Item O2 0.2
G BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
June 19, 2019
Agenda Item Number: 0.2
Agenda Item Summary #5661
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Christine Limbert(305) 292-3470
No
AGENDA ITEM WORDING: Approval of a Settlement Agreement in the matter of Halley
Engineering Contractors, Inc. v. Monroe County, Case No. 18-CA-768-P.
ITEM BACKGROUND: Halley Engineering Contractors, Inc. (Halley)was awarded a contract to
design and build the Card Sound Tolling Authority Tolling System Upgrade Project("Project"). The
project was completed and the all-electronic toll system has been operating successfully since
October of 2018.
Disputes over the design responsibilities arose relating to the project. After two unsuccessful meet
and confer sessions, Halley filed suit against the County on October 24, 2018 and the County
countersued Halley. The parties met for a voluntary early mediation on May 30, 2019 in an attempt
to resolve the matter before further litigation costs were incurred. A tentative resolution was not
reached during mediation, however, Halley's counsel advised the County the following day that
Halley would accept the last offer tendered by the County during mediation. Halley was advised
that final approval is subject to the discretion of the BOCC.
Under the terms of the proposed settlement, the County would pay Halley $300,000 to resolve the
matter. The majority of the proposed settlement represents the retainage amount($180,119.98),
which was held by the County as the amount remaining and retaining under the final payment for
completion of the Project. The balance ($119,880.02)was offered in consideration of change order
requests in the amount of$35,111.80 for 1)modifications to signage by Florida Turnpike Enterprise
($21,120.00); 2) conduit work to allow for Florida Power& Light (FPL)line to be run underground
($5,676.00); 3) FPL Street Lighting agreement($4,465.80); 4)wooden pole removal and re-
installation of concrete pole ($3,850.00); and ($84,768.22) to resolve the claim, in lieu of litigating
the case to a final judgment, which is estimated to cost at least twice of the balance. Halley's initial
demand for alleged damages against Monroe County was in the amount of$771,584.66 and was in
addition to the retainage amount of$180,119.98. The proposed settlement would resolve all claims
raised by both parties.
Given the cost of litigation, retention of expert witnesses to support the county's claim, staff time
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and allocation of resources to conduct upcoming discovery phase of the litigation and ultimate trial
of the matter, Engineering staff and the County Attorney's Office recommend approval of the terms
of the settlement agreement. This item also requests authorization for Ira Libanoff, Esq., the
County's outside counsel in this matter, to execute and file the appropriate documentation to resolve
the matter of Halley Engineering Contractors, Inc., v. Monroe County, Case No. 18-CA-768-P
The draft Settlement Agreement documents are attached.
APPROVAL OF THE SETTLEMENT AGREEMENT WITH THE BULK ITEMS WOULD
NEGATE THE NEED TO HOLD THE ATTORNEY CLIENT CLOSED SESSION SCHEDULED
ON TODAY'S MEETING AGENDA.
PREVIOUS RELEVANT BOCC ACTION: The Board approved the Agreement for the Project
on May 17, 2017. A public discussion item on the matter was held on June 20, 2018. A request for a
closed session was approved at the May 22, 2019 meeting.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval of Settlement Agreement.
