Item M1* 1:30 P.M. CLOSED SESSION *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 11/17/15 — KW Division: County Attorney
Bulk Item: Yes No XX Staff Contact: Bob Shillinger, 292-3470
AGENDA ITEM WORDING: An Attorney -Client Closed Session in the matter of Monroe County
Board of County Commissioners v. Construct Group Corp. and Berkley Regional Ins. Co., Case No.
CA-K-15-844 and Construct Group Corp. v. Monroe County Board of County Commissioners, Case
No. CA-P-15-563.
ITEM BACKGROUND: 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, County Administrator Roman Gastesi, County
Attorney Bob Shillinger, Assistant County Attorneys Chris Ambrosio and Christine Limb ert-B arrows,
special litigation counsel Ira Libanoff and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
10/21/15 BOCC scheduled Closed Session for 11/17/15 at 1:30 p.m. in Key West, FL or as soon
thereafter as may be heard
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST: Court Reporter costs INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: Court Reporter costs SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
APPROVED BY: County Atty
DOCUMENTATION: Included
DISPOSITION:
Revised 7/09
No xx AMOUNT PER MONTH-
OMB/Purchasing Risk Management
Not Required X
AGENDA ITEM #
Year
County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Eables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
June 6, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 12`h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Construct Group Corp. v. Monroe County Board of County Commissioners
Case No.: CA-P-15-563
Dear Mr. Madok:
Please find enclosed herewith transcripts of the following attorney/client closed sessions of the
Monroe County Board of County Commissioners regarding the above -referenced litigation:
September 16, 2015;
November 17, 2015; and,
February 10, 2016.
Under F.S. 286.011(8), the transcripts may become part of the public record because the
litigation has concluded.
Thank you for your assistance in this matter. Please contact me should you have any
questions.
Sincerely,
ert . Shillinger
Monroe County Attorney
Enclosures (3 transcripts)
Closed Session Sealed Transcript Confidential
November 17, 2015
MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
CLOSED SESSION
ORIGINAL
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
vs.
CONSTRUCT GROUP CORP. and BERKLEY REGIONAL INS. CO.
CASE NO. CA-K-15-844
-and-
CONSTRUCT GROUP CORP.
vs.
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CASE NO. CA-P-15-563
APPEARANCES:
Mayor Heather Carruthers
Commissioner Sylvia J. Murphy
Commissioner Danny L. Kolhage
Commissioner David P. Rice
Robert B. Shillinger, County Attorney
Chris Ambrosio, Assistant County Attorney
Ira Libanoff, Special Litigation Counsel
ABSENT:
Commissioner George Neugent
Harvey Government Center
At Historic Truman School
1200 Truman Avenue
Key West, Florida 33040
Tuesday, November 17, 2015
1:45 p.m. - 2:12 p.m.
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Closed Session Sealed Transcript Confidential
November 17, 2015 2
(WHEREUPON, the following proceedings were had on
November 17, 2015, at 1:45 p.m., with all parties present:)
THE CLERK: Next item is Closed Session, M-1,
found on page 10. An Attorney -Client Closed Session in the
matters of Monroe County BOCC vs. Construct Group Corp and
Berkely Regional Insurance Company, Case Number CA-K-15-
844; and Construct Group Corp. vs. Monroe County BOCC, Case
Number CA-P-15-563.
MR. SHILLINGER: Madame Mayor, Attorney -Client
Closed Session will be held pursuant to Florida Statute
Section 286.011(8). It is estimated this meeting will take
approximately 30 minutes. The persons attending will be
the County Commissioners, myself the County Attorney,
Assistant County Attorney Chris Ambrosio, and Special
Litigation Counsel Ira Libanoff, as well as a certified
court reporter.
Since the law prohibits any other person from
being present at the Closed Session, the Commissioners, the
attorneys for the County and the court reporter will now
remain in the meeting room, and all other persons are
required to leave the room. When the Closed Session is
over, we will reconvene and re -open the public meeting.
Declare the open meeting closed.
