Free Appendix - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 1 of 30

IN THE UNTED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DONALD M. DUR

CONTRACTING , INC. Plaintifvs.

CITY OF NEWAR , et aI. Defendants
and

CITY OF NEWARK Third-Party

Plaintifvs.

DONALD M. DUR CONTRACTING , INC. FEDERAL INSURCE COMPANY AND URS CORPORATION Third-Party Defendants
Case No. 04- 0

163- GMS

APPENDIX TO PLAITIFF' S MOTION FOR RELIEF FROM INTENTIONAL DESTRUCTION OF DOCUMENTATION GENERATED BY THE RESIDENT PROJECT REPRESENTATIVE

Powell, Trachtman , Logan , Carrie &

Lombardo , P.
Paul A. Logan Delaware Supreme Cour il #3339
David T. Bolger Pennylvana Bar No. 4 7327
Admitted

Pro Hac Vice

475 Allendale Road , Suite 200 Kig of Prussia , PA 19406 Telephone: 610- 354- 9700 Telefacsimle: 610- 354- 9760
Attorneys for Plaitiff

KOP:346392v1 3514-

............. ......
Case 1:04-cv-00163-GMS Document 200 Filed 08/22/2006

............... .

...... ... ........

Page 2 of 30

TABLE OF CONTENTS

Document

Pa!!e

Complaint................................................................................................ ...
Answer, Counterclaim and Thd

Par Complaint of Defendants City of Newark................. A-

Selected Portions of Joseph R. Kula s deposition June 13 2006... .... ..... ......

Thrd- Pary Complaint of Defendant City of Newark dated
URS Corporation s Answer and Counterclaim to Third Par

"""""""""" A-

Complaint....................... .
I03
l 09

Selected Portions of Glenn R. Bowen

s deposition April 13

, 2006.......... ......................

Request for Production of Documents (Set I) Directed to the City of Newark

KOP:346393vl 3514-

..
'I't tl'$v.

:'J'J) c
'A1 cover s

Ll V

lL LUV EK

J-Y

upplement the filin serVice o pleadings or other I?aprs required taw, except as provided by local rules of court. TIus form approved by the Judicial Conference of the Umted States In September 1974 , of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON TIE REVERSE OF THE FORM.IS requITed for the

Case the infolmtion 1:04-cv-00163-GMS neither replace n eet and ted herein

HJ:Kr Document 200 Filed 08/22/2006

g -,

*.

':

'$

a 4 -3 a 30 6 3 Page of 1

I. (a) PLAITIFFS DONAL M. DURKIN CONTRACTING, INC.
1310 Industrial Boulevard, Suite 200

DEFENDANTS CITY OF NEWARK, HAOLD F. GODWn
JOHN H. FARRELL, IV , JERRY CLIFTON, KAL G. KABACHER, DAVID J. ATHEY, J. OSBORNE, JR., CHRISTINA REWA, URS CORPORATION

Southampton, PA 18966
(b) County of Residence

FR

of First Liste Plaintiff BUCK

(EXCEPT IN U. S.

(c) Attorney

Paul A. Logan, .

s (Finn Name, Address

Powell Trachtman Logan CarrIe & Lombardo

Kin of Prussia PA 19406 610
n. BASIS

475 A1lendale Road,
OF JUSDICTION

Esquire
, and Telephone Number)
Suite. 200,

PLAIN CASES)

County ofResidenc

NOTE: IN

LA

(I U. S. PLAINF CASES ONLY) CONDEMNATION CASES, USE THE LOCATION OF THE

of First Lited NE CASTLE

LAN INOLVED.

Attorneys (If Known)

Qf"

354-970

(place an "X" in One Box Only)

m. CITNSHI OF PRICIPAL P ARTIES(place an "X" in O

'l.l .

S. Governmet Plaintiff

o3

(For Diversity Cases Only) and o
D I
Incorporated or Prncipal

Federl Question

(U. S. Governnt Not a Par)

Citizen of This State DI

o 2 U. S. Goverment

Defendat

Diversity (Indicate CitiZenship of Pares in Item

Citin of Another

State

020
D 3

DEF\J
x fO

Plaiti
dat)
DEF

of Business In Ths State
and

XI 4

Incororte

Principal Plac

5 D

of Business In Another State
Foreign Nation

o 6

v. NATU OF
CONTRACT

SUIT.

(Place an "X"

in One Box Onlv)
TORTS

FORFITUR/PENAL TY

BANKRUPTCY
422 Appel 28 USC 158

InurCe 120 Mare
11 0
130 Miler Act

OTHER STATUTES
0 400 Sta Reapportonmnt 0 410 Antitrt
0 0 0 0 430 Bank and 450 Rates/etc. 460 Deporttion 470 Racketer Infuenced and

PERSONAL INJURY
3 IO Ailaue

PERSONAL INJURY
362

PersnallIur
Prouct Uabilty

610 Agrcultue
620 Other Food & Drug 625 Drug Related Seizure

140 Negotile

Instnnt

315 Airlae Product

Moo Malpractice
365 Persona Injur

Libility
320 Assault, Libel & Slander
330 Federal Employers

423 Withdrwal
28 USC 157

of Propert 21 USC
630 Liquor Laws

ISO Recvery of Overpaymnt

CornceCC

Bang

& EnorcementofJudgmnt
-. t 51

152 Recve ofD"fuulted
Stuent Loans

MOOca Act

0 368 Asbestos Personal
Injur Product

640 R.R. & Truk
650 Airline Regs.
660 Occupational

PROPERTY RIGHT
820 Copyrhts
830 Patent

Liilty

340 Marie
345 Mare Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability
360 Oter Persona Injur

Libilty
PERSONAL PROPERTY
0 370
Other Fraud

Corrt Orgtions
0 810 Selective Servce 0 850 Secwities/Comrditiesl
0 875

(EcI. Vetera)
153 Recvery of Overpaymnt

of Veteran s Benefils
o 160 Stocolders ' Suils
at 190 Other Contrct
rf 195 Contrct Produc Libility

371 Tru

in Ledig

Safety/Health 690 Other

840 Trademark

380 Othr Persona)

LABOR
710 Fair Labor Stadards

SOCIA SECURTY
861 HI (1395ft 862 Black (923) 863 DIWCfIW (405(g)) 864 SSID Title XVI 865 RS (405(g))

Cumer Cballenge
12 USC 3410
Ecnomic Stabiliztion Act Envionmtal Mattrs Energ Alocation Act Freeom
Inonntion Act

Exchae

Propert Damage
0 385 Propert Damge

Prduc Libility

REAL PROPERTY

CIV RIGHTS
& Ejectmt
441 Voti 442 Employmnt
443 Honsing!

