a Paradiene -20 membrane in cold adhesive and torch apply the Veral. Two weeks later on
100105 WLC responds stating that a meeting was held on 11/28/05 to discuss the
various roofing issues, and that Siplast will provide clarification which will be issued to
the Contractor. (Note - 1211105 note faxed to WLC on RFI response: Please provide
definitive response to SJA 's Request For Information).
11/22/05: SJA submits RFI -638; Unistrut /Roof Jack at Roof Conduits: Roofing inspector
rejected unistrut /roof jack at the roof conduits. Per Scott Electric the rejected details are
8/E7.3 and 10/E7.1. SJA states that any resolution to the as -built conditions will be a
deviation from these two contract details. On 11/30/05 WLC responds stating same
response as above to RFI- 624.1. (Note - 1211105 note faxed to WLC on RFI response:
Please get detail from Siplast as needed to respond to this RFI).
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 2 of 6
11/22/05: SJA submits RFI -639; Flashing Detail at Comers (Roof): Roofing inspector
wanted to see a flashing detail at corners where detail 12 /A10.11 terminates at 5 /A10.10.
Since this detail is not shown on contract plans, please provide. WLC responds on
11130105 stating that Siplast will provide clarification to this issue, which will be issued
to the Contractor. (Note - 1211105 note faxed to WLC on RFI response: This response
does not provide information to resolve the issue. Please get detail from Siplast as
needed to respond to SJA).
Note: WLC did not provide the above clarification until 12120105 issuing a sketch
of inside corner terminations for typical parapet /roof penthouse conditions
(resulting in additional work and cost).
11/22/05: Weekly Meeting No. 56; RFI's: Roofing inspector informed SJA that the
installation of the overflow drains (detail 6/A10.10) was suspect because the detail was
incorrect (not in compliance with Siplast standard details and its Specification 20309)..
Cannot nail to the deck, and the detail cannot be done with the system (Siplast) they have.
Siplast wants lead flashing at the drains, and WLC had answered that this was acceptable.
SJA stated that the RFI response was issued after the sheetmetal flashing was installed.
12/2/05: WLC issues Memo No. 3 to Harris; forwards Siplast letter of 12/2/05 addressing
the roofing issues raised by the inspector and RFI Nos. 624.1 and 638. Siplast letter
reiterates that the paper -faced gypsum sheetrock at the backside of the parapet walls does
not provide an acceptable substrate for the torch application of the Veral Aluminum
flashing system (and provides recommended installation procedures). Additionally,
Siplast recommends the use of split lead field- soldered jacks for the pipe conduit
penetrations in lieu of the galvanized pipe jacks, and that the unistruts at the electrical
roof conduits be replaced with round steel pipe penetrations that can be flashed using a
lead jack.
Note: The recommendations by Siplast as issued to WLC are almost a month after
WLC issued conflicting information in its response to the Contractor's RFI -624.
These recommendations resulted in both additional cost and time delaying
completion of roofing.
12/8/05: Harris issues Field Directive No. 62; Roofing: Directs SJA to provide roofing
system per contract documents as amended by WLC response to RFI -624.1 and 638
including revision to parapet wall waterproofing under T &M basis.
12/9/05: SJA letter to Harris; Sequence of Events/Built-up Roofing Delay: Outlines
sequence of events associated with delays to roofing operations and subsequent inability
to waterproof the building.
This document is protected from disclosure and/or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 3 of 6
12/13/05: Weekly Meeting No. 59; Look Ahead Schedule: One delay area is the built -up
roofing. The roof drain issue and the failed fasteners are holding up Alcal's work.
Another item is the unistrut. SJA cannot proceed without a detail from Frank. Frank will
provide a detail.
12/20/05: Harris Memo to Designer No. 49: "Frank, the roofing issues that have been
open for the last 4 weeks are still not resolved. I have provided you with copies of all
correspondence on the issues from SJA, Alcal, and Siplast. RFI -639 was transmitted to
you on 11/22/05 and has still not been addressed and /or resolved. There is also the issue
of how to treat the electrical conduit and unistrut penetrating the roof, a detail was to be
provided by WLC. Additionally, the issue of the failed fasteners requires input /direction
from Siplast. If a shorter Siplast fastener is to be used for replacement of the failed
fasteners, please provide the type /product number of the fastener so that this information
can be issued to the Contractor. There is also a concern for ponding water at the roof
where a mechanical duct drop is located at Line E.5 and 2 (see A -4.1). These unresolved
roofing issues are delaying the project, and may have other consequences to work
elements installed now being affected by unfinished roofing operations. Please expedite
responses and direction ASAP. Thank you ".
