Resolution 2021-31870RESOLUTION NO. 2021-31870
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT
BETWEEN CLARK CONSTRUCTION GROUP, LLC ("CLARK"), HILL
INTERNATIONAL INC. ("HILL"), AND THE CITY OF MIAMI BEACH, FLORIDA
("SETTLEMENT AGREEMENT"), AS ATTACHED TO THE COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION, TO SETTLE THE
LITIGATION STYLED AS CLARK CONSTRUCTION GROUP, LLC, VS. THE
CITY OF MIAMI BEACH AND HILL INTERNATIONAL INC., ELEVENTH
JUDICIAL CIRCUIT, CASE NO. 2020-002129 CA 01, IN CONNECTION WITH
THE MIAMI BEACH CONVENTION CENTER RENOVATION AND EXPANSION
PROJECT ("PROJECT"), AND AUTHORIZING THE CITY TO (1) RELEASE
$6,400,000 IN RETAINAGE WITHHELD, IN PAYMENT FOR WORK
PERFORMED ON THE PROJECT; (2) APPROVE PAYMENT OF $9,090,000
WITHHELD AS LIQUIDATED DAMAGES FROM CLARK ON THE PROJECT
PAY APPLICATIONS TO ACCOUNT FOR PROJECT -RELATED SCHEDULE
DELAYS, IN PAYMENT FOR WORK PERFORMED ON THE PROJECT; AND
(3) APPROVE PAYMENT OF AN ADDITIONAL TOTAL AMOUNT OF
$18,010,000, IN FULL SATISFACTION OF ALL PROJECT -RELATED CLAIMS
ASSERTED BY CLARK AGAINST THE CITY, INCLUDING, WITHOUT
LIMITATION, EXTRA WORK AND CHANGE ORDERS, CLARK'S CLAIM FOR
GENERAL CONDITIONS, AND SUBCONTRACTOR IMPACT CLAIMS; WITH
THE TOTAL SETTLEMENT AMOUNTS TO BE PAID BY THE CITY IN THE
FOLLOWING INSTALLMENT PAYMENTS TO CLARK: $9,000,000 ON OR
BEFORE OCTOBER 15, 2021; $9,900,000 ON OR BEFORE DECEMBER 31,
2021; $6,500,000 ON OR BEFORE THE OUTSIDE DATE OF MAY 15, 2022;
$6,500,000 ON OR BEFORE DECEMBER 31, 2022; AND $1,600,000 IN
PERFORMANCE BASED PAYMENTS TIED TO THE COMPLETION OF THE
REMAINING WORK MILESTONES AS SET FORTH IN THE SETTLEMENT
AGREEMENT; AND FURTHER, AUTHORIZING THE CITY MANAGER AND
ACTING CITY ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE
STEPS FOR THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT,
AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE
THOSE DOCUMENTS AND/OR AGREEMENTS NECESSARY TO
EFFECTUATE THE SETTLEMENT AGREEMENT CONSISTENT WITH THIS
RESOLUTION.
WHEREAS, on May 20, 2015, the Mayor and City Commission adopted Resolution No.
2015-29028, approving the Construction Manager at Risk Agreement ("CMaR Agreement")
between the City and Clark Construction Group, LLC ("Clark"), authorizing pre -construction
services for the Miami Beach Convention Center Renovation and Expansion Project ("Project")
and specifying the terms and conditions for the development and negotiation of a Guaranteed
Maximum Price ("GMP") for the construction phase services for the Project; and
WHEREAS, on October 21, 2015, the Mayor and City Commission adopted Resolution
No. 2015-29188 authorizing the City to enter into a Construction Manager at Risk Agreement
with Clark for the renovation and expansion of the Miami Beach Convention Center Project, with
a Guaranteed Maximum Price ("GMP") in the amount of $515,458,058; and
I
WHEREAS, on January 31, 2020, Clark filed a $100 million+ lawsuit, Clark Construction
Group, LLC, vs. City Of Miami Beach And Hill International Inc., Eleventh Judicial Circuit Court
Case No. 2020-002129 CA 01, against the City and Hill International Inc. ("Hill"), the City's owner's
representative for the Project, seeking: (i) a declaration by the Court that it is entitled to significant
time extensions, release of retainage and payment for work allegedly completed and within the
scope of the contract; (ii) damages for breach of contract; and (iii) damages for Breach of
Covenant of Good faith and Fair Dealing; and
WHEREAS, for the reasons as outlined in the accompanying Commission Memorandum,
the Mayor and City Commission desire to resolve the matter and approve the Settlement
Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve the Settlement Agreement between Clark Construction. Group, LLC
("Clark"), Hill International Inc. ("Hill"), and the City of Miami Beach, Florida ("Settlement
Agreement"), as attached to the Commission Memorandum accompanying this Resolution, to
settle the litigation styled as Clark Construction Group, LLC, vs. the City Of Miami Beach and. Hill
International Inc., Eleventh Judicial Circuit, Case No. 2020-002129 CA 01, in connection withithe
Miami. Beach Convention Center Renovation and Expansion Project ("Project"), and authorize, the
City to (1) release $6,400,000 in retainage withheld, in payment for work performed on the Project;
(2) approve payment.of $9,090,000 withheld as liquidated damages from Clark on the.Project,lpay
applications to account for Project -related schedule delays, in payment for work performed on'the
Project;.and (3) approve payment of an additional total amount of $18,010,000, in.full satisfaction
of all Project -related claims asserted by Clark against the City, including, without limitation, extra
work and change orders, Clark's claim for general conditions, and subcontractor impact claims;
with the total settlement amounts to be paid by the City in the following installment payments to
Clark: $9,000,000 on or before October 15, 2021; $9,900,000 on or before December 31, 2021;
$6,500,000 on or before the outside date of May 15, 2022; $6,500,000 on or before December
31, 2022; and $1,600,000 in performance based payments tied to the completion of the remaining
work milestones as set forth in the Settlement Agreement; and further, authorize the City Manager
and Acting City Attorney to take the necessary and appropriate steps for the implementation of
the Settlement Agreement, and authorize the City Manager and City Clerk to execute those
documents and/or agreements necessary to effectuate the Settlement Agreement consistent with
this Resolution.
PASSED and ADOPTED this 30 day of 9ef - , 2021.
ATTEST:
t—g- 5p Gelber, Mayor
'diURP ORATED?
Rafael . Granado, City Clerk
APPROVED AS TO
FORM & LANGUAGE
OCT 0.'1 2021 & FOR EXECUTION.
z,
City Attomey
Data
MIAMBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfi.gov
COMMISSION MEMORANDUM
TO: Honarable Mayor Dan Gelber and Members of the City Commission
FROM: Alina T. Hudak, City Manag
Rafael Paz, Acting City Att r y
DATE: September 30, 2021
I
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT BETWEEN
CLARK CONSTRUCTION GROUP, LLC ("CLARK"), HILL INTERNATIONAL INC.
("HILL"), AND THE CITY OF MIAMI BEACH, FLORIDA ("SETTLEMENT
AGREEMENT"), AS ATTACHED TO THE COMMISSION MEMORANDUM
ACCOMPANYING THIS RESOLUTION, TO SETTLE THE LITIGATION STYLED AS
CLARK CONSTRUCTION GROUP, LLC, VS. THE CITY OF MIAMI BEACH AND H
INTERNATIONAL INC., ELEVENTH JUDICIAL CIRCUIT, CASE NO. 2020-002129
01, IN CONNECTION WITH THE MIAMI BEACH CONVENTION CENT
RENOVATION AND EXPANSION PROJECT ("PROJECT"), AND AUTHORIZING 1
CITY TO (1) RELEASE $6,400,000 IN RETAINAGE WITHHELD, IN PAYMENT F
WORK PERFORMED ON THE PROJECT; (2) APPROVE PAYMENT OF $9,090,
WITHHELD AS LIQUIDATED DAMAGES FROM CLARK ON THE PROJECT F
APPLICATIONS TO ACCOUNT FOR PROJECT -RELATED SCHEDULE DELAYS
PAYMENT FOR WORK PERFORMED ON THE PROJECT; AND (3) APPROVE
PAYMENT OF AN ADDITIONAL TOTAL AMOUNT OF $18,010,000, IN FUiLL
SATISFACTION OF ALL PROJECT -RELATED CLAIMS ASSERTED BY CLARK
AGAINST THE CITY, INCLUDING, WITHOUT LIMITATION, EXTRA WORK AND
CHANGE ORDERS, CLARK'S CLAIM' FOR GENERAL CONDITIONS, AND
SUBCONTRACTOR IMPACT CLAIMS; WITH THE TOTAL SETTLEMENT AMOUNTS
TO BE PAID BY THE CITY IN THE FOLLOWING INSTALLMENT PAYMENTS OO
CLARK: $9,000,000 ON OR BEFORE OCTOBER 15, 2021; $9,900,000 ON OR
BEFORE DECEMBER 31, 2021; $6,500,000 ON OR BEFORE THE OUTSIDE DATE
OF MAY 15, 2022; $6,500,000 ON OR BEFORE DECEMBER 31, 2022; AND
$1,600,000 IN PERFORMANCE BASED PAYMENTS TIED TO THE COMPLETION OF
THE REMAINING WORK MILESTONES AS SET FORTH IN THE SETTLEMENT
AGREEMENT; AND FURTHER, AUTHORIZING THE CITY MANAGER AND ACTING
CITY ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE STEPS FOR
THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT, AND AUTHORIZING
THE CITY MANAGER AND CITY CLERK TO EXECUTE THOSE DOCUMENTS
AND/OR AGREEMENTS NECESSARY TO EFFECTUATE THE SETTLEMENT
AGREEMENT CONSISTENT WITH THIS RESOLUTION.
