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Settlement Agreement and Mutual Release with Horizon Contractors, Inc. 9 0 AY-c2 S6 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 JU 7 , 2014, by and between HORIZON CONTRACTORS, INC., a Florida corporation, (her nafter "Horizon") and the CITY OF MIAMI BEACH, FLORIDA, a political sub-division of the State of Florida(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 December 10, 2009 (the "Contract"), for Neighborhood 12-South Pointe RDA Phase II, located in Miami Beach, Florida(hereinafter,the"Project"); WHEREAS, Horizon asserted claims for additional compensation and time against the City pertaining to the Project; WHEREAS, as required by the Contract, the Parties attended pre-suit mediation on January 6, 2012 (the "Mediation"), resulting in the execution by the Parties of an Interim Settlement Agreement and Adjournment (the "Interim Settlement Agreement"), a copy of which is incorporated herein and is attached hereto as Exhibit"A;" WHEREAS, the Parties attended settlement conferences on March 5, 2012, and March 20,2014, respectively,to discuss the remaining claims and open issues related to the Project; WHEREAS, the Parties desire to settle all claims, disputes, past, present, or future regarding the Project,regardless of responsibility; and WHEREAS,the Parties believe it would be in their best interests and the best interests of the citizens of the City to agree to the provisions of this Agreement. NOW THEREFORE, in consideration for the exchange of promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties,the Parties agree as follows: 1. Recitals: The above Recitals are true and correct and are incorporated herein. 2. Settlement: The Parties hereby settle and compromise all claims of any kind or nature (including any claims for attorney's fees and costs), relating to, arising out of and/or in connection with the Project,except as set forth herein. 1 r � 3. Settlement Terms: In consideration for the releases executed herein, the Parties agree as follows: (a) The City agrees to pay Horizon the sum of Four Hundred Ninety Thousand Dollars and 00/100($490,000.00)(the"Final Payment"). (b) The City will seek to place this item on the Agenda for the City Commission Meeting following the approval of the Agreement in form and correctness by the City Attorney. (c) Subject to the City Commission's approval of this Agreement, the Final Payment shall be made by the City within thirty (30) days following City Commission approval and execution by the City of the associated Resolution approving such settlement. (d) As a condition precedent to the City's Final Payment, Horizon shall furnish to the City, for review and approval, digital copies of the Water Main, Storm Water Drainage and Electrical as-built drawings for the Project, in pdf format and in the latest version of CAD. Horizon shall also submit to the City, for review and approval, 11 x 17 paper copies of the Water Main and Storm Water Drainage as-built drawings for the Project, signed and sealed by a Florida- licensed Professional Land Surveyor. 4. Releases: In further consideration of the execution of this Agreement, the Parties for themselves and their respective parent companies, subsidiaries, divisions, affiliates, unit owners, insurers, officers, 'directors, agents, employees, subcontractors, representatives, successors and assigns (the"City Releasors"or"Horizon Releasors" as the case may be), hereby execute, subject to the conditions and exclusions set forth in this Agreement, the following Releases: (a) Horizon Releasors' Release of City Releasors: Upon payment of the Final Payment by the City, the Horizon Releasors hereby remise, release, acquit, satisfy and forever discharge the City Releasors, which throughout this Agreement includes, but is not limited to, its affiliates, Commissioners, insurers, sureties, directors, officers, employees, agents and attorneys, together with its heirs, executors, administrators, associates, representatives, successors and assigns, of and from any and all manner of past, present and future claims, action and actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, obligations, damages, judgments, costs, expenses, cause and causes of action, executions, claims, liabilities, and demands whatsoever, in law or in equity, 2 whether for compensatory, punitive, or other damages (collectively referred to in this Paragraph as the "Claims"), which the Horizon Releasors have held or now hold, ever had, now have, or which the Horizon Releasors, hereinafter can, shall or may have against the City Releasors, for any and all Claims, whether known or unknown, arising from, pertaining to and/or in any way relating to the Project. (b) City Releasors' Release of Horizon Releasors: Except as provided and expressly subject to the limitations set forth in Paragraph 5 herein, which the Parties agree and acknowledge limits the scope of the City Releasors' release of the Horizon Releasors, the