Item R2 W
BOARD OF COUNTY COMIYIISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 2/19/14—KL Division: County Attorney
Bulk Item: Yes XX No Staff Contact: Pedro Mercado, 292-3173/-3470
AGENDA ITEM WORDING: Approval of Settlement Agreement and Limited Mutual Release
(Exhibit A. to Settlement Agreement) in the matter of The Morganti Group, Inc. v. Monroe County,
Case No. 2011-CA-892-K.
ITEM BACKGROUND: On 1/31/14, a Closed Session was held in the matter of The Morganti
Group, Inc. v.Monroe County, Case No. 2011-CA-892-K. The Settlement Agreement and Limited Mutual
Release (Exhibit A. to Settlement Agreement) being presented for approval are the result of the
discussion and direction provided by the BOCC at the 1/31/14 closed session.
PREVIOUS RELEVANT BOCC ACTION:
1/31/14 Closed Session held(Item C-2)
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $725,000.00 INDIRECT COST: BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: $725,000,00 SOURCE OF FUNDS: PFC Funds
REVENUE PRODUCING: Yes_ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty "/Pur!hZa/sing i Risk Manag ement4_.`...
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM#
Revised 2/05
CONTRACT SUMMARY
Contract wit
h: The Manti or Group,
Inc.
Contract#
Effective Date: 2/19/2014
Expiration Date:
Contract Purpose/Description:
Contingent upon BOCC approval on 2/19/14 of Settlement Agreement AND Limited
Mutual Release Exhibit A. to Settlement A eement rovidin for a ent of settlement
Amount of$725,000.00 to The Mor anti Group in the matter of The Mor anti Group, Inc. v.
Monroe County, Case No. 2011-CA-892-K
Contract Manager: Pedro Mercado 3173 County Attorney-Airports
(Name) (Ext.) (Department/Stop#)
for BOCC meetin on 2/19/2014 Agenda Deadline: 2/4/2014
CONTRACT COSTS
Total Dollar Value of Contract: $ 725,000.00 Current Year Portion: $ 725,000.00
Budgeted?Yes® No ❑ Account Codes: 404-0000-206000- - ($498,254.60)
Grant: $ 404-0000-202000- - ($231,745.40)
County Match: $
ADDITIONAL COSTS
Estimated Ongoing Costs: $None/yr For:
(Not included in dollar value above) (e .maintenance,utilities, janitorial, salaries,
CONTRACT REVIEW
Changes Date Out
Date In Needed Reviewer
Division Director Yes[:]No[:]
yy
Risk Management Yes❑No( ' ys, ��. ��,,.. .. M.. �.. ....�o
O.M.B./Purchasing c Yes[:]No
' County Attorney Yes❑N -"°
Comments:
r
OMB Form Revised 2/27/01 MCP#2
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into this 19`h day of February, 2014, by
and between the following parties and entities, sometimes referred to hereinafter collectively as
the "Parties":
Plaintiff MORGANTI GROUP, INC., a foreign corporation, (referred to
hereinafter as "MORGANTI"); and
Defendant MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS, a political subdivision of the State of Florida,
(referred to hereinafter as "MONROE COUNTY").
RECITALS
WHEREAS, on or about October 19, 2005, MONROE COUNTY entered into a Contract
with MORGANTI for MORGANTI to serve as Construction Manager ("Agreement') for work
to be performed on the Key West International Airport ("KWIA Project'). On March 15, 2006
the parties entered into the First Amendment to the Agreement for work to be performed on the
KWIA Project and for work at the Marathon Airport ("Marathon Project'). The KWIA Project
and Marathon Project may be collectively be referred to as the"Projects", and
WHEREAS, MORGANTI contends that it completed its scope of work on the Marathon
Project in May, 2009 and on the KWIA Project in October, 2009, and
WHEREAS, MONROE COUNTY contends that the MORGANTI failed to complete its
scope of work on the KWIA Project and delayed completion of the work on both Projects, and
WHEREAS, MORGANTI submitted various claims for additional compensation, and
WHEREAS, MONROE COUNTY denies responsibility for any of the claims for
additional compensation submitted by MORGANTI, and
WHEREAS, MONROE COUNTY contends that it is entitled to assess liquidated
damages against MORGANTI as a result of the late completion of the work on the KWIA
Project and for costs to be incurred to complete and correct the Work performed by MORANGTI
on the KWIA Project, and
WHEREAS, MORGANTI denies responsibility for either the liquidated damages
claimed by MONROE COUNTY or for any costs incurred by the MONROE COUNTY to
complete or correct the work performed by MORGANTI.
