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HomeMy WebLinkAbout2021-121ASETTLEMENT AGREEMENT AND GENERAL RELEASE THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (the "Agreement") is made and entered into as of this 29th day of September, 2021 (the "Effective Date"), by and between Indian River County, Florida (the "County") and Ahtna Marine & Construction Company, LLC ("Ahtna"). The County and Ahtna may hereinafter be referred to collectively as the "Parties." BACKGROUND WHEREAS, Ahtna is a corporation organized and existing under the laws of the State of Alaska, registered to do business in the State of Florida. Ahtna is in the business of marine construction including, among other things, dredging, shoreline protection, wetlands construction and beach re -nourishment; WHEREAS, the County is a political subdivision with its seat of government located in Vero Beach, Florida; WHEREAS, on July 26, 2020, the County published a solicitation for Indian River County Sector 3 Beach Dune Restoration Project, Bid No.: 202005 (Project No: IRC -1925) (hereinafter, the "Project"); WHEREAS, on September 3, 2020, Ahtna submitted a bid on the Project (the "Bid"). As part of the Bid, Ahtna submitted a Bid Bond issued by Great American Insurance Company, as required by the Bid Specifications (the "Bid Bond"); WHEREAS, on or about September 11, 2020, Ahtna notified the County that for a variety of reasons, it was withdrawing the Bid, which the County contends was submitted after the stated deadline for withdrawing bids. Thereafter, there was substantial communication between the parties; WHEREAS, on September 22, 2020, the County provided Ahtna with a Notice of Award for the Project; WHEREAS, a dispute arose between Ahtna and the County over the Bid, the Notice of Award and the County's rights under the Bid Bond; WHEREAS, the County has notified Ahtna that it has lost the original Bid Bond; and WHEREAS, the parties now wish to fully and finally resolve the dispute over the Bid, the Notice of Award and the County's rights under the Bid Bond without an admission of liability, wrongdoing or fault on the part of either party. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The recitals set forth above are incorporated herein as terms of this Agreement. 2. On or before thirty (30) days from the Effective Date of this Agreement, Ahtna shall, on behalf of itself and each of the Released Parties, pay to the County the sum of One Hundred Thousand Dollars ($100,000.00) (the "Settlement Payment"). The Settlement Payment shall be made by wire transfer to an account as directed by the County in writing. 3. The County shall deliver an executed copy of this Agreement to counsel for Ahtna, who shall hold the Agreement in Escrow until the Settlement Payment has been wired to the County in accordance with paragraph 2. above. Once the Settlement Payment has been wired to the County, counsel for Ahtna shall be free to deliver the fully executed Agreement to Ahtna and/or Great American Insurance Company and the Bid Bond shall be considered discharged, withdrawn and null and void. In the event that the Settlement Payment is not wired to the County in accordance with the terms of this Agreement, this Agreement shall be deemed null and void. 4. The County shall provide the wiring instructions referenced in paragraph 2 to counsel for Ahtna simultaneously with the delivery of a signed copy of this Agreement. 5. The County represents and warrants that it has lost the original Bid Bond and therefore cannot return it to Ahtna or Great American Insurance Company. The County further represents that it has not assigned or transferred the Bid Bond to any other party or entity and agrees to indemnify Ahtna and Great American Insurance Company from any and all costs, expense or amounts it incurs in the event that any parry attempts to collect upon the Bid Bond, including but not limited to reasonable attorneys' fees and costs In the event that the County locates the original Bid Bond, it will immediately send the original Bid Bond to counsel for Ahtna. 6. Ahtna shall be permitted to bid on future projects for which bids are solicited by the County. 7. In the event that the County receives any inquiries regarding its experience with Ahtna, the County will advise the inquiring party that any and all disputes between the parties were promptly and satisfactorily resolved. No party will issue any press releases regarding the dispute or this Agreement. 