ND Historical Society fires back with counterclaim to contractor’s lawsuit over museum work
BISMARCK - The State Historical Society is firing back against a contractor who sued the agency for withholding payment for work done on the North Dakota Heritage Center expansion, saying the firm's failure to fix cracks and water leaks has cause...
BISMARCK – The State Historical Society is firing back against a contractor who sued the agency for withholding payment for work done on the North Dakota Heritage Center expansion, saying the firm’s failure to fix cracks and water leaks has caused damages in excess of $50,000.
The state is seeking at least that amount in a counterclaim filed last week as part of its answer to the breach-of-contract lawsuit filed in March by Wahpeton-based Comstock Construction Inc.
“The damages that Comstock complains of are the responsibility of Comstock or other parties over which the State Historical Society has no control,” the answer states.
Comstock signed a $22.2 million contract in November 2010 to serve as general contractor for the $51.7 million expansion project. It claims the historical society is improperly withholding $387,204 for what the agency says is unfinished work. The lawsuit seeks nearly $1.5 million in damages.
In its answer, the historical society says it appropriately withheld payment and denies that it has wrongfully failed to pay for additional work or that Comstock was entitled to additional time and compensation under the contract.
The state claims it was Comstock that breached the contract by not installing the building’s limestone panels according to specifications, by removing its superintendent from the project without the historical society’s consent, by not completing the project on time and by not repairing the items listed on the architect’s punch list.
Comstock was issued a number of punch lists for “incomplete and deficient” work on the project, and it hasn’t fixed numerous punch list items, including cracks and breaks in the curb and gutter, cracks in the concrete parking lot and water leaks, the answer states.
“In the past week, numerous water leaks that existed at the time of the punch list returned with rain that occurred at the North Dakota Heritage Center,” says the answer filed April 29 by attorneys Ron McLean and Peter Zuger of Serkland Law Firm in Fargo, who were retained by the State Historical Board.
Comstock’s attorney, Aaron Dean of Minneapolis, said Friday that the firm “performed all punch list work that has been issued to us” and was already done with the project when its superintendent was reassigned to a pending construction project.
Dean said the state has no damages to assert for the delays it’s now claiming after the fact, and is speculating on damages exceeding $50,000 as an excuse for their failure to pay.
“The grievances amount to pennies and nickels,” he said.
The state is asking Burleigh County District Court Judge James S. Hill to dismiss the case and award damages and attorney’s fees or grant a jury trial.
The 97,000-square-foot expansion project roughly doubled the size of the original museum that opened in 1981. A grand opening was held Nov. 2, 2014, to coincide with North Dakota’s 125th anniversary of statehood.