Page 348 of 445
Settlement Agreement Between Clark Construction Group; Hill International Inc., and City of Miami Beach
September 30, 2021
Page 2 of'8
PROJECT BACKGROUND
On April_ 19, 2014, the Mayor and City Commission adopted Resolution No.. 2014-28538, approving
the execution of an Agreement with Fentress Architects in connection with the development of the
Miami Beach Convention Center Renovation Project ("Project"). The scope for the 1,435,000 -
square -foot convention center Project included the expansion and renovation of the convention
center to provide upgraded show needs and enable the center to keep up with the demands of the
competitive national and international convention community. The Project includes a new 60,000
square -foot ballroom, new 10,000 square foot kitchen, 127,000 square feet of new meeting spaces;
500,000 square feet of renovated exhibit space, and a 796 space rooftop parking deck.
On November 19, 2014, the. Mayor and City Commssion adopted Resolution No. 201
approving the execution of an Agreement with Hill International ("Hill") for Owners Repre
Services.
On May 20, 2015, the Mayor and City Commission adopted Resolution No. 2015-29028, appro)
the Construction Manager at Risk Agreement ("CMaR Agreement") between the City and C
Construction Group, LLC ("Clark"), authorizingpre-construction services Project and specifying
terms and conditions for the development and negotiation of a Guaranteed Maximum P
("GMP") for the construction phase services for the Project.
On October 21, 2015, the Mayor and City Commission adopted Resolution No. 2015-2911
authorizing the City to enter into a Construction Manager at Risk Agreement with Clark for tl
renovation and expansion of the Miami Beach Convention Center Project, with a Guarantee
Maximum Price ("GMP") in the amount of $515,458,058. The Resolution also established a ProjE
owner's contingency in the amount of Thirty Five Million Dollars ($35,000,000), to pay I
unforeseen conditions and other work for which the City would be responsible, including i
additional architectural / engineering work, permitting and other matters. The Proje
Contingency, while significant in dollar amount, represented a contingency of only s
percent (6%) over the overall Project budget, significantly less than the standard ten perce
(10%) contingency applicable to nearly all other City capital projects. The Resolution furth
delegated to 'the City Manager, the authority -to use the contingency to execute any project -relate
agreements or contract amendments as may be necessary for the successful delivery of tl
Project. -
Pursuant to the CMaR Agreement,. Clark was to build the. Project for the GMP amount based
65% construction documents prepared by Fentress, including .scopes of work that are "reasonE
inferable" from the construction documents. Under those terms, the City assumed certain ri:
such as those relating to concealed conditions on the site, as well as changes driven by
Authorities having Jurisdiction (AHJ) (Le„ Building and Fire Departments, franchise utilities si
as FP&L andAT&T, and Miami -Dade County Departments such as DERM, DEP, and Miami -Da
County Traffic, among others).
In December 2015, construction began under a phased permit concurrently with permit reviews
and processing of final plans to expedite the permitting process. This was necessary in order to
allow Art Basel to have a 4 -hall event in December of 2016 and December of 2017 while
construction of the project was on-going. In addition to making the building available for Art Basel
each year, the CMaR Agreement also required Clark to maintain one half of the building available
for events at all times, as directed by the City Commission via Resolution No.2015-28995. The
phasing and scheduling of the work was among the most complex in the construction industry, as
it required continued operations in and around an active construction site, similar to the complex
construction undertaken with large airport projects. j
Page 349 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 3 of 8
I
The contractual Substantial Completion date (including approved time extensions) was August 23,
2018:
As of August 24, 2018, the City began assessing Liquidated Damages from payments due to Clark
at a rate of $15,000 per day as stipulated in the Agreement.
On February 26, 2019, the City and Clark convened a two-day mediation to discuss outstanding
claims. The mediation resulted in a mutual impasse with the parties agreeing to continue oto
progress with the work on the Project and keep the lines of communication open in order to achieve
the common goal of finishing the work as soon as possible.
On July 9, 2019, the City issued a Notice of Default and Opportunity to Cure to Clark. On July
2019 Clark and the City met to discuss possible cure paths, the Project schedule, and outstand
work remaining at the Project. On July 19th,'the City proposed a cure plan that itemized the scc
of work required to cure and outlined a completion schedule for the Project to achieve a tempor
certificate of occupancy (TCO) by September 15th, substantial completion by November 15th,
final completion by January 17, 2020. These milestones were not achieved and the City and Cl
continued to disagree on the responsibility of unanticipated costs, i.e what was to. be covered
the GMP versus what was beyond the GMP as defined in the contract..
A TCO was issued on April 13, 2020. By this time the City and ,Clark were in litigation as descr
and detailed in the following section. Importantly, the final Certificate of Occupancy for
Project has, to date, not been achieved.
LITIGATION HISTORY
On January 31, 2020, Clark filed a $100 million+ lawsuit against the City and Hill International I
("Hill"), the City's owner's representative for the Project. Clark's complaint against the City seg
(i) a declaration by the Court that it is entitled to significant time extensions, release of retain-,
and payment for work allegedly completed and within the scope of the contract; (ii) damages
breach of contract; and (iii) damages for Breach of Covenant of Good faith and Fair Dealing.
On February 20, 2020, the City filed its Answer, Counterclaim and Third Party Complaint.
City's Counterclaim against Clark alleges: (1) Breach of Contract due to, among other th
Clark's failure to timely complete the work and (2) Breach of the Covenant of Good Faith and
dealing. Additionally, the City filed a Third Party Complaint against the Clark's sureties for Bre
of Performance Bond. The performance bond guarantees Clark's performance of its contra
obligations to the City under the construction contract, and secures the City by causing the sun
to assume liability for any and all damages, including, but not limited to, liquidated damages ar
from Clark's default of its contractual obligations under the agreement.
The scope of this litigation has been extensive. Given the magnitude of the Project and the
enormous amount of Clark's initial claim ($100 million), the litigation has been hard fought and
required exhaustive discovery on an expedited timeframe. There were over six million pages �of
documents produced during the litigation. The parties conducted in excess of sixty depositions,
and collectively engaged in excess of twenty experts in multiple fields of expertise, including
construction scheduling, delays, design, and construction management standard of care. The
parties collectively filed over forty substantive motions in advance of trial, and countless other
motions directed to procedural matters.
i
Despite the protracted litigation, the parties made repeated efforts to resolve the dispute, including
two pretrial mediations and, as will be discussed below, a third mediation conducted during the
trial.
Page 350 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 4 of 8
On August 27, 2021, the City conducted a private closed Attomey-Client Session, pursuant to
§286.011 of the Florida Statutes, during the City Commission meeting to discuss settlement
negotiations and strategy related to litigation expenditures prior to the scheduled trial date of
August 30, 2021. Following the private_ closed session, the City again pursued settlement
discussions with Clark. The parties were unable to reach an amicable resolution at that time, and
trial of the case commenced on August 30, 2021.
Following opening statements and several days of testimony by fact witnesses, the Court
ordered the parties back to mediation with a stern direction that they should make �a
concerted effort to resolve the dispute. Despite some meaningful progress, the parties were
not able to agree on a final settlement during the mediation session, but the Court agreed to a brief
recess of the trial so that the parties could resume negotiations. On September 13, 2021, the
parties announced to the Court that a tentative agreement had been reached, pending drafting of
the settlement documents and approval by the Mayor and City Commission. Based on that
announcement, the Court extended the recess until September 30, 2021.
