HomeMy WebLinkAboutExhibit 1SETTLEMENT AGREEMENT AND RELEASE
Principal: Tran Construction, Inc.
Surety: Arch Insurance Company
Obligee: City of Miami, Florida
Project: Melreese Clubhouse & Restaurant
Bond No.: SU1038859
This Settlement Agreement and Release (hereinafter "Agreement") is made this day
of April, 2013, by and between the City of Miami, Florida, ("City"), Tran Construction, Inc., a
dissolved corporation pursuant to the laws of the State of Florida ("Tran"), and Arch Insurance
Company, a corporation organized and existing pursuant to the laws of the State of Missouri,
duly authorized to do business in the State. of Florida ("Arch") (City, Tran and Arch shall
collectively be referred to as "the Parties"). By execution of this Agreement, the Parties hereby
stipulate and agree to fully settle the claims by and between themselves arising out of or related
to the matters described herein upon the following terms and conditions:
WHEREAS, on or about August 27, 2008, the City awarded Contract No. B030566 (the
"Contract") to Arch's principal, Tran, for the construction of the "Melreese Clubhouse &
Restaurant" (the "Project"), said Contract being in the amount of Four Million Twenty -Eight
Thousand Three Hundred Sixty -Two and 80/100 Dollars ($4,028,362.80); and
WHEREAS, in connection with the Contract, Arch, as surety, issued a Performance
Bond bearing.nuinber SU1038859 (the "Bond"), on behalf of Tran, as principal, and in favor of
the City, as obligee; and
WHEREAS, issues arose with Tran's performance of the Contract, the City made
demand upon Arch to arrange for completion under the Bond, and Arch disputed the propriety of
such default of Tran; and
WHEREAS, on or about March 31, 2012, Tran ceased performance on the Project due to
the expiration of its commercial general liability insurance; and
CSC
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WHEREAS, notwithstanding the foregoing, Tran's subcontractors have continued to
work with the City in resolving any open issues and finalizing the scope of Tran's bonded
Contract; and
WHEREAS, Arch and the City have agreed upon entry into the instant Agreement in lieu
of Arch's arranging for any remaining remedia.tion and/or completion efforts under the Contract,
and in full and complete satisfaction of Arch's obligations under the Bond.
NOW THEREFORE, in consideration of the promises, and other good and valuable
consideration, and the mutual covenants set forth herein, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto stipulate and agree as follows:
1. Recitals. The prefatory clauses are true and correct, and are made a part of this
Agreement as if fully set forth herein.
2. Contract Accounting, The Parties agree that as of the date of execution of this
Agreement, there remains outstanding and unpaid balanced under the Contract either due to
Tran and/or available for the completion of the Project; however, they are unable to agree upon
the actual amount of such remaining Contract proceeds.
3. Contract Reconciliation. The Parties agree that there exist various actual and/or
potential claims by each of Tran/Arch and the City to any remaining Contract proceeds. It is the
Parties intention, by this Agreement, to settle all issues, whether known or unknown, asserted or
unasserted, which might currently exist and/or might arise in the future in connection with the
Bond, the Contract and/or Tran's performance thereunder.
4. Payment Considerations. The Parties agree that Tran and Arch will relinquish
any right to any remaining Contract Proceeds so that the City may utilize same to complete the
balance of the bonded Contract — specifically including the City's agreed -upon payment to
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Weathertrol, for which the City shall obtain a Full and Final Release from Weathertrol in favor
of' Arch — with the exception of the sum of Two Hundred Thousand and 00/100 Dollars
($200,000.00). The Parties agree that the City will: (a) issue a check payable to Arch for work
performed under the Contract in the sum of Two Hundred Thousand and 00/100 Dollars
($200,000.00), payable within ninety (90) days of execution of this Agreement by the City
Manager; and (b) deliver the Full and Final Release obtained from Weathertrol in favor of Arch
within ten (10) days of execution of this Agreement by the City Manager.
