Agenda 11/09/2010 Item #16K 6
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Agenda Item No. 161<8
November 9, 2010
Page 1 of 10
EXECUTIVI;~Y
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.... , D to approve a global settlement agreement and mlltual re1ease for.e
:i~ CtuIo,Inc. v. Collier Collllly, Florida, Case No. 87-311-CA (IDa-.okalee
I eat Project No. 66842) and Collier CoIUIty v. Job 0uI0, llU:., Case No. 19-
~.b Hammock Road Project No. 601(9).
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That the Board of County. Commissioners approve a global settIement
iD1Utulli release for two cases styled John Carlo, Inc. v. Collier County, F1orida,
H-cA (I.mmokalee Road Improvement Project No. 66042) and Collier County v.
:'<i~ No. 09-8724-CA (Rattlesnake Hammock Road Project No. 60169).
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There ~ two construction ~ involving lohn Carlo, Inc. ("Carlo").
On February 5, 2007, lohn Carlo, Inc. ("Carlo"), filed a lawsuit against Collier County alleging
damages for delay, breaches of implied covenants and express terms of the contract, and refusal
to pay for construction itelmi relating to the Immokalee Road Improvement PIoject No. 66042.
Carlo claimed damages again$lf the County in the amount of approximately $4.6 million. Non-
binding arbittation on all claims under $250,000 has been ordered for Novembrelr, 29, 2010. Trial
of the remaining claims is ~ for Febroary14, 2011.
In October of 2009, Collier County filed a lawsuit against Carlo for breach of con1ract relating to
the Rattlesnake Hammock Road Project No. 60169, seeking $2,800,000.00 in damages from
Carlo. The suit was filed following Carlo7s 'having previously filed a notice of claim against the
County just under $10 million, which Carlo'then counterclaimed for. The case is set for trial
luly 19, 2011.
On Friday, October 22,2010, a full day of Mediation was held and a settlement reached, subject
to the "Board's approval. The cost of settlement is $4,300,000. Transportation has all but
approximately $58,000.00 of this proposed $4,300,000 in settlement in retainage and other
unexpended funds from these two Projects. The mMisuion was conducted with Car19's surety
and banker's representatives present. John Carlo is clearly in severe financia1CODdition; having
recently abandoned two constructionjobs in Orlando, and is in the process ofselling'its'8ssefs. It
is doubtful if the County continued to trial and prevailed, that it would be able to cO~QJ1 any
judgment The matters were handled by Jacqueline Hubbard, Litigation Section ~and Co-
Counsel Paul Ullom, oftbe CarIetoaFields law finn.'
The total amount claimed. by CadO in these 2 cases total $14,544,798t84. As. with "all
construction cases, these cases~l(.)Omplex,involving multiple claims, and include '~
witnesses. A ~.I ~:Of pre-trial work is left to be done, including at' IeIst 2S
depositions BDd a substaotia1 degree of motion wort. Trials of this nature gCDel'8lly . sev"
weeks aDd requiie the retention of outside construction experts. The County'$ ..mi~ ~
taking both cases through trial and the oourt-ordered arbitration (including attomey''';~'.
expert costs) is substantial, and will also require~iderable staff time as well Glvea.!' '.
;,i"'l* over $14.5 million in c~ and bas no real chance to collect on its' " "~;
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~i~Y recom~~" settlement, as Carlo will be receiving approximately only
$58,000 ht. fimds.
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~: Funds in the amount of $274,156.94 will come from .John '
retainage ~'on Immokalee Road project. $1,164,905.11 will Come from John,.
retainage account on Rattlesnake Hammock Road project. $2,802,758.44 (of which $914,
was a fina1bil1ing that was held based on litigation results) will come off an existing
order with John Carlo on the Rattlesnake Hammock Road PrOject. Additional func:Js,
the amount ofS58,179.51 will come from the Immokalee Road project. Source of .'
settlement will come 10m gas '~.JIIId irrp't fees.
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GROWTH MAN
with this Executive Sum~.
RECOMMEND~: That the Board of ,County Commissioners
settlement agreement and mutual release for the,C8SeS styled John Carlo, Inc. v.
Florida, Case No. 07-311-CA (Immokalee Road Improvement Project No. 6604. ,.
County v. John ~ bIc., Case No. 09-8724-CA (Rattlesnake Hammock Rrie4,
60169). The SettlemaJt ~t is attached hereto. .
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Prepared by: Jeffrey A.lOatzkow, County Attom~, and
JacqueIieo!:Williams Hubbard, Litigation Section Chief
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16K6
Recommendation to approve a global settlement agreement and mutual release for the
cases styled John Carlo, Inc. v. Collier County, Florida, Case No. 07 -311-CA (Immokalee
Road Improvement Project No. 66042) and Collier County v. John Carlo, Inc.. Case No. 09-
8724-CA (Rattlesnake Hammock Road Project No. 60169).
