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Backup Documents 06/27/2023 Item #16K 6ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP ' 6 K 6 TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later than Monday preceding the Board meeting. **- ROUTING SLIP** Complete routing lines # 1 through #2 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the evrantion of the Chairman's signature draw a line through routine lines # 1 through #2. complete the checklist, and forward to the County Attomev Office. Route to Addressees (List in routing order) Office Initials Date 1. 2. (Enter your Dept here) 3. County Attorney Office County Attorney Office CaniYn 4 La 4. BCC Office Board of County Commissioners 5. Minutes and Records Clerk of Court's Office C\„ , �k7 flat PRIMARY CONTACT INFORMATION I I 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 mav need to contact staff for additional or missing information. Name of Primary Staff 15%/ Phone Number 2 1 3 Contact / Department cl s e� Agenda Date Item was Agenda Item Number Approved by the BCC 3 It Type of Document(s) Number of Original Attached SCff�trn4. t 41s4se Documents Attached I PO number or account number if document is to be recorded INSTRUCTIONS & CHECKLIST Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is Yes N/A (Not appropriate. Initial A licable l . Does the document require the chairman's signature? (stamped unless otherwise stated) 2. Does the document need to be sent to another agency for additional signatures? if yes, f� provide the Contact Information(Name; Agency; Address; Phone on an attached sheet. 3. Original document has been signed/initialed for legality. (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.) 4. All handwritten strike -through and revisions have been initialed by the County Attorney Office and all other parties except the BCC Chairman and the Clerk to the Board. 5. The Chairman's signature line date has been entered as the date of BCC approval of the document or the final negotiated contract date whichever is applicable. 6. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's signature and initials are required. 7. In most cases (some contracts are an exception), the original document and this routing slip should be provided to the County Attorney Office at the time the item is uploaded to the agenda. 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 your deadlines! 8. The document was approved by the BCC on 6 and all changes made during the meeting have been incorporated in the attached document. The County Attorney Office has reviewed the changes, if applicable. 9. Initials of attorney verifying that the attached document is the version approved by the BCC, all changes directed by the BCC have been made, and the document is ready for the Chairman's signature. Please email a completed copy to Madison.Bird@Colliercountyfl.gov 1: Forms/ County Forms/ BCC .26.05; 2.24.05; 11/30/12; 4/22/16; 9/10/21 5.0" 16K 6 MEMORANDUM Date: June 28, 2023 To: Madison Bird County Attorney's Office From: Martha Vergara, Sr. Deputy Clerk Boards Minutes & Records Department Re: Settlement Agreement & Release Amerisure Mutual Insurance Company Attached is one (1) scanned copy of the original of the document referenced above (Item #16K6), approved by the Board of County Commissioners on Tuesday, June 27, 2023. The original has been kept by Minutes and Records Department as part of the Board's Official Records. If you have any questions, please contact me at 252-7240. Thank you. Attachment I6K 6 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (hereafter "Agreement") is entered between and among the Board of County Commissioners of Collier County, Florida (the "County"), Amerisure Mutual Insurance Company ("Amerisure"), and Mammoth Constructors, LLC ("Mammoth") (the parties to this Agreement may be referred to hereinafter individually as "Party" and/or collectively as "Parties") out of the desire to finally and fully resolve the disputes as between and among the Parties as set fo�h below. RECITALS WHEREAS, this dispute arises out of damage caused to an underground 24-inch di meter wastewater force main utility pipe owned, operated and maintained by the County, on the night of January 31, 2017, at the northwest corner of Davis Boulevard and County Barn Road/Glen Eagle Boulevard in Naples, Florida ("the Intersection"), and the resulting repair of said force main, and includes, but is not limited to, the County's claims that it has suffered property damage. WHEREAS, the Florida Department of Transportation ("FDOT") was the owner of a �oad construction project ("the FDOT Project") that involved, among other things, the installation of four new traffic signals at the four corners of the Intersection. WHEREAS, Preferred Materials, Inc. was the general contractor for the FDOT eject. Preferred Materials, Inc. subcontracted with Highway Safety Devices, Inc. for fic signalization services. WHEREAS, Mammoth was a sub -sub -contractor to