Item S10 S.10
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CountCounty ��Monroe. ,y, ? "tr, BOARD OF COUNTY COMMISSIONERS
y M T� \�1a� Mayor Michelle Coldiron,District 2
�1 1 nff `_ll Mayor Pro Tem David Rice,District 4
-Ile Florida.Keys Craig Cates,District 1
Eddie Martinez,District 3
w Mike Forster,District 5
County Commission Meeting
June 16, 2021
Agenda Item Number: S.10
Agenda Item Summary #3333
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
N/A
AGENDA ITEM WORDING: Approval of Settlement and Release Agreement between the State
of Florida and Monroe County in the matter of Donald Davis v. Monroe County and State of Florida,
CA M 04-379 and authorization for County Attorney to execute on behalf of the County.
ITEM BACKGROUND: If the agreement is approved, the State will reimburse the County for
$54,691.45 for 50% of the $109,382.90 that the County fronted to Smith Hawks PL, the attorneys of
record for Donald Davis in the matter of Donald Davis/Thomas Collins v. Monroe County and State
of Florida. This payment was for the fees awarded to Mr. Davis as the trial court level of the
proceedings. The Settlement and Release Agreement provides that upon the State's reimbursement
to the County of 50% of its share of trial level fees ($54,691.45), the County will release any claims
against the State relating to the Davis litigation.
This agreement is separate and apart from the sums previously paid by the County to cover the
damages award, which the State has already reimbursed the County for its 50% share of that sum.
The appellate level attorney's fees was also separately resolved.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
6.7.2021 Collins-Davis Settlement and Release Agreement Trial.final.exhs
FINANCIAL IMPACT:
Effective Date: Upon execution by the State.
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Expiration Date: n/a
Total Dollar Value of Contract: $54,691.45.
Total Cost to County: n/a
Current Year Portion: n/a
Budgeted: n/a
Source of Funds: n/a
CPI: n/a
Indirect Costs: n/a
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: Yes If yes, amount: $54,691.45 reimbursement from the State
to the County
Grant:
County Match:
Insurance Required:
Additional Details:
We get reimbursed by the State in the amount of$54,691.45.
REVIEWED BY:
Bob Shillinger Completed 06/08/2021 5:05 PM
Bob Shillinger Completed 06/08/2021 5:06 PM
Purchasing Skipped 06/08/2021 5:05 PM
Budget and Finance Completed 06/08/2021 5:06 PM
Maria Slavik Skipped 06/08/2021 5:05 PM
Liz Yongue Completed 06/08/2021 5:30 PM
Board of County Commissioners Pending 06/16/2021 9:00 AM
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
THOMAS F. COLLINS et al., and DONALD u
DAVIS,
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Plaintiffs
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V. Case No.: 04-CA-379-M W
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MONROE COUNTY, a Political Subdivision c
of the State of Florida, and the STATE OF >
FLORIDA, >
Defendants.
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SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
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entered into by Monroe County, Florida ("Monroe County" or "Releasor"), and the State of
Florida, through the Florida Department of Economic Opportunity (the "State"). Monroe County
and the State may be collectively referred to as the "Parties." E
WHEREAS, an action for inverse condemnation was filed in 2004 in the Circuit Court of
the Sixteenth Judicial Circuit, in and for Monroe County, Florida, in Case No. 2004-CA-379-M, as a
styled above (the "Davis Litigation"), wherein Plaintiff Donald Davis ("Plaintiff Davis") was the
only prevailing plaintiff, and
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WHEREAS, Plaintiff Davis was represented at the trial level by Andrew M. Tobin, Esq. u
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("Tobin") and James S. Mattson, Esq. ("Mattson"); and
WHEREAS, Plaintiff Davis entered into a contingency fee agreement with Tobin and
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Mattson on October 6, 2004, that provided, inter alia, as follows:
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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
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amounts designated as "attorneys' fees" or "costs"), and the last
bona-fide, written offer to purchase the Subject Property by the
condemning authority, and received by CLIENT before the date
CLIENT signed this fee agreement. This difference is defined as u
CLIENT's `Benefit." The last bona-fed written offer from a U_
condemning authority was $35,000 . . .. U)
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ATTORNEYS shall be entitled to compensation equal to 33% of
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 r�
preceding sentence[;] 0
and
WHEREAS, on February 18, 2005, Monroe County filed a third-party claim against the
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State for indemnification, contribution, and subrogation. Plaintiffs were granted leave to amend
their Second Amended Complaint by Interlineation to add the State as a Defendant on May 10,
2007; and
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WHEREAS, following a liability trial in April 2011, the trial court entered its Final 2
Judgment Denying and Granting Liability on October 14, 2011, holding that Plaintiff Davis was
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the only plaintiff to establish that a regulatory taking of his property occurred; and
WHEREAS, on August 4, 2016, the trial court directed the Davis Litigation parties to
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mediation, and on August 29, 2016, the parties entered into a stipulation of settlement providing —�
inter alia, that (1) for purposes of calculating damages, the fair market value of the subject
property owned by Plaintiff Davis as of the date of the taking was $175,000.00, and (2) Plaintiff
Davis is entitled to recover attorney's fees and costs incurred, which the court would determine in is
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a separate hearing if Plaintiff Davis was ultimately the prevailing party; and
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for
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Plaintiff Davis ("Davis Final Judgment") reaffirming the court's finding of inverse condemnation
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liability, providing for compensation, and retaining jurisdiction to determine any entitlement to
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costs and attorney's fees; and
WHEREAS, on February 28, 2017, Plaintiff Davis filed a motion for attorney's fees and
costs; and 06
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WHEREAS, on March 7, 2017, Monroe County and the State appealed the Davis Final W
