Item O17
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1/28/09
Division: County Attorney
Bulk Item: Yes No -1L
Staff Contact PersonlPhone #: Bob Shillinger. x3470
AGENDA ITEM WORDING:
Approval of settlement agreement in Monroe County v. Bender and Associates, P.A., et aI., CA K 03-
915.
ITEM BACKGROUND:
This case was filed to recover the costs arising from the defective windows originally installed during
the renovations of the Gato building. On January 12, 2009, the parties attended a Court-ordered
mediation session, which produced a tentative agreement which - if approved by the Board -- will result
in a total payment of $550,000.00 to the County. Every party, except the County, has signed off on
this agreement. Because of the Sunshine Law, the mediation rules authorize covered entities like the
County to vote to approve or reject a settlement agreement at an open meeting held after the mediation
session. If approved, the various defendants would pay their share within twenty days of being notified
of the Board's vote.
As a sign of good faith in its participation in the mediation process, the Commission previously
scheduled a closed session to discuss any settlement with legal staff That session will also be held on
1/28/09. It is requested that this item be heard after the closed session; for that reason it should NOT
be approved with the bulk items unless the Board wants to forego the closed session.
PREVIOUS RELEVANT BOCC ACTION: Board authorized filing suit in 2003. On 12/17/08,
Board scheduled closed session to be held on 1/28/09.
CONTRACVAGREEMENTCHANGES:wa
STAFF RECOMMENDATIONS: ApprovaL
TOTAL COST: $0.00
INDIRECT COST: TBD
BUDGETED: Yes _No xx
COST TO COUNTY: n/a
SOURCE OF FUNDS: n/a
REVENUE PRODUCING: Yes..xK.- No
AMOUNT $550.000.00 one time only.
APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _
DOCUMENTA nON:
Included xx
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 1/09
1 SETTLEMENT AGREEMENT
2
3 This Settlement Agreement (the "Agreementll) is made and entered into
4 this 12th day of January, 2009, by and between the following, sometimes
5 referred to hereafter collectively as the "Parties" and individually as a "Party":
6
7 Monroe County, Florida, a Political Subdivision of the
8 State of Florida (referred to hereafter as "Plaintifflf),
9
10 - and -
11
12 Bender & Associates Architects, P.A. (referred to
13 hereafter as "Benderlf), D.L. Porter Constructors, Inc.
14 (referred to hereafter as "D.L. Portern), Security Impact
15 Glass Holdings, L.L.C. (referred to hereafter as
16 {(Securitylf); Preservation Services, Inc. (referred to
17 hereafter as uPreservationll); and The American
18 Insurance Company (referred to hereafter as "American
19 Insurance"), with Bender, D.L. Porter, Security,
20 Preservation, and American Insurance sometimes
21 hereafter collectively referred to as liDefendants,1f
22
23 - and -
24
25 Bliss Cashier Metal Products, Inc. (referred to hereafter
26 as "Bliss").
27
28
29 Whereas, there is currently pending in the 16th Judicial Circuit Court in
30 and for Monroe County, Florida (the "Coure'), Case No. CAK 03-0000915/ an
31 action entitled Monroe County, Florida v. Bender & Associates Architects, P.A., et ai.,
32 referred to hereafter as the "Lawsuit";
33
34 Whereas, the subject of the Lawsuit concerns the work for the restoration
35 of The Gato Building located in Key West, Florida (referred to hereafter as the
36 "Projectll);
37
38 Whereas, the Parties, each of whom is represented by counsel, recognize
39 their respective rights and obligations, and are desirous of settling - fully and
40 finally - the Lawsuit as well as any and all claims and counterclaims which
41 were or could have been brought in the Lawsuit;
42
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Whereas, prior to signing this Agreement, each Party had an opportunity
to and in fact has had counsel review this Agreement and explain that Party's
rights and obligations under and the legal effect of this Agreement; and
Whereas, the Parties have signed this Agreement of their own free will
and volition, with the full recognition and understanding of their rights and
obligations under and the legal effect of this Agreementj
Now Therefore, for and in consideration of the following covenants and
agreements, or other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and conclusively established, the Parties
covenant and agree as follows:
1. Recitals: The foregoing recitals are true and correct.
2. Nothing In This Agreement To Act As Admission: Neither this
Agreement nor anything in it shall act as or constitute an admission by any Party
that any Party, or any of their respective past or present officers 1 directorsl
shareholdersl agentsl employees, independent contractors, agents, accountants or
attorneys, committed any wrongful actl or violated or breached the terms of any
agreement or duty owed, whether statutory or otherwise.
