SETTLEMENT AND MUTUAL RELEASE AGREEMENT. THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT ( Agreement ), by

Transcription

1 SETTLEMENT AND MUTUAL RELEASE AGREEMENT THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT ( Agreement ), by and between ARBOR E&T, LLC ( Arbor ) and THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA ( PBC School Board ) (hereinafter collectively referred to as Parties, and each individually as a Party ), is intended to accomplish the settlement and extinguishment of obligations, claims and suits as hereinafter described in this Agreement. RECITALS WHEREAS, Arbor provided certain alternative special educational services in Palm Beach County during the academic school year ; WHEREAS, a dispute arose between the Parties regarding Arbor s entitlement to payment under The Contract Between The School Board of Palm Beach County, Florida and Arbor E&T, LLC, and the Amendments thereto (hereinafter collectively referred to as The Contract ); WHEREAS, this Agreement applies to the contentions and particular claims which are the subject matter of the civil action entitled Arbor E & T, LLC v. The School Board of Palm Beach County, Florida, Case No CA015375XXXXMBAO, filed in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (the Lawsuit ); WHEREAS, the Parties understand this Agreement is a compromise of disputed claims and that they enter into this Agreement only to avoid the expense and uncertainty of further litigation; NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and for other good and valuable consideration, receipt of which is acknowledged, the parties agree as follows:

2 1. Payment and Release. All references hereinafter to Arbor, PBC School Board or the Parties shall include their respective owners, shareholders, predecessors, successors, permitted assigns, agents, directors, officers, representatives, attorneys, employees and former employees, divisions, parents, subsidiaries, affiliated companies, heirs, executors, administrators and personal representatives, as applicable. For settlement purposes only, PBC School Board shall pay to Arbor the sum of Eighty Seven Thousand and 00/100 Dollars ($87,000.00) in full and final satisfaction of any and all claims for payment arising from or relating to The Contract or the Lawsuit, including compensatory damages, prejudgment interest, attorneys fees and costs. Payment of the $87, settlement sum shall be tendered to Daniel Alter, Esq., counsel for Arbor, within 20 days of the date of the last signature affixed hereto. The Parties do hereby mutually release, acquit, satisfy, and forever discharge each other from all manner of action and actions, cause and causes of action, suits, debts, sums of money, accounts, reckonings, covenants, contracts, controversies, and demands whatsoever, in law or in equity, known or unknown, which either Party ever had, now has, or may have against each other as of the date of the execution of this Agreement, for or by reason of any matter, cause or thing whatsoever, including but not limited to any matter arising out of, relating to or concerning The Contract or the Lawsuit; provided however that all Parties are required to perform their obligations under this Agreement and do not waive any rights relating to the enforcement of this Agreement. For the purpose of this paragraph, the Date of this Agreement shall be December 2, 2009, irrespective of the date the Parties affix their signature below. 2. Dismissal of Lawsuit. The Parties stipulate to a dismissal of the Lawsuit with prejudice. Arbor will file a Notice of Dismissal With Prejudice or cooperate with the filing of a Stipulation for Dismissal With Prejudice as necessary to conclude the Lawsuit. The Notice or 2

3 the Stipulation shall be filed within 10 days of the execution of this Agreement and Arbor s counsel s receipt of the settlement sum. The prevailing party in a hearing to enforce the duties set forth in Paragraphs 1 or 2 of this Agreement shall be entitled to the payment of attorneys fees. 3. No Admission of Liability. It is expressly understood and agreed by the Parties that this Agreement is a compromise of disputed claims and that this Agreement shall not be construed as, or deemed to be, evidence of an admission or concession of any fault or liability whatsoever on the part of any Party. 4. Entire Agreement. The Parties acknowledge and agree that each has decided to enter into this Agreement without relying on any representation of the other Party, other than those representations explicitly set forth in this Agreement. This Agreement constitutes the entire understanding, compromise and agreement of the Parties and supersedes any and all prior understandings, compromises or agreements, written or oral, between or among the Parties pertaining to the subject matter hereof, and can be modified, amended, or revoked only by express written consent signed by the Parties. This Agreement shall be interpreted in accordance with the laws of the State of Florida. 5. Waiver. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor does any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. 6. Interpretation; Headings. The headings in this Agreement are for purposes of reference only and shall not limit it or otherwise affect the meaning hereof. 7. Amendment. Any amendments or modifications to this Agreement must be in writing and must be signed by the Parties. 3

4 8. Multiple Copies or Counterparts. Three originals and one or more copies of this Agreement may be executed by one or more of the Parties hereto. In such event, all of such executed copies shall have the same force and effect as the executed original, and all of such counterparts taken together shall have the effect of a fully executed original. 9. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. 10. Partial Invalidity. If any provision of this Agreement is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining portions. On the contrary, such remaining portions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provisions were deleted. 11. No Construction Against Drafting Party. Each Party to this Agreement expressly recognizes that it results from a negotiation process in which each Party was represented by legal counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against any Party drafting this Agreement concerning its construction or interpretation shall accrue to the benefit of any Party to this Agreement, and each Party expressly waives the right to assert any such presumption in any proceeding or disputes connected with, arising out of, or involving this Agreement. 12. Authority. The Parties and their undersigned representatives hereby represent and warrant they are fully authorized to bind the individual and entity, as applicable, on whose behalf they enter into this Agreement. 13. Publicity. Neither the elected members of the PBC School Board nor the officers and directors of Arbor will publicly discuss the terms of this Agreement, except as necessary to enforce the Agreement or to comply with Florida public records laws and Florida Governmentin-the-Sunshine laws. 4

5 14. Signing of Agreement. The undersigned individuals agree that they have read this Agreement prior to signing and expressly acknowledge and warrant that they fully understand all of the provisions thereof. Furthermore, the undersigned individuals warrant that they are voluntarily entering into the Agreement of their own free will and without coercion or inducement, intending to be governed thereby, and that they have had an opportunity to consult with legal counsel concerning this Agreement. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties execute this Settlement And Mutual Release Agreement: ARBOR E & T, LLC STATE OF KENTUCKY COUNTY OF By: Print Name: Its: The foregoing document was acknowledged before me this day of, 2009, by, an authorized representative of ARBOR E & T, LLC, who is personally known to me or who produced as identification. My Commission Expires: NOTARY PUBLIC, STATE OF FLORIDA Print Name 5

6 THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA By: Print Name: Its: STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing document was acknowledged before me this day of, 2009, by, an authorized representative of THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, who is personally known to me or who produced as identification. My Commission Expires: NOTARY PUBLIC, STATE OF FLORIDA Print Name Attest: Superintendent of PBC School Board # v1 6