BCC Agenda 02/27/2024 Item #16K 3 (File a lawsuit on behalf of the Board against Scott Commercial Contracting, LLC)02/27/2024
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to file a lawsuit on behalf of the Collier County Board of
County Commissioners against Scott Commercial Contracting LLC, and any other responsible parties, for
$23,949.52 in damages caused to a 16-inch potable water main near the intersection of Tamiami Trail North
(U.S. 41), 107th Avenue North, and Creekside Boulevard.
_____________________________________________________________________________________
OBJECTIVE: To recover the money spent by Collier County to repair a water main damaged by a negligent
FDOT subcontractor.
CONSIDERATIONS: On or March 24, 2020, workers for Scott Commercial Contracting LLC damaged a 16-inch
County potable water main while performing a directional bore as a subcontractor on an FDOT project. The
County was required to engage an emergency contractor and utilize staff resources to restore the County’s 16 -inch
water main and the County incurred $23,949.52 in damages. Network Adjusters, Inc., on behalf of Scot t
Commercial Contracting LLC, denied any liability for the damage.
The County recommends Board approval to file a lawsuit in county court to recover the damages. Attached is a
draft copy of the complaint, along with corresponding backup materials docume nting the damage and amounts
thereof.
By filing this lawsuit to recover damages, the County puts contractors on notice that they will be held responsible
for their negligent actions.
FISCAL IMPACT: The cost to file and serve a Complaint is approximately $450 and funds are budgeted and
available in the Risk Management Property & Casualty Fund (5016).
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this item.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality and requires a majority vote
for Board approval. -DDP
RECOMMENDATION: To authorize the County Attorney to file a lawsuit on behalf of the Collier County Board
of County Commissioners against Scott Commercial Contracting LLC, and any other responsible parties, for
$23,949.52 in damages caused to a 16-inch potable water main near the intersection of Tamiami Trail North (U.S.
41), 107th Avenue North, and Creekside Boulevard.
PREPARED BY: Derek D. Perry, Assistant County Attorney
Michael K. Quigley, Risk Management Division Director
ATTACHMENT(S)
1. Scott Commercial - Complaint (PDF)
2. Scott Commercial - Backup (PDF)
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02/27/2024
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.3
Doc ID: 27634
Item Summary: Recommendation to authorize the County Attorney to file a lawsuit on behalf of the Collier
County Board of County Commissioners against Scott Commercial Contracting LLC, and any other responsible
parties, for $23,949.52 in damages caused to a 16-inch potable water main near the intersection of Tamiami Trail
North (U.S. 41), 107th Avenue North, and Creekside Boulevard.
Meeting Date: 02/27/2024
Prepared by:
Title: Legal Assistant – County Attorney's Office
Name: Wanda Rodriguez
01/03/2024 10:26 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
01/03/2024 10:26 AM
Approved By:
Review:
Risk Management Michael Quigley Other Reviewer Completed 02/16/2024 3:43 PM
Engineering and Project Management Matthew McLean PUD Reviewer Completed 02/18/2024 6:35 PM
County Attorney's Office Derek D. Perry Level 2 Attorney Review Completed 02/20/2024 9:36 AM
Public Utilities Department George Yilmaz PUD Reviewer Completed 02/20/2024 9:54 AM
County Attorney's Office Ronald Tomasko CAO Reviewer Completed 02/20/2024 10:09 AM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 02/20/2024 10:51 AM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 02/20/2024 10:57 AM
Office of Management and Budget Blanca Aquino Luque OMB Reviewer Completed 02/20/2024 4:36 PM
County Manager's Office Amy Patterson Level 4 County Manager Review Completed 02/21/2024 11:33 AM
Board of County Commissioners Geoffrey Willig Meeting Pending 02/27/2024 9:00 AM
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IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA,
Plaintiff,
vs. Case No.: _____________________
SCOTT COMMERCIAL
CONTRACTING LLC, a
Florida Limited Liability Company,
Defendant.
