IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMAftpcontent5.worldnow.com/wvtm/docs/birmingham-answer-counterclai… · 1 in the circuit court of jefferson county, alabama birmingham

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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

BIRMINGHAM DIVISION

C.W. WOODS CONTRACTING SERVICES, INC. )

Plaintiff, )

v. ) CASE NO.

) CV 13-891

CITY OF BIRMINGHAM, a )

municipal corporation, )

Defendant. )

ANSWER AND COUNTERCLAIM OF DEFENDANT CITY OF

BIRMINGHAM TO PLAINTIFF’S COMPLAINT

Come now the Defendant, the City of Birmingham (“City”), a municipal

corporation under the laws of the State of Alabama, by and through its attorney,

files this Answer to the Complaint heretofore filed say as follows:

I. PARTIES

1. Defendant is without sufficient knowledge or information to either admit or

deny the averments of paragraph 1, therefore they are denied.

2. Defendant admits averments contained in paragraph 2.

3. Defendant admits Mayor William a Bell, Sr. is the Mayor of the City of

Birmingham, but denies the remainder of the averments contained in

paragraph 3.

4. Paragraph 4 contains no allegations requiring a response from this

Defendant; however, to the extent the allegations of paragraph 4 can be

construed to require an admission or denial by the Defendant, such

allegations are denied.

ELECTRONICALLY FILED3/3/2014 9:46 AM

01-CV-2013-000891.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK

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II. THE FOUNDATION HIEGHTS RECREATION CENTER PROJECT

7. Defendant admits the averments contained in paragraph 7.



10. Defendant denies the averments contained in paragraph 10.







17. Defendant admits the averment that a Notice of Default was sent to the

Plaintiff, but denies the remainder of the averments contained in paragraph

17.


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COUNT ONE

(BREACH OF CONTRACT)





COUNT TWO

(OPEN ACCOUNT)



COUNT THREE

(WORK AND LABOR DONE)



COUNT FOUR

(UNJUST ENRICHMENT)




III. THE WEST POLICE PRECINCT PROJECT

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41. Defendant admits the averment that a Notice of Default was sent to the

Plaintiff, but denies the remainder of the averments contained in paragraph

41.



COUNT FIVE






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COUNT SIX

(OPEN ACCOUNT)



COUNT SEVEN




COUNT EIGHT

(UNJUST ENRICHMENT)




IV. NEW NEGRO SOUTHERN BASEBALL MUSEUM PROJECT








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COUNT NINE






COUNT TEN

(OPEN ACCOUNT)



COUNT ELEVEN




COUNT TWELVE

(UNJUST ENRICHMENT)



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AFFIRMATIVE DEFENSES OF DEFENDANT CITY OF BIRMINGHAM

1. The Complaint fails to state a claim against the City for which the Plaintiff

are entitled to relief.

2. The City denies each and every material allegation of the Complaint and

demands strict proof thereof.

3. The City pleads not guilty/liable to the general issue.

4. The City asserts the defense of good faith.

5. The City denies that the Plaintiff was injured in the nature or to the extent

claimed and contests all alleged damages.

6. The City denies Plaintiff is entitled to any damages, cost, or attorney’s fees

or any other relief.

7. Pursuant to the terms of the contracts, the Plaintiff cannot recover attorney’s

fees for an alleged breach or default of the contracts.

8. Pursuant to the terms of the contracts, Consequential Damages Provision

4.3.10 of the General Conditions, the Plaintiff cannot recover damages for

reputation, lost economic opportunity, loss of goodwill, or other

consequential damages.

9. The City denies that the Plaintiff suffered damages as alleged in the

Complaint and that if said damages were in fact sustained, they were caused

by parties other than the City or its officers, agents or employees.

10. The City asserts the defense of immunity, whether qualified, absolute,

discretionary, functional, governmental, good faith or substantive as a

complete bar to this action.

