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HomeMy WebLinkAbout2005-25952 ResoRESOLUTION NO. 2005-25952 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF MIAMI BEACH AND ST. PAUL TRAVELERS, ON BEHALF OF ITSELF AND OF REGOSA ENGINEERING, INC., IN FULL AND FINAL SETTLEMENT OF ALL CITY CLAIMS FOR DAMAGES AGAINST BOTH ENTITIES FOR THE SCOPE OF WORK FOR THE POOL PORTION OF THE NORMANDY ISLE PARK AND POOL IMPROVEMENT PROJECT; ACCEPTING PAYMENT, IN THE AMOUNT OF $475,000.00; AND APPROPRIATING SAID AMOUNT TO PROVIDE SUFFICIENT FUNDING TO COMPLETE THE PROJECT. WHEREAS, pursuant to approval by the citizens of the $15 Million General Obligation Bond for the improvements to the City's parks on November 8, 1994, the City contracted with The Corradino Group, Inc. (Corradino) to develop the plans and specifications for the Normandy Isle Park and Pool Facility Improvements (the Project); and WHEREAS, the Project included construction of new restrooms and shower facilities, multi-purpose activity building, outdoor trellis shade areas, and a concession building; and WHEREAS, also included are a new pedestrian promenade to traverse the length of the park; new landscaping and irrigation, including a new multi-purpose court; a decorative perimeter fence with new entry gate features; on-street parking; and sidewalk improvements; and WHEREAS, on September 1,2000, Invitation to Bid No. 136-99/00 was issued; and WHEREAS, on March 20, 2002, the City Commission adopted Resolution 2002- 24800, awarding the construction of the Project to Regosa Engineering, Inc., pursuant to the Request for Proposal No. 21-00/01, in the amount of $2,264,000; and appropriated additional funds to complete the construction; and WHEREAS, some of the Project components, such as the multi-purpose court, soccer field renovations, and site landscaping and irrigation, were not funded at the time. Notice to Proceed, was issued to Regosa on June 9, 2002; and WHEREAS, since the commencement of const~ruction, several delays related to coordination, unforeseen conditions, and deletions arose; and WHEREAS, the Administration tried to work with Regosa, including the issuance of a unilateral deductive change order to remove the Park portion of the Project from the Scope of Work, and reviewing a recovery plan and schedule to accelerate the completion of the Pool portion of the Project; and WHEREAS, finally, pursuant to Article 8.8 of the City's Agreement with Regosa, on May 5, 2004, the City Engineer issued a Notice of Default, and on June 9, 2004, the City Commission adopted Resolution No. 2004-25595, accepting the Certification of Default issued by the City Engineer; and WHEREAS, this action also authorized the City Manager to enter into any agreements for the completion of work, as long as funding had been appropriated for the work; and WHEREAS, also included in the June 9, 2004 Resolution was the authorization for the City to invoke the performance bond as a result of Regosa's default; and WHEREAS, on June 16, 2004, Regosa and its Surety, The St. Paul Travellers (the Surety), were given formal written notification that the prosecution of work for the Project was removed from Regosa and a specific demand against the Performance Bond was made; and WHEREAS, Regosa demobilized from the site as of July 15, 2004; and WHEREAS, the Administration held meetings in the remainder of 2004 with the Surety to reach an understanding of the existing conditions and to agree on the decisions to complete the Project; and WHEREAS, Regosa; the A/E Consultant; and URS, the City's Program Manager, were also participants in these meetings; and WHEREAS, per the Surety's request, the ClP Office forwarded all documentation related to the Project and gave responses to all inquires; and WHEREAS, the Construction Documents submitted to the Surety included a report recommending a course of action for all the non-conforming work identified by the NE Consultant; and WHEREAS, on December 9, 2004, in response to a Second Notice of Demand to honor the claim, the Surety acknowledged receiving all the documents; and WHEREAS, on January 21,2005, the Surety responded that they would complete the Normandy Isle Pool project through a completing contractor and under a full reservation of all rights and defenses under the Contract and Bond; and WHEREAS, on February 3, 2005 ClP Staff, URS, and the NE Consultant representatives met, at the site, with the construction consultant (Qualex) representing the Surety; and WHEREAS, a walk-through and a subsequent meeting were held, with the intention to determine the content of the Invitation-To-Bid (ITB); and WHEREAS, on March 18, 2005, the Surety again stated that they continued to move forward with performing diligent investigation to uphold its obligations under the bond; and WHEREAS, in addition, per the Surety's request, the City forwarded a list of the JOC Program Contractors