Item P3 MD--ON
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date. September____1_7,_2013 Division: County Attorney
Bulk Item: Yes No XX Staff Contact Person:
AGENDA ITEM WORDING: Approval of Settlement Agreement in the matter of Mailloux & Sons, Inc. V
Monroe County 2013 CA 791A.
ITEM BACKGROUND: This Settlement Agreement resolves all issues between the County and Mailloux&Sons,
Inc.arising out of the June 19,2013,termination of two contracts with Mailloux and Sons, Inc.for alleged
violations of the Davis-Bacon Act and failure to proceed in a timely manner with the scope of work.On July 24,
2013 Mailloux filed suit against the County,the suit was never formally served on the County.,
The major portions of Agreement call for Mailloux to:
1)Pay the County$35,ODO.00;and
2)Forfeit all claims to the$601,674.00 being held by the County on the project,including but not
limited to retainage(earned and unearned),all monies for or performed to date whether or not included in
payment,all unpaid or unclaimed change orders,any and all sums or payments due or owing by Mailloux to
design professionals,subcontractors,vendors or other services,work,materials or supplies,and any and all
settlement costs incurred by Mailloux relating to any commitments to subcontractors,vendors,etc.
3)Provide a Release to the County,
4)Dismiss pending litigation with prejudice.
PREVIOUS RELEVANT BOCC ACTION: On August 15, 2012, the BOCC approved a contract with Mailloux &
Sons, Inc. for ADA Compliance Segment#1. On May 16, 2012, the BOCC approved a contract with Mailloux&
Sons,Inc.for ADA Compliance Segment#2 and the first amendment to that Contract was approved on June 20,
2012.
On June 19,2013,the BOCC approved the termination of both construction contracts for ADA Compliance
Segment#1 and Segment#2,with Mailloux and Sons,Inc.for alleged violations of the Davis-Bacon Act and
failure to proceed in a timely manner with the scope of work.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS:Approval of Settlement Agreement
TOTAL COST: -0- INDIRECT COST: BUDGETED: Yes — No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A.
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING:Yes No— AMOUNT PER MONTH— Year
APPROVED BY: County Atty OMB/Purchasing_ Risk Management
DOCUMENTATION: Included _A_ Not Required
DISPOSITION;- AGENDA ITEM
ADD-011
SETTLEMENT AGREEMENT AND FINAL RELEASE
Principal: Mailloux and Sons,Inc.
Surety: Developers Surety and Indemnity Company
Obligee: County of Monroe, Florida
Project: ADA Compliance Segment#1 for Facilities
Located between Mile Marker 112-Mile Marker 47
Bond No.: Bond#479312P
Project: ADA Compliance Segment#2 for Facilities
Located between Mile Marker 47-Mile Marker 0
Bond No.: Bond#479262P
This Settlement Agreement and Final Releases(the"Agreement") is made this ^day of
August, 2013, between Mailloux and Sons, Inc.,a corporation organized and existing pursuant to
the laws of the State of Florida ("Mailloux"), the Monroe County Board of County
Commissioners, a municipality of the State of Florida (the "County', and Developers Surety
and Indemnity Company, a corporation organized and existing pursuant to the laws of the State
of Iowa, duty authorized to do business in the State of Florida("Developers") (Mailloux, County
and Developers shall collectively be referred to as the"Parties").
