Loading...
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 Settlement Agreement and Release Page2 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 Settlement Agreement and Release Page I3 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, Settlement Agreement and Release Pagej4 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. Settlement Agreement and Release Page 15 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 Settlement Agreement and Release Page6 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 Settlement Agreement and Release 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