HomeMy WebLinkAbout08-122 - Union Pacific Railroad Company - 180th Street Construction Settlement Agreement 08 -122
Council Approval 10/06/08
SETTLEMENT AGREEMENT
1. PARTIES
This settlement agreement "Agreement is made and entered into between and among
the following parties "Settling Parties
A. Plaintiff UNION PACIFIC RAILROAD COMPANY, a Delaware corporation
authorized to do business in the State of Washington, and its parent, subsidiary and
affiliate entities, shareholders, heirs, officers, directors, employees, assigns, agents,
insurers and successors (collectively "UP and
B. Defendant CITY OF TUKWILA, a Washington municipality, and its officers,
employees, assigns, agents, insurers and successors (collectively "the City
2. FACTS
This Agreement is based on the following facts:
A. UP filed a Complaint in the Superior Court of the State of Washington in and for
the County of King (Case No. 07- 2- 23751 -8 KNT) "the Complaint alleging
various claims for relief against the City arising from a July 20, 2001 contract in
which UP agreed to, among other things, provide shoo -fly track construction and
signal work in exchange for payment of the actual cost of the work performed as
more fully described in the Complaint (true and correct copies of the contract and
Complaint are attached hereto and incorporated herein as "Exhibits A and B,
respectively The work performed by UP for which it sought recovery of costs
and expenses as alleged in the Complaint is sometimes hereinafter referred to as
"the Work." UP alleged the City failed to pay in full for the Work.
B. The City filed an Answer disputing the amount it owes UP for the Work (a true
and correct copy of the Answer is attached hereto and incorporated herein as
"Exhibit C
C. The Settling Parties hereby intend to settle all claims between them raised in the
Complaint and Answer pertaining to the Work performed by UP.
D. The Settling Parties hereby intend that all other provisions of the contract shall
remain in full force and effect.
E. The Settling Parties acknowledge that full, valid and binding consideration exists
for the execution of this Agreement; and
F. The statements and representations contained herein are contractual in nature and
not mere recitations of fact.
Page 1 of 4 SETTLEMENT AGREEMENT
1- 504590 Settlement_ Agreement
3. COMPROMISE SETTLEMENT FULL AND FINAL
In consideration for the payments set forth below, and the promises and release herein,
UP hereby releases the City from any and all past, present and future claims, rights, obligations,
warranties and demands for relief, including all expenses, costs and attorney fees, and for
damages of every kind of whatsoever nature or basis, known as well as unknown, anticipated or
unanticipated pertaining to costs or expenses incurred by UP in performing the Work
(collectively "Claims
In consideration for promises and release herein, the City hereby releases UP from any
and all past, present and future claims, rights, obligations, warranties and demands for relief,
including all expenses, costs and attorney fees, and for damages of every kind of whatsoever
nature or basis, known as well as unknown, anticipated or unanticipated pertaining to the Work
performed by UP (collectively "Claims
The Settlement Parties hereby mutually represent and warrant they are not aware of any
present Claims between them other than the instant dispute regarding the Work, as set forth in
the Complaint and Answer.
The Settling Parties intend this Agreement to be a full, final and complete settlement,
adjustment and compromise of the above mentioned Claims, including, but not limited to, any /all
claims and/or allegations that were or that could have been made in the Complaint, Answer or
any third -party Complaints, etc., including any /all cross /counterclaims, claims for indemnity or
contribution, and related insurance coverage claims.
4. PAYMENT
The City will pay or cause its insurance company(ies) to pay to UP the lump sum of ONE
HUNDRED AND TWENTY -FIVE THOUSAND AND 00 /100 Dollars ($125,000.00) in
settlement via check made payable to "Union Pacific Railroad Company" (EIN No.: 94-
6001323) within 30 days of the date this Agreement is fully executed.
5. SETTLEMENT NOT AN ADMISSION OF LIABILITY
The Settling Parties deny any and all liability and further state that they are making their
respective payments and releases solely in compromise and settlement of disputed claims and
such payments are not to be regarded as admissions of liability or fault by anyone.
6. DISMISSAL OF THE COMPLAINT ANSWER
The Settling Parties agree that a General Judgment of Dismissal will be entered
dismissing all claims against and between them, including the Compliant and Answer without
costs or attorney fees being awarded to any party. The Settling Parties and their respective
agents and attorneys will enter the General Judgment as soon as practicable following the
execution of this Agreement.