to be included in the list of Contractors invited to participate in the bid process; and WHEREAS, on April 8, 2005, Qualex issued an ITB package and received responses by the end of May 2005; and and WHEREAS, the current balance in the Purchase Order for Regosa is $1,198,820; WHEREAS, costs have been incurred related to the discussions with the Surety, which include clean up of the site, additional work by Corradino to provide submittals to the Surety, and additional work by URS; and WHEREAS, these costs total $235,000; and WHEREAS, the City made a claim against the Surety for these costs; and WHEREAS, in order to complete the Project, there are additional soft costs for the construction administration services for the A/E Consultant; and and WHEREAS, at this time, these soft costs are estimated to be approximately $75,000; WHEREAS, these fees were also part of the claim to the Surety; and WHEREAS, in the meantime, in order to expedite the completion of the Project, the Administration submitted the construction documents and information to a Job Order Contracting (JOC) Program contractor to independently price the pool portion of the Project; and WHEREAS, the construction cost, if the City were to independently complete the construction with a JOC contractor, is $1,549,990, based on the price proposal they submitted; and WHEREAS, in addition the City is estimating a contingency of $300,000 which may be required to complete the Project; and WHEREAS, this contingency though cannot be part of the Surety claim under the conditions of the Bond; and WHEREAS, on April 20, 2005, the City presented a Resolution to the City Commission requesting an appropriation on the basis of the JOC proposal for completion of the project which also included the contingency amount as well as other expected soft costs in order to commence completion of the construction in the event negotiations with the Surety on the claim on the Bond were not successful; and WHEREAS, the City Commission adopted the Resolution and appropriated $561,269 from the North Beach Quality of Life Fund and up to $558,149 from the Parking Fund, for a total of $1,119,418, which were the estimated total funding needed to complete the Project at the time; and WHEREAS, once the Project is completed, as many of these funds as possible will be reimbursed with the moneys received from the Surety during the settlement negotiation process; and WHEREAS, on June 22, 2005, the City met with the Surety to seek full remedies under the law against the Surety and Regosa for any and all costs incurred under the conditions of the Bond to complete the Project; and WHEREAS, the Surety indicated that it would not complete the Project with a replacement contractor unless the City executed a waiver of rights and a take over Agreement; and WHEREAS, upon advice of legal counsel, the City declined to execute such an Agreement thus making cash settlement the only viable option; and WHEREAS, the City submitted a claim, which included incurred related costs and applied liquidated damages; and WHEREAS, the amount presented to the Surety during the negotiations included the expended costs to prepare the project for completion, liquidated damages based on the delays the Project incurred, the difference between the remaining amount in the Regosa Purchase Order and the JOC proposal to complete the Project and the additional fees to the NE Consultant; and WHEREAS, during the negotiations, the City agreed to waive half of the liquidated damages in recognition that not all delays may have been the responsibility of Regosa and therefore could not be recovered by a claim to the Bond; and WHEREAS, in addition, both parties agreed to reduce the expected, estimated additional consultant fees to half of the estimate and the City will proceed to negotiate with the NE Consultant on this basis for their future performance; and WHEREAS, the amount resulting from these negotiations is $142,000; and WHEREAS, finally, the City made a final claim of $512,000 to which the Surety offered a counter offer of $475,000; and WHEREAS, at this time, both parties, in the interest of achieving closure on the claim and to proceeding forward with the completion of the Project agreed to this final amount; and WHEREAS, the settlement includes the use of the complete amount of funds remaining in the Regosa Purchase Order; and WHEREAS, the parties then prepared and executed a Settlement Agreement and Release (pending approval by City Commission), herein attached; and WHEREAS, pursuant to the Agreement, the Surety shall pay the City $475,000.00, within fifteen (15) days of the date of approval of the Agreement by the Miami Beach City Commission, in full and final settlement of all City claims for damages against Regosa and the Surety; and WHEREAS, all the remaining funds in the account for the Project are free to be used by the City to complete