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Claim by Portzen Constructon dba Dubuque Plumbing & Heating Co.
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY PORTZEN CONSTRUCTION, INC. d/b/a DUBUQUE PLUMBING & HEATING CO., Plaintiff, V. KRAEMER BROTHERS, L.L.C., TRAVELERS CASUALTY & SURETY CO. OF AMERICA, CITY OF DUBUQUE, W.C. STEWART CONSTRUCTION, INC. Defendant. CASE NO. ©t3-tEQ C;/49~'Dd°l n c~ ~ r- ; ~ ~„ -o 4.. r^ J ORIGINAL NOTICE ~ ~~ ~ , ~ = c. _ ~ y f =: CU '~~ r~~ You are notified that there is now on file in the office of the clerk of the above court a petition in the above-entitled action, a copy of which petition is attached hereto. The petitioner's attorney is Brian P. Rickert of Brown, Winick, Graves, Gross, Baskerville, and Schoenebaum, P.L.C., whose address is 666 Grand Avenue, Suite 2000, Des Moines, Iowa 50309-2510. That phone number is (515) 242-2400; facsimile number (515) 242-2488. You must serve a motion or answer within 20 days after service of this original notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Dubuque County, at the courthouse in Dubuque, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 563-589-4448. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-294}, ~I.r~ ~/, CLERK OF DISTRICT COURT Dubuque County Courthouse 720 Central Ave. Dubuque, Iowa 52004-1220 IMPORTANT YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. ^l:~ .!_1 i 1 ~• ~~ IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY PORTZEN CONSTRUCTION, INC. d/b/a DUBUQUE PLUMBING & HEATING CO., Plaintiff, v. KRAEMER BROTHERS, L.L.C., TRAVELERS CASUALTY & SURETY CO. OF AMERICA, CITY OF DUBUQUE, W.C. STEWART CONSTRUCTION, INC., Defendants. CASE NO. PETTI'ION IN EQUITY COMES NOW the Plaintiff, Portzen Construction, Inc. d/b/a Dubuque Plumbing & Heating Co., and for its Petition in Equity, and pursuant to Iowa Code Chapter 573, states as follows: 1. Plaintiff Portzen Construction, Inc. is an Iowa corporation with its principal place of business in Dubuque, Iowa and does business under the name Dubuque Plumbing & Heating Co. ("Portzen") 2. Defendant Kraemer Brothers, L.L.C. ("Kraemer") is a Wisconsin limited liability company that is registered to do business in Iowa, is doing business in Iowa, and has its principal place of business in Plain, Wisconsin. 3. Travelers Casualty & Surety Co. of America {"Travelers") is an insurance company, licensed and doing business in the State of Iowa, with its principal place of business in Hartford, Connecticut. 1 4. The City of Dubuque ("Dubuque") is a municipal corporation organized and existing pursuant to Iowa Code Chapter 363 with its principal place of business in Dubuque, lower 5. W.C. Stewart Construction, Inc. ("Stewart") is an Iowa corporation with its principal place of business in Dubuque, Iowa. 6. Venue is appropriate in Dubuque County as the acts and circumstances that give rise to ties suit occurred in Dubuque County and the Project defined below is located in Dubuque County, Iowa. 7. Subject matter jurisdiction of the District Court is proper as the amount in controversy exceeds the jurisdictional minimum of this Court. 8. Dubuque entered into a contract with Kraemer, as the general contractor, for the construction of the Port of Dubuque Parking Facility & Ramp, located between Bell and Fifth Streets in Dubuque, Iowa ("the Project"). 9. The Project is a public improvement as defined by Iowa Code Chapter 573. 10. Travelers, as surety, posted a bond for the Project pursuant to the provisions of Iowa Code Chapter 573. 1 i . In early October 2007, Kraemer entered into a written contract with Portzen whereby Portzen agreed to supply certain plumbing work on the Project and Kraemer agreed to pay for such work ("the Contract"). 