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Backup Document 01/11/2022 Item #16C 2 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP , TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later than Monday preceding the Board meeting. **NEW** ROUTING SLIP Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attomey Office. Route to Addressee(s) (List in routing order) Office Initials Date 1. 2. 3. County Attorney Office County Attorney Office 5;41 1 l2 /2.2_. 4. BCC Office Board of County tt,`►f'yf Commissioners le, ' ///,�d a 5. Minutes and Records Clerk of Court's Office / /12c/ I aoa)- -247pm PRIMARY CONTACT INFORMATION Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the addressees above,may need to contact staff for additional or missing i formation. Name of Primary Staff I'm �f�"°ChitAeu < �wIFAikty Phone Number x 6zJ Contact/ Department X gg 2 e Agenda Date Item was / . / Agenda Item Number / J //' Approved by the BCC / / / / Z� /6, Type of Document !!! Number of Original Attached crn t /1GR Documents Attached PO number or account number if document is to be recorded INSTRUCTIONS & CHECKLIST Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not appropriate. (Initial� PPlicable) 1. Does the document require the chairman's original signature? ✓ ,/,/A 2. Does the document need to be sent to another agency for additional signatures? If yes, provide the Contact Information(Name;Agency;Address; Phone)on an attached sheet. 3. Original document has been signed/initialed for legal sufficiency. (All documents to be signed by the Chairman,with the exception of most letters,must be reviewed and signed by the Office of the County Attorney. 4. All handwritten strike-through and revisions have been initialed by the County Attomey's ,n Office and all other parties except the BCC Chairman and the Clerk to the Board J�-1- 5. The Chairman's signature line date has been entered as the date of BCC approval of the document or the final negotiated contract date whichever is applicable. Si "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's fir signature and initials are required. LAN 7. In most cases(some contracts are an exception),the original document and this routing slip should be provided to the County Attorney Office at the time the item is input into SIRE. / Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be w re of your deadlines! 8. The document was approved by the BCC on / I ZZ- and all changes made during - N/A is not the meeting have been incorporated in the attach document. The County an option for p Attorney's Office has reviewed the changes,if applicable. this line. 9. Initials of attorney verifying that the attached document is the version approved by the -,�;lL. N/A is not BCC,all changes directed by the BCC have been made,and the document is ready for the / , an option for Chairman's signature. //.!, . this line. 16► C 2 MEMORANDUM Date: January 13, 2022 To: Jennifer Rainey, Operations Analyst Public Utilities Engineering & Project Mgmt. From: Martha Vergara, Sr. Deputy Clerk Minutes & Records Department Re: Settlement Agreement and Release Douglas N. Higgins, Inc. Attached for your records is one (1) original of the document as referenced above, (Item #16C2) adopted by the Board of County Commissioners on Tuesday, January 11, 2022. An original is being held in the Minutes & Records Department as part of the Official Records. If you have any questions, please feel free to contact me at 252-7240. Thank you. Attachment 16C 2 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (referred to hereinafter as the "Agreement and Release")is made and entered into this !l day ofia,-nua,ry,202 . ,by and between the Board of County Commissioners of Collier County,Florida,(referred to hereinafter as the"County")and Douglas N. Higgins, Inc., a for profit corporation registered to do business in the State of Florida with regional offices located at 4485 Enterprise Avenue,Naples,Florida 34104(hereafter referred to as "Higgins"). WITNESSETH WHEREAS, the County entered into Bid/Agreement No. 14-6213-71 (referred to hereinafter as the "Agreement") with Higgins on or about September 27, 2016, to build the Creekside Force Main Extension Phase I Project(hereinafter referred to as the"Project"); and WHEREAS, Higgins commenced the 173-foot long jack and bore operation under U.S. 41 (Bid Item 2.5) on or about January 25, 2017, after which approximately 50-feet of 36-inch diameter steel casing was installed; and WHEREAS, on or about January 25, 2017, the jack and bore failed and was unable to be completed by Higgins, in which Higgins claims that they incurred $113,424.68 in unreimbursed cost; and WHEREAS, disputes arose between the County and Higgins concerning the cause and responsibility of the jack and bore failure,which resulted in terminating all further work;and WHEREAS, Higgins otherwise successfully completed the remainder of the Project, the parties dispute the cause of the failure, and the County made payments in the total amount of $255,621.60 to Higgins,notwithstanding Higgins's failure to complete the jack and bore; and 16C 2 WHEREAS, the County and Higgins, without admitting any liability or fault by either of them, now seek to resolve all disputes because both the County and Higgins recognize the costs and uncertainties of litigation if the parties were to pursue such remedies; and WHEREAS, the County and Higgins intend through this Agreement and Release to resolve any and all claims that have been asserted or that could have been asserted by either the County or Higgins that arise from, or refer or relate in any way, whether directly or indirectly,to the Project with the exception of claims by the County for latent defects as is more fully stated in paragraphs 8 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 acknowledged, and with the intent to be legally bound,the County and Higgins mutually agree to the following: 1. The County and Higgins agree to adopt and incorporate the foregoing recitals, sometimes referred to as "Whereas clauses" by reference into this Agreement and Release. 