Item T06 T.6
County �� � .�� �y,4 ' �, "tr, BOARD OF COUNTY COMMISSIONERS
Mayor Michelle Coldiron,District 2
�1 `ll Mayor Pro Tem David Rice,District 4
Tire Florida.Keys ��� � � Craig Cates,District 1
Eddie Martinez,District 3
w Mike Forster,District 5
County Commission Meeting
February 17, 2021
Agenda Item Number: T.6
Agenda Item Summary #7872
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Derek Howard (305)292-3470
N/A
AGENDA ITEM WORDING: A Resolution of the Board of County Commissioners of Monroe
County, Florida Approving a Settlement and Release Agreement on Trial Level Attorneys' Fees and
Costs with Donald Davis and Smith Hawks LLC in Thomas Collins et. al. and Donald Davis v.
Monroe County and State of Florida.
ITEM BACKGROUND:
The Settlement and Release Agreement provides for the settlement of Donald Davis' motion for trial
level attorneys' fees and costs, which is the only remaining issue to be resolved in Davis' inverse
condemnation litigation against Monroe County and the State of Florida. Monroe County has
already paid its share of the Final Judgment and appellate level attorneys' fees and costs. Under the
Settlement Agreement, the parties agree that the total amount of trial level attorneys' fees and costs
due to Davis from the County and State is $109,382.91. The County is agreeing to pay Davis the
full amount, and to separately seek reimbursement from the State for the State's share of$54,691.46.
PREVIOUS RELEVANT BOCC ACTION:
On May 20, 2020, the BOCC passed Resolution No. 147-2020 authorizing payment of attorneys'
fees and costs at the appellate level as to Donald Davis to Smith Hawks PL.
On August 19, 2020, the BOCC passed Resolution No. 227-2020, approving a settlement and release
agreement between the County and State that resolved all claims between the parties in the Davis
litigation, exclusive of attorneys' fees and costs.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Packet Pg. 3691
T.6
3 County and Davis Settlement and Release Agreement
Februrary 2021 Resolution Approving Settlement and Release Agreement in Davis
Resolution 147-2020
Resolution 227-2020
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Bob Shillinger Completed 02/08/2021 5:01 PM
Derek Howard Completed 02/08/2021 5:04 PM
Purchasing Completed 02/09/2021 8:07 AM
Budget and Finance Completed 02/09/2021 8:41 AM
Maria Slavik Completed 02/09/2021 9:17 AM
Liz Yongue Completed 02/09/2021 9:35 AM
Board of County Commissioners Pending 02/17/2021 9:00 AM
Packet Pg. 3692
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IN THE CIRCUIT COURT OF THE SIXTEEN JUDICIAL CIRCUIT IN
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AND FOR MONROE COUNTY, FLORIDA W
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THOMAS F. COLLINS , et al., and 0
DONALD DAVIS, �C
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Plaintiffs,
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VS. CASE NO. CA-M-04-379
MONROE COUNTY, a Political Subdivision y
of the State of Florida, a
and
STATE OF FLORIDA
Defendants. w
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is made and entered into by
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Donald Davis ("Davis") and Smith Hawks PL (collectively "Releasors"), and Monroe County, 2
Florida also referred to herein as "Releasee"). The purpose of this Agreement is to settle any and
all claims for an award of attorneys' fees and costs against Monroe County and the State of
Florida in connection with the above-captioned litigation (the "Davis Litigation"), including, but
not limited to, any claim under or related to Davis' Motion for Attorney Fees and Costs (dated
February 28, 2017) or the Stipulation of Settlement(dated August 29, 2016). )
WHEREAS, the above-captioned suit was filed in 2004 by eleven (11) separate plaintiffs .�
against Monroe County, alleging inverse condemnation of their properties through the imposition
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of the County's Rate-of-Growth Ordinance (ROGO), and plaintiffs added the State of Florida as
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a defendant in their Second Amendment by Interlineation to First Amended Complaint in 2006;
and
WHEREAS, all the plaintiffs, including Davis, were represented at the trial level by E
0
Andrew M. Tobin, Esq. (hereinafter "Tobin") and James S. Mattson, Esq. (hereinafter
0
"Mattson"); and a
WHEREAS, Davis entered into a contingency fee agreement with Tobin and Mattson on
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October 6, 2004, that provided, inter alia, as follows:
If CLIENT obtains a final judgment on compensation, or accepts a .�
monetary settlement from a condemning authority or a third party,
ATTORNEYS' compensation shall be based on the difference
between the judgment or settlement amount (not including the
amounts designated as "attorneys' fees" or "costs"), and the last
bona-fide, written offer to purchase the Subject Property by the U)
condemning authority, and received by CLIENT before the date 0
CLIENT signed this fee agreement. This difference is defined as >
CLIENT's `Benefit." The last bona-fed written offer from a 2
condemning authority was $35,000 . . .
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ATTORNEYS shall be entitled to compensation equal to 33% of a
CLIENT's benefit up to $250,000, and 25% of any portion of the
benefit between $250,000 and $1 million, and 20% of any portion
of the benefit exceeding $1 million. In cases where the Court
awards attorneys' fees as part of a final judgment using statutory
factors in § 73.092, Fla. Stat., CLIENT agrees to pay
ATTORNEYS the greater of the Court-awarded fees or the .�
compensation set forth in the preceding sentence.
