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Settlement & Limited Mutual Release • • - . � AMY HEAVILIH, CPA CLERK OF CIRCUIT COURT & COMPTROLLER ' 410 � MONROE country RARIDA *Ai jt DATE: February 27, 2014 TO: Bob Schillinger County Attorney ATTN: Kathy Peters FROM: Lindsey Ballard, D.C.UJV At the February 19'h, 2014, Board of County Commissioner's meeting the Board granted approval of a Settlement Agreement and Limited Mutual Release (Exhibit A to Settlement Agreement) in the matter of the Morganti Group,Inc.v. Monroe County,Case No. 2011-CA-892-K Enclosed is a copy of the Settlement Agreement and the Limited Mutual Release for your handling. If you should have any questions please contact our office. Thank you. cc: County Attorney Finance File 500 Whitehead Street Suite 101,PO Sax 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663 3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025 88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146 t LIMITED MUTUAL RELEASE KNOW ALL MEN BY THESE PRESENTS: That pursuant to a Settlement Agreement reached by MONROE COUNTY, FLORIDA ( MONROE COUNTY) a political subdivision of the State of Florida, and THE MORGANTI GROUP, INC., a foreign corporation, collectively referred to as "the Parties," approved by the Monroe County Commission at its duly published and publicly held meeting on FGbry" t 1 2014, and in consideration of payment to THE MORGANTI GROUP, INC. of the sum of Seven Hundred Twenty Five Thousand ($725,000) Dollars and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties enter into this Limited Mutual Release to resolve any and all claims and defenses by and between the Parties that were raised or could have been raised in that certain action styled "The Morganti Group, Inc. vs. Monroe County; Case No. 2011- CA -892K, filed in the Circuit Court in and for Monroe County, Florida, the subject of which was the Contract entered into between MONROE COUNTY and THE MORGANTI GROUP, INC. for the Kew Est International Airport and Marathon Airport projects ( "Projects ") and, that, in accordance with this Limited Mutual Release the Parties hereby remise, release, acquit, satisfy and forever discharge each other (subject to the Exclusions set forth below) of and from all claims, actions, causes and causes of actions, suits, debts, dues, sums of money, accounts, contracts, controversies, agreements, promises, damages and demands whatsoever, in law or in equity, which each of the Parties ever had, now has, or hereinafter shall or may have against any other of the Parties and their successors, parents, subsidiaries, affiliates, heirs, assigns, officers, directors, principals, employees, agents, attorneys, insurers and adjusters of each of the parties for, upon and by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents, arising out of all claims and defenses that were raised or could have been raised between the Parties arising from or relating to the above - referenced case and/or the Contract or Projects. Exclusions: 1. The Releases set forth herein exclude actions and liability arising in connection with third -party claims for personal injury, wrongful death and property damage and claims for latent defects that were not known and/or had not manifested themselves as of the date of execution by the Parties of this Limited Mutual Release. The Releases set forth herein also exclude any liability or responsibility of THE MORGANTI GROUP, INC. to defend and indemnify MONROE COUNTY in connection with any claim asserted in the lawsuits styled Peter R. Abesada, Esq. as the Personal Representative of the Estate of Carlos Humberto Cifuentes Saenz v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al., Case No. 2009 -CA- 2136 -K and White v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al. Case No. 2011 -CA- 336 -K, both pending in the Circuit Court in and for Monroe County, Florida. 