Free Appendix - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 1 of 29

receiving a wrtten

request ftom

Durki on this subject on September 10 2003;

UR has misrepresented the placement of stone over Fabrifonn as a standad
practice , when in fact, according to the manufactuer of Fabrifonn, ths is the fist
time this application has been done, and fuer that it is being done agaist
Fabriform manufactuer s recommendations;
the

UR has misrepresented the stabilty analysis of the upper slopes by overstatig
the accuracy of the single test data available on the Fabrionngeotextile interface

and failed to acknowledge that this test has never been perfonned before and
therefore no statistical basis for evaluatig
the accuracy of

the test exists;

UR misrepresented to Durkin and the City that it had evaluated the stability
the Fabrifonn system prior to biddig the Project and

begig constrction,

when in fact UR only evaluated the stability ofthe Fabrifonn to the geotextie in

2004;

UR misrepresented that it had evaluated the stability of the riprap stone on the
Fabrionn and the interface shear strength, when in fact this stability analysis has
never been perfonned; and

UR failed to convey critical constrction requiements to Durki prior
commencing constrction, namely that equipment

canot operate on the
can be

Fabriform, and the upper soil berm must be placed before the ripra
placed.
143.

Dr. Richardson fuer concluded that the curent URS design presents

unecessar risks to Durki durg constrction, and to the City and its residents durg long
KOP:269634v3 3514-

-'-

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 2 of 29

term operation of the reservoir.
COUN I -

VIOLATION OF CIVI RIGHTS

144.

Durki hereby incorporates by reference the foregoing and followmg paragraphs

as though fully set fort.
145.

By

vie of the above conduct, the City, City Council and UR violated and
as a result of which the

continue to violate the procedural and substantive due process of Durki

City, City Council and URS are liable to Durki for the violation of Durki' s civil rights
pursuat to 42 U.
146.
c.

1983.

By

vie of such conduct, the City, City Council and UR have caused and are

contiuig to cause Durki to suffer signficant damages and ireparable har to their reputation
and ability to contract with suppliers , subcontractors , sureties and owners.
147.

Durki is entitled to the relief set forth below, includig an immediate declaration

that the City materially breached the Contract by refusing to pay Durkin for its work, thereby

deprivigDurkin of propert without affordig it due process.
148.

Afer the declaration of default, the City and UR theatened to confscate

Durki' s equipment.
149.

Afer the declartion of default, the City and UR did confscate and convert

materals provided to Durki by its suppliers and subcontrctors.
150.

The City and UR continue to withhold payment for work performed by Durki

which work has been accepted by the City and URS.
151.

Durkin is entitled to imediate, injunctive reliefto halt the continuig ireparable

har to its abilty to secure additional work and also to its reputation as a professional contractor.
KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 3 of 29

152.

By vire

of their above conduct, the City, City Council and URS have violated

and contiue to violate the procedural and substantive due process rights of Durki as a result of

which the City, City Council and UR
pursuat to 42 D.
153.
C. Section 1983.

are liableto

Durki for violatig Durki' s civil rights

By

vie of such conduct, the City, City Council and UR have caused and are
below.

continuig to cause Durkin to suffer daages.
154.

Durki is entitled to and requests the relief set fort
Plaitiff requests the

WHREFORE

followig relief:

The issuace of inunctive reliefto halt the contiuing violatons of Durki' s civil
rights includig the declaration that the City, City Council and UR failed to provide the
requied procedural and substative due process

to Durki;

An injunction requirig the City, City Council and UR to cease all contiuig
unawful conduct,

includig the confscation of Durki' s propert, interference with Durki'
contracts with its suppliers , subcontractors , surety and owners;

curent and prospective

A declaration that the City' s action to termate the Contract for cause was

wrongful, and that it is vacated;
An award of compensatory damages against the City, City Council and URS , in an
amount in excess of applicable arbitration lits ,

plus interest, as penntted by law;

An award of puntive damages against UR , as permtted by law;
Counsel fees and costs , as permtted by law; and
Such other relief as the Court may deem appropriate.
COUN II -

INTERFERENCE WITH EXISTING AN PROSPECTIV CONTRACTS

KOP:269634v33514-

,.

Case 1:04-cv-00163-GMS

Document 200-2

Filed ':-7 08/22/2006

Page 4 of 29

155.

Durki hereby incorporates the foregoing and followig

paragraphs as

if set forth

in full herein.
156.

The City, City Council and UR were at all ties required to act in good faith and

in accordance with law and the legitiate governental interests of the City, and not on the basis
of personal motivations or bias , or to conceal a defect in URS' modified design .
157.

As set fort

above,

the City, City Council and UR have intentionally interfered

with Durki' s existing surety contract with Federal and by falsely allegig a default, and have

alo interfered with prospective contracts which would be based upon Durki' s perfonnance on
the Project.
158.

As set fort

above,

the City, City Council and UR have intentionally interfered

with Durki' s existig contrcts with Durki' s suppliers and subcontractors.
159.
By virte of such

conduct, the City, City Council and UR have caused and are

continuing to cause Durki to suffer damages.
160.

Durki is entitled to and requests the relief set fort

below.

WHREFORE Plaintiff requests the followig relief:
An award of compensatory daages agaist the City, City Council and URS , in an

amount in excess of applicable arbitration limts , plus interest , as permtted by law;

An award of puntive damages agaist UR in the event such Defendants are
found to have acted outside the scope of their authority, as pennitted by law;
Counsel fees and costs, as permitted by law;

An injunction requig the City, City Council and UR to cease all contiuing

unawful conduct; and

KOP:269634v3 3514-

Ln__ Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 5 of 29

Such other relief as the Cour may deem appropriate.

