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HomeMy WebLinkAbout2015-006SETTLEMENT AGREEMENT Principal: H&D Construction Co., Inc. Surety: The Guarantee Company of North America USA Obligee: Indian River Board of County Commissioners Project: Egret Marsh Stormwater Management Facility Bond No: 80052711 � This Settlement Agreement (the "Agreement') is made this % % A fday of December, 2014, between the Indian River Board of County Commissioners (the "County"), and The Guarantee Company of North America USA ("GCNA").") (the County and GCNA shall collectively be referred to as the "Parties"). WHEREAS, on or about December 9, 2008, the County and H&D entered into a written agreement (the "Contract") for the construction of the project commonly known as the "Egret Marsh Stormwater Management Facility" (the "Project"); and WHEREAS, in connection with the Contract, GCNA, as surety, issued a Performance Bond bearing bond number 80052711 (the "Bond') on behalf of H&D, as principal, and in favor of the County, as obligee; and WHEREAS, disputes have arisen between H&D and the County during the course of construction, resulting in the County's issuance of communications to H&D, purporting to declare a default against H&D under the Contract, indicating the County's intent to complete the work required under the Contract, and making claim against GCNA under the Bond, and WHEREAS, the County did, in fact, proceed to complete the work required of H&D under the Contract, and WHEREAS, GCNA has received claims against the Bond issued on the Project by various subcontractors, materialmen and suppliers of H&D alleging non-payment for goods and/or services provided on the Project, such claims exceeding the available contract balances due and owing from the County to H&D; and WHEREAS, as surety, GCNA's rights of equitable subrogation and contractual assignment entitle GCNA to recover and utilize the available contract balances due and owing on the Contract to mitigate its damages under the Bond: and WHEREAS, the County has asserted claims against the available contract balances associated with the costs incurred by the County to complete the work required of H&D under the Contract; and WHEREAS, the Parties wish to resolve their competing claims to the available contract balances without need for litigation. Settlement Agreement Page 2 NOW THEREFORE, in consideration of the promises, and other good and valuable consideration, and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Recitals. The recitals are part of this Agreement as if fully set forth herein. 2. Contract Accounting. The original Contract was in the amount of Five Million Three Hundred Eighty -Nine Thousand Nine Hundred Seventy -Two and10/100 Dollars ($5,389,972.10), less approved deductive change orders in the amount of One Hundred Seventy - Seven Thousand Four Hundred Forty -One and 89/100 Dollars ($177,441.89). As part of this settlement, the Parties have agreed upon a deductive credit for the costs to be incurred by the County to complete the landscaping scope required under the Contract in the amount of Two Hundred Eighty -Three Thousand Eight Hundred Seventeen and 24/100 Dollars ($283,817.84). Additionally, and as part of this settlement, the Parties have agreed upon a deductive credit'lfor work required under the Contract to be self -performed by the County in the amount of Fifty -Two Thousand Eighty -Two and 14/100 Dollars (552,082.14). To date, the County has made payments to H&D under the Contract in the amount of Four Million Six Hundred Thirteen Thousand Nine Hundred Fifty -Four and 43/100 Dollars ($4,613,954.43), thereby resulting in a final Contract balance due and owing in the amount of Two Hundred Sixty -Two Thousand Six Hundred Seventy -Six and/100 Dollars ($262,676.0). .him 3. GCNA's Claims Under the Bond. GCNA has received various claims by subcontractors, suppliers and/or laborers of H&D for goods and/or services already provided on the Project, such claims exceeding the amount due hereunder from the County. Additionally, to date, GCNA has made payments to such claimants in the total amount of Four Hundred Fifty - Four Thousand Six Hundred Eleven and 08/100 Dollars ($454,611.08): Claimant Claim Date Claim Amount Paid Amount Cornerstone Building Systems 4/28/10 16,095.00 16,095.00 Curry Controls Company 3/8/10 18,833.99 18,833.99 Flow -Rite Plumbing Inc. 6/15/10 6,935.32 6,935.32 Gene's Striping 5/7/10 625.00 625.00 Geosyntec Consultants 5/12/10 2,292.79 2,292.79 HydroMentia 4/30/10 35,025.00 35,025.00 