_____________________________________/
COMPLAINT
Plaintiff BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,
FLORIDA (“COUNTY”), by and through its undersigned counsel, sues Defendant SCOTT
COMMERCIAL CONTRACTING LLC, a Florida Limited Liability Company (“SCOTT”), and
states as follows:
NATURE OF CLAIMS, THE PARTIES, JURISDICTION. AND VENUE
1. The County’s claims stem from SCOTT’s damage to the COUNTY’s personal
property, specifically an underground 16-inch potable water main utility pipe owned, operated,
and maintained by the COUNTY, and the resulting cost of repair incurred by the COUNTY.
2. This Court has jurisdiction over this matter, as it is an action to recover damages
in excess of $8,000 up to $50,000, exclusive of interest, costs, and attorneys’ fees.
3. The COUNTY, as the governing body for Collier County, Florida, a political
subdivision of the State of Florida, and as the ex-officio governing board of the Collier County
Water-Sewer District, an independent special district created by the Florida Legislature, is the
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owner of the personal property that is the subject of this litigation and is thus authorized to bring
this action.
4. SCOTT is a limited liability company organized under the laws of Florida, with
its principal place of business at 13999 W. SR 78, Moore Haven, FL 33471, in Glades County,
Florida, and is authorized to and does conduct business throughout the State of Florida, including
in Collier County.
5. Venue is proper in Collier County, Florida, pursuant to Florida Statutes section
47.051, because (i) this is an action against a domestic limited liability company, (ii) Collier
County is where the instant cause of action accrued, (iii) Collier County is where the property in
litigation is located, (iv) the property damage occurred in Collier County, and (v) the amounts
due to the COUNTY are due in Collier County.
FACTUAL ALLEGATIONS
6. In 1993, the Florida Legislature enacted the “Underground Facility Damage
Prevention and Safety Act,” Chapter 556, Florida Statutes (“the Act”), to prevent injury to
persons or property and the interruption of services resulting from damage to an underground
facility caused by excavation or demolition operations. Fla. Stat. § 556.101(3)(a).
7. The Act created a not-for-profit corporation called Sunshine State One-Call of
Florida, Inc. (“the Corporation”), and requires the Corporation to maintain a free-access
notification system (the “One-Call System” or “System”) which excavators can use to notify
owners of underground facilities of planned excavation or demolition activities. See Fla. Stat. §§
556.103 and 556.104.
8. The Corporation is comprised of the owners of underground facilities in the State
of Florida, which are called “member operators” by the Act. Fla. Stat. § 556.104.
9. The COUNTY is a “member operator” under the Act.
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10. Under the Act, “excavators” and “excavating contractors” are required to notify
the System and provide information about a planned excavation at least two full business days
before beginning any excavation. Fla. Stat. § 556.105(1). The System then notifies member
operators with underground facilities near the planned excavation, who are required to “identify
the horizontal route by marking to within 24 inches born the outer edge of either side of the
underground facility by the use of stakes, paint, flags, or other suitable means within two full
business days after the time the notification is received” from the System. Fla. Stat. § 556.105(5)
(emphasis added).
11. SCOTT is an “excavator” and/or “excavating contractor” under the Act.
12. At all relevant times, the Florida Department of Transportation (FDOT) was the
owner of a road construction project (the “FDOT Project”) at or near the intersection of Tamiami
Trail North (U.S. 41), 107th Avenue North, and Creekside Boulevard (the “Intersection”), in
Collier County.
13. SCOTT was to perform excavations at or near the Intersection as part of the
FDOT Project.
14. On March 11, 2020, SCOTT provided a notice of a planned excavation through
the System as required by the Act (the “Notice”).
15. Between March 11, 2020 and March 19, 2020, in response to the Notice, the
COUNTY communicated and worked with SCOTT and marked with flags and paint the
horizontal route of the COUNTY’S underground facilities near the Intersection.
16. Near the Intersection, the underground utilities marked by the COUNTY in
response to the Notice included a 12-inch raw water main utility pipe (the “Raw Main”) and a
16-inch potable water main utility pipe (the “Potable Main”), which were marked with flags and
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spray paint in accordance with the “Uniform Color Code for Utilities” of the American Public
Works Association. See Fla. Stat. § 556.105(10).
