Barber Brothers Contracting Company, L.L.C. VS East Baton Rouge City-Parish, Department of Public Works
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT r NUMBER 2011 CA 2168 BARBER BROTHERS CONTRACTING COMPANY LLC Y VERSUS EAST BATON ROUGE CITY PARISH DEPARTMENT OF PUBLIC WORKS Judgment Rendered June 8 201 2 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 569 723 The Honorable Wilson Fields Judge Presiding John M Madison III Scott E Frazier Baton Rouge LA Randy B Ligh Baton Rouge LA Counsel for PlaintiffAppellee Barber Brothers Contracting Company LLC Counsel for DefendantAppellant City of Baton Rouge of East Parish Baton Rouge BEFORE W KUHN AND GUIDRY JJ HIPPLE WHIPPLE J This matter is again before us on appeal by defendant the City of Baton RougeParish of East Baton Rouge hereinafter referred to as the CityParish from a judgment of the trial court awarding Barber Brothers Contracting Company LaLC hereinafter referred to as Barber Brothers a total of 08 446 486 in price adjustments under the parties contracts for Burbank I and Burbank 11 projects For the following reasons we affirm the judgment of the trial court FACTS AND PROCEDURAL HISTORY As set forth more fully in this court previous opinion in 2007 the s City Parish advertised for bids for the construction improvements to Burbank Drive in East Baton Rouge Parish Louisiana which were designated as CityParish Project Nos 06CSHC0008 and 06CSHC0009 The low bidder Barber Brothers was awarded the contract for the project by the CityParish Subsequent to the acceptance of its bid Barber Brothers contended that there was a significant unexpected increase in the price for asphaltic cement and fuel Thus Barber Brothers sought a price adjustment pursuant to the Supplemental Specifications for Street and Road Rehabilitation hereinafter Supplemental Specifications which Barber Brothers contended were applicable to all construction projects awarded by the City Parish The CityParish denied that the Supplemental Specifications were applicable to this particular project and refused to grant Barber Brothers the price adjustment See I Barber Br Contracting om a LLC v East Baton Rouge C ny i Parish Q Ilgftlent Of Pu W 20100329 La App I Cir 910 10 opinion blic orks t unpublished writ denied 201 02610 La 1 56 So 3d 963 11 28 Project 2 No 06 CSHC 0008 pertaining to the bid proposal and contract for Burbank Drive Segment 1 and Project No 06CS HC0009 pertaining to the bid proposal and contract for Burbank Drive Segment 2 were bid and awarded jointly Thus for ease throughout the opinion we refer to them collectively as the project 2 On August 1 2008 Barber Brothers filed a Petition for Declaratory Relief 3 seeking a judicial declaration that the Supplemental Specifications applied and were to be used in conjunction with the Standard Specifications for Public Works Construction hereinafter referred to as the Standard Specifications with respect to the project at issue and that the CityParish should thus be ordered to grant a price adjustment according to the contract The platter was heard before the trial court on July 9 2009 At the conclusion of the hearing the trial court On August 24 2009 the trial court rendered took the matter under advisement oral reasons for judgment in favor of Barber Brothers declaring that the Supplemental Specifications were incorporated into the contract with the CityParish and applied to the project A written judgment was signed by the trial court on December 21 2009 containing the following declaration IT IS ORDERED ADJUDGED AND DECREED that the danuary 1998 Supplemental Specifications for Street and Read Rehabilitation are to be used in conjunction with the 1997 Standard Specifications for Public Works Construction and as such are applicable to those certain contracts for the public works projects designated as City of Baton RougeParish of East Baton Rouge Project Nos 00C 54100008 06 CSHC0009 and further the City of Baton RougeParish of East Baton Rouge be and it is hereby ordered to grant a price adjustment in accordance with the terms of the contracts and to pay all costs of these proceedings The CityParish appealed contending that the trial court erred in declaring that the Supplemental Specifications were a part of the contract documents and in signing a judgment directing the CityParish to make a price adjustment On appeal after reviewing the pertinent documents and considering the parties arguments this court affirmed the trial s court finding that the Supplemental Specifications were part and parcel of the contract and that they were to be used in conjunction with the Standard Specifications In doing so we determined that because the Supplemental Specifications specifically state that they must be used in conjunction with the Standard Specifications and the 3 contract at issue herein provides that