On September 17, 2021, the City reconvened a private Attorney -Client Session, pursuant to
§286.011 of the Florida Statutes, during the City Commission meeting, to discuss the progress of
the settlement negotiations including a discussion regarding the settlement sum and including
settlement terms that would provide for the completion of the Project.
SETTLEMENT j
The proposed Settlement Agreement is attached to this Memorandum as Exhibit "A". The proposed
Settlment Agreement includes provisions to provide for the completion of the Project and
authorizes the City to (1) release the retainage the City has held from Clark for work previously
performed in the amount of $6,400,000; (2) approve payment to Clark in the amount of $9,090,000
that the City withheld from Clark as Liquidated Damages to account for project related scheduling
delays, in payment for work performed on the Project; and (3) approve an additional total amount
of $18,010,000 in full satistaction of all Project related claims asserted by Clark in the litigation,
including, without limitation, extra work and change orders, Clark's claims for additional gener6l
conditions, and subcontractor impact claims.
Settlement Summary:
Total Settlement
$35,000,000,
Less Amount Paid by Hill Directly to Clark
-$1,500,000
Less Amount Paid by Retainage Held by the City
-$6,400,000
Total Amount Paid by Other City Funding Sources
$27,100,000**
*"Equates to 4% of the original project budget, which, along with the six percent (6%)
contingency originally established for the Project via Resolution 2015-29188, would bring! all
Project -related contingencies to ten percent (10%), the industry standard for construction -
related contingencies and the City's long-established budgeting standard for contingencies
on capital projects.
The payment of the settlement sums are separated into Guaranteed Payments and Performance
Based Payments, as set forth below:
Page 351 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 5 of 8
Guaranteed Payments:
Payment No.
Amount
Payment Deadline
Payment 1
Ten Million Five Hundred Thousand Dollars
No later than October'
Stormwater Skimmers/Baffles
($10,500,000), comprised as follows:
15, 2021
from Clark's Retainage
(a) One Million Five Hundred Thousand Dollars
One Hundred Thousand Dollars ($100,000)
($1,500,000) from Hill International;
Lighting Completion
One Hundred Thousand Dollars ($100,000)
(b) Three Million Dollars ($3,000,000) from the
from Clark's Retainage
Identified Building Leaks
City; and
'
from Clark's Retainage
(c) Six Million Dollars ($6,000,000) from Clark's
Retainage
Payment 2
Nine Million Nine Hundred Thousand Dollars
No later than December
$9,900,000 from the City
31, 2021 i
Payment 3
Six Million Five Hundred Thousand Dollars
No later'than April 15,
($6,500,000) from the City
2022, subject to 30 day
extension.
Payment 4
Six Million Five Hundred Thousand Dollars
No later than December
($6,500,000) from the City
31, 2022
Performance -Based Payments:
Performance Obligation
Amount
Cooling Tower Completion
One Million Two Hundred Thousand Dollars ($1,200,000) from
the City
Stormwater Skimmers/Baffles
One Hundred Thousand Dollars ($100,000)
from Clark's Retainage
Grand Ballroom Flex Ducts
One Hundred Thousand Dollars ($100,000)
from Clark's Retainage
Lighting Completion
One Hundred Thousand Dollars ($100,000)
from Clark's Retainage
Identified Building Leaks
One Hundred Thousand Dollars ($100,000)
'
from Clark's Retainage
I
Pursuant to the Settlement Agreement, in order to receive the Performanced Based Payments,
Clark is required to complete the work identified above, which scopes of work the City anticipates
will allow the Project to achieve a Certification of Occupancy. Additionally, Clark has agreed to use
its best efforts to complete the Cooling Tower scope on or before January 31, 2022. To this end, the
parties have agreed that a neutral third party will make the final determination for completeness and
correctness with respect to the remaining scopes of work to be performed. Importantly, Clark has
consented to the City's entitlement to seek a judgment for specific performance if Clark fails to
complete the work based on the neutral's ultimate determinations. Traditionally, only money
damages are an available remedy in these cases.The remedy of specific performance is critical, for
the City, considering the importance to the City of completing the Project.
In addition to the performance and payment obligations as set forth above, the Settlement
Agreement incorporates the following non -monetary considerations: (1) dismissal of the litigation,
with prejudice; (2) appointment of a neutral to oversee and approve remaining work; (3) consent to
obtain specific performance judgment for Clark to finish work; (4) a retraction of the City's Notice of
Default to Clark; (5) joint letter regarding the Project; (6) Clark and the City agreeing to a substantial
completion date of April 13, 2020, Clark agreeing to vacate an adverse Order entered against the
City regarding the Propt Payment Act; (7) mutual releases; and (8) mutual non -disparagement.
Page 352 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 6 of 8
ANALYSIS
If this settlement is not approved, trial will resume on October 1, 2021. It is anticipated that the trial
will last at least ten weeks. Further, and irrespective of the outcome, it is anticipated that an appeal
will follow the conclusion of the trial. The appellate process can be expected to last 12 to 18 months.
In short, if this litigation continues, it will not be concluded until 2023, at substantial additional costs,
and without achieving the City's desired goal of the final completion of the Project.
The monetary terms of this settlement are fair and reasonable, and consistent with the
reasonable range of possible outcomes at trial should the litigation proceed. In addition to
resolving the dispute over the amounts to be paid, the Settlement Agreement also requires Clark to
complete certain work necessary to obtain the final certificate of occupancy, and affords the City the
remedy of specific performance. This is an important provision because, without it, the Court would
not have the power to force Clark to complete the work (the Court would only have the power to
award a money judgment).
Project Challenges
From inception the project was met with a unique set of challenges which increased both the owner's
and the construction manager's risk. The catalyst of that risk was the decision by the City
Commission in 2014 to keep the building operational by hosting events during the entire construction
period. This included hosting half -hall events at all times, and full -hall Art Basel events every year,
regardless of the condition of the building. To accomplish that goal, the public had to be protected
by the construction of two-hour separation walls that had to be installed and demolished twice during
the construction period. Over' ninety events took place during construction including the NFL
experience (LIV) and the "Fanfest' for major league baseball. These events brought tens) of
thousands of visitors to the facility and required a substantial and unforeseen amount of life -safety
requirements, including fire watch and additional show support, which were grossly underestimated.
In addition, two hurricanes occurred during construction; Hurricane Matthew in 2016 and Hurricane
Irma in 2017. Both hurricanes were declared states of emergency which required the entire site and
labor force to demobilize. Also, a "rain bomb" event in 2017 caused damaged to the east side pre -
function space which was partially completed and needed to be repaired before re -opening. Ten
separate Builder's Risk Insurance claims had to be filed during construction due to damages caused,
not only by these storms, but also accidental fires and other issues.
I
Other unknown challenges involved the existing facility itself. Sixty nine percent (69%) of the facility
was re -used and those remaining portions were built between 1959 and 1986. Lead-based paint
was discovered in a portion of that area which had to be properly removed. City record drawings
also showed one-hour rated walls to remain, which did not exist. The walls had to be completely
reconstructed to meet current code.
Another unforeseen encounter involved the existing kitchen facility on the east side of the building.
It was originally anticipated that this kitchen would remain operational until the new 10,000 square
foot kitchen was completed, however life safety concerns required that the east kitchen be closed,
and a temporary kitchen be set up within the south loading dock to continue to provide food service
to scheduled events.
Other challenges, although known at the time, were much more difficult to manage due to the
constant event schedule. This included asbestos removal, different building floor levels ranging by
as much as four inches which needed to be shimmed during events, and a high number of
construction crews from different contractors that had to work alongside with Clark and their subs.
These included contractors from Florida Power & Light which installed three new electrical vaults
within the building, separate city contractors which installed two storm water pump stations while
Clark was raising and completing roadways, separate contractors for five unique public art
Page 353 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 7 of 8
installations built in between scheduled events, and separate city contractors for the Carl Fisher
Clubhouse and Pride Park construction projects.
Finally, and as everyone is aware, .a COVID-19 acute care temporary hospital was built by the Army
Corp. of Engineers for the Florida Department of Emergency Management with their own contractor
soon after the project received its temporary certificate of occupancy (TCO). The possession of the
building by the Army Corp. lasted for six months and stalled the final completion of the building.
i
During the entire time the project was under construction, the City committed to its neighbors that
they would remain operational, and resident's quality of life would not be impacted by the enormity
of the project. This included all the neighboring condominiums, Miami Beach High School, the
Botanical Garden, The Fillmore Theater, and City Hall including the parking garage structure being
used 24 hours a day.
