Agenda 07/12/2016 Item #16K4 7/12/2016 16.K.4.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a Settlement Agreement
in the lawsuit styled Collier County Board of County Commissioners v. F & H Electrical
Contractors, Inc., d/b/a F & H Contractors and Florida Power & Light (FPL), filed in the
Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 15-0284-CA), for
the total sum of$14,665.
OBJECTIVE: To approve the tentative settlement, in the lawsuit styled Collier County Board of County
Commissioners v. F & H Electrical Contractors, Inc., d/b/a F & H Contractors and Florida Power &
Light(FPL), for the total sum of$14,665 and authorize the Chair to execute the Settlement Agreement.
CONSIDERATIONS: On June 5, 2014, workers from F&H Contractors,while boring on behalf of FPL,
breached a Collier County wastewater line causing total damages in the amount of$17,378.48.
F & H disputes liability and asserts that they timely sent a utility locate request, through the locate
system, to the County. During deposition, F & H employees testified that prior to the boring occurring
they observed the County locate flags and a routine, County locate performed at the location. F & H
provided pictures of County locate flags, located in an area slightly away from the County's damaged
line, which were taken on the date of the incident. F & H asserts that they are not liable for boring
through the line as the utility was not properly located.
The County asserts that County staff placed locate flags in the vicinity, but only as a pre-caution, as staff
knew there was a County utility in the area,but was unsure of the exact location and wanted to put F &H
on notice. County asserts that,through the locate system, staff had requested F &H to return to the area,
prior to beginning boring, and provide a spray painted white line over the direct area of proposed boring
so that staff could perform a more detailed locate. County asserts that had F & H checked the locate
system, pursuant to Fla. Stat. Ch. 556.105, they would have seen the "white line" request,noticed that the
locate ticket was not closed by the County, and would have refrained from boring until the line was
properly located.
The parties attended Court Ordered Mediation on May 27, 2016. A tentative settlement, pending Board
approval, was reached with Defendants F & H and FPL agreeing to pay County $14,665 ($14,000 plus
$665 in mediator's fees) to resolve the lawsuit. The Wastewater Department and County Attorney's
Office recommend that the Board approve this Settlement Agreement.
FISCAL IMPACT: The recovered funds would be received into the Collier County Water Sewer
District Fund 408.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
item.
LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires a majority
vote for Board approval. -KLN
RECOMMENDATION: That the Board of County Commissioners approve and authorize the Chair to
execute the Settlement Agreement in the lawsuit styled, Collier County Board of County Commissioners
v. F&H Electrical Contractors, Inc., d/b/a F& H Contractors and Florida Power &Light (FPL), filed
in the Twentieth Judicial Circuit in and for Collier County, Florida(Case No. 15-0284-CA), for the total
sum of$14,665.
PREPARED BY: Kevin L.Noell,Assistant County Attorney
[15-0284-CA/1260035/1]
Packet Page-2276-
7/12/2016 16.K.4.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.4.
Item Summary: Recommendation to approve and authorize the Chair to execute a
Settlement Agreement in the lawsuit styled Collier County Board of County Commissioners v. F
& H Electrical Contractors, Inc., d/b/a F & H Contractors and Florida Power& Light (FPL), filed in
the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 15-0284-CA), for the
total sum of$14,665.
Meeting Date: 7/12/2016
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal, CAO Office Administration
7/1/2016 3:18:23 PM
Submitted by
Title: Legal Assistant/Paralegal, CAO Office Administration
Name:NeetVirginia
7/1/2016 3:18:25 PM
Approved By
Name: JacobsSusan
Title: Operations Analyst, Wastewater
Date: 7/1/2016 4:36:01 PM
Name:NoellKevin
Title: Assistant County Attorney, CAO General Services
Date: 7/1/2016 4:40:01 PM
Name: FinnEd
Title: Management/Budget Analyst, Senior, Office of Management&Budget
Date: 7/5/2016 9:39:50 AM
Name: KlatzkowJeff
Title: County Attorney,
Packet Page-2277-
7/12/2016 16.K.4.
