Agenda 10/22/2024 Item #16J 2 (Approve a partial release of funds held in retention as part of the Mediated Settlement Agreement )10/22/2024
Item # 16.J.2
ID# 2024-1298
Executive Summary
*** This item continued from the October 8, 2024, BCC Meeting. *** Request that the Board approve a $300,000 partial
release of funds held in retention as part of the Mediated Settlement Agreement entered into by Collier County, Florida
and Manhattan Construction Florida, Inc., on July 25, 2023, pertaining to the construction of the Paradise Coast Sports
Park.
OBJECTIVE: To obtain Board approval to release $300,000 (75%) of the $400,000 of funds held in retention for
punch list items remaining to be completed for three phases of construction of the Paradise Coast Sports Park (“PCSP”)
in accordance with the Mediated Settlement Agreement entered into by Collier County, Florida (“the County”) and
Manhattan Construction Florida, Inc., (“Manhattan”) on July 25, 2023 (Agenda Item 11.A).
CONSIDERATIONS:
Background
On February 13, 2018 (Item 16.D.21) the County entered into Agreement No. 17-7198 with Manhattan for Construction
Management at Risk (“CMAR”) services for the pre-construction phase and a series of six (6) amendments thereto
(collectively, "the Agreement") for the construction phases of the PCSP. The Agreement between the parties provides
for a Dispute Resolution procedure under Article XVI, which requires the parties to engage in negotiation to make a
good faith effort to resolve disputes arising during the Agreement prior to initiating any action or legal proceeding. After
all good faith discussions to resolve ongoing payment and performance disputes that deterred the ability to advance the
project through the pending project Phases 1A, 1B, and 2 were unsuccessful, the parties agreed to participate in the
mediated dispute process before a Circuit Court mediator certified by the State of Florida as authorized by the
Agreement.
To induce a full settlement and resolution of the outstanding claims, the parties negotiated a proposed resolution and
entered into a Mediated Settlement Agreement on July 25, 2023 (Agenda Item 11.A). In part, the Settlement
Agreement provides:
The County will pay to Manhattan in full satisfaction of Phase 1A, Phase lB, and Phase 2 the sum of eleven million two
hundred ninety-six thousand five hundred dollars ($11,296,500), subject to the Board's approval, within 20 business
days. Of that sum, the County will withhold four hundred thousand dollars ($400,000) as a retention of funds, which
will be released once Manhattan has satisfied all remaining punch list items further described in numbered paragraph
7(a) of the Settlement Agreement. The punch list items will be completed within ninety (90) days from the date after
payment of the settlement funds. Payment of the retention funds will be paid at 50%, 75%, and 100% stages of
completion of the remaining punch list. Manhattan will commit its best efforts to resolve an existing payment issue it
has with an underground subcontractor, Jensen Underground Utilities, Inc., who has refrained from performing work to
the detriment of the project due to the assertion of an escalation claim more than $600,000. Payment of the entirety of
that sum will satisfy the remaining contract balances for those three phases and extinguishes all claims that Manhattan
could have asserted against the County. (emphasis added)
Payment to Manhattan in the amount of ten million eight hundred ninety-six thousand five hundred dollars
($10,896,500) was made by the County on August 15, 2023, within the twenty (20) business days stipulated by the
Settlement Agreement, and four hundred thousand dollars ($400,000) was held in retention for the remaining punch list
items to be completed by Manhattan within ninety (90) calendar days after the initial payment is made by the County.
Currently
On August 5, 2024, Manhattan submitted an invoice to the County in the amount of $300,000 for the completion of 75%
of the remaining punch list items from the Settlement Agreement. The request for payment was submitted 356 days
after payment was remitted by the County, which is 266 days past the date that all punch list items should have been
completed, as stipulated by the Settlement Agreement. The delay in timely completing the punch list items is due to a
number of factors attributed to both parties and some uncontrollable external factors, such as FPL’s inability to timely
complete work needed to complete the punch list tasks. The remaining 25% retainage held by the county is being
withheld subject to Manhattan signing off on the final inspection, closing the permits that currently remain under its
Page 6433 of 7162
10/22/2024
Item # 16.J.2
ID# 2024-1298
name and delivery of the close-out documents. Subject to closing those final permits and the close-out documents, with
the Board’s approval of this item, the Punch List tasks required under the Settlement Agreement will be concluded and
the remaining retainage can be paid, less $3,500 for Punch List items 93 and 97, which Manhattan will not be
addressing.
FISCAL IMPACT: Funding is provided within the Sports Complex Capital Project Fund 3007, projects 50156. No
budget amendment or further appropriation is necessary.
GROWTH MANAGEMENT IMPACT: This action will result in no growth management impact.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote for Board
approval. —SRT
RECOMMENDATIONS: Request that the Board approve a $300,000 partial release of funds held in retention as part
of the Mediated Settlement Agreement entered into by Collier County, Florida and Manhattan Construction Florida,
Inc., on July 25, 2023, pertaining to the construction of the Paradise Coast Sports Park.
