Jury awards $155.8 million to King County in Brightwater tunneling lawsuit
December 21, 2012 · 5:32 PM
A King County Superior Court jury Thursday awarded King County $155.8 million in damages after finding a Brightwater tunneling contractor defaulted on key contractual obligations.
“This verdict vindicates our position that Brightwater project delays and cost overruns were the responsibility of the contractor,” said King County Executive Dow Constantine, who made the decision to change contractors soon after taking office. “Should the damage award stand, it will mean lower sewer rates than projected in the future.”
King County was the plaintiff in the lawsuit filed in 2010 in King County Superior Court against joint-venture contractor Vinci Construction Grands Projets/Parsons RCI/Frontier-Kemper, or VPFK. Superior Court Judge Laura Gene Middaugh presided over the civil case.
The county claimed VPFK failed to meet contractually-specified deadlines after two tunnel boring machines broke down several hundred feet beneath Lake Forest Park and Bothell in 2009.
The machines required extensive repairs that threatened to delay the completion of Brightwater’s 13-mile conveyance tunnel by up to three years. Though VPFK repaired one machine and completed a 2.2-mile tunnel drive between Kenmore and Bothell in 2011, the county could not accept the lengthy delay and additional cost the contractor proposed for the repair of the second machine and the completion of the tunneling.
The county hired joint-venture contractor Jay Dee Coluccio, or JDC, to complete the remaining 1.9-mile tunnel between Shoreline and Lake Forest Park. JDC already had a machine underground after completing the adjacent 4-mile tunnel between Point Wells and Shoreline.
“By hiring a new contractor, we completed Brightwater tunnel mining more quickly and at a lower cost than would have otherwise been possible,” said Constantine.
To recover costs associated with project delays and design modifications, King County sought approximately $155 million from VPFK and its sureties. VPFK counterclaimed for approximately $70 million, saying its delays were excused by unexpected soil conditions and other circumstances that were the County’s responsibility. King County acknowledged some of the claims totaling about $4.7 million were valid. The jury granted VPFK’s counter-claims in the amount of approximately $25 million.
“We sincerely appreciate the hard work of the legal team from King County Prosecuting Attorney Dan Satterberg’s office, and our team from Stoel Rives, led by litigators David Goodnight and Karl Oles,” said Christie True, Director of King County’s Natural Resources and Parks Department.
Should the damage award stand, it will help ensure stable rates in the future. The current two-year sewer rate expires at the end of 2014.
“Naturally we are disappointed that the jury did not decide fully in our favor. This was a long and difficult case and we thank the jury for the time and attention they paid to the complicated issues presented by both sides,” said Thierry Portafaix, project manager, VPFK Joint Venture. “However, we believe that the court made many legal and procedural rulings during the case that were erroneous and significantly affected the jury’s decision. As such, it is likely that we will appeal this decision to correct those adverse rulings. We will be consulting with our attorneys and making a final decision on this subject in the very near future.”
VPFK was awarded the $212 million construction contract to build the two central Brightwater conveyance tunnels following a competitive bidding process in 2006. It was the second of four Brightwater construction contracts that built a 13-mile tunnel to carry wastewater from the treatment plant north of Woodinville to a deep-water marine outfall in Puget Sound off of Point Wells.
The original contract scope entailed building two deep-bore tunnels with a combined length of approximately six miles between Shoreline and Bothell. Contractor JDC completed mining on the final 1.9-mile section of Brightwater tunnel in August 2011.
The tunnel began full operation on Nov. 2, conveying the first flows of highly treated effluent from the Brightwater Treatment Plant north of Woodinville to a 600-foot-deep marine outfall in Puget Sound a mile off of Point Wells.