Whitesell-Green/Caddell sued Escambia County, alleging the county still owes the company $3.4 million for the construction of the new county jail. The county has countered the contractor—a joint company between Whitesell-Green and Caddell Construction formed to build the jail—was 224 days late in finishing the project, and under the contract, it can withhold the payment.
Whitesell-Green/Caddell has contended the delays were excusable under the contract because of the COVID-19 pandemic.
At its Thursday, Jan. 19 meeting, the Escambia County Commission unanimously voted to terminate the construction contract, per the advice of its attorney, Cole, Scott & Kissane.
Cole, Scott & Kissane partner Richard Fillmore told the commissioners that the contract should be terminated because the contractor failed to meet its contractual obligation to complete the project.
“There are very specific requirements that the design-builder has to deliver to the county,” said Fillmore. “It requires following a specific process to request that the county participate along with its representatives in walkthroughs to make sure warranty items are complete, to make sure punch list items are complete. It provides the design-builder with an opportunity to repair those items. And most importantly, it notes that the county is not restricted in time to enforce its rights under the contract.”
Whitesell-Green/Caddell has hundreds of punch list items that still haven’t been completed, even though the new facility has been occupied since the summer of 2021. Fillmore told the design-builder needed to certify all the subcontractors have been paid before receiving final payment.
The attorney said, “Payment of the subcontractors we know is not true because there are active lawsuits against the payment sureties for a number of subcontractors.”
Fillmore continued, “The contract is very specific as to the county’s rights that it can enforce under this agreement. And the county can withhold final payment to the design-build contractor if there are material breaches.”
He added that other legal remedies for completion of the construction, correction and repair of construction defects, and the recovery of financial losses may be sought through other avenues. “But the protection of the contractual rights is the first step and the first hurdle and the first most important step for the county to do, to enforce the contract and protect it.”
