Settlemetn Agreement and Release with Ric-Man Construction Florida, Inc .JAr 25 -- 3 . . . -° 323 84
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JAN 2 5 2023
SETTLEMENT AGREEMENT AND RELEASE
DEC 0 9 2022
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into
as of the day of , 2022 by and between RIC-MAN
CONSTRUCTION FLORIDA, INC. (hereinafter referred to as "RMCF"), and the CITY OF
MIAMI BEACH, FLORIDA (hereinafter referred to as the "City"). The parties hereto (the
"Parties") agree as follows:
RECITALS
WHEREAS, the legal action captioned Ric-Man Construction Florida, Inc. v. City
of Miami Beach, Florida, Case Number: 2022-008522-CA-01, in the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the "Action") is pending
between the Parties arising out of two contracts known as the Design-Build Agreement
for Improvements of West Avenue North of 14th Street and the Design-Build Agreement
for Improvements of West Avenue South of 14th Street(the "DB Agreements"); and
WHEREAS, to avoid the costs and uncertainties of continued litigation, the Parties
are desirous of resolving all claims and disputes between themselves, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in exchange for the good and valuable consideration more
particularly set forth herein, but without admission of any liability, fault or wrongdoing, the
Parties agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated herein
by this reference. Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the DB Agreements.
2. Representation. This Agreement is entered into voluntarily by the Parties
who stipulate and agree that they are under no duress or undue influence. The Parties
represent that in the execution of this Agreement,they had the opportunity to consult legal
counsel of their own selection with respect to the execution this Agreement.
3. Terms. As full and final settlement of the above-styled action, the Parties
agree as follows:
a. Concurrently with the execution of this Agreement, the Parties will
execute that certain Amendment No. 1 to the Design/Build Agreement dated June 14,
2017, between the City and RMCF with regard to the West Avenue Improvements Phase
II Project South of 14th Street ("Amendment No. 1 to the South Agreement") and the
corresponding Change Order No. 7, attached thereto as. Exhibit "A" ("Change Order. No.
7 to the South Agreement");
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b. Concurrently with the execution of this Agreement, the Parties will
execute that certain Amendment No. 1 to the Design/Build Agreement dated June 14,
2017, between the City and RMCF with regard to the West Avenue Improvements Phase
II Project North of 14th Street ("Amendment No. 1 to the North Agreement") and the
corresponding Change Order No. 7, attached thereto as Exhibit "C" ("Change Order No.
7 to the North Agreement");
c. Within five (5) days of the execution by the Parties of Amendment
No. 1 to the South Agreement, Change Order No. 7 to the South Agreement, Amendment
No. 1 to the North Agreement and Change Order No. 7 to the North Agreement, RMCF
shall dismiss the Action with prejudice, by submitting the Joint Stipulation and Order of
Dismissal With Prejudice to the Circuit Court, in the same form as the document attached
hereto and incorporated by reference as Exhibit "1".
4. Mutual Release. The Parties, for themselves and on behalf of their
Consultants, all Subcontractors, all Design Subconsultants and all material suppliers at
every tier, hereby remise, release, acquit and forever discharge each other, their
attorneys, representatives, officers, employees and agents from any past, present and
future claims, actions, causes of action, demands, rights, damages, costs, losses,
expenses, compensations and obligations which exist or which may hereafter accrue,
whether known or unknown, whether foreseen or unforeseen, whether matured or not
mature, whether discovered or undiscovered, and the consequences thereof, having
resulted, resulting or to result from any or all of the following:
a. All matters or disputes which have been or could have been alleged in the
Action;
b. Any representations made by the City related to any and all matters or
disputes at issue in the Action; and.
c. Any and all claims for attorney's fees(including paralegal fees)and costs in
any way related to the Action.
Notwithstanding the above,the above stated release does not include,any patent or latent
defects related to RMCF's work on the Project.
5. Warranty of No Assignment; Satisfaction of Third-Party Interests.
RMCF represents, warrants, and certifies that it has not in any manner assigned,
pledged or otherwise voluntarily or involuntarily disposed of or transferred to any person
or entity any interest in any claim(s), actions, causes of action, suits, damages, losses,
judgments, executions, demands, liabilities, obligations, responsibilities, liens,
expenses, costs and attorney's fees raised in the Action and/or referenced in this
Agreement (collectively, "Claims"), and if any person or entity has any interest in any
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such Claim, RMCF will fully satisfy and discharge such person or entity's interests from
the consideration payable by the City pursuant to this Agreement and/or Change Order
No. 7 to the North Agreement. RMCF will hold harmless and indemnify the City from
and for any and all actions, causes of action, damages and costs, including reasonable
attorneys' fees, incurred in defense of or in settlement of all actions, causes of action,
suit or suits, or demands, by any third party whose interest in any Claim is not fully
satisfied and discharged by RMCF.
6. No Admission of Liability. RMCF acknowledges and agrees that any
payment by the City pursuant to this Agreement, Amendment No. 1 and/or Change
Order No. 7 to the North Agreement and/or any other act, representation, inaction or
silence by the City is not to be construed as an admission of liability but is made to
protect the interest of the City and to avoid further litigation and the expenses thereof.
7. Effective Date. The Effective Date of this Agreement shall be the date
upon which the second Party to sign has affixed the signature of its representative to the
Agreement and delivered an executed copy to the other Party.
