Settlement Agreement & Release CMB, Hargreaves Associates, Inc., and Dan Euser Waterarchitecture, Inc. i
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SETTLEMENT AGREEMENT AND RELEASE BY AND AMONG THE
CITY OF MIAMI BEACH,FLORIDA,HARGREAVES ASSOCIATES,INC.
AND DAN EUSER WA.TERARCHITECTURE,INC.
This SETTLEMENT GREEMENT and RELEASE ("Agreement"), is made and entered
into this day of DC Q1� , 2014 (Execution Date),by and among: 1)THE CITY
OF MIAMI BEACH, FLORIDA, a political subdivision of the State of Florida (the "City"); 2)
HARGREAVES ASSOCIATES, INC. ("Hargreaves"); and 3) DAN EUSER
WATERARCHITECTURE, INC. ("DEW"). The City, Hargreaves and DEW are hereinafter
collectively referred as the"Parties" and individually as"Party."
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 to be the Architect/Engineer of Record for the
expansion and improvements to the City's South Pointe Park, located in Miami Beach, Florida
(the"South Pointe Park Improvement Project"or"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 subconsultants, including DEW, to prepare certain
design, construction, permit and/or bid documents and to provide certain construction
administration services for the Project's Washington Avenue Water Feature ("Water
Feature"),for the South Pointe Park Improvement Project.
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, Inc., 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 DEW, seeking damages for the alleged design
and construction defects identified at the South Pointe Park Improvement Project.
G. Hargreaves, in turn, filed cross-claims against DEW and other Defendants in the
Action (the"Cross-Claim").
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I
H. The City, Hargreaves and DEW 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, Hargreaves and DEW for the claims made by the City
against Hargreaves and DEW for issues arising solely from the work as set forth in Paragraph D
above performed by Hargreaves and its design subconsultants, including DEW, at the South
Pointe Park Improvement Project (all collectively referred to as the "Water Feature Work"), and
for any claims which were or could have been asserted against the City by Hargreaves and/or
DEW, in connection with the Water Feature 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 promises, agreements, undertakings,
representations, releases and covenants contained herein, and for other good and valuable
consideration, the sufficiency of which are hereby acknowledged by the Parties, and with the
intent to be legally bound, the City, Hargreaves and DEW 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 Hargreaves and DEW for issues relating to or arising out of the Water Feature Work that
the City has attributed to Hargreaves and DEW. The Parties acknowledge that this Settlement is
a compromise of the damages the City is seeking as to certain components of the Water Feature
and other defects at the South Pointe Park Improvement Project, but constitutes those damages
attributable to Hargreaves and DEW. The City believes it has not been made whole and
therefore, 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 the remaining portions of its alleged damages
pertaining to the Water Feature Work, as against other Defendants in the subject Action,
including MCM and Travelers Casualty and Surety Company of America.
2. Settlement Terms. In consideration for the releases executed herein, Hargreaves
and DEW agree to pay the City a total of Seven Hundred Twenty-Five Thousand Dollars and No
Cents ($725,000.00), as follows:
a. Within twenty (20) days of the Execution Date of this Agreement,
Hargreaves shall pay the City Three Hundred Sixty-Two Thousand Five Hundred Dollars
and No Cents ($362,500.00); and
b. Within twenty (20) days of the Execution Date of this Agreement, DEW
shall pay the City Three Hundred Sixty-Two Thousand Five Hundred Dollars and No
Cents ($362,500.00).
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," the "Hargreaves Releasors" or the "DEW
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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 the DEW Releasors:
The City Releasors do hereby remise, release, acquit, satisfy, and forever discharge the
DEW 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 pertaining
to the Project (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 DEW 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 pertaining to the Project
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 DEW
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
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 Water Feature Work.
All such Claims are specifically preserved and not affected by this
Release. Further, the definition of City Releasors, Hargreaves Releasors
and DEW 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, except as otherwise specified herein.
b. The DEW Releasors' Release of the City Releasors:
The DEW 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 pertaining
to the Project (collectively referred to in this Paragraph as "Claims"), which the DEW Releasors
have held or now hold, ever had, now have, or which the DEW 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 DEW
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Releasors understand and expressly agree that this Agreement extends to all claims pertaining to
the Project 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 City 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 DEW Releasors under any state law or federal law or regulation limiting the
general nature of this Release are hereby expressly waived.
C. The City Releasors' Release of the Hargreaves Releasors:
The City Releasors do hereby remise, release, acquit, satisfy, and forever discharge the
Hargreaves 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
pertaining to the Water Feature Work (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 Hargreaves 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 pertaining to the Water Feature Work only. The City Releasors understand and
expressly agree that this Agreement extends to all claims pertaining to the Water Feature Work
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 Hargreaves
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 for only the Water Feature Work.
i. Notwithstanding any other provision in this Agreement to the contrary, the
terms and conditions of this Agreement are not intended to, nor should
they be interpreted, construed or otherwise defined to include a release for
Hargreaves for any other work it performed on the Project, except for the
Water Feature Work, as defined in Paragraph H of the Recitals. This
Release is explicitly limited to only the Water Feature Work. To the
extent there is any conflict between this Paragraph 3.c.i. and any other
provisions of this Agreement, this Paragraph 3.c.i. shall govern.
