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HomeMy WebLinkAbout2021CV30470 - CITY OF FORT COLLINS v. AMERICAN CIVIL CONSTRUCTORS, INC. AND AMERICAN CIVIL CONSTRUCTORS, LLC - 001 - CITY OF FORT COLLINS COMPLAINTDISTRICT COURT, LARIMER COUNTY, COLORADO 201 La Porte Avenue Fort Collins, CO 80521 Plaintiff: City of Fort Collins v. Defendants: American Civil Constructors, Inc. and American Civil Constructors, LLC ▲COURT USE ONLY▲ ATTORNEY FOR PLAINTIFF John W. Mill, Atty. Reg. #22348 Mill Construction Law LLC 1040 S. Gaylord Street, Suite 8 Denver, CO 80210 Phone Number: (303) 601-5635 Email: john@millconstructionlaw.com COMPLAINT AND JURY DEMAND Plaintiff the City of Fort Collins (“City”), by and through its counsel, Mill Construction Law LLC, for its Complaint against Defendant American Civil Constructors, Inc. and American Civil Constructors, LLC (collectively “ACC”), states and alleges as follows: PARTIES 1. The City of Fort Collins is a Colorado home rule municipality. 2. American Civil Constructors, Inc. and American Civil Constructors, LLC according to the Colorado Secretary of State have the same date of formation and are one and the same entity having a principal office address of 4901 South Windemere Street, Littleton, CO 80130. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction pursuant to C.R.S. § 13-1-124 because this action concerns a construction project and business transactions within the State of Colorado. DATE FILED: June 30, 2021 5:28 PM FILING ID: B4BF12F473516 CASE NUMBER: 2021CV30470 2 4. Venue is proper in Larimer County under C.R.C.P. 98 because this action relates to construction defects affecting real property located in Larimer County and relates to contractual obligations or services that were performed, or were to be performed, in Larimer County. GENERAL ALLEGATIONS 5. This action concerns the defective design and construction of a pedestrian underpass at Prospect Road and Center Avenue in the City of Fort Collins, County of Larimer, State of Colorado (“the Underpass”). 6. ACC was the general contractor on the project to design and construct the Underpass. 7. The Underpass is approximately 18 feet wide by 92 feet long and is located in the City’s right-of-way on Prospect Road in Fort Collins. The Construction Contract 8. Colorado State University (“CSU”) and ACC entered into a Consultant Agreement dated September 24, 2015 to begin design work on the Underpass and a Design/Build Lump Sum (LS) Agreement dated October 7, 2015 for the design and construction of the Underpass (collectively “the Construction Contract”). 9. Under the Construction Contract, ACC was obligated to design and build the Underpass in accordance with the plans, specifications, applicable building codes, CSU’s performance specifications, CSU’s construction standards and all other CSU requirements, the General Conditions of the Design/Build Lum Sum (LS) Agreement and all other applicable requirements (individually and collectively “the Project Requirements”). Among other things, the general conditions of the Construction Contract and the specifications required “[t]unnel to be moisture protected and surfaces waterproofed.” ACC also was obligated to perform all design services in accordance with applicable standard of care. 10. Under the Construction Contract, ACC was obligated to warranty the work on the Underpass against defects in materials and workmanship. City’s Acceptance and Ownership of the Underpass 11. CSU granted to the City a Deed of Dedication for Right-of-Way to convey to the City the portion of the Underpass that is in the City’s right-of-way, which was recorded in the public real estate records of Larimer County on June 24, 2016 at reception no. 20160040358. 12. The City and CSU entered into a Memorandum of Understanding (Prospect and Centre Underpass) dated June 13, 2017 under which the City assumed ownership, and responsibility for maintenance, of the Underpass in the City’s right-of-way including the 3 structure within the Prospect Road right-of-way including all concrete (pre-cast and cast-in- place). The Defects and Resulting Damages 13. The ceiling of the Underpass is leaking through multiple joints between the concrete panels used to construct the ceiling. 14. ACC negligently and improperly designed and/or constructed the Underpass. ACC decided to change the design from a precast concrete box to drilled pier walls with post- tensioned precast concrete top slabs for the ceiling. That introduced joints into the ceiling of the tunnel of the Underpass; these are the joints that are leaking. ACC also failed to use reasonable care with respect to waterproofing the ceiling of the Underpass and failed to construct the Underpass in accordance with the Project Requirements. ACC’s negligent acts and omissions and breaches of its contractual obligations have caused the defects, the leaking and the resulting damages. 15. The defects have caused, are currently causing and unless repaired will continue to cause physical damage to the City’s property including efflorescence and staining of the concrete ceiling, deterioration of the concrete, rusting of metal reinforcing in the concrete and other damages and deterioration. 