Item K1Meeting Date: 1/16/08 -KW
Bulk Item: Yes No X
Division: County Attorney
Staff Contact Person: Bob Shillinger
AGENDA ITEM WORDING: An Attorney -Client Closed Session of the Board of County
Commissioners in the matter ofMonroe County v. Bender & Associates, CA K 03--915.
ITEM BACKGROUND: This case involves the defective windows which were originally installed in
the Gato Building during the rehabilitation project that converted that building to an administration
building.. Because the original windows leaked and did not pass hurricane impact tests, the County was
forced to replace the windows or face a loss of grant funding. After replacing the defective windows,
the County sued the Architect, the General Contractor and several subs and suppliers to recover
additional costs. The case is now ripe for mediation. Prior to attending mediation, legal staff desires
some direction from the Board.
Legal staff desires direction from the Board. Per F. S. 286.011(8), the subject matter of the meeting
shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, Acting County Administrator Debbie Frederick,
County Attorney Suzanne Hutton, Chief Assistant Bob Shillinger, special litigation counsel Ira Libanoff,
Esq. and a certified Court Reporter.
PREVIOUS RELEVANT BOCC ACTION: 12/19/07 BOCC approved Closed Session for 1/16/08
in Key West at 2:00 p.m.
STAFF RECOMMENDATIONS: N/A
TOTAL. COST: BUDGETED: Yes No
COST TOCOUNTY:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required
DISPOSITION: AGENDA ITEM #
Revised 2105
County of Monroe
The Florida. Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Susan M. Grimsley, Assistant County Attorney**
Natileene W. Cassel, Assistant County Attorney**
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
January 9, 2014
Amy Heavilin, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West FL 33040
Mayor Sylvia J. Murphy, Di
Mayor Pro Tern, Danny L.
George Neugent, District 2
Heather Carruthers, District
David Rice, District 4
Office of the Count
1111 12t° Street, Suite
Key West, FL 33040
(305) 292-3470 — Phor
(305) 292-3516 — Fax
In Re: Monroe County v. Bender & Associates, Case No.: CA-K-03-915
Dear Ms. Heavilin:
5
;e, District 1
Attorney
Please find enclosed herewith the transcript of the January 16, 2008 closed a orney/client
session of the Monroe County Board of County Commissioners regarding the above -
referenced matter. Under F.S. 286.011(8), the transcript may be made part of the public
record because the litigation has concluded.
Thank you for your assistance with this matter. Please contact me should
questions.
Sincerely,
Re�ert B. Shillinger
Monroe County Attorney
Enclosure
have any
I
1
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
2
WEDNESDAY, JANUARY 16, 2008
3
Re: Monroe County v. Bert Bender
4
COUNTY COMMISSIONERS:
5
Charles "Sonny" McCoy, Mayor
Dixie M. Spehar, County Commissioner
6
Mario DiGennaro, County Commissioner
George Neugent, County Commissioner
7
Sylvia J. Murphy, County Commissioner
8
STAFF:
9
Debbie Frederick, Acting County Administrator
Suzanne Hutton, County Attorney
10
Robert B. Shillinger, Assistant County Attorney
11
12
TRANSCRIPT OF PROCEEDINGS
13
Proceedings of the Board of County Commissioners
14
of Monroe County Attorney -Client Closed Session,
at the
15
Harvey Government Center, 1200 Truman Avenue, Ke
West,
16
Florida, on the 16th day of January 2008, commencing
at
17
approximately 1:35 p.m. and concluding at approximately
18
1:55 p.m., as reported by Lisa Roeser, Registered
Professional
19
Reporter and Notary Public, State of Florida at
Large.
20
21
22
ORIGINAL.
23
24
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25
(305) 289-1201 / Fax 289-1642
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1
MS. HUTTON: It is pursuant to section
286.011
2
subsection 8, Florida Statutes. It is estimated
that
3
the meeting -- are we on the record.
4
MS. FREDERICK: Yes.
5
MS. HUTTON: That the meeting will
ake
6
approximately 30 minutes. The persons attending
the
7
meeting will be the County Commissioners,
acting
8
County Administrator Debbie Frederick, myself,
County
9
Attorney Suzanne Hutton, Assistant County
10
Attorney Bob Shillinger and a certified court
reporter.
11
Since the law prohibits any other person
from
12
being present at the closed session, the Commissioners
13
and County Attorney and the court reporter
will now
14
remain in this meeting room as well as the
Assistant
15
Acting County administrator and all other
persons are
16
required to leave the room.
17
When the closed session is over, we
will
18
re -convene and re -open the public meeting.
I do
19
have to say when we re -convene and open the
public
20
meeting we will then close the meeting again
for a
21
second closed session just so people know
that but
22
when both closed sessions are over with we
will
23
totally reconvene the public session. And
if the
24
Mayor will close the public meeting now.