17. On or about March 24, 2020, SCOTT engaged in a directional drill near the
Intersection as part of the FDOT Project and struck and caused damage to the Potable Main.
18. “If any excavator fails to discharge a duty imposed by [the Act], the excavator, if
found liable, is liable for the total sum of the losses to all parties involved as those costs are
normally computed.” Fla. Stat. § 556.106(2)(b).
19. All conditions precedent to the relief demanded herein have been performed or
waived.
COUNT I –NEGLIGENCE
Breach of the duty to identify and protect underground facilities within the Tolerance Zone of
SCOTT’s excavation.
20. The COUNTY re-alleges and incorporates by reference its allegations in
paragraphs 1–19, as if fully set forth herein.
21. The Act imposes a duty on excavators to use increased caution to identify and
protect underground facilities when an excavation is to take place within a “tolerance zone.” Fla.
Stat. § 556.105(5)(c). “The protection requires hand digging, pot holing, soft digging, vacuum
excavation methods, or similar procedures to identify underground facilities.” Id.
22. The Act defines “tolerance zone” as “24 inches from the outer edge of either side
of the exterior surface of a marked underground facility.” Fla. Stat. § 556.102(15).
23. SCOTT’S excavation on or about March 24, 2020, near the Intersection was
within the “tolerance zone” of the COUNTY’s Potable Main and/or Raw Main.
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24. SCOTT knew or should have known that its excavation was within the “tolerance
zone” of the COUNTY’s Potable Main and/or Raw Main and the Notice Area, of which the
COUNTY’s Potable Main and/or Raw Main was marked.
25. SCOTT had a duty to use increased caution to identify and protect the
COUNTY’s Potable Main and/or Raw Main.
26. SCOTT breached the duty stated in Paragraph 21 by failing to use increased
caution to identify and protect the COUNTY’s Potable Main before proceeding with its
excavation near the Intersection on or about March 24, 2020.
27. The damage SCOTT caused to the COUNTY’s Potable Main was the direct,
proximate, and foreseeable result of SCOTT’S breach of the duty stated in Paragraph 21.
28. As a result of SCOTT’S negligence, the COUNTY incurred monetary damages
including, but not limited to, the $23,949.52 incurred to repair the damaged Potable Main, and
other direct and consequential damages.
29. SCOTT is liable to the COUNTY for the total sum of the losses incurred by the
COUNTY as a result of SCOTT’S negligence. § 556.106(2)(b).
WHEREFORE, the COUNTY demands judgment against SCOTT for damages, together
with prejudgment interest and costs, and for such other or further relief as this Court deems
equitable and just under the circumstances.
COUNT II – NEGLIGENCE
Breach of the duty to perform an excavation in a careful and prudent manner and to exercise due
care in the performance of work.
30. The COUNTY re-alleges and incorporates by reference its allegations in
paragraphs 1–19, as if fully set forth herein.
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31. “Obtaining information as to the location of an underground facility from the
member operator as required by this chapter does not excuse any excavator from performing an
excavation or demolition in a careful and prudent manner, based on accepted engineering and
construction practices, and it does not excuse the excavator from liability for any damage or
injury resulting from any excavation or demolition.” Fla. Stat. § 556.106(2)(c).
32. The Act imposes a duty on excavators to perform excavations in a careful and
prudent manner, based on accepted engineering and construction practices. Id.
33. SCOTT had a duty to perform its excavation near the Intersection on or about
March 24, 2020 in a careful and prudent manner, based on accepted engineering and construction
practices. See id.
34. SCOTT breached the duty stated in Paragraph 33 by failing to perform its
excavation in a careful and prudent manner, based on accepted engineering and construction
practices.
35. The damaged caused to the COUNTY’s Potable Main was the direct, proximate,
and foreseeable result of SCOTT’S breach of the duty stated in Paragraph 33.
