Broken Arrow City Council
Meeting of: 09-16-2025
Title:
title
Consideration, discussion, and possible termination of Contract Number ST23310 with Ellis Concrete Construction, LLC on the Meadow Heights Concrete Panel Replacement and Repair
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Background:
Project Background
Meadow Heights Concrete Panel Replacement and Repair is a 2018 General Obligations Bond (GOB) project. The GOB issue calls for neighborhood street rehabilitation projects throughout the City of Broken Arrow (COBA). The Meadow Heights Concrete Panel Replacement project was originally awarded to Ellis Concrete Construction, LLC (hereinafter "Contractor"), on March 13, 2025, at a bid award of $1,495,084.75 and a contract length of 150 days. The engineer's estimate for this project was $1,873,845.50, with the next lowest bidder at $1,558,000.00. The Notice to Proceed was issued on Tuesday, May 27, 2025, and the estimated substantial completion date is Friday, October 24, 2025.
Breach of Contract
Throughout the execution of this Contract, the Contractor has continually exhibited neglect towards its responsibilities, including repeated violations of the contract specifications and requirements. These issues were documented and relayed to the Contractor through various means, including but not limited to, progress meetings, informal email transactions, verbal on/offsite interactions (in person and over the phone), formal letters, and a Stop Work Notice.
A summary of the issues encountered during this project is set forth below. These details support the ultimate recommendation by City Staff to terminate this contract.
Performance Deficiencies
These issues were addressed with the Contractor by the Contract Administrator ("CA") during site visits, by the Construction Division Manager during progress meetings, and observed by other City staff when issuing the Stop Work Notice on August 20, 2025:
1. The Contractor has repeatedly complained of the plans and specifications being inadequate.
o City's Instructions to Bidders states "Anyone contemplating submitting a Bid for the proposed Work who is in doubt as to the true meaning of any part of the Plans and Specifications or other Contract Documents or should anything be omitted from the Plans and Specifications and Drawings, which is necessary for a clear understanding of the Work or it appears that various instructions are conflicting, then the Bidder should request, in writing, written instructions to clarify such omissions or discrepancies to the Engineering & Construction Department."
o Moreover, in submitting its bid, the Contractor specifically signed that it had "carefully examined the Plans and Specifications and other Contractor Documents for the Project to be Bid, and has read the applicable 'Requirements for Bidding and Instructions to Bidders."
o Contractor has also stated that the City said that this contract would be treated the same as their other contract with the City. The City has attached the meeting minutes from that preconstruction meeting where that is not stated. Please see Exhibit 1.
2. Contractor has repeatedly failed to pump water from the work site as necessary.
o Per Section 6.11, the Contractor shall provide all necessary pumps, drains, ditches and other means for removing water from the site of the Work, and shall satisfactorily remove the water. Contractor shall provide additional pumps or drains at any place where the Contract Administrator deems them necessary.
o The City notified the Contractor via email and in person that, per the Contract, they needed to pump until the area was workable again. The Contractor stated that pumping would occur only once as a courtesy even after Section 6.11 was sent to the Contractor. The Contractor then requested a Change Order for pumping after they were shown that it was already a part of their contract.
o The Director of Engineering and Construction directed the Contractor to return to work while discussions were ongoing. The Contractor would not continue work after being directed, keeping citizens were being denied access to their driveways. The stop work order was issued before the issue was resolved.
o The email dated August 15, 2025 shows that the Contractor was wanting extra payment for pumping. See Exhibit 2. Also see Exhibit 3 for photo evidence of no pumping.
3. Contractor shall provide photos of the work on a monthly basis to the Contract Administrator showing the general condition of the work per section (SP 3.0). Details regarding photographs of the Work are specified in section 6.18 of the contract as well. The contractor did not call the CA to verify their work, the CA did not get clarifying questions, just request for payment after work had been installed.
4. The Contractor has not consistently followed the requirements for density testing.
o SP 5.0, more specifically SP 5.3, requires the Contractor to complete testing services, including moisture density curves for material to be used for subgrade construction and field density tests to subgrade at location(s) specified by the Construction Administrator. SP 5.3 requires at least one field density test be obtained each day as earthwork progresses.
o At the August 5, 2025 progress meeting, the Contractor admitted that he had not been performing density testing on subgrade.