25
MAYOR McCOY: The public meeting is
now
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1
closed. Officer, please close the door behind
you.
2
Thank you.
3
MS. HUTTON: If you want to call the
closed
4
session to order.
5
MAYOR McCOY: The closed session is now
in
6
order.
7
MS. HUTTON: For the record, this meeting
is
8
being held upon the request of County Attorney
Suzanne
9
Hutton who announced at a prior public meeting
held
10
on December 19, 2007 that she needed advice
concerning
11
the pending matter Monroe County versus Bender
&
12
Associates, CA K 03-915. At that meeting,
the board
13
approved holding today's closed session and
public
+ 14
notice was given at the December 19, 2007 B
CC meeting
15
and through publication of the agenda for the
16
January 16, 2008 BOCC regular meeting.
17
For the record, and the benefit of t
e court
18
reporter, each of us will state our name an
19
position starting with the commission.
20
Commissioner Murphy, do you want to
start.
21
COMMISSIONER MURPHY: Here.
22
MS. HUTTON: You need to state your
name and your
23
district.
24
COMMISSIONER MURPHY: Sorry. Sylvia
Murphy,
25
Commissioner, District 5.
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COMMISSIONER NEUGENT: George Neugent
County
2
Commissioner, District 2.
3
MAYOR McCOY: Sonny McCoy, District 3.
4
COMMISSIONER DIGENNARO: Mario DiGennaro,
District
5
4.
6
COMMISSIONER SPEHAR: Dixie Spehar, District
7
1.
8
MS. HUTTON: Suzanne Hutton, County Attorney.
g
MS. FREDERICK: Debbie Frederick, Acting
10
county Administrator.
11
MR. SHILLINGER: Bob Shillinger, Chief
12
Assistant County Attorney.
13
MS. HUTTON: As a reminder, we will
my be
14
discussing settlement negotiations and strategy
15
relating to litigation expenditures. We cannot
take
16
any decisive action at this meeting. We can
only
17
provide information and direction to the attorneys.
18
Any decisions this Board makes concerning this
case
19
must be done in a meeting open to the publi
.
20
I want to just bring up that we know
that the
21
County has some budgetary issues right now.
We are in
22
the middle of a couple of matters of litigation
that we
23
think may be appropriate if you want to pursue
it to
24
ramp up the settlement to maybe not be as hard
nosed
25
as we would normally be in our litigation strategy
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1
in order to settle the matter and reduce costs
and I
2
am going to let Mr. Shillinger take over witi
that.
3
MR. SHILLINGER: Good afternoon. We
are here
4
today to talk about the first case we are here
in
5
closed session which is Monroe County versus
Bender
6
& Associates, Security Impact Glass Services,
7
and American Insurance Company.
8
To give you a little background the ultimate
9
question we are going to ask is how much, if
any, of a
10
discount do we want to pursue in order to raise
cash in
11
light of our budget situation. The county hired
12
Bert Bender, his architectural firm to design
the
13
renovations for the Gato building.
14
Part of the design was for historical
looking
15
windows. We have resolved the case which dealt
with
16
the actual construction of the building. We
are only
17
dealing with the windows.
18
Mr. Bender's designs were basically based
the
19
windows on some replicas of what the origin
1 historic
20
frames were to look like.
21
COMMISSIONER NEUGENT: Bob, I just got
an e-mail
22
we're off the air.
23
MS. HUTTON: We are supposed to be off
the air.
24
COMMISSIONER NEUGENT: I know, but they
said there
25
is no sound.
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MS. HUTTON: They can see us actually
talking
2
but they can't hear us. This is not on the
record.
3
COMMISSIONER NEUGENT: Okay.
4
MS. HUTTON: I mean this is on the record,
but
5
it's not a public meeting.
6
MAYOR McCOY: We understand.
7
MR. SHILLINGER: Thank you for pointing
that
8
out. The designs were flawed. Basically there
were
9
some metal frames and you put individual panes
of glass
10
into it, they looked like the original wind
ws
11
in the historic building. In fact, the interior
12
windows were the actual original frames. T
ey leaked.
13
They didn't meet the wind loads. They failed
all the
,,,,,. 14
tests and they weren't up to code. They we
en't what
15
we asked for and they weren't what the spec3
called for.
16
In fact, FEMA and DPA withheld as a
mitigation
17
grant money because the windows were of such
poor
18
quality.
19
COMMISSIONER DIGENNARO: How much?
20
MR. SHILLINGER: It was about 7 or 8
hundred
21
thousand in grant money, if my memory serves
me
22
correctly.
23
MAYOR McCOY: Before you go any furt
er,
24
do they have an errors and omission policy?
25
MR. SHILLINGER: Yes.
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MAYOR McCOY: Okay.
2
MR. SHILLINGER: We just hired a rep
acement
3
company called Wind Tech to come in and install
new
4
windows, provide new windows. That is the
aindows
5
that are in there today. Basically what they
did is
6
they took, in laymens terms, just big sheets
of glass
7
and put decorative metal framing around it
and
g
it's much more stronger, the integrity is stronger
9
and they don't leak and they passed the wind
loads.
10
We got the grant money so now we are
suing for
11
the amount of money it took us to go and get
the
12
replacement windows and that was about $92
,000. If
13
you add up all the engineering costs and inspection
14
fees, our damages are about $960,000.
15
If we pile on and add on our very best
day
16
in court, theoretically we get all delay damages
because
17
or replacement issues and what not, we are
looking at
18
maybe about a million three. Our absolute
y best
19
day would be in court if we won every issue,
if
20
everything went our way and we got our attorneys
fees.
21
We are not being counter sued in th
s so there
22
is no down side of going forward other then
how far you
23
can go, get out of this. We have already
3pent
24
between $175,000 to $200,000 in attorneys
fees. Our
25
litigation counsel estimates it will cost
about a
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Im
1
$100,000 more to finish depositions and get
ready
2
to go to a trial.
3
So we are at a stage now where we have
4
completed the paper discovery and we're abou
to
5
launch into the depositions which will take
ounty staff
6
time out of doing work for the future and ha
ing them
7
refresh their memory about the project and spending
8
time getting ready for depositions, in depositions
9
and getting ready for trial. Also we're at
a posture now
10
where we could seek to try and mediate this
case and try
11
to get some sort of resolution.
12
The defenses that have been raised to
date
13
by the general contractor and the manufacturer
of the
14
windows is it's the architect's fault, don't
blame
15
us. The architect's defense is designs were
perfect
16
it was the manufacturer's fault so they are
kind of
17
pointing the fingers at each other. We're suing
18
everybody. It's not our fault and so the bottom
line
19
question is the commission in a mindset yet
where we
20
want to take a step back and say okay our b
dget
21
situation is so bad we could really use an infusion
22
of and I'll just throw a number out there, $750,000
23
$800,000 and try and settle this at a discounted
rate
24
so we can pull in some cash.
25
COMMISSIONER DIGENNARO: I don't lik
making
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1
business decisions because we are in a bud
et crunch.
2
It just doesn't -- sounds like we are goinq
down a path
3
of weakness. We are going down a path of using
our
4
budget problems to get second best. I mean
we are the
5
county and no matter how bad our crunch is
right now
6
I just don't like the way that sounds. Idon't
like
7
it.
8
MAYOR McCOY: We have the insurers.
9
MR. SHILLINGER: Right, and that is
the
10
American Casualty Insurance.
11
MAYOR McCOY: What is their response?
12
MR. SHILLINGER: Their response is
that our
13
damage calculations are wrong. It's really
the
14
difference between this and it's a lower n
mber.
15
COMMISSIONER DIGENNARO: What is th
number?
16
MR. SHILLINGER: I don't have a hard
number,
17
but their calculation is that we got what
ae paid
18
for and then the design -- there is a different
19
calculation. There is a couple hundred th
usand
20
between what we paid for and what we should
of got
21
instead of having to go out and get whole
new
22
windows. That argument doesn't really fly.
it
23
doesn't really make sense, but that's the
argument
24
they are posturing through our counsel.
25
MAYOR McCOY: That is correct. It
has nothing
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to do with an inferior product that was put
2
in there.
3
MR. SHILLINGER: It's an insurance
company.
4
They are coming up with an argument because
they are
5
looking to cut their bottom line.
6
COMMISSIONER DIGENNARO; That doesn't
fly.
7
MR. SHILLINGER: The reason we wanted
to call
8
this was because staff is looking at all
our angles
9
to try and generate cash to deal with these
things and
10
this is one of the items we thought here
's a case
11
we are not ready to go to trial yet. We
aven't spent
12
all the money yet, but we haven't spent all
the money
13
necessary to go to trial. Is this something
we would
14
be interested in. We thought we would float
it to
15
see if that is the mood of the commission,
but the
16
temperature I am taking is that it doesn't
look like
17
that is where the commission wants to go
at this
18
point.
19
MAYOR McCOY: It's the insurance company
you
20
are dealing with. You are not dealing with
the
21
architect and the contractor.
22
MR. SHILLINGER: Right. You are dealing
with
23
his lawyers who are hired by his insurance
carriers.
24
MAYOR McCOY: And if you see they
have no
25
protection and if they are committed and
obligated
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Im
1
what is the problem.
2
COMMISSIONER DIGENNARO: We need money
next
3
year too.
4
COMMISSIONER NEUGENT: Yes, clarification
here.