8. Entire Agreement. This Agreement constitutes the sole and entire
agreement between the Parties and supersedes all prior and contemporaneous
statements, promises, understandings or agreements, whether written or oral.
9. Amendments. This Agreement may be amended, modified or altered at
any time upon the approval of the Parties; however, any such amendment must be in
writing and signed by all Parties in order for such amendment to be of any force and
effect.
10. Partial Invalidity. In the event that any provision of this Agreement is
declared by any court of competent jurisdiction or any administrative judge to be void or
otherwise invalid, all of the other terms, conditions and provisions of this Agreement shall
remain in full force and effect to the same extent as if that part declared void or invalid
had never been incorporated in the Agreement and in such form, the remainder of the
Agreement shall continue to be binding upon the Parties.
11. Applicable Law. This Agreement shall be subject to and governed by the
laws of the State of Florida, without regard:to conflict of law rules.
12. Counterparts. This Agreement may be signed and executed in one or
more counterparts, each of which shall be deemed an original and all of which together
shall constitute one Agreement. Delivery of an executed counterpart of a signature page
of this Agreement by facsimile or email shall be effective as delivery of an originally
executed counterpart of this.Agreement.
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13. No Adverse Construction. The Parties acknowledge that this Agreement
has been prepared by each of them. In the event any part of this Agreement is found to
be ambiguous, such ambiguity shall not be construed against either of the Parties.
14. Further Acts. In addition to the acts recited in this Agreement, the Parties
agree to perform, or cause to be performed on the date of this Agreement, or thereafter,
any and all such further acts as may be reasonably necessary to consummate the
transactions contemplated hereby. Each of the Parties agrees that it will execute and
deliver all such documents and instruments as may be necessary and appropriate to
effectuate the terms of this Agreement.
15. Authority. Each person(s) executing this Agreement as an agent or in a
representative capacity further warrants that he or she is duly authorized to do so.
The Parties have executed this Agreement as of the date set forth below.
IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement
to be executed in their names by their duly authorized officials as of the date first set forth above.
ATTEST: CITY OF MIAIIIII BEACH, FLORIDA
DEC 0 9 2022
Rafael7-249
Dan Gelber
Granado, City r Mayor
Clerk = h.rtt.:. y
ATTEST: '% •.. RIC-MAN CONSTRUCTION FLORIDA, INC.
? A,ar,/
Secretary President
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Print Name Print Name
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
r►Jwo12-022
roc " City Attorney Date
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EXHIBIT 1
Joint Stipulation and Order of Dismissal With Prejudice
IN THE CIRUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,FLORIDA
RIC-MAN CONSTRUCTION FLORIDA, Case No.: 2022-0085 CA 31
INC.,
Plaintiff,
v.
CITY OF MIAMI BEACH,,FLORIDA,
Defendant.
JOINT.STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE
Plaintiff,Ric-Man Construction Florida,Inc.,and Defendant,City of Miami Beach,Florida
by and through its undersigned attorneys, and pursuant to Fla. R. Civ. P. 1.420(a)(1)(B) hereby
submit their Joint Stipulation of Voluntary Dismissal with Prejudice and [Proposed] Order for the
same.
Dated: December 1, 2022. Respectfully submitted,
RAFAEL A. PAZ, CITY ATTORNEY
Frank J. Hild, Esq. CITY OF MIAMI BEACH
Florida Bar No.: 169810 1700 CONVENTION CENTER DRIVE
Joseph T. Zavoral 4th FLOOR-LEGAL DEPARTMENT
Florida Bar No.: 1024792 MIAMI BEACH,FLORIDA 33139
Martin I Hild,P.A. TEL: (305)673-7470
555 Winderley Place, Suite 415 FAX: (305) 673-7002
Maitland,FL 32751
Telephone: (407) 660-4488 By:
Facsimile: (407) 660-4540 HENRY J.HUNNEFELD
Email: fjh@martinhild:com First Assistant City Attorney
cjw@martinhild.com henryhunnefeld@miamibeachfl.gov
jtz@martinhild.com Florida Bar No. 343811
Attorneys for Plaintiff FREDDI MACK
Senior Assistant City Attorney
freddimack@miamibeachfl.gov
Florida Bar No. 111623
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on December 1, 2022, the foregoing was electronically filed
via the Florida e-Portal system and served on all registered parties.
Frank J. Hild, Esq.
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IN THE CIRUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,FLORIDA
RIC-MAN CONSTRUCTION FLORIDA, Case No.: 2022-0085 CA 31
INC.,
Plaintiff,
v.
CITY OF MIAMI BEACH,FLORIDA,
Defendant.
[PROPOSED] ORDER DISMISSING ACTION WITH PREJUDICE
THIS CAUSE, having come before the Court upon Plaintiff, Ric-Man Construction
Florida, Inc., and Defendant's, City of Miami Beach, Florida (collectively, the "Parties") Joint
Stipulation of Voluntary Dismissal with Prejudice,pursuant to Fla.R. Civ. P. 1.420(a)(1)(B), and
after due consideration, it is ORDERED and ADJUDGED as follows:
1. The Parties' Joint Stipulation of Voluntary Dismissal with Prejudice is hereby
GRANTED.
2. This Action shall be dismissed with prejudice.
3. Each party shall bear its own fees and costs.
DONE AND ORDERED in Chambers of Miami Dade County, Florida, on this day
of December, 2022.
Hon. Migna Sanchez-Llorens
CIRCUIT COURT JUDGE
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