5. The Contractor has repeatedly failed to complete the required saw cutting or only just scoured the surface throughout the duration of the project.
o SP 15.5.3 states "The Contractor shall saw cut the pavement at the extents designated by the City in a manner approved by the CA. Sawing shall be reasonably true to line and the depth of sawing shall be such that when removing the material there will be no undue under-breakage or shattering of the adjacent area."
o This deficiency was repeatedly addressed by the CA on site with the Contractor. It was also addressed in a meeting on site on 15 July . Nevertheless, the issue persisted until the Stop Work Notice was given on August 20, 2025.
o Photographs demonstrating the Contractor's failures are attached as Exhibit 3
o Due to improper saw cutting, the new concrete has been chipped, there are multiple instances of underbreakage, and several instances where new concrete had to be cut back and redone. Please see Exhibit 3 for photos.
6. The Contractor has repeatedly failed to properly remove concrete
o Contrary to stated specifications, the contractor is using an excavator bucket with teeth to pry up or chip out the concrete.
o SP 9.5.3 states "Pavement shall be saw-cut to the extent delineated by the City and in accordance with Standard Drawing STD ST 24. Saw the joint in a manner approved by the CA. Sawing shall be reasonably true to line and the depth of sawing shall be such that when removing the material there will be no undue under-breakage or shattering of the adjacent area."
o This deficiency was repeatedly addressed by the CA on site with the Contractor. It was also addressed in progress meetings on July 18, 2025, and August 5, 2025. Nevertheless, the issue persisted.
o Photographs demonstrating the Contractor's failures are attached as Exhibit 3.
7. The Contractor did not follow the plans and specifications to excavate 1 foot behind curb.
o The curb detail on sheet 3 shows 1 foot behind curb being excavated with proper backfill and compaction to 95% standard proctor density.
o The Contractor admits there had been no testing for compaction prior to or after 8/5/2025
o This deficiency was repeatedly addressed by the CA on site with the Contractor as documented in the observation reports in Exhibit 4 and in the photos in Exhibit 3. Contractor has started marking and excavating as of 7/29/2025 but has not completed the compaction as required in the contract.
8. Contractor is not following the Special Provisions or COBA specifications on calculating Unclassified Excavation or Aggregate Base Type A for Pay Applications. This is discussed in more detail in the Measurements section below.
o SP 34.5 Method of Measurement is clearly defined as, "The contract administrator will measure the volume of the compacted in-place Aggregate Base Type A, Type B, and Type C by multiplying the completed length of aggregate base by the area of the typical section shown on the plans." SP 45.5 states, "The contract administrator shall measure the unclassified Excavation in place." 34.6 states, "the accepted quantities of Aggregate Base, measured as provided above, will be paid for at the contract unit price as follows: Aggregate Base Type A....CUBIC YARD And SP45.6 states, "The accepted quantities, measured as provided above, will be paid for at the contract unit price as follows: Unclassified Excavation.... CUBIC YARD". This is an ongoing issue. Please see Exhibit 2 for email chain.
9. The Contractor has refused to install Expansion Joints, stating that Expansion Joints are not necessary.
o SP 10.5.4.2. states, "Expansion joints shall be placed at all street intersection radius at the last joint before a cul-de-sac." This was discussed in the field with the CA and again in a progress meeting on 5 August.
o This was an ongoing argument. See Exhibit 5 for the text conversation between the contractor and the CA. As a compromise, City agreed on August 5th that the Contractor need not do expansion joints because of ambiguous wording in the contract
10. The Contractor's finished concrete panels are failing in multiple areas
o The Contractor has stated it is not responsible for structural cracking as it is a result of the Contract specifications, which requires newly poured roadways be opened within 72 hours (SP 41.0).
* The contractor failed to follow the proper subgrade procedure as described in SP 34, the contractor failed to properly sawcut, and failed to properly dowel into several panels. These issues will cause structural cracking and the City requires that the driveways be high early concrete. The high early concrete will strengthen the concrete faster allowing for heavy loads to be on the concrete. The improper subgrade methods and other Contractor deficiencies will cause cracking and not the time limit of the road closure.
o The Contractor has also blamed failures on the subgrade being unsuitable.
