Backup Documents 09/14/2021 Item #16K21 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 1 6 K 2 1
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing)ines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office SRT 9/14/21
4. BCC Office Board of County PT by JMH 9/14/21
Commissioners /s/
5. Minutes and Records Clerk of Court's Office
VA) 917 iba( C r.ao6441-
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the
addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff Jessica Hayes/County Attorney's Office Contact Information 239-252-8400
Contact/Department
Agenda Date Item was September 14,2021 Agenda Item Number 16K21
Approved by the BCC
Type of Document je Settlement Agreement and Mutual Release Number of Original 2
Attached and Addendum to Settlement Agreement and Documents Attached
Mutual Release in the lawsuit captioned Collier
County v.West Construction,Inc
PO number or account
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signatures s AM) N/A
2. Does the document need to be sent to another agency for additi r . '- . 1 yes, N/A
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JMH
signed by the Chairman,with the exception of most letters,must be reviewed and signed by
the Office of the County Attorney.
All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JMH
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's JMH
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip N/A
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on September 14u',2021 and all changes JMH /A is not
made during the meeting have been incorporated in the attached document. The in option for
County Attorney's Office has reviewed the changes,if applicable. is line.
9. Initials of attorney verifying that the attached document is the version approved by the BCC, /A is not
all changes directed by the BCC have been made,and the document is ready for the lit option for
Chairman's signature. A, Otis line.
****Please Send a Copy to Andrew Bennett at Airport Authority and Scott Teach at CAO****
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MEMORANDUM
Date: September 17, 2021
To: Jessica Hayes, Legal Assistant
County Attorney's Office
From: Martha Vergara, Deputy Clerk
Minutes & Records Department
Re: Settlement Amendment Mutual Release and addendum to
Settlement Agreement and Mutual Release for Lawsuit
captioned
Collier County v. West Construction, Inc.
Attached for your records are one (1) original of the document as referenced above,
(Item #16K21) adopted by the Board of County Commissioners on Tuesday,
September 14, 2021.
The Board's Minutes and Records Department has kept the original as part of the
Board's Official Records.
If you have any questions, please feel free to contact me at 252-7240.
Thank you.
Attachment
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
this 23rd day of July, 2021, between the Board of County Commissioners of Collier County,
Florida(hereinafter"County"),Philadelphia Indemnity Insurance Company(hereinafter"Surety")
and West Construction, Inc.(hereinafter"West"),collectively referred to as the"Parties;"
WHEREAS, disputes have arisen between the parties related to the construction of the
Marco Island Executive Airport New Terminal&Associated Improvements, Invitation to Bid No.
18-7240(the"Project");and
WHEREAS,the Parties deny liability to one another for any and all claims regarding the
business dealings between the Parties;and
WHEREAS,the Parties to this Agreement wish to fully settle and resolve all existing and
potential disputes pertaining to the amounts owed to each other arising from the Project at issue in
the currently pending litigation between the Parties;
NOW,THEREFORE, in consideration of each and all of the mutual covenants, promises
and considerations set forth herein,the sufficiency of which is hereby acknowledged by the Parties,
the Parties do hereby agree as follows:
1. Incorporation by reference. The Parties agree to adopt and incorporate the
foregoing recitals, sometimes referred to as"Whereas clauses," by reference into this Agreement
as though fully rewritten herein.
2. Non-admission of liability. It is understood and agreed that this Agreement is the
compromise of disputed claims,and that any payment made hereunder is not to be construed as an
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admission of liability,fault or responsibility as to any claims or allegations on the part of any party,
which liability is and has been expressly denied.
3. Settlement Payment. In consideration of the Releases set forth below,West agrees
to forfeit its right to payment of any sums in addition to the amounts already paid by the County,
( and West agrees to pay County$45,811.82 in settlement of this matter,to be paid in four(4)equal
installments starting within 30 days from September 14,2021. Payment shall be made payable to
"Board of County Commissioners of Collier County,Florida,"but shall be addressed to its counsel
at:
Board of County Commissioners of Collier County, Florida
c/o Carlton Fields, PA
Attn: Paul Ullom
4221 W. Boy Scout Blvd. Suite 1000
Tampa, FL 33607
County waives and releases any claims to any other compensation for any amounts owed by West
and/or the Surety, including but not limited to,any amounts remaining on the contract,any liens,
Public Performance Bond No.PB 12159900138(hereinafter"Bond"),and any invoices or amounts
owed to third parties. The Parties acknowledge that amounts owed by each Party to the other Party
are being compromised in consideration for the settlement of the claims related to their business
dealings,and neither party shall seek any future compensation,of any sort,from the other.
