HomeMy WebLinkAboutR-01-1051J-01-849
9/24/01
0
RESOLUTION NO.
is
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT (S) , RESCINDING, IN THEIR
ENTIRETY, RESOLUTION NO. 01-817, AND THE
SETTLEMENT AGREEMENT AUTHORIZED THEREIN,
AND SUBSTITUTING IN LIEU THEREOF THIS
RESOLUTION AUTHORIZING THE %CITY MANAGER TO
ACCEPT AND EXECUTE A SETTLEMENT AGREEMENT,
IN SUBSTANTIALLY THE ATTACHED FORM, PAYING
THE SUM OF $842,067.56 AND ENTERING INTO A
NEW CONSTRUCTION CONTRACT TO COMPLETE
INSTALLATION OF SEWAGE PIPES, IN AN AMOUNT'
NOT TO EXCEED $1.6 MILLION, IN FULL AND
COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS
AND DEMANDS, FOR THE CASE OF RIC -MAN
INTERNATIONAL, INC. vs. UTILITY
DIRECTIONAL DRILLING, INC., AND CITY OF
MIAMI, IN THE ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY, FLORIDA, CASE
NO. 98 -13051 -CA (13), UPON EXECUTION OF
THE SETTLEMENT AGREEMENT, SETTING FORTH A
SCHEDULE FOR PAYMENT; ALLOCATING FUNDS, IN
THE AMOUNT OF �842,067.56, FROM THE SELF-
INSURANCE AND INSURANCE TRUST FUND,
ACCOUNT CODE NO. 53.5001.624401.6.661, AND
FUNDS, IN THE AMOUNT NOT TO EXCEED $1.6
MILLION, FROM CAPITAL IMPROVEMENT PROJECT
NO. 351283, FOR SAID SETTLEMENT AND
CONTRACT.
WHEREAS, on July 26, 2001, the City Commission adopted
Resolution 01-817 which authorized the City Manager to accept
and execute a Settlement Agreement, paying the sum of $1.6
cay covimnam
MEETING CXF
SU
million and entering into a new construction contract: to
complete installation of sewage pipes, in an amount not to
exceed $842,067.56, in full and complete settlement of any and
all claims and demands, for the case of Ric -Man International,
Inc. vs. Utility Directional Drilling, Inc., and City of Miami,
in the Eleventh Judicial Circuit in and for Miarrd-Dade County,
Florida, Case No. 98-13051-CA(].3) (the "Lawsuit"); and
WHEREAS, subsequently, Ric -Man and the City Attorney have
agreed to amend the Settlement Agreement, to complete the sewage
line installation on a expedited basis and to also provide the
City greater protection against contractual default by Ric -Man;
and
WHEREAS,
the City Attorney's
Office
recommends that
Resolution No.
01-817 be rescinded and
that a
new resolution be
adopted to settle the Lawsuit- by
paying
$842,067.56, and
entering into
a new agreement not to
exceed
$1,600,000, with
certain terms
and conditions;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Page 2 of 4 o 1— 1. 0 5 ,E_
Section 2. Resolution No. 01-817, adopted July 26,
2001, and the Settlement Agreement authorized therein are
rescinded in their entirety, and this Resolution is substituted
in lieu thereof.
Section 3. The City Manager is authorized to accept and
execute a Settlement Agreement, in substantially the attached
form, paying the sum of $842,067.56 and entering into a new
construction contract to complete installation of sewage pipes,
in an amount not to exceed $1.6 Million, in full and complete
settlement of any and all claims and demands, for the case of
RIC -MAN INTF.RNATXONAL, INC. vs. UTXLITY DIRECTIONAL DRILLING,
INC., and CITY of MIAMI, in the Eleventh Judicial Circuit in and
for Miami -Dade County, Florida, Case No. 98 -13051 -CA (13), upon
execution of the Settlement Agreement, setting forth a schedule
for payment, with funds allocated, in the amount of $842,067.56,
from the Self -Insurance and Insurance Trust Fund, Account Code
No. 515001.624401.6.661, for the settlement, and funds, in the
amount not to exceed $1.6 Million, allocated from Capital
Improvement Project No. 351.283, for the contract.
Page 3 of 4 �) .li _. 1.1) lJ J.
Section 3. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.11
PASSED AND ADOPTED this—_Z5th-_ day of September 2001.
JOE CAROLLO, MAYOR
ode Sec. 2-36, since the Mayor did not indleMe approval of
M gaCdPdBtnCe with Miami C
,ois legislation by signi'19 it in tiledonintiatEd place
iat provided, said
o Camrnisl tt `
becomes effective with the c;lapse of ten (10) ay.�
regarding same, without the Mayor. e'?rci ing • /. ���
ATTEST:
WALTER J. FOEMAN
CITY CLERK
APPROVjan'.AS, O FOPML AND CORRECTNESS :t/
,NDRO VIIIICRELLO
ATTORNEY
676:HJH:BSS
Walter
If the Mayor does not sign this Resoluti.on, it shall become effective
at the end of ten calendar days from the date :Lt was passed and
adopted. If the Mayor vetoes chis Resolution, it ;hall become effective
3.mmediat:ely upon override of tho veto by the City Commission.