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Judgment to the Third District of Court of Appeal; and c
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 0
WHEREAS, Plaintiff Davis discharged Tobin and Mattson shortly after the appeal of the 2
Davis Final Judgment was filed, and Tobin filed a motion to withdraw as attorney of record on
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October 20, 2017, that was granted by the Third District; and
WHEREAS, on October 17, 2017, Tobin and Mattson filed their Motion to Confirm
Attorney's Charging Lien and to Require Proceeds to Be Held In Escrow; and
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WHEREAS, on October 2, 2019, the Third District per curiam affirmed the Davis Final 2
Judgment and conditionally granted Plaintiff Davis's motion for appellate attorney's fees; and
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WHEREAS, on November 22, 2019, Monroe County individually paid into the trial court
registry $375,714.06, which was the total amount of the Davis Final Judgment as to liability and
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just compensation, exclusive of attorney's fees and costs, together with statutory interest, and an —�
additional $5,643.00 to cover Court Registry Service Charges; and
WHEREAS, on November 22, 2019, the Clerk of Court issued a Satisfaction of Judgment;
and is
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WHEREAS, on June 1, 2020, Monroe County entered into a settlement and release
Agreement with Plaintiff Davis and Smith Hawks, P.L., attached hereto as Exhibit A and referred
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to hereafter as the "Appellate Fee Monroe Settlement;" and c,
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WHEREAS, the Appellate Fee Monroe Settlement provided, inter alia, that (1) Plaintiff
Davis was represented at the appellate level by Smith Hawks, P.L., and he incurred $68,627.11 in
appellate attorney's fees and costs that Smith Hawks, P.L., agreed to reduce to $66,951.11, (2)
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Monroe County would pay 50% of the appellate attorney's fees and costs in the amount of 06
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$33,475.56, and (3) Plaintiff Davis and Smith Hawks, P.L., would seek payment of the remaining 0)
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50% from the State; and c
WHEREAS, on September 30, 2020, Monroe County entered into a settlement and release >
agreement with the State of Florida, attached hereto as Exhibit B and referred to hereafter as the 0
"Corpus Share Settlement"; and 2
WHEREAS, the Corpus Share Settlement provided, inter alia, that the State would make
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contribution to Monroe County with respect to 50% of the Final Judgment, including interest, and
Court Registry Service Charges in the total amount of$190,678.53; a
WHEREAS, the State, through the Florida Department of Economic Opportunity
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subsequently paid Monroe County $190,678.53,pursuant to the Corpus Share Settlement; and 2
WHEREAS, on February 17, 2021, Monroe County entered into a settlement agreement
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with Plaintiff Donald Davis and Smith Hawks, P.L., attached hereto as Exhibit C and referred to
hereafter as the "Trial Fee Settlement"; and
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WHEREAS, the Trial Fee Settlement provided, inter alia, that(1) the total amount of trial- —�
level attorney's fees and costs due to Plaintiff Davis in the Davis Litigation was $109,382.90, and
(2)upon Monroe County's payment of that total amount, Plaintiff Davis and Smith Hawks, P.L.,
will release the County and the State of Florida from any past, present, or future is
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 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 E
Florida[;]
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and
WHEREAS, Monroe County subsequently paid $109,382.90 to Smith Hawks, P.L. u
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pursuant to the Trial Fee Settlement; and
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WHEREAS, on April 6, 2021, the trial court entered its "Order Approving Settlement
Agreement On Attorneys' Fees and Costs and Directing Clerk of Court To Disperse Funds From r_
The Court Registry and Close Case"; and
WHEREAS, the Corpus Share Settlement resolved any and all claims between Monroe
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County and the State related to the Davis Litigation, excluding claims related to any claims for >
attorney's fees and costs that might be raised by Plaintiff Davis in the Davis Litigation; and
WHEREAS, Monroe County and the State now wish to resolve, settle, and compromise x
all remaining claims that Monroe County may bring against the State related to the Davis
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Litigation, and to avoid the cost of further litigation and the interruption or disruption of
government business; E
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,
adequate, and sufficient consideration described herein, the receipt and sufficiency of which are
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hereby acknowledged, the Parties hereto agree and stipulate to settle their differences as follows:
PAYMENT BY STATE
The amount of contribution the State, through the Florida Department of Economic
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Opportunity, shall make to Monroe County in settlement of the trial-level attorney's fees paid to
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Plaintiff Davis in the Davis Litigation is $54,691.45 (the"Settlement Amount").
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RELEASE BY MONROE COUNTY
Upon Monroe County's receipt of the Settlement Amount, Monroe County fully, forever,
and voluntarily, knowingly and upon advice of counsel, expressly releases and forever discharges
the State of Florida and all of its officials, officers, agents, agencies, employees, insurers, and 06
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assigns, (herein collectively referred to as "Releasees"), from any and all claims, demands, 0)
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debts promises, covenants trespasses, damages, and representations, whatsoever in c
judgments, > p p � es g � p
law or in equity, concerning, related to, or implicated by the Davis Litigation, which Releasor ever >
had, has, or may have by reason of any matter, cause, act, transaction or thing whatsoever. 0
NECESSARY EXECUTION DEADLINE AND CONTINGENCY
This Agreement shall be null and void in its entirety if not executed by all Parties on or
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before June 30, 2021. This Agreement is contingent upon its approval by the Chief Financial q
Officer of the State of Florida.
