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McFee Park contractor penalized

McFee Park Phase II includes a playground feature, among other amenities.- Heather Mays/farragutpress
Farragut’s Board of Mayor and Aldermen voted that a contractor would have to pay $56,000 in liquidated damages for not completing construction on McFee Park in time.

The second phase of the park — which includes two pavilions, a splash pad and playground — was supposed to be completed Oct. 12. The park was opened on Dec. 22, but construction still is not completed, Town staff said.

“There’s still work being done on the project; it’s not yet completed,” Town Engineer Darryl Smith told the Board at its meeting Thursday, Feb. 10.

Town staff said the contractor, Christopoulos & Kennedy, owed $71,000 in liquidated damages, or $1,000 a day for each day from Oct. 12 to Dec. 22.

“That 71 days is a concession [because the park] is still not complete,” Smith said.

Christopoulos & Kennedy said the blame for the delay really lay with a subcontractor and with unavoidable delays, such as waiting for equipment.

The Board agreed ... partially.

“As a physician who employs front desk staff, nurses, technicians and assorted people, I can tell you that when it comes to being held to a legal standard, I can not assign blame to any of those people. I am ultimately responsible for everything every one of those people do,” Alderman John Williams said.

“And I don’t see why contractors should be held to any less of a standard.

“I have basically zero tolerance for the fact there were errors in the construction of this project,” he added.

However, Williams said he would limit the amount of damages from Oct. 12 to Nov. 19, to account for several delays Christopoulos & Kennedy said they faced.

He made a motion to that effect, which died for lack of a second.

Alderman Jeff Elliott moved to limit the liquidated damages to $56,000, a number that accounted only for the contractor’s unavoidable delays, a motion that Williams seconded.

The vote on that was unanimous, with Vice Mayor Dot LaMarche absent and Alderman Bob Markli, a homebuilder, abstaining.

The contractor’s attorney, Rick Hollow, told the Board the park opening was delayed because of a TDEC inspection, when the inspector said there must be handicap access through the mulched playground, that a slide was constructed too close to a utility pole and a set of monkey bars was too close to a sidewalk.

The playground had to be built to TDEC standards because it used grant money awarded through TDEC.

Hollow said the TDEC rules were too stringent, and the $71,000 penalty was “a little heavy for this.”

Christos Christopoulos, of Christopoulos & Kennedy, said keeping the park closed because of the TDEC inspection was “a subjective decision” by the Town.

“If it had been another customer, we would have opened the park,” he added.

Mayor Ralph McGill said, “We don’t make the rules for TDEC. We have to follow them.”

Smith pointed out liquidated damages were not assessed as penalties; they were assessed to cover extra staff time, extra consults and extra inspections that all had to be completed when projects were delayed.

Markli said, “The object of this Board is not to extract the pound of flesh.”

He moved that the entire matter go to Town Attorney Tom Hale, a motion he later withdrew.


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