16. The defects also have caused, are currently causing and unless repaired will continue to cause standing water on the floor of the Underpass. This causes wet, slippery conditions that constitute a safety hazard to pedestrians and bicyclists using the Underpass for its intended purpose. This safety hazard is worse in freezing weather when the puddles freeze and create icy patches on the floor of the Underpass. This creates a risk of personal injury to the CSU students and other members of the public who use the Underpass. This could result in potential liability for the City. The defects also are causing and will continue to cause the City to incur additional costs to monitor and inspect the Underpass, and to attempt to redirect water to avoid or reduce the water puddling and resulting safety hazard, and additional engineering fees. 17. The defects, leaking and deterioration also is decreasing the useful life of the Underpass. This will over time cause the City to incur additional costs for maintenance of the Underpass and substantial damages to pay for the premature replacement of the Underpass. 18. ACC improperly designed and/or constructed the Underpass. Among other defects, ACC improperly installed the waterproofing membrane on top of the concrete panels constituting the roof of the Underpass, damaged the waterproofing membrane during installation and/or backfilling operations and/or in other ways failed to properly design and construct the Underpass in a manner that has caused the leaking and damages. 4 19. The defective construction includes ACC’s failure to cut off or remove the lift holds or left rings on the concrete ceiling panels after the panels were put in place and before the waterproofing membrane was installed. ACC left these in place, which saved ACC a little effort but made it difficult if not impossible to properly install the waterproofing membrane around the protrusions to achieve a watertight seal. There was no bituminous waterproofing membrane applied or installed in the middle of some or all of the lift holds or lift rings; this was a clear path for water intrusion. As a result of this defective installation, the waterproofing membrane over the ceiling of the Underpass is not tight, not sealed and not effective at performing its intended function which was to keep water out. Notices of Claim 20. Pursuant to the Construction Defect Action Reform Act, C.R.S. § 13-20-801 et seq., on August 13, 2020 the City and CSU gave notice to ACC of their claims for construction defects at the Project. 21. Pursuant to C.R.S. § 13-20-805, the notice of claim tolled the statute of limitations and statue of repose on claims by CSU and the City against ACC until sixty days after completion of the notice of claim process. Tolling Agreement 22. On December 10, 2020, with an effective date of November 30, 2020, ACC, the City and CSU entered into a Statute of Limitations and Repose Tolling and Extension Agreement (“the Tolling Agreement”). 23. The Tolling Agreement tolled the running of the statute of limitation and statute of repose on all claims by the City and CSU against ACC from November 30, 2020 to June 30, 2021. Assignment to City of CSU Claims Against ACC 24. On June 30, 2021, the City and CSU entered into a Settlement Agreement, Assignment and Release whereby CSU assigned to the City any and all claims and causes of action by CSU against ACC regarding the construction of the Underpass. The assignment includes assignment of any and all claims and causes of action by CSU under the Construction Contract. 25. Therefore, in this action the City is able to assert and is asserting both (i) claims by CSU as the party that entered into the Construction Contract with ACC (including for breach of ACC’s warranty obligations), and (ii) claims in the City’s own right as the owner of the relevant portion of the Underpass. 5 PART ONE: CLAIMS BY CSU AGAINSt ACC THAT HAVE BEEN ASSIGNED TO THE CITY FIRST CLAIM FOR RELIEF (Breach of Contract) 26. The City incorporates herein by reference all of the allegations set forth above. 27. The Construction Contract is a binding and enforceable contract for the design and construction of the Underpass. 28. Pursuant to the Construction Contract, ACC was obligated to design and construct the Underpass in accordance with all Project Requirements 29. ACC breached its contractual obligations by, among other things, not properly designing the Underpass, not properly installing the waterproofing membrane over the ceiling of the Underpass, not removing the lift holds or lift rings from the concrete ceiling panels before attempting to install the waterproofing membrane and in other ways. 30. ACC’s breaches of its contractual obligations have caused the City to incur damages in an amount to be proven at trial. SECOND CLAIM FOR RELIEF (Breach of Warranty) 31. The City incorporates herein by reference all of the allegations set forth above. 