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Resolution 80-16273 RESOLUTION NO. 80-16273 A RESOLUTION AUTHORIZING FINAL SETTLEMENT OF CIRCUIT COURT CASE NO. 77-13737, JOHN DEMIRJIAN, D/B/A J. D. CONSTRUCTION COMPANY v. THE CITY OF MIAMI BEACH, ROCCO W. PACE, D/B/A PACE ASSOCIATES, AND JOSEPH A. WANICK. WHEREAS, for the reasons more particularly set forth in Commission Memorandum No. 8207 , the City Commission of the City of Miami Beach finds it in the best interest of said City to enter into a final settlement of Circuit Court Case No. 77-13737 between the City of Miami Beach, Rocco W. Pace, d/b/a Pace Associates , Joseph A. Wanick, John Demirjian, d/b/a J. D. Construction Company, and United States Fidelity & Guaranty Company; and WHEREAS, the City Attorney recommends settlement of said litigation on the terms contained in said Commission Memorandum; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the City Attorney is hereby authorized to enter into a final settlement agreement for and on behalf of the City of Miami Beach in paying $23, 500 to John Demirjian, d/b/a J. D. Construction Company. PASSED and ADOPTED this 7th day of May , 1980. \\*NjiMay -- Attest: (SEAL) 21,0, y M ,•N,,,,: City Cler AKM/el OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH,FLORIDA 33139 . be* OFFICE OF THE GI I Y Al I OKNEY • $.7.4.. 71.4 F L O R I D A cM BE4 r ' k1NCoar A.TLO*i JOHN A. RITTER % n _-26'\c> ���i TELEPHONE :673-7470 _ T� CITY ATI ORNEY 4 fCH26Ats- COMMISSION MEMORANDUM NO. 820t1 DATE: May 7 , 1980 TO: Murray Meyerson, Mayor, and Members of the City Commission City Manager Harold T. Toal FROM: John A. Ritter City Attorney SUBJECT: RECOMMENDED SETTLEMENT OF CIRCUIT COURT CASE NO. 77-13737 , JOHN DEMI RJIAN, D/B/A J. D. CONSTRUCTION COMPANY v. CITY OF MIAMI BEACH, ROCCO W. PACE, D/B/A PACE ASSOCIATES AND JOSEPH A. WANICN (NORTH SHORE BRANCH LIBRARY) DISCUSSION: The City Attorney' s Office, along with the Administration, has been negotiating a settlement in the above-referenced lawsuit since approx- imately September 1979 . A proposed settlement has been agreed upon by the parties in which the City would pay $23 , 500 from the contingency fund to Plaintiff, John Demirjian, d/b/a J. D. Construction Company, the general contractor, and the City will receive a general release from Demirjian of all claims against it arising out of this action. The City shall also receive covenants not to sue and indemnity agree- ments protecting the City from any judgment obtained against either Defendant Joseph Wanick or Rocco Pace. The City will in turn release the surety from this suit. If the City goes to trial and loses , it could suffer a judgment of $46 , G50 on the construction contract, plus an undeterminable liability for damages to Demirjian' s business rep- utation, lost business profits, and the additional costs of defending actions that have been brought by the sub-contractors , and material men. The above settlement offer of $23, 500 was arrived at after numerous negotiations between Demirjian, the sub-contractors, the Administration and this office. This office recommends this settle- ment because the City' s main witnesses , John Bergacker, the Director of Public Works at the time of this project, and Norman Wiener, Chief Inspector on this project, have left the City' s employ, thus compli- cating the defense of this suit. A further deterent to the success- ful defense of this suit is the fact that Joseph Wanick, City Attorney at the time of this project, would be the key witness in the City' s defense of intentional interference with contract and conspiracy to advise and induce the City to breach contract. Adverse testimony of the above witness would seriously weaken the City' s case and could make it difficult to convince a jury that the City was correct in its actions . • The suit arose as follows : In July of 1975 , the City of Miami Beach awarded to John Demirjian, d/b/a J.