Settlement Agreement Draft Exhibits A & B Attachment A
SETTLEMENT AGREEMENT AND LIMITED RELEASE
_ �` This Settlement Agreement and Limited Release ( "Agreement ") is made and entered into
the 19th day of August 2010, by and between HORIZON CONTRACTORS, INC., a Florida
corporation (hereinafter, "Horizon "), and the CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation (hereinafter, the "City "). Horizon and City may also be referred to
individually as a "Party," and collectively as the "Parties."
WHEREAS, Horizon and the City are parties to a construction contract, dated May
28, 2009 (the "Contract "), for Construction Services for Water Mains, Sanitary Sewer Mains
and Milling and Resurfacing Improvements Along Indian Creek Drive Between 26 and 42h
Streets, Miami Beach, Florida, entered into pursuant to Invitation to Bid No. 28 -07/08
(hereinafter, the "Project ");
WHEREAS, the Parties have asserted claims against each other as it relates to issues
affecting the timeliness of construction of the Project;
WHEREAS, the City requires that additional construction services be perfouued for a
fully functional Project, but the Parties disagree as to who should bear the ultimate financial
responsibility for such costs;
WHEREAS, the Parties desire to settle all s ttl 11 claims and disputes, past, present or future
relating to delays in the construction of the Project, as more fully set forth herein, regardless of
responsibility, for such delays;
WHEREAS, the Parties desire to preserve all other pending claims (if any) against each
other, as more fully set forth herein; and
NOW THEREFORE, in consideration for the exchange of promises contained herein,
the parties agree as follows.
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1. Recitals. The above recitals are true and correct and are incorporated herein.
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2. The City has directed Horizon to perform additional construction services by
transferring services from an existing six -inch (6 ") diameter water main to a new twelve -inch
(12") diameter water main (the "Additional Work ").
3. The Parties agree that the issue as to the Party financially responsible for the
Additional Work remains unresolved and at issue.
4. Nonetheless, the Parties agree that Horizon will perform the Additional Work
requested by the City and will seek reimbursement from the City through mediation and, if
necessary, litigation as required by the Contract. The City disagrees that it is responsible for the
need for or cost of the Additional Work.
5. Nonetheless, the Parties agree that the City is of the opinion that the loss of use of
its existing six -inch (6 ") diameter water main has a monetary value and will seek reimbursement
from Horizon through mediation and, if necessary, litigation as required by the Contract.
Horizon disagrees that it is responsible for the loss of use of the existing six -inch (6 ") diameter
water main.
6. Nonetheless, the Parties agree that, despite Horizon's performance of the
Additional Work, the responsibility for the costs related to the Additional Work and for the costs
related to the adequacy and integrity of the existing six -inch (6 ") diameter water main, including
the alleged loss of use, will be the subject of mediation and, if necessary, litigation, as required
by the Contract.
7. Release of Delay Damages — Horizon to the City. Horizon releases, acquits and
forever discharges the City, including its affiliates and insurers, directors, officers, employees,
agents and attorneys, together with its heirs, executors, administrators, associates,
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representatives, successors and assigns, from any and all past, present and future claims,
demands,_obligations,_damages, costs, expenses, actions and causes of actions, and whether for
compensatory, punitive damages, or other damages arising from or relating to delay damages,
whether presently known or unknown, in connection with the Project.
8. Release of Delay Damages — the City to Horizon. The City releases, acquits and
forever discharges Horizon, including its affiliates and insurers, directors, officers, employees,
agents, subcontractors, sureties, and attorneys, together with its heirs, executors, administrators,
associates, representatives, successors and assigns, from any and all past, present and future
claims, demands, obligations, damages, costs, expenses, actions and causes of actions, and whether
for compensatory, punitive damages, or other damages arising from or relating to delay damages,
including but not limited to liquidated damages, whether presently known or unknown, in
connection with the Project.
9. The City will not withhold payment or the release of retainage from Horizon for
any issues related to the integrity, abandonment or loss of use of the six -inch (6 ") diameter water
main.
10. Pending change orders are not waived by this Agreement, but the issues related to
time contained within those pending change orders are rendered moot by the teiins of this
Agreement. Nonetheless, the Parties agree to continue in their efforts to resolve pending change
orders and, to the extent a resolution cannot be reached, such change orders will also be the
subject of mediation and, if necessary, litigation, as required by the Contract.
