Resolution 2001-339
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RESOLUTION NO. 200l-~
A RESOLUTION OF THE COLLIER COUNTY BOARD OF COUNTY
COMMISSIONERS INSITUTING ALTERNATIVE DISPUTE
RESOLUTION PROCEDURES FOR BINDING ARBITRATION AND PRE-
SUIT MEDIATION IN COUNTY CONSTRUCTION CONTRACTS
WHEREAS, LITIGATION OF CONSTRUCTION MATTERS TRADITIONALLY
HAS BEEN HIGHLY COMPLEX, LENGTHY AND EXPENSIVE; AND
WHEREAS, THE USE OF ALTERNATIVE DISPUTE RESOLUTION HAS BEEN
SANCTIONED BY THE STATE LEGISLATURE AND IS CONTROLLED BY FLORIDA
STATUTES, CHAPTER 682 WHICH IS ADOPTED HEREIN IN CERTAIN
PROVISIONS; AND
WHEREAS, ALTERNATIVE DISPUTE RESOLUTION PROCEDURES CAN LEAD
TO SOLUTIONS TO CONTROVERSIES AND DISPUTES WITHOUT PROTRACTED
AND EXPENSIVE TRIALS; AND
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that:
The Collier County Board of County Commissioners hereby
adopts and incorporates into its purchasing and bidding
procedures the Collier County Alternative Dispute Resolution
Procedures Attached hereto as Exhibit "An,
BE IT FURTHER RESOLVED that the Collier County Alternative
Dispute Resolution Procedures shall become effective thirty (30)
days after Board of County Commissioners' approval and forthwith
upon County staff's completion of the forms, selection of the
Arbitrators and Mediators and other attendant matters necessary
to implement the procedures.
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This Resolution adopted this 11th day of September 2001
after motion, second and majority vote favoring same.
BOARD OF COUNTY COMMISSIONERS
"
..: ATTEST:
j ¢:D~IGHT E'/..BRU~/:: Clerk COLLIER COUNTY, FLORIDA
"~ .'~!~ ~.,~ '~'By:
' ...,...."..,,,,: :~.,:,
Approved as to form and
legal sufficiency:
ubbard RObrin~SO
Assistant County Atto y
Jackie/A1 ternative/Resolution
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COLLIER COUNTY ALTERNATIYE DISPUTE
RESOLUTION PROCEDURES
1. INTRODUCTION:
Florida law provides that written arbitration agreements are valid,
irrevocable and enforceable. Unless otherwise provided for herein, the provisions
of Florida Statutes, Chapter 682.01 et seq. shall be controlling.
These provisions provide a mechanism to resolve claims or disputes that
could potentially lead to litigation in construction contracts. The object is to
attempt to settle claims by mutual agreement or to make a good faith effort to
settle claims and disputes prior to litigation in court. The methods involve
binding arbitration and pre-suit mediation. Arbitration is a quasi-judicial
approach in which a dispute is resolved by a trier of fact after presentations by
opposing parties. Its purpose is the speedy and economical resolution of disputes.
Arbitration is traditionally a less formal process than court litigation. Mediation
is a method used to settle disputes using an impartial person who listens to
presentation by both sides and facilitates settlement negotiations between the
parties.
Collier County will utilize the Twentieth Judicial Circuit Court Mediation
and Arbitration Program, [hereinafter "Court Program"], to facilitate these
procedures.
2. DEFINITIONS:
2.1 Claim: A demand by either party to a contract for an equitable adjustment
of payment under a Collier County construction contract. A claim should
cover all unresolved disputes existing at the time of presentation to arbitration
or mediation.
2.2 Evidence: Oral testimony, written or printed material or other things
presented to the arbitrator[s] or mediator[s] as proof of the existence or
nonexistence of a pertinent fact.
3. JURISDICTION:
3.1 A claim that does not exceed $250,000.00, excluding interest claimed, shall
be submitted to binding arbitration. The parties may, by mutual consent,
agree to a one-person or single arbitrator panel. Aggregate claims may total
more than $250,000.00 for binding arbitration, but no single claim may
exceed that amount.
EXHIBIT "A"
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3.2 A claim in excess of $250,000.00 brought pursuant to a construction contract
with the county shall be submitted to mediation or binding arbitration if
voluntarily agreed to by all parties. All claims less than $250,000.00 and all
non-monetary claims brought pursuant to a construction contract with the
county must be submitted to binding arbitration.
3.3 Prior to the institution of any litigation in a circuit court against Collier
County, this Dispute Resolution process must be initiated.
3.4 Once the dispute resolution procedure has been initiated, a court of law may
not consider the issues involved in the claim(s) until the dispute resolution
process has been completed.
3.5 The claim must be a dispute between the County and the prime contractor.
3.6 The claim must be related to issues in dispute, which have been previously
submitted in good faith to the County pursuant to this procedure and could
not be resolved by negotiation.
3.8 Pendency of a claim or arbitration or mediation of a dispute shall not be a
basis for delay of the contractor's performance under the contract.
4. INITIATING DISPUTE RESOLUTION PROCEDURE:
4.1 Either party shall initiate a request for mediation or arbitration within thirty
(30) calendar days after a denial of the claim after negotiation by County
staff or no later than forty-five (45) calendar days after knowledge of a claim
by claimant. In any event, no claim shall be made after the date when
institution of legal or equitable proceedings based on such claims would be
barred by the applicable statute of limitations.
4.2 Upon request, the County will make available to any party wishing to initiate
arbitration or mediation, a procedural package containing the necessary
forms. The forms shall include a Notice of Claim, a Request for Negotiation,
a Request for Arbitration and a Request for Mediation. The County's
Purchasing Department shall have these forms available and they will be
included in the County's bid package.
4.3 Either party to the contract may initiate arbitration or mediation of a claim by
submitting a Request for Arbitration or a Request for Mediation Claim Form
to the Purchasing Department. The initiating party must indicate on the form
whether or not they will be represented by counsel during the hearing and
may indicate a desire to resolve the claim based solely on a submittal of
documents by the parties with no hearing.
4.4 The Claim Form shall be accompanied by:
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a. A brief summary of the nature of the dispute involved in each part of the
claim.
b. The amount of compensation being requested for each part of the claim
along with supporting information.
c. Copies of additional written information, not previously submitted under
Section 3 including exhibits, intended to be used during the hearing to
support the claim, excluding the contract documents. It is suggested that
information be assembled in a tabbed notebook for ease of reference.
d. Contract Time analysis if a Release of Liquidated Damages is included in
the claim.
e. No new or different claim, other than a change in the amount claimed, will
be allowed once the time and date for the hearing has been set.
f. If the arbitration panel or mediator determines that information known to a
person not in attendance at the hearing or the mediation is essential to
arriving at its decision or for the fair exercise of the mediation process, he
or she may obtain a written affidavit from that person and enter such
statement into the record.
5. ADMINISTRATION OF ARBITRATION:
5.1 The respondent shall prepare a rebuttal to the claim and furnish a copy to the
party requesting arbitration and to each of the members of the panel so that it
is received at least fourteen (14) calendar days prior to the date scheduled for
the hearing.
5.2 The County shall set a time and date for an arbitration hearing within 21
calendar days after receipt of the Request. In scheduling the time allotted
for a hearing for complex claims, consideration will be given to the need for
the greater amount of testimony or other information required in order for the
arbitrators to gain a complete understanding of the issues, and if a party
requests additional time, the arbitrators selected may continue the matter in
7-calendar day increments. A request for a continuance must be submitted to
the arbitrators no later than 48-hours prior to the commencement of the
hearing. Once arbitration has begun, it may only be continued in 24 - hour
increments.
5.3 The parties are expected to cooperate fully with each other in exchanging
information prior to the hearing. In general, it is expected that the parties
will have exchanged all documents relating to the claim during negotiations
between them prior to arbitration being initiated. In any event, a full
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exchange of documents shall be completed no later than seven (7) calendar
days prior to the date set for the hearing. Generally, introduction of
documents will not be allowed during the hearing which have not been
previously been revealed to the other party.
5.4 Depositions and interrogatories will not be allowed except upon an order
from the arbitrators to take sworn testimony of an unavailable witness.
6. INVOLVEMENT OF ATTORNEYS IN AN ARBITRATION HEARING:
Counsel or another person who has sufficient authority to bind that party at any
hearing may represent a party. A court reporter will be present, unless waived by
both parties.
a. The hearing will be informal and involvement of attorneys, if desired, is
expected to be minimal.
b. The parties shall have full opportunity to offer such evidence as is relevant
and material to the dispute.
c. Unnecessary extensive examination or cross-examination or extensive
argument of legal points by attorneys representing the parties will not be
permitted. The arbitrators may limit examination and argument as they deem
appropriate.