MAYOR CARRUTHERS: I declare the open meeting
I closed.
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Closed Session Sealed Transcript Confidential
November 17, 2015 3
MR. SHILLINGER: Thank you. And while I was
saying all that, we'll wait for the Clerk. Call the closed
session to order.
MAYOR CARRUTHERS: The Closed Session is called
Ito order.
(Beginning of Closed Session.)
MR. SHILLINGER: For the record, this meeting is
being held at my request who announced at a meeting held on
October 21st, 2015, that I needed your advice in the matter
of Monroe County vs. Construct Group and Berkely Regional
Insurance Company, Case Number CA-K-15-844; and the
companion case, Construct vs. Monroe County, CA-P-15-563.
At that meeting, the Board held or the Board approved
holding a Closed Session. Public notice was given through
the announcement of the meeting at the October 21st
meeting, and through publication of the agenda for today's
meeting on the County's website.
For the record and benefit of the court reporter,
each of us will state our names and positions, starting
with the Commission.
COMMISSIONER MURPHY: Sylvia Murphy, District 5.
MAYOR CARRUTHERS: Heather Carruthers, District
Ing
COMMISSIONER RICE: David Rice, District 4.
COMMISSIONER KOLHAGE: Danny Kolhage, District 1.
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Closed Session Sealed Transcript Confidential
November 17, 2015 4
MR. SHILLINGER: Bob Shillinger, County Attorney.
MR. AMBROSIO: Chris Ambrosio, Assistant County
MR. LIBANOFF: Ira Libanoff, outside counsel for
MR. SHILLINGER: Just as a reminder, we will only
be discussing settlement negotiations and strategy related
to litigation expenditures. We cannot take any decisive
action at this meeting. We can only provide information
and direction to the attorneys. Any decision this Board
makes concerning this case must be done in a meeting open
to the public. So I'll turn it over to Chris to tee it up.
MR. AMBROSIO: Okay. Good afternoon. Good to
see you all. This is the CR-905 matter. There's
litigation, just to remind everyone, there's litigation in
two, two actions pending. The County has initiated the
litigation against Construct Group Corp., that's the
contractor on the job, and it's surety, Berkley Insurance.
The other action was initiated by Construct Group
Corp. against the County and they've later amended their
action to add the engineer of record as a co-defendant.
And they also happen to have added, individually, the
engineer that did the plans, which is very rare, I mean,
they can attempt. But that's where we are in terms of the
litigation.
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Closed Session Sealed Transcript Confidential
November 17, 2015 5
Ira has filed a motion to have the matters
consolidated and transferred so the two actions can be
consolidated as one action in the same court because, right
now, it's pending, the two actions are pending, two
separate judge's and in two separate venues. It's better
for it all to be consolidated, one judge and one
courthouse, done. That hearing is currently scheduled to
take place in December.
MR. LIBANOFF: November 30th.
MR. AMBROSIO: Sorry. November 30th. There may
not be a need to have that in November if all the attorneys
for all parties come to an agreement. We sent in an agreed
order to the Judge. No need to have the hearing. That's
where we are in terms of the litigation.
And, at this stage, we haven't formally served
our answer to the complaint, again, made against the
County, so there's no record responses in terms of our
actual answer and defenses, any affirmative defenses with
respect to their allegations.
To remind you, their allegations are that we are
improperly withholding $500,000-plus from them, that they
deem to be payable because, in their estimate, the job has
reached substantial completion and they have finalized the
project and that they are entitled to those monies. That's
their position.
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Closed Session Sealed Transcript Confidential
November 17, 2015 6
If you recall, our position was we have not
reached substantial completion, it has not been certified
as being substantially complete, and the job is not
finalized. Therefore, we feel that we are entitled to
withhold.
MAYOR CARRUTHERS: What is the basis for it being
determined to be substantially complete? It's our -- we
get to say that, right?
MR. AMBROSIO: Well, we don't necessarily. I
mean, ultimately, it will go through Engineering for that,
but it's our CEI, that's Metric Engineering, it's up to our
CEI to certify substantial completion.