11. The City pleads the defenses of issue and claim preclusion, collateral

estoppels, acquiescence and res judicata.

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12. Any injury or damage suffered by the Plaintiff were a result of its’ willful,

wanton, or negligent conduct and it is therefore not entitled to recover even

if the Defendant was negligent.

13. The Plaintiff is guilty of contributory negligent and such is the proximate

cause of any damages sustained by the Plaintiff.

14. The Defendant pleads the defenses of assumption of risk.

15. Under the law of the State of Alabama the City, as a duly incorporated

municipal corporation, is immune from the imposition of damages for injury

done or wrongs suffered unless the injury or wrong was done or suffered

through the neglect, carelessness, or unskillfulness of some agent, officer or

employee of the municipality. §11-47-190 Code of Alabama 1975, as

amended.

16. The City of Birmingham is not liable under the law of the State of Alabama

for the intentional, malicious, wanton, willful or reckless acts of its

employees, agents or servants. Hilliard v. City of Huntsville, 585 So. 889

(Ala. 1991); §11-47-190 Code of Alabama 1975, as amended.

17. The City denies that it or any of its agents, officers or employees was

negligent, careless or unskillful with regard to any duty owed to the Plaintiff

or any other similarly situated member of the public.

18. The City pleads the affirmative defense of limitation of damages in an

amount not exceeding $100,000 on all claims. Ala. Code §11-47-190 and

§11-93-1, et seq. as amended.

19. Punitive damages are barred against the City by the provisions of Ala. Code

§6-11-20, 1975, et seq., City of Newport v. Facts Concerts, 453 U.S. 247,

101 S. Ct. 2748 (1981).

20. The defendant asserts the defense of discretionary function immunity as

provided in the Ex Parte City of Birmingham, 624 So.2d 1018 (Ala. 1993),

Ex Parte Cranman, 792 So.2d 392 (Ala. 2000).

21. The Plaintiff’s claims are barred by the doctrine of unclean hands.

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22. The Defendant states that the Plaintiff violated and breached all said

contracts with the City.

23. The Defendant reserves the right to amend its Answer and raise additional

defenses which become known through the discovery process.

COUNTERCLAIMS OF DEFENDANT CITY OF BIRMINGHAM

The Defendant, the City of Birmingham, by and through its undersigned

attorney, having fully answered the allegations in the Plaintiff’s Complaint, now

files its’ Counterclaims against the Plaintiff.

PARTIES

1. Defendant/Counterclaim Plaintiff, City of Birmingham (“City”), is,

and at all times mentioned in this pleading, a municipal corporation organized

under the laws of the State of Alabama with its principal place of business located

at 710 North 20th Street, in the City of Birmingham, Jefferson County, State of

Alabama.

2. Plaintiff/Counterclaim-Defendant, C.W. Woods Contracting Services

(“Woods”), is, and at all times mentioned in this Counterclaim, a corporation

organized and existing under the laws of the State of Alabama, having its principal

place of business in Birmingham, Alabama.

FACTUAL ALLEGATIONS

The Fountain Heights Recreation Center Project

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3. In June 2011 the Council of the City of Birmingham adopted Resolution

No. 842-11 whereby, following a competitive bid process, it accepted Woods’ bid

of $2,350,826 to construct the new Fountain Heights Recreation Center located at

1101 15th Avenue North, Birmingham, Alabama (hereinafter “the FHRC Project”).

In that Resolution, the City Council also authorized the Mayor of Birmingham,

William A. Bell, Sr. (“Mayor Bell”), to enter into a contract with Woods for the

FHRC Project.

4. On or about June 23, 2011, Mayor Bell executed the Standard Form of

Agreement between Owner and Contractor for Woods to construct a new

recreation center building and adjacent improvements on the FHRC Project

(hereinafter, the “FHRC Contract”). Under the terms of that Contract, the City

was the “Owner” of the Project, and Woods was designated as the “Contractor”.

