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HomeMy WebLinkAboutCONFIDENTIAL SETTLEMENT AGREEMENT5(;ANNED BY St. Lucie County CONFIDENTIAL SETTLEMENT AGREEMENT This Confidential Settlement Agreement ('Agreement") is entered into by and between Plaintiff, David Poschmann ("Plaintiff') and Shukla Enterprises, Inc. ("Defendant"). Plaintiff and the Defendant are hereinafter, collectively referred to as the "Parties" who state as follows: RECITALS WHEREAS, Defendant is the owner and operator of a Metro gas station and convenience store located at 1200 Midway Road in Fort Pierce, Florida (hereinafter the "Facility"). WHEREAS, Plaintiff filed this action, David Poschmann v. Shukla Enterprises, Inc., United States District Court for the.Southem District of Florida, Case No. 16-CV-14222- ROSENBERG/LYNCH (hereinafter, the "Action"), alleging, inter alia, that there are architectural barriers existing at the Facility that constitute violations of Title III of the. Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter, the "ADA!'), pursuant to which Plaintiff seeks injunctive relief, attorneys' fees, litigation expenses and costs; WHEREAS, Defendant denies that it violated the ADA or any other statute, code, or ordinance related to access for the disabled; WHEREAS, subject to the terms of this Agreement, the Parties have agreed to resolve all matters in dispute between them relating to the Facility including those raised in the Action; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties agree to be legally bound by the following terms and conditions, which constitute full settlement of the Action: 1. Recitals: The Parties acknowledge that all of the "WHEREAS" clauses in the preceding paragraphs are incorporated as material parts of this Agreement. 2. No Admission of Liability: Plaintiff acknowledges that this Agreement is not and shall not be construed as an admission by Defendant (or any person or entity acting on its behalf) of any liability or any act.of wrongdoing. 3. * Confidentiality: Plaintiff and Defendant warrant that all the provisions of this Agreement will remain confidential and that no copy of this Agreement shall be filed with any court or agency, except where disclosure is, in good faith, deemed required or appropriate to enforce this Agreement, by Defendant in defense of any future proceedings involving relevant ADA claims or issues, or as otherwise required by law. 4. Settlement Amount: As consideration for Plaintiff s entry into this Agreement, Defendant shall pay to Plaintiff the total sum of Six Thousand Two Hundred and Fifty Dollars ($6,250.00) in full settlement of -Plaintiffs claims for attorneys' fees, litigation expenses, including expert fees, and costs against Defendant (hereinafter, "the Settlement Sum'). The Settlement Sum shall be payable to Drew M. Levitt, Attorney at Law Trust Account and delivered to Mr. Levites office located at 4700N.W. Boca Raton Boulevard; #f302, Boca Raton, Florida 33431 as follows: Defendant shall pay Two Thousand Two Hundred and Fifty Dollars ($2,250.00) within five (5) days ofwhen the Plaintiff provides an executed version of this Agreement to Defendant and shall pay Four Thousand Dollars ($4,000.00) within thirty (30) days of when the Plaintiff provides an executed version of this Agreement to Defendant. Time is of the essence with regard to all payments. 5. Release: In consideration of the terms and conditions of this Agreement, Plaintiff and Defendant hereby release each other and all of their present and former officers, members, managers, employees, owners, agents, insurers, lenders, contractors, attorneys, operators, and all of their successors and assigns (collectively, "Released Parties") from all actions, causes of action, and suits for any relief against them including; but not limited to, claims for injunctive or declaratory relief, damages, attorneys' fees, expert's fees, costs, and any other element of relief or damages which Plaintiff claimed or could have claimed in the Action against the Defendant and the Released Parties relating to the Facility, whether in law or equity, arising under the ADA, Florida Accessibility Code, or any other statute, code, policy, regulation or ordinance involving accessibility issues. This release excludes, and leaves unaffected, Defendant's obligations under this Agreement. 6. Attorneys' Fees and Costs: All Parties shall bear their own costs, attorney's fees, and expenses to date, except as specified in Paragraph 4 of this Agreement. 