COUN il - DEFAMTIONffRAE LIABLE
161.

Durki hereby incorporates the foregoing and following paragraphs as if set fort

in full herein.
162.

As set forth above , the City, City Council and UR , without privilege to do so

defamed Durki by falsely statig that Durki was in default.
163.

Upon inormation and belief, the City, City Council and UR , Without privilege

to do so , have falsely claimed that Durkin improperly procured the report of Dr. Richardson, and

have fuher stated to persons with the public contrcting communty that the report by Dr.
Richardson was false. (The

fu details of the statements are not now known to Durki since
UR and the City from Durki J.

same has 'been concealed by
164.

Upon inormation and belief, UR' prepared a "response" to Dr. Richardson

report that, included inormation and statements that UR knew was false and improperly

obtaed.
165.

As set forth above, the City, City Council and UR , without privilege to do so

. have falsely claied that Durki failed to meet the Project specifications.
166.

By vire

of such conduct, the City, City Council and UR have caused and are

continuing to cause imedate and ireparable damage to Durki' s reputation.
167.

Durki is entitled to and requests the relief set fort
the

below.

WHEREFORE , Plainti requests

followig relief:

An award of compensatory damages agaist the City, City Council and UR , in an
amount in excess of applicable arbitration limits , plus interest, as penntted by law;

KOP:269634v3 3514-

'=---

--

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 6 of 29

Al award of puntive damages

agaist

UR in the event such Defendants are

found to have acted outside the scope of their authority, as permtted by law;

Counel fees and costs , as permtted by law;
An injunction requirig the City, City Council and UR to imediately retract all
false ' and misleadg statements and to cease all continuig unawful conduct; and

Such other relief as the Cour may deem appropriate.

COUN IV - CONVRSION
168.
in ful herein.

Durki hereby incorporates the foregoing and followig

paragraphs as

if set fort

169.

The City and UR' appropriation of the materials purchased by Durki but not

paid for.by the City, was wrongfl and constitutes a conversion of Durki' s propert.
170.

Durki is entitled to reimburement of the fair market value of the materials

which were wrongfuly converted by the City and URS , as well as the retu

of those materials to

Durki.

WHREFORE

Plaiti

requestS' the

following relief:

An award of compensatory daages agaist the City, City Council and UR , in an
amount in excess of applicable arbitration lits ,

plus interest, as permtted by law;

An award of puntive damages against UR in the event such Defendants are
found to have acted outside the scope of their authority, as permtted by law; Counsel fees and costs , as permtted by law;
The retu

of all materials wrongfully converted by the City and URS; and

Such other relief as the Cour may deem appropriate.

KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 7 of 29

COUN

V -

FRUD

AN MISREPRESENTATION
paragraphs

171.

Durki hereby incorporates the foregoing and followig

as if set forth

in full herein.
172.

UR and the City have made the followig false and fraudulent

misrepresentations to Durki, inducing and intendig Durki to rely thereon, to their detrent:
That the Contract plans and specifications fully disclosed all relevant inonnation;

That UR and the City would proceed in good faith to review all design issues;
That UR and the City would review and evaluate Durki' s notice pursuant to
2 of the Contract reasonably, in accordance with law and in good faith, and in accordance

with their legitiate governental interests and without regard for personal biases or private
motivations.
173.

Durki reasonably relied on . the

above frudulent misrepresentations ,
raising

to its

detrment as set forth above, only to be termnated for legitiately
design deficiencies relating to the constrctability
Contract.
of the Project

life safety issues and
by the

work as requied

WHREFORE

Plaitiff requests the

followig relief:
the

An award of compensatory damages agait

City, City Council and UR, in

amount in excess of applicable arbitration limts , plus interest, as permtted by law;

An award of puntive damages agaist UR in the event such Defendats are
found to have acted outside the scope of their authority, as pertted by law;

Counel fees and costs , as permitted by law;
An injunction requig URS and the City to cease all continuig unawful

KOP:269634v33514-

. .

L-J Case 1:04-cv-00163-GMS
conduct; and

Document 200-2

Filed 08/22/2006

Page 8 of 29

Such other relief as the Cour may deem appropriate.

COUN VI - COMlON LAW CONSPIRACY
174.

Durki hereby incorporates the foregoing and followig

paragraphs

as if set forth

in fu herein.
175.

Upon inormation and belief,

UR and the City have engaged in and continue to

engage in a common law consircy to violate Durki' s rights , commt the above intentional

tort , and cause the Plaiti
176.

to sufer daages.

By vie

of such conduct, UR and the City have caused, and are contiuig to

cause Durki to sufer daages.
177.

Durki is entitled to and requests the relief set forth below.

WHREFORE , Plaintiff requests the followig relief:
An award of compensatory damages agaist the City, City Council and UR , in an
amount in excess of applicable arbitration lits ,

plus interest, as permitted by law;

An award of puntive daages

againt UR in the event such Defendats are

found to have acted outside the scope of their authority, as permtted by law;

Counel fees and costs , as permtted by law;
An injunction requig

UR and the City to cease all continuig unawful

conduct; and
Such other relief as the Cour may deem appropriate.

COUN VII - BREACH OF CONTRACT
178.

Durki incorporates by reference all prior paragraphs as though full set fort.

