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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-