Item P8BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 16, 2012 Division: County Attorney
Bulk Item: Yes XX No Staff Contact Person: Pedro Mercado
AGENDA ITEM WORDING: Approval to invoke the provisions of the Monroe County False
Claims Ordinance, M.C.C. sec. 2-725, as an additional count in the County's counterclaim in the
matter of The Morganti Group Inc. v. Monroe County, 2011 CA892K
ITEM BACKGROUND: The Morganti Group Inc. and the County have been involved in a dispute
over final payment for the Key West International Airport — New Terminal Building and Renovation
Project and the Florida Keys Marathon Airport Hurricane Damage Repair work. Morganti filed claims
with the County for additional compensation for added staff time which Morganti is claiming is due to
it as a result of the extended amount of time Morganti was on site to complete the projects. Morganti is
also claiming additional fees for the expenses they incurred in resolving FAA funding issues, for the
costs not covered by insurance for the rebuilding of the collapsed ramp and for interest on the disputed
claims. Morganti has since filed a breach of contract action against the County and as part of the
County's answer, affirmative defense and counterclaim the County would like to invoke the provisions
of the County's false claim ordinance and include a false claims count in the County's counterclaim.
The False Claims Ordinance requires Board action before its provisions can be invoked in a civil
action.
PREVIOUS RELEVANT BOCC ACTION: None
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approve
TOTAL COST: TBD
COST TO COUNTY:N/A
BUDGETED: Yes No XX
SOURCE OF FUNDS: Airport Operating
REVENUE PRODUCING: Yes No XX AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management _
DOCUMENTATION: Included XX Not Required
DISPOSITION: AGENDA ITEM #
Revised 2/05
item
Construction Managers and Design Builders
MORGANTI
November 22, 2010
Ira Libanoff VIA FACSEMME & FEDERAL
150 S. Pine Island Road EXPRESS
Suite 400
Ft. Lauderdale, FL 33324
Re: Contract between Monroe County and The Morganti Group, Inc.
Key West International Airport and Marathon Airport (the "Contract")
Dear Mr. Libanoff:
Pursuant to the County's demand, please consider this letter as Morganti's
certified claim under Monroe County's False Claim Ordinance. However, please be
advised that submission of this letter is not to be construed as a waiver that the Ordinance
cannot be applied to the Contract because it is a substantive ordinance that modifies the
parties rights and obligations under the Contract. As such, it is unconstitutionally applied
to the existing Contract.
With that said, Morganti certifies that the following amounts are claimed in (a)
good faith; (b) the supporting data is complete and accurate to the best of Mr. Peace's
knowledge, information and belief; (c) the amount accurately reflects the amount that
Morganti believes is due and owing from the County; (d) Mr. Peace is duly authorized by
Morganti to certify the claim. For ease of reference, the following amounts correspond to
the categories in our previous correspondence dated August 17, 2010 and October 25,
2010. Supporting documents have been previously provided to the County. As we read
the Ordinance, there is no requirement to resubmit the documents with this letter. If you
believe that to be incorrect, please let me know immediately.
1. There is an outstanding balance on the current contract amount
related to the Marathon project of $14,742 that is due and owing to
Morganti.
2. The outstanding balance related to the Key West project is
currently $1,037,722.99.
3. With regard to Marathon, the amount requested for additional staff
is $257,400.
The Morgmti Group, Inc.
1450 Centrepark Blvd, Suite 26o, West Palm Beach, Florida 33401 Phone: (561) 68940200 Fax: (561) 689-4774
www.MorgantLcom
Connecticut v Florida v Texas
4. Morganti is owed payment for additional staff cost associated with
the extended duration of the Key West project in the amount of
$1,260,000.
5. Morganti is owed payment for reimbursable direct cost items per
Article 9 in the amount of $50,039.28.
6. Appropriate Contract and Direct Purchase Order adjustments in the
amount of $89,108.00 are necessary due to additional concrete
utilized on the Project. As mentioned previously, this amount does
not include the recent claim by Monroe Concrete for an additional
$36,984.