7. Dismissal of Action: Within five (5) business days after the second payment referenced in paragraph 4 above is made, Plaintiff shall file a Stipulation of Dismissal With Prejudice. S. Other Actions: The Plaintiff represents that, other than the Action, he has no suits, claims, charges, complaints or demands of any kind whatsoever currently pending against the Defendant and the Released Parties with any local, state, or federal court or any governmental, administrative, investigative, civil rights or other agency or board relating to the Facility. Plaintiff will not hereafter directly or indirectly, personally or in combination with or through any other person, firm, organization or entity, assert or claim that Defendant and the Released Parties are required to;make additional or different modifications to the Facility and will not attempt'to enforce standards, against Defendant regarding physical access features of the Facility which conflict with or differ from what the Parties agree to in this Agreement; or that other violations "exist or further modifications should be made. 9. Facility Modifications: The Defendant shall complete the modifications described below within 180 days from the Effective Date of this Agreement. The modifications are: a. Thresholds at the bathroom vestibule and restroom doors shall be removed; b. Grab bars, lever handles, mirror, soap and towel dispensers shall'be relocated, *1 ) . replaced or installed per ADA standards; c. The existing sink and vanity shall be removed and replaced with a wall hung sink, meeting ADA installation standardsl; d. The parking areas shall be restriped per the plan and details set forth on Exhibit A; e. Remove sidewalk as required for construction and installation of ADA compliant ramp; f. Existing ADA ramp to be removed and-replacepatch concrete; g. Installation of concrete extension at front entry doors; and It. Install guard rail and band rails per details in Exhibit A. As to the modifications in paragraph 9d. above, the 180 day period shall not apply if delayed or interfered by FDOT widening project for Midway Road and immediate intersection improvements and such work will be completed within 30 days of FDOT work in the area. 10. Attorneys' Fees and Costs Upon Breach: In any action to enforce this Agreement, the prevailing party shall be entitled to hislits reasonable attorneys' fees, expenses and costs, as determined by the court. U.' Binding Nature of Agreement: This Agreement shall be binding upon each of the Parties and upon their respective heirs, administrators, representatives, executors, assigns and successors and shall inure to the benefit of each party and their respective heirs, administrators, representatives, executors, successors, and assigns. 12. Governing Law and Jurisdiction: This Agreement shall be deemed to be made and entered into in the State of Florida, and shall, in all respects be interpreted, enforced and governed under the laws of Florida. The Patties agree that any litigation brought to enforce this Agreement shall proceed in any court of competent jurisdiction in St. Lucie County, Florida. 13. Interpretation: This Agreement has been negotiated by and between the Parties and shall not be construed against either party as the "drafter" of the Agreement. 14. Modification of Agreement: This Agreement may not amended, revoked, changed, or modified in any manner, except upon a written.agreement executed by all Parties. No waiver of any provision of this Agreement will be validunless iris in writing and signed by the party against whom such waiver is charged. 15. Entire Agreement: This Agreement sets forth the entire agreement between the Parties hereto, and fully supersedes any and all prior agreements or understandings between the Parties hereto pertaining to the subject matter hereof. The restroom renovations set forth in items a -c above shall be implemented to the extent "technically feasible', pursuant to the plan and details set forth on the survey and plans prepared by Cook and Minard, titled Metro Gas ADA Renovations attached hereto as Exhibit "A 16. Headings: The headings of the provisions herein are intended for convenient reference only, and the same shall not be, nor be deemed to be, interpretative of the contents of such provision. 17. Signatures in Counterparts: This Agreement maybe executed in counterparts, each of which shall be taken to be one and the same instrument, as if all Parties had executed the same signature page. A fax or scanned e-mail copy of any party's signature shall be deemed as legally binding as an original signature. 1S. Effective Date: The Effective Date of this Agreement shall be the date that its execution is completed by all Parties. IN WITNESS WHEREOF, and intending.to be legally bound hereby, the Parties have executed the egoing Confidential Settlement Agreement on the below -listed dates: r BHU MA ENTERPRISES, INC. DAVID POSCHMANN Dated: By:4-- its Frz3iden{- Dated: to 1 19 . 