Clifton wind farm developer, construction firm embroiled in breach of contract dispute

Paul Fuller
Courtesy of Paul Fuller
Paul Fuller
By Nok-Noi Ricker, BDN Staff
Posted Feb. 26, 2013, at 8:28 p.m.

BANGOR, Maine — A Woolwich construction company is claiming in court that the developer of a permitted five-turbine wind farm in Clifton breached an exclusive contract agreement the two had by talking to another contractor and is also seeking payment for services.

The wind farm developer has filed a countersuit claiming the construction company failed to live up to the contract.

Reed & Reed Inc., a construction firm spanning four generations that was established in 1928, filed a lawsuit against Pisgah Mountain LLC in Sagadahoc County Superior Court in September. Justice Andrew M. Horton recently granted the plaintiff’s motion for a writ of attachment.

That action put a hold on $55,000 of Pisgah Mountain LLC’s assets until the entire breach of contract lawsuit is settled.

“It allows you to put a lien on the project,” David Perkins, the Portland attorney for Reed & Reed, said Tuesday. “The lawsuit is ongoing right now.”

Pisgah Mountain LLC is made up of Bangor residents Paul and Sandy Fuller, Paul Fuller’s brother-in-law Mike Smith, also of Bangor, and Clifton residents John and Eileen Williams.

Paul Fuller said Tuesday that the lawsuit is a dispute over payment and services rendered.

“I think I owe Reed & Reed $55,000 and they think I owe them $194,000 and we’re arguing about it,” he said.

The breach of contract lawsuit states that the leaders of Reed & Reed and Pisgah Mountain LLC entered into a pre-construction phase services agreement in December 2010 that required the wind farm developers to “negotiate exclusively, and in good faith” for the final engineering procurement construction contract with Reed & Reed, the complaint states.

“Despite the obligations to negotiate exclusively with plaintiff, the defendant commenced negotiations with another contractor,” the court documents state.

Then, the lawsuit claims, Pisgah Mountain LLC failed to pay for the pre-construction services Reed & Reed supplied.

“[Reed & Reed] was going to build the project and did a whole bunch of initial work and Pisgah was unwilling to pay,” Perkins said.

A month after Reed & Reed filed its lawsuit, Fuller filed a countersuit claiming that the construction company failed to fulfill its end of the contract. Fuller also said he did not violate the agreement to negotiate exclusively with Reed & Reed because he did not negotiate with the other companies he discussed the project with.

“The whole thing hinges on [the word] ‘negotiate,’” the developer said. “I did talk to other companies to make sure I was getting the best prices — that does not violate the law.”

The oral arguments for the writ of attachment motion, which requested $194,000, were held Jan. 9 and Horton issued his order on Jan. 18.

“The court concludes that Reed has shown that it is more likely than not to recover judgment, but not for the full amount requested in the attachment motion, because Reed admittedly had not incurred all the costs on which its right to reimbursement is conditioned,” the Business and Consumer Court judge said in his written order.

Horton is the same judge who is overseeing an appeal of the town’s October 2011 planning board permit allowing the construction of the estimated $25 million wind farm. Rebel Hill Road farmers Peter and Julie Beckford, who lost an earlier appeal to the town’s board of appeals, filed their Superior Court appeal on March 15, 2012, and oral arguments were issued two weeks ago.

The next step in the breach of contract lawsuit is the deadline for discoveries to be filed, which is March 15.

“It doesn’t affect the project and it doesn’t affect the permit,” Fuller said of the lawsuit.

http://bangordailynews.com/2013/02/26/news/penobscot/clifton-wind-farm-developer-construction-firm-embroiled-in-breach-of-contract-dispute/ printed on September 20, 2014