CONTACTS 
0201 - Thelen, Marrin, Johnson & Bridges  415 392 6320
020101 - Mr. Dario De Benedictis, Esq.

SUBJECTS
Following the Contract
Conditions Precedent, GC 10.8

0504 -    ..
0505 - Summary/Objective
0506 -
050601 - Follow up ref SDS 3 3136, ref SDS 1 7224.
050602 -
050603 - Dario suggested I talk to Peter Anderson.  Peter indicated strong
050604 - preference should be given to hearing claims.  Mitigation might be an
050605 - area for applying a remedy for failure to perform claim procedures.
050606 -
050607 -
050608 -
050609 -
0507 -
0508 -
0509 - Discussion
0510 -
051001 - Dario apologized for not returning my call sooner.  He has been out of
051002 - the office in recent weeks with medical and other family matters.
051003 -
051004 - Dario asked about the arbitration issue I called on?
051005 -
051006 - I did not mention the first matter...
051007 -
051008 -    1.  What is a reasonable action to take where a party in an
051009 -        arbitration does not follow an Arbitrator's instruction to
051010 -        disclose its claims to the other party?
051011 -
051012 - I did not mention the case at issue, but did ask about this...
051013 -
051014 -    2.  What is industry standard on AIA conditions precedent to filing
051015 -        a demand for arbitration that the claim first be determined by
051016 -        the architect or engineer (per analysis of article 10.8 in
051017 -        contract between owner and GC, on 980221, ref SDS 2 2511)
051018 -
051019 - Dario said he has not encountered this issue in arbitrations he has
051020 - done.  He suggested I talked to Peter Anderson.  Dario said Peter is
051021 - the arbitration expert at TMJB.
051022 -
051023 - I thanked Dario for taking time to call me, and wished him well.
051024 -
051025 -
051026 -
0511 -
0512 -
0513 - 1408 called Peter at TMJB
0514 -
051401 - Left message asking him to call.
051402 -
051403 -
0515 -
0516 -
0517 - 1508 Peter called back
0518 -
051801 - I thanked him for calling and explained my question about conditions
051802 - precedent for filing arbitration.
051803 -
051804 - Peter seemed to indicate this has not come up in cases he has handled.
051805 - He seemed to indicate there should be a strong willingness for AAA to
051806 - hear the merits of a case, rather than decide not to hear it because a
051807 - party failed to perform the contract requirement to submit claims to
051808 - the design professional.
051809 -
051810 - We considered the analogous situation under Caltrans contracts.
051811 -
051812 - Peter feels the long tradition that contractors file claims for
051813 - determination by the Chief Engineer justifies following that provision
051814 - in Caltrans contracts, but may not apply to other contracts.
051815 -
051816 - There was discussion that a benefit of having a designated design
051817 - professional initially determine claims is that it requires the
051818 - parties to assemble evidence needed to make a reasoned determination,
051819 - and thereby affords the parties with the greatest knowledge of events
051820 - and also the best opportunity to make corrections, to focus their
051821 - attention at a time when damages can be mitigated.
051822 -
051823 - In our case we are finding, as in many cases where this condition
051824 - precedent is not performed, the parties have lost evidence and have
051825 - largely forgotten a lot of material of facts.
051826 -
051827 - It seems appropriate that a contract provision should not simply be
051828 - ignored, because otherwise the question arises about why other
051829 - provisions should not also be ignored and in that case neither party
051830 - has any grounds for recovery because they never agreed to anything.
051831 -
051832 - Peter said he is unsure about what should be done to encourage better
051833 - performance.
051834 -
051835 -
051836 -
051837 -