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Agenda 04/08/2008 Item #16K 6 Agenda item No. 16K6 April 8, 2008 Page 1 of 10 EXECUTIVE SUMMARY Recommendation to approve settlement from Defendant, D.N. Higgins, Inc. and Dillard Smith, Construction Company, in the lawsuit entitled Board of County 'Commissioners of Collier County vs. Florida Power & Ligltt Company, et aL, filed in the Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 07-2683-CA, for $13,500.00. ; OBJECTIVE: For the Board of County' Commissioners to approve settlement, whereupon the County will accept $3,500.00 as full settlement from Defendant, D.N. Higginil, Inc., (hereinafter "Higgins") and $10,000.00 from Dillard Smith Construction Company, (hereinafter "Dillard") in the lawsuit entitled Board of County Commissioners of Collier County vs. Florida Power & Light Company, et at., tiled in the Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 07-2683-CA. CONSIDERATIONS: The County Attprney's Office filed a lawsuit seeking reco.(,ery of damages for approximately $25,000.00 against Higgins and Florida Power & Light Company andlor its subcontractor Dillard. The lawsuit seeks recovery of damages incurred from an August 18,2003, wastewater spill into the South Florida Management canal, which was caused by damage to the County's 4" force main and an 8" force main. After lengthy negotiations, Higgins has agreed to settle the 4" force main damage claim for $3,500.00 and Dillard $10,000.00 for the 8" force main damage claim. Determining liability is difficult due to the lack of supporting documents of site meeting minutes and Florida Department of Environmental Protection hearing proceedings and the length of time that has passed. Furthermore, Dillard and Florida Power & Light Company paid fines imposed by the FPEP in the approximate amount of $24,000.00, which Dillard is seeking in a counterclaim against the County. Said counterclaim will be dismissed as part of the settlement. . The settlement is reasonable under all the circumstances. FISCAL IMPACT: The settlement offer amounts to $13,500.00, whieh will be revenue deposited into the Risk Management Property & Ca~ualty Fund. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this item. LEGAL CONSIDERATIONS: Both the County Attorney, the Risk Management Director and the Wastewater Director opine that settlement in the sum of $13,500.00 as full paytnent is reasonable. RECOMMENDATION: That the Board of County Commissioners approve settlement in the amount of $13,500.00 and authorize the Chairman of the Board of County Commissioners to execute all necessary documents. PREPARED BY, William E. Mountford, Assistant County Attorney - 04.9974/2186 . Page 1 of 1 Agenda Item No. 16K6 April 8, 2008 Page 2 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16K6 Recommendation to approve settlement from Defendant, D.N. Higgins, Inc. and Dillard Smith, Construction Company, in the lawsuit entitled Bee VS. Florida Power & Light Company, et aI., filed in the Twentieth Judicial Circuit, Florida. Case No. 07-2683~CA, for $13500 4/8/2008 900:00 AM Item Summary: Meeting Date: Approved By Stephen L. Nagy Wastewater Collections Manager Date Public Utilities WasteWater 3/26/200810:58 AM Approved By G. George Yilmaz WasteWater Director Date Public Utilities WasteWater 3/26/200811:00AM A pproved By William Mountford Assistant County Attorney Date County Attorney County Attorney Offtce 3/26/2008 11:13 AM Approved By Donald Edwards Operations Manager Date Public Utilities Wastewater 3/26/2008 1 :58 PM Approved By Thomas Wides Operations Director Date Public Utilities PubliC Uttlities Operations 3/26/20085:11 PM Approved By David C. Weigel County Attorney Date County Attorney County Attorney Office 3/27/200811:08 AM Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 3/27/20082:20 PM Approved By John A. Y onkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 3/27/20084:00 PM Approved By Leo E. Ochs, Jr. Board of County Commissioners Deputy County Manager Date County Manager's Office 3/29/20084:26 PM file://C:\AgendaTest\Export\ 1 04-April%208. %202008\ 16.%20CONSENT%20AGENDA \ 16... 4/2/2008 Agenca Item No. 16K6 April 8, 2008 Page 3 of 10 SETTLEMENT AGREEMENT AND MUTUAL RELEASE THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred to as the "Agreement and Release") is entered into and made on this day of ,200_ by and between DN Higgins, Inc., (hereinafter referred to as "Defendant") and Plaintiff, Board of County Commissioners of Collier County (hereinafter referred to as the "County"). WIT N E SSE T H: WHEREAS, the County filed a lawsuit against the Defendant in the County Court for the Twentieth Judicial Court in and for Collier County, Florida, styled Board of County Commissioners of Collier County v. FPL, et aI., Case No. 07-2683-CA (hereinafter referred to as the "Lawsuit"); and, WHEREAS, County and the Defendant, without either of them admitting any liability or fault, desire to settle the Lawsuit