7. Morganti submits that it is entitled to interest on all unpaid
amounts for the Marathon portion of the Contract. As of April 30,
2010, the amount of interest owed to Morganti for payments made
to subcontractors is $101,748. As you are aware, interest
continues to accrue until the amounts due and owing are paid.
Morganti acknowledges that the final amount of interest due is
dependent on the final amount paid by the County to Morganti and
date on which such payment is made.
8. Morganti is entitled to be reimbursed for legal expenses in the
amount of $69,566.
9. Morganti is entitled to be reimbursed for legal expenses incurred
on behalf of the County to resolve FAA issues in the amount of
$107,630.
10. Morganti is entitled to interest on all unpaid pay applications for
the Key West portion of the Contract. As of July 31, 2010, the
amount of interest owed to Morganti for payments made to
subcontractors is $1,424,530. As you are aware, interest continues
to accrue until the amounts due and owing are paid. Morganti
acknowledges that the final amount of interest due is dependent on
the final amount paid by the County to Morganti and date on which
such payment is made.
11. Morganti is entitled to an additional fee based on the final amount
of the GMT after all increases. As stated in the August 17, 2010
letter, this amount is currently $264,541. However, Morganti
refers the County to Tab 11 of the binder previously provided.
Pursuant to the Contract, Morganti would be entitled to claim a fee
of 14.8%. Instead, Morganti is only claiming a fee of 4%. As this
shows, Morganti is attempting to be very reasonable. If the
County continues its refusal to pay Morganti, we reserve the right
to claim the entire percentage fee provided under the Contract.
12. After final resolution of items 3, 4, 5 and 6 above, Morganti would
be entitled to its 4% fee based on the value of those items.
Currently, that amount would be $65,321. Again, if the County
continues its refusal to pay Morganti, we reserve the right to claim
the entire percentage fee provided under the Contract.
13. Morganti is entitled to be paid for the work performed on the east
ramp. The balance due to Morganti is $158,462.
Again, we restate our position that the Ordinance is inapplicable to this Contract.
This letter is being submitted without prejudice and with a full reservation of all rights
and defenses.
CERTIFICATION OF CLAIM
STATE OF FLORIDA)
COUNTY OF PALM BEACH)
The undersigned, James T. Peace, pursuant to the Monroe County False Claims
Ordinance, after being duly sworn certifies that the amounts set forth above are:
(a) made in good faith;
(b) the supporting data is complete and accurate to the best of my knowledge,
information and belief;
(c) the amount accurately reflects the amount that Morganti believes is due
and owing from the County; and
(d) I am duly authorized by Morganti to certify the claim.
THE MORGANTI GRqW, INC.
ames T. Peace
Sworn to and subscribed before me this XIme
day of November, 2010, by James
T. Peace, as Operations Manager for The Morganti Group, Inc., who is personally known
to me and who took an oath.
NOTARY PQBLIC-STATE OF FWMA
=3 ,t Commission #DE. Bright931 c
Expires: OCT. 15, 2011 f0 Ca, (lgnature)
HONDBD 1H8D ATIJINTlC HOlfD1I
[AFFIX NOTARY SEAL]
(Printed Name)
Notary Public, State of Florida at Large
My Commission Expires:
THE MORGANTI GROUP, INC.,
Plaintiff
V.
IN THE CIRCUIT COURT OF THE SDCTEENTH
JUDICIAL CIRCUIT IN AND FOR MONROE
COUNTY, FLORIDA /`
CASE NO. H, / L/ -;�Iqa- - L
MONROE COUNTY, a political subdivision
of the State of Florida
Defendant.
G
COMPLAINT
DAM a /tuWN, dR
Plaintiff, The Morganti Group, Inc. C'Morganti'j, sues Defendant Monroe County, a
political subdivision of the State of Florida ("Monroe County'J, and states as follows:
Parties, Jurisdiction and Venue
1. This is an action for breach of contract with damages in excess of $15,000 and for
specific performance.