PREPARED BY: Derek M. Johnssen, Finance Director Clerk of the Circuit Court & Comptroller
ATTACHMENTS:
1. Manhattan Settlement Agreement Item #11A
Page 6434 of 7162
11A
MEDIATED SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (hereinafter referred to as "Agreement") is made and
entered into by and between Collier County, Florida ("County"), on the one hand, and Manhattan
Construction Florida, Inc. ("Manhattan"), on the other hand. The County and Manhattan shall
hereinafter be collectively referred to as the "Parties".
WHEREAS, the County and Manhattan entered into a contract #17-7198 for Construction
Management at Risk Construction Phase Services for Collier County Sports Complex, and a
series of six (6) amendments thereto (collectively, "Contract") for the construction of the Collier
County Sports Complex;
WHEREAS, any reference to a "Phase" refers to any Phases defined specifically within
the Contract;
WHEREAS, a dispute arose between the Parties in connection with the construction of
the Collier County Sports Complex (the "Dispute");
WHEREAS, the Parties have resolved their differences and desire to reduce their
settlement understanding to a writing so that it shall be binding upon the County, as well as its
representatives, commissioners, principals, officers, employees, ex -employees, agents,
successors, assigns, grantees and affiliates; and upon Manhattan, as well as its owners,
principals, officers, employees, ex -employees, agents, representatives, successors, assigns,
grantees and affiliates.
NOW THEREFORE, in consideration of the foregoing premises and the following mutual
promises (the receipt and sufficiency of such consideration being acknowledged by all Parties),
the Parties hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated by
reference.
2. Effective Date. The "Effective Date" of this Agreement is the date the last of the
Parties has executed the Agreement.
3. Dental of Liability. No Party is admitting wrongdoing, fault, or liability of any
nature by entering into this Agreement.
4. Payment. County shall pay to Manhattan the total sum of eleven million two
hundred ninety-six thousand five hundred dollars ($11,296,500), subject to the Board of County
Commissioner approval by Collier County, at the next regularly scheduled meeting on July 11,
2023, If the board approves such Payment at the July 11, 2023, board meeting, County shall pay
Manhattan within twenty (20) business days. Payment may be made by check or wire, with wire
instructions to be provided to Counsel for County. County will withhold four hundred thousand
dollars ($400,000) as a retention out of the above -described payment, which will be released
under the terms of Paragraph 7(a) of this Agreement,
5. Manhattan Release and Discharge. Except for the obligations set forth herein,
Manhattan hereby releases, acquits, satisfies, and forever discharges County (including any and
all employees, officers, directors, successors, assigns, legal representatives, insurers, attorneys
and agents of County) of and from any and all, and all manner of action and actions, cause and
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Page 6435 of 7162
i1A
causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, the Contract, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims, and demands whatsoever, in law or in
equity, which Manhattan had, now has, or which any employees, officers, directors, successors,
assigns, legal representatives, insurers, attorneys or agents of Manhattan, hereinafter can, shall
or may have arising out of, or relating to the Dispute from the beginning of the world to the day of
this Agreement. Except for the obligations set forth herein, Manhattan hereby release, acquit,
satisfy, and forever discharge County (including employees, officers, directors, successors,
assigns, legal representatives, insurers, attorneys and agents of County) of and from any and all,
and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, the Contract, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions, claims, and
demands whatsoever, in law or in equity, which Manhattan ever had, now has, or which any
employees, officers, directors, successors, assigns, legal representatives, insurers, attorneys,
agents, heirs or assigns of Manhattan, hereinafter can, shall or may have arising out of, or relating
to the Dispute from the beginning of the world to the day of this Agreement. This Release does
not affect the parties rights and obligations under this Agreement.
6. County Release and Discharne. Except for the obligations set forth herein,
County hereby releases, acquits, satisfies, and forever discharges Manhattan (including any and
all employees, officers, directors, successors, assigns, legal representatives, suret(ies), insurers,
attorneys and agents of Manhattan) of and from any and all, and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, the Contract, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims, and demands whatsoever, in law or in
equity, which County had, now has, or which any employees, officers, directors, successors,
assigns, legal representatives, insurers, attorneys or agents of County, hereinafter can, shall or
may have arising out of, or relating to the Dispute from the beginning of the world to the day of
this Agreement. Except for the obligations set forth herein, County hereby release, acquit, satisfy,
and forever discharge Manhattan (including employees, officers, directors, successors, assigns,
legal representatives, insurers, attorneys, surret(ies) and agents of Manhattan) of and from any
and all, and all manner of action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants, the Contract,
controversies, agreements, promises, variances, trespasses, damages, judgments, executions,
claims, and demands whatsoever, in law or in equity, which County ever had, now has, or which
any employees, officers, directors, successors, assigns, legal representatives, insurers,
attorneys, agents, heirs or assigns of County, hereinafter can, shall or may have arising out of, or
relating to the Dispute from the beginning of the world to the day of this Agreement. This Release
does not affect the parties rights and obligations under this Agreement.