MAYOR CARRUTHERS: And they have not done that?
MR. AMBROSIO: And they haven't done that.
J Although --
MAYOR CARRUTHERS: So how can these guys claim
that it is substantially complete?
MR. AMBROSIO: Right. How could the guys build a
road that was too short?
But the CEI, they were prepared to issue a
declaration, essentially, that the project was
substantially complete because they were representing to
our Engineering Department that final payments were due.
And final payments would only be due once they've achieved
substantial completion.
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Closed Session Sealed Transcript Confidential
November 17, 2015 7
So, and remember that they're on one side of the
"V" and we're on the other. So, you know, under a more
ideal situation, our CEI would be on our side of the "V."
They would be in the room with us, and they're not
necessarily taking that position. So, it's a unique
situation where you have the contractor and the CEI over
here, and then you have the owner here, the owner who hired
the CEI to work for them, but the CEI is over here with the
contractor. So that's where we are. Last time --
MAYOR CARRUTHERS: But you said that they also,
the contractor filed a judgment against the CEI and the
engineer, right?
MR. AMBROSIO: No, they didn't file a lawsuit
against the CEI, no.
MAYOR CARRUTHERS: Oh.
MR. AMBROSIO: They only sued the engineer of
record.
MAYOR CARRUTHERS: Who works for the CEI?
MR. AMBROSIO: No, no. We hired EAC --
MAYOR CARRUTHERS: Okay.
MR. AMBROSIO: -- as an engineer to design. And
the CEI is Metric, we hired them to be our, you know,
consultant engineer --
MAYOR CARRUTHERS: Right.
MR. AMBROSIO: -- and inspector on the job. So,
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Closed Session Sealed Transcript Confidential
November 17, 2015 8
the contractor, CGC, sued the engineer, not the CEI.
MAYOR CARRUTHERS: The engineer who designed the
road.
MR. AMBROSIO: Exactly. Exactly. They sued the
designer. Part of their allegations are that the plans
were flawed.
COMMISSIONER KOLHAGE: Have we brought the CEI
into our litigation relative to the contract?
MR. AMBROSIO: No.
COMMISSIONER KOLHAGE: Not yet?
MR. AMBROSIO: Not yet. Not yet.
MAYOR CARRUTHERS: Why? Why aren't we?
MR. LIBANOFF: The reason we haven't done it yet
-- and, good afternoon, Ira Libanoff. Nice to see you all.
Sorry.
The reason we haven't done it yet is, in essence,
as we discussed a couple months ago when I was here,
there's been a lot of discussion about trying to get this
resolved without proceeding with the litigation. In fact,
if you remember, we had a mediation that was agreed to by
all parties, really, on the eve of both parties filing the
lawsuits that Chris was talking about.
So, as a result of filing motions and what I
would call, more or less, an informal agreement between us
and Construct's counsel to abate this, pending these things
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Closed Session Sealed Transcript Confidential
November 17, 2015 9
If the litigation proceeds, and we're here to
talk about that today, then, at some point, we would bring
in Metric. And, in fact, as you may recall, I told you
that Metric has made an offer to the County as part of the
overall settlement discussions to try and resolve the claim
against it. So it knows that, again, if this is going to
proceed, that it is going to be brought into the
litigation.
I think what Chris was leading up to is, and I
already mentioned, when we were here a couple of months
ago, we talked about what had occurred at the mediation
back in August and the fact that all parties were more or
less in agreement that additional information was needed.
What we had at that point was a letter that had been
prepared by EAC, the design engineer, who we called in
after the fact to go out and analyze the work that had been
I done.
And they took some measurements, kind of
informally, if you will. It was not a formal survey that
was done, but they went out and measured the width of the
road, the width of the travel lane, the width of the bike
lane at various locations, and the information that they
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Closed Session Sealed Transcript Confidential
November 17, 2015 10
got was, let's say, inconclusive. There were portions
where it showed that the travel lane was less than the
required, what we believe and contend is the required 12-
foot wide requirement. And, but in some of those same
locations, you have a bike lane that was wider than five
feet wide. So the dimensions were all askew, if you will.
