The Indian Trail Improvement District Board of Supervisors in a 4-1 vote last week stopped short of rescinding its contract with Rosso Site Development for construction of Acreage Community Park’s southern expansion.
However, at the Wednesday, Sept. 18 meeting, supervisors agreed that they were frustrated with delays at the park that have put completion of the project behind schedule more than a year.
Attorney Rick Chaves, hired by the district to pursue the option of rescinding the contract, was present at the meeting.
“We issued a letter that has terminated that contract that is subject to ratification tonight,” Chaves said. “The basis for the termination was non-performance and untimely performance, which we outlined in the letter and sent it to Rosso and to their surety. They have responded, and on Monday, we had a meeting here where they have expressed a request that the board rescind the termination and let them complete the project. We have explored the opportunity to hire outside folks to complete the project. I’m not sure where the status of that is.”
Chaves said the board has the option of ratifying the termination and finding another contractor or rescinding the termination and keeping Rosso, allowing the contractor to proceed with a plan they provided to finish the work.
ITID President Betty Argue said it was her understanding from discussions with the project manager, engineer and staff that there is about 30 days of work remaining to be done.
“At our meeting on Monday, we asked that they provide us with a letter of commitment, as well as a schedule proving when they intend to be complete,” she said, adding that Rosso did provide a checklist of items left outstanding.
She said there were some items that are tied to change orders that had not been approved by the board because they had not been requested within the necessary timeframe. “Their proposed final completion looks like Dec. 19, with substantial completion by Nov. 18,” Argue said.
Originally, Rosso’s most recent completion date was Oct. 31, but the firm’s letter cited delays relative to a weed eradication program that had to be done before laying sod.
“It’s my understanding that if the board chooses to rescind the termination, we’re not agreeing to the schedule,” Argue said. “If the board chooses to rescind, we would have another meeting where we would sit down with Rosso and negotiate the balance of outstanding items so that we come up with one change order to bring back to the board that would address things like liquidated damages and extensions. Right now, we’re 397 days over schedule in liquidated damages.”
Supervisor Tim Sayre favored ratifying the contract termination letter, calling out Rosso for “smoke and mirrors.”
“They were asked to give a completion date. They haven’t given a completion date. This is the way they’ve played the game for over a year and a half, two years now that I’ve been on the board,” Sayre said. “It’s always, ‘Oh, we’ll have it done in 90 days,’ or ‘We’ll have it done in 60 days,’ but they won’t commit. We have given them multiple opportunities to complete the park.”
He pointed out that the board voted unanimously to hire Chaves to draft a termination letter.
“Right now, I’m not in favor of rescinding the termination based on the fact that they’re not even here tonight, and they haven’t given us a final date,” Sayre said. “They’re talking about a punch list that ends Dec. 19, and then you’ve still got to get all the permits signed off. We’re talking about 2020 now, and this was supposed to be done in March 2018.”
Argue pointed out that Rosso has continued to work on the park project despite being put on notice.
“I’m not saying that they are not in the wrong. I’m saying that they have continued to work,” she said. “They are not off the site not working, so they are attempting to do work and get to completion, and they did provide what we asked for on Monday.”
Sayre said that the lack of weed eradication that prevented the laying of sod was the contractor’s fault.
“If they had done this 398 days ago, there wouldn’t be weeds there,” he said. “I don’t care if they’re out there working now. They should have been working a year ago.”
Supervisor Jennifer Hager said she was frustrated at the delays in the project but did not favor changing contractors, which will likely lead to more delays.
“Is it going to make a difference if we allow them to continue?” Hager asked. “They’re already here, doing the job. But if we go out for someone else, then we’ll have to go through the whole process again.”
Argue said the board would not have to seek a formal request for proposals, but the project manager and engineer would have to create a scope of work to get competitive estimates.
“Everybody’s really busy in the construction industry right now,” she said. “However, that could be part of our claim in terms of loss of use of the park and things like that. All the extra costs, all the extra time, it could end up being something that we have to litigate in order to get a fair compensation for that.”
Argue added that the park is so near completion that the district could take it over and finish the work in house, but that is not an option because it is a government project on land that is leased to ITID by Palm Beach County.
After more discussion, Sayre made a motion to ratify the termination of the contract, but it failed for lack of a second.
Hager then made a motion to rescind the termination, which then carried 4-1 with Sayre dissenting.
Argue said that ITID representatives would continue to meet with Rosso on a weekly basis, with the understanding that the board could still rescind the contract at any time.