Owner's Continaencv:
The City addressed unknown conditions and project challenges through the creation of a 6%
owner's contingency. While projects of this size, and nearly all City capital projects, carry a 16%
contingency, at the Project's inception, it was believed the Project could be completed with a lower
level of contingency. Ultimately, with the approval of this settlement, an Owner's contingency of 10%
was actually required. After considering the challenges noted above, it is fair and reasonable to
assume the customary contingencies that other projects are normally provided to apply.
Original Project Budget $ 615,722,930
Original Contingency $ 35,000,000 6%
Settlement $ 27,100,000 4%
Total Amount for
Project Contingencies 10%
Fentress Architects Indemnity Obligation
A substantial portion of Clark's claim is based on allegations that portions of the design were either
deficient, incomplete or uncoordinated. The design for the project was provided by Fentress
Architects and a number of consulting engineers that were hired by Fentress. The agreement
between the City and Fentress includes an indemnity provision which requires Fentress to indemnify
the City against any losses it sustains as a result of deficient work by Fentress or its consulting
engineers. The City will look to Fentress to indemnify it for losses it sustained, and intends to pursue
its claims to recover the portions of the settlement payments, plus fees and costs of defense,
resulting from design issues.
FUNDING SOURCES
The Miami Beach Convention Center is Miami -Dade County's largest convention center and; an
important regional asset for supporting the local economy. The MBCC Renovation and Expansion
Project was largely funded with Miami Beach Redevelopment Agency (RDA) bonds approved' by
Miami -Dade County pursuant to an RDA Interlocal Agreement. The City's portion of the settlement
is $27.1 million and is anticipated to ultimately be covered by the excess funds in the City Center
RDA of approximately $28.1 million. Of the $28.1 million, the City portion is estimated at $115.5
million and the County portion is estimated at $12.6 million. Under the Interlocal Agreement, the
excess Miami Beach RDA Trust Fund revenues can only be used for the early prepayment of RDA
bonds or, with Miami -Dade County and City approval, to defray the costs of an RDA capital project
like the MBCC Renovation and Expansion Project.
The Administration has initiated discussions with Miami -Dade County with regard to the possibility
of amending the City's RDA Interlocal Agreement to utilize existing excess Miami Beach RDA Trust
Page 354 of 445
Settlement Agreement Between Clark Construction Group, Hill International Inc., and City of Miami Beach
September 30, 2021
Page 8 of 8
i
Fund revenues to fund all or a portion of the settlement. Although discussions with the County have
been initiated, it would likely take several months to negotiate the necessary amendment to the RDA
Interlocal Agreement. In order to cover the first two payments in the Settlement that are due Ion
October 15 and December 31, 2021, the Administration is recommending realigning existing funds
from the Transportation Initiatives capital project. This realignment is recommended as a change
to the Proposed FY 2022 Capital Budget so the funds would be in place as of the new fiscal year
on October 1st, in time for the first payment on October 15th. If the City Center RDA interlocal
agreement is successfully amended over the next several months, these funds would be replaced
by the City Center RDA funds.
JOINT RECOMMENDATION OF THE CITY MANAGER AND ACTING CITY ATTORNEY j
This settlement (i) eliminates the risk of a potentially adverse judgment in an amount far in excess
of the settlement sum; (ii) resolves the payment dispute for an amount that we believe is consistent
with, and within the reasonable range of possibility for, what the Court may award should the tial
proceed; (iii) eliminates the substantial costs, risk and uncertainty associated with a ten week tial
and what is expected to be an eighteen month appellate process; (iv) requires that Clark complete
work that is necessary for obtaining a certificate of occupancy, the best and most efficient way to
achieve the City's goal of final completion of the Project; (v) provides for a neutral to make quick
and binding decisions in the event a dispute arises about whether Clark's obligations to complete
the work are satisfied; and (vi) affords the City the remedy of specific performance which enables
the Court to issue an order requiring Clark to complete the required work.
Accordingly, for the reasons set forth in this Commission Memorandum, the City Manager and the
Acting City Attorney jointly recommend that the Mayor and City Commission adopt the Resolution
and approve the Settlement Agreement, as being in the best interests of the City.
ATTACHMENTS:
Settlement Agreement
ATH / RP / MH ,G{#t-
Page 355 of 445
RESOLUTION NO. 2021-
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT
BETWEEN CLARK CONSTRUCTION GROUP, LLC ("CLARK"), HILL
INTERNATIONAL INC. ("HILL"), AND THE CITY OF MIAMI BEACH, FLORIDA
("SETTLEMENT AGREEMENT"), AS ATTACHED TO THE COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION, TO SETTLE THE
LITIGATION STYLED AS CLARK CONSTRUCTION GROUP, LLC, VS. THE
CITY OF MIAMI BEACH AND HILL INTERNATIONAL INC., ELEVENTH
JUDICIAL CIRCUIT, CASE NO. 2020-002129 CA 01, IN CONNECTION WITH
THE MIAMI BEACH CONVENTION CENTER RENOVATION AND EXPANSION
PROJECT ("PROJECT"), AND AUTHORIZING THE CITY TO (1) RELEASE
$6,400,000 IN RETAINAGE WITHHELD, IN PAYMENT FOR WORK
PERFORMED ON THE PROJECT; (2) APPROVE PAYMENT OF $9,090,000
WITHHELD AS LIQUIDATED DAMAGES FROM CLARK ON THE PROJECT
PAY APPLICATIONS TO ACCOUNT FOR PROJECT -RELATED SCHEDULE
DELAYS, IN PAYMENT FOR WORK PERFORMED ON THE PROJECT; AND
(3) APPROVE PAYMENT OF AN ADDITIONAL TOTAL AMOUNT OF
$18,010,000, IN FULL SATISFACTION OF ALL PROJECT -RELATED CLAIMS
ASSERTED BY CLARK AGAINST THE CITY, INCLUDING, WITHOUT
LIMITATION, EXTRA WORK AND CHANGE ORDERS, CLARK'S CLAIM FOR
GENERAL CONDITIONS, AND SUBCONTRACTOR IMPACT CLAIMS; WITH
THE TOTAL SETTLEMENT AMOUNTS TO BE PAID BY THE CITY IN THE
FOLLOWING INSTALLMENT PAYMENTS TO CLARK: $9,000,000 ON OR
BEFORE OCTOBER 15, 2021; $9,900,000 ON OR BEFORE DECEMBER 31,
2021; $6,500,000 ON OR BEFORE THE OUTSIDE .DATE OF MAY 15, 2022;
$6,500,000 ON OR BEFORE DECEMBER 31, 2022; AND $1,600,000 IN
PERFORMANCE BASED PAYMENTS TIED TO THE COMPLETION OF THE
REMAINING WORK MILESTONES AS SET FORTH IN THE SETTLEMENT
AGREEMENT; AND FURTHER, AUTHORIZING THE CITY MANAGER AND
ACTING CITY ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE
STEPS FOR THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT,
AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE
THOSE DOCUMENTS AND/OR AGREEMENTS NECESSARY TO
EFFECTUATE THE SETTLEMENT AGREEMENT CONSISTENT WITH THIS
RESOLUTION.
WHEREAS, on May 20, 2015, the Mayor and City Commission adopted Resolution No.
2015-29028, approving the Construction Manager at Risk Agreement ("CMaR Agreement')
between the City and Clark Construction Group, LLC ("Clark"), authorizing pre -construction
services for the Miami Beach Convention Center Renovation and Expansion Project ("Project")
and specifying the terms and conditions for the development and negotiation of a Guaranteed
Maximum Price ("GMP") for the construction phase services for the Project; and
WHEREAS, on October 21, 2015, the Mayor and City. Commission adopted Resolution
No. 2015-29188 authorizing the City to enter into a Construction Manager at Risk Agreement
with Clark for the renovation and expansion of the Miami Beach Convention Center Project, with
a Guaranteed Maximum Price ("GMP") in the amount of $515,458,058; and
Page 356 of 445
WHEREAS, on January 31, 2020, Clark filed a $100 million+ lawsuit, Clark Construction
Group, LLC, vs. City Of Miami Beach And Hill International Inc., Eleventh Judicial Circuit Court
Case No. 2020-002129 CA 01, against the City and Hill International Inc. ("Hill'), the City's owner's .
