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Res. No. 077-01-11225RESOLUTION NO.77-01-11225 ARESOLUTIONOFTHEMAYOR AND CITY COMMISSION OFTHECITYOF SOUTH MIAMI,FLORIDA,RELATING TO AUTHORIZING THE CITY ADMINISTRATION TO DISBURSE TO BAUDE CONSTRUCTION COMPANY,INC.A SUM NOT TO EXCEED S64,888.00 FROM ACCOUNT NUMBER 001-0000-132-2050, WHICH IS ENTITLED "MURRAY PARK SURPLUS LOCAL MATCH/HOSPITAL CONTRIBUTION"AND,PROVIDINGFORANEFFECTIVEDATE. WHEREAS,the City Commission awarded the construction contract to Baude Construction Company,Inc.to build the first phase of the Multipurpose Center at Murray Park,and WHEREAS,a number of problems were encountered during the construction period,which resulted in extensive delays in completing the project,and WHEREAS,the Contract allows the City to assess liquidated damages for delays,and WHEREAS,the Contractor has submitted a claim for additional compensation for the delay,and WHEREAS,the causes for the delays are multiple and the administration has evaluated the validity of the claim,and WHEREAS,it is the intent of the City and that ofthe Contractor to resolve the claim amicably,and WHEREAS,both parties have negotiated a fair and final settlement of the claims. NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA: Section 1.The City Administration is authorized to disburse a sum of $64,888.00 to Baude Construction Company,Inc.as a full and final satisfaction of all claims related to the Multipurpose Center Phase 1 the ContractormayhaveagainsttheCity. Section 2.The disbursement shall be charge to expenditure account number 001-0000-132-2050.entitled "Murray Park Safe Neighborhood Grant Matching Fund". Section 3.This resolution shalltakeeffect immediately upon approval. PASSED AND ADOPTED this 5th day of June,2001. ATTEST: CITY CLERK ^MAYOR READ AND APPROVED AS TO FORM:COMMISSION VOTE:5-0 MayorRobaina:Yea Vice-Mayor Feliu:Yea Commissioner Russell:Yea Commissioner Bethel:Yea Commissioner Wiscombe:Yea RELEASE AGREEMENT BETWEEN CITY OF SOUTH MIAMI AND BAUDE CONSTRUCTION COMPANY,INC. Whereas,theCityofSouth Miami andBaudeConstructionCompany,Inc., (referred to as "Contractor")entered into a contract for the construction of the City of SouthMiami Multi-Purpose Cultural Center—Phase I;and, Whereas,theprojectis substantially complete;and, Whereas,delays in construction have occurred which havegivenriseto claims by the Contractor fordelaydamagesandclaimsbytheCityfor liquidated damages;and, Whereas,bothpartieshavenegotiatedafairand final settlementof the claims under the terms and conditions stated inthis Agreement. Now,therefore,thisAgreementisenteredintobetween the City of SouthMiamiand BaudeConstructionCompany,Inc.,inandfortheconsideration often dollars (SI 0.00), themutual covenants containedinthisAgreement,andotherlawful consideration,the receiptandlegalsufficiency of whichisacknowledgedbybothparties. 1.WHEREAS CLAUSES. 1.1.TheaboveWhereasclausesareincorporatedintothisAgreement. 2.PAYMENT.M?^ 2.1.Within (J©days of approval of this Agreement by the City Commission forthe City of South Miami,theCity will paythe Contractor $64,888.00 in full and final satisfaction of all claims the Contractor might have against the City. 3.RELEASES. 