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2012-27872 Reso RESOLUTION NO. 2012-27872 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,AMENDING RESOLUTION NO.2011-27809, WHICH AUTHORIZED THE CITY MANAGER TO TAKE CERTAIN ACTIONS PERTAINING TO THE "BISCAYNE POINT RIGHT-OF-WAY IMPROVEMENTS PROJECT" (THE PROJECT) INCLUDING: 1.) TO PROCURE,VIA NEGOTIATION WITH THE FIRM OF DAVID MANCINI AND SONS, INC. (DMSI), CERTAIN NECESSARY DESIGN AND CONSTRUCTION SERVICES THROUGH A DESIGN-BUILD CONTRACT WITH A GUARANTEED MAXIMUM PRICE (GMP) AND, IF SUCCESSFUL, EXECUTE SUCH CONTRACT; AND 2.) CONCURRENT THEREWITH, TO TERMINATE, FOR CONVENIENCE, THE CITY'S CURRENT CONTRACT WITH DMSI FOR CONSTRUCTION (ONLY) OF THE PROJECT (THE FORMER CONTRACT), PURSUANT TO INVITATION TO BID NO.07-10/11 (ITB), AND ENTER INTO AND EXECUTE A SETTLEMENT AGREEMENT WITH DMSI FOR THE FORMER CONTRACT;ALL,IN THE APPROVED NOT TO EXCEED AMOUNT(INCLUDING DESIGN-BUILD CONTRACT GMP AND SETTLEMENT AGREEMENT AMOUNTS) OF $11,998,535; SAID AMENDMENT HEREIN REQUESTING THE MAYOR AND CITY COMMISSION AUTHORIZE AN INCREASE TO THE NOT TO EXCEED AMOUNT APPROVED UNDER RESOLUTION NO. 2011-27809, FROM $11,998,535, TO $17,102,487, WITH THE NEW TOTAL TO BE BROKEN DOWN AS FOLLOWS: 1.) APPROVING A NEW GMP FOR THE DESIGN- BUILD CONTRACT WITH DMSI, IN THE AMOUNT OF$11,151,240(WHICH NEW AMOUNT WILL NOT ONLY INCLUDE THE REMAINING WATER, STORMWATER, LANDSCAPE AND STREETSCAPE IMPROVEMENTS UNDER THE FORMER CONTRACT,BUT ALSO NECESSARY ADDITIONAL SCOPE OF WORK RECOMMENDED BY THE CITY'S PUBLIC WORKS DEPARTMENT(PWD)AND BISCAYNE POINT RESIDENTS,AS WELL AS FACTOR IN THE ASSUMED CONTRACTOR "RISK" TYPICALLY ASSOCIATED WITH, AND BUILT INTO, DESIGN-BUILD CONTRACTS); AND 2.) APPROVING A NEW AMOUNT FOR THE SETTLEMENT AGREEMENT, OF $5,951,247, WHICH INCLUDES PAYMENT FOR ALL WORK PERFORMED UNDER THE FORMER CONTRACT,THROUGH THE FINAL COMPLETION DATE ESTABLISHED IN THE SETTLEMENT AGREEMENT, AS WELL AS PAYMENT FOR APPROVED CHANGE ORDERS AND CREDITS (EXECUTED AS OF THE EFFECTIVE DATE OF THE SETTLEMENT AGREEMENT),AND AGREED UPON COMPENSATION FOR DMSI'S ALLEGED DELAY AND OTHER CLAIMS;WITH PREVIOUSLY APPROPRIATED FUNDING, IN THE AMOUNT OF $2,843,892; APPROPRIATING $562,047 FROM WATER OPERATING FUND 425 CAPITAL RESERVES; RE-APPROPRIATING $855,599 FROM PROJECT SAVINGS IN FUND 423 GULF BREEZE 2006, FROM THE COMPLETED NAUTILUS NEIGHBORHOOD RIGHT-OF-WAY IMPROVEMENT PROJECT; APPROPRIATING$575,869 FROM FUND 427 STORMWATER OPERATING CAPITAL RESERVES; RE-APPROPRIATING$1,995,007 IN STORMWATER SERIES 2011 BONDS FUNDS, PREVIOUSLY APPROPRIATED FOR NORMANDY ISLE, NORMANDY SHORES, AND NAUTILUS NEIGHBORHOODS RIGHT-OF-WAY IMPROVEMENT PROJECTS, FOR THE BISCAYNE POINT NEIGHBORHOOD RIGHT-OF-WAY Page 1 of 4 IMPROVEMENTS PROJECT; APPROPRIATING $468,433 IN CAPITAL RESERVE FUNDS FOR INCREASED ESTIMATES FOR ABOVE GROUND COSTS FROM ORIGINAL ESTIMATES; AND FURTHER RE- APPROPRIATING$355,645 FROM CAPITAL RESERVE FUNDS TO PAY AS YOU GO FUNDS FOR ADDITIONAL ABOVE-GROUND SCOPE FOR THE BISCAYNE POINT NEIGHBORHOOD RIGHT-OF-WAY IMPROVEMENTS PROJECT; ALL FOR A TOTAL AMOUNT OF $7,656,492. WHEREAS, on November 30, 2010, Invitation to Bid No. 07-10/11 for the Biscayne Point Neighborhood Right-of-Way Improvements Project(the Project)was issued, with an opening date of January 27, 2011 (the ITB or the Bid); and WHEREAS,on March 9, 2011, the Mayor and City Commission adopted Resolution No. 2011-27621, approving and authorizing the Mayor and City Clerk to execute a construction contract with David Mancini & Sons, Inc. (DMSI or Contractor), as the successful bidder pursuant to the ITB, and also authorized the Administration to engage in value engineering to further reduce the cost and time for completion of said Project (the Construction Contract); and WHEREAS, the Construction Contract was fully executed on April 4, 2011; and WHEREAS, the first Notice-to-Proceed (NTP) was issued to Contractor on May 5, 2011; and WHEREAS, on December 14, 2011, the Mayor and City Commission approved Resolution No.2011-27809, attached and incorporated as Exhibit"A"hereto, approving the findings of the Administration that a public emergency existed for purposes of waiving the bidding requirements under the"Consultant's Competitive Negotiation Act"(or CCNA), and authorized the City Manager to proceed with the following course of action relative to the Project: 1)prepare a Design Criteria Package (DCP)which complies with the specifications set forth under F.S. 287.055(2)(j), whether through the City's Public Works Department or through retention of an outside Design Criteria Professional, as determined by the City Manager; 2) upon completion of the DCP, negotiate and, if successful, execute a Design- Build contract in a not-to-exceed amount [essentially, the equivalent of a Guaranteed Maximum Price (GMP)] for the remaining water, stormwater, landscape and streetscape improvements for the Project with DMSI; 3)terminate,for convenience,the remaining portion of the current Construction Contract with DMSI, and enter into and execute a settlement agreement and release of all claims against the City under such Contract, as a condition to the City and DMSI's execution of the negotiated Design-Build contract; and 4)capping the total sum of the combined negotiated Design-Build contract and the negotiated settlement of the existing Construction Contract, at$11,998,535; and WHEREAS, the Administration commenced with the preparation of the Settlement Agreement, Design-Build contract (DB Contract), and the DCP (with PWD as the Design Criteria Professional, on behalf of the City); and WHEREAS, upon receipt of the aforementioned documents, the Administration commenced