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Home My WebLink AboutSettlement Agreement & Release .).()(Jy- 2J-,:?t) g SETTLEMENT AGREEMENT AND LIMITED RELEASE This Settlement Agreement and Release ("Agreement") is made and entered into 8~'" this day of March, 2005 by and between TRAN CONSTRUCTION, INC., a Florida corporation (hereinafter "TRAN") and the CITY OF MIAMI BEACH, a municipal corporation (hereinafter "CITY"). RECITALS A. The Parties desire to settle all claims and disputes ansmg out of the demucking work performed by TRAN and its subcontractors, as well as any and all delays, up through and including April 30, 2005, regardless of responsibility, as was required as part of the construction of the Miami Beach Golf Course Clubhouse, Maintenance Yard Building, and Restroom Shelters pursuant to Invitation to Bid No. 54-01/02 ("the Project"). B. Tran subJPitted requests for change orders ("RCO") for the demucking work; specifically RCO #s 17, 18, 19, 21, 22, 37, 39, 40A, 42, 44, 45, and 49.Pursuant to the contractual requirements, TRAN and the CITY consented (' to mediation to resolve these RCO's and any or all past or future RCO's specifically regarding the demucking work for the Project. C. TRAN and the CITY desire at this time to amicably adjust and forever settle TRAN's claim against the CITY arising out of the demucking work performed by TRAN and/or its subcontractors. D. Not withstanding anything else in this Agreement, the parties expressly understand and agree that the $100,000 enumerated in Paragraph 1 below is to cover the cost of delays up to and including April 30, 2005 or until TRAN 1 completes all of its punch-lists on all of the sites, including A, B, C-North and C- South. If a well permit for Site B is not issued prior to May 1, 2005 TRAN will be entitled to be reimbursed its remobilization costs arising from TRAN returning to the site to complete work that could not be completed absent said permit. This reimbursement will be allowed only if TRAN has competed all other work at Site B and is otherwise substantially complete. PAYMENT 1. The CITY shall cause to be paid to TRAN the sum of $500,000.00 for removal of the unsuitable soils and an additional $100,000.00 for the associated extended general conditions, through April 30, 2005, and as further explained above within thirty (30) days of the execution of this Agreement. This payment shall represent full and final settlement of all of TRAN's claims for damages, as specifically enumerated herein, against the CITY The release and all other conditions of this Agreement are contingent upon payment of said amount. Payment shall be made by delivering a check payable to TRAN CONSTRUCTION INe. to Kevin J. Taylor, Esq., at Valdini & Palmer P.A., 5353 North Federal Highway, Suite 303, Fort Lauderdale, Florida 33308. LIMITED RELEASE 2. TRAN, hereby releases, acquits and forever discharges the CITY, including any officers, directors, employees, agents and attorneys, its 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 relating to the demucking work, removal of 2 unsuitable soil and any time associated delays in connection with the above-referenced Project, excluding the possible cost ofremobilization as enumerated herein. 3. The CITY, a municipal corporation, hereby releases, acquits and forever discharges TRAN, including its affiliates and insurers, directors, officers, employees, agents and attorneys, together with its 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 relating to the demucking work, removal of unsuitable soil and any associated delays in connection with the above-referenced Project, excluding the possible cost of remobilization as enumerated herein. DENIAL OF LIABILITY 4. It is understood and agreed that payment of the consideration expressed above IS not an express or implied admission of negligence, misconduct, responsibility or liability on the party of the CITY or TRAN, and that the CITY and TRAN expressly and specifically denies 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. ADDITIONAL DOCUMENTS 5. The parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be reasonably necessary or appropriate to give full force and effect to the basis and intent of this Settlement Agreement and Release. 3 ENTIRE AGREEMENT AND SUCCESSORS IN INTERESTS 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. LIMITED RELEASE 7. The Parties agree and acknowledge that this Release is solely limited to settle any and all claims or disputes arising out of the demucking work performed by TRAN and/or its subcontractors, as well as any and all project time delays to date, excepting the possible remobilization costs enumerated herein. Notwithstanding anything covered in this Settlement Agreement and Limited Release, neither party waives any of its rights to allege any default, dispute, or claim against each other under that certain construction contract, dated October 8, 2002, not currently known or which arises after the date hereof. GOVERNING LAW 8, 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 of the 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 Miami-Dade County, Florida. 4 9. 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 by and between TRAN and the City, and that each has been represented by counsel before signing this Settlement Agreement. IN WITNESS WHEREOF, the parties have set their hands and seals on the day and date first written above. TRAN CONSTRUCTION, INe. Witness: 11vGt- STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowled d b fore me this ~ day of March, 2005 bY}f.efl.~ J,.,_ as i of Tran Construction, Inc., who is personally kno n to me or who has produced (type of identification). Name:4~~~ (Print Name) Notary Public - State of Florida My Commission Expires: Witness: /JG ~ 'Y J~ (J /(J(S NOTARY ACKNOWLEDGEMENT ON FOLLOWING PAGE 5 STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this 8t'" day of March, 2005 by~ t"1. ~\~'L as e.~ ~o~r ofthe City of Miami Beach, who is persoiially known to ~ or who h produce n I q (type of identification). Name: ~~ (Print Name) , Notary Public - State of Florida My Commission Expires: .~~~...~.. ROCIO RODRIGUEZ i"*} ~~ MY COMMISSION # DO 209444 : - EXPIRES: May 5, 2007 Bonded Tl1ru Nt'IaIy PIbIic ~ APPROV!DAlTa FORM a LANGUAGI a FOR EXICU'I1ON . '}-I';"OS ~ 6