28981058.1 .N /' C This Limited Mutual Release may be executed in one or more counterparts, each of which shall be an original, but all of which, together, shall be deemed to constitute a single document. An executed facsimile copy shall be deemed an original as well. BOARD OF COUNTY COMMISSIONERS Amy Heavilin, CPA,Clerk of Circuit Court By: Deputy Clerk Date: Fckgvv.V-N a 7+h, aL N; 28981058.1 MONROE COUNTY, FLORIDA THE MORGANTI GROUP, INC. Title: Nabil M. Takla, Pr STATE OF Connecticut COUNTY OF Fairfield BEFORE ME, the undersigned authority, personally appeared Nabil M. Takla , who executed before me the foregoing Limited Mutual Release, and who acknowledged before me that he /she executed the same. SWORN AND SUBSCRIBED before me this 31 day of January , 2014 Notary Public, Sta e of Connect i cattLarge My Commission Expires: KIMBERLY" A. MORRIS Kimberly A. M orris NOTARYPUBLIC My COMMISSIO W IRES JUNE 30, 2015 Print/Type Notary's Name Notary: Please check appropriate box x Personally known to me; or Produced as identification: (Type of identification) 28981058.1 SETTLEMENT AGREEMENT rr This Settlement Agreement is made and entered into this / 9 4 day of 2014, by and between the following parties and entities, sometimes referred to hereinafter collectively as the "Parties ": Plaintiff MORGANTI GROUP, INC., a foreign corporation, (referred to hereinafter as "MORGANTI "); and Defendant MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Florida, (referred to hereinafter as " MONROE COUNTY "). RECITALS WHEREAS, on or about October 19, 2005, MONROE COUNTY entered into a Contract with MORGANTI for MORGANTI to serve as Construction Manager ( "Agreement ") for work to be performed on the Key West International Airport ( "KWIA Project "). On March 15, 2006 the parties entered into the First Amendment to the Agreement for work to be performed on the KWIA Project and for work at the Marathon Airport ( "Marathon Project "). The KWIA Project and Marathon Project may be collectively be referred to as the "Projects ", and WHEREAS, MORGANTI contends that it completed its scope of work on the Marathon Project in May, 2009 and on the KWIA Project in October, 2009, and WHEREAS, MONROE COUNTY contends that the MORGANTI failed to complete its scope of work on the KWIA Project and delayed completion of the work on both Projects, and WHEREAS, MORGANTI submitted various claims for additional compensation, and I WHEREAS, MONROE COUNTY denies responsibility for any of the claims for additional compensation submitted by MORGANTI, and WHEREAS, MONROE COUNTY contends that it is entitled to assess liquidated damages against MORGANTI as a result of the late completion of the work on the KWIA Project and for costs to be incurred to complete and correct the Work performed by MORGANTI on the KWIA Project, and WHEREAS, MORGANTI denies responsibility for either the liquidated damages claimed by MONROE COUNTY or for any costs incurred by the MONROE COUNTY to complete or correct the work performed by MORGANTI. WHEREAS, on or about August 10, 2011, MORGANTI brought an action against MONROE COUNTY for breach of contract, in a lawsuit styled The Morganti Group, Inc. vs. Monroe County; Case No. 2011- CA -892K, filed in the Circuit Court in and for Monroe County, Florida (hereinafter referred to as the "Lawsuit "), and WHEREAS, MONROE COUNTY denied the allegations in the Lawsuit and filed Affirmative Defenses and a Counterclaim in response; 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, and now desire to settle the Lawsuit as well as any and all claims which were or could have been brought in the Lawsuit or arising from the Projects. NOW THEREFORE, for and in consideration of the payment(s) and mutual promises, covenants, representations and conditions contained herein, and for other good and valuable r consideration, the receipt and sufficiency of which is hereby acknowledged, the following are the terms and conditions of this Settlement Agreement: 1. Recitals and Representations. true and correct and incorporated herein. The above recitals and representations are 2. Compromise Settlement. The Parties agree that this Settlement Agreement is a full and final settlement of disputed claims, and that it is neither intended nor to be interpreted as an admission of fault, liability, or legal responsibility on the part of the settling parties, said fault, responsibility, and legal liability being expressly denied. It is understood and agreed that this Settlement Agreement is made as a compromise to avoid the expense of litigation. 3. Condition Precedent. A condition precedent to the effectiveness of the Settlement Agreement and the Limited Mutual Release, attached hereto as Exhibit "A ", (hereinafter referred to as the "Limited Mutual Release ") is approval of the Settlement Agreement and Limited Mutual Release by the Monroe County Board of County Commissioners. If the Board does not approve the Settlement Agreement and the Limited Mutual Release, the Settlement Agreement and Limited Mutual Release shall be deemed null and void ab initio, treated as though the Settlement Agreement and Limited Mutual Release had never been executed, and shall not be admissible in any proceeding for any purpose, including but not limited to the Lawsuit. 