representative for the Project, seeking: (i) a declaration by the Court that it is entitled to significant
time extensions, release of retainage and payment for work allegedly completed and within the
scope of the contract; (ii) damages for breach of contract; and (iii) damages for Breach of
Covenant of Good faith and Fair Dealing; and
WHEREAS, for the reasons as outlined in the accompanying Commission Memorandum,
the Mayor and City Commission desire to resolve the matter and approve the Settlement
Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve the Settlement Agreement between Clark Construction Group, LLIC
("Clark"), Hill International Inc. ("Hill"), and the City of Miami Beach, Florida ("Settlement
Agreement"), as attached to the Commission Memorandum accompanying this Resolution, to
settle the litigation styled as Clark Construction Group, LLC, vs. the City Of Miami Beach and Hill
International Inc., Eleventh Judicial Circuit, Case No. 2020-002129 CA 01, in connection with the
Miami Beach Convention Center Renovation and Expansion Project ("Project"), and authorize the
City to (1) release $6,400,000 in retainage withheld, in payment for work performed on the Project;
(2) approve payment of $9,090,000 withheld as liquidated damages from Clark on the Project pay
applications to account for Project -related schedule delays, in payment for work performed on the
Project; and (3) approve payment of an additional total amount of $18,010,000, in full satisfaction
of all Project -related claims asserted by Clark against the City, including, without limitation, extra
work and change orders, Clark's claim for general conditions, and subcontractor impact claims;
with the total settlement amounts to be paid by the City in the following installment payments to
Clark: $9,000,000 on or before October 15, 2021; $9,900,000 on or before December 31, 202,1;
$6,500,000 on or before the outside date of May 15, 2022; $6,500,000 on or before December
31, 2022; and $1,600,000 in performance based payments tied to the completion of the remaining
work milestones as set forth in the Settlement Agreement; and further, authorize the City Manager
and Acting City Attorney to take the necessary and appropriate steps for the implementation ;of
the Settlement Agreement, and authorize the City Manager and City Clerk to execute those
documents and/or agreements necessary to effectuate the Settlement Agreement consistent with
this Resolution.
PASSED and ADOPTED this day of , 2021.
ATTEST:
Rafael E. Granado, City Clerk
Dan Gelber, Mayor
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
oati
Page 357 of 445 city Attomoy ,s
EXHIBIT A
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into by and
between CLARK CONSTRUCTION GROUP, LLC ("Clark"), THE CITY OF MIAMI BEACH,
FLORIDA (the "City"), and HILL INTERNATIONAL, INC. ("Hill"). Clark, the City, and Hill
are collectively referred to as the "Parties," and individually each is referred to as a "Party." This
Agreement's effective date is the date it is approved by the City Commission of the City of Miami
Beach pursuant to Section 15 below (the "Effective Date").
RECITALS:
WHEREAS, on or about May 21, 2015, Clark and the City executed a Construction
Manager at Risk Agreement (the "CMaR Agreement"), under which Clark was to act as the
construction manager for the Renovation and Expansion of the Miami Beach Convention Center
(the "Project").
I
WHEREAS, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
("Travelers"), FEDERAL INSURANCE COMPANY ("Federal"), FIDELITY AND DEPOSIT
COMPANY OF MARYLAND ("Fidelity"), and ZURICH AMERICAN INSURANCE
COMPANY ("Zurich") (Travelers, Federal, Fidelity, and Zurich are collectively referred to as the
"Sureties") issued a Payment and Performance Bond ("the Bond") for the Project pursuant to
Section 255.05, Florida Statutes, with Clark as principal thereunder.
WHEREAS, on or about October 30, 2015, the City and Hill executed an Owner's
Representative Services Agreement ("OR Agreement") under which Hill was to provide the City
with oversight and administrative support services for the performance of the CMaR Agreement.
WHEREAS, during the Project, certain disputes arose between Clark, the City, and Hill.
WHEREAS, on January 29, 2020, Clark filed a lawsuit against the City and Hill in the
Eleventh Judicial Circuit Court in and for Miami -Dade County, Florida captioned as CLAR, K
CONSTRUCTION GROUP, LLC. v. THE CITY OF MIAMI BEACH, FLORIDA and HILL
INTERNATIONAL, INC., Case No. 2020 -002129 -CA -01. In its Complaint, Clark alleges clams
of declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair
dealing against the City, and claims of negligence and tortious interference against Hill (the
"Complaint").
WHEREAS, the City responded to the Complaint by filing a Counterclaim against Clark
alleging claims of breach of contract, building code violations, and breach of the covenant of good
faith and fair dealing against Clark (the "Counterclaim'). The City further filed a Third -Party
Complaint against the Sureties alleging claims against the Bond (the "Third -Party Complaint"):
The Complaint, the Counterclaim, and the Third -Party Complaint are collectively referred to
herein as the "Action."
WHEREAS, for purposes of avoiding costly litigation and in order to reach a resolution
of the claims and disputes by and among the Parties, the Parties deem it in their best interest to
settle and compromise and to enter into a final settlement agreement.
127294236.1
127294236.0
Page 358 of 445 Ali
CLARK CONSTRUCTION GROUP, LLC v.
Settlement and Release Agreement
Page 2 of 17
I
THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
I
THEREFORE, in consideration of the foregoing and the agreements set forth in this
Agreement, and for other good and valuable consideration, the sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
J
1. Recitals. The Parties agree that the foregoing Recitals are true and correct and
incorporated herein by reference.
2. The 'Cit_y:'s and Hill's Settlement Payments to Clark. The City shall pay to Clark
Thirty -Three Million Five Hundred Thousand Dollars ($33,500,000.00) and Hill shall pay to Clark
One Million Five Hundred Thousand Dollars ($1,500,000.00), for a total sum of Thirty -Five
Million Dollars ($35,000,000.00) (the "Settlement Sum"), comprised of four (4) guaranteed
payments and five (5) performance-based payments, in accordance with the following payment
schedule:
(a) Guaranteed Payments. The following four (4) payments are guaranteed
("Guaranteed Payments") and shall be made on or before the stated Payment Deadlines below,
notwithstanding any alleged failure by any Party with respect to any obligations stated herein.
i
Payment No.
Amount
Payment Deadline
Payment l
Ten Million Five Hundred Thousand Dollars
No later than
($10,500,000.00), comprised as follows:
October 15, 2021
(a) One Million Five Hundred Thousand Dollars
($1,500,000.00) from Hill; and
(b) Nine Million Dollars ($9,000,000.00) from
the Cit
Payment 2
Nine Million Nine Hundred Thousand Dollars
No later than
f
($9,900,000.00) from the Cit
31, 2021
Payment 3
Six Million Five Hundred Thousand Dollars
_December
No later than April
($6,500,000.00) from the City
15, 2022, subject to
subsection 2(b)
below.
Payment 4
Six Million Five Hundred Thousand Dollars
No later than
$6,500,000.00 from the City
December 31,.2022
i
Except as otherwise provided in this Agreement, upon payment of the One Million Five
Hundred Thousand Dollars ($1,500,000.00) set forth in this Section 2(a), Hill shall have no further
obligations to Clark and Clark shall have no further obligations to Hill.
I
(b) The City expects that the source for a portion of the funds will be the City
of Miami Beach Redevelopment Agency ("RDA"), which will require the approval of both the
City of Miami Beach Commission and the Miami -Dade County Board of Commissioners. The
City will employ its best efforts to take all steps necessary to obtain approval from Miami -Dade
County to authorize the release of the RDA funds. In the event the Miami -Dade County Board of
I
127294236.1
127294236.0
Page 359 of 445
II
PO
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 3 of 17
Commissioners sends this matter to a sub -committee in order to receive funding in connection
with this Agreement, the deadline for Payment 3, and only Payment 3, shall be extended by thirty
(30) days such that the City must make Payment 3 no later than May15, 2022. In the event that
Miami -Dade County approves the RDA funds before the payment deadlines set forth herein for
Payment 3, the City shall make Payment 3 within five days of Miami Dade County's approval of
the RDA funds. Except as otherwise expressly provided by this Section (b), the City's payment
obligations under this Agreement shall not be affected by any action or inaction of the Miami -
Dade County Board of Commissioners or the RDA.
(c) Performance -Based Payments. The following five (5) payments (the
"Performance -Based Payments") shall be released upon Clark's performance of the obligations
described in Section 3 below, and the City shall make each payment to Clark in accordance with
Section 4 below.
Associated
Amount
Reference in
Obligation
Agreement
Cooling Tower
One Million Two Hundred Thousand Dollars
Section 3(a)
($1,200,000.00)
Skimmers/Baffles
One Hundred Thousand Dollars
Section 3(b)
$100,000.00
Grand Ballroom Flex
One Hundred Thousand Dollars
Section 3(c)
Ducts
$100,000.00
Lighting
One Hundred Thousand Dollars
Section 3(d)
$100,000.00
Identified Building
One Hundred Thousand Dollars
Section 3(e)
Leaks
$100,000.00
(d) If the City fails to make any Guaranteed Payment by the applicable date
specified in Section 2(a) above or Performance -Based Payment in accordance with Sections 3 and
4 below, Clark shall issue a "Notice of Default," which shall allow the City five (5) business days
to cure its non-payment default. In the event the City fails to cure its default, Clark shall be entitled
to an immediate default judgment against the City in the amount of the outstanding payment due
under the terms of this Agreement, default interest in the maximum amount permitted under the
law accruing from the date of the payment obligation, and reasonable attorney's fees and costs
associated with enforcement of this provision.