Act 720 LaborlMgml Relations

Lu

PRIONER PETITIONS
510 Motions to Vacate

210 Lad Condenmtion
220 Forelosur

730 LaborlMgmlReport
& Disclosur Act
740 Railway Labor Act
790 Oter Labor Litition

0 0 0 0 0

891 892 893 894 895

AgcuIl Acls

230 Rent Lee

Sentence
Habea Corpus:

FEDERA TAX SUI
0 870 Taxes (U. S.

0 900Appeal of

Fee Determation

240 Tort to Lad
245 Tort Product Uability 290 All Other Rea Propert

Accrmdations
0 44 Welfae
440 Other Civi Righls

530 Generl
535 Death Penalty

or Defendat)
0 871

Plai
0 950

Under Eqna Access to

Instice

540 Manda & Other 550 555 Prison Condition

Constituonality of

Civiltts

791 Empl Ret Inc. Secwity Act

lRThdPar
26 USC 7609

State Statutes 0 890 Other Statutory Actions

V. ORIGIN

(pLACE AN "X" IN ONE BOX ONLY)
Trasferr from

Appeal to

Orginal 0 2 Removed from

Proceeding State

. 'I CAUSE OF ACTION

(Cite the

Do not CIte Jundictional

Court Appellate Court Reopened fi
ITom
ivi
tu uner which yo

0 3 Remaded

04

another distrct

Distrct

Reinstated or

0 5

(specify)

o 6 Multidistrct
Litigation

7 Judg MagIstrte

from

Judgment

and wrte brief statement of canse.

statutes uness diversIty.

ch of contract, civil rights.

\Tiolatioi1. "" 42

lJSC 1983. 28 USC 1332
DEMAND $

vu. REQUESTED IN
COMPLAIT:
U-ID. RELATED CASE(S)

o CHECK IF THIS IS A CLASS ACTION
UNDER F. RC.P. 23

over 100, 000

CHECK YES only if demaded in complaint:
JUY DEMAD:

IF AN NONE

(See instructions):
DOCKET

Yes oNo

NUMER
)ATE

3/16/04
AMOUN
APPLYING IF

?OR OFFICE USE ONLY
REEIT

JUGE

MAG. JUGE

=----

--/

.. --. ? ";
:: :: (.. ..

, ,; ("

1.

Case 1:04-cv-00163-GMS 0:---

Document 200

Filed 08/22/2006

Page 4 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
DONALD M. DUR

CONTCTING

INe.
1310 Industral Boulevard, Suite 200 Southampton, P A 18966
VS.

CI ACTION NO. .. 0

4-01

6 3

.;,4' .

CIT OF

NEWAR

. c: Of' (f:;

220 Elkon Road P. O. Box 390
Newark, DE 19715- 0390

C1 ogr:

0",

-a ;-'2
c.

-f(p fG

HAOLD F. GODWJ
Mayor, City of Newark, Delaware

\i A

JOHN H. FARLL, IV
Council Member, City of Newark, Delaware

JERRY CLIFTON Council Member, City of Newark, Delaware

KA G. KABACHER
Council Member, City of Newark, Delaware

DAVI J. ATHY
Council Member, City of Newark, Delaware

J. OSBORN, JR Council Member, City of Newark, Delaware

CHRTINA REWA
Council Member, City of Newark, Delaware

and

UR CORPORATION
1200 Philadelphia Pike Wilmgton, DE 19809

COMPLAINT
KOP:269634v33514-

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006 -=.--"" 1

Page 5 of 30

Parties
Plaintiff Donald M. Durkin Contracting, Inc. ("Durki") is a Pennsylvana

corporation, with itspricipal

offce located

at 1310 Industrial Boulevard , Suite 200

Southampton, Pennylvana 18966.
Defendat City of Newark ("City) is a political subdivision of the State of

Delaware , with its offces located at 220 Elkon Road , P. O. Box 390 , Newark, Delaware 197150390.

Defendat Harold F. Godwi is an adult individual who , at all times relevant

hereto , served and contiues to serve as the Mayor of the City of Newark, Delaware.

Defendat John H.

Farell,

IV is an adult individual who , at all times relevant

hereto , served and contiues to serve on the City Council representing Distrct 1 ofthe City of

Newark, Delaware. .

Defendat Jerr Clifon is an adult individual who , at all ties relevant hereto
served and

contiues to serve on the City Council representing Distrct 2 of the City of Newark

Delaware.
Defendat Karl F. Kalbacher is an adult individual who , at all times relevant

hereto , served and contiues to serve on the City Council representing Distrct 3 ofthe City of
Newark, Delaware.
Defendant David J. Athey is an adult individual who , at all ties relevant hereto

served and continues to serve on the City Council representig Distrct 4 ofthe City of Newark
Delaware.

Defendant Fran

J. Osborne ,

Jr. is an adult individual who , at all times relevant

KOP:269634v3 3514-

._-t r

=-_._

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 6 of 30

hereto, served and contiues to serve as Deputy Mayor and as a member of City Council

representing Distrct 5 of the City of Newark, Delaware.
Defendant Chrstina Rewa is an adult individual who , at all times relevant hereto

served and continues to serve on the City Council representing District 6 of the City of Newark
Delaware.
10.

The Defendats identified and named in paragraphs 3 though 9 , inclusive, shall

be hereafer referred to as "City Council"
11.

Defendat UR Corporation ("URS") is a business corporation incorporated
offce located

under the laws of Delaware, with a pricipal

at 1200 Philadelphia Pike

Wilmgton, Delaware

19809.

Jurisdiction and Venue
12.

Jursdiction is predicated upon 28 U.
arsing under the Constitution,

CA.

g 1331 and 1343 ,

in that ths is a

civil. action

laws , and treaties of the United States. Jursdiction is
and pendent jursdiction.

also predicated upon the doctre of ancilar
13.

