09/17/2013 Agreement (2)�1
SETTLEMENT AGREEMENT AND FINAL RELEASE
Principal:
Mailloux and Sons, Inc.
Surety:
Developers Surety and Indemnity Company
Obligee:
County of Monroe, Florida
Project: ADA Compliance Segment #1 for Facilities
Located between Mile Marker 112 -Mile Marker 47
Bond No.: Bond #479312P
Project: ADA Compliance Segment #2 for Facilities
Located between Mile Marker 47 -Mile Marker 0
Bond No.: Bond #479262P
d
Ag lThis Settlement Agreement and Final Releases (the "Agreement ") is made this ' Tay of
st 2013, between Mailloux and Sons, Inc., a corporation organized and existing pursuant to
the laws of the State of Florida ( "Mailloux "), the Monroe County Board of County
Commissioners, a municipality of the State of Florida (the "County "), and Developers Surety
and Indemnity Company, a corporation organized and existing pursuant to the laws of the State
of Iowa, duly authorized to do business in the State of Florida ( "Developers ") (Mailloux, County
and Developers shall collectively be referred to as the "Parties ").
WHEREAS, on or about August 15, 2012, the County awarded a contract to Mailloux on
the project commonly known as "ADA Compliance Segment #1 for Facilities Located between
Mile Marker 112 — Mile Marker 47" (the "Segment # 1 Contract" or "Segment # I Project "); and
WHEREAS, in connection with the Segment #1 Contract, Developers, as surety, issued
Performance/Payment Bond No. 479312P (the "Segment #1 Bond "), on behalf of Mailloux, as
principal, and in favor of the County, as obligee; and
WHEREAS, on or about May 16, 2012, the County awarded a contract to Mailloux on
the project commonly known as "ADA Compliance Segment #2 for Facilities Located between
Mile Marker 147 — Mile Marker 0" (the "Segment #2 Contract" or "Segment #2 Project ") and
WHEREAS, in connection with the Segment #2 Contract, Developers, as surety, issued
Performance/Payment Bond No. #479262P (the "Segment #2 Bond "), on behalf of Mailloux, as
principal, and in favor of the County, as obligee; and
WHEREAS, issues have arisen with Mailloux's performance of each of the Segment #1
Contract and Segment #2 Contract (collectively hereafter, the "Contracts "), pursuant to which
the County has issued to Mailloux its Notice of Intent to Terminate dated May 24, 2013; and
WHEREAS, on June 19, 2013, Mailloux was formally terminated by vote of the Monroe
County Board of County Commissioners at its regularly scheduled Commission Meeting,
attended by Mr. Jade T. Mailloux, President of Mailloux, and thereafter affirmed by issuance of
Monroe County's formal Notice of Termination dated June 25, 2013; and
Settlement Agreement and Release
Page 12
WHEREAS, as a result of its default/termination of Mailloux under the Contracts, the
County has made demand upon Developers for the completion of the Contracts pursuant to the
Performance Bond provisions of the Segment #1 Bond and Segment #2 Bond (hereinafter
collectively, the "Performance Bonds "); and
WHEREAS, on or about July 23, 2013, Mailloux filed an action against the County for
breach of Segment #1 Contract and for breach of Segment #2 Contract in a lawsuit styled
Mailloux & Sons, Inc., a Florida corporation vs. Monroe County, a political subdivision of the
State of Florida, Case # 2013 CA 791K, filed in the Circuit Court of the Sixteenth Judicial
Circuit in and for Monroe County, Florida (the "Lawsuit "); and
WHEREAS, the County denies that there is any legal or factual basis to the claims
asserted by Mailloux in the Lawsuit, and
WHEREAS, the Parties recognize that this Agreement is in furtherance of Developers'
obligations under the Bonds; and
WHEREAS, the Parties, each of whom is represented by counsel, or have had an
opportunity to be represented by counsel, recognize their respective rights and obligations, wish
to memorialize their agreement to fully and completely resolve any and all known and /or
potential claims against the Contracts and Bonds and settle their respective rights and
obligations, and now desire to settle the Lawsuit, as well as any and all claims and /or defenses
which were or could have been brought in the Lawsuit as specifically limited herein.
