Case Name: Alvin J. Coleman & Son, Inc. v. Cianbro Corporation, et al
A. The plaintiff certifies the following facts to establish probable cause of the right to recover, and the amount thereof:
In or around 2011, defendant Groton Wind, LLC (the "Owner" or "Groton Wind") entered into a contract with defendant Iberdrola Energy Projects, Inc. ("IEP") to construct a wind farm in the Town of Groton, New Hampshire (the "Project"). IEP, in turn, entered into a contract (the "Cianbro Contract") with defendant Cianbro Corporation ("Cianbro") to provide labor and materials in connection with the construction of the Project. Cianbro's scope of work included, without limitation, much of the civil infrastructure for the Project, including the construction of roadways, foundations and utilities, as well as the so-called Operation and Maintenance Building (the "O&M Building").
Defendant Iberdrola Renewables, LLC is the sole member of Groton Wind and has held itself out as being the owner of the Project or portions thereof. To the extent that IR owns the Project or portions thereof, the term "Owner" as used herein refers to IR as well as Groton Wind.
In or around October of2011, Cianbro entered into a contract (the "Coleman Subcontract") with plaintiff Alvin J. Coleman & Son, Inc. ("Coleman") by which Coleman agreed to complete much of the civil work for which Cianbro was responsible, including the construction of roadways and the preparation of foundations and underground electrical service (collectively, the "Subcontract Scope of Work").
The Project plans, specifications and other bid documents (the "Contract Documents") on which Coleman's proposal to Cianbro and the Coleman Subcontract were based contained terms, including certain "core operating principles," upon which Coleman relied in submitting its proposal and ultimately entering into the Coleman Subcontract. Among these terms were the following:
A. The Project schedule called for Cianbro to receive an award of the work and authorization to proceed by September 13,2011, immediately following which Cianbro and Coleman were to have complete and unimpeded access to the Project site.
B. By the time of the award and notice to proceed, the engineering design was to have been completed, and all required permits and landowner agreements were to have been in place.
C. All required Project submittals were to be processed in timely fashion and without delay.
D. By October 1,2011, Cianbro and Coleman were to be on site and actively engaged in the work.
E. Cianbro and Coleman were to have full and complete access to the Project site, uninterrupted by other trades or activities, from October 2011 through Aprilof2012.
F. The Project was to be shut down for four weeks in the spring of 2012 due to the difficulty of working in wet or muddy conditions.
G. By April 1, 2012, all tree harvesting, clearing and grubbing, drilling and blasting for the access road and crane roads was to have been complete.
H. Foundation work was to be a priority activity from April1 to June 15, 2012.
I. All foundations, utilities and the O&M Building were to have been completed on time and in accordance with the Project schedule, without causing interference with the work of Cianbro and Coleman.
The terms set forth above, among others, were critical to the ability of Coleman to complete the Subcontract Scope of Work within the time required by the Coleman Subcontract. In particular, Coleman relied on having a complete engineering design from the outset of the Project, as well as unimpeded access to the entire Project site during the entire time set forth in the Contract Documents.
As detailed in Coleman's Complaint, which is repeated in full and incorporated herein by reference, the Owner and IEP failed to comply with virtually all of the commitments reflected in the above terms and "core operating principles." As a consequence, Coleman was required to perform substantial work beyond the Subcontract Scope of Work, and Coleman incurred costs in performing the Subcontract Scope of Work well in excess of those it expected to incur.
In particular, and among other things, Cianbro and Coleman were not given full and unrestricted access to the site, and were not authorized unconditionally to proceed with the work, until the end of February 2012, some five months after the Contract Documents called for such access and authorization. It turned out that this was due to the failure of the Owner and/or IEP to secure one or more required environmental permits from State regulatory agencies, as well the land use rights required of landowners. Consequently, Coleman was unable to perform its work when and as planned. Even after receiving an unconditional notice to proceed, Coleman's work was impeded and disrupted by the work of other contractors for whom the Owner and IEP were responsible.
The limitations on Coleman's access to the site and its ability to work efficiently, as planned, were exacerbated by the fact that, by the fall of 2011, the engineering design of the Project was not close to complete.
Specifically, drawings and specifications promised to be available by October 1 ,2011 were delivered from one to eight months late, causing Coleman to delay or re-sequence its work as it waited for design instruments.
In addition, the Owner and IEP failed to comply with the terms of the Contract Documents with respect to the submittal process. In an apparent attempt to slow the pace of the work until required permits, approvals and engineering deliverables were in place, and beginning in November of201l, the Owner and IEP imposed on Cianbro, which in turn imposed upon Coleman, submittal requirements far in excess of those required by the Contract Documents. Coleman prepared over 200 submittals for review by the Owner and its engineer, many of which were not contemplated or required by the Contract Documents, and therefore, were not included in the Subcontract Scope of Work. Coleman was required to produce and submit phasing plans, timber management plans, disposal plans, blasting plans and many other submittals either entirely missing from the Contract Documents or described in much less onerous terms. Moreover, after requiring hundreds of submittals, the Owner and IEP failed to process and approve them in timely fashion. Coleman typically waited weeks, and in some cases months, for submittals to be returned, during which time Coleman's work was delayed and disrupted.
