Agenda 04/27/2010 Item #16K 3
Agenda Item No. 16K3
April 27,2010
Page 1 of 17
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement that would pay the County $210,000
in the lawsuit styled Collier County and Collier County Water & Sewer District v. Focus
Engineering, Inc. filed in the Twentieth Judicial Court in and for Collier County, Florida,
Case No. 06-0312-CA.
OBJECTIVE: To obtain the Board of County Commissioners' approval of a Settlement
Agreement prior to trial, whereupon the County would receive $210,000 from Focus Engineering
and the lawsuit would be dismissed.
CONSIDERATIONS: The County entered into contract in June 2000 with Focus to convert
fIre suppression systems and fire hydrants in the Pelican Bay area from reclaimed to potable
water. Focus was also required to maintain the separate irrigation systems with reclaimed water.
Contrary to this contractual undertaking, some of the irrigation systems were supplied with
potable water rather than reclaimed water. As a result of these errors, the County lost
$164,277.94 in revenue and incurred substantial staff time to correct line issues. The County
subsequently filed a lawsuit against Focus Engineering, Inc. on February 24, 2006, for
professional negligence and breach of contract.
FISCAL IMP ACT: The Settlement Agreement calls for Defendant, Focus Engineering, to
tender $210,000 to the County. The settlement funds are to be placed in Public Utilities
Reserves Fund, No. 408.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this Executive Summary.
RECOMMENDATION: That the Board of County Commissioners approve the attached
Settlement Agreement in the amount of $210,000 and authorize the Chairman to execute all
necessary documents.
Prepared By: Steven T. Williams, Assistant County Attorney
Agenda Item No. 16K3
April 27, 2010
Page 2 of 17
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K3
Recommendation to approve a Settlement Agreement that would pay the County $210,000 in
the lawsuit styled Collier County and Collier County Water & Sewer District v. Focus
Engineering, Inc, filed in the Twentieth Judicial Court in and for Collier County, Florida, Case
NO.06-0312-CA.
4/27/20109:00:00 AM
Meeting Date:
Prepared By
Steven Williams
Assistant County Attorney
Date
County Attorney
County Attorney
4f20/2010 10:47:26 AM
Approved By
Steven Williams
Assistant County Attorney
Date
County Attorney
County Attorney
4/20f2010 10:53 AM
Approved By
James W. DeLony
Public Utilities Division Administrator
Date
Public Utilities Division
Public Utilities Division
4f20f2010 11 :07 AM
Approved By
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
4f21/2010 8:23 AM
Approved By
Jeff Klatzkow
County Attorney
Date
4f21f2010 11:18 AM
Approved By
Randy Greenwald
Office of Management &
Budget
Management/Budget Analyst
Date
Office of Management & Budget
4f21f2010 11:24 AM
Approved By
Leo E. Ochs, Jr.
County Manager
Date
County Managers Office
County Managers Office
4f21f2010 11:51 AM
Agenda Item No. 16K3
April 27, 2010
Page 3 of 17
Anania Bandklayder
Baumgarten (f1 Torricella, PA.
Attorneys at Law ,
April 8, 20 I 0
Steven T. Williams, Esq.
OFFICE OF THE COUNTY ATTORNEY
Harmon Turner Building,
3301 East Tamiami Trail
Naples, Florida 34112
;-v
f'-J
Re: Collier County, Florida v. Focus Engineering, Inc.
Case No: 06-312-CA
Dear Steve:
Enclosed are duplicate originals ofthe Settlement Agreement. Please plan to return a fully-
executed original to me.
At your next opportunity, please let me know about the expected timetable for securing the
necessary approval.
I
RA T/ilm
Enclosures
Bank Of Ametica. her. &uile 43CX) · 100 &oullieast &eond 8freet · Miami. florida 33131-2144
Telephone (305) 373-4900 · Facsimile (305) 373-6914
J.Oo. ..,
" ".~
~:-~,~
r.-....
,,~ (,~~~~
2: ._.~~
---I ?':
_-<' 0, _
... ''" r.:~
:~
:;::, :--'1
_..i ':::-;;;:~
d .,
::0 :-...:r
~~ f:~~
~<
';::.".)