KOP:269634v33514-4

.,

. ,

..
Case 1:04-cv-00163-GMS Document 200-2 Filed 08/22/2006 Page 9 of 29

179.

The City has materially breached the Contract as follows:

Termating the Contract for default without following the prescribed
procedures and without providing the requisite notice required by the Contract and by due
process of law;

Termatig the Contract for default without havig proper legal and
factual basis therefor, and for reasons which the City either knew or had reason to know
were not tre;

Failig to pay

for all work perfOlm

on time and in full , includig the

balance of the Contract improperly termat

together with lost profits , unbsorbed

overhead and other costs;
Failig to pay

for all diected and necessar additional and extra work to

address omissions and deficiencies in the Contract documents and the arbitrar
enforcement of specifications by UR, as more fully described in the precedig
paragraphs herein and

Wrongfly appropriating and converting the propert of Durki without payment
for same.
180.

The foregoing breaches of Contract by the City excuses Durki from all remainng

Contract obligations.

WHREFORE Plaintiff requests the following relief:
An award of compensatory daages against the City, City Council and URS , in an

amount in excess of applicable arbitration limits , plus interest , as permtted by law;
Counsel fees and costs , as permtted by law; and

KOP:269634v3 3514-

' 1
8\

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 10 of 29

Such other relief as the Cour may deem appropriate.

POWELL, TRCHTMA, LOGAN, LOMBARO, P.
By:

ul A. Logan Delaware Supreme Cour il #3339 475 Allendale Road, Suite 200 Kig of Prusi P A 19406 Telephone: 610- 354-9700 Telefacsimle: 610- 354-9760 E-mail: plogan owelltrchtman. com

ft

c.

Attorneys for Plaintiff

JUY TRIAL DEMAED
Plaitiffhereby requests

a trial by jur

on

all issues so trable.

By:

Paul A. Logan

KOP:26963v3 3514-04

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 11 of 29

EXHIBIT A

) .' .

, '

- .

1t

Case 1:04-cv-00163-GMS

Document 200-2
. CO

Filed 08/22/2006

Page 12 of 29

- partic lars -in-which. this bl$pecton

take such meaures as are necesSary to complete .suc remedy such defi9ienci

complete

:Or

defective.

s. ONTRACTR s

i-vea$ t at the Work is
all immecJl

tely

h Wor or

If. throgh nO fault of CONTRR; fina co. is s!siflcatitly delayed ar ifBNGIN pleton oftb
14. 14.

. so connn!l. O

ER ;5hal, upon

Appln lor P(qmfni:
14. 12. .After

final Applicat for NEBR, . Md
copleted 8Qd

ment 9f the balance d
. the - retnag sti

make wit terinating tthe Astt Work 1IY- . funy porton
for

payment. an remendtion of ENOl. .

reipt orCONTR'
of -

:opra instctions. -schedules.. g\lar te, Bons, :certif - cate orothefevidenee ofinsuranc:reuire' by pah 5.
fites of - inspetion,

accrdan with the Gonttact Docments all

CONTRACTR has completed all suc corons to the satsfaction of UNGINEER and: delivere in
nintenanc

acted. Jf
reuire !n

the remaning balanc to. be held by . .

OWNBR for Wo.rk no
been furnishe as

lIy complet

or comc
h .

is less

atCd in die

Asment, and if Ools
plete and a
payment pted shal

h

set of -th
portion or the

sure to th payment of the. balanc - due for tht

5. It . the writt con

maed up- . rerd

Ocments -(as .

- . :: provided in par.rah 6.:19) and other doCuments, Wing the -- TOR may - mae. application . tor.t\nai Pay nt f911 ppli tio for ure: fOr p'rogrss payien The ,.nal (ex t as p viously de1i . Paym nt sha be actmpan
- by: (0 documentation

CONT

or fully cO

sub

iUe by;

R to ENGlNBJlR wit" the. ApIi-

:. cation for su

payment, . Sucb'

th terms and
- it s
lIlit

Coltj11 governing final Payment, excC
tut Ii waiver

hal be mad. undr'

of clams.

tht

re WalverolCl: (ii)ConSetOfthesur, i(any, toftnal. . by ubpanijmS. eftecYe: lea_ br 15. .The mang and acPtanc - of final paymt. will - payment; and (ui) winp1et and legaly1Jurisins out of or 14. . waverS (saisfacry to OWNER) of. constitute.
inc1udini but not limited - to
the.

Ied for in the _

Contrct DOmets.

evider of insurace

fied -in. connecion wit

jptS' orrCeaSesin- tUliandanam ipts incude all : CONTCTR. Chai: (i) 'tbe- rele8 eriaJ- and equipmentfor:-wtdCh a Uen cold. :serViC, ed, and (ii) 1"payroUs; nm erahnd equipment biUnnd - : OWNR othindeb ednessconnected w t" th Workfor

- roRmay_ fumishr

WaverofLins hs. approved by.. OWNaR.-CQNTC . vitof

Work - In .tieu p( sy

rel

. 14. 15. 1. . ;a waver. of ,,!I c18l
d(fecl,ve

by: OWNE
er

excep dal!ls ansJngfr

ccUens,

lar

WOJK ap

lOn .punu.

- to - pa

lI, frm f'l

COn

- or OWNER' s CJroperty i1Bht in any- way- be reposible have pad or. otherse satiSfed.- If any Subcntrctor or - - Supplier - failS to fuinh: sucli - a releac. or receipt in

be

CONn factoryto OWNER to i
FbU PaytM QlIr

. full,

..fied thcr n..orJto the Contrac Douments, tagtions u
. 14. IS.