WHEREAS,on or about August 15, 2012, the County awarded a contract to Mailloux on
the project commonly known as "ADA Compliance Segment #1 for Facilities Located between
Mile Marker 112—Mile Marker 47"(the"Segment#1 Contract"or"Segment to 1 Project");and
WHEREAS, in connection with the Segment#1 Contract, Developers, as surety, issued
Performance/Payment Bond No. 479312P (the "Segment#1 Bond"), on behalf of Mailloux, as
principal,and in favor of the County, as obligee; and
WHEREAS, on or about May 16, 2012, the County awarded a contract to Mailloux on
the project commonly known as "ADA Compliance Segment#2 for Facilities Located between
Mile Marker 147—Mile Marker 0"(the"Segment#2 Contract"or"Segment 42 Project");and
WHEREAS, in connection with the Segment#2 Contract, Developers, as surety, issued
Performance/Payment Bond No. #479262P (the "Segment #2 Bond"), on behalf of Mailloux, as
principal,and in favor of the County,as obligee; and
WHEREAS, issues have arisen with Mailloux's performance of each of the Segment #1
Contract and Segment #2 Contract (collectively hereafter, the "Contracts"), pursuant to which
the County has issued to Mailloux its Notice of Intent to Terminate dated May 24,2013; and
WHEREAS,on June 19, 2013, Mailloux was formally terminated by vote of the Monroe
County Board of County Commissioners at its regularly scheduled Commission Meeting,
attended by Mr. Jade T. Mailloux, President of Mailloux, and thereafter affirmed by issuance of
Monroe County's formal Notice of Termination dated June 25, 2013; and
Settlement Agreement and Release
1' ;s 12
WHEREAS, as a result of its default/tenmination of Mailloux under the Contracts, the
County has made demand upon Developers for the completion of the Contracts pursuant to the
Performance Bond provisions of the Segment #1 Bond and Segment #2 Bond (hereinafter
collectively,the"Performance Bonds");and
WHEREAS, on or about July 23, 2013, Mailloux filed an action against the County for
breach of Segment #1 Contract and for breach of Segment #2 Contract in a lawsuit styled
Mailloux & Sons, Inc., a Florida corporation vs. Monroe County, a political subdivision of the
State of Florida, Case # 2013 CA 791K, filed in the Circuit Court of the Sixteenth Judicial
Circuit in and for Monroe County, Florida(the "Lawsuit"); and
WHEREAS, the County denies that there is any legal or factual basis to the claims
asserted by Mailloux in the Lawsuit,and
WHEREAS, the Parties recognize that this Agreement is in furtherance of Developers'
obligations under the Bonds; and
WHEREAS, the Parties, each of whom is represented by counsel, or have had an
opportunity to be represented by counsel, recognize their respective rights and obligations, wish
to memorialize their agreement to fully and completely resolve any and all known and/or
potential claims against the Contracts and Bonds and settle their respective rights and
obligations, and now desire to settle the Lawsuit, as well as any and all claims and/or defenses
which were or could have been brought in the Lawsuit as specifically limited herein.
NOW THEREFORE, in consideration of the payment and mutual promises, covenants,
representations and conditions contained herein, and for other good and valuable consideration,
and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby
acknowledged,the Parties hereto agree as follows:
1. Recitals. The above recitals are true and correct, and part of this Agreement as if
fully set forth herein.
2. Revocation of Default/Termination and Issuance of Default fOr Convenience.
Upon the execution of this Agreement, the County agrees that its Notice of Intent to Terminate
dated May 24, 2013 and its Notice of Termination dated June 25, 2013 are each hereby
rescinded, vacated and of no further force and effect. Further, by operation of this Agreement,
the subject Contracts between the County and Mailloux shall be deemed "terminated for
convenience" by the County, with Mailloux and the County maintaining no further
responsibilities thereunder (except as specifically set forth in this Agreement). The parties
further agree that the language "termination for convenience" as used in this Settlement
Agreement and in the Contracts and contract documents does not, in any way, entitle nor give
rise to a claim by Mailloux against the County to further compensation payable to Mailloux in
Settlement Agreement and Release
I> , 13
any form whatsoever from the County, Monroe Housing Authority, Government Services Group
(also known as "Meridian"), or from their respective Commissioners, members, officers,
directors, servants, heirs, administrators, executors, agents, principals, employees, successors
and/or assigns, all parent, subsidiaries or affiliated corporations or entities, predecessors in
interest, successors in interest,divisions,consultants and/or attorneys.
3. Payment to County. Within twenty (20) days of the execution of this
Agreement.Mailloux and Developers shall make payment,jointly and severally, to the County in
the total amount of Thirty-Five Thousand and 00/100 Dollars ($35,000.00). County
acknowledges and agrees that such payment is tendered in full and complete satisfaction of any
and all obligations which Mailloux and/or Developers may have under the Contracts and/or the
Performance Bonds, and that said Performance Bonds are rendered null, void and of no further
force and effect upon clearance of the funds contemplated herein; however, the Payment Bond
provisions and obligations of the Payment Bonds for Segment#I and Segment#2 shall remain in
full force and effect.
