Settlement Agreement & Release with Savino & Miller Design Studio, P.A (2). VA
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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
A// day of OC,�UdJ r , 2014, by and between THE CITY OF MIAMI BEACH, FLORIDA,
a political sub-division 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
certain design, construction, permit and bid documents for the landscaping and to
prepare �
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, L1035
L104, L105, L106, L120, L121, L1225 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 "SKIDS Releasors" as the case may be) hereby
execute subject to the conditions and exclusions set forth in this Agreement, the following
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Releases:
a. The City Releasors' Release of SKIDS Releasors
The City Releasors do hereby remise, release, acquit-, satisfy, and forever discharge the
SKIDS 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 SKIDS 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 SKIDS Releasors whether set forth in any
pleadings or charge referred to herein or not, whether they were brou ght 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.
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'
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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. Counterparts. 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.]
SA VIN & EIS DESIGN STUDIO,P.A.,
a Flori cor atio
By:
P Na e:
STATE OF FLORIDA )
)
COUNTY OF Pkk'<1M1-
T he foregoing instrument was acknowledged before me this. �q day of SQ4e m 6,r
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2014, by �' � �l as P Qk` of Savino & Miller
Design Studio, P.A., a Florida corporation, Party to the foregoing Settlement Agreement. He/she
U'c�is [ ] personally known to me or Pf has produced a R-7be 0 ve v---
as identification.
ti
Notary Public(Signa r
My commission expires:
Mailim Roder
a�1*10.44i'� Notary Public
A
We d Florida
MY mission Expires OSI MI?
Commission No.FF 16548
THE CITY OF MIAMI BED h;ORIDA,
a Municipal Corporation o te of Florida
B
Print Name: Phi I i ke v►n e
Title: M A Yor
ATTEST: `
..r ►1 .___ -.
Ci Clerk
ACORP ORATED::
••'• � ,
SEAL r�r a � •. . , � !
APPROVED AS TO FORM AND
CORRECTNESS:
1
City Attorney..
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IN Tl-lE TI-1 CIRCUIT COURT OF TI-111 I I"'"JUDICIAL CIRCUIT,IN AND �
FOR MIAMI-DADS COUNTY,FLORIDA
GENERAL CIVIL JURISDICTION
CASE N0. 10.61979-CA-03
THE CITY OF MIAMI BEACH,FLORIDA
. F .
Plaintiff,
VS.
I°iARGRLAVES ASSOCIATES, INCORPORATED,
WILLIAM LANE, ARCHITECT,WILLIAM LANE,
SAVING) & MILLER DESIGN STUDIO, P.A.,
DAN I U SI iER W ATERARCI-IITECTUR.I INC,,
KENNETH DIDONATO,INC., KENNETH
DIDONATO, LAM PARTNERS, INC., WILLIAM
A. AEARCA,P.Ed., PLAY,SIT'1 .ARCHITECTURE,
INC.,JOANNE HIROMURA, JOI-INSON, AVI DAN.O,
LOPEZ, RODRICrIJEZ&WALIJWSKI NC"TZNEERIN(r
GROUP,INC, and IIORACIO A. RODRIGUEZ, P.E.,
Defendants.
HARGREAVES ASSOCIATES INCORPORATED,
Counter-claimant/Cross-claimant,
vs.
1
THE CITY OF MIAMI I3I3ACFI, FLORIDA)
WILLIAM LANE, INC., SAVI.NO & MIL.,I R
DESIGN STUDIO, P.A., DAN EUSHER
WATERARCHITE,CTURE, INC,,K NNE'I I.1
DIDONATO, INC., LAM PARTNERS,INC.,
PLAY.SITE.ARCIIITIBC"PURL and JOHNSON,
AVEDANO, LOPEZ, RODRIGUEZ&
i
WALEVSKI ENGINEERING GROUP, INC.,
COtintCl def endant/Cross-defendant.
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Exhibit A
Case No. 1061979-CA43
11��DIA'TED SETTLEMENT AGREE MEN'T
II
The parties anal/or counsel, with full authority, voluntarily consent and agree to
settlement of the above referenced matter upon the following,terms and conditions: �
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1. Defendant, Savino & Miller Design Studio, P.A. (hereinafter"Savino"), shall pay
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Plaintiff, The City of Miarni Beach (herein after "the City" or "Plainti.T), the total amount of
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Three Hundred Seventy Five Thousand Dollars and 00/100 ($375,000.00), payable and delivered
to Plaintiff by check within sixty (60) days of acceptance by the City of Miami Beach
Commission,
2. Each party agrees to execute final settlement documents in a form and substance
agreeable to all parties, and a voluntary dismissal of Savino with prejudice, each side to bear
their own attorney's fetes and costs,
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,
4. The City's pending claim against Savino for professional negligence in this action
is included as part of the release-of Savino under the terms set forth in this Mediated Settlement
Agreement. the City's claims against Hargreaves Associates, Inc.. ("Hargreaves"), in this
action, are included as part of this release only to the extent of Hargreaves' vicarious liability for
the work performed by Savino, which the parties being released agree is limited to Savino's
preparation of:
a.-Specification sections 2850 (Tree Relocation) and 2900(l,andscape Work);
b. Plan Sheets: 1,101, L102, L103, .1,104,. L1052 1,106, L120, L1211 L122, L518
and 1,519; and
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Case No. 10-61979-CA-03 �
c. Savi.no's observations as they relate to the plantitlg design, planting 9011s and
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tree relocatlom
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All other claims brotight by the City against Fl rrgreaves for breach of contract and professional
negligence, whether bftscd h.lpon Hargreaves' own. independent liability, contractual and/or
professional obligations tend/or the vicarious liability for its other sub--consultants who are not
tmafcoted by the terms -o(' this Mediated
expressly cxelrced lercin, renail p011C1i1 and
Settl.enit;m Agreement. G
S, '1111s MGCltrtlCCl Settle;rh1L11.t Agreement is stib,lect t0 City Co111111issi011 "PRI.Oval,
which will. be reGoninaended by the City's attorneys and City Manager.
6, Mtrtua.l releases to he executed by the-parties.
7. All other cla1111s brOLIght by the City aga111st the Defendants in th.is action., except
For those pertaining to th.i.s Mediated Settlement Agreement Linder the terms set, [orth herein, are
preserved and remain pending w less expressly resolved and rc;lmed by the parties herein.
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Mered;yth S. Cooper,Esq. P1-1 V . 3N: 71343
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LYDECKER 1DIAZ,1.,L C; GUNN & D 1AL, LLC
1221 Brickell Ave1111.C, 1911i Floor 260.1 South Bayshore Drive, Suite 1500-
:Miami,Florida 33131 Miami, 1'I., 33133
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