UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cvTOWN OF GULF STREAM, 

Plaintiff,

v.

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 $1million 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 nonCase 9:20-cv-80948-AHS Document 1 Entered on FLSD Docket 06/15/2020 Page 4 of 14
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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 II. 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. 

1.

21. AT&T agreed to underground its tele communications facilities in Phase II 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 field. 

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 II. 

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 II 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 I

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) extracontractual 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.

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

shawkins@jonesfoster.com

Joanne M. O’Connor

Florida Bar No. 498807

joconnor@jonesfoster.com

Michael J. Gore, Esq. 

Fla. Bar No.: 71886 

mgore@jonesfoster.com

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