Felix Equities Agmt & Release
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CITY OF MIAMI BEACH
CITY ATTORNEY'S OFFICE
TO: Jorge M. Gonzalez
City Manager
Tim Hemstreet
Director Capital Improvements
Robert Parcher /'
City Clerk (/
DATE:
Steven Siegfried, Esq.
Murray H. Dubbin ^ \ \ ,~ IA I~ II' , ./'
City Attorney I ~~~
December 20, 2004
FROM:
SUBJECT:
Felix Equities - Settlement Agreement and Release
For your information, please find a copy ofthe Release Agreement which finally resolves the above
litigation.
MHD:lm
Enc!.
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
THIS Settlement Agreement and Release ("Agreement") is made and entered into this
Il:j-l-h day of !V[l~-e.M.JJ.Q..IL- ,2004 by and between FELIX EQUITIES, INC., a Florida
corporation, including its parent corporations, subsidiaries and affiliates, including
LINC.NET, INC. (hereinafter "FELIX"); CITY OF MIAMI BEACH, a municipal corporation
(hereinafter "MIAMI BEACH"); and UNITED STATES FIDELITY & GUARANTY, a
foreign corporation, including its parent corporations, subsidiaries and affiliates (hereinafter
"USF&G"), (collectively referred to as "THE PARTIES").
RECIT ALS
A. The Parties desire to settle all claims or disputes arising out of that Contract for
performance of renovations and upgrades of 12 dry-spit wastewater pump stations and 4
water pump stations, construction of 6 new electrical/generator buildings and new
electricaVgenerator facility to be located within the convention center, replacement of pump
controls at 11 submersible wastewater pump stations, and a new system wide process
instrumentation and controls system, which project is commonly referred to as to as the "City
of Miami Beach - Water and Wastewater Pump Station Upgrades, Project No. 9381-002
(hereinafter the "Project").
B. FELIX initiated a lawsuit against MIAMI BEACH and USF&G styled: "Felix
Equities, Inc., vs. City of Miami Beach and United States Fidelity & Guaranty, Miami-Dade
County Circuit Court Case No. 03-016109 CA 22"(hereinafter referred to as the "Felix
Litiga tion ").
c. MIAMI BEACH initiated a lawsuit against USF&G styled: "City of Miami
Beach vs. United States Fidelity & Guaranty, Miami-Dade County Circuit Court Case No. 03-
19303 CA 22" (hereinafter referred to as the "Miami Beach Litigation").
D. MIAMI BEACH filed a proof of claim in the bankruptcy of FELIX, Case Nos.
02-16987-BKC-RAM through 02-17003-BKC-RAM, Jointly Administered under Case No. 02-
16987-BKC-RAM (the "Claim").
E. MIAMI BEACH and USF&G deny, and continue to deny any liability to FELIX
for any damages.
F. USF &G and FELIX deny, and continue to deny any liability to MIAMI BEACH
for any damages.
G. MIAMI BEACH, FELIX and USF &G desire at this time to amicably adjust and
forever settle FELIX' damages' claim against MIAMI BEACH, and MIAMI BEACH's claims
against FELIX and USF &G.
NOW, THEREFORE, in consideration ofthe promises set forth herein and other good
and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
I.
RECITALS
1.
reference.
The foregoing Recitals are true and correct and incorporated herein by
II.
PAYMENT
2. USF&G shall cause to be paid to MIAMI BEACH the sum of 4.9 MILLION
DOLLARS ($4,900,000.00) within fifteen (15) days ofthe execution ofthis Agreement, in full
and final settlement of all of MIAMI BEACH's claims for damages against FELIX and
USF&G. The releases and all other conditions of this Agreement are contingent upon the
payment of said amount. Payment shall be made by delivering to Steven M. Siegfried, Esq., a
cashier's check or USF&G company draft payable to CITY OF MIAMI BEACH. Upon
receipt of the settlement funds, FELIX shall file a dismissal with prejudice the above-
referenced Felix Litigation, and MIAMI BEACH shall file a dismissal with prejudice of the
Miami Beach litigation and notice of withdrawal of its claim, each party agreeing to bear its
own costs, expenses, expert and attorneys' fees.
III.
RELEASE
3.a. FELIX, including its parent corporations, subsidiaries and affiliates hereby
releases, acquits and forever discharges MIAMI BEACH and USF&G, including their parent
and subsidiary corporations, affiliates and insurers, and their shareholders, directors, officers,
employees, agents, and attorneys, together with any other person, partnership, firm or
corporation in privity therewith, charged or chargeable with responsibility or liability, their
heirs, executors, administrators, associates, representatives, successors, and assigns, from any
and all past, present, and future claims, demands, obligations, damages, costs, expenses,
actions and causes of actions, and whether for compensatory, punitive damages, or other
damages arising from or relating to damages for delays in connection the above referenced
Project.
3.b. MIAMI BEACH, a municipal corporation, hereby releases, acquits and forever
discharges FELIX and USF&G, including their parent and subsidiary corporations, affiliates
and insurers, and their shareholders, directors, officers, employees, agents, and attorneys,
together with any other person, partnership, firm or corporation in privity therewith, charged
or chargeable with responsibility or liability, their heirs, executors, administrators, associates,
representatives, successors, and assigns, from any and all past, present, and future claims,
demands, obligations, damages, costs, expenses, actions and causes of actions, and whether for
compensatory, punitive damages, or other damages arising from or relating to damages for
delays in connection the above referenced Project.