Jursdiction is fuher predicated upon 28 U.
and

CA.

1332 , there being complete

diversity between all plaitiff

all defendants , and the matter in controversy, exclusive of

interest and cost, is in excess of $1 00 000.
14.

Venue in ths Distrct

is proper

pursuant to 28 U.S.

A.

1391(a) and (b).

KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 7 of 30

Facts

Events Prior to Biddin and Contracting
15.

At some time prior to Januar, 2002 , the City retained the serVces of UR for the

puroses of analyzg the feasibility of, and thereafter preparig professionally engineered design
and constrction

documents for, the constrction of a water supply reservoir. ("Project"

16.
pumped

The Project was intended to provide for the constrction of an "off-stream
318 millon

storage reservoir" with the capacity of approxiately
17.

gallons of water.

The reservoir was to be situted on propert owned by the City, with a work area

in excess of 60 acres , adjacent to inter alia Old Paper Mil Road Newark, Delaware.
18.

At all ties relevant hereto , including the design phase for the Project, the City

and URikDew that the Project and the water supply reservoir was located imedately adjacent
to a densely populated residential area.
19.

Because ofthe location ofthe water supply reservoir, at all times relevant hereto
iving adjacent to the

the City,and UR were acutely aware that (1) the safety ofthe residents

reservoir and the public in general , and (2) the long-term integrty of the water supply reservoir

were imperative considerations , especially since a failure ofthe water supply reservoir could

imperl the life and safety ofthe persons and propert working on the Project , and risk the safety
of the residents in the suroundin area, including multiple occupied residences , with potentially
catastrophic consequences in term ofloss of life and
20.
propert.

The City and UR were also fully aware that for the safety and protection of those

working in and around the reservoir durg constrction of the Project , the design for the reservoir and for the overall Project had to address site safety at all times durng the constrction

KOP:269634v3 3514-04

=--Case 1:04-cv-00163-GMS Document 200 Filed 08/22/2006 Page 8 of 30

:.

phase of the Project.
21.

At all ties

durg the design phase for the Project and prior to constrction,

the

City and UR also knew , and specifically understood , that the Project was subject to competitive

bidding by contractors pursuant to the public bidding laws in the state of Delaware, and that all
relevant inormation known by the City and UR respectig the Project needed to be disclosed

and either provided , or at least made available , to the bidders prior to submitting the bids.
22.

At all ties

durg the design phase for the Project and prior to constrction,

the

City and UR knew that the bidders would utilize and rely upon the pre-bid inormation

disclosed by the City as the basis for, among other thgs , selectig the partcular mean and
methods of constrction

to be employed anticipating the conditions to be encountered and

accounted for durg constrction, the initial fillng of the reservoir and the maintenance of the

reservoir durg the period of contractor responsibility, all of which was taken into account and
factored into the pricing of the Project work.
23.

At all times durg the design phase for the Project and prior to constrction,
the

the

City and UR were aware that soil staility,
inormaton was among

sequence and maner

of constrction and safety

the essential information necessary for bidders to fuly evaluate the scope

and complexity ofthe Project work.
24.

At all times durng the design phase for the Project and prior to constrction, the

City and URS also knew that all bidders , and ultimately the contractor who was awarded the

contract for the Project, would rely on the adequacy ofthe

plans ,

drawings and specifications

and also would reasonably presume that URS had completed all testing, analysis and evaluations

to determe the constrctabilty and adequacy of the design.

KOP:269634v3 3514-

\t

Case 1:04-cv-00163-GMS
25.

Document 200

Cc_Filed 08/22/2006

Page 9 of 30

At all times durng the design phase for the Project and prior to constrction,

the

City and URS knew that bidders were not obligated to conduct any independent investigation
into the adequay of the bid documents or the constrctaility
of the

Project design but would in

fact rely upon the City and UR to provide a design which was complete in all material respects
and could be

constrcted utilizing ordiar and customar constrction technques and mean

and methods of constrction.

26.

At all ties prior to the lettg

ofthe

Project for competitive biddig, the City and

UR specifically knew that they had the affative legal obligation to disclose all relevant
inormation to all prospective bidders , and that non-disclosure of any material inormation would
be a constrctive or actual fraud on the bidders.

27.

At all ties

durg the design phase for the Project. and prior to constrction,

the

City and UR expressly and impliedly w31anted the adequacy of the design for the Proj ect, the

completeness ofthe bid and contract documents , and that the City and UR had disclosed all

known relevant inormation respecting the Project.
28.

Durki avers, upon information and belief, that prior to the solicitation of bids for

the Project, UR prepared an intial design for the water supply reservoir and presented it to the
City for review and consideration.
29.

Durkin avers , upon inormation and belief, that contrar to UR' professional

duties and in lieu of completig its own testing and analysis ,
analysis provided by a vendor of a proprieta
30.

UR relied upon inormation and an
as "Fabriform

product marketed

Durkin avers , upon inormation and belief, that URS' initial design incorporated a

design for the interior side slopes of the water supply reservoir that was intended to provide for

KOP:269634v3 3514-04

-Case 1:04-cv-00163-GMS Document 200

=-- - .

Filed 08/22/2006

Page 10 of 30

interior slope stability at all times durg
intially filled,

constrction, while the water

supply reservoir was
when water

and durg the servce lie

of the reservoir

, includig such ties

level

in the reservoir was being drawn down for maintenance or to address emergencies.
31.

Durki avers , upon information and belief, that UR' intial design included total

slope protection; however, in an effort to ostenibly " save costs-and at the behest of the

City-URS agreed to change their design.
32.
Specifically, the intial

design prepared by URS included fist placing an

impervous liner over the bottom and interior side slopes of the reservoir, over which was to be

placed a proprieta

product

known as ' 'Fabriorm , which would cover the impervious lier
, from the ri ,

system along the entire interior side slopes of the reservoir, i.

or the top ofthe

interiorslope , to the basin floor of the reservoir.
33.

The changed design ("modied design ) that was included in the bid do cuments

eliated the "Fabriorm" for the lower porton ofthe interior side slopes , specificaly from
elevation 169 down to the bottom of the reservoir, and instead called for the placement of
screened soil materials ITom the excavation of the basin (which soils were referred to as "cover
soil" in the Contract) over the impervous liner system from elevation 169 down to the basin
floor. In the bid and

Contract documents ,

UR identified the area between the basin floor and

elevation 169 as "Zone IV , and the cover soil for that area as "Zone IV material"
34.