3. Condition Precedent: A condition precedent to ~he effectiveness of
this Agreement is approval of this Agreement by the Monroe County, Florida Board
of County Commissioners (the "Board"), which approval shall be given not later
than forty-five (45) days from the date of this Agreement. If the Board does not
approve this Agreement within the time prescribedl this Agreement shall be
deemed null and void ab initio, treated as though it had never made executed, and
shall not be admissible in any proceeding, including but not limited to the
Lawsuitl for any purpose.
4. Settlement of Lawsuit: In settlement of the Lawsuit, including but
not limited to any and all claims, counterclaims, cross-claims, and third-party
claims which were or could have been asserted in the Lawsuit, the Parties agree as
follows:
(a) Bender shall pay Plaintiff the sum of Two Hundred Thousand
Dollars ($200,000.00).
(b) D.L. Porter (for itself and on behalf of American Insurance) shall
pay Plaintiff the sum of One Hundred Fifty Thousand Dollars
($150,000.00).
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86 (c) Security shall pay Plaintiff the sum of Twenty-Five Thousand
87 Dollars ($25,000.00).
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89 (d) Preservation shall pay Plaintiff the sum of One Hundred Fifty
90 Thousand Dollars ($150,000.00).
91
92 (e) Bliss shall pay Plaintiff the sum of Twenty-Five Thousand
93 Dollars ($25,000.00).
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9S (f) The foregoing sums are collectively referred to hereafter as the
96 ((Settlement Sum.n Each constituent part of the Settlement Sum, i.e.
97 the amount specified above to be paid by each Party, shall be paid
98 within twenty (20) days from receipt of written notification
99 (including via fax transmission or e-mail) of approval by the Board of
100 this Agreement. Payment shall be made via wire transfer or check
101 made payable to Ferencik, Libanoff, Brandt Bustamente & Williams,
102 P.A. Trust Account.
103
104 (g) Additionally, within five (5) days of payment by a Party
10S to this Agreement of its constituent part of the Settlement Sum, that
106 Party's counsel, Plaintiffs counsel, and/or counsel for the Party which
107 has asserted a cross-claim or third-party claim shall prepare and file
108 with the Court, in accordance with Rule 1.420 of the Florida Rules of
109 Civil Procedure, a stipulation of dismissal with prejudice (along with a
110 proposed Order of Dismissal With Prejudice) providing that the
111 Lawsuit shall be dismissed with prejudice as against that Party, with
112 each side to bear its own attorneys' fees and costs, and with the Court
113 reserving jurisdiction for the purpose of enforcing this Agreement.