NO ADMISSION OF LIABILITY
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It is understood and agreed that this Agreement, any considerations given or accepted in 2
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connection with it, and the promises and covenants made in it, are all made, given, and accepted in
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settlement and compromise of disputed claims and are not an admission of liability by any party.
Neither the execution nor performance of this Agreement, nor any of its terms or provisions, will
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be deemed a presumption, concession, statement, or admission of any fact, liability, fault, or
wrongdoing of any kind by either Monroe County or Releasees, 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 is
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pertaining to the cost of litigation.
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ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Parties and supersedes any
and all prior communications, discussions, agreements, or understandings between the Parties.
This Agreement is entered into without reliance upon any statement or representation of any party 06
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hereby released except for those contained in this Agreement. Any oral or written promises or
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assurances not contained in this Agreement are waived, abandoned, withdrawn, and without legal c
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 0
contained herein concerning the subject matter hereof, to induce the other party to execute this 2
Agreement, and the Parties acknowledge they have not executed this Agreement in reliance upon
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any such promise, representation, or warranty not contained herein.
MODIFICATION IN WRITING
This Agreement embodies all of the settlement agreements of the Parties and may be
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amended, modified, altered, or changed only by a verified written instrument executed by both 2
Parties wherein specific reference is made to this Agreement.
GOVERNING LAW
This Agreement was negotiated and executed in the State of Florida and shall be construed
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and enforced in accordance with the laws of the State of Florida, without regard to conflicts of —�
laws principles.
VENUE v,
For any legal dispute arising out of this Agreement, the proper venue for any action will be is
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in the appropriate court of the Second Judicial Circuit of Florida, in and for Leon County, Florida.
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SUCCESSORS AND ASSIGNS
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, and
successors in-interest, and all other persons, firms, corporations, agencies, or entities with whom 06
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any of the former have been, are now, or may hereafter be affiliated. Monroe County does hereby 0)
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covenant, warrant and represent that it has not assigned, in whole or in part, any right, claim, or c
cause of action to any other person or party which might be asserted in the future against >
Releasees.
CONSTRUCTION OF TERMS
As used in this Agreement, the singular shall include the plural, the plural shall include the
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singular, and the use of any gender shall include all genders as the context may admit or require. °'
The language of all parts of this Agreement shall be construed as a whole and according to its
plain meaning.
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INTERPRETATION OF SETTLEMENT AND RELEASE AGREEMENT 2
In the event of litigation between the Parties, this Agreement shall not be strictly
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interpreted or construed against any party due to that party having prepared this Agreement, as it is
acknowledged that all Parties participated in the negotiation and preparation of this Agreement
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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 is
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and void, leaving the remainder of this Agreement in full force and effect.
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SECTION HEADINGS
Any section or paragraph headings appearing in this Agreement has been inserted for the
sole purpose of convenience and ready reference of the Parties. They do not purport to, and shall
not be deemed to, define, limit, or extend the scope or intent of the sections and paragraphs to 06
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which they may pertain.
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MULTIPLE ORIGINALS c
Multiple copies of this Agreement may be executed by the Parties hereto, each of which >
shall be deemed to be an original. 0
COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an
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original, and all of which together will constitute a single document. Execution of facsimile
copies, scanned copies, and other reproductions will be acceptable as counterparts.
AUTHORITY TO ENTER INTO AGREEMENT
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By their signatures, the undersigned warrant and represent they are authorized to enter into 2
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this Agreement on behalf of their respective parties and to bind their respective parties to the terms
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of this Agreement.
APPROVAL OF AGREEMENT
This Agreement is subject to the approval of the Board of County Commissioners of
Monroe County, Florida. If this Agreement is approved by the Board of County Commissioners
of Monroe County, Florida, then Monroe County will promptly provide the Florida Department of
Economic Opportunity with written confirmation that this Agreement has been approved, along
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with an executed copy of this Agreement. �!
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
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written below:
MONROE COUNTY, FLORIDA STATE OF FLORIDA
ROBERT B. SHIL,LINGER DANE EAGLE, SECRETARY
COUNTY ATTORNEY FLORIDA DEPARTMENT OF ECONOMIC
OPPORTUNITY
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Office of the County Attorney Florida Department of Economic Opportunity
111 12th Street, Suite 408 107 East Madison Street >
Key West, FL 33041-1026 The Caldwell Building, MSC 110 r�
FBN: 058262 Tallahassee, FL 32399-4128 0
Dated: Dated: 2
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IN THE CfRCUITCOURT ourim, SIXTEEN JUDICIAL CIRCUIT IN
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AND FOR MONROE COUNTY, FLORIDA u-
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THOMAS F.COLLINS,et aL, and 6
DONALD DAVIS,
2
Plaintiffs, 0
VS. CASE NO,CA-M-04-379
MONROF COUNTY, a Political Subdivision
oft State of Florida, 0
and 2
S FAT E OF FLORIDA
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Defendants.
—--------------------
SETTLEMENT AND RELEASE AGREEMENT
E Thj Settlement and Release Agreement ("Agrcement") is made < nd entered into by 0)
Donald Davis and Smith Hawks, P.L. (hereinafter collectively "Releasors")and Monroe County, 2
Florida (also referred to herein as "Releasee"). The purpose of this Agreement is to settle a
claim against Monroe County for appellate attorney's fees and costs incurred by Mr. Davis based
on Srnith4lawks' representation of hin)in the above-captioned matter.
