HomeMy WebLinkAboutVII(E) Discussion/ Action Re: Permission To File Suit Agenda 2-3-98
Item VII E
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER
S. SCOTT VANDERGRIFT
Ocoee
COMMISSIONERS
o % CITY OF OCOEE DANNYHOWELL
y � 150 SCOTT ANDERSON
N.LAKESHOREDIuvE
p OCOEE,FLORIDA 34761-2258 GLASS
SCOT
�+ ?� (407)656-2322� NANCY NCY J..PARKER
4,1 CI-` . �� CITY MANAGER
F'P pf Gp00 ELLIS SHAPIRO
MEMORANDUM
TO: The Honorable Mayor and City Commissioners
FROM: Ellis Shapiro, City Manage
DATE: January 29, 1998
RE: Permission to File Suit
Attached is a letter from Stephen Bull, our attorney representing us on the damages to
City Hall. In the attached letter, he suggest the filing of the lawsuit but after meeting with
us regarding the rebid, he agreed that we should wait until the rebid was completed.
To this end, Mr. Bull is here tonight to answer any questions you may have and
respectfully request that the City Commission authorize him to file suit against all parties
involved with the City Hall construction for remuneration on the remedial work that you
hopefully will approve on tonight's agenda.
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Attachment
ctycmanagda.doc _ ,�
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BULL AND DeWITT, P.A.
ATTORNEYS AND COUNSELORS AT LAW
STEPHEN M.BULL Telephone(407)843-5291 111 NORTH ORANGE AVENUE
SHERRI K.DeWITT Telecopier(407)843-4920 SUITE 1700
MARIO ROMERO ORLANDO,FLORIDA 32801
December 15, 1997
CONFIDENTIAL- ATTORNEY/CLIENT AND WORK PRODUCT PRIVILEGE
•
Via Federal Express •
Mr. Ellis Shapiro, City Manager
City of Ocoee
150 North Lake Shore Drive
Ocoee, Florida 34761
Re: City of Ocoee City Hall Project Matter
B&A File No. 103-123
Dear Ellis:
Pursuant to my telephone conversation with Don Carter, I shall plan on meeting with you
and other members of the City Staff at 2:30 p.m., December 17, 1997, to discuss alternatives for
the remedial work on the City Hall and Police Station Project.
Originally, I had hoped that the City would have a contract for the remedial work prior
to the filing of a suit, so that we would know the approximate claim for damages. However, since
the City has had to re-bid the remedial work and it still uncertain at this point as to whether or not
• the City will award the contract to either of the two bidders or take other steps to remediate the
Project, it is my considered opinion that we go ahead and file suit now, rather than wait any
longer. To that end, I have enclosed a copy of a proposed Complaint against the following
' parties:
a) CT HSU AND ASSOCIATES, P.A.;
b) HUBER DESIGN AND CONSTRUCTION, INC.; and
c) GREAT AMERICAN INSURANCE COMPANY.
Please let me know if I can be of any assistance to you in presenting this issue to the City
Commission, if that is needed to authorize the filing of the suit. Additionally, if you have any
questions or comments on the proposed Complaint, please so advise. •
I shall look forward to seeing you on December 17, 1997.
Very tours,
SMB/dg 'tephen M. Bull
Enclosure
cc w/enc.: Paul Rosenthal
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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FLORIDA
CITY OF OCOEE, CASE NO.
Plaintiff,
vs.
CT HSU AND ASSOCIATES, P.A.;
HUBER DESIGN AND CONSTRUCTION,
INC.; and GREAT AMERICAN INSURANCE
COMPANY,
Defendants.
COMPLAINT
Plaintiff, CITY OF OCOEE (the "CITY"), sues the Defendants, CT HSU AND
ASSOCIATES, P.A. ("HSU"), HUBER DESIGN AND CONSTRUCTION, INC. ("HUBER"),
and GREAT AMERICAN INSURANCE COMPANY ("GREAT AMERICAN"), and says:
GENERAL.ALLEGATIONS
1. This is an action arising from the improper performance of design services and
construction services rendered in the design and construction of the CITY's City Hall and Police
Department located in Ocoee, Orange County, Florida.
2. The CITY, is and, at all times material to this action, has been a political
subdivision of the State of Florida.
3. Defendant, HSU, is a Florida Professional Association, which represented, at all
times material to this action, to be licensed and authorized to perform architectural services within
the State of Florida.
