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Item S2 J �� BOARD OF COUNTY COMMISSIONERS County of Monroe � ��r�i �r � s�� Mayor Heather Carruthers,District 3 The Florida.Keys Mayor Pro Tem Michelle Coldiron,District 2 Craig Cates,District 1 David Rice,District 4 Sylvia J.Murphy,District 5 County Commission Meeting August 19, 2020 Agenda Item Number: S.2 Agenda Item Summary #7223 REVISED AC U : Inserted signature page now executed by Counsel for K2M Design, Inc. BULK ITEM: Yes DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Richard Strickland (305) 809-5200 N/A AGENDA ITEM WORDING: Approval of a prelitigation settlement agreement with K2M Design, Inc. to resolve issues arising from design of the Customs Terminal Security Enhancements at Key West International Airport, through which K2M will pay $150,000 to resolve all claims. ITEM BACKGROUND: Monroe County entered into continuing services contract with K2M Design, Inc. on December 19, 2009. Pursuant to that agreement, the County then entered into a design services agreement with K2M on March 21, 2012 for architectural services for the Customs Terminal Security Enhancements project. Upon completion of the project, the County filed an errors and omissions claim related to K2M's work on the project. On May 7, 2020, K2M suggested, and County staff agreed to, using the services of a mediator in order to resolve the county's claim. In order to keep the County's options open in the event the mediation was unsuccessful, the County Attorney's Office asked for and received approval to initiate litigation at the May 20, 2020 BOCC meeting. The County and K2M subsequently agreed to use Bruce Alexander to mediate the dispute. The parties mediated on August 10, 2020. K2M agreed to settle the County's claims by paying $150,000. Present at the mediation were the mediator-Bruce Alexander, K2M's representative— Steve Maloney, K2M's insurance adjuster, Richard Strickland, Cary Knight, Pedro Mercado and the Jacobs Engineer on the project—Ryan Forney. County staff present at the mediation all agreed to the settlement amount, subject to BOCC approval. The proposed settlement precludes the need to pursue any further action beyond this agenda item. PREVIOUS RELEVANT BOCC ACTION: Approved the continuing services agreement dated December 19, 2009, approved the Design Services Agreement dated February 10, 2012, approved amendment 41 dated February 19, 2015 reducing the scope of work, approved amendment# 2 dated November 10, 2015 and amendment 43 dated April 11, 2016. On May 20, 2020, the BOCC authorized the County Attorney to initiate litigation. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: The County Attorney recommends approval of the settlement agreement. DOCUMENTATION: REVISED Settlement Agreement- August 10, 2020 executed(SIGNED BY K2M COUNSEL 8/13/20) FINANCIAL IMPACT: Effective Date: N/A Expiration Date: N/A Total Dollar Value of Contract: N/A Total Cost to County: N/A Current Year Portion: N/A Budgeted: N/A Source of Funds: Pursuant to attached settlement agreement CPI: N/A Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: YES If yes, amount: $150,000 to be deposited into the Key Grant: N/A West airport general operating accounts fund County Match: N/A Insurance Required: N/A Additional Details: N/A REVIEWED BY: Bob Shillinger Completed 08/11/2020 10:26 AM Budget and Finance Completed 08/11/2020 11:05 AM Kathy Peters Completed 08/11/2020 12:13 PM Board of County Commissioners Pending 08/19/2020 9:00 AM MEDIATION SETTLEMENT AGREEMENT THIS MEDIATION SETTLEMENT AGREEMENT, dated this 10' day of August, 2020, was made and entered into by and between COUNTY OF MONROE ("'MONROE") and K2M DESIGN. INC. ("K2M") (collectively referred to as the "'Parties"). PURPOSE The parties to this Mediation Settlement Agreement (the "Agreement") acknowledge that the purpose of this Agreement is to memorialize the resolution of all disputes of whatever nature asserted by and between the parties arising out of or relating to the Terminal Security Enhancements Phases II and III at the Key West International Airport ("Project") and all services performed by K2M for MONROE pursuant to the Design Services Agreement with MBI/K2M Architecture for Customs Terminal Security Enhancements, dated February 10, 2012 (the "Contract"). AGREEMENT The Parties agree as follows: 1. SETTLEMENT SUM. K2M agrees to pay MONROE the sum of One Hundred Fifty Thousand Dollars and zero cents (S 150,000.00) (the "Settlement Sum'') as full and final settlement of the disputes between the Parties. This Settlement is conditioned upon approval by the Board of County Commissioners in and for Monroe County. Counsel for MONROE will recommend that these Settlement terms be approved by the Board of County Commissioners. The Settlement Sum shall be made payable to Monroe County Board Of County Commissioners, within thirty(30) days of approval of the Agreement, and shall be paid by check or wire transfer. 