WHEREAS, on February 15.20U, Circuit Judge Mark Jones entered a Final Judgment for
Plaintiff Donald Davis (hereinafter, "Final Judgment") in 77homas F. Collins, et. al, v. 1wonroe
County and Stare of F�iorida (Circuit Court Case No. 04-CA-379-M in the amount of
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$347,475,53 plus statutory interest frorn December 31, 2016 until ,he judgment was satisfied;
and
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W1 IEREAS, the Final Judgment found Monroc County and the State of Florida jointly and >
severally liable;and
WHEREAS,the Final Judgment retained jurisdiction to determine any entitlement to costs
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and attorney's fees; and
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WHEREAS, Monroe County and the State of Florida appealed the Final Judgment to the ry
Third District Court of Appeal and the Third District per curiam affirrited the Final Judgment on
October 2, 2019,- and
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WHEREAS, Donald Davis was represented at the appellate level by Smith Hawks, P.L.
and
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WHEREAS, on October 2, 2019, the `third District conditionally granted Donald Davis' d
motion for appellate attorney's fees; and
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WHEREAS, the Final Judgment, exclusive of attorney's fees and costs, was satisfied on
November 22, 2019;and
WHEREAS, the total amount of the fees and costs relating to the appellate representation
of`l 'lr, Davis by Smith Hawks, P.L. was 6 , 27.l 1;and
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W`HEREA , Smith Hawks, RL. has weed to a reduction in fees and costs bringing the
total arnount to 6 951.11;and. 2
WHEREAS, Monroe County does not admit to the entitlement to appellate attorney's fees
and costs claimed by Donald Davis but seeks to avoid the time and expense in litigating the
claimed entitlement; and x
WHEREAS, the Releaso�rs and Monroe County seek to resolve, settle and compromise
Donald Davis' claim ibr appellate fees and casts as to Monroe County in this Agreement;arid
W1I17l EA ,, it is the intention of the parties that Monroe County will separately pay 5 % �
of Smith Hawks' appellate fees rn the amount of $33,475,56, and the Rcleasors will seep E
payment of the remaining 50`1o� from the State of Florida,and �
WHEREAS, this Agreement relates only to appellate fees, and does not seek to resolve, y
settle or compromise any claim for fees and costs incurred by Donald Davis at the trial level; �
NOW THEREFORE, 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 fortis herein, and for rather good, adequate, and sufficient consideration
described herein, the receipt and sufficiency of which are hcrcby acknowledges, the turtles E
hereto agree and stipulate to;settle as follows: m
1, Monroe County will individually pay Smith Hawks, RL., 33, 75.5 , which is �
50% of the 's total reduced fees and costs related to the firm's representation of
Donald Davis in the above-captioned matter, ,
2t Upon the payment of$33,745.50 by Monroe County as set forth above, Donald
Davis and Smith Hawks, P.L. (individually anal collectively) release lvlonroe
County from any past, present or future claims or entitlements the Releasurs may
have for attorney's fees or, costs related to the frrm's representation of Donald "'
Davis in the above-captioned matter.
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IN WITNESS W 1B1 EOF, the parties hereto have executed this Agreement on the rite �
first writte,n below:
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MONROE COUNTY,FLORIDA 6
HEATHER CARRUTHERS
N40NROE COLfNTY
BOB SHILI,IN
9
..a w 0
,"Monr&Cout0y Attomey's Office
11 l 112th Street, Suite 408 2
Key West, FL 3041-102
J_ _
ate . 2020 v,
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HAWKS,SMITH PL
BARTONI' IT �
Smiths
Key West, FL 33040
20217
DONALD ,k 'I° .
9I at I; May 20 >
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TN THE CIRCUIT COURT CIE THE SIXTEENTH JUDICIAL CIRCUIT E
IN AND FOR MONROE COUNTY, FLORIDA
THOMAS F. COLLINSet al,, and DONALD
DAVIS,
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Plaintiffs,
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V. Case No,: 04-CA-379-M
1"v'IC, NROE COUNTY, a Political Subdivision �
of the State of Florida, and the STATE OF
FLORIDA,
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Defendants.
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SETTLEMENT AND RELEASE AGREEMENT �
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THIS SETTLEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by Monroe County, Florida. (hereinafter known as "R.cleasor"), and State of Florida,
through the Department of Economic Opportunity ("hereinafter referred to as "Releasee"), (and
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Releasor and R leasee shall be collectively referred to as the "Parties-). ne purpose of this 2
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 Relcasce. This Agreement �
specifically does not address or include any claims for costs and at-torney's fees by Plaintiff
Donald Davis which may or may not be brought, ordered, or denied.