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4. Defendant, HUBER, is and, at all times material to this action, has been a Florida
corporation licensed and authorized to perform construction services within the State of Florida.
5. Defendant, GREAT AMERICAN, is and, at all times material to this action, has
been an Ohio corporation authorized to issue construction payment and performance bonds within
the State of Florida.
6. On or about July 7, 1992, the CITY entered into a contract with Defendant, HSU,
pursuant to which HSU agreed to provide architectural services and perform various construction
administration services required for the design and construction of the CTTY's "City Hall and
Police Department located in Ocoee, Florida" (the "Project"). In addition, HSU contractually
agreed to perform various other design duties and inspection duties as set forth in the contract,
a copy of which is attached hereto as Exhibit "A".
7. As part of the contractual and professional responsibilities owed to the CITY,
Defendant, HSU, was obligated to perform all architectural tasks and coordinate "development
phase" efforts to ensure that the Project was properly designed.
8. Throughout the design and development phase of the Project, Defendant, HSU,
owed a duty to the CITY to properly design the Project's facilities. HSU owed duty to the CITY
to perform, but failed to do, the following:
a. Design the Project's ventilation system to adequately ventilate the Project's
interior areas;
b. Design the Project's air conditioning system to properly control heat and
humidity;
c. Design the Project's heating system to maintain a comfortable interior
environment in the facility;
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d. Design and locate the Project's external building components to prevent
premature corrosion, discoloration and deterioration;
e. Design and locate the Project's facilities to permit easy access for user
maintenance;
f. Design the Project's components so as to protect the health, welfare, and
well being of all building inhabitants and the general public;
g. Properly and accurately prepare the Project's design plans and documents;
and
h. Inspect the construction of the Project's facilities to confirm that they were
properly constructed for the use and benefit of the City of Ocoee and the
general public.
9. On or about August 24, 1993, the CITY entered into a Contract with the
Defendant, HUBER, pursuant to which HUBER agreed to provide construction services as the
"Contractor" on the Project. In addition, HUBER contractually agreed to perform various other
construction tasks as set forth in the Contract, a copy of which is attached hereto as Exhibit "B".
10. HUBER, as the Contractor, owed a duty to the CITY to be fully responsible for
all construction work and to supervise and coordinate all construction tasks performed on the
Project.
11. Pursuant to the requirements of the Contract Documents and Florida Statutes,
Defendant, HUBER, obtained a performance bond pursuant to which HUBER is principal, the
CITY is the obligee, and the Defendant, GREAT AMERICAN is the surety. A photocopy of the
surety performance bond guaranteeing HUBER's contractual performance is attached hereto as
Exhibit "C".
12. Throughout the construction of the Project, HSU, owed a duty to the CITY to
properly inspect the construction of the facilities. HSU failed to properly inspect and to ascertain
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that :
a. The Project's ventilation system was properly constructed adequately to
ventilate the Project's interior areas;
b. The Project's air conditioning system was properly constructed to control
heat and humidity with the facility;
c. The Project's heating system was properly constructed to maintain a
comfortable interior environment in the facility;
d. The Project's external building components were properly installed and
protected to prevent premature corrosion, discoloration and deterioration;
e. The Project's facilities were appropriately installed to permit easy access
for user maintenance;
f. The Project's site preparation work was properly done in accordance with
the project specifications and the recommendations of the geotechnical
engineer;
g. The Project's components were properly constructed and installed so as to
protect the health, welfare, and well being of all building inhabitants and
the general public; and
h. The Project's facilities were otherwise properly constructed for the use and
benefit of the CITY and the general public.
13. During the construction of the Project, HUBER owed a duty to the CITY to
properly construct and otherwise supervise construction of the facilities. HUBER owed a duty
to the CITY to ensure, but failed to do, the following:
a. Properly construct the Project's ventilation syste{n to adequately ventilate
the Project's interior areas;
b. Properly construct the Project's air conditioning system to control heat and
humidity with the facility;
c. Properly construct the Project's heating system to properly maintain a
comfortable interior environment in the facility;
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d. Properly construct the Project's external building components to prevent
premature corrosion, discoloration and deterioration;
e. Properly construct the Project's facilities to permit easy access for user
maintenance;
f. Properly construct the Project's site preparation work in accordance with
the project specifications and the recommendations of the geotechuical
engineer;
g. Properly construct the Project's components so as to protect the health,
welfare, and well being of all building inhabitants and the general public;
and
h. Properly construct the Project's facilities for the use and benefit of the
CITY and the general public.
