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Settlement Agreementio% ~i/o y X009- ~ 7 a~ 3/ SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement") is entered into by Ashbritt, Inc., a Florida corporation ("Ashbritt°) and by the City of Miami Beach, a Florida municipal corporation, and hereinafter referred to as ("City") collectively, the ("Parties"). The Parties agree and stipulate to the following: 1. A dispute has arisen between the Parties surrounding those claims and disputes arising out of the claim for Disaster Recovery Services (hereinafter "Service Agreement"). performed by Ashbritt required as part of the emergency response to hurricanes Katrina and Wilma in .2004 and 2005, pursuant to an agreement between the City and. Ashbritt for Disaster Recovery Services dated April 6, 2004. 2. The Parties have reached an agreement as to the dispute and desire to fully and finally resolve any and all claims and/or disputes against each other and their respective agents, employees, officers, independent contractors, servants, and representatives concerning, relating to, or in any way arising out of the dispute, and all other matters regarding the City's obligations, whether actually communicated by the City and/or its respective agents, employees, officers, independent contractors, servants, and representatives, or which is incorporated by.mere implication within the City's Codes and Ordinances, Resolutions, Florida Statutory Law and Florida Case precedent, and any other matters described and/or defined herein. Based on the above and in consideration of mutual covenants and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following: A. The foregoing recitals are true and correct and are incorporated herein. B. The City shall cause to be paid to Ashbritt the sum of $682,181.95 for the remaining balance of Disaster Recovery Services. This payment shall represent full and final payment and settlement of all monies due and owing to Ashbritt from the City. The release and all other conditions of this Agreement are contingent upon payment of said amount. Payment shall be made by delivering a check payable to Ashbritt. C. The City agrees that, consistent with the Service Agreement between the City and Ashbritt, Ashbritt will be offered the first opportunity to provide disaster recovery services from among the City list of eligible contractors in the event of such need by the City for the -2008, 2009 and 2010 hurricane season. The first opportunity for Ashbritt to respond as a disaster services provider may be extended for future years at the sole discretion of the City. This agreement is not intended to provide an exclusive guarantee to Ashbritt that other emergency service provider services will not be utilized by the City or a guarantee for any specific amount or type of services and is subject Ashbritt's performance of services at a level acceptable to the City. 1 of 4 D. Other than as may beset forth in this Agreement, each party shall bear their own attorneys' fees and costs, if any, incurred in connection with the Dispute and this Agreement. ' E. The Parties understand and agree that no party admits liability of any ort by reason .of the above incidents, acts, casualties, events, representations, omissions, conduct, or interpretation. The Parties also understand and agree that this Agreement constitutes the -good faith compromise. of a Dispute and is made. in good faith to terminate any further controversy respecting all claims for damages, causes•of action; or potential liability which could have been ascertained by reasonable: diligence which. either Party to this Agreement may have asserted now, or may assert in the future because of any damages, incidents, acts, casualties, or events, described or alluded.to in this Agreement. F: The Parties hereby release; acquit, and forever discharge each other and their past, present, and future shareholders, directors, officers, employees, principals, agents, servants, independent- contractors, representatives, parent corporations; subsidiaries, afFliates, predecessors, successors; assigns, attorneys, and insurers from any and all actions, causes of action, claims, counterclaims, demands, damages, fines, penalties, assessments, costs; loss of services, expenses, interest, attorneys' fees and compensation whatsoever, in any way relating to, or arising out of the Dispute; and all other matters defined and/or described herein, whether known or unknown, accrued or unaccrued, asserted or unasserted. G. The Parties agree to not instigate, raise, or pursue any complaint or action concerning any other party or their past, present, and future shareholders, directors, officers, employees, principals, agents, servants, independent contractors, representatives, .parent- corporations, subsidiary corporations,... predecessors, successors, assigns, attorneys, and insurers, within any Florida State Jurisdiction or governmental agency which may maintain jurisdiction of these disputed issues. Further, the Parties agree to drop, stop., and/or end any such actions or complaints and to take all necessary actions to seek dismissal of same. H. The Parties warrant and represent that they have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this Agreement. 