Agenda 10/22/2019 Item #16K4 (Waive deducting of Liquidated Damages against West Construction)10/22/2019
EXECUTIVE SUMMARY
Recommendation to waive deducting of Liquidated Damages against West Construction Inc.,
(Collier County Bid No. 18-7240 - Marco Island Executive Airport New Terminal & Associated
Improvements) in excess of withheld retainage until the end of the Project.
OBJECTIVE: To facilitate the completion of the Marco Island Executive Airport New Terminal &
Associated Improvement without unnecessarily impacting the progress of the project through assessment
of Liquidated Damages against monthly Pay Applications.
CONSIDERATIONS: On February 13, 2018, the Board of County Commissioners (“Board”) approved
Contract No. 18-7240 for the Marco Island Executive Airport New Terminal and Associated
Improvements (“Project”) with West Construction, Inc. (“Contractor”). The Notice-to-Proceed (“NTP”)
was issued on April 27, 2018 for a Commencement Date of April 30, 2018. Per the Contract and NTP,
Substantial Completion was considered to be March 16, 2019 (320 days from NTP), with final
completion considered to be April 30, 2019 (365 days from NTP), however a total of eleven (11)
additional days have been granted to the Contractor as a result of weather -related days, which extended
the Substantial and Final completion dates accordingly.
Since the Project’s inception, the County has experienced difficulties with the Contractor’s ability to meet
certain scheduling and performance milestones. Per the Contractor’s latest schedule, Substantial
Completion is now projected on January 9, 2020 (or approximately 282 days beyond the revised
Substantial Completion date). Per Section 5 “Contract Time and Liquidated Damages,” the County “shall
be entitled to assess, as liquidated damages, but not as penalty, Three Thousand Six Hundred Forty -Five
($3,645.00) for each calendar day thereafter until Substantial Completion is achieved.”
The contractor is behind schedule and Collier County is entitled, by contract, to liquidated damages. The
County has previously deducted the Liquidated Damages from the accrued retainage, which has been
exhausted. Discussions were held with Staff whether we ought to deduct Liquidated Damages from
ongoing payments given that the accrued retainage had been exhausted. However, after reviewing the
matter with outside counsel, the County Attorney came to the conclusion that it was not prudent to do so
based on the following considerations.
The project has, and will continue to accrue, retainage against which all or a portion of the liquidated
damages can be assessed. When there is a final calculation of contractor delays and liquidated damages
due to the County at the end of the project, the County will be legally entitled to assess those damages.
Assessing the damages against current pay applications, while legally permissible, may adversely impact
the progress of the project or subcontractors and suppliers on the project unnecessarily.
FISCAL IMPACT: None. Whatever liquidated damages that are owed will be due at the completion of
the project.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
Executive Summary.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote
for approval. -JAK
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RECOMMENDATION: That the Board waive deducting Liquidated Damages against West
Construction Inc. (Collier County Bid No. 18-7240 - Marco Island Executive Airport New Terminal &
Associated Improvements) in excess of withheld retainage until the end of the Project.
Prepared by: Jeffrey A. Klatzkow, County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.4
Doc ID: 10560
Item Summary: Recommendation to waive deducting of Liquidated Damages against West
Construction Inc., (Collier County Bid No. 18-7240 - Marco Island Executive Airport New Terminal &
Associated Improvements) in excess of withheld retainage until the end of the Project.
Meeting Date: 10/22/2019
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
10/16/2019 10:17 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
10/16/2019 10:17 AM
Approved By:
Review:
Office of Management and Budget Laura Wells Level 3 OMB Gatekeeper Review Completed 10/16/2019 10:21 AM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 10/16/2019 10:41 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 10/16/2019 10:57 AM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 10/16/2019 11:31 AM
Board of County Commissioners MaryJo Brock Meeting Pending 10/22/2019 9:00 AM
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