WHEREAS, on or about August 10, 2011, MORGANTI brought an action against
MONROE COUNTY for breach of contract, in a lawsuit styled The Morganti Group, Inc. vs.
Monroe County; Case No. 2011-CA-892K, filed in the Circuit Court in and for Monroe County,
Florida(hereinafter referred to as the "Lawsuit"), and
WHEREAS, MONROE COUNTY denied the allegations in the Lawsuit and filed
Affirmative Defenses and a Counterclaim in response; and
WHEREAS, the Parties, each of whom is represented by counsel, or have had an
opportunity to be represented by counsel, recognize their respective rights and obligations, and
now desire to settle the Lawsuit as well as any and all claims which were or could have been
brought in the Lawsuit or arising from the Projects.
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
2
consideration, the receipt and sufficiency of which is hereby acknowledged, the following are the
terms and conditions of this Settlement Agreement:
1. Recitals and Representations. The above recitals and representations are
true and correct and incorporated herein.
2. Compromise Settlement. The Parties agree that this Settlement Agreement is
a full and final settlement of disputed claims, and that it is neither intended nor to be interpreted
as an admission of fault, liability, or legal responsibility on the part of the settling parties, said
fault, responsibility, and legal liability being expressly denied. It is understood and agreed that
this Settlement Agreement is made as a compromise to avoid the expense of litigation.
3. Condition Precedent. A condition precedent to the effectiveness of the
Settlement Agreement and the Limited Mutual Release, attached hereto as Exhibit "A",
(hereinafter referred to as the "Limited Mutual Release") is approval of the Settlement
Agreement and Limited Mutual Release by the Monroe County Board of County
Commissioners. If the Board does not approve the Settlement Agreement and the Limited
Mutual Release, the Settlement Agreement and Limited Mutual Release shall be deemed null and
void ab initio, treated as though the Settlement Agreement and Limited Mutual Release had
never been executed, and shall not be admissible in any proceeding for any purpose, including
but not limited to the Lawsuit.
4. Payment to Morpand. In consideration of MORGANTI'S release and
promises described in the Settlement Agreement and the Limited Mutual Release, MONROE
COUNTY agrees to pay MORGANTI the sum of Seven Hundred Twenty-Five Thousand
3
Dollars ($725,000)(hereinafter the "Settlement Amount") in full and complete payment of any
and all claims that were brought by or that could have been brought by MORGANTI against
MONROE COUNTY in the Lawsuit. The Settlement Amount shall be paid within thirty (30)
days of the execution of the Settlement Agreement by the Parties.
5. Limited Mutual Release. Upon approval by the Monroe County Board of
County Commissioners of the Settlement Agreement and the Limited Mutual Release, execution
of the Settlement Agreement by the Parties, and upon payment of the Settlement Amount, the
Parties will execute and exchange the Limited Mutual Release in the form attached hereto as
Exhibit'A'.
6. Morganti's Responsibility as Construction Manager of Record.
Notwithstanding the Limited Mutual Release entered into by the Parties, MORGANTI shall
remain responsible for the construction work performed on the KWIA Project and the Marathon
Project in the event any latent or other undiscovered defect in the work is discovered or
manifests itself subsequent to the date of this Agreement. Notwithstanding any provision
contained herein, nothing is intended, nor should it be construed as altering or tolling any time
limitation contained within Chapter 95 or elsewhere in the Florida Statutes for commencement
of an action.
