Free Statement - District Court of Arizona - Arizona

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John Michael Johnston, OBA No. 4736 228 Robert S. Kerr Ave., Suite 620 Oklahoma City, OK 73102 Tel: (405) 235-4074 Fax: (405) 235-4084 Charles E. Buri, AB No. 003651 FRIEDL, RICHTER & BURI, P.A. 6909 E. Greenway Parkway, Suite 200 Scottsdale, AZ 85254-2172 Attorneys for Plaintiff/Counter-Defendant, Doty Bros. Equipment Co. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DOTY BROS. EQUIPMENT CO., ) ) ) ) ) ) ) ) ) ) ) ) ) )

10 Plaintiff, 11 vs. 12 13 14 15 And Related Counterclaim 16 17 18 19 20 21 22 23 24 25 26 1. QUESTAR SOUTHERN TRAILS PIPELINE COMPANY, et al. Defendants.

CIV 03-2529 PHX HRH UNCONTESTED FACTS

COME NOW the parties hereto and submit the following " uncontested facts" in order to serve as "background material which will ... put into proper context the issues to be litigated" (as directed by the Court): UNCONTESTED FACTS The plaintiff is Doty Bros. Equipment Co., a California company headquartered in

Norwalk, California. 2. The defendant is Questar Southern Trails Pipeline Company, a Utah company

headquartered in Salt Lake City, Utah. 3. Questar Southern Trails Pipeline Company is the successor company to Questar Line
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90 Company which was also a Utah company. 4. During the 1990's Questar Line 90 Company purchased a 16" gas pipeline (called

the Southern Trails Pipeline) from ARCO. This pipeline extends from Broomfield, New Mexico across New Mexico and Arizona, through Southern California and finally terminates in the Los Angeles County, north of Long Beach. 5. On the 6th day of August, 1999, Questar Line 90 Company and Doty Bros.

Equipment Co. executed a (master) contract for Doty Bros. to "provide general construction services" on the Southern Trails Pipeline project. 6. A section of the Southern Trails Pipeline (approximately seven miles) near Cabazon,

California crossed land owned by the Morongo Band of Mission Indians. 7. Questar Line 90 Company was unable to negotiate a lease renewal or other right-of-

way agreement with the Morongo Indians in order to continue to utilize that part of the gas pipeline that was on Morongo land. 8. Questar Line 90 Company decided to reroute the Cabazon section (between Banning

and Cabezon, California) of the gas pipeline by building a new gas line inside a right-of-way belonging to the Union Pacific Railroad adjacent to Interstate 10. 9. On or about February 21, 2002, Questar Southern Trails Pipeline Company (as

successor to Questar Line 90 Company) issued a Request for Proposal for the installation of approximately 40,000 feet of 16" steel pipe for the Cabazon Reroute in order to circumvent the Morongo Band's land. 10. On or about March 12, 2002, Doty Bros. submitted a bid proposal in the amount of

$1,594,622.85 which was later corrected (due to an addition error) to $1,646,702.00. 11. Doty Bros. was the low bidder. Questar Southern Trails Pipeline Company accepted

Doty's bid and issued a work authorization on or about March 22, 2002, for the Cabazon Reroute. 12. 13. The project was not completed until September 26, 2002. Doty filed suit against Questar on October 3, 2003 in California state court.
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After removing the case to federal court and after having it transferred to the District

of Arizona, Questar Southern Trails Pipeline Company filed a counterclaim for damages against Doty on December 23, 2003. 15. B.C. Brown was Doty's estimator for the Cabazon Reroute Project on the Southern Trails Pipeline (the "Project"). Stan Shaw was Doty's general superintendent for the Project. Mike Brown was the Doty ditch foreman that ran the excavation crew on the east end of the Project. 16. M. C. Christy is Doty's President and was so at the time of the Project. Al Hernandez was Doty's Senior Vice President and was Vice President at the time of the Project. 17. The Morongo Band owned some of the lands immediately south of Union Pacific Railroad's right of way on the east end of the Project. 18. Included in the RFP were the proposal instructions. 19. Paragraph 2 on page 1 of the proposal instructions states in part: "The base proposal must be for performance of the work in strict conformity with the RFP documents." 20. Paragraph 2 of the proposal instructions further states: Respondent shall carefully examine the RFP documents, visit the site of the work, and fully inform itself as to all conditions and maters which can in any way affect the work or the cost thereof." 21 .Paragraph 2 of the proposal instructions further states:"If respondent finds discrepancies in, or omissions from, the RFP documents or if the respondent is in doubt as to their meaning, respondent should at once notify Company's representative, designated in Section 4, and obtain clarification prior to submitting its proposal. 22.Paragraph 5 on page 2 of the proposal instructions states in part: "Following the prebid meeting, site visits will be held. Failure to fully investigate the site or any other conditions shall not relieve the respondent from responsibility for properly estimating the difficulties or cost of successfully performing the work." 23. Paragraph 6E of the proposal instructions states: Proposer shall specify any exceptions taken to the scope of work. Specified schedule, proposal documents, reference contract
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terms and conditions or any other portion of the RFP shall be identified in writing in a separate section of the proposal response. Each exception shall reference the applicable paragraph of the RFP document and proposer shall indicate the reason for offering each exception." 24. B. C. Brown and Stan Shaw were the only Doty representatives that attended the pre-bid meeting. 25. M. C. Christy did not visit the site prior to bid. Al Hernandez did not visit the site prior to bid. Henry Barber did not visit the site prior to bid. 26. B. C. Brown prepared Doty's estimate for the Project. 27. Henry Barber reviewed B. C. Brown's estimate and Doty's bid before it was submitted and made no changes. 28. In submitting it's bid, Doty did not take exception to the right of way allowed Doty for performance of the work. 29. M. C. Christy was not on site during construction. Al Hernandez was not on site during construction. Henry Barber was not on site during construction.

s/ John Michael Johnston John Michael Johnston, OBA No. 4736 228 Robert S. Kerr Ave., Suite 620 Oklahoma City, OK 73102 Tel: (405) 235-4074 Fax: (405) 235-4084 and

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Charles E. Buri, AB No. 003651 FRIEDL, RICHTER & BURI, P.A. 6909 E. Greenway Parkway, Suite 200 Scottsdale, AZ 85254-2172 ATTORNEYS FOR PLAINTIFF, DOTY BROS. EQUIPMENT CO.

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1 2 3 4 5 6 7 8 9 10 11 Certificate of Service ATTORNEYS FOR DEFENDANT/ COUNTERCLAIMANT, QUESTAR SOUTHERN TRAILS PIPELINE COMPANY s/ Jason Ebe Ronald W. Messerly (020582) Jason Ebe (017216) SNELL & WILMER, L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Tel: (602) 382-6000 Fax: (602) 382-6070

X I hereby certify that on the 3rd day of October, 2005, I electronically transmitted the 12 attached document to the Clerk of Court using the ECF System for filing. Based on the records currently of file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF 13 registrants: 14 15 16 17 Jason Ebe Ron Messerly SNELL & WILMER, L.L.P One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202

I further certify that on the 4th day of October, 2005, a full, true, and correct copy of the 18 said document was deposited in the U.S. Mail, postage prepaid, and addressed to: 19 20 21 22 s/John Michael Johnston 23 24 25 26
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Honorable H. Russel Holland United States District Court 222 West 7th Avenue-No. 54 Anchorage, Alaska 99513

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