HomeMy WebLinkAboutExhibit - AgreementSETTLEMENT AGREEMENT ANIS MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter the
"Settlement Agreement") by and between the CITY OF MIAMI (the "CITY") and
EDGEWATER CONSTRUCTION GROUP, INC. ("EDGEWATER") is effective on the date
executed below. The CITY and EDGEWATER are referred to collectively as the "Parties."
WITNESSETH
WHEREAS, EDGEWATER and the CITY entered into an agreement pursuant to BID
NO. 10-11-023, to provide certain specified services to construct a new City of Miami Fire
Station facility, No. 13 (B -60453A), located at 990 NE 79th Street in Miami (hereinafter the
"Project Contract"); and
WHEREAS, EDGEWATER demanded payment and filed a lawsuit against the CITY, in
the Circuit Court of the 1 Ith Judicial Circuit in and for Miami -Dade County, Florida, Case No.:
14-05075 CA 23 (the "Action"); and
WHEREAS, the Parties engaged in considerable negotiations and discussions in effort to
amicably resolve all claims and matters arising out of, or relating to, the Project Contract;
NOW, THEREFORE, in consideration of the representations, mutual covenants,
promises and considerations set forth herein, without admitting to liability for the claims each
party asserted against the other, but with the intent to be legally bound, it is hereby agreed
between the Parties as follows:
1. Representations: The following representations are true and correct and by this reference
thereto, the Project Contract between the CITY and EDGEWATER is incorporated
herein and made a part hereof, including all approved Change Orders to the Project
Contract.
2. Claims: EDGEWATER demanded payment for the principal suin of $496,938.00. The
CITY retained this contract balance and asserted a claim for liquidated damages,
defective work and credits for work not done.
3. Terms of Settlement: The Parties hereby covenant and agree as follows:
A. Upon approval by the City Commission and absent Mayoral veto, the CITY
shall pay EDGEWATER the suin of Three Hundred Thirty Six Thousand,
Nine Hundred and Thirty Eight Dollars and Zero Cents ($336,938.00) within
fifteen (15) days after EDGEWATER submits a revised Final Payment
Application, and a Consent of Surety. This payment shall be made to
Etcheverry Harrison LLP Trust Account, as counsel for American Safety
Casualty Insurance Company, as surety for Edgewater Construction Group,
Inc.
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B. Within one hundred and eighty (180) days after the CITY makes payment
under subsection A above, EDGEWATER shall obtain Final Releases from
any lower tier subcontractor and supplier in privity with EDGEWATER or
those not in privity that provided EDGEWATER a timely Notice to
Contractor/Notice to Surety pursuant to section 255.05 of the Florida Statutes,
and furnished labor, material and equipment that improved the CITY's
property. If EDGEWATER is unable to furnish a Final Release to the CITY
from any lower tier because the entity is defunct, filed for bankruptcy
protection or pending litigation exists related to that lower tier's claim of
entitlement or the amount the lower tier claims, EDGWATER agrees to
provide the CITY a written statement identifying the reason EDGEWATER is
unable to furnish a Final Release, a summary of the current status of the
matter and documents supporting the claim within one hundred and eighty
(180) days after the City makes payment under subsection A.
EDGEWATER's written statement shall not obligate EDGWATER to waive
any attorney-client privilege, work product doctrine protection or disclose
settlement communications protected by section 90.408 of the Florida
Statutes.
C. As further consideration for this Settlement Agreement, EDGEWATER
agrees to honor its contractual warranty through October 10, 2015. As of the
date of this Agreement, there is no pending warranty claim by the CITY to
EDGEWATER.
D. EDGEWATER shall provide to the CITY all warranties and operation
manuals for the corresponding equipment or appliances EDGEWATER
installed. EDGEWATER shall deliver these items to the CITY within thirty
(30) days after the CITY makes the payment under Subsection A above.
