City directors discuss litigation over culvert work

FORT SMITH — The city Board of Directors on Tuesday discussed the possibility of taking legal action.

The potential litigation concerns work done for the May Branch Outfall Culvert replacement project in Fort Smith. The culvert is on P Street, adjacent to Riverfront Drive directly in front of the P Street Wastewater Treatment Plant, said Stan Snodgrass, City Engineering Department director.

In a memo to City Administrator Carl Geffken, Snodgrass said the city and Mickle Wagner Coleman entered into an agreement Nov. 2, 2011, for the latter to provide both engineering and testing services on the project. On Oct. 2 the following year, the city and Mobley Contractors entered into the $5,490,387 construction contract for the project. Completion and payment under the contract took place Dec. 16, 2014. However, sink holes appeared in the vicinity of the box culvert by May 2015.

The city went on to enter into a three-party agreement involving it, the project contractor, Mobley, and the project engineer, Mickle Wagner Coleman and Data Testing Inc., regarding remediation work for the culvert April 18, 2017, Snodgrass said.

The agreement proposed remediation work to address sink holes at the project site where the 12-feet wide by 10-feet high box culvert was installed. The cost of the remediation work — $116,538 — was split three ways, with the city paying $38,846.

A status report on the work was intended to be provided before July 31, Snodgrass said. This was the end date of a tolled period pursuant to an agreement the city, Mickle Wagner Coleman and Mobley entered into to provide time for the remediation work to be finished. The agreement was extended to Dec. 31 after the Arkansas River flooding in May, which allowed for the status report to be completed once the river receded.

However, Snodgrass said as the river was receding, additional depressed or sinking areas near the downstream end of the box culvert were noted. A walk-through inspection of the culvert was done July 31 with numerous deficiencies being noted.

An extensive elevation survey was also done inside the box culvert, according to Snodgrass. The data was then compared to a similar survey from 2018, and showed significant movement or settlement of the culvert, especially in the lower 150 to 200 feet to the pump station. The area correlates with the additional depressed or sinking areas observed on the ground above the culvert.

“We are in the process of obtaining updated cost information to repair the deficiencies and expect to have that information by the end of November,” Snodgrass wrote. “It is likely the city’s consulting engineers will recommend comprehensive filling of the voids in the soil surrounding the entire culvert and/or replacement of a portion or all of the culvert with costs in excess of $1 million.”

Snodgrass said it’s “unlikely” Mickle Wagner Coleman or Mobley will voluntarily accept responsibility for the level of proposed remediation work.

“The city must now determine whether it will bear the cost of remediating the observed defects in the project or whether the city will seek reimbursement of the cost of remediation from the engineer and contractor on the project,” Snodgrass wrote.

“Together with Daily & Woods, we recommend that the board authorize the filing of an action regarding the defects in the project on or before Dec. 31, 2019, unless MWC and Mobley agree to a further extension of the tolling agreement.”

The matter will be discussed again during the board’s Nov. 19 meeting.