12/20/05: Email from Scott Gilpatric to Larry Wolff; Roof Issues /Open Action Items:
"Larry, I am providing you with a copy of MTD -49 issued this morning to Frank. These
roofing issues were again discussed with Frank during and after today's weekly progress
meeting. I will also fax to Frank an "Open Issues" log provided by SJA at the meeting
this morning. Some of the issues on the log are dragging on without input or resolution
provided by WLC, and some are items brought up by SJA for input by WLC ahead of
issuing more RFI requests. One concern of mine is that when Frank makes site visits, and
issues are discussed, the issues are not responded to timely, and sometimes forgotten
altogether by Frank until we call and remind him of things we are waiting for., This
situation is only going to lead to more project delays that I will not be able to avert. This
has to improve, and I want to suggest that Frank be here at least once a week (maybe
more) to deal with the project issues for at least the next two months. Perhaps we need to
discuss this (you, me, Bill L., Bill H.) and see what can be done to improve the situation
and help the project ".
12/20/05: WLC response to RFI -639; provides sketch of inside corner terminations for
typical parapet /roof penthouse conditions (RFI response issued to SJA on 12/22/05).
12/20/05: WLC issues Memo No. 33 to Harris; Siplast Roofing Replacement Fastener:
Transmits "OlyLok" roof fastener product and cut sheet to replace the failed fasteners at
the roof.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 4 of 6
12/21/05: Harris Field Memo No. 303 to SJA; Roofing Issues: Clarification of open
roofing issues in order to resume roofing operations, and clarification of additional cost
items addressed in Field Directive No. 47 and 62. WLC response to RFI -639 attached.
Advised SJA that the drain installation per detail 6 /A10.10 is not a concern as conveyed
by Siplast. WLC Memo No. 33 attached for new fastener to replace failed fasteners at
roof. Field Memo states that SJA to now resume roofing operations (weather permitting).
1/4/06: SJA letter to Harris; Protection of Work: SJA takes exception to Non - compliance
Notice No. 6 issued regarding protection of work in accordance with 00700 -4.10. SJA
asserts that damage is directly caused by post bid changes and outlines events attributable
to roofing delays and resultant damage.
Delay Asserted by SJA:
On 7/11/06 the Contractor submitted a TIA (Time Impact Analysis) associated with its
CPE #247 indicating a delay to built -up roofing resulting in a 100CD delay to
completion. SJA identified a delay period of 77 workdays between 1111105 (start of
roofing) and 2/24/06 (completion).
SJA conveyed that Contractors were not in the position to change any contract details
without the Design Team's written instructions, and cited the following documents
attributable to roofing delays incurred; RFI -399 (tube steel flashing), RFI -549 (roof
drains), RFI -605 (raise parapet height), RFI -624 (galvanized roof jacks), RFI -638
(unistrut at roof conduits), and RFI -639 (added flashing at parapet). SJA further stated
that some RFI responses had been changed and revised multiple times. This TIA was
rejected due to non - compliance with time submission requirements, and concurrency of
time quantification with SJA's CPE #217 (Roof Deck Inserts/Hangers TIA).
Conclusion:
As a result of the conflicts between contract drawing details and Siplast roofing system
standard details, untimely and incomplete RFI responses by the Architect, changes to
waterproofing provisions and roofing details; the prosecution and completion of built -up
roofing was delayed.
The architect incorrectly detailed the specified Siplast system including pipe penetrations,
steel tube penetrations, unistrut penetrations and drain systems in the steel roof deck. In
addition, the parapet wall was specified as being clad with gypsum sheathing which is an
improper substrate for the Siplast system. All of the above resulted in design changes
affecting roofing and work preceding roofing operations. The architect did not clearly
address the manufacturer's requirements in the contract details for compatibility and
function of the Siplast roofing system.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 5 of 6
This was also the first time WLC had specified the Siplast system, and was clearly
unfamiliar with specific requirements and application. This was manifest by the BFI's as
submitted by the Contractor, and from the letters issued by Siplast addressing the design
issues. Consequently, the project was delayed and the City incurred delay cost by the
Contractor.
Delay and Cost Exposure:
There is no question that prosecution of roofing operations was protracted, and
completion of built -up roofing delayed as a result of design conflicts (contract drawing
details vs. Siplast details), incompatible components with Siplast system (galvanized roof
jacks and penetrations), design changes issued (roof parapet construction and substrate
materials), and lack of timely response /resolution to the roofing issues by WLC.
