A $6-million source of controversy

NEWPORT BEACH — At the base of Spyglass Hill, past the mortuary, sits a 20-acre reservoir filled with enough water to supply the city of Newport Beach for seven days.

Atop the basin, which was dug in 1958, rests a large, rubbery black cover. It gives the appearance of an enormous water bed that's dusty with debris left by gathering birds and carried in by sea breezes.

The cover for Big Canyon Reservoir, whose capacity is nearly 200 million gallons, was meant to last 20 years when it was installed in 2004 to protect the water supply from algae, flies and other contaminants.

But the $6-million cover began deteriorating less than five years after its installation and has since required unexpected and expensive repairs, city officials said in interviews and in court papers.

Because of the problems, the city of Newport Beach has sued the cover's makers in Orange County Superior Court for unspecified damages. In response, the polypropylene tarp's contractor and a subcontractor contend that they are not responsible for any flaws and that they need to review the city's claims before determining responsibility.

The city went to extraordinary lengths to be sure that all parties knew the city's expectations for the cover — including the 20-year life span — and that at least one of the defendants is responsible, said David A. Robinson, Newport's outside counsel on the case.

"The bottom line is the cover's failing — there doesn't seem to be any question the cover's failing," Robinson said. "... The city paid a lot of money for that thing. It's supposed to protect the citizens for 20 years. That's not happening."

Both parties, he said, are denying responsibility.

"It's clear that it's going to get fixed, and it's clear that one or more of these defendants will have to fix it," Robinson said.


Reservoir, tarp history

Since the reservoir was built, the city has strived to maintain its high water quality, at one point even using an air cannon specifically made to deter avian pests intent on making the then-open-air reservoir their watering hole. The cannon wasn't popular with area residents and was removed.

Piano strings arched over the reservoir in the early 1980s, although the strings' bird-deterring factor was never clear. Some speculated it was the sounds made by the strings in the wind, because as soon as birds approached the reservoir, they would turn tail.

After the turn of the century, city officials began seeking a better solution.

With a mandate from the federal government in 2003, Newport began accepting bids for a cover. The federal government contributed $867,000 toward the project, with the city coming up with the remaining amount.

In early 2004, the master contract was awarded to Banshee Construction Co., which agreed to a subcontract with Pawtucket, R.I.-based Cooley Group to create a "fabric-reinforced polypropylene floating geomembrane" to be used in constructing the reservoir's cover, according to the city's lawsuit.

However, Cooley states in court documents that it entered into a contract with a Banshee subcontractor to do the work.

Installation was completed on Nov. 12, 2004 — 17 days ahead of schedule. Big Canyon residents at first didn't like looking at a black tarp instead of the reservoir, but grew to accept it because of its purpose protecting the water supply, the Daily Pilot reported at the time.

But by September 2009, city employees began noticing areas where the cover's top layer appeared especially weathered. They saw that small holes had developed and that "black particulate matter" was floating in the water and in an outlet pipe, according to court documents.

Additional testing done by both Cooley and the city showed almost no UV-resistant additives. That fact suggested to the city that none had been added, or that the amount added had worn off in three years of service, according to the civil complaint. The city claims making the cover UV- and weather-resistant was stipulated in the original agreement.

The City Council had strong words for the tarp's flaws when it examined the issue Feb. 22, 2011.

"It seems like we might need to protect our rights here as far as product liability or even fraud," City Councilman Steve Rosansky said during that meeting. "There's several allegations here … I would hope we're pursuing all remedies."

That night, the council unanimously approved $120,000 to replenish funds that were unexpectedly depleted to repair the cover, and Rosansky directed Public Works employees to work with the city attorney.


Next steps

In its lawsuit the city alleges that Cooley blamed the wear on foot traffic on the cover and some rubbing near hatches.

The city also alleged in its complaint that the company was shirking responsibility for making appropriate repairs by citing a limited warranty. The warranty was signed by an assistant city engineer and disclaimed the company's liability for removing products, installing replacement products, or loss and damages of any kind as a result of defects in the raw materials.

The city is trying to recoup some of what it lost with a breach-of-contract lawsuit it filed against Cooley and Banshee last month. The next scheduled court date in the case is Feb. 27.

Cooley spokeswoman Patty Kennedy said that although she couldn't comment on the specifics of the case, the company is "well-known for having an 85-year reputation and proven performance in commercial fabrics and membranes."

An attorney for Banshee, Keith Bremer, said the case is new and requires more examination.

"Right now we're trying to determine whether there actually is a problem with the product, and if there is a problem, who would be responsible," said Bremer.


Twitter: @lawilliams30

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