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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 Packet Pg. 2068 11/10/2020 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 Packet Pg. 2069 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 Packet Pg. 2070