Page 2 of 4 SETTLEMENT AGREEMENT
1- 504590 -S ettlement_Agreement
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Settling Parties. This
Agreement supersedes any prior oral or written agreements or communications on the subject
matter addressed herein.
8. COUNTERPARTS
This Agreement may be executed in counterparts, including counterparts received by
facsimile transmission, each counterpart constituting an original.
9. CONFIDENTIALITY NON DISPARAGEMENT
The terms of this Agreement shall remain confidential and shall not be disclosed to any
person or entity unaffiliated with UP or the City or its attorneys without the prior written consent
of the Settling Parties, except:
A. As necessary for purposes of the executive session of the City Council's approval
of this Agreement;
B. Due to any breach of this Agreement which results in an action between the
parties;
C. As required in the normal course of business for such purposes as audits,
accounting, taxation, internal handling or the handling of an insurer's claim file;
D. When disclosure is reasonably required by law or regulation;
E. By order of court; or
F. As otherwise provided for in this Agreement.
Additionally, the Settling Parties mutually agree not to disparage or otherwise make
unfavorable remarks about each other in any way, orally or in writing, either publicly or
privately, including, but not limited to, in communications with journalists, the Settling Parties'
respective officers, directors, employees or agents, the public or at public meetings.
Due to the difficulty of assessing damages for violation of this provision, violation of this
provision will entitle the damaged party to monetary damages against the violating party in the
amount of $5,000.00 or its actual damages, whichever is greater.
10. GOVERNING LAW
The Settling Parties agree that this Agreement shall be governed by, construed and
enforced in accordance with and subject to the laws of the State of Washington, except to the
extent they are superseded or preempted by the laws of the United States.
Page 3 of 4 SETTLEMENT AGREEMENT
1- 504590- Settlement_Agreement
11. KNOWLEDGE AUTHORITY
The Settling Parties hereby declare that the terms of this Agreement have been completely
read and are fully understood and voluntarily accepted for the purpose of making a full and final
compromise of all the Claims and for the express purpose of precluding forever any further or
additional claims.
Each person signing this Agreement warrants his or her authority to sign this Agreement as a
representative of the party on whose behalf the release is made.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By: Aa /019A
N• 0, �oVfJti��
Date'
Title
THE CITY OF TUKWILA,
a Washington municipality
Z u iris BachkySBOio. 2- 1'820' 140 7 `j
Attorney for City of Tukwila
B m
Title: coact— \v. vac lJV-.i .V--
v V
APPROVED A,S TO FORM:
William R. ep: WSBA No. 39934
Attorney for Unic4 Pacific Railroad Company
Page 4 of 4 SETTLEMENT AGREEMENT
/s /0
Date
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Date
(1 /0 08
Date
1- 504590- Settlement_Agreement
FOR NO. 1954 -46
EXHIBIT
AGREEMENT
BETWEEN
CITY OF TUKWILA
AND
UNION PACIFIC RAILROAD COMPANY
COVERING
CONSTRUCTION OF NEW 180 STREET
GRADE SEPARATION PUBLIC ROAD
CROSSING
AT
TUKWILA,
KING COUNTY,
WASHINGTON
PHC 880706 Folder 1`lo.: 1954
Form Approved, AVP-Law A udit No.:
Agreement Number 495
NEW PUBLIC HIGHWAY CROSSING AGREEMENT
180th Street
Mile Post 171.02 Seattle Subdivision
Tukwila, King County, Washington
THIS AGREEMENT, made and entered into as of the 2.0 of 200 1
by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation to be addressed at
1800 Farnam Street, Omaha, Nebraska. 68102 (hereinafter the "Railroad and the CITY OF TUKWILA, a
municipal corporation or political subdivision of the State of Washington to be addressed at 6300 Southcenter
Boulevard, Suite #100, Tukwila, WA 98188 (hereinafter the "political Body
WITNESSETE:
RECITALS:
The Political Body desires to undertake as its project the construction of the new 180th Street grade
separation public road crossing project (hereinafter the "Project
The Political Body desires the right to use for the Project that portion of the right of the Railroad at
171.02 on the Seattle Subdivision (hereinafter the "Crossing Area"), shown on the attached print dated July 2, 2001,
marked Exhibit A.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows:
ARTICLE 1 RAILROAD GRANTS RIGHT
For and in consideration of the Political Body's agreement to perform and abide by the terms of this
Agreement, including Exhibits A, A•1, B, B -1 and C, attached hereto and hereby made a part hereof, the Railroad
hereby grants to the Political Body, the right to establish, construct, maintain, repair, renew, and use a public highway
at grade over and across the Crossing Area, together with the right of entry to control and'renaove from the Railroad's
right-of-way, on each side of the Crossing Area, weeds and vegetation which may obstruct the view of motorists,
.approaching the Crossing Area,. to any trains that may also be approaching the Crossing Area.