negotiations with DMSI to finalize the DB Contract and Settlement Agreement terms and conditions; define the scope of work to be completed to close-out the former Construction Contract, and the scope for the new DB Contract; finalize evaluations and estimates for the additional scope of work requested by PWD; and evaluate and address infrastructure improvements suggested by DMSI, additional plan errors, and community requests for incorporation into the DB Contract; and Page 2 of 4 WHEREAS, DMSI's initial cost estimate for design-build of the Project was approximately$22.9-Million; and WHEREAS, at its regular meeting on February 24, 2012, the Administration provided the City Commission with a status of the negotiations,and was directed to continue negotiations and return, in March 21, 2012, with the final negotiated Settlement Agreement and DB Contract; and WHEREAS, the CIP Office partnered with PWD to clearly define the scope of work elements that would be included in the negotiated DB Contract to effectively negotiate all required added scope of work with DMSI; and WHEREAS, negotiations have resulted in a total contract value of $17,700,000, which includes the cost of previously approved JOC's, in the amount of $597,512; the Design-Build GMP of$11,151,240; and the Settlement Agreement amount of$5,951,247; and WHEREAS,the DB Contract GMP includes the construction costs for the remaining scope of work from the Construction Contract and negotiated additional scope of work, as well as soft costs for architectural/engineering services,construction administration services, and a consideration for risk; and WHEREAS, the Settlement Agreement amount includes the cost to terminate the Construction Contract; a shared savings (50/50)for the deletion of the two (2) stormwater pump stations; other credits for deleted scope of work; and an amount of $1,500,000 for settlement of alleged delay and other claims which might be asserted by DMSI against the City; and WHEREAS,the settlement of claims and delays was negotiated in the best interest of the City, upon consideration of the City's overall potential exposure and in order to avoid litigation with the Contractor and further delays to the Project; and WHEREAS,the Administration is requesting an increase to the Project professional services budget, in the amount of $1,067,000, necessary to supplement the Project construction; and WHEREAS, the total additional funding required for the Project is $7,656,492 (of which $2,843,892 is currently available in the Project's capital budget); and WHEREAS, the Administration recommends that the Mayor and City Commission approve the requested amendment to Resolution No. 2011-27809, requesting that the amount for the actions required under such Resolution be increased from the former approved total of$11,998,535, to$17,102,487, as required and recommended herein, and in order to 1.)terminate the Construction Contract for convenience(the Former Contract);2.) execute the Settlement Agreement for the Former Contract; and 3.) concurrent therewith, execute the new DB Contract. Page 3 of 4 NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby, amend Resolution No. 2011-27809, which authorized the City Manager to take certain actions pertaining to the"Biscayne Point Right-of-Way Improvements Project"(the Project) including: 1.) to procure, via negotiation with the firm of David Mancini and Sons, Inc. (DMSI), certain necessary design and construction services through a Design-Build Contract with a Guaranteed Maximum Price(GMP)and, if successful,execute such contract;and 2.) concurrent therewith,to terminate,for convenience,the City's current contract with DMSI for construction(only)of the Project(the Former Contract), pursuant to Invitation to Bid No. 07- 10/11 (ITB), and enter into and execute a Settlement Agreement with DMSI for the Former Contract; all, in the approved not to exceed amount(including Design-Build Contract GMP and Settlement Agreement amounts)of$11,998,535;said amendment herein requesting the Mayor and City Commission authorize an increase to the not to exceed amount approved under Resolution No. 2011-27809,from $11,998,535, to$17,102,487,with the new total to be broken down as follows: 1.) approving a new GMP for the Design-Build Contract with DMSI, in the amount of$11,151,240(which new amount will not only include the remaining water, stormwater, landscape and streetscape improvements under the Former Contract, but also necessary additional scope of work recommended by the City's Public Works Department (PWD) and Biscayne Point residents, as well as factor in the assumed contractor "risk" typically associated with, and built into, design-build contracts); and 2.) approving a new amount for the Settlement Agreement, of $5,951,247, which includes payment for all work performed under the Former Contract,through the final completion date established in the Settlement Agreement, as well as payment for approved change orders and credits (executed as of the Effective Date of the Settlement Agreement), and agreed upon compensation for DMSI's alleged delay and other claims;with previously appropriated funding, in the amount of$2,843,892; appropriating $562,047 from Water Operating Fund 425 capital reserves; re-appropriating $855,599 from project savings in Fund 423 Gulf Breeze 2006, from the completed Nautilus Neighborhood Right-of-Way Improvement Project;appropriating$575,869 from Fund 427 Stormwater Operating Capital Reserves;re- appropriating$1,995,007 in Stormwater Series 2011 Bonds Funds, previously appropriated for Normandy Isle, Normandy Shores, and Nautilus Neighborhoods Right-of-Way Improvement Projects, for the Biscayne Point Neighborhood Right-of-Way Improvements Project; appropriating$468,433 in Capital Reserve Funds for increased estimates for above ground costs from original estimates; and further re-appropriating $355,645 from Capital Reserve Funds to Pay As You Go Funds for additional above-ground scope for the Biscayne Point Neighborhood Right-of-Way Improvements Project; all for a total amount of $7,656,492. PASSED and ADOPTED this ��S� day of M IBC 2012. ATTEST: z poutcLa- ROBERT PARCHER, CITY CLERK �� g� TI HERIkERA BOWER, MAYOR JMG/DB/FV \P. ........,,q�y TAAGENDA\2012\3-21-12\Biscayne Point DB G i10pop P ontract-RESO.doc APPROVED AS TO FORM&LANGUAGE 9'4Cj.j'26'" &FOR EXECUTION Page 4 of 4 ... -.