WEIRTON - The general contractor for the earthwork done at the Weirton port, Kokosing Construction Co., has filed a mechanics lien for $513,350 because it hasn't been paid, a claim Weirton Area Port Authority Chairman B.J. DeFelice is disputing.
Kokosing General Counsel Mike Currie said the mechanics lien, filed in Brooke County in March, is a tool typically used to "assert a claim against real property for amounts due for labor and material used in furtherance" of a project.
The lien is against property in Weirton's Half Moon Industrial Park - 5.962 acres housing the administration and maintenance building, and 0.45 acres where the petroleum fluids unloading station is located - currently occupied by the port.
Notice of the lien was given to Go Green Recycling and Center Point Terminal Co., the real estate holding arm for APEX Oil, as well as the Weirton Area Port Authority.
Go Green originally had the option to buy the 6.5-acre parcel occupied by the port, with plans to join WAPA's private investment group, Tri State Port Management. That plan fell through, however, so Center Point instead acquired the property and planned to eventually resell it to the port in exchange for a parcel APEX needed for its expansion.
WAPA is leasing the 6.5-acre site for $6,000 a month, according to a May 2012 resolution passed by the WAPA board of directors.
The site work done by the Westerville, Ohio, based contractor for the port included a transfer pad as well as a retention pond, storm sewers, catch basins and downspout collection lines.
Currie said Kokosing has a purchase order, signed by DeFelice, for around $800,000, "and we performed about $550,000 worth of work for which we have not been paid."
Currie said port officials had, at various times, told them grant money, other federal funding or private investment dollars would be used to pay Kokosing for the work it was doing.
"(They said) various sources of funding would be coming into the port authority from which we were to be paid," Currie said. "...Either it wasn't true or it didn't happen."
If the debt remains unpaid, Currie said the company eventually will be forced to file suit.
"We have to (file suit) within a defined period of time under the statute," he said. "I think the date is sometime in September."
DeFelice previously had said that individuals or companies that hadn't been paid by WAPA or its affiliates either weren't under contract or hadn't completed the terms of their agreement, but Currie said neither applies in the case of Kokosing.
"That would not be consistent with representations made to us by (DeFelice), by Karl Keffer and others," he said. "We did everything they asked of us but we weren't paid, so we left."
DeFelice, however, contends there's a "complete disagreement on what expectations were, what the deliverable was. They didn't meet the process."
He also said documentation supports that "they were financing the project, not invoicing us."
The lien is the second court action that's come to light claiming non-payment by WAPA: A year ago, Bridgeport, W.Va., based Citynet sued WAPA in Hancock County Circuit Court for more than $221,000 it claims it's owed for work done on a fiber optic network allegedly commissioned by Karl Keffer, a port adviser who last week DeFelice confirmed was named WAPA's interim director based on his "background in port development, federal contracts and federal programs."
The port's response to the March 2012 Citynet suit had stated that "...Karl Keffer is not an authorized agent or representative of the defendant, and cannot legally bind this defendant and his actions or omissions are not governed, controlled or directed by defendant, although defendant is aware that he had discussions with (Citynet)."
DeFelice said that "contractors are following compliance of the board and they're complaining about it. A lot of it will be covered in private equity and bond closing, when we close on the financing," he said.
The city of Weirton, meanwhile, passed a resolution at its May meeting calling on West Virginia Public Port Authority Executive Director Doug York to scrutinize the local port's operation and, if cause is found, to replace its officers and directors, saying the state port authority has a "moral and ethical obligation" to the people of Weirton to address questions surrounding the port's organizational structure, "including facts about their subsidiaries, financial information, cash management and transparency, background history of the principals involved, ... allegations of non-payment or delinquent payment to vendors, allegations of non-payment of employees, clarification of employee classifications, reports of alleged threats of Eminent Domain as a means to acquire property, statements of unfounded authority to other parties and authorities, and other items of concern."
In February, city officials had joined with county leaders to petition the state Legislature to order a post-legislative audit. When jurisdictional concerns arose, Auditor Glen Gainer's office instead stepped in to initiate an audit of the Weirton port as well as others in West Virginia.
That audit is still in progress, York said in a conversation earlier this week.
(Harris can be contacted at firstname.lastname@example.org)