Settlement Agreement 20 l a .27LtQ7 s-1
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement" or"Settlement Agreement") is entered into, by
and between THE CITY OF MIAMI BEACH, FLORIDA (the "CITY") and MCCUMBER
GOLF, INC. ("MCCUMBER") (collectively referred to as the "Parties");1
RECITALS
WHEREAS, the CITY retained MCCUMBER to perform design and planning services
in connection with the Par )3 golf course project including, without limitation, a par 3 golf course
("Par 3"), and certain amenities including tennis courts, restrooms, a tot lot, an interactive
children's splash pad and 9-space parking lot (the "Amenities") (collectively referred to as the
"Project");
WHEREAS, pursuant to Resolution #2010-27407/RFQ #07-09/10, the CITY entered into
an agreement for professional architecture and engineering services with MCCUMBER to
design,plan and oversee construction of the Project(the "Contract");
WHEREAS, during the course of the design and planning phases of the Project,
numerous issues arose with respect to the quality and constructability of MCCUMBER's work;
WHEREAS, as a result of the numerous design defects and deficiencies identified to date
in MCCUMBER's work on the Project, the CITY served MCCUMBER with a contractual
Notice of Intent to Terminate to MCCUMBER from the Project, dated May 15, 2013. See
Exhibit "A," attached hereto and incorporated herein, outlining numerous design and regulatory
deficiencies in the plans submitted by MCCUMBER and other contractual breaches which the
CITY required be cured;
WHEREAS, as a result of disputes between the Parties as to certain work performed by
MCCUMBER at the Project, the Parties to this Settlement Agreement desire to avoid protracted
litigation at this time, move the Project forward, and compromise and settle claims that have
been or could be asserted by and against them upon the terms set forth in this Settlement
Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Recitals: The above recitals are hereby made a material part of this Agreement
and are binding upon the Parties.
i Wherever used herein, the term "Party"or "Parties" shall include singular and plural, officers, directors, officers,
heirs,legal representatives,assigns of individuals,and the successors and assigns of corporations,and the use of any
gender shall be held to include every other and all genders,wherever the context so admits or requires.
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2. Settlement Terms: The Parties agree to perform the following:
a. The Parties shall execute the Amendment to the Contract, attached hereto
as Exhibit "B," which modifies MCCUMBER's scope of work on the Project to remove the
Amenities component. MCCUMBER shall execute the Amendment within five (5) days of
execution of this Agreement. MCCUMBER shall perform and complete its scope of work as to
the Par 3 component of the Project in accordance with the terms and conditions of its Contract
including, without limitation,performing the work properly, without defects and which is subject
to all applicable warranties. The contractual amounts for the Bid Award and Construction
Management Services components of the Contract, as referenced in Schedule B, Compensation
Fee Schedule, shall be reduced in the amount of Eighteen Thousand Eight Hundred Forty-One
Dollars and 00/100 Cents ($18,841.00), accounting for the reduced scope of work removing the
Amenities portion of the Project from MCCUMBER's scope of work.
b. MCCUMBER shall immediately furnish to the CITY all drawings in
CARD format, in connection with the Project, contemporaneously with the execution of the
Settlement Agreement. The CADD drawings shall be uploaded to the Project's FTP site.
C. MCCUMBER shall revise its Par 3 drawings to exclude the Amenities in a
form and manner acceptable to all departments and governmental entities with jurisdiction over
the Project including, without limitation, performing the revisions required to the existing plans
submitted to the CITY's Building Department. Said revisions shall be performed by
MCCUMBER, its engineer, Wantman Group, and/or any other engineer or subconsultant
retained by MCCUMBER, at no additional charge to the CITY.
d. Following negotiations regarding seventeen (17) additional service
proposals submitted to the CITY by MCCUMBER,the CITY agrees to pay MCCUMBER a total
of Twenty Four Thousand Nine Hundred Seventy-Five Dollars and 00/100 Cents ($24,975.00),
for the additional service items set forth in the attached Exhibit "C."
e. MCCUMBER will provide all revisions and responses to Building
Department comments for the portion of the remaining Par 3 scope of its work within three (3)
weeks after execution of this Settlement Agreement.
f. MCCUMBER shall continue to communicate with any and all
governmental agencies with jurisdiction over the Project and address all regulatory comments
necessary to obtain the required permits.