-- City Attom0% Oats COMMISSION ITEM SUMMARY Condensed Title: A Resolution of the Mayor and City Commission of the City of Miami Beach, Florida,amending Resolution No.2011-27809, which authorized the City Manager to take certain actions pertaining to the "Biscayne Point Right-of-Way Improvements Project"(the Project)including: 1.)to procure, via negotiation with the firm of David Mancini and Sons, Inc. (DMSI), certain necessary design and construction services through a Design-Build Contract with a Guaranteed Maximum Price(GMP)and,if successful,execute such contract;and 2.)concurrent therewith,to terminate,for convenience,the City's current contract with DMSI for construction(only)of the Project(the Former Contract), pursuant to Invitation to Bid No.07-10/11 (ITB),and enter into and execute a Settlement Agreement with DMSI for the Former Contract; all, in the approved not to exceed amount (including Design-Build Contract GMP and Settlement Agreement amounts) of $11,998,535; said amendment herein requesting the Mayor and City Commission authorize an increase to the not to exceed amount approved under Resolution No. 2011-27809,from$11,998,535,to$17,102,487,with the new total to be broken down as follows: 1.)approving a new GMP for the Design-Build Contract with DMSI, in the amount of$11,151,240(which new amount will not only include the remaining water,stormwater,landscape and streetscape improvements under the Former Contract,but also necessary additional scope of work recommended by the City's Public Works Department(PWD)and Biscayne Point residents,as well as factor in the assumed contractor"risk"typically associated with,and built into,design-build contracts);and 2.)approving a new amount for the Settlement Agreement,of$5,951,247,which includes payment for all work performed under the Former Contract,through the final completion date established in the Settlement Agreement,as well as payment for approved change orders and credits (executed as of the Effective Date of the Settlement Agreement),and agreed upon compensation for DMSI's alleged delay and other claims;with previously appropriated funding,in the amount of$2,843,892;appropriating$562,047 from Water Operating Fund 425 capital reserves;re-appropriating$855,599 from project savings in Fund 423 Gulf Breeze 2006,from the completed Nautilus Neighborhood Right-of-Way Improvement Project; appropriating $575,869 from Fund 427 Stormwater Operating Capital Reserves;re-appropriating$1,995,007 in Stormwater Series 2011 Bonds Funds,previously appropriated for Normandy Isle, Normandy Shores, and Nautilus Neighborhoods Right-of-Way Improvement Projects, for the Biscayne Point Neighborhood Right-of-Way Improvements Project;appropriating$468,433 in Capital Reserve Funds for increased estimates for above ground costs from original estimates;and further re-appropriating$355,645 from Capital Reserve Funds to Pay As You Go Funds for additional above-ground scope for the Biscayne Point Neighborhood Right-of-Way Improvements Project;all for a total amount of$7,656,492. Key Intended Outcome Supported: Ensure well designed quality capital projects. Supporting Data (Surveys, Environmental Scan, etc.): Completed Capital Improvement Projects are a key positive driver in resident perceptions on overall quality of life.The 2009 Customer Satisfaction Survey indicated that 51.8%and 85.0%of North-Beach residents rated storm drainage and landscape maintenance in right-of-ways and public areas as excellent or good, respectively. Completing this Project will add to the needed upgrades in this area and improve overall rating. Issue: Shall the Mayor and City Commission approve the Resolution? Item Summa /Recommendation: On December 14,2011,the Mayor and City Commission approved Resolution No.2011-27809 authorizing the City Manager to prepare a Design Criteria Package(DCP);to negotiate and execute a Design-Build Contract with a Guaranteed Maximum Price(GMP),for the remaining Biscayne Point Neighborhood Right-of-Way Improvements scope of work,with David Mancini and Sons,Inc.(DMSI);to terminate,for convenience,the remaining portion of the current construction Contractwith DMSI and enter into and execute a Settlement Agreement where the combined total of the negotiated Design-Build GMP and the Settlement Agreement would not exceed $11,998,535. All these actions being necessary to rectify a deficient set of construction documents,implement DMSI's two(2)pump station value engineering proposal,requested by PWD;and to keep the Project moving forward while minimizing delays and impacts to the safety and welfare of the residents.The Administration also advised the City Commission of additional scope of work elements,requested by PWD,that were under evaluation and for which funding would need to be identified and procured either via JOC or as part of the proposed Design-Build Contract. The Administration commenced with the preparation of Settlement Agreement, Design-Build Contract, and the DCP, using PWD as the