2. ATTORNEY'S FEES. All parties are to bear their own attorneys' fees and costs incurred in this Action and equally share the cost of the mediator. I 3. RELEASE. Other than with respect to the remaining obligations contained herein, the Parties do, as to one another, release each other from any and all claims, demands, and damages, whether arising out of law or equity, and whether previously asserted or unasserted, known or unknown, latent or patent, arising out of or relating to the Project and/or the Contract. 4. NON-DISPARAGEMENT. Each party agrees to refrain from any disparaging comments, verbal or in writing, as to one another. 5. AGREEMENT COMPROMISES DISPUTED CLAIMS. This Agreement is made and entered by the Parties as a compromise of disputed claims between them. None of this Agreement, the payment provided by it, nor any document, pleading or paper prepared and signed pursuant to the provisions of this Agreement shall constitute or be construed or asserted as an admission of liability on the part of any Party. 6. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Florida. 7. JURISDICTION AND VENUE. Any and all legal actions arising from or relating to this Agreement shall be commenced in Monroe County, Florida. 8. DRAFTING OF THE AGREEMENT. The parties participated in the drafting of this Agreement and/or had it reviewed by their respective counsel. Accordingly, no presumption shall be given in favor of or against, any party in interpreting this Agreement and 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. 9. SEVERABILITY. If any provision of this Agreement is found to be unenforceable, the remaining provisions hereof shall nevertheless be carried into effect. 2 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties hereto, supersedes any prior agreement between the parties, whether written or oral, and may not be changed, altered or modified except in writing and executed by the parties hereto. Each party acknowledges that no representation, inducement, promises or agreements, orally or otherwise, was made by any party, or anyone acting on behalf of any party, unless such representation, inducement, promises or agreements are embodied in this Agreement. 11. REPRESENTATION BY COUNSEL. Each party was represented by independent counsel in this matter or had the opportunity to consult with independent counsel. Furthermore, the parties obtained advice from said counsel concerning the meaning, scope and effect of this Agreement, or voluntarily waived such an opportunity. 12. AUTHORIZATION AND AUTHORITY. Each party represents and warrants to the other that: (a) it is duly authorized and competent to execute this Agreement, (b) it has all necessary corporate power and authority to enter into this Agreement and to perform the agreements contained in this Agreement, and (c) the person signing this Agreement on behalf of such party is authorized to execute and deliver this Agreement on behalf of such party. 13. SECTION HEADINGS. The section headings contained in this Agreement are descriptive only and shall not be used to interpret, expand, modify, explain or limit any of the provisions of this Agreement. 14. CONDITION PRECEDENT. This Agreement is conditioned upon approval by the Board of County Commissioners, in and for Monroe County. Counsel for Monroe County and Division of Airport staff shall jointly recommend approval of this Agreement by the Board of County Commissioners. AGREED to this . day of August, 2020. 3 CCIUNTX QF Mt)NRQE K2M;DESIGN,INC. By its thariz signato y its aut v to Peden J Mer` o, tan:A.Scherer,�Esq. ssxstanmt �Ittomey Counsel for t?M Design,Inc. r, (SEAL) _; itGo BOARD OF'COUNTY COivt1VIISSIONERS; Attest KEYIIV MADC?K,Clerk MONROE CQ t tl'+T Y,,,'., As etY Clerk` ' Iay�iir�Heathec Cnthers. lows st `�A on A�Q- £ i is r 4.£ G r r � an AS A £. johWeg5wily OYU,MANIRTO f '"N? i t ,�,,,. £ ,:£ r £ j � £ � r i not £' as r s, a „ " ,,,'r,t � , ,. ,,,. � ,. ,..,..,.-. .„, , _�. r-, ,t ,, ,, ,,, s, ,, ,.. it ., .., -, r <..,. r - l_ ,.t - _(i-_ < u }} '1 � {1} 11 ��� ��--- - � - - _ `£a��' ` }�)£ � ➢qt�t d� j !,£�s £ �1 s i �;r•a ££s� � C t „I IF � £,S�,s�y'i, - -` -.ti-k - _ t - `�� F .._�� ll,(ttt���l is��n'•:-_,£ �ti ;1ns (if � tf i£�it,_£t i i 1,, � it_ 4dt ,,if i i:I•Y; t -= - >�` � - =- __- f' �`� -EYE� �� r -i a u�t�lsl�lyl,��r+1£� S } £ £,�,��z£ 3 1 i��£1 t,£{ si ££a £�\£r tI 1�( i{y 1•,ti4 1,£.Yj s{,, — _ - - — _ - -.. � \ ��`:_I s�4 � lci�) it�f iVl�(.:5 � t sl9i ���S1r i 1 d� � £�£ !