HomeMy WebLinkAboutExhibitMUTUAL SETTLEMENT AGREEMENT AND RELEASE
This Mutual Settlement Agreement and Release (hereinafter "Agreement") is
made this day of , 2014 ("affective Date"), by and among THE CITY
OF MIAMI, FLORIDA (the "City") and FIRST NATIONAL INSURANCE COMPANY
OF AMERICA ("First. National") (collectively, the "Parties").
Recitals
WHEREAS, APAC Group, Inc. ("APAC") and the City entered into the Project
Contract, for APAC to construct a project known as the Belle Meade Storm Sewer Phase
II/Horizontal Construction "A" project in Miami, Florida (the "Project"); and
WHEREAS, APAC requested from First National a payment and performance
bond for its work on the Project; and
WHEREAS, First National required APAC and Faustin Denis, Jr. (the
"Indemnitors"), as a condition precedent to issuing any bonds, to execute an Indemnty
Agreement in favor of First National; and
WHEREAS, on or around January 18, 2008, the Indemnitors executed the
Indemnity Agreement in favor of First National, andtherein assigned to First National, in
the event of APAC default, its rights to all cou acts and monies due or to become due to
MAC pursuant to any contract, including the Project Contract; and
WHEREAS, induced by and relying upon the Indemnitors' promises of indemnity
in the Indemnity Agreement, on or around January 28, 2010, First National issued
Payment/Performance Bond No. 6425623, naming APAC as principal and the City as
Obligee (the "Bond"); and
WHEREAS, APAC defaulted under the Indemnity Agreement because (1) APAC
failed to pay subcontractors on the Project and (2) failed to perform under the Indemnity
Agreement by failing to indemnify First National for the debts it incurred due to issuing
the Bond; and
WHEREAS, on or around December 3, 2010, in a First National indemnity
lawsuit against the Indemnitors (First Nat'l Ins. Co. of America v. APAC Group, Inc.,
Case No. 10-23258-CIV-UNGARO (S.D. Fla. 2010)), the U.S. District, Court for the
Southern District of Florida entered Final Judgment in favor of First National and against
the Indemnitors, jointly and severally, in the amount of $540,805.28; and
WHEREAS, to date, the Indemnitors have not paid First National any portion of
the Final Judgment; and
WHEREAS, on or around August 29, 2012, APAC sued the City to recover at
least $2,215,.080.33 in Contract Balances, and for change orders and/or extra work and/or
other damages (the "Other Contract Claims") that APAC alleged the City owes APAC in
connection with the Project (APAC Group, Inc. v. City of Miami, Case No. 12-
35085CA04 (Fla. 1 lth. Jud. Cir. 2012)(the "State Litigation")); and
WHEREAS, on or around February 18, 2014, First National sued the City seeking
$398,037.28 in contract balances (the "Contract Balances") it alleged the City was
retaining, that were due and owing to First National (First National Ins. Co. of America v.
City of Miami, Florida, Case No. 14-20606-CIV-WILLIAMS (S.D. Fla. 2014)(the
"Federal Litigation"); and
WHEREAS, on or around July 24, 2014, the state court dismissed the State
Litigation; and
WHEREAS, on or around August 20, 2014 the state -court denied APAC' s Motion
to Vacate Dismissal; and
WHEREAS, the City alleged entitlement to certain backcharges for work not
completed or improperly completed by APAC; and
WHEREAS, the Parties agree that any unpaid Project contract balances are due
and owing to First National, not APAC, under the assignment provision of the Indemnity
Agreement, and the Final Judgment; and
WHEREAS, the Parties agree that Project construction is complete;
WHEREAS, the Parties agree that the unpaid Project contract balances that are
due and owing to First National total $364,518.15; and
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WHEREAS, without any admission of liability, the Parties wish to resolve the
Federal Litigation;
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. No later than thirty (45) days after the Parties execute this Agreement, the
City shall pay First National the sum of $364,518.15 ("Final Settlement Payment"), in
full and final settlement of all causes of action asserted or that could have been asserted
by First National against the City, of every kind and character, from the beginning of
time until the end, whether such claims are liquidated or unliquidated, known or
unknown, asserted or not asserted, and regardless of whether such claims arise in tort,
contract, equity, or under any other theory of law, including claims for attorneys' fees
and costs, arising out of the Federal Litigation or the subject matter of the Federal
Litigation..