- D. - Construction Company, a contract in the amount of approx- imately $192 , 000 for the construction of the proposed North Shore Branch Library. United States Fidelity & Guaranty Company of Maryland was the surety, providing the contract bond on this project. AGENDA ITEM 11t() A • T' 157 DATE 1 r Aoh. The library was designed by Rocco Pace, Professional Architect, d/b/a Pace Associates, under a contract with the City of Miami Beach. During the construction of the North Shore Branch Library, several disputes arose between the City of Miami Beach and the contractor. The contractor failed to complete the project and walked off the job in March 1977. The City ultimately completed the project at a cost of approximately $27 ,000. The contractor, Demirjian, filed suit in the Circuit Court in May of 1977 , claiming that the City breached the construction contract on the project, that Rocco Pace , architect for the project, intention- ally interfered and induced the City to breach the construction contract, that Joseph A. Wanick, as City Attorney for the City, interfered and induced the City to breach the construction con- tract, and that Pace and Wanick together conspired to induce the City to breach the construction contract. The City counter- claimed against the contractor for breach of contract and brought a third party complaint against the surety on the bond. RECOMMENDATION: As a result of the foreoing, and in comparing the potential recovery against the potential loss , it is strongly urged by this office that the City accept the settlement outlined above, which we believe to be a good one in view of the present status of the case. JAR:el Page 2 of 2 158 1 . NO/. ..71) S /-ee. Zrz4fic#, 2/,, .; GE!ipt RELEASE f RAMCO FORM 22 Know RII ThLn By These rtstnts : That CITY OF MIAMI BEACH, a municipal corporation, (I, We) ' ' firstandof of Ten and no/10 0 ($10 . 00) party, for in consideration rcrtiort the sum — `Dollars, or otlu'r valuable considerations, received from or on behalf of UNITED STATES FIDELITY AND GUARANTY COMPANY, • second party, the receipt whereof is hereby acknowledged, (Wherever used herein the terms "first party'' and •-second party" shall include singular and.phiral, heirs, legal representa- tit es, and assigns of individuals, and the successors and assigns of corporations, sshi reser the context so admits or requires. HEREBY remise, release, acquit, satisfy, and forever discharge the said second party, f d o� anfrom all, and all manner of action and actions, cause and causes of action, suits, debts, dues,s, suns of money. accounts, reckonings, bonds, hills, specialties, covenants, contracts, controversies, agreements', promises, vari- ances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, � y. which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents pertaining to the action instituted by JOHN DEMIRJIAN J.D. CONSTRUCTIGN COMPANY, ' d/b/a against CITY OF MIAMI BEACH, ROCCO W. PACE, d/b/a PACE ASSOCIATES , and JOSEPH A. WANICK et the Circuit Court, Dade al. , in County, Florida, under case No. 77-13737 . in 1111 ttfltSS IiIi hereof I have �, . hereunto r►►►to sc t my hand and seal Hits , V i.'C ti,: day of ,-/-t.�tre.3.-- , A. 1)., 1980:. Signed, sealed and delivered in presence of: , CtTY 0 . MIAMI 'BEAgH, FLORIDA T_, 1 \:_. y k ,_, -, Cit. .. . . . 1 rk •' y -•,: --� e Ma �� y ) • elE) STATE OF FLORIDA, COUNTY OF Dade I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, ersonall- appeared Murray Meyerson, as Mayor of the City of Miami Beach, • y �� to me known to be the person described in and who executed the foregoing instrument and he acknowledged before me that he executed the same.0n behalf of the municipal corporation. p P n. WITNESS my hand and official seal in the County and State last aforesaid this htetty av„/(7,7i4 day of •- A. D. 1980 . ..*..-.:4<1.,...t.*A.,('..n::-A4.'AY/of t...k:....• .. . /7 - This Ius/rume',ii prc q'ar<<l by: 44u•,'till. K,6t .. 51 r.iC '.• ( i./., /'1 L ,:....0 onald W. Stobs, Jr. . Address mi w�.„w1i�alLiiJ t,. ��.�.� ���r i j,�. 9 519 N.E. 2 Avenue Bo►�ui tl.cu C.�r$' j INS UiVLtKY�'lr,i 1�s Miami Shores, FL 33138 ORIGINAL RESOLUTION NO. 80-16273 (Authorzing final settlement of Circuit Court Case #77-13737, John Demirjian, D/B/A J.D. Construction Co. v CMB, Rocco W. Pace, D/B/A Pace Associates, and Joseph A. Wanick) .. fro kV, 1 ..