ARTICLE 2 COMPENSATION
In consideration of the rights granted herein, the Political Body does hereby agree to pay to the Railroad the
sum of ONE THOUSAND DOLLARS ($1,000.00).
ARTICLE 3 CERTIFICATE OF INSURANCE
A. Before any work on the Premises begins, the Political Body (as defined in Section8(a) of Exhibit B to this
Agreement) will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance
coverage required pursuant to Exhibit B -1 of this Agreement in a policy containing the following endorsement:
"Union Pacific Railroad Company is named as additional insured with respect to all liabilities arising
out of Insured's performance of the Work required for the project."
1954 -46 City of Tukwila, WA Page 1 July 2. 2001
180 Street Grade Separation
PHC 880706
Form Approved, AVP -Law
,Audit No.:
Folder No.: I954 -46
B. The Political Body WARRANTS that this agreement has been thoroughly reviewed by its insurance
agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an
endorsement as required herein.
C. All insurance correspondence shall be directed to: Union Pacific Railroad Company, 1800 Farnam Street,
Omaha, Nebraska 68102, with reference to Folder No. 1954 -46.
The Political Body may self- insure all or a portion of the insurance coverage required hereunder, subject to
Railroad's review and approval. However, the Political Body's contractor /subcontractor (if any) shall obtain and
provide evidence of insurance coverage pursuant to Exhibit B-1 of this agreement.
ARTICLE 4 IF WORX IS TO BE PERFORMED BY CONTRACTOR
If a contractor is to perform any of the work on the Project (including initial construction and subsequent
relocation or substantial maintenance and repair work), then the Political Body shall require its contractor to execute
the Railroad's Right of Entry Agreement, attached hereto asExhibit D and hereby made a part hereof. Political Body
acknowledges receipt of a copy of the Right of Entry Agreement and understanding of its terms, provisions, and
requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will
Political Body's contractor be allowed onto Railroad's premises without first executing the Right of Entry Agreement.
ARTICLE 5 FEDERAL AID HIGHWAY PROGRAIVI.
The Project is to be financed in whole or in part from funds appropriated by the Federal government and
expended under Federal regulations. It is therefore agreed, by and between the parties hereto, that' Federal-Aid
Highway Program Manual, Volume 1, Chapter, 4, Section 3, and Volume 6, Chapter 6, Section 2, Subsection 1,
issued by the Federal Highway Administration, and any amendments or supplerots thereto which are in effect at
the rime of the execution of each supplement hereto, are incorporated by reference into this Agreement.
ARTICLE 6 WORK TO BE PERFORMED BY THE RAILROAD
A. The Railroad may make any and all changes, alterations or relocations, whether temporary or permanent,
and may provide flagging and other protective services and devices, which in the Railroad's judgment may be or
become necessary or expedient within the Railroad's right -of -way because of the Project. Such work shall include,
without limitation, shoo-fly track construction and signal work.
B. The Railroad shall, at the sole cost and expense of the Political Body, maintain, repair, and replace the
warning devices installed hereunder; PROVIDED, HOWEVER, that this provision shall not negate the Railroad's
eligibility for any further federal, state or local or other public funds that may become available for the maintenance
..of said. devices;. a:nd,. tOY.IDED., TBER,..that the cost,of r air,o ,replacement resuiting,from da a e caused_
by non parties that is not recoverable by theRailroad from the non-parties shall be borne entirely by the Political Body
C. The Political Body agrees to pay the Railroad 100% of the actual cost of the Railroad's work performed and
materials supplied as hereinabove set forth, which includes customary additives to materials services provided by the
Railroad as shown on Exhibit C, attached hereto and hereby made a part hereof.