Design Criteria Professional. Draft copies of the DCP, Design-Build Contract and Settlement Agreement were issued to DMSI in early January 2012 where DMSI raised concerns with the contract language and additional scope of work introduced by the DCP,that was not in the original Contract,and would increase the hard costs,soft costs,and assumed risk for the Project. DMSI's initial cost estimate based on their initial review and interpretation of the Design-Build Contract language, the DCP, and the added owner/resident requests was approximately$22.9-Million. The Administration determined that negotiation of a Design-Build Contract was no longer feasible within the parameters previously authorized by the Mayor and City Commission.As such,on February 8,2012,the Administration updated the City Commission of the ongoing negotiations and was directed to continue negotiations and return in March 21,2012 with the final negotiated Settlement Agreement and Design-Build Contract.To meet the directive, the CIP Office partnered with PWD to clearly define the scope of work elements that would be included in the negotiated Design-Build Contract to effectively negotiate all required added scope of work with DMSI. Further negotiations resulted in a total DMSI contractual value of $17,700,000,which includes the cost of the previously approved JOCs in the amount of$597,512,the Design-Build GMP of $11,151,240 and a Settlement Agreement amount of$5,951,247. The Design-Build Contract GMP includes the construction costs for the remaining scope of work from the original Contract and negotiated scope of work and soft costs for architectural/engineering services,construction administration services,and a consideration for risk.The Settlement Agreement amount includes the cost to terminate the current construction contract;a shared savings 50/50 for the deletion of the two 2 stormwater pump stations;other credits for deleted scope of work;and MIAMIBEACH Page 1 of 2 AGENDA ITEh9 R7 E DATE S-Zl-11, an amount of$1,500,000 for settlement of alleged claims and delays primarily associated with the inability to commence with the construction of the Project stormwater improvements; which was negotiated, in the best interest of the City, upon consideration of the City's overall exposure and in order to avoid litigation with the Contractor and further delays to the Project. In addition, the Administration is requesting an increase to the Project professional services budget, in the amount of $1,067,000, necessary to supplement to the Project construction. The total funding required for the Project to $7,656,492, of which $2,843,892 is currently available in the Project's capital budget and requiring additional funding for a $4,812,600 shortfall. Funding the additional costs of this Project will reduce funding available to be considered through the Capital Review process for FY 2012/2013.Notwithstanding,it has always been the City's practice to first, fully fund any shortfalls identified in active projects prior to allocating to new or projects where construction has not been awarded or begun. The Administration recommends amending Resolution No.2011-27809,to authorize an increase to the not to exceed amount approved under Resolution No. 2011-27809, from $11,998,535, to $17,102,487, with the new total to be broken down as follows: 1.)approving a new GMP for the Design-Build Contract with DMSI,of$11,151,240(which new amount will not only include the remaining water, stormwater, landscape and streetscape improvements under the Former Contract, but also necessary additional scope of work recommended by the City's Public Works Department (PWD) and Biscayne Point residents,as well as factoring in the assumed contractor"risk"typically associated with and built into design-build contracts); and 2.)approving a new amount for the Settlement Agreement of$5,951,247,which includes payment for all work performed under the Former Contract,through the final completion date established in the Settlement agreement,as well as payment for approved change orders and credits (executed as of the Settlement Effective Date), and agreed upon compensation for DMSI's alleged delay and other claims. Advisory Board Recommendation: Financial Information: Source of Amount Account Funds: { $184,657 Fund 376 - 99 GO Bonds Neighborhood Improvements, Account No. 376-2321- 069357—Construction 2 $491,587 Fund 384-2003 GO Bonds Neighborhood Improvements,Account No.384-2321- 069357—Construction 3 $60,000 Fund 302-Pay As You Go,Account No.302-2321-069357-Construction .4 $339,893 Fund 302-Pay As You Go,Account No.302-2321-000356-Contingency 5 $53,976 Fund 420-W&S Gulf Breeze Loan Series 2010,Account No.420-2321-069357- Construction 6 $288,076 Fund 420-W&S Gulf Breeze Loan Series 2010,Account No.420-2321-000356- Contingency 7 $161,795 Fund 428 - Stormwater Bonds 2000S, Account No. 428-2321-069357 - Construction 8 - $5,290 Fund 428-Stormwater Bonds 2000S,Account No.428-2321-061357-Design 9 $685,487 Fund 431 Stormwater Series 2011 Bonds, Account No. 431-2321-069357 Construction r 10 $573,131 Fund 431 - Stormwater Series 2011 Bonds, Account No. 431-2321-000356 - Conlin enc 1 1 11 $468,433 Fund 304-Capital Reserve OBPI 12 $855,599 Fund 423-Gulf Breeze 2006,Account No.423-2282-000356—Contingency(Re- aoorooriatina from Nautilus 13 $562,047 Fund 425-Water Operating Capital Reserves 14 $856,554 Fund 431-Stormwater Series 2011 Bonds,Account No. 431-2323-069357(Re- - appropriated from Normandy Shores Project 15 $773,227 Fund 431 -Stormwater Series 2011 Bonds,Account No. 431-2323-000356(Re- appropriat ed from Normandy Shores Project 16 $154,770 Fund 431 -Stormwater Series 2011 Bonds,Account