Do!'ents or

the .tes- of a

. to CCI WIth
R 8

"tes
nst

" ob-

ilclai

bYCO

ay ft1l1

h a Bond or . other -

lIatera satis

errnif OWNE

inst any

Lie

Ow:

other","n thse previously mae iia wrting

still unsetded.. . .

cc:
tlU

. - 14.

13. If, - on the bais of ENOINnERts obtion of the .

. ARTICLE IS-USPENSION OF WORK AND.

TERMINATION:
WOl

. . Work duri

ionand finaJ inspetion, and ENOI
for

. 'NEBR'

- review - of. the final Aplication

Payment and

.I
. OWNER M!'
15. 1.Sq

the Work has ben . Doents, ENOINEBR is. satisfied s othr .0bHsations under the . and CONTCTR; . Comple n fulfled, BNGINEER wnt, , COntrct Douments have ion for within ten days afer rejpt of . the fiitaJ reendation. Paymen , iftcate in writing BNGINEER'
of yment At the

8Cmpany

doctmentati9n - as

reUire by

th

-the Contract

- OWNER may .us. At any time. and without cause, Qf not more the Woli or any Portion therf-for a

pe

than ninety days by 11Ce

in writing to

R an

ment. notice to . OWNER an

nd present the Application to OWNER for paye time. BNGINEER wnt - also give wrtten-

BNGINBER which wil" fix sha . resumed.
so fixed.

acptale subject to

CONTRctR. tht

th provisions of wil

th Work t4. 15. Otb-.

CON'R

CONTR

the - date on which, W
Iowed an

" will bQ .

reum-th WOl on th
ustmnt In the
COtrt Times,- Or

shall be

Contract

an extension oftbe

erwise, BNOINEE

tum the AppUcatin . 10.

. TRACTR. indicating

in writing the

remmend final payment, in whi

ca CONTRR

rens

CON. .
shall.

diajtly

utale to any such suspension

IfCO

TRR.'
I'

bo,

for.d'using to

. makes an approved

theror as pro\t1de in Artclei

and 12.
OWNER

mae the necsary colTtions and resubmit the AppUcation.

. . J'rty

tion aI aC(mpanylng documentat.on. in apprrie fonn and and substa and with BNGINBERt by ENGI. . notice of aCeptabilty, - the amount NERR wnt beme due and wil be . pad by OWNR to

days afer the presentation to OWNER of th

App1ica.

retion remM

following evens:

15.2.

Upo the.

nc. of any one ,or mor of t

:t

, ... .

.\

..

. . . .

l' ,
. 15.

. _
Case 1:04-cv-00163-GMS J" " Document 200-2
:to peifon

Filed 08/22/2006

Page 13 of 29

. th Work hi accrdance with :the COtrat

2..1. :ifCoNTRR . Persist

tly fails

poumentS Iuding but not limited to, failure to supply suffcient sk lted r tquipment. or . failu wOrers or . suitable I'teriais adhe tQ Jhe proress sc eduie es bliShed .under 6); tt as a(lusted frJ1 time to tune p
15. 2. if CONTRACTR disrgards Laws dons : of any public boy havtri jurisdiction; 15.2.2.

parrah. parh 6.
or.Regulathority of

. . :15. 2. for expenses sustained pri to the e . of terination in perfonnngservice and fumishing labor. . materials or equipment as reuire by . eCoirct :I)uments . in . connection with uncompleted Wor. plus fair and

ona sums for oVerea
. for all claims,

d profit: on such xpen.ses;

S.4.

costs, . t95ses and

damag incu

in settlentent of terminai cOntrct with Subcntractors,

r.

SuPpliers and others; and
ISo4A.

if CONTRAcIt. disregards th
ifC6

. (or resonable expenses diretly attributable to .
shallnof"be paid on .

BNOINEER; 9r.

tennimition. .

i$j.
.s

R(jtheri

e vi91ates in any

iiat way any provishms .of the ConttacrDOcuments;

CONtR

IICcot of loss of

anticipated . profits or "rvenue or , other .eciionuc. i()s arising.

out of. or feulting from such tenninati.

OWNER .may, afer giving CONTAC1R (and . the surety. . ihny.) seven days . written notice and. to the ' extent permit- .

.i.

. I.

possession. Of the W rk and of-alrCONTRAC1R' : tOls; appliances; constntctiQR eql,lp.ent and machinery a use site and. use the same to . the full exteiuliey . cOuld . by CON1RACTR (without liability to CONTR crR for teri.tresPas or conversion), incOrpfat . ir. the Wolt all alsand equipment stored at the site or for which OWNER. has paid CONTRAC1ltbut which ar. stor:ed elsewhere, ien . In d finish the Work .as OWNER. maY: deem- e!(

CONTcr

ted by Laws and Regufatlons.

