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Home My Public Portal About16-9261 Approving Settlement w/Ferguson Enterprises Inc. Sponsored by: City Attorney RESOLUTION NO. 16-9261 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, APPROVING A SETTLEMENT BETWEEN FERGUSON ENTERPRISES, INC. AND THE CITY OF OPA-LOCKA (EXHIBIT "A"); PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The City has been sued in Ferguson Enterprises, Inc. vs. The City of Opa-locka, Florida; case number: 2015-001020-CA-01, for $42,749.86.00, plus cost, interest and attorney's fees; and WHEREAS, The City has an opportunity to settle this matter for $42,749.00 and reduce its costs of litigation and damages in excess of$20,000.00; and WHEREAS, The estimated damages the City would liable for to date is in excess of$62,000.00; and WHEREAS, It is in the best interest of the City to settle this lawsuit. NOW THEREFORE, BE IT RESOLVED THAT THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference. Section 2. The City Manager and the City Attorney are hereby authorized to accept and execute the settlement. (EXHIBIT "A"). Section 3. This Resolution shall take effect immediately upon adoption, and is subject to the approval of the State of Florida Financial Oversight Board. PASSED AND ADOPTED this 26th day of October, 2016. Resolution No. 16-9261 , ily ,.......__ , , , yra L. Taylor Mayor Attest to: Approved as to form and legal sufficiency: Jo.11 a Flores Vincent T. Brown, Esq. City Clerk The Brown Law Group, LLC City Attorney Moved by: COMMISSIONER RILEY Seconded by: COMMISSIONER SANTIAGO Commissioner Vote: 5-0 Commissioner Kelley: YES Commissioner Riley: YES Commissioner Santiago: YES Vice Mayor Holmes: YES Mayor Taylor: YES IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY,FLORIDA FERGUSON ENTERPRISES, INC. d/b/a CIRCUIT CIVIL DIVISION FERGUSON WATERWORKS, CASE NO.: 16-001020-CA-01 Plaintiff, vs. CITY OF OPA-LOCKA, DRAFT Defendant. / SETTLEMENT AGREEMENT The Plaintiff, Ferguson Enterprises d/b/a Ferguson Waterworks ("Ferguson"), and the Defendant, City of OpaLocka ("City") (collectively the "Parties,") hereby enter into this Settlement Agreement (the "Agreement") effective this day of , 2016 (the "Effective Date"). WHEREAS, the City entered into a prime contract for the construction and improvement of a public work with the United States Association of CDC, Inc. ("USACDC") for a construction project requiring the rehabilitation of a sewage pump station owned by the City commonly known as Pump Station Number 5 ("Project.") WHEREAS, Ferguson furnished plumbing and related water and sewer materials to USACDC with regard to the Project. USACDC defaulted on its payment obligations to Ferguson by failing to pay amounts when due and USACDC failed to record a payment and performance bond in the public records of Miami-Dade County, Florida as required by Florida Statutes, Sections 255.05 and 287.05712. WHEREAS, Fergusonhas filed claims against the City for Failure to Require Public Payment Bond Pursuant to Fla. Stat. Section 255.05in the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade County, Florida, in the action styledFerguson Enterprises, Inc. d/b/a Ferguson Waterworksv.City of Opa-Locka, Case No. 16-001020-CA-01(referred to as the "Litigation"); and WHEREAS, the Parties have reached a settlement as to all claims at issue in the Litigation and desire to compromise, settle, and resolve their disputes consistent with the terms of this Agreement and without the risks, delays, and expenses resulting from litigation; IT IS THEREFORE AGREED as follows: 1. Recitals. The Partiesto this Agreement warrant and represent that the facts in the foregoing recitals are true and correct and are inducements to enter into this Agreement, and are incorporated herein by reference. 2. Settlement Payment.The City shall pay Ferguson the total sum of Forty- TwoThousand Seven Hundred Forty-NineDollars and Eighty-Sixcents ($42,749.86) (the "Total Settlement Sum") in full and final settlement of all claims asserted or that could have been asserted between the Partiesin the Litigation. The Total Settlement Sum shall be wired to The Barthet Firm Trust Account in one (1) lump sum payment on or before January 31, 2016.It is agreed and stipulated by the Parties that Ferguson shall, in its absolute discretion, apply the Total Settlement Sum as follows to the sums still due and owing from the USACDC: A. First to fees and costs; B. Second to interest; C. Lastly to principal. The lump sum Total Settlement Amount shall be made by wire transfer to The Barthet Firm trust account.The wire instructions are: The Barthet Firm, PA 200 S. Biscayne Blvd., Suite 1800 Miami, Florida 33131 Citibank, N.A. Miami, Florida ABA No. 266086554 Final Credit to: THE BARTHET FIRM A PROFESSIONAL ASSOCIATION Trust Account Number: 9117138161 3. Default:In the event that the Citydefaults on any of its obligations pursuant to this Agreement, Ferguson, in its sole and absolute discretion, shall be entitled to entry of a final judgment, without a hearing, for the principal amount of Sixty Five Thousand Dollars ($65,000.00) plus court costs, prejudgment interest, minus any payments made pursuant to this Agreement, plus post judgment costs, all attorney's fees, and additional prejudgment interest at the statutory rate calculated from the date of default, after written application to the Court. 4. Dismissal: Subject to the City's performance of its obligations contained in this Agreement, Ferguson shall file a notice of voluntary dismissal with prejudice ("Dismissal") of the Litigation within seven (7) calendar days after receiving payment of the Total Settlement Sum. The Dismissal shall specify that the City and Ferguson agree that Ferguson shall reserve all rights to pursue George Howard, an individual, and USACDC for any remaining outstanding balance remaining due to Ferguson related to the Project and Litigation, including, but not limited to, all attorney's fees, costs, interest and/or principal. 