2. In consideration of and effective only upon. First National's receipt of the
Final Settlement Payment, First National, hereby remises, releases, acquits, satisfies,
and forever discharges the City, its officers, successors, assigns, commissions, bodies,
councils, managers, employees, agents, attorneys, insurers, and operators, in their
individual capacity, and each of their successors and assigns, from any and all claims of
every kind and character, from the beginning of time until the end, whether such claims
are liquidated or unliquidated, known or unknown, asserted or not asserted, and
regardless of whether such claims arise in tort, contract, equity, or under any other theory
of law, including claims for attorneys' fees and costs, arising out of the Federal Litigation
or the subject matter of the Federal Litigation.
3. The City hereby remises, releases, acquits, satisfies, and forever discharges
First National and its parents, subsidiaries, parents' subsidiaries, and related or affiliated
companies, and their present and former officers, professionals, managers, executives,
directors, owners, shareholders, employees, agents, attorneys, insurers, and operators
including, in their individual capacity,, and each of their successors and assigns, from any
and all claims of every kind and character, from the beginning of time until the end,
whether such claims are liquidated or unliquidated, known or unknown, asserted or not
asserted, and regardless of whether such claims arise in tort, contract, equity, or under
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any other theory' of law, including all claims for attorneys' fees and costs, arising out of
the Federal Litigation, including without limitation all claims related to Project warranty
work and alleged latent and/or undiscovered Project defects.
4. Upon First National's receipt of the Final Settlement Payment, the Parties
will voluntarily dismiss the Federal Litigation, with prejudice, with each party to bear its
own fees and costs.
5. The Parties agree that the state court has permanently dismissed the State
Litigation. However, in the event that APAC and/or any assignee or successor attempts
to resurrect or refile the State Litigation against the City, First National agrees that the
law firm. of Mills Paskert Divers, P.A., located at 100 N. Tampa Street, Suite 3700
Tampa, Florida 33602, is empowered to receive, on First National's behalf, subpoenas
duces tecum from the City related to the State Litigation, but First National reserves all
rights regarding its responses to those subpoenas duces tecum, including without
limitation its right to assert work product and attorney/client privileges.
6. This Agreement shall not be modified, altered or amended, except by
written agreement signed by each of the Parties hereto.
7. No ambiguous clause in the Agreement shall be interpreted for or against
any party hereto on the basis that such party was a draftsman of such provision, each
party -having participated equally -in -the drafting hereof, and no presumptron or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any
ambiguous clause of the Agreement.
8. The Agreement shall be governed by the laws of the State of Florida.
(signatures on following pages)
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ATTEST: CITY OF MIAMI, a municipal Corporation of the State of Florida
By: By:
Todd B. Hannon Date
City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
By:
VICTORIA MENDEZ Date
City Attorney
STATE OF
Daniel J. Alfonso Date
City Manager
ACKNOWLEDGEMENT
COUNTY OF
BE IT KNOWN that on this day of , 2014, before me,
the undersigned authority, duly qualified and sworn within and for the State and County
aforesaid, personally came and appeared , as the
of THE CITY OF MIAMI, FLORIDA, to me personally known to
be the identical person whose name is ascribed to the foregoing instrument, and who
declared and acknowledged to me, Notary, in the presence of the undersigned competent
witnesses, that he has the authority to execute and has executed the foregoing instrument
on behalf of THE CITY OF MIAMI, FLORIDA, for the uses, purposes, and benefits
expressed as the free act and deed of said appearer.
(SEAL)
NOTARY PUBLIC
My Commission Expires:
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FIRST NON INSURANCE COMPANY OF AMERICA
nature
Date:
ACKNOWLEDGEMENT
STATE OF e cxs
COUNTY OF 'I. l I C)S
BE IT KNOWN that on thisq day of, ' .mbi, 2014, before me,
the undersigned authority, duly qualified and sworn within and for the. State and County
aforesaid, personally came and appeared L L RISSt J , as the
authorized° representative of FIRST NATIONAL INSURANCE COMPANY OF
AMERICA, to me personally known to be the identical person whose name is ascribed to
the foregoing instrument, and who declared and acknowledged to me, Notary, in the
presence of the undersigned competent witnesses, that he has the authority to execute and
has executed the foregoing instrument on behalf of FIRST NATIONAL INSURANCE
COMPANY OF AMERICA, for the uses, purposes, and benefits expressed as the free act
and deed of said appearer.
NOTARY PUBLIC
My Commission Expires: 7— % •-.72D/&
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