NOW THEREFORE, in consideration of the payment and mutual promises, covenants,
representations and conditions contained herein, and for other good and valuable consideration,
and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Recitals The above recitals are true and correct, and part of this Agreement as if
fully set forth herein.
2. Revocation of Default/Termination and Issuance of Default for Convenience
Upon the execution of this Agreement, the County agrees that its Notice of Intent to Terminate
dated May 24, 2013 and its Notice of Termination dated June 25, 2013 are each hereby
rescinded, vacated and of no further force and effect. Further, by operation of this Agreement,
the subject Contracts between the County and Mailloux shall be deemed "terminated for
convenience" by the County, with Mailloux and the County maintaining no further
responsibilities thereunder (except as specifically set forth in this Agreement). The parties
further agree that the language "termination for convenience" as used in this Settlement
Agreement and in the Contracts and contract documents does not, in any way, entitle nor give
rise to a claim by Mailloux against the County to further compensation payable to Mailloux in
Settlement Agreement and Release
Page 13
any form whatsoever from the County, Monroe Housing Authority, Government Services Group
(also known as "Meridian "), or from their respective Commissioners, members, officers,
directors, servants, heirs, administrators, executors, agents, principals, employees, successors
and /or assigns, all parent, subsidiaries or affiliated corporations or entities, predecessors in
interest, successors in interest, divisions, consultants and /or attorneys.
3. Payment to County Within twenty (20) days of the execution of this
Agreement, Mailloux and Developers shall make payment, jointly and severally, to the County in
the total amount of Thirty -Five Thousand and 00 /100 Dollars ($35,000.00). County
acknowledges and agrees that such payment is tendered in full and complete satisfaction of any
and all obligations which Mailloux and /or Developers may have under the Contracts and /or the
Performance Bonds, and that said Performance Bonds are rendered null, void and of no further
force and effect upon clearance of the funds contemplated herein; however, the Payment Bond
provisions and obligations of the Payment Bonds for Segment #1 and Segment #2 shall remain in
full force and effect.
4. Contract Sum, Retention and Other Requests for Payment. Mailloux
specifically agrees that it shall forfeit all claims to further payments of any nature under the
Segment #1 Contract and Segment #2 Contract, including, but not limited to, retainage (earned
and unearned), all monies for work performed to date whether or not included in payment
applications submitted, all unpaid or unclaimed change orders, any and all sums or payments due
or owing by Mailloux to design professionals, subcontractors, vendors, or others for services,
work, materials or supplies provided in connection with the Segment #1 Project or Segment #2
Project, any and all settlement costs incurred by Mailloux relating to any commitments to
subcontractors, vendors, or others in connection with the Segment #1 Project or Segment #2
Project, any and unpaid or unclaimed fees for permits, surveys, inspections, testing, surveys,
impact fees or fees required by Federal or State Law or by Ordinance, and any and all damages,
payments, amounts or allowances which could potentially be claimed by Mailloux under the
Segment #1 Contract and the Segment #2 Contract, under the General Conditions of said
Contracts, under the CDBG Supplemental Conditions of said Contracts and /or under the First
Amendment to the Segment #2 Contract.
Accordingly, Mailloux specifically agrees to forfeit all claims of any nature whatsoever
that it may now, or in the future, have to the sum of Six hundred and One thousand, and Six
hundred and Seventy -Four Dollars ($601,674.00) presently being held by the Monroe County
Clerk of Courts in connection with the Segment #1 and Segment #2 Projects and Segment #1 and
Segment #2 Contracts, and Mailloux agrees that Monroe County shall retain said funds.
