Broward County Commission Regular Meeting
Director's Name: Andrew J. Meyers
Department: County Attorney
Information
Requested Action
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MOTION TO APPROVE Settlement Agreement attached as Exhibit 1 by and among Broward County and James A. Cummings, Inc., Tutor Perini Building Corp., Tutor Perini Corporation, Small Brothers, LLC, and Cleveland Construction, Inc., including costs and attorneys' fees, in the cases titled James A. Cummings, Inc. v. Broward County, Case No. CACE 19-014258 (03), and Broward County, Florida, ex rel. Small Brothers, LLC v. James A. Cummings, Inc., Tutor Perini Building Corp., and Tutor Perini Corporation, Case No. CACE 17 020475 (05); and to authorize the Mayor and Clerk to execute same.
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Why Action is Necessary
Board approval is necessary to resolve these pending lawsuits.
What Action Accomplishes
Settlement of pending litigation.
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Previous Action Taken
Summary Explanation/Background
In 2012 the County entered into a contract with James A. Cummings, Inc. ("JAC"), to construct the new Broward County Courthouse. Throughout the course of the project, there were issues that resulted in delays in the progress of the work. In 2019 JAC sued the County asserting a breach of contract claim primarily alleging that the County is responsible for construction delays ("Courthouse Delay Litigation"). JAC sought damages of approximately $31.5 million. The County denied JAC's allegations and filed a counterclaim against JAC asserting that JAC is responsible for delays, defective and nonconforming work, and violation of the County's False Claims Ordinance (the "Ordinance"); the County sought substantial damages for those asserted breaches and violations.
In 2017 Small Brothers, LLC ("Small Brothers"), filed a lawsuit alleging JAC, Tutor Perini Building Corp., and Tutor Perini Corporation (collectively, the "Tutor Entities") submitted false claims in violation of the Ordinance (the "Qui Tam Litigation"). In July 2024 a trial court awarded $4,503,733.50 to Small Brothers and $13,511,200.50 to the County in the Qui Tam Litigation (absent settlement, the Tutor Entities have indicated they would appeal this ruling).
After the ruling in the Qui Tam Litigation, the parties resumed mediation in an effort to resolve the Courthouse Delay Litigation and the Qui Tam Litigation. Senator Geller served as the County's client representative during this mediation. The mediation achieved a full settlement of both cases, subject to Board approval on October 8, 2024. As between the County and the Tutor Entities, the County would pay JAC $1,166,666.66 out of the $4,320,732 in retainage the County has maintained.
The settlement does not impact a separate County-initiated lawsuit filed in 2023 due to newly discovered latent defects involving cantilever roof beams, which lawsuit remains pending.
The Construction Management Division and the Office of the County Attorney recommend approval of this motion.
Source of Additional Information
Michael J. Kerr, Chief Counsel, 954-357-7600
Fiscal Impact
Fiscal Impact/Cost Summary
Of withheld retainage of $4,320,732 on the project, the County will release $1,166,666.66 to JAC.