Agenda 04/13/2021 Item #16G2 (Carlton Fields, P.A. Purchase Order Increase)04/13/2021
EXECUTIVE SUMMARY
Recommendation to authorize an increase in the Purchase Order for Carlton Fields, P.A., related
to its provision of litigation services in Collier County v. West Construction, Inc., and Philadelphia
Indemnity Insurance Company, Case Number 11-2021-CA-00783, which concerns the County’s
claim for damages involving the delay in completing the construction of the general aviation
terminal facility at the Marco Island Executive Airport. [Project No. 33484]
OBJECTIVE: That the Board of County Commissioners authorize an increase to the Purchase Order
for outside counsel Carlton Fields, P.A., in accordance with Collier County’s Board approved retainer
agreement, so it can provide continued construction litigation representation in a civil action for
damages filed against the contractor and its surety for delay incurred in completing the new general
aviation terminal facility at the Marco Island Executive Airport (“MKY Project”).
CONSIDERATIONS: 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 on February 22, 2019.
Despite County staff’s best efforts, the contractor on the project, West Construction, Inc. (“West”), fell
well behind the 320 calendar days that Agreement No. 18-7240 (the “Agreement”) required West to
achieve Substantial Completion. In fact, West did not achieve Substantial Completion until January 22,
2021- over a year and half after the date required under the Agreement. During the course of that
period, staff worked with Carlton Fields to utilize outside experts with specialized skills in scheduling
and materials installation knowledge to manage and document the performance issues and delays caused
by West.
On March 17, 2021, the County filed a two count civil complaint arising out of West’s delays on the
MKY Project. The first count is against West for breach of contract and the second count is against
West’s surety, Philadelphia Indemnity Insurance Company, for breach of bond. Between withheld
retainage and setting off as a credit a sum that West submitted under its most recent payment
application, the County is currently in possession of slightly more than $1.2 million of an approximately
$2.4 million owed in accrued liquidated damages at the time of filing. Liquidated damages consist of
an agreed upon sum assessed against the contractor for every day that the project is not completed by
the Substantial Completion date. The County is seeking damages to recover in ex cess of $1.2 million
in liquidated damages, plus interests, costs, and other expenses incurred in filing suit, such as the cost of
all retained experts and attorneys’ fees.
County staff believes that it has taken appropriate steps so that it is well-positioned as the Owner of the
Project to recover the damages sought in the Complaint. Staff is requesting an increase in the Purchase
Order for Carlton Fields, P.A., to provide for its continued representation on this matter through trial, if
necessary. It is difficult at this time to ascertain with particularity how much outside counsel fees may
total in this case due to uncertain variables such as: (1) whether this matter can be quickly settled, (2)
the amount of discovery and depositions initiated by other parties, (3) the approach of other counsel, (4)
the duration of trial, if applicable, and (4) other complicating factors. In more than two plus years since
the county retained Carlton Fields on this complex construction matter, the County has paid roughly just
under $200,000 in costs and fees, which includes the cost of retaining three consulting experts
(scheduling, architectural and stucco) as referenced above.
The Florida Department of Transportation (FDOT) provided 80% funding for the Marco Isl and
Terminal construction project, total $8,511,520 for design and construction (through a Joint
Participation Agreement entered into with the State). Phase II of the project (existing terminal
demolition and new airside pavement and safety improvements) had additional grant funding from
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FDOT and Federal Aviation Administration (FAA) bringing the total grant funds awarded to the County
for Phase I and II to $11,895,763.
At this time, Staff requests Board authority to increase the current Purchase Order by $200,000.00 and it
will report back to the Board if additional resources are required going forward, as well whether any
opportunity to settle this dispute arises. As noted above, the County is seeking to recover its costs and
attorneys’ fees, as part of its claim for damages, as is provided for in the agreement it entered into with
West.
FISCAL IMPACT: Funds in the amount of $200,000 are budgeted in Airport Capital Fund 496,
Project 33484.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
item.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority
vote for Board approval. -SRT
RECOMMENDATION: That the Board authorize an increase to the Purchase Order for outside
counsel Carlton Fields, P.A., for an additional $200,000.00, in accordance with Collier County’s Board
approved retainer agreement, for services provided in the case of Collier County v. West Construction,
Inc. and Philadelphia Indemnity Insurance Company, Case Number 11-2021-CA-00783.
Prepared By: Andrew Bennett, CM, CPM, Interim Executive Manager, Collier County Airport
Authority
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.G.2
Doc ID: 15431
Item Summary: Recommendation to authorize an increase in the Purchase Order for Carlton
Fields, P.A., related to its provision of litigation services in Collier County v. West Construction, Inc.,
and Philadelphia Indemnity Insurance Company, Case Number 11-2021-CA-00783, which concerns the
County’s claim for damages involving the delay in completing the construction of the general aviation
terminal facility at the Marco Island Executive Airport. [Project No. 33484]
Meeting Date: 04/13/2021
Prepared by:
Title: – Growth Management Operations Support
Name: Heather Meyer
03/29/2021 4:27 PM
Submitted by:
Title: Division Director - Operations Support – Growth Management Department
Name: Gene Shue
03/29/2021 4:27 PM
Approved By:
Review:
Airport Authority Andrew Bennett Additional Reviewer Completed 03/29/2021 4:38 PM
Growth Management Department Gene Shue Additional Reviewer Completed 03/29/2021 4:40 PM
Growth Management Department Jeanne Marcella Level 1 Reviewer Completed 03/30/2021 7:34 AM
Capital Project Planning, Impact Fees, and Program Management Rookmin Nauth Additional Reviewer Completed 03/30/2021 7:41 AM
Growth Management Operations Support Christopher Johnson Additional Reviewer Completed 03/30/2021 7:44 AM
Procurement Services Opal Vann Level 1 Purchasing Gatekeeper Completed 03/30/2021 8:31 AM
Procurement Services Catherine Bigelow Additional Reviewer Completed 03/30/2021 8:44 AM
Procurement Services Sandra Herrera Additional Reviewer Completed 03/30/2021 9:14 AM
Procurement Services Sue Zimmerman Additional Reviewer Completed 03/30/2021 9:25 AM
Grants Erica Robinson Level 2 Grants Review Completed 03/30/2021 9:42 AM
Growth Management Department Jeanne Marcella Department Head Review Completed 03/30/2021 10:49 AM
Grants Carrie Kurutz Additional Reviewer Completed 03/30/2021 3:10 PM
County Attorney's Office Scott Teach Level 2 Attorney Review Completed 03/30/2021 4:44 PM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 03/31/2021 8:31 AM
Office of Management and Budget Susan Usher Additional Reviewer Completed 03/31/2021 11:25 AM
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Grants Therese Stanley Additional Reviewer Completed 03/31/2021 12:07 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 03/31/2021 12:26 PM
County Manager's Office Dan Rodriguez Level 4 County Manager Review Completed 03/31/2021 4:21 PM
Board of County Commissioners MaryJo Brock Meeting Pending 04/13/2021 9:00 AM
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