The 100CD delay asserted by the Contractor was denied due to concurrency of delay
period quantified for the roof deck inserts /hangers issue, and disagreement in
quantification of the overall delay period. From the date that the roofing sub pulled off
the job (11/21/05) due to a lack of response to design issues, to the date roofing
operations resumed (1/6/06), represents a delay period of 47CD. Once the roofing sub
resumed the work, it took another 49CD to complete on 2/24/06 (an overall time period
of 96CD).
In review of the 49CD period to complete the roofing, it is not logical to recognize the
total time as compensable delay considering weather delays /impacts and time expended
to complete the contract portion of roofing work. However, some amount of additional
time was warranted for the Contractor in performance of the changes associated with the
RFI responses and Siplast recommendations issued by the Architect.
In subsequent negotiations with the Contractor, a total delay period of 72CD was agreed
upon. This was based on the 47CD delay period from 11/25/05 to 1/6/06, and 25CD of
the 49CD period from 1/7/06 to 2/24/06 in recognition of added time to perform the
design changes (47 + 25 = 72). Delay cost paid to the Contractor was a total of $648,000
(SJA cost at $3,959 /day and subs cost at $5,041 /day).
SJA Delay Settlement Cost Paid: $648,000 (72CD at $9,000 /day)
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 6 of 6
GILROY POLICE FACILITY
Breakdown of Contract Change Order No. 85
11/21/08 (revised 11/26/08)
Item 79A and B - Roof Deck Inserts /Hangers
• Lightweight Insulating Concrete vs. Lightweight Concrete at Roof Deck.
• Includes RFI 600 series and Field Directive 32.
• Contractor submitted direct cost of $334,151 (SJA CPE 217A through D), and
two TIA's; (1) dated 10/31/05 requesting 30CD compensable time extension for
delay to deck pour, and (2) dated 3/28/06 requesting 36CD compensable time
extension for impact to rough -in work (66CD at $9,000 /day = $594,000).
Contract Specifications:
• Section 03300 -1.1H, Cast in Place Concrete, includes provisions for lightweight
concrete floor fill on steel deck, but no mention of lightweight "insulating"
concrete at roof deck.
• The specifications also include Section 03523, Lightweight Insulating Concrete,
which includes provisions for "insulating concrete fill" over structural steel roof
deck, and Section 07535 -1.5, Modified Bitumen Membrane Roofing (Addendum
#1), which notes "deck — lightweight insulated concrete." Also under Section
07535 -1.3A, Related Sections; "Section Lightweight Aggregate Roof Decks" is
noted, but not included.
• Section 15140 -2.313, 3.2G & 3.313; Hangers, Supports & Anchors: Metal deck
inserts: B -Line Fig. B3019, steel adjustable metal deck ceiling bolt.
• Section 15300 -3.7B; Pipe Hangers, Clamps and Supports: Attach hangers to roof
or floor slabs with concrete inserts.
• Section 15890 -2.1C; Ductwork Material: Strap hanger shall be of 1 ", #18 gauge
galvanized steel attached to the bottom of ducts at 8' -0" OC and as required by
CMC and SMACNA guidelines.
• Basic Mechanical Requirements, Section 15010 -1.6, A -12; Installation of the
Work: "Install systems, materials, and equipment to conform to approved
submittal data...."
Contract Drawings:
• Sheet A0.7: Includes abbreviations "LW" for lightweight concrete and
"LWIC" for lightweight insulating concrete. These abbreviations are not
referenced in the construction details.
Sheet A -4.2; Upper Roof Plan: A 3 -ply built -up roofing system over
li twei t concrete deck per detail 1 /A10.10 is noted within the roof legend.
Sheet A10.10: Detail 1 and 7 note lightweight concrete (typ) over roofing.
Details 5, 10, 11, and 12 on the same sheet note "concrete filled over metal
decking" (typ). These all are roof deck details and lightweight insulated
concrete is not noted, nor is the "LWIC" abbreviation referenced.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page I of 7
• Sheet A- 10.11: Details 9 and 12 both note "lightweight concrete typ" over
roof decking.
• Sheet 51.1: Under Concrete, Note 7 calls out lightweight concrete with 3,000
psi, and Note 10 states concrete fill over steel deck shall be lightweight
concrete. No distinction between floor and roof deck requirements, nor any
notation or reference to lightweight insulated concrete at roof deck.