11. Horizon agrees to modify its letter dated Monday, August 2, 2010 to Aurelio
Carmenates by removing all references to the City Engineer, replacing with the term "City" in
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the revised letter. Said revised letter will be sent to the City within five (5) days of the execution
-- ----------- __ — _ -- of this Agreement.
12. It is understood and agreed that execution of this Agreement is not an express or
implied admission of negligence, misconduct, responsibility or liability on the part of the City
or Horizon, and that the City and Horizon expressly and specifically deny all such claims.
Such consideration is being given to reduce the expense, uncertainties and hazards of
litigation, mitigate damages to each of the Parties and ensure a timely and orderly completion of
the Project.
13. The Parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be reasonably necessary or appropriate
to give full force and effect to the basis and intent of this Agreement.
14. This Agreement contains the entire agreement between the Parties on the
issues addressed herein. This Agreement replaces any prior or contemporaneous
written or oral representation or understanding about the terms of this Agreement. This
Agreement may not be changed except in writing signed by the Parties or their respective
attorneys. This Agreement shall be binding on and shall inure to the benefit of the respective
successors and assigns, if any, of each party.
15. The Parties agree and acknowledge that this Agreement is solely limited to settle
any and all claims or disputes relating to delays on the Project, whether presently known or
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unknown. Notwithstanding _anything covered in this Agreement, neither party waives any of its
rights to allege any default, dispute, or claim against the other under the Contract.
16. This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement shall be governed
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by and construed in accordance with the laws of the State of Florida. The venue for any legal
proceeding of any nature brought by either party against the other to enforce any right or obligation
under this Agreement, or arising out of any matter pertaining to this Agreement, shall be in
Miami -Dade County, Florida.
17. The Parties warrant to each other that they have read this Agreement and that
they understand that this Agreement and that each have been represented by counsel before signing
this Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Parties have set their hands and seals on the day
and date first written above.
HORIZON CONTRACTORS, INC.
Attest: 7
Secretary s' teswom
C(7-44/2g-e to,c; ac-14-1
Print Name Print Name
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this f. day of
N-61),e,r , 2010, by J1)6-e, (YL . (At—as of Horizon
Contractors, Inc., who is personally known to me or who has produced
(type of identification). QQ ��fJJ ,�� ��
Name: )4JZI�[AL-4L a A
(Print Name) j ! f� Lfr) A git &
Notary Public — State of Florida
My Commission Expi es
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Attest: CITY OF MIAMI BEACH,
FLORIDA
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City Clerk I : ��
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Print Name Print Naarhe
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this 2 day of
00if , 2010 by eC.7Y7,Ait' I,. as /O/ Pte'" of the City of
Miami Beach, who is personall known to me or who has .r odu ed
(type of identi cation). ' u►uEruti
Name: ,1 ALA L .ti,
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I do hereby certify that the above
and foregoing is a true and correct
copy of the original thereof . : .
on file in this office. -- =: ~'` ' "
WITNESS my hand and of said Y
this 0/, g Ht day of . 4 • D.2:0 /0
CITY CLERK of the City _..,
of liami Be . Florida ... `.:
BY � ' / /,, - ,, v
' DEP" fY
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Attachment B
SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN
HORIZON CONTRACTORS, INC. AND THE CITY OF MIAMI BEACH, FLORIDA
This Settlement Agreement and Mutual Release ( "Agreement ") is made and entered into
this day of July, 2011, by and between HORIZON CONTRACTORS, INC., a Florida
corporation, (hereinafter "Horizon ") and the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation (hereinafter, the "City "). Horizon and the City may also be referred to individually
as a "Party ", and collectively as the "Parties."
RECITALS
WHEREAS, HORIZON and the CITY are parties to a construction contract, dated May
28, 2009 (the "Contract "), for Construction Services for Water Mains, Sanitary Sewer Mains and II '
Milling and Resurfacing Improvements Along Indian Creek Drive Between 26 and 42 Streets,
Miami Beach, Florida, entered into pursuant to Invitation to Bid No. 28 -07/08 (hereinafter, the
"Proj ect "); and
WHEREAS, the Parties have asserted claims against each other as it relates to multiple
issues regarding the construction of the Project; and
WHEREAS, the Parties desire to settle all claims, disputes, past, present, or future
regarding the Project, responsibility;
ect, re ardless of res onsibilit
g g J regardless p Y
WHEREAS, except as expressly limited in Paragraph 5, the Parties further agree to
waive any and all past, present and /or future claims against the other, as it relates to this Project
including, but not limited to, change order requests, delay claims, liquidated damages, back
charges, request for time, whether contemplated at this time or in the future, as it relates to this
Proj ect.
