Item R8
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: December 16. 2009
Division: County Attorney
Bulk Item: Yes
No .-X.....
Staff Contact Person: Natileene Cassel
Phone #: 292-3470
AGENDA ITEM WORDING: Approval of the Settlement Agreement in the matter of The Tower
Group. Inc. v. Monroe County Board of County Commissioners and the Counterclaim of Monroe
County Commissioners v. The Tower Group and Travelers Casualty and Surety Company of America,
Case No. 2007-CA-1428K
ITEM BACKGROUND: The Tower Group, Inc. (TTG) was the general contractor on the Freeman
Justice Center in Key West. TTG filed suit against the County and the County filed a counterclaim
against TTG and its surety. The dispute between the parties include claims of project inefficiencies.
delays, project completion, breach of contract, claims for additional work, and claims by the County
for credits. On October 19. 2009, representatives ofthe Tower Group and the County met and came to
an agreement for settlement. The Settlement Agreement attached is the final written agreement. The
agreement calls for the County to receive a credit of $833,944.25 in a deductive change order, and for
TTGto receive an additive change order in the amount of $510,000. After the execution of the additive
change order and the deductive change order the revised contract'price will be $15,620,506.08. To date
the County has paid $13,552,572.61 to TTG leaving a balance of $2,067.933.47 to be paid on the
revised contract price. The County is holding enough funds in retainage and budgeted funds to cover
the amount owed on the revised contract price.
This settlement does not include any claims the County has pending against Jose Gonzalez or
Gonzalez Architects.
PREVIOUS RELEVANT BOCC ACTION: The contract with TTG was entered into on June 16,
2004. On October 10, 2007 TIG filed suit against the County. The County filed its answer and
counterclaim in November 2007. The parties met and reached a verbal settlement in October of 2009.
The terms of the settlement were presented to the BOCC on October 21,2009, in closed session.
CONTRACT/AGREEMENT CHANGES: none
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $2.067.933.47
Indirect Cost:
BUDGETED
Yes
COST TO COUNTY: $562,092.07 SOURCE OF FUNDS: Fund 307 and Retainage
$1.505.841.40 Retainage
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
REVENUE PRODUCING: Yes NolL AMOUNTPERMONTH_ Year
APPROVED BY: County Atty ~ U o~urcbasing _ Risk Managemertl'{\b-
DOCUMENTATION: Included Not Required_
DIsPosmON:
AGENDA ITEM #
FREEMAN JUSTICE CENTERlfOWER CONSTRUCTION CONTRACT
CJ~OSE~OUT AGREEMENT
This Freeman Justice Centerrrower Construction Contract Close~Out Agreement (the
IIAgreement") is made and entered into this _ day of
. 20091' by and between
the Monroe County Board of County Commissioners (I'Owner" and The Tower Group. Inc., a
Florida corporation (UTower''). located at 405 SW 148th Avenue. Suite I. Davie. Florida 33325,
and Travelers Casualty & Surety Company of America, a Connecticut corporation ("Travelers");
RECITALS~
A. Owner is a political subdivision ofthe State of Florida located in Monroe County.
Florida.
B. Tower is a Florida corporation and a licensed general contractor in the State of
Florida. having its principal office in Miami.Dade County. Florida.
C. Travelers is a Connecticut corporation authorized to do business in the State of
Florida and who did issue that certain PubSic Construction Bond to the Owner pUl'Suant Section
255.05, Florida Statutes. bearing bond #104335331 (the '~Bond"). wherein Tower is the principal
on the Bond and Travelers is the surety on the Bond.
D. This Agreement concerns a construction project located in Key Wcstt Monroe
County, Florida commonly known as the Freeman Justioe Center (the "Project").
E. On June 16.2004, the Owner and Tower entered into a Contract (the "Contl1lct'~
wherein Tower was to provide alllaboFt supervision, engineering (required to be performed by
Tower under the Contract or actually performed in connection with the Project by Tower, its
subcontractors. suppliers or materialmen). materials. supplies, equipment. tools, transportation,
surveying,lay-out and protection for the proper execution and completion of the Proj~t.
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F. There are disputes between tbe Owner and Tower regarding completion of the
Project, Project inefficiencies, delays to the Project, claims of additional work, claims of
defective work, and the Owner's claims for credits, among other things (the ('Disputes"),
G. In October of 2007, Tower filed suit against the Owner in Case No, 07-CA-327 M
in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida (the
"Litigationn). The Owner answered, asserted affinnative defenses and a Counterclaim and
joined Travelers.
H. In addition. Monroe County. in a separate action, sued Gonzalez Architects and
Jose Gonzalez who, at onc time. were the initial Project Architects, in Case No. 2008-CA-458 K,
in the Circuit Court of the Sixteenth Judicial Circuit in and for'Monroe County. Florida (the
clOonzalez Litigation"). On August 6.2008, the Monroe County Circuit Cowt entered an Order
consolidating the Litigation and tbe Gonzalez Litigation.
I. Since the filing of the Litigation. the Project has achieved substantial completion
and the Owner enjoys beneficial use of the Project.
J. The parties have now met and with the advice of counsel, have agreed to resolve
the Disputes and the Litigation. The objective of1his Agreement is to memorialize the tenns and
conditions of that resolution and to close out the Project. To achieve this objective, the panies
have pledged continued cooperation and their good faith efforts to faithfully carry out the
requirements of this Agreement.
WHEREFORE, in consideration of the monies to be paid and the mutual covenants
exchanged between the parties aU as described herein. the receipt and sufficiency of which ore
hereby acknowledged. the parties hereto agree as follows:
1. The recitals above are true and correct and are incorporated herein by reference.
2
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2. The present total contract price. including all previously approved change orders.
is equal to $15,944.450.33 (t e "Present Contract Pricen). The Owner will issue an additive
resent Contract Price as aforesaid by $S1O,OOO.OO (the "Additive
lt ncludes 5254.000 in satisfaction of Tower's claims for
ced attributable to Gonzalez Architects and Jose Gonzalez. The
Owner will issue a new deductive change order decreasing the Present Contract Price by
$833.944.25 (the "Deductive Change Order") which amount includes credits to the Owner for
work removed from Tower's scope of work. Tower agrees to the Additive Change Or
attached hereto as Exhibit A, and the Deductive Change Order. attached hereto as Exhibit
agrees to execute suoh change orders. After execution of the AClditive Change Order and the
Deductive Change Order, the revised total contract price will be $15,620,506.08 (the "Revised
Contract Price'>). The Owner and Tower agree the Owner has paid Tower $13.552)572.61,
leaving a balance of the Revised Contract Price in the amount $2.067,933,47(the "Revised
Contract Price Balance").
3. Except for those persons identified in the Final Affidavit referenced in paragraph
5 below) Tower represents it has delivered to Owner releases of liens "and claims from an
subcontractors. sub-subcontractors. suppliers and materialmen who provided labor. services or
materials to the Project and as identified in the attachments to Exhibit "Fit attached heret<> and
made a part hereof.
4. Subject to approval of this Agreement by the Monroe County Board of County
Commissioners at an open public meeting. the execution by the parties of (i) this Agreement. (ii)
the Additive Change Order, and (iii) the Deductive ChMge Order, and subject to the terms and
conditions contained herein. Owner shall pay Tower an amount equal to the Revised Contract
3
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Price Balance ~ the total of all amounts clnlmed by Tower subcontractors, sub-subcontractors,
suppliers and materialmen (the "Identified Claims") identified in the Contractor's Final Affidavit
(rhe "Pinal Affidavit Amount"). The amount payable to Tower pursuant to this paragraph 3 shall
hereafter be referred to as the "Settlement Proceeds."
5. Payment to Tower of the Settlement Proceeds shan be subject to the satisfaction
by Tower of each and every of the following conditions:
a. Tower shall complete, execute and deliver to Owner the Contractor's Final
Affidavit of Payment of Debts and Claims (the "Final Affidavit"). the fonn ofwhicb is attached
hereto and made a part hereof as Exhibit "C."
b. Travelers shaU complete, execute and deliver to Owner a Consent of
Surety consenting absolutely to the tenns of tbis Agreement and to all payments mnde or to be
made hereunder, a copy of which is attached hereto as Exhibit "D" and made. a part hereof (the
nConsent").
c. Tower shan complete, execute and deliver the Contractor's affidavit of
release of liens (the I~Release Affidavit"), a copy of which is attached hereto as Exhibit uFn and
made a part hereof.
d. Delivery by Tower to Owner of all ~~as-buUt" drawings and close-out
documents available to Tower. The Parties acknowledge such l<as-built" drawings and closeout
documents are in many instances incomplete. Tower's delivery of such "as-built" drawings and
close out documents satisfies all of Tower's closeout requirements under the contract documents.
e. The Owner and Tower shall have executed the mutual release, the fonn of
which is attached as EKhibit "(Y' (the "Mutual Release") releasing each other from all claims
each has against the other except claims for Project latent defects, and claims arising, directly or
4
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indirectly, out ofthis Agreement. and preserving Tower's defenses to any such claims for Project
latent defects arising under the Contract
f. Approval of this Agreement by the Momoc COlmty Board of County
Conunissioners at an open public meeting.