14. On or about August 14, 1994, Defendant, HUBER, represented to the CITY that
the Project was "substantially complete." At that time, the Project was delivered to the CITY to
be utilized as the City Hall and Police Department.
15. Since delivery of the Project, the CITY has experienced serious problems arising
from the improper design and improper inspection of construction by HSU. The CITY has
continuously demanded that these problems be rectified. However, HSU has been unsuccessful
in it attempts to resolve the problems. The facilities are plagued with design problems and
problems due to lack of inspection of the construction services provided. These problems
included, but are not limited to: •
a. Premature aging and deterioration of materials due to improper storage and
installation;
b. Settlement of the building causing cracks and deformities to the interior and
exterior of the building;
c: Problems with the design and installation of the HVAC system in the
facilities;
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d. Moisture penetrating problems due to improper installation of materials;
e. Insufficient application of paint and sealant to the building exterior causing
premature deterioration;
f. Siding was not properly primed or installed with each board set in sealant
before installation, causing premature deterioration, discoloration, and
corrosion;
g. Siding was not properly caulked in the gaps at the trim board and corners,
causing premature deterioration, discoloration, and corrosion; •
h. Nails are rusting and staining the siding because the nails were not properly
set and filled prior to painting, so rust stains and water infiltration would
have been prevented. An excessive number of nails were used providing
a larger potential source of moisture intrusion into the wood siding;
i. Siding was not properly treated prior to painting to prevent mildew;
j. Improper installation of paint, causing failure of paint finish;
k. Failure to properly prepare or prime doors prior to painting, resulting in
doors rusting;
1. Roofing flashing not properly installed, resulting in damage to rafters and
beams.
16. These problems could have been avoided if HSU would have properly designed the
facilities and properly inspected the construction. HSU was responsible for being generally
familiar with the process and quality of the work and was to determine if the work was done in
accordance with the Contract Documents, but failed to do so.
17. Since delivery of the Project, the CITY has experienced serious problems arising
from the improper construction and failure to provide the appropriate construction supervision by
HUBER. The CITY has continuously demanded that these problems be rectified. However,
HUBER has been unsuccessful in its attempts to rectify the problems. The facilities are plagued
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with construction defects and problems due to lack of supervision during construction. These
problems include, but are not limited to:
a. Premature aging and deterioration of materials due to improper storage and
installation;
b. Settlement of the building causing cracks and deformities to the outside of
the building;
c. Problems with the design and installation of the. HVAC system in the
facilities;
d. Moisture penetrating problems due to improper installation of materials;
e. Insufficient application of paint and sealant to the building exterior causing'
premature deterioration;
f. Siding was not properly primed or installed with each board set in sealant
before installation, causing premature deterioration, discoloration, and
corrosion;
g. Siding was not properly caulked in the gaps at the trim board and corners,
causing premature deterioration, discoloration, and corrosion;
h. Nails are rusting and staining the siding because the nails were not properly
set and filled prior to painting, so rust stains and water infiltration would
have been prevented. An excessive number of nails were used providing
a larger potential source of moisture intrusion into the wood siding;
i. Siding was not properly treated prior to painting to prevent mildew;
j. Improper installation of paint, causing failure of paint finish;
k. Failure to properly prepare or prime doors.prior.to painting, resulting in
doors rusting;
1. Roofing flashing not properly installed, resulting in damage to rafters and
beams.
18. These problems could have been avoided if HUBER had properly constructed the
facilities and properly supervised the construction of said facilities, as well. HUBER was
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responsible for supervising and directing the work using its best skill and attention, but failed to
do so.
19. As a direct and proximate result of the Defendants breaching their duties owed to
the CITY, the CITY has suffered damages exceeding $15,000, exclusive of attorneys' fees and
costs.
20. As a direct and proximate result of breach of the Defendants' duties owed to the
CITY, the CITY has retained the undersigned attorneys and has agreed to pay them a reasonable
fee.
21. The CITY demands a jury trial on all issues raised in this matter.
COUNT I- BREACILOECON.TRACTAGAINS.T.HSU
22. The CITY realleges and incorporates by reference the allegations in paragraphs 1
through 21 as if fully set forth herein.
