REA Final - 22 Dec 20 - eBook - 1682 pages

DocuSign Envelope ID: AE9675E4-3C03-4BD4-B347-E581DE648143

- SWJV disagrees that Spearhead is owed $138,813 for labor rate adjustments that took effect January 1, 2020. SWJV is not responsible for Spearhead’s delays to its own work.

As for Spearhead’s “request for a meeting to discuss the well documented damages to Spearhead,” SWJV notes the following pertinent Subcontract provisions, which are not intended to be an exhaustive list of all Subcontract terms supporting SWJV’s position:

- Spearhead readily admits that “Spearhead has not filed a claim to recover its losses” in violation of the Subcontract’s notice and claim requirements.

“ In the event that Contractor directs the Subcontractor to perform any item of work, which the Subcontractor claims involves extra or additional work that has not been authorized by a Change Order or Contractor Change Notice, the Subcontractor shall, within three (3) calendar days after receipt of such direction, make written claim to Contractor, giving in detail the basis of its contention that the work is extra or additional, together with a detailed breakdown showing separately the additional cost of each item of labor and material. Subcontractor’s failure to make written notice of claim within the time specified, and in the manner as provided in the Contract Documents, shall constitute a waiver of such claim and no recovery may be had by the Subcontractor, on account of such work.” (emphasis added). (Subcontract, Ex. C, Sec. C). “Subcontractor shall make all claims for additional compensation, and extensions of time due to acceleration, disruption or inefficiency or other adverse impacts to the Work or otherwise to Subcontractor’s performance under the Subcontract within two (2) business days following the occurrence of the event giving rise to the claim. All such claims shall be supported by appropriate documentation and, in the case of requests for extensions of time, sufficient detail to demonstrate that the impact is to work activities on the critical path …” (emphasis added). (Subcontract, Ex. E, Sec. 10.5) “Subcontractor’s timely compliance with the notice requirements in Section 10.5 shall be a condition precedent to Subcontractor’s entitlement to a Subcontract adjustment and Subcontractor waives and releases any claim for additional compensation or an extension of time in the event that Subcontractor does not so comply.” (Subcontract, Ex. E, Sec. 10.6)

While Spearhead has no valid claim against SWJV, in any event, Spearhead has waived any rights it may have had to make its perceived claim.

- Furthermore, SWJV has approved and paid more than $380,000 for all acceleration and premium time Change Order Requests that Spearhead has submitted (the only exception being the $79,684 outstanding value for which SWJV has issued a Change Order which remains unsigned by Spearhead, as mentioned above). The subject Change Orders span the period of Spearhead’s presence on site from September 2019 (Change Order 4) to March 2020 (Change Order 15). SWJV reminds Spearhead of the contractual language, to which Spearhead agreed, found on all 10 Premium Time Change Orders:

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PBB-10832-201120-SWJV Response to Spearhead RE: Request for Meeting and Release of Funds

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