-",
. "
--:- ~)
1",.)
'.
Agenda Item No. 16K3
April 27, 2010
Page 4 of 17
.'
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY. FLORIDA
CASE NO.: 06-312..cA
COLLIER COUNTY. FLORIDA, a
political subdivision of the State of
Rorida. and the COLLIER COUNTY
WATER-SEWER DISTRICT,
Plaintiff.
vs.
FOCUS ENGINEERING, INC..
Defendant.
I
SETTLEMENT AGREEMENT
This Settlement Agreement (-Settlement Agreemenr) Is entered into as of this
_ day of April, 2010. by and between Collier County, Florida, a political subdivision of
the State of Rorida, and the Collier County Water-Sewer District (coIlecUvely .Collier")
and Focus Engineering, Inc. (.Focus").
RECITALS
WHEREAS. CoUier entered into a June 27, 2000 Pelican Bay Fire and Irrigation
Water Improvements Professional Services Agreement rAgreement.) with Focus,
pursuant to which Focus agreed to provide professional engineering services to Collier
in connection with the Pelican Bay Fire and Irrigation Water Improvements Project
("Project"): and
WHEREAS, Collier claims that it sustained damages in connection with the
services provided by Focus under the Agreement and in connection with the Project;
and
WHEREAS, Focus maintains that any damages sustained by Collier arise from
Collier's own failures of perfonnance: and
WHEREAS, Collier filed the above-styled action, bearing Case No. 06-312-CA
rAction") against Focus. seeking to recover its claimed damages, and Focus denied
liability for those damages; and
1
"
Agenda Item No. 16K3
April 27,2010
Page 5 of 17
WHEREAS. Collier and Focus (collectively the .Parties") desire to and have
amicably resolved the Action, including all claims and defenses asserted or that could
have been asserted therein;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth below as well as for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree and stipulate as
follows:
COVENANTS
1. The above recitals are true and correct and are incorporated herein.
2. Consideration for Settlement As consideration for this Settlement
Agreement, Focus shall pay to Collier the total sum of Two Hundred Ten Thousand
($210.000.00) Dollars ("Settlement Sum"), payable as set forth In Paragraph No.5.
below, following Collier's full execution and delivery of this Settlement Agreement and
the settlement documents identified In Paragraph Nos. 3 and 4, below.
3. Dismissal of the Action. Collier shall execute and deliver to Focus'
counsel a Stipulation for and Order of DIsmIssal, With Prejudice, in the form attached
hereto as exhibit A, which counsel for Focus shaD hold In trust, pendIng Collier's receipt
of the Settlement Sum. Following Collier's receipt of the Settlement Sum, counsel for
Focus shall submit the fully-executed Stipulation for and Order of Dismissal. With
Prejudice, to the Court for its entry, thereby dismissing this Action, with prejudice, and
with each party to bear its own attorney's fees and costs.
4. Releases. Collier shall fully execute and deliver to Focus's counsel the
release attached hereto as Exhibit B, which counsel for Focus shall hold in trust,
pending Collier's receipt of the Settlement Sum.
5. Delivery of Payment. Within thirty days following approval by the Board of
County Commissioners of Collier County of this Settlement Agreement and Its exhibits,
as set forth in Paragraph No. 15, below, and delivery by Collier of fully-executed copies
of this Settlement Agreement, the Stipulation for and Order of Dismissal identified in
Paragraph No. 3 and the Release identified In Paragraph No.4, Focus shall deliver the
Settlement Sum to Collier, by way of check made payable to Collier County Board of
County Commissioners, at the following address: 3301 Tamiami Trail East, Hannon
Tumer Building, 8th Roor, Naples, Florida 34112.
