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Agenda 07/22/2008 Item #16K12Agenda Item No. 16K12 July 22, 2008 Page 1 of 8 EXECUTIVE SUMMARY For the Board of County Commissioners to Consider Approval of a Settlement Agreement between Florida Power & Light Company and Collier County relating to John Carlo. Inc. v. Collier County, Case No. 07- 311 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, and authorize the Chairman to sign the Settlement Agreement. OBJECTIVE: For the Board of County Commissioners to Consider Approval of a Settlement Agreement between Florida Power & Light Company and Collier County relating to John Carlo. Inc. v. Collier County, Case No. 07- 311 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, and authorize the Chairman to sign the Settlement Agreement. CONSIDERATIONS: This matter is a litigation construction dispute involving the general contractor for the 6 -Laning of Immokalee Road. The dispute centers around the alleged failure by the County to have utility poles timely removed so that the general contractor could proceed with work it was contracted to do. Claims exceed $2 million dollars. The County is of the opinion that the utility involved, Florida Power & Light Company ( "FPL "), was prevented from timely removing its poles for the primary reasons of inclement weather. The Settlement Agreement (attached hereto as Exhibit "A ") is a defense agreement where FPL has agreed to cooperate with the County in its defense against John Carlo. In exchange, the County will dismiss its Third -Party Complaint filed against FPL. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. LEGAL CONSIDERATIONS: The County Attorney's Office is of the opinion that the Settlement Agreement will result in substantial benefits to the County in litigation. RECOMMENDATION: For the Board of County Commissioners to approve the attached Settlement Agreement between Florida Power & Light Company and Collier County relating to John Carlo. Inc v. Collier County, Case No. 07- 311 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, and authorize the Chairman to sign the Settlement Agreement. PREPARED BY: Jacqueline Williams Hubbard, Litigation Section Chief 06 -TRN -01276/2216 Page 1 of I Agenda Item No. 16K12 July 22, 2008 Page 2 of 8 _ COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16K12 Item Summary: For the Board of County Commissioners to Consider Approval of a Settlement Agreement between Florida Power & Light Company and Collier County relating to John Carlo v. Collier County., Case #07- 311 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, and authorize the Chairman to sign the Settlement Agreement. Meeting Date: 7/222008 9:00:00 AM Prepared By Jacqueline W. Hubbard Assistant County Attorney Date County Attorney County Attorney Office 719/2008 1:35:09 PM Approved By Scott R. Teach Assistant County Attorney Date County Attorney County Attorney Office 7/9/2008 2:56 PM Approved By Norm E. Feder, AICP Transportation Division Administrator Date Transportation Services Transportation Services Admin. 7/10/2008 7:24 AM .� Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 7/10/2008 10:21 AM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 7/10/2008 10:59 AM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 7/10/2008 11:32 AM tile: / /C:AAeendaTest \F.xnort \III- ]nlve /0m ? e i')nr0X1Ql7TJT0ionAncnmAv1 Agenda Item No. 16K12 July 22. 2008 Page 3 of 8 SETTLEMENT AGREEMENT BETWEEN COLLIER COUNTY AND FLORIDA POWER & LIGHT COMPANY THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement') is entered into and made on the date when it has been executed by the last of the parties to sign it, by and between Collier County (hereinafter referred to as "the County "), a political subdivision of the State of Florida, and Florida Power & Light Company, a Florida corporation, (hereinafter referred to as "FPL "). WITNESSETH: WHEREAS, Collier County is a Defendant in Case No. 07- 311 -CA filed in the Circuit Court for the Twentieth Judicial Circuit by John Carlo, Inc. in a construction litigation dispute; and WHEREAS, John Carlo has claimed monetary damages against the County that includes but is not limited to claims for delay damages allegedly caused by a delay in the removal, relocation and installation of FPL power poles and facilities from the Immokalee Road right -of- way on a County transportation improvement construction project, (hereinafter "Project'); and WHEREAS, the County filed a third -party complaint and amended third -party complaint against FPL in said litigation, alleging, inter alia, that FPL was responsible for the removal, relocation and installation of the poles and facilities; and WHEREAS, the County and FPL wish to resolve their differences and disputes as they relate to the aforementioned litigation. NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this agreement and with the intent to be legally bound, the County and FPL agree as follows: Agenda Item No. 16K12 July 22, 2008 Page 4 of 8 1. FPL agrees to cooperate, in good faith, with the County in the preparation and presentation of the county's defense prior to and at trial in the above - referenced litigation to the extent that such defense pertains to the removal, relocation, and installation of FPL utility poles and facilities on the construction Project at issue in the litigation. 2. That said cooperation shall take place in the following manner upon the request of the County upon thirty (30) days written notice by the County, either for deposition, for interviews by counsel for the County, or for testimony at trial: (a). FPL shall make available one or more witnesses with personal knowledge of the fact that FPL timely began the process of removal, relocation, and installation of the FPL power poles and facilities, provided that said witness or witnesses are still employed by FPL at the time their assistance is required. (b). FPL shall make available one or more witnesses with personal knowledge of the fact that FPL secured the services of a contractor(s) to perform the removal, relocation, and installation work needed on the Project, provided that said witness or witnesses are still employed by FPL at the time their assistance is required. (c). FPL shall make available one or more witnesses with personal knowledge of the fact that FPL was prevented from timely completing the removal, relocation and installation of its utility poles and facilities on the Project because of inclement weather and other issues beyond the sole control of FPL, provided that said witness or witnesses are still employed by FPL at the time their assistance