Exhibit "B"
KOP:318561v1 3514-O4
Case 1:04-cv-00163-G|\/IS Document 90-3 Filed 07/25/2005 Page 2 of 4
I IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, i
INC., Plaintw g
vs. E
CITY OF NEWARK, et al., Defendants I
CITY OF NEWARKidThird-Party Pluintw i CASE NO. 04-0163-GMS
DONALD M. CONTRACTIN G i
and FEDERAL INSURANCE COMPANY, E
T hird-Party Defendants
I AFFIDAVIT OF JAMES W. DURKIN
I, James W. Durkin, being duly sworn, do hereby depose and state:
1. I am of legal age and competent to make this Affidavit in support of Plaintiffs
Answer to the Motion for Protective Order by the City of Newark ("Motion"). All statements
made in this Affidavit are made upon the basis of my personal knowledge.
2. I am the corporate Secretary of Donald M. Durkin Contracting, Inc. ("Durkin
Contracting") and I was in charge of administering the financial records, including the payroll,
vendor and subcontractor accounts, and payment requisitions for the company on the proj ect for
the City of Newark known as the Water Supply Reservoir ("Project").
3. At some point in the spring of 2005, I received permission from Barbara
Szweczyk, who resides at 191 Kenneth Court, Newark, Delaware, to enter onto her property to
observe the nature and progress of the construction activities by George & Lynch, Inc. at the
Project.
4. Upon receiving permission to enter onto the property of Ms. Szweczyk, myself
and Michael Durkin went onto Ms. Szweczyk’s property, which borders the reservoir and is
1
Case 1:04-cv-00163-Gl\/IS Document 90-3 Filed 07/25/2005 Page 3 of 4
located alongside and above the reservoir, to order observe the nature and progress of the work
of George & Lynch, Inc. at the Proj ect.
5. At no time did I or any other employee or representative from Durkin Contracting
enter onto the reservoir premises dressed in "camouf1age clothing" as alleged in paragraph 7 of
the City of Newark’s Motion and I have no information as to who these purported individuals
were.
6. At no time did I or any other employee or representative from Durkin Contracting
disturb, move or relocate any of the grading stakes at the Proj ect after Durkin Contracting was
removed from the Proj ect. Further, I have no information respecting any such activities.
7. At some point in the late spring of 2005, I received information from suppliers
providing materials for the Proj ect that the construction work performed by George & Lynch,
Inc., specifically as it related to the embankment construction, was not in accordance with the
technical requirements and standards imposed and enforced upon Durkin Contracting by the City
of Newark when Durkin Contracting was performing its work on the Project.
8. The information Ireceived concerning the activities of George & Lynch, Inc. was
in direct contradiction to the reports being provided to Durkin Contracting by the City of
Newark, namely that the construction activities of George & Lynch, Inc. were in complete
conformance and compliance with the requirements and standards imposed upon Durkin
Contracting with respect to construction of the embankments.
9. I acknowledge that on May 19, 2005, May 20, 2005, May 21, 2005 and on June
_ 20, 2005, I entered onto the reservoir site to more closely observe the condition of the
KOP:3l8526vl 3514-04
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embankment work performed by George & Lynch, Inc., after rain events, and that I did not
obtain prior permission from the City of Newark to enter onto the premises on those occasions.
10. On June 20, 2005 and again on June 27, 2005, during an arranged site visit with
counsel for Durkin Contracting and Federal Insurance Company, I observed and confirmed that
the embankment work being performed by George & Lynch, Inc. was deficient and defective in
several material respects, and was not in conformance and compliance with the requirements and
standards imposed upon Durkin Contracting with respect to construction of the embankrnents.
ll. During the site visit referenced in paragraphs 9 and l0 of this Affidavit, I
documented the conditions I observed by taking photographs, copies of which are being made
available to the City of Newark.
12. At no time after Durkin Contracting was terminated by the City of Newark did I,
or anyone associated with Durkin Contracting, disturb or destroy any construction, surveying or
materials on the site or interfere with George & Lynch, Inc’s activities; all we did was document
the conditions on the site by photographing the site.
I state under penalty of perjury that the facts in the foregoing Affidavit are true and
correct to the best of my knowledge, information and belief
Q; UW LK
Date: 7 J Jr.
Ja * . Durkin
SWORN AND SUB i RI ED befo e me this 'zgdiay of July, 2005.
- if n/Im.
Notary Public y
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