Contractor dispute agains heads down uncertain road

Just as Elm Grove was moving on from one messy construction dispute, the village is again dealing with a project that has not moved according to schedule.

The work on Watertown Plank Road has yet to be finished due to faulty curb ramps installed by the contractor, Payne and Dolan. Also, restoration work along Watertown Plank Road and landscaping needs to be completed.

The Wisconsin Department of Transportation, which funded 80 percent of the project, has been trying to get the curbs replaced because they aren't up to industry standards in terms of pitch and design.

Who pays for what?

There has been considerable discussion about who should pay for these new curbs, but Elm Grove Public Works Director Mike Flaherty has insisted the village will not be on the hook.

Village Manager Dave DeAngelis said the process is close to reaching a point where contractual penalties for failing to complete work may kick in. These penalties, called liquidated damages, are built into a contract for failing to complete certain projects by a certain date.

Given that the village did pay 20 percent of the project cost, the village could receive some kind of compensation if damages are paid. DeAngelis didn't seem optimistic about such a likelihood, however.

"In 20 years, I've never gotten liquidated damages off a state job," he said bluntly.

In order to the state to claim such damages, a final timeline would have to be set on when all work must be finished. From there, the contractor would have 30 days to make the final arrangements or face the payments.

That date must be set before any penalties can be enforced.

Unfortunately, for Elm Grove residents who have to deal with an unfinished road, the bickering among contractors and government officials has not relented.

"There is still a dispute about who is supposed to be doing what and fixing what," DeAngelis said, although he added that Elm Grove has not be directly involved in the discussions.

Comparison with Michels case

That is perhaps the biggest difference between this case and an earlier dispute, which dragged for five years.

In that case, the village won its lawsuit against New Berlin contractor Michels Corp. in 2010. The court found the contractor failed to properly complete tunnels designed to mitigate flood concerns under an agreed-upon timeline. As a result, Michels was ordered to pay more than $300,000 to cover the cost of fixing the faulty work and other expenses incurred by the village.

Earlier this spring, the Circuit Court of Appeals included compensation for the village's attorney fees, reversing the lower court's decision in that regard.

In the Michels case, Elm Grove had paid for a job to be completed that hadn't been, and the DOT was not a variable in that equation. The current dispute with Payne and Dolan case has not reached a courtroom, though litigation is a potential next step should a suitable solution not be found.

Both cases though, feature work which has been done both unsatisfactorily, as well as not on the agreed upon timeline.