114
115 (h) For purposes of this Agreement, including the release
116 provisions herein, Security shall include the following entities and
117 individuals: (1) Security Impact Glass Holdings, LLCi (2) First Florida
118 Ventures Corp.i (3) Security Impact Glass, LLC and (4) E. Llwdd
119 Ecc1estone.
120
121 5. Release from Plaintiff to Defendants and Bliss: Plaintiff hereby
122 remises, releases, acquits, satisfies and forever discharges Defendants and Bliss
123 (including each of their respective past and present parent, subsidiary, affiliate or
124 predecessor entities, and any and all of his, her, its and/or their respective past and
125 present officers, directors, agents, attorneys, accountants, insurers, servants,
126 employees, and shareholders, and their respective heirs and personal
127 representatives, all of the foregoing hereinafter collectively referred to as the
128 "Defendant Releasees") , of and from any and all, and all manner of, claims,
129 actions, causes of action, suits, debts, sums of money, accounts, reckonings,
130 contracts, controversies, agreements, promises, damages, and demands whatsoever,
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131 in law or in equity, which Plaintiff had or now has, or which any successor or
132 assign of Plaintiff hereafter can, shall or may have, against any of the Defendant
133 Releasees for, upon, or by reason of any matter, cause or thing whatsoever, from
134 the beginning of the world to the date of this Agreement, whether known or
135 unknown, direct or indirect, vested or contingent, in relation to the Project and the
136 claims included, or which could have been included, in the Lawsuit. Without
137 limiting the generality of the foregoing, this Release includes the release of any and
138 all claims, rights, and causes of action, of any type or kind whatsoever, which were
139 or could have been raised or asserted by Plaintiff against the Defendant Releasees in
140 the Lawsuit. Notwithstanding the foregoing, Plaintiff expressly excludes from the
141 effect of this Release and does not release the Defendant Releasees from the terms
142 and conditions of this Agreement.
143
144 6. Release from Defendants and Bliss to Plaintiff: Defendants and
145 Bliss, collectively referred to hereafter as the uDefendant Releasors," hereby remise,
146 release, acquit, satisfy, and forever discharge Plaintiff (including each of Plaintiff's
147 past and present parent, subsidiary, affiliate or predecessor entities, and any and all
148 of his, her, its and/or their respective past and present officers, directors, agents,
149 attorneys, accountants, insurers, servants, employees, and shareholders, and their
150 respective heirs and personal representatives, all of the foregoing hereinafter
151 collectively referred to as the "Plaintiff Releasees"), of and from any and all, and all
152 manner of, claims, actions, causes of action, suits, debts, sums of money, accounts,
153 reckonings, contracts, controversies, agreements, promises, damages, and demands
154 whatsoever, in law or in equity, which the Defendant Releasors had or now have,
155 or which any successor or assign of the Defendant Releasors hereafter can, shall or
156 may have, against any of the Plaintiff Releasees for, upon, or by reason of any
157 matter, cause or thing whatsoever, from the beginning of the world to the date of
158 this Agreement, whether known or unknown, direct or indirect, vested or
159 contingent, in relation to the Project and the claims included, or which could have
160 been included, in the Lawsuit. Without limiting the generality of the foregoing,
161 this Release includes the release of any and all claims, rights, and causes of action,
162 of any type or kind whatsoever, which were or could have been raised or asserted
163 by the Defendant Releasors against the Plaintiff Releasees in the Lawsuit.
164 Notwithstanding the foregoing, the Defendant Releasors expressly exclude from
165 the effect of this Release and do not release the Plaintiff Releasees from the terms
166 and conditions of this Agreement.
167
168 7. Mutual Limited Release Between and Among Defendants and
169 Bliss: Bender, D.L. Porter, Security, Preservation, American Insurance, and Bliss
170 hereby mutually remise, release, acquit, satisfy, and forever discharge each other
171 (including their respective past and present parent, subsidiary, affiliate or
172 predecessor entities, and any and all of his, her, its and/or their respective past and
173 present officers, directors, agents, attorneys, accountants, insurers, servants}
174 employees, and shareholders, and their respective heirs and personal
175 representatives) of and from any and aU, and all manner of, claims, actions, causes
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176 of action, suits, debts, sums of money, accounts, reckonings, contracts,
177 controversies, agreements, promises, damages, and demands whatsoever, in law or
178 in equity, which any of one them had or now has, or which any successor or assign
179 of anyone of them hereafter can, shall or may have, against each other by reason
180 of the subject matter of the Lawsuit, including but not limited to any cross~claims
181 or third-party claims which were or could have been asserted in the Lawsuit, in
182 relation to the Project and the claims included, or which could have been included,
183 in the Lawsuit. It is expressly understood and agreed that this paragraph is not a
184 general release and shall not be construed or interpreted as such.
185
186 8. Attorneys' Fees: Other than as provided below, the Parties agree that
187 each of them will be responsible for paying their own attorneys' fees, costs and
188 expenses arising out of or connected with the Lawsuit, including but not limited to
189 the preparation and execution of this Agreement.
