03/21/2019 AgreementKevin Madok, cPA
Clerk of the Circuit Court & Comptroller — Monroe County, Florida
DATE: April 1, 2019
TO: Kathy Peters, CP
County Attorney's Office
FROM: Pamela G. Hancj) C.
SUBJECT: March 21st BOCC Meeting
Enclosed are two duplicate originals of Item Q1, Settlement and Release Agreement
between Monroe County Board of County Commissioners and Lloyd's London in the amount of
$3.5 million as final payment for damages caused by Hurricane Irma, for your handling.
Once you have obtained a fully executed duplicate original, please be sure to return it to
our office for the record. Should you have any questions, please feel free to contact me at (305)
292-3550. Thank you.
cc: Finance
File
KEY WEST
500 Whitehead Street
Key West, Florida 33040
305-294-4641
MARATHON
3117 Overseas Highway
Marathon, Florida 33050
365-289-6027
PLANTATION KEY
88820 Overseas Highway
Plantation Key, Florida 33070
305-852-7145
PK/ROTH BUILDING
50 High Point Road
Plantation Key, Florida 330'
305-852-7145
CLERK'S DUPLICATE ORIGINAL
MONROE COUNTY, FLORIDA
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is entered by and between
Monroe County Board of Commissioners and its elected officials ("Monroe") and, Certain
Underwriters at Lloyd's, London subscribing to Policy Number B0509BOWPNI700221 and
Tokio Marine Houston Casualty Company subscribing to Policy Number P 17C2600A001
(collectively, "Underwriters"), effective as of the Execution Date.
WHEREAS, "Party" means Monroe and Underwriters, individually; "Parties" means
Monroe and Underwriters, collectively.
WHEREAS, Certain Underwriters At Lloyd's, London subscribing to Policy Number
B0509BOWPN1700221 issued a Policy of insurance to Monroe for the period beginning on May
1, 2017 to May 1, 2018;
WHEREAS, Tokio Marine Houston Casualty Company issued a Policy of insurance
bearing number PI7C2600A001 to Monroe for the period beginning on May 1, 2017 to May 1,
2018;
WHEREAS, the Policies of insurance issued by Certain Underwriters At Lloyd's,
London and Tokio Marine Houston Casualty Company are hereinafter collectively referred to as
the "Policies";
WHEREAS, certain of Monroe's property was damaged by Hurricane Irma which
occurred on or about September 10, 2017 (the "Loss");
WHEREAS, Monroe submitted and/or intended to submit certain claim(s) to
Underwriters seeking recovery for its Loss and damage which included, but was not limited to
claims for property damage, business interruption loss, costs and other expenses (collectively,
the "Claim");
WHEREAS, Underwriters previously paid Monroe a net total of USD $1,500,000.00 for
Monroe's Loss and in connection with Monroe's Claim (hereinafter referred to as "Prior
Payment");
WHEREAS, certain disputes arose between Monroe and Underwriters regarding the
nature, scope, extent and amount of Loss and damage that was caused by, and/or was attributable
to Hurricane Irma that may be covered under Underwriters' Policies, if any;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and adequacy
of which is acknowledged, the Parties to this Agreement agree as follows:
464501.1
1. The Parties hereby release and forever discharge each other and all of their
respective, employees, officers, directors, agents, attorneys, representatives, adjusters, retained
consultants, retained experts, predecessors, successors, parents, subsidiaries, insurers and assigns,
and/or any and all other persons or entities, from and on account of any and all claims or demands
of any nature whatsoever, whether or not arising under the Policies. The Parties also release each
other from any and all actions, causes of actions, claims, suits, reimbursements, obligations, costs,
expenses, debts, judgments, liabilities, damages and demands of any kind, whether matured or un-
matured, whether at law or in equity, whether before a local, state, or federal court or state or
federal administrative agency, arbitration, appraisal, umpire or commission, and whether now
known or unknown, foreseen or unforeseen, liquidated or unliquidated that they may now have or
may have had, or hereafter claim to have, on behalf of themselves or any other person or entity,
arising out of or are related in any way to:
a) the Loss or the Claim;
b) damages of any nature sustained directly, indirectly or otherwise for the
Loss or the Claim;
c) all damages related to, or arising from, the Loss or Claim including but not
limited to all property damage, business income and/or extra expense
claims, which are alleged to have been caused by, or are related to — directly
or indirectly - the Loss or Claim;
d) any claim or cause of action for compensatory, punitive, statutory or extra -
contractual damages arising out of or related -to the Claim, actual or alleged
insurance coverage for the Loss based upon i) any alleged violation of the
duty of good faith and fair dealing by Underwriters; or, ii) any allegation of
bad faith conduct by Underwriters; or, iii) any allegations that Underwriters
committed any unfair claims practices; or, iv) any allegation that
Underwriters violated any applicable deceptive trade practices act; or, v)
any allegation that Underwriters violated any applicable insurance code or,
vi) any allegation that Underwriters committed any other improper act or
omission in connection with the underwriting or procurement of the Policies
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464501.1
or the investigation, handling, adjustment or settlement arising from the
Claim and/or the Loss; or, vii) any claims for interest, attorney's fees, costs
or expenses.