• Sheet 58.3: Detail 5 and 6 note liahtweialit concrete fill over (roof) deck
• Sheet M -8.1: Detail 6 shows a pipe support detail. This detail illustrates metal
framing between structural beams for attachment of hangers to support piping
below concrete decking. The detail makes no distinction between floor or roof
deck application, and denotes the following: "This detail applies to piping
inside the Mech. Room ".
• Sheet M -8.2: Detail 1A shows a typical hanger installation at roof deck, and
detail 2A also shows typical hanger installation at roof. Neither of these two
details would be compatible with the roofing system. Both types of supports
would protrude up through the lightweight insulating concrete. The lower
section cuts of Detail 1 and 2 (both noted as roof) also show the use of a 3/8"
Hilti expansion anchor to attach angle iron for support of hanger rods. These
anchors are not compatible with lightweight insulated concrete fill.
• Sheet M -83: Detail 5 shows two different deck attachment methods; one is to
attach hangers from angle iron between steel beams, and the other shows Hilti
expansion anchors directly into the concrete for support of hangers. The latter
method will not work with lightweight insulated concrete. Also, this
attachment method is noted for "CONCRETE ROOF/FLOOR".
Summary of Events:
Addendum #1 attempts to address ambiguity between lightweight concrete and
lightweight insulating concrete in response to a bid clarification request from Amoroso
(re: roof framing plan). The Architect's response was, "lightweigh t is to be used as
detailed at the entire roof except at diagonal hatching shown on drawing." This response
would lead a bidder to presume that the roof deck (minus the diagonal hatching areas) is
to be lightweight concrete, not lightweight insulating concrete. West Coast Contractors
also submitted a pre -bid RFI #3 regarding the ambiguity stating the following; "A10.10 &.
A10.11: Some details show insulation over the lightweight concrete. Other details show
the lightweight concrete over the insulation. Some show both over and under. Which is it
or do all apply?" The Architect's response was, "all roofing details apply and are part of
the lightweight insulating concrete and modified bitumen roofing systems..." How can
all of the details apply when there is conflict and inconsistency between the details?
11/22/04: Submittal per Section 15140, Hangers, Supports and Anchors, Tolco Fig. 109
deck insert that provides a design load for 3000 psi concrete is "acceptable to mechanical
— obtain structural engineers approval ". On 11/29/04, J.L. Hengstler Associates
(Mechanical Engineer), approve the Tolco Fig. 109 metal deck insert. On the
Supplemental Submittal 15140 from WKW Mechanical Contractors, reviewed by SJA on
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 2 of 7
1/3/05, a handwritten note instructs to obtain structural engineers approval, followed by
note that "WLC structural engineer has reviewed the details and accepted them."
Note: The Tolco insert as noted above was approved by the Design Engineers for
use in installation of fire protection piping, hydronic piping, cast iron waste, vent,
gas piping, and un- insulated piping long before the actual installation -of these
utilities.
9/2/05: Superior Fire Protection letter to SJA. States that the Tolco Fig. 109 complies
with the project specification section 15300 -3.7B, and was approved by JLH and
Associates without exception. Superior further states that the only drawing showing
typical roofing is sheet A10.10, which shows lightweight concrete, insulation panel, and
lightweight concrete.
9/15/05: RFI -600 inquires whether the roof deck is capable of supporting all the
infrastructure to be installed below; points out that the sheet metal roof deck is the only
support element that the trades have to hang from their material; structural roof
composition is of lightweight concrete that is honeycombed with insulation panels. On
9/19/05 WLC responds that the roof should be installed as called for in the contract, and
that the anchors meant for the installation in structural concrete cannot be used in the roof
assembly as it is not made up of structural concrete, but with lightweight insulating
concrete. Rick Legere directs the contractor to various details and specifications, none of
which note or identify lightweight insulating concrete. For example, Mr. Legere directs
the contractor's attention to Details 12 A and B and Detail 13 on Sheet A10.13, and
various details shown on Sheets M -8.2, 8.3 and 8.5. However, none of these details
identify or denote lightweight insulating concrete.
9/20/05: Harris & Associates issues Field Directive 32 directing that placement of the
roof deck insulating concrete will not be allowed until all supports are installed and
approved. Amoroso responds with 'a letter asserting that the inserts installed are as
approved, and requests that "with the job currently shut down on critical path," the issue
is responded to ASAP. WLC responds in turn with correspondence dated 9/21/05 in
which they enclose portions of the submittal which include instructions for attachment
devices.....again none of which reference lightweight insulating concrete.
