Settlement Agreement and Release with Bermello Ajamil & Partners, Inc. c2oisLe? 9/3--
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Settlement Agreement") is made and entered
into this S day of �-r`�r'-,2015,by and between BERMELLO AJAMIL&PARTNERS,
INC.,a Florida corporation,(hereinafter`BAP") and the CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation (hereinafter, the "CITY"). BAP and the CITY may also be referred to
individually as a"Party,"and collectively as the"Parties."'
RECITALS
WHEREAS, the CITY retained BAP to perform professional certified engineer
inspection (CEI) services, in connection with the Florida Department of Transportation (FDOT)
work included in the water mains and sanitary sewer mains, and milling and resurfacing
improvements along Indian Creek Drive, between 26th and 41St Streets, in Miami Beach, Florida
(hereinafter the"Project");
WHEREAS, pursuant to Resolution No. 2009-27169, on September 9, 2009, the CITY
entered into an agreement with BAP for said CEI services for the Project(the"Contract");
WHEREAS, during the course of the Project, numerous construction issues arose with
respect to water main installation and other additional work,which extended the completion time
of the Project. As a result, BAP was required to perform extended CEI services above and
beyond the services contemplated under the Contract;
WHEREAS, BAP asserted claims for additional compensation pertaining to the Project,
of which the CITY disputed the value of such additional services;
WHEREAS, on or about April 10, 2015, BAP filed that certain action styled as,
Bermello Ajamil and Partners, Inc. v. The City of Miami Beach, Florida,Case No. 2015-006980-
CA-01, in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the "Action"),
against the CITY, seeking damages pertaining to the Project;
WHEREAS, the Parties desire to resolve, compromise and settle any and all claims and
disputes, past, present or future, regarding the Project, regardless of responsibility, which were,
or could have been, asserted in the Action based upon the terms set forth in this Settlement
Agreement;
WHEREAS, the Parties believe it would be in their best interests and the interests of
their respective citizens to agree to the provisions of this Settlement Agreement.
'Wherever used herein, the term"Party"or"Parties"shall include singular and plural, officers, directors, officers,
heirs,legal representatives,assigns of individuals,and the successors and assigns of corporations,and the use of any
gender shall be held to include every other and all genders,wherever the context so admits or requires.
1.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
undertakings and representations contained herein and other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged by the Parties, the CITY and BAP
agree as follows:
1. Recitals: The above Recitals are true and correct and are hereby made a material part
of this Settlement Agreement and are binding upon the Parties.
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, arising out of and/or in
connection with the Project,except as set forth herein.
3. Settlement Terms: In consideration for the releases executed herein, the Parties
agree:
(a) The CITY agrees to pay BAP the sum of Eighty Thousand Dollars and No
Cents ($80,000.00) (the"Settlement Payment").
(b) The CITY will seek to place this item on the Agenda for the CITY
Commission Meeting following the approval of the Settlement Agreement in form and
correctness by the CITY Attorney and execution of the Settlement Agreement by BAP.
(c) Subject to the CITY Commission's approval of this Settlement
Agreement, the Settlement Payment shall be made to BAP within thirty (30) days
following CITY Commission approval of the Settlement Agreement, execution by the
CITY of the associated Resolution approving such settlement and execution of the
Settlement Agreement by the Parties.
(d) Within ten(10) days of the CITY's payment of the Settlement Payment to
BAP pursuant to the terms and conditions set forth herein, BAP shall file with the Court a
Notice of Dismissal with Prejudice of the Action, each party to bear its own attorney's
fees and costs.
4. Limited Releases: In further consideration of the execution of this Settlement
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 "BAP Releasors," as the case
may be), hereby execute, subject to the conditions and exclusions set forth in this Settlement
Agreement,the following Releases:
(a) The BAP Releasors' Release of the CITY Releasors: Upon payment of
the Settlement Payment by the CITY, the BAP Releasors hereby remise, release, acquit,
satisfy and forever discharge the CITY Releasors, which throughout this Settlement
Agreement includes,but is not limited to, its affiliates, Commissioners, insurers, sureties,
2
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, whether for compensatory, punitive, or other
damages (collectively referred to in this Paragraph as the "Claims"), which the BAP
Releasors have held or now hold, ever had, now have, or which the BAP 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 including, without limitation, Claims arising from or relating to demands for
additional compensation for additional services, which were made or could have been
made in the Action.
(b) ,The CITY Releasors' Release of the BAP Releasors: Upon dismissal of
the Action with prejudice by BAP, the CITY Releasors hereby remise, release, acquit,
satisfy and forever discharge the BAP Releasors, which throughout this Settlement
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 BAP Releasors, for any and all
Claims, whether known or unknown, arising from, pertaining to and/or in any way
relating to the Project including, without limitation, Claims arising from or relating to
demands or claims for additional compensation for additional services, which were made
or could have been made in the Action.
5. No Admission of Liability: It is understood and agreed that the claims in the Action,
which are the subject of this Settlement Agreement,are disputed claims and that the execution of
this Settlement Agreement by the Parties, and any exclusions set forth herein,are not intended to,
and shall not in any 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
3
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 Parties in any attempt to prove any future liability claims.
6. Binding Effect; CITY Commission Approval as Condition Precedent: Subject to
the following conditions set forth herein including, without limitation, CITY Commission
approval and execution and notarization by the Parties, this Settlement Agreement shall be
binding upon the Parties and their respective successors and assigns.