36. As a result of SCOTT’S negligence, the COUNTY incurred monetary damages
including, but not limited to, the $23,949.52 incurred to repair the damaged Potable Main, and
other direct and consequential damages.
37. SCOTT’S receipt of information as to the location of the COUNTY’S Potable
Main and/or Raw Main does not excuse SCOTT from the duty to perform its excavation in a
careful and prudent manner, based on accepted engineering and construction practices, and it
does not excuse SCOTT from liability for the damage caused to the COUNTY’s Potable Main.
Fla. Stat. § 556.106(2)(c).
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38. SCOTT is liable to the COUNTY for the total sum of the losses incurred by the
COUNTY as a result of SCOTT’S negligence. § 556.106(2)(b).
WHEREFORE, the COUNTY demands judgment against SCOTT for damages, together
with prejudgment interest and costs, and for such other or further relief as this Court deems
equitable and just under the circumstances.
COUNT III – NEGLIGENCE
Breach of the common law duty to exercise due care in the performance of work.
39. The COUNTY re-alleges and incorporates by reference its allegations in
paragraphs 1–19, as if fully set forth herein.
40. SCOTT had a duty to exercise due care in the performance of its excavation near
the Intersection on or about March 24, 2020, which required SCOTT to exercise the degree of
care that a reasonably careful excavator would use under like circumstances.
41. SCOTT breached its duty to exercise due care in the performance of its
excavation near the Intersection on or about March 24, 2020, in the following ways:
a. SCOTT failed to identify and protect marked underground facilities within
the tolerance zone (i.e., 24-inches) of its excavation.
b. SCOTT failed to comply with its Drilled Shaft Installation Plan by failing
to hand dig the shaft as required to verify no underground utilities conflict with its
excavation near the Intersection.
c. SCOTT failed to contact the COUNTY when SCOTT did not find the
COUNTY’s Potable and/or Raw Main during its hand dig.
d. SCOTT assumed it was clear of marked underground utilities without
identifying and protecting all utilities marked in conflict with its excavation near the
Intersection.
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42. The damage caused to the COUNTY’s Potable Main was the direct, proximate,
and foreseeable result of SCOTT’S malfeasance described in Paragraph 41, a.–d.
43. As a result of SCOTT’S negligence, the COUNTY has incurred monetary
damages including, but not limited to, the $23,949.52 incurred to repair the damaged Potable
Main, and other direct and consequential damages.
WHEREFORE, the COUNTY demands judgment against SCOTT for damages, together
with prejudgment interest and costs, and for such other or further relief as this Court deems
equitable and just under the circumstances.
DEMAND FOR JURY TRIAL
The County hereby demands a jury trial on all issues so triable.
Respectfully submitted,
By: ___________________________
Ronald T. Tomasko
Florida Bar No. 1030999
Derek D. Perry
Florida Bar No. 1018383
Collier County Attorney’s Office
3299 East Tamiami Trail, Suite 800
Naples, Florida 34112-5746
Telephone: (239) 252-8400
Facsimile: (239) 252-6300
Counsel for Plaintiff COLLIER COUNTY
ronald.tomasko@colliercountyfl.gov
derek.perry@colliercountyfl.gov
nancy.bradley@colliercountyfl.gov
rosa.villarreal@colliercountyfl.gov
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September 29, 2020
Midwestern Construction, Inc.
PO Box 7670
Lakeland, FL 33807
Attn: Frank Pollard
RE: Claim Number: 1021657
Your Info: NOI #005 Water Main Damages
435029-1-52-01/ E1R78
Date of Loss: 03/24/2020
Our Client: Collier County BOCC
Dear Mr. Pollard:
Thank you for your cooperation and patience in the investigation of the above-
referenced claim. All available evidence in this matter has been carefully reviewed.
It has been determined that the available evidence is not sufficient to conclude the loss
you reported was caused by negligence on the part of our client. We have reviewed in
depth that our locate was performed correctly and within the allowable parameters. For
that reason, we must, with respect, decline to offer payment of your claim.
Sincerely,
Johns Eastern Company, Inc.