23. On July 7, 1992, the CITY entered into a contract with HSU for the performance
of architectural services, construction inspection services, and other construction administration
services (See Exhibit "A").
24. HSU breached the contract by failing to properly fulfill its contractual duties owed
to the CITY. HSU failed to perform its contractual duty to provide proper architectural design
services, construction inspection services, and other construction admipistration services.
25. All conditions precedent to initiating this action have been performed.
26. The CITY is entitled to its reasonable attorneys' fees and costs from HSU under
HSU's contract with the CITY.
27. As a direct and proximate result of HSU's breach of contract, the CITY has
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suffered damages in excess of$15,000.
WHEREFORE, the CITY demands judgment against HSU for compensatory damages,
interest, costs, attorneys' fees pursuant to the Contract, and any other relief as this Court deems
fair, equitable and appropriate.
COUNT Ii- LIG .NC E AGAINST HSU
28. The CITY realleges and incorporates by reference the allegations in paragraphs 1
through 21 as if fully set forth herein.
29. HSU owed a duty to the CITY to properly perform, design, construction, and
inspection services on the project.
30. HSU breached its duty owed to the CITY by failing to properly perform their
design, construction, and inspection duties.
31. As a direct and proximate result of HSU's failure to properly perform its duties on
the Project, the CITY has suffered damages.
WHEREFORE, the CITY demands judgment against the Defendant, HSU, for
compensatory damages, interest, costs, and any other relief the Court deems fair, equitable, and
appropriate.
COUNTY III-BREACH OF C;GNTB.ACTAGAINST.I JBER
32. The CITY realleges and incorporates by reference the allegations in paragraphs 1
through 21 as if fully set forth herein.
33. On or about August 24, 1994, the CITY entered into a contract with HUBER for
the performance of construction services, construction supervision services, and other services
(See Exhibit "B").
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34. HUGER breached the contract by failing to properly fulfill its contractual duties
owed to the CITY. HUBER failed to perform its contractual duty to properly construct the
Project, to provide proper construction trade services,construction supervision services, and other
services specified in the contract.
35. All conditions precedent to initiating this action have been performed.
36. The CITY is entitled to its reasonable attorneys' fees and costs from HUBER under
HUBER's contract and the bond.
37. As a direct and proximate result of HUBER's breach of contract, the CITY has
suffered damages in excess of$15,000.
WHEREFORE, the CITY demands judgment against HUBER for compensatory damages,
interest, attorneys' fees and costs and any other relief this Court deems fair, equitable and
appropriate.
COUNT Ty-NEGLIGENCE AGAINST HUBER
38. The CITY realleges and incorporates by reference the allegations in paragraphs 1
through 21 as if fully set forth herein.
39. HUBER owed a duty to the CITY to properly construct the Project.
40. HUBER breached its duty owed to the CITY by failing to properly construct the
Project.
41. As a direct and proximate result of HUBER's failure to properly perform its duties
on the Project, the CITY has suffered damages.
WHEREFORE, the CITY demands judgment against HUBER for compensatory damages,
interest, costs and any other relief the Court deems fair, equitable and appropriate.
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• •• COUNT V-ACTION AGAINST GREAT AME RIC'A ' BOND
42. The CITY realleges and incorporates by reference the allegations in paragraphs 1
through 21 as if fully set forth herein.
43. GREAT AMERICAN issued a common law construction bond guaranteeing
performance of HUBER's construction duties on the Project (See Exhibit "C").
44. HUBER has failed to properly perform its construction duties which GREAT
AMERICAN has guaranteed.
45. The CITY is entitled to its reasonable attorneys' fees and costs from GREAT
AMERICAN under the subject contract, the bond, and Fla. Stat. §§255.05, 627.428, and
627.756.
46. All conditions precedent have been performed.
WHEREFORE, the CITY demands judgment against GREAT AMERICAN for
compensatory damages, interest, attorneys' fees and costs and any other relief this Court deems
fair, equitable and appropriate.
Dated: December , 1997.
STEPHEN M. BULL, ESQUIRE
Florida Bar No. 172347 .
MARIO ROMERO, ESQUIRE
Florida Bar No. 9g0639
BULL AND ASSOCIATES, P.A.
• 111 North Orange Avenue, Suite 1700
Orlando, Florida 32801
• (407) 843-5291 / (407) 843-4920 (fax)
Attorneys for CITY OF OCOEE
U:\WPDOCS\10311231COMPLAIN
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