the Project; and WHEREAS, after the final settlement with the Surety, the Project still shows a shortfall in funding, the majority of which is not subject to reimbursement by the Surety, in the amount of $186,170.00; and WHEREAS, the shortfall resulting from the settlement is within the standard range which can be expected in this type of negotiations and constitutes ten percent (10%) of the total claim; and WHEREAS, additional staff costs and attorney's costs to continue the negotiations or to proceed to litigation would certainly have been more costly; and WHEREAS, funding for the shortfall will be provided from the City Commission appropriation Resolution of April 20, 2005; and WHEREAS, in addition, the estimated contingency as well as additional fees for the Gordian Group, the JOC management firm, and additional CIP fees will be funded from the same previous appropriation to complete the Project; and WHEREAS, as stated before, these costs are not recoverable through a claim to a Bond and could not be part of the negotiations; and WHEREAS, the Administration is prepared to continue with the pool portion of the Project while completing the park portion; and WHEREAS, based on the settlement negotiation and subject to the City Commission approval of the Settlement Agreement and Release, the Administration is prepared to issue Notice to Proceed to the JOC contractor; and WHEREAS, construction on the completion of the pool portion could resume by Fall 2005, after all documentation is completed; and WHEREAS, as some of the work completed by Regosa will have to be re-done, it is difficult to estimate exactly what the construction duration will be; and WHEREAS, however, staff currently estimates the Project duration will be approximately ten (10) months, with an estimated completion for the Summer of 2006. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve a Settlement Agreement and Release between the City of Miami Beach and St. Paul Travelers, on behalf of itself and of Regosa Engineering, Inc., in full and final settlement of all City claims for damages against both entities for the scope of work for the pool portion of the Normandy Isle Park and Pool Improvement Project; accept the payment, in the amount of $475,000.00; and appropriate said amount to provide sufficient funding to complete the Project. PASSED and ADOPTED this 6~hday of July, 2005. ATTEST: CITY CLERK Robert Parcher T:~AGENDAg?.005\Ju12705\Regular\Nipp - Pool - Settlement Reso.doc 'OR David Dermer APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Condensed Title: CITY OF MIAMI BEACH COMMISSION ITEM SUMMARY A Resolution approving a settlement agreement and release, between the City and St. Paul Travelers on behalf of itself and of Regosa Engineering, Inc., in full and final settlement and release of all City claims for damages against both entities for the scope of work for the pool portion of the Normandy Isle Park and Pool Improvement Project; accepting the payment, in the amount of $475,000.00; and appropriatin~l said amount to provide sufficient funding] to complete the Project. Issue: IShall the City Commission accept the payment and appropriate the funding to complete the Pool portion of the Normandy Isle Park and Pool project? Item Summary/Recommendation: On September 1, 2000, Invitation to Bid No. 136-99/00 was issued for the construction of the Normandy Isle Park and Pool project. On January 31, 2001, the Mayor and City Commission rejected all bids due to them coming in over budget and subsequently issued a Request for Proposal (RFP) for the construction of the Project. On March 20, 2002, the City Commission awarded the construction of the Project to Regosa Engineering, Inc. Some of the project components, such as the multi-purpose court, soccer field renovations, and site landscaping and irrigation, were not funded at the time. Notice to Proceed, essentially the commencement of construction activities, was issued on June 9, 2002. Since the commencement of construction, several delays related to coordination, unforeseen conditions, and deletions arose. On May 5, 2004, the City Engineer issued a Notice of Default, which the City Commission certified on June 5, 2004. Also included in the June 5, 2004 Resolution was the authorization for the City to invoke the performance bond as a result of Regosa's default. On June 16, 2004, Regosa and its Surety, The St. Paul Guardian Insurance Companies (the Surety), were given formal written notification that the prosecution of work for the Project was removed from Regosa and a specific demand against the Performance Bond was made. Regosa demobilized from the site as of July 15, 2004. On April 20, 2005, the City Commission appropriated $561,269 from the North Beach Quality of Life Fund and up to $558,149 from the Parking Fund, for a total of $1,119,418. Once the Project is completed, as many of these funds as possible