6. Subject to the satisfaction by Tower of each and every one of the conditions
contained in paragraph 5 above, the Owner shall pay Tower the Settlement Proceeds as soon as
reasonably practical but in any event within 21 days following the last of said conditions to be
satisfied by Tower.
7, The Owner shall retain from the Revised Contract Price Balance the Final
Affidavit Amount in a separate encumbered account and shall disburse them subject to the terms
and conditions contained in paragraph 8 below,
8. Payment of the Final Affidavit Amount shall be made by Owner subject to the
following:
a. From time to time Tower shall deliver to the Owner, in the form attached
hereto as Exhibit l'E,n duly executed releases and waivers of claims against the Bond from one or
more of the Identified Claims(the "Claim Release)'} .
b. Upon receipt of a Claim Release the Owner shan pay Tower as soon as
reasonably practical but within 21 days an amount equal to the amount set forth in the Pinal
Affidavit attributable to the Identified Claim from whom the Claim Release has been received
(Lbe "Claim Payment").
c. The Owner shall make Claim Payment(s) upon receiving Clalm Releases
until such time as the Final Affidavit Amount is exhausted.
5
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d. The Owner shall not seek to interplead all or any part of the Final
Affidavit Amount except upon the first to occur of (i) a lawsuit or other dispute resolution
proceeding initiatedt directly or indirectly. against the Owner seeking, direotly or indirectly, in
whole or in partt the recovery of said funds; or (ii) July 1) 20 I O. The parties acknowledge that
upon the happening of either (I) or (ii) above the Owner is authorized. but is not required, to
initiate interpleader proceedings in a court of competent jurisdiction in Monroe County, Florida.
9. Nothing contained in this Agreement shall ever be construed to require or obligate
the Owner to pay Tower, or any person or combination of persons, an amount which. in the
aggregate. exceeds the Revised Contract Price Balance.
10. Upon approval of this Agreement by the Board of COlmly Commissioners of
Monroe County, Florida, and execution of same by the parties hereto, Tower shan dismiss, with
prejudice. Us Amended Complaint filed in the Litigation, and Owner shall dismiss, with
prejudice, its Counterclaim filed in the Litigation. and Tower and Owner agree to bear their own
costs and attorney's fees incurred in the Litigation whether at the pre-filing or post filing stage.
Nothing <:ontained herein shall be construed to require or shall act as a dismissal of the Gonzalez
Litigation.
11. This Agreement constitutes the entire understanding between the Owner and
Tower regarding the close-out of the Project and the resolution of the claims and Disputes arising
in connection with the Project and the Litigation. and there are no other agreements pertaining to
the subject matter hereof> except as set forth herein. Any amendment or modification of this
Agreement shall be in Wl'iting and signed by the Owner and Tower.
12. In _he event it becomes necessary to enforce or interpret this Agreement venue for
any litigation or dispute resolution proceeding brought for those or any other purposes shall lie
6
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exclusively in Monroe County, Florida. The prevailing party in any such litigation or dispute
resolution proceeding shall be entitled to recover from the non-prevailing party its costs and a
reasonable attorney fee at the trial and appellate levels.
13. This Agreement may be signed in counterparts and delivered via facsimile 01'
otherwise, each such counterpart (whether delivered via facsimile or otherwise), when executed,
shall be deemed an original and aU of which together constitute one and the same Agreement.
Facsimile signatures of the Parties shall be deemed to constitute original signatures, and execute~
facsimile copies hereof shall be deemed to constitute duplicate originals.
e Vice President
STATE OF FLORIDA
COUNTY OF ~DUVAL
On the '- date of NDV~ ~ > 2009, before
me personally appeared and is to me known to be person(s) named herein and who executed the
foregoing Close-Out Agreement and acknowledged to me that he/she voluntarily executed same.
My terms expires ~. 2. 20.61L
~.~ ~f ~.l.rJ,~DLA~J
Notary Publlc
DAWNSCHARNOW.sELlERB
MY COMMISSION J DD 6&9022
EXPIRES: Stplembel2, 20\1
~1lwt/o',&ryf'llblloUlmrv.talrJ
Attest:
Danny L. Kolhage, Clerk
BOARD OF COUNTY
COMMISSIONERS OF MONROE
COUNTY, FLORIDA
By:
.oRtghl~S, Mayor 6';= /f!(}flf/L CaJItJ'l
Date: I
By:
Deputy Clerk
~v:GHROE COUNTY ATTORi'.jEY
p~~~
~ATILEENE 'IV. CASSEL
ASSISTAJT 3/NTY ATTORNEY
Oat8~. ~
Mor~.oE CQ.UN~ ATTORNEY
APPRoWo ~O~ORM:
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.!FRA VELERS CASUALTY & SURETY
OO~~
By:
As its 1'11~~ V
STATEOFCO~&
COUNTY OF
On the ~("d... date ~f ~ 2009) S01UJb l:UMff' before
me personally appell1'ed and is to me known to be person{s) named herein and who executed the
foregoing Close-Out Agreement llnd acknowledged to me that he/she voluntl'rlIy executed same.
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E:J:hibit A
Additive Change Order
MONROE COUN'IY / PROJECT MANAGEMENT
ADDITIVE CHANGE ORDER (CHANGE ORDER #40)
PROJECT TITLE:
Freeman Justice Center
Jackson Square
CONTRACT DATE: June 16, 2004
TO CONTRACTOR:
The Tower Group
405 SW 14Slh Avenue Suite One
Davie, FL 33325
The Contract is changed as follows:
Tile original Contract Sum .......n m no .................. ..................... ............ ...... .......... $13,804,000.00
Net change by previously authorized Change Orders ... ............ ........................ ......... $ 2,140,450.33
The Contract Sum will be increased by tills Change Order... .............--- --- --- n.............. $ 510,000.00
The new Contract Sum including this Change Order is ...................'nmu..................... $16,454,450.33
Detailed description of change order and justification:
As Drovided In the Freeman Justice Centerffower Construction Contract Close-Out Aareement
$254.000.00 as comnensation 10 Tower for claimed delavs and inefficiencies attributable to the
aets or omissions oftJJe initial oroiect architect: $105.000.00 for additional or extra work: and
$161.000.00 for tl,e resolution of dlslJuted claims.
This chan e order Is 3.69% ofthe ori Inal contract rice.
CONTRACTOR:
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
(SEAL)
ATTES~ DANNY L.KOUHAGE, CLERK
By
By
Mayor/Chairman
Deputy Clerk
9
\\\M1-1l21ll9610G002iI.IMoI62 yJ
Exhibit B
Deductive Change Order
MONROE COUNTY / PROJECT MANAGEMENT
DEDUCTIVE CHANGE ORDER (CHANGE ORDER #41)
PROJECT TITLE:
Freeman Justice Center
Jackson Square
CONTRACT DATE: June 16, 2004
TO CONTRACTOR:
The Tower Group
405 SW 1481h Avenue Suite One
Davie, FL 33325
The Contract is changed as follows:
The original Contract Sum ....n...... ...... ............... ..................... ............................ $13,604,000.00
Net change by previously authorized Change Orders .n no." ............... ......... .......... ..... $ 2,650,450,33
The Contract Sum will be decreased by this Change Order.................. ........................$ (833,944.25)
The Final Contract Sum including this Change Order is on... ......... n.'............ ...... ..........$ 15,620.506.06
Detailed description of change order and justification:
As provided In the Freeman Justice Centerffower COnstruction Contract Close.OutAareement
$514.000.00 for exterior claddinn deleted from the orialnal scope of work: $306.000.00 for the
Exter/or Finish Insulation SVstem (EFtS) deleted from the or/ulnal scone of work: and $14.944.26
for miscellaneous credits throuahout the nroreet.
CONTRACTOR:
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
(SEAL)
ATTEST: DANNYL.KOLHAGE,CLERK
By
Mayor/Chainnan
By
Deputy Clerk
10
\\\I\Il.02'/ll961OOOOl4 .IMW v3
CONTRACTOR'S AFFIDAVIT OF PAYMENT OF DEBTS AND CLAIMS
TO OWNER:
Monroe County Board of County Commissioners
CONTRACT FOR: ConslructioJl of Freeman Justice
Center
CONTRACT DAlE: June 16,2004
PROJECT: Freeman Justice Center
State of: Florida
COlmty of: Mt....~ Dvl/ Ov i
The undersigned, pursuant to Article 9 of the Geneml Conditions of the Contract for Construction, hereby certifics that,
e},.""Cept as listed below. it bas paid in full or lIas otherwise satisfied all obligations for all materials and equipment furnished,
for all work. labor, and services performed, and for aU known indebtedness and claims against the Contractor for damages
ariSblg in any manner in connection with tbe performance of the Contract referenced above for which the Owner or its
property might in any way be held responsible.
