Loading...
HomeMy WebLinkAboutDocumentation_Regular_Tab 18_10/11/2006ToNEs FOSTER JC~HNSTON & STIJBBS, P.A. Attorneys and Counselors Flagler Center T~» ver. Sttite 111)0 SOi 5urrth Flagler Drive West Palm Beach, r-loricia 33-401 Telephone: IShI } 659-3(100 tYlrrilin,S~ Addri ss Post Oltice Box 3~47~ West Palm Bench. Florida 33=302-3d7a Scott G. Hawkins, Esquire Board Certified in Business Litigation Law by the Florida Bar Direct Dial: 56i-650-0460 Direct Fax: 561-650-0436 E-Mail: shawkins@jones-foster.com October 5, 2006 VIA E-MAILIPDF Greg Corbin Recreatianal Director Village of Tequesta 250 Tequesta Drive Tequesta, Florida 33469 Michael R. Couzzo, Jr. Village Manager Village of Tequesta 901 N. Old Dixie Hwy. Tequesta, Florida 33469 Re: Village of Tequesta(Constitutian Park/Vl/elch Tennis Courts, Inc. Dear Greg and Mike: Attached is a copy of correspondence just received from Jeffrey C. Coon, Esq., counsel for Welch Tennis Caurts, Inc, in the correspondence, Mr. Coon indicates that his client accepts the settlement proposal that was recently tendered by the Village of Tequesta, A copy of that settlement proposal is also attached. Under the terms of the Village's settlement proposal, there is a lump sum payment to be made of $76,446,39. Please note that the settlement proposal was conditioned on final approval by the Village council. In this regard, 1 note the Village council is meeting on Wednesday, October 11, 2006, and I suggest that this matter be placed on the agenda for review at such time. Mr. Caon is advising that his client is only going to accept the settlement if the settlement sum of $76,446,39 is tendered by no later than October 14, 2006. I would like to discuss this further with you at your earliest convenience, Very truly yours, JONES, FO TER, JOHNSTON & STUBBS, P.A. ('F. By Scatt G. Hawkins SGH:ebg Enclosure P:IDOCS113i531000011LTR110R2090 DOC www. jorres foster cony Oct 04 ^6 12:450 Jeffrey C Coan PR 813 221 6633 p.2 LAW OFFICES 3~FFREY C, COON, P.A. AT'7OR_NEY.4T LAW SUITE 725 - I:4MPA THEf1iER BUILDING 707 NORTH FRr1NKL1N STREET TA.~•IPr1, FLORIDA 33602 +1failing addretr ~~ PO 80X+713 Tq[\QP.4, FL.ORIp~133G01-0=1 t3 October 4, 2006 TELEPHONE (813) 22i-2924 Elsewlrerr in Florida call 70L,LFREE" 1-RUO-822-2924 Ft1X No. (813j 221-6G3+ Scott G, Hawkins, Esq. VIA Facsrmite to Fax No. (561) 650-4436 .Jones, Fester Johnston & Stubbs, P..A.. and U. S. Mail P.O, Box 3475 West Palm Beach, Florida 3:3402-1475 ~ R.e: Village of Tequesta: Constitution Park Improvements Contractor/Client: Welch. Tennis Courts, Inc. My File: 06-8047 Dear Mr. Hawkins: I forwarded a copy of your letter dated September 27, 2006 to my client for its consideration.. For reasons I needn't go into here, Welch Tennis Courts, Inc. has decided to accept the offer of settlement which you conveyed in your letter. This acceptance is conditioned upon the payment of the settlement surn of $76,446.39 being remitted by the Village of Tequesta to Welch Tennis Courts, within ten (10) days of your receipt of this letter of acceptance,. i---1 Attorney for Welch Tennis Courts ec. George Todd, ]r.. joNF,s ~'C~STER jOHNSTON 8t STUBBS, P.A. Attorneys and Counselors Flagler Center Tower. Suite J l00 SOS South Flagler Drive West Palm Beach, Florida 33401 Telephone {56l) 659-.3000 Scott G. Hawkins, Esquire Board Certified in Business Litigation Law by the Florida Bar Direct Dfal: 56'1-650-0460 Direct Fax: 561-650-D436 E-Mail: shawkins@jones-foster com September 27, 2006 VtA FACSIMILE & U.S. MAIL Jeffrey C. Coon, Esq. Tenth Floor Tampa Theater Building 707 North Franklin Street Tampa, FL 33602 Re: Village of Tequesta: Constitution Park Improvements Your Client: Welch Tennis Courts, Inc. Your File Na.: 06-8047 Dear Mr. Coon: Mcrilrng Aclcb•e..ts Post Office Box .3'175 West Palm Beach, Florida 3340?-.3475 This letter is written with respect to your recent carrespondence regarding a passible resolution of the matter between Welch Tennis Courts, Inc. ("Welch Tennis") and the Village of Tequesta ("Tequesta"). In this response, f will first address your request far contract extension and will then separately comment on the subject of permitting fees. A proposal to settle the dispute will then be set forkh. Contract Extension: In your carrespondence, far the first time, Welch Tennis makes a specific request far a contract extension of sixty (60) calendar days. Your client specifically claims various construction delays associated with delays caused by various storms and hurricanes which occurred in 2005. Your client has requested a sixty (60) day extension. Tequesta rejects the requested extension on the grounds that your client failed to comply with the terms of the contract at issue. Accordingly, inasmuch as your client failed to comply with the terms of the contract, your client is not entitled to relief under the contract terms. In support, I refer to the following provisions in the contract which I quote (and also attach for your reference): 9. Section 4.3 Claims and Disputes. Section 4.3,1 Definition. A claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of www.. j o n es-fos to r. co ttt Jeffrey C. Coan, Esq. September 27, 2006 Page 2 contract terms, payment of money, extension of time or other relief with respect to the terms of the contract. The term "claim" also includes other disputes and matters in question between the owner and contractor arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantia#e claims shall rest with the party making the Claim. 