19—f 1 b 3UANNED BY ;r ! ucie County CONFIDENTIAL SETTLEMENT AGREEMENT This Confidential Settlement Agreement ("Agreement") is entered into by and between Plaintiff David Poschmann ("Plaintiff'):and Shukla Enterprises; Inc. ("Defendant"). Plaintiff and the Defendant are hereinafter,; collectively referred to as the "Parties" who state as follows: RECITALS WHEREAS; Defendant is the owner and operator of a Metro gas station and convenience store located at 1200 Midway Road in Fort Pierce, Florida (hereinafter the "Facility"). WHEREAS, Plaintiff filed this action, David Poschmann v. Shukla Enterrprises, Inc., United States District Court for the Southern District of Florida, Case No. 16-CV-14222- ROSENBERG/LYNCH (hereinafter, the "Action"), alleging, inter alia, that there are architectural barriers existing at the Facility that constitute violations of Title Ill of the. Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter, the "ADA"), pursuant to which Plaintiff seeks injunctive relief, attorneys' fees, litigation expenses and costs; WHEREAS, Defendant denies -that it violated the ADA or any other statute, code, or ordinance related to access for the disabled; WHEREAS, subject -to the terms of this Agreement, the Parties have agreed to resolve all matters indispute, between them relating to the Facility including those raised in the Action; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties agree to be legally bound by the following terns and conditions, which constitute full settlement of the Action: 1. Recitals: The Parties acknowledge that all of the "WHEREAS" clauses in the preceding paragraphs are incorporated as material parts of this Agreement. 2. No Admission.of Liability: Plaintiff acknowledges that this Agreement is not and shall not be construed as an admission by Defendant (or any person or entity acting on its behalf) ofanyliabilityorranyact .ofwrongdoing• 3. . Confidentiality: Plaintiff and Defendant warrant that all the provisions of this Agreement will remain confidential and that no copy of this Agreement shall be filed with any court or agency, except where disclosure is, in good faith, deemed required or appropriate to enforce this Agreement, by Defendant in defense of any future proceedings involving relevant ADA claims or issues, or as otherwise required by law. 4. Settlement Amount: As consideration for Plaintiff's entry into this Agreement, Defendant shall pay to Plaintiff the total suns of Six Thousand Two Hundred and Fifty Dollars ($6,250.00) in full settlement of Plaintiffs claims for attorneys' fees, litigation expenses, including expert fees, and costs against Defendant (hereinafter, "the Settlement Sum'. The Settlement Sum shall be payable to Drew M. Levitt, Attomeyat Law Trust Account and delivered to Mr. Levites office located at 4700N.W. Boca Raton Boulevard, #302, Boca Raton, Florida 33431 as follows: Defendant shall pay Two Thousand Two Hundred and Fifty Dollars ($2,250.00) within five (5) days of when the Plaintiff provides an executed version of this Agreement to Defendant and shall pay Four Thousand Dollars ($4,000.00) within thirty (30) days of when the Plaintiff provides an executed version of this Agreement to Defendant. Time is of the essence with regard to all payments. 5. Release: In consideration of the terms and conditions of this Agreement, Plaintiff and Defendant hereby release each other and all of their present and former officers, members, managers, employees, owners, agents, insurers, lenders, contractors, attorneys, operators, and all of their successors and assigns (collectively, "Released Parties') from all actions, causes of action, and suits for any relief against them including, but not limited to, claims for injunctive or declaratory relied damages, attorneys' fees, expert's fees, costs, and any other element of relief or damages which Plaintiff claimed or could have claimed in the Action against the Defendant and the Released Parties relating to the Facility, whether in law or equity, arising under the ADA, Florida Accessibility Code, or any other statute, code, policy, regulation or ordinance involving accessibility issues. This release excludes, and leaves unaffected, Defendant's obligations under this Agreement. 6. Attorneys' Fees and Costs: All Parties shall bear their own costs, attorney's fees, and expenses to date, except as specified in Paragraph 4 of this Agreement. 7. Dismissal of Action: Within five (5) business days after the second payment referenced in paragraph 4 above is made, Plaintiff shall file a Stipulation of Dismissal With Prejudice. 