WHEREAS, following a liability trial in April 2011, the trial court entered its Final
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Judgment Denying and Granting Liability on October 14, 2011, holding that Davis was the only
landowner to establish that a regulatory taking of his property occurred; and
WHEREAS, on August 4, 2016, the trial court directed the parties to mediation, and on
August 29, 2016, the parties entered into the Stipulation of Settlement agreeing (a) that for 0
purposes of calculating damages, the fair market value of the subject property on July 17, 2002
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(the date of taking), was one hundred seventy-five thousand dollars ($175,000.00) and (b)
"Plaintiff Davis is entitled to recovery attorneys' fees and costs incurred, which the court shall
determine in a separate hearing if Plaintiff Donald Davis is ultimately the prevailing part"; and E
0
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for
0
Davis (hereinafter "Davis Final Judgment") reaffirming the court's finding of inverse a
condemnation liability, providing for compensation, and "retaining jurisdiction to determine any
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entitlement to costs and attorneys' fees"; and
WHEREAS, on February 28, 2017, Davis filed his Motion for Attorneys' Fees and Costs, .�
seeking "entry of an order finding that Plaintiff is entitled to an award of attorneys' fees and
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costs, and reserving jurisdiction to determine the amount of attorneys' fees and costs at a
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separate hearing"; and 0
WHEREAS on March 7 2017 Monroe County and the State of Florida appealed the
Davis Final Judgment to the Third District of Court of Appeal; and
WHEREAS, on August 25, 2017, Tobin and Mattson filed a Notice of Attorneys'
Charging Lien and subsequently amended that notice on October 20, 2020; and
WHEREAS, Davis discharged Tobin and Mattson for good cause shortly after the appeal
of the Davis Final Judgment was filed, and Tobin filed a Motion to Withdraw As Attorney Of
Record on October 20, 2017, that was granted by the Third District; and
WHEREAS, on October 17, 2017, Tobin and Mattson filed a "Motion to Confirm
Attorneys' Charging Lien and To Require Proceeds To Be Held In Escrow"; and
WHEREAS, Davis was represented at the appellate level by Smith Hawks, P.L. and
incurred $68,627.11 in attorneys' fees and costs; and 0
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WHEREAS, on October 2, 2019, the Third District per curiam affirmed the Davis Final
Judgment and conditionally granted Davis' motion for appellate attorneys' fees; and
WHEREAS, on November 22, 2019, Monroe County individually paid into the court E
0
registry $375,714.06, which was the total amount of the Final Judgment as to liability and just
0
compensation, exclusive of attorneys' fees and costs, together with statutory interest, and an a
additional $5,643.00 was paid by the County to cover the Court Registry Services Charges; and
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WHEREAS, on November 22, 2019, the Clerk of County Court issued a Satisfaction of
Judgment; and .�
WHEREAS, in May 2019, Monroe County, Davis, and Smith Hawks P.L. entered into a
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Settlement and Release Agreement to settle a claim against Monroe County for appellate
v)
attorneys' fees and costs incurred by Davis based on Smith Hawks P.L.'s representation of him 0
in the above-captioned matter; and 2
WHEREAS, Smith Hawks P.L. agreed to a reduction in fees and costs bringing the total
amount to $66,951.11; and
WHEREAS, it was the intention of the parties to the May 2019 Settlement and Release
Agreement that "Monroe County will separately pay 50% of Smith Hawks' appellate fees in the
amount of$33,475.56, and the Releasors will seek payment of the remaining 50% from the State
of Florida"; and
WHEREAS, the parties to the May 2019 Settlement and Release Agreement stipulated (1)
"Monroe County will individually pay Smith Hawks, P.L., $33,475.56, which is 50% of the
firm's total reduced fees and costs related to the firm's representation of Donald Davis in the
above-captioned matter" and (2) "[u]pon payment of $33,475.56 by Monroe County as set forth 0
above, Donald Davis and Smith Hawks, P.L. (individually and collectively) release Monroe
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L6.a
County from any past, present or future claims or entitlements the Releasors may have for
attorneys' fees or costs related to the firm's representation of Donald Davis in the above-
captioned matter"; and E
0
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County,
0
Florida unanimously passed Resolution No. 147-2020, authorizing payment of attorneys' fees a
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and costs pursuant to the May 2019 Settlement and Release Agreement, and the $33,475.56
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amount was subsequently paid by the County; and
WHEREAS, the State of Florida still owes its 50% share of Davis' appellate fees and .�
costs; and
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WHEREAS, based on the contingency fee agreement with Mattson and Tobin, and
assuming arguendo that the agreement remains valid, Davis asserts that he incurred $105,178.50 0
76
in attorneys' fees in the litigation of the above-captioned matter at the trial level; and 2
WHEREAS, Monroe County does not admit that Davis actually incurred attorneys' fees
and costs under his contingency fee agreement with Tobin and Mattson but seek to avoid the
time and expense in litigating the issue; and
WHEREAS, the contingency fee agreement with Mattson and Tobin effectively
incorporated the payment schedule set forth in § 73.092(1)(c), Fla. Stat.; and
WHEREAS, § 73.092(2) provides factors that a court should consider "[i]n assessing
attorney's fees incurred in defeating an order of taking, or for apportionment, or other
supplemental proceedings," and the parties agree that the those factors are inapplicable to this
inverse condemnation case where Davis obtained a monetary benefit; and
WHEREAS, Tobin and Mattson did not through their efforts obtain for Davis any 0
nonmonetary benefits; and
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L6.a
WHEREAS, Davis incurred $4,204.41 in costs in the litigation of the above-captioned
matter at the trial level, which includes all incurred costs and obligations related to Davis'
representation by Tobin and Mattson; and E
0
WHEREAS, the Davis Final Judgment found Monroe County and the State jointly and
0
severally liable, and the parties recognize that the State would be liable to pay a share of any a
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award of attorneys' fees and costs; and
WHEREAS, in the interest of efficiency and more swiftly concluding the above-captioned
litigation, Monroe County is agreeing to pay Davis the entire total of attorneys' fees and costs in .�
the amount of $109,382.91 and to separately seek reimbursement directly from the State for the
E
State's share ($54,691.46); and
WHEREAS, Releasors and Monroe County acknowledge that Tobin and Mattson have 0
asserted a demand for attorneys' fees in an amount greater than $105,178.50 and a demand for 2
costs in an amount greater than $4,204.41; and
WHEREAS, Releasors and Monroe County agree that the fee and costs amounts demanded