HydroMentia 6/18/10 57,525.00 57,525.00 J. E. Hill Contractors, Inc. 3/2/10 64,117.26 64,117.26 Murray Logan Construction, 7/13/10 3.800.00 3.800.00 Inc. National Lining Systems, Inc. 5/5/10 39,232.50 39,232.50 Paragon Electric of Vero, Inc. 3/19/10 58,783.78 58,783.78 Settlement Agreement Page 3 Claimant Claim Date Claim Amount Paid Amount Reel Fence; Inc. 4/15/10 29,264.81 29,264.81 Rivello Construction Co., Inc. 4/28/10 83,226.15 83,226.15 US Foundry & Manufacturing 2/24/10 38.854.48 38.854.48 Corp. TOTAL $ 454,611.08 5454,611.08 4. The County's Payment to GCNA. Within ten (10) days of the final approval and execution of this Agreement, the County shall pay to GCNA the sum of Two Hundred Sixty - Two Thousand Six Hundred Seventy -Six and 10/100 Dollars ($262,676.0).. These funds shall be available to GCNA to reimburse it for any claims paid to date to suucontrac ors, suppliers and/or laborers of H&D, to satisfy any existing and/or potential future claims by subcontractors, suppliers and/or laborers of H&D, and/or for any and all such additional purposes as may be reasonable and necessary, in the sole and exclusive discretion of GCNA, as a result of GCNA's having issued the various payment and performance bonds to H&D. 5. Final Acceptance of the Contract and Full and Final Release. Execution of this Settlement constitutes full and final completion and acceptance of the work under the Contract. Moreover, upon execution of this Agreement, the County, on the one hand, and GCNA and H&D, on the other, do hereby expressly RELEASE, ACQUIT and FOREVER DISCHARGE each other of and from any and all claims, rights, demands and/or causes of action of whatsoever kind or nature which either party has or may ever claim to have, now or in the future, against the other Party under and/or by reason of the Contract and/or Bond, and the County specifically acknowledges the discharge of the Bond, which shall be of no further force and/or effect. 6. Reservation of Rights as Between GCNA and H&D. This Agreement shall in no way alter, affect, impair or prejudice any rights, claims, causes of action or defenses between GCNA and H&D (or its individual indemnitors) relating to the Contract, Bond, or any other agreements between such parties, regardless of whether such claims arise under contract, statute or at common law. : D - . '• s-its-Autstanding-Abli ation.s--to-G N A under any and ^' z nts-of—indern ity; and-aek-no CCNA harmless fro s,.r—.est d1Ler other pot 7. No Admission of Liability. This Agreement does not constitute an admission of liability on the part of any of the Parties. 8. Binding Agreement. This Agreement shall only extend to and be binding upon the Parties hereto and their respective successors and assigns. Nothing contained in this Agreement shall create any third party beneficiaries to other claimants under the Bond, nor Settlement Agreement Page 4 confer any benefit or enforceable rights under this Agreement other than to the Parties hereto and their respective successors, assigns, and reinsurers. 9. No Modification Except as in Writing. This Agreement may not be modified unless in writing and executed by the Parties hereto. No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the Party against whom it is sought to be enforced. 10. Interpretation of Agreement. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the Parties, but, if for any reason any provision is unenforceable or invalid, such provision shall be deemed severed from this Agreement and the remaining provisions shall be carried out with the same force and effect as if the severed portion had not been a part of this Agreement. 11. Incorporation of All Prior Negotiations. This Agreement incorporates, includes, and supersedes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the Parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this Agreement. Accordingly, the Parties agree that no deviations from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 12. Acknowledgment of Release of Rights. The Parties acknowledge and agree that they are releasing certain rights and assuming certain duties and obligations which, but for this Agreement, would not have been released or assumed. Accordingly, the Parties agree that this Agreement is fair and reasonable, that each of them has had an opportunity to consult with and have in fact consulted with such experts of their choice as they may have desired, and that they have had the opportunity to discuss and have in fact discussed this matter with counsel of their choice. 