WHEREAS, various disputes, relationships, controversies, and claims exist between �
Releasor and Release including those claims alleged in an action filed in 2004 in the Circuit Court
of the Sixteenth Judicial Circuit in and for Monroe County, Florida in Case No. 04-CAa379- 'I,
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styled Thomas F Collins and Patricia Collins, TIE; Donald Davis; Aur lia Del Valle and Alaria
Del Valle, TIE; Dill Family Investments, Inc.; Richard „T. Johnson and Joann C", Johnson, TIE,-
Robert,4. Lomrcance; Joseph Ma rini and E ldaa S. Ma rini, TIE; Keith P. aadenhausen; Frank J, �
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Schneider, Afary Ann Ricklin, and. `omary Riordin, TIC- Hubert lost and farll}err T st, 77E., and
Samuel L Barsocar RA. v. Monroe Cbun );, ca Political Subdivision of the State of Florida, and the
State cal"P'lorida (referred to herein as the "Davis Litigation"), wherein Plaintiff Davis is the only
remaining,Plaintiff of the original eleven (11)real property owners and 06
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WHEREAS, l eleasee is contesting said suit and does not admit any liability whatsoever;
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and
WHEREAS, on February 18, 2005, Releasor Monroe County filed a third-party claim
against l eleasce State of Florida for indemnification, contribution, and subrogation. Plaintiffs
were granted leave to amend their Second Amended Complaint by lnterlineation to add time State
of Florida as a Defendant on May 101, 200T
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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 pernmanent taking of Plaintiff
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,tyftK
WHEREAS, a Final Judgment for Plaintiff Davis was entered on February 15, 2017,
reaffirming the eourt's finding of inverse condemnation liability, finding that Releasor Monroe �
County and Releasee State of Florida were jointly and severally liable, and aff nmring time agreed °'
amount as to valuation of the property. According to the Final Judgment, upon payment of the
just compensation, title to Plaintiff Da Zis' real property shall pass to Rcleasor Monroe County and
Releaser State of Florida.
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WHEREAS, Releasor Monroe County and l eleasee State of Florida appealed the Final
judgment to the Third District Court of,appeals, On October 18, 2019, the mandate was issued �
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affin-ning the Final Judgment in favor of Plaintiff'Davis and against Releasor Monroe County and
Releasce State of Florida.
WHEREAS, on November 22, 2019, Releasor Monroe County individually paid into the
court registry $ 75,71 ,06, which was the total amount of the final Judgment as to liability and 06
just compensation, exclusive of attorney's fees and costs, together with Statutory Interest, An
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additional $5,6 .0 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 c
Judgment.
WHEREAS, Releasor Monroe County and Releasee State of Florida wish to resolve, settle, �
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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
and the interruption or disruption of government business.
CD
NOW THEREFORE,KNOW ALL MEN BY THESE PRESENTS- in consideration of the 2
foregoing premises, which constitute material provisions of this Agreement and not mere recitals,
and of mutual agreements, covenants, and promises as maybe set forth herein, and for other good,
adequate, and sufficient consideration described herein, the receipt and sufficiency of which are
hereby acknowledged,the Parties hereto agree and stipulate to settle their differences as follows:
PAYMENT BY RIELEASEE
The parties agree that the amount of contribution the Releasee State of Florida shall make
to Releasor Monroe County in settlement of the Final Judgment is Idly percent (50%) of the just
N
compensation, interest, and. Court Registry Services Charges, in the total amount of$1 0, 78.5
(the "Settlement Arnount"), 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 of
Packet Pg. 2963
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
06
legislative appropriation. However, Releasee Mate of Florida does not and cannot make any
covenants, promises, agreements, or estimates as to whether-that proposed legislation will become
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lave or when, or the amount of any such appropriation..
RELEASE BY RELEAS:OR >
Once Releasee State of Florida's Settlement Amount as enumerated above is appropriated e
2
and paid to Monroe County, Releasor Monroe County fully, forever, and voluntarily, knowingly
and upon advice of counsel, expressly releases, remises, acquits, satisfies and forever discharges
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Releasee Mate of Florida and all of its attorneys, agents, servants, employees, associates,
administrators, successors, predecessors, officers, directors, representatives, insurers and assigns,
(herein collectively referred to as "Releasees"), from any and all claims, crosselaims and third �
party claims (including but not limited to indemnification, contribution, and subrogation, and a �
dernnand that the 'Mate of Florida defend Monroe County in this action and pay Releasor Monroc
ounty's attorney's fees and crests for such defense), and any demands, damages, actions, causes
of action, claims, suits, debts, dues, sums of money, accounts.. reckonings, bonds, bills, specialties, �
covenants, contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, representations and restitutions, whatsoever in law or in equity, concerning
the Davis Litigation, except ,any claims for costs or ttorney's fees brought by plaintiff Davis,
which Releasor ever had, has, have, or which it or its Successors, administrators and assigns
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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
Packet Pg. 2964
S.10.a
the claims andJor 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 06
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resulted or may in the future result, which are in any way connected with, related to, or arise from,
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the liability and damages claim of Plaintiff Davis. Releasor Monroe County's release of claims
against R leasees 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 dines not pay the Settlement c
2
Amount to Monroe County within two ( years of the date of this Agreement, them the entirety of
this Agreement(including the agreed to Settlement Amount) shall become mall and void,
X
UNKNOWN OW CLAIMS OF RELEASOR —�
Releaasor acknowledges this Agreement is executed by it after consultation with, and upon
the advice of counsel. Releaser 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
and does assume all risks for claims as to Releasees heretofore or hereafter arising, known or
unknown, relating to the subject matters contained herein, and l eleasor expressly includes within
the scope of this Agreement all such claims as to Releasces, and expressly waives any right it may
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have to dispute the 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 Releasees.
NO ADMISRON OF LIABILITY
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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
Packet Pg. 2965
S.10.a
Neither the execution nor perforn°nance of this Agreement, nor any of its terms or provisions, will
be dccrrned a presumption, concession, statement, or admission of any fact, liability„ fault, or
wrongdoing of any kind by either Releaser or Releasees, 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 06
Agreement. The decision to settle a case may reflect the economic practicalities pettaining to the
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cost of litigation..