URS' change from the

intial design to the

modified design was ostensibly for the
of

purose of savig the City approximately one millon dollar in the cost
reservOIr.
35.

constrctig the

The modified design was incorporated into the bid and Contract documents for

KOP:269634v3 3514-

,I

Case 1:04-cv-00163-GMS 7:-

Document 200

Filed 08/22/2006

Page 11 of 30

the Project, without disclosure to any bidder of the initial design, or disclosing the fact that the
modified design had not been evaluated by the City or URS for constructability, safety, operation
or long term stability of the reservoir.
36.

Durki avers , upon inormation and belief, that although UR signficantly
of

changed its intial design URS failed to consider and professionally address the consequences
the modified design prior to incorporatig
37.
the changes into

the Project documents.

Durkin avers , upon inormation and belief, that before incorporatig tl1 modified

design into the Project doc1Jents , (1) UR did not verfy that the modified design was even

constrctable utiliing ordiary

constrction mean and methods ,

(2) UR did not verify that the

modified design was safe for the contractors attemptig to build the Project, and (3) URS did not

verify that if completed as designed by UR , the reserVoir would be safe and fuction properly.
38.

Although the plan , drawigs and specifications for the Project were ostensibly

. prepared by UR , and UR affied its professional engieering seal

upon the Project plans and

drawigs, Durki avers , upon inormation and belief, that signficant portons of the

purorted

engieerig" for the plans , drawigs and specifications for the Project were not prepared or
evaluated by UR , but intead were plan , drawigs and specifications prepared by others.
39.

Durki avers , upon inormation and belief, that the drawigs for the Project

incorporated a non-site specific "design" ostensibly prepared by vendors of the Fabriform
proprietar systems ,

which design was not fully evaluated was not based on actual site

conditions , and was not verified by URS as appropriate for incorporation into the Project
requirements before the Project was let for bidding.
40.

Durkin avers , upon inormation aid belief, that prior to completing the " fial

KOP:269634v3 3514-

'"
, t.
Case 1:04-cv-00163-GMS 1F-Document 200

-:-----

Filed 08/22/2006

Page 12 of 30

design"

and prior to solicitig bids

, UR had failed to perform all essential engieerig required

of design professional , includig the slope stability analysis ofthe modified design and all other

critical studies and testig, all of which were necessar for UR to determe the constrctability
of the modified design and the safety of the Project durg constrction , and for proper
maitenance of the reservoir on a long term basis.
41.

Durki avers , upon inormatiQn and belief, that prior to soliciting bids , UR did
documents or anywhere

know, but did not disclose in the biddig
modified design had inerent flaws ,

accessible to bidders , that the

includig the followig:
materials were especially vuerale to severe erosion

that the Zone

durng constrction;
. that the modified design provided that the Zone N- materials were to form

a shelf area, known as a 1Jench", from the floor ofthe reservoir to elevation 169 , upon
. which the ' abriorm" slope cover was anchored but that the bench and Zone

materials would fail under conditions that were liely
filig of the

to occur

durg constrction, the

reservoir or durng the serice life of the reservoir; and

that when the reservoir was drwn down to a water elevation below 169
(i. e. the highest point of Zone N) and wave and/or wind conditiQns existed, or if the

water was drawn down below the elevation of 169 at a rate greater than five million
gallons per day, the Zone IV materials would fail and the bench and the Fabriorm
would be compromised.
42.
anchor

Because UR had failed to perfonn all necessar calculations and pre-bid

evaluations , the severity of defects may not have been fully known but UR proceeded with the
KOP:269634v3 3514-04

=--

Case 1:04-cv-00163-GMS

Document 200

'0._- j Filed 08/22/2006

Page 13 of 30

procurement on behalf of the City without regard to the known defects and without disclosure to
any bidder.

Bid SolicitationIre-Contract Activities
43.

In or about Janua, 2002 , the City advertised for bidding the public works project

it referred to as the " Water Supply Reservoir, City of Newark, Delaware, Contrt 02- 02"

utiizing UR' modified design.
44.

Prior to the solicitation of bids ,

UR and the City both knew, or in the exercise of

professional diligence UR should have known that the materials that would be utilized to

constrct the reservoir were highy erodible and untable under conditions that UR and the City
knew or should have known would be encountered durg
constrction and

after the reseroir

was placed in servce.
45.

Specifically, but without limtation, prior to the solicitation of bids ,

UR and the

City bothJmew that when the level of water within the reservoir would periodically be an
elevationJower than 169 ,
tht the "bench"

that the "Zone IV" materials would be subject to severe erosion and
was "anchored"

upon which the Fabriorm

would fail, creatig a risk of

cattrophic failures of the slopes and possible compromise of the integrty of the entie
reservoIr.
46.

Durkin avers , upon information and belief, that before soliciting any bids , URS

and the City knew of the conditions that would affect the Project, but despite their obligations to

disclose all material inormation, failed to advise all bidders , including Durki, of these material
conditions.
47.

Durki avers , upon information and belief, that prior to soliciting bids for the

KOP:269634v33514-4

A-II

(.

--!
Case 1:04-cv-00163-GMS Document 200 Filed 08/22/2006 Page 14 of 30

Project, the City and UR lmew that no reasonable pre-bid or pre-contract investigation by any
. bidder would discover the inonnation lmown but concealed by UR and the City, includig,
without litation,

the fact that URS had failed to adequately prepare design and constrction
engineerig

documents and had not completed all necessar
48.

evaluations.

The City and UR waranted , either expressly or implicitly, that the bidding

documents were complete and accurate, that the City and/or URS had disclosed alllmown

relevant inonnation, and that the biddig

documents

fully and accurately described the scope of

work such that a competent contractor could formulate a bid price and complete the work in
conformance therewith.
49.

Specifically, the bid documents were represented by the City and URS to describe
(Section 3. 2) and that the scope ofthe work to be perfonned by
reasonably

a fuctionally complete Projecf'

the contractor was " any work, materals or equipment that may
Contract, Documents... " (Section 3.
50.

be inerred ITom the

The City opened all bids and thereafter reviewed with Durki the apparent low

bidder, the basis upon which Durki had prepared its proposal.
51.