(a) The Parties hereto understand and agree that as a condition precedent to
the effectiveness of this Settlement Agreement, the Settlement Agreement shall not be
binding on the Parties and their respective successors and assigns until such time as the
CITY Commission has approved same, and the Settlement Agreement is fully executed
and notarized by the Parties to the Settlement Agreement.
(b) CITY Commission approval is a material condition precedent to the
execution and enforceability of this Settlement Agreement, without which the CITY does
not agree to, and is not subject to, the terms and conditions contained herein and the
Settlement Agreement shall be deemed null and void and of no force and effect.
7. Consideration; Legal Representation: The Parties acknowledge that this Settlement
Agreement is fully and adequately supported by sufficient and adequate 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
Settlement Agreement; (iii) each Party has carefully reviewed this Settlement Agreement and is
entering into same freely; and (iv) this Settlement Agreement is entered into in good faith and
was not obtained by fraud,misrepresentation, or deceit. Accordingly,this Settlement Agreement
shall not be more strictly construed against any Party.
8. Authority: Each Party represents and warrants to the other that the execution and
delivery of this Settlement Agreement has been duly approved by all requisite and corporate or
partnership action (as applicable) required to be taken by such Party and each of the signatories
hereto has the authority to execute this Settlement Agreement and to bind the Party on whose
behalf he or she has signed.
9. Severability: In the event any term or provision of this Settlement Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be considered separate and severable from this Settlement Agreement and the remaining
provisions of the Settlement 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 Settlement
Agreement.
4
10. Modification; Waiver: This Settlement Agreement may only be modified in writing
signed by both Parties. No waiver or modification of the Settlement Agreement or of any
covenant, condition or limitation contained herein, shall be valid unless in writing and signed by
all Parties to the Settlement Agreement,or their authorized counsel. If the CITY or BAP excuses
or condones any breach or default by the other Party of any obligation under this Settlement
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.
11. Choice of Law: This Settlement Agreement is being consummated in the State of
Florida, and the performance by the Parties hereto is in the State of Florida. This Settlement
Agreement shall be construed and governed in accordance with the laws of the State of Florida.
12. Venue: The sole and exclusive venue for any dispute or lawsuit arising out of, or in
connection with, this Settlement Agreement including, without limitation, its interpretation and
effect,and any action to enforce any provision contained herein, shall be in a court of competent
jurisdiction in and for Miami-Dade County, Florida. The Parties expressly agree to waive trial
by jury to enforce this Settlement Agreement.
13. Entire Agreement: This Settlement Agreement 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. The terms of
this Settlement Agreement are contractual and not a mere recital. This Settlement Agreement
replaces any prior or contemporaneous written or oral representation or understanding about the
terms of this Settlement Agreement. All prior agreements, discussions, negotiations, letters,
demands and writings of any kind are fully merged into this Settlement Agreement and are to be
construed to be of no further force or effect, it being the intention of the Parties that this
Settlement Agreement shall serve as the sole and entire expression of their agreement and
understanding. This Settlement Agreement shall be binding on,and shall insure to the benefit of,
the respective successors and assigns, if any, of each Party. However, CITY Commission
approval and execution and notarization by all Parties shall be a condition precedent to the
effectiveness of this Settlement Agreement as binding against any Party.
14. Cautions and Headings; References: The captions and headings of this Settlement
Agreement are for the purpose of convenience of reference only and in no way define, limit or
describe the scope or intent of the Settlement Agreement or in any way affect the terms and
conditions of this Settlement Agreement. All references in the Settlement Agreement to the
terms "herein," "hereunder," "hereof" and words of similar import shall refer to this Settlement
Agreement, as distinguished from the Paragraph, Section and/or Subsection within which such
term is located.
15. Counterparts: This Settlement Agreement may be executed in counterparts with the
same force and effect as if any signatures appeared on the same document. The Parties further
5
agree that facsimile, digitally transmitted and electronic copies of an original signature shall be
accepted as an authentic original signature.
16. Third Parties: Nothing express or implied in this Settlement Agreement is intended
or should be construed to confer upon or give any person or entity, other than the CITY and
BAP,any rights or remedies under,or by reason of,this Settlement Agreement.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
[Remainder of page left intentionally blank Signatures on the following pages.]
6
BERMELLO AJAMIL & PARTNERS,INC.
By: i 0
Attest:
Print Name: LJI4 tk% am%ii.
Tide: rPte 41 &VA
1.
t2/o1-1- /4- BA K.Ds
Secre
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 6,-?7'day of 46 G}6 1,
2015,by A/'i6rl1iL. as %, ,,5/:bG Al r of Bermello Ajamil&Partners, Inc.,who
is personally known to me or who has produced (type of
identification).
Name: .Z'L{.:4& Z
'nt Name)
#06
Notary Public—State of Florida °LOURDES E.THUROW
MY COMMISSION 0 FF037633
My Commission Expires: \wo ` EXPIRES:Amt1�2017
7
. ,
THE CITY OF MIAMI 'EACH,FLORIDA,
a Municipal Corporatio of the State of Florida
By:
‘ftl■
Print Nam-:
Title:
s .. fi3
ATTEST:
... .....
•
•
o :
A0 / 5 -..INCORPIORATED *;
411 /
C3/14:V.4""4.4.1■P:/-1...77.:2.?....\..V
CITY CLERK
SEAL:
APPROVED AS TO FORM AND
CORRECTNESS:
cL
CITY ATTORNEY
•
8