ARTICLE 7 Eier..CTIVZ DATE; TERM
This Agreement shall become effective as of the date first herein written, or the date work commences on
the Project, whichever is earlier, and shall continue in full force and effect until terminated as herein provided.
1954-46 City of Tukwila. WA
180'" Street Grade Separation
Page 2 July 2. 2001
PHC 880706
Form Approved, AVP -Law
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed induplieate as of the date
first herein written.
ATTEST:
N t-44-C-
(Seal)
195446 City of Tukwila, WA
180th Street Grade separation
UNION PACIFIC RAILROAD COMPANY
By
AVP Real Estate
Page 3
hereto attached.
Audit No.:
CITY OF T1JKWILA
Resolution No.:
Pursuant to Resolution/Order dated:
Folder No.: 1954.46
200
July 2, 2001
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EXHIErr
UNION PACIFIC RAILROAD, NO. 07- 2- 23751 -8KNT
The Honorable Steven Gonzalez
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
Plaintiff, TUKWILA'S ANSWER AND
AFFIRMATIVE DEFENSES TO
vs. COMPLAINT FOR BREACH OF
CONTRACT AND QUANTUM
CITY OF TUKWILA, a municipality, MERUIT
Defendant.
COMES NOW Defendant City of Tukwila "Tukwila and answers the
Complaint of Plaintiff Union Pacific Railroad "UP as follows:
1. In answer to 1 of UP's Complaint, Tukwila is without sufficient knowledge
or information to form a belief as to the truth of the allegations set forth therein, and
accordingly denies the same.
2. In answer to 2 of UP's Complaint, Tukwila is without sufficient knowledge
or information to form a belief as to the truth of the allegations set forth therein, and
accordingly denies the same.
3. In answer to 3 of UP's Complaint, Tukwila admits it is a Municipal
Corporation operating under the laws of the state of Washington as a non charter code
city.
KENYON DISEND, PLLC
TUKWILA'S ANSWER AND AFFIRMATIVE DEFENSES THE MUNICIPAL LAW FIRM
1 1 FRONT STREET SOUTH
1 ISSAQUAH, WASHINGTON 98027 3820
F:\APPS\C1V1TUKWILA \Union Pacifc\2007 Matter\PLD Answer.doc/KIS/08/15/07 (425) 392 -7090 FAX (425) 392 -7071
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4. In answer to 4 of UP's Complaint, Tukwila admits the City entered into a
contract with the UP on or about July 20, 2001, but denies the remainder of this
paragraph.
5. In answer to 5 of UP's Complaint, Tukwila is without sufficient knowledge
or information to form a belief as to the truth of the allegations set forth therein, and
accordingly denies the same.
6. In answer to 6 of UP's Complaint, Tukwila is without sufficient knowledge
or information to form a belief as to the truth of the allegations set forth therein, and
accordingly denies the same.
7. In answer to 7 of UP's Complaint, Tukwila denies that it owes the Plaintiff
$202,283.44 and denies in general.
8. In answer to 8 of UP's Complaint, Tukwila realleges and incorporates its
answers to each and every allegation set forth in this complaint.
9. In answer to 9 of UP's Complaint, Tukwila Defendant admits that on or
about July 20, 2001, the City agreed to pay for certain services, labor and materials in
connection with the construction of an underpass at 180th Street, Tukwila Washington,
but is without without sufficient knowledge or information to form a belief as to the truth
of the remaining allegations set forth therein, and accordingly denies the same.
10. In answer to 10 of UP's Complaint, Tukwila admits that it entered into an
agreement with the UP to pay UP for certain work to be performed by the UP in
conjunction with the construction of the underpass at 180th Street, Tukwila Washington,
and denies the remainder of this paragraph.