5. Discharge and General Release of Contract. Upon execution of this Agreement,
the City, together with its officers, directors, agents, administrators, successors and/or assigns,
divisions, consultants, attorneys, sub -consultants of any kind, and all other persons or entities
related to the City, do hereby release and discharge Tran, together with its .members, officers,
directors, agents, heirs, administrators, executors, heirs, successors and/or assigns, all parent,
subsidiary, or affiliated corporations or entities, predecessors in interest, successors in interests,
divisions, consultants, attorneys, sub -consultants of any kind, and all other persons or entities
related to Tran, from and against any and all liabilities, rights, duties, demands, obligations,
claims and/or defenses or any kind or nature, either raised or which could have been raised, as
relates to or arises out of the Contract and/or the Bond. By the operation hereof, the Contract
shall be deemed terminated, discharged, and rendered null, void and of no further force and
effect.
6. Discharge and General Release of Bond. Upon execution of this Agreement,
the City, together with its officers, directors; agents, administrators, successors and/or assigns,
divisions, consultants, attorneys, sub -consultants of any kind, and all other persons or entities
related to the City, do hereby release and discharge Arch, together with its members, officers,
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directors, agents, heirs, administrators, executors, heirs, successors and/or assigns, all parent,
subsidiary, or affiliated corporations or entities, predecessors in interest, successors in interests,
divisions, consultants, attorneys, sub -consultants of any kind, and all other persons or entities
related to Arch, from and against any and all liabilities, rights, duties, demands, obligations,
claims and/or defenses or any kind or nature, either raised or which could have been raised, as
relates to or arises out of the Contract and/or the Bond. By the operation hereof, the Contract
and Bond shall be deemed terminated, discharged, and rendered null, void and of no further force
and effect.
7, General Release of City. Upon receipt and clearance of the funds contemplated
in paragraph 4 hereof coupled with the City's delivery to Arch of the Full and Final Release
obtained from Weathertrol in favor of Arch, each of Arch and Tran, together with their
respective officers, directors, agents, administrators, successors and/or assigns, divisions,
consultants, attorneys, sub -consultants of any kind, and all other persons or entities related to
either Arch or Tran, do hereby release and discharge the City, together with its members,
officers, directors, agents, heirs, administrators, executors, heirs, successors and/or assigns, all
parent; subsidiary, or affiliated -corporations or entities, predecessors in interest, successors in
interests, divisions, consultants, attorneys, sub -consultants of any kind, and all other persons or
entities related to the City, from and against any and all liabilities, rights, duties, demands,
obligations, claims and/or defenses or any kind or nature, either raised or which could have been
raised, as relates to or arises out of the Contract and/or the Bond.
8. No Admission of Liability. This Agreement does not constitute an admission of
liability by any of the Parties hereto.
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9. No Third Party Beneficiaries. This Agreement shall only extend to and be
binding upon the Parties hereto and their respective successors and assigns. Nothing contained
in this Agreement shall create any third party beneficiaries under the Bond, nor confer any
benefit or enforceable rights under this Agreement other than to the Parties hereto and their
respective successors, assigns, and reinsurers.
10. No Modification. This Agreement may not be modified unless in writing and
executed by the Parties hereto. No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the Party against whom it is sought to be enforced.
11. Incorporation. This Agreement incorporates, includes, and supersedes all prior
negotiations, correspondence, conversations, agreements or understandings applicable to the
matters contained herein and the Parties agree that there are no commitments, agreements or
understandings concerning the subject matter of this Agreement that are not contained in this
Agreement. Accordingly, the Parties agree that no deviations from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or written.
12. Opportunity to Review. The Parties acknowledge and agree that they are
releasing certain rights and assuming certain duties and obligations which, but for this
Agreement, would not have been released or assumed. Accordingly, the Parties agree that this
Agreement is fair and reasonable, that each of them has had an opportunity to consult with and
have in fact consulted with such experts of their choice as they may have desired, and that they
have had the opportunity to discuss and have in fact discussed this matter with counsel of their
choice..
13. Notices. Any notices or other formal communications made under this
Agreement shall be deemed to have been duly given if sent via United States Mail as follows:
To Arch:
Ms. Gail Latham
Arch Insurance Company
3 Parkway, Suite 1500
Philadelphia, PA 19102
To City:
Mr. Robert Fenton
Sr. Assistantto the City Manager
Office of Capital Improvements
Miami Riverside Center
ddd S.W. 2nd Avenue
Miami, FL 33130-1910
To Tran:
Mr. Henry Louden
1000 N.W. 546 Street
Miami, Florida 33127
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With a copy to:
Edward Etcheverry, Esq.