Notwthstadig the review of Durki' s bid and post bid-openig discussions , at

no time prior to awarding the Contract to Durki did either the City or UR disclose to Durki
any factul or engieerig inonnation

respectig relevant site conditions , the constrctabilty of

the Project, or that UR had not properly completed the necessar engieerig for the Project
even though the foregoing facts were critical to Durki' s bidding and method of prosecuting the

Project, and that the foregoing facts were not known by or available to Durki.
Contract Award:

Durkin

Performance

and

CitylU'

Responses

KOP:269634v33514-04

( .

--

---

Case 1:04-cv-00163-GMS

;:i

Document 200

Filed 08/22/2006

Page 15 of 30

52.

On April 24 , 2002 , Durkin and the City entered into a wrtten contract for the
Notice to

constrction ofthe Project (" Contrct" ).

proceed with the constrction work was
hereto as

issued by the City on May 24. 2002. Relevant portions of the Contract are atthed

Exhbit "
53.

Federal Inurance Company ("Federal") was , at all times relevant hereto , the

payment and performance bond surety for Durkin in connection with the Project.
54.

The City appointed URS as the constrction

inspector

for the Project

notwthstadig the fact that UR was the designer of the Project, and that one of the essential
fuctions of the constrction inpector is to report and evaluate any alleged defects in the Project
design for which UR
would ultiately be responsible

55.

UR'

positions as both designer of the Project and constrction

inpector was an

inerent confict of interest, which should have disqualified UR as the field inspector on behalf
of the City.
56.

Afer mobilizing to the site and commencing

constrction

of the Proj ect

, Durkin

was subjected to materially different requiements than those specified in the Contract, and was

fuher directed to perform additional and extra work.
57.

Specifically, after

begig work on the Project, Durki was diected by the City
including, as examples only:

and UR

to employ technques and perform additional and extra work to address omissions and
documents ,

deficiencies in the Contrct

the Project design failed to properly anticipate the characteristics of the soils; as a

result, Durkin was diected to haul in water to add to the on-site materials in order
to achieve the specified moistue content set fort
in the Contract

documents;

KOP:269634v33514-04

=:-

l ,

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 16 of 30

UR field personnel charged with followig the Contract specifications failed to
follow the requiements for acceptace testing; as a result, Durki was forced to
retain the servces of a soil engieer to ensure that the requied testing for

compliance with the Contract specifications was performed in a timely and proper

maner so as to permt the work to proceed on schedule;

UR'

design failed to properly estiate

the quatity of excavated

materials; as a

result , Durki was diected to haul the excess material to the exterior embanent
of the reservoir which fronts Old Paper Mill Road , and was

fuer requied to
Fil.

handle and compact the excess materials as if it were "Landscape
Durki was also diected to perform additional work in

screenig the fill material

to remove rocks and stones ,

notwthstadig the fact that the Contract permtted

an alternative method of treating the fill, namely rakg.

58.

As of October, 2003 , Durkl had accrued and presented claims for the extra work

in an amount in excess of $650 000 due to the design defects and improper Contract

admstration by UR.
59.

Durki complied with all ofUR' directives , the Contracfrequiements and all

other conditions precedent to presentig claims for extra compensation to the City.

Siope Stabilty. Safety and Project Constructabilty Issues
60.

As ofthe early fall of2003 , Durki had substatially underten the specified
in the Contract in anticipation ofthe star of the constrction of the

prepartory work described

Zone IV" materials , including the screenig of the Zone IV material , the placement of the

geotextile and impervous liner on the substatial

areas ofthe slopes

and the floor of the

KOP:269634v3 3514-

.,

-"

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 17 of 30

reservolf.
61.

In the locations designated by the Contract , Durki had placed geotextile materials

and liner and prepared to place the Zone IV materials on the slopes

begig at the " shallow

end of the reservoir, i. , where the difference in the elevation from the floor of the reservoir to
the elevation of the Zone IV bench was the smallest.
62.

As designed by UR, the Zone IV materials were to be placed ftom the toe of the

. slope to elevation 169 , whereat a ' 'bench'' ftom the Zone IV materials was constrcted , and
where the Fabrionn materials were be anchored. From that point, the Fabrionn materials

would be placed on the slope up to the top of the reservoir, at which point a "wetland" mitigation
strctue was to be constrcted.

63.

As designed byURS , large rocks , known as "rip-rap , were to be placed on the

Fabrionn at and near the top ofthe slope adjacent to the wetland mitigation strctue.
64.

Durki had retaned the servces of a geotechncal consultant , GeoSyntec

Consultats , Inc. ( " GeoSyntec ), for puroses of maintaig quality control durg the
placement of the Zone IV materials , instaation of the Fabrionn, placement of the rip-rap and

constrction of the "wetland" mitigation strctue at the top of the slope of the reservoir
65.

Nowhere in the Contract specifications was Durki directed to employ any special
technques for placement of the Zone IV materials , the Fabrionn
rip-rap.

or extraordiar constrction

material , the wetland strctue or the
66.
Durki began

the placement of the Zone IV materials at the end of the reservoir

where the least amount of Zone IV materials would be placed , and completed a section ofthe

Zone IV work prior to any rai.

KOP:269634v3 3514-4

, .

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006 =.-i

Page 18 of 30

67.

Al materials placed by Durki

met

the Contract specifications for gradation and
the cover

density, and Durki
68.

fuher protected the Zone IV materials from rain by sealig

soil.

In September, 2003 , there was a sustained rain event.

69.

Notwthstading (l). Durki' s instalation of the Zone IV materials in complete

accordance with the Contrct design (2) Durki' s implementation of erosion mitigation utilizing

ordiar mean and methods; (3) Durki' s constrction ofthe slopes to the grades and lies
prescribed in the Contrt

plan; and (4) Durki' s proper placement and compaction of the Zone
een placed by Durki were severely damaged by

IV materials , the Zone IV materials that had
the

rai.
70.

Specifically, due to defects in UR' desi

water on the impervous slope liner at

elevations ' greater than 169 was chaneled down to and

undermed the Zone IV bench , causing

severe daage to the work, which included displacement and sloughg of entie sections of the
Zone IV materials down the slope to the floor of the reservoir.
71.

