HomeMy Public PortalAboutCase 20-cv-80948Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 1 of 14
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
TOWN OF GULF STREAM,
Plaintiff,
V.
CASE NO. 20-cv-
BELLSOUTH TELECOMMUNICATIONS, LLC
d/b/a AT&T SOUTHEAST, a foreign limited
liability company,
Defendant.
COMPLAINT
Plaintiff, the TOWN OF GULF STREAM ("Town"), a municipal corporation and political
subdivision of the State of Florida, by and through its undersigned counsel, hereby sues Defendant,
BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T SOUTHEAST ("AT&T"), a
foreign limited liability company, and alleges as follows:
NATURE OF ACTION
1. The Town seeks specific performance and declaratory relief to require AT&T to
perform its written agreement to complete the undergrounding of its aerial facilities in the second
and final phase of the Town's undergrounding project. With the project nearly complete, AT&T
has refused to perform and instead demands that the Town enter into an entirely new contract at
nearly Umillion more than the original contract price, which was subject only to differing site
conditions or force majeure events not reasonably foreseeable at the time AT&T provided its
proposed special construction charge or the time the parties agreed to that charge.
2. To promote and protect the public health, safety, and welfare, in 2015 the Town
embarked on a project to convert the overhead utility service facilities of its major utilities, Florida
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Power & Light Company ("FPL"), which provides electric service, and Comcast, which provides
telecommunications, cable television, and broadband/internet services, to underground facilities.
The Town executed underground conversion agreements with FPL and Comcast for this purpose,
just as it did with AT&T. FPL and Comcast have now completed or nearly completed their work
at the prices contracted upon with the Town and without reporting any materially different and
non -reasonably foreseeable conditions in the field. AT&T has likewise failed to give the Town
prior notice of any such conditions during the past three years. Instead, it has affirmatively
represented to the Town on multiple occasions that it did not anticipate "any surprises" and that
any additional conduit or hardware it deemed required would be placed at its own cost. With
another hurricane season having just begun and the COVID-19 pandemic stressing the Town's
residents and its finances, the Town seeks this Court's intervention to compel AT&T to finish what
it started at the agreed upon price so that the Town can fully and finally complete its
undergrounding project.
PARTIES, JURISDICTION AND VENUE
3. The Town is and was at all times material a municipal corporation of the State of
Florida and a political subdivision of the State of Florida with the power and authority to bring this
action.
4. AT&T is a Georgia limited liability company that has its principal place of business
in Atlanta, Georgia. AT&T is a for-profit, telecommunications utility company that conducts
substantial business in the State of Florida, including in the Town of Gulf Stream, Florida.
5. On information and belief, AT&T's sole member is BellSouth, LLC; BellSouth,
LLC's sole member is AT&T DataComm, LLC; AT&T DataComm, LLC's sole member is AT&T
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DataComm Holdings, LLC; and AT&T DataComm Holdings, LLC is a Delaware limited liability
company with a principal place of business in Dallas, Texas.
6. The amount in controversy exceeds the sum or value of $75,000, exclusive of
interests and costs.
7. This Court has diversity jurisdiction over the Town's claims pursuant to 28 U.S.C.
§ 1332 because the parties are completely diverse in citizenship and the amount in controversy
exceeds $75,000, exclusive of interest and costs.
8. The Court also has jurisdiction over this action pursuant to the Federal Declaratory
Judgment Act, 28 U.S.C. § 2201.
9. AT&T is engaged in substantial and not isolated activity within this state and thus
subject to personal jurisdiction in this Court. Further, AT&T committed the wrongdoing alleged in
the Complaint, including the alleged breach of contract, in Florida.
10. Venue is proper in this judicial district pursuant to 28 U.S.C. §§1391(b) -(d) because
a substantial part of the events or omissions giving rise to the claims occurred within this district.
FACTUAL ALLEGATIONS
11. As have numerous municipalities throughout the State of Florida, the Town in
2015 passed an ordinance requiring the undergrounding of all facilities for providing electrical
power, telecommunications, video, cable television, internet, broadband, and similar services
located within its jurisdiction. Town of Gulf Stream Code Art. VI, § 34-103 to §34-109 (the
"Undergrounding Ordinance"). Absent certain exceptions, the Undergrounding Ordinance also
declared that poles, overhead wires and associated overhead structures were not permitted. See
id. at §34-103.
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12. By the undergrounding project, the Town and its residents sought (1) improved
safety through the elimination of the potential for downed electric lines and other hazardous
conditions in the event of significant weather events, including tropical storms and hurricanes; (2)
improved reliability through the installation of new upgraded utility lines and facilities, and the
reduced frequency of utility service interruptions such as power outages, service failures, and fires
resulting from contact with power lines; and (3) improved neighborhood aesthetics through the
elimination of a heavy concentration of overhead electric lines and communication facilities.
13. The Town thereafter began a two -phased process of undergrounding its utility
facilities. Phase I has since been completed (in 2016). Phase II, which includes North Ocean
Blvd. south from Little Club Road to Golfview Drive and all areas west to the intracoastal
waterway, began in or about the third quarter of 2016.
14. Part of the Town's obligations under its agreement with AT&T included placing
conduit, handholes, and associated hardware to accommodate AT&T's installation of its
underground facilities. To place the necessary hardware (conduits, handholes, etc.) for Phase II,
the Town contracted with Wilco Construction, Inc. ("Wilco")
15. The Town also contracted with FPL and Comcast to place their respective
electrical and cable/broadband facilities underground within the conduit and other hardware
placed by Wilco. Comcast committed to underground its facilities in Phase II for approximately
$160,000.
16. AT&T had previously completed the Phase I undergrounding of its
telecommunications facilities for the contracted price of $161,450.38.
