Settlement Agreement and Mutual Release with Trans Florida Development Corp. 2°I —29117
SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN
TRANS FLORIDA DEVELOPMENT CORP. AND THE CITY OF MIAMI BEACH,
FLORIDA
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
this 11-1. day of 3%s-we. , 2016, by and between TRANS FLORIDA DEVELOPMENT
CORP., a Florida corporation, (hereinafter "TFD") and the CITY OF MIAMI BEACH,
FLORIDA, a political sub-division of the State of Florida (hereinafter, the "CITY"). TFD and
the CITY may also be referred to individually as a"Party," and collectively as the "Parties."
RECITALS
WHEREAS, pursuant to 1TB No. 17-09/10, awarded on July 14, 2010, TFD and the
CITY are parties to a construction contract (the "Contract") for the Right-of-Way Infrastructure
Improvement Program, Neighborhood No. 12/D/E/F, South Pointe Phases III/IVN, located in
Miami Beach, Florida (hereinafter, the "Project");
WHEREAS, TFD asserted claims for additional compensation and time against the
CITY pertaining to the Project (the "TFD Claim");
WHEREAS, following good faith negotiations regarding the amount sought in the TFD
Claim, the Parties desire to settle all claims, disputes, past, present, or future regarding the
Project, regardless of responsibility; and
WHEREAS, the Parties believe it would be in their best interests and the best interests of
the citizens of the CITY to enter into this Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Recitals: The above Recitals are true and correct and are incorporated herein.
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 to, 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 as follows:
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(a) The CITY agrees to pay TFD the sum of Four Hundred Eighty-Two
Thousand Seven Hundred Forty-Eight Dollars and 00/100 ($482,748.00) (the
"Final Payment").
(b) Subject to the CITY Commission's approval of this Agreement, TFD's
execution of the Agreement and TFD's execution of a deductive Change Order in
the amount of One Million Twenty-Eight Thousand Six Hundred Ten Dollars and
Sixty-Seven Cents ($1,028,610.67), all of which are material conditions precedent
to the execution and enforceability of any provision of this Agreement, following
CITY Commission approval, the CITY shall execute the associated Resolution,
execute the Agreement and make the Final Payment to TFD within sixty (60)
days unless force majeure or other like good cause is shown.
4. 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 "TFD Releasors" as the case may be), hereby
execute, subject to the conditions and exclusions set forth in this Agreement, the following
Releases:
(a) TFD Releasors' Release of CITY Releasors:
Upon payment of the Final Payment by the CITY, the TFD Releasors hereby remise,
release, acquit, satisfy and forever discharge the CITY Releasors, which throughout this
Agreement includes, but is not limited to, its affiliates, Commissioners, 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, 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 TFD Releasors have held or now hold, ever had, now have, or which
the TFD 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.
(b) CITY Releasors' Release of TFD Releasors:
Except as provided and expressly subject to the limitations set forth in Paragraph 5
herein, which the Parties agree and acknowledge limits the scope of the CITY Releasors' release
of the TFD Releasors, the CITY Releasors hereby remise, release, acquit, satisfy and forever
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discharge the TFD Releasors, which throughout this 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 TFD
Releasors, for any and all Claims, whether known or unknown, arising from, pertaining to and/or
in any way relating to the Project.
5. Latent Defects and Warranties:
(a) The Parties agree that, specifically excluded from any release or waiver by the
Parties under this Agreement, are any demands, claims and causes of action arising from,: (i)
latent defects; (ii) warranty claims; or (iii) any third party actions for property damage, bodily
injury, personal injury or death pertaining to the Project. The CITY shall not be precluded from
bringing any action at law or equity arising from or relating to such matters. Neither Party shall
be precluded from asserting defenses thereto.
(b) TFD agrees that it shall honor and be responsible to the CITY for all warranties
and guarantees as specified in the Contract and/or as otherwise provided by law or in equity.
TFD further acknowledges and agrees that nothing contained in this Agreement shall constitute a
waiver of any right by the CITY to seek enforcement of those warranties and guarantees against
TFD, its sureties, insurers, subcontractors and suppliers, and nothing in this Agreement shall
constitute a waiver of any defenses thereto by TFD.
6. No Admission of Liability: It is understood and agreed that the claims which are
the subject of this Agreement are disputed claims and that the execution of this Agreement by the
Parties, and the exclusions set forth in this Agreement, 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 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 CITY Releasors or the TFD Releasors in any attempt to prove any future
liability claims.
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7. Binding Effect: Subject to CITY Commission approval, execution of the
associated Resolution and execution of the Agreement by both Parties, this Agreement shall be
binding upon the Parties and their respective successors and assigns. However, execution and
notarization by all Parties shall be a strict and material condition precedent to the effectiveness of
this Agreement as binding against any Party. If the CITY Commission does not issue the
approval, the Agreement shall be null and void and of no force and effect.
8. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the
CITY Releasors or the TFD Releasors to resolve a dispute regarding enforcement of the terms of
this Agreement, then the prevailing party as between the CITY Releasors and the TFD 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 negotiation and execution of this Agreement 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; (iii) each Party has carefully reviewed this
Agreement and is entering into same freely; and (iv) this Agreement is entered
into in good faith and was not obtained by fraud, misrepresentation, or deceit.
Accordingly, this Agreement shall not be more strictly construed against any
Party.
(b) 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, the associated Resolution has
been executed and the Agreement is fully executed by the Parties to the
Agreement. CITY Commission approval is a strict and 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.
(c) 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.
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(d) This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. 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. The Parties expressly agree to waive trial by jury in any
action to enforce this Agreement.
(e) 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.
(f) Any exhibits attached to this Agreement are incorporated in, and made a
part of, this Agreement.
(g) Time is of the essence in the performance of this Agreement.
10. Entire Agreement: This Agreement, together with any documents referenced
herein, 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. This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the terms of this Agreement. 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.
This Agreement shall be binding on, and shall inure to the benefit of, the respective successors
and assigns, if any, of each Party.
11. Modification; No 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 or TFD excuses or condones any
breach or default by the other Party 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 one or more counterparts,
each of which shall be deemed an original, but all of which together represent one instrument
binding on the Parties, notwithstanding that all of the Parties are not signatories to the same
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counterpart. The Parties further agree that this Agreement may be signed and submitted via
facsimile or electronic mail.
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.
15. Third Parties: 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 TFD, any
rights or remedies under, or by reason of, this Agreement.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
[Remainder of page intentionally left blank.]
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TRANS FLORIDA DEVELOPMENT CORP.
•Attest: , . _ /�
AQU1''0 M 0, President
Secretary
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
72?The foregoing instrument was acknowledged before me this t' day of .-‘‘-1"- ",
2016, by AQUILINO MELO as President of TRANS FLORIDA DEVELOPMENT CORP., who
is personally known to me or who has produced - _ (type of
identification).
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Name: iilliVA11141 •i.f
'rime)
/, ,•7 A9Y COMMISSION TOTO 81
Notary Public—State of Florid. __�a-`' E;ePiR�t•Februery2a,2o2o
My Commission Expires: 96. { Bond adrhr:Nc' P1blicUndmr�tn
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THE CITY OF MIAMI BEACH, FLORIDA,
a Municipal Corporation of t I.1; ..V. Florida
By
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Print Name: / /•
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Title:
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RA AEL GNADO, CITY CL RK ?_••••*�`\\ B��,#
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* t INCORP ORATED.
SEAL �� .
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APPROVED AS TO FORM AND
CORRECTNESS:
ap,Q___0,:\--
RAUL J. AGULA, CITY ATTORNEY
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