Backup Documents 06/29/2004 S
BOARD OF COUNTY
COMMISSIONERS
SPECIAL MEETING
.June 29, 2004
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
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SPECIAL MEETING
AGENDA
June 29,2004
9:00 a.m.
Donna Fiala, Chairman, District 1
Fred W. Coyle, Vice-Chair, District 4
Frank Halas, Commissioner, District 2
Tom Henning, Commissioner, District 3
Jim Coletta, Commissioner, District 5 (via telephone)
NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM
MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER
WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE
AGENDA ITEM TO BE ADDRESSED.
COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED, REQUIRES
THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING
ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE
BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO
THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT.
REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON
THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION
TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF
THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS".
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD
WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO,
AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD
OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE
TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
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June 29, 2004
ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO FIVE (5)
MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN.
IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY
ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING,
YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF
CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY
FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST
TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED
LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN
THE COUNTY COMMISSIONERS' OFFICE.
1. Pledge of Allegiance
2. Agenda
A. Recommendation to approve a Settlement Agreement with Mitchell & Stark
Construction Company, Inc. to cover their cost increases due to delays in the
project for the construction of a Sewer Force Main Interconnect along Santa
Barbara Boulevard and Logan Road fTom Radio Road to Vanderbilt Beach
Road; Bid 03-3534, Project 731321, in the amount of$353,249.99.
Approved - 5/0
B. It is requested that this item be continued to the Julv 27,2004 BCC
Meetim!. Board consideration and determination as to Declaration of
Emergency and Adoption of Amendment of the False Alarm Ordinance,
Collier County Ordinance No., 97-8, as amended.
Continued to the July 27, 2004 BCC Meeting
3. Adjourn
INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD
BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774-8383.
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June 29, 2004
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MEMORANDUM
Date:
June 29, 2004
To:
Phil Gramatges, Sr. Project Manager
PUED
From:
Linda A. Houtzer, Deputy Clerk
Minutes & Records Department
Re:
Settlement Agreement wi Mitchell & Stark
Construction Company
Please find one (1) original document, as referenced above,
approved by the Board of County Commissioners on Tuesday,
June 29, 2004 (Agenda Item #lA) .
An original is being retained in Minutes and Records and
a copy is being sent to the Finance Department.
If you should have any questions, please call me at 774-
8411.
Thank you.
Enclosure
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement and Release") is made and
entered into this '1.~ It\' day of JWle, 2004 by and between the Board of COWlty
Commissioners of Collier COWlty, Florida, (the "CoWlty") and Mitchell & Stark
Construction Company, Inc., (the "Contractor").
WITNESSETH
WHEREAS, bids for Contract 03-3534 for what is sometimes referred to or
known as the "Santa Barbara Force Main Project" were opened on July 25,2003;
WHEREAS, the Contractor tendered a bid of$6,126,324.00 for Contract 03-3534
and was the apparent lowest, qualified and responsive bidder;
WHEREAS, on September 23, 2003, the COWlty awarded the work under
Contract 03-3534 to the Contractor;
WHEREAS, the County was Wlable to issue a Notice to Proceed for the work for
the Santa Barbara Force Main Project Wltil March 26,2004;
WHEREAS, the Contractor has demonstrated that significant increases in the
costs of materials and equipment occurred between September 23, 2003 and March 26,
2004 and has formally requested that the COWlty compensate it for these added costs;
WHEREAS, the Contractor contends that because the work on the Santa Barbara
Force Main Project was suspended for more than six (6) months, it is entitled to be
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compensated for the increases in costs of materials and equipment in consideration for
foregoing the Contractor's alleged right to terminate Contract 03-3534;
WHEREAS, the Contractor also contends that it is entitled to an overhead and
profit component in connection with the increased costs for materials and equipment;
WHEREAS, the County disputes that the Contractor has any right to terminate
Contract 03-3534, disputes the Contractor's claims for overhead and profit and further
contends that the Contractor is now in material breach of Contract 03-3534 for its refusal
or failure to commence or make progress on the work following issuance of the Notice to
Proceed;
WHEREAS, the County and the Contractor without admitting any liability or
fault by either of them, nevertheless recognize the cost and Wlcertainties of litigating
these issues and now desire to fully and finally resolve any and all claims, known or
Wlknown, that have been asserted or could have been asserted by the Contractor up to and
through the date of this Agreement and Release that relate or refer in any way to Contract
03-3534, the Santa Barbara Force Main Project, or the time of commencement of work
under Contract 03-3534, including but not limited to all claims for increased costs of
materials and equipment, claims for overhead and profit associated with increased costs
for materials and equipment, time extensions, and any and all other claims, whether now
known or unknown, that relate or refer in any way to or that have arisen directly or
indirectly ITom Contract 03-3534 or the Santa Barbara Force Main Project through the
effective date of this Agreement and Release;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
considerations set forth in this Agreement and Release, the sufficiency of which is hereby
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acknowledged, and with the intent to be legally bound, the COWlty and the Contractor
mutually agree to the following:
1. The County and the Contractor agree to adopt and incorporate the
foregoing recitals, sometimes referred to as "Whereas clauses" by reference into this
Agreement and Release.
2. The County agrees:
(a) To pay the Contractor an additional $353,249.99 on
Contract 03-3534 for the increases in costs and materials
and equipment specifically and expressly reflected on
Exhibit A to this Agreement and Release.