4. Releases.
a. West, on behalf of itself, and its past, present and future attorneys, agents,
servants, contractors, subcontractors, suppliers, representatives, insurers, successors in interest,
and assigns of all of them,shall release and forever discharge the County,its affiliates,subsidiaries,
related companies, predecessors, successors and/or assigns, subcontractors or affiliates,
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employees, former employees, attorneys, officers, directors, principals, shareholders, and
members from any and all claims of whatever nature or description,whether now known or arising
in the future, and whether arising from contract, indemnity, warranty, express or implied, in
contract or tort,relating to their business dealings on the Project that is the subject of this lawsuit.
b. County,on behalf of itself,and its past,present and future attorneys,agents,
servants, contractors, subcontractors, suppliers, representatives, insurers, successors in interest,
and assigns of all of them,shall release and forever discharge West, the Surety and its Bond, their
affiliates, subsidiaries, related companies, predecessors, successors and/or assigns, or affiliates,
employees, former employees, agents, attorneys, officers,directors, principals, shareholders, and
members from any and all claims of whatever nature or description,whether now known or arising
in the future, and whether arising from contract, indemnity, warranty, express or implied, in
contract or tort,relating to their business dealings on the Project that is the subject of this lawsuit.
This Release includes any latent defects in West's Work(as that term"Work"is defined under the
Parties' construction contract), except those that result in personal injury or death. Any such
excepted claims by County shall be limited to amounts recovered from insurance, and West shall
assign its rights to County to pursue such insurance directly. Notwithstanding the foregoing, the
County waives and releases the Surety and the Bond for any and all claims, including those related
to personal injury or death.
5. Voluntary Execution/Role of Legal Counsel. The Patties acknowledge that this
Agreement is freely and voluntarily executed after they have been apprised of all relevant
information concerning the Agreement and that they have had the opportunity to consult with and
receive the advice of counsel in entering into this Agreement. In executing this Agreement, the
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Parties acknowledge that they do not rely on any inducements,promises,or representations other
than those contain herein. In this regard, the Parties acknowledge that this Agreement is the
product of mutual negotiation and no doubtful or ambiguous provision that may exist in this
Agreement is to be construed against any of the Parties based upon a claim that one of the Parties
drafted the Agreement, or that the language of the Agreement was intended to favor one of the
Parties.
6. Governing law. This Agreement shall be deemed to have been made and to be
performed, and shall be interpreted, construed and enforced, in accordance with the laws of the
State of Florida.
7. Complete Agreement. The Parties acknowledge that in deciding to execute this
Agreement and then in executing this Agreement, they have not relied upon any agreement,
statement or representation that is not specifically set forth herein, that this Agreement contains
the entire agreement between the Parties hereto regarding the resolution of their disputes,and that
the terms of the Agreement are contractual and not mere recitals.
8. Modifications. No later than Tuesday,July 27,2021,the parties shall modify this
agreement to further clarify its terms consistent with the document attached as Exhibit A.
9. Severability. In the event that any term or provision of this Agreement is deemed
unenforceable or unlawful for any reason, the remainder of the Agreement shall be deemed
enforceable and in effect.
10. Enforceability. This Agreement is effective and binding upon the Parties as of the
date it is executed on behalf of the Parties, subject only to the approval of the Board of County
Commissioners of Collier County,Florida at its next duly noticed meeting of September 14,2021.
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11. Non-Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute a waiver of any such provisions.
12. Authority to Bind. The signatories hereto each warrant and represent that they
have the requisite authority to enter into this Agreement on behalf of the respective party, subject
only to the approval of the Board of County Commissioners of Collier County, Florida at its next
duly noticed meeting of September 14,2021.
13. Dismissal of Action. West and County agree to dismiss their claims in the
above-referenced litigation upon clearance of the settlement payment referenced above.
14. Assignment of Warranties. West will assign to County any and all manufacturer,
subcontractor,or other warranties related to the Project. Nothing herein is intended to waive any
claims of County against subcontractors or suppliers.
15. Return of Bond. The County will return the original Bond to the Surety marked
"CANCELLED"on its face and signed by an authorized agent of the County.
16. No Release by Surety. This Agreement shall not apply to, nor shall it constitute
in any way, a release, waiver or modification of Surety's claim(s) for indemnity and/or
reimbursement against West Construction Inc., West Architecture + Design, LLC, West Africa
Rock and Concrete Products, LLC, WC Warehouse, LLC, Don E. West, Martha A. Morgan, and
Matthew F. West with respect to any bond claim(s) and/or causes of action, paid or resolved by
Surety and/or asserted,or to be asserted,against Surety,and/or any additional attorneys'fees,costs
and other expenses incurred by Surety. Surety reserves all of its rights against West Construction
Inc., West Architecture + Design, LLC, West Africa Rock and Concrete Products, LLC, WC
Warehouse, LLC, Don E. West, Martha A. Morgan, and Matthew F. West with respect to any
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payments, losses, attorneys' fees,costs and/or other expenses incurred by Surety for any and all
bonds,claims,lawsuits and indemnity actions involving West Construction Inc., West Architecture
+ Design, LLC, West Africa Rock and Concrete Products, LLC, WC Warehouse, LLC, Don E.
West, Martha A. Morgan, and Matthew F West and their successors-in-interest, including but not
limited,to any potential payment in this lawsuit or any other action.
This Space Intentionally Left Blank
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•
IN WITNESS WHEREOF,the undersigned hereby execute this Agreement on the date(s)
set forth below.
MEDIATOR Board of County Commissioners of Collier
County, Florida
/s/,BruceAlexa►rder lay:
Bruce Alexander Its: Siec.. ,Js. (�•'�r��jt, } ��
Date: '1 ^ 13 —Z0 I
West Constructs c.
Its: V t G 5 t ANT __—
Date: -1 - 23 - Z9 21
Philndel hi Indemnit Insurance f'om anv
By: --
Its: >IA3• •
Date: ^_ r _
11:14•a-: - 7 -
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EXHIBIT A
1. West Construction shall pay the total sum of$45,811.82 to the County,which shall be
payable in four equal monthly payments beginning 30 days after execution of the
settlement agreement and full approval of the Board,whichever is later.
2. The parties shall exchange full mutual releases,which shall Include a release of latent
defects.
3. The release will further include a waiver and release of all claims under the performance
bond, and the original performance bond issued by PHLY shall be marked cancelled on
its face by an authorized representative of the county and returned to PHLY via Ty
Thompson.
4. The payment bond issued by PHLY shall remain in full force pursuant to its terms.
5. West will assign all manufacturers warranties to the County.
6. The agreement shall contain stipulations as to the delays sought by the County in the
lawsuit,which shall refer to scopes of work/trades and time periods of delay but not
specifically refer to any third parties.
7. The release given by West shall not include a release of Atkins, TRC Worldwide
Engineering, or any other design professionals.
8. The County shall dismiss the lawsuit upon full execution and board approval, with all
parties bearing their own attorneys'fees and costs.
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ATTEST: BOARD OF COUNTY COMMISSIONERS
Crystal K.Kinzel,Clerk of Courts COLLIE C TY, FLORIDA
&Comptroller
By: By:
envy T r,Chairper
Dated:, e= 'go
(S AL)
Attest as to Chairman s
suture oniy.
App ve s t for?? legality:
By:
Sco . Teac
Deputy County Attorney
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ADDENDUM TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This ADDENDUM ("Addendum") is incorporated into the Settlement Agreement and
Mutual Release (the "Agreement") dated July 23, 2021, between the Board of County
Commissioners of Collier County, Florida (hereinafter "County"), Philadelphia Indemnity
Insurance Company (hereinafter "Surety") and West Construction, Inc. (hereinafter "West"),
collectively referred to as the"Parties."The Parties agree as follows:
1. Between the first recital (ending in"Invitation to Bid No. 18-7240 (the"Project"); and")
and the second recital (beginning with "WHEREAS, the Parties deny liability to one
another"),insert the following:
WHEREAS, such disputes include the County's assertion of liquidated damages accruing
at a rate of$3,645.00 per day and allegedly resulting from a six-hundred seventy-seven(677)day
delay of the Project,which includes,but is not limited to,the following delays: (a)sixty-nine(69)
days of delay relating to sitework from April 30t,2018 through November 18,2018;(b)seventy-
two (72) days of delay relating to the concrete and masonry scope of work from November 19,
2018 through May 13,2019; (c)forty(40)days of delay relating to the second floor deck collapse
that occurred on or about March 28,2019;(d)one-hundred twenty-six(126)days of delay relating
to the metals/framing scopes of work; (e) one-hundred sixty-six (166) days of additional delays
relating to sitework not included above; (f) fourteen (14) days of delay relating to the electrical
scope of work;and(g)thirty-four(34)days of delay relating to the stucco and exterior finish scope
of work.
2. The following is inserted at the end of Article 4, Subpart a of the Agreement: "Nothing
contained herein shall be deemed a release by West of any design professional involved in
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the Project,including but not limited to Akins North America,SchenkelShultz Architecture
and/or TRC Worldwide Engineering,Inc."
3. The following is inserted at the end of Article 13 of the Agreement: "All parties shall bear
their own attorney's fees and costs relating to the litigation, except as otherwise set forth
herein."
4. Article 8 of the Agreement is deleted in its entirety and replaced with the following:
Modifications. This Agreement cannot be amended, modified or amplified except by
agreement and written document,which is signed by all Parties hereto. No oral statement made
by any person shall operate to modify this Agreement in any manner or otherwise affect its terms
and provisions.
IN WITNESS WHEREOF,the undersigned hereby execute this Addendum on the date(s)
set forth below.
Board of County Commissioners of West Construction.Inc.
Collier County.Florida l
f
By: �. By: .
Its: SYtc.l vt AP•tpattS t`S.CtIr-AC'2 Its: �t ' P
Date: '7 - Date: q t 2't
Philadelphia Indemnity Insurance
Company
By: /1A
Its:
j Cnf, `
Date:
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ATTEST: BOARD O COUNTY COMMISSIONERS
Crystal K. Kinzel,Clerk of Courts COLLIE C TY, FLORID
&Comptroller
BY: il1 _ LAM i i! y:
Penny Ta r,Chairperson
Dated: rfr.' Ue{' F
(S:AL)
Attest as to Chairman's•
signatwe only.
Approv to form and 1 gality:
By:
Scott . Te h
Deputy County Attorney
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