The ordinar mean and methods of erosIon mitigation employed by Durki

could

not overcome the defects in URS' design.
72.

Not only did the Zone IV materials fail , but because the eighteen (18" ) inches of
lier

Zone IV materals placed on the flQor of the reservoir were placed on top of the impervous

the moistue was trapped in the materials.
73.

The trapped moistue in the materials located on the floor of the reservoir resulted

in the bearg capacity of those materials being signficantly dished, thereby precluding
constrction equipment from

gaing access to the affected areas without severe ruttig

and

liely damagig the underlying liner.
KOP:269634v3 3514-04

A-

.'
Case 1:04-cv-00163-GMS Document 200 Filed 08/22/2006 Page 19 of 30

74.

As a result of the severe damage to and failure of the Zone IV materials , Durki

requested that GeoSyntec evaluate the conditions and advise Durki of the likely cause(s) of the problems and any potential consequences.
75.

GeoSyntec advised Durki that there was a potential serious defect in URS' s
of the Project,

design that affected the constrctability

and also that there were other, potentially

more serious defects , that called into question the integrty of the entire design and raised
life/safety issues.
76.

The Contract Specifications (Section 3.3. 2) requied Durki to advise the City and

UR of any discovered design problem and defects.
77.

Durkin imediately

advised

the City and UR of the potential defects in the

Projectdesign, and requested that the City and UR
78.

imedately address the issues.
to

Contemporaneous with the notice to the City and UR , Durki requested UR

provide its design analysis of inter alia slope stability, so that Durki' s geotechncal consultant could

fier review the modified design.
79.

At a meetig among the City, Durki, URS on September 26 2003 , Durki'

consultats advised the

meeting attendees of the discovered design defects; specifically, Dur'

consultats advised,

inter alia that in the event of a rapid or other draw- down of the reservoir

the design for the Zone IV materials had a factor of safety of less that one.
80. 81.

A factor of safety of less than one indicates that failure would occur.
In a memorandum from URS to the City dated October 14 2003 , that was not

addressed or sent by URS to Durki URS wrote inter alia:
'we concur that if a very conservative approach is tae to the evaluate cover soil stability using the innite slope method of analysis and assuming no soil cohesion, intantaeous
KOP:269634v3 3514-

,'

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 20 of 30

drawdoWl , and no drainage ofthe
calculated. "

cover soils ,

a factor of safety of approximately one is

82.

The conditions described in URS' memorandum would occur if the reservoir

were drawn down in an emergency.
83.
As

a "high hazard" earhen da URS knew that the factors of safety for its design
for such strctues.

were well below the minium standards of safety acceptale
84.

In the October 14 2003; memorandum UR aclmowledged that it had changed its

origial design to the

modified design in order to save approxiately

$1. 0 rillon.

85.

UR fuer aclmowledged in its October 14

2003 , memorandum that "the

erosion (of the Zone IV materials) that has been observed to date has occured with the lie
above. El. 169 exposed (no riprap or Fabriform in place). Ths relatvely smooth surace results

in very high erosive velocities.
86.
As

par of the October

14,

2003 , memorandum

UR aclmowledged that the
(US) do propose a slight

concern that were raised by Durki were valid and stated that ' We

change in the Fabriorm detail to mitigate the maintenance impacts , and proposed to the City
varous alternatives designed to address some of the defects in the modified design.
87.

Begig in late October, 2003 , UR advised Durkin that the modified design
Durki to provide pricing for alternates to the as-designed

requied changes , and requested

system.
88.

URS fuer stated even though they agreed that the modified design had to be

abandoned and corrective measures implemented, neverteless , if the prices quoted by Durkin for

the alternatives were not acceptable , that UR would direct Durki to proceed with the modified

KOP:269634v33514-

A-

, ,

.. '"

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 21 of 30

design set forth in the Contract, even though URS knew that the modified design could not be

constrcted.
89.

Durki avers , upon inormation and belief, that UR attempted to conceal its own
responsibility for the

design errors and fiancial

errors by attempting to convice the City that the

alternatives were to "mitigate potential maitenance issues " so as to obta

fuds from the City to

pay Durkin the costs to remedy the defects in UR' modified design.
90.

Only after October, 2003 , did the City and UR
the

adit to Durki for

the fist tie

that the City had contigent plan to drai

reservoir for maintenance , emergencies or due to

severe drought conditions , and that the conditions durg the draig
maitenance or durg
intallation of rip-rap.

of the reservoir for

emergency draw- down

would likely underme the Fabrionn and

FUTHER INSTIGATION OF DESIGN DEFICIENCIES
91.
As requested Durki provided prices to UR

for the varous alteratives to the

modified design.
92.

Afer submittg proposals for alternative design for reviewig and

consideration, Durki was advised that the City and UR would not implement any of the
alternatives to the design notwithstadig

the seriousness of the issues and life/safety concerns

because Durki' s prices were allegedly too high.
93.

Durki alternatively offered to work on a "tie

and material" basis ,

with control

of the operations being vested in URS and the City, but this proposal was also rejected.
94.

At all times durg these discussions and exchanges of pricing for the alternative

schemes proposed by UR,

Durki continued with the available work on the Project, had

KOP:269634v33514-

=--Case 1:04-cv-00163-GMS Document 200 Filed 08/22/2006 Page 22 of 30

materials delivered to the Project site, and awaited diection

from the City and

UR on how it

was to proceed.
95.

Durg this same period of time Durki continued to request that the City and

UR provide their design calculations and other essential design inormation so that Durki'
consltants could complete a

fuer evaluation of the design issues that affected both life/safety

concern as well as constrctaility.
. 96.

In the late fall and/or early witer, 2003 , Durki leared for the fit

tie that the

reason that tJ;e requested design inormation was not provided was that UR had failed to

. complete these essential calculations and analyses prior to biddig, and

was

only then

begig

to evaluate the life/safety, slope stabilty
97.

and other issues

afectig constrctability. .
attempt to force

Shortly thereafter, in an improper and ilegal

Durki to proceed

with a mown deficient plan the City, with the advice ofUR , wrote to Federal and claied that

Durkin.was in some fashion failing to perform the Contract work.
98.

The letter to Durki'

s surety

was

wrtten in bad faith in that inter alia Durki

had never abandoned the site and was stil prosecutig available work and havig materials
delivered to the site , and that pursuant to Section 3.3. 2
ofthe Contract specifications

, Durki was

contractully obligated to rase the design deficiency issues with the City andUR.
99.