Todd Harkins
Todd Harkins
Claim Adjuster
Phone: (877) 326-5326
Email: THarkins@johnseastern.com
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1Derek Perry
From:Bandle, Katie <kbandle@networkadjusters.com>
Sent:Wednesday, November 24, 2021 3:19 PM
To:GreeneColleen
Subject:CRC000419 Scott Commercial Contracting
Attachments:Demand letter.pdfEXTERNAL EMAIL: This email is from an external source. Confirm this is a trusted sender and use extreme
caution when opening attachments or clicking links. Hi Colleen, I have been transferred this file that was previously being handled by Allison Clark. I have attached your demand letter for your reference. We have determined that our insured is not liable for this loss. The water main was marked incorrectly, approximately 12 feet from where our insured struck the line. This is 10 feet away from the allowed 24” tolerance zone accepted within the state of Florida. Please let me know if you have any questions. Thank you, Katie Bandle Claims Adjuster Network Adjusters, Inc. Direct: (303) 867-9601 kbandle@networkadjusters.com From: john team-scott john@team-scott.com Sent: Monday, July 12, 2021 10:29 AM To: Clark, Allison aclark@networkadjusters.com Subject: RE: Update on Water Main Claim Scott Commercial Contracting LLC CRC000419 Good morning Allison, The flag colors were not inverted. The purple flags were correctly placed within the 36” tolerance zone of the ductile reclaim pipe’s actual location, but the blue flags were incorrectly placed approximately 12’ west from the center of the damaged water main’s actual location. We located the adjacent ductile iron reclaim main marked with the purple flags (approximately 38” to the east of the water main) using our hydroexcavator truck prior to drilling because the purple flags were in our tolerance zone for our proposed bore path. Had the blue flags been in the correct position, we would have been able to locate the water main as well prior to drilling and prevent this bore strike. Since the blue flags were much farther than 36” from our proposed bore path (again about 12’ in the wrong position), we were unaware it was located near our bore path. The purpose of them locating these utilities is so we know where to look and if they do not do it correctly, we are not liable. They did not locate this utility correctly. 16.K.3.b
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2 Sincerely, John Scott CFO Scott Commercial Contracting LLC 239-340-8695 john@team-scott.com This message (including any attachments) contains confid ential information intended for a specific
individual and purpose, and is protected by law. If yo u are not the intended recipient, you should delete
this message and any disclosure, copying, or distribut ion of this message, or the taking of any action
based on it, by you is strictly prohibited.
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[20-RMG-00639/1783502/1] CPW592 12391 CALL SUNSHINE 03/11/20 11:32:09ET 071002859-000 STREET
Ticket : 071002859 Rev:000 Taken: 03/11/20 11:28ET
State: FL Cnty: COLLIER GeoPlace: NAPLES
CallerPlace: NAPLES
Subdivision:
Address :
Street : TAMIAMI TRL N
Cross 1 : CREEKSIDE BLVD
Within 1/4 mile: Y
Cross 2 : PELICAN MARSH BLVD
Locat: LOCATE THE EAST SIDE OF TAMIAMI TRL N FROM THE SE CORNER OF THE
INTERSECTION WITH CREEKSIDE BLVD GOING SOUTH TO THE NE CORNER OF THE
INTERSECTION WITH PELICAN MARSH BLVD
:
Remarks : *** LOOKUP BY BETWEEN ***
:
Grids : 2615A8148D 2615B8148D 2616D8148D
Work date: 03/13/20 Time: 23:59ET Hrs notc: 064 Category: 3 Duration: 02
WKS
Due Date : 03/13/20 Time: 23:59ET Exp Date : 04/10/20 Time: 23:59ET
Work type: DIRECTIONAL DRILLING Boring: Y White-lined: N
Ug/Oh/Both: U Machinery: Y Depth: 6 FT Permits: N N/A