9/23/05: Amoroso concludes that the lightweight insulated concrete should be restarted
the following week and offers to hire independent testing agency to perform pull tests on
the inserts and straps. SJA indicates that if they fail the pull test, SJA will abandon the
attachments and use DSA approved detail. SJA points out that the details "show more
than one method of the same application."
10/6/05: EWS letter to SJA referencing RFI -600 and Harris FD -32. References previous
response regarding light fixture ceiling seismic wires, they are not the primary support for
the light fixtures. Details on sheet E7.1 note that there are attachments to the structure
above with no detail or references to any other specification section. Points out that
WLC's 9/19/05 response refers to the Fixture Seismic supports in Section 16000
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only..
Page 3 of 7
paragraph 2.1A, 17 and 18. Section 17 and 18 refer strictly to the installation of conduit
supports and not seismic wires for ceiling light fixtures. The only reference to the
installation of lighting fixtures is addressed in section 3.1F; 1, 2 and 3. Paragraph 1 refers
to attachment of equipment firmly and securely in place. This attachment is completed at
the ceiling system grid. This is not a seismic attachment connection. No reference to
seismic installations. Paragraph 2 refers to continuous row connection. No reference to
seismic installation. Paragraph 3 refers to the approval of the fixture installation as it its
fire rating not seismic attachment. In summation, the electrical drawings and
specification provide neither details nor direction for the attachment of seismic wire to
the structure. EWS further asserts there is no direction in electrical specifications to refer
to any other specification for direction of installation methods.
10/20/05: WLC approves the use of different Tolco beam clamps.
11/2/05: WKW letter to SJA. With reference to RFI -600 and WLC letter of 9/19/05,
WKW contends that if under specification 15890 -1.3, Related Sections, if review of
Division #3 had been noted it would have realized that a different roofing method was
called for (different from the roofing method indicated on the drawings). Details 1a &
2a/M -8.2 and detail 5/M -8.3 will not work with the roofing method. WKW further states
that details which do not work with the application they reference should not be included
on the drawings. WKW points out that SMACNA HVAC Duct Construction Standards
Fig. 4 -3 attachment method was submitted and approved.
12/30/05: Harris issues Field Memo #313 discussing additional costs associated with
installation of the roof deck inserts and subsequent delay. While Harris does
acknowledge that the designers approved the submittals, asserts that general contractor
also responsible.
1/4/06: WKW letter to SJA referencing Harris FM -313 and RFI -600. Asserts that Harris
memo does not reference the changes required to the submitted and approved duct
hangers, which required revising. Reiterates position conveyed in its letter of 11/2/05.
WKW submitted and was returned, approved project specific shop drawings and
submittals. WKW points out that in review of other trades drawings and specifications, it
is evident that there are details included, like the mechanical that do not work with
lightweight insulating concrete. WKW further states that all trades apparently were
incorrectly on the same wrong page when it came to the roof mounted supports; this
speaks clearly on the construction drawings, specifications and submittal review process.
1/5/06: Facility Systems letter to WKW referencing Harris FM -313. States that
subcontractor followed specification section 15140, Part 2, subparagraph 2.3; Item B
Metal Deck Inserts clearly calls for B -Line Fig. B3019, Steel Adjustable Metal Deck
Ceiling Bolt. Further states that its approved submittal was Tolco Fig. 109 identical to
product specified.
1/11/06: FWS letter to SJA referencing Harris FM -313. FWS states that the question that
should be asked is if the mechanical engineer was made aware of the last minute change
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 4 of 7
to lightweight concrete on the roof. FWS asserts that it installed deck inserts per the
contract document and specifically specification section 15140 -2.3B. FWS points out the
following; 6/M8.1 is for mechanical room, 4/M8.1 is for insulated piping, this detail
would indicate to be used on mechanical piping and does not indicate lightweight
concrete; cast iron waste, vent, gas piping, and /or un- insulated piping per project
document are to be supported in metal deck per specification section 15140 -2.313. FWS
further asserts that the problem at hand is very similar to the below grade plumbing/grade
beam conflict, and appear to be a design issue not a construction issue.
Asserted Delay and Impact:
As a result of the removal of roof deck inserts /hangers, reinstallation work, and welding
of angle iron supports to structural steel, the pouring of the roof deck was delayed and
utility rough -in at the second floor was impacted. On 10/31/05 SJA submitted a TIA
(time impact analysis) indicating a delay to the critical roof deck pour resulting in a 30
calendar day delay to completion. On 3/28/06 SJA submitted another TIA indicating the
impact to utility rough -in resulting in a 36 calendar day delay to completion.
