The builder of the new Tacoma Narrows bridge is asking the state for a break on its construction deadlines because of bad weather.
Rain, wind and snow have been so extraordinary in recent weeks, Tacoma Narrows Constructors says, that they constitute “force majeure,” a legal provision that could excuse some delays and keep TNC from paying as much as $125,000 a day in penalties.
“The Puget Sound is continuing to experience extraordinary and atypical adverse winter weather conditions including snowfall, icy conditions and heavy winds,” TNC’s project manager Manuel Rondon wrote in a Jan. 18 letter to Linea Laird, the head of the bridge project at the state Department of Transportation.
“We are still evaluating, assessing and recovering from the extensive negative impact from this winter’s weather,” Rondon said. “We are also collecting all necessary data to make a comprehensive analysis of how the project schedule has been and is being impacted.”
Laird said negotiations between her office and TNC over how many days the bridge builder might be entitled to are likely to begin this week.
negotiating ‘excusable delays’
TNC will be asking for days, but what that translates to is money. The bridge was to have been completed April 2 and now looks as if it will open in August, at least four months late.
The company’s contract with the state calls for penalties of $12,500 a day for the first 90 days the project comes in behind schedule. After July 2, the penalty would jump to $125,000 a day, up to a maximum of $45 million.
Every day TNC gains because of force majeure will mean $125,000 less it will have to pay in penalties. Because TNC’s late fines will help pay off the bridge, future toll payers are sure to be watching the negotiations carefully.
“Believe me, it’s not something we’re taking lightly,” Laird said. “Every one of their claims is going to have to be thoroughly documented and every impact quantified.”
Force majeure clauses are common in construction contracts and are meant as insurance against forces beyond the parties’ control, such as war, epidemics and “acts of God” such as floods and volcanic eruptions.
There appears to be no question that TNC is entitled to request some extra time because of the weather. The bridge builder’s contract with the state has a section that clearly provides for “excusable delays” based on force majeure events.
from rain to snow
In the contract, storm, wind and flood are included on the list.
TNC’s deck-lift operation was delayed by a run of particularly bad storms in November, December and January.
November was the wettest month ever recorded in the South Sound, with 15.23 inches of rain falling at the nearby Tacoma Narrows Airport. The Dec. 14-15 windstorm was the worst in more than a decade, knocking out power to 1 million homes and businesses.
Wind blew over a moving van on the existing bridge. It also ripped apart welders’ tents on the new bridge deck, tore away wooden safety railings and broke the lines on a barge, briefly setting one of the deck sections adrift in Commencement Bay.
TNC’s original schedule envisioned assembling the bridge deck in the spring and early summer of 2006. Had that been the case, waterproofing and paving the deck – both of which require dry weather – would have taken place in the fall of 2006, before winter weather began.
However, in November 2005, TNC crews discovered that more than a quarter of the wire it had stockpiled for spinning the main cables was corroded and needed to be replaced.
Arranging to have new wire produced and delivered set the bridge builder back three months. Problems with the winch system used to maneuver deck-delivery vessels back and forth beneath the bridge set crews back another month.
As it turned out, the first deck section wasn’t lifted onto the main suspension cables until Aug. 8, more than a month after the entire lifting operation was to have been completed.
“Once we actually started lifting, everything went remarkably well,” TNC’s superstructure manager Dave Climie said last week. “We got 15 decks off the second ship in 22 days. We just got the momentum going, and then we got hit by the weather.”
pleas for consideration
Rondon has written four letters to Laird – two in November, one in December and another in January – noting that weather had caused delays that he considered excusable under the contract.
In November, Rondon noted “unusually heavy and severe rain and wind storms,” which “set new high records for volume, frequency and intensity of rain and have even originated a state of emergency.”
In his December letter, he cited “an unusual windstorm of hurricane-like proportions that has caused power outages, roadblocks and unsafe driving conditions.”
In January, he noted “extraordinary and atypical adverse winter weather conditions including snowfall, icy conditions and heavy winds that constitute a force majeure condition.”
Laird responded to the letters by noting the request and saying the Transportation Department would require more information quantifying actual delays before the deadlines were changed.
Claudia Cornish, the state’s information manager on the Narrows project, said that while negotiations on the excusable delays might begin this week, it could take a month or more to reach agreement on the number of days TNC might receive.
Rob Carson: 253-597-8693
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