MCM Harmless Indemnification Agreement
HARMLESS/INDEMNIFICA TION AGREEMENT BETWEEN MAGNUM
CONSTRUCTION MANAGEMENT CORPORATION D/B/A MCM CORP. AND THE
CITY OF MIAMI BEACH. FLORIDA
This Agreement (the "Agreement") is made as of May 3, 2007, by and between the City
of Miami Beach, Florida (CMB), a municipal corporation having its principal offices at 1700
Convention Center Drive, Miami Beach, Florida, 33139, and Magnum Construction Management
Corp., d/b/a MCM Corp. (MCM), a Florida corporation whose principal address is 6201 SW 70th
Street, Miami, Florida, 33143.
RECITALS:
WHEREAS, both MCM and A2 Group, Inc. (A2) submitted bids to CMB to perform the
work called for in City of Miami Beach Invitation to Bid No. 26-06/07 for Construction
Improvements for the City Miami Beach South Pointe Park (the ITB) for the redevelopment of
the South Pointe Park (the Project); and
WHEREAS, at its regular meeting on March 14, 2007, after due deliberation, and
following presentations from both MCM and A2, the City of Miami Beach Commission
determined that MCM, as the lower bidder by $765,000, offered the City the lowest and best
value option, and adopted a motion authorizing the City Administration to enter into negotiations
with MCM, as the lowest and best bidder and, if successful in said negotiations, further
authorized the Mayor and City Clerk to execute a contract with MCM for the Project, pursuant to
the ITB; and
WHEREAS, subsequent to the City Commission's action, as set forth above, A2
commenced an action to enjoin the CMB from awarding the contract to MCM, in the action
styledA2 VS. City of Miami Beach, Case No. 07-10642 CA 20, Circuit Court, 11th Circuit, Miami-
Dade County, Florida (the A2 Lawsuit); and
WHEREAS, the Circuit Court denied A2,s Emergency Motion for Temporary
Injunction, after a duly notice hearing on April 23, 2007, at which CMB, A2 and MCM all
appeared with counsel; and
WHEREAS, A2 has filed a Notice of Appeal of Non-Final Appeal from the decision of
the Circuit Court denying A2,s Motion for Temporary Injunction; and
WHEREAS, CMB and MCM have completed negotiations with regard to the Contract
between CMB & MCM for the Project (hereinafter, the Project Contract), and are ready, willing,
and able to execute the Project Contract, so long as MCM indemnifies and holds the CMB
harmless for any and all damages that could result in the event that a final non-appealable order in
the above-styled lawsuit, or any other judicial determination, is issued requiring CMB to
terminate the contract with MCM; and
WHEREAS, in light of A2,s pending litigation against CMB, both CMB and MCM
desire to reduce the foreseeable damages that would result in the event the execution of the
Project Contract is further delayed.
NOW THEREFORE, CMB and MCM agree as follows:
SECTION 1. The above recitals are true and correct and are incorporated as part of this
Agreement as if fully set forth in this Section.
SECTION 2. INDEMNIFICA TION/HOLD HARMLESS.
In consideration of CMB's agreement to proceed with the Project with MCM and, to that end,
execute the Project Contract, and other good and valuable consideration, MCM hereby agrees that
if CMB is required by the entry of a final non-appealable order, or other judicial determination in
any suit, action, or legal proceeding in the State or federal courts in Miami-Dade County, Florida,
filed by A2 (including, without limitation the A2 Lawsuit), to terminate the Project Contract, that
then, and in that event, MCM shall defend, indemnify and hold harmless CMB from, against, and
with respect to any damages, causes of action, costs, losses, debts, liabilities, judgments, claims,
obligations, attorneys fees (including those for appeals or post judgments proceedings, if any), or
other matters arising out of, or relating directly or indirectly to, any such judicial determination
which would require CMB to terminate the Project Contract (the "Indemnified Matters").
SECTION 3. RELEASE AND WAIVER.