190
191 9. Paragraph Headings: The headings of the paragraphs of this
192 Agreement are inserted only for the purpose of convenience of reference, and the
193 Parties recognize and agree that these headings may not adequately or accurately
194 describe the contents of the paragraphs which they head. Such headings shall not
195 be deemed to govern, limit, modify, or in any manner affect the scope, meaning,
196 or intent of the provisions of this Agreement or any part or portion thereof, nor
197 shall they otherwise be given any legal effect.
198
199 10. Parties: This Agreement, as well as the obligations created and the
200 benefits conferred hereunder, shall be binding on and inure to the benefit of the
201 Parties as well as their personal representatives, heirs, past and present
202 representative officers, directors, agents, attorneys, accountants, insurers,
203 employees, and any subsidiary, affiliated and parent corporations, collateral
204 corporations, or other business entities controlled directly or indirectly by the
205 Parties. Each Party hereby represents and warrants, with respect to any and all
206 claims and counterclaims which were or could have been asserted in the Lawsuit
207 against the other Party, that: (a) no other person or entity is entitled to assert any
208 such claims or counterclaims against, or to recover any monetary, declarative,
209 injunctive, equitable, or any other form of relief from, the opposing Party; and
210 (b) no Party has assigned, transferred, hypothecated, or in any other way disposed
211 of all or any portion of any of claims or counterclaims which were or could have
212 been asserted in the Lawsuit against the opposing Party.
213
214 11. Authority: Each person signing this Agreement on behalf of a Party
215 represents and warrants that he or she has full power and authority to enter into
216 this Agreement and to fully, completely, and finally settle the Lawsuit, including
217 but not limited to any and all claims, counterclaims, cross-claims, and third-party
218 claims which were or could have been asserted in the Lawsuit; provided, however,
219 that with regard to the person signing on behalf of Plaintiff, such person represents
220 that he is signing on behalf of Plaintiff, whose approval is required as a condition
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221 of the legal efficacy of this Agreement, and agrees to recommend approval of this
222 Agreement by the Monroe County, Florida Board of County Commissioners.
223
224 12. Governing Law and Venue: This Agreement shall be enforceable and
225 construed according to the laws of the State of Florida without regard to its conflict
226 of laws provisions. The Parties agree that any action to enforce this Agreement
227 shall be brought in the 16th Judicial Circuit Court in and for Monroe County,
228 Florida. Moreover, each Party agrees and consents to the exercise of personal
229 jurisdiction in these courts for the purpose of any enforcement action.
230
231 13. Enforcement Action: The Parties agree that in the event any Party
232 brings an action to enforce any of the provisions of this Agreement, the Party
233 prevailing in any such action shall be entitled to recover, and the losing Party shall
234 be obligated to pay, the reasonable attorneys' fees and costs incurred in such
235 proceeding, including attorneysJ fees and costs incurred in any appellate
236 proceedings. The Parties agree that in the event any of the Defendants or Bliss fails
237 to make payment of the settlement amounts set forth in paragraph 4 above,
238 Plaintiff, upon filing a motion with the Court together with an affidavit setting
239 forth such failure, shall be entitled to the entry of judgment against the Party
240 which has failed to make payment in accordance with the Agreement. THE
241 PARTIES AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
242 ENFORCEMENT PROCEEDING, ACTION, OR LITIGATION ARISING OUT OF,
243 DIRECTLY OR INDIRECTLYJ THIS AGREEMENT.
244
245 14. Participation of Mediator in Preparing Settlement Papers: The
246 Parties acknowledge that Brian F. SpectorJ who served as the mediator in the
247 Lawsuit (the "Mediator"), prepared or assisted the Parties' respective counsel in
248 preparing this Agreement (including any exhibits). The Parties (and each of them)
249 acknowledge that the Mediator is not their lawyer and each Party looked solely to
250 Its own counsel for advice concerning the advisability of entering into this
251 Agreement. Each Party agrees to indemnify the Mediator and hold the Mediator
252 harmless against claims of any type or kind which might by asserted by anyone
253 against the Mediator arising, directly or indirectly, out of the Mediator's
254 participation in the preparation of this Agreement and the exhibits hereto.
