DEFENDANT CITY OF FORT COLLINS ANSWER WITH CROSS-CLAIM

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1 DISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO (970) DATE FILED: July 13, :48 AM FILING ID: C38 CASE NUMBER: 2016CV30281 Plaintiffs: ROCKY MOUNTAIN HYDRO-SEEDING, LLC, d/b/a ROCKY MOUNTAIN HYDROSEED, v. Defendants: CITY OF FORT COLLINS, COLORADO, WALSH CONSTRUCTION, INC., and EMPLOYERS MUTUAL CASUALTY COMPANY Kimberly B. Schutt, #25947 WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 P.O. Box 2166, Fort Collins, CO Phone Number: (970) kschutt@wicklaw.com FAX Number: (970) COURT USE ONLY Case Number: 16CV30281 Courtroom: 5B John R. Duval, #10185 FORT COLLINS CITY ATTORNEY S OFFICE P.O. Box 580 Fort Collins, CO Phone: (970) jduval@fcgov.com DEFENDANT CITY OF FORT COLLINS ANSWER WITH CROSS-CLAIM COMES NOW the Defendant City of Fort Collins [ the City ], by and through its counsel, Fort Collins City Attorney s Office and WICK & TRAUTWEIN, LLC, and for its answer to the plaintiff s Second Amended Complaint and for its cross-claim against Defendant Walsh Construction, Inc. [ Walsh ], admits, denies, states and avers as follows: ANSWER TO GENERAL ALLEGATIONS 1. The City admits the first sentence of paragraph 1 of the Second Amended On information and belief, the City also admits that Plaintiff was a subcontractor of Walsh, and may have performed certain services generally described in the second sentence of paragraph 2 of the Second Amended

2 2. The City admits the allegations of paragraph 2 of the Second Amended 3. The City admits the allegations of the first sentence of paragraph 3 of the The City also generally admits that it had a contract with Walsh, to perform certain construction services at the Restoration at Woodward Technology Center Lot 4, as alleged in the second paragraph of paragraph 3 of the Second Amended Said contract, attached hereto as Cross-Claim Exhibit 1, speaks for itself. 4. The City admits the first sentence of paragraph 4 of the Second Amended On information and belief, the City admits the second sentence of paragraph 4 of the Second Amended 5. With regard to the allegations of paragraph 5 of the Second Amended Complaint, the City generally admits, on information and belief, that the Plaintiff may have performed certain services on the subject property as the subcontractor of Walsh. The City lacks information sufficient to form a belief concerning the truth or falsity of the remaining allegations of paragraph 5 of the Second Amended Complaint, and therefore must deny the same. 6. With regard to the allegations of paragraph 6 of the Second Amended Complaint, the City generally admits that Plaintiff sent it the Verified Statement of Claim attached to the Second Amended Complaint as Exhibit A. Said Verified Statement of Claim speaks for itself. The City is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as to when the Plaintiff mailed the Verified Statement of Claim, or whether it was also sent to the other defendants, and therefore must deny the same. 7. The City admits the allegations of paragraph 7 of the Second Amended 8. The City denies the allegations of paragraph 8 of the Second Amended Complaint, as stated. The City admits that it is a home rule municipal corporation located in the State of Colorado. It denies that it is a resident or that it does business in the State. The City also generally admits that the other defendants named in the Second Amended Complaint are corporations in good standing licensed to do business in the State of Colorado. ANSWER TO FIRST CLAIM FOR RELIEF (Breach of Contract) 9. Defendant City incorporates herein its preceding responses to paragraphs 1-8 of the Second Amended Complaint as though fully set forth herein. 10. With regard to the allegations of paragraphs of the Second Amended Complaint, said allegations appear to be made only against Defendant Walsh, and do not call for a response from the City. To the extent paragraphs of the Second Amended Complaint do 2

3 make any allegations against the City, the City hereby admits and denies said allegations consistently with the admissions and denials set forth in the response to the Second Claim for Relief below. SECOND CLAIM FOR RELIEF (Untitled) 11. The City incorporates herein its preceding responses to the Second Amended Complaint as though fully set forth herein. 12. The City admits the allegations of paragraph 14 of the Second Amended 13. With regard to the allegations of paragraph 15 of the Second Amended Complaint, the City admits that it holds certain funds as retainage for payment on its contract with Walsh, for the construction services to be performed on the subject property. The City is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 15 of the Second Amended Complaint as to whether Plaintiff is entitled to payment from said retainage funds, and therefore must deny the same. It is Plaintiff s burden to prove its claim against Walsh and entitlement to payment out of said retainage. 14. With regard to the allegations of paragraphs 16 of the Second Amended Complaint, the City admits that it is the owner of Lot 4, Plat of Woodward Technology Center, for which certain labor, materials, equipment and services were supplied pursuant to its contract with Walsh. Said contract speaks for itself. 15. With regard to the allegations of paragraph 17 of the Second Amended Complaint, the City admits that Walsh was acting as a general contractor for performance of certain construction services at River Restoration at Woodward Technology Center Lot 4. The City denies that Walsh was at any time acting on behalf of or as an agent of the City. 16. The City denies the allegations of Paragraph 18 of the Second Amended 17. With regard to the allegations of paragraph 19 of the Second Amended Complaint, the City admits that Plaintiff timely filed its Verified Statement of Claim and served its Lis Pendens with the City Clerk of the City of Fort Collins. The City also admits that the Plaintiff has made a demand for payment out of the retainage held by the City for the subject project. The City is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 15 of the Second Amended Complaint as to whether Plaintiff is entitled to payment from said retainage funds or the other requested relief, and therefore must deny the same. Again, it is Plaintiff s burden to prove its claim against Walsh and entitlement to payment out of said retainage. 3