And the discussion at the mediation and
thereafter amongst the Engineering Department and Legal
Department was we really needed more information. And
you'll recall, what we talked about was the Engineering
Department hiring a surveying company to go out and do a
much more detailed survey of the as -built condition so that
we could provide that to you for purposes of what the
ultimate determination here as to whether corrective action
truly is necessary or not, or whether a monetary resolution
in the form of some credit, as well as contribution from
Metric, is the way to proceed with this.
We've now done that. The Engineering Department
hired the surveying company. They surveyed at 100-foot
intervals, both sides of the road, so there is in excess of
800 points of survey that was done. That, the results of
that survey have only recently been obtained, along with
some relatively quick analysis of that information done.
But, as a result of that, we're now in a position where we
can tell you that, I would say as good faith, that just a
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small amount in comparison to the entire road, roughly 20
percent of the points, a little over 20 percent, are beyond
six inches or more short of the required 17 feet on either
side of the centerline. And, approximately 80 percent of
the points that were measured are six inches or less of
deviation from that 17 feet. And, in fact, roughly a
quarter or a little over a quarter of the points are fully
compliant with the requirement.
The determination from that information from the
Engineering Department is that, at this point, given the
other, if you'll remember, the statistical information that
we had obtained from a consultant about the safety issues
in regard to the reduced lane width adjacent to a bicycle
lane and so on, that there was roughly somewhere around a
two and -a -half percent increase in --
(Brief interruption.)
MR. LIBANOFF: Roughly, a two and -a -half percent
increase in, if you will, by a percentage standpoint,
possibility of accidents occurring as a result of lane
width measurements. And so, the Engineering Department's
assessment is that based upon this information that has now
been provided, that it does not mandate, nor is the
Engineering Department recommending, that corrective action
is required. Because, in fact, this roughly 20 percent or
a hundred -odd points spread throughout 800 points is not
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Closed Session Sealed Transcript Confidential
November 17, 2015 12
even at one location. It's interspersed throughout the
roughly 22 miles, if you count both sides of the road, and
so it's not even, like, one particular area that has the
majority of those points where you could even say, we need
to fix one area to the exclusion of everything else. It's
almost impossible to just go out and fix those points. And
likewise, because those points are so interspersed amongst
the 22 miles, --
MAYOR CARRUTHERS: They're spaced.
MR. LIBANOFF: Right.
-- the danger of the increased risk is further
reduced because that reduced roadway of width is so
interspersed amongst the entire area.
So, from a practical standpoint -- from a
litigation standpoint, let me put it that way, we've
discussed that it's going to be a very difficult case,
because of that, to prove. If you remember, what we talked
about was the issue of what's called economic waste.
MAYOR CARRUTHERS: Yeah.
MR. LIBANOFF: And whether or not -- because it's
going to cost roughly a million and -a -half dollars to do
the corrective work. And Construct's position, the
contractor's position is going to be that the -- especially
now that we've done these measurements, and they will be
discoverable, ultimately, their position is going to be
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Closed Session Sealed Transcript Confidential
November 17, 2015 13
that it's going to be economic waste to, in essence,
destroy what are otherwise perfectly good and useful bike
lanes.
Because in order to, again, to remind you, to
effectuate the repair, the entire bike lane has to be --
the asphalt has to be milled, meaning scarified, in
essence, so that the six inches can be added to the
outside, and then the entire thing blended together to
create, you know, an equal and level surface of the bike
lane in order to add that six inches. And particularly,
because it's not -- six inches isn't even required in a
vast majority of the locations, --
MAYOR CARRUTHERS: Yeah.
MR. LIBANOFF: -- the argument from their side is
going to carry some weight if we go out and spend a million
and -a -half dollars to get it corrected.