by Tobin and Mattson are unsupported and unreasonable, and that the conduct of Tobin
unreasonably prolonged the resolution of the fees and costs issue; and
WHEREAS, on November 4, 2020, the circuit court entered an Order that (a) deferred
ruling on Davis' Motion to Release Charging Lien because liability for attorneys' fees has not
yet been determined in an order by the court and (b) states Tobin and Mattson's charging lien
shall dissolve automatically without further court action on March 1, 2021, unless liability for
attorneys' fees is determined by agreement or through an evidentiary hearing on or before
February 28, 2021; and c
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WHEREAS, on January 26, 2021, the circuit court entered an Amended Order, which
amended the November 4, 2020's Order's provision regarding dissolution of the charging lien as
follows: "James S. Mattson, Esq. and Andrew Tobin, Esq.'s Charging Lien filed on August 25, E
0
2017, shall be dissolved automatically without further Court action unless liability for attorney's
0
fees is determined by agreement or through an evidentiary hearing on or before May 4, 2021;" a
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2
and
WHEREAS, Releasors and Monroe County acknowledge that on November 25, 2020,
Tobin and Mattson filed a Petition for Writ of Certiorari in the Third District directed to the .�
November 4, 2020 Order and agree that the pendency of that petition and its outcome do not
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impact or alter the terms of this Agreement; and
WHEREAS, on January 5, 2021, Davis, Mattson and Tobin entered into an Escrow 0
Agreement providing for the release of funds paid into the court registry, stating in pertinent art: c
(a) "The Parties desire to release One Hundred and Five Thousand and One Hundred and
Seventy-eight Dollars and fifty cents ($105,178.50) (the "Escrow Funds") from the court registry
to be held in escrow by Escrow Agent until the matter of prevailing party attorney's fees is
resolved in Circuit Court Case No. CA-M-04-379 (the "Resolution") and (b) "The Parties desire
to release the sum of $270,535.56 (the balance of the funds) from the court registry to the
Plaintiff'; and
WHEREAS, on January 11, 2021, Tobin and Mattson filed their Attorneys' Motion to )
Release Funds seeking an Order Directing the Clerk to Disburse Funds, in accordance with the
Escrow Agreement; and
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WHEREAS, Releasors and Monroe County agree that the pendency and outcome of the
Motion to Release Funds, as well as the Escrow Agreement and any release of funds from the
court registry, do no impact or alter the terms of this Agreement; and E
0
WHEREAS, Releasors agree to release Monroe County and the State of Florida from any
0
past, present, or future claims or entitlements to attorneys' fees or costs in the above-captioned a
matter by Releasors, Tobin, or Mattson; and
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WHEREAS, Releasors agree to indemnify Monroe County and the State of Florida as to
any claims against them for attorneys' fees or costs in connection with the above-captioned .�
matter asserted by Tobin, Mattson, or any other attorney; and
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NOW THEREFORE, in consideration of the foregoing premises, which constitute
material provisions of this Agreement and not mere recitals, and of mutual agreements, 0
covenants, and promises as may be set forth herein, and for other good, adequate, and sufficient 2
consideration described herein, the receipt and sufficiency of which are hereby acknowledged, F
the parties hereto agree and stipulate to settle as follows:
PAYMENT BY RELEASEES
All parties agree that the total amount of trial level attorneys' fees and costs due to Davis
in the above-captioned matter is $109,382.91.
Upon Monroe County's payment of $109.382.91 as set forth above, Releasors will release a�
the County and the State of Florida from any past, present, or future claims or entitlements they
may have for trial-level attorneys' fees or costs, including, but not limited to, those related to .�
Tobin and Mattson's representation of Davis in the above-captioned matter. Davis further agrees
0
to indemnify Monroe County and the State of Florida against any claims for attorneys' fees or
costs that Tobin or Mattson may seek directly from Monroe County or the State of Florida. a
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RELEASE BY RELEASORS
CD
W
Once the settlement amount as enumerated above is paid to Releasors, Releasors will
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fully, forever, voluntarily, knowingly, and upon advice of counsel, expressly release, remise, 0
acquit, satisfy and discharge Releasees and all of their attorneys, agents, servants, employees,
associates, administrators, successors, predecessors, officers, directors, representatives, insurers E
and assigns from any and all claims, crossclaims and third-party claims, and any demands,
damages, actions, causes of action, claims, suits, debts, dues, sums of money, accounts, a
reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, representations and restitutions, a
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whatsoever in law or in equity, concerning the Davis Litigation, which Releasors ever had, have, u
4-
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or will have, or which they or their successors, administrators and assigns hereinafter can, shall,
2
or may have, for or by reason of any matter, cause, act, transaction or thing whatsoever, related
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thereto, connected with, arising out of, referring to, or in any manner relevant to or which has
a�
been or could have been asserted by any of the parties hereto as a result of the claims and/or 2
series of claims which gave rise to these disputes, relationships, and controversies, including the
Davis Litigation, and any and all contracts, whether oral or written, between the parties hereto,
relating to said matters, and in particular on account of all damages, economic or otherwise,
known or unknown, together with any accrued statutory interest, which resulted or may in the a�
future result, which are in any way connected with, related to, or arise from, the liability and
damages claim of Releasors. .�
UNKOWN CLAIMS BY RELEASOR
0
Releasors acknowledge that they execute this Agreement after consultation with, and
a�
upon the advice of, counsel. Releasors acknowledge that during said consultation and
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representation their counsel apprised them of the legal effect of the release and waiver of
unknown or unsuspected claims as to Monroe County and the State of Florida. Having been so
apprised, they nevertheless elect to and do assume all risks for claims as to Releasees heretofore E
0
or hereafter arising, known or unknown, relating to the subject matters contained herein, and
0
Releasors expressly include within the scope of this Agreement all such claims as to Monroe a
County and the State of Florida, and expressly waives any right they may have to dispute the
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scope of this Agreement on the basis of any statutory or common law grounds addressing the
issue of the release of unknown or unsuspected claims as to Monroe County and the State of .�
Florida.
