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<br /> <br />DMG continues to call this alleged lost growth medium "B <br />horizon." The B horizon on the East side of the East pit <br />~.as 20 feet thick. <br />Amendment 1 118 says, "Prior to grading down the east side of <br />the pit, the top 1 foot of available topsoil will he <br />stripped and stockpiled to the east, north and south. <br />Following topsoil removal and segregation, the next 2 feet <br />of available overburden will be stripped and stockpiled to <br />the east, north and south for use as a growth medium." CWL <br />stripped and stockpiled the top 3 feet the entire length of <br />the east pit. In some areas there was no topsoil at all. <br />CWL stripped 3 feet in these areas also, above what was <br />required by the contract. The State got a larger volume of <br />growth medium than what was specified in the contract. <br />The DMG figures on the quantities lost go up as they loose <br />ground on the other items in my claim. The DMG's May 10th <br />letter and the testimony given to Sandra Brown, by John <br />Nelson, both say it was just the soil on the edge. This <br />proves my point that this and the holding of the retainage <br />are just coercive actions by DMG. <br />The DMG could have held progress payment under the terms of <br />the contract for the grading work task 11 if they thought. <br />CWL was not performing to contract specifications. (General <br />Conditions 1129.) This was not the case. The grading work <br />in this area was done March 1st and 2nd. DMG did not assert <br />a claim for lost growth medium until May 10th, and they <br />never did hold a progress payment on this work. It became <br />an issue with DMG was when CWL refused to move other topsoil <br />piles that were not identified in the contract to be moved <br />under lump sum topsoil prices. <br />114. The DMG's claim for liquidated damages is groundless. <br />The State added time to the contract. to place topsoil using <br />hourly equipment rental time. DMG-representatives directed <br />this work after the cutoff they claim for liquidated <br />damages. It is unfair to charge liquidated damages when you <br />are directing work by the hour. CWL asked for, but was <br />denied, time to complete the seeding and fertilization after <br />the topsoil was placed on equipment rental time. It appears <br />DMG wanted CWL to seed, then cover it with 6" of topsoil. <br />CWL believes these liquidated charges are also being used as <br />leverage and coercion to force CWL to settle. <br />The seeding could not be started until the topsoiling was <br />complete as CWL had topsoiled about halfway down all the <br />slopes when we ran out of topsoil. Later we went back and <br />started topsoiling at DMG's direction. We had to get back <br />on all the slopes to complete all this topsoiling. Further <br />at issue was the delivery of seed as required by the <br />contract. When John Nelson didn't deliver- the seed CWL <br />13 <br />