No.431-2285-000356(Re- appropriated from Normandy Isle Promect 17 $19,110 Fund 431 -Stormwater Series 2011 Bonds,Account No.431-2285-069355(Re- appropriated from Normandy Isle Project 18 $24,126 Fund 431 -Stormwater Series 2011 Bonds,Account No.431-2285-069351 (Re- appropriated from Normandy Isle Pro'ect 19 $167,220 Fund 431 -Stormwater Series 2011 Bonds,Account No.431-2282-069351 (Re- appropriated Nautilus 19 $355,645 Fund 302-Pay As You Go 20 $575,869 Fund 427-Stormwater Operating Capital Reserve Total $7,656,492 Financial Impact Summary: City Clerk's Office Legislative Tracking: Fernando Vazquez, P.E., Ext. 6135 Sign-Offs: De art n irector Assistant City Manager City Mailager F DB JMG JMG/DB/FV T!AGFNDA,201213-2 i-I ZSiscayne Point DB GIMFIBiscayne Pain[-DS G[v1P Cc [mcr-SUNIP,IARY.dcc Page 2 of 2 ® MIAMI BEACH City of Miami Beath, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti H. Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: March 21, 2012 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING RESOLUTION NO. 2011-27809, WHICH AUTHORIZED THE CITY MANAGER TO TAKE CERTAIN ACTIONS PERTAINING TO THE "BISCAYNE POINT RIGHT-OF-WAY IMPROVEMENTS PROJECT"(THE PROJECT)INCLUDING: 1.)TO PROCURE, VIA NEGOTIATION WITH THE FIRM OF DAVID MANCINI AND SONS, INC. (DMSI),CERTAIN NECESSARY DESIGN AND CONSTRUCTION SERVICES THROUGH A DESIGN-BUILD CONTRACT WITH A GUARANTEED MAXIMUM PRICE (GMP) AND, IF SUCCESSFUL, EXECUTE SUCH CONTRACT; AND 2.)CONCURRENT THEREWITH,TO TERMINATE, FOR CONVENIENCE,THE CITY'S CURRENT CONTRACT WITH DMSI FOR CONSTRUCTION(ONLY)OF THE PROJECT(THE FORMER CONTRACT),PURSUANT TO INVITATION TO BID NO. 07-10/11 (ITB), AND ENTER INTO AND EXECUTE A SETTLEMENT AGREEMENT WITH DMSI FOR THE FORMER CONTRACT; ALL, IN THE APPROVED NOT TO EXCEED AMOUNT(INCLUDING DESIGN-BUILD CONTRACT GMP AND SETTLEMENT AGREEMENT AMOUNTS) OF $11,998,535; SAID AMENDMENT HEREIN REQUESTING THE MAYOR AND CITY COMMISSION AUTHORIZE AN INCREASE TO THE NOT TO EXCEED AMOUNT APPROVED UNDER RESOLUTION NO.2011-27809, FROM$11,998,535,TO$17,102,487,WITH THE NEW TOTAL TO BE BROKEN DOWN AS FOLLOWS: 1.) APPROVING A NEW GMP FOR THE DESIGN-BUILD CONTRACT WITH DMSI, IN THE AMOUNT OF $11,151,240 (WHICH NEW AMOUNT WILL NOT ONLY INCLUDE THE REMAINING WATER,STORMWATER, LANDSCAPE AND STREETSCAPE IMPROVEMENTS UNDER THE FORMER CONTRACT, BUT ALSO NECESSARY ADDITIONAL SCOPE OF WORK RECOMMENDED BY THE CITY'S PUBLIC WORKS DEPARTMENT (PWD) AND BISCAYNE POINT RESIDENTS, AS WELL AS FACTOR IN THE ASSUMED CONTRACTOR "RISK" TYPICALLY ASSOCIATED WITH, AND BUILT INTO, DESIGN-BUILD CONTRACTS); AND 2.) APPROVING A NEW AMOUNT FOR THE SETTLEMENT AGREEMENT, OF $5,951,247, WHICH INCLUDES PAYMENT FOR ALL WORK PERFORMED UNDER THE FORMER CONTRACT, THROUGH THE FINAL COMPLETION DATE ESTABLISHED IN THE SETTLEMENT AGREEMENT,AS WELL AS PAYMENT FOR APPROVED CHANGE ORDERS AND CREDITS(EXECUTED AS OF THE EFFECTIVE DATE OF THE SETTLEMENT AGREEMENT), AND AGREED UPON COMPENSATION FOR DMSI'S ALLEGED DELAY AND OTHER CLAIMS; WITH PREVIOUSLY APPROPRIATED FUNDING, IN THE AMOUNT OF $2,843,892; APPROPRIATING$562,047 FROM WATER OPERATING FUND 425 CAPITAL RESERVES; RE-APPROPRIATING$855,599 FROM PROJECT SAVINGS IN FUND 423 GULF BREEZE 2006, FROM THE COMPLETED NAUTILUS NEIGHBORHOOD RIGHT-OF-WAY IMPROVEMENT PROJECT;APPROPRIATING$575,869 FROM FUND 427 STORMWATER OPERATING CAPITAL RESERVES; RE-APPROPRIATING$1,995,007 IN STORMWATER SERIES 2011 BONDS FUNDS, PREVIOUSLY APPROPRIATED FOR NORMANDY ISLE, NORMANDY SHORES, AND NAUTILUS NEIGHBORHOODS RIGHT-OF-WAY IMPROVEMENT PROJECTS, FOR THE BISCAYNE POINT NEIGHBORHOOD RIGHT-OF- Page 1 of 6 Commission Memorandum-Biscayne Point GMP Contract March 21, 2012 WAY IMPROVEMENTS PROJECT; APPROPRIATING $468,433 IN CAPITAL RESERVE FUNDS FOR INCREASED ESTIMATES FOR ABOVE GROUND COSTS FROM ORIGINAL ESTIMATES;AND FURTHER RE-APPROPRIATING$355,645 FROM CAPITAL RESERVE FUNDS TO PAY AS YOU GO FUNDS FOR ADDITIONAL ABOVE-GROUND SCOPE FOR THE BISCAYNE POINT NEIGHBORHOOD RIGHT-OF-WAY IMPROVEMENTS PROJECT; ALL FOR A TOTAL AMOUNT OF $7,656,492. ADMINISTRATION RECOMMENDATION Approve the Resolution. KEY INTENDED OUTCOME Ensure value and the timely delivery of a quality capital project. FUNDING Total funding required is in the amount of $7,656,492. Funding will be provided from previously appropriated funds in the amount of $2,843,892, as well as additional appropriations totaling $4,812,600. The funding includes the re-appropriation of $855,599 in project savings from the completed Nautilus Neighborhood Right-of-Way Improvement project, and an appropriation of $562,047 from Water Operating Fund 425 Capital Reserves for water related improvements. An appropriation of$575,869 from Fund 427 Stormwater Operating Capital Reserves, as well as the re- appropriation of$1,995,007 in Stormwater Series 2011 Bonds funds, previously appropriated for the Normandy Isle, Normandy Shores, and Nautilus Neighborhoods Right-of-Way Improvement projects, will be applied toward stormwater related improvements. An appropriation of $468,433 in Capital Reserve funds will fund increased above-ground costs from original estimates. An additional re- programming of$355,645 in Capital Reserve funds as Pay As You Go funds will be used for additional above-ground scope. It should be noted that the additional funding appropriations for the Project may reduce funding available to be considered though the Capital Review process for the FY 2012/2013. Funding shall be as follows: Previously Appropriated: $184,657 Fund 376-99 GO Bonds Neighborhood Improvements,Account#376-2321-069357 $491,587 Fund 384 - 2003 GO Bonds Neighborhood Improvements, Account #384-2321- 069357 $60,000 Fund 302- Pay As You Go, Account#302-2321-069357 $339,893 Fund 302- Pay As You Go, Account#302-2321-000356 $53,976 Fund 420-W&S Gulf Breeze Loan Series 2010, Account#420-2321-069357 $288,076 Fund 420-W&S Gulf Breeze Loan Series 2010, Account#420-2321-000356 $161,795 Fund 428-Stormwater Bonds 2000S, Account#428-2321-069357 $5,290 Fund 428- Stormwater Bonds 2000S, Account#428-2321-061357 $685,487 Fund 431 -Stormwater Series 2011 Bonds, Account#431-2321-069357 $573,131 Fund 431 -Stormwater Series 2011 Bonds, Account#431-2321-000356 $468,433 Fund 304-Capital Reserve $2,843,892 Subtotal New Appropriations: $855,599 Fund 423-Gulf Breeze 2006, Account#423-2282-000356 (Nautilus) $562,047 Fund 425-Water Operating Capital Reserves $856,554 Fund 431 -Stormwater Series 2011 Bonds,Account#431-2323-069357 (N. Shores) $773,227 Fund 431 -Stormwater Series 2011 Bonds,Account#431-2323-000356 (N. Shores) $154,770 Fund 431 -Stormwater Series 2011 Bonds, Account#431-2285-000356 (N. Isle) $19,110 Fund 431 -Stormwater Series 2011 Bonds, Account#431-2285-069355 (N. Isle) $24,126 Fund 431 -Stormwater Series 2011 Bonds, Account#431-2285-069351 (N. Isle) Page 2 of 6 Commission Memorandum-Biscayne Point GMP Contract March 21, 2012 $167,220 Fund 431 —Stormwater Series 2011 Bonds, Account#431-2282-069351 (Nautilus) $355,645 Fund 302— Pay As You Go $575,869 Fund 427 —Stormwater Operating Capital Reserve $4,812,600 Subtotal $7,656,492 TOTAL BACKGROUND On December 14, 2011, the Mayor and City Commission approved Resolution No. 2011-27809 establishing a public emergency;'waiving the bidding requirements under the Consultants Competitive Negotiation Act (CCNA); and requesting that the City Manager and the Administration execute the following course of action: 1) to prepare a Design Criteria Package (DCP), whether through the City's Public Works Department (PWD) or through retention of an outside Design Criteria Professional, as determined by the City Manager; 2) upon completion of the DCP, to negotiate and execute a Design- Build Contract with a Guaranteed Maximum Price(GMP)forthe remaining water,stormwater, landscape and streetscape improvements for the Project with David Mancini and Sons, Inc. (DMSI); 3)to terminate, for convenience,the remaining portion of the current construction Contract with DMSI and enter into and execute a Settlement Agreement and release of all claims against the City under the Former Contract, as a condition to the City and DMSI's execution of the negotiated Design-Build Contract;and 4)capping the total sum of the combined negotiated Design-Build GMP and the negotiated settlement of the existing contract at$11,998,535,which included the$10,907,759 construction award value of the current DMSI construction contract (approved via Resolution No. 2011-27621) and the approved project contingency amount of $1,090,776. All these actions being necessary to rectify a deficient set of construction documents, implement DMSI's two(2)pump station value engineering proposal, requested by PWD; and to keep the Project moving forward while minimizing delays and impacts to the safety and welfare of the residents. In addition, the Administration advised the City Commission of additional scope of work elements, requested by PWD,that were under evaluation and for which funding would need to be identified. Upon determination of whether the improvements were warranted and identification of appropriate funding,the Administration would proceed with the additional scope of work via a Job Order Contract(JOC)or as an amendment to the proposed Design-Build Contract;the request for additional scope would be presented to the City Commission for approval at a future date. This additional scope includes the following: 1. Upsizing the existing 6-inch water main along 84th Street, within Biscayne Beach, with an 8-inch water main; 2. Replacing existing water services along 85th Street, within Biscayne Beach; 3. Replacement of direct buried electrical street lighting cable within the Biscayne Beach sub- neighborhood; 4. Design and construction of drainage improvements at three (3) locations ("hot spots") within Biscayne Point Island: • Intersection of Noremac Avenue/S. Biscayne Point Road; • In front of 7955 Biscayne Point Circle; and • In front of 1825 Daytonia Road; 5. A retrofit of the new water distribution system(already constructed as part of the current Construction contract) to connect the future 8-inch water main connection between Biscayne Point Island and Normandy Isle; and 6. Traffic signal modifications at the intersections of Hawthorne Avenue/ 77th Street and Hawthorne Avenue/Crespi Boulevard. Page 3 of 6 Commission Memorandum-Biscayne Point GMP Contract March 21, 2012 ANALYSIS As approved by the Mayor and City Commission via Resolution No. 2011-27809, the CIP Office immediately commenced coordination with the PWD and the City Attorney's Office for the preparation of the DCP, Settlement Agreement and Design-Build Contract. PWD took on the role of the Design Criteria Professional, on behalf of the City, and prepared the DCP,while the City Attorney's office prepared the Settlement Agreement for the current construction contract.With support from the City Attorney's Office, a Design-Build Contract was developed which became the basis of the negotiations for the additional scope of work approved by the City Commission. Upon receipt of the aforementioned documentation, the Administration commenced negotiations with DMSI. Negotiation efforts focused on finalizing the terms, conditions, and defining the scope of work to be completed to close-out the original contract and enter into a Settlement Agreement;finalizing the terms and conditions of the Design-Build Contract; and finalizing evaluations