2. It is agreed that this Agreement shall be effective as a bar to all matters and claims
released herein, notwithstanding the discovery or existence of any new, additional or different facts
or claims. Monroe and Underwriters acknowledge that this Agreement covers not only facts and/or
claims which arise out of or are related in any way to the matters released herein which are
presently known, but also to any further facts and/or claims which arise out of, or in any way are
related to, the matters released herein that are not now known or anticipated but which may later
develop or be discovered, including all unanticipated effects or consequences thereof.
3. In addition to the Prior Payment previously made, within thirty (30) calendar days after
receipt of the fully executed Agreement by the Parties, Underwriters shall pay the net final
settlement amount of Three Million Five Hundred Thousand Dollars and no Cents (USD
$3,500,000.00) to Monroe (hereinafter the full and final "Settlement Amount").
4. Monroe represents and warrants that they are the sole and unconditional owner(s)
of all claims, rights, actions, causes of action and any and all other entitlements which are the
subject of this Agreement, and that (a) Monroe has not assigned, pledged, hypothecated or
otherwise divested or encumbered any of its claims, rights, actions, causes of action and any and
all other entitlements which are the subject of this Agreement, and (b) that no other person or
entity other than the loss payees identified in Paragraph 3 above, if any, have any interest in any
of these claims, rights, actions, causes of action or other entitlements which are the subject of
this Agreement.
5. ' To the extent allowed by Section 768.28, Florida Statutes, Monroe agrees to defend,
indemnify and hold harmless Underwriters against any such assigned, pledged, hypothecated,
divested or encumbered claim, right, cause of action or other entitlement that is the subject of this
Agreement and against any claim from any party seeking all or any portion of the proceeds to be
paid by Underwriters as contemplated by this Agreement, or under the Policies.
6. Monroe agrees that any and all mechanics liens or liens of any nature, known or
unknown as of the date of this Agreement, shall be the responsibility of Monroe. All parties to
this Agreement expressly recognize and agree that Underwriters shall have no liability for - directly
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464501.1
or indirectly — the payment or satisfaction of any liens filed or levied against the property for any
reason whatsoever.
7. Monroe hereby expressly agrees that this Agreement and payment by Underwriters
cannot and shall not be used as precedent for or an admission of coverage or liability under the
Policies or any other policies of insurance issued by Underwriters to Monroe or any other person
or entity for any claims, disputes or controversies. Monroe further agrees that this Agreement does
not affect in any way the obligations, rights and defenses of Underwriters under the Policies or any
other policies of insurance issued by Underwriters to Monroe or any other person or entity, except
to the extent of the release set forth in Paragraph 1 above.