17. On May 20, 2016, the Town paid AT&T $25,000 to prepare a special construction
quotation for AT&T's Phase II work. The parties agreed that the payment would be non -
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refundable, but would be credited against the detailed special construction charge ultimately
determined by AT&T. See Composite Exhibit "A".
18. Thereafter, on December 14, 2016, AT&T delivered its detailed, proposed special
construction charge of $420,581.79 to the Town along with a proposed agreement to complete
the Phase II work.
19. The Town agreed to AT&T's proposal and, on May 9, 2017, the Town executed
a Special Construction Agreement ("Agreement") by which AT&T agreed to place its aerial
communications facilities underground in Phase IL A true and correct copy of the Agreement is
attached as Exhibit "B". See Agmt. at Exhibit 1.
20. AT&T expressly agreed to "use the conduits and handholes provided by the
[Town]" and to "place additional handholes or conduits" "should the need arise." Agmt. at Ex.
21. AT&T agreed to underground its tele communications facilities in Phase Il based
on a detailed special construction charge of $420,581.79, subject to change only for differing
site conditions, force majeure events, or change orders requested by the Town.
22. The Town entered into the Agreement, which was heavily negotiated, having paid
good consideration of $25,000 and in good faith reliance on AT&T's special construction charge
for Phase II.
23. The parties agreed that should the Town initiate any changes to AT&T's scope of
work under the Agreement, AT&T would provide the Town with a new special construction
charge and the parties would be required to enter into a new contract. Agmt. at ¶ 16.
24. The Agreement also contains a differing site conditions provision standard to
public works contracts, which would permit AT&T to charge the Town additional costs only if
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it encountered unforeseeable conditions in the field that were materially different from the field
conditions at the time AT&T provided the quote or the time that the Town executed the
Agreement. Agmt. at ¶ 16.
25. The only other conditions that the parties agreed could alter the cost for the
contracted work were above ground barriers and force majeure events like Acts of God and labor
disputes that could not reasonably have been anticipated. Agmt. at ¶ 16.
26. The Town never initiated any changes to the scope of work to be provided by
AT&T under the Agreement and, specifically, never executed any written change orders altering
or expanding the scope of that work.
27. There were no conditions below the surface of the ground that AT&T could not
have reasonably anticipated at the time it provided the special construction charge.
28. There were no above ground barriers that AT&T could not have reasonably
anticipated at the time it provided the special construction charge.
29. There have been no Acts of God, labor disputes or any other force majeure
conditions or circumstances that AT&T could not have reasonably anticipated at the time that it
provided the Town the special construction charge.
30. Further, the Town never made any inaccurate representations to AT&T regarding
the conditions in the held.
31. FPL completed its Phase II work installing its electrical facilities in the conduit
placed by Wilco for the contracted price and without any notice to the Town of any differing site
conditions necessitating unusual or extraordinary expense.
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32. Comcast has also nearly completed its Phase II work installing its cable facilities
in the conduit placed by Wilco for the contracted price and without any notice to the Town of
differing site conditions necessitating unusual or extraordinary expense.
33. On information and belief, AT&T began to place its aerial facilities underground
in Phase II in the spring of 2019, after Wilco had laid the conduit and placed the associated
hardware, after FPL had undergrounded its electrical service utilities, and after Comcast had
nearly concluded undergrounding its utilities.
34. AT&T appeared to actively perform under the Agreement for more than one year,
from the spring of 2019 through the spring of 2020. During that time, AT&T never notified the
Town that it had encountered site conditions in the field that it asserted were materially different
from those existing when AT&T provided its proposed special construction charge or when the
Town executed the Agreement and agreed to that charge, that it had encountered site conditions
that purportedly necessitated any unusual or extraordinary expense, or that it had experienced
any force majeure event that it claimed necessitated additional expense in performing its
obligations under the Agreement.
35. Instead, on the few occasions where AT&T identified to the Town a purported
need to place additional conduit, AT&T represented that that work would be done at no
additional cost to the Town.
36. For example, the Town Manager raised cost concerns to AT&T in June 2019 after
AT&T represented that it had to bore new conduit, ostensibly because it had not been correctly
installed by Wilco. In response, AT&T's representative George Thomas (who had formulated
the special construction charge) responded and clarified to the Town Manager and its
Undergrounding Project Manager in July 2019 that the Town would incur no additional costs
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under the Agreement: "You are not being charged for any deviations that we make." A copy
of the e-mail correspondence with George Thomas is attached as Exhibit "C".
37. Later in the summer of 2019, Mr. Thomas's supervisor, AT&T Area Manager
Anniken Patino appeared at a Town Commission meeting to provide a report. This was unusual
because AT&T's management had largely declined numerous invitations to update the Town
Commission on AT&T's progress.
38. When Ms. Patino appeared on August 9, 2019, she informed the Town
Commission that the only cable left to place was from Golfview to Banyan in a rear easement;
that AT&T expected to conclude its work with sufficient time for new service to begin prior to
December 2019; and that the old overhead poles and cables would be removed in December
2019.
39. Ms. Patino did not advise the Town that AT&T had encountered any unusual field
conditions or incurred or anticipated any additional costs that would alter the $420,581.79
special construction charge for Phase I1.
40. Notably, with nearly all of AT&T's facilities placed underground and only four
(4) months of work remaining, Ms. Patino affirmatively represented to the Town Commission
on August 9, 2019 that AT&T "didn't expect any surprises."
41. By the Commission's next meeting, on September 13, 2019, AT&T advised the
Town that it had to complete 2 to 3 bores as a result of deep conduit. Again, however, AT&T
represented that it was replacing that conduit at its own cost.
