QUAM CONSTRUCTION CO., INC., A MINNESOTA CORPORATION Plaintiff,
CITY OF REDFIELD, A SOUTH DAKOTA MUNICIPALITY Defendant.
CHARLES B. KORNMANN, District Judge.
Quam Construction Co., Inc., ("Quam") is a Minnesota corporation that entered into a construction contract with the City of Redfield, ("City") a South Dakota municipality. The construction contract was known as Shar-Winn Estates Storm & Sewer Sanitary Sewer Improvements. It involved, among other activities, the installation of pipes at the job site. Conditions encountered by Quam at the job site during the attempted installation of pipe led Quam to accuse the City of failing to disclose certain conditions. A dispute regarding the completion of this phase or portion of the construction contract resulted in a temporary halt in the project and thus began this action.
The dispute began as a disagreement regarding the subsurface soil conditions necessary to install pipe. The parties argued over who was responsible for correcting subsurface soil conditions to render the site ready for the work to begin properly and safely.
The general conditions of the performance guarantee in the construction contract cited in paragraph 19 provided that Quam, as contractor, and any sureties under the performance bond, "guarantee to complete the project as specified and agree that loss of any occurrence, including acts of God, shall not relieve them of their obligation." Additionally, paragraph IS of the contract provided as follows:
15. NATURE AND LOCATION OF WORK
It is understood and agreed that Contractor has, by careful examination, satisfied himself as to the nature and location of the work, the confirmation of the ground, the character of equipment and facilities needed preliminary to and during the execution of the work, the general and local conditions, and all other matters which can in any way affect the work under this contract.
Neither Quam nor the City could agree about Quam's obligations after it was determined that the ground conditions were unsuitable to safely and correctly install the pipe. Pursuant to the construction contract between the parties, specifically Paragraph 26 of that contract, Quam and the City sought to resolve the dispute through mediation. Paragraph 26(a) of the General Conditions to the Contract provides that "[a]ny controversy or claim arising out of or related to the contract, or the breach thereof, shall first be submitted to the American Arbitration Association Mediation Department. A mutually agreed upon qualified alternative dispute organization may be used." Doc. 6, Exhibit A, Paragraph 26(a).
Following the protocol laid out in the contract, two full-day sessions of mediation were attempted in Sioux Falls, SD, but the mediation failed to satisfy the two parties. Quam then served the City with a demand for arbitration on July 25, 2013. The City has refused to participate in arbitration. Quam is now requesting this Court to compel the City to arbitrate.
The dispute resolution provisions of the contract between Quam and the City are set forth in Paragraph 26 of the General Conditions of the contract. The provisions state the following:
a. Any controversy of claim arising out of or related to the contract, or breach thereof, shall first be submitted to the American Arbitration Association Mediation Department. A mutually agreed upon qualified alternative dispute organization may be used.
Mediation shall continue (1) until resolution of the dispute or (2) until the mediator notifies the parties that it is unlikely that the dispute will be resolved through mediation.
Arbitration: If the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, ...