5. Mutual Releases: (a) City Release to Ferguson: The Citydoes hereby release, cancel, forgive and forever discharge Ferguson and its respective parents, subsidiaries, agents, employees, attorneys, and insurers from all actions, claims, demands, damages, obligations, liabilities, controversies and executions, of any kind whatsoever, whether known or unknown, whether suspected or not, which have arisen, or may have arisen, or shall arise by reason of the Litigation or Project described above and do specifically waive any claim or right to assert any cause of action or alleged cause of action or claim or demand which has, through oversight or error, intentionally or unintentionally, or through a mistake, been omitted from this release. (b) Ferguson Release to City: In consideration of the terms set forth herein, and subject to the City's obligations hereunder, Fergusondoes hereby release, cancel, forgive and forever discharge the City and its respective parents, subsidiaries, agents, employees, attorneys, and insurers from all actions, claims, demands, damages, obligations, liabilities, controversies and executions, of any kind whatsoever, whether known or unknown, whether suspected or not, which have arisen, or may have arisen, or shall arise by reason of the Litigation described above and do specifically waive any claim or right to assert any cause of action or alleged cause of action or claim or demand which has, through oversight or error, intentionally or unintentionally, or through a mistake, been omitted from this release.Notwithstanding anything to the contrary contained in this paragraph 5(b), it is hereby agreed to and stipulated between Ferguson and the City that Ferguson shall reserve all rights to pursue George Howard, an individual, and USACDC for any remaining outstanding balance remaining due to Ferguson related to the Project and Litigation, this includes, but is not limited to, all attorney's fees, costs, interest and principal. (c) Nothing contained herein is intended to prevent the Parties to this Agreement from enforcing the terms of this Agreement. 7. Binding: This Agreement shall be binding upon all Parties to this Agreement, and their successors and assigns and shall inure to the Parties' benefit and to that of their respective directors, officers, employees, attorneys, representatives, insurers, suppliers, distributors, agents and any of their past or present parents, subsidiaries, affiliates, divisions, or other organizational units of any kind. 8. Governing Law: This Agreement shall be governed by the laws of the State of Florida. If any party is required to initiate legal action to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs incurred in such action. 9. Voluntary: The Parties to this Agreement acknowledge and agree that this Agreement is voluntarily entered into by all Parties hereto. 10. Best Efforts: The Parties to this Agreement and their attorneys agree to use their best efforts and to cooperate with each other to cause this Agreement to become effective, and to take such other action or prepare and execute any reasonably necessary document as may be appropriate in connection therewith. 11. Counterparts: This Agreement may be signed in counterpart and a copy, email, or fax shall constitute an original. 12. Entire Agreement: This Agreement constitutes the full and entire agreement and understanding between the Parties with respect to the subject matter hereof, and there are no agreements, representations or warranties except as specifically set forth herein. All prior settlement discussions, negotiations, letters, demands, and writings of any kind are fully merged into this Agreement and are to be construed to be of no further force or effect, it being the intention of the Parties that this Agreement shall serve as the sole and entire expression of their agreement and understanding on the issues discussed herein. This Agreement may not be amended or modified except by an instrument in writing signed by the party against who enforcement of such amendment or modification is sought. 13. Drafter: None of the Parties to this Agreement shall be considered to be the drafter of said Agreement or any provision hereof, for the purpose of any statute, case law, or rule of interpretation/construction that would or might cause any provision hereof to be construed against the drafter of this Agreement. 14. Advice of Counsel: The Parties acknowledge that they have reviewed this Agreement and have had the opportunity to obtain the advice of counsel of their choice prior to executing this Agreement. 15. Assignment: The Parties represent and warrant that none of the claims referenced in this Agreement have been assigned, transferred or otherwise conveyed to any other person or entity. 16. Authorized Party: The individuals below represent and warrant that they are duly authorized to bind their respective entity to the terms hereof. 17. Time is of the Essence: Time is of the essence in this Agreement. 18. Venue: The Parties agree that the Eleventh Judicial Circuit in and for Miami-Dade County, Florida retains jurisdiction to enforce the terms set forth herein. 19. Captions: The captions or headings of the paragraphs in this Agreement are inserted solely for convenience and shall be ignored in construing or interpreting this Agreement. SO AGREED by the Parties, intending to be legally bound as evidenced by their following signatures. [SIGNATURES TO FOLLOW ON THE NEXT PAGE] Ferguson Enterprises d/b/a Ferguson Waterworks By: Title Date SWORN TO AND SUBSCRIBED, before me this day of , 2016, by who [ ] is personally known to me or [ ] produced identification in the form of (Notary Signature) (Print Notary's Name) NOTARY PUBLIC STATE OF FLORIDA My Commission Expires: City of OpaLocka By: Title Date SWORN TO AND SUBSCRIBED, before me this day of , 2016 by who [ ] is personally known to me or [ ] produced identification in the form of (Notary Signature) (Print Notary's Name) NOTARY PUBLIC STATE OF FLORIDA My Commission Expires: