Metropolitan Paving Co. v. City of Aurora, Colorado
| Decision Date | 24 September 1971 |
| Docket Number | No. 364-70.,364-70. |
| Citation | 449 F.2d 177 |
| Parties | METROPOLITAN PAVING COMPANY, Incorporated, et al., Plaintiffs-Appellants, v. CITY OF AURORA, COLORADO and City of Colorado Springs, Colorado, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stanley J. Norton, New York City (Norton, Sacks, Molineaux & Pastore, New York City, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., Barefoot, Moler & Claro, Oklahoma City, Okl., and Charles E. Grover, Denver, Colo., and David E. Montgomery, New York City, of counsel, on the brief), for plaintiffs-appellants.
Louis Johnson and R. E. Anderson, Colorado Springs, Colo. (Horn, Anderson & Johnson, Colorado Springs, Colo., on the brief), for defendants-appellees.
Before SETH, ADAMS*, and McWILLIAMS, Circuit Judges.
This is a contract dispute arising out of a contract for the construction of a major water delivery pipeline for the municipalities of Aurora and Colorado Springs. Metropolitan Paving Company, Incorporated, Gill Construction Company and Tecon Corporation, a joint venture hereinafter referred to as MGT, are the plaintiffs and as the general contractors assert claims both under the contract and for breach thereof. The aforesaid municipalities of Aurora and Colorado Springs, hereinafter referred to as the Cities, are defendants, and Bechtel Corporation, hereinafter referred to as Bechtel, was an additional party defendant. However, by agreement Bechtel was dismissed without prejudice from the proceedings before trial and that order of dismissal is not a part of this appeal.
The Cities retained Bechtel, a worldwide engineering and construction company, to make a feasibility study and then to prepare plans and specifications for the construction of a water diversion, storage and delivery system to bring water, diverted from the Arkansas River, to each of the Cities. In connection therewith, MGT eventually bid on and was awarded a contract to lay 55 miles of water delivery pipeline. The contract called for Bechtel to be the "manager and engineer" for the Cities in connection with the administration of the aforesaid contract. The contract price, incidentally, was roughly $15,000,000, with MGT's bid being $2,500,000 less than the bid of the next lowest bidder and some $5,000,000 less than Bechtel's estimate of the cost.
The contract generally called for MGT to excavate a trench, place bedding material in the bottom of the trench, install the pipe and then place backfill material around and above the pipe. The contract specified four types or "zones" of bedding and backfill material, namely, Zones 1, 2, 3 and 4, which were to be placed in a typical section of trench as follows: Zone 1 backfill material was to be placed under the pipe and up to the lower quarterpoints of the pipe;1 Zone 2 backfill material was to be used only with steel pipe and was to be placed from the lower quarterpoints up to the springline; Zone 3 backfill material, with steel pipe, was to be placed from the springline to a point six inches above the pipe and, with concrete pipe, from the lower quarterpoints to six inches above the pipe; and Zone 4 backfill material was to be placed from a point six inches above the pipe to varying elevations. When steel pipe was to be used, the contract provided that Zones 1, 2 and 3 were to be compacted, which means that after the material was placed in the trench it was to be compressed to provide greater density. When concrete pipe was used, Zone 1 and Zone 3 up to the springline were to be compacted, but from the springline on up Zone 3 was not required to be compacted. Zone 4 material was never required to be compacted.
As concerns the size of the bedding and backfill material, the contract provided that Zones 1 and 2 should contain no materials larger than three-quarters of an inch. The size limitation, if any, of Zone 3 material is the subject of one of the two disputes involved in the present appeal. There was no size limitation on Zone 4 material.
As indicated, one phase of the present controversy concerns the size limitation, if any, on Zone 3 backfill material. Concrete pipe, as opposed to steel pipe, was used by MGT. Hence, under the provisions of the contract above referred to, Zone 3 backfill material was to be placed from the lower quarterpoints of the concrete pipe to six inches above the pipe, with the material from the lower quarterpoints to the springline to be compacted.
The contract provisions relating to Zone 3 backfill material are as follows:
In the relatively early stages of the work a dispute of debatable proportions arose concerning the size limitation, if any, on Zone 3 backfill. MGT was of the view that paragraph 12.2.44 imposed no size limitation whatsoever on Zone 3 backfill material, unless compaction was by flooding, jetting and vibration, in which event there was the 2-inch limitation. Bechtel and the Cities, however, were of the view that paragraph 12.2.44 imposed an overall 2-inch limitation on Zone 3 backfill material, and insisted that all Zone 3 backfill material meet the 2-inch test. MGT complied with this demand but later sought to be compensated for the cost, damage and expense of performing work which was "over and above" that called for by the contract. When their request was denied, MGT brought the present action seeking the sum of $3,549,045.
The second phase of the controversy concerns the subsurface conditions encountered in the area of the project known as Lambert's Meadow. The long and short of this dispute is that MGT contends that when it performed the excavation work in Lambert's Meadow it encountered an "extraordinary massed concentration of boulders" which continued throughout the particular area. Accordingly, MGT sought additional compensation for the additional work thus required and when the Cities refused their request MGT made claim as a part of the present proceeding to recover the additional sum of $144,698.09.
At trial all parties contended that the provisions of the contract relating to the composition of Zone 3 backfill material, namely, paragraph 12.2.44, were clear and unambiguous, though MGT argued for a meaning diametrically opposed to that urged by the Cities. As indicated, MGT contends that a fair reading of paragraph 12.2.44 can only lead to the conclusion that the 2-inch test applied only when there was compaction of Zone 3 material by flooding, jetting and vibration and that inasmuch as the compaction used in the instant case, when compaction was required, was by a mechanical method (not flooding, jetting and vibration), the 2-inch requirement accordingly had no application. The Cities contend that the contract is quite clear and unambiguous and requires Zone 3 backfill generally to pass the 2-inch sieve test. The practical effect of these divergent interpretations of paragraph 12.2.44 is at once apparent: (1) Under MGT's interpretation Zone 3 backfill material, which in the case of concrete pipe was to be placed from the lower quarterpoint to six inches above the pipe and was compacted by mechanical means from the lower quarterpoint to the springline, was subject to no size limitation; (2) whereas under the interpretation given the paragraph by the Cities, all such Zone 3 backfill material was required to meet the 2-inch test.
The trial court indicated that though there might well be some ambiguity as to the size limitation on Zone 3 backfill material compacted by flooding, jetting and vibration (i. e., 2-inch vs. ¾-inch), that as concerns other Zone 3 material the contract "would appear" to be clear and unambiguous in requiring the material to pass the 2-inch sieve test. Specifically, the trial court observed as follows:
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