Conclusion:
In review. of the contract specifications, construction drawing details, and relative
correspondence presented above, the requirement to bid for and provide lightweight
insulating concrete at the roof deck was ambiguous and unclear. The responsibility for
accuracy and completeness of the plans and specifications is that of the Architect and /or
its design consultants. Based on the plans and specifications as identified, the Architect
failed to coordinate design elements between all disciplines to provide for lightweight
insulating concrete at the roof deck. It is evident that the subcontractors bid their utility
support installations based on the construction drawing details, appropriate specification
requirements, and installed the work in conformance with approved submittals.
The delay was compounded by the lack of clear direction from the Architect who issued
revised RFI responses and correspondence attempting to clarify design requirements by
its consultants. The drawings contain numerous varying details illustrating installation
methods for deck construction, some of which are not compatible with lightweight
insulating concrete, and none of which are cross - referenced or called out for use. When
the drawings show typical deck insert details and metal framing between structural steel
to support /hang utilities, any prudent contractor is going to bid the most cost effective
method (while meeting the specifications), which is exactly what occurred. The
Contractor has a right to rely on the design details shown, otherwise why include them?
It is quite likely that not all of the Architect's consultants were aware of the design
intention of lightweight insulating concrete at the roof deck as evidenced by incorrect
detail notations, and the fact that the deck inserts submitted by the subcontractors were
approved without exception by the designers.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 5 of 7
In summation, the Architect fell below the applicable standard of care and is responsible
for the costs associated with deck/hanger insert removal /reinstallation, and welding costs
for hanger supports as a result of the following: (1) the Architect failed to coordinate the
design element of lightweight insulating concrete in the bid documents, (2) incorrect and
conflicting drawing details relative to roof deck construction, and (3) by approval of
subcontractor submittals utilizing deck inserts as submitted without noting exception or
limitation.
Cost Summary /Overview:
SJA submitted direct cost for removal /replacement of roof deck inserts and addition of
angle iron supports welded to the structure totaling $334,151. This work was performed
under T &M basis, and all cost is documented in SJA CPE #217A -R3, 217B, 217C and
217D. The cost was negotiated down to $254,000 by deletion of unwarranted SJA cost
and excessive supports installed for MEP.
The asserted delay of 66CD compensable time extension was reduced to ±27 calendar
days due to concurrency and critical path analysis.
Cost associated with compensable delay is defined and /or established in the General
Conditions Section 00700 - 6.4.3.1 and 6.4.3.2. SJA submitted a breakdown of its indirect
field overhead cost (copy attached), which was reviewed and accepted. Indirect home
office overhead is calculated by the formula established under subsection 6.4.3.2. SJA
total delay cost is as follows:
Indirect Field Overhead: $2,560.88 (see SJA breakdown)
Home Office Overhead: $1,398.56 ($22,377,000 _ 480 x $0.03)
Total SJA Delay Cost: $3,959.44
During negotiation meetings with SJA, we were advised that the three major
subcontractors (WKW, FWS, and EWS) have claim costs pending in the amount of
approximately $1.3 million as follows:
WKW (mechanical): $ 350,000
EWS (electrical): $ 430,000
FWS (plumbing): 525,000
Total: $1,305,000
At a negotiation meeting on 10/12/06, the $1.3 million in potential subcontractor claims
was further discussed. SJA proposed a total delay cost (SJA and subs) of $9,000 /day to
settle with their subcontractors. With SJA delay cost established at $3,959 /day, the daily
overhead cost for the three major subs would equate to $5,041 /day (or approximately
$1,680 /day per subcontractor). Based on our experience, this overhead per day amount of
$1,680 for these three specific subs was deemed very reasonable.
This document is protected from disclosure and/or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 6 of 7
Delay and Cost Exposure:
Item 79A Direct Cost:
Item 79B Delay Cost:
Total Cost:
$254,000 (T &M valuation)
$242,000 (26.8888 x $9000)
$496,000
This document is protected from disclosure and/or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 7 of 7
GILROY POLICE FACILITY
Breakdown of Contract Change Order No. 85
11/26/08.
Item 79C — Roof Pads /Curbs
• . Substitution of Rooftop AC Units.
• WLC response to RFI -555 and issuance of Harris Field Directive No 25.
• Contractor submitted TIA dated 10/3/05 requesting 41CD compensable time
extension (41CD at $9,000 /day = $369,000).
Contract Specifications:
• General Requirements, Section 01600 -3.0; Material and Equipment Substitutions.