11. In answer to 11 of UP's Complaint, Tukwila denies that any amounts are
KENYON DISEND, PLLC
TUKWILA'S ANSWER AND AFFIRMATIVE DEFENSES THE MUNICIPAL LAwFlat
1 1 FRONT STREET SOUTH
2 ISSAQUAH, WASHINGTON 98027 -3820
F:WPPS\CIVITUKWILA\Union Pacific 2007 Matter\PLD Answer.doc/KIS/08 /15!07 (425) 392 -7090 FAX (425) 392 -7071
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due UP for the work UP performed under the contract entered into by the City with the
UP on or about July 20, 2001 and therefore denies the allegation.
12. In answer to 12 of UP's Complaint, Tukwila denies the same.
13. In answer to 13 of UP's Complaint, Tukwila realleges and incorporates its
answers to each and every allegation set forth in this complaint.
14. In answer to 14 of UP's Complaint, Tukwila is without sufficient
knowledge or information to form a belief as to the truth of the allegations set forth
therein, and accordingly denies the same.
15. In answer to 15 of UP's Complaint, Tukwila realleges and incorporates its
answers to each and every allegation set forth in this complaint.
16. In answer toll 16 of UP's Complaint, Tukwila denies the same.
17. In answer to 17 of UP's Complaint, Tukwila denies the same.
18. In answer to 18 of UP's Complaint, Tukwila admits that UP has made a
demand for $202,383.44 and denies remainder of this paragraph.
19. In answer to 1119 of UP's Complaint, Tukwila admits that it has not paid the
UP the $202,383.44 that has been demanded and denies the remainder of this paragraph.
20. In answer to 1120 of UP's Complaint, Tukwila denies the same.
AFFIRMATIVE DEFENSES
BY WAY OF FURTHER ANSWER, AND AS AFFIRMATIVE DEFENSES,
Defendant Tukwila alleges as follows:
1. Tukwila reserves the right to amend its Answer to assert affirmative defenses,
cross claims, counter claims, and third -party defendants as further information becomes
known.
KENYON DISEND, PLLC
TUKWILA'S ANSWER AND AFFIRMATIVE DEFENSES THE MUNICIPAL LAwFmM
1 I FRONT STREET Soum
3 ISSAQUAH, WASHINGTON 98027 3820
F•1APFS\CIV\TIIKWILA\Union Pacific\2007 Matler\PLD Aoswer.doc/KIS/08/15/07 (425) 392 -7090 FAX (425) 392 -7071
2 contract, account quantum meruit Defendant Tukwila prays as follows:
3 1. That Plaintiff UP's complaint against Defendant Tukwila be dismissed
4 with prejudice and UP takes nothing thereby.
5 2. That Tukwila be awarded its costs and attorney's fees pursuant to state
6 law.
7 3. For such other and further relief as the Court deems just and equitable.
8 DATED this )5' day of August, 2007.
9 KENYON DISEND, PLLC
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11 By L.Gw t Cti) 4..—
Chris D. Bacha
12 WSBA No. 16714
Attorneys for Defendant, City of
13 Tukwila
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WHEREFORE, having fully answered Plaintiffs complaint for breach of
KENYON DISEND, PLLC
TUKWILA'S ANSWER AND AFFIRMATIVE DEFENSES ILN
11 H
11 FRONT STR T>tEe SOUTH
4 ISSAQUAH, WASHINGTON 98027 -3820
F:\APPS\CIV\TUKW ILA \Union Pacific\2007 Matter\PLD Answer.doc/KIS/0B/15/07 (425) 392 -7090 FAX (425) 392 -7071
DECLARATION OF SERVICE
I, Kathy I. Swoyer, declare and state:
1. I am a citizen of the State of Washington, over the age of eighteen years, not a
party to this action, and competent to be a witness herein.
2. On the 15th day of August, 2007, I served a true copy of the foregoing
Tukwila's Answer and Affirmative Defenses to Complaint For Breach of Contract and
Quantum Meruit, on the following counsel of record using the method of service
indicated below:
Carolyn L. Larson
Robert A. Kerr
Dunn Carney Allen Higgins
Tongue LLP
851 SW Sixth Ave., Suite 1500
Portland, OR 97204
First Class, U.S. Mail, Postage Prepaid
O Legal Messenger
Overnight Delivery
Facsimile
O E -Mail
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED this 15 August 2007, at Issaquah, Washington.