See the list of exceptions set forth all Annex A, attaclled herelo and made a part heroof' by this reference.
/>+-
ROGERCWISl'AlN
!i'(COMMISSlON D 00??oo36
EXl'IRES: August 16, 2013
ilalIdeIllfw /Iolal)'!'ubi; 1/lideflI1I',(r,l
\W.ll.lU7ll9&'OOOOZ4 - J44111 vi
Exhibit D
CO)lsent of Surety
CONSEJI}T Q~ SURETY
to CLOSE-OUT AGREEMENT.1NCLUD1NG-JI'INAL PA YMEJ'IT.
PROJECT: J1reemtm Jtlstioo Ccn1cF
OWNER:
CONTRACfOR:
Key West, Florida
The BOllnl of County Commissioners of Monroe County, Florida
The Tower OrotlP, !no.
In accordance with the provisions of the Contract between the OWNER and the CONTRACTOR
as indloated abovo, Tl'tlv(llers Cnsunl1y & Surety Company of Amerioo) SURETY COMPANY,
on 1hllt cCl1aln bond of the CONTRACTOR., beal'lng bond t# 104335331 (the ('BONDIt)hereby
appJ'Oves that certmn Freeman Justice Centel'JTower Construction Conlmct Close-Out
Agreement, made by find between the CONTRACTOR and the OWNER, as of the _ day of
October, 20G9. inoluding Ihe torms of the final payment to the CONTRACTOR, referenced
therein, and agl'e~ that payment to tho CONTRACI'OR shall not relieve the SURETY
COMPANY of any of its obligation to the OWNER~ as set fol'th in the BOND.
r)
IN WITNESS WHEREOF) the SURETY COMPANY has h6rmmto set its band this ~ day
ofAbI&tth/ .
ty Company of America,
13
\1\\n.~m~ll.l_h)
Exhibit E
Form of FinRI Releases of LieDS Bnd Claims against the Bond
FINAL RELEASE OF LIEN AND CLAIMS
KNOW ALL MEN BY THESE PRESENTS, that
for and consideration of the slim of Ten Donars ($JO.OO). receipt of which is hereby
acknowledged. do (does) hereby release and quit claim to the Owner. Monroe County. Florida,
the Contractor, The Tower Group, Inc.} the Surety, Travelers Cnsua1ty & Surety Company of
America, their successors or assigns. all liens, lien rights. claims or demands of (lilY kind
whatsoever which the Wldersigned has (have) or might have against the Owner. the Contractor
and the Swety, including, but not limited to claims against Bond #104335331 issued by the
Surety or against the Owner's property. buildings, or improvements, on accoWlt of lahor
performed, material furnished. or for any incidental expense for the construction of: The
Freeman Justice Center, Key West, Florida.
IN WITNESS WHEREOF THIS
day of
.2009.
Witness
Name of company
Witness
Signature, Title
STATE OF FLORIDA
COUNTY OF MONROE
On the date of . 2009, before
me personally appeared and is to me known to be person(s) named herein and who executed the
foregoing Final Release of Lien and acknowledged to me that he voluntarily executed same.
My tenus expires
200_
Notary Public
14
I\'Ml.OZlC9UOOOOU.I~4#lY}
Exhibit F
Contractor's Affidavit or Release of Liens and Claims against the Bond
Project Name: Freeman Justice Center
CONTRACfOR1S AFFIDAVIT OF RELEASE OF' CLAIMS AGAINST THE BOND
TO OWNER:
(Name and address)
CONTRACf FOR:
CONTRACf DATED:
PROJECT:
(Name and address)
State of Florida:
Ccunly of Monroe:
The undersIgned lIereby cenlfles that to the best of the undcl'5igncd's knowledge. Information and belief, except as
listed below, the Releases or Walvcrs of Claims against the Bond attached lierelo Include aU Subeonlrnclor.;. all
suppliers of materials and equipment, and all performers of Work, Jabor or sorviccs who have or may have claims
against the Bond Dr tho. right to asser! claim! against the Bond or against any property of the Owner arising in In)'
manner out oftbe performance of1he Contract referenced above. except as stt forth below. Tlte "Bond" means Chat
certain statutory bond for Che Project, pursuant to SectIon 255.05, Florida Statutes. issued by Travelers Insurance
Company bearing bond H l0433533 I.
See lisl of exceptions set forth on Annex A attached hereto. and made a part hereof as AMeli A
CONTRACTOR;
(Name and address)
By:
(SIgnature of arllhorJ"d representative)
(hin/ed name Qnd Title)
Subscribed and sworn to befoTe me this
dilt6:
Notal)' Public:
My Commission BKplres:
15
"'\I>fI.G:l1n_4.14_~
Exldbit G
Mutual Release
For TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged. the undersigned Parties for themselves, their officers,
directors, agents, employees, attorneys, parent companies, subsidiaIy companies, sureties, affiliates
and elected officials do hereby release and forever discharge, each other, and each other's officers,
directors, agents, employees. attomeysJ parent companies, subsidiary companies, sureties,
affiliates and elected officials from any and all claims. demands, I1ctions, causes of action, and
judgments of every kind or description that the Parties had, bave now or may have in the future.
arising as a result of. or in connection with, the Project, wbich claims were or could bave been
brought in the Litigation, This Release shall not extend to and shall not be construed to: (i)
release any claim against Tower. its officers, directors. agents. employees, attorneys, parent
companies, subsidillI}' companies. or affiliates arising as a result of or in connection with Project
latent defects or constnIction defects which are unknown to Owner as of rhe date of this Release,
or waive any defense of Tower, its officers, directors, agenf;8. employees. attorneys, parent
companies! 8ubsidia1y companies. or affiliates arising WIder the Contract. or (ii) release claims
arising out of and obligations created by The Freeman Justice Centerffower Construction
Contract Close-Out Agreement between Tower and Monroe County (the nAgreement"). made by
and between the Owner and the Contractor, dated as of the _ day of October. 2009. For
purposes of this Release capitalized teans shaH have the same meaning assigned to said tenns as
set forth in tbe Agreement.
THE TOWER GROUP, INC.
By
As its
STA TE OF FLORIDA
COUNTY OF BROW ARD
W.MJ.onl_~4.1_.J
On the date of t 2009. before
me personally appeared and is to me known to be person(s) named herein and who executed the
foregoing Release and acknowledged to me that he/she voluntarily executed same.
My tenns expires
200_
Notary Public
Attest:
Danny L. Kolhage, Clerk
BOARD OF COUNTY
COMMISSIONERS O}' MONROE
COUNTY, FLORIDA
By:
Deputy Clerk
By:
S8eEge Ntluge9l1 Mayor ~.(" u......,.. ~ C Ol,u,o.
Date:
STATE OF FLORJDA
COUNTY OF MONROE
On the date of I 2009. before
me personally appeared and is to me known to be person(s) named herein a.nd who executed the
foregoing Release and acknowledged to me tbat he voJuntarHy executed same.
My terms expires
200_
Notary Public
17
\\\MI- WII'YOOQOU. 1<<f~<4
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
THE TOWER GROUP, INC., a
Florida Corporation,
P laintiff/Counter- Defendant,
v.
Case No.: 07-CA-1428K
MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS, a
Subdivision of Monroe County, Florida.
Defendant/Counter- Plaintiff.
/
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS, a political
subdivision of the State of Florida
Counter-Plaintiff
v.
THE TOWER GROUP, INC.. a
Florida Corporation, and TRAVELERS
CASUALTY and SURETY COMPANY
Of AMERICA, a Connecticut corporation
Counter-Defendants
/
DEFENDANT/COUNTER-PLAINTIFF, MONROE COUNTY BOARD OF COUNTY
COMMISSIONER'S, ANSWER, AFFIRMATIVE DEFENSES. AND COUNTERCLAIM
TO AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Defendant, MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
("MONROE COUNTY"), by and through its undersigned attorneys, hereby files its Answer,
\488004\2 - # 557476 vI
1
Affirmative Defenses, and Counterclaim to Plaintiff's Amended Complaint, and states as
follows:
NATURE OF THE ACTION
1. Admitted thaj Pl~intiffhas asserted at? action for b~ea:ch of contract; otherwise
MONROE COUNTY denies it h~t's committed any breach bfthe contract. .J
2. Admitted for jurisdictional purposes only; otherwise denied.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Denied.
8. Without knowledge, therefore denied.
COUNT I-BREACH OF CONTRACT
9. MONROE COUNTY realleges and incorporates by reference its answers to
paragraphs 1-8 of Plaintiff's Amended Complaint-as if fully set forth herein.