So, from the Engineering Department's standpoint,
look, the County is owed something. This project was not
done correctly and the contractor and the CEI both
recognize that. If you'll recall, the contractor had made
a proposal prior to the last time I was here in September,
of a credit of $70,000. The CEI, Metric, that Chris was
talking about, has offered to walk away from an $18,000
final bill and make a payment of $30,000. So we have
$118,000 on the table and we've not countered that yet.
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Closed Session Sealed Transcript Confidential
November 17, 2015 14
And both parties have told me that they're prepared to go
up from that point, but they're not going to bid against
themselves. They want, in essence, a counter offer from
the County that they will then respond to.
Now, just to put a couple numbers before you to
think about. Chris mentioned that we're holding --
recently, an $80,000 payment was made to Construct for work
that was done that was not in any way involved in the
issues that we're talking about, so there was no dispute
over that payment and we made that payment kind of, if you
will, in a good -faith effort to continue this informal
abatement that we've been traveling under, but we're still
holding over $500,000.
Based upon the $80,000 payment that was made,
Construct has given us information that it owed its
subcontractors and suppliers roughly $313,000. So assuming
they took that money and paid down their bills, which is
what the discussion was as to why they needed payment, they
should now owe about somewhere around $230,000, and we're
holding $500,000. So there's around a $270,000 number that
is, if you will, Construct's money.
Now, practically, I seriously doubt Construct is
going to agree to just walk away from that $270,000, but
we've got a fair amount to play with, if you will, in
regard to the negotiations that will now take place. And
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Closed Session Sealed Transcript Confidential
November 17, 2015 15
so, what we've talked about within the Legal Department and
the Engineering Department is pursuing these negotiations
and discussions in an effort to try and get the greatest
amount from both Construct and Metric that we're able to
get toward a monetary resolution. And then, whenever I
feel that I've exhausted those efforts and gotten the most
dollars that we'll be able to get, we'll bring that
information back to you as a proposed settlement and we can
have a further discussion as to whether that is a
sufficient credit for the Commission to approve in regard
to them closing out the project.
MAYOR CARRUTHERS: We can't make a -- come to a
-- we can't give you parameters now without having to do
I this again?
MR. LIBANOFF: Oh, sure.
COMMISSIONER RICE: Well, I've got a question.
Maybe I'm related to this legal action, but it's not
unrelated to the project, and if it needs to be considered
in another venue, just tell me so.
MR. SHILLINGER: Speed limit?
COMMISSIONER RICE: The money doesn't matter much
to me, very honestly. That's just the way it is. But what
does matter is that we started this, quote, improvement,
with a 55 mile -an -hour speed limit, and we ended this
improvement with a 45 mile -an -hour speed limit. How do we
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Closed Session Sealed Transcript Confidential
November 17, 2015 16
COMMISSIONER RICE: No kidding.
MAYOR CARRUTHERS: Yeah. Does the two and -a -half
percent increase in potential accidents, does that -- is
that a 45 or a 55 mile -an -hour?
MR. LIBANOFF: The two and -a -half percent is at,
correct me if I'm wrong, at a 55 mile -per -hour speed limit.
MAYOR CARRUTHERS: So, then that's, that we --
MR. LIBANOFF: Right.
MAYOR CARRUTHERS: -- think it's being reduced
because it's spread out over a number of miles.
MR. LIBANOFF: So that's already reduced. And
the reason that we, the County, as I understand it, has
maintained the 45 is because until we get further
direction, given that there was an increased risk, that
would reduce that two and -a -half percent. But, yes, the
two and -a -half percent is based upon having a 12-foot wide
and five -foot -wide, 17 feet, reduced down to the 11 and -a -
half -foot travel lane, is what provides the two and -a -half
percent increase, percentage wise.
MR. SHILLINGER: And to tie it together, we will
undercut our position in this litigation if we were to just
go and stick it at 55 right now.
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MAYOR CARRUTHERS: Until it's settled, yeah.
MR. SHILLINGER: Because that is acknowledgment
that --
MAYOR CARRUTHERS: I understand. Yeah.
COMMISSIONER RICE: Well, I'm not -- I'm not
advocating right now.