Highway Safety Devices, Inc. the Project, contracted to install the four new traffic signals at the Intersection. WHEREAS, on or about January 15, 2021, the County filed a lawsuit against Mammoth, styled Board of County Commissioners of Collier County, Florida v. Mammoth Constructors, LLC in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 2021-CA-000132 (the "Litigation"). in �WHEREAS, Mammoth denied all allegations of liability and raised certain defenses ,he Litigation, including comparative fault of the County and/or its agents. WHEREAS, Amerisure, which insured Mammoth, filed suit against Mammoth and th County, seeking a declaration from the Court as to Amerisure's obligation under a contract of insurance issued to Mammoth (the "Coverage Action"). The Coverage Action was styled Amerisure Mutual Insurance Company, Plaintiff v. Mammoth Constructors, LIJC and Board of County Commissioners of Collier County, Florida, Defendants, in the United States District Court, Middle District of Florida, Fort Myers Division under Case No 2:23-CV-00108-J LB -KC D. 133125328.6 16K 6 WHEREAS, the County, Amerisure and Mammoth wish to resolve all of the disputes and claims that have and could have been brought arising out of and related to the Litigation and the Coverage Action, and have agreed to do so as to avoid the uncertainties and vicissitudes of litigation. NOW THEREFORE, for and in consideration of the promises and mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to the following: 1. TERMS. A. Recitals Incorporated. All of the foregoing Recitals are hereby incorporated by reference as part of this Agreement. B. Definitions: a) "County" means the Board of County Commissioners of Collier County, Florida, including its respective past, present and future, direct and indirect commissioners, partners, subsidiaries, affiliates, parent entities, divisions, districts, agencies, joint ventures, employees, officers, directors, shareholders, principals, agents, attorneys, representatives, constituent members, predecessors, successors, and/or assigns. b) "Mammoth" means Mammoth Constructors, LLC and each of its respective insurers including but not limited to Amerisure Mutual Insurance Company, its current, former, and future owners, shareholders, directors, officers, employees, laborers, reinsurers, agents, adjusters, contractors, servants, representatives, partners, affiliates, joint ventures, affiliated entities, parent companies, subsidiaries, related companies, members, board members, managers, and attorneys, and each of their respective predecessors, successors, heirs and assigns. C. Settlement Payments. 1. Within the time frames laid out below of execution of this Agreement by the County and Mammoth, Mammoth and its insurer, Amerisure, shall pay, or cause to be paid on their behalf, to the County the respective amounts (the "Settlement Payments") as follows: a. Amerisure shall pay to the County Five Hundred Fifty Thousand Dollars and No Cents ($550,000.00) on behalf of Mammoth within twenty (20) days of execution of this Agreement; 2 133125328.5 16K 6 b. Mammoth shall pay to the County Four Hundred Thousand Dollars and No Cents ($400,000.00) within forty-five (45) days of execution of this Agreement. 2. All payments shall be made by check payable to "Collier County Board of County Commissioners" and mailed to: County Attorney's Office Attn: Colleen Green Harmon Turner Bldg, 3299 Tamiami Trail East, Suite 800 Naples, FL 34112 3. The payment obligations of each Parry set forth above are several, not joint. Each Party's several liability is limited to the respective amounts set forth in their respective Settlement Payments. The Parties agree that the timing of delivery of the Settlement Payments as reflected in Sections I(C)(1)(a) and I(C)(1)(b) of the Agreement are material terms. Time is of the essence under this Agreement. Unless otherwise expressly agreed in writing by the Parties, failure to make a timely and complete Settlement Payment under Section I(C)(1)(a) and I(C)(1)(b) above shall constitute a material breach of this Agreement. C. Dismissal of the Litigation and Coverage Action: Within 10 calendar days of receipt of the Settlement Payments as described in Section I(C)(1)(a) and I(C)(1)(b), and an Agreement fully executed by the Parties, the County shall dismiss all claims against Mammoth in the Litigation, with prejudice and with each Party to bear their own respective attorneys' fees and costs. Within 10 calendar days of receipt of the County's dismissal of claims in the Litigation, Amerisure shall dismiss all claims against Mammoth and the County in the Coverage Action, with prejudice and with each Party to bear their own respective attorneys' fees and costs. 