4. Payment to Morsanti In consideration of MORGANTI'S release and promises described in the Settlement Agreement and the Limited Mutual Release, MONROE COUNTY agrees to pay MORGANTI the sum of Seven Hundred Twenty -Five Thousand 3 Dollars ($725,000)(hereinafter the "Settlement Amount ") in full and complete payment of any and all claims that were brought by or that could have been brought by MORGANTI against MONROE COUNTY in the Lawsuit. The Settlement Amount shall be paid within thirty (30) days of the execution of the Settlement Agreement by the Monroe County Mayor. 5. Limited Mutual Release Upon approval by the Monroe County Board of County Commissioners of the Settlement Agreement and the Limited Mutual Release, execution of the Settlement Agreement by the Parties, and upon payment of the Settlement Amount, the Parties will execute and exchange the Limited Mutual Release in the form attached hereto as Exhibit 'A'. 6. Moreanti's Responsibility as Construction Manager of Record Notwithstanding the Limited Mutual Release entered into by the Parties, MORGANTI shall remain responsible for the construction work performed on the KWIA Project and the Marathon Project in the event any latent or other undiscovered defect in the work is discovered or manifests itself subsequent to the date of this Agreement. Notwithstanding any provision contained herein, nothing is intended, nor should it be construed as altering or tolling any time limitation contained within Chapter 95 or elsewhere in the Florida Statutes for commencement of an action. 7. Separate Ongoing Litigation This Settlement Agreement between MORGANTI and MONROE COUNTY will have no impact or effect on the ongoing lawsuits in which both MORGANTI and MONROE COUNTY are co- defendants, which are are styled as Peter R. Abesada, Esq. as the Personal Representative of the Estate of Carlos Humberto Cifuentes Saenz v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al., Case 4 No. 2009 -CA- 2136 -K and White v. URS Corporation of Delaware, Inc., The Morganti Group, Inc., et al. Case No. 2011 -CA- 336 -K, both of which are pending in the Circuit Court in and for Monroe County, Florida which occurred during the course of the KWIA Project on which MORGANTI served as Construction Manager, and neither this settlement nor the Limited Mutual Release shall release, impact, impair or effect MORGANTI' S obligation to defend and indemnify MONROE COUNTY in relation to the claims that have been asserted in the aforementioned lawsuits. 8. Costs and Fees. Except as provided below, the Parties agree that each Party shall bear its own attorneys' fees, costs and expenses arising out of, or connected with, the Lawsuit, or arising out of, or connected with, the Settlement Agreement and/or the Limited Mutual Release, whether such costs and fees have been incurred prior to the execution of this Settlement Agreement and/or Limited Mutual Release or will be incurred after their execution. 9. Dismissal With Prejudice. Upon approval of the Settlement Agreement by the Monroe County Board of County Commissioners, execution of the Settlement Agreement and the Limited Mutual Release by the Parties, and within ten (10) days after the payment of the Settlement Amount to MORGANTI has cleared the account upon which it is drawn and/or the settlement funds have otherwise become available to MORGANTI, MORGANTI and MONROE COUNTY will authorize and instruct their respective attorneys to sign and file the Stipulation of Dismissal with Prejudice of the Lawsuit and proposed Order in the form attached hereto as Exhibit "B ". 10. Representation by Counsel The Parties acknowledge that they have been represented by counsel, or have had an opportunity to be represented by counsel, in connection 5 Al with this Settlement Agreement and Limited Mutual Release. The Parties further acknowledge that no promise, inducement or agreement not herein expressed has been made to them in connection with this Settlement Agreement, and that the Settlement Agreement is intended as a final and complete expression of their agreement and understanding with respect to the subject matter hereof. The terms of this Settlement Agreement are contractual and are not mere recital. This Settlement Agreement may not be changed, modified, altered or amended except by written instrument executed by all Parties. 11. Governing Law; Venue The Settlement Agreement and the Limited Mutual Release shall be construed, interpreted and enforced in accordance with the laws of the State of Florida. Venue for all disputes, controversies or claims relating to this Settlement Agreement that involve Monroe County shall remain in the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida. 12. Binding Effect. This Settlement Agreement shall be binding upon and inure exclusively to the benefit of the Parties, their predecessors, successors, assigns, parent and affiliated corporations, subsidiaries, affiliates, officers, principals, directors, employees, agents, insurance carriers, adjusters and legal representatives. 13. Construction of Agreement. This Settlement Agreement shall not be construed against the Party preparing it, but shall be construed as if it were prepared jointly by all Parties, and any uncertainty or ambiguity, or both, shall not be interpreted against any person or entity on the grounds of the drafting or participation in drafting of such language. f. 14. Entire Agreement. This Settlement Agreement represents the entirety of all agreements and understandings of the Parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral. All prior discussions, negotiations, letters, demands, and writings of any kind are fully merged into this Settlement Agreement and are of no further force or effect and this Settlement Agreement shall serve as the sole and entire expression of the agreement and understanding of the Parties. 15. Default In the event that MONROE COUNTY defaults in its payment obligation under this Settlement Agreement, MORGANTI or its counsel shall send written notice of such default to MONROE COUNTY's counsel, Ira Libanoff, 150 South Pine Island Road, Suite 400, Plantation, Florida 33324, by U.S. Mail, Facsimile and/or Email, and MONROE COUNTY shall have twenty (20) calendar days from the date of such notice to cure said default. Should MONROE COUNTY fail to remit payment within the cure period, MORGANTI shall immediately be permitted to file a Motion and Affidavit with the Court to that effect and upon such Motion, Affidavit and Notice, MORGANTI shall be entitled to the entry of a Final Default Judgment against MONROE COUNTY for the Settlement Amount, together with an award of attorneys' fees and costs incurred in connection with the Motion. 16. Authority of Signatory. Each of the Parties represents and expressly warrants that the person whose signature appears below on its behalf is of legal age, under no legal disability which would preclude them from entering into this Settlement Agreement, and that said person executes this Settlement Agreement freely, voluntarily, and with full knowledge of the terms and conditions and has full power and authority to execute this Settlement Agreement on its behalf, and that such authority is derived by virtue of that person's office. 7 17. Execution in Counterparts. The Parties acknowledge and agree that this Agreement may be executed and faxed or emailed in one or more counterparts, each counterpart shall be considered an original portion of this Settlement Agreement, and all of which shall constitute a singular instrument. IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be executed as follows: [Signature pages follow] CPA, Clerk of Circuit Court i� =!! �v & Date: ft brk 0-1-Y a stn, a01 BOARD OF COUNTY COMMISSIONERS MONROT COUNTY, FLORIDA Date: M O COU r,jRNEY VE =iyRM ASSISTA COU'N7Y �r Dat - 8 THE MORGANTI GROUP, INC. Title: Nabil M. Takla, President STATE OF Connecticut COUNTY OF Fairfield BEFORE ME, the undersigned authority, personally appeared Nabil M. Takla , who executed before me the foregoing Settlement Agreement, and who acknowledged before me that he /she executed the same. SWORN AND SUBSCRIBED before me this 31 day of Janu ary , 201. Notary Public, State of Connecticut Large My Commission Expires: �BERLY A. MORRIS NOTARY PUBLIC Kimberly A. Morris MYC©MMISStON EXPIRES AINE30,2015 Print/Type Notary's Name Notary• Please check appropriate box X Personally known to me; or Produced as identification: (Type of identification) 28981121.1