MR. SHILLINGER: Right.
MAYOR CARRUTHERS: Yeah, but we would --
COMMISSIONER RICE: I'm only advocating at the
first opportunity.
MAYOR CARRUTHERS: Yeah.
COMMISSIONER MURPHY: Yeah.
MR. LIBANOFF: And what our discussions with the
Engineering Department have been, that they're also, again,
for further discussion perhaps, but it would be a
compromise in regard to both reducing the risk by perhaps
that interim five mile -per -hour, a 50 as opposed to 45, or
a 55, but all that can occur at a later date, and it's all
a risk management issue, if you will.
MR. AMBROSIO: As soon -- like Bob was saying, we
don't want to take any of those steps only because there's
litigation. If we weren't --
COMMISSIONER RICE: We got that.
MAYOR CARRUTHERS: Yeah, yeah. That's a good --
we get it.
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November 17, 2015 18
MR. AMBROSIO: -- in this --
COMMISSIONER RICE: You don't need to repeat
that.
MR. AMBROSIO: Right.
MR. LIBANOFF: But to answer your question, yes,
that has been discussed and would most likely occur after,
later on.
COMMISSIONER RICE: So I guess the real answer to
my question is what we need to have a 55 mile -an -hour speed
limit is change the signs.
COMMISSIONER MURPHY: Yeah.
MAYOR CARRUTHERS: Yeah, essentially.
COMMISSIONER RICE: And be willing to accept a
minute, perhaps, bit of liability based on the statistics
that you gave.
MR. LIBANOFF: And recalling also, as Bob said
when we were here the last time, that we have other
safeguards in place like sovereign immunity and so on in
regard to, God forbid, if that did in fact occur.
COMMISSIONER RICE: And you can't have a four
and -a -half foot bicycle lane. I've never -- I'm a bicycle
rider.
MAYOR CARRUTHERS: Yeah.
COMMISSIONER RICE: I'm sorry, I don't understand
that. We have them all over Monroe County, but not there.
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November 17, 2015 19
MR. LIBANOFF: The problem is, just to give you
an idea from a practical standpoint, you could have a four
and -a -half foot bike lane, but to do that, the
thermoplastic stripe that has been installed would have to
be moved over. And to do that, you have to mill that off,
that same milling process that I referred to earlier, to
then reinstall the stripe basically six inches over. But
then you have to do a repair to the road. By the time you
do all that, the cost of doing all that, as Engineering
Department has concluded, you might as well do that whole
million and -a -half dollar --
COMMISSIONER RICE: I would suggest a troop of
Boy Scouts with a can of black paint and then another one
of yellow paint, but --
COMMISSIONER KOLHAGE: Is there any other work
that has to be done to the road of any kind?
MR. LIBANOFF: As far as the contract that CGC
I had?
COMMISSIONER KOLHAGE: Yes, yes.
MR. LIBANOFF: No. They went back, and it took
them a long time. Remember, we talked about liquidated
damages and those types of things, but they did go back
finally and completed all of their remaining punch -list
items. So they have, but for this issue, completed all
work on the project.
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November 17, 2015 20
COMMISSIONER KOLHAGE: Okay. And we've accepted
all of that other work?
MR. AMBROSIO: Yes.
MR. LIBANOFF: Yes. The CEI has signed off on
the punch -list work that they went back in April and May
and performed.
MAYOR CARRUTHERS: Okay. So if you're looking
for direction from us, it sounds like you need to know
whether or not we want to continue litigation, which I
don't think anybody does, right? We want to -- we want to
see what we can get with settlement.
MR. LIBANOFF: Right.
MAYOR CARRUTHERS: So then you probably need some
parameters in terms of a number that you're looking for,
correct?
MR. LIBANOFF: Please, yes.
COMMISSIONER KOLHAGE: Well, rather than us be
arbitrary about that, which we would have to be, I'd like
just to allow Ira to get whatever he can get.