6. Representations and Warranties. The Parties hereto represent and
warrant, asto each of them, as follows:
(a) That the person signing this Settlement Agreement and its exhibits
has full authority to do so (pending Board approval as to Collier)
and to obligate the Party or Parties for which he signs to perform all
2
(b)
Agenda Item No. 16K3
April 27, 2010
Page 6 of 17
acts and incur all obligations created and arising under this
Settlement Agreement and its exhibits;
That the Parties are the sole owners of whatever claims and/or
causes of action that may exist and/or come Into existence by
reason of the events which gave rise to this Settlement Agreement
and that there are no liens, claims of liens, and/or assignments in
law or equity with regard to the claims, rights, powers, causes of
action or other matters released and/or settled herein; and
(c)
That each of the Parties has had the opportunity to be fully advised
by Its counsel of the contentions made in connection with the
matters that are settled and/or released herein and of the legal
consequences of entering into this Settlement Agreement and its
exhibits.
7. Breach and Default In the event one of the Parties breaches this
Settlement Agreement or its exhibits, the non-breaching Party (or Parties) may apply to
the Court for relief, which may include actual damages and/or injunctive relief, to the
extent available under applicable law.
8. Non-Waiver. The failure of any of the Parties to enforce, at any time, any
provision of this Settlement Agreement shall not be construed to be a, waiver of such
provision, or in any way to effect the validity of this SetUement Agreement,' Its exhibits or
any parts thereof or the right of any of the Parties thereafter to enforce each and every
provision of the Settlement Agreement or its exhibits. No waiver of any breach of this
Settlement Agreement or its exhibits shall be held to constitute a waiver of any other
breach of this Settlement Agreement or its exhibits.
9. Drafting and Interpretation. The Parties, by their own counsel, have
reviewed this Settlement Agreement and Its exhibits, have been given full opportunity to
participate in choosing the language to be used herein and fully understand the tenns
and conditions of this Settlement Agreement an its exhibits. The Parties agree that the
nonnal rules of contract construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this
Settlement Agreement and its exhibits and that they shall be construed as if jointly
drafted by the Parties.
10. Attorneys Fees and Costs. In the event it is necessary to seek judicial
enforcement of any of the tenns of this Settlement Agreement or its exhibits, the
prevailing party in such litigation shall be entitled to recover its attorneys fees and costs
in connection with its enforcement efforts, including through all appeals.
11. Captions. Paragraphs, titles, or captions are designred for convenience
only and shall in no way define, limit, extend, or describe the scope of this Settlement
Agreement or its exhibits.
r
3
Agenda Item No. 16K3
April 27, 2010
Page 7 of 17
12. Goveming Law. This Settlement Agreement and its exhibits, shall be
construed in accordance with the substantive laws of the State of Florida, without
reference to conflict of laws principles. The Parties specifically waive any right or claim
they may have under Florida substantive law or any other law which is or may be to the
effect that a release such as the one herein does not apply to unknown, unsuspected.
unanticipated, undisclosed or unstated claims.
13. Invalidity. If any part of this Settlement Agreement or its exhibits is
adjudged to be invalid or unenforceable, such invalidity shall not affect the full force and
effect of the remainder of this Settlement Agreement or its exhibits.
14. Jurisdiction. The Parties irrevocably consent to the non-exclusive
jurisdiction of the state and federal courts sitting in and for Collier County, Florida In
connection with any action or proceeding arising out of or relating to this Settlement
Agreement or its exhibits.
15. Approval. The Parties agree that the tems of this Settlement Agreement
and its exhibits are subject to the approval of the Board of County Commissioners of
Collier County at a duly noticed public meeting of the Board and that the tanns hereof
shall not be binding on the Parties until formally accepted and approved by the Board of
County Commissioners of Collier County.
16. Entire Agreement This Settlement Agreement and its exhibits constitute
the entire agreement between the Parties hereto regarding its subject maUer. represent
the final agreement between the parties and supersede any and all prior discussions
and agreements (written or oral) between the parties with respect to the subject of the
Action. The terms of this Settlement Agreement and its exhibits are contractual and are
not a mere recital.