5. Among its other obligations arising under the FHRC Contract, Woods

was obligated (a) to construct the FHRC Project in compliance with a set of plans

and specifications developed by the Project Architect, Exford LLC (the

“Architect”), (b) to substantially complete the Project within 270 days after the

City gave Woods notice to proceed with its work, (c) to provide the City a

recovery schedule if Woods fell behind on performing its obligations in accordance

with the recovery schedule, (d) to timely and fully compensate the subcontractors

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that Woods retained and that provided labor and materials for the FHRC Project,

and (e) to perform work through the services of contractors or subcontractors who

held state licenses appropriate and necessary for their operations.

6. On August 29, 2011 City issued a Notice to Proceed for Woods to begin

work on the FHRC Project. Considering the 270 day construction period for

Woods to perform its work, the initial date of substantial completion under the

FHRC Contract was June 3, 2012.

7. Woods and the City also agreed in the FHRC Contract that issues, claims

and disputes that arose between the parties over the life of the Project would be

presented to the Architect for its determination and resolution. Specifically,

Article 4 of the General Conditions of the FHRC Contract, as amended by the

Supplemental General Conditions, set forth the process for consideration of claims

that either party might have against the other. Section 4.3 of this Article (titled

“Claims and Disputes”) granted the parties the right to make claims for “payment

of money, extension of time or other relief with respect to the terms of the

[Contract].” Further, Subsection 4.3.7.1 established a process by which Woods

could request an extension of time to substantially complete its work.

8. After Woods commenced operations in August 2011, Woods failed to

make sufficient progress required to timely complete the FHRC Project.

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Consequently, in January 2013 the City requested that Woods provide the City a

recovery schedule and date at which it would substantially complete its work;

Woods failed to provide that recovery schedule.

9. City representatives also met with Woods on February 21, 2013 and

requested then that Woods agree to a Project completion schedule prepared by the

City; Woods refused to accept and abide by that schedule.

10. Following the February 21, 2013, meeting, Woods sporadically

performed construction operations at the Project site, but had not substantially

completed the Project by July 2013. On July 23, 2013, the City sent Woods a

written notice of default and neglect of its duties wherein the City notified Woods

that it had breached numerous contractual responsibilities for the Project (including

failing to timely finish the Project, failing to complete the work according to

specifications and failing to furnish a recovery schedule or completion plan); in

this notice the City requested that Woods cure those defaults. Woods failed to

comply with this request and abide by its contractual responsibilities.

11. Following the receipt of the City’s July 23, 2013 notice of default and

neglect, Woods asserted in correspondence dated July 24, 2013, that it “is not

responsible for any delays that the Project has experienced.” In accordance with

the claims process in Article 4 of the FHRC Contract, a request then was made that

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the Architect determine whether any additional time for Woods to substantially

complete the Project should be added to the construction schedule.

12. Following an evaluation of all events and circumstances, the Architect

determined that an additional period of 70 days should be added to the construction

schedule over the life of the entire Project. Adding these 70 days to the initial

substantial completion date, the substantial completion date pursuant to the

Contract became August 12, 2012.

13. On or about August 15, 2013, the City sent Woods a second written

notice of default and neglect in which the City again asked Woods to comply with

all its contractual responsibilities with respect to the Project. Woods again failed

to comply with the requests in this second notice.

14. On August 21, 2013, the City the City sent Woods written notice that

the City was terminating the FHRC Contract with Woods due to Woods’

continuous failure to remedy its contractual defaults on the Project. Thereafter,

the City undertook to take over the Project, took action to correct numerous defects

in the work provided by Woods prior to the termination of this Contract and

completed the Project using a combination of its own forces and incurring

additional expenses to hire contractors to complete work that was defective or

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unfinished by Woods. Using these resources the City completed the Project on or

about November, 2013.