4. Contract Sum, Retention and Other Requests for Pa,rment. Mailloux
specifically agrees that it shall forfeit all claims to further payments of any nature under the
Segment #1 Contract and Segment #2 Contract, including, but not limited to, retainage (earned
and unearned), all monies for work performed to date whether or not included in payment
applications submitted, all unpaid or unclaimed change orders,any and all sums or payments due
or owing by Mailloux to design professionals, subcontractors, vendors, or others for services,
work, materials or supplies provided in connection with the Segment #I Project or Segment #2
Project, any and all settlement costs incurred by Mailloux relating to any commitments to
subcontractors, vendors, or others in connection with the Segment #1 Project or Segment #2
Project, any and unpaid or unclaimed fees for permits, surveys, inspections, testing, surveys,
impact fees or fees required by Federal or State Law or by Ordinance, and any and all damages,
payments, amounts or allowances which could potentially be claimed by Mailloux under the
Segment 41 Contract and the Segment #2 Contract, under the General Conditions of said
Contracts, under the CDBG Supplemental Conditions of said Contracts and/or under the First
Amendment to the Segment#2 Contract.
Accordingly, Mailloux specifically agrees to forfeit all claims of any nature whatsoever
that it may now, or in the future, have to the sum of Six hundred and One thousand, and Six
hundred and Seventy-Four Dollars ($601,674.00) presently being held by the Monroe County
Clerk of Courts in connection with the Segment#1 and Segment#2 Projects and Segment#1 and
Segment#2 Contracts, and Mailloux agrees that Monroe County shall retain said funds.
5. Cooperation; Execution of Additional Required Documents and Release of
Contract Documentation to County. The Parties agree to execute all such further instruments.
and to take all such further actions as may be reasonably required by any Party to fully effectuate
the terms and provisions of this Agreement and the transactions contemplated herein. Mailloux
further agrees to provide and release to the County the following contract documents for both
Settlement Agreement and Releave
Segment#I and Segment#2 Projects presently in their possession or under their control; (a) All
original "signed and sealed" Plans, Specifications, product approvals and permits; i.e. the Permit
Set of Plans, Specifications and Product Approvals and (b)all data, drawings,as-builts, sketches,
reports, summaries and other such documentation and/or information, as may have been
accumulated by Mailloux in performing the Segment#1 and Segment#2 contract work, whether
completed or in progress.
6. Countv's Final Release of"Iailloux and Developers. In consideration of the
Parties' respective performance and payment obligations as specified herein, and in consideration
of Mailloux' and Developers' releases as set forth in paragraph 7 below, the County does hereby
expressly RELEASE, ACQUIT and FOREVER DISCHARGE Developers and Mailloux,
together with their respective members, officers, directors, servants, heirs, administrators,
executors, agents, principals, employees, successors and/or assigns, all parent, subsidiary, or
affiliated corporations or entities, predecessors in interest, successors in interest, divisions,
consultants, and attorneys, of and from any and all claims, rights, demands and/or causes of
action of whatsoever kind or nature which County has or may ever claim to have, now or in the
future, against Developers and/or Mailloux under and/or by reason of the Contracts, Performance
Bonds and/or Projects, and acknowledges that the Performance Bonds are hereby rendered null,
void and of no further force and effect. However,excluded from this Release are the obligations
of Mailloux and Developers pursuant to the Payment Bonds which shall remain in full force and
effect.
7. Mailloux's and Developers' Final Releases of County. In consideration of the
Parties' respective performance and payment obligations as specified herein, and in
consideration of the County's release as set forth in paragraph 6 above, Mailloux and
Developers, including their respective members, officers, directors, servants, heirs,
administrators, executors, agents, principals, employees, successors and/or assigns, all parent,
subsidiary, or affiliated corporations or entities, predecessors in interest, successors in interest,
divisions, consultants, and attorneys, do hereby expressly RELEASE, ACQUIT and FOREVER
DISCHARGE the County, together with its respective Commissioners, Monroe Housing
Authority, and Government Services Group(also known as "Meridian"), or from their respective
members, officers, directors, servants, heirs, administrators, executors agents, principals,
employees, successors and/or assigns, all parent, subsidiary, or affiliated corporations or
entities, predecessors in interest, successors in interest, divisions, consultants, and attorneys, of
and from any and all claims, rights, demands and/or causes of action of whatsoever kind or
nature which Mailloux, Developers, or either of them has or may ever claim to have, now or in
the future, against County under and/or by reason of the Contracts, Bonds and/or Projects.