1. The Parties declare and represent that they were not induced to enter into this Agreement by any representations respecting the nature and extent of any damages, legal liability, or financial responsibility made by any Party or their representatives. J. .This. Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same instrument. A copy of this Agreement transmitted by telefacsimile shall be deemed an original. , 2 of 4 J K. The Parties acknowledge that this: Agreement constitutes the entire agreement. They further acknowledge that they have read it and understand it; that the terms and conditions of this Agreement were arrived at in arm's-length. negotiations between the Parties with all Parties provided the opportunity to seek the advice of legal counsel; that each Rarty's legal counsel did or could have reviewed this Agreement; and that each Party has given due and full considerationto the legal position of the other: in regard to the provisions contained herein: . . L. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid- unless the same is in writing and signed by-.the Party against ..which the enforcement of such modification; waiver, amendment, discharge, or change is sought. M. This Agreement shall be construed, enforced and interpreted in accordance with the laws of the State of Florida. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if crafted jointly by each of the Parties hereto and no presumptions or burdens of proof shall arise favoring any party by virtue of the authorship of-any of the provisions.of the Agreement. The Parties jointly conclude that should this Agreement be challenged by any of the Parties, that venue for bring such challenges shall take place in Miami-Dade County, Florida. N. In the event any provision, term or condition of this Agreement, on behalf of either party, thereto shall be inapplicable, invalid, illegal or unenforceable in any respect, the remainder of this Agreement and application of such provisions; terms or conditions shall not be affected thereby, and shall be enforced to the fullest extent permitted by law. O. It is hereby acknowledged by the Parties that nothing contained in-this Agreement was intended to serve as a waiver of sovereign immunity, as set forth and codified in Section 768.28 of -the Florida Statutes, by the City to: which sovereign immunity is applicable in the recovery of damages in tort for money damages against the state or its agencies or subdivision or injury or loss of property, personal injury, or death caused by the negligent or wrongful .act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment.- P. The parties expressly acknowledge that it is not their intent to create or. confer any rights or obligations in or. upon. ay third person or entity under this Agreement. None of the Parties intend to directly or substantially benefit a third party by this Agreement. The Parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against any of the parties based upon this Agreement. Nothing herein shall be construed as consent by an agency or political subdivision of the State of Florida to be sued by third parties in any manner arising out of this Agreement, or other obligations, whether known or unknown to the Parties. 3 of 4 IN WITNESS WHEREOF, the parties have set their hands and seals on the day... and date first written above: ~ ` STATE OF FLORIDA COUNTY OF MIAMI-DADE ASHBRITT, f e, . (~ The. foregoing instrum nt was ckpowledged before me this ~ ~ day of F--~LQ,h~:(~rt-~ 2009 by 4 ~r as . (',~~U of Ashbritt, Inc., -who is personally known.' to me or who .has produced ~n~rx lu C Y) ~ti~ (type of identification . ,.+ ~~16(1d A8y1 pN ~~i'i - ~ ~ -a~ 6poNtpap~e.• *~% ame~ o :~ ~~ti~~ ®® ~~ D = Notary Public- State of Florida ~. z ~."= ® ?;; o = My Commission Expires:(g~~~~ Jzj saaiaxaN •• ~ \\ ~'i. ~~~° fitness: '':: i r(Il~n}+~~~~ t~ Clit, ' STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF MIAM! BEACH ~- ~ %" .- . org onzale Ci pager n N Th, D foregoing instrument was acknowledged before me this ~_ day of '"'~,:.,,e.~, 20~ by D~ ~ r? as • f ~ of the City of Miami Beach; who is pers y kno o me o who has produced-- . (type of identifica QQ ,, // Name: ~GGC..ovr')'J I~- W~.GZ~~lt~*~ (Print Name) Notary Public -State of Florida My Commission Exp,~~i~ ~ ~ ~'~- F~~~, 8 !~~.~,lA~~ and Release.doc ~ ~~ i:J~C41Ta~i4~ 4of4 ~~ iG771~.1~ ~ 6~'