is required. (d). FPL shall provide one or more witnesses with personal knowledge of FPL's policies and procedures regarding the removal, relocation, and installation of FPL's utility poles and facilities and the contractors used by FPL to perform that work during the time frames 2 Agenda Item No. 16K12 July 22, 2008 Page 5 of 8 relevant to this litigation, provided that said witness or witnesses are still employed by FPL at the time their assistance is required. (e). FPL shall provide any and all documents, if they exist and are not otherwise protected by the attorney client privilege or work product protection, it deems necessary that substantiates and supports the above - listed oral testimony when requested to do so by the County. (f). The term "make available" means: if the person or persons identified are active or current FPL employees, FPL will use its best efforts to make available those employees for interviews, depositions and/or trial, considering weather conditions, pre- approved vacation time, or illness; or, if there is no such person currently employed by FPL, inform the County of the last known address, telephone number, and employer (if known) of said former employees or contractors. Nothing herein shall prevent or prohibit the County from having subpoenas for deposition and /or trial served on witnesses or potential witnesses, whether said witnesses or potential witnesses are current or former employees of FPL. FPL represents and the County acknowledges that at least two (2) of the FPL representatives directly involved in the processes related to removal, relocation and installation of FPL's poles and facilities on the Project at issue in this litigation are no longer employed by FPL. These persons are: Steve Tynski and Richard Kodera. 3. FPL shall, within thirty (30) days of the execution of this Agreement, provide the County's attorneys with a list of the proposed FPL witnesses, their addresses, telephone numbers and the available FPL documents' location and identity of the custodian[s] of any documents which are not otherwise protected by the attorney client privilege or work product protection that 3 Agenda Item No. 16K12 July 22, 2008 Page 6 of 8 will substantiate or support the testimony of the FPL witnesses, and make such documentation available for review and copying. 4. Additionally, the County agrees that any contact with FPL employees and former FPL employees shall be through a written request to the FPL Law Department, and specifically Ken Rubin, Esq., his designee, or such other individual as is designated by the FPL Law Department, unless the FPL Law Department waives said requirement in writing. 5. After receipt of said request, said employee shall be made available pursuant to paragraph 2(f) herein in Collier County or in such other County where said employee resides within thirty (30) days of the County's request, unless the request is made less than thirty (30) days before trial in which case said FPL employee shall be made available within fourteen (14) days of the County's request. Additionally, any and all meetings between the County's representatives and attorneys and FPL employees and FPL former employees shall be conducted in the presence of a representative of the FPL Law Department unless the FPL Law Department waives said requirement in writing. FPL will use its best efforts to help the County secure the cooperation of its contractors. 6. Collier County shall not be responsible for any cost associated with the attendance and participation of FPL's attomeys. Collier County will pay any costs for necessary out of county travel costs of witnesses as permitted under Florida Statutes. 7. Within ten (10) days following confirmation of the County's receipt of the documents listed in paragraph three (3) above, the County shall dismiss, with prejudice, its third - party claims against FPL by filing a Notice of Dismissal with Prejudice of the County's Amended Third Party Complaint with the Clerk of the Trial Court in the aforementioned litigation. 4 Agenda Item No. 16K12 July 22, 2008 Page 7 of 8 S. The County and FPL acknowledge and agree that this Agreement is intended to and shall be binding upon their respective commissioners, owners, principals, officials, officers, employees, agents, attorneys, representatives, successors, assigns and affiliates. 9. This Agreement is intended as the complete and exclusive statement of the terms of the Agreement between the County and FPL and the County and FPL agree that there have been no representations, promises or agreements made to them, oral or written, other than what is contained in this Agreement. 10. The County and FPL acknowledge and agree that this Agreement is the product of mutual negotiation and no doubtful or ambiguous language or provision in this Agreement 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. 11. This Agreement may be amended only by a written instrument specifically referring to this Agreement and executed by both parties with the same formalities as this Agreement. 12. In the event of an alleged breach of this Agreement, the County and FPL agree that the sole remedy for breach of this Agreement shall be for specific performance of its terms and conditions. The County and FPL further agree that the sole venue for any such action claiming breach of this Agreement shall be in the Twentieth Judicial Circuit Court of Florida, in and for Collier County, and both parties to this Agreement waive their right to a jury trial for any dispute brought pursuant to this Agreement. The prevailing party on any dispute brought pursuant to this Agreement shall be entitled to its reasonable costs and attorney fees. 13. The laws of the State of Florida shall govern this Agreement. 5 Agenda Item No. 16K12 July 22. 2008 Page 8 of 8 14. Both parties further agree that time is of the essence in all respects regarding this Agreement. 15. Execution shall mean the date the last party signs and approves this Agreement. This Agreement shall be executed by all parties no later than or it shall terminate unless extended in writing by mutual agreement of the parties. COLLIER COUNTY: ATTEST: DWIGHT E. BROCK, Clerk of Courts of Collier County, Florida 0 Deputy Clerk Approved as to form and legal sufficiency: Jacqueline Williams Hubbard, Esq. Litigation Section Chief FLORIDA POWER & LIGHT COMPANY WITNESSES: Signed Name Printed Name Signed Name Printed Name 06 -TRN -0 1276/2199 BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA TOM HENNING, Chairman Date: By: _ TITLE: DATE: Approved as to legal sufficiency For Florida Power & Light Company Kenneth Rubin, Esq.