DOCUMENTATION:
Settlement Agreement
LIMITED MUTUAL WAIVER AND RELEASE- Exhibit A to Settlement Agreement
FINANCIAL IMPACT:
Effective Date: Upon approval and execution of the related settlement agreement
Expiration Date:
Total Dollar Value of Contract: N/A
Total Cost to County: $300,000 (release $180,119.98 of amount remaining and retainage for
Project plus another $119,880.02)
Current Year Portion: $300,000
Budgeted:
Source of Funds: Cost Center for Toll Project 401-22502
CPI: N/A
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
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06/19/19 401-22502 - CARD SOUND ROAD $300,000.00
REVIEWED BY:
Bob Shillinger Completed 06/04/2019 3:50 PM
Christine Limbert Completed 06/04/2019 4:08 PM
Budget and Finance Completed 06/04/2019 4:57 PM
Maria Slavik Completed 06/04/2019 4:58 PM
Kathy Peters Completed 06/04/2019 5:01 PM
Board of County Commissioners Pending 06/19/2019 9:00 AM
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SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into this day of June 2019,by
and between the following parties and entities:
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a
political subdivision of the State of Florida, (referred to hereinafter as "MONROE
COUNTY"); and
HALLEY ENGINEERING CONTRACTORS,INC., a Florida corporation,
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(referred to hereinafter as "HEC"); and
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RECITALS
WHEREAS, on or about May 17, 2017, MONROE COUNTY and HEC entered into a
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Contract (hereinafter referred to as the"Contract")for HEC to serve as the design-build contractor
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on the project known as Card Sound Toll Authority Systems Upgrade Project from County Line
to JCWW Bridge in Monroe County, Florida(hereinafter referred to as"the Project"); and
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WHEREAS, HEC was required, pursuant to the Contract documents, to design and
construct all work addressed in the Contract documents; and
WHEREAS,on or about October 12,2018,HEC submitted to MONROE COUNTY claims
for additional costs and delays and compensation for delays("Claims"),which Claims were denied a�
and rejected by MONROE COUNTY; and
WHEREAS, on or about April 18, 2019 and again on or about October 24, 2018,pursuant
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to the provisions of MONROE COUNTY's Contract with HEC, and after providing required
notice of same, the parties engaged in a meet and confer conference in an effort to resolve the
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Claims and issues that were the subject of disputes between the parties, which meet and confer
session was not successful; and
WHEREAS, on or about October 24, 2018, HEC brought an action against MONROE
COUNTY for Breach of Contract, in a lawsuit styled Halley Engineering Contractors, Inc., v.
Monroe County Board of County Commissioners, Case No. 18-CA-000768-P, filed in the Circuit
Court in and for Monroe County, Florida; and
WHEREAS, on or about May 30, 2019, the Parties engaged in a mediation conference in
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a further effort to resolve the claims and disputes; and
WHEREAS, all Parties in the above-referenced Lawsuit deny responsibility for any and all
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of the claims brought and defaults filed against them; and 2
WHEREAS, the Parties, each of whom is represented by counsel, or have had an
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opportunity to be represented by counsel, recognize their respective rights and obligations, and
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now desire to settle the above-referenced Lawsuit as well as any and all claims and/or allegations
of default which were or could have been brought in the Lawsuit or arising from the work on the T
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Project or the Contract between the parties.
NOW THEREFORE, for and in consideration of the payment(s) and mutual promises,
covenants, representations and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the following are the a�
terms and conditions of this Settlement Agreement:
1. Recitals and Representations. The above recitals and representations are
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true and correct and incorporated herein.
2. Compromise Settlement. The Parties agree that this Settlement Agreement is a
full and final settlement of all disputed claims, and that it is neither intended nor to be interpreted
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as an admission of fault, liability, or legal responsibility on the part of the settling parties, said
fault, responsibility, legal liability and allegations of default being expressly denied. It is
understood and agreed that this Settlement Agreement is made as a compromise to avoid the
expense of litigation.
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3. Condition Precedent. A condition precedent to the effectiveness of the
Settlement Agreement and the Limited Mutual Waiver and Release, attached hereto as Exhibit
"A", (hereinafter referred to as the "Limited Mutual Waiver and Release") is approval of the
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Settlement Agreement and Limited Mutual Waiver and Release by the Monroe County Board of
County Commissioners. If the Board does not approve the Settlement Agreement and the Limited
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Mutual Waiver and Release, the Settlement Agreement and Limited Mutual Waiver and Release 2
shall be deemed null and void ab initio, treated as though the Settlement Agreement and Limited
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Mutual Waiver and Release had never been executed, and shall not be admissible in any
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proceeding, including but not limited to the Lawsuits, for any purpose.