3.1.The Contractor for itself and its principals,directors,officers, successors and assigns,hereby releases the City and its commissioners,directors! officers,employees,agents and representatives from anyand all claims,'including but not limited to claims for damages for breach of contract,tort or statutory liability,equitable claims,and claims for profits,expenses and costs,that they had, Page1 of 6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. Z 39Vd 'WdB0:t>KJ-S2-AVW -SPE9 C99 SQt *IHVIH HlflOS dO A1I3 :A9 1N3S have,or might have on the effective date of Agreement arising out the contract for the construction oftheCityof South Miami Multi-Purpose Cultural Center— Phase I;provided,however,the Contractor does not release the City from any claim forfinal payment under the construction contract. 3.2.The City for itself and its commissioners,directors,officers, employees,agents,representatives,successors and assigns,releases the Contractor andits principals,directors and officers from anyand all claims for liquidated damages for delay of performance under the construction contract;provided, however,thisreleasedoesnotexcusethe Contractor ortheSuretyfrom completing performance under the construction contract andthe bond,and does not change,alteror modify any warranties in favor ofthe City. 3.3.ByagreeingtoreleasetheContractor from claimsfor liquidated damages theCitydoes not release,and hereby preserves all claims against,other partieswhoarenotapartytothe construction contract. 4.RELEASE OF LIENS. 4.1.The Contractor shall cause the claim of lienfiledby Gale Insulation of South Florida,Inc.,in the amount of $1710.00,and recorded on November 27, 2000atOfficialRecordsBook19378,Page 1692,tobereleased.The Contractor shallgivetheCityanaffidavitattestingthattherearenoliensontheproperty arisingout of theworkperformedbythe Contractor.This requirement is independent of thereleasesprovidedinthis Agreement butisacondition precedent for obtaining payment tothe Contractor. 5.ENFORCEMENT. 5.1.This Agreement may be enforced by either party only by means of declaratory judgment,mandamus,injunction or other equitable relief.In any litigation to enforce this Agreement the prevailing party shall be entitled to payment of reasonable attorney's fees,paralegal expenses,investigative expenses and costs.The City does not waive its sovereign immunity,and shall not be liable to the Contractor,for damages,prejudgment interest or attorney's fees. Page2 of6 Release Agreement Between City ofSouth Miami and Baude Construction Company,Inc. C 39Vd !fJdeo:f K)-Sc'-AVW -9^9 E)99 SQ£-IWVIW H1H0S dO AJ.I0 :A9 1N3S 6.EFFECTIVE DATE. 6.1.This Agreement shall befirst executed bythe Contractor andshall become effective upon execution bytheCity Manger. 7.NOTICE. 7.1.AnynoticeunderthisAgreementshallbegiveninwritingbyU.S. mailorby hand delivery to: The City of South Miami : Charles D.Scurr,City Manager City of South Miami 6143 Sunset Drive South Miami,Florida 33143 Telephone:(305)663-6338 Facsimile:(305)663-6345 and EarlG.Gallop,General Counsel NaginGallop&Figueredo,P.A. 3225 Aviation Avenue,Suite 301 Miami,Florida 33133 Telephone:(305)854-5353 Facsimile:(305)854-5351 Baude Construction Company,Inc.: 12177 S.W.131st Avenue Miami,Florida 33186 Telephone:(305)234-5256 Facsimile:(305)234-5559 Page3 of 6 Release Agreement Between City of South Miami and Baude Construction Company,fnc. IIV ^VH iflrlfO:?KJ-S2-AVN ;SfG9 K99 S0C -IWVIW HlHOS dO A1I0 :A8 1N3S 8.ENTIRE AGREEMENT. 8.1.This Agreement contains the entire understanding and agreement of theparties.All negotiations,understandings and agreements pertaining tothe subjectmatter of thisagreementaremergedherein.ThisAgreementcanbe amended onlybyawrittenamendmentwhichmustbe approved bytheCity Commission of theCity of SouthMiami. 9.SEVERABILITY. 