Page 4 of 4 ;,
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SETTLEMENT AGREEMENT
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Ric -Man International, Inc. ("Ric -Man" hereinafter) and The City of Miami (hereinafter
"City") hereby agree to settle in full the above -styled action as set forth below.
WHEREAS, the City desires to pay to Ric -Man and Utility Directional Drilling, Inc.
("UDDI") the total sum of S801,000,00 for claims of breach of contract damages and disputed
contract monies brought in the case of Ric -Marr htternational, Inc. v. City of Aliami and Utility
Directional Drilling, Inc., Miami -Dade County Circuit Court Case No. 98-13051 CA 13;
WHEUTAS, the City is agreeable to pay Ric -Man the sum of $41,067.56 for undisputed,
unpaid contract monies from previous work performed by Ric -Man on the Watson Island Sanit ry
Sewers, B-5590 C.I.P., Department of Public Works Project ("Project");
WHERE,AS, the City requires Ric -Man to complete the installation of the 16 -inch High
Density Polyethylene Pipe Crossing under a Design Build concept of construction for the sum of
$1,600,000.00 (more fully described in the March 16,200 1, letter from Ric -Man to the City, together
with additional costs if necessary as set forth below), and the City is agreeable to assuming the risk
of any damages to the work in place and previously installed by, or on behalf of, Ric -Man. "The City
is further agreeable to hold Ric -Man harmless for any damages to the previously installed work on
the Project for damages not caused by Ric -Man.
NOW, THEREFORE, in exchange for the mutual consideration described below, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
herein.
1. The above recitals are hereby incorporated into this Agreement as if fully set forth
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2. The City hereby agrees to pay the sum of 5200,000 to Ric -Man within fifteen days
from the execution and approval of this agreement. The City will pay an additional $500,000 to Ric -
Man within 30 days after written notice of the drilling of the pilot hole.
3. City hereby agrees to pay the additional sum of $700,000 to Ric -Man immediately
upon receipt by the City of money From Miami -Dade County as proceeds pursuant to the Agreement
for Sanitary Sewage Facilities between Miami -Dade County and City entered into on about April 2,
1998 and executed on March 13 and April 2, 1998 by the City and Miami -Dade County. However,
in any event, the City shall pay Ric -Man the additional sum of $700,000 called for herein no later
than 90 days after Ric -Man has successfully performed the horizontal directional drilling operation
and installation of the sewage pipe as called for herein and approval of same by the Miami -Dade
Water and Sewer Department regardless of whether the City has received money pursuant to the
Agreement for Sanitary Sewage Facilities between Miami -Dade County and City on about April 2,
1998. The City further agrees to pay engineering costs not to exceed $200,000. The City shall pay
the invoice for services rendered by the engineer within 30 days of receipt by the City of that invoice
or of those invoices. Ric -Man agrees to obtain an extension of the performance bond on the
underlying project. if such extension is not possible, Ric -Man will obtain at its expense a
replacement performance bond with substantially the same terms.
4. The City shall pay Ric -Man the sum of $41,067.56 for previously unpaid, undisputed
contract monies within 30 days of execution and approval of this agreement.
5. The City shall pay an additional sum of $801,000 as compensation for the claims
brought by Ric -Man and UDDI for delays and disputed, unpaid contract monies in the case of Ric-
Xtan International, Inc. v. City of Afiami and Utility Directional Drilling, Inc., Miami -Dade County
Circuit Court Case No. 98-13051 CA 13 no later than 30 days after Ric -Man's successful
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performance of the horizontal directional drilling operation. The proceeds of the $801,000 will be
divided between Ric -Man and UDDI based upon a proportionate share of the claims as set forth in
the previously executed settlement agreement dated March 4, 2000. Hence, Ric -Man shall be paid
the sum of $489,500 and UDDI shall be paid the sum of $311,500.