(e) Separate from the Settlement Sum, the City shall make payment to Clark
for the Cooling Tower Work, pursuant to Section 3(a) below, which amount shall total
$1,200,000.00.
3. Clark's Remaining Pro iect Obligations. As part of this Agreement, Clark agrees
to perform or cause to be performed the following Project tasks ("Remaining Project
Obligations"), subject to the terms and conditions set forth herein:
127294236.1
127294236.0
Page 360 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF AILIM1 BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 4 of 17
(a) Cooling Tower Work
(i) Clark shall perform or cause to be performed the cooling tower work
as identified in the Revision S Drawings which are attached hereto as Composite Exhibit A (the
"Cooling Tower Work") which costs are identified in Owner Change Orders 207, 208, and 209,
and the related conditional release (the "Cooling Tower COs").
(ii) Clark shall be compensated for the Cooling Tower Work lin
accordance with the Cooling Tower COs, and Clark shall invoice the City against the Cooling
Tower COs individually as opposed to submitting Applications for Payment. At the time of the
invoicing, Clark shall provide the City, to the extent practicable: (a) an invoice from each
subcontractor with a similar schedule of values to that indicated in the applicable subcontractor
proposal; and (b) if requested, the appropriate proof of purchase for any stored materials. Clark
shall not be required to provide any further documentation.
(iii) The City confirms that it has directed Clark to proceed with the
Cooling Tower Work. Clark agrees to use its best efforts to complete the Cooling Tower Work on
or before January 31, 2022, based on the current event calendar for the building attached hereto as
Exhibit B. Clark shall provide the City with a schedule to complete the Cooling Tower Work
within five (5) business days following the Effective Date. The schedule that Clark provides to the
City shall be a good faith estimate of Clark's timing with respect to completion of the Cooling
Tower Work. The City agrees to use its best efforts to assist Clark in meeting the deadlines in the
estimated schedule. The City and Clark acknowledge that Clark's ability to complete the Cooling
Tower Work on or before January 31, 2022 is subject to events, circumstances, or matters that are
outside of Clark's control, including, but not limited to, Clark's ability to access the Project, the
City's timely payment, the full cooperation of the City and any other third parties, including the
relevant authorities having jurisdiction ("AHJs"), and the occurrence of unforeseen or jorce
majeure events.
(iv) Upon Clark's completion of the work contained in any of the
Cooling Tower COs, Clark shall notify the Decision -Maker, as defined below, with a copy of such
notice to the City, of its completion of the work in the applicable Cooling Tower CO. Upon the
Decision -Maker's determination that Clark has completed any of the work contained in the
applicable Cooling Tower CO, the City shall pay the corresponding amount for that work within
fifteen (15) days of such determination. In the event the City fails to make payment within the
fifteen (15) day period, Clark may cease any further work contemplated in this Section 3(a) and
seek expedited relief from the Court to enforce the terns of this Agreement, including accrued
interest on the amounts due.
(v) Clark shall have no obligation to perform any extra work relating to
the cooling tower that is not expressly identified in Composite Exhibit A, except to the extent th
127294236.1
127294236.0 AA
Page 361 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 5of17
such extra work work is directly caused by Clark's deficient performance of the Cooling Tower
Work. The Parties agree that Clark shall have no responsibility for the design or performance of
the cooling tower. o
(vi) Except as provided herein, the City is responsible for performing
and paying for any extra work above and beyond the work specified in Composite Exhibit A, and
the Cooling Tower COs, and Clark shall have complete discretion to accept or reject responsibility
for performing any such work if requested.
(b) Grand Ballroom. Flex Ducts. Clark shall repair the flex ducts located in
the Project's Grand Ballroom which are identified in Exhibit C, which is attached hereto. Clark
shall have no obligation to perform any extra work relating to the work that is not expressly
identified in Exhibit C, except to the extent necessary to cure any deficiencies directly caused by
Clark's deficient performance of the work identified in Exhibit C.
(c) Skimmers/Baffles. Clark shall repair the skimmers/baffles identified in
Exhibit D, which is attached hereto. Clark shall have no obligation to perform any extra work
relating to the work that is not expressly identified in Exhibit D, except to the extent necessary to
cure any deficiencies directly caused by Clark's deficient performance of the work identified in
Exhibit D.
(d) Lighting. On or before September 30, 2021, Clark shall provide the City
with a list of the partshnaterials it believes to be necessary for the completion of the items identified
in Exhibit E, which is attached hereto, and shall place the order for the materials no later than
October 30, 2021. The City shall be responsible for paying for the parts/materials associated with
this order and the City shall cooperate with Clark as necessary to facilitate the placement of the
order. Upon placement of the order, Clark's sole responsibility with respect to this Section 3(d)
work is to coordinate and/or supervise performance of the lighting work identified in Exhibit E by
the appropriate subcontractor or third -party. The Parties hereby agree that if any portion of this
work is not completed by March 1, 2022, the City or Clark may request the Decision Maker to
determine the labor cost to the City of having the remaining work completed by a qualified arid
licensed electrician, and that amount shall be withheld from the Performance -Based Payment
associated with the work in this Section 3(d). The City shall release the balance of the
Performance -Based Payment associated with this Section 3(d) within fifteen (15) calendar days of
the Decision -Maker's determination of the labor cost associated with the remaining lighting work
on Exhibit E which is the subject of this Section, and Clark shall bear no further responsibilities
or obligations with respect to the light work contemplated herein.
(e) Identified Building Leaks, Clark shall submit the City's warranty claims
regarding the three (3) roof leaks identified in Exhibit. F, which is attached hereto, to Tecta
America South Florida, Inc. ("Tecta") or other appropriate subcontractor or third party, and
coordinate Teeta's performance of the work. Clark, however, shall have no obligation to the City
to undertake the repairs. Clark's obligations under this Section 3(e) shall be complete upon Tecta
notifying Clark that it has completed the work identified in Exhibit F.
127294236.1
127294236.v1
Page 362 of 445
��b
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ETALI.
Settlement and Release Agreement
Page 6of17
(f) Close-out Documents: Clark shall submit to the City all close out
documents identified in Exhibit G.
(g) Specific Performance. If the City believes Clark is not fulfilling; a
Remaining Project Obligation in accordance with the terms of this Agreement, the City may
petition the Decision -Maker to order Clark to specifically perform that obligation. The Decision -
Maker shall determine whether Clark is using commercially reasonable efforts to complete the
work and/or whether Clark is being prevented from completing the work based on lack of access,
materials, City cooperation, or some other ground that is impacting Clark's ability to time
comply with its obligations under this Agreement. If the Decision -Maker finds that Clark has failed
to prosecute the work as required pursuant to this Agreement, then the Decision -Maker may order
Clark to specifically perform that work and set what he deems to be a reasonable time for the
completion of the work. In the event that Clark does not perform work that the Decision -Malo r
has ordered to be specifically performed due to unavailability of supplies or resources, force
majeure, lack of City cooperation, any changes made or undertaken relating to the cooling tower,
lack of access, or the occurrence of an unforeseen event that renders performance impossible or
impracticable, then the Parties may seek relief as provided in Section 4(b) or Section 18(c) below, ,
as applicable.
4.
(a) The Decision -Maker. The Parties will appoint a neutral decision -maker
(the "Decision -Maker") on or before September 24, 2021 from either Vanderweil Engineers, LLP
or TLC Engineering Solutions, Inc., to handle all disputes relating to the Remaining Project
Obligations described in Section 3 above and to certify when completion of the Remaining Project
Obligations has been achieved in accordance with this Agreement, including subsections 4(b) and
4(c) below. The Decision -Maker's findings shall be final and binding on the Parties, regardless of
whether such work has passed inspection or otherwise been accepted by the City or applicable
AHJs. In other words, if the Decision -Maker determines that Clark has completed a disputed
component of work required under this Agreement, Clark shall have no further obligation with
respect to said work, irrespective of the City's or an AHJ's rejection of the work or requirement
for additional work, and irrespective as to whether the City agrees or disagrees. By contrast, if the
Decision Maker decides that Clark has not completed a disputed component of the work required
under this Agreement, Clark shall be obligated to complete the work irrespective of whether the
work has been approved by the AHJ and whether Clark agrees or disagrees. In the event that any
party fails to comply with the determination of the Decision -Maker (i.e., the City fails to comply
with a payment obligation or Clark fails to comply with a performance obligation), the other
Party's sole and exclusive remedy is to seek the appropriate relief from the Court pursuant to
Section 18(a) -(c) below. In the event the Decision -Maker can no longer serve as Decision -Maker,
the City and Clark shall work in good faith to select a mutually agreeable replacement with
requisite construction experience to evaluate Clark's work and resolve any related disputes. In the
event the City and Clark cannot agree. on the selection of, or replacement for the Decision -Maker,
127294236.1
127294236.0
Page 363 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OFMIAMI BEACH, FLORIDA,. ETAL.