4 THIRD CLAIM FOR RELIEF (Claim Against the Bond) 18. The City incorporates herein its preceding responses to the Second Amended Complaint as though fully set forth herein. 19. With regard to the allegations of paragraphs of the Second Amended Complaint, said allegations appear to be made with regard to the bond furnished by Employer Mutual Casualty Company for the project, and therefore does not require any response from the City. To the extent the allegations of paragraphs refer to the Verified Statement of Claim and the retainage held by the City, the City admits and denies the allegations of these paragraphs consistently with its admissions and denials contained in the preceding paragraphs above. 20. The City hereby denies each and every allegation of the Second Amended Complaint not expressly admitted hereinabove. AFFIRMATIVE DEFENSES 1. Plaintiff s Complaint fails to state a claim upon which relief may be granted and should be dismissed with prejudice. 2. To the extent the Plaintiff performed any construction services on the subject property, it was pursuant to a subcontract between the Plaintiff and Walsh, to which the City was not a party. 3. Plaintiff s claims against the City are limited by and subject to the provisions of C.R.S The statute speaks for itself. 4. To the extent the Plaintiff is entitled to any of the relief sought in this action, any judgment to which the Plaintiff may be entitled is limited to the retainage held by the City and judgment cannot be entered against the City itself. 5. The City is entitled to indemnification from Walsh and Employers Mutual Casualty Company for the claims brought by the Plaintiff. 6. The City reserves the right to add or delete affirmative defenses based on information gathered in the investigation or discovery of this case. WHEREFORE, the City respectfully prays that the Court enter judgment in favor of the City on the claim(s) alleged against it by the Plaintiff. To the extent Plaintiff is able to prove its claims for relief against the other defendants, the City prays that the Court limit any recovery against the City related thereto to the retainage held by the City pursuant to statute. The City 4

5 further asks the Court to award the City its reasonable attorney s fees, expert witness fees, costs and such further relief as the Court shall deem just and proper. CROSS-CLAIM AGAINST DEFENDANT WASLH CONSTRUCTION, INC. The City, for its cross-claim against Walsh Construction, Inc., states and avers as follows: 1. On or about December 30, 2013, the City and Walsh Construction, Inc. [ Walsh ], entered into a contract for performance of certain construction services at a project known as the River Restoration at Woodward Technology Center Lot 4, in the City of Fort Collins, Larimer County, Colorado. A copy of the extensive contract documents related to said project is attached hereto as Cross-claim Exhibit Pursuant to the General Conditions which were expressly made part of the agreement between the parties, Walsh accepted responsibility for the safety and protection of all underground facilities located on the property and for repairing any damage to those facilities resulting from the work contemplated by the contract. Said underground facilities were specifically defined in Section 1.41 of the General Conditions to include pipelines installed underground to furnish water on the property. 3. Also pursuant to said contract, Walsh expressly assumed responsibility for all acts and omissions of any subcontractors performing or furnishing any of the work contemplated by the contract, as well as for its own acts and omissions in performance of the contract. 4. Between August 18, 2015 and August 30, 2015, while Walsh had exclusive control and supervision of the subject premises, one of the 4-inch underground irrigation lines located on the subject property was damaged, causing the line to spill approximately 5 million gallons of water underground before the City discovered the damaged irrigation line. 5. As a result of said damaged irrigation line, the City incurred approximately $28,000 in excess water charges for water usage on the subject property. 6. The damaged irrigation line and the City s resulting water loss were directly and proximately caused by the acts and omissions of Walsh and/or its subcontractors, for which Walsh is liable to the City pursuant to the contract between the parties. 7. On information and belief, Walsh has accepted liability for the City s water loss, but has not made any payment on the loss. 8. To date, Walsh has not made an application for final payment on the project, nor has the City issued final payment. The City has properly retained the amount of $120, from final payment on the contract, as allowed by the parties contract and C.R.S

6 9. The City is entitled to judgment against Walsh for the damage to the irrigation line caused by Walsh and/or its subcontractors and the resulting water loss, and is entitled to payment out of the retainage in order to satisfy said judgment for the City s damages due to the water loss. WHEREFORE, the City respectfully requests the following relief for its cross-claim: 1) that the Court enter judgment in its favor and against Walsh, awarding the City its reasonable attorney s fees, expert witness fees, costs and such further relief as the Court shall deem just and proper; 2) That the Court declare that the City is entitled to satisfy any such judgment by withholding the amount of said judgment from final payment on its contract with Walsh; and 3) For whatever further relief the Court deems just and proper. DATED this 13 th day of July, WICK & TRAUTWEIN, LLC This document was served electronically pursuant to C.R.C.P The original pleading signed by Kimberly B. Schutt is on file at the offices of Wick & Trautwein, LLC By: s/kimberly B. Schutt Kimberly B. Schutt, #25947 Attorneys for Defendant City of Fort Collins And John R. Duval, #10185 FORT COLLINS CITY ATTORNEY S OFFICE P.O. Box 580 Fort Collins, CO (970) Defendant City s Address: 300 Laporte Avenue Fort Collins, CO

7 CERTIFICATE OF ELECTRONIC FILING AND SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing CITY OF FORT COLLINS ANSWER AND CROSS-CLAIM was filed and served via Integrated Colorado Courts E-Filing System (ICCES) this 13 th day of July, 2016, on the following: Dwight D. Brummet Wabeke, Brummet & Christiansen P.O. Box 657 Loveland, CO Nicholas H. Ores 218 East 6 th Street Loveland, CO /s/ Jody L. Minch [The original certificate of electronic filing and service signed by Jody L. Minch is on file with the law offices of Wick & Trautwein, LLC.] 7