10. Admitted that on or about June 16, 2004. Plaintiff and Defendant entered into a
Contract pursuant to which Plaintiff would provide all labor, supervision, engineering, materials,
supplies, equipment. tools, transportation, surveying, layout, and protection for the proper
execution and completion of the facility known as the Freeman Justice Center (the "Project") per
Article 2 of the Contract and the Scope of Work specified in Section 00300 ofthe Project
Manual for this Project.
11. Admitted that the Contract provided the Construction Manager and Architect will
be the Owners' representatives.
\488004\2 - # 557476 vI
2
12. Admitted.
13. Denied.
14. Denied.
15. . Denied.
16. Denied.
17. Denied.
18. Denied.
19. Without knowledge.
20 Denied.
21. Denied.
22. Denied.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Defendant is entitled to a setoff in this action in the amount of the cost to correct
defective and nonconforming work performed by Plaintiff as well as the costs of delays caused
by Plaintiff.
Second Affirmative Defense
Section 8.3 of the Contract required any claims for extension oftime to be made in
writing within seventy-two (72) hours after commencement of the delay or else the claim for
delay would be waived. Plaintiff failed to,make such timely written claims for delay and
Defendant justifiably relied upon said lack of delay claims. Accordingly, Plaintiff has waived or
is estopped from asserting claims based upon alleged delays caused by Defendant.
Third Affirmative Defense
\4&&004\2 - # 557476 vI
3
Section 8.3 of the Contract required any claims for extension oftime to be made in
writing within seventy-two (72) hours after commencement of the delay or else the claim for
delay would be waived. Plaintiff failed to make such timely written claims for delay and
'Defendant justifiably relied upon said lack of delay claims. Accordingly Plaintiff's claim is
barred by sO~6reign immunity.
Fourth Affirmative Defense
Section 8.3 of the Contract prohibits any claim for an increase in the Contract sum for
any extension oftime or other changes in the Construction Schedules; accordingly, Plaintiffs
claims for increased costs due to delays are precluded by th~ Contract.
Fifth Affirmative Defenses
Plaintiff failed to make timely written notice of claims for additional costs as required by
Section 4.7 of the Contract, and Defendant justifiably relied on the lack of such claims.
Therefore Plaintiff is estopped from asserting claims for additional costs.
Sixth Affirmative Defense
Plaintiff failed to make timely written notice of claims for additional costs as required by
Section 4.7 of the Contract. Accordingly, Plaintiff's claims are barred by sovereign immunity.
Seventh Affirmative Defense
Plaintiff is in prior material breach of the Contract by virtue of the delays it caused to the
construction of the Project.
Eig:hth Affirmative Defense
Plaintiff's claim for breach of contract fails as a matter of law because Plaintiff has
suffered no damage as a result of any action or omission by Defendant.
\488004\2 . # 557476 vl
4
Ninth Affirmative Defense
Defendant is entitled to sovereign immunity for Plaintiffs claims for delay damages as
the legislature's waiver of such immunity is limited to claims for breach of the express terms of
the Contract.
Tenth Affirmative Defense
Any delays of which Plaintiff complains were caused by unanticipated, extraordinary
weather events impacting construction materials delivery, permitting, materials and labor
shortages, and the stopping and starting of work for storm preparation and protection, as well as
the actions and omissions of Plaintiffs subcontractors, materialmen, suppliers, and consultants.
Eleventh Affirmative Defense
Plaintiff is barred from recovery pursuant to its own unclean hands and/or wrongful
conduct, such as failing to timely and fully apprise Defendant of the need for additional work
and the cost of same and the need for extensions oftime and the costs related to such extensions,
as wen as failing to report problems with subcontractors, materialmen, suppliers, and
consultants.
Twelfth Affirmative Defense
To the extent Plaintiffs claims are premised, in whole or in part, upon any actions or
omissions of Defendant that allegedly caused or contributed to one of Plaintiffs subcontractors
entering into Chapter 11 bankruptcy proceedings, Defendant is not liable in contract or in tort as
the bankruptcy is the result of intervening or superseding causes beyond the control of
Defendant, is not within the ambit of the contract between the parties and therefore the
Defendant owed no duty to the subject subcontractor, and camot be attributed to any acts or
omissions of Defendant.
\488004\2 - # 557476 vI
5
DEFENDANT RESERVES THE RIGHT TO AMEND AND/OR SUPPLEMENT ITS
AFFIRMATIVE DEFENSES IN THE COURSE OF DISCOVERY
COUNTERCLAIM
DefendantlCounter-PlaintiffMONROE COUNTY BOARD OF COUNTY
pl.
COMMISSIONERS ("MONROE COUNTY"), by and through its undersigned attorney, sues
THE TOWER GROUP, INC. ("TOWER") and TRAVELERS CASUALTY and SURETY
COMP ANY of AMERICA ("TRAVELERS") and alleges:
1. This is an action for breach of contract and on a performance bond pursuant to
Section 255.05 F.S. in which the amount in controversy exceeds Fifteen Thousand Dollars
($15,000.00), exclusive of interest or costs.
2. Venue is proper in the Key West Division of the Circuit Court in Monroe County,
Florida.
3. MONROE COUNTY is a political subdivision of the State of Florida located in
Monroe County, Florida.
4. TOWER is a Florida corporation having its principal office in Broward County,
Florida, but who at all material times entered into a contract in Monroe County, Florida for the
constr)lction of an improvement to real property located in Monroe County, Florida.
5. TRAVELERS is a Connecticut corporation who is authorized to and did issue a
Public Construction Bond ("the Bond")(Exhibit "A") to MONROE COUNTY pursuant to
Section 255.05 F.S. wherein TOWER is the Principal on the bond and TRAVELERS is the
Surety.
\488004\2 . # 557476 vI
6
6. This claim concerns a construction project located in Key West. Monroe County,
Florida commonly known as The Freeman Justice Center which will hereafter be referred to as
"The Project."
7. The Project is incomplete but ongoing and accordingly. MONROE COUNTY
reserves the right to amend this Counterclaim to incorporate additional claims resulting from The
Project.
8. On or about June 16,2004, MONROE COUNTY and TOWER entered into a
contract (the "Contract") wherein the County retained TOWER to provide all labor, supervision,
engineering. materials, supplies, equipment, tools, transport~tion, surveying, layout, and
protection for the proper execution and completion of the facility known as the Freeman Justice
Center (the "Project") per Article 2 of the Contract and the Scope of Work specified in Section
00300 ofthe Project Manual for this Project. The Contract between the parties consists of
numerous documents referred to as the Contract Documents. The Contract Documents are too
voluminous to attach to this Counterclaim, but the parties hereto each have, or should have, a
complete set of same.
9. According to the Contract, TOWER was to have achieved substantial completion
of The Project not later than 548 calendar days from November 8; 2004, the date of the notice to
proceed, or May 10, 2006.
10. By Change Order, the parties agreed to extend the substantial completion date to
and including January 25. 2007. A copy of the Change Order is attached hereto as Exhibit "B."
11 . All conditions precedent to the maintenance ofthis action have been performed or
have been waived.
\488004\2 . # 557476 vI
7
12. MONROE COUNTY has retained the undersigned and is obligated to pay said
attorney a reasonable fee for its services rendered in this litigation.
COUNT I - BREACH OF CONTRACT (DE LA Y)
13. MONROE COUNTY realleges the all~gations of paragraphs 1 through 12 above.
" ~~ ,
14. TOWER failed to achieve substantial completion on or before January 25,2007
and, as of the date of this Counterclaim, has still not achieved substantial completion.
15. As a result of TOWER's failure to achieve substantial completion in accordance
with the Contract, TOWER is in breach.
16. For every day after January 25, 2007 that TOWER fails to achieve substantial
completion, TOWER is obligated to pay MONROE COUNTY liquidated damages based upon a
daily rate as set forth on Exhibit "c" attached hereto and made a part hereof.
17. TOWER has failed and refused to acknowledge its obligation for delay.
WHEREFORE, MONORE COUNTY demands judgment against TOWER for damages.
interest, costs, a reasonable attorney fee and such other and further relief as the Court deems
appropriate.
COUNT II - FOR DECLARATORY RELIEF
18. MONROE COUNTY realleges paragraphs 1 through 12 above
19 Article 7 of the Contract governs changes in the Work and provides for
adjustments to the Contract Sum as a result of additions or deletions in the Work.
20. MONROE COUNTY and TOWER have agreed to certain deletions from
TOWER'S scope of work for which a credit is required pursuant to Paragraph 7.2.3 of the
General Conditions of the Contract which is part of the Contract Documents (the "General
Conditions").
\488004\2 -# 557476 vI
8
21. Paragraph 7.2.3 of the General Conditions provides in pertinent part as follows:
"The amount of credit to be allowed by the Contractor for any deletion or
change, which results in a net decrease in the Contract Sum, will be the
amount of the actual net cost as confirmed by the Construction Manager."