11.'ASSIGNMENT AND RELEASES. A. Releases: In consideration of the Settlement Payments and the promises and mutual covenants contained in this Agreement, the sufficiency of which is hereby acknowledged, and except for the obligations created by this Agreement, the County hereby releases, waives, remises, acquits and discharges Mammoth and its insurer from any and all past, present, and future "claims" (as that term is defined below), from now until eternity, made by, or which could have been made by, the County concerning, pertaining to, arising out of, or related to the Litigation, and the claims raised in the County's Complaint and all amendments thereto. 3 133125328.5 16K 6 "Claim" or "claims," as used herein, means all past, present or future, actual or threatened, suspected or unsuspected, claims, rights, liabilities, demands, injuries, statutory, regulatory or other obligations, third -party claims, cross claims, requests, administrative proceedings, counts, cause and causes of action, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, (a,ral or written), controversies, agreements, promises, misrepresentations, deceit, fraud, fraud in the inducement, unfair and deceptive trade practices, breach of fiduciary duties, concealment, failure to communicate, disclosure, failure to disclose, negligent design, negligent misrepresentation, acts, omissions, representations, rights of restitution, rights of rescission, variances, trespasses, damages, judgments, executions, liens, attachments, costs, interest, expenses, directives, warranties or any other cause of action, assertion of liability or order of any kind, whether legal or equitable, and whether currently known or unknown, fixed or contingent, matured or un-matured, liquidated or un-liquidated, direct or consequential, foreseen or unforeseen, latent or patent, whether or. not accrued, punitive or exemplary, violations, statutory violations, and/or other causes of,action, whether based on theories of assignment, subrogation, contribution, equitable subrogation, equitable contribution, equitable indemnity, contractual indemnity, common lays indemnity, breach of contract, negligence, property damage, consequential damage, personal property, real property, personal injury, loss of use, wage loss and/or earning impairment, express warranty, implied warranty, Violation of Building Code, actions or claims for insurance coverage, additional insured coverage, insured contract coverage or insurance benefits (whether against the insured or against the carrier), defense or litigation costs, indemnification of any kind, breach of duty or obligation, breach of the duty to defend or indemnify, improper defense or settlement practices, statutory bad faith, common law bad faith, extra -contractual claims under §§624.155 or 626.9541, Fla. Stat. or any statutory, equitable or common law theory of any jurisdiction, extra -contractual damages, violation of any duty of good faith and fair dealing, unfair claims handling or any other insurer misconduct, and/or any and all claims for attorneys' fees or costs assessed under common law or any statute, including but not limited to §627.428 Fla. Stet., §626.9373, Fla. Stat. and/or confession of judgment doctrine that were asserted in or',could have been asserted in or arise from or relate to the Litigation. B. Releases by Mammoth and Amerisure. Mammoth and Amerisure, on behalf of themselves, and their past, present and future attorneys, agents, servants, contractors, subcontractors, suppliers, representatives, insurers, successors in interest, and assigns of all of them, shall release and forever discharge each other and the County, its affiliates, subsidiaries, related companies, predecessors, successors and/or assigns, subcontractors or affiliates, employees, former employees, agents, attorneys, officers, directors, principals, shareholders, and members, including, without limitation, the Collier County Public Utilities Engineering and Project Management Division, the Collier County Water -Sewer District Engineering and Project Management Division, and the Collier County Water -Sewer District from any and all claims of whatever nature or description, whether now known or arising in the future, and whether arising from contract, indemnity, warranty, express or implied, in contract or tort, relating to the Litigation, including claims for! attorneys' fees, court costs, or related expenses arising out of or related to the Litigation. 4 133125328.5 16K 6 C. Claims By and Against Others: No provision of this Agreement is intended to iit the claims the County or Mammoth may pursue against non -released parties. ADDITIONAL TERMS AND CONDITIONS. A. No Admission of Liability or Coverage. The Parties understand and agree that the aforementioned monetary consideration is not to be construed as an admission o� liability or wrongdoing on the part of any of the Parties, all of whom expressly deny same, or an admission of coverage by any of the insurers or waiver of any policy prI visions, or a confession of judgment by any of the Parties or any of the Parties' in�urers. B. Representation of Comprehension of Documents. The Parties acknowledge th t this Agreement is freely and voluntarily executed, and that