8. It is further understood and agreed that this Settlement Agreement is the compromise of disputed claims and that the payment made is not to be construed in any way as an admission of liability by Ahtna, which expressly denies any liability for the claims that were or could have been brought by the County, including in connection with the Project, Ahtna's Bid or the Bid Bond. 9. Except for and subject to the respective rights, obligations, and agreements set forth in this Agreement, the County, including the Board of County Commissioners, its representatives, attorneys, employees, and agents, to the fullest extent permitted by law, hereby release, remise, acquit and forever discharge Ahtna and Great American Insurance Company and their respective current and former predecessors, successors, affiliates, subsidiaries, parents, divisions, partnerships, joint ventures, associates, representatives, owners, members, managers, heirs, assigns, shareholders, principals, attorneys, officers, directors, employees, and agents (collectively the "Released Parties") , for, from, and against any and all claims, debts, duties, promissory notes, guaranties, benefits, costs, expenses, judgments, settlements, actions, causes of action, demands, 2 obligations, liabilities, promises, acts, agreements, rights, damages, losses, attorneys' fees, or other relief of any kind or character, whether known or unknown, suspected or unsuspected, asserted or unasserted, whether at law or in equity, which the County now has or may hereafter accrue, including but not limited to those that arise from or out of, are connected with, relate to, or in any way involve, directly or indirectly, the Project, the Notice of Award, the Bid, or the Bid Bond. Notwithstanding the foregoing, this release shall not extend to future claims for breach of this Agreement, in the event that Ahtna does not timely tender the Settlement Payment. 10. The running of time with regard to the Statute of Limitations, estoppel, laches, or any other defense to the claims based on the passage of time (collectively, the "Time Defenses") shall be tolled beginning as of the Effective Date of this Agreement. The running of time with regard to the bringing of any counterclaim by Ahtna shall likewise be tolled beginning as of the Effective Date of this Agreement. All such tolling shall end upon the payment by Ahtna of the amount due under Paragraph 2 of this Agreement. 11. Each Party shall be responsible for its own attorney's fees and costs incurred in connection with the matters covered by this Agreement. 12. This Agreement shall be binding upon and inure to the benefit of the Parties who sign the Agreement, except that no Party may assign, delegate, or transfer its rights or obligations under this Agreement without the prior written consent of the other Parties. Great American Insurance Company is an intended third -party beneficiary of this Agreement as to the representations and indemnity obligations referenced in paragraph 5, and the Released Parties (including Great American Insurance Company) are intended third -party beneficiaries of this Agreement as to the releases and indemnity obligations referenced in paragraph 9. 13. This Settlement Agreement constitutes a complete resolution of all matters in dispute between the Parties. All prior discussions, negotiations, and agreements have merged herein and are of no further force and effect. No Party has made any representation, promise, or warranty to any other party, except as set forth in this Settlement Agreement. 14. All of the Parties have participated in the drafting and preparation of this Settlement Agreement. Accordingly, no term or provision contained within this Settlement Agreement shall be more strictly construed against any one Party. 15. This Settlement Agreement shall be deemed to have been executed and delivered within the State of Florida, and the rights and obligations of the Parties shall be construed and enforced in accordance with, and governed by, the laws of the State of Florida. 16. This Settlement Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and when taken together with other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all Parties. Facsimile or pdf signatures delivered via electronic mail shall be deemed originals for all purposes. 17. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any other right, remedy, power, or privilege, nor shall any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. 18. This Agreement may not be modified, supplemented or waived orally, but only by a writing signed by the Party against whom the enforcement of such modification, supplement or waiver is sought and making specific reference to this Agreement. 19. The Effective Date of this Agreement shall be the date written on page one of this Agreement. 20. Each Party represents and warrants that it has been represented by counsel of its choosing. No party is relying upon any advice from the other party or its counsel. The Parties represent and warrant that they have full authority to enter into this Agreement and that all necessary consents, votes or approvals have been provided sufficient to bind each party to the terms of this Agreement. Counsel for the County: Dylan Reingold, Esquire County Attorney 1801 27`h Street, Building A Vero Beach, FL 33960-3365 Counsel for Ahtna: Mark F. Bideau, Esq. Greenberg Traurig, P.A. 777 S. Flagler Drive, Suite 300 East West Palm Beach, Florida 33401 [Signatures found on following page.] 4 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. COUNTY: so%, Attest: Jeffrey R. Smith, Clerk of INDIAN RIVER COUNTY, FLORIDN Circuit Court and Comptroller ar Deputy Clerk N Jo e h E it] Chairman .'OUT. ACTIVE 59334670v5 AHTNA: AHTNA MARINE & CONSTRUCTION COMPANY, LLC By: �- 0 Name: Craig / O'Rourke Title: President APPFI0V!1-,D ASTO Fr AjNl;) Lia'UAL Sti'FF101L, DYLAN FREINGC COUNTYA1709'1