5. Cooperation; Execution of Additional Required Documents and Release of
Contract Documentation to County The Parties agree to execute all such further instruments,
and to take all such further actions as may be reasonably required by any Party to fully effectuate
the terms and provisions of this Agreement and the transactions contemplated herein. Mailloux
further agrees to provide and release to the County the following contract documents for both
Settlement Agreement and Release
fl,ige 14
Segment #1 and Segment #2 Projects presently in their possession or under their control; (a) All
original "signed and sealed" Plans, Specifications, product approvals and permits; i.e. the Permit
Set of Plans, Specifications and Product Approvals and (b) all data, drawings, as- builts, sketches,
reports, summaries and other such documentation and /or information, as may have been
accumulated by Mailloux in performing the Segment #1 and Segment #2 contract work, whether
completed or in progress.
6. County's Final Release of Mailloux and Developers In consideration of the
Parties' respective performance and payment obligations as specified herein, and in consideration
of Mailloux' and Developers' releases as set forth in paragraph 7 below, the County does hereby
expressly RELEASE, ACQUIT and FOREVER DISCHARGE Developers and Mailloux,
together with their respective members, officers, directors, servants, heirs, administrators,
executors, agents, principals, employees, successors and /or assigns, all parent, subsidiary, or
affiliated corporations or entities, predecessors in interest, successors in interest, divisions,
consultants, and attorneys, of and from any and all claims, rights, demands and /or causes of
action of whatsoever kind or nature which County has or may ever claim to have, now or in the
future, against Developers and /or Mailloux under and /or by reason of the Contracts, Performance
Bonds and /or Projects, and acknowledges that the Performance Bonds are hereby rendered null,
void and of no further force and effect. However, excluded from this Release are the obligations
of Mailloux and Developers pursuant to the Payment Bonds which shall remain in full force and
effect.
7. Mailloux's and Developers' Final Releases of County In consideration of the
Parties' respective performance and payment obligations as specified herein, and in
consideration of the County's release as set forth in paragraph 6 above, Mailloux and
Developers, including their respective members, officers, directors, servants, heirs,
administrators, executors, agents, principals, employees, successors and /or assigns, all parent,
subsidiary, or affiliated corporations or entities, predecessors in interest, successors in interest,
divisions, consultants, and attorneys, do hereby expressly RELEASE, ACQUIT and FOREVER
DISCHARGE the County, together with its respective Commissioners, Monroe Housing
Authority, and Government Services Group (also known as "Meridian "), or from their respective
members, officers, directors, servants, heirs, administrators, executors agents, principals,
employees, successors and /or assigns, all parent, subsidiary, or affiliated corporations or
entities, predecessors in interest, successors in interest, divisions, consultants, and attorneys, of
and from any and all claims, rights, demands and /or causes of action of whatsoever kind or
nature which Mailloux, Developers, or either of them has or may ever claim to have, now or in
the future, against County under and /or by reason of the Contracts, Bonds and /or Projects.
8. Mailloux's Dismissal of Pending Litigation Upon execution of this Agreement
and payment to the County of the amounts required under paragraph 3 hereof, Mailloux agrees to
file a Notice of Voluntary Dismissal With Prejudice together with a Proposed Order of Dismissal
with Prejudice for execution by the Court in the action pending in the Circuit Court of the
Sixteenth Judicial Circuit in and for Monroe County, Florida, styled Mailloux & Sons, Inc. a
Settlement Agreement and Release
Pa &) e 15
Florida Corporation vs. Monroe County, a political subdivision of the State of Florida, Case #
2013 CA 791K
9. Reservation of Rights as Between Developers and Mailloux This Agreement
shall in no way alter, affect, impair or prejudice any rights, claims, causes of action or defenses as
between Developers and Mailloux (or its individual indemnitors) relating to the Contracts,
Bonds, Agreement(s) of Indemnity, or any other agreements between such parties, regardless of
whether such claims arise under contract, statute or at common law.
10. No Admission of Liability This Agreement does not constitute an admission of
liability on the part of any Party hereto.
11. Binding Nature of Agreement This Agreement shall only extend to and be
binding upon the Parties hereto and their respective successors and assigns. Nothing contained in
this Agreement shall create any third party beneficiaries to other claimants under the
Performance Bond and /or Payment Bond, nor confer any benefit or enforceable rights under this
Agreement other than to the Parties hereto and their respective successors, assigns, and
reinsurers.
