HomeMy WebLinkAboutR-14-0379City of Miami
Legislation
Resolution: R-14-0379
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 14-00906 Final Action Date: 9/29/2014
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE DIRECTOR OF FINANCE TO PAY FIRST NATIONAL
INSURANCE COMPANY OF AMERICA, WITHOUT ADMISSION OF LIABILITY, THE
TOTAL SUM OF $364,518.15 IN FULL AND COMPLETE SETTLEMENT OF ANY
AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI, ITS OFFICERS,
AGENTS AND SERVANTS, IN THE CASE OF FIRST NATIONAL INSURANCE
COMPANY OF AMERICA V. CITY OF MIAMI, FLORIDA, UNITED STATES DISTRICT
COURT IN THE SOUTHERN DISTRICT OF FLORIDA, CASE NO.
14-20606-CIV-WILLIAMS, UPON EXECUTION OF A SETTLEMENT AGREEMENT
INCLUDING MUTUAL RELEASES FIRST NATIONAL COMPANY AND OF THE CITY
OF MIAMI, ITS PRESENT AND FORMER OFFICERS, AGENTS, AND EMPLOYEES
FROM ANY AND ALL CLAIMS AND DEMANDS; ALLOCATING FUNDS FROM
ACCOUNT NO.
38000.401000.670000.0000.00000.40-B50672.1431.02.CONSTRUCTION.401000;
FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE A MUTUAL
SETTLEMENT AGREEMENT AND RELEASE, IN SUBSTANTIALLY THE ATTACHED
FORM, TO EFFECTUATE THE SETTLEMENT.
WHEREAS, APAC Group, Inc. ("APAC") and the City of Miami ("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 ("Project"); and
WHEREAS, APAC requested from First National Insurance Company of America ("First National")
a payment and performance bond for its work on the Project; and
WHEREAS, First National required APAC and Faustin Denis, Jr. ("Indemnitors"), as a condition
precedent to issuing any bonds, to execute an Indemnity 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, and therein assigned to First National, in the event of APAC default, its
rights to all contracts and monies due or to become due to APAC pursuant to any contract, including
the Project Contract; and
WHEREAS, First National issued Payment/Performance Bond No. 6425623, naming APAC as
principal and the City as Obligee ("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 National Insurance Company of America v. APAC Group, Inc., Case No. 10-
City of Miami
Page 1 of 3 File Id: 14-00906 (Version: 1) Printed On: 1/12/2018
File Number: 14-00906 Enactment Number: R-14-0379
23258-CIV-UNGARO (S.D. Fla. 2010)), the United States 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 February 18, 2014, First National sued the City seeking $398,037.28 in
contract balances ("Contract Balances") it alleged the City was retaining, that were due and owing to
First National (First National Insurance Company of America v. City of Miami, Florida, Case No. 14-
20606-CIV-WILLIAMS (S.D. Fla. 2014)("Federal Litigation"); 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, up to $540,805.28, 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; and
WHEREAS, the parties agree that after credit for all backcharges, the amount due under the
contract with APAC to First National is $364,518.15; and
WHEREAS, without any admission of liability, the parties wish to resolve the Federal Litigation;
and
WHEREAS, the Office of the City Attorney has investigated this claim and lawsuit pursuant to
Sections 18-221 through 18-232 of the Code of the City of Miami, Florida, as amended, and
recommends that said claim and lawsuit be settled for the sum of $364,518.15;
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 fully set forth in this Section.
Section 2. The Director of Finance is authorized to pay First National without admission of liability,
the sum of $364,518.15 in full and complete settlement of any and all claims and demands against
the City, its officers, agents and servants, in the case of First National Insurance Company of America
v. City of Miami, Florida, United States District Court in the Southern District of Florida, Case No. 14-
20606-CIV-WILLIAMS, upon executing a settlement including mutual releases of First National and of
the City, its present and former officers, agents, and employees from any and all claims and
demands, with funds allocated from Account No.
38000.401000.670000.0000.00000.40-B50672.1431.02.Construction.401000.
Section 3. The City Manager is further authorized{1} to execute a Mutual Settlement Agreement
and Release, in substantially the attached form, to effectuate the settlement.
City ofMiami Page 2 of 3 File Id: 14-00906 (Version: 1) Printed On: 1/12/2018
File Number: 14-00906 Enactment Number: R-14-0379
Section 4. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
Footnotes:
{1} The herein authorization is further subject to compliance with all requirements that may be
imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter
and Code provisions.
{2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10)
calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall
become effective immediately upon override of the veto by the City Commission.
City of Miami Page 3 of 3 File Id: 14-00906 (Version: 1) Printed On: 1/12/2018