17. Modification. This Settlement Agreement and its exhibits may not be
amended, altered, modified or otherwise changed, except in writing executed by the
Parties hereto expressly stating that it is an amendment to this Settlement Agreement or
its exhibits. The Parties acknowledge that this Settlement Agreement and its exhibits
constitute the settlement of genuine, pre-existing disputes. and/or controvers~ and the
very real and substantial benefit received by the Parties are reasonably and rationally
related to any and all relinquishment, waiver or release of their rights, claims and/or
cause of action, whether arising under state or federal law or otherwise. The Parties
expressly covenant and agree not to subsequenUy challenge the legality or
enforceability of this Settlement Agreement and its exhibits.
18. Severability. In the event that one or more tenns of this Settlement
Agreement or its exhibits are found to be invalid or unenforceable for any reason or to
any extent, each remaining tenn and provision shall continue to be valid and effective
and shall be enforceable to the fullest extent permitted by law and the Court shall have
4
(
I
. .
Agenda Item No. 16K3
April 27, 2010
Page 8 of 17
the authority to reform the Settlement Agreement and/or its exhibits as necessary to
make the remaining provisions valid.
19. Execution in Counterparts. This Settlement Agreement may be executed
in counterparts, each of which shall be deemed an original, but each and all signed
counterparts shall be deemed to oonstitute one and the same Instrument
WHEREFORE, to evidence their agreement to the foregoing terms and
conditions, the Parties hereby execute this Settlement Agreement on the dates set forth
below.
COLLIER COUNTY, FLORIDA
By:
Its:
FOCUS ENGINEERING, INC.
BY:I~~~~
'" ~
Its:~,A-Nr
Date: .~ /~ / t;J;,O , 2010.
Date:
_,2010.
COLLIER COUNTY WATER-SEWER
DISTRICT
By:
Its:
Date: _,2010.
STATE OF FLORIDA )
) ss
COUNTY OF COLLIER )
The foregoing Instrument was acknowledged before me this day of March,
2010, by , the of
COLLIER COUNTY, FLORIDA, on behalf of the County. He/She is personally known
to me or has produced as identification.
(SEAL )
Notary Public
Print Name:
s
~
. I"
Agenda Item No. 16K3
April 27,2010
Page 9 of 17
STATE OF FLORIDA
COUNTY OF COLLIER
)
) as
)
The foregoing instrument was acknowledged before me this
2010, by ,the
the COLLIER COUNTY WATER..seWER DISTRICT, on behalf of the District.
is personally known to me or has produced
identification.
day of March,
of
He/She
as
(SEAl)
Notary Public
Print Name:
STATE OF FLORIDA )
L~ ) sa
COUNTY OF GOLLlER )
The fo~was acknowledged ~Ill "'" 1h1sc:J!'. ~ of March,
2010,b~~.... ,the ~~~ of
FOCUsr ENGINEERING, INC., on behalf of the corporation. He/She is personally
known to me or has produced \L. de':,?e{ L: Ce(\':-! 0_ as ide . cation.
(SEAL)
"aYI'ua.
.I'.......~ 1'IfTAN't'YOOeR
1I-..hI.. ." MY COMMISSlOM, DO 805682
"-4~<F EXPIRES: October 18, 2011
.,~ OFf\.1Il' Bonded Thro 8Mdg&t NolaIy SeIYlca
6
Agenda Item No. 16K3
April 27, 2010
Page 10 of 17
EXHIBIT A
Agenda Item No. 16K3
April 27, 2010
Page 11 of 17
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT fN AND FOR
COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, FLORIDA,
a political subdivision of the State of
Florida, and the COLLIER COUNTY
WATER-SEWER DISTRICT,
CASE NO.: 06-312-CA
Plaintiffs,
vs.
FOCUS ENGINEERING, INC.,
a Florida corporation,
Defendant.
/
JOINT STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE
IT IS HEREBY STIPULATED by and between the Plaintiffs, COLLIER COUNTY,
FLORIDA and COLLIER COUNTY WATER-SEWER DISTRICT, and the Defendant, FOCUS
ENGINEERING, INC., that they have amicably compromised, settled and resolved all claims raised
or which could have been raised in the above-styled case and that the Cowt may enter an Order
and costs.
dismissing the above-captioned matter, with prejudice, with each party to bear its own attorney's fee~::::::::::::::::::::
. . " . " . . " " "
" " " " " " " " " " "
...... .............