12. Written Modifications This Agreement may not be modified unless in writing
and executed by the Parties hereto. No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the Party against whom it is sought to be enforced.
13. Interpretation of Agreement The provisions of this Agreement shall be applied
and interpreted in a manner consistent with each other so as to carry out the purposes and intent
of the Parties, but, if for any reason any provision is unenforceable or invalid, such provision
shall be deemed severed from this Agreement, and the remaining provisions shall be carried out
with the same force and effect as if the severed portion had not been a part of this Agreement.
14. Whole Agreement Except as otherwise provided herein, this Agreement
incorporates, includes, and supersedes all prior negotiations, correspondence, conversations,
agreements or understandings applicable to the matters contained herein, and the Parties agree
that there are no commitments, agreements or understandings concerning the subject matter of
this Agreement that are not contained in this Agreement. Accordingly, the Parties agree that no
deviations from the terms hereof shall be predicated upon any prior representations or
agreements, whether oral or written.
15. Opportunity to Review The Parties acknowledge and agree that they are
releasing certain rights and assuming certain duties and obligations which, but for this
Agreement, would not have been released or assumed. Accordingly, the Parties agree that this
Agreement is fair and reasonable, that each of them has had an opportunity to consult with and
have in fact consulted with such experts of their choice as they may have desired, and that they
Settlement Agreement and Release
Page 16
have had the opportunity to discuss and have in fact discussed this matter with counsel of their
choice.
16. Competent Legal Advice The Parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full and
complete understanding of all rights and obligations herein and that the preparation of this
Agreement has been their joint effort. The language agreed to expresses their mutual intent and
the resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the Parties than the other.
17. Survival All covenants, warranties and representations contained in this
Agreement, and all documents to be delivered by the Parties in connection with the
consummation of the transaction contemplated herein, shall survive the consummation of said
transaction.
18. Governing Law The parties hereto acknowledge and agree that this Agreement
shall be interpreted and construed in accordance with and governed by the laws of the State of
Florida. Any controversies or legal problems arising out of this Agreement and any action
involving the enforcement or interpretation of any rights hereunder shall be submitted to the
jurisdiction of a court of competent jurisdiction located in Monroe County Florida, the venue
situs, and shall be governed by the laws of the State of Florida.
19. Notices Any notices or other formal communications made under this
Agreement shall be deemed to have been duly given to Arch if sent via electronic and United
States Mail to:
Developers:
Cherie Rondinelli
Developers Surety and Indemnity Co.
100 Second Avenue South
Suite 704 South
St. Petersburg, FL 33701
With a copy to:
Edward Etcheverry, Esq.
Etcheverry Harrison LLP
150 South Pine Island Road
Suite 105
Ft. Lauderdale, FL 33324
and shall be deemed to have been duly given to County if sent via electronic and United States
Mail to:
County:
Natileene W. Cassel, Esq.
County of Monroe
Office of the County Attorney
1111 12`" Street, Suite 408
Key West, FL 33040
With a copy to:
Ira Libanoff, Esq.
Ferencik Libanoff Brandt
Bustamante and Goldstein, P.A.
150 S. Pine Island Road, Suite 400
Plantation, FL 33324
Settlement Agreement and Release
Page 17
and shall be deemed to have been duly given to Mailloux if sent via electronic and United States
Mail to:
Mailloux: With a copy to:
Don Niesen, Esq.
Niesen JPrice lWorthy JCampo
5216 SW 91 Drive
Gainesville, FL 32608
or, at such other address as each of the foregoing may designate in writing by registered or
certified mail to the other.
20. Counterparts This Agreement may be executed in one or more counterparts, by
facsimile or electronic mail, each of which, when executed and delivered, shall be deemed to be
an original, but such counterparts shall together constitute one and the same instrument.