3.c. USF&G, including parent corporations, subsidiaries and affiliates hereby
releases, acquits and forever discharges MIAMI BEACH and FELIX, including their parent
and subsidiary corporations, affiliates and insurers, and their shareholders, directors, officers,
employees, agents, and attorneys, together with any other person, partnership, firm or
corporation in privity therewith, charged or chargeable with responsibility or liability, their
heirs, executors, administrators, associates, representatives, successors, and assigns, from any
and all past, present, and future claims, demands, obligations, damages, costs, expenses,
actions and causes of actions, and whether for compensatory, punitive damages, or other
damages arising from or relating to damages for delays in connection the above referenced
Project.
IV.
DENIAL OF LIABILITY
4. It is understood and agreed that payment ofthe consideration expressed above is
not an express or implied admission of negligence, misconduct, responsibility or liability on the
part of FELIX or USF &G or anyone else, and that FELIX and USF &G expressly and
specifically deny all such claims. Such consideration is being paid in order to compromise
disputed claims so that the parties may forever avoid the expense, uncertainties, and hazards
of litigation.
V.
ADDITIONAL DOCUMENTS
5. All parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be necessary or appropriate to give
full force and effect to the basis and intent ofthis Settlement Agreement and Limited Release.
VI.
ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST
6. This Settlement Agreement contains the entire agreement between the parties.
This Agreement replaces any prior or contemporaneous written or oral representation or
understanding about the settlement. This Agreement may not be changed except in writing
signed by the parties, or their respective attorneys. This Agreement shall be binding on and
shall inure to the benefit of the respective successors and assigns, if any, of each party.
3
VII.
GOVERNING LAW
7. 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 governed
by and construed in accordance with the laws ofthe State of Florida. The venue for any legal
proceeding of any nature brought by either party against the other to enforce any right or
obligation under this Agreement, or arising out of any matter pertaining to this Agreement,
shall be in Dade County, Florida.
8. The parties warrant to each other that they have read this Settlement Agreement
and that they understand that this Agreement is a full and final release of all claims of by and
between MIAMI BEACH, FELIX and USF &G, and that each has been represented by counsel
before signing this Settlement Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have set their hands and seals on the day and
date first written above.
FELIX EQUITIES, INC.
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CITY OF MIAMI BEACH
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UNITED STATES FIDELITY &
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NOTARY ACKNOWLEDGMENTS ON FOLLOWING PAGES
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STATE OF ~'I. ,,) eLl.
COUNTY OF t i, """ " Dj\d::.
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The _fOregoini in~tru~ent ~~s ackno":cl~dge~ befo~e me this r~j ~ay of . j?E:{.i,i'~+i I> {,f ,
2004by tn'.II;) /,1.(1'''''J_K') .)(. as _->l'(( (,vllj"~j o!FebxEqUltles,Inc.,wIt&-
.ispers98aUy kROWB t9 me-or who has produced FeL 'It;' / ^L~ i <; -),60 -(t:,l- iLG.'G (type
of identification).
(AFFIX NOTARY SEAL)
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Name: ,4..,.,1::1. L:,: I "2\_,-
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Notary Pub~ State of (/(>;;::-1;1-
My Commission Expires:
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STATE OF FkH.~~ir~ , ,r !rA12t:)(-;:n^'iM~~S',:~,~UW,[r; !:
COUNTY OF ~-1tAl-"" })l1>A~~ -)/. ""<....,,-7 ,(J ., __ '-h.J'~)C~~JI i
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The foregoing instrument was ack~owl~~~;d b;i~ie m~-tiiis-~?~L. day of-{)C,(~:t lb(~
2004 by Ei-,'f,I;'c\ I\i..f.",,,-,,.:;ujl"(, as ~~,)(:,IX'(t.:h),9J of Line.Net, Inc.,-w1t6-
-ispenQuaUyknowBtomeorwhohasproduced f..[L ,11 ( ALII":; ..2cLi,G,,).- IuO(type
of identification).
(AFFIX NOTARY SEAL)
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Notary Put>>,ie State of Fi() ;0E"
My Commission Expires:
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T~e foregoing instrument was acknowl~age(r bef(,;~ methisl~ day of ~\{)V(J VY'l ~;:)fr,
2004 by YA1}' G-?()nZO \e 2_ as Cd'l\ I~Yteoge'V of City of Miami Beach,
who is 'personaUy known to me or who has produced
(Type of identification).
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STATE OF fiend k.
COUNTY OF plIO fY11 -[))cK
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(AFFIX NOTARY SEAL)
Name: f'vti Y 'I C\ IV\ }vI U e t/ (~-i)
(Print Name)
Notary Public - State of F1oYlCk-L-
My Commission Expires:
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, .., MIRIAM M. MERINO ]
i*1 ":-% MY COMMISSION # DO 263315
'fi EXPIRES: November 15, 2007
" '. Bonded Thru NoIIry PWlIic UndIlwrItIlS
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STATE OF I Y\ r'l, ,:'! (uk
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, The foregoing instrument was acknowledged before me this r"'~ -H'aay 0(\ ,/ ~.>' , ..,1....L
2004 by ~,\ '~. III ( ,_ .n+N')~ as "-II. '. ' ,}, 1l of United States Fidelity
& Guaranty who is personally known.,,_~__~ or who has produced
,..---(type of identification) as identification.
(AFFIX NOTARY SEAL)
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Name: "l cL,,,,,ce
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Notary Public - State of Jv11',:t)l\lrt L r (
My Commission Expires: "./f<.J,~J'f;li'f:(i."
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