were to be reimbursed with the money received from the Surety during the settlement negotiation process. On June 22, 2005, the City met with the Surety to seek full remedies under the law against the Surety and Regosa for any and all costs incurred to finish the Project. The City submitted a claim, which included incurred related costs and applied liquidated damages. The parties negotiated, reached an agreement, and executed a Settlement Agreement and Release. Pursuant to the Agreement, the Surety shall pay the City of Miami Beach (City) $475,000.00, within fifteen (15) days of the date of approval of agreement by the Miami Beach City Commission, in full and final settlement of all City claims for damages against Regosa and the Surety. All the remaining funds in the account for the Project are free to be used by the City to complete the Project. However, the Project still shows a shortfall, the majority of which are not subject to reimbursement by the Surety, which will be provided from the April 20, 2005 Commission appropriation. The Administration is prepared to continue with the pool portion of the Project while completin~l the park portion. Advisory Board Recommendation: INA Financial Information: Funds: $475,000 Settlement Agreement with St. Paul Guardian Insurance Companies Finance Dept. T~I $475,000 City Clerk's Office Legislative Tracking: IM Alexandra Rolandelli ~7072005 AGENDA ITEM ~ 7 ~ DATE 7- (~-0~- CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 www.miamibeachflgov COMMISSION MEMORANDUM To: From: Subject: Mayor David Dermer and Date: July 6, 2005 Members of the City C,/~mmi~sion Jorge M. Gonzalez City Manager /// ~'/ A RESOLUTIO~N*OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETVVEEN THE CITY OF MIAMI BEACH AND ST. PAUL TRAVELERS, ON BEHALF OF ITSELF AND OF REGOSA ENGINEERING, INC., IN FULL AND FINAL SETTLEMENT OF ALL CITY CLAIMS FOR DAMAGES AGAINST BOTH ENTITIES FOR THE SCOPE OF WORK FOR THE POOL PORTION OF THE NORMANDY ISLE PARK AND POOL IMPROVEMENT PROJECT; ACCEPTING PAYMENT, IN THE AMOUNT OF $475,000.00; AND APPROPRIATING SAID AMOUNT TO PROVIDE SUFFICIENT FUNDING TO COMPLETE THE PROJECT. FUNDING: Pursuant to the Settlement Agreement and Release, executed on June 22, 2005, St. Paul Travelers (the Surety) shall pay the City of Miami Beach (City) $475,000.00, within fifteen (15) days of the date of approval of agreement by the Miami Beach City Commission, in full and final settlement of all City claims for damages against Regosa Engineering (Regosa) and the Surety. This funding is unallocated and would be available for use on this project. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. ANALYSIS: Pursuant to approval by the citizens of the $15 Million General Obligation Bond for the improvements to the City's parks on November 8, 1994, the City contracted with The Corradino Group, Inc. (Corradino) to develop the plans and specifications for the Normandy Isle Park and Pool Facility Improvements (the Project). The Project included construction of new restrooms and shower facilities, multi-purpose activity building, outdoor trellis shade areas, and a concession building. Aisc included are a new pedestrian promenade to traverse the length of the park; new landscaping and irrigation, including a new multi-purpose court; a decorative perimeter fence with new entry gate features; on- street parking; and sidewalk improvements. Commission Memorandum Normandy Isle Park and Pool Project - Acceptance of Settlement from St. Paul Guardian Companies and Appropriation to complete the pool portion of the Project July 5, 2005 Page 2 of 5 On September 1, 2000, Invitation to Bid No. 136-99/00 was issued. On March 20, 2002, the City Commission adopted Resolution 2002-24800, awarding the construction of the Project to Regosa Engineering, Inc., pursuant to the Request for Proposal No. 21~00/01, in the amount of $2,264,000; and appropriated additional funds to complete the construction. Some of the project components, such as the multi-purpose court, soccer field renovations, and site landscaping and irrigation, were not funded at the time. Notice to Proceed, was issued to Regosa on June 9, 2002. Since the commencement of construction, several delays related to coordination, unforeseen conditions, and deletions arose. The Administration tried to work with Regosa, including the issuance of a unilateral deductive change order to remove the Park portion of the Project from the Scope of Work, and reviewing a recovery plan and schedule to accelerate the completion of the Pool portion of the Project. Finally, pursuant to Article 8.8 of the City's Agreement with Regosa, on May 5, 2004, the City Engineer issued a Notice of Default, and on June 9, 2004, the City Commission adopted Resolution 2004-25595, accepting the Certification of Default issued by the City Engineer. This action also authorized the City Manager to enter into