21. Formal Approval by County This Agreement is subject to, and shall not
become effective until, formal approval by the County at a duly noticed public meeting in
accordance with Florida law, and the Agreement has thereafter been executed by the Board of
County Commissioners or their designee in accordance with such approval.
IN WITNESS WHEREOF, the Parties hereto have affixed their hands and seals to this
Agreement the day and year first set forth above, and the individuals who execute this Agreement
personally represent and warrant that they have full authority to execute this Agreement on
behalf of the respective Parties.
[Signature pages follow]
Settlement Agreement and Release
Page 19
DEVELOPERS SURETY AND INDEMNITY
COMPANY
By:
Name: /T) 00
Title:
Date:
STATE OF
COUNTY OF
On this day of August '20l,3 before me personally appeared
is [ ] personally known to me or [ ] has pro
who being by me duly sworn did depose and state a is the
Developers Surety and Indemnity Company, na in the ing
Release, that he /she executed the fore instrument on behalf
o , who
identification and
of
Settlement Agreement and
4e Corporation with full
authority to do so from the Boar irectors of the Corporation, and tha /she executed the
foregoing instrument on of the Corporation for the uses and purposes set Oilli therein.
Notary Public
SEAL
CALIFORNIA JURAT WITH AFFIANT STATEMENT
WSee Attached Document (Notary to cross out lines 1 -6 below) J J
❑ See Statement Below (Lines 1 -5 to be completed only by document signer[s], not Notary)
if any)
State of California
County of ORANGE
Subscribed and sworn to (or affirmed) before me on this
12 day of September , 20 13 by
Date Month Year
(1) Susan Moore
Name of Signer
DEWAYNE CARSON proved to me on the basis of satisfactory evidence to be
COA4M. # 1993606 g the person who apeared before me
idOT�,f - tJBi -IC CALIFORNIA 0 (and
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Uf-1HNGt COUNTY to
Comm. of i►W OoL 11, 2018 (2) None
Name of Signer
proved to me he basis of satisfac eviden to be
the person who apeared before a .)
Signature
Place Notary Seal Above Signat
OPTIONAL
Though the information below is not required by law, it may prove
valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document. Top of thumb here Top of thumb here
Further Description of Any Attached Document
Title or Type of Document: r/4l,] iffM6Ur/
Document Date: y? /� 4 3 Number of Pages:
Signer(s) Other Than Named Above:
® 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NationalNotary.org Item #5910 Reorder: Call Toll -Free 1. 800 - 876 -6827
Settlement Agreement and Release
Page 18
MAILLOUX AND SONS, INC.
By: A, �!o
Name:
Title: re ?A,,, -k
Date: 911 t,z
STATE OF
COUNTY OF Maj&�Jj
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On this I Z day of ° 13, before me personally appeared 1° ou OQ x , who
is [ ] personally known to me or [\? has produced flbiLd&jY 11( We n as identification and
who being by me duly sworn did depose and state that he /she is the ' rS s-i of
Mailloux and Sons, Inc., named in the foregoing Settlement Agreement and Release, that he /she
executed the foregoing instrument on behalf of the Corporation with full authority to do so from
the Board of Directors of the Corporation, and that he /she executed the foregoing instrument on
behalf of the Corporation for the uses and purposes set forth therein.
vu- c
Notary Public
SEAL
�r VICTORIA I. PYLE
ijX Notary Pubiic, State of Florida
Commission# EE 11744
My comm. expires August 3, 2014
Settlement Agreement and Release
Il V C 110
BOARD OF COUNT COMMISSIONERS MONROE
Co
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Date: I b I [ C - ) I20)
Attest:
Amy Heavilin, CPA,
Clerk of Circuit Court
By:
Deputy Clerk
Date: I b 1 (01 1
MONROE COUNTY ATTORN
COUNTY ' " ()
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eA4TILELENE YCASSEL
A SISTANT COUNTY ATTORNEY
Date
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MONROE COUNTY ATTORN
COUNTY ' " ()
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' "40VED AS TO R
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eA4TILELENE YCASSEL
A SISTANT COUNTY ATTORNEY
Date