The letter to Durkin s surety was wrtten in bad faith in that inter alia

lmew at the time of the City' s notice to Federal that there were indeed design deficiencies , and

that if Durkin had proceeded, additional costs and expenses would be incured for no good

purose.
100.

The letter to Durki' s surety was in bad faith in that inter alia the City and

KOP:269634v3 3514-

.-

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 23 of 30

knew that section 3.

2.

0ftheContIact specifications provided that "the Contractor shall not
an

proceed with the Work affected thereby" (i. e. a design defect or error J ' 'util supplement to the Contract Documents. has been
101.
issued (in wrtig)....

abatement or

In December, 2003 , the City and UR met with Federal and Durkin in a

supposedy "off the record" meetig.
102.

At the behest of the City to seek the advise of consultats

other than

those

retaned by Durki

Federl engaged the servces of a nationally-recognzed geotechncal
Greg Richardso

engieerig consultat ,

Ph.I). , P. , to review the design and advise whether

there were defects in the modified design.
103.

Unkown to Federl and Durki prior to Federal retag Dr. Richardso

had contacted Dr. Richardson for puroses of solicitig advice respectig the adequacy ofUR'
modified design.
104.

In conversations between UR and Dr. Richardso

UR admtted to the design

deficiencies and that UR had modied its intial design at the behest of the City in order to save
approximately $1. 0 millon.
105.

In completig his analysis and evaluation of the modified design Dr. Richardson
laboratory then being utilied by

also contacted the testig

UR to belatedly complete the slope

stabilty analysis and other

computations. The results of these discussions were reported in the

wrtten report prepared by Dr. Richardson, which fuer confed the deficiencies in the
modified design.
106.

Richardson completed his analysis and generated an intial wrtten report dated

Januar 13 , 2004.

KOP:269634v3 3514-04

,'

=-_

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 24 of 30

107.

In the Janua 13 2004 report , Richardson confed the defects in the design the

exitence of signficant life/safety issues , that the as-designed system was not "constrctable" and
advised that proceedg with the modified design would imperil workers and that potential

catatrophic failures could occur if the constrction
108.

work proceeded.

A copy of Dr. Richardson s Januar 13 , 2004 report was provided to the City and
20 , 2004.

UR by Federal under a cover letter dated Janua
109.
At no tie did

the City or UR seek an independent evaluation of either UR'

modified design or Dr. Richardson s report.
110.

On Janua 30 2004, URS prepared a wrtten response to the Januar

13

2004

report of Dr. Richardson.
111.

The January 30 2004 report from UR respondig to Dr. Richardson

Janua

2004 report was not forwarded to Durki

or Federal for comment or response prior to

termation of the Contrct by the City.
CITY AND UR' REFUSAL TO PAY FOR WORK AN MATERIALS
112.

Notwthstading its contraCtul obligation to pay Durki for the work performed

and the materials provided on the Project

begig in November, 2003 , in material breach of
Durki.

the Contract, the City began to improperly withold payments from

113.

Notwithstanding its own material breach of the Contract by refuing to pay for

work performed, the City, through UR , diected Durki to continue with the Project work

puruat to the modified design.
114.

At the diection of the City, Durki

contiued to work on the Project

fishig

much work as was available until in or about Janua, 2004 , when, because of weather concerns

KOP:269634v33514-

.'

...

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 25 of 30

and restrctions in the Contract specifcations , work was halted.
115.

As recently as mid-Jarua 2004,. the City approved Durki' s payment estiate

for work completed though Janua 2004.
116.

Durki fuher continued to have materials delivered to the Project for use when

the weather conditions permtted

fuer work.
NOTICE OF DEFAULT

117.

Section 15. 2

of the Contract provides

lited rights for the Owner to termate
rights.

a

contrtor for an alleged default , and fuer imposes express conditions precedent upon the
Owner to protect the contractor s procedural and substative
due process

U8.

Section 15.

1 though section 15. 2.4

of the

Contrct allow for a termation for

default only if the contractor ' 'persistently fails to perform the Work in

acrdace with the

Contract Documents... " or if the contrctor "disregards Laws or Reguations of any public body

havigjurisdictiori" or if the contractor "disregards t4e authority of the Engieer" or if the
contrctor " otherwse

violates in any substantial way any provision of the Contract Documents.

119.

Section 15.2.4 of the Contrt provides , in pertinent par, that
may, after

OWNR

vie CONTRACTOR (and the surety. if any). seven
permittd by

days written notice and to the extnt

Laws and Reeulations.

termiate the services of CONTRACTOR. " (Emphasis added)
120.

The language contained in Section 15.2.4 ofthe

Contract was an express

contractul requirement and procedural condition

precedent to the right of the City to termate

the Contract for cause and avail itself of the rights and remedies set forth in Section 15. 2.4.
121.

The City failed to provide Durki or Federal with the requied seven days wrtten

notice of its intent to termate the Contract for cause.

KOP:269634v3 3514-04

...

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 26 of 30

122.
. a letter

The last dated correspondence ftom the City prior to termating the Contract was

ftom the City Manager to Durki' s surety dated November 21 2003 , in which the City

Manager stated inter alia that " (O)n behalf of the City of Newark, Delaware , I am wrtig
inform you that we are now

considering

declarng (Durki) in default.. This

precautionary

letter has becme necessar followig (Durkir' s)failure to present a response to a mean and
metods for contiuation of the Project in accordace with our contract." The letter concluded
by statig tht "

we are requesting that a conference be held includig the surety representatives
and correct

(Durki), UR and representatives of the City. " (Emphasis added) A tre
letter is atthed hereto as Exhbit "
123.

copy of the

The requested meetig

occUled on December 9
above.

2003 , after which Federal

retained the servces of Dr. Richardson as outlied

124.

At its regularly scheduled meeting in Janua, 2004 , the City Counel did not raise

anyissues respecting any decision to formally declare Durki

to be in default of its obligations

under the Contract, or otherwse cite to the provisions of Section 15. 2.4 of the Contract as the

basis for termation of the Contract
125.