WHEREAS, the Parties agree to bear their own respective costs and attorney's fees as it!',
relates to this Settlement Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for good and valuable consideration acknowledged herein, the Parties agree as follows:
1. The above Recitals are true and correct and are incorporated herein.
2. The Parties agree and acknowledge that the full amount due and owing Horizon is
$1,197,966.00 (the "Settlement Payment "), which amount reflects the total monies due and
owing for the following Proposed Change Orders ( "PCO "): 290 -16; 290 -17; 290 -24; 290 -26;
290 -32; 290 -33; 290 -34; 290 -35, 290 -36; and 290 -37.
3. Subject to City Commission approval of the allocation of additional Project funds
this Settlement Agreement and Mutual Release, the Settlement Payment shall be made by the
City on or before August 26, 2011.
4. Upon payment of the Settlement Payment, no other monies are due and owing
Horizon, a except for Contract payments due to Horizon for work performed, or to be performed,
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which shall be paid in accordance with the Contract. These Contract payments include the
Blanket Purchase Order in the amount of $298,705.79; retainage in the amount of
$234,663.69; and the latest invoice as of July 1, 2011 in the amount of $186,685.81.
5. Horizon agrees that it remains responsible for any latent defects on the Project'
and all applicable warranties pursuant to the terms of the Contract.
6. It is understood and agreed that execution of this Agreement is not an express or
admission of negligence, misconduct, responsibility or liability on the part of the City or
and that the City and Horizon expressly and specifically deny all such claims. Such
consideration is being given to reduce the expense, uncertainties and hazards of litigation and to
damages to each of the Parties.
7. The Parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be reasonably necessary or appropriate
to give full force and effect to the basis and intent of this Agreement.
8. Upon payment of the Settlement Payment and except for the remaining Contract
payments expressly referenced in Paragraph 4 hereof, and the City's obligation to pay, Horizon,
releases, acquits and forever discharges the City, including its affiliates and insurers, directors,
officers, employees, agents and attorneys, together with its heirs, executors, administrators,
associates, representatives, successors and assigns, from any and all past, present and future
claims, demands, obligations, damages, costs, expenses, actions and causes of action whether for
compensatory, punitive, or other damages, arising from or relating to the Project, whether
presently known or unknown.
9. Except as provided in Paragraph 5 hereof, the City releases, acquits and forever
discharges Horizon, including its affiliates and insurers, directors, officers, employees, agents,
subcontractors, sureties, and attorneys, together with its heirs, executors, administrators,
associates, ns representatives, successors and assigns, any and all past, present and future
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claims, demands, obligations, damages, costs, expenses, actions and causes of actions, whether
for compensatory, punitive, liquidated or other damages, from arising f om or relating to the t he Pro' ect
p p q g g g Project, ' i,
whether presently known or unknown.
10. This Agreement contains the entire agreement between the Parties as related to
Project. This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the terms of this Agreement. This Agreement may not be
except in writing signed by the Parties or their respective attorneys. This Agreement''
shall be binding on and shall inure to the benefit of the respective successors and assigns, if any,
of each party.
11. This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement shall be governed
b y and construed in accordance with the laws of the State of Florida. The venue for any legal
proceeding of any nature brought by either party against the other to enforce any right or;
obligation under this Agreement, or arising out of any matter pertaining to this Agreement, shall
be in Miami -Dade County, Florida. The Parties expressly agree to waive a trial by jury in any
action to enforce this Agreement and that the Prevailing Party will be awarded reasonable
attorne y fees and costs.
12. The Parties warrant to each other that they have read this Agreement and that they
understand this Agreement and that each have been represented by counsel before signing this
Agreement.
a have set their hands and seals on the day WITNESS WHEREOF, the Parties s y and date
first written above.
HORIZON CONTRACTORS, INC.
Attest:
Title:
Secretary Print Name
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this day of
2011, by as of Horizon Contractors, Inc., who is
personally known to me or who has produced (type of
identification).
Name: r`
(Print Name)
Notary Public — State of Florida
My Commission Expires:
CITY OF MIAMI BEACH, FLORIDA
Attest:
Title:
City Clerk Print Name
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this day of
2011, by as of the City of Miami Beach, who is
personally known to me or who has produced (type of
identification).
Name:
(Print Name)
APPROVED AS TO
FORM & LANGUAGE Notary Public — State of Florida
& FOR EXECUTION My Commission Expires
. _ OP {r Attorney � .0 Da