`-•_.� �r �r li£t� _�s £t yy� 2'hU\ — � +,_-� s��s3•°jjj, ��>� t{S�#3)l��{!\EI���riY��}! ``£I � ;:1 i(\ s it fl£ I s ss }�13,.� ;tr �i��� sj ?����a� a S.2 � � �, BOARD OF COUNTY COMMISSIONERS County of Monroe � ��r�i �r � s�� Mayor Heather Carruthers,District 3 The Florida.Keys Mayor Pro Tem Michelle Coldiron,District 2 Craig Cates,District 1 David Rice,District 4 Sylvia J.Murphy,District 5 County Commission Meeting August 19, 2020 Agenda Item Number: S.2 Agenda Item Summary #7223 BULK ITEM: Yes DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Richard Strickland (305) 809-5200 N/A AGENDA ITEM WORDING: Approval of a prelitigation settlement agreement with K2M Design, Inc. to resolve issues arising from design of the Customs Terminal Security Enhancements at Key West International Airport, through which K2M will pay $150,000 to resolve all claims. ITEM BACKGROUND: Monroe County entered into continuing services contract with K2M Design, Inc. on December 19, 2009. Pursuant to that agreement, the County then entered into a design services agreement with K2M on March 21, 2012 for architectural services for the Customs Terminal Security Enhancements project. Upon completion of the project, the County filed an errors and omissions claim related to K2M's work on the project. On May 7, 2020, K2M suggested, and County staff agreed to, using the services of a mediator in order to resolve the county's claim. In order to keep the County's options open in the event the mediation was unsuccessful, the County Attorney's Office asked for and received approval to initiate litigation at the May 20, 2020 BOCC meeting. The County and K2M subsequently agreed to use Bruce Alexander to mediate the dispute. The parties mediated on August 10, 2020. K2M agreed to settle the County's claims by paying $150,000. Present at the mediation were the mediator-Bruce Alexander, K2M's representative— Steve Maloney, K2M's insurance adjuster, Richard Strickland, Cary Knight, Pedro Mercado and the Jacobs Engineer on the project—Ryan Forney. County staff present at the mediation all agreed to the settlement amount, subject to BOCC approval. The proposed settlement precludes the need to pursue any further action beyond this agenda item. PREVIOUS RELEVANT BOCC ACTION: Approved the continuing services agreement dated December 19, 2009, approved the Design Services Agreement dated February 10, 2012, approved amendment 41 dated February 19, 2015 reducing the scope of work, approved amendment# 2 dated November 10, 2015 and amendment 43 dated April 11, 2016. On May 20, 2020, the BOCC authorized the County Attorney to initiate litigation. CONTRACT/AGREEMENT CHANGES: Packet Pg. 3481 S.2 N/A STAFF RECOMMENDATION: The County Attorney recommends approval of the settlement agreement. DOCUMENTATION: Settlement Agreement- August 10, 2020 executed FINANCIAL IMPACT: Effective Date: N/A Expiration Date: N/A Total Dollar Value of Contract: N/A Total Cost to County: N/A Current Year Portion: N/A Budgeted: N/A Source of Funds: Pursuant to attached settlement agreement CPI: N/A Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: YES If yes, amount: $150,000 to be deposited into the Key Grant: N/A West airport general operating accounts fund County Match: N/A Insurance Required: N/A Additional Details: N/A REVIEWED BY: Bob Shillinger Completed 08/11/2020 10:26 AM Budget and Finance Completed 08/11/2020 11:05 AM Kathy Peters Completed 08/11/2020 12:13 PM Board of County Commissioners Pending 08/19/2020 9:00 AM Packet Pg. 3482 S.2.ai MEDIATION SETTLEMENT AGREEMENT THIS MEDIATION SETTLEMENT AGREEMENT, dated this 10" day of August, 2020, was made and entered into by and between COUNTY OF MONROE ("MONROE") and K2M DESIGN, INC. ('`K2M") (collectively referred to as the "Parties"). PURPOSE The parties to this Mediation Settlement Agreement (the "Agreement") acknowledge that the purpose of this Agreement is to memorialize the resolution of all disputes of whatever nature asserted by and between the parties arising out of or relating to the Terminal Security E Enhancements Phases I1 and III at the Key West International Airport ("Project") and all services y 0 performed by K2M for MONROE pursuant to the Design Services Agreement with MBI/K2M Architecture for Customs Terminal Security Enhancements, dated February 10, 2012 (the "Contract"). 