MAYOR CARRUTHERS: Well, yeah, okay. But he just
threw out 270 as a potential number that he doesn't think
they're going they're going to walk away from. I would
have suggested starting at three, because that's about 20
percent of a million and -a -half, which is what it would
cost to re -do the road, which we're not going to do
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Closed Session Sealed Transcript Confidential
November 17, 2015 21
regardless. But if we walk in saying, well, we want, you
know, 300, how close to that will we get?
MR. LIBANOFF: Well, and one of the things that
we were discussing earlier today is from a negotiating
strategy is whether to continue to conduct two separate
negotiations, one with Construct Group and the other with
Metric, or whether to put everyone in a room and saying,
this is the number, you guys figure out how you're going to
get us that number. And I think it's probably better for
-- almost to pit them against one another. They both want
out. They both want closure just as much as we do. And
so, give them the opportunity to get there, if you will,
and that 300 number, from a starting point, I think, since
we have two parties, one of whom has an insurance company,
Metric. That's who's going to pay its contribution.
That's a number that I think, certainly from a starting
point, is a number that I agree with. And we should work
from there. And then we almost have a bracket, if you
will, between the 118 starting point that we're at now, and
what will be our counter to that, which is $300,000.
And then, Mr. Kolhage, yes, I agree, I will just
negotiate to the point of trying to get the best number
within that, those parameters, as I can.
MR. AMBROSIO: And there's actually an additional
benefit in that because the contractor sued the engineer of
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record, the designer, they are a party to the litigation.
So it's very likely that because they are now a defendant
in the lawsuit, they are more inclined to be involved in
some smaller contribution to the whole. Because they want
to get out. The contractor is pointing a finger at them.
The contractor is likely going to ask the designer, you
have to contribute to this pot going into the County.
MAYOR CARRUTHERS: Should we add to that 300
figure, the costs that we've incurred thus far in this
process?
MR. SHILLINGER: As a starting point, yes.
MAYOR CARRUTHERS: Yeah.
MR. SHILLINGER: As a starting point, yes.
Because we have, not only Ira's costs, --
MAYOR CARRUTHERS: Right.
MR. SHILLINGER: -- but we have the engineer's
costs that --
MAYOR CARRUTHERS: Survey.
MR. SHILLINGER: -- went out and did the survey
on the different stations in the --
MAYOR CARRUTHERS: All right. Yes?
COMMISSIONER KOLHAGE: Ira, will they have access
to the results of the survey before you start the
negotiations?
MR. LIBANOFF: No.
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November 17, 2015 23
COMMISSIONER KOLHAGE: Good.
MAYOR CARRUTHERS: Yeah.
MR. SHILLINGER: Right. I believe I have the
direction of the Board that I need, unless you have any
further comments. Ira, do you need anything else?
MR. LIBANOFF: No, I'm good. Thank you very
much.
MAYOR CARRUTHERS: All right. We'll call the
closed session to a close and open the open session.
(Closed session concluded at 2:12 p.m.)
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CERTIFICATE OF REPORTER
STATE OF FLORIDA )
COUNTY OF MONROE )
I, Suzanne Ex, Certified Verbatim Reporter and
Florida Professional Reporter, do HEREBY CERTIFY that I was
authorized to and did report the foregoing proceedings; and
that the transcript, pages 1 through 23 are a true and
correct record of my notes.
I further certify that I am not a relative,
employee, attorney, or counsel of any of the parties, nor
am I a relative or employee of any of the parties'
attorneys or counsel connected with the action, nor am I
financially interested in the action.
Dated this 30th day of November, 2015.