9.1.Inthe event that any term or provision of this Agreement is determined by judicial authority tobe illegal or otherwise invalid,whenever possible,and subject tothe court's approval,suchprovisionshallbegivenits nearest legal meaning.The remainder of this Agreement shall continue infull forceandeffect.Further,itisexpresslyunderstoodbyall parties thatthis Agreement hasbeendraftedequallybybothpartiesandthatthis Agreement isa compilation of thetermsandconditions contemplated byeachpartytothe Agreement.Accordingly,inanydisputewith respect toanypart of this Agreement,includingnotlimitedto,the language,definition,phrasingormeaning contained herein,themattershallnotbeconstruedagainst either partyonthebasis of authorship. 10.WARRANTIES. 10.1.Non-Assignment.Thepartieswarrantthattheyhavenotassigned anyrights,claimsorcausesofactionundertheconstructioncontracttoany person.Foranybreach of thisprovision,the breaching partywillindemnify, defendandholdthenon-breachingpartyharmlessfromanydemand,claimor expense assertedbyapersontowhomaright,claimorcause of actionhasbeen assigned. 10.2.AuthoritytoBind.ThepersonssigningthisAgreementwarrantthat they represent the party that on whose behalf they execute this Agreement,and theyhavethe authority tobindthepartytheyrepresenttothetermsandconditions of this Agreement. Page4 of 6 Release Agreement Between CityofSouth Miami and Baude Construction Company,Inc. l/S 30Vd U'JdFO:*K)-S2-AVK -SVZS G99 SOC '-imW H1R0S dO AilO :A8 1N3S 11.VENUE;CHOICE OF LAW. 11.1.In any action to enforce this Agreement,venue shall bein the state circuit court for the Eleventh Judicial Circuit.Federal law and the law of the State of Floridashallapply. 12.CAPTIONS. 12.1.Captionsareusedinthis Agreement forconvenienceonly.They shallnotbeappliedforthepurposes of applyingthe provisions of thisAgreement or interpreting theintent of theparties. Dated this:June 5'2001 Attest:CITY OF SOUTH MIAMI icy CleTk O Approved astoformand Legal Sufficiency: ^t._/C &tfjJsj^ City Attorney Attest: By:C^ Charles D.Scurr,City Manager BAUDE CONSTRUCTION COMPANY, INC. ->Ulf.\uys,M By: Corporate Secreta [Print Name] "X. [Print Name] [CORPORATE SEAL] Its:v .-.•-.wV [Print Corporate Title] 119 30Vd Page 5 of6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. !Ncttf):?10-S2-AVK !SfC9 G99 SOC illWIW HlflOS JO A1I3 :AQ 1N3S STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before mc this \\\day of May, 2001,by ^y,C\i.V'\f.X^,as "U...v i c )-.for Baude Construction Company,Inc. r f\VIVIAN RODRIGUEZ^^fiSTy MY COMMISSION #CCWIlfl ^Tm^T EXPIRES:Feb H.2004 1-800-3-NOTARY Fin NotarySotvloe &BoOcJnfl Co NOTARYWBUC Commission Expiration: PersonallyKnown V-'OR Produced Identification (Ty/?e ofidentification) ///^nvn Page6 of6 Release Agreement Between City ofSouth Miami and Baude Construction Company.Inc. ipMt'O^f KJ-S2-AVN !9fG9 G99 SOG •'ifi'VIPJ HinOSJO A1I0 -"AG 1N3S Jun 05 01 11:33a Buade Construction 305 234 5559 FINAL RELEASE OF LIEN KNOW ALL MEN BY THESE PRESENTS: That the undersigned,forandin consideration of payment inthe sum of $10.00,paid by Buade Construction Company,Inc.in receipt of which is hereby acknowledged,hereby releases and quit claims to the said party its successors and assigns,and City of South Miami .the owner,all liens,lien rights,claims or demands of any kind whatsoever,which the undersigned now has or might have againstthebuildingor.premises legally described as: Multipurpose Building 6701 SW58P1. Miami,Fla on account of labor performed and/or material furnished for the construction of any improvements thereon.That all labor and materials used bythe undersigned inthe erection of said improvements have been fully paid for. ::WAcc\iNatureofwork &-A IN WITNESS WHEREOF,I have hereunto set my hand seal this 6?day of __SL}'~£,-&<30O) WITNESSES Signature Print Name (MpdmmA STATE OF FLORIDA COUNTYOF i>2ob Sworn to and subscribed before mc this Notary Seal: 6 day of Signature DAVID BENE/r^h-Acjerrt Print Name and Title CORPORATE SEAL ic of Florida \A0Tm »issi0N#cc j|t*:n U E)-•''-'•••June 13,2.