Etcheverry Harrison LLP
150 S. Pine Island Road, Suite 105
Fort Lauderdale, FL 33324
or at such other address as each of the foregoing may designate in writing by registered or
certified mail to the other.
14. Competent Legal Advice. The Parties acknowledge that they have sought and
received whatever competent advice and counsel as was necessary for them to form a full and
complete understanding of all rights and obligations herein and that the preparation of this
Agreement has been their joint effort. The language agreed to expresses their mutual intent and
the resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the Parties than the other.
15. Further Documents. The Parties agree to execute all such further instruments,
and to take all such further actions as may be reasonably required by any Party to fully effectuate
the terrns and provisions of this Agreement and the transactions contemplated herein.
16. Selection of Law. The Parties hereto acknowledge and agree that this Agreement
shall be interpreted and construed in accordance with and governed by the laws of the State of
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Page I 7
Florida. Any controversies or legal problems arising out of this Agreement and any action
involving the enforcement or interpretation of any rights hereunder shall be submitted to the
jurisdiction of a court of appropriate jurisdiction located within Miami -Dade County, Florida,
and shall be governed by the laws of the State of Florida. TO ENCOURAGE PROMPT AND
EQUITABLE RESOLUTION OF ANY LITIGATION THAT IT MAY ARISE HEREUNDER,
EACH PARTY HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO TRIAL BY JURY OF
ANY SUCH LITIGATION.
17. Litigation; Prevailing Partv. If it becomes necessary for any of the parties
hereto to apply to a Court for the enforcement of this Agreement, the party determined by the
Court to be in violation of the terns hereof shall be responsible for all reasonable costs, incurred
by the non -breaching party as a result of the default.
18. Counterparts. This Agreement may be executed in one or more counterparts,
each of which, when executed and delivered, shall be deemed to be an original, but such
counterparts shall together constitute one and the salve instrument.
IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement
on the respective dates under each signature:
[SPACE LEFT INTENTIONALLY BLANK]
Settlement Agreement and Release
Page
CITY OF MIAMI FLORIDA
By:
Name: Johnny Martinez
Title: City Manager
Date:
Attest:
Todd B. Hannon, City Clerk
A.. roved as t6 orm and correctness:
Jul
u Ci Attorne' (/R
STA OF' FLORIDA
CITi OF MIAMI
On this day of , 2013, before me personally appeared
who is [ ] personally known to me or [ ] has produced as
identification and who being by me duly sworn did depose and state that he/she is the
of the City of Miami, named in the foregoing Settlement Agreement
and Release, that he/she executed the foregoing instrument on behalf of the City with full
authority to do so, and that he/she executed the foregoing instrument on behalf of the City for the
uses and purposes set forth therein.
Notary Public
SEAL
STATE OF
CITY OF
By:
Settlement Agreement and Release
Page I9
ARCH INSURANCE COMPANY
Name:
Title:
Date:
On this day of , 2013, before me personally appeared
who is [ ] personally known to me or [ ] has produced as
identification and who being by me duly sworn did depose and state that he/she is the
of Arch Insurance Company, named in the foregoing Settlement
Agreement and Release, that he/she executed the foregoing instrument on behalf of the Company
with full authority to do so, and that he/she executed the foregoing instrument on behalf of the
Company for the uses and purposes set forth therein.
Notary Public
SEAL
STATE OF
CITY OF
By:
Settlement Agreement and Release
Page10
TRAN CONSTRUCTION, INC.
Name:
Title:
Date:
On this day of , 2013, before me personally appeared
who is [ ] personally known to me or [ ] has produced as
identification and who being by me duly sworn did depose and state that he/she is the
of Tran Construction, Inc., named in the foregoing Settlement
Agreement and Release, that he/she executed the foregoing instrument on behalf of the Company
with full authority to do so, and that he/she executed the foregoing instrument on behalf of the
Company for the uses and purposes set forth therein.
Notary Public
SEAL