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The parties agree that nothing in this agreement shall be construed as a waiver of Davis'
claims to unpaid appellate fees by the State of Florida. 0
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2
NO ADMISSION OF LIABILITY
It is understood and agreed that this Agreement, any considerations given or accepted in
0)
connection with it, and the promises and covenants made in it, are all made, given, and accepted 2
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in settlement and compromise of disputed claims and are not an admission of liability by any
a�
party. Neither the execution nor performance of this Agreement, nor any of its terms or .�
provisions, will be deemed a presumption, concession, statement, or admission of any fact,
a�
liability, fault, or wrongdoing of any kind by either Releasor, Monroe County, or the State of .2
Florida, and neither this Agreement nor any of its terms can be used in any legal or equitable
proceeding, other than to enforce the provisions of this Agreement. The decision to settle a case
may reflect the economic practicalities pertaining to the cost of litigation.
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ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties and supersedes all
prior communications, discussions, agreements, or understandings between the parties. This
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Agreement is entered into without reliance upon any statement or representation of any parry
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hereby released except for those contained in this Agreement. Any oral or written promises or
assurances not contained in this Agreement are waived, abandoned, withdrawn, and without 2
legal effect. Further, the parties acknowledge that no other parry, or agent, or attorney of any
other parry, has made any promise, representation, or warranty whatsoever, express or implied,
not contained herein concerning the subject matter hereof, to induce the other parry to execute
this Agreement, and the parties acknowledge they have not executed this Agreement in reliance a�
upon any such promise, representation, or warranty not contained herein. -
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MODIFICATION IN WRITING
2
This Agreement embodies all the settlement agreements of the parties and may be
amended, modified, altered, or changed only by a verified written instrument executed by all
0)
parties wherein specific reference is made to this Agreement. 2
GOVERNING LAW
This Agreement was negotiated and executed in the State of Florida and shall be .�
construed and enforced in accordance with the laws of the State of Florida, without regard to
a�
conflicts of laws principles.
VENUE
For any legal dispute arising out of this Agreement, the proper venue for any action will
be in the Circuit Court of the Sixteenth Judicial Circuit Court of Florida, in and for Monroe
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County, Florida.
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SUCCESSORS AND ASSIGNS
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Except as may be otherwise set forth herein, the parties to this Agreement agree and
covenant that this Agreement is binding on the parties, and their subsidiaries, representatives, E
0
and successors in-interest, and all other persons, firms, corporations, agencies, or entities with
0
whom any of the former have been, are now, or may hereafter be affiliated. Releasors do hereby a
covenant, warrant, and represent that they have not assigned, in whole or in part, any right,
claim, or cause of action to any other person or parry which might be asserted in the future
against Releasee. .�
CONSTRUCTION OF TERMS
As used in this Agreement, the singular shall include the plural, the plural shall include
the singular, and the use of any gender shall include all genders as the context may admit or 0
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require. The language of all parts of this Agreement shall be construed as a whole and according 2
to its plain meaning.
INTERPRETATION OF SETTLEMENT AND RELEASE AGREEMENT
In the event of litigation between the parties, this Agreement shall not be strictly
interpreted or construed against any party due to that parry having prepared this Agreement, as it
is acknowledged that all parties participated in the negotiation and preparation of this Agreement
and have been represented by experienced counsel.
SEVERABILITY
Any provision of this Agreement declared illegal or unenforceable by any court of
competent jurisdiction that cannot be modified to be enforceable will immediately become null
and void, leaving the remainder of this Agreement in full force and effect. 0
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SECTION HEADINGS
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All section or paragraph headings appearing in this Agreement have been inserted for the
sole purpose of convenience and ready reference of the parties. They do not purport to, and shall E
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not be deemed to, define, limit, or extend the scope or intent of the sections and paragraphs to
0
which they may pertain.
MULTIPLE ORIGINALS
Multiple copies of this Agreement may be executed by the parties hereto, each of which
shall be deemed to be an original .�
COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an
original, and all of which together will constitute a single document. Execution of facsimile 0
copies, scanned copies, and other reproductions will be acceptable as counterparts. 2
AUTHORITY TO ENTER INTO AGREEMENT
By their signatures, the undersigned warrant and represent they are authorized to enter
into this Agreement on behalf of their respective parties and to bind their respective parties to the
terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
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first written below:
MONROE COUNTY, FLORIDA
MICHELLE COLDIRON
MONROE COUNTY MAYOR
ROBERT B. SHIL,LINGER, FBN: 058262 0
COUNTY ATTORNEY
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Monroe County Attorney's Office
1111 12th Street, Suite 408
Key West, FL 33041-1026 U-
Dated: February 2021 E
0
0
SMITH HAWKS, PL
BARTON SMITH
Smith Hawks PL
a�
138 Simonton Street
m
Key West, FL 33040
Dated: February , 2021 0
DONALD DAVIS 2
Address:
Dated: February 2021
MONROE COUNTY ATTORNEY
APPROVEDS TO FORM:
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ASSIST T-��&NITY ATTORNEY
ATE
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RESOLUTION NO. -2021
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
APPROVING THE SETTLEMENT AND RELEASE
AGREEMENT ON TRIAL-LEVEL ATTORNEYS FEES' AND
COSTS WITH DONALD DAVIS AND SMITH HAWKS PL IN 03
THOMAS COLLINS ET. AL AND DONALD DAVIS V.
MONROE COUNTY AND STATE OF FLORIDA AND
AUTHORIZING PAYMENT OF SUCH FEES AND COSTS.
WHEREAS, on October 14, 2011, the Circuit Court entered its Final Judgment Denying and 0
0.
