Agenda 01/15/2008 Item #16B15
Agenda Item No. 16815
January 15, 2008
Page 1 of 10
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement and Release between CoIlier County
and Magnum Construction Management Corp. d/b/a MCM Corp. "MCM") to resolve all
claims and disputes arising from Collier County Bid/Contract No. 04-3653 entered into
with MCM to build the Golden Gate Grade Separated Overpass and for the Chair of the
Board of County Commissioners to execute the agreement on behalf of the Board (Fiscal
Impact $190,579.35).
OBJECTIVE: That the Board approves the attached proposed Settl~ment Agreement and
Release with MCM to resolve all claims and disputes arising from Collier County Bid/Contract
No. 04-3653 entered into with MCM to build the Golden Gate Grade Separated Overpass, which
has a net fiscal impact to the County of$190,579.35.
CONSIDERATIONS: Collier County entered into Bid/Contract No. 04-3653 (the "Contract")
with MCM on or about July 27, 2004, to build the Golden Gate Grade Separated Overpass (the
"Project'"). Disputes arose between the County and MCM concerning timely performance,
requests for extensions of time to perform and requests for additional compensation for the
Project including disputes over (a) maintenance of traffic through the current projected
completion date ($406,810.80); (b) 36 inch city water main delay days (60 days); (c) material
increase beyond original contract date ($247,672.39); (d) intermediate coping ($65,000.00); (e)
overbuild of Airport Road ($86,453.71); (f) Better Roads material increase ($302,573.57); and
(g) delay in shifting traffic over bridge.
Without any admission of liability or fault by either the County or MCM, the Agreement
recognizes the potential costs and uncertainties of litigation and proposes to resolve all disputes
between the parties; while preserving any claims by the County for latent defects and warranty
items.
The financial terms of the settlement proposed are as follows:
. The County agrees to: (a) pay MCM $290,579.35, which amount reflects granting MCM
an 95 day time extension at the Contract rate of$3,058.73 per day for the need to extend
Maintenance of Traffic ("MOT") on the Project from the expiration date of the contract
on March 31,2007 through and including July 4, 2007, and includes that period of delay
occasioned by the belated delivery of a specialized City of Naples 36 inch water main
pipe, and (b) waive all claims for liquidated damages on the Project.
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Agenda Item No. 16815
January 15, 2008
Page 2 of 10
. MCM agrees to credit the County for: (a) fourteen (14) days of time during which
MCM's forces were diverted to work on the 1-75 interchange, which credit is already
incorporated into, deducted from, and reflected in the $290,579.35 sum agreed to be paid
by the County, and (b) an additional credit in the sum of $1 00,000.00 in settlement of
MCM's installation of a wall finish that did not comply with the aesthetic requirements of
the work specifications required under the contract.
As a result ofMCM's agreement to grant the County those two credits, the net amount owed to
MCM by the County under this Agreement and Release is $190,579.35.
FISCAL IMPACT: Funds in the amount of $190,579.35 are budgeted in the project within
the Transportation Gas Tax Fund. Source of funds are Gas Taxes. In addition to the
$190,579.35 for this Settlement Agreement, final payment and retainage is still to be paid on this
contract. A final balancing change order may be required in order to pay for overruns and
asphalt and fuel adjustment per the contract documents.
GROWTH MANAGEMENT IMP ACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: The Settlement Agreement and Release has been reviewed and
approved for legal sufficiency and is offered for the Board's consideration.
RECOMMENDATION: That the Collier County Board of Commissioners approve the
Settlement Agreement and Release and authorize its Chairperson to execute the Agreement on its
behalf.
Prepared by: Jay Ahmad, P.E., Director, Transportation Engineering and Construction Mngmt.
Attachment: Settlement Agreement and Release
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Aaenda Item No. 16815
o January 15, 2008
Page 3 of 10
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16B15
Meeting Date:
Recommendation to approve a Settlement Agreement and Release between Collier County
and Magnum Construction Management Corp. d/b/a MCM Corp. MCM) to resolve all claims
and disputes ansing from Collier County Bid/Contract No. 04 -3653 entered into with MCM to
build the Golden Gate Grade Separated Overpass and for the Chair of the Board of County
Commissioners to execute the agreement on behalf of the Board (Fiscal Impact
$190,58935)
1/15/200890000 AM
Prepared By
Najeh Ahmad
Director
Date
Transportation Services
Transportation Engineering &
Construction Management
1/3/20082:14:33 PM
Approved By
Steve Ritter
Field Engineering Inspector
Transportation Engineering and
Construction
Date
Transportation Services
1/3/20082:19 PM
Approved By
Sharon Newman
Accounting Supervisor
Date
Transportation Services
Transportation Services Admin
1/3/20082:32 PM
Approved By
Lisa Taylor
ManagemenUBudget Analyst
Date
Transportation Services
Transportation Administration
1/3/20082:48 PM
Approved By
Norm E. Feder, A1CP
Transportation Division Administrator
Date
Transportation Services
Transportation Services Admin.