any agreements for the completion of work, as long as funding had been appropriated for the work. Also included in the June 9, 2004 Resolution was the authorization for the City to invoke the performance bond as a result of Regosa's default. On June 16, 2004, Regosa and its Surety, The St. Paul Travellers (the Surety), were given formal written notification that the prosecution of work for the Project was removed from Regosa and a specific demand against the Performance Bond was made. Regosa demobilized from the site as of July 15, 2004. The Administration held meetings in the remainder of 2004 with the Surety to reach an understanding of the existing conditions and to agree on the decisions to complete the Project. Regosa; Corradino, the Architect-of-Record; and URS, the City's Program Manager, were also participants in these meetings. Per the Surety's request, the CIP Office forwarded all documentation related to the Project and gave responses to all inquires. The Construction Documents submitted to the Surety included a report recommending a course of action for all the non-conforming work identified by Corradino. On December 9, 2004, in response to a Second Notice of Demand to honor the claim, the Surety acknowledged receiving all the documents. On January 21, 2005, the Surety responded that they would complete the Normandy Isle Pool project through a completing contractor and under a full reservation of all rights and defenses under the Contract and Bond. On February 3, 2005 CIP Staff, URS and Corradino representatives met, atthe site, with the construction consultant (Qualex) representing the Surety. A walk-through and a subsequent meeting were held, with the intention to determine the content of the Invitation- To-Bid (ITB). On March 18, 2005, the Surety again stated that they continued to move forward with performing diligent investigation to uphold its obligations under the bond. In addition, per the Surety's request, the City forwarded a list of the JOC Program Contractors Commission Memorandum Normandy Isle Park and Pool Project- Acceptance of Settlement from St. Paul Guardian Companies and Appropriation to complete the pool portion of the Project July 6, 2005 Page 3 of 5 to be included in the list of Contractors invited to participate in the bid process. On April 8, 2005, Qualex issued an ITB package and received responses by the end of May 2005. The current balance in the Purchase order for Regosa is $1,198,820. Costs have been incurred related to the discussions with the Surety, which include clean up of the site, additional work by Corradino to provide submittals to the Surety, and additional work by URS. These costs total $235,000. The City made a claim against the Surety for these costs. In order to complete the project, there are additional soft costs for the Construction Administration services for Corradino. At this time, these soft costs are estimated to be approximately $75,000. These fees were also part of the claim to the Surety. In the meantime, in order to expedite the completion of the Project, the Administration submitted the construction documents and information to a Job Order Contracting (JOC) Program contractor to independently price the pool portion of the Project. The construction cost, if the City were to independently complete the construction with a JOC contractor, is $1,549,990, based on the price proposal they submitted. In addition the City is estimating a contingency of $300,000 which may be required to complete the Project. This contingency though cannot be part of the Surety claim under the conditions of the Bond. On April 20, 2005, the City presented a Resolution to the City Commission requesting an appropriation on the basis of the JOC proposal for completion of the project which also included the contingency amount as well as other expected soft costs in order to commence completion of the construction in the event negotiations with the Surety on the claim on the Bond were not successful. The City Commission adopted the Resolution and appropriated $561,269 from the North Beach Quality of Life Fund and up to $558,149 from the Parking Fund, for a total of $1,119,418, which were the estimated total funding needed to complete the Project at the time. Once the Project is completed, as many of these funds as possible will be reimbursed with the money received from the Surety during the settlement negotiation process. On June 22, 2005, the City met with the Surety to seek full remedies under the law against the Surety and Regosa for any and all costs incurred under the conditions of the Bond to complete the Project. The Surety indicated that it would not complete the Project with a replacement contractor unless the City executed a waiver of rights and a take over Agreement. Upon advice of legal counsel, the City declined to execute such an Agreement thus making cash settlement the only viable