By Mark Waite
The approval of four more change orders for the Blagg Road project Tuesday — which Nye County Public Works Director Dave Fanning said will be the last — led to some questioning about when the county will file suit to recover the damages.
Resident Frank Wilson, who complained about previous change orders submitted by Wulfenstein Construction on the Blagg Road project, tried to hold commissioners Butch Borasky and Gary Hollis to statements they made at a previous meeting opposing any future change orders.
“This thing is ridiculous. We haven’t had a suit yet to get the money back. Where is the DA and why hasn’t he done anything?” Wilson asked.
District Attorney Brian Kunzi wasn’t at the meeting; Deputy District Attorney Marla Zlotek said she couldn’t give an update on any litigation.
“I’d prefer that only that question be answered by our district attorney. There’s been enough discussion on Blagg Road,” Zlotek said.
Kunzi told the Pahrump Valley Times he expects to file a suit by the end of the year, but didn’t identify who the guilty parties may be. The public will not be left “holding the bag” he said.
“Litigation is being pursued. The reconstruction project has provided us with an immense amount of new data we believe bolsters our ability to recover damages for what we believe was defective workmanship. The testing and observations obtained during the construction was necessary for us to get a complete picture of the scope of the problems. That data is being analyzed by our retained expert. We have not developed a strict time line as to when litigation will be commenced but I fully anticipate a complaint will be filed by the end of the year,” Kunzi said.
“We could not know the complete condition of the trench until we were able to dig into it. Our reconstruction of the road would have destroyed the condition of the trench, which is the evidence we need to prove our case. Testing of underground conditions is complicated and tedious. We have a duty to preserve the evidence if we wanted to pursue a case for damages. If we destroyed the evidentiary value of the existing trench we would not be able to prove our case,” he said.
“We were presented with a difficult choice: re-open the road quickly and forego a lawsuit or keep the road closed until the evidence of the condition of the road was properly analyzed by our experts,” Kunzi said. “I believe our diligence will result in a more prompt settlement of our case and be more cost-effective because the responsible parties will understand the strength of our case.”
Wilson said the Blagg Road project was $400,000 over budget, a statement Fanning disagreed with. The 15 change orders added $759,192 to the original $2.36 million contract price. But the $3.1 million total is still less than the up to $4 million commissioners authorized the DA to pursue in litigation back in March 2011, though a budget hasn’t been officially set for the project.
The company that installed the 29,000 feet of sewer lines up Blagg Road and Mesquite Avenue to the new federal detention center, Spirit Underground of Las Vegas, had its license revoked by the state contractor’s board in December after failure to establish financial responsibility and cooperate in the investigation of a complaint. The company has declared bankruptcy.
“The board did authorize him to go forward,” Commissioner Dan Schinhofen said of any possible litigation. “We don’t know at this moment whether that’s started.”
Commissioner Gary Hollis said the DA takes direction from county commissioners and will file legal action if he’s ordered.
“I have every faith that the district attorney’s office will file the lawsuits to recover the money that the taxpayers have put out on Blagg Road and I think that will be done,” said Hollis, who is running for re-election for a third term. His opponent, Frank Carbone, has made Blagg Road a wedge issue in the campaign.
“I have every confidence that the district attorney will take whatever legal action he thinks is right after an analysis of all the facts involved,” Commissioner Joni Eastley said.
Fanning defended the last four change orders, which collectively only added $24,489.73 to the cost of the project.
“Every change order that is currently on there is due to some of the unforeseen things we have found during the work and the progress on that job,” Fanning said.
Nye County changed the grade of Blagg Road from 2T Ranch Road to Basin Avenue, which was an additional $9,147 cost, Fanning said. A buried effluent line from the dairy was broken, that added $3,945. Wulfenstein said they were given approval to video the sewer line, another $6,219 cost. Finally, a concrete V-ditch for an irrigation line that ran under Blagg Road was removed during excavation work, that cost $5,177.
Zlotek told Borasky the additional charges couldn’t be considered a breach of contract.
“The change order flows from the original contract but they are a separate contractual obligation in itself,” Zlotek said.
Borasky then made the motion to approve the change orders.
“This thing caused us enough grief and heartache already to go in there and go ahead for a breach of contract,” he said.
Eastley said these were unforeseen circumstances that wouldn’t constitute a breach of contract.
Fanning said the Lola Lane bypass will be closed as of Oct. 15. The county will put K-rail barriers to block traffic, he said.
That will allow Nye County to terminate an agreement with Lennard Grodzinski, the owner of the Pechstein Ranch, granting the county interim use during the repair of Blagg Road, Fanning said.
“The public is still using Lola quite heavily. We added signs. We just wanted everybody to know it’s closing officially on the 15th of October and Blagg is open,” Fanning said.
To which Eastley added, “let’s drink champagne.”
Now that the Blagg Road repair has been completed, Utilities Inc. is digging up around lift station No. 4 near Blagg Road.
“Once the county completed their work and permitted us access to our lift stations we have gone in to ensure that they are stabilized properly,” Utilities Inc. spokesman Tom Oakley said.