(b) To waive and release any claim it may have against the
Contractor for material breach based upon the Contractor's
contended refusal or failure to commence or make progress on the
work Wlder Contract 03-3534 in a timely fashion following the
issuance of the Notice of Commencement, but only to the
extent that this release would apply to untimely commencement
of or progress on the work under Contract 03-3534 through
the effective date of this Agreement and Release.
3. The Contractor agrees:
(a) To waive and release any claim it contends it may have for
overhead and profit that is connected to or refers or relates
in any way whatsoever to the increases in costs of materials
and equipment reflected in Exhibit A or to the delay in the
issuance of the Notice to Proceed under Contract 03-3534
or any other event or circumstance referring or relating in
any way whatsoever to Contract 03-3534 or the Santa Barbara
Force Main Project through the effective date ofthis
Agreement and Release.
(b) The Contractor also agrees to waive and release any and all
other claims it may have under Contract 03-3534 which
have arisen through the effective date of this Agreement
and Release, whether now known or Wlknown and
regardless of nature or kind, including without limitation any
claims for time extensions.
(c) The Contractor also acknowledges and agrees that in
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consideration for this Agreement and Release, the Contractor has
already received additional time to complete the work
under Contract 03-3534 on the Santa Barbara Force
Main Project and that the date of final completion
for Contract 03-3534 is now April 1, 2005 and the
date of substantial completion for Contract 03-3534 is now
March 2,2005. The Contractor further acknowledges and
agrees that, with the exception of these modifications, the
Contract Time and Liquidated Damages provisions set
forth in Section 5 ofthe Construction Agreement for the
Santa Barbara Force Main Project remains in full force
and effect and shall be measured by the agreed
substantial and final completion dates set forth in this
Agreement and Release.
4. The County and the Contractor agree that this Agreement and Release
shall become one of the Contract Documents under Contract 03-3534 for the Santa
Barbara Force Main Project and shall operate to supercede and replace any and all prior
agreements and Wlderstandings with respect to the specific issues and disputes governed
by this Agreement and Release.
5. Except for any claim to enforce the terms and conditions of this
Agreement and Release, the Contractor shall and hereby does fully and finally and
Wlconditionally release, acquit, remise, satisfy and forever discharge the County, its
elected officials, officers, employees, former employees, attorneys, agents,
representatives, predecessors, successors, insurers, sureties and assigns ITom any and all
matter of action or actions, cause or causes of action, suits, debts, dues, sums of money,
accoWlts, reckonings, covenants, charges, damages, obligations, liabilities, contracts,
promises, judgments, executions, claims, complaints, legal or equitable, whether known
or unknown, which the Contractor has asserted or could have asserted against the COWlty
relating in any way to or arising directly or indirectly ITom Contract 03-3534 or the Santa
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Barbara Force Main Project up to and through the effective date of this Agreement and
Release, including without limitation any claims for overhead and profit, time extensions
or cost increases except as may be expressly provided for in this Agreement and Release.
6. For its part, the County shall and hereby does fully and finally and
Wlconditionally release, acquit, remise, satisfy and forever discharge the Contractor ITom
any claim, cause or causes of action relating or referring in any way to the Contractor's
refusal or failure to commence or make progress on the work under Contract 03-3534 for
the Santa Barbara Force Main Project through the effective date of this Agreement and
Release, provided that the County reserves its right to enforce the terms and conditions of
this Agreement and Release.
7. The County and Contractor hereby acknowledge and agree that this
Agreement and Release shall only modify their respective rights, prerogatives,
obligations and liabilities under Contract 03-3534 to the extent specifically and expressly
stated herein, and that all such rights, prerogatives, obligations and liabilities otherwise
remain fully intact and are hereby preserved.
8. This Agreement and Release shall be governed by the laws of the State of
Florida.
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. This Agreement and Release is ITeely and volWltarily executed by the
County and the Contractor after they have been apprised of all relevant information
concerning this Agreement and Release and after they have received advice of their
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respective counsel. In executing this Agreement and Release, the County and the
Contractor do no rely on any inducements, promises, or representations other than the
promises or representations set forth in this Agreement and Release. In this regard, the
County and the Contractor acknowledge that this Agreement and Release is the product
of mutual negotiation and no doubtful or ambiguous provision that may exist in this
Agreement and Release is to be construed against any party either based upon a claim
that the party drafted the ambiguous language or that the language in question was
intended to favor one party or the other.
11. The effective date of this Agreement and Release shall be the date upon
which it is approved by the Board of COWlty Commissioners of Collier County, Florida,
Ex-Officio the Governing Board of the Collier County Water-Sewer District or, to the
extent applicable, the COWlty Manager.
12. The County and Contractor acknowledge and assume the risk that
additional, different or contrary facts to the facts which they believe exist may now exist
or may be discovered after this Agreement and Release has been entered into, and they
agree that any such additional, different or contrary facts shall in no way limit, waive,
affect or alter this Agreement and Release.
IN WITNESS WHEREOF, the County and the Contractor have executed this
Agreement and Release as evidenced in the following signature blocks:
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ATTEST:
Dwight E. Brock, CLERK
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Printed Name
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BOARD OF COUNTY CQMMISSIONERS '<,
OF COLLIER COUNTY, ,f'LORIDA AS
EX-OFFICIO THE GOV:BRNING BODY
OF THE COLLŒR COUl'fr.y
WATER-SEWER DISTRI"CT' "
By: DOl~¿~"'"''''
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MITCHELL & STARK
CONSTRUCTION COMPANY, INe.
By:
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NAME AND TITLE
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