Agenda 04/23/2013 Item #16K24/23/2013 16.K.2.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chairwoman to execute a mediated
Settlement Agreement and Mutual Release prior to trial in the lawsuit entitled White
General Constructors, Inc., v. Collier County, filed in the Twentieth Judicial Circuit in and
for Collier County, Florida (Case No. 12- 2692 -CA) for the sum of $40,000.
OBJECTIVE: Recommendation to approve the mediation settlement in the lawsuit filed by
White General Constructors, Inc., against the Board of County Commissioners, for the sum of
$40,000.00 and authorize the Chairwoman to execute the Settlement Agreement and Mutual
Release.
CONSIDERATIONS: The County was served with Plaintiffs Complaint alleging Breach of
Contract and Quantum Meruit, stemming from a County contract for the renovation and
remodeling of the Naples Museum Depot Phase 3 Project for the sum of $440,000. The Plaintiff
claims $125,383.78 in damages for the County's alleged improper termination of its contract.
On July 27, 2010 the Board approved the termination of Plaintiff's contract and authorized staff
to retain $20,562.00 in payments, plus a retention amount of progress payment of $59,285.00,
totaling $79,847.00. The County served its Answer, Affirmative Defenses and filed a
Counterclaim alleging damages of approximately $90,000.00 (approximately $11,150.00 after
the $90,000.00 is reduced by the retained amount of $79,847.00) in damages, associated to
completing the project and remedial repairs.
The parties attended Court Ordered Mediation on Thursday, March 28, 2013, and the parties
agreed to settle this case for $40,000, subject to Board approval. The Plaintiff has also agreed to
not work or bid on any future County projects. The Board would agree to revise the termination
as a termination for convenience of both parties, and not for cause.
The County Attorney is recommending that the Board accept this settlement for the following
reasons:
1. The County would need to retain an architect expert to review the voluminous
construction documents, specifications and plans. The expert would also need to inspect
the museum, review lengthy deposition transcripts and testify at trial. Estimated cost for
expert would be approximately $20,000.00 - $25,000.00.
2. The County would need to conduct and order approximately ten depositions and have
exhibits prepared for trial at a cost of approximately $3,500.00- $5,000.00.
3. The County would have to add BSSW Architects, the County's architect for the project,
as a party to the suit in order to avoid "the empty chair" argument by Plaintiff that if there
were problems with the work the architect should have stopped the work long ago.
4. At trial, the County's exposure would be approximately $125,000.00, plus statutory
interest accruing since 2010.
Packet Page -1678-
4/23/2013 16.K.2.
FISCAL IMPACT: Funds are budgeted and available in Fund 198- 157410- 649035 and the
total impact will be $40,000.00.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed this settlement
with the County Museum Director and recommends that the Board of County Commissioners
approve this Settlement Agreement. This settlement is based on the exposure to the County and
the costs associated with taking this case to trial. This item is legally sufficient for Board action
and requires a majority vote for approval. — KLN
RECOMMENDATION: For the Board of County Commissioners to accept the mediation
settlement in the lawsuit filed against the Board of County Commissioners by White General
Constructors, Inc. in the Twentieth Judicial Circuit Court for the total sum of $40,000.00 and
authorize the Chairwoman to execute the Settlement Agreement and Mutual Release.
Prepared by: Kevin L. Noell, Assistant County Attorney
Packet Page -1679-
4/23/2013 16.K.2.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.2.
Item Summary: Recommendation to approve and authorize the Chairwoman to execute a
mediated Settlement Agreement and Mutual Release prior to trial in the lawsuit entitled White
General Constructors, Inc., v. Collier County, filed in the Twentieth Judicial Circuit in and for
Collier County, Florida (Case No. 12- 2692 -CA) for the sum of $40,000.
Meeting Date: 4/23/2013
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal,County Attorney
4/12/2013 9:52:09 AM
Submitted by
Title: VALUE MISSING
Name: NoellKevin
4/12/2013 9:52:11 AM
Approved By
Name: JamroRon
Title: Director - Museum,Museum
Date: 4/16/2013 1:08:38 PM
Name: NoellKevin
Title: Attorney of Record (CAO)
Date: 4/16/2013 1:19:37 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 4/16/2013 1:47:47 PM
Name: IsacksonMark
Title: Director -Corp Financial and Mgmt Svs,CMO
Date: 4/16/2013 2:34:08 PM
Packet Page -1680-
Name: OchsLeo
Title: County Manager
Date: 4/16/2013 4:02:41 PM
Packet Page -1681-
4/23/2013 16.K.2.
4/23/2013 16.K.2.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred
to as the "Agreement ") is entered into and made on this day of , 2013
by and between WHITE GENERAL CONSTRUCTORS, INC., a Florida corporation,
(hereinafter referred to as "Plaintiff') and COLLIER COUNTY, a political subdivision of the
State of Florida (hereinafter referred to as the "County") (the foregoing parties to this
Agreement shall be collectively referred to as the "Parties ");
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida, styled White General Constructors,
Inc., a Florida corporation v. Collier County, a political subdivision of the State of Florida, Case
No. 12- 2692 -CA (hereinafter referred to as the "Lawsuit "); and
WHEREAS, the Parties' claims against one another in the Lawsuit arising from Naples
Station Museum Phase III Project, Bid No. 08 -5114 ( "Project "); and
WHEREAS, the Parties deny liability to one another for any and all claims and
counterclaims alleged in the Lawsuit and in connection with the Project; 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 Lawsuit or
with respect to the Project;
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:
Page 1 of 7
Packet Page -1682-
��O'
4/23/2013 16.K.2.
