Invoice or notice re: WTC Air Quadrant D, Oct 2004

NYC 9/11 Public Portal Document

Sections 3(h) and (i) in a vacuum is improper. These must be read in conjunction with Section 2, “Cleaning of HVAC Systems.”

Your client’s argument that the individual apartments contained “HVAC” systems, requiring extra work, rather than simple window and room air conditioners is simply a case of semantics. The mere fact that DEP issued Change Order No. 2' to cover HVAC units in common spaces is not tantamount to the Department’s belief that this was extra work in all Cases. Rather, had the Department been of that belief, one can assume that the HVAC units in the residences would have also been included in the Change Order, which they were not.,

In its Dispute, Termon argues that this work was outside of the scope of the Contract. I have been advised that EPA and the Department disagrees with Termon’s position. Had Termon believed all along that this was “extra work,” it should have brought this to the attention of the EPA and the Department right away. However, Termon did not do so, choosing instead to perform the work, then seek additional recovery for contract work.

3. HVAC Units at 395 South End Avenue

With respect to the common-space HVAC Units at 395 South End Avenue, I have been advised that Change Order 2 related to instances in which the entire building’s system required work, which was not necessarily realized when the Contract was let.

When asked to provide the HVAC cleaning estimate for 395 South End Avenue for the Change Order work, Termon did not include the common-space units. Prior to preparing the estimate. Termon or its subcontractors had the opportunity to investigate the site. If Termon truly believed this work was to be part of the Change Order, it should have been included in the estimate provided to the Department. It appears that The EPA, responsible for approving or disapproving the invoices, made a determination that these twelve units were not separately billable under the,Change Order, as they were part of the common space work contained in the Specifications. As such, because this particular work was not extra work, as determined by EPA, additional compensation is not warranted.

Further, the $6,000 Termon claims was included in Payment Invoice No. 24 was not included therein. Rather, the Invoice, signed on September 8, 2003, was for two apartments in the building, not any common space HVAC units.

4. Baseboard Heaters in Common Spaces

As to the baseboard heaters, Section 3(r) states that “[bjaseboard heaters will be cleaned” in Residential Areas. Again, this cannot be read in a vacuum. Permeating the Contract is the statement that “[t]he Cleaning Contractor is responsible for cleaning residences, common spaces, and portions of HVAC systems identified by the Monitoring Contractor.” This means that when the Monitoring Contractor directs the Cleaning Contractor to do something that falls into those categories, the Cleaning Contractor is contractually bound to do so. In fact, in his September 23, 2003 in response to Termon’s Payment Applications 22, 23 and 24, R. Radhakrishnan, P.E., Director of the Asbestos Control Program states that neither the cleaning

' Termon erroneously referred to Change Order No. 3, which does not exist. Termon meant to reference Change Order No. 2.

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