15. Woods has breached the FHRC Contract with the City in each of the

following ways: (a) by failing to meet the substantial completion date of the

Project; (b) by failing to furnish the City or agree to the recovery schedule for the

Project; (c) by ceasing to perform and abandoning work on the Project in violation

of contractual provisions; (d) by performing work on the Project that did not

comply with plans and specifications; (e) by failing to fully and timely pay the

subcontractors that Woods retained for the Project; (f) by retaining and using a

subcontractor, Allstar Realty Company, Inc. (“Allstar Realty”), to perform

significant excavation and site preparation work on the Project when Allstar Realty

did not have the general contractor licensing required by the State of Alabama and

the FHRC Contract to perform those operations; and (f) by failing to supply the

City warranties on the roof and other component systems as required by the FHRC

Contract specifications.

16. Section 9.11.2 of the Supplemental General Conditions of the FHRC

Contract provides that, for each day following Woods failure to substantially

complete the Project, the City shall receive $1500 per day in liquidated damages

related to such default.

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17. Based on the Architect’s determination that the adjusted substantial

completion date under the FHRC Contract was August 12, 2012, Woods was 374

days late in complying with its obligation to substantially complete the Project

when the City terminated that Contract on August 21, 2013.

The West Police Precinct Project

18. In October 2011 the Council of the City of Birmingham adopted

Resolution No. 1531-11 whereby, following a competitive bid process, it accepted

Woods’ bid of $2,692,000.00 to construct the new Birmingham Police West

Precinct to be located at 2336 47th Street in Ensley. Birmingham, Alabama (the

“West Precinct Project”). In that Resolution, the City Council also authorized the

Mayor of Birmingham, William A. Bell, Sr. (“Mayor Bell”), to enter into a

contract with Woods for the West Precinct Project.

19. On or about December 1, 2011, Mayor Bell executed the Standard Form

of Agreement between Owner and Contractor for Woods to construct the new

West Precinct building and adjacent improvements on the West Precinct Project

(hereinafter, the “West Precinct Contract”). Under the terms of that Contract, the

City was the “Owner” of the Project, and Woods was designated as the

“Contractor”.

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20. Among its other obligations arising under the West Precinct Contract,

Woods was obligated (a) to construct the West Precinct Project in compliance with

a set of plans and specifications developed by the Project Architect, Exford LLC

(the “Architect”), (b) to substantially complete the Project within 245 days after the

City gave Woods notice to proceed with its work, (c) to provide the City a

recovery schedule if Woods fell behind on performing its obligations in accordance

with the recovery schedule, and (d) to timely and fully compensate the

subcontractors that Woods retained and that provided labor and materials for the

West Precinct Project.

21. On February 1, 2012, the City issued a Notice to Proceed for Woods to

begin work on the West Precinct Project. Considering the 245-day construction

period for Woods to perform its work, the initial date of substantial completion

under the West Precinct Contract was on or about October 8, 2012.

22. Woods and the City also agreed in the West precinct Contract that issues,

claims and disputes that arose between the parties over the life of the Project would

be presented to the Architect for its determination and resolution. Specifically,

Article 4 of the General Conditions of the West Precinct Contract, as amended by

the Supplemental General Conditions, set forth the process for consideration of

claims that either party might have against the other. Section 4.3 of this Article

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(titled “Claims and Disputes”) granted the parties the right to make claims for

“payment of money, extension of time or other relief with respect to the terms of

the [Contract].” Further, Subsection 4.3.7.1 established a process by which

Woods could request an extension of time to substantially complete its work.

23. After Woods commenced operations in August 2011, Woods failed to

make sufficient progress required to timely complete the West Precinct Project.

Consequently, in January 2013, the City requested that Woods provide the City a

recovery schedule and date at which it would substantially complete its work;

Woods failed to provide that recovery schedule.

24. City representatives also met with Woods on February 21, 2013 and

requested then that Woods agree to a Project completion schedule prepared by the

City; Woods refused to accept and abide by that schedule.