Subsequent to the City Council meetig in Januar 2004 , and up through the date

of termation of the Contract, neither Durki nor Federl received any wrtten notice of default
or any wrtten notice of an intent to termate the Contract pursuant to the provisions of Section
15. 2.4 of the Contract.

126.

It appears the decision by the City and City Council to termnate the Contract was

reached at the City Council meeting conducted on Febru 2 , 2004. The official minutes ofthe
City Council meeting held on Februar
2 , 2004 ,

provide:

KOP:269634v3 3514-04

,.

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 27 of 30

MOTION BY MR. GODWI, SECONDED BY MR. CLIFTON: THT DONALD DUR CONTRACTING, INC. BE TERMATED IMDIATELY FROM FUTHR INOLVEMENT IN THE CONSTRUCTION OF TH NEWAR WATER
RESERVOIR

BASED ON ITS REFUSAL TO PERFORM UNDER ITS CONTRACT
AR;

WITH THE CITY OF NEW

PROMPTLY AN PROPERLY NOTIFY DONALD M. DUR CONTRACTING INC. AN THE SURTY OF DUR, OF TH TERMATION AN DEMA THAT SAI SURTY FULFILL ITS LAWF OBLIGATIONS UNER ITS BOND WI DUR. (Emphasis fushed)
127.
The followig

AN THAT LEGAL COUNSEL FOR THE CIT

day, Febru 3 , 2004 , the City Manager sent a letter to Durki and
mail ,

Federa via facsimle and overght

in which the City "declared a Contractor default and

hereby formaly termates (Durkin)'s
November 21 ,

right to complete the contrt.. "

and fuer stated that the

2004 letter from the City Manager to Federal constituted its seven day advance

wrtten notice of intention to termate the Contract purant to Arcle 15 of the Contract.
128.

On Febru 5 , 2004 , a day after the Contract had been termated by the City, the

Citys attorney sent a letter to counsel for Durki and Federal which included a copy of the
response to Dr. Richardson s Janua 13 , 2004 report.
129.

As of the date the City and City Council termnated the Contract, the City had not

complied with the substantive or procedural due process rights embedded withi the Contract for

termation of the Contract for cause.
130.

At no time had Durkin breached the Contract with the City, or refued "to perform

under its Contract..
131.

Furher, the alleged refusal "to perform under its Contract.. " was specifically

contradicted by the certifications by the City and UR in mid-Januar approving Durki'
request for payment.

132.

The City, City Council and UR failed to afford Durki any substantive or

KOP:269634v33514-

. -

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 28 of 30

procedural due process rights in connection with the decision to termate the Contract for cause.
133.

Durki avers , upon inormation and belief, that the decision by the City and City

Council to termate the Contract was solely an attempt by the City and URS to ilegally foist the

ecnomic impact ofthe deficient modified design on Durki and/or its surety.
134.

The City' s termation of Durki for default has been reported in newspapers and
withi the public

becme "common knowledge"

contractig communty, specifically, and
private owners

without limtation, to other public agencies

and procurement offcials ,

contractors , suppliers, subcontractors and sureties; all of who Durki relies upon for its very

surival as a business.
135. .
In

point of fact, Durki fist leaed of the City' actions

teratig the Contrt

from a- newspaper reporter.
136.

Prior to receivig the City' s notice oftermation,

Durki was awaitin a response

to the fidings and report of Dur' s consultats that confed the design deficiencies in the
modified design, together with appropriate diection
from the

City, all as provided and prescribed

by the Contrct specifications.
137.

At all ties prior to receivig the City' s notice of default, Durki had fully

confonned with and to the requiements of the Contract.
138.

At all ties relevant hereto , the City and City Council acted under the color of

state law.
139.

At all times relevant hereto ,

UR acted as the agent of the City and under the

color of state law.
140.

All conditions precedent to the rights of Durki and the liabilities of the City, City

KOP:269634v3 3514-

-, "

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006

Page 29 of 30

Council and UR have been satisfied or have
141.
Januar 30

occured.

Subsequent to the City' s tennation of the Contract, Dr. Richardson reviewed the

2004 response from URS , visited the site, and examned additional documents

relating to the Project conditions.
142.

AI a result of his fuer investigation and fidings , Dr. Richardson published a

supplemental report to Federal dated March 11 , 2004 , in which he concluded the followig:
That the design associated with utilizing the Zone IV materials ,in the lowennost

porton of the interor embanent slope was not constrctale

as designed

that UR failed to include an essential element of the design namely proper
design measures for protective soil cover durg
the reservoir;
constrction and

durg fillig of

That the design associated with utilizing the Zone IV materials was deficient, in
that the soil layer comprised of the Zone IV materials would inevitably fail from
erosion, which would potentially clog the outlet strctue
and prevenf

the

reservoir from draig;
That UR has approved and overseen the instalation of Zone IV cover soils that

do not meet Project specifications and are higWy erosive with respect to surface
water;

That the UR specifications contaned in the Contrct do not preclude the use of highly erosive silty sand in the Zone IV materials , which should not be used on
exposed slopes;

That URS has not presented design calculations related to (1) the stability of the

KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS

Document 200

Filed 08/22/2006 7---

Page 30 of 30

perieter embanent system durg normal and failed lier
stabilty of the lier and protective soil

conditions ,

(2) the

layer durg draw down of the reservoir

(3) the liner system design and (4) the as- designed and modified underdrain
design and

fuher that the only calculations provided by UR were performed
the

this year, and not at the tie
documents;

design was incorporated into the Contract

That UR has npt presented any field data to substtiate

the

adequay of the

margial liner system and protective layer of soil cover;
That UR has represented that other reservoir facilities in the region use simlar

soil covers , but has not presented successful regional examples with both a servce
history and physical propertes of the soil to allow a techncal evaluation;

That URS has. failed to appreciate the ballast role ofthe protective cover soil in
protecting the geomembrae from floating and thereby exposing the subgrade to

full hydrostatic forces;
That UR has understated the potential for leakage though the mimal single
lier system;

That UR has misrepresented the quality of lier
project specifications ,

constrction

reflected in their
constrction

in that their level of quality control for lier

would not meet mium stadards for muncipal landfill liners , and is an

industr mium, which would lead to a signficant number of liner defects;
UR has not substatiated the stability of the operational cover durg
draw down

conditions and has presented no calculation to support their position, despite

KOP:269634v3 3514-04