Settlement and Release Agreement
Page 7of17
the Court shall appoint a Decision -Maker with appropriate technical construction expertise. All
fees incurred by the Decision -Maker shall be split equally between the City and Clark.
(b) Certification of Completion. When Clark believes it has completed any of
its Remaining Project Obligations, it shall promptly notify the City and the Decision -Maker bf
such completion. The Decision -Maker shall then provide a written determination as to whether
Clark has,completed the work associated with the Remaining Project Obligation submitted to the
Decision -Maker. The Parties shall promptly submit all documentation that the Decision -Maker
requests for the purpose of evaluating Clark's completion of the submitted item. The City agrees
to provide access to the Project for an in-person inspection in the event the Decision -Maker
requests such an inspection. In the event the Decision -Maker determines that either Party has not
provided information he requires to make such determination, then the Decision -Maker, following
a reasonable time for the respective Party to cure, in his discretion, may find that (i) Clark has not
completed the work and is therefore not entitled to payment, or (ii) the City has waived its right to
claim that the work has not been completed and is therefore required to make payment to Clark. If
the Decision -Maker determines that Clark has sufficiently completed the submitted Remaining
Project Obligation, then the City must pay Clark the Performance -Based Payment associated with
that work, as identified in Section 2(c) above, within fifteen (15) calendar days of the Decision -
Maker's written decision. For example, if the Decision -Maker determines that Clark has completed
the Cooling Tower Work (Section 3(a)), then the City must release the One Million Two Hundred
Thousand Dollars ($1,200,000.00) Performance -Based Payment listed in Section 2(c) above
within fifteen (15) calendar days of the Decision -Maker issuing a written decision with his finding.
Clark and the City shall follow this process with respect to each Remaining Project Obligation.
Clark may submit the Remaining Project Obligations to the Decision -Maker, on an individual basis
or on a collective basis. j
If the Decision -Maker finds that Clark has not completed a submitted Remaining Project
Obligation, then, subject to Section 4(c) below, the Decision -Maker shall specify in writing the
remaining work to be completed for the Remaining Project Obligation. Clark shall be required to
return to the Project, complete the incomplete work identified by the Decision -Maker, and re -
notify the City and Decision -Maker when Clark believes it has sufficiently addressed the
remaining work.
(c) Partial Certification of Completion. In the event Clark is unable to fully
complete a Remaining Project Obligation due to unavailability of supplies or resources, force
majeure, lack of City cooperation, any changes made or undertaken relating to the cooling tower,
lack of access, or the occurrence of an unforeseen event that renders performance impossible or
impracticable, Clark shall promptly notify the City and the Decision -Maker of such inability. The
Decision -Maker shall issue to Clark and the City a written decision on (i) whether circumstances
render Clark's performance of the Remaining Project Obligation impossible or impracticable or
whether the City has prevented or impeded Clark from its performance of the Remaining Project
Obligation and, if so, (ii) the appropriate relief to address the Decision -Maker's finding, which
may include, but is not limited to, that Clark shall be relieved of its responsibility of performing
the Remaining Project Obligation and is entitled to the Performance -Based Payment associated
127294236.1
127294236.x1
Page 364 of 445
I
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OFMIAMI BEACH, FLORIDA, ETAL.
Settlement and Release Agreement
Page 8of17
with the Remaining Project Obligation submitted under this Section 4(c). The City shall make
such payment, if applicable, within fifteen ('15) calendar days, of the Decision -Maker's written
decision. If the Decision -Maker determines that Clark is capable of completing a Remaining
Project Obligation submitted under this Section 4(c) with reasonable efforts, then the Decision -
Maker shall specify the remaining work to be completed for the Remaining Project Obligation.
Clark shall be required to return to the Project, complete the incomplete work identified by the
Decision -Maker, and re -notify the City and Decision -Maker when Clark believes it has sufficiently
addressed the remaining work. In the event Clark does not complete one of its Remaining Project
Obligations despite a determination from the Decision -Maker that it must complete the work, the
City's sole and exclusive remedy is contained in Section 18, below.
I
5. 'The Low Voltage Items. The City has raised an issue concerning low voltage
cables relating and limited to the 1,252 cables that have been identified as "failed" and other cables
exceeding 295 feet in length which are identified in the Structured Cabling System Test Reports
submittal 271000-037.1 dated July 21, 2020 (the "Low Voltage Items'). The Parties agree that
these limited Low Voltage Items are not being resolved by this Agreement and that any dispute
between. the City, Clark, and MC Dean, Inc. relating to the Low Voltage Items will be brought in
front of Jeff Beavers at BICSI or, if Mr. Beavers is not available, alternatively, a mutually
agreeable third party, for final adjudication on or before October 15, 2021, with no right to -appeal.
The scope of the dispute will be limited to the Low Voltage Items, as the term is defined above.
The City shall be responsible for 50% of the fees and costs incurred by Mr. Beavers or the
otherwise designated third party adjudicator.
6. The City's July.9, 2019 Notice of Defatilt The City hereby rescinds its July �9,
2019 Notice of Default issued to Clark relating to the Project. The City further acknowledges that
as of the Effective Date, there exists no outstanding default by Clark with respect to the Project)
7. City Letter Regarding the Project. Upon the completion of the work
contemplated by Section 3(a) of this Agreement (i.e,, the Cooling Tower Work), the City shall
execute the letter attached hereto as Exhibit H.
8. Substantial Completion Date. The City and Clark agree that Substantial
Completion was reached on April 13, 2020. Within five (5) business days of the Effective Date,
the City shall issue a Certificate of Substantial Completion with an effective date of April 13, 2020,
and, in consideration of the compromise and settlement set forth in this Agreement, the parties
agree that the contractual Substantial Completion date is extended to April 13, 2020.
i
9. The Court's Local Government Prompt Payment. Act Order. Within two (2)
business days of Effective Date, the Parties shall file a joint stipulation requesting the Court to
vacate the Court's September 24, 2020 Order Granting Clark's Motion for Partial Summary
Judgment on Count Il of the Complaint relating to Florida's Local Government Prompt Payment
Act.
127294236.1
127294236.0
Page 365 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OFMIAMI BEACH, FLORIDA, ETAL.
Settlement and Release Agreement
Page 9of17
10. Warranties
(a) The City agrees that all subcontractor, installer, and/or manufacturer
warranties required under the CMaR Agreement have been submitted pursuant to the submittal
numbers indicated on the document attached hereto as Exhibit 1. The City accepts such warranties
as submitted on the effective dates referenced therein.
(b) With the exception of the Tecta Warranty claims referenced in Section 3(e)
above, the City's sole recourse for any warranty claims shall be the subcontractor, installer, and/or
manufacturer warranties referenced in Section 10(a) above. If not already titled to the City, the
City may request that Clark use commercially reasonable efforts to assign warranties that exist and
can be assigned to the City, or otherwise modified, so the City may directly pursue warranty claims
without the assistance of Clark. Clark shall have no responsibility to submit, facilitate, or prosecute
the City's warranty claims.
11. Certified Cost of the City. The City and Clark agree that Clark has satisfied its
obligations under Section 11.15 of the CMaR Agreement.
12. Completion. of Rork. Other than the Remaining Project Obligations and Low
Voltage Items, identified in Sections 3 and 5 above, or latent defects, the City agrees that all other
work Clark is required to perform under the CMaR Agreement is complete, including but not
limited to, the provision of submittals and close out documentation to the City and all obligations
relating to its obligations pursuant to Article 2 of the CMaR Agreement, unless otherwise expressly
stated in this Agreement. The Parties intend for this Agreement to resolve all disputes regarding
the status of any alleged non -conforming work ("NCRs"), punchlist items, and warranty claims
unless specifically addressed herein. Except for latent defects, and other than the items specifically
listed in this Agreement, Clark shall have no further responsibility or obligation with respect to
any work or claims relating to NCRs, punchlist items, or warranty claims.