25. Following the February 21, 2013, meeting, Woods sporadically

performed construction operations at the Project site, but had not substantially

completed the Project by June 2013. On June 25, 2013, the City sent Woods a

written notice of default and neglect of its duties wherein the City notified Woods

that it had breached numerous contractual responsibilities for the Project (including

failing to timely finish the Project, failing to complete the work according to

specifications, failing to furnish a recovery schedule or completion plan and

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abandonment of the Project); in this notice the City requested that Woods cure

those defaults. Woods failed to comply with this request and abide by its

contractual responsibilities.

26. Following the receipt of the City’s June 25, 2013 notice of default and

neglect, Woods asserted in correspondence dated June 28, 2013, that it “ha[s] been

delayed 1 year, 4 months, and 28 days on the project, which amounts to 514 total

days lost due to delays.” In accordance with the claims process in Article 4 of the

West Precinct Contract, a request then was made that the Architect determine

whether any additional time for Woods to substantially complete the Project should

be added to the construction schedule.

27. Following an evaluation of all events and circumstances, the Architect

determined that an additional period of 90 days should be added to the construction

schedule over the life of the entire Project. Adding these 90 days to the initial

substantial completion date, the substantial completion date pursuant to the

Contract was adjusted to on or about January 8, 2013.

28. On or about July 19, 2013, the City sent Woods a second written notice

of default and neglect in which the City again asked Woods to comply with all its

contractual responsibilities with respect to the Project. Woods again failed to

comply with the requests in this second notice.

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29. On August 21, 2013, the City sent Woods written notice that the City

was terminating the West Precinct Contract with Woods due to Woods’ continuous

failure to remedy its contractual defaults on the Project.

30. Woods has breached the West Precinct Contract with the City in each of

the following ways: (a) by failing to meet the substantial completion date of the

Project; (b) by failing to furnish the City or agree to the recovery schedule for the

Project; (c) by ceasing to perform and abandoning work on the Project in violation

of contractual provisions; (d) by performing work on the Project that did not

comply with plans and specifications; (e) by failing to fully and timely pay the

subcontractors that Woods retained for the Project; and (f) by failing to supply the

City warranties on the roof and other component systems as required by the West

Precinct Contract specifications.

31. Section 9.11.2 of the Supplemental General Conditions of the West

Precinct Contract provides that, for each day following Woods failure to

substantially complete the Project, the City shall receive $1500 per day in

liquidated damages related to such default.

32. Based on the Architect’s determination that the adjusted substantial

completion date under the West Precinct Contract was January 8, 2013, Woods

was 163 days late in complying with its obligation to substantially complete the

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Project when the City terminated that Contract on August 21, 2013.

33. Following the termination of Woods’ contract to build the West Police

Project, the City filed a claim with Star Insurance Company, the Surety that issued

a Performance Bond on the West Precinct Project, asking Star to cure Woods’s

defaults on the Project by taking over the Project, correcting Woods’s defective

work and completing the Project.

34. Star has identified major, numerous defects in the work that Woods had

performed prior to the termination of the West Precinct Project. As of this date,

Star has not undertaken to complete the Project or correct the numerous defects in

the work that Woods performed prior to the termination of that Project.

COUNTERCLAIM I - BREACH OF CONTACT

FOUNTAIN HEIGHTS PROJECT

35. The City incorporates paragraphs 1 through 17 by reference as if fully

set out herein.

36. As a result of Woods’ breaches of its obligations under the FHRC

Contract, the City has incurred the following damages:

(a) pursuant to Section 9.11.2 of the Supplemental General Conditions

of the FHRC Contract, liquidated damages of $561,000.00 ($1,500 a

day calculated from the adjusted substantial completion date of

August 12, 2012 to termination of the Contract on August 21, 2013),

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plus pre-judgment interest on that amount, resulting from Woods’

failure to timely complete the Project;

(b) damages of $68,478.20, plus pre-judgment interest, incurred by

the City to retain various contractors required to complete the Project

and to correct defects in the work performed by Woods;