4. Payment to HEC. In consideration of HEC's release and promises described in
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this Settlement Agreement and the Limited Mutual Waiver and Release, MONROE COUNTY
shall pay to HEC the amount of Three Hundred Thousand Dollars ($300,000.00), which amount
includes all remaining contract balances including retainage in the amount of$180,119.98, as well
as payment in the amount of$119,880.02 for any and all claims for additional costs, expenses and a�
damages that HEC has asserted against MONROE COUNTY:
5. Limited Mutual Waiver and Release. Upon approval by the Monroe County
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Board of County Commissioners of the Settlement Agreement and the Limited Mutual Waiver and
Release, execution of the Settlement Agreement by the Parties, and upon payment of the
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Settlement Amount,the Parties will execute and exchange the Limited Mutual Waiver and Release
in the form attached hereto as Exhibit `A'.
6. HEC's Responsibility as the Design-Build Contractor of the Proiect.
Notwithstanding the Limited Mutual Waiver and Release entered into by the Parties, HEC shall
remain responsible to address any latent defect or other undiscovered latent defect related to the
construction work performed on the Project in accordance with the time limitation provided under
Florida law. As of the date this Settlement Agreement is signed, MONROE COUNY and HEC
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affirm and represent it is not aware of any defect or design errors and omissions that exist
associated with the Project work.
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7. Costs and Fees. Except as provided below, the Parties agree that each Party 2
shall bear its own attorneys'fees, costs and expenses arising out of,or connected with,the Lawsuit,
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or arising out of, or connected with, the Settlement Agreement and/or the Limited Mutual Waiver
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and Release, whether such costs and fees have been incurred prior to the execution of this
Settlement Agreement and/or Limited Mutual Waiver and Release or will be incurred after their T
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execution.
8. Dismissal With Prejudice. Upon approval of the Settlement Agreement by the
Monroe County Board of County Commissioners, execution of the Settlement Agreement and the
Limited Mutual Waiver and Release by the Parties, and within ten (10) days after the payment of a�
MONROE COUNTY's settlement payment to HEC, HEC and clearance of same on the account
upon which the payment is drawn and/or the settlement funds have otherwise become available to
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HEC, HEC and MONROE COUNTY will authorize and instruct their respective attorneys to sign
and file the Stipulation of Dismissal with Prejudice of the Lawsuit and proposed Final Orders.
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9. Representation by Counsel. The Parties acknowledge that they have been
represented by counsel, or have had an opportunity to be represented by counsel, in connection
with this Settlement Agreement and Limited Mutual Waiver and Release. The Parties further
acknowledge that no promise, inducement or agreement not herein expressed has been made to
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them in connection with this Settlement Agreement,and that the Settlement Agreement is intended
as a final and complete expression of their agreement and understanding with respect to the subject
matter hereof. The terms of this Settlement Agreement are contractual and are not mere recital.
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This Settlement Agreement may not be changed, modified, altered or amended except by written
instrument executed by all Parties.
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10. Governing Law; Venue. The Settlement Agreement and the Limited Mutual 2
Waiver and Release shall be construed, interpreted and enforced in accordance with the laws of
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the State of Florida. Venue for all disputes, controversies or claims relating to this Settlement
Agreement that involve Monroe County shall remain in the Circuit Court of the Sixteenth Judicial
Circuit, in and for Monroe County, Florida. T
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11. Binding Effect. This Settlement Agreement shall be binding upon and inure
exclusively to the benefit of the Parties, their predecessors, successors, assigns, parent and
affiliated corporations, subsidiaries, affiliates, officers, principals, directors, employees, agents,
insurance carriers, adjusters and legal representatives. a�
12. Construction of Agreement. This Settlement Agreement shall not be construed
against the Party preparing it, but shall be construed as if it were prepared jointly by all Parties,
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and any uncertainty or ambiguity, or both, shall not be interpreted against any person or entity on
the grounds of the drafting or participation in drafting of such language.
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13. Entire Agreement. This Settlement Agreement represents the entirety of all
agreements and understandings of the Parties with respect to the subject matter hereof and
supersedes all prior understandings and agreements,whether written or oral. All prior discussions,
negotiations, letters, demands, and writings of any kind are fully merged into this Settlement
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Agreement and are of no further force or effect and this Settlement Agreement shall serve as the
sole and entire expression of the agreement and understanding of the Parties.