32. ACC agreed to warranty all of the work on the Underpass. ACC specifically warranted that the work “shall in all respects be free from material defects not permitted by the Specifications and shall be in accordance with the requirements of the Contract Documents.” Article 42, General Conditions of the Design/Build Lump Sum (LS) Agreement. 33. CSU and the City gave notice to ACC of the defects at various times including in the notice of claim dated August 13, 2020. 34. ACC has failed and refused to correct the defects and has breached its warranty obligations. 35. ACC’s breaches of its warranty obligations have caused the City to incur damages in an amount to be proven at trial. 6 THIRD CLAIM FOR RELIEF (Negligence) 36. The City incorporates herein by reference all of the allegations set forth above. 37. ACC had a duty to perform its design services in accordance with the standard of care applicable to architects, engineers and other designers. 38. ACC failed to use reasonable care in performing its design services and breached the applicable standard of care. These breaches include, but are not limited to, changing the design from a precast concrete box to drilled pier walls with post-tensioned precast concrete top panels and not requiring in the plans and specifications that the lift holds or lift loops be removed before application of the waterproofing membrance. 39. ACC’s breaches of the standard of care have caused the City to incur damages in an amount to be proven at trial. PART TWO: CLAIMS BY THE CITY AS OWNER OF THE UNDERPASS FOURTH CLAIM FOR RELIEF (Negligence) 40. The City incorporates herein by reference all of the allegations set forth above. 41. The City was not a party to the Construction Contract, was not a party to any subcontract relating to the construction of the Underpass, was not involved in the inter-related series of contracts regarding construction of the Underpass and had no involvement in the allocation of risk between CSU, ACC, subcontractors and others involved in construction. 42. Because the Construction Contract was a design-build contract, ACC designed the Underpass and had a duty to perform its design services in accordance with the standard of care applicable to architects, engineers and other designers. ACC’s breaches of the standard of care include, but are not limited to, changing the design from a precast concrete box to drilled pier walls with post-tensioned precast concrete top slabs and not requiring in the plans and specifications that the lift holds or lift rings be removed before application of the waterproofing membrane. 43. ACC also had a duty to those outside the inter-related series of contracts regarding construction (including the general public users of the Underpass and the City) to use reasonable care in the construction of the Underpass. ACC failed to use reasonable care in the construction of the Underpass by, among other things, not properly overlapping the pieces of waterproofing membrane on the top of the concrete panels constituting the ceiling, not removing the lift holds or lift rings before applying the waterproofing membrane and not properly applying the waterproofing membrane. 7 44. ACC failed to use reasonable care in the design of the Underpass and breached the applicable standard of care, and failed to use reasonable care in the construction of the Underpass, and therefore was negligent. 45. ACC’s negligence has caused the City to incur damages in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, the City requests that the Court enter judgment in favor of the City and against ACC on all claims and award the City all of its damages including (i) all costs to repair or replace the waterproofing membrane, remove the lift rings or lift holds on the concrete panels constituting the ceiling of the Underpass and perform all other necessary repairs; (ii) all costs to repair all damage and deterioration to concrete, metal and other components of the Underpass, (iii) an amount representing the full value of the decreased useful life of the Underpass considering the deterioration caused by the defects, public safety and the substantial future costs that the City will incur to prematurely dig up and replace the Underpass; (iv) all costs incurred by the City, including the value of the time of City employees, to deal with the defects as well as the additional costs to monitor, inspect and maintain the Underpass; (v) all engineering and expert fees incurred by the City; (vi) interest as provided by contract or law; (vii) all court costs incurred by the City; and (viii) all other relief the Court deems just and proper. JURY DEMAND Plaintiff demands a jury trial on all issues so triable. Dated: June 30, 2021 MILL CONSTRUCTION LAW LLC Original signature on file for review upon request at the office of Mill Construction Law LLC. By: s/ John W. Mill John W. Mill, #22348 Mill Construction Law LLC 1040 S. Gaylord Street, Suite 8 Denver, CO 80209 Attorney for City of Fort Collins Address of Plaintiff: 201 La Porte Avenue Fort Collins, CO 80521