22. There is a dispute between TOWER and MONROE COUNTY concerning the
proper manner of calculating credits for de letions from the scope of TO WER' S work.
23. TOWER contends any such credit should be equal to the amount of the net actual
cost to TOWER. MONORE COUNTY contends the amount of the credit should be a sum equal
to the actual net cost to MONROE COUNTY.
24. MONROE COUNTYis in doubt about its rights and respol\sibilities under
Paragraph 7.2.3 of the General Conditions.
25. As such. the declaration prayed for deals with a present, ascertainable state of
facts in a present controversy as to the stated facts as described above. MONROE COUNTY has
an actual. present, adverse and antagonistic interest in the subject matter, both in law and in fact,
which is before the Court by proper process.
26. The relief sought by MONROE COUNTY is not merely the giving of legal advice
by the Court. As such, MONROE COUNTY is in need of a declaration of its rights under the
Contract.
27. MONROE COUNTY requests a declaration from this Court that MONROE
COUNTY is entitled to credits for work deleted from TOWER'S scope of work equal to the net
actual cost to MONROE COUNTY for the deleted work.
WHEREFORE. MONROE COUNTY demands the following:
\4&8004\2 - # 557476 vI
9
a. A declaration by this Court that MONROE COUNTY is entitled to a credit for
deleted work in an amount equal to the net actual cost to MONORE COUNTY,
b. Supplemental relief in the form of a quantification of the credits to which
MONROE COUNTY is entitled as a result of work deleted from TOWER'S scope of work.
c. A judgment for the amount determined as aforesaid.
d. An award of costs.
e. An award of a reasonable attorney fee.
f. Such other and further relief as this Court deems appropriate
COUNT III - BREACH OF CONTRAC~,(CLAIM FOR CREDITS)
28. MONROE COUNTY realleges paragraphs 1 through 12 above
29 Article 7 of the Contract governs changes in the Work and provides for
adjustments to the Contract Sum as a result of additions or deletions in the Work.
30. MONROE COUNTY and TOWER have agreed to certain deletions from
TOWER'S scope of work for which a credit is required pursuant to Paragraph 7.2.3 oHhe
General Conditions of the Contract which is part ofthe Contract Documents (the "General
Conditions").
31. Paragraph 7.2.3 of the General Conditions provides in pertinent part as follows:
"The amount of credit to be allowed by the Contractor for any deletion or change, which results
in a net decrease in the Contract Sum, will be the amount of the actual net cost as confirmed by
the Construction Manager."
32. MONROE COUNTY has demanded credits from TOWER equal to the net actual
cost to MONROE COUNTY for the deleted work, but TOWER has refused to issue said credits.
\488004\2 . # 557476 vI
10
33. TOWER is in breach of contract and MONROE COUNTY has been damaged
thereby in an amount equal to the credits to which it is entitled under the Contract.
WHEREFORE, MONROE COUNTY demands judgment against TOWER for damages,
costs. a reasonable attorney fee and such other and further relief as the Court deems appropriate.
. '
COUNT IV -TO RECOVER ON THE PERFORMANCE BOND
34. MONROE COUNTY realleges paragraphs 1 through 12 above
35. TOWER has failed to perform under the Contract and has failed to pay MONROE
COUNTY for delay and other damages as aforesaid.
36. TRAVELERS is indebted to MONROE COUNTY on the Bond.
WHEREFORE. MONROE COUNTY demands judgment against TRAVELERS for its
damages. expenses, costs and attorney fees incurred as a result of TOWER'S BREACH and for
such other and further relief as the Court deems appropriate.
\488004\2 ./1 557476 vI
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
regular U.S. Mail and facsimile this 28th day of February, 2008 to: David R. Elder, Esquire,
Elder & Lewis, P.A.. Bayview Executive Plaza. 3225 Aviation Avenue. Suite 301, Coconut
Grove, Florida 33133.
GRAVYG
....,
MARK N. ILLER, ESQUIRE
Fla. Bar No. 239216
KRISTIE HATCHER-BOLIN, ESQUIRE
Fla. Bar No. 52,1388
S. BRAXTON WIGGS, ESQUIRE
Fla. Bar No. 20198
One Lake Morton Drive
Post Office Box 3
Lakeland, FL 33802
(863) 284-2251 Telephone
(863) 683-7462 Facsimile
Attorney for Defendant, Monroe County
&
NATILEENE W. CASSEL, ESQUIRE
Fla. Bar No. 0365785
Assistant County Attorney
Monroe County
P.O. Box 1026
Key West. Florida 33041-1026
(305) 292-3470 telephone
(305) 292-3516 facsimile
\488004\2 - # 557476 vI
12
IYII1mWMqNROE COUNiV
lNI'-1muCJIOrUfANAGEMENT
JU1L4 -~
-
RECEIV!D 8'6 .."
FREEMAN JUSTICE CENTER
SECTION 00501
PUBLIC CONSTRUCTION BOND
Bond No. 104335331
BY THIS BOND, We The Tower Group. rnc .,.... ,as Principal
and ~~~p~~~r~fC'l~~~Hl and ::iurety , a corporation, as Surety, are bound
to Monroe County. Florida , herein callee! Owner, in the sum of
$ 13.804.000.00 for payment of which we bind ourselves, or heirs, personal
representatives, successors, and assigns, jointly and severally.
THE CONDITION OF THIS BOND is that If Principal:
1.
Performs the contract dated June 16 20 04 between
, -'
Principal and Owner for construction of Freeman Justice Center the
contract being made a part of this bond by reference; at the times and in the manner
prescribed in the contract; and
2.
Promptly makes payment to all claimants, as defined in Section 255.05(1), Florida
Statutes, supplying Principal with labor, materials, or supplies, used directly or indirectly
by Principal in the prosecution of the work provided for in the contract and;
3.
Pays Owner all losses, damages, including damages for delay, expenses, costs, and
attorney's fees, including appellate proceedings, that Owner sustains because of a
default by Principal under the contract; and
4. Performs the guarantee of all work and materials furnished under the contract for the
time specified in the contract, then this bond is void; otherwise it remains in full force.
Any changes in or under the contract documents and compliance with an~' formalities connected
with the contract or the changes does not affect Surety's 'obligation under this bond.
DATED ON
July 6
2004
,-'
The Tower Group, Inc.
BY
(NAME OF PRINCIPAL)
(AS ATTORNEY-IN~FACT)
Travelers Casualty and Surety Company of America
l. . (NAME OF SURETY)
By: ~.is7L/
Charles J. N~ son, Attorney-in-Fact
3/22/2004 2:48 PM
PUBLIC CONSTRUCTION BOND
00501-1
,$>I!qq1!l
TRAVEl ..I CASUALTY AND SURETY COMPANY OF MCA
TRAVELERS CASUALTY AND SURETY COMPAh....
FARMINGTON CASUALTY COMPANY
Hartford, Connecticut 06183-9062
POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY (S)-IN-FACT
KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF
AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY,
corporatioP5 du1y organized pnder the laWli of the State of Connecticut, and having their principal offices in the City of Hartford,
County of Hartford, State of Connecticut, (hereinafter the "Companies") hath -made, constitUted and appoint~ and do by these
presents make, constitute and appoint: CharlesD. Nielson, Charles J. Nielson, Laura Lee Clymer, Mary C. Aceves, Warren M.
Al~i; of Miami Lakei, Florida, their ,true and lawful Attorney(s)-in-Fact, with full pow.er and authority hereby conferred to sign,
execute and acknowledge, at any plaCe within the United States, the following instnnm:nt(s): by hislher sole signature and act, any
and all bo'nds, recogiUzances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or
conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as funy and to the same extent
as if the sj3,IDe were signed py ~e duly authorized officers of the Companies, and all the acts of said Attorney(s)-in-Fact, pursuant to'
the authoritY he~ given. are hereby ratifi,ed and confirmed; {.
r: r~
This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are
now in full force and effect:
VOTED: That the C~ the Pre~ident, any Vice ChainnaIi;any Executive Vice President, any Senior Vice President, any Vice President, any
Second Vicc'President; the Treasurer, any Assistant Treasurer, the Corporate Secretary or liUY Assistant Secretary may appoint AttorneyS~in-Fac.t
and Agents to act for and on bt::hnlf of the comPany and may-give such appointee such authority as his or her c.e'rtificate of authority may prescribe
to. sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and ofuer writings obligatory in
fue'iiature of a bond, recognizance, or conditional undertaking, and MY of said officers or the Board of Directors at any time may remove any such
appointee and revoke the power given him or her.
VOTED: That the Chairman, the President, MY Vice Chairman., any Executive Vice President, any Senior Vice President or any Vice President
may delegate all or any part of the fOJ:egoing authority to one or more officers or employees of this Company. Jlrovided that eaeh such delegation is
in writing and a copy thereof is filed in the- office of the Secretary. . -'... .