* Subgrade issues are addressed in SP9.5.3.3 and SP 34.4.2.4. In an August 8, 2025 email from the CA (who collaborated with the project engineer and the Engineer of Record) to the Contractor stated that the Contractor must follow SP 34.4.2.4. in order to get to the proper moisture content to test. The hole that was tested was only open 24 hours (not 8 days as stated by the contractor). This was discussed through multiple email chains in August of 2025. Please see Exhibit 2.
11. Contractor has brought up subgrade concerns. Contractor has stated that the subgrade is not suitable for more than 4 ft deep.
o Contractor was given a way to remedy the unsuitable subgrade from the Engineer of Record, the Contract Administrator, the Director of Engineering and Construction, and the project engineer in several emails. Subgrade issues are addressed in SP9.5.3.3. For example, see the August 11, 2025 email from the Contract Administrator, who collaborated with the project engineer, Engineer of Record, and the Director of Engineer. It was again given later that same day. It was again stated on 14 August 2025. Exhibit 2.
o The contractor has refused to acknowledge the directive given and will not do any work without a change order with their terms of payment.
12. The Contractor has refused to vibrate the roadway and tamp the gutter.
o The Contractor has stated that vibration should not happen in roadways and has stated that he will only tamp the concrete. This is a violation of the Contract.
o SP 9.5.6.2 states ".. It shall be compacted by vibration or continuous tamping, spading or slicing. Care shall be taken to fill every part of the forms, to work the coarser aggregate back from the face, and to force the concrete under and around the reinforcement without displacing it. All concrete shall be thoroughly vibrated, except where specifically exempt in the specifications."
o This has been an ongoing issue, discussed by the CA and Contractor on site, on the phone, and during the August 5, 2025 progress meeting. The Parties agreed the Contractor shall tamp, but there could not be any honeycombing.
13. The contractor has attempted to be paid for additional work caused by damage of his own making.
o Section 6.9 of the contract states, "The Contractor shall be responsible for all damages caused by his equipment or operations." SP 8.0 states, "Contractor shall minimize roadway area used as much as possible and shall minimize damage to the existing roadway surface...".
o See Exhibit 3 for pictures of these issues
14. Contractor has refused to follow the direction of the Contract Administrator.
o Section 3.0 of the contract covers the responsibilities, duties, and authority. Contractor has tried to bypass the CA and the Construction division and has refused to follow the directives given.
o See Exhibit 2 for email chain of the contractor refusing to follow the direction of the CA.
15. During a period from May to August of 2025, the Contractor failed to have a superintendent on site every day.
o This was in violation of Section 6.4 of the Contract and addressed in several on site meetings between the City and the Contractor.
16. The Contractor refuses to put a form board at the end of a pour.
o SP 9.5.6.2 states "...Where necessary to stop placing concrete, the work shall be brought up in level courses and against a vertical stop board."
o The CA addressed the form board at the end of concrete pours in several progress meetings and conversations, culminating in the Contractor adamantly refusing to comply at the August 5, 2025 progress meeting.
Pay Application Issues
In addition to the deficiencies listed, there has been on-going disputes between the City and the Contractor as to how completed work should be measured and paid. Section 25.0 outlines how the Contractor will be paid for work completed.
* Section 25.2 states "The Contractor, in case of unit-priced items, will be paid for the actual amount of Work performed in accordance with the Plans and Specifications as shown by the final measurements." (emphasis added).
* Additionally, it should be noted that when Pay Applications are submitted for reimbursement, they are actually estimates of the work completed to date. Section 27.2 of the Contract discusses final payment terms, which states "All prior estimates and payments shall be subject to correction in the final estimate and payment."
o Regardless of how many times this has been pointed out to the Contractor, they have refused to accept the method of payment for line items and the Contract Administrator's right to correct the actual quantities installed when they are inaccurately submitted for approval.
o The Contractor continues to argue measurements despite the method being clearly defined in SP34.5 and SP 45
o Due to the continued disagreements in Pay Applications, the Contractor would not continue work and left citizens without access to their homes. See Exhibit 2 for email chain.
o On August 18, 2025, the Contractor stated it would not continue work without a change order specifying the terms of payment. See Exhibit 2.