1119120109:00:00 AM
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COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
Meeting Date:
Agenda Item No. 16K6
November 9,2010
Page 3 of 10
Prepared By
Jacqueline W. Hubbard Assistant County Attorney Date
County Attorney County Attorney Office 10/28/20102:23:47 PM
Prepared By
Jeff Klatzkow County Attorney Date
10/28/20102:23:47 PM
Approved By
Nonn E. Feder, AICP Administrator - Transportation Date
Transportation Division Transportation Administration 10/28/20102:40 PM
. Approved By
Lisa Taylor ManagementlBudget Analyst Date
Transportation Division Transportation Administration 10/28/20102:57 PM
Approved By
Najeh Ahmad Director - Transportation Engineering Date
Transportation Division Transportation Engineering & 10/28/20102:59 PM
Construction Management
Approved By
Jacqueline W. Hubbard Assistant County Attorney Date
County Attorney County Attorney Office 11/1/20104:39 PM
Approved By
Jeff Klatzkow County Attorney Date
11/21201010:57 AM
Approved By
OMB Coordinator Date
County Manager's Office Office of Management & Budget 11/2120101:24 PM
. Approved By
Susan Usher Management/Budget Analyst, Senior Date
Office of Management &
Budget
Agenda Item No. 16K6
November 9,2010
Page 4 of 10
Office of Management & Budget
11/2120104:04 PM
Approved By
Mark Isackson
Office of Management &
Budget
Management/Budget Analyst, Senior
Date
Office of Management & Budget
11/2120104:16 PM
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Agenda Item No. 16K6
November 9,2010
Page 6 of 10
1.
Incorporation by reference. The Parties agree to adopt and incorporate the
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foregoing recitals, sometimes referred to as "Whereas clauses/' by reference into this Agreement
as though fully rewritten herein.
2. Non-admission of liability. It is understood and agreed that this Agreement is the
compromise of disputed claims, and that any payment made hereunder is not to be construed as
an admission of liability, fault or responsibility as to any claims or allegations on the part of any
party, which liability is and has been expressly denied.
3. Settlement Payment. In consideration of the releases set forth below, Collier
County agrees to make payment for the benefit of John Carlo, Inc., payable to Liberty Mutual
Insurance Company in the amount of $4,300,00.00 (Four Million Three Hundred Thousand
Dollars) no later than November 30, 2010.
4.
Releases.
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a County. County. on behalf of its Board of Commissioners, and its past, present
and future Commissioners, attorneys, agents, servants, contractors, subcontractors, suppliers,
representatives, insurers, successors in interest, and assigns of all of them, releases and forever
discharges Carlo, its predecessors, successors and/or assigns, affiliates, employees, former
employees, agents, attorneys, officers, directors, principals, shareholders, members, guarantors
and sureties from any and all claims of whatever nature or description whether arising from
contract, bond, indemnity, warranty, express or implied, in contract or tort, alleged in, relating to,
or arising from the Lawsuits or the Projects, except as otherwise provided in Paragraph 5 below.
b. Carlo. Carlo. on behalf of itself, its predecessors, successors and/or assigns,
affiliates, employees, former employees, agents, attorneys, officers, directors, principals,
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Agenda Item No. 16K6
November 9,2010
Page 5 of 10
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
this _ day of October, 2010, between the BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA (the "County") and JOHN CARLO, INC. ("Carlo") (the
foregoing parties to this Agreement shall be collectively referred to as the "Parties");
WHEREAS, Carlo and the County are involved in two lawsuits before the Twelfth
Judicial Circuit, Collier County, Florida, styled: (1) .John Carlo, Inc. v. Collier County, Florida,
Case No 07-0311; and (2) Board of County Commissioners, Collier County, Florida v. John
Carlo. Inc., Case No. 09-8724 (collectively, these lawsuits shall be referred to as the
"Lawsuits"); and
WHEREAS, the Parties' claims against one another in the Lawsuits arise from
. construction projects commonly known as the Immokalee Road 6 Lane Road Widening
("Immokalee") and the Rattlesnake Hammock Road Widening ("Rattlesnake"; collectively,
Immokalee and Rattlesnake shall be referred to as the "Projects"); and
WHEREAS, the Parties deny liability to one another for any and all claims and
counterclaims alleged in the Lawsuits and in connection with the Projects; and
WHEREAS, the Parties to this Agreement wish to fully settle and resolve all existing and
potential disputes pertaining to the claims, counterclaims and allegations made in the Lawsuits or
with respect to the Projects;
NOW, THEREFORE, in consideration of each and all of the mutual covenants, promises
and considerations set forth herein, the sufficiency of which is hereby acknowledged by the
Parties, the Parties do hereby agree as follows:
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Agenda Item No. 16K6
November 9,2010
Page 7 of 10
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shareholders, members, and all who claim through them, hereby releases and forever discharges
the County. its Board of Commissioners, and its past, present and future Commissioners,
attorneys, agents, servants, contractors, subcontractors, suppliers, representatives, insurers,
successors in interest, and assigns of all of them, from any and all claims of whatever nature or
description, whether now known or arising in the future, and whether arising from contract,
indemnity, warranty, express or implied, in contract or tort, alleged in, relating to or arising from
the Lawsuits or the Projects.