option. The City submitted a claim, which included incurred related costs and applied liquidated damages. The amount presented to the Surety during the negotiations included the expended costs to prepare the project for completion, liquidated damages based on the delays the Project incurred, the difference between the remaining amount in the Regosa Purchase Order and the JOC proposal to complete the Project and the additional fees to Commission Memorandum Normandy Isle Park and Pool Project - Acceptance of Settlement from St. Paul Guardian Companies and Approp#ation to complete the pool portion of the Project July 6, 2005 Page 4 of 5 Corradino. During the negotiations, the City agreed to waive half of the liquidated damages in recognition that not all delays may have been the responsibility of Regosa and therefore could not be recovered by a claim to the Bond. In addition, both parties agreed to reduce the expected, estimated additional consultant fees to half of the estimate and the City will proceed to negotiate with Corradino on this basis for their future performance. The amount resulting from these negotiations is $142,000. Finally, the City made a final claim of $512,000 to which the Surety offered a counter offer of $475,000. At this time, both parties, in the interest of achieving closure on the claim and to proceeding forward with the completion of the Project agreed to this final amount. The settlement includes the use of the complete amount of funds remaining in the Regosa Purchase Order. The parties then prepared and executed a Settlement Agreement and Release (Attached). Pursuant to the Agreement, the Surety shall pay the City of Miami Beach (City) $475,000.00, within fifteen (15) days of the date of approval of the Agreement by the Miami Beach City Commission, in full and final settlement of all City claims for damages against Regosa and the Surety. All the remaining funds in the account for the Project are free to be used by the City to complete the Project. After the final settlement with the Surety, the Project still shows a shortfall in funding, the majority of which is not subject to reimbursement by the Surety: Below is a table which explains the amounts which were part of the claim and the negotiations: Current Project construction costs per JOC proposal Incurred costs by A/E, URS, and site cleanup Additional A/E fees estimated to complete the Project Sub-total Remaining funds in the Regosa Purchase Qrder Sub-total $1,549,990 $235,OOO $75,000 $1,859,990 $1,198,820 $661,170 Final Settlement Agreement amount $475,000 Sub-total $186,170 The shortfall resulting from the settlement is within the standard range which can be expected in this type of negotiations and constitutes ten percent (10%) of the total claim. Additional staff costs and attorney's costs to continue the negotiations or to proceed to litigation would certainly have been more costly. Funding for the shortfall will be provided from the Commission appropriation Resolution of April 20, 2005. In addition, the estimated contingency as well as additional fees for the Gordian Group, the JOC management firm, and additional CIP fees will be funded from the same previous appropriation to complete the Project. As stated before, these costs are not recoverable through a claim to a Bond and could not be part of the negotiations. Commission Memorandum Normandy Isle Park and Pool Project- Acceptance of Settlement from St. Paul Guardian Companies and Appropriation to complete the pool portion of the Project July 6, 2005 Page 5 of 5 The Administration is prepared to continue with the pool portion of the Project while completing the park portion. Based on the settlement negotiation and Agreement, the City is prepared to issue Notice to Proceed to the JOC contractor immediately after Commission approval. Construction on the completion of the pool portion could resume by Fall 2005, after all documentation is completed. As some of the work completed by Regosa will have to be re-done, it is difficult to estimate exactly what the construction duration will be. However, staff currently estimates the Project duration will be approximately ten months, with an estimated completion for the Summer of 2006. CONCLUSION: The Administration recommends that the Mayor and City Commission adopt the Resolution, and approve a Settlement Agreement and Release between the City of Miami Beach and St. Paul Travelers, on behalf of itself and of Regosa Engineering, Inc., in full and final settlement and release of all City claims for damages against both entities for the scope of work for the pool portion of the Normandy Isle Park and Pool Improvement Project; accept the payment, in the amount of $475,000.00; and appropriating said amount to provide sufficient funding to complete the Project. T:~AGENDA~2005\Jul06r2005\Regular\Nipp - Pool - Settlement Appropriation Memo.doc SETTLEMENT AGREEMENT