7. CONDUCT OF EVIDENTIARY HEARING IN ARBITRATION:
7.1 The County or court reporter if present shall administer an oath to all persons
who are to testify during the hearing.
7.2 Documents will be accepted and identified for the record.
7.3 Distinct and severable parts of a claim may be dealt with separately.
7.4 The order of proceeding will be for the party initiating arbitration to first
present evidence to support their claim. At the beginning of their initial
presentation, a party shall present a succinct statement of the issues and a
position on each issue. Orderly discussion between the parties as evidence is
presented will be allowed.
7.5 Reasonable attempts will be made to assure that all relevant evidence
necessary to an understanding of the disputed issues and of value in resolving
the claim is heard and that each party has the opportunity to adequately rebut
all arguments and evidence submitted. The arbitration panel will be the sole
judge of the relevance and materiality of evidence offered.
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7.6 Conformance to legal rules of evidence shall not be necessary.
7.7 Members of the arbitration panel may ask questions of the parties for the
purpose of clarification.
7.8 If substantial new information is submitted during a hearing, which the
arbitration panel deems places the other party at a severe disadvantage
because of inability to develop an adequate rebuttal, the panel may elect to
extend the hearing to a later date as previously set forth herein.
a. A stenographic record of any hearings by a Certified Court Reporter or
any previously recorded testimony or document prepared under oath,
such as an affidavit is admissible.
b. Each party shall bear an equal share of the cost of the arbitration panel.
c. Each party shall pay its own costs and attorney fees.
d. All arbitration shall be concluded within one-half (1/2) day and all
mediation shall be conducted within one (1) day unless continued
pursuant to the provisions of Section 5.2 herein.
8. ADMINISTRATION OF MEDIATION:
8.1 The respondent shall prepare a mediation summary regarding the claim and
furnish a copy to the party requesting mediation and to the mediator so that it is
received at least fourteen (14) calendar days prior to the date scheduled for the
mediation.
8.2 The County shall set a time and date for the mediation within 21 calendar
days after receipt of the Request. In scheduling the time allotted for complex
claims, consideration will be given to the need for a greater amount of
information required in order for the mediator to gain a complete understanding of
the issues, and if a party requests additional time, the mediator selected may
continue the matter in 7-calendar day increments. A request for a continuance
must be submitted to the mediator no later than 48-hours prior to the
commencement of the mediation. Once mediation has begun, it may only be
continued in 24 - hour increments.
8.3 The parties are expected to cooperate fully with each other in exchanging
information. In general, it is expected that the parties will have exchanged all
documents relating to the claim during negotiations between them prior to
mediation. In any event, full exchange of documents shall be completed no later
than seven (7) calendar days prior to the date set for the mediation.
8.4 Each party shall bear an equal share of the cost of the mediator.
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8.5 Each party shall pay its own costs and attorney fees.
8.6 All mediation shall be conducted within one (1) day unless continued
pursuant to the provisions of Section 5.2 herein.
8.7 If a party fails to appear at a duly noticed mediation without good cause it
shall bear the costs of the mediator, attorneys' fees and other costs. The County
or any other public entity required to conduct its business pursuant to Florida
Statutes, chapter 286, that party shall be deemed to appear at a mediation
conference by the physical presence of a representative with authority to negotiate
on behalf of the entity and to recommend settlement to the appropriate decision-
making body of the entity.
8.8 A party is deemed to appear if the party or its representative having full
authority to settle without further consultation, the party's counsel or a
representative of the insurance cartier who has full authority to settle up to the
amount of the claimant's last demand or policy limits, whichever is less, without
further consultation.
8.9 The mediator shall at all times be in control of the mediation and the
procedures to be followed in the mediation.
8.10 Counsel shall be permitted to communicate privately with their clients. In
the discretion of the mediator, mediation may proceed in the absence of counsel.
8.11 The mediator may meet and consult privately with any party or parties or
their counsel, if any.
8.12 If a partial or final agreement is reached, it shall be reduced to writing and
signed by the parties and their counsel, if any.
