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Settlement Agreement & Release with Savino & Miller Design Studio, P.A. SETTLEMENT AGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF MIAMI BEACH,FLORIDA, AND SAVING & MILLER DESIGN STUDIO,P.A. This Settlement Agreement and Release ("Agreement") is made and entered into, this &day of 2014,by and between THE CITY OF MIAMI BEACH, FLORIDA, a political sub- ivision of the State of Florida, and its successors and assigns (the "City") and SAVINO & MILLER DESIGN STUDIO, P.A. ("SMDS"), a Florida corporation (the City and SMDS.are collectively referred to as the"Parties"and individually as a"Party"). Based upon the mutual considerations stated below and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: RECITALS A. The City, a political sub-division of the State of Florida, allocated certain funds to re-develop more than 17 acres of green space in Miami Beach, Florida into a park as part of the City's comprehensive redevelopment plans for the rebirth of the South Pointe area. B. The City retained Hargreaves Associates, Inc. ("Hargreaves") to be the Architect/Engineer of Record for the expansion and improvements to the City of Miami Beach's South Pointe Park, located in Miami Beach, Florida (the "South Pointe Park Improvement Project"). C. The anticipated improvements included landscaping, irrigation, recreational areas, walkways, restrooms, signage, support structures, parking, lighting, seawall improvements, bay walk, water features, concession areas, and appropriate accessory park commercial uses. D. Hargreaves, in turn, retained SMDS to act as the local landscape architect and to prepare certain design, construction, permit and bid documents for the landscaping and to provide certain construction administration services for the South Pointe Park Improvement Project. Specifically, SMDS' work was comprised of preparation of: (1) Specification Sections 02850 (Tree Relocation) and 02900 (Landscape Work); (2) Plan Sheets: L101, L102, L103, L1049 L1059 L106, L1201 L121, L1229 L518 and L519; and (3) SMDS' observations as they relate to the planting design,planting soils and tree relocation(collectively, the"SMDS Work"). E. On or about May 3, 2007, following a competitive bid process for Bid No.: 36- 06/07 for the South Pointe Park Improvement Project, the City awarded the contract to MCM, Corp. ("MCM"). MCM thereafter commenced its construction work and the South Pointe Park Improvement Project was substantially completed on or about March 20, 2009. F. Following certain disputes, which arose concerning the design and construction of the South Pointe Park Improvement Project, the City filed that certain action styled The City of Miami Beach, Florida v. Hargreaves Associates, et al., Case No. 10-61979 CA 40, in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the "Action"), against numerous Defendants, including Hargreaves and SMDS, seeking damages for alleged design and construction defects identified at the South Pointe Park Improvement Project. G. The Parties attended Court-ordered mediation on April 11, 2014, resulting in the execution by counsel for the Parties of a Mediated Settlement Agreement on April 23, 2014 and April 24, 2014, respectively, a copy of which is incorporated herein and is attached hereto as Exhibit"A"(the"Mediated Settlement Agreement"). H. The City and SMDS desire to resolve and settle any and all claims which were, or . could have been, asserted in the Action with the intention that this Agreement shall be fully binding upon the City'and SMDS for the claims made by the City against SMDS for issues arising solely from the SMDS Work, and for any claims which were or could have been asserted against the City by SMDS, in connection with the SMDS Work. I. The Parties believe it would be in their best interests and the interests of their respective citizens to agree to the provisions of this Agreement. NOW, THEREFORE, in consideration of the mutual agreements, undertakings and representations contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, and with the intent to be legally bound, the City and SMDS hereby agree as follows: 1. Settlement. The City hereby settles and compromises all claims of any kind or nature (including any claims for attorney's fees and costs) which the City had or may have had against SMDS for issues relating to or arising out of the SMDS Work that the City has attributed to SMDS. The Parties acknowledge that this Settlement is a compromise of the damages the City is seeking as to certain components of the landscaping and other defects at the South Pointe Park Improvement Project including, without limitation, the sod and subsurface soils, but constitutes those damages attributable to SMDS. In accordance with the City's allegations as framed by its pleadings in the Action, the City still seeks and believes it is entitled to recover what it contends are the remaining portions of its damages pertaining to the landscaping including, but not limited to, the sod and subsurface soils, as against other Defendants in the subject Action including, without limitation, Hargreaves(except as set forth in Paragraph 3.a.i. herein), MCM, and Travelers Casualty and Surety Company of America. a. Notwithstanding any other language in this Paragraph 1, to the extent any other provision of this Paragraph, or of this Agreement, conflicts with Paragraph 3.a.i. herein,the terms of Paragraph 3.a.i. shall govern. 