AND RELEASE THIS Settlement Agreement and Release ("Agreement") is made and entered into this 22nd day of June, 2005 by and between the CITY OF MIAMI BEACH, a municipal corporation (hereinafter "MIAMI BEACH") and ST. PAUL TRAVELERS (hereinafter "ST. PAUL"), a foreign corporation, including its parent corporations, subsidiaries and affiliates, on its behalf as well as on behalf of REGOSA ENGINEERING, INC. (hereinafter "REGOSA"), collectively referred to as "THE PARTIES". RECITALS A. The Parties desire to settle all claims or disputes arising out of that Agreement for demolition of the existing pool structure and subsequent construction of a new pool structure consisting of a four lane lap pool, activity pool, locker rooms, concession building and associated offices at the Normandy Park Pool Facility, which project is commonly referred to as to as the "City of Miami Beach - Normandy Park Pool Facility, Project No. 21-00/01 (hereinafter the "Project"). B. ST. PAUL warrants and represents that it has full authority to execute this Agreement on behalf of REGOSA based upon an express assignment of REGOSA's rights under the Performance Bond. C. MIAMI BEACH denies, and continues to deny any liability to ST. PAUL or REGOSA for any damages. D. ST. PAUL, on its own behalf and behalf of REGOSA, deny, and continue to deny any liability to MIAMI BEACH for any damages. E. MIAMI BEACH and ST. PAUL desire at this time to amicably adjust and forever settle MIAMI BEACH's damages' claim against ST. PAUL and any damages' claim by REGOSA and/or ST. PAUL against MIAMI BEACH. NOW, THEREFORE, in consideration of the promises set forth herein and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: RECITALS 1. The foregoing Recitals are true and correct and incorporated herein by reference. II. PAYMENT 2. ST. PAUL shall cause to be paid to MIAMI BEACH the sum of FOUR HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($475,000.00) within fifteen (15) days of the date of approval of Agreement by the MIAMI BEACH CITY COMMISSION, in full and final settlement of all of MIAMI BEACH's claims for damages against REGOSA and ST. PAUL. The releases and all other conditions of this Agreement are contingent upon the payment of said amount. Payment shall be made by delivering to Rhonda Montoya Hasan, Esq., a cashier's check or ST. PAUL company draft payable to CITY OF MIAMI BEACH. III. RELEASE 3.a. ST. PAUL, including its parent corporations, subsidiaries and affiliates and on behalf of REGOSA, hereby releases, acquits and forever discharges MIAMI BEACH including its parent and subsidiary corporations, affiliates and insurers, and its 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, 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 for delays in connection the above referenced Project. 3.b. MIAMI BEACH, a municipal corporation, hereby releases, acquits and forever discharges ST. PAUL and REGOSA, 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 of the consideration expressed above is not an express or implied admission of negligence, misconduct, responsibility or liability on the part of ST. PAUL or REGOSA or anyone else, and that ST. PAUL and REGOSA 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. INDEMNIFICATION 5. ST. PAUL expressly agrees to indemnify and hold MIAMI BEACH harmless against any and all claims REGOSA may assert against MIAMI BEACH on the Normandy Park Pool Facility Project. 2 VI. ADDITIONAL DOCUMENTS 6. 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 of this Settlement Agreement and Release. VII. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST 7. 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. VIII. 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 Dade County, Florida. 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 of by and between MIAMI BEACH, ST. PAUL and REGOSA, and that each has been represented by counsel before signing this Settlement Agreement. IN WITNESS WHEREOF, the parties have set their date first written above. and seals on the day and (print name) ST. By: (print name) CITY OF MIAMI BEACH By: TIIVI~THy~). HEMSTREET Assistant City Manager STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledg,e_g_?efore me this ~ day of 2005 by ,~::~lP_~ ~. ~~ as ~>~:x~¢c~(r:~4o~lofSt. Paul Travelers, who is personally known to me or who has (type of identification). (AFFIX NOTARY SEAL) STATE OF FLORIDA COUNTY OF MIAMI-DADE produced Nctr~\a~ C~. L~. Name: (Print Nam~ Notary Public - State of My Commission Expires: The foregoing instrument was acknowledged before me this c~r~d day of ,Tcl. F~ , 2005 by ~CB ~c~_~~ as~%q~tc~r C~ M~,rlas~¢~ of City of Miami Beach, who is per~onally'~;~vn t~r~e or who has prb~lu~ed D/Q '~ (type of identification) as identification. (AFFIX NOTARY SEAL) ~l~,~""~':~ MY COMMISSION ~DD 209444 t1~:~~ May 5, 2007 / (Print ~a~) Notary Public - State of My Commission Expires: