title
CEM ENTERPRISES, INC. V. CITY OF GAINESVILLE; ALACHUA COUNTY CASE NO.: 2005-CA-3143 (B)
recommendation
The City Commission 1) approve the terms of the settlement agreement; 2) authorize the City Attorney to settle the lawsuit on behalf of the City.
explanation
In the fall of 2004, the City was under a consent order from the Florida Department of Environmental Protection (FDEP) to stabilize the banks of the landfill that exist along a portion of the Sweetwater Branch Creek. The erosion of the old landfill bank was causing the contents of the landfill to wash into the stream thus polluting the stream. In December 2004, the City Commission approved the award of a bid to CEM Enterprises for the project, and subsequently the City and CEM entered into a contract. The City utilized the services of Golder & Associates, Inc., a consulting engineer to provide day to day supervision of the project and the site. It became apparent early during CEM’s time on the project that CEM was having difficulty performing the project and in fact CEM abandoned the worksite prior to the expiration of the contract. The City therefore terminated the contract.
In August 2005, CEM filed a breach of contract Complaint against the City. CEM sought delay damages, extended site conditions damages and loss of productivity/efficiency damages. CEM contended that the claimed damages arose from allegedly deficient plans and specifications and the City’s interference or lack of cooperation. Essentially, CEM asserted that it was impossible to complete the job under the terms of the contract, and the City would not compensate CEM to construct the project using a different approach.
The City filed a counterclaim against CEM for breach of contract and indemnification. The City’s breach of contract claim was based on CEM’s failure to construct the project in a timely fashion. The City’s indemnification claim was based on CEM’s obligation to contractually indemnify the...
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