and estimates for the additional scope of work requested by PWD.The intent was to procure the latter either via JOC or to be incorporated within the proposed Design-Build Contract.The negotiation discussions would also include various infrastructure improvements, suggested by DMSI, which the contractor believed to be warranted based on field findings; additional plan errors that needed to be rectified; and additional community requests. These items had to be evaluated by the City prior to inclusion. Draft copies of the DCP, Design-Build Contract and Settlement Agreement were issued to DMSI in early January 2012. During initial negotiations, concerns were raised by DMSI regarding the contract language and additional scope of work introduced by the DCP requirements. This additional scope of work had not been previously identified and was not included as part of the scope of work in the original Contract. DMSI expressed concerns attributed to the increased hard costs, soft costs (associated with professional Architectural/Engineering services), and assumed risk introduced by the nature of Design-Build contracts for the additional scope of work. The cost derived by DMSI following their initial review and interpretation of the Design-Build Contract language,the DCP, and the added owner/resident requests were approximately$22.9-Million.This cost included approximately$1.1-Million in design fees, $1.6-Million in added Project risk, and$3.4-Million in Project claims and delays. Upon the City's review of all the added scope elements and proposed cost estimates provided by DMSI,the Administration determined that negotiation of a Design-Build Contract was no longer feasible within the parameters previously authorized by the Mayor and City Commission. Subsequently, at the February 8, 2012 Commission Meeting, the Administration updated the City Commission of the ongoing negotiations and was directed to continue negotiations and return in March 2012 with the final negotiated Settlement Agreement and Design-Build Contract GMP. In an effort to finalize negotiations and meet the directive from the City Commission, the CIP Office partnered with PWD to clearly define the scope of work elements that would be included in the Design- Build Contract and to effectively negotiate all required added scope of work with DMSI. The City's initial proposal for the hard and soft costs of the entire Project was $14,783,910. After negotiating the addition/deletion of scope of work and their associated value,the City and DMSI agreed on a total Project construction cost of $15,606,175, which included an amount of $4,698,416 for the additional owner requested scope of work and professional services fees of the Design-Build Contract. The increased cost was primarily attributed to the inclusion of an allowance to repair damaged sidewalks, curbs and gutter and a change in the milling and resurfacing methodology. These two scope of work items were not clearly defined until after discussions with PWD and negotiations with DMSI.An agreement for the settlement, risk, and alleged claims and delays was also reached, bringing the total Project construction cost to$17,102,487. Not included in this amount is the work performed through JOC which totals an additional $597,512, which is further delineated below, for a total of$17,700,000. As a result of the negotiations, the additional scope of work to be included in the Design-Build Contract consists of the following: Page 4 of 6 Commission Memorandum—Biscayne Point GMP Contract March 21, 2012 1. Replacement of direct buried electrical street lighting cable within the Biscayne Beach sub- neighborhood (Owner Request); 2. Adjustment of fourteen (14) light poles within Biscayne Point Island (HOA Request); 3. Design and construction of drainage improvements at three (3) locations ("hot spots") within Biscayne Point Island (HOA Request): • Intersection of Normac Avenue/S. Biscayne Point Road; • In front of 7955 Biscayne Point Circle; and • In front of 1825 Daytonia Road; 4. Design and construction of approximately 1,600-LF of 8-inch water main along Cleveland Road, between N. Biscayne Point Road and Noremac Avenue, and along Noremac Avenue, between Cleveland Road and N. Biscayne Point Road (Owner Request); 5. Design and construction of approximately 500-LF of 12-inch water main along Henedon Road,with the associated bridge crossing (Owner Request); 6. Substituting the proposed 121 Mahoganies within Biscayne Point Island with Oaks(HOA Request); 7. Providing pavers at the 77th Street entrance to Biscayne Point Island (HOA Request); 8. Providing pavered speed tables, in lieu of stamped asphalt speed tables (HOA Request); 9. Providing water main isolation valves for the water distribution system (Owner Request); 10. Repair of sidewalks, curbs, and gutters within Biscayne Beach and Biscayne Point Island (Allowance, HOA/Owner Request); 11. Milling and resurfacing of pavement, as required, to meet the minimum 2-inch asphalt DCP requirement(Owner Request); 12. Updating the existing topographical survey, as required, to meet DCP requirements (Owner Request); 13. Providing the necessary design and construction administration services to assume responsibility,as the Engineer-of-Record (Owner Request); In addition, in an effort to keep the project moving forward through the extended negotiations and keep DMSI mobilized onsite, the Administration approved some of the owner requested additional scope of work via Job Order Contracts (JOCs) in the amount of $597,512, which brings the total Project construction cost to $17,700,000. These items included: 1. Design and construction of an 8-inch water main along 84th Street,within