13. Failure to Execute. Pursuant to the terms and conditions of the Indemnity Agreement entered into between GCNA and H&D in connection with the issuance of the various payment and performance bonds, H&D assigned to GCNA, and provided GCNA with a continuing security interest in, any and all contract balances due and owing on any bonded projects, including the contract proceeds due on the instant Project. Correspondingly, H&D authorized GCNA to execute, on behalf of H&D, any agreements deemed necessary or desirable by GCNA to provide absolute title to such assigned funds. As such, the County hereby acknowledges and agrees that, to the extent that H&D fails to timely execute this Agreement, the County will accept GCNA's execution of the Agreement as attorney-in-fact on behalf of H&D. 14. Advice of Counsel. The Parties acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting Settlement Agreement Page 5 document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties than the other. 15. Obligations of Further Execution. The Parties agree to execute all such further instruments, and to take all such further actions as may be reasonably required by any Party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 16. Survival of Warranties and Representations. All covenants, warranties and representations contained in this Agreement, and all documents to be delivered by the Parties in connection with the consummation of the transaction contemplated herein, shall survive the consummation of said transaction. 17. Event of Enforcement. In the event that it is necessary for any of the Parties to seek enforcement of this Agreement, the Parties agree that the Agreement will be interpreted and construed in accordance with, and governed by the laws of the State of Florida, and such proceedings shall occur in a court of competent jurisdiction servicing Indian River County, Florida. 18. Notices. Any notices or other formal communications made under this Agreement shall be deemed to have been duly given if sent via United States Mail to the following: To GCNA: Mr. Jeff Jubera The Guarantee Company of North America USA 25800 Northwestern Hwy, Suite 720 Southfield, Michigan 48075 To the County: William DeBraal, Esquire Office of the County Attorney 1801 27th Street Vero Beach, Florida 32960 With a copy to: Edward Etcheverry, Esq. Etcheverry Harrison LLP 150 S. Pine Island Road, Suite 105 Fort Lauderdale, Florida 33324 Fax: (954) 370-1682 or at such other address as each of the foregoing may designate in writing by registered or certified mail to the other. 19. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, shall be deemed to be an original, but such counterparts shall together constitute one and the same instrument. Settlement Agreement Page 6 IN WITNESS WHEREOF, the Parties hereto have affixed their hands and seals to this Agreement the day and year first set forth above, and the individuals who execute this Agreement personally represent and warrant that they have full authority to execute this Agreement on behalf of the respective Parties. ATTEST: Jeffrey R. Smith Clerk of Court and Comptroller 64-4,-0- 0-€14- --'-'‘'‘t c:2.!.`1./.1'.1/i•:"5:'.. By: ;o`� ' '�F�.: By: Wesley S. Davis, Chairman Deputy Clerk * • •'`�'. �tzp4?rr : x4�, : t o• • •• ' . ' .oma: .49' R COUNT .,r fr. INDIAN RIVER BOARD OF COUNTY COMMISSIONERS Approved: J County Administrator Date BCC Approve' January 6, 2015 Approved as to form and legal sufficiency illiam K. DeBraal Deputy County Attorney Settlement Agreement Page 7 THE GUARANTEE COMPANY OF NORTH AMERICA USA y: Title: Date: (94-, s5-/4,711; 6r— ) 77 ( /!nG��QM/rRi- /2/17//'-I STATE OF MICHIGAN COUNTY OF fakl and On this 17th day of December, 2014, before me personally appeared Christopher Woolf , as Claims Examiner for The Guarantee Company of North America USA, who [X] is personally known to me or has [ ] produced as identification and who being by me duly sworn did depose and state that he/she is authorized to act on behalf of the company, named in the foregoing Settlement Agreement, that he/she executed the foregoing instrument on behalf of the company with full authority to do so, and that he/she executed the foregoing instrument on behalf of the company for the uses and purposes set forth therein. SEAL Cynthia A. Takai Notary Public, State of Michigan County of Oakland My Commission Expires February 27, 2018 Acting in Oakland County L:\Clients\157 - GCNA\1009 - Stormwater Management Facilities - Egret Marsh Egret Marsh Settlement Agreement - FinaLwpd