7. Termination Agreement. Manhattan and County agree to terminate their
contractual relationship and obligations therein related to the Dispute, as well as the Government
Business Park Contract, which will additionally be terminated for convenience by mutual
agreement and there is no outstanding balance due, subject to the foregoing existing obligations:
Punch List. All items in the existing Punch List in Phase 2 ("Punch List") shall
be completed by Manhattan within ninety (90) calendar days after Payment of
this Agreement (attached as Exhibit A). Manhattan agrees to manage the sub-
contractors thereunder. In addition to the items on this Punch List, Manhattan
agrees to additionally make repairs on the stadium roof area that was a part of
Phase 1. This Punch List and the roof repair will be billed in three increments,
2
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Page 6436 of 7162
11A
at fifty percent (50%), seventy-five percent (75%), then one hundred percent
100%) at the amounts allocated by mutual agreement by the attorneys for
County and Manhattan. It is agreed that Manhattan will commit their best efforts
to expedite the Punch List items as to Jensen Underground.
b. Close -Out Documents. As used herein, the Close -Out documents means the
product brochures, product/equipment maintenance and operation instructions,
manuals, and other documents/warranties, as -built record documents, affidavit
of payment, release of lien and claim, as may be further defined, identified, and
required by the Contract. Manhattan shall provide and supply all Close -Out
Documents for Phase 2 to County as well as the As -Built documents for Phase
1.
8. Authorily to Enter into Agreement. The individual signing below on behalf of
the County hereby represents that he has been delegated any necessary authority to enter into
this Agreement on behalf of the County and that his signature is binding on behalf of the County,
subject to approval by the Board of County Commissioners. The individual signing below on
behalf of Manhattan hereby represents that he has been delegated any necessary authority to
enter into this Agreement on behalf of the Manhattan and that his signature is binding on behalf
of Manhattan.
8. Construction of the Settlement Agreement. The Agreement is the joint product
of the Parties, and shall not be construed against any Party as the drafter.
10. Governing Law and Venue. This Agreement and all other documents executed
in connection with this Agreement are governed by and shall be interpreted under Florida law.
The sole and exclusive venue for any litigation among the Parties that may arise out of, or is
related to this Agreement, or any documents executed in connection with this Agreement shall be
a court of competent jurisdiction in and for Collier County, Florida,
11. Enforceability. In the event that any provision of this Agreement is found to be
void or unenforceable by a court of competent jurisdiction, the remaining provisions, in whole or
in part, shall continue to be enforceable to the greatest extent allowed by law and to the same
extent as if the void or unenforceable provision were omitted from the Agreement.
12. Cooperation. The Parties hereby agree to cooperate and work in good faith to
carry out the terms of this Agreement and to execute or prepare any other documentation
necessary to effectuate the terms of this Agreement.
13. Acknowledgement of Independent CounselfTax Advice. The Parties hereto
acknowledge and affirm that they have each been represented by separate legal counsel, or they
have had the opportunity to consult with legal counsel and their separate tax advisors as to their
respective rights and responsibilities hereunder. The Parties further represent that they have
read or have had read to them, and understand all terms and provisions of this Agreement, and
have not relied upon explanations from the Mediator, other parties to this Agreement, or counsel
to the other parties to this Agreement,
14. Entire Settlement Agreement. This Agreement contains the entire agreement
between the Parties, and all prior or contemporaneous negotiations or representations are
merged into this Agreement.
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Page 6437 of 7162
11A
15. Paragraph Headings. Captions and paragraph headings in this Agreement are
for convenience and reference only and do not define, describe, extend or limit the scope or intent
of this Agreement or any provision herein,
16. Attorney's Fees for Breach of Agreement. In the event any Party breaches this
Agreement, the party having to enforce this Agreement shall be entitled to recover its attorney's
fees and costs, through litigation and any and all appeals.
17. Counterparts and Facsimile Signatures. This Agreement may be executed in
counterparts with each copy being deemed an original. A facsimile signature on this Agreement
will be deemed to be equivalent to an original signature.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date indicated
herein.
Signed, sealed and delivered in the presence of:
COLLIER COUNTY, FLORIDA
Date
Prin ame:,
Ed Finn
Aa
Attorney for 1
Greg Woods
MANHATTAN CONSTRUCTION FLORIDA, INC.
6--2-0-z3
Date Print Name:
Bob Vecer
Its:
Atterrfey for,M attan
Geoff Lutz
4 WE
Page 6438 of 7162
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ATTEST:
Crystal K.
Cornn feat 1lprk of Courts
By:
Dated:
S AL) -
ICVJt &3 tc Midils
signature only . h
Appr ed as
7-4
form 1 gal'ty:
By:
Scott R. Teach
Deputy County Attorney
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Rick LoCastro, Chairman
Page 6439 of 7162
11A
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