Biscayne Beach, replacing the existing 6-inch water main; 2. Design and construction of new water services along 85th Street, within Biscayne Beach; 3. Redesign and construction of 1,000-LF of water main along Stillwater Drive; After careful consideration and coordination with the PWD, it was determined that some additional scope of work items were not necessary at this time and as such were not included in the Design-Build Contract. The excluded scope of work follows: 1. Future subaqueous 8-inch water main connection between Biscayne Point Island and Normandy Isle; and 2. Traffic signal modifications at the intersections of Hawthorne Avenue/ 77th Street and Hawthorne Avenue/Crespi Boulevard. The overall negotiations resulted in a total DMSI contractual value of$17,700,000,which consists of the cost of the previously approved JOCs in the amount of$597,512,the Design-Build GMP of$11,151,240 and a Settlement Agreement amount of$5,951,247. The Design-Build Contract GMP includes the hard costs(ie. construction costs)for the remaining scope of work from the original Contract and the above referenced scope of work, as agreed upon by DMSI and the City, and soft costs associated with architectural/engineering design services, construction administration services, construction management services, and a consideration for risk. Page 5 of 6 Commission Memorandum-Biscayne Point GMP Contract March 21, 2012 The Settlement Agreement amount includes associated scope of work completed as of the stipulated termination date; a shared savings (50/50) for the deletion of the two (2) stormwater pump stations; other credits for deleted scope of work to offset the cost of the stormwater system redesign effort; and an amount of $1,500,000 for settlement of alleged claims and delays primarily associated with the inability to commence with the construction of the Project stormwater improvements.This settlement of claims and delays was negotiated, in the best interest of the City, upon consideration of the Contractor's claims against the City, at approximately$4,000,000, and in order to avoid litigation with the Contractor and further delays to the Project. During the negotiation efforts, the City requested support from A/E Consultants to provide professional services including cost estimating services, constructability reviews, and design concept evaluations. There is currently no funding to cover the entirety of these requested professional services. Upon execution of the Design-Build Contract,the City will need to secure other professional services such as geotechnical testing services and Resident Project Representative services that will require additional funding appropriations. The Administration has estimated that an increase to the Project professional services budget in the amount of$1,067,000 is necessary to supplement the Project construction. The increased additional costs to the Project are currently under-funded and require the appropriation of additional funds. In summary, the total funding required for the Project is $7,656,492, of which $2,843,892 is currently available in the Project's capital budget. After evaluation of available funding, the Administration has identified other funding sources to offset the$4,812,600 shortfall. However,funding the additional costs of this Project may reduce funding available to be considered though the Capital Review process for the FY 2012/2013. CONCLUSION The Administration recommends the Mayor and City Commission approve this Amendment to Resolution No. 2011-27809 requesting authorization to increase the not to exceed amount approved under the same resolution, from $11,998,535, to$17,102,487, with the new total to be broken down as follows: 1.) approving a new GMP for the Design-Build Contract with DMSI, in the amount of $11,151,240 (which new amount will not only include the remaining water, stormwater, landscape and streetscape improvements under the Former Contract, but also necessary additional scope of work recommended by the City's Public Works Department(PWD) and Biscayne Point residents, as well as factor in the assumed contractor"risk"typically associated with, and built into, design-build contracts); and 2.)approving a new amount for the Settlement Agreement, of$5,951,247,which includes payment for all work performed under the Former Contract, through the final completion date established in the Settlement Agreement, as well as payment for approved change orders and credits(executed as of the Effective Date of the Settlement Agreement), and agreed upon compensation for DMSI's alleged delay and other claims; with previously appropriated funding, in the amount of $2,843,892; appropriating $562,047 from Water Operating Fund 425 capital reserves; re-appropriating $855,599 from project savings in Fund 423 Gulf Breeze 2006, from the completed Nautilus Neighborhood Right-of-Way Improvement Project; appropriating $575,869 from Fund 427 Stormwater Operating Capital Reserves; re-appropriating $1,995,007 in Stormwater Series 2011 Bonds Funds, previously appropriated for Normandy Isle, Normandy Shores, and Nautilus Neighborhoods Right-of-Way Improvement Projects,for the Biscayne Point Neighborhood Right-of-Way Improvements Project;appropriating$468,433 in Capital Reserve Funds for increased estimates for above ground costs from original estimates; and further re- appropriating $355,645 from Capital Reserve Funds to Pay As You Go Funds for additional above- ground scope for the Biscayne Point Neighborhood Right-of-Way Improvements Project; all for a total amount of$7,656,492. JMG/DB/FV/DM TAAGENDAi201213-21-12\Biscayne Point DB GMP1Biscayne Point-DB GMP Contract-MEMO.doc Page 6 of 6