8. Monroe and Underwriters acknowledge that this Agreement and the unallocated
payment made hereunder are made as a compromise of the Claim and that Underwriters do not
waive, amend or alter any of its rights or defenses available under the Policies or by law, or the
terms, conditions, limitations, requirements, exclusions, provisions, deductible(s), sub -limits,
choice of law provisions, or anything whatsoever in the Policies, all of which are expressly
reserved and unchanged. Furthermore, the Parties acknowledges that Underwriters' actions in
settling the Claim should not be construed as either an admission or denial of liability under the
Policies and that Underwriters is settling the Claim without waiver or prejudice of any kind.
9. For purposes of this Agreement, all entities referenced in this Agreement shall
include the entity referenced as well as its predecessors, successors, assigns, affiliates, agents,
parents, directors, officers, employees, insurers, attorneys, claims administrators and
representatives.
10. The wording of this Agreement was negotiated and accepted by the Parties and
Underwriters prior to the Agreement being executed and, accordingly, the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendment of it.
11. This Agreement shall be governed by, and be interpreted under, the laws of Florida
and any action regarding same shall be brought in a court of competent court jurisdiction within
the state of Florida.
12. If any section of this Agreement shall for any reason be or become invalid or
unenforceable, it shall not affect the remaining provisions of this Agreement which shall remain
in full force and effect.
►1
464501.1
13. This Agreement constitutes the entire understanding and agreement the Parties with
respect to the subject matter of this Agreement and there are no agreements, undertakings,
restrictions, representations or warranties as between the Parties other than those set forth in this
Agreement. No representations, oral or otherwise, express or implied, other than what is contained
herein have been made by the Parties. No provisions may be waived unless in writing, signed by
the Parties. Waiver of any of the provisions shall not be deemed a waiver of any other provisions.
This Agreement may be modified or amended only by written agreement executed by the Parties.
14. The Parties warrant and represent that the individual executing this Agreement on
their behalf is authorized to bind them to this Agreement and that the necessary steps have been
taken to provide the individual executing the Agreement on their behalf with the appropriate
authority.
15. This Agreement may be executed in counterparts, including by facsimile or
electronic signature, with each counterpart being deemed an original, and all counterparts so
executed shall constitute one agreement binding on all of the parties hereto, notwithstanding that
all of the parties are not a signatory to the same counterpart.
IN WITNESS WHEREOF and in Agreement herewith, Monroe and Underwriters have
caused this Settlement and Release Agreement to be executed on their behalf as of the date first
written above.
5
464501.1
11
Monroe Countv Board of Commissioners:
By: Name p J,,
Pri t Name: Sylvia J . Mur by o �2'
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Position: Mayor n rn
Sworn and subscribed beforemethis a=rn
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PAMELAG.HAN000K
WCOMMISSION� FF92i O
EXPIRES:Febwary22,2020
Bonded Tin Noffiry Pubric umwwdteta"'' APPROVED AS TO FORM:
MONROE COUNTY ATTORNEY'S OFFICE
ASSISTANT COUNTY ATTORNEY
Digitally signed by Cynthia L. Hall
DN: cn=Cynthia L. Hall,
o=Monroe County BOCC, ou,
1L1('rsI_J1' email=hall-
cynthia@monroecounty-fl.g ov,
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Date: 2019.03.11 17:24.53-04'00'
6
464501.1
Certain Underwriters At Lloyd's Subscribing to Policy B0509BOWPNI700221:
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By: Name:°�J�.
Print Name: Vl p f \aAg(b5A
Position: S-r, t7xe-CU4 'XII
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Sworn and subscribed before me this
i / Aay of January 2019
.•<:�e�•., TAMARA L. KULAKOWSKI
C` 4 MY COMMISSION # GG 031167
r�j r EXPIRES: December 7, 2020
o� Py�:••' Bonded Thru No Public Underwriters Notary Public tan
Tokio Marine Houston Casualtv Company Subscribing to Policv P17C2600A001
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By: Name:
Print Name: p
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' ay of January 2019
Notary Public
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TAMARA L. KULAKOWSKI
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MY COMMISSION # GG 031167
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EXPIRES: December 7, 2020
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464501.1