2, Section 4.3.2 Time limits on Claims. Claims by either party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such Claim or within twenty-one (21) days after the claimant first recognizes the condition giving rise to the Claim, whichever is later, Claims must be initiated by written notice to the Architect and the other party. 3. Section 4,3.7 Claims for Additional Time. Section 4.3.7.1 if the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given, The Contractor's Claim shall include an estimate of cost and of probable effect of delay on the progress of the Work. In the case of a continuing delay only one Claim is necessary„ 4. Section 4.3.7.2 If adverse weather conditions are the basis far a Claim for Additional Time, such Claim shall be documented by data substantiating that weather canditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. Jeff, based on the foregoing provisions, it is the position of the Village of Tequesta, that your client was required to make a timely written submission far the requested time extension and failed to do so. Section 4.3.1 clearly requires written notice which was never provided within the required twenty-one (21 } day time period. indeed, written notice requesting sixty {60) days was not received until your fetter of August 14, more than 12 months after the first storm in question, Further, I assert that not only is the claim untimely, the contractor's claim fails to meet the requirements of 4.3.7.1 and 4.3.7.2, Jeffrey C. Coon, Esq. September 27, 2006 Page 3 Based on the foregoing reasons and contract provisions noted above, Tequesta rejects the claim far a contract extension. Permitting Fees As to the permitting fee issue, your client has requested that the Village of Tequesta reimburse your client $11,238.45 far permitting costs. Welch Tennis claims the permitting fees are the responsibility of Tequesta. While Tequesta disputes this position, it is willing to reimburse your client for these fees in the amount of $11,238,45, provided the matter is resolved within the next 10 days in accordance with the following terms. Settlement Proposal 1. Tequesta is entitled to liquidated damages of $51, 750.00. If this settlement proposal ("proposal") is accepted, Tequesta will agree to reduce this sum by $11, 238.45 as an offset to cover permit fees. With this offset the net liquidated damages figure that Tequesta wilt retain is $40,511.55. Upon acceptance of this proposal, this sum shall be immediately payable to Tequesta. 2. Subject to verification with the project manager as to amounts and status on the project, Tequesta is prepared to remit to your client a lump sum payment of $116,957.94 (payments 8 and 9 but not including the net liquidated damages addressed above). Therefore, conditioned an the approval of the Village Council, the total to be remitted if this matter is settled in accordance with these terms is $76,446.39. This payment will be delivered within 10 days of acceptance of this proposal and execution of an agreement to terminate the relationship. Jeff, attached to this letter are copies of the contract excerpts in question. Please call me if ,you have any questions. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A. l '-. ,. ~, .... F BV Scott G. Hawkins SGH:ebg Enclosures P:IDOCS11 3 1 53100DD 11DOC1'I ONS947 OOC § 4.2.11 The Architect wilt interpret and decide matters concerning performance under and requirements of, the Contract Documents on written rs'quest of either the Owner or Contractor. The Architect's response to such requests will be made in Meriting within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the tinge within which interpretations required of the Architect shaft be furnished in compliance with this Section 4 2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them.. § 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents artd will be in wti[ing or in the fornt of drawings. ti'~'hen making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance b}• both Oumer and Contractor, ~~ i11 not show partiality to either and ee~ill not be liable for results of interpretations or decisions so rendered in good faith § 42.13 The Architect's decisions on matters relating to aesthetic effect witl be final if consistent with the intent expressed in the Contract Documents § 4.3 CLAIMS Af~1D DISPUTES § 4.3.1 Definition.. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms o€ the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. § 4.3.2 Time L-units on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or evidtin 21 days after the claimant first recognizes the condition giving rise to the Claitn, whichever is later. Claims must be initiated by written notice to the Architect and the other party. § 4.3.3 Cont'snuing Contract Performance. Pending final resolution of a Clairn except as otherwise agreed in writing or as provided in Section 9J..1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. § 4.3.4 Claims for Concealed or Unknoa~tl Conditions.. If conditions are encountered at the site which are (1) substirface or otherwise concealed physical conditions which differ material]y front those indicated in the Contract Documents or {2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Cantract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and Contractor in writing, stating the reasons.. Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the Architect for initial determination, subject to further proceedings pursuant to Section 4 4. § 4.3,5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, wrinen notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required far Claims relating to an emergency endangering life or property arising under Section 10.6.. § 4.3.6 If the Contractor believes additional cost is imrolved for reasons including but not [invited to (I } a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was net at fault, (3) a written order for a minor change in the Work issued by tfte Architect, {4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Section 4.3. AIA Document A207T° -1997, Copyright ®791 t, 7915. 1918, 1925, 1937, 7951, 1958, 11361, 1963, 1966. 1967, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved.. WARNING: This AtAd' Document is protected by U S Copyright Law and tnlernatlonal Trealles. 1 ~ Unauthorized reproduction or dlstrlbvlion at this AIA= Document, or any portion of 1t, may result to severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law., This document was produced by AIA sotivrare al 13:23;79 on 01l04r2005 under Order No.10001443t0_1 which expires on 11/02/2005, and is not !or resale. User Notes: (228520D378} § 4..3..7 Claims for Additional Time § 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given.. The Contractor's Clailn shall include an estimate of cost and of probable effect of delay on progress of the Work. [n the case of a continuing decay only one Claim is necessary. - § 4,3..7..2 If adverse wea[her conditions are the basis for a Claim for additions! time, such Claim shall be documented by data substantiating that ~teather conditions were abnormal for the pcriotE of tithe, could hat have been reasonably anticipated and had an adverse effect on the scheduled construction. § 4.3.6 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 4,3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such, unitprices to quantities of Work proposed will cause substantial inequity to the 0lener or Contractor, the applicable unit prices shall be equitably adjusted.. § 4.3.10 Claims for Consequential Damages.. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, Chancing, business and reputation, and for loss of management or employee productivity or of the sen~ices of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to ail consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this Section 4.3..10 shalt be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents. § 4.4 RESOLUTION OF CLAIMS AND DISPUTES § 4.4,1 Decision of Architect. Clairris, including those alleging an error or omission by the Architect but excluding those arising under Sections 103 through 10.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and 0lvner arising prior to the date final payment is dtte, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. § 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or {5) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Clailn or if the Architect concludes that, in the Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim.. § 4,4.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or seek information from either party or fronm persons with special knowledge ar expertise svlmo may assist the Architect in rendering a decision.. The Architect may request the Owner to authorize retention of such persons at the Owner's e~:petmse. § 4.4,4 If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shat! either provide a response on the requested supporting data, advise the Architect when the response or supporting data will be famished or advise the Architect that no supporting data will be famished, Upon receipt of the response or supporting data, if any, the Architect will either rejector approve the Claim in whole or in part:. A!A Document A201 ^r -1997. Copyright ©1911, 1915, 1918, 1925. 1937 1451, 1958. 1461, 1963, t 9fi6, 1967. 1970, 1976, 1987 and 1997 try The American institute of Architects. A11 rights reserved.. WARNING: rhls A1A~' Document is protected by U 5 Copyright Law and International 7realtes Unauthorized reproduction or dtstributlon of this AIA°' Document, or any portion o1 It. may result in severe ctvtr and eriminaf penalties. and wiU be 2~ prosecuted to the maximum extent passitrle under the taw. This document was produced by AIA software at 13:23:19 on 01i04/2pa$ under Order Na.10061443t0_t which expires on t 1I0220p5. and is not for resale User Notes: (2265200376)