8.13 If the parties do not reach an agreement as to any matter as a result of
mediation, the mediator shall prepare and distribute to each party a report
indicating the lack of an agreement without comment or recommendation. With
the consent of the parties, the mediator's report may also identify the outstanding
legal issues or other action by any party that, if resolved or completed, would
facilitate the possibility of a settlement.
9. COMPENSATION OF THE ARBITRATION PANEL OR MEDIATOR:
Arbitrators and Mediators shall be paid at the rate of $150.00 an hour, or the
current rate for the Court program. An additional fee of 25% shall be payable to
the Court Program for administration of any arbitration, but shall not be assessed
for a mediation. The parties shall equally share all costs and shall remit all
charges to the Court Program upon the conclusion of the ADR Process.
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10. MEMBERSHIP:
10.1 The Arbitration Panel will consist of one member selected by the County
and one member selected by the Contractor, unless the parties agree to utilize the
Court Program's arbitrators. The Court Program will select the third member of
any panel and the third member will act as Chairman for all panel activities. Any
single arbitrator will be selected through the Court Program.
10.2 All mediators and the Chair of any arbitration panel shall appear on the
Court Program's list of persons approved to serve as mediators and arbitrators.
10.3 It is desirable that all arbitration panel members have experience with the
type of construction involved in this project.
10.4 It is imperative that mediators and arbitration panel members show no
partiality to either the Contractor or the County, nor have any conflict of interest.
10.5 The criteria and limitations for mediators and arbitration panel
membership is as follows:
a. The person[s] selected will not have any direct or indirect ownership or
financial interest in the Contractor awarded the project, the CEI
consulting firm selected for the project, in any subcontractor or supplier
of the project, nor in other panel members. Each panel member shall
provide a statement of no known conflict.
b. No arbitrator or mediator shall have had any prior involvement in the
project of a nature that could be construed to compromise his/her ability
to impartially resolve disputes.
c. No arbitrator or mediator will be employed by the Contractor awarded
the project, the CEI consulting firm selected for the project or by any
subcontractor or supplier of the project during the life of the Contract,
except as a panel member or mediator.
d. The Florida Rules of Court Rules 10.200 et seq., Part II of the Rules for
Mediators and Part II of the Rules for Court Appointed Arbitrators shall
apply, except Rule 11.110 and Rules 10.870 through 10.900.
e. Rules 1.720(c), (d), and (e) of the Florida Rules of Civil Procedure
governing mediation are incorporated herein.
11. MISCELLANEOUS PROVISIONS:
a. Arbitrators and mediators shall be agents and employees of the County
for purposes of tort immunity resulting from any actions taken while
conducting the hearing[s] or the mediation as long as these procedures
are followed. Such status shall not create a conflict of interest.
Prepared and Approved as to form
and legal sufficiency:
e~i~e Hubqoard Robinson'
tant County Attorney
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TIME CHART FOR ADR:
Within the Following Time Periods Following the Notice of Claim or the Date of the
Occurrence Underlying the Claim, Whichever is First, the Following Matters Must
Occur, JAil days are Calendar Days]:
Up to 14 days after occurrence or Notice of Claim,[whichever is first]: The
matter must be negotiated with County Staff.
Within 7 days of receipt of Notice of Claim: Staff shall prepare a written rebuttal.
Within 15 Days of Notice of Claim: Negotiation of dispute with County staff
must be completed.
Within 30 Days after Negotiations with County Staff ends or Within 45 days of
the date of the occurrence: a Request for Arbitration or Mediation Must be Filed.
After a Request for Arbitration or Mediation is Filed:
Within 21 days: The Mediation or Arbitration shall be set including the names of
the participants and all relevant claim documents forwarded to the Mediator or
Arbitrators.
No Later Than 14 days prior to date of Mediation: A written rebuttal to any claim
must be served on opposing party and Mediator or Arbitrators.
No Later Than 48 Hours Prior to the date of the Mediation or Arbitration: Any
request for a continuance must be filed with the Arbitrators or Mediator with a
copy to County Staff.
Once Mediation or Arbitration begins it may be continued for only 24 hours at a
time with the consent of the Arbitrators or Mediator.
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Within 14 days of conclusion of Arbitration or Mediation: Written decision must
be issued indicating that a certain conclusion has been reached or an impasse
entitling claimant to proceed to court litigation.
Both parties must undertake all ADR proceedings in good faith.
H/Jackie/Dispute Resolution Procedure
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