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Agenda 09/14/2010 Item #16K 6 Aqenda Item No. 16K6 -September 14, 2010 Page 1 of 10 EXECUTIVE SUMMARY Recommendation to approve a Settlement Agreement and Mutual Global Release with and to Embarq, Inc., Embarq Communications, Inc. (now known as Centurylink), and Workman Services, Inc. that settles in full the litigation styled: Board of County Commissioners v. Embarq, Inc., Embarq Communications, Inc., and Workman Services, Inc., Case No. lO-00090-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida. OBJECTIVE: That the Board of County Commissioners (Board) approves and authorizes its Chairman to execute a Settlement Agreement and Mutual Global Release with and to Embarq, Inc., Embarq Communications, Inc. (now known as Centurylink), and Workman Services, Inc., that settles in full the litigation styled: Board of County Commissioners v. Embarq, Inc., Embarq Communications, Inc., and Workman Services, Inc., Case No. 1O-00090-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida. CONSIDERATIONS: On August 27, 2008, Defendant Workman Services, Inc., was a subcontractor of the Defendant EMBARQ Inc., and/or EMBA,RQ Communications, Inc. (now known as Centurylink) and was installing cable on its behalf. During the installation, Workman Services, Inc., struck and damaged the County's lateral sewer line located at 379 Palm Drive and the intersection of Glades Blvd., in Collier County. Collier County claimed damages totaling $23,358.54, which sum included a 15% administrative fee. The County's out-of-pocket expenses were $20,311.77. Both Embarq and Workman refused to pay any damages and this Board authorized the County Attorney to file suit for damages. Suit was filed on January 7, 2010, seeking money damages of $23,358.54, plus costs of the litigation. The Defendants answered the Complaint and discovery commenced. After negotiations with the County Attorney, the Defendants made an offer of cash settlement of $16,000.00. Payment of this sum has been made by insurance check, now in the hands of the County Attorney, and will be deposited should this Board approve and execute the attached documents. The Director of the Risk Management Department approves this settlement. FISCAL IMP ACT: The County will capture a total cash inflow of money in the amount of $16,000.00. GROWTH MANAGEMENT IMP ACT: None. LEGAL CONSIDERATIONS: The County Attorney has reviewed the attached Settlement Agreement and Mutual Global Release and this item is legally sufficient for Board action. - JAK RECOMMENDATION: That the Board of County Commissioners approves and authorizes its Chairman to execute a Settlement Agreement and Mutual Global Release (in triplicate) with and to Embarq, Inc., Embarq Communications, Inc. (now known as Centuryl ink) , and Workman Services, Inc., to settle in full the litigation styled: Board of County Commissioners v. Embarq, Inc., Embarq Communications, Inc., and Workman Services, Inc., Case No. 10-00090-CA, for the cash payment of $16,000.00. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Page 1 of 1 Agenda Item No. 16K6 September 14, 2010 Page 2 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K6 Recommendation to approve a Settlement Agreement and Mutual Global Release with and to Embarq, Inc., Embarq Communications, Inc. (now known as Centurylink), and Workman Services, Inc. that settles in full the litigation styled: Board of County Commissioners v. Embarq, Inc., Embarq Communications, Inc., and Workman Services, Inc., Case No. 10- 00090-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida. 9/14/20109:00:00 AM Meeting Date: Prepared By Jeff Klatzkow County Attorney Date 8/31/20104:18:42 PM Approved By Jeff Klatzkow County Attorney Date 8/31/20104:27 PM Approved By OMS Coordinator Date County Manager's Office Office of Management & Budget 9/1/20102:14 PM Approved By Randy Greenwald Office of Management & Budget Management/Budget Analyst Date Office of Management & Budget 9/1/2010 3: 11 PM Approved By Michael Sheffield Assistant to the County Manager Date County Managers Office 911120104:20 PM Agenda Item No. 16K6 September 14, 2010 Page 3 of 10 SETTLEMENT AGREEMENT AND MUTUAL GLOBAL RELEASE THIS AGREEMENT made and dated when executed in its counterparts, attached hereto, by each party below, by and between the BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY FLOR:IDA (hereinafter the "COUNTY"), CENTURYLINK FIKIA EMBARQ, INC., AND EMBARQ COMMUNICATIONS, INC. (hereinafter "C-LINK"), and WORKMAN SERVICES, INC. (hereinafter "WORKMAN"). WIT N E SSE T H: WHEREAS, the County ha~ made a claim against C-Link and Workman for damages allegedly stemming from an incident which occurred on the County's property to a County water main line, by virtue of the digging by Workman for cable lines to be place on behalf of C- Link, on August 27, 2008 at 379 Palm Drive, Collier County, Florida; and WHEREAS, the County has filed an action in the Circuit Court of the Twentieth Judicial Circuit for its claim styled as BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY FLORIDA