Suzanne Ex, CVR-M, FPR
Certified Verbatim Reporter
Florida Professional Reporter
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November 17, 2015
$118,000 13:25
$18,000 13:23
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$30,000 13:24
$313,000 14:16
$500,000 14:13,
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$500,000-plus
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abatement 14:12
accept 18:13
accidents 11:19
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acknowledgment
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action 4:9,19,
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actions 4:16
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actual 5:18
add 4:21 13:10
added 4:22 13:7
additional 9:16
adjacent 11:13
advocating
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affirmative
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afternoon 4:13
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agree 14:23
agreed 5:12
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allegations
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amount 11:1
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analysis 10:23
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approve 15:10
approximately
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area 12:3,5,13
argument 13:14
as -built 10:12
askew 10:6
asphalt 13:6
assessment
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Assistant 4:2
assuming 14:16
attempt 4:24
Attorney 4:1,3
attorneys 4:10
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August 9:15
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back 9:15 15:8
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based 11:21
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basically 19:7
basis 6:6
Berkley 4:18
bicycle 11:13
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bid 14:2
bike 9:24 10:5
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bill 13:24
bills 14:17
bit 18:14
black 19:13
blended 13:8
Board 4:10
Bob 4:1 17:20
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bring 9:5 15:7
brought 8:7
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build 6:18
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carry 13:15
case 4:11 12:16
CEI 6:11,12,20
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centerline 11:4
certified 6:2
certify 6:12
CGC 8:1 19:17
change 18:10
Chris 4:2,12
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claim 6:16 9:8
closing 15:11
co-defendant
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COMMISSIONER
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company 10:11,
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complaint 5:16
complete 6:3,7,
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completion 5:23
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condition 10:12
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corrective
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defenses 5:18
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design 7:21
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designed 8:2
designer 8:5
destroy 13:2
detailed 10:12
determination
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determined 6:7
deviation 11:6
difficult 12:16
dimensions 10:6
direction 4:10
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discussing 4:7
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essence 8:16
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exclusion 12:5
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feel 6 : 4 15:6
feet 10:6 11:3,
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filed 5:1 7:11
filing 8:21,23
final 6:23,24
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flawed 8:6
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forbid 18:19
form 10:16
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lawsuit 7:13
lawsuits 8:22
leading 9:12
legal 10:8
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letter 9:17
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liability 18:14
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majority 12:4
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make 13:24
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mandate 11:22
matter 4:14
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miles 12:2,8
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mill 19:5
milled 13:6
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million 12:21
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minute 18:14
monetary 10:15
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proposed 15:8
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provide 4:9
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pursuing 15:2
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referred 19:6
regard 11:13
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remaining 19:23
remember 7:1
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required 10:3
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resolution
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resolve 9:8
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respect 5:19
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rider 18:22
risk 12:11
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road 6:19 8:3
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roadway 12:12
room 7:4
roughly 11:1,6,
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scarified 13:6
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11:18 12:14,15
13:17 19:2
started 15:23
statistical
11:11
statistics
18:14
steps 9:3 17:21
stick 16:25
strategy 4:7
stripe 19:4,7
subcontractors
14:16
substantial
5:23 6:2,12,25
substantially
6:3,7,17,22
sued 7:16 8:1,4
sufficient
15:10
suggest 19:12
suppliers 14:16
surety 4:18
surface 13:9
survey 9:22
10:12,21,22
surveyed 10:19
surveying
10:11,19
T
table 13:25
taking 7:5
talk 9:5
talked 9:14
10:10 12:17
15:1 19:21
talking 8:22
13:23 14:9
tee 4:12
terms 4:24
5:14,17
thermoplastic
19:4
thing 13:8
things 8:25
19:22
tie 16:23
time 7:9 13:21
18:17 19:8,21
today 9:5
told 9:6 14:1
transferred 5:2
travel 9:24
10:2 16:21
traveling 14:12
troop 19:12
turn 4:12
types 19:22
W
ultimate 10:14
ultimately 6:10
12:25
undercut 16:24
understand
16:15 17:4
18:24
unhappy 16:2
unique 7:5
unrelated 15:18
V
vast 13:12
venue 15:19
venues 5:5
W
walk 13:23
14:23
waste 12:18
13:1
weight 13:15
wide 10:4,6
16:19
wider 10:5
width 9:23,24
11:13,20 12:12
wise 16:22
withhold 6:5
withholding
5:21
work 7:8 9:19
12:22 14:7
19:15,25
works 7:18
wrong 16:9
V4
yellow 19:14
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