8. Other Actions: The Plaintiff represents that, other than the, Action, he has no suits, claims, charges, complaints or demands of any kind whatsoever currently pending against the Defendant and the Released Parties with any local, state, or federal court or any governmental, administrative, investigative, civil rights or other agency or board relating to the Facility. Plaintiff will not hereafter directly or indirectly, personally or in combination with or through any other person, firm, organization or entity, assert or claim that Defendant and the Released Parties are required to make additional or different modifications to the Facility and: will not attemptto enforce standards against Defendant regarding physical access features of the Facility which conflict with or differ from what the Parties agree to in this Agreement; or that other violations exist or finther modifications should be made. 9. Facility Modifications: The Defendant shall complete the modifications described below within 180 days from the Effective Date of this Agreement The modifications are: a. Thresholds at the bathroom vestibule and restroom doors shall be removed; b. Grab bars, lever handles, mirror, soap and towel dispensers shall'be relocated, replaced or installed per ADA standards; a The existing sink and vanity shall be removed and replacedwith a wall hung sink, meeting ADA installation standards'; d. The parking areas shall be restriped per the plan and details set forth on Exhibit A; e. Remove sidewalk as required for construction and installation of ADA compliant ramp; f. Existing ADA ramp to be removed and -replace patch concrete; g. Installation of concrete extension at front entry doors; and h. Install guard rail and hand rails per details in Exhibit A. As to the modifications in paragraph 9d, above, the 180 day period shall not apply if delayed or interfered by FDOT widening project for Midway Road and immediate intersection improvements and such work will be completed within 30 days of FDOT Work in the area. 10. Attorneys' Fees and Costs Upon Breach: In any action to enforce this Agreement, the prevailing party shall be entitled to histits reasonable attorneys' fees, expenses and costs, as determined by the court. 11. Binding Nature of Agreement: This Agreement shall be binding upon each of the Parties and upon their respective heirs, administrators, representatives, executors; assigns and successors and shall inure to the benefit of each party and their respective heirs, administrators, representatives, executors, successors, and assigns. 12. Governin Law and Jurisdiction: This Agreement shall be deemed to be made and entered into in the State of Florida, and shall, in all respects be interpreted, enforced and governed under the laws of Florida The Parties agree that any litigation brought to enforce this Agreement shall proceed in court of competent jurisdiction in St. Lucie County, Florida. 13. Interpretation: This Agreement has been negotiated by and between the Parties and shall not be construed against either party as the "drafter of the Agreement. 14. Modification of Agreement: This Agreement may not be amended, revoked, changed, or modified in any manner, except upon a written agreement executed by all Parties. No waiver of any provision of this Agreement will be valid unless it is in writing and signed by the party against whom such waiver is charged. 15. Entire Agreement: This Agreement sets forth the entire agreement between the Parties hereto, and fully supersedes any and all prior agreements or understandings between the Parties hereto pertaining to the subject matter hereof. 'The restroom renovations set forth in items a - c above shall be implemented to the extent "technically feasible", pursuant to the plan and details set forth on the survey and plans prepared by Cook and Minard, tided Metro Gas ADA Renovations attached hereto as Exhibit "A". 16. Headings: The headings of the provisions herein are intended for convenient reference only, and the same shall not be, nor be deemed to be, interpretative of the contents of such provision. 17. Signatures in Counterparts: This Agreement may be executed in counterparts, each of which shall be taken to be one and the same instrument, as if all Parties had executed the same signature page. A fax or scanned e-mail copy of any parry's signature shall be deemed as legally binding as an original signature. 18. Effective Date: The Effective Date of this Agreement'shall be the date that its execution is completed by all Parties. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have executed the egoing Confidential, Settlement Agreement on the below -listed dates: fx;) A� SHUKLA ENTERPRISES, INC. DAVID POSCHMANN Dated: tV /u?-/(- By: K A/L. lzkq its Frz3iden4- Dated: to 1 19 1—?