42. The Town thereafter understood that AT&T's Phase I1 work was nearing
completion with no unanticipated issues and certainly no unexpected costs. During this entire
time, i.e., from the execution of the Agreement on May 9, 2017 through and including the date
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of filing this action, the Town never requested any changes to the scope of work under the
Agreement and never requested any change orders from AT&T. From the execution of the
Agreement through and including April 28, 2020, AT&T never requested any change orders or
authorization to perform additional work at the Town's expense. From the execution of the
Agreement until at least April 28, 2020, the Town believed and understood that AT&T was
proceeding to complete the work contemplated by the Agreement; in fact, until at least April 29,
2020, Town staff and the Town's Underground Project Manager observed that work was
continuing on the installation of AT&T's new underground facilities in the conduit that the Town
had installed in compliance with the Agreement.
43. On or about April 29, 2020, AT&T Area Manager Juan Lucas telephoned the Town
Manager ostensibly to introduce himself as Ms. Patino's successor. With the Town and its
residents under emergency orders resulting from the ongoing COVID-10 pandemic, Mr. Lucas
casually remarked that the cost of AT&T's work had ballooned to "well over a million dollars."
No prior notice in this regard had been provided.
44. Mr. Lucas made no attempt to justify the trebling of expenditures under the parties'
Agreement. He threatened to stop working by stating that AT&T would cease performing under
the Agreement until the Town agreed to enter into an entirely new contract reflecting this pricing.
45. The Town Manager immediately requested that AT&T provide an actual cost
analysis comparison to the agreed-upon special construction charge, as well as information on the
percentage of work completed by AT&T. Mr. Lucas responded that AT&T "does not have that
information ready yet."
46. When Mr. Lucas finally responded in writing to the Town Manager -- more than
two weeks later, on May 20, 2020 -- he still refused to provide any detailed cost comparison to
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the contract price. Nor did he estimate the percentage of work to be completed. This information
has never been provided to the Town.
47. Mr. Lucas instead purported to summarize various instances where AT&T claims
to have discovered infrastructure that "was not as agreed upon." Mr. Lucas failed to attribute any
actual costs to each instance of additional work or to identify when the work was performed. He
simply represented that AT&T has incurred $1,100,000 in actual costs through May and anticipates
costs anywhere from $100,000-300,000 to complete the project. Included in Mr. Lucas' summary
is work that AT&T affirmatively represented to the Town back in July 2019 would be completed
at no additional cost. A copy of Mr. Lucas' May 20, 2020 correspondence and summary is attached
as Exhibit "D". Through and including the date of this filing, AT&T has never submitted a change
order request or anything identified as such. Moreover, AT&T has not provided any invoices for
work that it claims to have done.
48. AT&T never gave the Town any advance notice that it would seek to recover
nearly one million dollars more than the special construction charge that it proposed and to
which the Town agreed for any of the work identified in Exhibit "D". Instead, for at least some
of that work, AT&T affirmatively represented to the Town that it would not be charged anything
additional.
49. The Agreement by its terms cannot be orally modified and the doctrine of sovereign
immunity protects municipal governments like the Town from any liability for additional work
performed other than pursuant to a written change order.
50. Just 10 days before the June 1 official start of hurricane season, AT&T confirmed
to the Town on May 20, 2020 that its work on Phase II "is currently stopped."
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51. All conditions precedent to this civil action have been performed, waived, or
otherwise occurred.
52. The Town has enlisted the undersigned counsel to prosecute this action on its
behalf. The Agreement entitles the Town to recover from AT&T all of its costs and expenses
incurred in bringing this action including, but not limited to, its reasonable attorneys' fees. Agmt.
at¶ 13.
COUNT
Breach of Contract — Specific Performance
53. The Town hereby re -alleges and incorporates the allegations of paragraphs 1
through 52.
54. The Town has performed all of its obligations under the Agreement.
55. The terms of the Agreement require AT&T to perform.
56. AT&T has materially breached the Agreement by its outright refusal to perform.
57. As a result of AT&T's breach, the Town has suffered and continues to suffer
significant injury. While underground utilities reduce the risk of accidents caused by lines, which
can be brought down by storms causing power outages, the Town also sought the aesthetics of a
community no longer plagued by unsightly wires.
58. Because AT&T has a property interest in its facilities already placed underground
in the Town and because any telecommunications or similar facilities to be placed in the conduit
installed by the Town would necessarily be AT&T's property at the end of the project, the Town
cannot simply engage another contractor to complete AT&T's work and then sue AT&T for the
damages incurred in completing the project. The completion of AT&T's work is required to fully
and finally complete Phase II and remove the remaining overhead poles, wires, and overhead
accessories in the Town. Money damages therefore cannot adequately remedy AT&T's breaches.
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59. To the extent that AT&T asserts that it is entitled to any additional compensation
under the differing site conditions provision of the Agreement, AT&T must continue to perform
according to the terms of the Agreement until that differing site conditions dispute is settled.
60. Failure to order AT&T to specifically perform under the Agreement would cause
the Town unreasonable hardship by, among other things, maintaining overhead wooden poles that
constitute a safety hazard to the Town.
WHEREFORE, Plaintiff, Town of Gulf Stream, prays that this Court will enter judgment
in its favor, compelling AT&T to specifically perform under the Agreement for the agreed upon
special construction charge, awarding the Town all of its costs and expenses (including its
reasonable attorneys' fees), and granting the Town such additional relief as the Court deems just
and appropriate under the circumstances.
COUNT II
Declaratory Judgment Pursuant to 28 U.S.C. § 2201
61. The Town hereby re -alleges and incorporates the allegations of paragraphs 1
through 52.
62. The Town seeks a judicial determination of the rights and obligations of the parties
under the Agreement pursuant to 28 U.S.C. § 2201.
63. There is a real, immediate and continuing controversy between the Town and
AT&T. Specifically, AT&T claims that it is entitled to cease undergrounding its communications
facilities in the Town and otherwise performing under the Agreement until and unless the Town
enters into a new contract committing the Town to pay AT&T $1,060,000 for work already
performed and agreeing to pay AT&T an additional $100,000-$300,000 over and above its claim
for $1,060,000 to complete the project.
