Ruined bridge lacked insurance

When a $4 million low water bridge east of San Jon will be rebuilt after flash flooding destroyed it in May remains in limbo because the contractor apparently didn't carry builder's risk insurance for the project, alleging the architect didn't require it.

The contractor, the architect and Quay County had been scheduled to meet Thursday in the county courthouse in Tucumcari with a mediator in an effort to resolve at least part of the matter. However, that meeting was canceled, and the county will pay the contractor the remaining $248,000 it is due for the project, said county attorney Warren Frost on Monday.

Quay County still is considering a possible lawsuit against the contractor or architect, or both.

The conundrum came to light when the Quay County Sun obtained county emails about the ruined bridge through an open records request. Frost also forwarded several pieces of correspondence about the matter.

The county commission has held three closed executive sessions, including on Monday, to discuss the bridge as a part of possible litigation.

The sticking point on insurance coverage for the span, known as Bridge 1625, lies within a contract between the architect, Stantec Engineering, and the contractor, Vital Consulting Group of Albuquerque.

Vital claims the contract it signed with Stantec did not require builder's risk insurance.

Vincent Martinez, Vital's president, cited in an email a section of the contract that states: "Owner shall purchase and maintain builder's risk insurance upon the Work on a completed value basis, in the full amount of the full insurable replacement cost thereof."

The "owner" would be the county.

Martinez later stated in the email: "Vital Consulting Group, LLC was not responsible for the procurement of Builder's Risk Insurance."

Michael Meniucci, Vital's attorney, stated in a letter to Frost the contract's supplementary conditions didn't specify the type of content or deductible required if the contractor was to provide a builder's risk policy.

"The intent was clear that the owner was to provide the Builders Risk Policy," he wrote.

Stantec disputes that, stating Vital should have obtained insurance for the project.

Wayland Oliver, Stantec's senior project manager, directed Vital in an email after the storm to pursue a claim on its builder's risk policy.

"We disagree with the Contractor's position an interpretation of the contract documents," Stantec managing counsel William J. Edwards stated in a letter, accusing Vital of "twisting the language" of the pact.

"It is important to note that the project had not reached substantial completion and was not turned over to the Owner as of the flood event," Edwards wrote. "It would follow that the Contractor still retained the risk associated with its ongoing operations regardless of what the Contract Documents may say about types of insurance.

"In other words, the ongoing operations risk remains with the Contractor and it could carry whatever insurance it deemed prudent for its ongoing construction work."

Edwards added that Stantec felt "an experienced and reasonably prudent contractor would carry builders risk insurance to cover the risk of damage its to its work in progress, and a reasonably prudent contractor would have inquired during bidding phase if it felt otherwise."

Frost, the county's lawyer, in a letter to Oliver blamed Stantec for the lack of insurance coverage for the bridge.

"It is Quay County's position that it was Stantec's responsibility to ensure that a builder's risk policy was in place and your failure to do so subject Stantec to liability for all damages arising from the lack of a builder's risk policy," Frost wrote.

Frost wrote that Vital claimed the contract's supplemental conditions released it of insurance responsibility and "that Stantec knew that Vital was not supplying building's risk because it did not provide a copy of that policy prior to beginning construction."

Frost stated the supplemental conditions in the contract "are truly a mess." He questioned whether Vital's reliance on the supplemental conditions were valid, but maintained "it was Stantec's responsibility to ensure there was a builder's risk policy in effect on this project."

"Quay County certainly has no intention of assuming financial responsibility for the omission of one of the most basic insurance requirements in any construction project," Frost added.

The low water bridge on Old Route 66 between San Jon and Endee was set to replace a 1931 bridge, though the older span was to be kept standing for the benefit of Route 66 tourists.

The new bridge was less than two weeks from completion when a severe storm dumped 6 to 8 inches of rain on the area in less than 12 hours on May 26. The subsequent flooding washed away large chunks of the span.

Data from the National Weather Service cited in county emails indicate it was a 500-year storm in severity, which means it has a 1-in-500 chance of occurring in any given year.

The 1931 bridge still was standing after the storm, though part of one of its approaches caved in due to erosion from the floods.

Documents from Stantec stated that rural minor arterial roads such as Old Route 66 with an average daily traffic count of less than 400 should use a bridge design that would account for a 5-year storm, or a storm severe enough to occur every five years.

Stantec chose that design after consulting with county officials in 2020.

Counting the forthcoming payment, the county has paid Vital nearly $3 million for its work on the bridge. State funds were used to build the bridge, which had been high on the county's priority list for years.

Citing pending litigation, county manager Daniel Zamora declined to comment much about the matter.

"I'd really like to be transparent about what's going on," he said, "but I don't want to put the county in a bad position regarding the litigation.

"I'm hoping the mediation is fruitful and we can come to some sort of an agreement before it turns into a full-fledged lawsuit."

A Stantec spokeswoman and Meniucci both declined to comment, citing possible litigation.

In the meantime, the intact older bridge remains closed, resulting in long detours for residents on the road.

Frank Gibson, a local rancher, said he has to drive 30 miles out of his way to get around the detour.

Gibson said he and others have maintained the design for the new bridge was defective.

"All of the locals thought it was not a good idea," he said in a phone interview Friday.

"It's not the fault of the builder," he said of the design. "It built the bridge according to spec. It's all on the architect. The architect botched it. It built a dam, not a bridge."