FILED: NEW YORK COUNTY CLERK 02/22/2010 INDEX NO.

603243/2009
DON 1012312009

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/22/2010

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

BOVIS LEND LEASE (LMB), INC., SUMMONS

Plaintiff, Index No.:

- against - Date Purchased: 09603243

LOWER MANHATTAN DEVELOPMENT ... *.
CORP.,

Defendant. :
FILED] *

answer to the complaint in this action within twenty days after the- service of this-sum&ons,
exclusive of the day of service, or within thirty days after service is complete if this summons is
not personally delivered to you within the State of New York, In case of your failure to answer,
judgment will be taken against you by default for the relief demanded in the complaint.

The basis of the venue designated is Plaintiffs residence, 200 Park Avenue, New York,
New York, 10166.

Dated: New York, New York

October 23,2009
SUTHERLAND ASBILL & BRENNAN LLP

Jennifer W. Fletcher
1114 Avenue of the Americas, 40* Floor
New York, NY 10036
(212) 389-5000
Attorneysfor Plaintiff

Defendant's Address:

Lower Manhattan Development Corp.

One Liberty Plaza, 20thFloor
New York, NY 10006

SUTHERLAND 8301073.1

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 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

COMPLAINT

Index No.:
09603243
- against - Date Purchased:

\FILED I

c o u N ~ CLERKS oFFlCE
E\PIYoM
Plaintiff, Bovis Lend Lease (LMB), Inc. (“Bovis”), by and .throu#~ Its attorneys, ~

Sutherland Asbill & Brennan LLP, as and for its Complaint against Defendant Lower Manhattan

Development Corporation (“LMDC”), respectfully shows as follows:

The Parties

1. Plaintiff Bovis is a domestic corporation with its principal place of business at

200 Park Avenue, New York, New York 10166.

2. Defendant LMDC is a domestic corporation with its principal place of business

located at One Liberty Plaza, 20thFloor, New York, New York 10006. LMDC is a subsidiary of

the Urban Development Corporation d/b/a Empire State Development Corporation, a corporate

governmental agency and public benefit corporation organized under the laws of the State of

New York pursuant to the New York State Urban Development Act.

Facts Common to All Causes of Action

3. On September 11, 2001, the building located at 130 Liberty Street in lower

Manhattan was substantially damaged as a result of the terrorist attacks.

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 4. Several years later, the owner of 130 Liberty Street, Deutsche Bank AG, sold the

damaged property to the LMDC. LMDC purchased 130 Liberty Street with the intent to remove

the existing structure and redevelop the property.

5. On or about October 20, 2005, Bovis entered into an abatement and

deconstruction contract (“the Contract”) with the LMDC. The Contract provides that Bovis is

responsible for project management services relating to the decontamination and deconstruction

of a building on the Property (“the Project”). A true and correct copy of the relevant portions of

said Contract is attached hereto as Exhibit A.

6, Following an open procurement process, Bovis entered into two trade contracts

with The John Galt Corporation dated February 13, 2006, and February 21, 2006, for the

performance of all deconstruction and decontamination obligations under the Contract,

respectively.

7. On February 5,2007, due to certain unexpected costs, Bovis, LMDC, and Bovis’s

sureties entered into a Supplemental Agreement in connection with the Project to pay Bovis for

extra work under the Contract for incremental increases in the costs of Gross Cleaning above the

Base Gross cleaning amount (“Contested Work”). A true and correct copy of the Supplemental

Agreement is attached hereto as Exhibit B.

8. On August 18, 2007, a fire broke out on the 17thfloor of the Project. The fire

damaged a total of 10 floors. The damage necessitated remediation efforts to restore the Project

site to its pre-fire condition.

9. On August 28, 2007, Bovis terminated Galt for cause based upon Galt’s breach

and default of its trade contracts.

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 10. On September 10, 2007, LMDC received a regulatory directive to amend the

Project implementation plan and “de-couple” (i.e., separate) the abatement and deconstruction

work under the Contract into separate and sequential phases of work. A true and correct copy of

the September 10,2007 Letter, is attached hereto as Exhibit C.

11. In response to the September lo* Letter, LMDC ordered Bovis to adhere to a

revised implementation plan that de-coupled abatement and deconstruction work.

12. On January 8, 2008, LMDC and Bovis entered into a letter agreement to resolve

certain funding issues prior to recommencement of abatement activities following the fire (the

“January 2008 Agreement”). A true and correct copy of the two letters that comprise the January

2008 Agreement is attached hereto as Exhibit D.

13. In reliance on the January 2008 Agreement, Bovis engaged LVI Environmental

Services, Inc. (“LVI”) as the new Remediation and Deconstruction Subcontractor, to complete

the scope of work originally contracted to Galt on a sequential basis.

14. On January 10,2008, LVI commenced abatement activity at the Project.

15. On September 10, 2009, Bovis notified LMDC that abatement phase of the

Project had been completed in accordance with the terms of the Contract, as amended, effective

September 9,2009. A true and correct copy of the September 10,2009 Notice of Completion of

Abatement is attached hereto as Exhibit E.

16. Bovis and LMDC are presently finalizing the schedule for the remaining

deconstruction work called for under the Contract,

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 AS AND FOR A FIRST CAUSE OF ACTION
(Action to Establish Entitlement to Payment of All Amounts Advanced and
Claims Reserved Under the Supplemental Agreement)

17. Bovis restates each and every preceding allegation and factual averment as if set

forth fully herein.

18. In the Supplemental Agreement, Bovis and LMDC agreed that disputes about

compensation for the Contested Work would be brought within 45 days of Final Completion.

See Ex. B ut Article 6 (a).

19. Bovis agreed in the Supplemental Agreement to pursue its claims regarding the

Contested Work diligently, See Ex. B at Article 6 (c).

20, At the time of entry into the Supplemental Agreement, the abatement work and

deconstruction work were being done simultaneously and Final Completion of the two would

have occurred contemporaneously.

2 1. The abatement phase of the Project is now complete.

22. Bovis therefore brings this action under Article 6 of the Supplemental Agreement

within 45-days of completion of the abatement phase of the Project to preserve its rights and to

establish its entitlement to retain the amounts advanced by LMDC for the Contested Work, and

to establish its entitlement to all profit, overhead, and other amounts to which it is entitled, as

provided by Article 6 (d) of the Supplemental Agreement. See Ex. B at Article 6 (d).

23. Bovis is entitled to retain all amounts paid by LMDC for the actual costs of gross

cleaning incurred by Bovis during the abatement phase of the Project.

24. Bovis is further entitled to recover its costs incurred for changes in the scope of

work; costs incurred due to acceleration and delay; costs incurred due to unanticipated and

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 changed Project conditions; costs incurred but unpaid for site specific general conditions; a

reasonable home office overhead and profit; and other damages incurred in performing the

Project, as contemplated by the Supplemental Agreement, and as later amended by the Parties.

25. Bovis therefore demands judgment in its favor for all relief appropriate at law or

in equity as required by the Supplemental Agreement, as amended by the Parties, and for such

other relief as this Court deems just and proper.

WHEREFORE, Plaintiff demands judgment in its favor and against LMDC for an

amount in excess of $80,000,000, together with all appropriate interest, costs, fees and all other

relief that this Court deems just and proper.

Dated: New York, New York

October 23,2009 SUTHElUAND ASBILL & BRENNAN LLP

1114 Avenue of the Americas, 40thFloor

New York, New York 10036
(212) 389-5000
Attorney for Bovis Lend Lease LMB, Inc.

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