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64. The Town denies, refutes and rejects AT&T's claim and maintains that all of the
work identified by AT&T in Exhibit D and for which it seeks additional compensation was or
should have been either: (a) reasonably foreseeable or fully known or knowable by AT&T at the
time that it provided and the Town agreed to the special construction charge; (b) not incurred as
the result of any alleged differing site conditions; (c) unnecessarily incurred; or (d) extra-
contractual work undertaken by AT&T without any notice given to the Town or written
authorization from the Town.
65. There exists a bona fide dispute between the parties which requires an actual and
present need for a judicial declaration.
66. The requested judicial declaration will deal with a present, ascertained or
ascertainable state of facts or with a present controversy as to a state of facts.
67. The antagonistic and adverse interests are all before this Court and the relief sought
is not merely the giving of legal advice by the courts or the answers to questions propounded by
curiosity.
68. The Town has suffered actual and/or threatened injury as a result of AT&T refusing
to complete the undergrounding project.
WHEREFORE, the Town prays that this Court will declare and adjudge the following:
a. That AT&T has no right to unilaterally modify the terms of the Agreement or to insist
that the Town enter into a new Agreement.
b. That AT&T encountered no differing site conditions or any force majeure events that
would entitle it to any additional compensation under the Agreement.
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c. That the doctrine of sovereign immunity precludes AT&T from recovering for any
extra -contractual work undertaken by AT&T without a written change order or other
written authorization from the Town.
d. That this Court award the Town the costs and expenses, including reasonable attorneys'
fees, that it has incurred in prosecuting this declaratory action.
e. That this Court award the Town such further and additional relief as it deems just and
appropriate under the circumstances.
DEMAND FOR JURY TRIAL
The Town of Gulf Stream demands a jury trial on all issues to which it is so entitled.
P:\DOCS\13147\00094\PLD\20F5689. DOCX
JONES FOSTER P.A.
Attorneys for Plaintiff
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: 561-659-3000
Fax: 561-650-5300
By: /s/ Joanne M. O'Connor
Scott G. Hawkins
Florida Bar No. 0460117
shawkinsAjonesfoster.com
Joanne M. O'Connor
Florida Bar No. 498807
joconnor(crJonesfoster.com
Michael J. Gore, Esq.
Fla. Bar No.: 71886
mgoreAionesfoster.com
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EXHIBIT "A"
Case 9:20-cv-80948-XXXX Document 1-1 Entered on FLSD Docket 06/15/2020 Page 2 of 3
at&t
05/09'2016
The Town of GutfStrearn
100 Sea Road
Gulfstream, FL 33423
RE. GulfStream Phase 2 Undergrounding
Mayor Scott Morgan:
TOWN OF GULF STREAM
► PAYMENT APPROVED 4
Amount Do
By Date S '
Check #_ SD Date .
AT& T has received a request from you (or your company) to perform the following work,-
Place
ork:
Place aerial facilities in the Town of GullStream underground
Special construction charges apply to your request. A quotation preparation charge of $25,000 must be paid in advance
to AT&T Florida to offset the expenditures incurred for providing the estimated detailed special construction quotation.
After this payment is received, we will proceed with developing the detailed quotation charge for the special construction
associated with your request. After the quotation preparation payment has been received and the detailed special
construction charge has been developed, a contract with this information will be provided to you for your approval. Once
the agreement to pay the special construction charge is confirmed by returning the original signed contract, AT&T will
schedule the work to meet your request. You will be credited the quotation preparation payment against the detailed
special construction charge This quotation preparation payment is non-refundable and must be received in the
Manager Bill Center at the address shown below before AT&T Florida will proceed with detailed pricing.
If t can be of further assistance, please do not hesitate to contact me at 561-988-6506
Sincerely,
j41
Outside Plant Engineer Contact Information
Printed Name George Thomas
Title Mngr-OSP engg & dsgn
Company AT&T Ronda
Project # A00DG f 0
Service Order NIA
Return this letter and payment to the address below. This letter must accompany the payment in order for
the Engineer shown above to be notified to begin development of the detailed costs for your work request.
AT&T CWO Coordinator
1876 Data Drive
51" Floor North
Attention: Susan Rinehart (Contact.susan.rinehart@att.com)
Hoover, AL 35244
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Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 1 of 6
EXHIBIT "B"
Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 2 of 6
aW
1211412016
Town of Gulfstream
100 Sea Road
Gulfstream, FL 33423
RE: Phase 11 underground work in the Town of Gulfstream:
AT&T has received a request from you (or your company) to perform the following work:
Place all ATT aerial facilities along N Ocean Blvd between Little Club Rd and Golfview Dr and
west to the intracoastal underground -$420,581.79 of
Special construction charges apply. Engineering and Construction will not begin until the
attached contract is signed by you or your authorized agent. The original signed contract
must be received at the AT&T Southeast office address shown below before AT&T
will proceed with any work.
This quote is only valid for 60 days from the date of this letter. If I can be of further
assistance, please do not hesitate to contact me at 561-988-6506.
Sinc el ,
George Thomas
561-988-6506
ATT Southeast
Project # AOODC10 Job Authority # 8E837290A
NOTE: Please associate the Project # above with the check or other form of payment
Return the original signed contract to:
ATT Southeast
321 SE 2nd Street
Delray Beach,FL 33483
Attention: George Thomas- 2nd FLR
Payment in full is required within thirty days after the date of the AT&T invoice for
the charges associated with: the work performed.
Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 3 of 6
at&t
SPECIAL CONSTRUCTION AGREEMENT
Project #: AOODCI O
Authority: BE837290A
AT&T Contact: George Thomas
Telephone #: 561-988-6506
Customer Name: Town of Gulfstream
Customer Number: 561-276-5116
Work Site Address: N/A
This Special Construction Agreement ("Agreement") is entered into by and between BellSouth
Telecommunications, LLC. d/b/a AT&T Southeast ("AT&T") and Town of Gulfstream ("Customer").
AT&T and Customer hereby agree to the following terms and conditions:
1 Tarifis/GuidebooIvs. This Agreement is subject to and controlled by the provisions of AT&T's
tariffs/guidebooks as applicable and all such revisions to said documents as may be made from time to
time.
2. Special Construction. This Agreement is for the special construction as further described
on Exhibit 1, attached hereto and incorporated herein by this reference ("Special
Construction"). Payment in full is required within thirty days after AT&T issues an
invoice to the Customer for the Special Construction Charges.
Early Termination. Should Customer terminate or cancel this Agreement prior to the
completion of construction, Customer shall remain liable for the Special Construction
Charges. Customer acknowledges and agrees AT&T shall incur substantial up -front costs in
connection with its performance under this Agreement and that damages in the event of such
early termination or cancellation are not readily ascertainable and that in such event of early
termination payment of the Special Construction Charges is reasonable. Customer further
acknowledges and agrees that it hereby waives any right to contest such payment of the
Special Construction Charges for any reason, including, but not limited to reasonableness of
the charges, quality of the work, or timeliness of the work.
4. Limitation of Liability. AT&T's maximum liability arising in, out of or in any way connected
to this Agreement shall be as set forth in the tariffs and/or guidebooks, if and as may be
applicable, and in no event shall exceed Special Construction Charges paid by Customer to
AT&T.
5. Severability. Any provision of this Agreement held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and
the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
6. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
7. Counterparts. This Agreement may be executed in one or more counterparts, each of which
when so executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
8. Effect of Waiver. No consent or waiver, express or implied shall be deemed a consent to or
waiver of any other breach of the same or any other covenant, condition or duty.
9. Headings. The headings, captions, and arrangements used in this Agreement are for
convenience only and shall not affect the interpretation of this Agreement.
Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 4 of 6
a t M
10. Modification. This Agreement constitutes the entire agreement between the parties and can
only be changed in a writing or writings executed by both of the parties. Each of the parties
forever waives all right to assert that this Agreement was the result of a mistake in law or fact.
11. Interpretation. The parties agree that this Agreement shall not be interpreted in favor or
against either any party. The parties further agree that they entered into this Agreement after
conferring with legal counsel, or after having a reasonable opportunity to confer with legal
counsel.
12. Applicable Law. This Agreement shall be governed and interpreted in accordance with the
laws of the State of __ Florida_ ____, without regard to __Florida_________Is conflict of law
principles.
13. Attorneys' fees. If either party materially breaches this Agreement and should the non -
breaching party seek to enforce it rights through legal action, the prevailing party shall
recover from the other party all costs and expenses incurred, including, but not limited to,
reasonable attorneys' fees.
14. Authority. The signatories to this Agreement represent and warrant that they are duly
authorized to execute this Agreement.
15. No Precedent. Except for the matters resolved and released herein, this Agreement is of no
value and shall not be considered precedent for resolving any dispute that may arise in the
future.
16. Changes in Scope of Work. The parties recognize that this is an 'Actual Cost' contract. A
preliminary cost estimate has been provided. If the Customer initiates changes in the scope
of the work after AT&T has provided this cost estimate or after executing this contract, the
above cost estimate and this contract are null and void. A new cost estimate must be
provided based on the new scope of work and a new contract entered. Additionally, in the
event there exists a condition in the field that is different from the field conditions that existed
at the time AT&T provided the quote or from the time the Customer executes the contract,
AT&T shall bill and Customer shall pay any additional cost. Field conditions that may alter the
cost associated with this work include, but are not limited to, conditions that exist below the
surface of the ground and could not have been anticipated at the time of the price quote,
above ground barriers, Acts of God affecting the progress or sequencing of the work, labor
disputes and other conditions or circumstances that AT&T could not have reasonably
anticipated at the time the cost estimate was provided.
17. Final Agreement. THIS AGREEMENT REPRESENTS THE ENTIRE AND FINAL
EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
THIS AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES;
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY
PROVISION OF THIS AGREEMENT SHALL BE MADE, EXCEPT BY A WRITTEN
AGREEMENT SIGNED BY BOTH PARTIES.
Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 5 of 6
at&t
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representative on the dates set forth below. This quote is only valid for 60 days
from the date of this letter.
CUSTOMER
By Scott Morgan
Printed Name
By
A orized Signatu e
Title Mayor
Date -dl /I
AT&T Southeast
By George Thomas
Printed Name
akx��?
By
Authorized Signature
Title Mngr-OSP Engg & Dsgn
Date 12/14/2016
Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 6 of 6
at&t
EXHIBIT 1
DESCRIPTION OF SPECIAL CONSTRUCTION
ATT to place underground its aerial facilities in phase II of the underground work in the Town of
Gulfstream. The area included in phase II is N Ocean Blvd south from Little Club Rd to Golfview
Dr and all areas west of this boundry to the intracoastal waterway.
ATT will use the conduits and handholes provided by the customer to accomplish this and should
the need arise place additional handholes or conduits.
Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 1 of 4
EXHIBIT "C"
Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 2 of 4
Gregory Dunham
From:
Gregory Dunham
Sent:
Monday, July 8, 2019 3:01 PM
To:
THOMAS, GEORGE
Subject:
RE: Gulf Stream status
Good Afternoon George,
Can you give me an update at your progress? The last time I talked to you, you told me that some of the conduit was
installed too low and that ATT would have to modify that conduit in those areas. Has that started? I have a Commission
meeting in the morning during which I would like to update the Town Commission on the status of ATT's work. Please
either Email me or call me at 561-314-5021.