2. Settlement Terms. In consideration for the releases executed herein, SMDS agrees as follows: a. To pay the City Three Hundred Seventy-Five Thousand Dollars and Zero Cents ($375,000.00), on behalf of itself. As set forth in the Mediated Settlement Agreement, payment was to be made to the City of Miami Beach, Florida within sixty (60) days of City Commission acceptance, which occurred at a Closed Attorney/Client session on April 23, 2014, subject to final City Commission ratification at a scheduled City Commission meeting. As a result of certain delays in the preparation of this Agreement which arose after April 23, 2014, payment was not made within the aforesaid 60 days. Due to those delays, the Parties agree that the payment will now be made within thirty(30) days of the final City Commission ratification at a scheduled City Commission meeting. The original executed Agreement will be held in trust by the City's counsel until the settlement monies are tendered and cleared. 3. 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 "SMDS Releasors" as the case may be) hereby execute, subject to the conditions and exclusions set forth in this Agreement, the following Releases: a. The City Releasors' Release of SMDS Releasors The City Releasors do hereby remise, release, acquit, satisfy, and forever discharge the SMDS Releasors of and from any and all manner of claims, action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, liabilities, and demands whatsoever, in law or in equity (collectively referred to in this Paragraph as "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 SMDS Releasors, for any and all Claims, whether known or unknown, whether they were or could have been asserted in the Action,'as well as all Crossclaims, Counterclaims and any and all other causes of action at law and equity. The City Releasors understand and expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, patent or latent, suspected or unsuspected, past, present, or future, arising from or attributable to any past actions or omissions of the SMDS Releasors whether set forth in any pleadings or charge referred to herein or not, whether they were brought or could have been brought in the Action and that any and all rights granted to the City Releasors under any state law or federal law or regulation limiting the general nature of this Release are hereby expressly waived. i. Notwithstanding any other language in this Release, the City Releasors are releasing Hargreaves in this Action, but only to the extent of Hargreaves' vicarious liability for the SMDS Work, which the parties being released agree is limited to the SMDS Work, as set forth in Paragraph D of the Recitals herein. All other claims brought by the City against Hargreaves for breach of contract and professional negligence, whether based upon Hargreaves' own independent liability, contractual and/or professional obligations, and/or the vicarious liability for its other sub-consultants.who are not expressly excluded herein, remain pending and unaffected by the terms of this Agreement. To the extent any other provision of this Agreement conflicts with this Paragraph 3.a.i., the terms of Paragraph 3.a.i. shall govern. ii. Notwithstanding any other language in this Release, the City Releasors are not releasing any other Defendants' or non-party to the Action from any manner of Claims raised by the City Releasors in the Action which arise from or relate to any other Defendant's or non-party's work at the South Pointe Park Improvement Project, unrelated to the SMDS Work. All such Claims are specifically preserved and not affected by this Release. Further, the definition of City Releasors and SMDS Releasors shall expressly exclude, and shall not in any way be construed to include, any other Defendant named or to be named in the Action. b. SMDS Releasors Release of the City Releasors The SMDS Releasors do hereby remise, release, acquit, satisfy, and forever discharge the City Releasors of and from any and all manner of claims, action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, liabilities, and demands whatsoever, in law or in equity (collectively referred to in this Paragraph as "Claims"), which the SMDS Releasors have held or now hold, ever had, now have, or which the SMDS Releasors, hereinafter can, shall or may have, against the City Releasors, for any and all Claims, whether known or unknown, whether they were or could have been asserted in the Action including, without limitation, all Crossclaims, Counterclaims and any and all other causes of action at law and equity. The SMDS Releasors understand and expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, patent or latent, suspected or unsuspected, past, present, or future, arising om or attributable to an past actions or omissions of the City Releasors whether set g Y P tY forth in any pleadings or charge referred to herein or not, whether they were brought or could have been brought in the Action and that any and all rights granted to the SMDS.Releasors under any state law or federal law or regulation limiting the general nature of this Release are hereby expressly waived. 