Kathy I. S er
KENYON DISEND, PLLC
TUKWILA'S ANSWER AND AFFIRMATIVE DEFENSES 11 F UMCIP,L
11 non STREET SOUTH
5 ISSAQUAH, WASHINGTON 98027 3820
F:IAPPS\CIV\TUKW ILA\Union Pacific \2007 Matter\PLD Answer.doc/KIS/08/15/07 (425) 392 -7090 FAX (425) 392 -7071
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8 UNION PACIFIC RAILROAD,
9
10 v.
11
CITY OF TUKWILA, a municipality,
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TO: City of Tukwila
15 6200 Southcenter Blvd.
Tukwila, WA 98188
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EXHIBITIL_
Plaintiff,
Defendant.
IN THE SUPERIOR COURT OF TI-IE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
Case No.
SUMMONS
(20 Day)
SUMMONS I
DCAPDX n432206 vl Summons- City_of Tukwila.doc DUNN CARNEY ALLEN HIGGINS TONGUE LLP
UN145 10 Attorneys at Law
851 SW Sixth Avenue Suite 1500
RECEIVE,
JUL 2 4 2007
CM( OF Tumor
CITY CLERK
17 TO THE DEFENDANT CITY OF TUKWILA: A lawsuit has been started against you in
the above entitled court by Union Pacific Railroad, plaintiff. Plaintiffs claims are stated in the
18 written complaint, a true copy of which is served upon you with this summons.
19 In order to defend against this lawsuit, you must respond to the complaint by stating your
defense in writing, and by serving a copy upon the person signing this summons within 20 days
20 after the service of this summons (60 days if served out -of- state), excluding the day of service, or
a default judgment may be entered against you without notice. A default judgment is one where
21 plaintiff is entitled to what he asks for because you have not responded. If you serve a notice of
appearance on the undersigned person, you are entitled to notice before a default judgment may be
22 entered.
23 You may demand that the plaintiff file this lawsuit with the court. If you do so, the
demand must be made in writing and must be served upon the person signing this summons.
24 Within 14 days after you serve the demand, the plaintiff must file this lawsuit with the court, or
the service on you of this summons and complaint will be void. ,p
25 /1/ e> Iwo
igifij
Ask
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If you wish to seek the advice of an attorney in this matter, you should do so promptly so
that your written response, if any, may be served on time.
This summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State
of Washington.
DATED this /Ii day of July, 2007.
DUNN, CARNEY, ALLEN, HIGGINS TONGUE
Robert A. Kerr, WSBA No. 29341
8 Attorneys for Plaintiff
SUMMONS 2
DCAPDX n432206_vl Summons -City of Tukwils.doc DUNN CARNEY ALLEN HIGGINS TONGUE LLP
UN145 -10 Attorneys at Law
851 SW Sixth Avenue, Suite 1500
Pnrtlant (1R 97204 -1357
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CERTIFIED
TRUKOPY
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
7 UNION PACIFIC RAILROAD,
8 Plaintiff, Case No.
9 v. COMPLAINT
10 CITY OF TUKWILA, a municipality, (Breach of Contract, Account
Quantum Meruit)
11 Defendant.
12 JURISDICTION
13 1. This is an action arising out of work performed at 180 Street, Tukwila,
14 Washington. This court has jurisdiction under RCW 2.08.010.
15 2. Plaintiff is a foreign corporation authorized to do business in Washington.
16 3. Defendant is a Washington municipality.
17 BACKGROUND FACTS
18 4. On or about July 20, 2001, defendant executed a contract with Union Pacific
19 Railroad "Railroad authorizing the Railroad to provide shoo -fly track construction and signal
20 work in exchange for payment of the actual cost of the work performed.
21 5. On reliance of the contractual terms contained in the Agreement, plaintiff
22 performed labor and materials for defendant at the construction site described in the Agreement.
23 6. On or about September 17, 2003, a final invoice for labor and materials was
24 forwarded to the City of Tukwila for payment.
25 7. To date, defendant has failed to pay plaintiff the balance of $202,283.44 owed on
26 the contract.
COMPLAINT I
DCAPDX_4423297 v1Comploint.doe DUNN CARNEY ALLEN HIGGINS TONGUE LLP
UNNS.to Attorneys at Law
851 SW Sixth Avenue, Suite 1500
Portland, OR 972044357
503.224.6440
1 FIRST CLAIM FOR RELIEF
2 (Breach of Contract)
3 8. Plaintiff hereby re- alleges paragraphs 1 through 7, which are incorporated herein
4 by this reference.