In consideration of CMB's agreement to proceed with the Project with MCM and, to that end,
execute the Project Contract, and other good and valuable consideration, MCM hereby releases,
remises, acquits, satisfies, and forever discharges CMB of and from any and all rights, claims,
controversies, investigations, demands, damages, judgments, executions, actions, suits and causes
of action of any nature whatsoever, whether known or unknown, direct or indirect, including but
not limited to claims for decision, specific performance, tort, breach of contract, breach of
fiduciary duty, negligence, which may now or in the future be asserted or alleged by MCM
against CMB, arising out of, or relating directly or indirectly to the Indemnified Matters, and
MCM further hereby agrees that it will forever refrain and resist from commencing, instituting or
prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by way of action,
defense, setoff, cross complaint, counter-claim or third party action, against CMB based on,
relating to, arising out of, or in connection with the Indemnified Matters.
SECTION 4.
Notwithstanding anything herein to the contrary, MCM does not waive any of its rights to argue
in defense of and against A2,s claims, and that A2 is not the lowest and best value option on all
grounds previously set forth in MCM's various protests and communications to CMB during the
course of the ITB. It is expressly understood and agreed that A2 is not a beneficiary of this
Agreement and this Agreement does not bestow any rights upon A 2.
SECTION 5. SEVERABILITY.
If any provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be in effective only to the extent of such prohibition or invalidity without
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invalidating the remainder of such provision or the remaining provisions of this Agreement.
SECTION 6. VENUE AND WAIVER OF JURY TRIAL.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Florida, both substantive and remedial, without regard to principles of conflict of laws. The
exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County,
Florida, if in State court, and the U.S. District Court, Southern District of Florida, if in federal
court. BY ENTERING INTO THIS AGREEMENT, CMB AND MCM EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
SECTION 7.
This Agreement shall be binding upon MCM and the City, and their respective affiliates, officers,
directors, partners, employees, agents, legal representative, successors, and assigns. Whenever
the terms "CMB", "MCM", and "A2" are used in this Agreement, said term(s) shall be deemed to
include the aforestated's respective affiliates, officers, directors, partners, employees, agents,
legal representatives, successors, and assigns.
SECTION 8.
This Agreement represents the final Agreement of the parties hereto regarding the subject matter
hereof and supersedes any other oral or written representations or agreements between the parties
hereto relating to the subject matter hereof. No amendment, modification, termination or claimed
waiver of any of the provisions hereof shall be valid unless in writing and signed by the party or
an authorized representative of the party against whom such modification is sought to be
enforced.
SECTION 9. SURVIVAL.
This Agreement shall survive the full and final disposition of any action and/or lawsuit as
contemplated herein, and shall, additionally, survive termination and/or expiration of the Project
Contract.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Hold
Harmless Agreement as of the date first written above.
MAGNUM CONSTRUCTION MANAGEMENT CORPORATION
D/B/A MCM CORP.
t(UNlU"JA,
Print Name
'~
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was ackn~wJedged before me this 3Td day of May,
2007, by .~ll(l" LAu("\l\l~ , as ifr1:Sident, of MCM Corp., a Florida
corporation. He is personally known to me or produced valid Florida driver's licenses as
identification.
/J:.:.!A~r~t;;~ MIRIAM M. MERINO
~"f "JJ;,'~:~ MY COMMISSION' DO 263315
~~~~! EXPIRES: November 15, 2007
""f.,fJ\.. Bonded Thru Nola/}' Public Underwriters
.J4N'
Name:
(Print Name)
Notary Public - State of Florida
My Commission Expires:
4
~o Pw-L
CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation of
the State of Florida
ATTEST:
By:
By:
ty
J",e C;~C-
Print Name
Robert Parcher, City Clerk
fo0e7LT r AI'LC1-/1:JYl-
Print Name
STATE OF FLORIDA
)
) SS:
)
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 3Td day of May,
2007, by Jorge M. Gonzalez, as City Manager, of the City of Miami Beach, Florida, a municipal
corporation of the State of Florida, on behalf of such municipal corporation. He is personally
known to me or produced valid Florida driver's licenses as identification.
,'~&'~\i~rit-. MIRIAM M. MERINO
i,.: :~ MY COMMISSION # DO 263315
\~~.....i/ EXPIRES: November 15,2007
''':'I~ ' Bonded Thru Notary Pubfic Underwriters
Name:
(Print Name)
Notary Public - State of Florida
My Commission Expires:
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