vs. EMBARQ, INC., EMBARQ DOMMUNICDA nONS, INC. and WORKMAN SERVICES, INe., etc. Case No. 10-00090-CA, which case is pending and ongoing; and WHEREAS, the parties hereto have thoroughly discussed the positions of each, and each wish to avoid prolonged and further litigation; and WHEREAS, each party hereto believes it is in their respective interests to settle this matter. NOW THEREFORE, in consideration of the preambles set forth hereinabove, and the mutual covenants set forth herein below, and other good and valuable consideration, receipt of which is hereby acknowledged, it is mutually agreed as follows: Page 1 of8 Agenda Item No. 16K6 September 14, 2010 Page 4 of 1 0 1. The County will accept payment in the amount of SIXTEEN THOUSAND ($16,000.00) and no/l00ths. DOLLARS U.S. from Workman as and for full payment of all its damages and costs, inclusive of all attorneys' fees and costs, it claims to have incurred as a result of the incident occurring on August 27, 2008, which is the subject matter of the aforesaid Case No. 1O-00090-CC, from the drilling by Workman at 379 Palm Drive, Collier County, Florida, which was for the benefit of C-Link. 2. It is expressly understood that by settlement of this matter through this Agreement, no party hereto is admitting any liability in any manner. 3. Upon the approval of this Agreement by the County, the County will cause case No. 1O-00090-CA to be dismissed with prejudice as to C-Link and Workman, costs and fees for each party to be borne by that party for itself. 4. This Agreement and Release shall be executed in counterparts each signed by the respective party. 5. Workman shall deliver to the County its signed counterpart along with a check made out to the Board of County Commissioners, Collier County to be submitted for approval; the Collier County Attorney's Office, through Jeffrey A. Klatzkow, County Attorney, shall hold said check in escrow and not cause its deposit and negotiation until this Agreement is approved by the County and said case is dismissed with prejudice according to the terms herein. 6. Except for the obligations of this Agreement, which are hereby not released and which shall survive the execution of this Agreement, the County, for itself and for the members of the Board, and all of its respective agents, successors and assigns, remises, Releases, acquits, waives, satisfies and forever discharges CENTURYLINK, EMBARQ, INC., EMBARQ COMMUNICATIONS, INC. and WORKMAN SERVICES, INC., along with their collective Page 2 of8 - Agenda Item No. 16K6 September 14,2010 Page 5 of 10 officers, directors, shareholders, members, employees, agents, servants, representatives, successors, assigns and their insurers, and the respective personal representatives, heirs, successors, and assigns of all of them (collectively the "Released Parties"), all and from all, and all manner of action and actions, cause and causes of action, suit, debts, any sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, guarantees, warranties (whether express or implied, and whether based on statute, common law or otherwise), third-party claims, bad faith claims, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, which the County has or may have against the Released Parties, whether arising in tort, contract, by virtue or statute, or otherwise, and whether in law or in equity, regardless of whether the same are known or unknown, suspected or unsuspected, patent or latent, or have yet accrued or not accrued as of the date of execution hereof, provided the same are based upon any act or omission that occurred or failed to occur prior to the date hereof and which in any way refer to or relate to the work performed at the location of 379 Palm Drive, Collier County, Florida on August 27, 2008, which is the subject matter of the lawsuit pending in the Circuit court of the Twentieth Judicial Circuit, In and For Collier County, Florida as Case No. 1O-00090-CA. 7. Except for the obligations of this Agreement, which are hereby not released and which shall survive the execution of this Agreement, CENTURYLINK, EMBARQ, INC., and EMBARQ COMMUNICA nONS, INC., for themselves and for the members of their Boards, and all of their respective agents, successors and assigns, remises, Releases, acquits, waives, satisfies and forever discharges WORKMAN SERVICES, INC., along with their collective officers, directors, shareholders, members, employees, agents, servants, representatives, successors, assigns and their insurers, and the respective personal representatives, heirs, Page 3 of8 Aqenda Item No. 16K6 -September 14, 2010 Page 6 of 10 successors, and assigns of all of them (collectively the "Released Party"), all and from all, and all manner of action and actions, cause and causes of action, suit, debts, any sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, guarantees, warranties (whether express or implied, and whether based on statute, common law or otherwise), third-party claims, bad faith claims, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, which the County has or may have against the Released Party, whether arising in