. . '
. '
" ". """..""
" "" """"""
" " "" """"."
.. .. " .. " . . " " "
" " . " " " " " " . "
.. .. .. " " " " . " "
" " " " . . " " . .. "
.. .. .. .. " . . " " .
. " , " " . . . . " ,,;
ANANIA BANDKLA YDER
BAUMGARTEN & TORRlCELLA
Attorneys for Defendant
100 S.E. Second Street, Suite 4300
Miami, Florida 33131-2144
Tel.: 305-373-4900
Fax: 305-373-6914
OFFICE OF THE COUNTY A TIORNEY
Attorneys for Plaintiffs
Harmon Turner Building,
330 I East Tamiami Trail
Naples, Florida 34112
Tel.: 239-252-8400
Fax: 239-774-0225
By:
Steven T. Williams
Florida Bar No.: 740101
By:
Roberto A. Torrlcclla, Jr.
Florida Bar No. 907472
Agenda Item No. 16K3
April 27, 2010
Page 12 of 17
Joint Stipulation and Order of Dismissal
Case No.: 06-312-CA
Page 2 of2
ORDER OF DISMISSAL WITH PREJUDICE
UPON THE FOREGOING STIPULATION
IT IS ORDERED AND ADJUDGED that the above-captioned matter be, and the same is
hereby DISMISSED WITH PREJUDICE, Each party shall bear its own attorney's fees and costs.
DONE AND ORDERED in Chambers at Miami, Miami Dade County, Florida this _
day of
,2010.
CIRCUIT JUDGE
Copies furnished to:
Steven T. Williams, Esq.
Roberto A. Torricella, Jr., Esq.
Agenda Item No. 16K3
April 27, 2010
Page 13 of 17
EXHIBIT B
Agenda Item No. 16K3
April 27, 2010
Page 14 of 17
RELEASE OF ALL CLAIMS
KNOW ALL PERSONS BY THESE PRESENTS: COLLIER COUNTY, FLORIDA, a
political subdivision of the State of Florida, and the COLLIER COUNTY WATER-SEWER
DISTRICT, for themselves and for their present and former directors, officers, stockholders, agents,
successors, affiliates, divisions, districts, municipal corporations, parent corporations, subsidiaries,
heirs, assigns, executors, representatives, administrators, insurers, sureties, and attorneys,
(collectively "Releasor"), for and in consideration of the total sum of Two Hundred Ten Thousand
($210,000.00) Dollars, and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, do hereby remise, release, acquit, satisfy, and forever discharge FOCUS
ENGINEERING, INC., and its present and former directors, officers, stockholders, employees,
agents, successors, affiliates, parents, subsidiaries, assigns, representatives, administrators, insurers,
sureties, and attorneys (collectively "Releasees"), of and from every and any marmer of action and
actions, cause and causes of actions, covenants, contracts, agreements, promises, judgments,
obligations, damages, suits, claims, controversies, disputes, proceedings, debts, reckonings,
executions and demands, in law or in equity, contingent or fixed, known or unknown ("Claims"),
which Releasor or anyone claiming by, through or under Releasor ever had, has or hereafter can,
shall or may have against Releasees arising from or relating to: (a) the Pelican Bay Fire and Irrigation
Water Improvements Project ("Project"); (b) the Pelican Bay Fire and Irrigation Water
Improvements Agreement, dated on or about June 27, 2000, including all amendments thereto and
revisions thereof ("Agreement"); (c) any damages for design defects, project extensions or delays, or
failures of performance of any kind arising from, during performance of or relating to the Project or
the Agreement; and (d) all matters raised or which could have been raised in the matter styled Collier
County, Florida, a political subdivision of the State of Florida and the Collier County Water-Sewer
Release of All Claims
Page 1 of 4
Agenda Item No. 16K3
April 27, 2010
Page 15 of 17
District v. Focus Engineering, Inc, Case No. 06-312-CA, pending in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida ("Subject Litigation").
