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2001-047 Settlement Agreement w/Cumberland Casualty• • RESOLUTION 47-2001 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK TO ENTER INTO A SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH CUMBERLAND CASUALTY AND SURETY COMPANY ATTACHED AS EXHIBIT "A", WHICH SETTLEMENT AGREEMENT PROVIDES THE VILLAGE WITH SETTLEMENT PROCEEDS OF $35,591.97 IN EXCHANGE FOR RELEASE OF CUMBERLAND CASUALTY AND SURETY COMPANY; AND, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA: Section 1. The Village Council of the Village of North Palm Beach, Florida, does hereby approve the Settlement Agreement and Release of All Claims with Cumberland Casualty and Surety Company, attached as Exhibit "A", which agreement provides the Village with settlement proceeds of $35,591.97 in exchange for release of Cumberland Casualty and Surety Company. Section 2. The Mayor and Village Clerk are hereby authorized and directed to execute the agreement with Cumberland Casualty and Surety Company, set forth in Exhibit "A" for and on behalf of the Village of North Palm Beach. Section 3. This resolution shall take effect immediately upon its adoption. PASSFn ntin nnnprGn Tuic ~drti nnv nG nnev ~nn~ (Village • ATTE: • SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Agreement shall be deemed effective when the VILLAGE OF NORTH PALM BEACH (the "Village") and CUMBERLAND CASUALTY AND SURETY COMPANY ("Cumberland") sign it in counterpart. WHEREAS, the Village issued a written Purchase Order (the "Contract")dated the 27th day of August, 1997 to ACTION MECHANICAL CONTRACTORS ("Contractor") for work generally described as HVAC Modifications to the North Palm Beach Country Club ("Project"); WHEREAS, Cumberland, on or about the 18th day of August, 1997 provided a Performance Bond ("Bond") in favor of the Village to secure the performance obligation of Contractor pursuant to the Contract; WHEREAS, on July 1, 1998, the Village declared Contractor to be in default on the Project; WHEREAS, by letter dated September 24, 1998, the Village called upon Cumberland to complete the work on the Project in accordance with the Contract bonded by Cumberland; WHEREAS, Cumberland arranged for the completion of the work; • WHEREAS, the work is now complete to the Village's satisfaction; WHEREAS, the Village claims that Cumberland remains obligated under the Bond and has demanded that Cumberland pay the Village various sums to settle all disputes arising out of or relating to the Project and the Bond; WHEREAS, Cumberland disputes its obligation or liability to pay the amount the Village has demanded and believes it has viable claims and/or defenses to defeat the Village's claims or relieve Cumberland of liability on the Village's claims; and WHEREAS, the signatories to this Agreement desire to settle and dispose of amicably all claims and causes of action that could have been brought by either party in any action or proceeding alleging claims against the other party pertaining to the Project, the Contract, or the Bond. NOW, THEREFORE, inconsideration ofthe mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Village and Cumberland do hereby covenant and agree as follows: The recitations set forth above are true and correct. 2. The execution of this Agreement is a matter of convenience and neither the payment nor the acceptance of the settlement proceeds identified in paragraph 3 shall be considered as an admission of any fact or as an admission of any liability whatsoever. 3. Cumberland shall pay the Village Thirty-Five Thousand Five Hundred Ninety-One Dollars and Ninety-Seven cents ($35,591.97). 4. Cumberland will deliver the settlement proceeds identified in paragraph 3 to George Baldwin, Esquire, counsel for the Village at Brant and Baldwin, 330 Federal Highway, Lake Park, FL 33403, not later than twenty (20) days after the date on which this Agreement was last signed below. 5. In exchange for the consideration paid or provided by the parties, the Village and Cumberland, and their respective agents, officers, directors, shareholders, partners, representatives, employees, affiliates, attorneys, independent contractors, parent companies, sibling companies, subsidiaries, masters, servants, council members, successors and assigns hereby remise, release and forever discharge each other and their respective agents, officers, directors, shareholders, partners, employees, affiliates, attorneys, independent contractors, parent companies, sibling companies, subsidiaries, masters, servants, council members, successors and assigns of and from any and all, and all manner of, action and actions, cause and causes of action, suits, debts, breaches of duty, other breaches, notes, dues, sums of money, accounts, reckonings, undertakings, bonds, bills, specialties, covenants, contracts, controversies, agreements, guarantees, indemnifications, promises, liens, variances, trespasses, damages, judgments, taxes, interest, penalties, assessments, extents, executions, expenses, claims, demands and liabilities whatsoever of every kind and nature, direct or consequential, whether or not well-founded in fact or in law, and whether in law or equity or • otherwise, that either of them ever had, now have, or that they can, shall or may have against each other, for or by reason of any matter, cause, or anything whatsoever, pertaining to or relating in any way to the Project, the Contract, or the Bond. Nothing contained in this paragraph or this Agreement shall be construed as a release of any claims that the Village or Cumberland can, shall, or may have against Santiago Bolivar d/b/a Action Mechanical Contractors and/or Action Mechanical Contractors, Inc., it being expressly understood and agreed by and between the signatories to this Agreement that all such claims are unaffected by this Agreement. 