City Releasors hereby remise, release, acquit, satisfy and forever discharge the Horizon Releasors, which throughout this Agreement includes, but is not limited to, its affiliates, insurers, sureties, directors, officers, employees, agents and attorneys, together with its heirs, executors, administrators, associates, representatives, successors and assigns, of and from any and all manner of past, present and future claims, action and actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, obligations, damages, judgments, costs, expenses, cause and causes of action, executions, claims and liabilities, and demands whatsoever, in law or in equity, whether for compensatory, punitive, or other damages (collectively referred to in this Paragraph as the "Claims"), which the City Releasors have held or now hold,ever had, now have, or which the City Releasors,hereinafter can, shall or may have against the Horizon Releasors, for any and all Claims, whether known or unknown, arising from, pertaining to and/or in any way relating to the Project. 5. Latent Defects and Warranties: (a) The Parties agree that, specifically excluded from any release or waiver by the Parties under this Agreement, are any demands, claims and causes of action arising from: (i) latent defects; (ii) warranty claims; or (iii) any third party actions for property damage, bodily injury, personal injury or death pertaining to the Project. The City shall not be precluded from bringing any action at law or equity arising from or relating to such matters. (b) Horizon agrees that it shall honor and be responsible to the City for all warranties and guarantees as specified in the Contract and/or as otherwise provided by law or in equity. Horizon further acknowledges and agrees that nothing contained in this Agreement shall constitute a waiver of any right by the City to seek enforcement of those warranties and guarantees against Horizon, its sureties, insurers, subcontractors and suppliers. 6. No Admission of Liability: It is understood and agreed that the claims which are the subject of this Agreement are disputed claims and that the execution of this Agreement by the Parties, and the exclusions set forth in this Agreement, are not intended to, and shall not in any 3 way, constitute or be deemed an express or implied admission or acceptance of any negligence, misconduct, responsibility or liability by the Parties or an admission against interest by the Parties, and that the Parties expressly and specifically deny all such claims. Such consideration is being given to reduce the expense, uncertainties and hazards of litigation and to mitigate damages to each of the Parties. There shall not be any implication by any trier of fact or law of any admission or acceptance of liability or admission against interest by the Parties and it shall not be used against the City Releasors or the Horizon Releasors in any attempt to prove any future liability claims. 7. Binding Effect: Subject to City Commission approval and execution by the Parties, this Agreement shall be binding upon the Parties and their respective successors and assigns. However, execution and notarization by all Parties shall be a condition precedent to the effectiveness of this Agreement as binding against any Party. If the City Commission does not issue the approval,the Agreement shall be null and void and of no force and effect. S. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the City Releasors or the Horizon Releasors to resolve a dispute regarding enforcement of the terms of this Agreement, then the prevailing party as between the City Releasors and the Horizon Releasors shall be entitled to recover reasonable attorney's fees and court costs incurred. The Parties shall bear their own fees and costs relating to the negotiation and execution of this Agreement to date. 9. Miscellaneous: The Parties further agree as follows: (a) The Parties acknowledge and agree that this Agreement is fully and 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 has 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 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. (b) The Parties hereto understand and agree that this Agreement will not be binding on the Parties to this Agreement until such time as the City Commission of the City of Miami Beach has approved same, and the Agreement is fully executed by the Parties to the Agreement. City Commission approval is a 4 material condition precedent to the execution and enforceability of this Agreement, without which the City does not agree to, and is not subject to, the terms and conditions contained herein. (c) Each of the signatories hereto represents that he or she has authority to execute this Agreement and to bind the Party on whose behalf he or she has signed. (d) 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 construed and governed in accordance with the laws of the State of Florida and the sole and exclusive venue for any lawsuit relating to this Agreement is Miami- Dade County, Florida. The Parties expressly agree to waive trial by jury in any action to enforce this Agreement. (e) In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and paragraph headings shall be disregarded. (f) Any exhibits attached to this Agreement are incorporated in, and made a part of,this Agreement. (g) Time is of the essence in the performance of this Agreement. 