Better Roads

July 2014

Better Roads Digital Magazine

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20 July 2014 Better Roads InCourt Lodge's design for the cofferdam. On June 11, 2012, the Corps issued a notice to cure. On June 21, 2012, Lodge responded to the cure notice and submitted another cer- tified claim, seeking an additional $679,279.58 and 63 days related to the Corps' retroactive disapproval of its design. On June 29, 2012, the Corps issued a show cause notice to Lodge. On July 6, 2012, three days before it responded to that notice, Lodge submitted a third certi- fied claim, seeking $1,805,760.33 and an undetermined number of days for removing and reinstalling the coffer- dam in the area of the breaches. The Corps found Lodge's response unsatisfactory. On July 23, 2012, the Corps terminated Lodge for default, as- serting that Lodge did not diligently pursue the work to ensure timely completion, and failed to submit an accept- able cofferdam design. On that same day, the Corps made a demand on Hanover under the performance bond to either complete the work, or tender a new contractor to complete the work. While negotiating the completion of the work with Hanover, the CO denied Lodge's claims. Hanover tendered a new contractor. On Dec. 31, 2012, Hanover and the Corps executed a Tender and Release Agreement. Under the agreement, Hanover agreed to pay $23,995,183.86 to the Corps, which was the difference between the amount to be paid to the new contractor ($47,778,910.00) and the unpaid balance of the contract with Lodge ($23,783,726.14). In return, the Corps agreed to release Hanover from claims under the performance bond. The parties also agreed that Hanover retained all its rights under the bonds, that Hanover did not waive Lodge's right to chal- lenge the default termination or pursue other claims, and that Hanover reserved the right to pursue Lodge's claims. The CO executed the agreement.

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