4. Settlement Accord and Satisfaction. This Agreement is intended to and does settle and resolve all claims known or unknown, arising from, relating to, and in connection with the SKIDS Work only, and constitutes a full and complete accord and satisfaction between and among the City Releasors and the SMDS Releasors only with respect to the SMDS Work, including the City's right to make any claims and/or bring causes of action for any latent defects arising from, relating to and in connection with the SMDS Work, and which are not now known and not previously discoverable with the exercise of due diligence. 5. Dismissal. The City will dismiss, with prejudice, the claims against SMDS only as asserted in the Action, with each Party to bear its own attorney's fees and costs within ten(10) days of the receipt of this fully executed Agreement and the tender and clearance of the settlement funds set forth in Paragraph 2 above. 6. No Admission of Liability. The Parties acknowledge and agree that the claims in this Action are disputed claims and that the execution of this Agreement by the Parties, and the foregoing exclusions from the settlement set forth in this Agreement, are not intended to and For purposes only of Paragraph 3.a.1i.herein,the term Defendant shall not include Hargreaves. shall not in any way constitute or be deemed an admission or acceptance of any liability by the Parties or an admission against interest by 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 SMDS Releasors in any attempt to prove any future liability claims. 7. Binding Effect. This Agreement shall be binding upon the Parties, and their respective successors and assigns. 8. Attorney's Fees. If any legal action, proceeding, or hearing is brought by the City Releasors or the SMDS Releasors to resolve a dispute regarding payment, as provided in this Agreement, then the prevailing party as between the City Releasors and the SMDS 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 Action 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; and (iii) each Party has carefully reviewed this Agreement and is entering into same freely. Accordingly this Agreement shall not be more strictly construed against any Party. b. The Recitals set forth herein are true and correct to the best of the Parties' knowledge, information and belief, and they are incorporated into, and made part of, this Agreement. C. 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 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. d. 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. e. 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. f. 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. g. All of the exhibits attached to this Agreement are incorporated into, and made a part of,this Agreement. 10. Entire Agreement. This Agreement, together with any documents referenced herein, constitute 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. 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. 11. 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 SMDS 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. Counterpart s. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together represent one instrument. Each Party shall execute five(5)original copies of the Agreement. 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,unless otherwise specified. 15. Third Parties. Except and to the extent of the partial release of Hargreaves set forth in Paragraph 4 of the Mediated Settlement Agreement, 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 SMDS, any rights or remedies under or by reason of this Agreement including, without limitation, any other Defendants named or to be named in the Action. a. Notwithstanding any other language in this Paragraph 15, to the extent any other provision of this Paragraph 15, and of this Agreement, conflicts with Paragraph 3.a.i. herein, the terms of Paragraph 3.a.i. shall govern. EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. Signed, sealed and acknowledged the presence of: [Remainder of page intentionally left blank.] I THE CITY OF MIAMI-B FLORIDA, a Municipal Corporati , ;State of Florida By: i l Print Name: Ph,l% 4,e v,, Title: a r ATTEST: Y-ki C INCORP ORA ity lerk TED ilk SEAL APPROVED AS TO FORM AND CORRECTNESS: City Attorney SAVING& NULLER D IO,P.A., a Flor' r rati By: Print ame: t A Titl . Y_M C t STATE OF FLORIDA ) COUNTY OF N The oregoing instrum t was acknowledged before me this day of 2014, by as Ci of Savino & Miller Design Studio, P.A., Florida corporation, Party to the foregoing Settlement Agreement. He/she is Yersonall known to me or �as produced a � � P as identification. n Notary Public(S ature) My commission expires: 2®� MaRh Notary Pub0c • • State of Florida My Commission Expires os/0M? Commission No.ff 16548