terinate. the se..ices of

CONTR May Stop Wor or 'hma;
. If. through no act o fault"of CONTACTR; the . ls susPen ed for a period ofl1. idnety days. . . OWNER ouilideran order of court or tber public. author. ity, or . ENGI'NEE mils 10 ; act. on any Application f9r - Paymet within. thirty days afer . IS submitted or OWNER . faUs for thirty days to pay CONTC1R .any sum .finaly . detennined . to . be due then CONTRctR. may; ; upon ven days ' Wrtten notice to OWNER and ENOINEBR and provided OWNER or ENGINEER do not remedy such suspesion or failure within that time, temii ate tbe Agre . ment a!ad . over from bWNR payment on the Same tetms . as provided in. paragraph . t5.4. . Inlteu of terminating the Agment and without . prejuilice . to any other rigbtor . remedy. if ENGI EE.R has failed to act -on an AppliCation . for Payment within thirty days afer it is submitted, . or . . OWNER has . failed for thirt .days to pay CONTRACTR . any sum finally determii1 to be duc; (XNTRCTR may upon seven day s written . notice to OWNER and ENGINEER. stop the Work until payment of all such amounts due CONTRACTR, including interest . Tbe provisions of this S;arrah 15. are not intended to preclude CO TRACTR from making claim under Aricles I f and 12 for an increse in ' Contract Pme or Contrct Times or otherwise for expenses or damage diretly attributale to CONTRAC- . is pargrph. TOR' s stopping Work as pennitted by
. IS.

; exclud CONTRACTR 'fl'm ther site and

th

such w.C'. CONTRAcR shan not be entitled to reive
payment unt!) the Work . is .fini lied If the unpaid

i -

any furter

1he Contract: rice ex ds .all cl iins, cOsts. . balan . losses and damages .sustained by: OWNBR arsing Out of or
. resulting from;completing th Work such ex ess wil be pad . to CONTCTR. n such Ciaims, costs. losses a
ais excecihuch unpaid

dar

:I

balance; CONTRACTR shall pay the difernce .to OWNER. Such claims. costs. losses . and daies incurrd. by OWNER wil! be reviewed by .ENQINEER as to . their .resonablenesS and: when so appr()ved by ENGINEER incorPrated in a Change Order. provided that when exercising any rights or remedies under this paragrph OWNER shall not reuire to 9btain the lowest price for

the

the WOrk performed. .
1.
. . 15.3. Where. CONTCTR'
minate by OWNER. the termination

seice hav

ben so ter-

Wi11 not afect any rits

or remedes of OWNER agnst CONTCTR ihen. existing . or which may thereer accrue Any retention or paymnt
. moneys due

CONTR from

CONTR

y' OWNER will not . releae liabilty.

. ARTICLE 16-ISP UTE RESOuilON

Upon seven days ' written notice to CONTRACTR lSo4. ffand to the .extent that OW ER and. CONTCrR have and ENGINEER, OWNER maYt withoUt cause and without. on the method and .proure .for resolving disputes prejudiCe to any other" riht or remedy of OWNER. elect to tcnnnate the Agmet. In such ca. CONTCTR shall . betwee them that may .arise under this Agment. such

agd

1'
It "

be pad (without dupliction of any items):

dispute resolution method and prOure. if any. shall be as set tt to be forh in Exhibit GC-A. " Dispute Resolution. Asrment,

15.4. .. for completed and acCptabl Work executed in accordnce with the Cotrct Douments prior to the effec-

attch .hereto and ' made

tive date of tennlnation. includin far and resonable sums. vemea and profit on such for

orl;

on the method and proure for resOlving "such disputes ha . ben rehed, and subject to th provisions ofpaphs '. 10, and 9. 12, . excn:lse ER and

8 par

here. If no such agment

CON'R miy

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 14 of 29

EXHIT B

. "

, '\ ':. "

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 15 of 29

CITY MANAGER' S OFFICE
CITY OF NEWARK 220 Elktn Rod . P. O.
302.366Box 390 . Newark, Delaware 19i15- 0:390

7022

. F'4X 302. 366. 7160 . http://newark. de.

November 21 f 2003

FIRST CLASS AND REGISTERED MAIL Donald M. Durkin Contracting, Inc.

1310 Industrial Blvd., Suite 201
Southampton, PA 18966
FIRST CLASS AND REGISTERED MAIL Federal Insurance Company Agent:

One Liberty Place
Dear Sir or Madam:

1650 Market Street Philadelphia, PA 19103- 7301

The Shepherd Agency 7051 Camp Hil Road
Suite 200

Fprt Washington, PA 19034 .

SUBJ:

City of Newark Contract No. . 02Construction of a Water Supply Reservoir
Bond No. 8128-

On behalf of the City of Newark, Delaware, I am writing to inform you that we are now considering declaring Donald M. Du kin Contracting, Inc. (DMD) in default Newark Municipal Contract No. 02- 02/ pertaining to Construction of a Municipal Water Supply Re5ervoir. This precautionary letter has become necessary following DMD'

failure to present a response to a means. and methods for continuation of the project
in accordance with our contract.

As provided in the DMD performance bond on file with

the

City, we are

. requesting that a conference be held including surety representatives, DMD, URS

Corporation representatives and the City of Newark. This meeting shall take place within fifteen (15) days of your receipt of this letter. The intent of the meeting wil
be to discuss methods for DMD/ s faithful completion of this contract consistent with its agreement with the City.

""e..__ C 1I1_-"'''''''(

';"1
NI

.d

096L

L609 v9B

Il

lNOJ

Hna alVNOa

d9t:ll tOOl

9/'

1eW

.,.

'; .
.. T

=-

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006 =--.u . :7

Page 16 of 29

Page 2

November 21, 2003

please contact Assistant Administrator Carol Houck at 302- 366- 7020 to schedule this meeting or to ask any questions prompted by this letter.

l;wCarl F. Luft

CitY Manager

CSH/bk Carol S. Houck, Assistant Administrator . Roger A. Akin, City Solicitor Joseph A. Dombrowski, Director of Water & Wastewater Joseph Kula, URS

c:

.d

096L'

L609

v9B

9!l

HINOJ NI HnO OlYNOO

d9t:l! tOOl ' 91'

Case 1:04-cv-00163-GMS

Document 200-2

Filed 08/22/2006

Page 17 of 29

. ..

-"

,.
Case 1:04-cv-00163-GMS Document 200-2

......: .
. -

'"

"':.$.

..

:-

:'!

IN THE UNTED STATE DISJ'RICT COURT
FOR THE DISTRCT OF DELA WAR
CON)CTlNG,

Filed 08/22/2006

Page 18 of 29

mc.
DONALD M. D
VS.

mc.

CIV ACTION NO. 04-163, Gm

1310 Industrci Boulevard, Suite 200 Southampton, P A 18966

: JUy TR DEMAED

CITY OF NEWAR 220 Elkn Road O. Box 390 Newark, DE 19715-0390

1IOLD F. GODWI
Mayor, City of Newark, Delaware

JOHN H. FARLL
Council Member, City of Newark, Delaware

JERRY CLIFON. Council Member, City of Newar Delaware

KA G. KABAcHR
Council Member, City of Newark, Delaware

DAVIlATHEY
Council Member; City of Newark, Delaware.
FRl.

QSBORN

Council Member, City of Newark, Delaware

CHRSTIA
ard

Council Member, City of

REWA
wark, Dela'Y
;0 (':t.

UR CORPORATION
1200 Phiadelphia Pike

f- .

Wilmigton, DE 19809

t", '"
VS.
'b

FEDERA INSURCE . COMP
15 Mountain View Road

Waren, NJ 07059

Case 1:04-cv-00163-GMS Document 200-2 Filed 08/22/2006 Page 19 of 29 PAR1Y COMPLAI ANSWER, COUNERCLA.A DEFEANTS CITY OF NEWAR HAOLD F. GODWIN, JOHN H. G. KABACHR, FARLL, IV, JERRY CLIFO . JR. AN! .CHRITINA REWA J. OSBO DAVID J. AT

THI KA

Parties

Admttd upon infonntion

and

belief.

2. - 6. Admitt.
Admtted tht David
Council representig

1. Athey served and contiriuesto serve on

City

Disct 4 of the City of Newark, Delawae, however, Mr. Athey

ha recused

himself frm all City Council action regarding the mattrs concerng this

action and should be dismissed as a matr of law.
8. - 9.

Admtt
No respons is necssar.

10. 11.

Admitted upn informtion

.,lief.

Jurisdiction and Venne
12.

Th alegations contaned hi th$ paragrh contai conclusions

of law 10

which no

fur response is require.
The allegations contaed in this paraph

13.

conta conclusions of law to

which no fuer response is requied.
14.

The allegatons contaed in

1hs pargr

ph contain conclUsions oflaw to

which no fuer response is require.

Facts
Events Prlo.. to Biddine: and . Contrctinl!
15. -

16.

Admtted.

TnTAi P.

Case 1:04-cv-00163-GMS Document 200-2 Filed 08/22/2006 Page 20 of 29 A number of sites were reviewed and, ultiately, the Old Paper Mil Road 17.

site was chosen.
18. 19.

Admtted to the extent the allegations refer to 'anwerig defendats.

Admttd, to the extent the allegations refer to answering defendats , that

safety and the long-term integrty of the water supplyreservoITwere imperative
considerations.
20. 21.

Denied. Sit safety durg constrction is the responsibilty of Duki.
. Denied. . The biddig
Jaws, bid

docuents and Duki' s contract speak for

themselves.
22.
was .taken

Anwerg defendats lack sufcient inormation to
into account and fttored into the pricing- ofthe

af

or deny what -

Project work, therefore ,

denies

sare. Al rem

g averments contaed in ths paragraph are denied.

23 - 77. Denied. Dutki:was solely responsible for . all means ard methods
necessar to ' constrct

the Project and any allegatiDn or implication tht its
d cutomar' methods , whatever those t?rm

. responsibilties Were limted' to " ordiar
are intended to- mean is denied.

28 - 42. Denied as to answerig defendats. It is affatively asserted that a
number of different sites and design
were considered

in the design process , that

anwerig defendats acted,properly at all tie
for all means and methods necessar to constrct

, and that Durki was solely tesponsible
the Project and

any allegation or

implication that its responsibilties were lited

to " ordiar and customar methods

whatever those terms ar intended to mean is demed.
Bid Solicitation Pre-Contract

Activities

43.

Admtted that the Project was advertised in or about Janua

Case 1:04-cv-00163-GMS Document was utilized. Filed 08/22/2006 . 2002 but deni that a "modified" design 200-2
44. 45.

Page 21 of 29

To the extent the averments refer to answerig defendats , denied. .

To the extent the averments refer to anwerig defendants , it is admtted
materials might be subject to erosion durig the inequent periods that
past the 169

only that Zone

the reservoir is dr\Y down
. denied..

levation bench. The remaig

averients are

46 - 48. To th extent the averments refer to. answering defendats , denied. .
. 49.

The bid documents speak for themselves.
- Admtted only tht
a

50.
51.

meetig with Durki

was

held.
defendants ,

To the extent the averments refer to answerig

denied.

Contract Award
52.
. was issued.

ormance and CitvlU' Responses
the

. Admtted only tht

Contrct was entered into and a notice to proceed

53.

Adm
Denied. Denied.

54. 55.

56.