• Basic Mechanical Requirements, Section 15010 -1.513; Modification of Contract
Drawings, and 1.6G - Item 7; Substitution of Materials and Equipment.
• Instructions to Bidders, Section 00100 -19.0; Substitutions During Bidding.
Contract Drawings:
• Detail 4/S1.3: Denotes "isulating" [sic] concrete over metal deck outside of
mechanical unit curb. Detail also notes normal weight concrete slab over metal
deck with normal weight concrete at inside of unit.
• Detail 7/M -8.4: Denotes 6" concrete pad over (concrete) deck. Deck fill not
identified.
Summary of Events:
6/30/04: Addendum No. 1 (AD -R5) responds to SJA Bid Clarification Request ##4; "The
diagonal hatching on Roof Framing plan S4.1 represents normal weight concrete below
mechanical unit, reference detail 4/S1.3".
11/23/04: Engineer approved WKW Submittal #56.1 and shop drawings on 12/15/04.
3/9/05: WLC Memo No. 10 to Contractor; Architect adds clarifications to curb /slab
condition shown on M.W. Sausse drawing M- 101104 -28. States Submittal #56 did not
show 2 pads but 2 curbs which are part of one regular weight concrete pad. Further states
there is no re- design required of the pad at the AC units.
8/8/05: SJA submits RFI -555; Contractor currently forming in the roof mechanical pads
that will receive regular weight concrete as per structural drawing detail 4/S1.3. Siplast
has indicated their roofing needs minimum 8 turn up against any curb being formed for
anything on roof; when forming the high side of the curb, will need 17 1 /2" from top of
pan- decking and about 121/2" on low side to make it level; concerned about the weight of
the concrete massed at these locations; wants the design team to verify if the weights of
the imposed concrete loads has been factored into roof design.
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page I of 4
Architect responds that the pads for the three (3) main air handlers do not have solid pads
to create a level surface, (emphasis added) and instructs that a level 6" wide concrete curb
should be formed from the 6" regular weight concrete deck, and references attached
sketch for information. Architect states they will review the other smaller pads and
provide information by 8/10/05 am. The Architect's response and instruction is not
consistent with structural detail 4/S1.3 which illustrates a solid slab (pad) over the roof
deck concrete (similar to detail 7/M -8.4 showing a 6" concrete pad over the roof deck
concrete). The sketch provided by the Architect also shows a curb height of 15 -1/2"
inches at the low side, which is in excess of the 12" maximum curb height per structural
detail 4/S1.3.
If the contractor were to follow not only the Siplast requirements for an 8" turn-up, as
well as the drawing details, the height of the curb would necessarily increase from 12" to
17 ", as Amoroso points out in its RFI. If the height of the curb is increased, a higher
weight load (normal weight concrete) will be placed on the roof. The Contractor's
concerns as reflected in RFI -555 are legitimate, and the response by the Architect does
not address the Contractor's concern.
8/10/05: Architect issues (Harris and SJA) roof top mechanical pad /curb design details A,
B, C, D, and E, and identifies pad /curb locations where details to be applied.
8/11/05: Amoroso responds to details issued by Architect stating that there are several
major structural changes involved in the designers' response to RFI -555. In addition to
material procurement issues, there is still concern by WKW for proper support of isolated
curb units. Contractor states that curbs already fabricated per the original shop drawing
design by WKW. Contractor further states that the details issued are not indicative of the
design intent nor do they coincide with the Architect's clarifications amending shop
drawing from Submittal #56. Contractor requests direction for continuation of curb /pad
construction.
8/15/05: Harris issues Field Directive No. 25 to Contractor to proceed under T &M
provisions to effect the changes to the rooftop mechanical pad /curb construction per
8/11/05 revised drawings 1 through 4 (details A through F) and per revised
comments /notations on M.W. Sausse drawing M- 101104 -31.
8/17/05: Harris issues Field Memo No. 233 to SJA; Forwarding WLC drawing 5 with
details G and H for AC -3 mechanical curb construction to be added to Field Directive
No. 25. .
This document is protected from disclosure and/or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
Page 2 of 4
Delay Asserted by SJA:
As a result of the design change sketches issued by WLC in response to RFI -555, the
critical placement of roof pads was delayed. On 10/3/05 SJA submitted a TIA (Time
Impact Analysis) indicating a delay to the mechanical pads resulting in a 41CD delay to
completion. This TIA was rejected outright for reasons conveyed in Harris Field Memo
No. 270. On 10/24/05 SJA revised and resubmitted its TIA requesting a 29CD
compensable time extension.
