Free Affidavit - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

Document 179

Filed 01/06/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Defendants/Counterclaimants,

BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

AFFIDAVIT OF STEVE MCCORMICK IN SUPPORT OF LEPRINO FOODS COMPANY'S MOTION FOR SUMMARY JUDGMENT

Case 1:03-cv-02669-MSK-PAC

Document 179

Filed 01/06/2006

Page 2 of 4

I, Steve McCormick, testify as follows: 1. I am the Construction Contracts Manager for Leprino Foods Company and I make

this affidavit in support of Plaintiff=s Motion for Summary Judgment. I have personal knowledge of all facts stated in this Affidavit and would competently testify under penalty of perjury thereto if called as a witness. 2. I am and was Construction Contract Manager for Leprino Foods Company before

2000, the year Leprino began the Lemoore West Project. I am aware of the Lemoore West Project wherein Leprino constructed a facility in Lemoore, California, and the general contractor was known as Big-D. 3. I became familiar with the Agreement between Big-D and Leprino Foods Company

beginning in September of 2000. The Agreement (without the attached technical documents-plans and specifications) is deposition Exhibit 2. I personally interacted with Big-D personnel regarding administration of the Agreement. I was responsible for, among other things, reviewing and processing incoming potential change orders (APCO@) submitted by Big-D Construction regarding the Project. The PCO process is the method provided in the Agreement by which Big-D could request payment for any potential changes to the cost or time to complete the Project. hereto as Exhibit 1 is a true and correct copy of an example of a Big-D PCO. 4. After a PCO was submitted by Big-D on the Project, I, among others, reviewed the Attached

PCO, and if appropriate, processed it for approval. I am therefore personally aware of all PCO's and requests for compensation in writing submitted by Big-D. If a PCO was approved by Leprino Foods, Leprino Foods would generate a change order (ACO@) authorizing the proposed work for a particular amount. Attached hereto as Exhibit 2 is a true and correct copy of an example of a CO.

Case 1:03-cv-02669-MSK-PAC

Document 179

Filed 01/06/2006

Page 3 of 4

5.

The process by which PCO's were submitted by Big-D Construction and approved

by Leprino Foods and the resulting CO issued by Leprino Foods is memorialized in the Agreement, including the attached general and special conditions, deposition Exhibit 2. 6. I am familiar with the terms of the Agreement. Article 3.1 provides in part that the

Project shall be substantially complete by February 1, 2002. At no time did Big-D Construction submit a PCO requesting to modify Article 3.1 of the Agreement. 7. As Big-D Construction never submitted a PCO to Leprino Foods requesting

modification of Article 3.1 of the Agreement, Leprino Foods never executed a CO modifying Article 3.1 of the Agreement. 8. Big-D Construction never submitted a PCO to Leprino Foods requesting an extension

of time for performance as required by Article 45.1 and 45.5. 9. All change estimates (ACE@) submitted by Big-D Construction=s subcontractors were

included as attachments to support PCO's by Big-D. I reviewed those CE's when they were submitted by Big-D in support of a PCO. 10. On or after April 3, 2003, Big-D Construction transmitted six (6) binders containing

University Marelich Mechanical's ("UMM") denied change estimates ("CE") regarding the Project to Leprino's Lemoore West plant. Most of the CEs contained therein were never submitted to Leprino, and according to Big-D, they had all been previously rejected by Big-D. 11. On or about 5/27/03, Big-D transmitted UMM=s Request for Equitable Adjustment

(AREA@) to Leprino Foods. Attached hereto as Exhibit 3 are true and correct copies of excerpts of UMM=s REA. Prior to March of 2003, I never received notice or a request of any kind by Big-D (through whom UMM would process its request for compensation) with respect to CE's numbers

3

Case 1:03-cv-02669-MSK-PAC

Document 179

Filed 01/06/2006

Page 4 of 4

139, 162, 176,185, 364, 365 and 366. These CE's were dated April in the REA, but Leprino never received a copy before receipt of the REA in May of 2003. 12. During the course of the Project, I monitored and reviewed Big-D Construction=s

payment requests. At or about September of 2002, Big-D Construction exhausted by billing its entire general conditions budget of $2,703,792. 13. Big-D Construction demobilized from the Project site at or about the same time the

Project was turned over to Leprino Foods to start water testing on December 8, 2002. No PCO for an increase in general conditions costs was received before February 23, 2003, the date of PCO number 1390. I testify under penalty of perjury the foregoing is true and correct, except as to matters set forth in information I believe in, and as to those matters I am informed to believe that they are true and correct. Executed this 6TH day of January, 2006, at Denver, Colorado.

/s/ Steve McCormick

4