ENTIRE AGREEMENT
!"his Agreement represents the entire agreement between the Parties and supersedes any e
2
and all prior communications, discussions, agreements, or understandings between the Parties.
This Agreement is entered into without reliance upon any statement or representation of any party
X
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
effect. Further, the Parties acknowledge that no other party, or agent, or attorrncy of any other �
CD
party, has made any promise, representation, or warranty whatsoever, express or implied, not �
contained herein concerning the subject matter hercol, to induce the other party to execute this
Agreement, and the Parties acknowledge they have not executed tlniis Agreement in reliance upon
any such promise,representation, or warranty not contained herein.
MODIFICATION IN WRITING
This Agreement ennbodies all of the settlement agreements of the Parties and may be
amended, modified, ,altered, or changed only by a verified written instrument executed by both
Parties wherein specific reference is made to this Agreement.
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Page 6 of 9
Packet Pg. 2966
S.10.a
GOVERNING LAW
This Agreettient was negotiated and executed in the State of Florida and shall be construed
and enforced in accordance with the laws of the Mate of Florida, without regard d to conflicts o�f
laws principles. 06
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VENUE E
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For any legal dispute arising out of this A&veernent, the proper venue for any action will be
in the Circuit Court of the Second Judicial Circuit Court of Florida. in and for I.,,eon County,
Florida.
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SUCCESSORS AND ASSIGNS
Except as may be otherwise set forth herein, the Parties to this Agreement agree and �
X
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
any of the former have been, are now, or may hereafter be affiliated. Releasor does hereby
CD
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
R eleasees.
CONSTRUCTION OF TERMS
As used in this Agreement, the singular shall include the plural, the plural shall include the
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singular, and the use of any gender shall include all genders as the context may admit or rewire.
The language of all parts of this Agreement shall be construed as a whole and according to its
plain meaning. c,
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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 Clue to that party having prepared this Agreement, as it is
Page 7 of
Packet Pg. 2967
S.10.a
acl aowled ed that all Parties participated in the negotiation and preparation of this Agreement
and have been represented by experienced counsel..
SE E 1f ILIT`
Any provision of this Agreement declared illegal or unenforceable by any court of 06
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competent jurisdiction that cannot be modified to be enforceable will immediately become null
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and void, leaving the remainder of this Agreement in full force and effect..
SECTION HEADINGS
Any section or paragraph headings appearing in this Agreement has been inserted for the c
2
scale purpose of convenience and ready reference of the parties. They do not purport to, and shall
not be deemed to, define, limit, or extend the scope or intent of the sections and paragraphs to �
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which they may pertain,
MULTIPLE ORIGINALS
Multiple copies of this Agreement may be executed by the parties hereto, each of which �
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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
copies, scanned copies, and other reproductions will be acceptable as counterparts.
AU_THORITY TO ENTER INTO AGREEMENT
By their signatures, the undersigned. warrant and represent they are authorized to enter into
this Agreement can behalf of their respective parties and to bind their respective parties to the ternis
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of this Agreement.
Page 8 of
Packet Pg. 2968
APPROVAL OF AGREEMENT
This Agreement is subject to the approval of the Beard 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 0) days of its execution, then this 06
Agreement will cxpirc and be null and void.. If this Agreel-rent is approved by the Board of
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County Commissioners of Monroe County, Florida, Relcasor will promptly provide Relea ee
Department of Economic Opportunity with written confirmation that this Agreement has been
approved along with an executed copy of this Agreement. c
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the slate y
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written below:
ONROE COUNTY. FLORIDA STATE OF FLORIDA
ID
FLORIDA DEPARTMENT OF
HEATHER CARRUTHERS ECONOMIC OPPORTUNITY �
TONROE COUNTY MAYOR �� w
RO ERT B. SHILLINGER EXECUTIVE DIRECTOR �
COUNTY ATTORNEY
h�
Office f the Count Attorne. Fk',r--(T De:a . .sent of T � .ors
._ y _ y P conornic Opportunity
111 12 Street, Suite 408 107 East Madison Street
Rey 'west, FL 33041-1026 The Caldwell Building, MSC 110 E
T N: 058262 Tallahassee, FL 2 - 12
Dated: .Iuly , 202.0 Dated: =73 , 2020
CJ
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Page 9 of
Packet Pg. 2969
S.10.a
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Packet Pg. 2970
S.10.a
IN THE CIRCUIT COURT OF THE SIXTEEN JUDICIAL CIRCUIT IN
AND FOR MONROE COUNTY, FLORIDA E
THOMAS F. COLLINS , et al., and
DONALD DAVIS, 06
Plaintiffs,
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VS. CASE NO. CA-M-04-379 c
MONROE COUNTY, a Political Subdivision
of the State of Florida,
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and
STATE OF FLORIDA
Defendants.
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SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is made and entered into by E
Donald Davis ("Davis") and Smith Hawks PL (collectively "Releasors"), and Monroe County,
Florida also referred to herein as "Releasee"). The purpose of this Agreement is to settle any and a
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 a
m
not limited to, any claim under or related to Davis' Motion for Attorney Fees and Costs (dated u
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
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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
1
Packet Pg. 2971
S.10.a
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a defendant in their Second Amendment by Interlineation to First Amended Complaint in 2006;
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and
WHEREAS, all the plaintiffs, including Davis, were represented at the trial level by
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Andrew M. Tobin, Esq. (hereinafter "Tobin") and James S. Mattson, Esq. (hereinafter 06
6
"Mattson"); and
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WHEREAS, Davis entered into a contingency fee agreement with Tobin and Mattson on
c�
October 6, 2004, that provided, inter alia, as follows:
If CLIENT obtains a final judgment on compensation, or accepts a c
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 t
amounts designated as "attorneys' fees" or "costs"), and the last
bona-fide, written offer to purchase the Subject Property by the X
condemning authority, and received by CLIENT before the date
CLIENT signed this fee agreement. This difference is defined as
CLIENT's "Benefit." The last bona-fed written offer from a
condemning authority was $35,000 . . .