Denied, except that durg the course of constrction Thki .performed

Chage Order work.
57 - 59. benied.
Siope Stabilty. Safety and

J2ect Constructabiltv

Issues

60 - 61. Admtted.
62 - 63. The contract docuents speak for themselves.
64.

Admtted.

Case 1:04-cv-00163-GMS
65.

Denied. Durki was solely responsible for the mean and methods

Document 200-2

Filed 08/22/2006

Page 22 of 29 of

constrction.
66.

Answerg defendants lack suffcient information to

aff or deny the

allegations contained in this paragrph and, therefore, deny same.

67. 68.

Denied.

dmitted only that it rained in September, 2003.

69 - 72. Denie

It is afmnatively asserted tht Dur1d failed to implement

appropriate erosion mitigation controls.
.73.

Denied.

74.

Admtted only that Duki
Denied.

y have consulted with GeoSyntec.

75.
76.

The Contract speak for itself.
. Denied.

77.

78. . Anwerg defendats lack suffcient inormation to
allegations contaed in ths pargrph
79. 80.
and, therefore ,

afor

deny th

deny same.

Admtted only that a m

etig took place.

Anwerig defendants lack suffcient information to

aff or deny the

allegations contained in tbis paragraph and, therefore , deny same.
81. 82. 83.

Admtted only that a letter was sent. The letter speak for itself.
Denied.
. Denied as to answerig defendants.

84 - 86. Denied. The memorandum speaks for itself.
87 - 90. Denied.

Case 1:04-cv-00163-GMS
91.
92.

Document 200-2 Filed 08/22/2006 Further Investi2ation

Page 23 of 29

. Denied that prices were in response to alleged modified d sign.
Denied.

93.

Admitted

94 - 96. Denied.
97.

Admitted only that the City advised Federal that Durki refued to

perform its c,?ntract. All other allegations are denied.
. 98 - 100. . Denied.
101. 102.

Admtted only that a meetig took place,

al other allegationS are denied.

Admtted only that Federal engaged Greg Richardson.

The

remaig
or deny the

allegations are denied.
103.

Anwerig defendats lack suffcient information to

af

. allegations contaed in ths paragrph and , ther fore, deny same.
104.

Denied.

105 - 106. Admtted only that Richadson generated a report. All other.
all gations are . denied.
107.
108.

Denied.

Admitted.
Denied.

109.

llO.

Admtted.
Denied. It is afftively asserted that on February 3 , the City' s attorney

ll1.

sent the URS response via overnght 4elivery to Durki and Federal and offered to
supend tennation

if Durki would agree to complete constrction per the Contrct, to

which Durki did not respond.

Case 1:04-cv-00163-GMS
CitY and
112 - 116.

Document 200-2

Filed 08/22/2006

Page 24 of 29

Refusal to Pay for Work and Materials Dened.
Notice of Default

117.

Denied. The document

spei. for itself.

118 - 120. The Contract speak for itself.
121.

Denied.
The document speak

122.

for itself. All other a legations are denied

123.

Admtted only that the meetig took place.

124" 125. Denied.

126 - 127. The document speak for itself.
128.

Admtted.
Denied.

129 - 133.

134.

Admtted only that the tenntion has been reported in the newspaper.

Anwerig defendants lack suffcient inormation to afmn or deny the remaing
allegations contaed in ths paragraph and, therefore
135.
eny same.

Anwerig defendats lack sucient

inormatiQn

to

af

or deny the

allegations contaed in this paragraph and, therefore , deny same.
136. -

137.

Denied.

138.
139. -

Admtted.
140.

Denied.

141.

Admitted only that Richardson visited the site. Anwerig defendats

lack sufcient inoIIation to

af

or deny the remainng alegations con aied in ths

paragraph and , therefore , deny same.

Case 1:04-cv-00163-GMS Document 200-2 Filed 08/22/2006 Page 25 of 29 142. Admitted only that Richardson issued a report. The remainmg allegations
includig subparagraphs

(a) though (p), are denied.

143.

Denied.
Count I- Violation

of Civil Riehts

144.

Anwerig defendants incoiporateby reference their answers to the prior

pargraphs.
145 - 149.
150.

Denied.

Denied as stated. The City is witholdig
defective constrction

fuer payments ITomDurki

to pay for the cost of correctig
the

performed by Duki as wellas

creased costs of rebiddig the project due to Durki' sbrea9h of contrct.
151 - 154. Denied

Count n - Interference with Existi!! and Prospective Contracts
155.
. The fore

oing arwers ar

incorporated herein by.reference.

156.

Denied tht there was any " modied design" or design defects.

157 - 160. Denied.
Count il - Defamation 161. .

Trade Liable

The foregoing answers are incorporated herein by reference.

162 - 167. Denied. .
Count IV - Conversion
168.

The foregoing answers are incorporated herein by reference.
170. Denied.

169-

Count V- Fraud and Misrepresentation
171.

The foregoing anwers are incorporated het;ein by reference.

172. - 173. Denied.

Case 1:04-cv-00163-GMS
174.

Count VI - Common Law Conspiracy

Document 200-2

Filed 08/22/2006

Page 26 of 29

The foregoing anw rs are incorporated herein by reference.

175 - 177. Denied.

Count VI ,. Breach of Contract
178.

The foregoing answers are incorporated herein by reference.

179. - 180. Denied.

Afrmative Defenses
1. -

Plaintiff fails to state a clai
PlaintifIs claims are

upon which

relief can be granted.

bared by the doctres of Waiver, Estoppel and

Unclean Hands.
Plaitis claim

are bared due to Plaintiffs Breach of Contract.