6. Up to the amount of $35,591.97, the Village hereby quit-claims, transfers, awards and assigns all of its rights, title, interest, claims, actions, choses-in-action or causes of action, debts, dues, sums, expense and compensation of whatsoever nature, whether known or unknown, arising from or related to the labor, services, or materials furnished on the Project by Santiago Bolivar d/b/a Action Mechanical Contractors and/or Action Mechanical Contractors, Inc. Without limiting the generality of this assignment, the Village does hereby authorize Cumberland to collect up to $35,591.97 from Santiago Bolivar d/b/a Action Mechanical Contractors and/or Action Mechanical Contractors, Inc. on the assigned claims, and does hereby empower Cumberland to grant to Santiago Bolivar d/b/a Action Mechanical Contractors and/or Action Mechanical Contractors, Inc. a release or releases of such claims, sums, dues, choses-in-action, or causes of action, as Cumberland deems correct and proper upon the terms, conditions and date as approved by Cumberland. 7. This Agreement shall not be modified or altered unless set forth in writing and signed by both parties. 2 • 8. This Agreement shall be signed by an authorized representative of the Village and Cumberland. By signing this Agreement, each authorized representative declares and represents that: (1) he has the full authority to bind the entity on whose behalf he signs this Agreement; (2) he and the entity on whose behalf he signs this Agreement fully understand the terms of this Agreement; (3) he and the entity on whose behalf he signs this Agreement voluntarily accept the terms of this Agreement for the purpose of making a full and final compromise, disposition, and settlement of any and all claims described in paragraph 5 above; and (4) the entity on whose behalf he signs this Agreement has instructed him to sign this Agreement for the express purpose of precluding forever any further or additional claims or causes of action relating to the claims described in paragraph 5 above. 9. This Agreement may be executed by the parties in two or more counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. This Agreement shall become effective when signed in counterpart, and it shall not be necessary for both parties to sign the same copy of this Agreement. 10. This Agreement incorporates, embodies, expresses, and supersedes all agreements and understandings between its signatories. The parties agree and represent that there are no representations upon which they relied in entering into this Agreement that are not set forth in writing in this Agreement. 11. This Agreement shall be deemed to constitute a contract made and entered into • under the laws of the State of Florida. For all purposes, this Agreement shall be construed and governed in accordance with the laws of the State of Florida. The prevailing party in any litigation, arbitration, or mediation arising out of a breach or threatened breach of the Agreement shall recover its attorney's fees and costs incurred therein and on appeal. 12. If any provision or term of this Agreement is deemed to be illegal or unenforceable in any respect, such provision or term, to the extent illegal or unenforceable shall not affect any other provision or term hereof, and this Agreement shall be construed as if such provision or term had never been contained herein. 13. Each of the parties to this Agreement agrees to cooperate fully to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms, conditions, and intent of this Agreement. 14. The parties agree to bear their own attorney's fees and costs for all matters leading up to, and including, the entry of this Agreement. 15. The parties represent that they have not sold, assigned, granted, conveyed or transferred to any other person, firm, corporation or entity any of the claims, demands or causes of action referred to in this Agreement that they now own or hold, or have owned or held or may own or hold against the other party to this Agreement. • 16. The parties understand and agree that the promises and undertakings set forth herein are the sole consideration for the Agreement and that the conditions stated herein are 3 . contractual and not a mere recital that all agreements and undertakings on the subject matter hereof are express and embodied herein. Anything herein to the contrary notwithstanding this Agreement may be fully enforced by any action at law or in equity and nothing herein shall preclude or be construed to preclude any action in law or in equity to enforce the provisions of this Agreement. 17. The parties hereby acknowledge that they are and have been represented by counsel in connection with the negotiation of this Agreement, that the provisions of this Agreement and the legal affect thereof have been fully explained to them and they have entered into this Agreement freely and voluntarily and without coercion or undue influence. THE SIGNATORIES TO THIS AGREEMENT ACKNOWLEDGE THAT THEY HAVE READ THE FOREGOING AGREEMENT, FULLY UNDERSTAND ITS TERMS AND CONDITIONS, AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS • Date: __..~ =o?f O/ CUMBERLAND CASUALTY AND SURETY CO. r Print Name: E~« ~ FoQ~,~~elQ,id Its: ~(~eACO'C~- Date: 5-!/- m! L~ 4 Its: ~A,YD.P