5. Claims Excluded From Release. The Parties hereby acknowledge and agree that
all warranties issued or relating to the Projects shall remain in full force and effect consistent
with the contracts for the Projects, and are in no way modified, abrogated or extended by this
Agreement. The Parties further acknowledge and agree that any claims and/or potential claims
. arising from latent defects existing in the Projects are express~y reserved and not waived.
6. Dismissal of Litigation With Prejudice. The Parties shall stipulate to the
dismissal of the Lawsuits dismissing with prejudice all claims and counterclaims in the Lawsuits.
The dismissals shall be filed by the Parties within five (5) business days of the payment described
in paragraph 3 of this Agreement. The Parties further acknowledge that this Agreement is
subject to the continuing jurisdiction of the Court for purposes of enforcement of the provisions
of this Settlement Agreement and Mutual Release.
7. Voluntary Execution/Role of Legal Counsel. The Parties acknowledge that this
Agreement is freely and voluntarily executed after they have been apprised of all relevant
information concerning the Agreement and that they have had the opportunity to consult with and
receive the advice of counsel in entering into this Agreement. In executing this Agreement, the
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Agenda Item No. 16K6
November 9,2010
Page 8 of 10
Parties acknowledge that they do not rely on any inducements, promises, or representations other .
than those contained herein. In this regard, the Parties acknowledge that this Agreement is the
product of mutual negotiation and no doubtful or ambiguous provision that may exist in this
Agreement is to be construed against any of the Parties based upon a claim that one of the Parties
drafted the Agreement, or that the language of the Agreement was intended to favor one of the
Parties.
8. Governing law. This Agreement shall be deemed to have been made and to be
performed, and shall be interpreted, construed and enforced, in accordance with the laws of the
State of Florida.
9. Multiple Counterparts. lbis Agreement may be executed by the Parties in
identical counterparts, which, taken together, shall constitute a complete original.
10.
Complete Agreement. The Parties acknowledge that in deciding to execute this
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Agreement and then in executing this Agreement, they have not relied upon any agreement,
statement or representation that is not specifically set forth herein, that this Agreement contains
the entire agreement between the Parties hereto regarding the resolution of their disputes, and
that the terms of the Agreement are contractual and not mere recitals.
11. Modifications. lbis Agreement cannot be amended, modified or amplified
except by agreement and written document, which is signed by all Parties hereto. No oral
statement made by any person shall operate to modify this Agreement in any manner or otherwise
affect its terms and provisions.
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Agenda Item No. 16K6
November 9,2010
Page 9 of 10
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12.
Severability. In the event that any term or provision of this Agreement is deemed
unenforceable or unlawful for any reason, the remainder of the Agreement shall be deemed
enforceable and in effect.
13. Enforceability. This Agreement is effective upon the date it is approved by the
Board of County Commissioners of Collier County, Florida, and as the Ex-Officio the Governing
Board of the Collier County Water-Sewer District.
14. Non-waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute a waiver of any such provisions.
15. Authority to Bind. The signatories hereto each warrant and represent that they
have the requisite authority to enter into this Agreement on behalf of the respective party.
IN WIlNESS WHEREOF, the undersigned hereby execute this Agreement on the date(s)
. set forth below.
ATTEST:
Dwight E. Brock, CLERK
BOARD OF COUNTY COMMISSIONERS
9F COLLIER COUNTY, FLORIDA
By:
By:
DEPUTY CLERK
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Agenda Item No. 16K6
November 9,2010
Page 9 of 10
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12.
Severability. In the event that any term or provision of this Agreement is deemed
unenforceable or unlawful for any reason, the remainder of the Agreement shall be deemed
enforceable and in effect.
13. Enforceability. This Agreement is effective upon the date it is approved by the
Board of County Commissioners of Collier County, Florida, and as the Ex-Officio the Governing
Board of the Collier County Water-Sewer District.
14. Non-waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute a waiver of any such provisions.
15. Authority to Bind. The signatories hereto each warrant and represent that they
have the requisite authority to enter into this Agreement on behalf of the respective party.
IN WIlNESS WHEREOF, the undersigned hereby execute this Agreement on the date(s)
. set forth below.
ATTEST:
Dwight E. Brock, CLERK
BOARD OF COUNTY COMMISSIONERS
QF COLLIER COUNTY, FLORIDA
By:
By:
DEPUTY CLERK
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Approved as to legal form and sufficiency:
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Agenda Item No. 16K6
November 9,2010
Page 10 of 10
JOHN CARLO, INC.
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NAAU~-AND TITLE ---.)
Liberty Mutual Insurance Company
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AND TITLE
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queIin W. Hubbard
gation Section Chief, Collier County Attorney's Office
17567945J
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