5 9. On or about July 20, 2001, plaintiff agreed to provide and defendant agreed to
6 pay for certain services, labor and materials for a track shoo -fly and signal work in connection
7 with the construction of an underpass as 180 Street, Tukwila, Washington. Plaintiff has
8 performed all conditions required to be performed on its part.
9 10. Pursuant to the Agreement, defendant municipality agreed to pay plaintiff for the
10 actual cost of the work performed and materials supplied at the construction site described in the
11 agreement.
12 11. Despite demand, defendant has not paid the balance due on the account.
13 12. Defendant owes plaintiff the balance of $202,383.44, plus interest at the statutory
14 rate of 12% per annum, pursuant to RCW 19.52.010.
15 SECOND CLAIM FOR RELIEF
16 (Account)
17 13. Plaintiff hereby re- alleges paragraphs 1 through 12, which are incorporated
18 herein by this reference.
19 14. Plaintiff provided to defendant services, labor and materials for shoo -fly track
20 construction and signal work on account, which unpaid account balance is the principal amount
21 of $202,383.44, plus interest at the statutory rate of 12% per annum until paid in full pursuant to
22 RCW 19.52,010.
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26 II/
COMPLAINT 2
DCAPDX .423297 vl CamplaiM.doc DUNN CARNEY ALLEN HIGGINS TONGUE LIP
U I4s-10 Attorneys at Law
851 SW Sixth Avenuee,, Suite 1500
Portland, OR 97204.1357
cat lsa add.
1 THIRD CLAIM FOR RELIEF
2 (Quantum Meruit)
3 15. Plaintiff hereby re- alleges paragraphs 1 through 12, which are incorporated
4 herein by this reference.
5 16. The reasonable value of the services, labor and materials for shoo -fly track
6 construction and signal work plaintiff provided to defendant, after all just credits and offsets, is
7 $202,383.44.
8 17. Defendant has received a benefit from plaintiff, which benefit constitutes the
9 services, labor and materials for shoo -fly track construction and signal work plaintiff provided
10 to defendant.
11 18. Plaintiff has demanded from defendant the reasonable value of the services, labor
12 and materials for a track shoo -fly and signal work it provided to defendant, which amount after
13 all just credits and offsets is $202,383.44.
14 19. Defendant has failed to pay the amount demanded and owed to plaintiff the
15 amount of $202,383.44 for the work plaintiff provided to defendant.
16 20. Plaintiff is entitled to pre and post judgment interest on the sum of $202,383.44
17 at the statutory rate of twelve percent (12 per annum from the dates the amounts became due
18 until paid in full.
19 PRAYER FOR RELIEF
20 1. Plaintiff Railroad requests that judgment be entered against defendant City of
21 Tukwila as follows:
22 a. Awarding plaintiff the amount of $202,383.44;
23 b. Awarding plaintiff interest on the amount of $202,383.44 at the rate of
24 twelve percent (12 per annum from September 17, 2003 until paid in
25 full;
26 c. Awarding plaintiff its costs and disbursements in this action; and
COMPLAINT 3
DCAPDX vIComplainidoo DUN• CARNEY ALLEN HIGGINS TONGUE L.P
utrtu 10 851 SW SixthAvanue Suite 1500
Portland, OR 97204.1357
5A1 77d fddn
I d. Awarding plaintiff any further or additional relief, including reasonable
2 attorney fees, that the court finds equitable, appropriate or just.
3 DATED this day of July, 2007.
4
5 DUNN CARNEY ALLEN HIGGINS TONGUE LLP
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Carolyn L. Larson, WSBA No. 29016
g Email: cll @dunn- carnev.com
Robert A. Kerr, WSBA No. 29341
9 Email: rak00 dunn- camev.com
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COMPLAINT 4
DCAMX_a423297 vl_Comp1s1M.dm DUNN CARNEY ALLEN HIGGINS TONGUE LLP
UN14s -lo Attorneys' Law
$S i SW Sixth Avenue, Suite 57 0 0
Pordind,OR 97204.13
503.224.6440