Elkhart County accepts substantial completion for new courts facility, withholdings remain for punch list and claims

The Elkhart County Board of Commissioners accepted a certificate of substantial completion for the county's new courts facility during its Sept. 15 meeting, starting warranty periods for finished work while keeping holdbacks for remaining items and contractor disputes.

County Attorney Steve Olsen told commissioners that Performance Services Inc., the primary contractor, submitted a notification of substantial completion dated July 30, 2025. He said the county will begin warranties for work completed as of that date while warranties for items still being finished will begin as those items are completed.

Olsen said the project's punch list has a value of $356,000. Under the contract, the county is withholding 200% of the remaining punch-list value, equal to $712,000, until final completion. He said there are two pending subcontractor-related withholdings of $313,478.37 and $1,217,129.79 that the county is holding to protect subcontractor payments while disputes are resolved.

Olsen also described previously agreed and prospective damages under contract amendment number 5. He said $246,511.27 was withheld as agreed damages for a delay from Jan. 17, 2025, to May 25, 2025. The county is also withholding $132,000 in liquidated damages for the period from May 25, 2025, to the project's substantial completion on July 30, 2025. Because final completion has not been reached, the county and contractor have estimated additional liquidated damages and set a tentative final completion date of Nov. 30, 2025; the county identified an additional $280,000 to withhold as an estimate for final-completion liquidated damages.

Olsen emphasized that the outstanding items do not prevent courthouse operations: "It does not mean that the county courthouse cannot operate. It does not mean that we are not fully functional from that perspective," he said. He said the county will continue to monitor corrections of defective work and that the contractor remains responsible for correcting defects.

A commissioner moved to accept the certificate of substantial completion subject to the terms Olsen described; the motion passed with the board voting in favor.

The county will keep the identified withholdings until final completion and resolution of pending claims. Once final completion is accepted and outstanding matters resolved, withheld funds can be released according to the contract terms and any negotiated adjustments.

The county attorney and county administration will continue to work with Performance Services Inc. and subcontractors to resolve punch-list items, pending claims and to confirm the final completion date.