d. The Hargreaves' Releasors' Release of the City Releasors:
The Hargreaves 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
pertaining to the Water Feature Work (collectively referred to in this Paragraph as "Claims"),
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which the Hargreaves Releasors have held or now hold, ever had, now have, or which the
Hargreaves 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 pertaining to the Water Feature Work only. The Hargreaves
Releasors understand and expressly agree that this Agreement extends to all claims pertaining to
the Water Feature Work 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 City 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 Hargreaves Releasors under any state law or federal law or regulation
limiting the general nature of this Release are hereby expressly waived for only the Water
Feature Work.
e. The Hargreaves' Releasors' Release of the DEW Releasors:
The Hargreaves Releasors do hereby remise, release, acquit, satisfy, and forever
discharge the DEW 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
pertaining to the Project (collectively referred to in this Paragraph as "Claims"), which the
Hargreaves Releasors have held or now hold, ever had, now have, or which the Hargreaves
Releasors, hereinafter can, shall or may have, against the DEW 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 Hargreaves Releasors understand and expressly agree that this
Agreement extends to all claims pertaining to the Project 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 DEW 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 Hargreaves 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 Water Feature Work only, and constitutes a full and complete accord and satisfaction
between and among the City Releasors, the Hargreaves Releasors and the DEW Releasors only
with respect to the Water Feature Work, including the City's right to make any claims and/or
bring causes of action against only the Parties released herein for any patent or latent defects
arising from, relating to and in connection with the Water Feature Work, and which are not now
known and not previously discoverable with the exercise of due diligence.
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5. Dismissal.
a. The City will dismiss, with prejudice, the claims against DEW 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.b. above.
b. Hargreaves will dismiss, with prejudice, the cross-claims against DEW
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.a. above.
C. Although the City is not dismissing Hargreaves as a Defendant in the
Action, in accordance with the terms of this Agreement,pending receipt of
the fully executed Agreement and the tender and clearance of the
settlement funds from Hargreaves set forth in Paragraph 2.a. herein, the
City shall not pursue its claims for damages pertaining to the Water
Feature Work against Hargreaves, which Water Feature Work claims
against Hargreaves shall be treated as if they were dismissed with
prejudice. All other City claims pending against Hargreaves which are
unrelated to the Water Feature Work shall not be affected by the terms of
this Agreement and remain pending.
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
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, Hargreaves Releasors or the DEW
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. Settlement Funds Paid on a Several but not Joint Basis. In the event of any non-
payment in the time frame agreed upon by the Parties in Paragraph 2, the City will have recourse
solely against the non-paying Party.
9. Attorney's Fees. If any legal action, proceeding, or hearing is brought by the City
Releasors, Hargreaves Releasors or the DEW Releasors 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. The Parties shall bear their own attorney's fees and
costs relating to the Action to date.
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10. 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.
11. Entire Agreement. This Agreement, together with any documents referenced
herein, 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. 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.
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12. Modification; Waiver: This Agreement may only be modified in writing signed
by all of the 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
Hargreaves and/or DEW 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.
13. 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.
14. 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.
15. 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.
16. Third Parties. Nothing expressed or implied in this Agreement is intended or
should be construed to confer upon or give any person or entity, other than the City, Hargreaves
and DEW, 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.
EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. Signed,
sealed and acknowledged the presence of:
[Remainder of page intentionally left blank.]
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TILE CITY OF MIAMI BEACH,FLORIDA,
a Municipal Corporatio, o State of Florida
By: f ;%
Print Name: l� Levi-4
Title: % \4 4 wo`e
ATTEST: `
aa
G12, INCORP ORATED
City Clerk
SEAL
APPROVED AS TO FORM AND
CORRECTNESS:
�V
City Attorney
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r
HARGREAVES ASSOCIATES,INC.
By:
Print Name:
Title:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF M,"dd/e-Se-X
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
El ay i n /l c [ m , to me known to be the person described in, or has
produced identification and who executed the foregoing instrument and who acknowledged
before me that &/she executed the same, and that &/she was duly authorized by
HARGREAVES ASSOCIATES,INC.,to execute this document on its behalf
WITNESS my hand and seal in the County and State last aforesaid this day of
2014.
ERIC DUNBRACK bli
Notary Public,Commonwealth Of MalWdUlltt/ My Commission Expires: J�nt'
My commission Exores June 1,2010
(Print, Type or Stamp Commissioned
Name of Notary Public)
Personally Known ❑ OR Produced Identification%
Type of Identification Produced:Mfi °�-
Page 10 of 11
i
DAN EUSER WATERARCHITECTURE9 INC.
By:
Print Name: Daniel Clement Euser
Title: President
RICHMOND HILL, ONTARIO, CANADA
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
Country aforesaid and in the County aforesaid to take acknowledgments, personall a eared
Du rnn
Daniel Clgt Euser Y pp
to me known to be the person described in, or has
produced identification and who executed the foregoing instrument and who acknowledged
before me that he/she executed the same, and that he/she was duly authorized b DAN EJSE
WATEItARCMTECTURE, INC., to execute this document on its behalf. Y
WIT'NES'S'my hand and seal in the County and Country last aforesaid this 14 th da of
October , 2014. Y
Notary Public Donald. Cordon Wilson plaxton
My Commission Expires: Lifetim
(Print, Type or Stamp Commissioned
Name of�a DCo =ublic)xt on
Barrister, Solicitor, Notary
100-10350 Yorgq ty RidTmnd Hii1, Ontarioy
Personally Known ❑ OR Produced Identification V1 CANADA
Type of Identification Produced: p
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