Granting Liability in Thomas F. Collins et. al. and Donald Davis v. Monroe County and State of
Florida in Circuit Court Case NO. 04-CA-379-M in which the County and State prevailed as to
all plaintiffs except for Donald Davis; and
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for S
Plaintiff Donald Davis (hereinafter "Final Judgment") in the litigation reaffirming the court's
finding of inverse condemnation liability, finding that Monroe County and State of Florida were E
jointly and severally liable, providing for compensation, and retaining jurisdiction to determine 2,
any entitlement to attorneys' fees and costs; and
WHEREAS, on February 28, 2017, Davis filed in the trial court his Motion for Attorneys' Fees
and Costs that remains pending; and
WHEREAS, on November 22, 2019, Monroe County individually paid into the court registry
$375,714.06, which was the total amount of Final Judgment as to liability and just compensation,
exclusive of attorney's fees and costs, together with statutory interest; and a�
WHEREAS, on November 22, 2019,the Clerk of County Court issued a Satisfaction of Judgment;
and
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County, Florida
unanimously passed Resolution No. 147-2020, authorizing payment of attorney's fees and costs at
the appellate level as to Plaintiff Donald Davis to Smith Hawks,P.L. and those fees and costs were
subsequently paid; and
WHEREAS, on August 19,2020,the Board of County Commissioners of Monroe County, Florida
passed Resolution No. 227-2020, approving a settlement and release agreement between the
County and State that resolved all claims between the parties in the Davis litigation, exclusive of ,
attorneys' fees and costs, and the State subsequently reimbursed the County $190,678.53 for its
50% of the Final Judgment that the County individually paid; and 2
WHEREAS, the attached Settlement and Release Agreement provides for the settlement of the
remaining issue of Davis' Motion for Attorneys' Fees and Costs at the trial level; and
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WHEREAS, under the Settlement and Release Agreement, the County is individually paying
Davis' claim to trial level attorneys' fees and costs in the amount of $109,382.91 with the C
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Packet Pg. 3707
expectation that the State will directly reimburse the County for the State's 50% share of this
amount; and 0'
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
1. The attached Settlement and Release Agreement attached hereto and incorporated herein a
as Exhibit 1 to this resolution is hereby approved, adopted, and ratified.
2. The Monroe County Clerk is authorized to pay Smith Hawks, P.L. $109,382.91.
4-
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, c
Florida, at a regular meeting held on the 17th day of February 2021.
2
Mayor Michelle Coldiron T)
Mayor Pro Tem David Rice
Commissioner Craig Cates
Commissioner Eddie Martinez
Commissioner Mike Forster E
BOARD OF COUNTY COMMISSIONERS y
OF MONROE COUNTY, FLORIDA m
BY:
Mayor Michelle Coldiron a
(SEAL) E
ATTEST: KEVIN MADOK, CLERK
By:
Deputy Clerk
0
N
CD
MONROE COUNTYATTORNEY
APPROVEDTFORM:-
DEREK
V1.1-90WARD
ASSISTANT,60UNTY ATTORNEY
- T _....
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RESOLUTION NO. 147-2020 .5
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
AUTHORIZING PAYMENT OF APPELLATE FEES AND U
COSTS IN THOMAS F. COLLINS ET AL., AND DONALD
DAVIS V.MONROE COUNTY AND STATE OF FLORIDA. y
0
WHEREAS,on February 15,2017,Circuit Judge Mark Jones entered a Final Judgment for
Plaintiff Donald Davis (hereinafter "Final Judgment") in Thomas F. Collins, et al. v. Monroe
County and State of Florida(Circuit Court Case No. 04-CA-379-M in the amount of$347,475.53
plus statutory interest from December 31,2016 until the judgment is satisfied;and
E
WHEREAS,the Final Judgment retained jurisdiction to determine entitlement to costs and
attorney's fees; and
0
WHEREAS, Monroe County and the State of Florida appealed the Final Judgment to the
Third District Court of Appeal and the Third District per curiam affirmed the Final Judgment on
October 2,2019; and
WHEREAS, on October 2, 2019, the Third District conditionally granted Donald Davis' w
motion for appellate attorney's fees; and
WHEREAS, the Final Judgment, exclusive of attorney's fees and costs, was satisfied on
November 22,2019;and
WHEREAS,Donald Davis was represented at the appellate level by Smith Hawks,P.L.and E
incurred $66,951.11 in attorney's fees and costs based on the firm's representation of him in the
matter;and
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0
WHEREAS,Monroe County has reached a settlement on appellate attorneys' fees and costs
with Donald Davis and Smith Hawks,P.L.wherein the County will pay the firm$33,475.56,which
is 50%of the firm's total fees and costs, upon receipt of a release by Mr. Davis and the firm as to
the remaining 50%, which would be separately paid by the State of Florida;
N
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NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
___COMMISSIONERS OF MONROE COUNTY,FLORIDA,
0
The Monroe County Clerk is authorized to pay Smith Hawks, P.L. $33,475.56.
0
Page 1 of 2
Packet Pg. 3709
L6.c
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting held on the 20th day of May,2020.
Mayor Heather Carruthers Yes
Mayor Pro Tern Michelle Coldiron Yes
Commissioner Craig Cates Yes y
Commissioner David Rice Yes o
Commissioner Sylvia Murphy Yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE CO NTY,FLORIDA
o
BY:
M or er Carruthers
(SEAL)
ATTEST: KEVIN MADOK,CLERK
By:
As Deputy Clerk
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Page 2 of 2
Packet Pg. 3710
T.6.d
RESOLUTION NO. 227 -2020
A RESOLUTION OF THE BOARD OF COUNTY y
COMMISSIONERS OF MONROE COUNTY, FLORIDA
APPROVING THE SETTLEMENT AND RELEASE
AGREEMENT WITH THE STATE OF FLORIDA IN THOMAS
F. COLLINS ET AL., AND DONALD DAVIS V. MONROE N
COUNTY AND STATE OF FLORIDA.
WHEREAS, on October 14, 2011, the Circuit Court entered its Final Judgment Denying
and Granting Liability in Thomas F. Collins et. al. and Donald Davis v. Monroe County and State v,
ofFlorida in Circuit Court Case NO.04-CA-379-M in which the County and State prevailed as to
all plaintiffs except for Donald Davis;and -
WHEREAS,on February 15,2017,Circuit Judge Mark Jones entered a Final Judgment for
Plaintiff Donald Davis (hereinafter "Final Judgment") in the litigation reaffirming the court's
finding of inverse condemnation liability, finding that Monroe County and State of Florida were
jointly and severally liable;and o
WHEREAS, on November 22, 2019, Monroe County individually paid into the court 0)
registry $375,714.06, which was the total amount of Final Judgment as to liability and just 2
compensation,exclusive of attorney's fees and costs,together with statutory interest;and
WHEREAS, on November 22, 2019, the Clerk of County Court issued a Satisfaction of
Judgment;and
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County,
Florida unanimously passed Resolution NO. 147-2020,authorizing payment of attorney's fees and
costs at the appellate level as to Plaintiff Donald Davis to Smith Hawks, P1. and those fees and m
costs were subsequently paid;and
WHEREAS,the parties are still litigating the entitlement and amount of attorney's fees and
costs as to Plaintiff Donald Davis at the trial level; and >
WHEREAS, the attached Settlement and Release Agreement provides for the global
settlement and release of all claims at both the trial and appellate levels in the Collins/Davis
litigation between Monroe County and the State of Florida, including the State's payment of its cv
fifty percent(50%) share of the Final Judgment to Monroe County;
N
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY,FLORIDA:
0
The attached Settlement and Release Agreement attached hereto and incorporated herein as
Exhibit 1.to this resolution is hereby approved,adopted,and ratified.
Pagel of 2
Packet Pg. 3711
T.6.d
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting held on the 19`h day of August,2020.
Mayor Heather Carruthers Yes
Mayor Pro Tem Michelle Coldiron Yes
Commissioner Craig Cates Yes N
Commissioner David Rice Yes
Commissioner Sylvia Murphy Yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY,FLORIDA
E
I
i BY:
May6r H r Carruthers
ATTEST: KEVIN MADOK,CLERIC
By:
As Deputy Clerk
MONROE A
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Page 2 of 2
Packet Pg. 3712
T.6.d
EXHIBIT 1.
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY,FLORIDA
THOMAS F.COLLINS et al.,and DONALD
DAVIS,
Plaintiffs,
0
V. Case No.:04-CA-379-M
MONROE COUNTY,a Political Subdivision
of the State of Florida,and the STATE OF
FLORIDA,
E
Defendants.
0
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by Monroe County, Florida (hereinafter known as "Releasor"), and State of Florida,
through the Department of Economic Opportunity ("hereinafter referred to as "Releasee"), (and
Releasor and Releasee shall be collectively referred to as the "Parties"). The purpose of this
Agreement is to provide for a global settlement and the release of all claims at both the trial and
appellate levels in the Davis Litigation between the Releasor and Releasee. This Agreement 0)
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specifically does not address or include any claims for costs and attorney's fees by Plaintiff
2
Donald Davis which may or may not be brought,ordered,or denied.
WHEREAS, various disputes, relationships, controversies, and claims exist between W
cv
Releasor and Release including those claims alleged in an action filed in 2004 in the Circuit Court
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of the Sixteenth Judicial Circuit in and for Monroe County, Florida in Case No. 2004-CA-379-M,
styled Thomas F. Collins and Patricia Collins, TIE; Donald Davis; Aurelia Del Valle and Maria
Del Valle, TIE; Hill Family Investments, Inc.; Richard J Johnson and Joann C. Johnson, TIE;
Robert A. Lomrance;Joseph Magrini and Elda S. Magrini, TIE; Keith P. Radenhausen; Frank J.
c
Page l of 9
Packet Pg. 3713
T.6.d
Schneider, Mary Ann Ricklin, and Romary Riordin, TIC; Hubert Tost and Marilyn Tost, TIE., and
Samuel I. Burstyn, P.A. v. Monroe County, a Political Subdivision of the State of Florida, and the
State of Florida (referred to herein as the "Davis Litigation"), wherein Plaintiff Davis is the only
remaining Plaintiff of the original eleven(11) real property owners; and N
WHEREAS, Releasee is contesting said suit and does not admit any liability whatsoever;
and
WHEREAS, on February 18, 2005, Releasor Monroe County filed a third-party claim
against Releasee State of Florida for indemnification, contribution, and subrogation. Plaintiffs
0
were granted leave to amend their Second Amended Complaint by Interlineation to add the State
0
of Florida as a Defendant on May 10, 2007.
WHEREAS, a liability trial was held on Plaintiff Davis' inverse condemnation claim. On
October 14, 2011, the trial court entered an Order finding that a permanent taking of Plaintiff y
Davis' real property had occurred as of July 17, 2002. On August 29, 2016, Plaintiff Davis and
Releasor Monroe County and Releasee State of Florida stipulated that the fair market value of his
real property as of July 17,2002,was$175,000.00.
WHEREAS, a Final Judgment for Plaintiff Davis was entered on February 15, 2017,
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reaffirming the court's finding of inverse condemnation liability, finding that Releasor Monroe
0.
County and Releasee State of Florida were jointly and severally liable, and affirming the agreed
amount as to valuation of the property. According to the Final Judgment, upon payment of the
cv
just compensation, title to Plaintiff Davis' real property shall pass to Releasor Monroe County and
N
Releasee State of Florida. p
WHEREAS, Releasor Monroe County and Releasee State of Florida appealed the Final
Judgment to the Third District Court of Appeals. On October 18, 2019, the mandate was issued
Page 2 of 9
Packet Pg. 3714
T.6.d
affirming the Final Judgment in favor of Plaintiff Davis and against Releasor Monroe County and
Reicasee State of Florida.
