Stipulation of Settlement Agreement with Harbour Construction �1o/3-- (2 S1 yq
STIPULATION OF SETTLEMENT AGREEMENT
THIS STIPULATION OF SETTLEMENT AND AGREEMENT by and between
Harbour Construction, Inc., located at 6300 N.E. 4th Court, Miami, Florida 33138, on
behalf of its Corporate Officers and in their Corporate capacities ("Harbour
Construction"), and on behalf of its attorney John C. Lukacs, Esquire, of Hinshaw &
Culbertson, LLP, hereinafter may be referred to as the "Parties and/or Harbour
Construction," for themselves and all persons or entities claiming by or through them,
and their directors, officers, principles, agents, successors in interest, and the City of
Miami Beach, hereinafter referred to as the "City," located at 1700 Convention Center
Drive, Fourth Floor, Miami Beach, Florida 33139 assigns (collectively "Miami Beach"),
hereby enter into this Stipulation of Settlement and Agreement (the "Settlement
Agreement"), dated I'} r , 201S, the City and Harbour Construction
have agreed and consented to a settlement as follows:
RECITALS
WHEREAS, the City Attorney's Office, in collaboration with the Public Works
Department, had requested the debarment of Harbour Construction, Inc: pursuant to
Sections 2-397 through 2-406 of the Code of the City of Miami Beach; and
WHEREAS, on February 6, 2013, the City Commission transmitted this request
to Aleksandr Boksner, Senior Assistant City Attorney, and was charged with the duty of
investigating and preparing all necessary written reports concerning the debarment of
Harbour Construction, Inc., pursuant to Chapter 2, Article VI, Division 5; and
WHEREAS, now First Assistant City Attorney, Aleksandr Boksner, is the
prosecuting authority for this matter, and has all authority necessary to investigative and
prosecute Harbour Construction, Inc.
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and representations contained in this Settlement Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
the Parties, Harbour Construction and Miami Beach, by and through Aleksandr Boksner,
First Assistant City Attorney, agree as follows:
A. The foregoing recitals are true, accurate and correct and are incorporated
herein by this reference.
B. General Settlement Conditions.
1. Upon the full execution of this Settlement Agreement, Harbour
Construction shall be prohibited from serving as the City's contractor or vendor for a
period of three (3) years, and such prohibition will apply to all officers, directors,
shareholders owning or controlling 25 percent or more of the stock, partners, divisions,
affiliates, or other organizational elements of Harbour Construction. Harbour
Construction will pay a monetary penalty in the amount of Seven Thousand Five
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Settlement Agreement
Harbour Construction, Inc. and City of Miami Beach
Hundred and 00/100 Dollars ($7,500.00 U.S. Currency) to the City of Miami Beach. The
three (3) year period will be deemed to have commenced from the date the Mayor and
City Commission passed and adopted Resolution No. 2013-28144, and shall conclude
on February 6, 2016.
2. Harbour Construction is excluded from receiving any City contracts, and
the City departments will not solicit offers from, award contracts to, or consent to
subcontracts with Harbour Construction, and Harbour Construction is excluded from
conducting business with the City as agents, representatives, subcontractors affiliates or
partners, of other contractors.
3. The City will not renew or otherwise extend the duration, if any, of current
contracts, or consent to subcontracts with Harbour Construction. Harbour Construction
acknowledges that no further work will be awarded to Harbour Construction in
connection with a continuing contract, if any, and the refusal or denial of further work will
not result in a breach of any of these contract(s).
4. The Parties will execute this Settlement Agreement regarding all claims or
causes that are based on the allegations surrounding the debarment, and all facts that
were or could have been brought in the debarment proceeding by the City, and Harbour
Construction and Miami Beach shall consider this to be a release as to all claims that
were or could have been brought on behalf of Harbour Construction against Miami
Beach or any of their officers, directors, principals or agents, or in their individual
capacities relative to the debarment proceedings as set forth in the Recitals. Harbour
Construction hereby acknowledges and affirms that it has received the appropriate
consideration for this release and waiver against the City.