2. For its part, the County agrees to release retainage withheld in the amount of $28,402.40 and make payment to Higgins in the amount of$83,350.00, such that the total compensation for the Project is$367,374.00($255,621.60 previously paid for completed work plus $28,402.40 previously withheld retainage plus$83,350.00 in settlement). This payment shall be made to Higgins no later than thirty(30)days after the effective date of this Agreement and Release. 3. For its part,Higgins has and hereby acknowledges that the jack and bore portion of the Project was not completed satisfactorily. 2 16C 2 4. Higgins agrees that in consideration of the County granting this Agreement and Release, Higgins shall submit a Final Pay Application in the amount of $0 to facilitate retainage release within fifteen (15) days of the execution of this Agreement. 5. Higgins further agrees that in consideration for the County's payment of$28,402.40 retainage and $83,350.00 settlement, Higgins shall and hereby does waive all claims against the County, whether known or unknown, that it may now have or may have in the future whether for time or money that in any way whatsoever relate, refer to or arise from the Project or Bid/Agreement No. 14-6213-71. 6. The County and Higgins agree that this Agreement and Release shall become one of the contract documents for purposes of the Project and Bid/Agreement No. 14- 6213-71 and shall operate to supersede and replace all prior agreements and understandings with respect to the specific settlement issues governed by this Agreement and Release. 7. Except for any claim to enforce the terms and conditions of this Agreement and Release, Higgins on behalf of itself,its officers,owners,employees,ex-employees, predecessors, successors, and assigns shall and hereby does fully, finally, unconditionally and forever 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 from any and all matter of action or actions, cause or causes of action, suits, debts, dues, sums of money, accounts, reckonings, covenants, charges, damages, obligations, liabilities, contracts, promises, judgments, executions, claims, 3 16C 2 complaints, legal or equitable, whether known or unknown, which Higgins has asserted, could have asserted or may have against the County that relate or refer in any way to or arise directly or indirectly from the Project or Bid/Agreement No. 14-6213-71 from now through the end of the world. 8. For its part,the County shall and hereby does fully and finally and unconditionally release, acquit,remise,satisfy and forever discharge Higgins from any claim,cause or causes of action relating or referring in any way to Higgins'performance of work for the Project or Bid/Agreement No. 14-6213-71 through the effective date of this Agreement and Release, provided that the County and Higgins agree that the County may and hereby does reserve its right to enforce the terms and conditions of this Agreement and Release as well as its right to recover all legal and equitable relief for: (1) any latent defects related to the Project of which the County could not reasonably have been aware as of the effective date of this Agreement and Release. 9. The County and Higgins hereby acknowledge and agree that this Agreement and Release shall only modify their respective rights, prerogatives, obligations and liabilities under the Project or Bid/Agreement No. 14-6213-71 to the extent expressly stated herein, and that all such rights prerogatives, obligations and liabilities otherwise remain fully intact and are hereby preserved. 10. This Agreement and Release shall be governed by the laws of the State of Florida. 11. 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. 4 p,0 ��a I6C 2 12, This Agreement and Release is freely and voluntarily executed by the County and Higgins after they have been apprised of all relevant information concerning this Agreement and Release and after they have received advice of their respective counsel. In executing this Agreement and Release, the County and Higgins do not 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 Higgins 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 either party 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. 13. The effective date of this Agreement and Release shall be the date upon which it is approved by the Board of County Commissioners of Collier County,Florida. 14. The County and Higgins acknowledge and assume the risk that additional,different, or contrary facts to the facts which they believe to exist may he 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 Higgins have executed this Agreement and Release as evidenced in the following signature blocks: 5 I 6 C 2 ATTEST: BOARD OF COUNTY COMMISSIONERS Crystal K. Kinzel,Clerk of Courts COLLIER COUNTY, FLORIDA And Comptroller.. ,., — (-1-} e By: 002400 LamAi 411 r By: --+� Attest as to Chairma' rk a ,urt Wiliam L. McDaniel, Jr., Chairman signature only.. t.3,°: Approved as to form and le ality: (...----- Scott R. Teac i Deputy County Attorney • 6 44 0N\k 16C 2 DOUGLAS N HIGGINS,INC. BY: D►\Jv �- ,v, H)6(1/S Print Name and Title vl C Pn Es►o v"y WITNESSES: (/ Gatti/ Sign d Nam tk'; Itc Prin ed Nam Si ned N e Dtt✓�n G+ri1-14-4L Printed Name 7 ( 0