WHEREAS, on November 22, 2019, Releasor Monroe County individually paid into the
U
court registry $375,714.06, which was the total amount of the Final Judgment as to liability and
N
just compensation, exclusive of attorney's fees and costs, together with Statutory Interest. An
additional $5,643.00 was paid by Releasor Monroe County to cover the Court Registry Services
Charges.
WHEREAS,on November 22, 2019,the Clerk of the County Court issued a Satisfaction of
0
Judgment.
0
WHEREAS, Releasor Monroe County and Releasee State of Florida wish to resolve,settle,
and compromise all claims between them exclusive only of any claims for attorneys' fees and
costs that may be brought by the Plaintiff, Donald Davis, and avoid the cost of further litigation y
and the interruption or disruption of government business.
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS: in consideration of the
foregoing premises, which constitute material provisions of this Agreement and not mere recitals,
and of mutual agreements,covenants,and promises as may be set forth herein, and for other good,
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adequate, and sufficient consideration described herein, the receipt and sufficiency of which are
0.
hereby acknowledged,the Parties hereto agree and stipulate to settle their differences as follows:
PAYMENT BY RELEASES
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cv
The Parties agree that the amount of contribution the Releasee State of Florida shall make
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cv
to Releasor Monroe County in settlement of the Final Judgment is fifty percent (50%) of the just
compensation, interest, and Court Registry Services Charges, in the total amount of$190,678.53
(the "Settlement Amount"), subject to legislative appropriation, and exclusive of any later award,
if any,to Plaintiff Davis for Plaintiff s attorney's fees and costs.
Page 3 ❑f 9
Packet Pg. 3715
T.6.d
Releasor Monroe County through its legislative delegation will seek legislation in its
annual package of requested legislative action for the Settlement Amount as enumerated above,
and Releasee State of Florida, Department of Economic Opportunity, will not oppose such
U
legislative appropriation. However, Releasee State of Florida does not and cannot make any S
covenants, promises,agreements, or estimates as to whether that proposed legislation will become
law or when, or the amount of any such appropriation.
RELEASE BY RELEASOR
Once Releasee State of Florida's Settlement Amount as enumerated above is appropriated E
0
and paid to Monroe County, Releasor Monroe County fully, forever, and voluntarily, knowingly
0
and upon advice of counsel, expressly releases, remises, acquits, satisfies and forever discharges
Releasee State of Florida and all of its attorneys, agents, servants, employees, associates,
administrators, successors, predecessors, officers, directors, representatives, insurers and assigns, y
(herein collectively referred to as "Releasees"), from any and all claims, crossclaims and third
party claims (including but not limited to indemnification, contribution, and subrogation, and a
demand that the State of Florida defend Monroe County in this action and pay Releasor Monroe
County's attorney's fees and costs for such defense), and any demands, damages, actions, causes
0
of action,claims,suits,debts, dues, sums of money, accounts, reckonings, bonds,bills, specialties,
2
covenants, contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments,executions, representations and restitutions, whatsoever in law or in equity, concerning
CD
cv
the Davis Litigation, except any claims for costs or attorney's fees brought by Plaintiff Davis,
cv
which Releasor ever had, has, have, or which it or its successors, administrators and assigns o
hereinafter can, shall, or may have, for upon or by reason of any matter, cause, act,transaction or
thing whatsoever, related thereto, connected with, arising out of, referred to, or in any manner
relevant to or which has been or could have been asserted by any of the Parties hereto as a result of
Page 4 of 9
Packet Pg. 3716
T.ti.d
the claims and/or series of claims which gave rise to these disputes, relationships, and
controversies, including the Davis Litigation, and any and all contracts, whether oral or written,
between the Parties hereto, relating to said matters, and in particular on account of all damages,
U
economic or otherwise, known or unknown, together with any accrued statutory interest, which N
resulted or may in the future result, which are in any way connected with, related to,or arise from,
the liability and damages claim of Plaintiff Davis. Releasor Monroe County's release of claims y
against Releasees in this subparagraph does not include any later award, if any, to Plaintiff Davis
for Plaintiff's attorney's fees and costs. If Releasee State of Florida does not pay the Settlement
0
Amount to Monroe County within two(2) years of the date of this Agreement, then the entirety of
0
this Agreement(including the agreed to Settlement Amount)shall become null and void.
UNKNOWN CLAIMS OF RELEASOR
Releasor acknowledges this Agreement is executed by it after consultation with, and upon y
the advice of counsel. Releasor acknowledges during the course of said consultation and
representation that it was apprised by said counsel of the legal effect of the release or waiver of
unknown or unsuspected claims as to Releasees. Having been so apprised, it nevertheless elects to E
and does assume all risks for claims as to Releasees heretofore or hereafter arising, known or
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0
unknown, relating to the subject matters contained herein, and Releasor expressly includes within
2
0.
the scope of this Agreement all such claims as to Releasees, and expressly waives any right it may
have to dispute the scope of this Agreement on the basis of any statutory or common law grounds
cv
addressing the issue of the release of unknown or unsuspected claims as to Releasees.
cv
NO ADMISSION OF LIABILITY
0
It is understood and agreed that this Agreement, any considerations given or accepted in
connection with it, and the promises and covenants made in it,are all made,given,and accepted in
settlement and compromise of disputed claims and are not an admission of liability by any party.
Page 5 of 9
Packet Pg. 3717
T.6.d
Neither the execution nor performance of this Agreement, nor any of its terms or provisions, will
be deemed a presumption, concession, statement, or admission of any fact, liability, fault, or
wrongdoing of any kind by either Releasor or Releasees,and neither this Agreement nor any of its
U
terms can be used in any legal or equitable proceeding, other than to enforce the provisions of this N
Agreement. The decision to settle a case may reflect the economic practicalities pertaining to the
cost of litigation.
ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Parties and supersedes any
0
and all prior communications, discussions, agreements, or understandings between the Parties.