2 AGREEMENT W CD CD The Parties agree as follows: N 1. SETTLEMENT SUM. K2M agrees to pay MONROE the sum of One Hundred Fifty Thousand Dollars and zero cents ($1 50,000.00) (the "Settlement Sum") as full and final settlement of the disputes between the Parties. This Settlement is conditioned upon approval by E the Board of County Commissioners in and for Monroe County. Counsel for MONROE will recommend that these Settlement terms be approved by the Board of County Commissioners. E The Settlement Sum shall be made payable to Monroe County Board Of County Commissioners, within thirty(30) days of approval of the Agreement, and shall be paid by check or wire transfer. 2. ATTORNEY'S FEES. All parties are to bear their own attorneys' fees and costs incurred in this Action and equally share the cost of the mediator. I Packet Pg. 3483 S.2.ai 3. RELEASE. Other than with respect to the remaining obligations contained herein, the Parties do, as to one another, release each other from any and all claims, demands, and damages, whether arising out of law or equity, and whether previously asserted or unasserted, known or unknown, latent or patent, arising out of or relating to the Project and/or the Contract. 4. NON-DISPARAGEMENT. Each party agrees to refrain from any disparaging comments, verbal or in writing, as to one another. 5. AGREEMENT COMPROMISES DISPUTED CLAIMS. This Agreement is made E and entered by the Parties as a compromise of disputed claims between them. None of this y 0 Agreement, the payment provided by it, nor any document, pleading or paper prepared and 2 signed pursuant to the provisions of this Agreement shall constitute or be construed or asserted as an admission of liability on the part of any Party. 2 6. GOVERNING LAW. This Agreement shall be governed and construed in x N accordance with the laws of the State of Florida. 7. JURISDICTION AND VENUE. Any and all legal actions arising from or relating to this Agreement shall be commenced in Monroe County, Florida. 8. DRAFTING OF THE AGREEMENT. The parties participated in the drafting of E this Agreement and/or had it reviewed by their respective counsel. Accordingly, no presumption shall be given in favor of or against, any party in interpreting this Agreement and the normal rule E 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. E 9. SEVERABILITY. If any provision of this Agreement is found to be unenforceable, the remaining provisions hereof shall nevertheless be carried into effect. 2 Packet Pg. 3484 S.2.ai 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties hereto, supersedes any prior agreement between the parties, whether written or oral, and may not be changed, altered or modified except in writing and executed by the parties hereto. Each party acknowledges that no representation, inducement, promises or agreements, orally or otherwise, was made by any party, or anyone acting on behalf of any party, unless such representation, inducement, promises or agreements are embodied in this Agreement. IL REPRESENTATION BY COUNSEL.. Each party was represented by independent counsel in this matter or had the opportunity to consult with independent counsel. E Furthermore, the parties obtained advice from said counsel concerning the meaning, scope and y 0 effect of this Agreement, or voluntarily waived such an opportunity. 12. AUTHORIZATION AND AUTHORITY. Each party represents and warrants to the other that: (a) it is duly authorized and competent to execute this Agreement, (b) it has all necessary corporate power and authority to enter into this Agreement and to perform the X N agreements contained in this Agreement, and (c) the person signing this Agreement on behalf of N such party is authorized to execute and deliver this Agreement on behalf of such party. 13. SECTION HEADINGS. The section headings contained in this Agreement are descriptive only and shall not be used to interpret, expand, modify, explain or limit any of the provisions of this Agreement. 14. CONDITION PRECEDENT. This Agreement is conditioned upon approval by the Board of County Commissioners, in and for Monroe County. Counsel for Monroe County and Division of Airport staff shall jointly recommend approval of this Agreement by the Board of County Commissioners. AGREED to this day of August, 2020. 3 Packet Pg. 3485 S.2.ai COUNTY OF MONROE K2M DESIGN, INC. 10'Byv its thoriz d signator By its aut or i n toy cv Pedro J. Mercado, Esq. Matan A. Scheier, Esq. Assistant County Attorney Counsel for K2M Design, Inc. 03 (SEAL) BOARD OF COUNTY COMMISSIONERS, Attest: KEVIN MADOK, Clerk MONROE COUNTY E Deputy Clerk Mayor Heather Carruthers x w CD CD 4 Packet Pg. 3486