Date: 7/6/2016 7:50:09 AM
Name: CasalanguidaNick
Title: Deputy County Manager, County Managers Office
Date: 7/6/2016 8:09:42 AM
Packet Page -2278-
7/12/2016 16.K.4.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred
to as the "Agreement and Release") is entered into and made on this day of
2016, by and between the BOARD OF COUNTY COMMISSIONERS,
COLLIER COUNTY,FLORIDA (hereinafter the"COUNTY"), F & H ELECTRICAL
CON I RACTORS, INC.,D/B/A F &H CONTRACTORS (hereinafter"F &H") and FLORIDA
POWER AND LIGHT (hereinafter "FPL"). (The parties to this action shall hereinafter be
collectively referred to as"Parties").
WITNESSETH:
WHEREAS, the Board has filed a law suit in the Twentieth Judicial Circuit in and for
Collier County, Florida against F & H and FPL for the recovery of damages caused by the
breaching of an 8" Force Main sewer line owned and maintained by the County located at a
certain address in Forest Hills Boulevard in Collier County,Florida on June 5,2014;and
WHEREAS, Parties, without any admitting any liability or fault, desires to settle the
lawsuit and any and all disputes that arise from, relate or refer in any way, whether directly or
indirectly, known or unknown, to the incidents described or allegations made in the Complaint
filed in the lawsuit; and
WHEREAS, Parties desire to reduce the settlement to a writing so that it shall be binding
upon Parties' respective owners, principals, elected officials, officers, employees, ex-employees,
agents, attorneys, representatives,insurers,spouses,successors,assigns,heirs and affiliates.
NOW THEREFORE in consideration of the mutual covenants, promises and
consideration set forth in this Agreement and Release, and with the intent to be legally bound,
Parties agree as follows:
[15-0284-CA/1262853/11 Page 1 of 6
Packet Page-2279-
7/12/2016 16.K.4.
1. Parties adopt and incorporate the foregoing recitals, sometimes referred to as
"Whereas Clauses", by reference into this Agreement and Release.
2. This Agreement and Release is contingent upon approval by the Board of County
Commissioners of Collier County,Florida.
3. In consideration of the resolution of all disputes or claims arising from or
referring or relating in any way, whether directly or indirectly, to the lawsuit, and for an in
consideration of the sum of Fourteen Thousand Dollars and 00/100 ($14,000.00)and payment of
County's portion of the mediator fee of$665.00, the receipt and adequacy of which is hereby
acknowledged by the County, County agrees to dismiss the lawsuit with prejudice.
4. In consideration of the resolution of the Lawsuit, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, Parties, on behalf of
themselves, their attorneys, agents, representatives, insurers, heirs, successors and assigns,
hereby expressly releases and forever discharges each other, as well as any and all of parties'
elected officials, officers, employees, ex-employees, agents, attorneys, representatives,
successors, assigns, insurers and affiliates from any and all claims, demands, causes of actions,
damages, costs, liens, attorney's fees, expenses and obligations of any kind or nature whatsoever
that has been asserted or could have been asserted in the Lawsuit or that arise from or relate or
refer in any way, whether directly or indirectly, to the Lawsuit or any incident, event or
allegation referred to or made in the Complaint in the Lawsuit.
5. Notwithstanding anything that may be to the contrary in Paragraph 4 of this
Agreement and Release, Parties agree that any of them (as well as any other persons or entities
intended to be bound) shall, in the event of any breach, retain the right to enforce the terms and
conditions of this Agreement and Release.
[15-0284-CA/1262853/l1 Page 2 of 6
Packet Page-2280-
7/12/2016 16.K.4.
6. Parties acknowledge and agree that this Agreement and Release is intended to and
shall be binding upon their respective owners, principals, officials, officers, employees, ex-
employees, agents, attorneys, representatives, insurers, successors, assigns, spouses, heirs, and
affiliates.
