Agenda 11/10/2020 Item #16K 4 (Authorizing the filing of a civil action to recover damages against West Construction, Inc.)16. K.4
11/10/2020
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners, acting in its capacity as the Collier
County Airport Authority, direct staff to continue its efforts to negotiate and resolve outstanding
construction -related issues with West Construction, Inc., concerning West's performance
constructing the new terminal facility and associated safety improvements at the Marco Island
Executive Airport under County Agreement No. 18-7240, and to authorize the filing of a civil action
to recover damages against West, its surety, and any other parties determined to be liable if a
recommended settlement cannot be reached and brought to the Board for approval. (Project No.
33484)
OBJECTIVE: For the Board to authorize staff to continue its efforts to negotiate and resolve outstanding
construction -related issues with West Construction, Inc. ("West") concerning West's construction of the
new terminal facility and associated safety improvements at the Marco Island Executive Airport (the
"MKY Project"), and to authorize the filing of a civil action to recover damages against West, its surety,
and any other parties determined to be liable in connection with West's performance if a recommended
settlement cannot be reached and brought to the Board for approval.
CONSIDERATIONS: On February 22, 2019, Collier County retained the law firm of Carlton Fields to
assist as co -counsel to provide specialized construction law -related assistance on the MKY Project.
Despite County staffs best efforts, the Contractor on the project, West Construction, Inc. ("West"), fell
well behind schedule in achieving substantial completion and experienced a number of construction
installation issues that required the County's significant review and utilization of outside experts with
specialized skills in project scheduling and materials installation knowledge. West's ongoing
performance issues and its failure to have the MKY Project substantially complete by the March 27, 2019
substantial completion date provided under Agreement No. 18-7240 (the "Agreement"), has resulted in
the accrual of liquidated damages through October 28, 2020 in the amount of $2,117,745- and those
damages continue to accrue from that date forward in the amount of $3,645 per day.
To date, the County's approach has been to promote the completion of a project that is successfully
constructed as designed for its intended use, notwithstanding West's dilatory work. The County has
reached out to both West and its surety, the Philadelphia Indemnity Insurance Company (including its
attorney), on numerous occasions in an effort to: (1) provide notice of West's continued material
breaches and default under the Agreement, (2) have them correct the unacceptable performance and
encourage the surety to conduct its own investigation into the project, and (3) alert them of the County's
intention to recover the liquidated damages to make the County whole. The County will continue to
pursue all efforts to avoid the possibility of needing to file suit. If, however, an agreement cannot be
reached that makes the County whole, staff is requesting the Board's authorization to file a civil lawsuit to
recover damages.
FISCAL IMPACT: The cost to file and serve an action in the Collier County Circuit Court is
approximately $400. Funds are available to commence a lawsuit in the Airport Capital Fund (496),
Project Number 33484.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote
for Board approval. -SRT
RECOMMENDATION: That the Board of County Commissioners, acting as the Collier County Airport
Authority, authorize staff to continue its efforts to negotiate and resolve outstanding construction -related
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16. K.4
issues with West Construction, Inc., concerning West's construction of the new terminal facility and
associated safety improvements at the Marco Island Executive Airport, and to authorize the filing of a
civil action to recover damages against West, its surety, and any other parties determined to be liable in
connection with West's performance if a recommended settlement cannot be reached and brought to the
Board for approval.
PREPARED BY: Scott R. Teach, Deputy County Attorney
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16. K.4
11/10/2020
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.4
Doe ID: 14085
Item Summary: Recommendation that the Board of County Commissioners, acting in its capacity
as the Collier County Airport Authority, direct staff to continue its efforts to negotiate and resolve
outstanding construction -related issues with West Construction, Inc., concerning West's performance
constructing the new terminal facility and associated safety improvements at the Marco Island Executive
Airport under County Agreement No. 18-7240.
Meeting Date: 11/10/2020
Prepared by:
Title: Legal Assistant — County Attorney's Office
Name: Jessica Hayes
11/02/2020 8:27 AM
Submitted by:
Title: County Attorney — County Attorney's Office
Name: Jeffrey A. Klatzkow
11/02/2020 8:27 AM
Approved By:
Review:
Airport Authority
County Attorney's Office
County Attorney's Office
Office of Management and Budget
Office of Management and Budget
County Manager's Office
Board of County Commissioners
Justin Lobb
Additional Reviewer
Scott Teach
Level 2 Attorney Review
Jeffrey A. Klatzkow
Level 3 County Attorney's Office Review
Debra Windsor
Level 3 OMB Gatekeeper Review
Laura Zautcke
Additional Reviewer
Leo E. Ochs
Level 4 County Manager Review
MaryJo Brock
Meeting Pending
Completed
11/02/2020 1:05 PM
Completed
11/02/2020 1:13 PM
Completed
11/02/2020 1:38 PM
Completed
11/02/2020 2:51 PM
Completed
11/03/2020 9:45 AM
Completed
11/04/2020 11:37 AM
11/10/2020 9:00 AM
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