.. c..-'. '.' '. '
VOTED: That any bond, re~gniz.Eiilce, ~tract of indemnity, or writing obligatory in the nature of a bond, recognixance, or conditional
undertaking shall be valid and ~inding-.upon ,~e Company when (8) signed.?y the President, any Vice Chairman, any Executive Vice President, any
Senior Vice President or any Vice f'resi#t, any Second Vice President; the Treasurer, any Assistant Treasurer, the Corporate Secretmy or any
Assistant Secretary and duly ll.tteirted..~,d..sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if
required) by one or more Attorneys-in~Fac.t and Agents pursuant to the power prescribed-in his or her certificate or their certificates of authority or
by one or more Company officers pursuant to 8 written delegation of authority,
, . '
This Power of Attorney and Certificate of Authority is signed and sealed by facSimile (mechanical or printed) under and by
aiIthority of'the foilowing Standing R,esolution voted by the Boards of Directors of TRAVELERS CA5,UAL TY AND .SURETY
COMPANY OF AMERICA, TRAVELERs.CASUAL1.:Y AND SURETY COMPANY and FARMINGTON CASUALTY
COMPANY. whkhResolution is now in fuH force and. effect:,
VOTED: That fue ~igIl1lture of each of the follo::vmg officers: President, any Executive Vice President, any Senior Vice President, any Vice
President, any Assistant Vice President, any Secretary, any Assistant Secretllry, and the seal of the Company may be affixed by facsimile to any
power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for
purposes only of executing and attesting bonds and undertakings and other writings obligatoI)' in the :n1J.ture thereof, ll1ld any such power of attorney
or certificate bearing such facsimile signature or facsimile seal. shall be valid and binding upon the Company and any such power 50 executed and
certified by suCh fae_e signature and ,facsimile se:al shall be valid and binding upon the Company in the future with respect to any bond or
undertaking to which it is attached. .
"
, '
(11-00 Standllrd)
. f
~..
Travelers
~
IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE
COVERAGE
)
On November 261 2002, President Bush signed into law the
Terrorism Risk Insurance Act of 2002 (the IIAct"). The Act
. establishes a short-term program under which the, Federal
Gov~rnme8t will share in the payment of covered losses caused by
certain acts, of international terrorism';'.;'We are providing you with
this notice to inform you of the key fe.atures of ~he Act, and to let
you know what effect, if anYI the Act will have on your premium.
Under th.~ Act, insurers are required to provide coverage for certain
losses caused by international acts' of terrorism as defined in. the
Act. The Act further provides that the Federal Government will pay
a share of such 'losses. Specifically, the Federal Government will
pay 90% of the amoUnt of covered losses caused by certain acts of
. terrorism which is in excess of TravelersJ statutorily' established ..
deductible for that year. The ,Act also caps the amount ,of terrorism-
related Io.$ses for which the Federal Government or an insurer can
be responsible at $100.000,,000,000.001 provided that the insurer
has met its deductible.
Please note that passage of the Act does not result in any change
in coverage under the attached policy or bond (or the policy or bond
being quoted)., Please also note that no separate additional
premium. charge has been made for the terrorism coverage
required by the Act. The premium charge that is allocable to such
coverage is inseparable from and imbedded in your overall
premium, and is no more than one percent of your premium.
ll..T-I018 (2103)
MONROE COUNTY / ENGINEERING /FA ClLITlES
DEVELOPMENT
CONTRA CT CHANGE ORDER
PROJECT TITLE:
(Name and address)
Freeman Justice Center
CHANGE ORDER NO:
INITIATION DATE:
CONTRACT DATE:
TO CONTRACTOR:
l'he Tower Group, Inc,
405 SW 148t~ Avenue Suite One
Davie. FL 33325
;:. Cl
o "P'
~("")~
0(-"-
APril19~~~
On......
~C:
June 16,~'
::;"'oC.
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The Contract is changed as follows:
The original (Contract Sum) (Guaranteed Maximum Price) .................................... $13,804,000.00 ~
Net change by previously authorized Change Orders .......................... --........ ....... 311 ,340.19
The (Contract Sum) (Guaranteed Maximum Price) prior to this Change Order was ........14,115,340.19
The (Contract Sum) (Guaranteed Maximum Price) will be (increased) 5?;2. $;29.9,)'
by this Change Ord~r ............................$&04,434.81 /
The new (Contract Sum) (Guaranteed Maximum Price") including this Change Order is $'14;11S,77S.00' 11
, PI/ t-r9'/"~ ?O'/r
The Contract Time wil1 be increased by 0.. ......... ...... .. ................. ............. ........ ..... nO... ....21 0 days
The date of substantial Completion as of the date of this Change Order is .... 00... .......J anuary 25, 2007
Detailed description of change order and justification:
r<evislons to Buildino Security Eauipment, Doors. Walls and Ceilinas. and the addition of Fire Rated Doors
and Hardware. Securit revisions are re uested b the Sheriffs Office and the 16m Judiciarv. The pnce
paid for security eQuioment and fire doors will be that shown in the backup documentation included with
this C.O. or that stated on the actual invoice from the supplier which ever is less.
After June 29. 2006. (the substantial completion date before this Chanoe Order), Monroe County will
provide Builders Risk Insurance for this project. Monroe County can purchase Builders Risk Insurance at
a much reduced rate.
This time extension is inclusive of an dela on this ro'ect u to and includin A ril19 2006. The TOvLE r
Grou , Inc. reserves its ri hts to see com
result of the additional 210 calendar days Contract Time Extension
at the project as referenced above.
ARCHITECT: N/A
CUrri.f;~~Uila. ArcMeclJ;
CONTRACTOR: .......J!D.~
The Tower Group
BOARD OF COUN
OF MONROE CO
By
n
Dllte
Date
4f 1 *th
ate
e .'. "BI~:':'.'\',~;:.; \.
....",-i\E~a . ,)1'" .'
t'::,'..'.i.: '".',.:,:!_:i'-.~~,,\
~.......J ".,,,, ','. . ,
i_",: ~,---:1 .,.", > .~,_;,u', :-" ~
"
< ... -~". .
.; ',",'
FREEMAN JUSTICE CENTER
SECTION 00350
MILESTONE SCHEDULE/LlQUIDA TED DAMAGES
This section contains the project milestone schedule. The contractor is required to determine
his proposed schedul~ to meet these milestone dates:
The Contractor is to note the following special milestone dates.
1. Bid Documents Available ... .......... .......... ..... ....................................29 March 2004
2.
Pre~Bid Conference
.................................................................... 8 April 2004
3. Bid Due Date.. ..................................... .............. ....... ..... ..................... 13 May 2004
4. Award Date (Anticipated) ............ ....................................................... 18 May 2004
5. Notice to Proceed and Pre-Construction Meeting (AntiCipated) ......... 25 May 2004
6. Final Completion ...................................................................... 05 December 2005
Contract completion within 548 days from the notice to proceed.
LIQUIDATED DAMAGES
Conditions Under Which Liquidated Damages are Imposed-The time or times stipulated in
the contract for completion of the work of the contract or of specified phases of the contract shall
be the calendar date or dates listed in the milestone schedule.
Liquidated damages will be based on the Substantial Completion Date for all work, modified by
all approved extensions in time as set forth by the Construction Manager's signature of approval
on the Certificate of Substantial Completion. The liquidated damages table below shall be
utilized to determine the amount of liquidated damages.
CONTRACT AMOUNT
Under 50,000.00
$50,000.00-99,999.00
$100,000.00-499,999.00
$500,000.00 and Up
FIRST
15 DAYS
$50.00/Day
100.00/Day
200.DO/Day
500.0D/Day
SECOND
15 DAYS
$100.00/Day
200.DOlDay
500.001Day
1,OOO.00/Day
31ST DAY &
THEREAFTER
$250.00/Day
750.001Day
2,OOa.DO/Day
3,5DO.001Day
The Contractors recovery of damages, and sole remedy for any delay caused by the Owner
shall be an extension of time on the Contract.
END OF SECTION 00350
3/22/2004 2:48 PM
MILESTONE SCHEDULE/liQUIDATED DAMAGES
00350-1
. .
,-. ,
':\) .
B' ,
19'
IN THE CIRCUIT COURT
JUDICIAL CIRCUIT, IN
MONROE COUNTY, FLORIDA
Of THE
AND
16TH
FOR
CIVIL DIVISION
CASE NO.: o~~~'7rY)
THE TOWER GROUP, INC.,
A Florida corporation,
Plaintiff,
~:";~~~ 116:it1;}?'~;~~r~c~t)' C1':!'i!iL'i:~ \. ..~','
~ . "=-'~~'N,--,-l.U~'::d.,
vs.
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS, a Subdivision
of Monroe County, Florida,
Defendant.