12. On or about October 2047, Portzen began to perform under the Contract, and thereafter substantially performed its obligations to Kraemer under the Contract. i 3. In approximately December 2407, Kraemer requested that Portzen perform additional work on the Project that was not in the Contract. In particular, Kraemer requested that 2 Portzen provide new fill and backf~ll certain holes dug by others. Portzen agreed to provide this additional work and Kraemer agreed to pay for it. 14. On December 19, 2(107, and at Kraemer's specific request, Portzen submitted a change order to Kraemer, seeking payment for the requested, additional work in the amount of $98,000. To date, Portzen has not been paid for the additional work performed. 15. To date, Kraemer has paid a total of $464,611.75 of the original contracted price of $511,346.00. Kraemer has failed to pay $46,734.25 due and owing under the original Contract, failed to pay $98,000 for the addirionai work requested, and failed to pay $4,250 for even more additional work requested by Kraemer. In total, Kraemer has failed to pay Portzen the amount of $153,184.25, which remains due and owing. 16. On or about March 3, 2009, Portzen filed an Amended Claim for Material or i.abor on Public Improvement, pursuant to Iowa Code Chapter 573, in the amount of $153,184.25 plus interest, costs and fees. A copy of this claim is attached hereto as Exhibit "A" and incor~rated by this reference as if fully set forth herein. 17. On or about February 25, 2009, Kraemer requested that a portion of the retained funds be released early pursuant to Iowa Code 573.15A. Upon information and belief, Dubuque released such funds or is intending to release such funds. This Petition is being filed within sixty Clays after the completion of ninety-five percent of the Project and K:raemer's request for early release of retained funds, 18. Accordingly, Portzen makes a claim and is entitled to payment in the amount of $153,184.25, plus interest, attorneys' fees, and costs, all of which are due and owing. 19. In the event that the retained funds or other funds being held by Dubuque is insufficient to pay the amount owed to Portzen, Portzen makes claim against the principal, Kraemer, and its surety, Travelers, on the bond. 3 20. Stewart was named as a party to this action as it is believed by Portzen that Stewart filed a public claim under Iowa Code Chapter 573 on the Project as well. WHEREFORE Plaintiff asks that this Court enter judgment in Plaintiffs favor, and against the Defendants in the amount of $153,184.25, plus interest, attorney's fees, and costs, and for any such further relief the Court deems just and equitable. Respectfully submitted, Brian P. Rickert, A 33 BROWN, WINICK, GRAVES, GROSS, BASKERVILLE AND SCHOENEBAUM, P.L.C. 655 Grand Avenue, Suite 2x00 Des Moines, IA 50304-2510 Telephone: 515-242-2400 Facsimile: 515-323-8557 E-mail: Rckert@brownwinick.com ATTORNEYS FOR PLAINTIFF PORTZEN 4 m C1aSm Faun:. __ Page 1 oft ~' F?cC~EI1,~E~ 09 HAR -3 AM 8= 55 CLAlM AGAlIdST TFiE CITY OF QUBUQUE, IOWA CItY ~ ,E;'!~f':3 QEiIC@ Tftis wrlt~tt r'epotl mttst~des your claim against the Cily aE Dubuque. Iowa. You sth5`iiu- ~rei~e>IHt~ctrm in i<ilI Fuld any adrbtiottaJ information tFred supports yow claim. The Gtannt waist be fled wit the City Glesic. at City tiaQ, 5t)1Wt~t 13~' Sf_, t]utwquo, iN 520D1. k trail lea be fefea'red to the mppropr+ait depaAmertt for ~ a~vf ~ the C.iby Atlorr~y s otbrx. Oa~ce'tlyat gs8on is , a report and ~ t~l be s~titted ~ tt~ City Coaxydl. You will be proves wilh a copy of that report aid r~ea>rrttttendrattaut. The fate! detfsion ~ aq claims is made by flee City Coundl. Flo employee of the City of Dubuque has the at#tottty to make arty representation tD you as iD whether your claim tui11 a will not be paid. t. Name of CiaananhPortzen Construction- n/h~a rr~hurmP p ~ >;mh, ng & Heating Co. 2.fwdress: 205 Stone Vall C3' Dpi va„~ Tl17hr1 =TAP ~ T~~.ia 52003 3. Telephone Number. 4. Date ofinddet>t See attached S. Time ofincidertt See attached 6.Lacatianoflnciderrt(Bespecific}_City of Dub~tgue Publi c~ 7m~ rottpmPnt eptitled Port of Dmbuque Parking Facility & Ramp between Bell & 5t-h Gtreets in Dubuque. T. Desaxibe the accident or oaxrrrence that caused injury or damage. (Give full detalfs upon which you base your claim ifi a CRy employee was imoMed, give the empbyee's name.) -See attached 8. t ware weather c~ndP6exts t~Ce? See attached - _ 9. Give name atni addr~ of a+ty witnesses: 5 ee attache d 1Q. Did.police inves~gade? ¢f sn, give names of offaeers.