The Owner and IEP further impeded and interfered with Coleman's work by issuing, beginning in late October of201l, a series of unwarranted stop-work orders which required Coleman to cease certain construction activities altogether. These stop-work orders were based on mistaken factual assumptions or were otherwise unfounded, as the Owner and IEP had no sound reason to prohibit Coleman from meeting its own contractual obligations. These stop-work orders were a pretext for the Owner's and IEP's own lack of readiness for work to proceed.
The impact on Coleman's work caused by the acts and omissions of the Owner and IEP described above included, without limitation; (a) Coleman being required to perform substantial work beyond the Subcontract Scope of Work; (b) the dramatic underutilization and inefficient utilization of both labor and equipment; (c), significant site work being pushed into "mud season" in the spring of2012, when a shut-down had been planned; and (d) Coleman being required to abandon the sound work plan it had developed and to work constantly in reactionary mode, responding as best it could to the obstacles placed in its path by the Owner and IEP.
Cianbro recognized the Owner's and IEP's failure to meet their contractual obligations and its impact on oleman. Accordingly, Cianbro sought time extensions and adjustments to the Project schedule in order to give itself and Coleman adequate time to complete the extra work required by the Owner and IEP and to overcome their interference arid lack of cooperation. The Owner and IEP declined to grant Cianbro any extension of time or other accommodation. Accordingly, Cianbro was not in a position to grant time extensions to Coleman.
The unreasonable refusal to grant additional time to complete the work resulted in the compression of he Project schedule and the constructive acceleration of the work. Coleman was effectively compelled to omplete a dramatically increased scope of work in far less time than its contract had originally allowed. Coleman responded in several ways, which included providing increased manpower to the Project; providing overtime labor; providing additional equipment; and subcontracting work that Coleman had planned to perform with its own forces and equipment. By way of example, Coleman had budgeted for 117,121 man-hours of labor to complete the Project. Due to the conduct of the Owner and IEP and the events described above, Coleman devoted 150,310.5 hours of labor to the Project through its own forces, not including the labor furnished by other contractors hired by Coleman to supplement its forces.
Toward the end of May 2012, a significant deviation in elevation from that shown in the Contract Documents was discovered. This design error required a complete redesign of a portion of the Project, which required still more extra work by Coleman and caused additional disruption to Coleman's work. Again, the Owner and IEP declined to grant Cianbro additional time to complete the work, resulting in further schedule compression and constructive acceleration of the Project.
As a consequence of the conduct of the Owner and IEP and the events described above, Coleman incurred costs in completing its work far in excess of the costs it had planned and expected to incur, and far in excess of those it would have incurred but for such conduct and events. The excess costs incurred by Coleman to date total $3,490,781.00, and include costs associated with overtime labor, additional subcontractor labor, excess fuel costs, idle equipment, unanticipated work during mud season, imported materials, and extra engineering services. Coleman's costs in each of these categories are supported by detail job records.
Despite the numerous obstacles thrown in its path, Coleman managed to complete the Subcontract Scope of Work on schedule. Accordingly, Cianbro has paid Coleman the original Subcontract sum, as adjusted by several approved change orders. Coleman has not been compensated, however, for the excess costs incurred in performing extra work and in completing the Subcontract Scope of Work due to the circumstances described above.
In its Complaint, which is incorporated herein by reference, Coleman has asserted claims against Cianbro for breach of contract and specific performance; claims against the Owner and IEP for intentional and negligent misrepresentation, and for violation of RSA 358-A; and claims against all named defendants for quantum merit and unjust enrichment. Coleman has also asserted a claim that it be permitted to foreclose or execute upon the mechanic's lien attachment sought by the within Petition, upon this Court's determination of the amount secured by the lien.
The plaintiff asserts that such attachments are justified on the following grounds:
Mechanic's Lien: Coleman's last date of work on the Project was not earlier than December 7, 2012. As a result, Coleman has performed work within the I20-period preceding the filing of this Petition and is entitled to perfect a mechanic's lien, under RSA 447, on the Project and on the interest of the Owner in the land on which it is situated. RSA 51I-A: 8,III authorizes the Court to grant Coleman permission to make such attachment on an ex parte basis "in order to perfect a labor and materials lien under RSA 447 ...." Given the time-sensitive nature of mechanic's liens, and the loss of the plaintiffs rights should the lien not be timely perfected, granting a mechanic's lien attachment on an ex parte basis is warranted.