* Section 14 addresses the Contractor's right to protest and requires the Contractor continue work without delay.
Project Communication and Cooperation Issues
Since inception, the Project has had communication and cooperation issues.
On several occasions the City has provided communication or direction to the Contractor. Whether from the assigned Contract Administrator or the Engineer on the project, those directions were ignored or rejected without proper reasoning. There have also been multiple times when the Contractor went directly to the Engineer of Record or personnel in Broken Arrow City Management instead of going through the proper chain of communication.
* Section 3.0 outlines the Contract Administrators Power and Duties and Section 6.0 outlines the Contractor's Duties and Responsibilities Regarding the Work. It is made very clear that Contractor and their assigned supervisor(s) should be working with the City appointed Contract Administrator and Project Engineer. The decisions and directions given by the Contract Administrator shall be followed. If there is a dispute related to the direction being given by the Contract Administrator there is a specific process which is to be followed. This process is outlined in Section 14.0 - The Contractors' Right of Protest. It does not include working around the Contract Administrator to obtain a different answer than what has already been decided. See Exhibit 2 for emails where the Contractor went around the City to talk directly to the engineer, specifically the August 12, 2025 email from the Engineer of Record.
* See also Exhibit 4 for all Weekly Reports pertaining to this project and the above mentioned issues.
All the above factors led to City eventually delivering a Stop Work Notice to the Contractor on August 20, 2025. See Exhibit 6. Digital copies of this letter were sent to the Contractor and printed copies of the Letter were delivered to the project site shortly after 12pm on August 20th.
Project Funds Remaining
* The current installed values have been established as shown in Exhibit 7, applicable 5% retainage has been withheld to further assist the completion of the contract.
* Damaged installed material due to not following the proper subgrade requirements will be withheld to finish the project.
* After applying the current installed values, withholding the damaged material cost, applying the 5% retainage, the total expended contract costs are $308,909.00 (once approved for payment of pay application 3); leaving $1,186,175.75 to finalize the project. See Exhibit 7.
Conclusions and Recommendations
According to Section 13 - City's Right to Terminate Contractor, the City has and retains the right to terminate the Contract for
* Section 13.1.6: If at any time the Engineer shall certify in writing to the City that the performance of the Work under this Contract is being unnecessarily delayed
* Section 13.1.7: If at any time the Engineer shall certify in writing to the City that the Contractor is willfully violating any of the conditions or covenants of this contract
* Section 13.1.8: If at any time the Engineer shall certify in writing to the City that the contractor is executing the Work in bad faith or otherwise not in accordance with the terms of this contract.
Based upon the above reported information, it is the opinion of City's Engineer that the contractor has unnecessarily delayed performance of the work, willfully violated the conditions of the contract, and executed work not otherwise in accordance with the terms of the contract. Furthermore, it is the recommendation of City's Engineering and Construction Department to initiate Section 13 termination proceedings with the Contractor with regard to this Contract (ST23310). If approved by City Council, the following steps will be taken:
* The City shall serve written notice upon the Contractor and its Surety of the City's intention to terminate the contract.
* In no satisfactory agreement is reached with the Contractor, the contract will be terminated
* The City will execute a final pay application to the Contractor with "as built" quantities established through project evaluation
* If the contractor's bonding agency fulfills the obligations, we anticipate that the remaining work on this contract can be completed within 120 days.
Exhibits Attached:
1. Preconstruction Meeting Minutes
2. Emails Between Contractor and City
3. Photos of Contractor Deficiencies
4. Weekly Construction Reports
5. Text Conversations between CA and Contractor
6. Official Letters Issued to Contractor
7. Finance Report for What is Still Owed vs Damage Installation
Cost: $0
Funding Source: 2018 Go Bond
Requested By: Charlie Bright, PE, Director of Engineering and Construction
Approved By: Michael L. Spurgeon, City Manager
Attachments: Exhibits 1-7 for Contract #23310 Termination Recommendations
Recommendation:
recommend
Termination of Contract #23310 Meadow Heights Concrete Panel Replacement and Repair project with Ellis Concrete Construction, LLC.
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