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City wins aquatic center lawsuit

Contractor sought more than $100,000

October 25, 2012
By BILL SHEA, , Messenger News

The company that built the Fort Dodge aquatic center has lost its bid to collect more than $100,000 it claimed it was owed by the city government.

Christensen Construction, of Pender, Neb., sued the city in Webster County District Court seeking $119,491.29.

City officials argued that the money wasn't paid because the aquatic center was completed 35 days late.

In a ruling that became public Thursday, District Court Judge Gary L. McMinimee agreed with the city leaders.

"Plaintiff has failed to show any basis for recovery of the $35,000 withheld by the defendant as liquidated damages," he wrote.

Mayor Matt Bemrich welcomed the ruling.

"Not only are we being good stewards of the city's money, but we are holding companies that do work for our citizens accountable that it gets done right and on time," he said.

City Manager David Fierke said the legal victory was the result of "an impressive team effort."

"The city had a very strong defense," he said, "I want to thank City Attorney Mark Crimmins, the staff that assisted in trial preparation, our design consultants and the local contractors who testified in our defense."

The City Council hired Christensen Construction on May 11, 2009, to build the aquatic center at 10th Avenue North and 32nd Street. The company was awarded a $7,453,500 contract for the job.

The aquatic center was to be completed by June 11, 2010, according to Fierke.

However, it wasn't done until July 16, 2010.

The city withheld $1,000 per day for every day that the project was late, for a total of $35,000.

Christensen Construction filed a lawsuit, claiming it was owed the $35,000 plus $84,491.29 in what it called "construction acceleration costs."

A trial was held on June 5-6.

McMinimee wrote that witnesses for Christensen Construction testified that rain delayed the project by making it difficult to work at the site. He wrote that the company claimed it lost 89 working days between June 2009 and July 2010.

The judge wrote that leaders of two Fort Dodge companies that were subcontractors on the job testified that inaction by Christensen Construction, not rain, caused the delays.

"Joel Rasch indicated that Rasch Construction had not been delayed by rain but by lack of instructions from plaintiff," McMinimee wrote. "According to Joel Rasch, structures could have been started on the site by mid-June had plaintiff promptly laid out the pool so Rasch could have started digging earlier. That would have changed the schedule for the project by allowing others to get started with their work on the site nearly a month sooner."

According to McMinimee, Dale Jensen, the president of Jensen Builders Ltd., testified that the delays his company experienced were caused by the fact that Christensen Construction had "manpower shortages."



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