(c) damages of $9,200.00, plus pre-judgment interest, incurred by the

City to retain Donald Ponder to serve as Project Superintendent and

perform services during the fall 2013 that were required to complete

the Project;

(d) damages of $103,914.11, plus pre-judgment interest, expended by

the City for the cost of materials and the expense of its own workers

to perform work required to complete the Project and to correct

defects in the work performed by Woods;

(e) damages of $17,500.00, plus pre-judgment interest, to obtain the

warranty on the roof of the new Recreation Center building that

Woods failed to provide to the City;

(f) damages of $ 83,133.05, plus pre-judgment interest, attributable to

the City’s cost of compensating the Architect for additional,

extraordinary services that the Architect has had to perform on this

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Project that resulted from Woods’ breaches of the FHRC Contract

(including its failure to timely complete the Project and poor

workmanship).

WHEREFORE, pursuant to Counterclaim I, the City demands judgment of

$843,225.36 against Woods, its costs of court, any further damages to which it may

be entitled and such other relief that the Court deems proper.

COUNTERCLAIM II - BREACH OF CONTACT

WEST PRECINCT PROJECT

37. The City hereby incorporates paragraphs 1 through 2 and paragraphs 18-

34 above by reference as if fully set out herein.

38. As a result of Woods’ breaches of its obligations under the West

Precinct Contract, the City has incurred the following damages:

(a) pursuant to Section 9.11.2 of the Supplemental General Conditions

of the West Precinct Contract, liquidated damages of $244,500.00

($1,500 a day calculated from the adjusted substantial completion date

of January 8, 2013 to termination of the Contract on August 21,

2013), plus pre-judgment interest on that amount, resulting from

Woods’ failure to timely complete the Project;

(b) damages of $5,123.16 attributable to the City’s cost of securing

the unfinished Project site;

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(c) damages of $ 94,696.34, plus pre-judgment interest, attributable to

the City’s cost of compensating the Architect for additional,

extraordinary services that the Architect has had to perform on this

Project that resulted from Woods’ breaches of the West Precinct

Contract (including its failure to timely complete the Project and poor

workmanship).

WHEREFORE, pursuant to this Counterclaim II, the City demands

judgment of $344,319.50 against Woods, its costs of court, any further damages to

which it may be entitled and such other relief that the Court deems proper.

WHEREFORE, on the basis of the foregoing, Defendant/Counter-Plaintiff

City requests that the Court render a verdict for Defendant/Counter-Plaintiff City,

and against the Plaintiff/Counter-Defendant, Woods, for compensatory damages in

an amount which will adequately compensate Defendant/Counter-Plaintiff City for

the injuries and damages sustained due to Plaintiff/Counter-Defendant’s conduct.

Further, Defendant/Counter-Plaintiff City requests that the Court enter judgment,

and that it also award Defendant/Counter-Plaintiff City interest from the date of

judgment and the costs incurred in managing this lawsuit, and any further damages

to which it may be entitled.

DEFENDANT DEMANDS TRIAL BY JURY

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Respectfully submitted,

/s/Fredric L. Fullerton, II

Fredric L. Fullerton, II

Chief Assistant City Attorney

City Hall

Law Department

710 N 20th

Street, Room 600

Birmingham, Alabama 35203

(205) 254-2369/(205) 254-2302 (Fax)

CERTIFICATE OF SERVICE

I hereby certify that on March 3, 2014, I electronically filed the foregoing

with the Clerk of the Court using the E-filing system which will send notification

of such filing to the following:

Ronald O. Gaiser, Jr.

Attorney at Law

Gaiser and Johnston

36B Church Street

Birmingham, Alabama 35213

/s/Fredric L. Fullerton, II

Of Counsel

Documents

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMAftpcontent5.worldnow.com/wvtm/docs/birmingham-answer-counterclai… · 1 in the circuit court of jefferson county, alabama birmingham