2. Plaintiff, Morganti, is a Connecticut corporation with its principal place of
business at 100 Mill Plain Road, Danbury, Connecticut 06811. Morganti conducts business in
Monroe County, Florida
3. Defendant Monroe County is a political subdivision of the State of Florida with
its principal place of business at 1100 Simonton Street, Key West, Florida 33040. Monroe
County is subject to the jurisdiction of this Court
4. Venue is proper under Section 47.011, Florida Statutes.
19709749.1
The Morgand Croup, Inc, v. Monroe County
Complaint for Damages
Page 2 of 4
COUNTI
(Breach of Contract)
5. Morganti realleges and incorporates by reference paragraphs 1 through 4 as if set
forth fully herein.
6. On or about October 19, 2005, Monroe County and Morganti entered into a
contract for work to be performed on the Key West International Airport and the Marathon
Airport (the "Contract"). The relevant portion of the Contract is attached hereto as Exhibit A.
7. Morganti completed its work on both the Key West International Airport and the
Marathon Airport
8. Notwithstanding Morganti's performance, Monroe County has not paid Morganti
the amounts due under the Contract.
9. Pursuant to the Contract, the parties were required to attend pre -suit mediation.
Contract § 17.14. While Morganti has repeatedly requested that Monroe County attend
mediation, Monroe County has refused to cooperate in scheduling the mediation.
10. With the exception of Morganti's inability to attend presuit mediation due to
Monroe County's refusal to cooperate in scheduling same, Morganti has complied with all
conditions precedent under the Conttact. Morganti is entitled to initiate this litigation.
I The complete Contract is not attached hereto due to its voluminous nature and the fact that Monroe County is in
Possession of a complete set of Contract documents. However, if necessary, Morgand will file the complete set of
Contract documents upon request.
19709749.1
77us Morgand Group, Inc. v. Monroe County
Complaint for Damages
Page 3 of 4
11. Monroe County breached its Contract with Morganti by failing to timely pay
Morganti the amounts that remained due and owing under the Contract and by failing to attend
presuit mediation as required by the Contract.
12. As a result of the breach of Contract by Monroe County, Morganti has been
damaged.
13. Morgand has retained the undersigned counsel and is obligated to pay them a
reasonable fee. Pursuant to the Contract, Morganti is entitled to recover reasonable attorneys,
fees, court costs and other expenses from Monroe County.
WHEREFORE, The Morganti Group, Inc. respectfully requests that the Court enter the
following relief -
A. Finding the County breached its contract with Morgand by failing to abide by the
Dispute Resolution Procedures of the Contract;
B. Ordering that the County comply with the Dispute Resolution Procedures of the
Contract;
C. Staying this action pending compliance with the Dispute Resolution Procedures of
the Contract
D. Such other and further relief as is just and proper.
Plaintiff demands trial by jury on all issues so triable.
1970974&1
The Morganti Croup, Inc. v. Monroe County
Complaint for Damages
Page 4 of 4
DATED this )CA day of August, 2011.
CARLTON FIELDS, P.A.
CityPlace Tower
525 Okeechobee Boulevard, Suite 1200
West Palm Beach, FL 33401-6303
Telephone: (561) 659-7070
Facsimile: (561) 659-7368
Joseph Ianno, Jr.
Florida Bar No. 655351
Alana Zorrilla-Gaston
Florida Bar No. 27256
Attorneys for Plaintiff. The Morganti Group,
Inc.
19709748.1
6='
AGREEMENT BETWEEN COUNTY AND CONSTRUCTION MANAGER
PROJECT NAME AND LOCATION: KEY WEST INTERNATIONAL AIRPORT —
NEW TERMINAL BUILDING ANb RENOVATION PROJECT
KEY WEST, FLORIDA
CONSTRUCTION MANAGER: The Morganti Group, Inc.