— ( O SCHNNEL BY CONFIDENTIAL SETTLEMENT AGREEMENT St. Lucie Count, This Confidential Settlement Agreement ('Agreement") is entered into by and between Plaintiff, David Poschmann ("Plaintiff') and Shukla Enterprises, Inc. ("Defendant"). Plaintiff and the Defendant are hereinafter, collectively referred to as the "Parties" who state as follows: RECITALS WHEREAS, Defendant is the owner and operator of a Metro -gas station and convenience store located at 1200 Midway Road in Fort Pierce, Florida (hereinafter the "Facility"). WHEREAS; Plaintiff filed this action, David Poschmann v. Shukla Enterprises, Inc., United States District Court for the Southern District of Florida, Case No. 16-CV-14222- ROSENBERG/LYNCH (hereinafter, the "Action"), alleging, inter alia, that there are architectural barriers existing at the Facility that constitute violations of Title III of the. Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter, the "ADA"), pursuant to which Plaintiff seeks injunctive relief, attorneys' fees, litigation expenses and costs; WHEREAS, Defendant denies that it violated the ADA or any other statute, code, or ordinance related to access for the disabled; WHEREAS, subject to the terms of this Agreement, the Parties have agreed to resolve all matters in dispute between them relating to the Facility including those raised in the Action; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties agree to be legally bound by the following terms and conditions, which constitute full settlement of the Action: 1. Recitals: The Parties acknowledge that all of the "WHEREAS" clauses in the preceding paragraphs are incorporated as material parts of this Agreement. 2. No Admission.of Liability: Plaintiff acknowledges that this Agreement is not and shall not be construed as an admission by Defendant (or any person or entity acting on its behalf) of any liability or any act of wrongdoing. 3. Confidentiality: Plaintiff and Defendant warrant that all the provisions of this Agreement will remain confidential and that no copy of this Agreement shall be filed with any court or agency, except where disclosure is, in good faith, deemed required or appropriate to enforce this Agreement, by Defendant in defense of any future proceedings involving relevant ADA claims or issues, or as otherwise required by law. 4. Settlement Amount: As consideration for Plaintiffs entry into this. Agreement, Defendant shall pay to Plaintiff the total sum of Six Thousand Two Hundred and Fifty Dollars ($6,250.00) in full settlement of Plaintiffs clahn&for attomeys' fees, litigation expenses, including expert fees, and costs against Defendant (hereinafter, "the Settlement Sum'). The Settlement Sum shall be payable to Drew M. Levitt, Attorney at Law Trust Account and delivered to Mr. Levites office located at 4700 N.W. Boca Raton Boulevard; #302, Boca Raton, LI , , �A �& a a , t{ Florida 33431 as follows: Defendant shall pay Two Thousand Two Hundred and Fifty Dollars ($2,250.00) within five (5) days of when the Plaintiff provides an executed version of this Agreement to Defendant and shall pay Four Thousand Dollars ($4,000.00) within thirty (30) days of when the Plaintiff provides an executed version of this Agreement to Defendant Time is of the essence with regard to all payments. 5. Release: In consideration of the terms and conditions of this Agreement, Plaintiff and Defendant hereby release each other and all of their present and former officers, members, managers, employees, owners,.agents, insurers, lenders, contractors, attorneys, operators, and all of their successors and assigns (collectively, "Released Parties") from all actions, causes of action, and suits for any relief against them including, but not limited to, claims for injunctive or declaratory reliefs damages, attorneys' fees, expert's fees, costs, and any other element of relief or damages which Plaintiff claimed or could have claimed in the Action against the Defendant and the Released Parties relating to the Facility, whether in law or equity, arising under the ADA, Florida Accessibility Code, or any other statute, code, policy, regulation or ordinance involving accessibility issues. This release excludes, and leaves unaffected, Defendant's obligations under this Agreement. 6. Attorneys' Fees and Costs: All Parties shall bear their own costs, attorney's fees, and expenses to date, except as specified in Paragraph 4 of this Agreement. 7. Dismissal of Action: Within five .(5) business days after the second payment referenced in paragraph 4 above is made, Plaintiff shall file a Stipulation of Dismissal With Prejudice. 