255
256 15. Entire Agreement: The Parties acknowledge that this Agreement
257 contains the full and complete agreement between and among them, and that
258 there are no oral or implied agreements or understandings not specifically set forth
259 herein. Each Party acknowledges that no other Party, or agent or attorney of any
260 other Party, or any personJ firm, corporation or any other entity has made any
261 promise, representation, or warranty, whatsoever, express, implied, or statutory,
262 not contained herein, concerning the subject matter hereof, to induce the
263 execution of this Agreement. Each signatory also hereby acknowledges that he or
264 she has not executed this Agreement in reliance on any promise, representation, or
265 warranty not contained herein. The Parties further agree that no modifications of
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this Agreement may be made except by means of a written agreement signed by
each of the Parties. Finally, the Parties agree that the waiver of any breach of this
Agreement by any Party shall not be a waiver of any other subsequent or prior
breach. From time to time at the request of any of the Parties to this Agreement,
without further consideration and within a reasonable period of time after request
hereunder is made, the Parties hereby agree to execute and deliver any and all
further documents and instruments and to do all acts that any of the Parties to this
Agreement may reasonably request which may be necessary or appropriate to fully
implement the provisions of this Agreement.
REMAINDER OF THIS PAGE INTENTIONALLY
LEFT BLANK FOLLOWED BY SEVEN (7) SIGNATURE PAGES
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MONROE COUNTY, FLORIDA,
a Political Subdivision of
the State of Florida
7\!)1>-;r~ TO toU{.A.(>jrc;u /'t;fopd/}~fff-
BY:~
Attorney r , I , a
. Political Subdivision 0 tate of
Its: (hl-~-( )r-'"./CA;,.f CofA.JJi'j '1f~f~Florida in accordance with Fla.R.Civ.P.
Indicate Office/Title 1. 730(b)
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
The foregoing instrument 'r~~l!lcknowledged before me this 12th day of
]anuary, 2009, by f2.. ob.~ r t 'Stll ( (.,;~r of Monroe County, Florida, a
Political Subdivision of the State of Flanna, on behalf of the County, and who
produced as identification a driver's license from the State of
~ 0 fie! "- , number - -"JJJ",,-_,~ ,_.~____,._
. DR',,"'. SPECTlm
MOtafV NlIlc . SlIM of
· . .... C. 11II mill'" bpItn Oct'. ,
~..a.'" # DO
. ...... tInllIl......
Approved by the Board of County Commissioners of Monroe County,
Florida on
Attest:
Danny L. Kolhage, Clerk
Deputy Clerk
George Neugent, Mayor
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BENDER. &: AsSOCIATES ARCHITECTS, P .A.
f77
'"
to ey for Bender & Associates
'A itects, P.A. in accordance with
Its: /!ti5JT ~ ~~/;V -r/lCT la.R.Civ.P.1.730(b)
Indicate OfficejTi . e
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
The foregoing instrument was acknowledged before me this 12th day of
January, 2009, by ~~ W D~ }iT' of Bender & Associates
Architects I P.A., on be aU of the corporation, and who produced as
identification a driver's license from the State of FI ad t:iL.c.. , number
~ . liD .J~11IIWljr. .
~ec{#4
Notary Public, State of Florida at Large
~ .~..... BRIAN f. SPECTOR
MotIty PlIOIk; . State of Ftorlcll
· · .., COifIIlInlOa EItlm Oct 15. 2012
C8l'MIIIaIlMl , DO 7tt203
....... ~... *'-Y AsIII.
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D.L.~OR. R~ONST UCTO~/.INC.
'..~ '~ /
By:' ( I c;jf /11ClJiy
"I 1./
Its: I7c < --,! (, "1..L rl/ftv-ru:.
'Indicate Office/Titl
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
~-
./
",./'
"
Attorney for D.L. P
Inc. in accordance
1. 730(b)
The foregoing instrument was acknowledged before me this 12th day of
January, 2009, by '5c1l +-J. R. me Nt'\~ of D.L. Porter Constructors,
Inc., on behalf of the corporation, and W 0 produced as identification a driver's
license from the State of HO(~ A c. number
~ I ~ ~r _~II rum ~.IIII9Ulim~fl
e::;ct~~
Notary Public, State of Florida at Large
~,"~ht..r-.. BRIAN r, SPt('iUr'
~ Notlf)' Public. Slate of Floflll il
. ..,CormDsIon ~ Oct 15. 2012
COlMlIulon I 00 7~203
IoIldtd Through Na1lonll No1lry Ann,
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SECURITY IMPACT GLASS
HOLDINGS, L.L.C.