Thanks,
Greg Dunham
From: THOMAS, GEORGE [mailto:gt5193@att.com]
Sent: Tuesday, June 25, 2019 10:38 AM
To: Danny Brannon <dbrannon@bngengineers.com>; Greg Dunham <GDunham@gulf-stream.org>
Subject: RE: Gulf Stream Meeting
Danny
You are not being charged for any deviations that we make.
There is a crossing needed for 3421 N Ocean Blvd that is not in place.
Thanks.
From: Danny Brannon <dbrannon@bngengineers.com>
Sent: Monday, June 17, 2019 11:08 AM
To: Greg Dunham <GDunham@gulf-stream.org>; THOMAS, GEORGE <gt5193@att.com>
Subject: RE: Gulf Stream Meeting
George, if you change your plan, do not charge us for the extra costs for your changes.
Danny Brannon, P.E.
Brannon & Gillespie, i.ix
Consulting Engineers
631 US Highway One, Suite 301
North Palm Beach, Florida 33408
Off: (561) 847-4435 Cell: (561) 307-9454
Website: w%NNv.BnGEngineers..com
From: Greg Dunham [mailto:GDunham gulf-stream.org]
Sent: Tuesday, June 11, 2019 10:16 AM
To: THOMAS, GEORGE
Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 3 of 4
Cc: Danny Brannon
Subject: RE: Gulf Stream Meeting
Good Morning George,
I just spoke to Greg Kessell who told me that AT&T will have to bore new conduit on a section of the undergrounding
because the conduit was not installed in the correct location. The area in question is on Gulf Stream Road between
Golfview Drive and Middle Road. Danny Brannon told me that the homes on the east side of Gulf Stream Road are
supposed to be fed from A1A and that the homes on the west side of Gulf Stream Road are supposed to be fed from the
rear easement. I need some clarity on this. Can you please call me at 561-276-5116 (office) or 561-314-5021 (cell).
Thank you,
Greg Dunham
From: Greg Dunham
Sent: Thursday, April 11, 2019 9:40 AM
To:'THOMAS, GEORGE' <gt5193@att.com>
Subject: RE: Gulf Stream Meeting
Good morning George,
I would like to sit down with you to discuss ATT's preparations to begin pulling your lines as part of Gulf Stream's
undergrounding project. Could you please contact Renee Basel in our office at 561-276-5116, to schedule a good time.
Thanks,
Greg Dunham
From: THOMAS, GEORGE [mailto:gt5193@att.com]
Sent: Friday, January 11, 2019 8:01 AM
To: Greg Dunham <GDunham@gulf-stream.org>
Cc: Danny Brannon <dbrannon@bngengineers.com>
Subject: RE: Gulf Stream Meeting
Gregory,
Good morning, I am not able to make that Thursday meeting . I would be available for Friday morning 9 or 10 am
From: Greg Dunham <GDunham@gulf-stream.org>
Sent: Thursday, January 10, 2019 2:47 PM
To: THOMAS, GEORGE <gt5193@att.com>
Cc: Danny Brannon <dbrannon@bngengineers.com>
Subject: Gulf Stream Meeting
Good afternoon George:
I am trying to set up a meeting with you and Danny Brannon regarding the Gulf Stream undergrounding project. We
were wondering if you could attend a meeting on Thursday, January 17, 2019, at 2:00 pm at the Gulf Stream town hall?
Best regards,
G r -ogo, y L. 7wri ha +zti, Tow►ti M a4vtcy�
Town of Gulf Stream
Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 4 of 4
100 Sea Rd., Gulf Stream, FL 33483
Ph: 561-276-5116
Fax: 561-737-0188
Email: gdunham@gulf-stream.org
Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s). If
you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original
message. Florida has a very broad public records law. Written communications regarding Town of Gulf Stream business
are public records available to the public upon request. Your e-mail communications are therefore subject to public
disclosure. Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in
response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in
writing.
Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 1 of 5
EXHIBIT "D"
Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 2 of 5
Macfarlane, Mary T.
From: LUCAS, JUAN <jl4305@att.com>
Sent: Wednesday, May 20, 2020 4:26 PM
To: Gregory Dunham
Subject: AT&T Undergrounding Project Town of Gulfstream
Attachments: Summary-5-20-2020.docx
[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or
open attachments unless you are sure the content is safe.]
Mr. Dunham,
Good evening. I hope all is well. As a follow-up to our conversations. The attached summary has the following
information:
• What has transpired during the construction of the AT&T undergrounding project that has caused the increase
in cost
• The actual cost to date
• A very rough estimate of cost to complete the remaining work
• The work required to complete the project
• A general map of the area the project covers
As previously explained the project is currently stopped. Please advise if the Town of Gulfstream is in agreement on
paying the current actual costs and will be paying the difference to complete the project. Thank you.
Juan M. Lucas
Area Mgr OSP PLNG & ENG DESIGN
SE Wireline Access Construction & Engineering — South Palm Beach
AT&T
321 SE 2nd ST, Delray Beach FL, 33483
m 561.955.0476 1 014305@att.com
MOBILIZING YOUR WORLD
All correspondence and coordination herein is with regards to BellSouth Telecommunications, LLC d/b/a AT&T
Florida (ATT -D) which is not responsible for facilities owned and managed by AT&T Corp (ATT -T). Any
questions with regards to ATT -T facilities should be addressed to Inquiries@pea-inc.net.
"This email and any attachments are confidential AT&T property intended solely for the use of the recipients. If you
received this message in error, please notify me and immediately delete this message from your computer. Any retention,
distribution or other use of this email is strictly prohibited."
Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 3 of 5
As work is performed, AT&T construction is discovering infrastructure placed by the Town of
Gulfstream contractor was not as agreed upon.