10. Entire Agreement: This Agreement, together with any documents referenced herein, constitutes the full and entire agreement and understanding between the Parties as related to the Project, and there are no agreements, representations or warranties except as specifically set forth herein. This Agreement replaces any prior or contemporaneous written or oral representation or understanding about the terms of this Agreement. All prior discussions, negotiations, letters, demands and writings of any kind are fully merged into this Agreement and are to be construed to be of no further force or effect, it being the intention of the Parties that this Agreement shall serve as the sole and entire expression of their agreement and understanding. This Agreement shall be binding on, and shall inure to the benefit of, the respective successors and assigns,if any,of each Party. 11. Modification; No 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 or Horizon excuses or condones any 5 breach or default by the other Party 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. 12. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together represent one instrument binding on the Parties, notwithstanding that all of the Parties are not signatories to the same counterpart. The Parties further agree that this Agreement may be signed and submitted via facsimile or electronic mail. 13. Severability: If any provision of this Agreement is held or rendered illegal or unenforceable, it shall be considered separate and severable from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect and bind the Parties as though the illegal or unenforceable provision had never been included in the Agreement. 14. Captions; References: The captions 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. 15. Third Parties: Nothing express or implied in this Agreement is intended or should be construed to confer upon or give any person or entity, other than the City and Horizon, any rights or remedies under, or by reason of,this Agreement. IN WITNESS WHEREOF,the Parties have set their hands and seals on the day and date first written above: I i i I ; i ; [Remainder of page intentionally left blank.] ; i 1 6 i i HORIZON CON TORS,INC. Attest: Jos . Sa hez, President / /Ven Ze ,74 t rint Name STATE OF FLORIDA COUNTY OF MIAMI-DARE The foregoing instrument was acknowledged before me this day of 2014, by Jose M. Sanchez as President of Horizon Contractors, Inc., who is personally known to me or who has produced__ . . . . (type of identification). ( e Name: Pnnt,:Name Notary Public State of Flor' a „+'« vrsr RoouEt My Commission Expires: Nagy •no M WC«M.�«ft8.1017 j' CIO wong •If elm 7 i ------------------.-- ------ s a I " J E THE CITY OF MIAMI EACH,FLORIDA, a a Niunicepal Co of the State of Flo da P -e: hh� �-:2 v ,,n' ,: : M a` - �r :ATTEST` City Clerk - v °.. I. - SEAL= ING OR P AlEp 1 � APPROVED AS TO FORM CORRECTNESS{ - t — City Attorney , APPROVED AS TO ..FORM&LANGUAGE F(lH EXECUTION City Attorney Date r: SUPPLEMENT TO INTERIM SETTLEMENT AGREEMENT AND ADJOURNMENT BET«'EEN HORIZON CONTRACTORS,INC. AND THE CITY OF MIAMI BEACH, FLORIDA This Supplement to Interim Settlement Agreement and Adjournment ("Agreement") is S�u� glade and entered into this Za day of _Mira 2012. by and between HORIZON' r + CONTRACTORS, INC.; a Florida corporation. (hereinafter "I=iorizoii") and the CITY OF N41AMI BEACH, FLORIDA, a municipal corporation(hereinafter, the "Cite"). Horizon and the Cite inay also be referred to individually as a"Part}", and collectively as the"Parties. RECITALS WHEREAS, HORIZON and the CITY are parties to a construction contract, dated December 10, 2009 (the"Contract''), for Neighborhood 12- South Pointe RDA Phase II, Miami Beach,Florida(hereinafter. the"Project"); and WHEREAS, Horizon asserted claims for additional compensation and time against the City regarding multiple issues regarding the construction of the Project;and '"'HEREAS, as required by the Contract, the Parties attended pre-suit mediation on .ianuarN 6, 2012(the "Mediation"), resulting in the execution by the Parties of an Interim Settlement Agreernent and Adjournment (the "Interim Settlement Agreement"),. a cop} of which is incorporated herein and is attached as Exhibit"A' WHEREAS, the Parties attended a settlement conference on March 5, 2012, to discuss the remaining claims and open issues related to the Project; WHEREAS, the Parties execute this Agreement to resolve certain claims and disputes while preserving other claims and disputes for litigation: NO1VV 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. i SUPPLEMENT TO INTER/;11 SETTLE:1•!E:\'T AGI E:1lE A J 1 UJOI_1{:1:11E:\'7'BET►t'G r\-1/C)RIZO\'C.'O;\'T!