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Backup Documents 06/14-15/2011 Item #11B ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP! 1 B TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Oftice. The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP Complete routing lines # I through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the excention of the Chairman's signature, draw a line through routing lines #1 through #4, comolete the checklist, and forward to Sue Filson (line #5). Route to Addressee(s) Office Initials Date (List in routing order) I. 2, 3, 4. 5, Ian Mitchell, BCC Office Board of County Commissioners ~ '/(( III Supervisor 6. Minutes and Records Clerk of Court's Office PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive summary. Primary contact information is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the item.) Name of Primary Staff Jacqueline Hubbard, Esq, Phone Number X8400 Contact Agenda Date Item was June 14,2011 Agenda Item Number lIB Approved by the BCC Type of Document Mediated Settlement Agreement Number of Original One Original and Six Attached Documents Attached Copies 1. INSTRUCTIONS & CHECKLIST Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is a ro riate. Original document has been signed/initialed for legal sufficiency, (All documents to be signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney, This includes signature pages from ordinances, resolutions, etc, signed by the County Attorney's Office and signature pages from contracts, agreements, etc, that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and ossibl State Officials,) All handwritten strike-through and revisions have been initialed by the County Attorney's Office and all other arties exce t the BCC Chairman and the Clerk to the Board The Chairman's signature line date has been entered as the date ofBCC approval of the document or the final ne otiated contract date whichever is a licable. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's si nature and initials are re uired. In most cases (some contracts are an exception), the original document and this routing slip should be provided to Ian Mitchell in the BCC office within 24 hours ofBCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of our deadlines! The document was approved by the BCC on June 14,2011 and all changes made during the meeting have been incorporated in the attached document. The County Attorne 's Office has reviewed the chan es, if a Iicable, JWH Yes (Initial) JWH N/A (Not A licable) 2, N/A 3. JWH 4. JWH 5. N/A 6, I: Forms/ County Forms/ Bee Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05, Revised 9.18.09 MEMORANDUM Date: June 17, 2011 To: Jacqueline Hubbard, Assistant County Attorney County Attorney's Office From: Ann J ennej ohn, Deputy Clerk Minutes & Records Department Re: A Mediated Settlement Agreement for the case KER Enterprises, Inc., d/b/a Armadillo Underground v. AP AC-Southeast, Inc., et al v. Collier County Twentieth Judicial Circuit Court Case No. 08-3496-CA Attached are six (6) copies of the agreement referenced above, (Item #llB) approved by the Board of County Commissioners on Tuesday, June 14,2011. The seventh original document has been held in the Minutes and Records Department for the Board's Official Record, If you have any questions, please contact me at 252-8406, Thank you, Attachment (6) lIB lIB In The Twentieth Judicial Circuit Court in and for Collier County, . Florida Case No, 08-3496-CA KER Enterprises, Inc. d/b/a Armadillo Underground, Plaintiff, v. AP AC-Southeast, Inc, and Liberty Mutual Insurance Company, Defendants, AP AC-Southeast, Inc., Third Party Plaintiff, v. Collier County, Florida, Third Party Defendant. / Mediated Settlement Agreement, dated May 20, 2011 In consideration of the promises, covenants and conditions contained herein, KER Enterprises, Inc, d/b/a Armadillo Underground ("Armadillo"), AP AC-Southeast, Inc, ("AP AC"), and Collier County, Florida ("County"), agree as follows: 1. Settlement Amount to AP AC. County will pay to AP AC the full and final settlement amount of Four Million Five Hundred Thousand Dollars ($4,500,000.00) within thirty (30) days of the approval of this Agreement by the Collier County Board of County Commissioners ("Board"), as set forth below. 2. Settlement Payment to APAC. The aforesaid payment to APAC will be made either by wire transfer to the Vezina, Lawrence & Piscitelli, P,A. Trust Account, or by check payable to "Vezina, Lawrence & Piscitelli, P,A, Trust Account," which, in either event, shall be delivered to APAC's counsel, Vezina, Lawrence & Piscitelli, P .A" by or before the date indicated in paragraph 1 above, All payments shall be subject to clearing the recipient's account in the ordinary course. Vezina, Lawrence & Piscitelli, P,A, will, within ten (l0) days from the date hereof, 1 ~Ia ~E~ lIB provide to counsel for the County that firm's federal tax identification number and the firm's trust account's wire transfer instructions. 