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06/19/2019 Agreement Kevin MIadok, cpA Clerk of the Circuit Court& Comptroller-.. Monroe County, Florida �a'Texe taUm+°y�.. DATE: June 25, 2019 TO: Kathy Peters, CP County Attorney's Office FROM: Pamela G. Hancock, D.C. SUBJECT: June 19th BOCC Meeting Attached is an electronic copy of the following item for you handling: 02 Settlement Agreement in the matter of Halley Engineering Contractors, Inc. v. Monroe County, Case No. 18-CA-768-P. Should you have any questions,please feel free to contact me at (305) 292-3550. cc: Finance File KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING 50�0 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070 305-294-4641 305-2801-6027 305-852-7145 305-852-7145 SETTLEMENT AGREEMENT JI SQL This Settlement Agreement is made and entered into this / — day of June 2019,by and between the following parties and entities: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Florida, (referred to hereinafter as"MONROE COUNTY");and HALLEY ENGINEERING CONTRACTORS,INC.,a Florida corporation, (referred to hereinafter as"NEC"); and RECITALS WHEREAS, on or about May 17, 2017, MONROE COUNTY and HEC entered into a Contract (hereinafter referred to as the"Contract")for HEC to serve as the design-build contractor on the project known as Card Sound Toll Authority Systems Upgrade Project from County Line to JCWW Bridge in Monroe County, Florida(hereinafter referred to as"the Project"); and WHEREAS, HEC was required, pursuant to the Contract documents, to design and construct all work addressed in the Contract documents; and WHEREAS,on or about October 12,2018,HEC submitted to MONROE COUNTY claims for additional costs and delays and compensation for delays("Claims"),which Claims were denied and rejected by MONROE COUNTY; and WHEREAS,on or about April 18,2019 and again on or about October 24,2018,pursuant to the provisions of MONROE COUNTY's Contract with HEC, and after providing required notice of same, the parties engaged in a meet and confer conference in an effort to resolve the Claims and issues that were the subject of disputes between the parties, which meet and confer session was not successful; and 1 WHEREAS, on or about October 24, 2018, HEC brought an action against MONROE COUNTY for Breach of Contract, in a lawsuit styled Halley Engineering Contractors, Inc., v. Monroe County Board of County Commissioners, Case No. 18-CA-000768-P, filed in the Circuit Court in and for Monroe County, Florida; and WHEREAS, on or about May 30, 2019, the Parties engaged in a mediation conference in a further effort to resolve the claims and disputes; and WHEREAS,all Parties in the above-referenced Lawsuit deny responsibility for any and all of the claims brought and defaults filed against them; 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 above-referenced Lawsuit as well as any and all claims and/or allegations of default which were or could have been brought in the Lawsuit or arising from the work on the Project or the Contract between the parties. 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 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. The above recitals and representations are true and correct and incorporated herein. 2. Compromise Settlement. The Parties agree that this Settlement Agreement is a full and final settlement of all 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, legal liability and allegations of default being expressly denied. It is 2 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 Waiver and Release, attached hereto as Exhibit "A", (hereinafter referred to as the "Limited Mutual Waiver and Release") is approval of the Settlement Agreement and Limited Mutual Waiver and Release by the Monroe County Board of County Commissioners. If the Board does not approve the Settlement Agreement and the Limited Mutual Waiver and Release, the Settlement Agreement and Limited Mutual Waiver and Release shall be deemed null and void ab initio, treated as though the Settlement Agreement and Limited Mutual Waiver and Release had never been executed, and shall not be admissible in any proceeding,including but not limited to the Lawsuits, for any purpose. Because time is a material element of this Agreement, this Settlement Agreement and Limited Mutual Waiver and Release shall be presented to the Board at its June 19,2019,meeting. 4. Payment to HEC. In consideration of HEC's release and promises described in this Settlement Agreement and the Limited Mutual Waiver and Release, MONROE COUNTY shall pay to HEC the amount of Three Hundred Thousand Dollars ($300,000.00), which amount includes all remaining contract balances including retainage in the amount of$180,119.98,as well as payment in the amount of$119,880.02 for any and all claims for additional costs, expenses and damages that HEC has asserted against MONROE COUNTY. MONROE COUNTY shall make the settlement payment to HEC within fifteen (15) days of the Board's approval at the June 19, 2019, meeting. 5. Limited Mutual Waiver and Release. Upon approval by the Monroe County Board of County Commissioners of the Settlement Agreement and the Limited Mutual Waiver and Release, execution of the Settlement Agreement by the Parties, and upon payment of the 3 Settlement Amount,the Parties will execute and exchange the Limited Mutual Waiver and Release in the form attached hereto as Exhibit 'A'. 6. HEC's Responsibility as the Design-Build Contractor of the Project. Notwithstanding the Limited Mutual Waiver and Release entered into by the Parties, HEC shall remain responsible to address any latent defect or other undiscovered latent defect related to the construction work performed on the Project in accordance with the time limitation provided under Florida law. As of the date this Settlement Agreement is signed, MONROE COUNY and HEC affirm and represent it is not aware of any defect or design errors and omissions that exist associated with the Project work. 7. 