Conclusion (substitution analysis):
WLC is under the misconception that the costs associated with the changes to
construction of the roof pads /curbs was the responsibility of the Contractor as a direct
result of its substitution of the rooftop AC mechanical units. In an email from Rick
Legere dated 8/26/05 various specification sections are referenced (01600/15010)
addressing substitution requirements and provisions. However, the requirements and
provisions within these sections are taken out of context. For example, Section 01600-
3.1; Material and Equipment Substitutions states the following: "Whenever products,
materials or equipment are indicated in the Contract Documents by using the name of a
particular supplier, the naming of the item is intended to establish the type, function and
quality required. If the name is followed by the words (or equal) indicating that a
substitution is permitted, products, materials or equipment of other suppliers may be
accepted if sufficient information is submitted by the Contractor...." Note: The words
"or equal" are not noted in Section 15790 - Rooftop Air Conditioning Units.
The above specification provision is applicable to post -bid substitutions. This is
evidenced by the provisions written under 01600 -3.2; Procedures, Items 1 and 2 which
state: "If the Contractor wishes to provide a substitute item, the Contractor shall make
written application to the Construction Manager on the Substitution Request Form ", and
"Unless otherwise provided by law or authorized in writing by the Construction Manager,
the Substitution Request Form(s) shall be submitted within the 35 -day period after award
of the Contract."
The applicable and appropriate specification addressing substitutions during the bid
period was Section 00100 -19.0; Substitutions During Bidding, which states the
following: "Manufacturers or suppliers of materials and equipment may offer an
alternative product to the Contractor and request that alternatives to specified products be
considered equal. Inclusion should only be considered if the Contractor believes the
offered alternative is equal in quality and performance to the specified product."
Even the above provision is not applicable to WLC's contention of substitution by the
Contractor. Prior to bid, WLC made revisions to Section 15790, Rooftop Air
Conditioning Units under Addendum #2 adding the following: Sub - paragraph 2.1;
Manufacturers General, Add Item `B: The following are a list of acceptable
manufacturers: Carrier, McQuay, Trane and York." Section 00100 -19.0 (Substitutions
During Bidding) states that "inclusion should only be considered if the Contractor
believes the offered alternative is equal in quality and performance to the specified
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
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product", however the Contractor did not need such "belief' because the Architect had
already accepted McQuay by pre -bid addendum. By inclusion .of the list of acceptable
manufacturers by WLC prior to bid, a substitution request to provide any of these .
manufacturers would be redundant and the provisions governing substitutions not
applicable.
Conclusion (design change analysis):
The fact of the matter is that WLC failed to adequately coordinate the design of the
rooftop pads /curbs between architectural, structural, and mechanical. In its Memo No. 10
to the Contractor, it is evident that WLC and /or its design consultant(s) initially
misinterpreted the curb shop drawing by M.W. Sausse (M- 101104 -28). On 3/9/05, upon
further review of the drawing, the Architect added some clarifications and stated that
there is no re- design required of the pad at the AC units. If that were true, design
drawings 1 through 5 and details A through H would not have been required or issued by
WLC five months later.
The changes issued rendered work in place to either be removed or modified, with
extensive formwork and reinforcing required to effect the revised details issued by the
Architect. This work was performed under T &M to mitigate further delay and impact to
completion. Upon negotiation of all credits involved between what the original details
indicated and construction of the curbs /pads as revised by WLC, the design changes
resulted in additional direct cost to the project in the amount of $50,072 (reference
Contract Change Order No. 43).
Once the RFI was submitted, it prompted the Architect to re- evaluate the imposed
loading from the original design details utilizing a solid slab (normal weight concrete) for
the curbs. This was obviously a major concern to the Engineer, and the solid slab was
changed to a lightweight rim curb with Styrofoam infill to reduce the weight of the curbs
on the roof. There is no question that the additional direct cost paid to the Contractor and
the resultant delay to the roof curb /pad pours is directly attributable to the design changes
by the Architect.
Delay and Cost Exposure:
Upon review of SJA's revised TIA, considering the untimely submission of RFI -555,
remaining work duration in the schedule, and delay impact ending upon completion of
the roof pad /curb pours, the resultant delay due to design changes was agreed to at 22CD.
Delay cost paid was a total of $198,000 (SJA cost at $3,959 /day and subs at $5,041 /day).
SJA Delay Cost Paid: .$198,000 (22CD x $9,000 /day)
This document is protected from disclosure and /or discovery pursuant to Evidence Code Sections 1115 and 1119, and
is for settlement purposes only.
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