7. Separate Ongoing Litigation. This Settlement Agreement between
MORGANTI and MONROE COUNTY will have no impact or effect on the ongoing lawsuits
in which both MORGANTI and MONROE COUNTY are co-defendants, which are are styled
as Peter R. Abesada, Esq. as the Personal Representative of the Estate of Carlos Humberto
Cifiientes Saenz v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al., Case
4
No. 2009-CA-2136-K and White v. URS Corporation of Delaware, Inc., The Morganti Group,
Inc., et al. Case No. 2011-CA-336-K, both of which are pending in the Circuit Court in and for
Monroe County, Florida which occurred during the course of the KWIA Project on which
MORGANTI served as Construction Manager, and neither this settlement nor the Limited
Mutual Release shall release, impact, impair or effect MORGANTI'S obligation to defend and
indemnify MONROE COUNTY in relation to the claims that have been asserted in the
aforementioned lawsuits.
8. Costs and Fees. Except as provided below, the Parties agree that each
Party shall bear its own attorneys' fees, costs and expenses arising out of, or connected with, the
Lawsuit, or arising out of, or connected with, the Settlement Agreement and/or the Limited
Mutual Release, whether such costs and fees have been incurred prior to the execution of this
Settlement Agreement and/or Limited Mutual Release or will be incurred after their execution.
9. Dismissal With Preiudice. Upon approval of the Settlement Agreement by the
Monroe County Board of County Commissioners, execution of the Settlement Agreement and
the Limited Mutual Release by the Parties, and within ten (10) days after the payment of the
Settlement Amount to MORGANTI has cleared the account upon which it is drawn and/or the
settlement funds have otherwise become available to MORGANTI, MORGANTI 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 Order in the form attached hereto as
Exhibit "B".
10. 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
5
with this Settlement Agreement and Limited Mutual Release. The Parties further acknowledge
that no promise, inducement or agreement not herein expressed has been made to 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.
This Settlement Agreement may not be changed, modified, altered or amended except by written
instrument executed by all Parties.
11. Governing Law: Venue. The Settlement Agreement and the Limited Mutual
Release shall be construed, interpreted and enforced in accordance with the laws of 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.
12. 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.
13. 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,
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.
6
14. 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 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.
15. Default. In the event that MONROE COUNTY defaults in its payment
obligation under this Settlement Agreement, MORGANTI or its counsel shall send written notice
of such default to MONROE COUNTY's counsel, Ira Libanoff, 150 South Pine Island Road,
Suite 400, Plantation, Florida 33324, by U.S. Mail, Facsimile and/or Email, and MONROE
COUNTY shall have twenty(20) calendar days from the date of such notice to cure said default.
Should MONROE COUNTY fail to remit payment within the cure period, MORGANTI shall
immediately be permitted to file a Motion and Affidavit with the Court to that effect and upon
such Motion, Affidavit and Notice, MORGANTI shall be entitled to the entry of a Final Default
Judgment against MONROE COUNTY for the Settlement Amount, together with an award of
attorneys' fees and costs incurred in connection with the Motion.
16. Authority of Signatory. Each of the Parties represents and expressly
warrants 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 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, and that such authority is derived by virtue of that person's office.
7
17. Execution in Counterparts. The Parties acknowledge and agree that this
Agreement may be executed and faxed or emailed in one or more counterparts, each counterpart
shall be considered an original portion of this Settlement Agreement, and all of which shall
constitute a singular instrument.
IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be
executed as follows:
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
By:
Mayor
Date:
Amy Heavilin, CPA, M�PP OC D AS
Clerk of Circuit Court
PEDRO J.M"
By: ASSISTANT CO n u
Deputy Clerk e�
Date:
THE MORGANTI GROUP, INC.