14. Authority of Signatory. Each of the Parties represents and expressly warrants
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that the person whose signature appears below on its behalf is of legal age,under no legal disability
which would preclude them from entering into this Settlement Agreement, and that said person
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executes this Settlement Agreement freely, voluntarily, and with full knowledge of the terms and
conditions and has full power and authority to execute this Settlement Agreement on its behalf,
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and that such authority is derived by virtue of that person's office.
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15. Execution in Counterparts. The Parties acknowledge and agree that this
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Agreement may be executed and faxed or emailed in one or more counterparts, each counterpart T
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shall be considered an original portion of this Settlement Agreement, and all of which shall
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constitute a singular instrument.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be
executed as follows:
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BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
By:
Mayor
Date:
Attest:
KEVIN MADOK, CPA
Clerk of Circuit Court & Comptroller
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By:
Deputy Clerk
Date:
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HALLEY ENGINEERING CONTRACTORS, INC.
By:
Title:
STATE OF FLORIDA ) _
) SS.
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared who
executed before me the foregoing Settlement Agreement, and who acknowledged before me that
he/she executed the same.
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SWORN AND SUBSCRIBED before me this day of , 2019.
Notary Public, State of Florida at Large
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My Commission Expires: 2
as
Print/Type Notary's Name
Notary: Please check apropriate box:
Personally known to me; or
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Produced as identification:
(Type of identification)
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Exhibit A
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LIMITED MUTUAL WAIVER AND RELEASE
KNOW ALL MEN BY THESE PRESENTS:
as
That pursuant to a Settlement Agreement reached by and between MONROE COUNTY,
FLORIDA (MONROE COUNTY) a political subdivision of the State of Florida, and HALLEY
ENGINEERING CONTRACTORS, INC., a Florida corporation, (referred to hereinafter as
"HEC"); collectively referred to as"the Releasing Parties," approved by the Monroe County Board
of County Commissioners at its duly published and publicly held meeting on June 19, 2019, and
in consideration of payment to HEC of the amounts set forth in the Settlement Agreement referred
to above, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties enter into this Limited Mutual Waiver and Release to resolve any and
all claims and defenses by and between the Parties that were raised or could have been raised .2
resultant from those certain contested notices of default and those certain actions styled Halley
Engineering Contractors, Inc. v. Monroe County Board of County Commissioners, Case No. 18-
CA-000768-P,filed in the Circuit Court in and for Monroe County,Florida, and that,in accordance
with this Limited Mutual Release the Parties hereby remise, release, acquit, satisfy and forever E
discharge each other(subject to the Exclusions set forth below) from all claims, actions, causes 2
and causes of actions, suits, debts, dues, sums of money, accounts, contracts, controversies,
agreements, promises, damages and demands whatsoever, in law or in equity, which each of the
Releasing Parties ever had, now has, or hereinafter shall or may have against any other of the
Releasing Parties and their successors, parents, subsidiaries, affiliates, heirs, assigns, officers,
directors, employees, agents, attorneys, insurers and adjusters of each of the parties for, upon and �s
by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of c
these presents, arising out of all claims and defenses that were raised or could have been raised
between the Releasing Parties arising from or relating to the above-referenced cases and/or the
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Project. W
Exclusions:
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1. The Releases set forth herein exclude future actions and liability that may arise in
connection with third-party claims for personal injury and/or property damage, warrant claims
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and claims for latent defects that were not known and could not have been discovered through the
exercise of reasonable diligence as of the date of execution by the Parties of this Limited Mutual
Release. As of the date this Limited Mutual Waiver and Release, MONROE COUNTY affirms it
is not aware of any defects associated with HEC's Project work.
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
By:
Mayor
Date:
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Attest:
KEVIN MADOK, CPA,
Clerk of Circuit Court & Comptroller
By:
Deputy Clerk
Date:
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HALLEY ENGINEERNG CONTRACTORS, INC.
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By:
Title: .
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STATE OF FLORIDA )
) SS.
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared who
executed before me the foregoing Settlement Agreement, and who acknowledged before me that (n
he/she executed the same.
SWORN AND SUBSCRIBED before me this day of , 2019. T
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Notary Public, State of Florida at Large a
My Commission Expires:
Print/Type Notary's Name a
Notary: Please check apropriate box:
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Personally known to me; or
Produced as identification:
(Type of identification) W
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