Releasor agrees to indemnify, defend and hold Releasees harmless from any and all Claims
by: (a) Releasor's contractors, subcontractors on the Project seeking recovery for any damages
arising from, in connection with or relating to any work performed on or connected with the Proj ect;
(b) any property owners in the Pelican Bay area whose properties were serviced in connection with
the Project and the Agreement for damages relating to or arising from Releasees' performance on the
Project or of the Agreement; and (c) any individuals or entities arising from or in connection with
Releasor's damages and injuries, including, but not limited to, any claims which may be asserted by
others against Releasees based on theories of reimbursement and/or subrogation.
It is understood and agreed that the payment ofthe aforesaid sum in full and final settlement
of this matter is the compromise of a doubtful and disputed claim and that the payment made is not
to be construed as an admission of liability on the part of any and all parties and entities hereby
released, by whom liability is expressly and without limitation denied.
By execution of this Release of All Claims, the Releasor acknowledges and agrees that the
terms of this settlement have been completely read and fully understood and are for the purpose of
making a full and final compromise, adjustment and settlement of any and all Claims by Releasor
against Releasees, as and to the extent set forth above.
The Releasor further declares and represents that no promise or agreement not herein
expressed has been made to Releasor, and that this Release of All Claims contains the entire
agreement among the parties hereto, that the undersigned has full and valid authority to execute this
Release of All Claims and resolve the Claims of Releasor, that Releasor has had the benefit ofthe
advice and counsel of its own attorneys and that the above consideration is in full and final
Release of All Claims
Page 2 of4
.
Agenda Item No. 16K3
April 27, 2010
Page160f17
settlement of any and all Claims of any nature whatsoever of or on behalf of Releasor against
Releasees, as and to the extent set forth above.
Releasor hereby represents and warrants that it has not assigned, subrogated or otherwise
transferred any Claims that are released by virtue of the execution of this Release of All Claims.
The undersigned hereby declares, covenant and warrant that he/she is over eighteen (18)
years of age and that helshe is not suffering from any mental, physical or legal disabilities
whatsoever which would impair or disable himlher from executing this Release of All Claims.
This Release of All Claims and the interpretation of the terms thereof shall be governed by
the laws of the State of Florida, without reference to conflict of laws principles.
IN WITNESS WHEREOF, I have hereunto set my hand this _ day of
2010.
I .. . .. .. .. .. . .. .. ..
. . . . . . .. .. '. ..
I .. .. .. .. . .. .. .. . .
.. . . .. . . .. . .. ..
, . .. . .. .. . . .. .. ..
.. , .. .. . . . . .. II
. .. .... ......,..
. ... .........
COLLIER COUNrY, FLORIDA, a political :::: ::::: ::;
subdivision of the State of Florida ':-:-:'.-:':-:-:-:':-
. .. . . .. . . .. . .. ..
.. , .. . . .. . .. .. ..
I .. . .. .. . . . . .. ..
. . .. . .. .. . . .. .
By:
Title:
COLLIER COUNTY WATER-SEWER
DISTRICT
By:
Title:
/ I
(
""I
Release of All Claims
Page 3 of4
~
Agenda Item No. 16K3
April 27, 2010
Page 17 of 17
STATE OF FLORIDA
)
) ss:
)
COUNTY OF COLLIER
On this day before me, the undersigned Notary Public, personally appeared
, the of Collier County,
Florida, personally known to me or proved to me on the basis of satisfactory evidence as follows:
to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his above-
stated capacity as his free and voluntary act.
Dated this _ day of
,2010.
Notary Public in and for the State of Florida,
residing at
My Commission expires
STATE OF FLORIDA
)
) ss:
)
COUNTY OF COLLIER
On this day before me, the undersigned Notary Public, personally appeared
, the of the Collier County Water-
Sewer District, personally known to me or proved to me on the basis of satisfactory evidence as
follows: to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he executed the same in
his above-stated capacity as his free and voluntary act.
Dated this _ day of
,2010.
Notary Public in and for the State of Florida,
residing at
My Commission expires
Release of All Claims
Page 40f4