3. Settlement Amount to Armadillo. Within no more than seven (7) days of the aforesaid settlement funds clearing the Vezina, Lawrence & Piscitelli, P,A. Trust Account, AP AC shall pay to Armadillo the full and final settlement amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00), Such payment will be made either by wire transfer to the McRae & Metcalf, P .A. Trust Account, or by check payable to "McRae & Metcalf, P.A. Trust Account," which, in either event, shall be delivered to Armadillo's counsel, McRae & Metcalf, P.A" by or before the date indicated in the first sentence of this paragraph. All payments shall be subject to clearing the recipient's account in the ordinary course. McRae & Metcalf, P,A, will, within ten (10) days from the date hereof, provide to counsel for the APAC that firm's federal tax identification number and the firm's trust account's wire transfer instructions. 4. Stipulation for Dismissal. Within ten (10) days of the aforesaid settlement funds being paid to AP AC and Armadillo, counsel for Armadillo shall prepare and deliver to the attorneys for AP AC and the County a Stipulation for Dismissal with Prejudice with a proposed Order on the Stipulation, which shall provide that such Stipulation may be executed in counterparts, and that this entire action, including all claims, counterclaims and third-party claims is dismissed with prejudice, with all parties to bear their own attorneys' fees and costs, Within 7 days of receiving the same, the attorneys for AP AC and the County shall execute the Stipulation of Dismissal with Prejudice and return such executed Stipulations to counsel for Armadillo, Within 7 days of Armadillo's counsel receiving such executed Stipulations, Armadillo's counsel shall execute the Stipulation and file the same with the Court, with the request that the Court enter the Order of Dismissal with Prejudice, 5, Countv's Representation of No Claims. This civil action and this Agreement pertain to the County's Vanderbilt Beach Road (CR862) Project No. 63051 (the "Project"), The County hereby represents that it has no knowledge of any existing warranty claims or claims for latent defects arising out of or relating to the Project. 6, Release from Countv to AP AC and Armadillo. Except for the obligations of this Agreement, which are not hereby released and which shall survive the execution hereof, the County hereby releases AP AC, its surety on the Project, and Armadillo, and its surety on the Project, from any and all claims arising out of or relating to the Project, except for any claims that may hereafter arise for latent defects. 7. Release from APAC to the Countv. Except for the obligations of this Agreement, which are not hereby released and which shall survive the execution hereof, APAC hereby releases the County from any claims for compensation or 2 ~~ 'L~L ~ lIB damages whatsoever arising out of or relating to the Project or APAC's contract with the County pertaining to the Project. 8. Release from Armadillo to APAC and the County. Except for the obligations of this Agreement, which are not hereby released and which shall survive the execution hereof, Armadillo hereby releases APAC and its surety, Liberty Mutual Insurance Company, and the County, from any claims for compensation or damages whatsoever arising out of or relating to the Project or Armadillo's subcontract with AP AC pertaining to the Project and/or the Payment Bond issued by AP AC and Liberty Mutual Insurance Company pertaining to the Project. 9. Release from AP AC to Armadillo. Except for the obligations of this Agreement, which are not hereby released and which shall survive the execution hereof, AP AC hereby releases Armadillo and its surety on the Project, from any and all claims arising out of or relating to the Project and/or the Performance Bond issued by Armadillo and its surety, except for any claims that may hereafter arise for latent defects, 10, Due Dates Falline: on Weekends or Holidavs. In the event that the date of any act required to be performed by this Agreement (including, but not limited to, the payment of any money) falls on a weekend or a federal holiday, then the same shall not be required to be performed until the next business day thereafter. 11, Entire Ae:reement. This Agreement sets forth the entire understanding of the parties and no verbal or written warranties or representations have been made or have been relied upon which do not appear in writing within this Agreement. Any reliance on verbal or other representations which do not appear within this Agreement shall be deemed unjustifiable reliance, Each party hereto is represented by that party's own counsel (or has had the opportunity to confer with counsel of their own choosing) and has had the benefit of (or the opportunity to have the benefit of) such counsel's advice in reviewing, commenting upon, and modifying this Agreement. 12. Modification of Ae:reement. This Agreement may not be amended or modified except by written instrument signed by all of the parties hereto, and the parties agree that this provision may not be waived except in writing, 13, Waiver The rights of the parties under this Agreement are to be considered cumulative, and the failure on the part of any party to exercise or enforce properly or promptly any rights arising out of this Agreement shall not operate to forfeit or serve as a waiver of any of those or other rights, The waiver by one party of the performance of any covenant or condition herein shall not invalidate this Agreement, nor shall it be considered to be a waiver by such party of any other covenant or condition herein, The waiver by any party of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. 3 {;~ 118 14. Mediator As Scrivener; Interpretation, The mediator has provided the initial draft of this Agreement to the parties and their counsel as a draft for their consideration, The mediator has done so as an accommodation to assist the parties in memorializing their agreement and has not done so in order to render any legal advice, The parties and their counsel have been free to add to, delete from, and to otherwise change the initial draft as they have seen fit. Any changes made to the initial draft of this Agreement have been at the request of one or more of the parties to this Agreement (or their counsel) and represent the memorialization of their intent. The parties hereto acknowledge and agree that the mediator has not provided them with any legal advice (either during the course of the mediation or in connection with the negotiation and preparation of this Agreement), and that they have obtained (or have had the opportunity to obtain) their own independent legal advice prior to executing this Agreement. The parties hereto agree that in the event of any dispute as to the precise meaning of any term or provision contained herein, the principle of construction and interpretation that written documents are to be construed against the party preparing the same shall not be applicable. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter, all as the context reqUires. 15, Cooperation, The parties hereto agree to cooperate fully in the execution of any documents or performance in any way which may be reasonably necessary to carry out the purposes of this Agreement and to effectuate the intent of the parties hereto. 16. No Admission of Liabilitv. By this settlement, no party admits any liability, but rather the parties have agreed to this settlement as a compromise of disputed claims in the interests of avoiding the costs and uncertainty of continued litigation, 17. Time is of the Essence, Time is of the essence of this Agreement. 18, Headine:s. The headings used in this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any provision in it. 19, Severabilitv, If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, whether on its face or as applied, the remaining provisions shall remain in full force and effect. 20, Benefit and Bindine: Effect, This Agreement shall inure to the benefit of and be binding upon the parties, their heirs, successors and assigns, This Agreement may be executed in one or more counterparts, each of which shall be deemed an 4 ?- /5) ~iJ ~ lIB original, but all of which together shall constitute one and the same instrument. The individuals signing below on behalf of entities represent and warrant that they have the full authority to bind their respective entities to all of the provisions hereof. Signatures by facsimile transmission or other electronic transmission of this Agreement shall be acceptable and binding upon the Parties, A copy hereof shall be as binding as the executed original. 21. Governine: Law, This Agreement shall be governed by the laws of the State of Florida, without regard to its principles of conflicts of law. 22, Attornevs' Fees, In any litigation arising out of or relating to this Agreement, or to the interpretation or enforcement hereof, the prevailing party(ies) shall be entitled to recover the prevailing party's(ies') reasonable attorneys' fees and costs from the non-prevailing party(ies) at the trial and at all appellate levels, 23. Condition Precedent. The foregoing provisions of this Agreement to the contrary notwithstanding, this Agreement shall not become effective unless and until it is approved by a majority vote of the Collier County Board of County Commissioners at a duly noticed meeting to occur not later than June 7, 2011. If so approved, then this Agreement shall be in full force and effect. If not so approved, then this Agreement shall be null and void and of no force or effect. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first stated above, KER Enterprises, Inc. d/b/a Armadillo Underground BY:~~.~ Kirk E. Richmond, President ~ Christopher T, McRae, Esq., Counsel for Armadillo ~\) chael Piscitelli, Esq., Counsel for APAC AP AC-Southeast, Inc. 5 Collier County, Florida Collier County Board of County Commissioners By: ~W. ~ Its: Chairperson Date: cru~ 14 I c).o II Att~.+.\ij;,,'I}}~R;>~ -Q....: ',;~\ .' ..,.,..'')? .', ..~ . '. '^" '". ~ 'if O( \. Approved as to form: uk 1e.L a queline W. Hubbard, Esq, unty Litigation Section Chief 6 118 ltem# ~ ~~~nda ~\