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HomeMy WebLinkAboutCRA-R-24-0068 Exhibit AEXHIBIT "A" SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ("Agreement") is entered into this day of October 2024 by and between H.A. CONTRACTING CORPORATION ("H.A.C.C.") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes ("Agency") (collectively herein, the "Parties" and individually herein, as "Party"). WHEREAS, H.A.C.C. and Town Park Village No 1, Inc. ("Owner") entered into a written agreement dated October l3th, 2020 ("Contract") for H.A.C.C. to serve as the design builder for a project located at 1680 N.W. 4th Avenue, Miami, Florida known as known as the Town Park Village Condominium ("Project"); and WHEREAS, the Agency agreed to provide funding for the Project; and WHEREAS, H.A.C.C. timely met its obligations under the Contract and was not in breach of the Contract; and WHEREAS, Owner and Agency notified H.A.C.C. that a decision was made to cease work on the Project; and WHEREAS, on or about March 26, 2024, Owner signed change orders two through four agreeing to a final Contract amount of $19,785,235.80; and WHEREAS, Owner and Agency have collectively paid H.A.C.C. to date the total sum of $15,852,703.46; and WHEREAS, H.A.C.C. recorded a claim of lien against the Project on May 28, 2024, in the real property records of Miami -Dade County at Book 34243 Page 1480 in the amount of $2,545,506.62 (the "Lien"); and WHEREAS, the Agency has agreed to pay H.A.C.C. and H.A.C.C. has agreed to accept the amount of $2,147,296.54 as final payment, and H.A.C.C. has agreed to accept such amount as final payment and assign the Lien to the Agency contingent upon the Agency providing H.A.C.C. with a full and final release of all contractual, common-law, and statutory obligations arising out of or related to the Contract and the Project, a full and final release of H.A.C.C., H.A.C.C.'s surety, H.A.C.C.'s insurers, and indemnity from and against any and all claims arising out of or related to the Contract or the Project; and WHEREAS, It is the intention of the Parties to this Agreement that H.A.C.C. shall have no further liability nor responsibility for the Project, the work performed, the Contract, nor the Lien. NOW, THEREFORE, in consideration of the mutual promises, releases, and covenants contained herein, and for other valuable consideration, the receipt and sufficiency of all such consideration being expressly acknowledged by the Parties, the Parties hereby agree as follows: 1. Incorporation of Recitals: The above recitals are agreed to be true and correct and they are hereby made a part of this Agreement. EXHIBIT "A" 2. Consideration: Agency jointly shall pay H.A.C.C. the sum of $2,147,296.54 within five business days. Payment shall be made by wire transfer or check payable to "H.A. Contracting Corp." 3. Assignment By H.A.C.C.: Upon H.A.C.C.'s receipt of payment and within five business days of the clearance of the $2,147,296.54 in H.A.C.C.'s account, H.A.C.C. shall provide the Agency with Full Satisfaction of Lien and a non -recourse assignment of the Unsatisfied Lien transferring all of H.A.C.C.'s right, title, an interest in the Lien to the Agency. 4. Release by Agency: The Agency hereby (for themselves, and on behalf of their affiliates, successors, insurers, and assigns) releases and discharges H.A.C.C. and H.A.C.C.'s, sureties, insurers, principals, employees, consultants, and design professionals from any and all claims, rights, actions, causes of actions, obligations, demands, and damages whether arising in law or in equity both asserted or unasserted, known or unknown, latent or patent, accrued or unaccrued, that the Agency ever had, now has or hereinafter in the future may have pertaining to, arising out of, or related to the development, design, materials, and/or construction of the Project whether based in tort, contract or any other statutory, common law or other legal theory of recovery including, but not limited to, claims for property damage, loss of use, loss of income, breach of contract, negligence, and intentional torts. Without limiting the foregoing, this release includes all losses and damages, both compensatory and consequential, attorney's fees and costs, arising out of or related to the Contract and arising out of or related to the Project. 5. Indemnity: To the fullest extent permitted by law, H.A.C.C. shall indemnify, defend, hold harmless, and make whole the Agency from and against claims, liabilities, damages, losses and costs, including but not limited to, reasonable attorney's fees, arising out of or resulting from performance of the work to the extent caused by the negligence, recklessness, intentional wrongful misconduct, or omissions of H.A.C.C. or persons directly or indirectly employed or utilized by the H.A.C.C. in the performance of the Contract. 6. Agency's Pursuit of the Lien: Upon assignment of the Lien by H.A.C.C. to the Agency, H.A.C.C. shall have liability and responsibility arising out of or related to the Lien. Upon receipt of full payment pursuant to this settlement agreement, H.A.C.C. hereby agrees to defend and indemnity Agency from and all claims of lien filed by anyone who performed work or supplied materials to the Project pursuant to an agreement with H.A.C.C. H.A.C.C. may satisfy its defense and indemnity obligations by transferring any such lien to a lien -transfer bond posted in accordance with section 713.24, Florida Statutes. 7. Release by H.A.C.C.: H.A.C.C. hereby releases all claims and entitlements to any and all retainage beholden by the Agency and the City of Miami, Florida. 8. Breach: In the event the Agency breaches this Agreement, H.A.C.C. shall have the option to either enforce this Agreement or disregard the agreement and pursue all rights, claims, and damages available under the Contract and applicable law. Agency shall be responsible for paying H.A.C.C.'s attorney fees and costs arising out of the Agency's breach of this Agreement and for any action H.A.C.C. takes to enforce this Agreement. EXHIBIT "A" 9. Knowing Consent: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The venue for any action upon this Settlement Agreement shall be Broward County, Florida. 10. No Construction Against Drafting Party: The terms and conditions hereof have been negotiated by the Parties. In the event that it shall be necessary to construe this document there shall be no presumptions against any Party. 11. Requisite Authority and Approval; Binding Agreement: The undersigned, by their signatures, individually represent that this Agreement has been duly authorized by all necessary corporate actions and that they are duly authorized and empowered to execute this Agreement and to bind the Parties to the matters set forth herein. 12. Headings and Captions: The headings and captions used in this Agreement are for convenience of reference only, and shall in no way define, limit or expand the meaning or construction of any provision of this Agreement. 13. Counterparts: This Agreement may be executed in counterparts, all of which will be deemed one and the same instrument. Photocopies and facsimiles shall have the same effect as the original. 14. Severability: Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provisions contained herein and any present or future statute, law, ordinance, or regulation contrary to which the Parties have no legal right to contract, the latter shall prevail; but the provision of this Agreement which is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. To the extent the offending provision cannot be curtailed or limited, it shall be fully severable, and the remainder of this Agreement shall remain in full force. 15. Confidentiality: Except as required by court order or applicable law and as excepted below, the Parties each warrant, represent, and agree that they have not and will not communicate, discuss, or otherwise make any reference to the terms, conditions, content, or substance of this Settlement Agreement, whether in whole or in part, to or with any other person, entity, or organization not a party to this Settlement Agreement. Notwithstanding the foregoing, any Party may disclose the terms of this Settlement Agreement to its attorneys, accountants, lenders, representatives, insurers, reinsurers, and other professional financial advisors and employees as is reasonably necessary for the conduct of that party's business, financial affairs, or as otherwise required by law or regulation. 16. Entire Agreement: This Agreement represents the entire integrated agreement between the Parties hereto and supersedes all prior understandings and agreements between Parties with respect to the subject matter hereof. IN WITNESS WHEREOF, the Parties have knowingly, freely, and voluntarily hereunder set their hands to this seal on the dates set forth below.