By:
Title:
STATE OF )
) 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.
8
SWORN AND SUBSCRIBED before me this^day of 52013.
Notary Public, State of at Large
My Commission Expires:
Print/Type Notary's Name
Notary: Please check appropriate box:
Personally known to me; or
Produced as identification:
(Type of identification)
9
LIMITED MUTUAL RELEASE
KNOW ALL MEN BY THESE PRESENTS:
That pursuant to a Settlement Agreement reached by MONROE COUNTY, FLORIDA
(MONROE COUNTY) a political subdivision of the State of Florida, and THE MORGANTI
GROUP, INC., a foreign corporation, collectively referred to as "the Parties," approved by the
Monroe County Commission at its duly published and publicly held meeting on
2014, and in consideration of payment to THE MORGANTI GROUP, INC. of
the sum of Seven Hundred Twenty Five Thousand ($725,000) Dollars and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the Parties enter into
this Limited Mutual Release to resolve any and all claims and defenses by and between the
Parties that were raised or could have been raised in that certain action styled "The Morganti
Group, Inc. vs. Monroe County; Case No. 2011-CA-892K, filed in the Circuit Court in and for
Monroe County, Florida, the subject of which was the Contract entered into between MONROE
COUNTY and THE MORGANTI GROUP, INC. for the Kew Est International Airport and
Marathon Airport projects ("Projects") and, that, in accordance with this Limited Mutual Release
the Parties hereby remise, release, acquit, satisfy and forever discharge each other (subject to
the Exclusions set forth below) of and from all claims, actions, causes 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 Parties ever had, now
has, or hereinafter shall or may have against any other of the Parties and their successors,
parents, subsidiaries, affiliates, heirs, assigns, officers, directors, principals, employees, agents,
attorneys, insurers and adjusters of each of the parties for, upon and by reason of any matter,
cause or thing whatsoever, from the beginning of the world to the day of these presents, arising
out of all claims and defenses that were raised or could have been raised between the Parties
arising from or relating to the above-referenced case and/or the Contract or Projects.
Exclusions:
1. The Releases set forth herein exclude actions and liability arising in connection
with third-party claims for personal injury, wrongful death and property damage and claims for
latent defects that were not known and/or had not manifested themselves as of the date of
execution by the Parties of this Limited Mutual Release. The Releases set forth herein also
exclude any liability or responsibility of THE MORGANTI GROUP, INC. to defend and
indemnify MONROE COUNTY in connection with any claim asserted in the lawsuits styled
Peter R. Abesada, Esq. as the Personal Representative of the Estate of Carlos Humberto
Cifiientes Saenz v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al., Case
No. 2009-CA-2136-K and White v. URS Corporation of Delaware, Inc., The Morganti Group,
Inc., et al. Case No. 2011-CA-336-K, bothpending in the Circuit Court in and for Monroe County,
Florida.
This Limited Mutual Release may be executed in one or more counterparts, each of which shall
be an original, but all of which, together, shall be deemed to constitute a single document. An
executed facsimile copy shall be deemed an original as well.
EXHIBIT "A"
To Settlement Agreement
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
By:
Mayor
Date: ,
Attest: MO E OUN T O ,NEY
P R ED M
Amy Heavilin,
CPA,Clerk of Circuit Court PEDRO . ERCADO
ASSISTANT CO EY
By Deputy D.�
De .
p y Clerk
Date:
THE MORGANTI GROUP, INC.
By:
Title:
STATE OF )
) SS.
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared , who
executed before me the foregoing Limited Mutual Release, and who acknowledged before me
that he/she executed the same.
SWORN AND SUBSCRIBED before me this_day of , 2013.
Notary Public, State of at Large
My Commission Expires:
Print/Type Notary's Name
Notary: Please check appropriate box:
Personally known to me; or
Produced as identification:
(Type of identification)