1450 Centrepark Boulevard, Suite 250
West Palm Beach, Florida 33401
581-689-0200
PROJECT OWNER Monroe County, a political subdivision of the Sate of Florida,
1100 Simonton Street
Key West, Florida 33040
ARCHITECT -ENGINEER: URS Corporate Southern
7650 Corporate Center Drive, Suite 400
Miami, Florida 33125
'SF .o
i r�{
f
Maly,
17.13 Terms Not To Be Construed Against Either P —'This Agreement has been'carefully reviewed by the
Construction Manager and the County. Therefore, this Agreement is not to be construed against either
party on the basis of authorship.
17.14 Mediation - The County and Construction Manager agree that, in the event of conflicting interpretations
of the terms or a term of this Agreement by or -between any of them the issue shall be submitted to
mediation prior to the institution of any other administrative or legal proceeding.
17.15 Severabilibl - If any term, covenant, condition or provision of this Agreement (or the application thereof
to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement,
shall not be affected thereby; and each remaining tern, covenant, condition and provision of this
Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the
enforcement or the remaining terms, covenants, conditions and provisions of this Agreement would
prevent.the accomplishment of the original intent of this Agreement. The County and Construction
Manager agree to reform the Agreement to replace any stricken provision with a valid provision that
comes as close as possible to the intent of the stricken provision.
17.16 Attorneys Fees and Costs - The County and Construction Manager agree that in the event any cause of
action or proceeding is initiated or defended by any parry relative to the enforcement or interpretation of
this Agreement, the prevailing party shall be entitled to reasonable attorneys fees, wort costs,
investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall
include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings.
Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with
the Florida Rules of Civil Procedure ano usual and customary procedures required by the circuit court of
Monroe County.
17.17 Binding Effect- The terms, covenants, conditions, and provisions of this Agreement shall bind and inure
to the benefit of the County and Construction Manager and their respective legal representatives,
successors, and assigns.
17.13 Claims for Faders! or State Aid Construction Manager and County agree that each shall be, and is,
empowered to apply for, seep and obtain federal- and state hinds to further the purpose of this
Agreement, provided that all applications, requests, grant proposals, and funding solicitations shall be
approved by each party prior to submission.
17.19 Adiudication of Disputes or Disagreements - County and Construction Manager agree that all disputes
and disagreements shall be attempted to be resolved by meet and confer sessions between
representatives of each of the parties. If no resolution can be agreed upon within thirty (30) days after
the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board
of County Commissioners. if the issue or issues are still not resolved to the satisfaction of the parties,
then any parry shall have the right to seek such relief or remedy as may be provided by this Agreement
or by Florida law.
17.20 Cooperation - In the event any administrative or legal proceeding is instituted against either party
relating to the formation, execution, performance, or breach of this Agreement, County and Construction
Manager agree to participate, to the extent required by the other• party, in all proceedings, hearings,
processes, meetings, and other activities related to the substance of this Agreement or provision of the
services under this Agreement County and Construction Manager specifically agree that no party to
this Agreement shall be required to enter into any arbitration proceedings related to this Agreement.
17.21 Nondiscrimination - County and Construction Manager agree that there will be no discrimination against
any person, and it is expressly understood that upon a determination by a court of competent jurisdiction
that discrimination has occurred, this Agreement automatically terminates without any further action on
the part of any party, effective the date of the court order. County and Construction Manager agree to
comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964'(PL
88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title 1X of the
Education Amendment of 1972, as amended (20 USC ss.1681-1683, and 1685-1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20
32
Key West International Airport
New Terminal Building and Renovation Project
Key West. Florida
IN WITNESS WHEREOF, the parties have caused this agreement to be executed this 19tb day of
October, 2005.
(SQL)
ATTEST: DANNli L. KOLHAGE, CLERK
By
w
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By ..
ayor Dude M. pehar
THE MORGANn GROUP, INC.
By .
Title VICC P4C,r1A 4'r