7. Parties recognize and acknowledge that this Agreement and Release memorializes
and states a settlement of disputed claims and nothing in this Agreement and Release shall be
construed to be an admission of any kind, whether of fault, liability, or of a particular policy or
procedure, on the part of and party.
8. Parties acknowledge and agree that this Agreement and.Release is the product of
mutual negotiation and no doubtful or ambiguous language or provision in this Agreement and
Release is to be construed against any party based upon a claim that the party drafted the
ambiguous provision or language or that the party was intended to be benefited by the
ambiguous provision or language.
9. This Agreement and Release may be amended only by a written instrument
specifically referring to this Agreement and Release and executed with the same formalities as
this Agreement and Release.
10. In the event of an alleged breach of this Agreement and Release, Parties agree that
all underlying causes of action or claims have been extinguished by this Agreement and Release
and that the sole remedy for breach of this Agreement and Release shall be for specific
performance of its terms and conditions or any damages arising from the breach. In this regard,
Parties further agree that the sole venue for any such action shall be in the Twentieth judicial
Circuit in and for Collier County,Florida in Naples,Florida.
1.1. This Agreement and Release shall be governed by the laws of the State of Florida.
[15-0284-CA/1262853/11 Page 3 of 6
Packet Page -2281-
7/12/2016 16.K.4.
IN WITNESS WHEREOF County, F & H and FPL have signed and sealed this
Agreement and Release as set forth below.
F &H Electrical Contractors,Inc.,D/B/A F &H Contractors
,r w
1 ,l'
Danigl F. Williams,Jt±
\,1) C
Title
Dated: L t ,2016.
STATE OF FLORIDA )
)SS:
COUNTY OF COLLIER )
The undersigned, being a Notary Public for the State of Florida, hereby certifies that
L ( }- th._ , I t t 0._ yid,...) S , appeared before me this ,,g g day of
, 2016 and is either personally known to me t.�.. or produced the
following identification: , and after having
first been sworn stated that he affixed his signature to the above and foregoing document, and
that the statements contained therein are true and correct to the best of his knowledge.
1.40TRY PUSLV: IN AND FOR THE STATE OF FLORIDA
i
Printed Name
Notary Pubilc Saar at FIoddi
+� MyCommislon 21000 �,ommtsslon Expires
of Exams 07123/2017
[15-0284-CA/1262853/1] Page 4 of 6
Packet Page-2282-
7/12/2016 16.K.4.
Florida Power&Light
•
ti
13y: ,yyr
4 t--4 A,+ ,^..te rti o
S C-(-- M AG OJT
Title
17)
Dated: tom = f ,2016
STATE OF FLORIDA )
)SS:
COUNTY OF COLLIER )
The undersigned, being a Notary Public for the State of Florida, hereby certifies that
Rom mA2tC MO
G,4�+I appeared before me this / 's rday of 3,J 2016
and is either personally known to me 17--or produced the following identification:
. and after having first been sworn stated that
he affixed his signature to the above and foregoing document, and that the statements contained
therein are true and correct to the best of his knowledge.
�l 67Z R 1/47' 141. ��r.�+.n .f�c J Ad.5
NOTRY PUBLIC IN AND FOR THE STATE OF FLORIDA
7 Printed Name
Commission Expires
JERRYWNdJAM DOWNS
* #,i * MY COMMISSIONIFF193270
EXPIRES:Apn112,2019
'io 0- Baled ihu 114et Nobly SeMcb
[15-0284-CA/1262853/1] Page 5 of6
Packet Page-2283-
7/12/2016 16.K.4.
AS TO COUNTY:
ATTEST:
DWIGHT E.BROCK,Clerk BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY,FLORIDA
By: By: _
Deputy Clerk DONNA FIALA, Chairman
Approved as to form and legality:
Kevin L.Noell
Assistant County Attorney
[15-0284-CA/1262853/I] Page 6 of 6
Packet Page-2284-