G. Because the City's liability to Ric -Man is due to the fictions, inactions and
representations of Eleanor Carney Engineering Associates, Inc. and Carney -Neuhaus, Inc., the City
hereby does sell, assign, transfer, and set over unto Ric -Man all rights, title, interest in and to actions,
causes, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, warranties, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever in law or in equity, .from the
beginning of the world to the date hereof by the City against Eleanor Carney Engineering Associates,
Inc. and Carney -Neuhaus, Inc., their employees, officers, agents, subconsultants, and successors, and
the City does give and grant to Ric -Man the full power and authority to demand and receive money
and other consideration from Eleanor Carney Engineering Associates, Inc. and Carney -Neuhaus,
Inc., their employees, officers, agents, subconsultants, and successors and to give discharge of same
or any part thereof. If in pursuing an action against Eleanor Carney Engineering Associates, Inc. and
Carney -Neuhaus, Inc., their employees, officers, agents, subconsultants, and successors, Ric -Llan
receives any monetary proceeds from the action, and after deduction of all expenses, costs, court
costs and attorneys fees, Ric -Man shall retain fifty percent of such proceeds and pay over to the City
the other fifty percent of the proceeds. The attorneys' fees, court costs and other costs are limited to
those specifically related to the new action against Eleanor Carney Engineering Associates, Inc. and
Carney -Neuhaus, Inc. and the attorneys' fees, expenses, court costs and other costs shall be limited to
a maximum recovery of 25% of the total recovery against those entities. By and through its
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execution of this Settlement Agreement, the City avers and guarantees that it has not waived nor
released nor settled any of the referenced claims against Eleanor Carney Engineering Associates, Inc.
and Carney -Neuhaus, Inc, which are the subject of this assignment, transfer and setover. unto Ric -
Man.
7. The parties agree that the law Finn of Vezina, Lawrence & Piscitelli, P.A. ("VL&P")
shall prosecute the claim against Eleanor Carney Engineering Associates, hie. and Carney -Neuhaus,
Inc. regarding the Project subject to all other provisions herein. It is agreed that VL&P may
represent Ric -Man in the event of any disputes between Ric -Man and the City. The City specifically
acknowledges the potential for such conflict of interest and also acknowledges that V L&P represents
other entities and individuals against the City now and in the past and waives any conflict of interest
in future representation of Ric -Man or others by VL&P. The parties represent that they have retained
and consulted with their independent counsel regarding the forin and substance ofthis Agreement or
have waived such opportunity. The parties expressly acknowledge that VL&P shall have the right to
withdraw from the representation, without objection by any of the parties, for non-payment offees or
failure to make reimbursement ofexpenses.
8. Upon execution of this Settlement Agreement, the parties shall execute and file with
the Miami -Dade County Circuit Court a Notice of Dismissal Without Prejudice of the claims
pending in Case No. 98-13051 CA 13. Immediately after payment is made in ful I to Ric -Man of the
proceeds of the settlement or other disposition of the litigation against Eleanor Carney Engineering
Associates, Inc. and Camey -Neuhaus, Inc., the parties shall release one another from liability for
such claims set forth in the litigation, Ric -Man International, Inc. v. City of Miami and Utility
Directional Drilling, Inc., Miami -Dade County Circuit Court Case No. 98-13051 CA 13 and each
party's liability to one another therefor will be extinguished. Further (assuming the provisions of this
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agreement are not breached), if the claims against Eleanor Carney Engineering Associates, Inc. and
Carney -Neuhaus, Inc. are found not to be meritorious by a court of competent jurisdiction or by
binding arbitration and such claims arc dismissed with prejudice, then the parties shall release one
another for such claims set forth in Ric -Man International, Inc.. v. City of Miami and Utility
Directional Drilling, Inc., Miami -Dade County Circuit Court Case No. 98-13051 CA 13 and each
party's liability to one another concerning those claims therefor will be extinguished. The Circuit
Court in the above referenced matter shall retain jurisdiction to enforce the terms of this Settlement
Agreement. Should UDDI fail to agree to the Settlement Agreement set forth above, Ric -Man shall
indemnify, defend and hold harmless the City of all actions and claims of UDDI set forth in the
pleadings in the referenced litigation.
9. Each party to the above -styled litigation shall bear its own attorney's fees and costs.
10. This Settlement Agreement may be signed in counterparts. Facsimile signatures will
be accepted as original.
11. Florida law shall govern the interpretation of this agreement. Venue for any action
regarding this agreement shall be Miami -Dade County, Florida.
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0.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date indicated
above, and each of the undersigned personally represents and warrants that they have the full right,
power and authority to execute this Agreement on behalf of the respective parties.
ATTEST:
Bv:
Walter J. Foeman, City Clerk
ATTEST:
Print name:
Title:
ATTEST:
By: - -
Print name:
Title:
APPROVED AS TO FORM AND
CORRECTNESS
Print name:
Title:
I [ALGnRARY\601-04\Pu)c\SE'n' Mimi; 9-24.01 ma)
THE CITY OF MIAMI
By:
Carlos A. Gimenez, City Manager
RIC MAN INTERNATIONAL, INC.
By:
Print name:
Title:
UTILITY DIRECTIONAL
DRILLING, INC.
By: --
Print name:
Title:
APPROVED AS TO INSURANCE
REQUIREMENT
Print name:
Title:
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