1/3/20083:32 PM
Approved By
Najeh Ahmad
Director
Date
Transportation Services
Transportation Engineering &
Construction Management
1/3/20084:13 PM
Approved By
Rhonda Rembert
Contract Specialist
Date
Administrative Services
Purchasing
1/4/20084:53 PM
Approved By
Scott R. Teach
Assistant County Attorney
Date
County Attorney
County Attorney Office
1/7/20088:43 AM
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Agenda Item No. 16815
January 15, 2008
Page 4 of 10
Approved By
Steve Carnell
Purchasing/General Svcs Director
Date
Administrative Services
Purchasing
1/7/200811 :22 AM
Approved By
Pat Lehnhard
Executive Secretary
Date
Transportation Services
Transportation Services Admin
1/7/20084:30 PM
Approved By
OMS Coordinator
Applications Analyst
Date
Administrative Services
Information Technology
1/8/20087:57 AM
Approved By
David C. Weigel
County Attorney
Date
County Attorney
County Attorney Office
1/9/20089:11 AM
Approved By
Susan Usher
Senior Management/Budget Analyst
Date
County Manager's Office
Office of Management & Budget
1/9/200812:45 PM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
1/9/20082:55 PM
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Agenda Item No. 16815
January 15, 2008
Page 5 of 10
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (referred to hereinafter as the "Agreement and
Release") is made and entered into this 15th day of January, 2008, by and between the Board of
County Commissioners of Collier County, Florida, (referred to hereinafter as the "County") and
Magnum Construction Management Corp. d/b/a MCM Corp. (referred to hereinafter as
"MCM").
WITNESSETH
WHEREAS, the County entered into Bid/Contract No. 04-3653 (referred to hereinaftcr as
the "Contract") with MCM on or about July 27, 2004, to build the Golden Gate Grade Separated
Overpass (hereinafter referred to as the "Project"); and
WHEREAS, disputes arose between the County and MCM concerning timely
performance, requests for extensions of time to perform and requests for additional
compensation for the Project including disputes over (a) maintenance of traffic through the
current projected completion date ($406,810.80); (b) 36 inch city water main delay days (60
days); (c) material increase beyond original contract date ($247,672.39); (d) intermediate Coping
($65,000.00); (e) ovcrbuild of Airport Road ($86,453.71); (1) Bctter Roads material Increase
($302,573.57); and (g) delay in shifting traffic over bridge; and
WHEREAS, the County and MCM without admitting any liability or fault by either of
them, now seek to resolve all disputes because both the County and MCM recognize the costs
and uncertainties of litigation; and
WHEREAS, the County and MCM intend through this Agreement and Release to resolve
any and all claims that have been asserted or that could have been asserted by either the County
or MCM that arise from, or refer or relate in any way, whether directly or indirectly, to the
Agenda Item No. 16815
January 15, 2008
Page 6 of 10
Project with the exception of claims by the County for latent defects and warranty items as is
more fully stated in paragraphs 6 and 7 of this Agreement and Release;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
considerations set forth in this Agreement and Release, the sufficiency of which is hereby
acknowledged, and with the intent to be legally bound, the County and MCM mutually agree to
the following:
I. The County and MCM agree to adopt and incorporate the foregoing recitals,
sometimes referred to as "Whereas clauses" by reference into this Agrecment and
Release.
2. For its part, the COWlty agrees to: (a) pay MCM $290,579.35, which amount
reflects granting MCM an 95 day time extension at the Contract ratc of$3,058.73
pcr day for the need to extend Maintenance of Traffic ("MOT") on the Projcct
from the expiration date ofthc contract on March 31, 2007 through and including
July 4, 2007, and includes that period of delay occasioned by the belated delivery
of a specialized City of Naples 36 inch water main pipe, and (b) waive all claims
for Liquidated Damages on the Project.
3. For its part, MCM has and hereby does credit tbe County for: (a) fourtecn (14)
days of time during which MCM's forces were diverted to work on the [-75
interchange, which credit is already incorporated into, deducted from, and
reflected in the $290,579.35 sum agreed to be paid by the County in paragraph 2
above, and (b) an additional credit in the sum of $100,000.00 in settlement of
MCM's installation of a wall finish that did not comply with the aesthetic
requirements of the work specifications required under the contract. As a result of
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Agenda Item No. 16815
January 15, 2008
Page 7 of 10
MCM's agreement to grant the County those two credits, the net amount owed to
MCM by the County under this Agreement and Release is $190,579.35.
4, The settlement payment made herein docs not includc payment for any claims
resulting from increases in material costs which claims have been expressly
rejected by the County and for which MCM agrees to no longer pursue.
5. MCM further agrees that in consideration for the sum agreed to be paid by the
County and for other consideration identified in paragraph 2 of this Agreement
and Release, it shall and hereby does waive any and all claims against the County,
whether known or unknown, it may now have or may have in the future whether
for time or money that in any way whatsoever relate, refer to or arise from the
Project or Bid/Contract No. 04-3653.
6. The County and MCM agree that this Agreement and Release shall become one
of the contract documents for purposes of Bid/Contract No. 04-3653 and the
Project and shall operate to supersede and replace any and all prior agreements
and understandings with respect to the specific issues governed by this Agreement
and Release.
7. Except for the balance of the contract consisting of the retainage and final
payment, which will follow standard invoicing policy as stipulated in the contract,
and except for any claim to enforce the terms and conditions of this Agreement
and Release, MCM on behalf of itself, its officers, owners, employees, ex-
employees, predecessors, successors, and assigns shall and hereby does fully,
finally, unconditionally and forever relea~e, acquit, remise, satisfy and forever
discharge the County, its elected officials, officers, employees, fonner employees,
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Agenda Item No. 16B15
January 15, 2008
Page 8 of 10
attorneys, agents, representatives, predecessors, successors, insurers, sureties and
assigns from any and all matter of action or actions, cause or causes of action,
suits, debts, dues, sums of money, accounts, reckonings, covenants, charges,
damages, obligations, liabilities, contracts, promises, judgments, executions,
claims, complaints, legal or equitable, whether known or unknown, which MCM
has asscrted, could have asserted or may have against the County that relate or
refer in any way to or arise directly or indirectly from Bid/Contract No. 04-3653
or the Project from now through the end of the world.
8. - For its part, the County shall and hereby does fully and finally and
unconditionally release, acquit, remise, satisfy and forever discharge MCM from
any claim, cause or causes of action relating or referring in any way to MCM's
performance of work for Bid/Contract No. 04-3653 or the Project through the
effective date of this Agreement and Release, provided that the County and MCM
agree that the County may and hereby does reserve its right to enforce the terms
and conditions of this Agreement and Release as well as its right to recover all
legal and equitable rclief for (1) any latcnt defccts of which thc County could not
reasonably have been aware as of the etlective date of this Agreement and
Release, and (2) any warranty items for which MCM has any responsibility
within the applicable warranty period.
9. The County and MCM hereby acknowledge and agree that this Agreement and
Release shall only modify their respective rights, prerogatives, obligations and
liabilities under the Bid/Contract No. 04-3653 or the Project to the extent
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Agenda Item No. 16815
January 15, 2008
Page 9 of 10
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expressly stated herein, and that all such rights prerogatives, obligations and
liabilities otherwise remain fully intact and are hereby preserved,
10. This Agreement and Release shall be governed by the laws of the State of Florida.
11. 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.
12. This Agreement and Release is freely and voluntarily executed by the County and
MCM after they have been apprised of all relevant information concerning this
Agreement and Release and after they have received advice of their respcctive
counsel. In executing this Agreement and Release, the County and MCM do not
rely on any inducements, promises, or representations other than the promises or
~
representations set forth in this Agreement and Release. In this regard, the
County and MCM acknowledge that this Agreement and Release is the product of
mutual negotiation and no doubtful or ambiguous provision that may exist in this
Agreement and Release is to be construed against any party either based upon a
claim that the party drafted the ambiguous language or that the language in
question was intended to favor one party or the other.
13. The effective date of this Agreement and Release shall be the date upon which it
is approved by the Board of County Commissioners of Collier County, Florida.
14. The County and MCM acknowledge and assume the risk that additional, different
or contrary facts to the facts which they believe to exist may be discovered after
this Agreement and Release has been entered into, and they agree that any such
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Agenda Item No. 16815
January 15, 2008
Page 10 of 10
additional, different or contrary facts shall in no way limit, waive, affect or alter
this Agreement and Release.
IN WITNESS WHEREOF, the County and MCM have executed this Agreement and
Release as evidenced in the following signature blocks:
ATTEST:
Dwight E. Brock, CLERK
BOARD OF COMMISSIONERS OF
COLLIER COUNTY, FLORIDA
BY:
BY:
DEPUTY CLERK
CHAIRMAN
y~
i~ Name
l5i2.ua:.. Me j) 0# AI-b
Printed Name
<;J~
S~ed Name
-+-(-rtn::P~\'j \'-'lold
Printed Name
MAGNUM CONSTR
MANAG E
C
B
ITS:
Print Title
Approved as to legal form and sufficiency:
Scott R. T cach
Managing Assistant County Attorney
07 -ecm-0063 5/3
6