/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plainti ff, THE TOWER GROUP, INC., (hereinafter "TOWER"), by
and through undersigned counsel, herein sues Defendant, MONROE
COUNTY BOARD OF COUNTY COMMISSIONERS, (hereinafter "COUNTY") and
in support states as follows:
NATURE OF THE ACTION
1. This is an action for Breach of Contract.
2 . This is an action for damages in excess of $15,000.00,
exclusive of interest and costs, and therefore this Court has
jurisdiction over the subject matter of this action pursuant
to Section 26.012, Florida Statutes.
3. Venue is proper ln Monroe County I Florida pursuant to
Section 47.011, Florida Statutes, as the Project, which is the
ELDER & LEWIS, P.A.
BAYV'IEW EXECUTIVE PlAZA SUITC 301.3225 AVIATION AVE., COCONUT GROVE, FL 33133
r-^'V I ""1'CI C\ 1')-"1.11 ':;'0;., . \I\JCCCITC. ........... .....1....I........I.........i.... .....n.......
subject matter of this litigation,
is located In Monroe
County, Florida; Plaintiff and Defendants conduct substantial
business in Monroe County, Florida; and the payments for
construction serVlces rendered are due and payable in Monroe
County, Florida.
4. Plaintiff TOWER lS a Florida Corporation with its
principal place of business in Broward County, Florida and is
duly licensed to conduct business in the State of Florida.
5. Defendant COUNTY is a public body,under the direction of
and located in Monroe County.
6. Defendant COUNTY entered into a Design Professional
Contract with Gonzalez and Associates.
7. TOWER has performed all conditions precedent to the
bring ing of this action, or such conditions have been waived
or otherwise excused.
COUNT I - BREACH OF CONTRACT
9. TOWER incorporates Paragraphs 1 through 7 above as if
fully set forth herein.
10. On or about June 16, 2004, TOWER entered into a
Contract Agreement with COUNTY pursuant to which TOWER would
provide all labor, materials, equipment and services necessary
for the construction of a facility commonly known as the
2
ELDER & LE\'" IS~ P.A. BAYVIEW EXECUTIVE PLAZA. SUITE 301, 3225 AVIATION AVE.. COCONUT GROVE. FL 33133
freeman Justice Center (hereinafter "PROJECTU).
Defendant has
a copy of the Contract, which is too voluminous to attach.
11 . The
Contract
Agreement
stated
that
the
Owner's
Representative at the Project was the Architect.
12. The Contract between TOWER and COUNTY
contained
general conditions and terms, which included a "no-damages-
for-delayu clause.
13. The COUNTY'S conduct from the outset of the work to
the completion of the proj ect, however, amounted to active
owner interference with TOWER's right to proceed with the work
in a timely fashion.
During the performance of the work,
TOWER's progress was delayed as a consequence of the following
actions or inactions of COUNTY and its representatives:
a. Providing ambiguous plans and specifications to
TOWER;
b. Failing
to
respond
timely
to
requests
for
information and clarifications submitted by TOWER;
c. Failing to respond timely to -requests for change
orders submitted by TOWER;
d. Failing to attend project meetings required by the
Contract;
e. Failing to provide mechanical plans free of errors
and omissions and ambiguties to TOWER;
3
ET JDF.R & l.lEWIS~ P.A. BAYVIEW EXECUTIVE PLAZA - SUITE 301. 3225 AVIATION AVE., COCONUT GROVE. FL 33133
f. Failing
to
provide
electrical
plans
to
TOWER
compatible with the security system directed by the
owner
and
its
design
representatives
to
be
installed;
g. Failing to respond to shop drawings in a timely
fashion; and
h. Failing to obtain a substitute contractor for the
exterior cladding of the building after deleting
that scope of work from TOWER{S agreement.
14. The actions of the COUNTY and its representatives
transcend mere bureaucratic lethargy and bungling, and include
but are not limited to the following:
a. Permitting
design
and
inspection
professionals
months of indifference to repeated and continued
Requests
regarding
for
Information
submitted
by
TOWER
and
ambiguities
in
the
plans
speci fications wi th regard to structure, remedial,
and electrical work which impacted the scheduling
critical path;
b. Permitting months to lapse before providing revised
electrical plans to TOWER compatible with the
security
system
selected
by
the
Owner
for
installation;
4
ELDER & LEWIS~ P.A.
6AYV1EW EXECUTIVE PLAZA. SUITE 301. 3225 AVIATION AVE., COCONUT GROVE; IOL 3; 133
c. Permitting
months
to
lapse
before
providing
mechanical plans to TOWER compatible with the fire
codes of Monroe County;
d . Permitting
months
to
lapse
before
reviewing
subcontractor
shop drawings
for
electrical
and
mechanical work;
e. Permitting months to lapse before entering into a
substi tute contract with an independent contractor,
after deleting the exterior, cladding from TOWER'S
scope of work and therein delaying waterproofing and
completion work for months.
15. As a consequence of the active interference of the
COUNTY, TOWER encountered delays and inefficiencies which
caused the following damages;
a. TOWER
has
experienced
extended
site
general
condi tions costs and extended home office overhead
costs which are continuing damages;
b. TOWER has experienced escalation of construction
costs;
c. TOWER'S electrical subcontractor, months after the
electrical
work
was
scheduled
for
completion,
entered Chapter 11 bankruptcy proceedings, and TOWER
was forced to incur substitute electrical work
5
F,l,nl?R & 1 ,F,WlS. P. A. BAYVIEW EXECUTIVE PLAZA - SUITE 301,3225 AVIATION AVE,. COCONUT GROVE, FL 33133
expenses far in excess of the contract sum of the
original electrical subcontractor; and
d. TOWER has incurred the loss of interest on retainage
sums which have been withheld by MONROE COUNTY as a
result of delays.
16. TOWER has
submitted
claims
for extended general
conditions and home office overhead, claims for escalations in
construction costs, claims for additional costs for electrical
work, all arising from justifiable qelay and active owner
interference, and COUNTY In breach of the contract, has denied
those claims.
17. Moreover,
COUNTY
has
breached
the
contract
by
wrongfully attempting to apply the schedule of values as the
measuring device for determining the credit for deleted brick
and stone work on the exterior cladding.
The contract
specifically states:
"The amount of credit to be allowed by the
Contractor for any deletion or change, which
resul ts in a net decrease in the Contract Sum,
will be the amount of the actual net cost as
confirmed by the Construction Manager.n
Article 7.2.3
\\ I f deductions are ordered the credit shall be
the net cost.n
Article 7.2.4
18. In accordance with provisions 7.2.3 and 7.2.4, TOWER
submi tted the actual costs of the exterior cladding work to
6
ELDER & LEWIS~ P~A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301, 3225 AVIATION AVE.. COCONUT GROVE. Fl 33133
the COUNTY and the COUNTY has wrongfully denied the actual
costs as the measuring device for the deleted work.
19. TOWER anticipates reaching substantial completion of
the PROJECTr despite the delaysr ln the calendar year 2007.
20. While the COUNTY is
ln material breach of the
Agreement, TOWER is waiving that breach solely to the extent
of progressing the work to substantial completion, which the
breach otherwise excuses.
The damages incurred, and that
continue to be incurred, are not waived~
21. Moreover r in the event COUNTY takes actions In the
upcoming weeks and prior to substantial completion that
further
impedes
TOWER'S
efforts
to
achieve
substantial
completion,
the additional and unforeseen impediment may
excuse TOWER from further site performance.
22. As a direct result of the COUNTyrs breachesr TOWER has
suffered damages, which are continuing, in excess of two
million ($2,OOO,OOOr) dollars.
WHEREFORE, Plaintiff THE TOWER GROUP, INC. demands judgment
for damages be entered against MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS, inclusive of interest and costs.
PLAINTIFF'S DEMAND FOR JURY TRIAL
Plaintiff, by and through its undersigned counsel, herein
demands a jury trial of all issues so triable.
7
ELDER & LEWIS, P.A.
BAWIEW EXECUTIVE PLAZA - SUITE 301, 3225 AVIATION AVE., COCONUT GROVE. FL 33133
I. J.,.,"'-
Dated thisl~ day of October, 2007.
ELDER & LEWIS, P.A.
Attorneys for Defendant
Bayview Executive Plaza
3225 Aviation Avenue
Suite 301
Coconut Grove, FL 33133
(786) 314-5155
(786) 314-5811 Fax .
By: ~ ~~~
DA R: ELDER
FLA. BAR NO. 272442
LISA N. BALKIN
F~A. BAR NO. 016347
8
ELDER & LEWIS, P.A.
BAYV1EW EXECUTIVE PLAZA - SUITE 301,3225 AVIATION AVE.. COCONUT GAOVE.L 33133
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IN THE CIRCUIT COURT OF THE 16TH
JUDICIAL CIRCUIT, IN AND FOR
MONROE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: c::n~'l(Y)
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THE TOWER GROUP, INC.,
A Florida corporation,
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Plaintiff,
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MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS, a Subdivision
of Monroe County, Florida,
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Defendant.