{:(C'1'C)R5 1:�'C. & 0;1113 ?. The Cite agrees to pay the following, items on or Before March 20; 2012 (the "Contract Payments"): a. I'C06 Supplemental 288-A, 288-13C, in the amount of7U,079.96; b. Pay Application 925, which includes item a. above and Retainaae in the amount of$207,272.64, for a total payment of$277,352.60 3. Horizon shall provide all Final lien releases from its subcontractors and material suppliers to the'City and fulfill all other contractual requirements for the final Retainage Release in the amount of $100.000.00. However, the Parties agree that the Contract Payments and associated lien releases in no way release the City from any claims for additional compensation and time asserted by Horizon and submitted for Mediation and that such claims are preserved for litigation, including the following: a. Dewatering Impacts; b. Pipe Testing Criteria Changes; C. DERY Tree Permit Impacts; and d. Contract Drawing Changes. 4. 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. t 6. 11 is understood and agreed that execution of this Agreement is not an express or inin lied admission of negligence. misconduct, responsibility or liability on the part of the City or Horizon. 6. Horizon agrees that it remains responsible for any latent defects on the Project and all applicable warranties pursuant to the terms of the Contract and Florida la\v. 7. The Parties nuree to declare the Mediation at an impasse. 2 l ------------- RIA-1 SE71TEAIL"A7.4 G1?EEj11EA,*Tc4,- SUPPLELAIEWTTO I.NTE ..IL)JOI,'I?A7:IIE,,\"7'BETI,'EE,,\'IIORIZO,,\ICO.,-N'i-P,;ICTORS. LNC,A-CUB 'I'his Aureenient contains the entire agreement between the Parties reoardinL the claims raised at Mediation. This Agreement replaces any prior or contemporaneous written or oral representation or understanding about the terns of this Agreement. This Agreement play 110L 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 r espective successors and assiens. if any,of each party. 9. This Agreement is being consummated in the State of Florida. and the perf6miance by the Parties hereto is in the State of Florida. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The venue for any legal proceeding of an;, 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 Nliaini-Dade County, Florida. 10. The Parties warrant to each other that they have read this Agreement, that they understand this Agreement and that each have been represented by counsel before signing this L Agreement. I - IN WITNESS \ Parties have set their hands and seals on the day and date VHEREOF, the Pai first %vi-itlen above. HORIZON CONTRA RS, NC. Attest: Title: <.. S Uc. tare L_�_ Print Narne %J N\C%CL14 Print NVile 3 SLPPLEAfE:VT TO LUE-RIA1 S£1TL£:t1E.VT,4GREEa1EA�T& ADJOUP-N"AIENT BETWEEN HORIZON CO,VTI?-4CTORS.LVC.&0-1B STATE OF FLORIDA ) ss COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this�day of March 2012, by ��ra So_A as of Horizon Contractors, Inc., who is personally known to me or who has produced (type of identification). p BRIAN RANDA Notary Public-State of Florida My Comm.Expires Oct 12,2015 Notary Public-State of Florida = ' .• Commission#EE 137526 8onde4 Through National Notary Assn. V-% (Print Name) My Commission Expires: t o - rj a-- t-c CITY OF MIAINII ACH,FLORIDA Attest: r Title: t Q Print Name t��,r�►� M,d-ltz �Z-- Print Name OLGA 5^NGr'( Do, y��, Notary Public. -atf if Florida •° AAy Comm. E x pn ea .: r.2015 Commission #EE 56701 STATE OF FLORIDA 3gaftd1hrougn Nalion3t Wvy Assn. ss COUNTY OF MIAMI-DADE ) The foregoing instru ent was acknowledged before me this day of�C-C , 201 by-fi ! 4 a�'clea__ �' o the City of Miami Beach, who is personalt y kno�vn to me/ who has produced , - . r (type of identification). f Notary P etc--Stati df Ftorida (Print Name) �•IV Commission Expires: C>' -- �r _. �r;'.i�: APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION 4 t� cZ 41t, y Attom Date i In Re: f Horizon Contractors, Inc. , Claimant, V. SETTLEMENT AGREEMENT 4-(j 0✓"IM c.q F i City of Miami Beach, Respondent. The parties and/or counsel, with full authority, voluntarily consent and agree to settlement of the above referenced matter upon the .following terms and conditions: 1. Within days Respondent(s) shall pay Claimant(s) the total amount of jj� 1y eet-#7,3 am t�Co G SrnalPirrca�o/ ZaB, Z$8- check(s) made payable and delivered to claimant(s) as follows: -�� T°1�� 2. c pa ees cu indemnity.agreement/satisfaction or rele s [as t any and -all liens of any kin ature whatsoever, and/or related to, or arisi m, the subject matter of the instant disput and, a voluntary dismissal of all claims, wit 3. Each party and/or their counsel shall pay their share of the Mediation fees and costs. The Court shall retain jurisdiction to enforce the terms of this settlement, including enforcement of the payment of mediation fees and costs. i 4. 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