5. The Parties shall bear their own attorney's fees and costs surrounding the
debarment, and shall not be entitled to any attorney's fees surrounding the Settlement
Agreement, or the enforcement of the Settlement Agreement.
6. This Settlement Agreement shall be construed, enforced and interpreted
in accordance with the laws of the State of Florida. In the event that an ambiguity or
question of intent or interpretation arises, this Settlement Agreement shall be construed
as if crafted jointly by each of the Parties hereto and no presumptions or burdens of
proof shall arise favoring any party by virtue of the authorship of any of the provisions of
the Settlement Agreement. The Parties jointly conclude that should this Settlement
Agreement be challenged by any of the Parties, that venue for bringing such challenges
shall take place in the County of Miami-Dade, Florida.
7. Actions taken by any of the Parties hereto pursuant to or in furtherance of
the provisions hereof shall not be admissible in any legal proceeding in the event the
transactions contemplated hereunder are not performed or consummated, except as
necessary to enforce the terms of this Settlement Agreement.
8. The Parties agree they will take any and all actions consistent with the
intent and purpose of this Settlement Agreement and requirements of applicable law,
and execute, acknowledge, subscribe and deliver any and all further documents and
instruments as may be reasonably necessary to effectuate the purposes of this
Settlement Agreement.
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Settlement Agreement
Harbour Construction, Inc. and City of Miami Beach
9. The Parties understand and agree that no party admits liability of any sort
by reason of the above incidents, acts, casualties, events, representations, omissions,
conduct, or interpretation. The Parties also understand and agree that this Settlement
Agreement constitutes the good faith compromise of the debarment proceedings and is
made in good faith to terminate any further controversy respecting this debarments
proceeding and all potential claims for damages, causes of action, or potential liability
which could have been ascertained by reasonable diligence which either Party to this
Settlement Agreement may have asserted now, or may assert in the future because of
any damages, incidents, acts, casualties, or events, described or alluded to in this
Settlement Agreement.
10. The Parties acknowledge that this Settlement Agreement constitutes the
entire agreement. They further acknowledge that they have read it and understand it;
that the terms and conditions of this Settlement Agreement were arrived at in arm's-
length negotiations between the Parties with all Parties provided the opportunity to seek
the advice of legal counsel; that each Party's legal counsel did or could have reviewed
this Settlement Agreement; and that each Party has given due and full consideration to
the legal position of the other in regard to the provisions contained herein.
11. This Settlement Agreement shall be deemed drafted by all Parties and
there shall be no presumption against any party relating to the drafting of the Settlement
Agreement and the language used herein.
12. Any notices required or permitted to be given under this Settlement
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to the City at: City of Miami Beach
1700 Convention Center Drive
Fourth Floor
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach
1700 Convention Center Drive
Fourth Floor
Miami Beach, Florida 33139
Attn: City Attorney
If to John C. Lukacs, Esquire
Harbour Construction: Hinshaw& Culbertson, LLP
2525 Ponce De Leon Boulevard
Fourth Floor
Coral Gables, Florida 33134-6037
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Settlement Agreement
Harbour Construction, Inc. and City of Miami Beach
Notices personally delivered or sent by overnight courier shall be deemed given on the
date of delivery, and notices mailed in accordance with the foregoing shall be deemed
given upon receipt by the Parties.
13. The Parties signing this Settlement Agreement represent and warrant that
they have full and complete legal and binding authority to enter into this Settlement
Agreement. The Parties warrant and represent that they have not sold, assigned,
transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations,
or causes of action referred to in this Settlement Agreement.
14. This Settlement Agreement is binding on the Parties hereto and the
Parties agree to execute any and all documents necessary and consistent with
applicable law, to ratify, confirm, and perform the terms and provisions of this Settlement
Agreement. The terms of this Settlement Agreement shall be binding on and inure to the
benefit of the Parties, their legal representatives, members, constituents, successors,
assigns, subsidiaries and affiliates, and shall supersede all prior discussions,
negotiations and agreements among the Parties, concerning settlement. No
modification, waiver, amendment, discharge, or change of this Settlement Agreement
shall be valid unless the same is in writing and signed by the Party against which the
enforcement of such modification, waiver, amendment, discharge, or change is sought.
15. This Settlement Agreement may be signed in counterparts, and the
signature counterparts of the Parties or their authorized representative shall be treated
the same as if this Settlement Agreement had been signed by all Parties or their
authorized representatives. A facsimile signature shall be deemed the equivalent of an
original signature of a Party or its authorized representative.
16. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor or materials or reasonable substitutes therefore, riot,
civil commotion, fire or other casualty, and other causes beyond the reasonable control
of the Party obligated to perform, excluding the financial inability of such Party to
perform, shall excuse the performance by such Party for a period of time equal to any
such period of prevention, delay or stoppage. Any Party seeking to invoke this
paragraph shall provide written notice to the other Party as soon as reasonably
practicable under the circumstances.
17. In the event any provision, term or condition of this Settlement
Agreement, on behalf of either Party, thereto shall be inapplicable, invalid, illegal or
unenforceable in any respect, the remainder of this Settlement Agreement and
application of such provisions, terms or conditions shall not be affected thereby, and
shall be enforced to the fullest extent permitted by law.
18. It is hereby acknowledged by the Parties that nothing contained in this
Settlement Agreement was intended to serve as a waiver of sovereign immunity, as set
forth and codified in Section 768.28 of the Florida Statutes, by the City of Miami Beach
to which sovereign immunity is applicable in the recovery of damages in tort for money
damages against the state or its agencies or subdivision or injury or loss of property,
personal injury, or death caused by the negligent or wrongful act or omission of any
employee of the agency or subdivision while acting within the scope of the employee's
office or employment.
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Settlement Agreement
Harbour Construction, Inc. and City of Miami Beach
19. The Parties expressly acknowledge that it is not their intent to create or
confer any rights or obligations in or upon any third person or entity under this
Settlement Agreement. None of the Parties intend to directly or substantially benefit a
third party by this Settlement Agreement. The Parties agree that there are no third party
beneficiaries to this Settlement Agreement and that no third party shall be entitled to
assert a claim against any of the Parties based upon this Settlement Agreement.
Nothing herein shall be construed as consent by an agency or political subdivision of the
State of Florida to be sued by third Parties in any manner arising out of this Settlement
Agreement, or other obligations, whether known or unknown to the Parties.
WHEREFORE, the Parties approve the above terms and enter into this
settlement of this Dispute between them as provided above as of the date first entered
above.
WITNESSES: HARBOUR CONSTRUCTION, INC.
Authorized Signature for
Harbour Construction, Inc.
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this date, before me, an officer duly authorized in
tictis State nd County to take acknowledgments, personally appeared
' 1 IJbin , authorized Person for Harbour Construction, Inc.,
personally known to me or have produced identification, named in the foregoing
Settlement Agreement, and that he acknowledges executing the same freely and
voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned
"Tt'1
this 1 day of t , 2015
My Commission Expires: o1ral 1 • . ce"
Nota blic, State of Florida
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Settlement Agreement
Harbour Construction, Inc. and City of Miami Beach
HF CITY OF MIAMI B-ACH
n 1 T:1 + mik•
\ 1 'Gny L. Morales
ATTEST: ;j%� ':. �a.ity Manager
Wes_
By:
R. ael Granado, City Clerk
Date: 1 / It //i
o
HINSHAW& CULBERTSON, LLP THE CITY OF MIAMI - -
2525 Ponce De Leon Boulevard Office of th- Attorney
Fourth FI k,•r 1700 -• ve r -=nter Driv- 4th Floor
Coral G.bles, F:srida 3-134-.037 •=mi = -ach, Flor'•a 331 -
{
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By: i • j' :
John C. Lukacs, E GI ire Aleksandr Boksner, First Asst. City Attorney
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