1. A1A/Ocean Blvd:
The conduit placed from South to North on the West side of A1A was not placed as required. AT&T had
to dig 13 pits in attempts to find the conduit. At the locations where the conduit ends were accessible,
AT&T had to trench back to existing terminal locations to cutover new terminals. This resulted in 9 new
sections of cable, totaling 1,880ft of additional copper cable with 9 additional driveway/roadway
crossings.
Additional work required:
Also 3 A1A conduit crossings were not provided between Lakeview Dr and Sea Rd. This work has
not been completed and will require an additional 3 sections of cable and associated bores. The
estimated added cable requirement of 1,145ft of copper cable and associated bores will be
required.
The removal of the aerial cable and associated terminals will be completed once all bores and
cable placement are complete in this section.
2. SW Corner of Golfview Dr and AlA:
Conduit placed by the Town's contractor had to be exposed approximately 50ft in order to access the
cable and take it to the existing splice location. This was needed to cutover the old cable to the new
cable.
3. From the SW corner of Golfview Dr and A1A, heading West towards Gulfstream Rd:
The conduit placed by the Town's contractor along the South side of Golfview Dr was placed short
approximately 30ft - 50ft of where it was needed. AT&T had to bury this section.
4. From the AT&T box at Golfview Dr and Gulfstream Rd, heading West:
The conduit placed by the Town's contractor along the South side of Golfview Dr was placed to an
unusable location. A new conduit had to be placed 150ft to a splice pick up point.
5. Alley: From the South side of Golfview Dr, heading North to Old School Rd approximately 1,800ft
(see Map below)
The conduit placed by the Town's contractor couldn't be used. AT&T placed the new cable from end to
end in the conduit but wasn't able to access splice points for the terminals to cutover in between the
ends of the conduit run. AT&T had to remove the cables from the contractor's conduit, then create a
new crossings for Golfview Dr, Middle Rd, Lakeview Dr, and Banyan Rd. Besides the added crossings,
AT&T had to direct bury the entire remaining distance of the alley. Several pits were dug in an attempt
to access the conduit placed by the Town's contractor.
6. County Rd:
Additional Flagmen were required by the Town for maintenance of traffic which resulted in added costs.
Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 4 of 5
7. Lakeview Dr and Oleander Way:
The conduit placed by the Town's contractor was not placed as expected. It was placed on the East side
of Oleander Way when it was to cross Oleander Way from East to West then head North along Oleander
Way to an existing terminal. From this point it was to cross from West to East to the last terminal along
this section.
Additional work required in this section:
AT&T to cross Oleander from East to West, place approximately 300ft of copper cable to anew
terminal.
Actual Costs through May $1,060,000
Expected cost to complete the project $100,000 - $300,000
Work left to complete entire project:
1) As noted above:
a. East side of A1A between Lakeview Dr and Sea Rd
b. Oleander way
2) Splicing along the west side of A1A
3) Splice work at the SW intersection of Golfview Dr and A1A
4) Crossing at Old School Rd from Alley South to North
5) Bermuda Ln cable and terminal placement
6) Complete cutover of new terminals at various locations
7) Wrecking of aerial cable east of Polo Dr
8) Removal of AT&T poles and associated materials
Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 5 of 5
LI TILE CLUB RD
SEA RD
Nr L(]LD SCH�►OL RD
BANYAN Rn
a
0
Q
a
ae..
LU
; '
PALM WAY
MI 00L -E RD
L.AKEVI EW DR
G JLF V l EW OR
JS 44 (Rev. Qa$e&2,QsiBB67e.Q948-XXXX DocumCIVIE CIDWRSUFM1SD Docket 06/15/2020 Page 1 of 2
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose
of Initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re -filed Cases Below.
I. (a) PLAINTIFFS TOWN OF GULF STREAM DEFENDANTS BELLSOUTH TELECOMMUNICATIONS LLC
(b) County of Residence of First Listed Plaintiff Palm Beach
(EXCEPT IN U.S. PLAINTIFF CASES)
(C) Attorneys (Firm Name, Address, and Telephone Number)
Jones Foster P.A., 505 South Flagler Drive, Suite 1100, West Palm
Beach, FL 33401; 561-659-3000
d/b/a AT&T SOUTHEAST, a foreign limited
County of Residence of First Listed Defendant Fulton
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (IfKnown)
(d)Check County Where Action Arose: ❑ MIAMI- DADE ❑ MONROE ❑ BROWARD If PALM BEACH 0 MARTIN 13 ST. LUCIE 0INDIAN RIVER ❑ OKEECHOBEE ❑ HIGHLANDS
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfor Plaintiff
Liability
❑ 367 Health Care/
(For Diversity Cases Only) and One Box for Defendant)
❑ 1 U.S. Government
❑ 3 Federal Question
PTF DEF PTF DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State 01 ❑ 1 Incorporated or Principal Place ❑ 4 [1 4
& Enforcement of Judgment
Slander
of Business In This State
❑ 2 U.S. Government
R]4 Diversity
Citizen of Another State ❑ 2 2 Incorporated and Principal Place ❑ 5 ❑ 5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
❑ 450 Commerce
❑ 152 Recovery of Defaulted
Citizen or Subject of a ❑ 3 ❑ 3 Foreign Nation ❑ 6 ❑ 6
❑ 368 Asbestos Personal
❑ 835 Patent - Abbreviated
New Drug Application
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions
CONTRACT
TORTS
FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
❑ 110 Insurance
PERSONAL INJURY PERSONAL INJURY
❑ 625 Drug Related Seizure ❑ 422 Appeal 28 USC 158 ❑ 375 False Claims Act
❑ 120 Marine
❑ 310 Airplane ❑ 365 Personal Injury -
of Property 21 USC 881 ❑ 423 Withdrawal ❑ 376 Qui Tam (31 USC
❑ 130 Miller Act
❑ 315 Airplane Product Product Liability
❑ 690 Other 28 USC 157 3729 (a))
❑ 140 Negotiable Instrument
Liability
❑ 367 Health Care/
❑ 400 State Reapportionment
❑ 150 Recovery of Overpayment
❑ 320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
❑ 410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
❑ 820 Copyrights
❑ 430 Banks and Banking
❑ 151 Medicare Act
❑ 330 Federal Employers'
Product Liability
❑ 830 Patent
❑ 450 Commerce
❑ 152 Recovery of Defaulted
Liability
❑ 368 Asbestos Personal
❑ 835 Patent - Abbreviated
New Drug Application
❑ 460 Deportation
Student Loans
❑ 340 Marine
Injury Product
❑ 840 Trademark
❑ 470 Racketeer Influenced and
(Excl. Veterans)
❑ 345 Marine Product
Liability LABOR
SOCIAL SECURITY
Corrupt Organizations
❑ 153 Recovery of Overpayment
Liability
PERSONAL PROPERTY [17 10 Fair Labor Standards
❑ 861 HIA (13956)
❑ 480 Consumer Credit
of Veteran's Benefits
❑ 350 Motor Vehicle
❑ 370 Other Fraud Act
❑ 862 Black Lung (923)
❑ 490 Cable/Sat TV
❑ 160 Stockholders' Suits
❑ 355 Motor Vehicle
❑ 371 Truth in Lending ❑ 720 Labor/Mgmt. Relations
❑ 863 DIWC/DIW W (405(g))
❑ 850 Securities/Commodities/
® 190 Other Contract
Product Liability
❑ 380 Other Personal ❑ 740 Railway Labor Act
❑ 864 SSID Title XVI
Exchange
❑ 195 Contract Product Liability
❑ 360 Other Personal
Property Damage ❑ 751 Family and Medical
❑ 865 RSI (405(g))
❑ 890 Other Statutory Actions
❑ 196 Franchise
Injury
❑ 385 Property Damage Leave Act
❑ 891 Agricultural Acts
❑ 362 Personal Injury -
Product Liability ❑ 790 Other Labor Litigation
❑ 893 Environmental Matters
Med. Malpractice
❑ 791 Empl. Ret. Inc.
❑ 895 Freedom of Information
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS Security Act
FEDERAL TAX SUITS
Act
❑ 210 Land Condemnation
❑ 440 Other Civil Rights
Habeas Corpus:
❑ 870 Taxes (U.S. Plaintiff
❑ 896 Arbitration
❑ 220 Foreclosure
❑ 441 Voting
❑ 463 Alien Detainee
or Defendant)
❑ 899 Administrative Procedure
❑ 230 Rent Lease & Ejectment
❑ 442 Employment
❑ 510 Motions to Vacate
Sentence
❑ 871 IRS—Third Party 26
USC 7609 Act/Review or Appeal of
❑ 240 Torts to Land
❑ 443 Housing/
Accommodations
Other:
Agency Decision
❑ 245 Tort Product Liability
❑ 445 Amer. w/Disabilities - ❑ 530 General IMMIGRATION
❑ 950 Constitutionality of State
Statutes
❑ 290 All Other Real Property
Employment
❑ 535 Death Penalty ❑ 462 Naturalization Application
❑ 446 Amer. w/Disabilities - ❑ 540 Mandamus & Other ❑ 465 Other Immigration
Other
❑ 550 Civil Rights Actions
❑ 448 Education
❑ 555 Prison Condition
560 Civil Detainee -
❑ Conditions of
Confinement
V. ORIGIN (Place an "X" in One Box Only)
❑
46 1 Original 2 Removed 3 Re -filed
g' ❑ ❑ ❑
Proceeding from State (See VI
4 Reinstated 5 Transferred from 6 Multidistrict
or ❑ another district Liti anon
7
❑ Appeal to ❑ 8
Multidistrict Remanded from
❑�
Court
below)
sect Transfer
Reopened (specify)
District Judge
Liti anon Appellate Court
g PP
Direct
from Magistrate
Judgment
-
File
VI. RELATED/
(See instructions):
a) Re -filed Case ❑YES 46 NO b) Related Cases ❑YES 6 NO
RE -FILED CASE(S)
JUDGE:
DOCKET NUMBER:
Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not citejurisdictional statutes unless diversity):
VII. CAUSE OF ACTION 28 U.S.C. 1332
diversity suit for breach of contract and declaratory judgment, 28 U.S.C.
2201.
LENGTH OF TRIAL via 4 days estimated (for both sides to try entire case)
VIII. REQUESTED IN
❑ CHECK IF THIS IS A CLASS ACTION DEMANDS
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER F.R.C.P.
23
JURY DEMAND:
vl� Yes ❑ No
ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE
DATE
SIGNATURE OF ATTORNEY OF RECORD
June 15, 2020
FOR OFFICE USE ONLY
RECEIPT # AMOUNT IFP JUDGE MAG JUDGE
Case 9:20-cv-80948-XXXX Document 1-5 Entered on FLSD Docket 06/15/2020 Page 2 of 2
JS 44 (Rev. 06/17) FLSD Revised 06/01/2017
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. (a) Plaintiffs -Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the
official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment,
noting in this section "(see attachment)".
1I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an"X" in
one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and
box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4
is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature
of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the
petition for removal is granted, check this box.
Refiled (3) Attach copy of Order for Dismissal of Previous case. Also complete VI.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this
box is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision.
Remanded from Appellate Court. (8) Check this box if remanded from Appellate Court.
VI. Related/Refiled Cases. This section of the JS 44 is used to reference related pending cases or re -filed cases. Insert the docket numbers and the
corresponding judges name for such cases.
VII. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VIII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
Date and Attorney Signature. Date and sign the civil cover sheet.