However, if EDGEWATER is unable to furnish an operation manual from any
lower tier because the entity is defunct, filed for bankruptcy protection or
pending litigation exists, EDGWATER agrees to provide the CITY a written
statement identifying the reason EDGEWATER is unable to furnish an
operation manual, a summary of the current status of the matter and
documents supporting the claim within thirty (30) days after the City makes
payment under subsection A. EDGEWATER's written statement shall not
obligate EDGWATER to waive any attorney-client privilege, work product
doctrine protection or disclose settlement conimunications protected by
section 90.408 of the Florida Statutes.
4. Mutual Final Releases: Upon completion of the terms in Section 3A, 3B and 3C, the
Parties release each other, their agents, servants, representatives, officers, directors,
subsidiaries and affiliated entities, from all claims, demands, damages, causes of action,
actions, and losses of every kind and nature, known or unknown, arising out of or related
to the Project and the Project Contract. Provided, however, that this Agreement shall not
waive claims for latent defects, if any. The CITY represents and affirms that as of the
date this Agreement is signed the CITY is not aware of any defect associated with
EDGEWATER's work.
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5. Voluntary Dismissal: EDGEWATER shall voluntarily dismiss with prejudice the pending
lawsuit against the CITY, in the Circuit Court of the 11th Judicial Circuit in and for
Miami -Dade County, Florida, Case No.: 14-05075 CA 23, with each party agreeing to
bear their own attorneys' fees and costs.
6. Subsequent Proceedings: The CITY further affirms it will not use any of the alleged
actions or inactions the CITY attributes to EDGEWATER (i.e., liquidated damages,
defective work and credits for work not done) on this Project and Project Contract as a
basis to subsequently reject EDGEWATER as a non -responsible bidder and/or to
continence any disciplinary/debarnlent proceedings. And, if asked in any subsequent
public bid whether the CITY has ever defaulted or assessed liquidated damages against
EDGEWATER, the CITY affirms EDGEWATER shall be entitled to respond NO to that
question. With the exception that if EDGEWATER fails to comply with the obligations
in Subsection 3C, the CITY may commence disciplinary/debarment proceedings against
EDGEWATER, and EDGEWATER reserves its right to assert all available defenses in
any such proceeding.
7. Default: In the event of default of any of the covenants and conditions set forth herein by
either party, all other provisions of this Settlement Agreement shall continue to remain in
fall force and effect, and subject to an action at law or for specific perfonnance against
the defaulting party. The Court presiding over the Action shall have jurisdiction to
enforce each party's respective obligations under the Settlement Agreement.
8. Acknowledgment. lent. Each of the Parties to this Settlement Agreement represents and
warrants that it has carefully read this Settlement Agreement, that it fully understands its
final and binding effect, that it has had an opportunity to consult with an attorney of its
own choosing prior to signing this Settlement Agreement, that the person signing this
Settlement Agreement on its behalf has the power and authority to execute and deliver
this Settlement Agreement on behalf of the party whom he represents, and that he is
signing this Settlement Agreement voluntarily and without coercion or duress.
9. Merger. This document 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 connnitments, agreements or
understandings concerning the subject matter of this Settlement Agreement that are not
contained in this Settlement Agreement.
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ATTEST:
CITY OF MIAMI, a Florida municipal corporation
By:
Todd Hannon, City Clerk Daniel J. Alfonso, City Manager
STATE OF FLORIDA
COUNTY OF MIAMI-DADE ) SS:
The foregoing instrument was acknowledged before me this day of ,
2015, by Daniel J. Alfonso, whose title is City Manager of the City of Miami, who is personally
known to me or who has produced as identification.
My commission expires:
Approved:
No
NOTARY PUBLIC, State of Florida at Large
Print name:
Jeovaimy Rodriguez, Director,
Capital Improvements and Transportation Program
Approved as to Legal Form and Correctness:
ME
Victoria Mendez, City Attorney
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EDGEWATER CONSTRUCTION GROUP, INC.
Ulysses Vazquez, President
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE ) SS:
The foregoing instrument was acknowledged before me this day of
2015, by Ulysses Vazquez, President of Edgewater Construction Group, Inc., who is personally
known to me or who has produced as identification.
My commission expires:
NOTARY PUBLIC, State of Florida at Large
Print name:
ATTEST:
(Secretary)
(Corporate Seal)
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