A Colorado contractor that sued to recover $1.5 million from the under-construction Colorado Legends Sports Park in Windsor is not entitled to additional payments and instead is in breach of its agreement with the park, according to a response and counterclaim filed in the lawsuit.
Hensel Phelps Construction Co. of Greeley filed the original suit to recover what it has claimed to be unpaid invoices. It first filed a lien against the project, then agreed to permit the park developers to substitute bonds for the liens, but followed that agreement with a lawsuit in September against the park and its bondholder.
In a response filed in November by Future Legends LLC, the sports-park developers denied most of the allegations in the Hensel Phelps filing and said, “Plaintiff is seeking recovery of amounts that were not furnished for the purpose of improving the subject real property.”
Further, the response alleges that Hensel Phelps claims are “barred by its own breach of contract …”
The sports park followed its response with counterclaims that allege that Hensel Phelps was not just a contractor on the park but also an investor committed by contract to a certain share of the project cost.
“Hensel Phelps expressly agreed that its construction manager’s fee would be 5% of the cost of the work” and that the fee would be divided in a manner that 2.75% would be “allocated to Future Legends as Hensel Phelps’ investment in the project with the remaining 2.25% as a fee” paid to the construction company.
The counterclaim contends that the liens that Hensel Phelps filed included amounts that were part of the construction company’s capital investment in the park as a member of the LLC. It said that Hensel Phelps invoiced for amounts it knew it was not entitled to collect.
The counterclaim contends that Hensel Phelps tried to circumvent the buy-sell obligations set out in the operating agreement and recover its investment by using a mechanic’s lien claim.
The sports park also listed multiple alleged violations of the agreements between the park and the construction company, including failing to adequately budget for raw water and road impact fees, by the manner in which it left the project, by “working with a group of investors to take over the project and take control of the project from the current ownership group,” and by spreading “false, misleading and disparaging information about Future Legends to subcontractors and others involved in the project.”
The sports park seeks a ruling that negates Hensel Phelps’ lien rights plus establishes damages that would be paid to the park developers.
Attorneys for Hensel Phelps and Future Legends did not respond to requests for comment about the case.
The case, Hensel Phelps Construction Co. v. Future Legends LLC, Future Legends Sports Park Metropolitan District No. 2, and Suretec Insurance Co., was filed in Weld County District Court as case number 2021cv30555.