and any and all disputes that arise from, relate or refer in any way, whether directly or indirectly, to the incidents described or allegations made in the Complaint filed in the Lawsuit; and, WHEREAS, County and the Defendant desire to reduce their settlement to a writing so that it shall be binding upon them as well as their respective owners, principals, elected officials, officers, employees, ex-employees, agents, attorneys, representatives, insurers, spouses, successors, assigns, heirs and affiliates. NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this Agreement and Release, and with the intent to be legally bound, County and the Defendant agree as follows: Agenda Item No. 16K6 April 8, 2008 Page 4 of 10 1. County and the Defendant adopt and incorporate the foregoing recitals, sometimes referred to as "Whereas Clauses", by reference into this Agreement and Release. 2. In consideration of the resolution of all disputes or claims arising from or referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and in consideration of the sum of Three Thousand Five Hundred Dollars ($3,500.00) and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Defendant, County agrees to dismiss the Lawsuit with prejudice. 3. In consideration of the resolution of the Lawsuit, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the County, on behalf of its elected officials, officers, employees, ex-employees, agents, attorneys, representatives, successors, assigns, insurers and affiliates, hereby expressly releases and forever discharges the Defendant, as well as its attorneys, agents, representatives, insurers, heirs, successors and assigns, from any and all claims, demands, causes of actions, damages, costs, attorney's fees, expenses and obligations of any kind or nature whatsoever that the County has asserted or could have asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly or indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the Complaint in the Lawsuit. 4. Notwithstanding anything that may be to the contrary in Paragraph 3 of this Agreement and Release, County and the Defendant agree that either of them (as well as any other persons or entities intended to be bound) shall, in the event of any breach, retain the right to enforce the terms and conditions of this Agreement and Release. 2 Agenda Item No. 16K6 April 8, 2008 Page 5 of 10 5. County and the Defendant 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. 6, County and the Defendant recognize and acknowledge that this Agreement and Release memorializes and states a settlement of disputed claims and nothing in this Agreement and Release shall be construed to be an admission of any kind, whether of fault, liability, or of a particular policy or procedure, on the part of either County and the Defendant 7. County and the Defendant acknowledge and agree that this Agreement and Release is the product of mutual negotiation and no doubtful or ambiguous language or provision in this Agreement and Release 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. 8. This Agreement and Release may be amended only by a written instrument specifically referring to this Agreement and Release and executed with the same formalities as this Agreement and Release. 9. In the event of an alleged breach of this Agreement and Release, County and the Defendant agree that all underlying causes of action or claims of the County 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, County and the Defendant further agree that the sole venue for any such action shall be in the Twentieth Judicial County in and for Collier County, Florida in Naples, Florida. 3 Agenda Item No. 16K6 April 8, 2008 Page 6 of 10 10. This Agreement and Release shall be governed by the laws of the State of Florida. IN WITNESS WHEREOF, County and the Defendant have signed and sealed this Agreement and Release as set forth below. DATED: ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ,Deputy Clerk By: TOM HENNING, Chairman Approved as to form and legal sufficiency: For Defendant ON Higgins, Inc.: William E. Mountford Assistant County Attorney Signature Title STATE OF FLORIDA COUNTY OF COLLIER THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF COLLIER COUNTY AND DEFENDANT WAS SWORN TO and subscribed by as representative of ON Higgins, Inc., before me, this day of ,200_. Signature of Notary Public Commissioned Name of Notary Public My Commission expires: Personally Known Produced Identification or Type of Identification Produced 4 Agenda Item No. 16~(6 April 8, 2008 Page 7 of 10 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (hereinafter referred to as the "Agreement and Release") is entered into and made on this day of ,200_ by and between Dillard Smith Construction Company, and Florida Power & Light Company, (hereinafter referred to as "Defendants") and Plaintiff, Board of County Commissioners of Collier County (hereinafter referred to as the "County"). WIT N E SSE T H: WHEREAS, the