Done for : HIGHWAY SAFETY DEVICES
Company : SCOTT COMMERCIAL CONTRACTING Type: CONT
Co addr : PO BOX 503
City : ALVA State: FL Zip: 33920
Caller : SHAINE GREEN Phone: 239-340-8695
Contact : SHAINE GREEN Phone: 239-851-7081
BestTime: ANYTIME
Mobile : 239-851-7081
Email : SHAINE@TEAM-SCOTT.COM
Submitted: 03/11/20 11:28ET Oper: CHE
Mbrs : CC1255 CC1650 CC2156 CNTL01 CPW592 CTV413 FPLCLR KC1538 NN1882
PGSSW 3/11/2020 11:32:09 AM: Received DETAILS: Ticket received for registration code CPW592 3/11/2020 11:32:09 AM: Assigned DETAILS: Assigned to Justin Williams by auto process NOTE: Auto Processed per Responsibility Area 3/11/2020 11:32:09 AM: Ticket Queued DETAILS: Ticket queued for delivery 3/11/2020 11:32:10 AM: Ticket Delivered DETAILS: Ticket successfully sent to wwts-irthnet@Colliergov.net 16.K.3.b
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[20-RMG-00639/1783502/1] 3/11/2020 11:59:40 AM: Responded DETAILS: 3N: added by Justin Williams, Locate Time: 3/11/2020 11:59:40 AM NOTE: Spoke to shaine around 11:45 am he advised he didn't know the actual length on the bores. contractor just called in the entire distance when they are not boring the entire length between Creekside and pelican marsh according to the plans HSD has sent locates. These intersections have been marked MULTIPLE times for previous bore crew that HSD is no longer working with on this project. Have offsets on all the intersections for the utilities within the road way. Contact has also advised that he did not go out and white line the work for the bores. WHITE LINE REQUESTED FOR ALL BORE RUN LINES 3/11/2020 11:59:40 AM: Positive Response to Center Queued DETAILS: Positive Response to Center queued for delivery 3/11/2020 11:59:55 AM: Positive Response to Center Delivered DETAILS: Positive Response to Center successfully sent 3/17/2020 8:28:20 AM: Reopened DETAILS: Reopened by Justin Williams 3/17/2020 8:28:34 AM: Responded DETAILS: 8 (Ongoing): added by Justin Williams, Locate Time: 3/17/2020 8:28:34 AM NOTE: On going project working ahead of contractor 3/17/2020 8:28:34 AM: Positive Response to Center Queued DETAILS: Positive Response to Center queued for delivery 3/17/2020 8:28:37 AM: Positive Response to Center Delivered DETAILS: Positive Response to Center successfully sent 3/17/2020 8:42:27 AM: Note Added DETAILS: Note added by Justin Williams NOTE: Marked irrigation main and Water main on the north east side of Creekside and US41 to where the old red robing used to be 3/19/2020 9:07:04 AM: Note Added DETAILS: Note added by Justin Williams NOTE: Marked going south from Creekside Water main and irrigation main. 3/19/2020 9:07:16 AM: Responded DETAILS: 8: added by Justin Williams, Locate Time: 3/19/2020 9:07:16 AM NOTE: Still not white lined 3/19/2020 9:07:16 AM: Positive Response to Center Queued DETAILS: Positive Response to Center queued for delivery 3/19/2020 9:07:25 AM: Positive Response to Center Delivered DETAILS: Positive Response to Center successfully sent 16.K.3.b
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Packet Pg. 1161 Attachment: Scott Commercial - Backup (27634 : authorize lawsuit against Scott Commercial Contracting LLC)
16.K.3.b
Packet Pg. 1162 Attachment: Scott Commercial - Backup (27634 : authorize lawsuit against Scott Commercial Contracting LLC)
16.K.3.b
Packet Pg. 1163 Attachment: Scott Commercial - Backup (27634 : authorize lawsuit against Scott Commercial Contracting LLC)
16.K.3.b
Packet Pg. 1164 Attachment: Scott Commercial - Backup (27634 : authorize lawsuit against Scott Commercial Contracting LLC)
16.K.3.b
Packet Pg. 1165 Attachment: Scott Commercial - Backup (27634 : authorize lawsuit against Scott Commercial Contracting LLC)