-.^toaiyPubfcUnderwriters \ '—•"'""":--:-':-- 7^5927 2002 p.3 CITY OF SOUTH MIAMI INTER-OFFICE MEMORANDUM To:MayorandCity Commission Date:June 1,2001 From:Charles D.Scurr City Manager Agenda Item # Re:Comm.Mtg.06/0572001 Additional compensation for Baude Construction Company,Inc./ Multipurpose Center Phase1 '05/2 REQUEST: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA, RELATING TO AUTHORIZING THE CITY ADMINISTRATION TO DISBURSE TO BAUDE CONSTRUCTION COMPANY,INC.A SUM NOT TO EXCEED S64,888.00 FROM ACCOUNT NUMBER 001-0000-132-2050, WHICH IS ENTITLED "MURRAY PARK SURPLUS LOCAL MATCH/HOSPITAL CONTRIBUTION"AND, PROVIDING FOR AN EFFECTIVE DATE. BACKGROUND &ANALYSIS: For the City ofSouth Miami the Multipurpose Center Phase 1represents a significant capital improvement built in a number of years.The project was designed by Architectural Design Consortium,Inc.,one of the Architect/Engineer team under contract with the City for miscellaneous services.The City Commission through an open competitive bidding process awarded the construction contract to the lowest responsive bidder, Baude Construction Company,Inc. A number of unexpected and unforeseen problems were encountered during the construction period,which resulted in extensive delays in completing the project.The Contractor has submitted a claim for additional compensation for the delay.The administration has evaluated the validity of the claim,and has determined that causes for delays are multiple. The Contract allows the City to assess the Contractor liquidated damages for delays not caused by the Contractor.The process of assigning blame will be long unproductive,expensive and a divisive process which willnot serve the interest of the City. Itis the intent of the administration to amicably resolve the claim and closeout the project in a non- confrontational manner.The Administration and the Contractor have negotiated a full and final settlement amount of $64,888.00 for all claims related to Multipurpose Center Phase 1 that the Contractor may have against the City.The funds will be drawn from "Murray Park Surplus Local Match/Hospital Contribution" account number 011-0000-132-2050.This account will have a balance inexcessof $500,000. RECOMMENDATION:Approval. Attachments: Proposed ResolutionforAdoption Proposed Release Agreement £ \ rc *'"* RELEASE AGREEMENT BETWEEN CITY OF SOUTH MIAMI AND BAUDE CONSTRUCTION COMPANY,INC. Whereas,theCity of SouthMiamiandBaudeConstructionCompany,Inc., (referred toas 'Contractor1')enteredintoacontractforthe construction of theCity of South Miami Multi-Purpose Cultural Center—Phase I;and, Whereas,the project is substantially complete;and. Whereas,delaysin construction haveoccurredwhichhavegivenrisetoclaimsby the Contractor fordelay damages and claims bytheCity for liquidated damages;and, Whereas,both parties havenegotiatedafairandfinal settlement of the claims underthetermsand conditions statedinthisAgreement. Now,therefore,this Agreement is entered into between theCityof South Miami and Baude Construction Company,Inc.,in and for the consideration often dollars ($10.00), the mutual covenants contained in this Agreement,andother lawful consideration,the receipt andlegal sufficiency of which is acknowledged byboth parties. I.WHEREAS CLAUSES. 