5
I am a little lost from the comments if that
is the
6
way the Commissioner and the Mayor feel that
is fine. My
7
question is correcting a wrong and knowing and
having
8
been on the commission when the windows were
ordered to
9
maintain the historical correctness of the building
10
because Bert Bender didn't want to put shutters
11
on the building the windows were tested. They
failed
12
and then the corrected measures were taking
place so
13
there is a wrong that needs to be corrected
and if it
14
takes litigation to get what is due to the county,
then I
15
take the position that we should do everything,
nothing
16
to do with trying to balance our books on getting
17
money. I just want to go forward and correct
an
18
obvious wrong.
19
MR. SHILLINGER: Okay.
20
MAYOR McCOY: Everybody seems to be in
agreement.
21
COMMISSIONER SPEHAR: You're saying the
same
22
thing.
23
MR. SHILLINGER: So we're on the same
page, if I
24
understand the commission's intention at this
point
25
is you don't want to look at solving litigation
issues
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1
for budgetary purposes. You want to treat
the case as
2
the case should be treated absent the budget
issue
3
not withstanding the budget issue and conti
ue to
4
spend money to collect the money because in
your
5
judgement in this case we think we have a very
strong
6
case and are able to collect.
7
Now, as you know the only down side
aith
8
litigation is you end up in front of a jury.
A jury,
9
it's a crapshoot. You don't know what they
are going
10
to do and we have seen cases lately in Monroe
County
11
4 or 5 years where the County is not the most
12
sympathetic party in a lawsuit.
13
COMMISSIONER NEUGENT: Bob, if I may
and the
14
other thing that we found is that going back
to the
15
Post Buckley Schuh case that we won and then
we
16
lost and then not only did we lose the settlement
that
17
we had been given we found out that we were
in a
18
liability situation where we had to go begging
for
19
forgiveness and let us out of the trap there.
So
20
I respect the point that you make there. Are
you saying
21
that there is a cash settlement on the table?
22
MR. SHILLINGER: No cash settlement
that has
23
been offered. What it is we are at the stage
of
24
the case where we are going to go to mediation
within
25
the next month to five months and in order
for us to
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1
adequately represent the County at mediation
we would
2
-- it's better to have an idea of where the
commission
3
is coming from in terms of what would be ac
eptable.
4
I am not asking you to accept any dollar fi
ure
5
but because of our budget issues we wanted
o see if
6
we wanted to accelerate that to bring in, c
me in with
7
a lower number.
8
MAYOR McCOY: Commission DiGennaro has
a
9
question.
10
COMMISSIONER DIGENNARO: We are always
11
interested in resolving a case. I don't like
to do it
12
because of budget. If it's appropriate to
settle then
13
settle it. If it's appropriate to bring us
numbers then
14
bring us numbers but not because of our financial
15
position and because we have some tightening
of the
16
budget right now. How long do you expect this
case to
17
take before it goes to trial?
18
MR. SHILLINGER: I would estimate we'll
try
19
it before the end of 2008.
20
MAYOR McCOY: Arbitration.
21
MR. SHILLINGER: Trial. Mediation is
a little
22
different. Mediation is where you have a neutral
23
person that tries to get the parties to agree.
24
MAYOR McCOY: So it's going to come
up in
r 25
mediation anyway, right. Go out there and
fight
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1
and do battle and try to get the highest number
2
possible and come back to us. This is going
to come
3
back to us.
4
MR. SHILLINGER: Absolutely, but bef
re we
5
get into that I wanted to know what the mooi
was.
6
COMMISSIONER DIGENNARO: Counsel you
have
7
communication with these counsel all the time.
Did
8
they indicate they even want to go to mediation.
9
MR. SHILLINGER: When you are dealing
with
10
five or six parties you get mixed signals.
Some are
11
saying yeah, we would be interested in doing
that.
12
Some are --
13
COMMISSIONER DIGENNARO: We are not
telling
„r 14
you not to do your lawyering. We are not telling
you
15
how to run your case. I am telling you that
I don't
16
want to settle the case for less then what
it's worth
17
because of our budget. That is exactly thE
way I
18
feel.
19
MR. SHILLINGER: That is the issue I
needed
20
direction in. Thank you.
21
COMMISSIONER DIGENNARO: You have your
direction.
22
MR. SHILLINGER: Thank you.
23
MS. HUTTON: Okay. If you want to terminate
24
the closed session we will reconvene.
a 25
MAYOR McCOY: This session is terminated.
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We will
go to
item two.
2
(Closed session
was
concluded).
Ij
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CERTIFICATE
STATE OF FLORIDA
COUNTY OF MONROE
I, Lisa Roeser, certify that I was authoriz d to and did
stenographically report the foregoing proceedings and that the
transcript is a true and complete record of my ste ographic
notes.
DATED this 24th day of January, 2008.
q",- fn 9 ei-t�
Lisa Roeser
Registered Professional Re orter
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