1. Incorporation by reference. The Parties agree to adopt and incorporate the _
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, the County
agrees to make payment to Plaintiff in the sum of Forty- Thousand 00 /100 Dollars and 00 /100
($40,000.00), within ten (10) days after the approval of the agreement by the Board of County
Commissioners, or as soon as reasonably possible.
4. Settlement. The parties agree to the following provisions:
a. Plaintiff White Constructors, and Phil White individually, agree to not bid on or
perform any future work on any Collier County government projects or utilize an agent,
employee, representative, or any other person or entity to do the same.
b. The County agrees it terminated the subject project contract with Plaintiff for
convenience.
5. Indemnification. The Plaintiff shall indemnify and hold harmless the County, its
officers and employees from any and all liabilities, claims, damages, penalties, demands,
judgments, actions, proceedings, losses or costs, including, but not limited, to reasonable
attorneys' fees and paralegals' fees, whether resulting from any claimed breach of Contract No.
08 -5114, by Plaintiff or from personal injury, property damage, direct or consequential damages,
or economic loss, to the extent caused by the negligence, recklessness, or intentional wrongful
Page t of 7
Packet Page -1683- �t_ ) I
4/23/2013 16.K.2.
misconduct of Plaintiff or anyone employed or utilized by the Plaintiff in the performance of
Contract No. 08 -5114, including any contractual claims that may be brought by subcontractors,
vendors, and the surety bond company.
6. Releases.
a. County. Cop= 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 Plaintiff, 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 Lawsuit or the Project, exc t as otherwise provided in Paragraph 7 below.
b. Plaintiff. Plaintiff, on behalf of itself, its predecessors, successors and/or assigns,
affiliates, employees, former employees, agents, attorneys, officers, directors, principals,
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 Lawsuit or the Project.
7. Claims Excluded From Release.
Tk - "t e-Projeet shftH renmin in firH fe wkLaff=Lmnsist�Ii
wiulmties issued o, i6aft to tit.
Page 3 of 7
Packet Page -1684-
M
4/23/2013 16.K.2.
AW
t ,
` Ag;eeffient. The Parties further acknowledge and agree that any claims and/or potential claims
arising from latent defects existing in the Project are expressly reserved and not waived.
8. Dismissal of Litigation With Prejudice. The Parties shall stipulate to the
dismissal of the Lawsuit dismissing with prejudice all claims and counterclaims in the Lawsuit.
The dismissals shall be filed by the Parties within thirty (30) business days of the execution 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.
9. 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 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.
10. 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.
Page of7
Packet Page -1685- r
4/23/2013 16.K.2.
11. Multiple Counterparts. This Agreement may be executed by the Parties in
identical counterparts, which, taken together, shall constitute a complete original.
12. Complete Agreement. The Parties acknowledge that in deciding to execute this
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.
13. Modifications. This 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.
14. 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.
15. Enforceability. This Agreement is effective upon the date it is approved by the
Board of County Commissioners of Collier County, Florida.
16. 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.
17. Binding. The 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.
Page 5 of 7
Packet Page -1686-
4/23/2013 16.K.2.
18. 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 parry.
19. Jurisdiction. In the event of an alleged breach of this Agreement and Release,
Plaintiff and the County agree that all underlying causes of action or claims of Plaintiff 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, Plaintiff and the County 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.
20. This Agreement and Release shall be governed by the laws of the State of Florida.
THE REMAINDER OF THIS PAGE IS INTENTIONALLYLEFT BLANK
SIGNATURE PAGE TO FOLLOW
Page 6 of 7 J'
Packet Page -1687-
`pJ
4/23/2013 16.K.2.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement on the date(s)
set forth below.
Date:
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legal sufficiency:
rL,
Kevin L. Noell, Esq.
Assistant County Attorney
STATE OF t��
COUNTY OF
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
GEORGIA A LER, ESQ., Chairwoman
By.-c-
1PhilVg,VhiV President
e General Constru ors, Inc., Plaintiff
By. .�
Mark A. Slack, Esq-
Counsel for Plaintiff
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by Phil B. White,
President of White General Constructors, Inc., before me on this �_ day of
2013.
Personally Known ✓'
S ofNotary Public or
Produced Identification
Commissioned Name of Notary Public Type of Identification Produced
(Please print, type or stamp)
My Commission expires:
MARY ELLEN SI ASTRI
++� Notary Poo - StaM of Ronda
• My Comm. EVMSS Apr 14, 2014
-s; ±r a ��s
Commission * 00 973227
12- 2692•CA/213
€..,, Sonosd TArouph NstWW Notsy Assn.
Page 7 of 7
Packet Page -1688-