Answerig Defendats are imune pursuant to the State Tort Clai Act
10 Del. C. Ch. 40.

Anwerig defendants - are imune pursuant

to the

doctre of Legilative

Imunty.
Anwerig defendats are imune from suit under the -doctres of
Subjective and Objective Good Faith Imunty.

Plaitiffs claim are bared

becau,se.it has

adequate remedy at law.

Counterclai
Paragraph 6. 29 of the Contract between the City of Newark and Durki , dated

. April 30 , 2002 (the " Contract") requires Durki to "car on the Work and adhere to the

progress schedule durng all disputes or disagreements with (the City). No work shall be
. delayed or

postponed pendig resolution of any disputes or disagreements. "
A.

A copy of

this provision is attached hereto as Exhbit

Case 1:04-cv-00163-GMS Document 200-2 the fall of 2003 and Page 27 of 29 Durki slowed its performance durgFiled 08/22/2006 bega to raise
questions regarding the

constrctabilty of the reservoir.

On Oc pber 29 2003 UR

advied Durki that the " (design) is

constrctable , aId should be implemented unti fuher notice. A copy of that letter is
at4ched hereto as ExhbitB.
On October 30 , 2003

Duki advised UR that "ti)t is now necessary for
not be

URS and the City to accept that the as- designed system wil
uneasonable :for the City

constrcted.. it is

d UR to continue to suggest that there is any possible way

the as- designed system can be .built... " A copy of that le er is attached hereto as Exhbit

. Furer, Durki wrote to URS on October 31 , 2003
c)ontiuig with the as- designed

statig that

system is no longer an option. " A copy oftbt letter

is attched hereto as Exhbit D.

Duki contiued to refue to perform.
purJG again wrote to URS on November 18 2003 that " (c)ontiuig
with the as- designed system is not an option.
Exhibit E.

A copy of tht lettds attached hereto as

UR respond

d to Durki

the same day, . November

18

wrtig " (w)e .

restate that the design is constrctible. You had considered it constrctible by your
representations made in the Agreement you signed with the City and, since there have
been no changes , you are requied to complete the proj ect as designed. " A copy of that
letter is attched as Exhibit F.

Aga

on November 20 2003 UR advised Durki

tht " (yJou have not

Case 1:04-cv-00163-GMS while (the City) reviewed costs for enhancements.28 of 29 Document 200-2 Filed 08/22/2006 Page (The been told to stop constrction
City) does not consider you to be on ' standby ' and expects you to complete the Work

upon which you bid and represented that you could build. " A copy of that letter is

attched hereto as Exhbit G.

Durki stated tht it could be delayed due to witer
aJour month shut down. According to the miutes of

weather and

proposed

Progress Coordination

Meetig

#11: "Don Duki stated tht

depending onthecweather,

(the shut down)

ould be more or

less than 4 mpnth. " A. copy of the meeting miutes are attched hereto as Exhbit H.
fOrral winter shut down was not app oved.
10.
. perform.

Despiteacceptable. weather conditio , DurkI contiued to refue to

11.

Contrct Drawig C-

1O Note 4 states that

it is Durki' s responsibilty to

. mitigate and repair erosion and to provide a submittl containg. "his method of

mitigatig erosion to the liner cover soils and subsequent repai of eroded soils. "
copy of tht
12.
provision is attached

A

hereto as Exhbit 1
November 17 , 2003 ,

hi its letter to purki of

UR demanded " (o)n behaf

of the (City), we hereby inorm you to submit your means and methods to control and
protect the W oik

including the. liner system by W ednesday,. November 19, 2003. " A
J. No submittl was ever

copy of tht letter is attached hereto . as Exhbit

received from

Durki.

13. Specification Section 02225 3. 04A states that Duki shall "protect fiish
work in accordance with the manufactuer s recommendationS. " A copy of that provision
is attched hereto as Exhibit K.

Case 1:04-cv-00163-GMS Document 200-2 Filed 08/22/2006 Page 29 of 29 14. Specification Section 02225 1. 07B states that Durkin shall "protect intalled

Geotextile and Geomembrae from damage. "

See Exhibit K.

15. Durki has failed to protect fiished work, including the Geotextile

and

Geomembrane , resulting in damage.
16.
Paragraph 15. 2 of the Contract allows the City to

tenna

the Contract

if (Durki) persistently fails to p.erform the Work in accordance with the Contract
Documents ... , or otherwise violates in any substatial way any provision of the Contract

Documents.
17.

This provision is attched hereto as

Exhbit L.

Durki' s consistent failures to perform and protect the Work represent

breac:h of contract for which the City is entitled to termate the Contrct and recover.

daages from Durki.
18:
Paragraph 15. 2.4 of the Contrct states "that
''te (City) '

I;ay, after . giVig

(Durki) (and the surety, if any,) seven days ' Wrtten notice and to tJe . extent permtted by
the Laws and Reguations , tennate the
19.
On November 21

servces of (Durki).

See Exhbit L.

2003 the City gave wrtten notice ofits intent
hereto as Exhbit

terminate the Contrct. A copy of the notice letter is attched

20.

On Februar 3 , 2004 ,

the City terminated the Contract in accordance with
the tennation letter is attached heretQ as

the notice terms of the Contrct.
Exhibit N.
21.

A copy of

The City

fuer offered to susp nd Durki' s termation if it would, in

writig, agree to

complete constrction of the reservoir accordig to the design. Durki

refused to respond to the City' s offer.