any reference to the Standarcl Spe if cations sofficially adopted revisions and amendments thereto which is in force include at the time of advertising for bids the Supplemental Specifications were a part of the contract herein We further detennined that it was error as a matter of law for the trial court to order the City to grant a price adjustment in Parish accordance proceeding with the terms of the contracts in a declaratory judgment hus I we vacated that portion of the judgment In so finding we specifically noted that we expressed no opinion as to the merits of any claim for an adjustment or the amount of adjustment if any is ultimately due Barber Brothers ontracting CComp LC L v East Baton Rouge City Parish Department of Publ Works 20100329 at p 1 l n 3 While the matter was pending on appeal Barber Brothers filed a Petition for Supplemental Relief and Rule to Show Cause Pursuant to La C art P 1878 seeking a judgment ordering contractual price adjustments pursuant to Section 10 8 of the Supplemental Specifications entitled Payment Adjustment 1 Asphalt Cement and Fuels in the amount of 280 for Burbank Segment 30 462 I and 205 for Burbank Segment 11 After our decision was rendered in 78 983 the previous appeal Barber Brothers petition was set for hearing before the trial court on May 16 2011 At the conclusion of the hearing the trial court granted the petition for supplemental relief and awarded Barber Brothers price adjustments for Burbank I and Burbank lI in the amount of 205 for each 78 983 of the projects Thereafter a judgment was signed on May 26 2011 awarding Barber Brothers the total amount of 411 56 967 Barber Brothers filed a motion to amend judgment or alternatively for a new trial contending that the parties had stipulated to the price adjustment amounts of 280 for Burbank I and 205 for Burbank 11 and 30 462 78 983 although the trial court ordered the amount prayed for it erroneously awarded 4 the same amount i205 as the price adjustment for both projects The e 983 78 motion was heard on August 22 2011 after which the trial court granted Barber Brothers motion to award the amounts prayed for and stipulated to by the parties A judgment was signed on September 2 2011 awarding Barber Brothers price adjustments in the amounts of 280 and 205 for a total award of 30 462 78 983 08 446 486 The CityParish then riled the instant suspensive appeal from the judgment of the trial court contending only that the trial court erred in finding that Barber Brothers is entitled to a price adjustment DISCUSSION On appeal the CityParish does not contest the computation of the price adjustment amounts sought by Barber Brothers instead in its sole assignment of error the CityParish contends that the trial court erred in finding that Barber Brothers is entitled to a price adjustment and in making such an award herein The price adjustment sought by Barber Brothers was based on Subsection 01 18 of the plemcntal Suj Specifications entitled Payment Adjustment Asphaltic Cement and Fuels which provides for a payment adjustment for asphalt cement and fuels as follows General Payment for contract items indicated herein will be adjusted to compensate for cost differentials of asphalt cement gasoline and diesel fuel when such costs increase or decrease more than 5 from the Louisiana Department of Transportation and Development s established base prices for these items The base price index for fuels and asphalt will be the monthly price index in effect at the tirne bids are opened for the project Payment adjustments will be made each monthly estimate period when the price index for this period varies more than 5 from the base price index The monthly price index to be used with each monthly estimate will be the price index for the month in which the estimate period begins EMMMM3 R Asphalt Cement The base price index for this project is the price per ton of liquid asphalt cement for the month in which bids are received as computed by the Louisiana Department of Transportation and Development The monthly price index will be the average price for asphalt cement F refinery or terminal as determined from the B O quoted price on the first business day of each month from major oil companies supplying asphalt cement in Louisiana Payment adjustment will be made in accordance with the following formulas IfMonthly Price Index exceeds Base Price Index Pa A 1 xCx 05B D 1 T 00 If Base Price Index exceeds Monthly Price Index Pa 0A 95B xCXDX 00T 1 Where Pa Price adjustment increase or decrease for asphalt cement A Monthly Price Index B Base Price index C D Pons of asphaltic concrete Percent ofasphalt cement per job mix formula in decimals T Louisiana sales tax and local sales tax in decimals The engineer will furnish the information on the tonnage of asphaltic placed during the monthly estimate period with the respective