8. Other Actions: The Plaintiff represents that, other than the Action, he has no suits, claims, charges, complaints or demands of any kind whatsoever currently pending against the Defendant and the Released Partieswithany local, state, or federal court or any governmental, administrative, investigative, civil rights or other agency or board relating to .the Facility. Plaintiffwill not hereafter directly or indirectly, personally or in combination with or through any other person; firm, organization or entity, assert or claim that Defendant and the Released Parties are required to make additional or different modifications to the Facility.and. will not attempt to enforce standards.against Defendant regarding physical access features of the Facility which conflict with or differ from what the Parties agree to in this Agreement; or that other violations exist or further modifications should be made. 9. Facility Modifications: The Defendant shall complete the modifications described below within 180 days from the Effective. Date of this Agreement - The modifications are: a. Thresholds at the bathroom vestibule and restroom doors shall be removed; b. Grab bars, lever handles, mirror, soap and towel dispensers shall'be relocated, replaced or installed per ADA standards; c. The existing sink and vanity shall be removed and replaced with a wall hung sink, meeting ADA installation standards; d. The parking areas shall be restriped per the plan and details set forth on Exhibit A; e. Remove sidewalk as requiredfor construction and installation of ADA compliant Bpi f. Existing ADA ramp to be removed and replace patch concrete; g. Installation of concrete extension at front entry doors; and h. Install guard rail and hand rails per details in Exhibit A. As to the modifications in paragraph 9d. above, the 180 day period shall not apply if delayed or interfered by FDOT widening project for Midway Road and immediate intersection. improvements and such work will be completed within 30 days of FDOT work in the area. 10. Attorneys' Fees and Costs Upon Breach: In any action to enforce this Agreement, the prevailing party shall be entitled to his/its reasonable attorneys' fees, expenses and costs, as determined by the court. 11. ' Binding Nature of Agreement: This Agreement shall be binding upon each of the Parties and upon their respective heirs, administrators, representatives, executors, assigns and successors and shall inure to the benefit of each party and their respective heirs, administrators, representatives, executors, successors, and assigns. 12. Governing Law and Jurisdiction: This Agreement shall be deemed to be made and entered into in the State of Florida, and shall, in all respects be interpreted, enforced and governed under the laws of Florida. The Parties agree that any litigation brought to enforce this Agreement shall proceed in any court of competent jurisdiction in St. Lucie County, Florida. 13. Interpretation: This Agreement has been negotiated by and between the Parties and shall not be construed against either party as the "drafter" of the Agreement. 14. Modification of Agreement: This Agreement may not be amended, revoked, changed, or modified in any manner, except upon a written.agreement executed by all Parties. No waiver of any provision of this Agreement will be valid unless iris in writing and signed by the party against whom such waiver is charged. 15. Entire. Agreement: This Agreement sets forth the entire agreement between the Parties hereto, and fully supersedes any and all, prior agreements or understandings between the Parties hereto pertaining to the subject matter hereof. °-The restroom renovations set forth in items a - c abovesball be implemented to the extent "technically feasible", pursuant to the plan and details set forth on the survey and plans prepared by Cook and Minard, titled Metro Gas ADA Renovations attached hereto as Exhibit "A". 16. Headings: The headings of the provisions herein are intended for convenient reference only, and the same shall not be, nor be deemed to be, interpretative of the contents of such provision. 17. Sipnatures in Counterparts: This Agreement maybe executed in counterparts, each of which shall be taken to be one,and the same instrument, as if all Parties had executed the same signature page. A fax or scanned e-mail copy of any parry's signature shall be deemed as legally binding as an original signature. 18. Effective Date: The Effective Date of this Agreement shall be the date that its execution is completed by all Parties. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have executed thegregoing Confidential' Settlement Agreement on the below -listed dates: V A&t—� SHUKLA ENTERPRISES, INC. DAVID POSCHMANN �% q Dated: 117/1-A By: V K �-151n K its Fr-z--5iden{ Dated: 101 19 1 !2�j f b