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 Waiver and Release, whether such costs and fees have been incurred prior to the execution of this Settlement Agreement and/or Limited Mutual Waiver and Release or will be incurred after their execution. 8. 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 Waiver and Release by the Parties, and within ten(10) days after the payment of MONROE COUNTY's settlement payment to HEC, HEC and clearance of same on the account upon which the payment is drawn and/or the settlement funds have otherwise become available to HEC,HEC 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 Final Orders. 9. 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 4 with this Settlement Agreement and Limited Mutual Waiver and 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. 10. Governing Law: Venue. The Settlement Agreement and the Limited Mutual Waiver and 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. 11. 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. 12. 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. 13. 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 5 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. 14. 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. 15. 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. [Signature pages follow] 6 IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be executed as follows: BOARD OF COUNTY COMMISSIONERS MONROE UNTY FLORIDA • By: _. Mayor Sylvia J. Murphy Date: 19 " ''i / Attest: KEVIN MADOK,CPA kl,:,,,',- a 5` 1Clerk of Circuit Court& Com \ ` 6-7 ��.. / h ,�rMG YMRGV f� X By: IV CD © .,o - Deputy Clerk t-, = G�n`i �7 Date: II P)-o, l 9 r'' CI.:X! N T 0 a . rn -- - C7 �: Q ak CO MONROE COUNTY ATTORNEY ( 14PLO �-TATRM: L CHRISTINE LIMBERT-BARROWS ASSISTANT COUNTY A RNEY DATE: • HALLEY ENGINEERING CONTRACTORS,INC. By: Title: T:z(is STATE OF FLORIDA ) ) SS. COUNTY OF HI*run -040s) BEFORE ME, the undersigned authority, personally appeared MI)a L. t. H44 'who aecuted before me the foregoing Settlement Agreement, and who acknowledged before me that hh she executed the same. SWORN AND SUBSCRIBED before me this /0 day of TUNE , 2019. �,,,} Notary Public State of Floridallotary Public, State of Florida at Large Krystet Londono My Commission Expires: si My Commission GG 060 t 72 moo,op' Expires 0110512021 PriWt/Type Notary's Name Notary: Please check appropriate box: Personally known to me; or Produced as identification: (Type of identification) 8 Exhibit A LIMITED MUTUAL WAIVER AND RELEASE KNOW ALL MEN BY THESE PRESENTS: That pursuant to a Settlement Agreement reached by and between MONROE COUNTY, FLORIDA (MONROE COUNTY) a political subdivision of the State of Florida, and HALLEY ENGINEERING CONTRACTORS, INC., a Florida corporation, (referred to hereinafter as "HEC");collectively referred to as"the Releasing Parties,"approved by the Monroe County Board of County Commissioners at its duly published and publicly held meeting on June 19, 2019, and in consideration of payment to HEC of the amounts set forth in the Settlement Agreement referred to above, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties enter into this Limited Mutual Waiver and Release to resolve any and all claims and defenses by and between the Parties that were raised or could have been raised resultant from those certain contested notices of default and those certain actions styled Halley Engineering Contractors, Inc. v. Monroe County Board of County Commissioners, Case No. 18- CA-000768-P,filed in the Circuit Court in and for Monroe County,Florida,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)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 Releasing Parties ever had, now has, or hereinafter shall or may have against any other of the Releasing Parties and their successors, parents, subsidiaries, affiliates, heirs, assigns, officers, directors, 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 Releasing Parties arising from or relating to the above-referenced cases and/or the Project. Exclusions: 1. The Releases set forth herein exclude future actions and liability that may arise in connection with third-party claims for personal injury and/or property damage, warranty claims, and claims for latent defects that were not known and could not have been discovered through the exercise of reasonable diligence as of the date of execution by the Parties of this Limited Mutual Release. As of the date this Limited Mutual Waiver and Release,MONROE COUNTY affirms it is not aware of any defects associated with HEC's Project work. BOARD OF COUNTY COMMISSIONERS MONROE /UNTY FLORIDA 4 , By. Ma,r Sylvia J. Murphy Date: C t 9, zm Attest: KEVIN MADOK,CPA, �` MONROE COUNTY ATTORNEY AS T ORM: Clerk of Circuit Dort& Comptrolle a -' CHRISTINE LIMBERT BARROWS By: Cr. t ASSISTANT COUNTY ORNEY Deputy Clerk -' DATB: 1a� tR Date: ��} HALLEY ENGINEERING CONTRACTORS,INC. By Title: MES1064 , STATE OF FLORIDA ) )SS. COUNTY OF ff ,-Mos. ) BEFORE ME, the undersigned authority, personally appeared `t7*v'et-a. *AR,' , who executed before me the foregoing Settlement Agreement, and who acknowledged before me that he/she executed the same. SWORN AND SUBSCRIBED before S.th' 'day of A t i✓ ,2019. Wary Public Mato Florida t(/�66 // Atilfw(8 4) susene tie�rera it: Public, ST of F 'Ma at Large My " '0A GG mot ► Iy Commission • --s: �afor Explrsso5J241�1 Print/Type Notary's Name Notary: Please check appropriate box: Personally known to me;or Produced as identification: (Type of identification)