Green Committee Supplemental Meeting
Present: Dave Saddoris, Erik Lindseth, Sarah Linnes-Robinson: KFNA
Peter McDounagh and Ted Harley: Kestrel Design Group
Dave Saddoris, Erik Lindseth, and I met with representatives from Kestrel to talk about the draft contract for the Stormwater Project submitted by Kestrel in response to KFNA providing them with a different approved contract earlier in March. KFNA had found a number of issues with the concern and presented these in writing to Kestrel before the meeting (see attachment). Kestrel did admit the contract was fairly new to them and they seemed somewhat embarrassed it was so poorly written and agreed to take the language recommendations to their lawyer. Kestrel will be submitting a summary of the clarifications made in the meeting, including the contract changes, later this week. Saddoris and Lindseth will compare it to their notes and determine if KFNA is going to go ahead and ask them to submit the changes to their lawyer. If the lawyer agrees that those changes should be made and they do not open up the company to too much liability, we will then have a revised draft contract for the Kingfield Board to review at the April 12 meeting.
Because of this delay, KFNA has to adjust the schedule for the Stormwater Project somewhat. KFNA will not have applications due April 20, and will not tour sites the following weekend and also will not hold the project informational meeting May 8. These dates will all need to be readjusted once the contract is approved.
When clarifications to the contract are provided they will be attached to these minutes.
Minutes provided by Sarah Linnes-Robinson, KFNA Executive Director, 3/28/06.
March 24, 2006
I have just gotten around to compiling all the comments from the committee. I apologize for the time it has taken me to do so. I have been preparing for a community art show all week and have been on-site much of this week in preparation for it. I apologize for not being able to get you anything sooner, nor anything more complete than these hastily written notes. My committee and I will meet before we meet with you on Monday evening to hammer out our questions a little more concisely to aid our conversation.
To summarize KFNA’s questions, there are a couple of over-arching ideas in the contract that are confusing to some of us/all of us. One being that KFNA is contracting only with Kestrel as a Landscape Architect, where as the proposal that was submitted by Kestrel included the Wenck logo and talked about the team approach of Wenck and Kestrel. KFNA would like clarification about what the engineering firm’s role will be in this project, and if it is covered in the fee that was bid for the project. If it is not covered the contract implies that you have the right to hire whomever you want for engineering services and the KFNA will need to pay that bill. These relationships to the project, and their associated costs, need to be clarified. Also, how does article 8.5 relate to this?
Additionally, the draft contract specifies in Article 1.1 (Articles 4.3 and 4.4 also speak to this issue) that any surveys, tests, analysis, reports and investigations can be requested by Kestrel and the cost would be borne by KFNA. KFNA had specified at the pre-bid meeting that any survey and mapping costs will be borne by the consultant. Additionally, it was agreed upon, in the clarification letter from Kestrel that hand-pulled soil samples will be taken by Kestrel at each site. I am expecting these costs are excluded from this contract agreement and will be borne by Kestrel and we would need to modify the contract language to reflect this. KFNA will also need to know what other tests, reports, analysis, or investigations may need to be conducted in the course of this project. We will need to use your expertise to be sure we can budget for any of these additional expenses which you would anticipate to occur. KFNA will also retain the right to reject a contractor selected by Kestrel.
Article 1.3 details that Kestrel would not be responsible for the sub-contractors hired by KFNA. This is true, however, it needs to be clarified that Kestrel would be responsible for the oversight of the engineering firm, surveying work, and construction firm, some of which may be sub-contracted through your firm, not KFNA. Even if the construction is contracted through KFNA, it needs to be clarified that Kestrel would perform the construction management services and hence, be responsible for the construction means, methods, techniques, sequences and procedures, and for safety precautions and programs in connection with the Project; Article 10.1 is refers to this. Many of the services in this section are the responsibility of the Landscape Architect, as the Landscape Architect is responsible for construction management services as specified in Exhibit A.
Article 4.6 states that KFNA is giving Kestrel construction cost estimates. In my understanding these roles would be reversed.
Article 5.1 talks about the ownership of the materials created as part of this project. In our agreement with our funder, they will own the final product and working materials. KFNA is granted rights to use any of there materials in our own for this, or future projects. I believe that Kestrel would be granted the same rights, however, we need to clarify the language in this contract so it complies with that of the Mississippi Watershed Management Organization’s contract with KFNA. Article 5.2 also talks about use of drawings. It needs to be clarified that the final brochures have the right to be edited by KFNA until they are found to be acceptable to KFNA to meet the goals of the project.
Other items we need to discuss are Article 7, the termination or project abandonment conditions including KFNA’s right to terminate the contract if the Kestrel fails to perform. Article 7.3, verifying that this section does not apply if the project is suspended over the winter. Article 8.2, which I personally do not understand, although others in the group say they do. Article 9.3 and if stormwater BMP’s that are non-landscape related such as cisterns, collection systems, water redirection, would be included under this “not performed” section, and hence not considered as part of this project. Lastly, Article 11 and the payment schedule, needs to be specified.
There are a few other minor clarifications that can be discussed on Monday.
Thank you for discussing the proposed contract with us. We are looking forward to starting this project.
Sincerely, Sarah Linnes-Robinson,
KFNA Executive Director