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COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, THE TOWER GROUP, INC., (hereinafter "TOWER"), by
and through undersigned counsel, herein sues Defendant, MONROE
COUNTY BOARD OF COUNTY COMMISSIONERS, (hereinafter "COUNTY") and
in support states as follows:
NATURE OF THE ACTION
1. This is an action for Breach of Contract.
2. This is an action for damages in excess of $15,000.00,
exclusive of interest and costs, and therefore this Court has
jurisdiction over the subject matter of this action pursuant
to Section 26.012, Florida Statutes.
3. Venue is proper in Monroe County, Florida pursuant to
Section 47.011, Florida Statutes, as the Project, which is the
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ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA SUITE 301. 3225 AVIATION AVE.. COCONUT GROVE:l':~
MAIN: (786) 314-5155 . FAX: (786) 314-5811 . WEBSITE: www.elderlewls_com
subject matter of this litigation, is located in Monroe
County, Florida; Plaintiff and Defendants conduct substantial
business in Monroe County, Florida; and the payments for
construction services rendered are due and payable in Monroe
County, Florida.
4. Plaintiff TOWER 1S a Florida Corporation with its
principal place of business in Broward County, Florida and is
duly licensed to conduct business in the State of Florida.
5. Defendant COUNTY is a public body under the direction of
and located in Monroe County.
6. Defendant COUNTY entered into a Design Professional
Contract with Gonzalez and Associates.
7. TOWER has performed all conditions precedent to the
bringing of this action, or such conditions have been waived
or otherwise excused.
COUNT I - BREACH OF CONTRACT
9. TOWER incorporates Paragraphs 1 through 7 above as if
fully set forth herein.
10. On or about June 16, 2004, TOWER entered into a
Contract Agreement with COUNTY pursuant to which TOWER would
provide all labor, materials, equipment and services necessary
for the construction of a facility commonly known as the
2
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301. 3225 AVIATION AVE.. COCONUT GROVE, FL 33133
MAIN: (786) 314-5155 . FAX: {78G} 314-5811 . WEBSITE: www.elderlewls.com
Freeman Justice Center (hereinafter "PROJECT").
Defendant has
a copy of the Contract, which is too voluminous to attach.
11. The
Contract
Agreement
stated
that
the
Owner's
Representative at the Project was the Architect.
12. The Contract between TOWER and COUNTY contained
general conditions and terms, which included a "no-damages-
for-delay" clause.
13. The COUNTY'S conduct from the outset of the work to
the completion of the proj ect, however, amounted to active
owner interference with TOWER's right to proceed with the work
in a timely fashion.
During the performance of the work,
TOWER's progress was delayed as a consequence of the following
actions or inactions of COUNTY and its representatives:
a. Providing ambiguous plans and specifications to
TOWER;
b. Failing
to
respond
timely
to
requests
for
information and clarifications submitted by TOWER;
c. Failing to respond timely to requests for change
orders submitted by TOWER;
d. Failing to attend project meetings required by the
Contract;
e. Failing to provide mechanical plans free of errors
and omissions and arnbiguties to TOWER;
3
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301. 3225 AVIATION AVE.. COCONUT GROVE. FL 33133
MAIN: (786) 314-5155 . FAX; (786) 314-5811 . WEBSITE: www.elderlewls.com
f. Failing to provide
electrical
plans
to TOWER
compatible with the security system directed by the
owner
and
its
design
representatives
to
be
installed;
g. Failing to respond to shop drawings in a timely
fashion; and
h. Failing to obtain a substitute contractor for the
exterior cladding of the building after deleting
that scope of work from TOWER'S agreement.
\.
14. The actions of the COUNTY and its representatives
transcend mere bureaucratic lethargy and bungling, and include
but are not limited to the following:
a. Permitting
design
and
inspection
professionals
months of indifference to repeated and continued
Requests
for
Information
submitted
by
TOWER
regarding
ambiguities
in
the
plans
and
specifications with regard to structure, remedial,
and electrical work which impacted the scheduling
critical path;
b. Permitting months to lapse before providing revised
electrical plans to TOWER compatible with the
security
system
selected
by
the
Owner
for
installation;
4
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301, 3225 AVIATION AVE.. COCONUT GROVE FL 33133
MAIN: (786) 314-5155 . FAX: (786) 314-581, . WEBSITE: www.elde"lewis.com
c. Permitting
months
to
lapse
before
providing
mechanical plans to TOWER compatible with the fire
codes of Monroe County;
d. Permitting
months
to
lapse
before
reviewing
subcontractor shop drawings
for electrical and
mechanical work;
e. Permitting months to lapse before entering into a
substi tute contract with an independent contractor,
after deleting the exterior cladding from TOWER'S
scope of work and therein delaying waterproofing and
completion work for months.
15. As a consequence of the active interference of the
COUNTY, TOWER encountered delays and inefficiencies which
caused the following damages:
a. TOWER
has
experienced
extended
site
general
condi tions costs and extended home office overhead
costs which are continuing damages;
b. TOWER has experienced escalation of construction
costs;
c. TOWER'S electrical subcontractor, months after the
electrical
work was
scheduled
for
completion,
entered Chapter 11 bankruptcy proceedings, and TOWER
was forced to incur substitute electrical work
5
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301, 3225 AVIATION AVE., COCONUT GROVE. FL 33133
MAIN: (786) 314-5155 . FAX: (786) 314-5811 . WEBSITE: www.elderlewls.com
expenses far in excess of the contract sum of the
original electrical subcontractor; and
d. TOWER has incurred the loss of interest on retainage
sums which have been withheld by MONROE COUNTY as a
result of delays.
16. TOWER has
submitted claims
for extended general
conditions and home office overhead, claims for escalations in
,
construction costs, claims for additional costs for electrical
work, all arising from justifiable delay and active owner
interference, and COUNTY in breach of the contract, has denied
those claims.
17. Moreover,
COUNTY
has
breached
the
contract
by
wrongfully attempting to apply the schedule of values as the
measuring device for determining the credit for deleted brick
and stone work on the exterior cladding.
The contract
specifically states:
"The amount of credit to be allowed by the
Contractor for any deletion or change, which
results in a net decrease in the Contract Sum,
will be the amount of the actual net cost as
confirmed by the Construction Manager."
Article 7.2.3
"If deductions are ordered the credit shall be
the net cost."
Article 7.2.4
18. In accordance with provisions 7.2.3. and 7.2.4, TOWER
submi tted the actual costs of the exterior cladding work to
6
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301. 3225 AVIATION AVE.. COCONUT GROVE, FL 33133
MAIN: (786) 314-5155 . FAX: (786) 314-5811 . WEBSITE: www.elderlewls.com
the COUNTY and the COUNTY has wrongfully denied the actual
costs as the measuring device for the deleted work.
19. TOWER anticipates reaching substantial completion of
the PROJECT, despite the delays, in the calendar year 2007.
20. While the COUNTY is
in material breach of the
Agreement, TOWER is waiving that breach solely to the extent
of progressing the work to substantial completion, which the
breach otherwise excuses.
The damages incurred, and that
continue to be incurred, are not waived.
21. Moreover, in the event COUNTY takes actions in the
upcoming weeks and prior to substantial completion that
further
impedes
TOWER'S
efforts
to
achieve
substantial
completion,
the additional and unforeseen impediment may
excuse TOWER from further site performance.
22. As a direct result of the COUNTY's breaches, TOWER has
suffered damages, which are continuing, ln excess of two
million ($2,000,000,) dollars.
WHEREFORE, Plaintiff THE TOWER GROUP, INC. demands judgment
for damages be entered against MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS, inclusive of interest and costs.
PLAINTIFF'S DEMAND FOR JURY TRIAL
Plaintiff, by and through its undersigned counsel, herein
demands a jury trial of all issues so triable.
7
ELDER & LE\VIS, P.A.
BAYVIEW EXECUTIVE PLAZA - SUITE 301. 3225 AVIATION AVE., COCONUT GROVE, FL 33133
MAIN: (786) 314-5155 . FAX: (786) 314-5811 . WEBSITE: www.elderlewls.com
/.).,.'v-
Dated thi~ day of October, 2007.
ELDER & LEWIS, P.A.
Attorneys for Defendant
Bayview Executive Plaza
3225 Aviation Avenue
Suite 301
Coconut Grove, FL 33133
(786) 314-5155
(786) 314-5811 Fax
By: "Jr. ~ ~
DA r-fu :R: ELDER
FLA. BAR NO. 272442
LISA N. BALKIN
F~A. BAR NO. 016347
8
ELDER & LEWIS, P.A.
BAYVIEW EXECUTIVE PlAZA - SUITE 301, 3225 AVIATION AVE., COCONUT GROVE, ,'L 33133
MAIN: (786) 314-5155 . FAX: (786) 314-5811 . WEBSlTE: www.elderl ,wls.com