By: 1?;-t.-< eX. ttI o..A ( Ou:--e
Its; It-t>? / ,,~ pc':>,,\ 0-
,
Indicate Office/Title
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
~
_" rr;.tuZ~OL
A orney for Security Impact Glass
Holdings, L.L.c. in accordance with
Fla.R.Civ.P. 1.730(b)
The foregoing instrument was acknowledged before me this 12th day of
January, 2009, by (? /Jr\M:e W MlI'C ~ -L of Security Impact Glass
Holdings, L.L.c., on behalf of the company, and who produced as identification
a driver's license from the State of ---A O..rJ 6'la. t number
_l~_~_._~~
~pe~
Notary Public, State of Florida at Large
~._~ -..
BRIAN F. SPEC ToA
Notary Public. Slat, 01 Florida
. U,CoInmluIon fljliru 0el15, 2012
CommIwollI DD 7N203
Iondtd Through Halio~1 Notaly Ann.
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P'RESERV ATION SERVICES, INC.
BY~~'''''S6'0 ~I?r
Its: ~~ \~ ~~
Indicate Office/Title
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
The foregoin~nstruml1I1t was acknowledged before me this 12th day of
January, 2009, by L~ ~ '\l t-JS::cNI of Preservation Services, Inc.,
on behalf of the corporation, and who produced as identification a .drivcrls~ fL
license from the State of MO<CtcQO\ number
......
P
Brian F. Specto
Notary PublicI State of Florida at Large
~ --
CD INMf. SPECTOR
tIIIIrY NIle . 1tIII 01 florida
. . IdrtlJUllllll..... 0cI1S. ZOt2
CIMJt- , DO 111203
I ..................
-
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TOE AMER.ICAN INSURANCE. COMPANY
cl ,(If
Attorney for ~merican Insurance
/ Company in accordance with Fla.R.Civ.P.
Its: ~oVE,~\f. ~ ~G\2\,JP-( \N ?-Ge11.730(b)
Indicate Office/Title
~~)~
By: ~~ ~ '
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
The foregoing instrumeqt was acknowledged before me this 12th day of
January, 2009, by Otl() ....."'J:f Lct3 c of The American Insurance
Company, on behalf of the company, and who produced as identification a
driver's license from the State of R tJ/L' d-C{ number
_llJMUJIt:.JJI JJl~nU,
~e~
Notary Public, State of Florida at Large
. .'UAN F. SPECTOR
NaIIll' NlMc - StIlI 01 FtoridI
" . ." CI!IIIIIIlliI..... Oct 15. 2012
c....... . 011 rtI203
..... ....lIIII:My MIl.
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By:
Buss CASII.Il.EJR METAL PRODUCTS, INC.
, ~
C7.N~ f3e4wn/)1 5 - C~ ~
Its: A~I- i ~~ (1'\ f7,cf-
ndicate Office/Title
STATE OF FLORIDA )
)
COUNTY OF MIAMI )
L~
Attorne for Bliss Cashier Metal Products,
Ine. in accordance with Fta.R.Civ.P.
1. 730(b)
The foregoing instrument was acknowledged before me this 12th day of
January, 2009, by c\.A.o..f II:':; 5 +0\11 5 k I' of Bliss Cashier Metal
Products, Inc., on behalf of the corporation, and who produced as identification
a driver's license from the State of .FlOJ,'da... , number
__,J~J..~~J~LL""JI~
~!~
. Notary Public, State of Florida at Large
4 CD 8IUAN F. SPeCTOR
I Nolary NlIIc . Stitt of florida
1. . ur liel_JlIIII.... Od 15, 2012
Coll\mIIIIlla , aD 7te203
I ......llIIIIfIl.... NDlIfy Ana.
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