8. Mailloux's Dismissal of Pending Litigation. Upon execution of this Agreement
and payment to the County of the amounts required under paragraph 3 hereof,Mailloux agrees to
file a Notice of Voluntary Dismissal With Prejudice together with a Proposed Order of Dismissal
with Prejudice for execution by the Court in the action pending in the Circuit Court of the
Sixteenth Judicial Circuit in and for Monroe County, Florida, styled Mailloux & Sons, Inc. a
Settlement Agreement and Release
P .1 ,. 5
Florida Corporation vs. Monroe County, a political subdivision of the State of Florida, Case #
2013 CA 791 K
9. Reservation of Rights as Between Developers and Mailloux. This Agreement
shall in no way alter,affect, impair or prejudice any rights,claims,causes of action or defenses as
between Developers and Mailloux (or its individual indemnitors) relating to the Contracts,
Bonds, Agreement(s) of Indemnity, or any other agreements between such parties, regardless of
whether such claims arise under contract,statute or at common law.
10. No Admission of Liability. This Agreement does not constitute an admission of
liability on the part of any Party hereto.
11. Binding Nature of Agreement. This Agreement shall only extend to and be
binding upon the Parties hereto and their respective successors and assigns. Nothing contained in
this Agreement shall create any third party beneficiaries to other claimants under the
Performance Bond and/or Payment Bond, nor confer any benefit or enforceable rights under this
Agreement other than to the Parties hereto and their respective successors, assigns, and
reinsurers.
12. Written Modifications. This Agreement may not be modified unless in writing
and executed by the Parties hereto. No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the Party against whom it is sought to be enforced.
13. Interpretation of Agreement. The provisions of this Agreement shall be applied
and interpreted in a manner consistent with each other so as to carry out the purposes and intent
of the Parties, but, if for any reason any provision is unenforceable or invalid, such provision
shall be deemed severed from this Agreement, and the remaining provisions shall be carried out
with the same force and effect as if the severed portion had not been a part of this Agreement.
14. Whole Agreement. Except as otherwise provided herein, this Agreement
inco'rp
orates, includes, and supersedes all prior negotiations, correspondence, conversations,
agreements or understandings applicable to the matters contained herein, and the Parties agree
that there are no commitments, agreements or understandings concerning the subject matter of
this Agreement that are not contained in this Agreement. Accordingly, the Parties agree that no
deviations from the terms hereof shall be predicated upon any prior representations or
agreements,whether oral or written.
15. Opportunity to Review. The Parties acknowledge and agree that they are
releasing certain rights and assuming certain duties and obligations which, but for this
Agreement, would not have been released or assumed. Accordingly, the Parties agree that this
Agreement is fair and reasonable, that each of them has had an opportunity to consult with and
have in fact consulted with such experts of their choice as they may have desired, and that they
Settlement Agreement and Release
+> f 16
have had the opportunity to discuss and have in fact discussed this matter with counsel of their
choice.
16. Competent Legal Advice. The Parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full and
complete understanding of all rights and obligations herein and that the preparation of this
Agreement has been their joint effort. The language agreed to expresses their mutual intent and
the resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the Parties than the other.
17. Survival. All covenants, warranties and representations contained in this
Agreement, and all documents to be delivered by the Parties in connection with the
consummation of the transaction contemplated herein, shall survive the consummation of said
transaction.
18. Governing Law. The parties hereto acknowledge and agree that this Agreement
shall be interpreted and construed in accordance with and governed by the laws of the State of
Florida. Any controversies or legal problems arising out of this Agreement and any action
involving the enforcement or interpretation of any rights hereunder shall be submitted to the
jurisdiction of a court of competent jurisdiction located in Monroe County Florida, the venue
situs, and shall be governed by the laws of the State of Florida.
19. Notices. Any notices or other formal communications made under this
Agreement shall be deemed to have been duly given to Arch if sent via electronic and United
States Mail to:
Developers: With a copy to:
Cherie Rondinelli Edward Etcheverry, Esq.
Developers Surety and Indemnity Co. Etcheverry Harrison LLP
100 Second Avenue South 150 South Pine Island Road
Suite 704 South Suite 105
St. Petersburg, FL 33701 Ft. Lauderdale, FL 33324
and shall be deemed to have been duly given to County if sent via electronic and United States
Mail to:
County: With a copy to:
Natileene W.Cassel, Esq. Ira Libanoff, Esq.
County of Monroe Ferencik LibanoffBrandt
Office of the County Attorney Bustamante and Goldstein, P.A.
I I 1112'' Street,Suite 408 150 S. Pine Island Road, Suite 400
Key West, FL 33040 Plantation,FL 33324
Settlement Agreement and Release
and shall be deemed to have been duly given to Mailloux if sent via electronic and United States
Mai I to:
Mailloux: With a copy to:
Don Niesen, Esq.
Niesen JPrice JWorthy ICampo
5216 SW 91 Drive
Gainesville, FL 32608
or, at such other address as each of the foregoing may designate in writing by registered or
certified mail to the other.
20. Counterparts. This Agreement may be executed in one or more counterparts, by
facsimile or electronic mail, each of which, when executed and delivered, shall be deemed to be
an original, but such counterparts shall together constitute one and the same instrument.
21. Formal Approval by County. This Agreement is subject to, and shall not
become effective until, formal approval by the County at a duly noticed public meeting in
accordance with Florida law, and the Agreement has thereafter been executed by the Board of
County Commissioners or their designee in accordance with such approval.
IN WITNESS WHEREOF, the Parties hereto have affixed their hands and seals to this
Agreement the day and year first set forth above,and the individuals who execute this Agreement
personally represent and warrant that they have full authority to execute this Agreement on
behalf of the respective Parties.
[Signature pages follow]
SenleiiwntAgreemenf(ifid ficle(s.ve
MAILLOUX AND SONS,INC.
By:
Name:
"fide:
Date:—
STATE.OF'Ff p'1*4�],C L I__
.4—
"OUN ?
l'Y OF
Oil this IL day of A'e" 13,before tile.personally appeared.l'1k A'-4'L'1.10"i "l'.
is I j personally known to tile or I hes produced fit....I/, tj as identification and
who bein® by tile duly sworn did depose and state that llC/ShC is the
mailloux rand Sons, hic., marned in the Foregoing Sefflement.4greement and Re/ecmv, that h0she
executed the Foregoing instrument on behalf of the Corporation with full authority to(to so front
the Board ot'Directors of the Corporation,and that he/she executed the foregoing instrument on
behalf ol'the Corporation 110i'the uses and purposes set Forth therein.
Notary Public
SEAL,
VICTCHIAL PYLE
m'All
Settlement Agreement and Release
� 9
DEVELOPERS SURETY AND INDEMNITY
COMPANY
Name: %4a,�}-�V lY) 77)00 —
Title: /
Date:
STATE OF
COUNTY OF
On this_day of August, before me personally appeared -� , who
is [ ] personally known to me or [] has pro /� as identification and
who being by me duly sworn did depose and state ne is the of
Developers Surety and Indemnity Company, n in the ing Settlement Agreement and
Release, that he/she executed the fore ' instrument on behalf a Corporation with full
authority to do so from the Bo erectors of the Corporation, and tha /she executed the
foregoing instrument on of the Corporation for the uses and purposes set therein.
Notary Public
SEAL
CALIFORNIA JURAT WITH AFFIANT STATEMENT
See Attached Document(Notary to cross out lines 1-6 below)
�1See Statement Below(Lutes 1-5 to be completed only by document signer(s), notNotary)
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Sig lure of Docurnmt Signer No.t S nature of Document SWror No.S(ef any)
State of California
County of ORANGE
Subscribed and swornto(or affirmed)before me on this
12 � day of September 2'Q y
Weontlt
(1) Susan Moore
AYNE C proved to on the basis o saner
atisfactory evidence to e
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proved to me on the basis of satisfac eviden to be
the person who apeared before a <)
Signaturej—�
P Notary Seal S!g¢¢at
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Though the information below is not required by law,it may prove
valuable to persons retying on the document and could prevent
fraudulent removal and reattachment of this form to another document Top of ftmb hem Top of chums¢has
Further Description of Any Attached Document
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Settlement Agreement and Release
!' ap � 10
BOARD OF COUNT COMMISSIONERS MONROE
COUNTY,FLORIDA
By:
Mayor
Date:
Attest:
Amy Heavilin, CPA,
Clerk of Circuit Court
By:
Deputy Clerk
Date:
MONROE COUNTY ATTORNEY
4NPPROVED AS TOOATILEENE W. CASSEL
SSISTANT COUNTY ATTORNEY
Date -
3�4'h�d coP 7