County filed a lawsuit against the Defendants in the County Court for the Twentieth Judicial Court in and for Collier County, Florida, styled Board of County Commissioners of Collier County v. FPL, et aI., Case No. 07-2683-CA (hereinafter referred to as the "Lawsuit"); and, WHEREAS, County and the Defendants, without either of them admitting any liability or fault, desire to settle the Lawsuit and any and all disputes that arise from, relate or refer in any way, whether directly or indirectly, to the incidents described or allegations made in the Complaint filed in the Lawsuit; and, WHEREAS, County and the Defendants desire to reduce their settlement to a writing so that it shall be binding upon them as well as their respective owners, principals, elected officials, officers, employees, ex-employees, agents, attorneys, representatives, insurers, spouses, successors, assigns, heirs and affiliates. Agenda Item No. 16K6 April 8, 2008 Page 8 of 10 NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this Agreement and Release, and with the intent to be legally bound, County and the Defendants agree as follows: 1. County and the Defendants adopt and incorporate the foregoing recitals, sometimes referred to as "Whereas Clauses", by reference into this Agreement and Release. 2. In consideration of the resolution of all disputes or claims arising from or referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and in consideration of the sum of Ten Thousand Dollars ($10,000.00) and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Defendants, County agrees to dismiss the Lawsuit with prejudice. 3. In consideration of the resolution of the Lawsuit, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the County, on behalf of its elected officials, officers, employees, ex-employees, agents, attorneys, representatives, successors, assigns, insurers and affiliates, hereby expressly releases and forever discharges the Defendants, as well as its attorneys, agents, representatives, insurers, heirs, successors and assigns, from any and all claims, demands, causes of actions, damages, costs, attorney's fees, expenses and obligations of any kind or nature whatsoever that the County has asserted or could have asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly or indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the Complaint in the Lawsuit. 4. Notwithstanding anything that may be to the contrary in Paragraph 3 of this Agreement and Release, County and the Defendants agree that either of them (as 2 Agenda item NO.1 'SK6 April 8, 2003 Page 9 of 10 well as any other persons or entities intended to be bound) shall, in the event of any breach, retain the right to enforce the terms and conditions of this Agreement and Release. 5. County and the Defendants 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. 6. County and the Defendants recognize and acknowledge that this Agreement and Release memorializes and states a settlement of disputed claims and nothing in this Agreement and Release shall be construed to be an admission of any kind, whether of fault, liability, or of a particular policy or procedure, on the part of either County and the Defendants. 7. County and the Defendants acknowledge and agree that this Agreement and Release is the product of mutual negotiation and no doubtful or ambiguous language or provision in this Agreement and Release 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. 8. This Agreement and Release may be amended only by a written instrument specifically referring to this Agreement and Release and executed with the same formalities as this Agreement and Release. 9. In the event of an alleged breach of this Agreement and Release, County and the Defendants agree that all underlying causes of action or claims of the County 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, County and the 3 Agenda Item No. 16K6 April 8, 2008 Page 10 of 10 Defendants further agree that the sole venue for any such action shall be in the Twentieth Judicial County in and for Collier County, Florida in Naples, Florida. 10. This Agreement and Release shall be governed by the laws of the State of Florida. IN WITNESS WHEREOF, Plaintiff Collier County and the Defendant Dillard Smith Construction Company have signed and sealed this Agreement and Release as set forth below. DATED: ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ,Deputy Clerk By: TOM HENNING, Chairman Approved as to form and legal sufficiency: For Defendants Dillard Smith Construction Company: William E. Mountford Assistant County Attorney Signature Title STATE OF COUNTY THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF COLLIER COUNTY AND DEFENDANT DILLARD SMITH CONSTRUCTION COMPANY WAS SWORN TO and subscribed by , as representative of Dillard Smith Construction Company, before me, this ,200_ day of Signature of Notary Public Commissioned Name of Notary Public My Commission expires: Personally Known Produced Identification or 4