0
This Agreement is entered into without reliance upon any statement or representation of any party
hereby released except for those contained in this Agreement. Any oral or written promises or
assurances not contained in this Agreement are waived, abandoned, withdrawn, and without legal y
effect. Further, the Parties acknowledge that no other party, or agent, or attorney of any other
party, has made any promise, representation, or warranty whatsoever, express or implied, not
contained herein concerning the subject matter hereof, to induce the other party to execute this E
Agreement, and the Parties acknowledge they have not executed this Agreement in reliance upon
0
any such promise, representation,or warranty not contained herein.
2
MODIFICATION IN WRITING
This Agreement embodies all of the settlement agreements of the Parties and may be
N
amended, modified, altered, or changed only by a verified written instrument executed by both
cv
Parties wherein specific reference is made to this Agreement. o
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Page 6 of 9
Packet Pg. 3718
T.6.d
GOVERNING LAW
This Agreement was negotiated and executed in the State of Florida and shall be construed
and enforced in accordance with the laws of the State of Florida, without regard to conflicts of
U
laws principles. S
VENUE
For any legal dispute arising out of this Agreement,the proper venue for any action will be y
in the Circuit Court of the Second Judicial Circuit Court of Florida, in and for Leon County,
Florida. E
0
SUCCESSORS AND ASSIGNS
0
Except as may be otherwise set forth herein, the Parties to this Agreement agree and
0)
covenant that this Agreement is binding on the Parties, and their subsidiaries, representatives, and
successors in-interest, and all other persons, firms, corporations, agencies, or entities with whom y
any of the former have been, are now, or may hereafter be affiliated. Releasor does hereby
covenant, warrant and represent that it has not assigned, in whole or in part, any right, claim, or
cause of action to any other person or party which might be asserted in the future against m
Releasees.
0
CONSTRUCTION OF TERMS
2
As used in this Agreement, the singular shall include the plural, the plural shall include the
singular, and the use of any gender shall include all genders as the context may admit or require.
cv
The language of all parts of this Agreement shall be construed as a whole and according to its
cv
plain meaning. o
INTERPRETATION OF SETTLEMENT AND RELEASE AGREEMENT o
In the event of litigation between the Parties, this Agreement shall not be strictly
interpreted or construed against any party due to that party having prepared this Agreement,as it is
Page 7 of 9
Packet Pg. 3719
T.6.d
acknowledged that all Parties participated in the negotiation and preparation of this Agreement
and have been represented by experienced counsel.
SEVERABILITY
U
Any provision of this Agreement declared illegal or unenforceable by any court of
N
competent jurisdiction that cannot be modified to be enforceable will immediately become null
and void, leaving the remainder of this Agreement in full force and effect. y
SECTION HEADINGS
Any section or paragraph headings appearing in this Agreement has been inserted for the
0
sole purpose of convenience and ready reference of the Parties. They do not purport to, and shall
0
not be deemed to, define, limit, or extend the scope or intent of the sections and paragraphs to
which they may pertain.
MULTIPLE ORIGINALS y
Multiple copies of this Agreement may be executed by the Parties hereto, each of which
shall be deemed to be an original.
COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an
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0
original, and all of which together will constitute a single document. Execution of facsimile
2
copies,scanned copies,and other reproductions will be acceptable as counterparts.
AUTHORITY TO ENTER INTO AGREEMENT
cv
By their signatures, the undersigned warrant and represent they are authorized to enter into
cv
this Agreement on behalf of their respective parties and to bind their respective parties to the terms
of this Agreement.
Page 8 of 9
Packet Pg. 3720
T.6.d
APPROVAL OF AGREEMENT
This Agreement is subject to the approval of the Board of County Commissioners of
Monroe County, Florida. If this Agreement is not approved by the Board of County .
Commissioners of Monroe County, Florida within ninety (90) days of its execution, then this N
Agreement will expire and be null and void. If this Agreement is approved by the Board of
County Commissioners of Monroe County, Florida, Releasor will promptly provide Releasee
Department of Economic Opportunity with written confirmation that this Agreement has been
approved along with an executed copy of this Agreement. E
0
0
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
CD
written below: 2
MONROE COUNTY, FLORIDA STATE OF FLORIDA y
FLORIDA DEPARTMENT OF
HEATHER CARRUTHERS ECONOMIC OPPORTUNITY
MONROE COUNTY MAYOR
KEN LAWSON
ROBERT B. SHILYVGER EXECUTIVE DIRECTOR
COUNTY N Y
ffice o the County Attorney Florida Department of Economic Opportunity
111 12" Street, Suite 408 107 East Madison Street
Key West,FL 33041-1026 The Caldwell Building,MSC 110 E
FBN: 058262 � �j Tallahassee, FL 32399-4128
Dated: ,2020 Dated: July ,2020
N
N
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Packet Pg. 3721
APPROVAL OF AGREEMENT
This Agreement is subject to the approval of the Board of County Commissioners of
Monroe County, Florida. If this Agreement is not approved by the Board of County
Commissioners of Monroe County, Florida within ninety (90) days of its execution, then this
N
Agreement will expire and be null and void. If this Agreement is approved by the Board of
County Commissioners of Monroe County, Florida, Releasor will promptly provide Releasee
Department of Economic Opportunity with written confirmation that this Agreement has been
approved along with an executed copy of this Agreement. E
0
0
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
written below:
MONROE COUNTY, FLORIDA STATE OF FLORIDA
FLORIDA DEPARTMENT OF
HEATHER CARRUTHERS ECONOMIC OPPORTUNITY
MONROE COUNTY MAYOR
HAWS
ROBERT B. SHILLINGER EXECUTIVE DIRECTOR E
COUNTY ATTORNEY
3
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Office of the County Attorney 1744 la Department of Economic Opportunity >
111 121h Street, Suite 408 107 East Madison Street 2
Key West, FL 33041-1026 The Caldwell Building, MSC 110
FBN: 058262 Tallahassee, FL 32399-4128
N
Dated: July , 2020 Dated: J.ulya" , 2020
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