tort, contract, by virtue or statute, or otherwise, and whether in law or in equity, regardless of whether the same are known or unknown, suspected or unsuspected, patent or latent, or have yet accrued or not accrued as of the date of execution hereof, provided tne same are based upon any act or omission that occurred or failed to occur prior to the date hereof and which in any way refer to or relate to the work performed at the location of 379 Palm Drive, Collier County, Florida on August 27, 2008, which is the subject matter of the lawsuit pending in the Circuit court of the Twentieth Judicial Circuit, In and For Collier County, Florida as Case No. 10-00090-CA. 8. Except for the obligations of this Agreement, which are hereby not released and which shall survive the execution of this Agreement, WORKMAN SERVICES, INC., for themselves and for the members of their Boards, and all of their respective agents, successors and assigns, remises, Releases, acquits, waives, satisfies and forever discharges CENTURYLINK, EMBARQ, INC., and EMBARQ COMMUNICATIONS, INC., along with their collective officers, directors, shareholders, members, employees, agents, servants, representatives, successors, aSSIgns and their insurers, and the respective personal representatives, heirs, successors, and assigns of all of them (collectively the "Released Party"), all and from all, and all manner of action and actions, cause and causes of action, suit, debts, any sums of money, Page 4 of8 Agenda Item No. 16K6 September 14, 2010 Page 7 of 10 accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, guarantees, warranties (whether express or implied, and whether based on statute, common law or otherwise), third-party claims, bad faith claims, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, which the County has or may have against the Released Party, whether arising in tort, contract, by virtue or statute, or otherwise, and whether in law or in equity, regardless of whether the same are known or unknown, suspected or unsuspected, patent or latent, or have yet accrued or not accrued as of the date of execution hereof, provided the same are based upon any act or omission that occurred or failed to occur prior to the date hereof and which in any way refer to or relate to the work performed at the location of 379 Palm Drive, Collier County, Florida on August 27, 2008, which is the subject matter of the lawsuit pending in the Circuit court of the Twentieth Judicial Circuit, In and For Collier County, Florida as Case No. 10-00090-CA. 9. This Agreement and Release shall be binding upon each party as well as their respective owners, principals, elected officials, officers, employees, ex-employees, agents, attorneys, representatives, insurers, spouses, successors, assigns, heirs and affiliates. 10. This Agreement shall be deemed to have been executed in Collier County, Florida, shall be deemed to be performed in Collier County, Florida, and shall be subject to the laws and jurisdiction of the State of Florida. 11. This Agreement and Release can be executed in counterparts, each counterpart to be dated on the date it is executed. 12. This Agreement cannot be modified unless done so in writing and signed by each respective party. Page 5 of8 Agenda Item No. 16K6 September 14, 2010 Page 8 of 10 13. In any litigation arising out of or relating to this Agreement, or to the interpretation or enforcement hereof, the prevailing party(ies) shall be entitled to recover reasonable attorneys' fees and costs of suit at the trial and the appellate levels. AGREED TO AND APPROVED by the Board of County Commissioners of Collier County, Florida, this _ day of BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: FRED W. COYLE, CHAIRMAN ATTEST: DWIGHT E. BROCK CLERK OF COURTS By Deputy Clerk tzkow, Esq. ! ttorney Page 6 of8 .. .~ Agenda Item No. 16K6 September 14, 2010 Page 9 of 10 " / CENTURYLINKF/K/A EMBARQ, INC., NND EM.BARQ COMMUNICATIONS, INC. BY.~ Assistant General Counsel Dated: 8/16/2010 STATE OF KANSAS ) ) ss: COUNTY OF JOHNSON ) THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE WAS SWORN TO and subscribed by Nancy L. Shelledy- . before me on this 16th day of August, 2010. ~ Signature of otary Pu c Personally Known or - Produced Identification -1L :rebi'ZL~ ~/()}1. Commissioned N . . of Notary Pubhc (please print, type or stamp) My Commission expires: Type ofIdentification Produced - - - - ~ DEBRA BABVLON Notary PutlIIc s.... of ::Z' . 111 Comm\,tIDI Explm 7"':1..1 ~. - Page 7 of8 Agenda Item No. 16K6 September 14, 2010 Page 10 of 10~ . .~.. ~.i>'.~'i'~lf;~. T ' ~" . ..,;;,..!,,~~ '. '8' - I t - I D STATE OF FLORIDA ) )SS: COllN1Y OF ) THIS ~AG~ AND MUTUAL REllIASE WAS SWORN TO IDlI sub~ by -'"- .( ~... j .. &.... ,before me on this Ie! day of VI f 2010.- ./ Persoually Known or Produced IdentifiCation ~f~~ S' of Notary Public '-- Commissioned Name of Notary Public (please priDt, type or stamp) My Commission eltpires: Type of Identification Produced CD YOlAtGA HEJIINNi)EZ i*i :: MY COMMISSION' DO 6tI3Ii '6"..... ..- ~tRES:Jufy24,2011 "l\f.er.. ~Thru _IV I"lilIc u,.-. Page i or,