1.1.The above Whereas clauses are incorporated into this Agreement. 2.PAYMENT. 2.1.Within ®days of approval of this Agreement by the City Commission for the City of South Miami,the City will pay the Contractor $64,888.00 in full and final satisfaction of all claims the Contractor might have against the City. 3.RELEASES. 3.1.The Contractor for itself and its principals,directors,officers successors and assigns,hereby releases the City and its commissioners,directors' officers,employees,agents and representatives from anyand all claims,including but not limited to claims for damages for breach of contract,tort or statutory liability,equitable claims,and claims for profits,expenses and costs,that they had, Page I of6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. Z 39Vd 'Wde0=f KJ-SS-AVH -5^9 C99 S0G JlWVIM HinOS dO A1I0 =Aa 1N3S have,ormighthaveontheeffectivedateofAgreementarisingoutthecontractfor the construction of theCity of South Miami Multi-Purpose Cultural Center— Phase I;provided,however,the Contractor does not release the City from any claim for final payment under the construction contract. 3.2.The City for itself and its commissioners,directors,officers, employees,agents,representatives,successorsandassigns,releasestheContractor andits principals,directors and officers fromanyandall claims for liquidated damagesfordelay of performanceundertheconstructioncontract;provided, however,this release does not excuse the Contractor or the Surety from completing performance underthe construction contract andthebond,anddoes notchange,alterormodifyanywarrantiesinfavor of theCity. 3.3.ByagreeingtoreleasetheContractorfromclaimsforliquidated damagestheCitydoesnotrelease,andherebypreservesallclaimsagainst,other parties whoare not apartytothe construction contract. 4.RELEASE OF LIENS. 4.1.TheContractorshallcausetheclaim of lienfiledbyGaleInsulation of SouthFlorida,Inc.,intheamountof $1710.00,andrecordedonNovember27, 2000atOfficialRecordsBook 19378,Page 1692,tobereleased.TheContractor shall give the City an affidavit attesting that there are no liens on the property arising out of the work performed by the Contractor.This requirement is independent ofthe releases provided in this Agreement butisa condition precedentforobtainingpaymenttotheContractor. 5.ENFORCEMENT. 5.1,This Agreement may be enforced by either party only by means of declaratory judgment,mandamus,injunction or other equitable relief.In any litigation to enforce this Agreement the prevailing party shall be entitled to payment of reasonable attorney's fees,paralegal expenses,investigative expenses and costs.The City does not waive its sovereign immunity,and shall not be liable to the Contractor,for damages,prejudgment interest or attorney's fees. Page2 of6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. B 39Vd -Wdeo:*KJ-S2-AVW -SWd 899 S0G -IWVIW H1H0S dO AIM :A9 1N3S 6.EFFECTIVE DATE. 6.1.ThisAgreementshallbefirstexecutedbytheContractorandshall become elfective upon execution bytheCity Manger. 7.NOTICE. 7.1.Any notice under this Agreement shall be given in writing by U.S. mailorbyhanddeliveryto: The City of South Miami: CharlesD.Scurr,CityManager City of South Miami 6143 Sunset Drive South Miami,Florida 33143 Telephone:(305)663-6338 Facsimile:(305)663-6345 and Earl G.Gallop,General Counsel NaginGallop&Figueredo,PA. 3225 Aviation Avenue,Suite 301 Miami,Florida 33133 Telephone:(305)854-5353 Facsimile:(305)854-5351 BaudeConstructionCompany,Inc.: 12177 S.W.131st Avenue Miami,Florida 33186 Telephone:(305)234-5256 Facsimile:(305)234-5559 Page3 of 6 Release Agreement Between City of South Miami and Baude Construction Company,inc. Lit 39Vd -Wdf0:f KJ-SS-AVW -5?e9 G99 S0C 'IWVIW HinOS dO A1I3 =AQ 1N3S 8.ENTIRE AGREEMENT. 8.1.This Agreement contains the entire understanding and agreement of the parties.All negotiations,understandings and agreements pertaining to the subject matter of this agreement are merged herein.This Agreement can be amended only by a written amendment which must be approved by the City Commission of theCity of SouthMiami. 9.SEVERABILITY. 9.1.In the event that any term or provision of this Agreement is determined by judicial authority tobe illegal or otherwise invalid,whenever possible,and subject to the court's approval,such provision shall be given its nearest legal meaning.The remainder ofthis Agreement shall continue in full force and effect.Further,it is expressly understood by all parties that this Agreement has been drafted equally by both parties and that this Agreement is a compilation of the terms and conditions contemplated by each party to the Agreement.Accordingly,in any dispute with respect to any part of this Agreement,including not limited to,the language,definition,phrasing or meaning contained herein,the matter shall not be construed against either party on the basis of authorship. 10.WARRANTIES. 10.1.Non-Assignment.The parties warrant that they have not assigned any rights,claims or causes of action under the construction contract to any person.For any breach of this provision,the breaching party will indemnify, defend and hold the non-breaching party harmless from any demand,claim or expense asserted bya person to whom a right,claim or cause of action has been assigned. 10.2.Authority to Bind.The persons signing this Agreement warrant that they represent the party that on whose behalf they execute this Agreement,and they have the authority to bind the party they represent to the terms and conditions of this Agreement. Page4 of6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. LIS 39Vd 'mW-V LO-Sc'-AVW -5*69 C99 SOG -IWVIW H1H0S dO A1I0 :A8 1N3S 11.VENUE;CHOICE OF LAW. 11.1.InanyactiontoenforcethisAgreement,venueshallbeinthestate circuitcourtforthe Eleventh Judicial Circuit.Federal lawandthelawofthe State of Florida shallapply. 12.CAPTIONS. 12.1.Captions are used in this Agreement for convenience only.They shall not be applied for the purposes of applying the provisions of this Agreement orinterpretingtheintent of theparties. Datedthis:May,2001. Attest:CITY OF SOUTH MIAMI ff)psZTf*~j J&tsl&iSi City Clerk ApprovedastoformandLegal Sufficiency: City Attorney Attest: CharlesD.Scurr,CityManager BAUDE CONSTRUCTION COMPANY, INC. By:. Corporate Secretai [Print Name][Print Name] 4 \J2L&L C 7 By:_C [CORPORATE SEAL] •'VVg.Ct XvOQ VIts [Print Corporate Title] z/9 aovd Page5 of6 Release Agreement Between City of South Miami and Baude Construction Company,Inc. 'mvo'-v iQ-sz-wn •S^B9 C99 SOB •'iwviw Hinos do aiio '-as iNds v. i 't::'i '' 'i ji '(—""*• •:•;." \,.*M V •':."''• jf.t,'.'••.41 •;.•• v.\ V) '/.vfT. \ \..>v>$.^J^ v\:r".'.i >-J,,^/..M....r;,;/y>J*d' •.•.•:•?•;• STATEOFFLORIDA COUNTYOFMIAMI-DADE Theforegoinginstrumentwasacknowledgedbeforemcthis3\dayofMay, 200Lby3^^U^Z^J^_,as_^^1_4^_forBaude ConstructionCompany,Inc. tana%VIVIANRODRIGUEZ 9M»„MYCOMMISSION#CCW\10 ^J^jrEXPIRES:Feb8,2004 1-600-3-NOTARYFlaNotarySmlC€>jiBondhoCo._j PersonallyKnownY* NOTARYTOBLIC CommissionExpiration: ORProducedIdentification (TypeofIdentification) LIL39Vd Page6of6 ReleaseAgreementBetweenCityofSouthMiamiand BaudeConstructionCompany,Inc. !Ndtt>:t>W-SZ-Am•SVC9G99S0e•INVIWHinOSdOA1I0=A91N3S