the Parties have had a full opportunity to read the contents of this Agreement and have had the benefit of counsel in reviewing and entering into said Agreement. The Parties acknowledge that the A reement has been translated to him/her/them/it in a language of his/her/their/its choosing and that this Agreement has been completely read and understood. C. Capacity to Execute, The Parties hereto declare, covenant, and warrant that hi /her/they/it and/or his/her/their/its undersigned representatives are over the age of ei hteen (18) years, and that his/her/they/it is/are not suffering from any legal, mental, or ph sical disabilities which would impair or disable him/her/them/it from executing this Agreement and that there have been no representations and/or statements made by any of ithe Parties hereto or any other of the Parties' agents, insurers, employees, or representatives to influence them in making or executing this Agreement. The Parties further declare, covenant, and warrant that the individuals executing the Agreement on ea h Party's behalf have the requisite authority to do so and to bind said Party to the ter s of this Agreement; provided, however, that this Agreement is subject only to the Bo rd of County Commissioners of Collier County, Florida approving the Agreement at its my noticed meeting of June 27, 2023. D. Choice of Law. This Agreement shall be deemed to have been executed and del vered within the state of Florida, and the rights and obligations of the Parties shall be co strued and enforced in accordance with, and governed by, the laws of the state of Flo Ida without regard to principles of conflict of laws. E. Enforcement of Agreement. In the event of any pleading, motion, or hearing to enforce the terms of this Agreement, the prevailing party shall be entitled to an award of attorney's fees for services in enforcing same from the party or parties whose conduct ne essitated the pleading, motion, or hearing. The Parties shall and hereby submit that juri diction and venue with respect to the forum for enforcement of the Agreement shall be he forum in which the Litigation was filed. 13311�5328.5 5 1 sK 6 F. Complete Agreement. The Parties acknowledge and agree that no promise or a reement not herein expressed has been made, that the terms of this Agreement are contractual and not mere recitals, and that there is no agreement or compromise on the part of any of the Parties hereto to do any act or things not herein mentioned. This Agreement constitutes and represents the entire agreement between the Parties hereto and supersedes all prior and contemporaneous agreements, negotiations, r1presentations, warranties and understandings of the Parties with regard to the subject matter set forth herein. In the event that any term or provision of this Agreement is d"med unenforceable or unlawful for any reason, the remainder of the Agreement shall be deemed enforceable and in effect. The Parties acknowledge and agree that this Agreement is subject only to the Board of County Commissioners of Collier County, Florida approving the Agreement at its duly noticed meeting of June 27, 2023. G. Signatures and Counterparts. A facsimile or scanned signature of any party to this Agreement shall be sufficient for all purposes, including enforcement. Additionally, its agreed that this Agreement may be signed in counterparts. H. Modifications. No supplement, modification, or amendment of this Agreement so all be binding unless executed in writing by the Parties. No waiver of any provisions of ths Agreement shall be deemed to constitute a waiver of any other provision, whether similar or not similar; nor shall any waiver constitute a continuing waiver. No waiver shall bEbinding unless set forth in writing signed by the Party making the waiver. I. Covenant Not to Sue. The Parties covenant and agree that they have not, and shall not, bring any other claim, action, suit, or proceeding against each other arising out of or re ated to the Litigation or the matters settled and released by this Agreement. Nothing in Ithis covenant not to sue shall preclude a Party from prosecuting claims against any person or entity who is not a party to this Agreement or who is not expressly released hE rein, and nothing in this covenant shall prevent any Party from bringing an action to enforce the terms of this Agreement. SIGNATURES ON FOLLOWING PAGES 13�125328.5 6 16K 6 IN WITNESS WHEREOF, the Parties have entered into this Agreement and this reement is effective and binding upon the Parties. pun : Mammoth: oard of County Commissioners of Collier Mammoth Constructors, LLC ounty, FI , �2 Signature ignature / Printed Name Rick LoCastro, Chairman frtesI'd eN I rtitle Title Z 2 J uNe gi 20.-)-3 ate Date Amerisure: AiT ST Amerisure Mutual Insurance Company Tom- Eb CLERK B Atte't-as-t¢- hairy an'. !/ �^ ;y 5ig'�ature oily - Signature Jill Chesney Printed Name Sr. Technical Claims Specialist Title 6/8/23 Date as to form and legality County 7 135,125328.5