ATTORNEYS shall be entitled to compensation equal to 33% of
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.
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WHEREAS, following a liability trial in April 2011, the trial court entered its Final
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
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August 29, 2016, the parties entered into the Stipulation of Settlement agreeing (a) that for
purposes of calculating damages, the fair market value of the subject property on July 17, 2002
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Packet Pg. 2972
S.10.a
06
(the date of taking), was one hundred seventy-five thousand dollars ($175,000.00) and (b)
a�
"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
v)
WHEREAS, on February 15, 2017, Circuit Judge Mark Jones entered a Final Judgment for 06
6
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Davis (hereinafter "Davis Final Judgment") reaffirming the court's finding of inverse W
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condemnation liability, providing for compensation, and "retaining jurisdiction to determine any
entitlement to costs and attorneys' fees"; and
WHEREAS, on February 28, 2017, Davis filed his Motion for Attorneys' Fees and Costs, c
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
x
separate hearing"; and
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 a
WHEREAS, on August 25, 2017, Tobin and Mattson filed a Notice of Attorneys'
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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
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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
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incurred $68,627.11 in attorneys' fees and costs; and
3
Packet Pg. 2973
S.10.a
06
WHEREAS, on October 2, 2019, the Third District per curiam affirmed the Davis Final
m
Judgment and conditionally granted Davis' motion for appellate attorneys' fees; and —�
WHEREAS, on November 22, 2019, Monroe County individually paid into the court
v)
registry $375,714.06, which was the total amount of the Final Judgment as to liability and just 06
6
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compensation, exclusive of attorneys' fees and costs, together with statutory interest, and an 0)
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additional $5,643.00 was paid by the County to cover the Court Registry Services Charges; and
WHEREAS, on November 22, 2019, the Clerk of County Court issued a Satisfaction of
Judgment; and c
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,
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attorneys' fees and costs incurred by Davis based on Smith Hawks P.L.'s representation of him
in the above-captioned matter; and
WHEREAS, Smith Hawks P.L. agreed to a reduction in fees and costs bringing the total a
amount to $66,951.11; and
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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
E
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
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above-captioned matter" and (2) "[u]pon payment of$33,475.56 by Monroe County as set forth
above, Donald Davis and Smith Hawks, P.L. (individually and collectively) release Monroe
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4
Packet Pg. 2974
S.10.a
06
County from any past, present or future claims or entitlements the Releasors may have for
a�
attorneys' fees or costs related to the firm's representation of Donald Davis in the above-
captioned matter"; and
v)
WHEREAS, on May 20, 2020, the Board of County Commissioners of Monroe County
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Florida unanimously passed Resolution No. 147-2020, authorizing payment of attorneys' fees W
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and costs pursuant to the May 2019 Settlement and Release Agreement, and the $33,475.56
c�
amount was subsequently paid by the County; and
WHEREAS, the State of Florida still owes its 50% share of Davis' appellate fees and c
costs; and
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WHEREAS, based on the contingency fee agreement with Mattson and Tobin, and v,
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assuming arguendo that the agreement remains valid, Davis asserts that he incurred $105,178.50
in attorneys' fees in the litigation of the above-captioned matter at the trial level; and
WHEREAS, Monroe County does not admit that Davis actually incurred attorneys' fees a
and costs under his contingency fee agreement with Tobin and Mattson but seek to avoid the
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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
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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
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WHEREAS, Tobin and Mattson did not through their efforts obtain for Davis any
nonmonetary benefits; and
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Packet Pg. 2975
S.10.a
06
WHEREAS, Davis incurred $4,204.41 in costs in the litigation of the above-captioned
a�
matter at the trial level, which includes all incurred costs and obligations related to Davis' —�
representation by Tobin and Mattson; and
v)
WHEREAS, the Davis Final Judgment found Monroe County and the State jointly and 06
6
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severally liable, and the parties recognize that the State would be liable to pay a share of any 0)
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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 c
the amount of $109,382.91 and to separately seek reimbursement directly from the State for the
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State's share ($54,691.46); and v,
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WHEREAS, Releasors and Monroe County acknowledge that Tobin and Mattson have
asserted a demand for attorneys' fees in an amount greater than $105,178.50 and a demand for
costs in an amount greater than $4,204.41; and a
WHEREAS, Releasors and Monroe County agree that the fee and costs amounts demanded
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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
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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
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February 28, 2021; and
6
Packet Pg. 2976
S.10.a
06
WHEREAS, on January 26, 2021, the circuit court entered an Amended Order, which
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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
v)
2017, shall be dissolved automatically without further Court action unless liability for attorney's 06
6
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fees is determined by agreement or through an evidentiary hearing on or before May 4, 2021;" 0)
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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 c
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 v,
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WHEREAS, on January 5, 2021, Davis, Mattson and Tobin entered into an Escrow
Agreement providing for the release of funds paid into the court registry, stating in pertinent part:
(a) "The Parties desire to release One Hundred and Five Thousand and One Hundred and a
Seventy-eight Dollars and fifty cents ($105,178.50) (the "Escrow Funds") from the court registry
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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
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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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Packet Pg. 2977
S.10.a
06
WHEREAS, Releasors and Monroe County agree that the pendency and outcome of the
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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
v)
WHEREAS, Releasors agree to release Monroe County and the State of Florida from any 06
6
past, present, or future claims or entitlements to attorneys' fees or costs in the above-captioned 0
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matter by Releasors, Tobin, or Mattson; and
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 c
matter asserted by Tobin, Mattson, or any other attorney; and
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NOW THEREFORE, in consideration of the foregoing premises, which constitute v,
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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, adequate, and sufficient
consideration described herein, the receipt and sufficiency of which are hereby acknowledged, a
0)
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the parties hereto agree and stipulate to settle as follows:
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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.
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Upon Monroe County's payment of $109.382.91 as set forth above, Releasors will release u
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9
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
6
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Tobin and Mattson's representation of Davis in the above-captioned matter. Davis further agrees
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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
8
Packet Pg. 2978
S.10.a
RELEASE BY RELEASORS
Once the settlement amount as enumerated above is paid to Releasors, Releasors will
v)
fully, forever, voluntarily, knowingly, and upon advice of counsel, expressly release, remise
06
acquit, satisfy and discharge Releasees and all of their attorneys, agents, servants, employees, 6
associates, administrators, successors, predecessors, officers, directors, representatives, insurers 2
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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,
0
reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
2
variances, trespasses, damages, judgments, executions, representations and restitutions,
whatsoever in law or in equity, concerning the Davis Litigation, which Releasors ever had, have,
or will have, or which they or their successors, administrators and assigns hereinafter can, shall,
or may have, for or by reason of any matter, cause, act, transaction or thing whatsoever, related
thereto, connected with, arising out of, referring to, or in any manner relevant to or which has E
been or could have been asserted by any of the parties hereto as a result of 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, economic or otherwise, a
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known or unknown, together with any accrued statutory interest, which resulted or may in the u
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future result, which are in any way connected with, related to, or arise from, the liability and
damages claim of Releasors.
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UNKOWN CLAIMS BY RELEASOR
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Releasors acknowledge that they execute this Agreement after consultation with, and
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upon the advice of, counsel. Releasors acknowledge that during said consultation and
9
Packet Pg. 2979
S.10.a
06
representation their counsel apprised them of the legal effect of the release and waiver of
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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
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or hereafter arising, known or unknown, relating to the subject matters contained herein, and 06
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Releasors expressly include within the scope of this Agreement all such claims as to Monroe 0)
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County and the State of Florida, and expressly waives any right they may have to dispute the
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 c
2
Florida.
The parties agree that nothing in this agreement shall be construed as a waiver of Davis' v,
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claims to unpaid appellate fees by the State of Florida.
NO ADMISSION OF LIABILITY
It is understood and agreed that this Agreement, any considerations given or accepted in E
a�
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
parry. 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, E
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liability, fault, or wrongdoing of any kind by either Releasor, Monroe County, or the State of
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 =
0
may reflect the economic practicalities pertaining to the cost of litigation.
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Packet Pg. 2980
S.10.a
ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties and supersedes all E
prior communications, discussions, agreements, or understandings between the parties. This
Agreement is entered into without reliance upon any statement or representation of any party 06
6
hereby released except for those contained in this Agreement. Any oral or written promises or 0)
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assurances not contained in this Agreement are waived, abandoned, withdrawn, and without c
legal 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 2
this Agreement, and the parties acknowledge they have not executed this Agreement in reliance
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upon any such promise, representation, or warranty not contained herein. �?
MODIFICATION IN WRITING
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 E
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parties wherein specific reference is made to this Agreement.
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 E
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conflicts of laws principles.
VENUE
For any legal dispute arising out of this Agreement, the proper venue for any action will =
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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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S.10.a
SUCCESSORS AND ASSIGNS
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
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and successors in-interest, and all other persons, firms, corporations, agencies, or entities with 06
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whom any of the former have been, are now, or may hereafter be affiliated. Releasors do hereby 0)
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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. c
CONSTRUCTION OF TERMS
As used in this Agreement, the singular shall include the plural, the plural shall include v,
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the singular, and the use of any gender shall include all genders as the context may admit or
require. The language of all parts of this Agreement shall be construed as a whole and according
to its plain meaning. a
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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 parry due to that parry having prepared this Agreement, as it .�
is acknowledged that all parties participated in the negotiation and preparation of this Agreement
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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
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and void, leaving the remainder of this Agreement in full force and effect.
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S.10.a
SECTION HEADINGS
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
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not be deemed to, define, limit, or extend the scope or intent of the sections and paragraphs to 06
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which they may pertain.
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MULTIPLE ORIGINALS
Multiple copies of this Agreement may be executed by the parties hereto, each of which
shall be deemed to be an original. c
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COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an v,
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original, and all of which together will constitute a single document. Execution of facsimile
copies, scanned copies, and other reproductions will be acceptable as counterparts.
AUTHORITY TO ENTER INTO AGREEMENT
By their signatures, the undersigned warrant and represent they are authorized to enter '
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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
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BOB SHIL,LINGER
COUNTY ATTORNEY
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Packet Pg. 2983
S.10.a
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Monroe County Attcrney's Office
1 I 1112th Street, Suite 40
Key West, FL 3 041-10
Dated: February r 06
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138 Simonton Street y
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D21ed: February l_ ,2021
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