Free Answering Brief in Opposition - District Court of Delaware - Delaware

` Case 1 :04-cv-00163-GIVIS Document 266-3 Filed O9/26/2006 Page 1 of 3
IN THE WITEI} STATES IHSTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
DONALD M. DURKIN CONTRACTING, INC. ) Civii Action No.: 04-0i63 GMS
Plaintiff, g
vs. ) JURY TRIAL DEMANDED
CITY OF NEWARK et al. I
AFFIDAVIT OF CAROL S. HOUCK
STATE OF DELAWARE :
COUNTY OF NEW CASTLE SS
Caroi S. Houck, being duiy sworn, does depose and say:
l. I speak from personal knowledge and am competent to make this Affidavit.
2. I am employed by the City of Newark ("Newark”) as Assistant Administrator in
the City Managers office. I make this Affidavit in support of City of Newark Defendants
Supplemental Answering Brief to Dnrkirfs Motion for Sanctions. U
3. When preparing for my trial testimony on Friday, September 22, 2006, I reviewed
a folder iabeled "RFP Reserv0ir" which contained Requests for Proposals from engineering firms
to design the reservoir. I looked inthe folder to refresh my memory regarding the terms ofthe V
URS design contract, dated November 6, 2000, which I understand to support Newark’s claim
for contribution and indemnity from URS.
4. I did not believe the folder contained any documents post-dating the year 2000.
5. The "RFP Reservoir" folder contained notes written by me on September ll, 2003
and an email written to me on March E7, 2005, in addition to the proposal documents from 2000.

Case 1 :04-cv—OO163-GIVIS Document 266-3 Filed O9/26/2006 Page 2 of 3
6. I did not tile my September 11, 2003 notes in this folder and thought these notes
had been produced to counsel, as I was instructed by counsel to produce all documents from the
City Managefs oftice andthe Water Department concerning the reservoir project.
7. Ibelieve these notes were mis·tiled by my secretary.
8. I have reviewed the undated document attached hereto as Exhibit I. I authored
this document in February 2004 after Durkin was terminated.
9. I remember drafting the document after reviewing a letter written by Paul Cottrell
on February 4, 2004. The document represents my thoughts about Durkin returning to complete
the reservoir proj ect while we waited for a response from Durkin to the February 4 letter.
I , .»‘‘ I .
- .---
Carol S. • “` ck
_ VICTORQA K. PETRONE
SWORN TO AND SUBSCRIBED before me this 25th day of September, Zlmgrnéy At Law
29 Dei. C. §4323 (3)
2 35 Notaria! Officer
Notary Public
,2-

Case 1 :04-cv-00163-GIVIS Document 266-3 Filed O9/26/2006 Page 3 of 3 I ·
ISSUES TO BE CONSIDERED REGARDING
DURl(lN’S DESIRE TO COMPLETE THE RESERVOIR PROJECT
• Durkin has repeatedly told us they could not build the reservoir as designed. What
has changed to make them think they can now build it as designed? They need
to demonstrate their commitment to the project.
• Durkin has not been a reliable partner to this project. They have been off this job
. for months and have been considered in default of our contract. Why should we
trust that they will commit to getting back to work and completing the reservoir
project? -
· • URS should provide its opinion on Durkin completing the project.
• Durkin shall consent to their responsibility for all work or materials at the site that
have been damaged as a result of their failure to continue building the project as _
designed or properly protecting portions ofthe site. .
• Durkin shall consent that all previously mentioned claims for additional fees will .
not be negotiated and that they have been adequately addressed by URS as being
. part of the original contract documents. These possible claim items must be
clearly identified. T
• Durkin shall without reservation agree to specifications as bid and build the I
` reservoir as designed. E
• Durkin shall provide URS with their method of temporary controls.
• Durkin must provide and commit to dates for substantial completion and final
completion that meet with our approval.
• The surety shall further guarantee its backing of Durkin and their belief that Durkin
can complete this project successfully. lt should be noted that the last four or five -
invoices paid to Durkin where picked up and a sense of urgency noted. This has
` made us suspicious as to whether or not they were having financial difficulties.
• Durkin shall submit a financial statement for review. ` .
• Notification to Council — how will that be made? at
• How would the above mentioned points be handled? Would an addendum to the
contract be appropriate - setting out these terms?
. NEW00146

Case 1:04-cv-00163-GMS

Document 266-3

Filed 09/26/2006

Page 1 of 3

Case 1:04-cv-00163-GMS

Document 266-3

Filed 09/26/2006

Page 2 of 3

Case 1:04-cv-00163-GMS

Document 266-3

Filed 09/26/2006

Page 3 of 3