asphalt cement contents If the asphalt cement content concrete changes during the estimate period the tonnage produced at each asphalt cement content will be reported All contract pay items under Section 371 will be eligible for payment adjustment No payment adjustment will be made for other asphaltic materials including emulsions and cutbacks The following is a listing of contract pay items that are eligible for payment adjustment and the fuel usage factors that will be used in making such adjustment M1 ELIGIBLE CONTRACT PAY ITEMS AND FINAL USAGE FACTORS FOR FUEL PAYMENT ADJUSTMENT Item No Units Pay Item Fuel Usage Factors Diesel 34100 11 Gasoline In Place Cement galssq yd 04 0 03 0 gals ton a2 40 20 0 gals ton a2 40 20 0 Asphaltic Concrete Pavement Granite Fines galston a2 40 20 0 Stabilized Base Course inches thick 51000 11 Asphaltic Concrete Pavement 200 151 1 Polymerized Asphaltic Concrete Pavement 1151210 The CityParish argues that 1 the construction proposal for Burbarik I contains a Schedule of Items which lists by pay item number the materials that the contractor is to utilize for the project and that the bidder is to seek the bidder s price for the materials 2 Asphaltic concrete is identified therein as item number 9900007 at a unit price of 68 and 3 the construction proposal for Burbank 00 11 also contains a Schedule of Items that identifies asphaltic concrete as number 0 990001 at a unit price of 66 00 The CityParish contends that although the provisions of the Supplement Specifications set forth above allow for certain contract items of asphalt cement and fuels to be adjusted iwhen there is a 5 increase from the base price of e cement and fuels in the instant case the contract items eligible for price adjustment do not exist in Burbank I and 1 construction proposals as numbered The City Parish argues based on its reading ofthe contract and the SupI rental Ve Specifications that the only items eligible for price adjustment are those items enumerated under Section 371 and the only fuel items eligible for payment adjustment are item numbers 1134100 1151000 1 151200 and 1151210 7 Thus the City argues since the pay item numbers for asphaltic concrete set Parish forth in the Burbank I and 11 construction proposals do not utilize the pay item number for asphaltic concrete in the Supplemental Specifications a price adjustment is not allowed herein We disagree At the hearing of this matter Barber Brothers called Louis Wittie the Chief Engineer for Barber Brothers to testify After reviewing the construction proposals for Burbank I and 11 and the Supplemental Specifications Wittie identified asphaltic concrete as a pay item in the construction proposals for Burbank I and 11 that was clearly eligible for a price adjustment under the Supplemental Specifications The CityParish called its Chief Construction Engineer Jose Alvarez to testify Although Alvarez testified that the asphaltic concrete pay item numbers in the construction proposals did not match the asphaltic concrete pay item numbers in the Supplemental Specifications he candidly acknowledged that the pay item asphaltic concrete appeared in both construction proposals for Burbank I and I1 Moreover both Wittie and Alvarez testified that they could not identify or find any Section 371 in the Standard Specifications or the pleniental Sul Specifications After thorough review of the pertinent documents and entire record of this matter we reject as unsupported the CityParish argument that Barber Brothers s is not entitled to a price adjustment for the pay item of asphaltic concrete on the argued basis that the number designations for asphaltic concrete in the construction proposals differ from the number designations in the Supplemental Specrfrccitrons Indeed to the extent that the different number designations used to refer to asphaltic concrete create any ambiguity the interpretation of these provisions and their applicability must be construed against the CityParish which lI authored the Burbank project construction proposals and forms at issue herein See LSA C ail 2056 Accordingly on review we find no error in the judgment of the trial court awarding the price adjustments contractually due to Barber Brothers This assignment lacks merit CONCLUSION For the above and foregoing reasons the September 2 2011 judgment of the trial court is affirmed Costs of this appeal in the amount of 3 are 00 483 assessed to the Defendant the City of Baton Rouge Parish of East Appellant Baton Rouge AFFIRMED 3 A set forth in I SA C 2056 In case of doubt that cannot be otherwise resolved a provision ill a contract must be interpreted against the party who furnished its text A contract executed in a standard form of one party must be interpreted in case of doubt in favor of the other party 9
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