g. MCCUMBER shall immediately proceed in addressing environmental
issues raised by regulatory agencies with jurisdiction over the Project to ascertain any
modification to the design and planning for the Par 3 scope of work on the Project. The CITY
will consider any potential additional services related to any outside agency requirements in
connection with these environmental matters in the future with a not to exceed amount of
Eighteen Thousand Dollars and 00/100 Cents ($18,000.00).
h. MCCUMBER agrees to cooperate in any way to coordinate the Project
with any new design professional or contractor retained by or on behalf of the CITY to complete
the Amenities component of the Project or utilities and infrastructure that share connections
between each site and must be engineered accordingly.
i. All other terms, conditions and provisions of the Contract, to the extent
not modified by the Amendment, shall remain in full force and effect including, without
limitation, any and all contractual warranties in the work required by MCCUMBER.
3. Consideration; Legal Representation: The Parties acknowledge that this
Agreement is adequately supported by consideration and is fair and reasonable. The Parties
further acknowledge and agree that: (i) each Party has had the opportunity to consult with, and
had in fact consulted with, such professionals, experts and legal counsel of its choice as such
Party may have desired with respect to all matters settled and resolved herein; (ii) each Party has
participated fully in the negotiation and preparation of this Agreement; (iii) each Party has
carefully reviewed this Agreement and is entering into same freely; and (iv) this Settlement
Agreement is entered into in good faith and was not obtained by fraud, misrepresentation, or
deceit. Accordingly this Agreement shall not be more strictly construed against any Party.
4. Authority: Each Party represents and warrants to the other that the execution and
delivery of this Settlement Agreement has been duly approved by all requisite corporate or
partnership action(as applicable)required to be taken by such Party.
5. Severability: In the event any term or provision of this Settlement Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or shall be construed as deleted as such authority
determines, and the remainder of this Agreement shall be construed to be in full force and effect,
provided that such deletion does not materially adversely affect the interests of any party hereto
or the meaning, intent or purpose of this Agreement.
6. Attorney's Fees: If any legal action, proceeding, arbitration or hearing is brought
by any Party to this Settlement Agreement to resolve a dispute regarding payment, as provided in
this Agreement, then the prevailing Party shall be entitled to recover reasonable attorney's fees
and court costs incurred.
7. Modification; Waiver: This Agreement may only be modified in writing signed
by both Parties. No waiver or modification of the Agreement or of any covenant, condition or
limitation contained herein, shall be valid unless in writing and signed by all Parties to the
Agreement, or their authorized counsel. If the CITY excuses or condones any breach or default
by MCCUMBER of any obligation under this Agreement, this shall not be a waiver of such
obligation with respect to any continuing obligation or subsequent breach or default and no such
waiver shall be implied.
8. Choice of Law: This Settlement Agreement shall be construed in accordance with
the laws of the State of Florida.
9. Venue: Venue for any dispute arising out of, or in connection with, this
Settlement Agreement including, without limitation, its interpretation and effect, and any action
to enforce any provision contained herein, shall be in a court of competent jurisdiction in and for
Miami-Dade County, Florida.
10. Entire Agreement: This Settlement Agreement constitutes the full and entire
agreement and understanding between the Parties with respect to the subject matter hereof, and
there are no agreements, representations or warranties except as specifically set forth herein. The
terms of this Settlement Agreement are contractual and not a mere recital. All prior agreement(s)
are to be construed to be of no further force or effect, it being the intention of the Parties that this
Settlement Agreement shall serve as the sole and entire expression of their agreement and
understanding. However, execution by all Parties shall be a condition precedent to the
effectiveness of this Agreement as binding against any Party.
11. Captions and Headings: References: The captions and headings of this
Agreement are for the purpose of convenience of reference only and in no-way define, limit or
describe the scope or intent of the Agreement or in any way affect the terms and conditions of
this Agreement. All references in the Agreement to the terms "herein," "hereunder," "hereof'
and words of similar import shall refer to this Agreement, as distinguished from the Paragraph,
Section and/or Subsection within which such term is located.
12. Exhibits: All of the Exhibits attached to this Agreement are incorporated herein
and deemed part of this Agreement.
13. Counte arts: This Agreement may be executed in counterparts with the same
force and effect as if all signatures appeared on the same document. The Parties further agree
that facsimile, digitally transmitted and electronic copies of an original signature shall be
accepted as an authentic original signature.
[Signatures on following page.]
Signed this day of IJe , 2013.
MCC MBER GOLF,INC. CITY O MIAMI BE H, FLORIDA`
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