} No. 97. Was anyone injured? (tf so, give names, addresses, and extent of injuries.) A1D ~r A 12 Was arty damage date to property? {if so, describe property amd the Pxtattt of c6atrtages. Attadt esar:tates of damages a tlascritre basis for ascertaining extent of damage.) NIA 13. V1M1tat other damages da you claim, tF anyt See attache d httpJ/wa~w.c}.tyofdubu~u~.o~/piint~r friev~iy.eim?Pagee~l5s 6n2J2t1as Claim Form 14. Have you been compensated for any part or ali of your claim by any Insurance company? (ff so, give name and address of insurance company and amount paid.). No. 15. What amount do you claim from the City of Dubuque? $153,184.25, plus interest, costs an ees 16. Why do you claim the City of Dubuque is responsible? see attached Page 2 of 2 t7. Have you made any claim against anyone else for damages as a result of this incident? (If yes, give name and address.) No 18. ff the answer to Duestion 17 is yes, have you received any payment from that source, and ff ~, ~ >~haf amount? D~ ~~ ~,7 ~y of February 2009 , '~~~ i (mature) Michael L~. Portzen, President (fit ?~nel pr~iAt th~a Pie hip:l/~vw~,cit;+Qf~.}~,.~e.c~glpri~~,~x friendiy.efm`?Pg~~-eI'~1~~ vdl7./~t3fl8 AMENDED CLAIM AGAINST CONTRACTOR Under Provisions of Chapter 573 Code of Iowa Date: February 26, 2_ 009 To: City Glerk City Hall, First Floar 50 West 13°i Street Dubuque, Iowa 52001 We, the undersigned Portzen Constriction, Ire, d/b/a/ Dubuque Plumbing and HeatingClaimant Co. 205 Stone Valley Drive Dubuque, Iowa 52003 Address herewith files claim against Subcontractor Address or Kraemer Brothers, LLC Prime Contractor 925 Park Avenue Plain, Wisconsin 53577 Address for labor and/or material furnished by us and used by said contractor in the construction of the City of Dubuque Puhiic Improveir~ent eniitled Port of Dubuque Parking Facility anti Ram, between Bell and 5~' Streets, Dubuque, iowa as per the attached itemized exhibit showing a net amount due of One Hundred Fifty-Three Thousand One Hundred Eighty-Four Dollars and 25/100s x$153, T84.2~) CLAIMANT'S AFFIDAVIT STATE OF IOWA ) ss. COUNTY OF DUBUQUE } I, Michael E. Portzea~, the President of Porter Construction, Inc. dJ'bfa Dubuque Plumbing aad Heat~g Co., ~ soieumly swear that the several items men#ia~d in the within staterr~at and attached exhibits) are just, true, and wholly unpaid; that. $so CQatra~ctor has boon notified as to the aannunx, kind, and value ofsaid serv'ices andlor asateri.als so furnisiiod aad/or by itemized invoices rendered to said Contractor during tike progress of the work. Portie~a Constra~ctioq Inc. dlbfa I?ubuqut Plumbing and Heating Co. By. Michael E. Portzen, . Signed and sworn bo be€ore me on February ~, 2009, by Michael E. Portze~n, as President of Portzen Construction, Inc. dIb/a Dubuque Plumbing and Heating Co. t_1. ~r-n ~~ ~.dtJC~ Notary Public ui and for Said State My commission expires: ~ ~ - ~ - ~~ 1vI0IVICA SCHMITT Iowa Notarial Seal Conunission ?`umber: 743178 My Commission Expires: 10/3/2009 Commercial. General & f~ulusb-ial Construction Concrete Wort: - Wails ~ Flatwork Pati•ing -.- Eecaz•ating -.- Sleel Building 2t1~ Stone Valle~• Ur. - Dubuque.. IA 520()3 -- (563) 557-7612 FAX t"563) 557-~3t)&iC Febt-ttaiy 27, 2©09 Kraemer Brothers, LLC 925 Park Ave PO Box 219 PLAIN, WI 52577-0214 STATEMENT TO DATE OF PORTZEN CONSTRUCTION, INC. BILLING TO KRAEMER BROTHERS, Li.,C C.ucreat Caatratct Aaarouaat: $SI 1,346.00 Payments Reocit~d (to date): ($464_b11.75) Amount paring: ~ 46,734.25 Orders: $ 98_t~p0:t30 Totat 8144,734.25 Separate Bi71mgs (n.i.c.): $ 4,250.00 Attorneys Fees incurred (appmx) g 4100.00 Totals: 5153,184.25 T1ta1e: I rexived Kraemer 13s, LLC SzabovQtract d~ by Veador report, it shows a rhecl; m the amrnmt of $21,166.95 writteaa an 7ana~ary 27, 2+009 e3aecilc #56243. Beat Petzm CoashUatiori, Inc. to date has neat zrreived t~ e~eelc so ffie a3~ove stat~emeast is 'fie accurate balaace. Y~ bn~e ~}' ~esticros, Isleasc €e~ei face ~ me at i~ sbaxve tslgalw~ axmmbec. President