13: Dismissal of the Action. Within five (5) business days following the Effective
Date, the Parties shall file a joint stipulation to dismiss the Action, with prejudice, with each party
to bear their own fees and costs with the court reserving jurisdiction to enforce the terms of this
Agreement subject to Section 18 below.
14. Audit Rights. The City waives its proprietary, inspection and audit rights under the
CMaR Agreement, including, but not limited to, any such rights contained in Sections 2.1.5, 6.4,
and Article 16 to the extent allowable pursuant to applicable law. Any audit obligations to other
government agencies, including Miami -Dade County, regulatory bodies or as required by
ordinance or statute shall survive the execution of this Agreement.
I
15, City Commission .Approval, This Agreement is subject to and conditioned upon
the Mayor and City Commission of the City of Miami Beach (collectively, the "Commissions
holding a closed -meeting held pursuant to Fla. Stat. 286.011(8) ("Closed Meeting") and the
adoption for a resolution authorizing and approving the Agreement ("Resolution"). The Closed -
Meeting shall be held on Friday, September 17"', 2021, at which time City staff and counsel sh 1
127294236.1
127294236.0
Page 366 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 10 of 17
recommend acceptance of this Agreement. The Resolution for the Settlement Agreement shall be
presented to the Commission on Thursday, September 30, 2021, at which time the Commission
will vote on the adoption of the Resolution. City staff and counsel shall recommend acceptance of
this Agreement to the Commission. In the event the Commission does not approve the Agreement
at the Closed Meeting, the City shall notify Clark immediately following the conclusion of the
Closed Meeting, and the trial for the Action shall recommence on Monday, September 20, 2021.
In the event the Commission does not approve the Resolution at the September 30, 2021 public
meeting, this Agreement shall automatically become null and void immediately following the
public meeting, and the trial for the Action shall recommence on Monday, October 1, 2021.
16. Mutual General Releases
(a) In consideration of the foregoing, Clark, its successors, affiliates, and
assigns, do hereby release, waive, and discharge all rights, causes of actions, liabilities and claims,
in law or in equity, whether known or unknown, whether foreseen or unforeseen, whether or not
hidden or concealed, whether based on tort, intentional tort, fraud, contract, contribution dor
otherwise, and/or any other obligations, claims, damages, interests, or debts of any kind
("Claims") relating to the Project and the CMaR Agreement and the OR Agreement that Clark
ever had, could have asserted or have been asserted in the Action against the City and Hill, their
agents, officers, members, managers, directors, shareholders, partners, parents, affiliated and
sibling companies, members, limited partners, general partners, employees, attorneys, successors,
insurers and assigns (the "City and Hill Releasees"), which Clark, from the beginning of time :to
the Effective Date, possessed or may possess against the City and Hill Releasees, except for the.
rights, dutiesand obligations arising,underth AgLreement.
(b) In consideration of the foregoing, and subject to the limitations as set forth
below, the City, its successors, affiliates, and assigns, do hereby release, waive, and discharge all
Claims relating to the Project and the CMaR Agreement and the OR Agreement that the City ever
had, could have asserted or may have been asserted in the Action against Clark and its
subcontractors, their agents, officers, managers, insurers, directors, shareholders, partners, parents,
affiliated and sibling companies, members, limited partners, general partners, employees,
successors, insurers and assigns (collectively, the "Clark Releasees"), which the City, from the
beginning of time to the Effective Date, possessed or may possess against the Clark Releasees,
except for the rights, duties and obligations arising under this Agreement. Notwithstanding
anything to the contrary herein contained, the City does not release Clark or its subcontractors for
claims relating to or arising from latent construction defects at the Project of which the City, aiid
its agents, including but not limited to, Hill and Spectra, or any of their successors, affiliates or
assigns is unaware at the Effective Date.
In consideration of the foregoing, and subject to the limitations to the City's release set
forth in the preceding paragraph the City, its successors, affiliates, and assigns, further release,
waive, and discharge all Claims relating to the Project, the CMaR Agreement, and the Bond that
were asserted or that may have been asserted in the Action against the Sureties, their agents,
officers, members, directors, shareholders, partners, parents, affiliated and sibling companies,
members, limited partners, general partners, employees, successors, and assigns (collectively, the
127294236.1
127294236.0
Page 367 of 445
CLARK CONSTRUCTION GROUP, LLC v.
Settlement and Release Agreement
Page 11 of 17
i
i
THE CITY OF MIAMI EEA CH, FLORIDA, ET AL.
"Surety Releasees"), which the City, from the beginning of time to the Effective Date, possessed
or may possess against the Surety Releasees.
(c) In consideration of the foregoing, Hill, its successors, affiliates, and assigns,
do hereby release, waive, and discharge all Claims relating to the Project and the CMaR Agreement
and the OR Agreement that Hill ever had, could have asserted or may have been asserted in the
Action against the Clark Releasees and Surety Releasees, which Hill, from the beginning of time
to the Effective Date, possessed or may possess against the Clark Releasees and Surety Releasees.
(d) In consideration of the foregoing, the City and Hill hereby mutually release,
waive and forever discharge each other from all Claims relating to the Project, the CMaR
Agreement and the OR Agreement that were asserted or could have been asserted against each
other, their agents, officers, managers, directors, shareholders, partners, parents, affiliated and
sibling companies, members, limited partners, general partners, employees, attorneys, successors,
insurers and assigns in the Action, including, but not limited to, any claims for contractual
indemnity under the OR Agreement, and any claims against each other for reimbursement !,of
attorneys' fees, expert fees, costs, and other litigation expenses that either the City or -Hill incurred
as a result of the Complaint, Counterclaim or Third -Party Complaint.
17. Default'Notices. Any Party may issue a Notice of Default based on another Party's
failure to meet its obligations under the terms of this Agreement, and nothing contained herein
shall limit the Parties' right to issue such notice, so long as such notice is consistent with this
Agreement's terms.
18. DisputeslEnforeement:
(a) Subject to Section 18(b) below, this Court, through Private Judge the
Honorable John W. Thornton (Ret.) shall retain jurisdiction of the Action, pursuant to the Agreed
Order Granting Joint Application for Voluntary Trial Resolution Pursuant to Fla. Stat. Section
44.104, for the purpose of enforcing the terms of this Agreement, including enforcing decisions
and findings of the Decision -Maker, and resolving any disputes regarding performance thereunder
subject to Section 18(b) below. All references to the "Court" throughout this Agreement refer Ito
Judge Thornton in his capacity as voluntary trial resolution judge. The Parties agree to waive any
appellate rights with regard to Judge Thornton's ruling on any dispute. In the event Judge Thoniton
is unable or unwilling to continue his role as voluntary trial resolution judge, the Parties shall work
together in good faith to select a replacement voluntary trial resolution judge to resolve any
disputes as provided herein. If the Parties are unable to come to an agreement, the Action shall
revert to the Complex Business Division of the Eleventh Judicial Circuit in and for Miami -Dade
County, and the Parties shall ask the assigned Judge to select a replacement Private Judge to
oversee the enforcement of this Settlement Agreement.
(b) If the Parties have a dispute concerning the work performed or deliverables
submitted under this Agreement, the Parties shall submit the dispute to the Decision -Maker for
determination. All determinations and findings of the Decision -Maker shall be binding and
final and shall not be subject to any form of judicial review or. modification. The., Court's. sole ^ 1
127294236.1
127294236.0
Page 368 of 445
CLARK CONSTRUCTION GROUP, LLC v.
Settlement and Release Agreement
Page 12 of 17
i
I
THE CITY OFMIAMI BEACH, FLORIDA, ET AL:
role with respect to such decisions shall be enforcement of this Agreement based on the Decision -
Maker's findings.
(c) In the event a Party brings a dispute before Judge Thornton or the Decision -
Maker, excluding a request to certify completion of work in accordance with Sections 4(b) or 4(c)
above, the prevailing party shall be entitled to its reasonable attorney's fees and costs. The Parties
agree to waive any appellate rights with regard to Judge Thornton's or the Decision -Maker's ruling
on any dispute. The Parties agree that in the event that the Decision -Maker orders Clark to
specifically perform any of its Remaining Project Obligations but Clark fails to undertake any
efforts to perform that work within thirty (3 0) days of the applicable ruling, the maximum amount
of monetary damages the Court may award the City is the lesser of (i) double the cost of
completing the subject work, or (ii) the amount of the Performance -Based Payment associated with
the Remaining Project Obligation that Clark failed to perform.
19. Confidentiality.
(a) In consideration of the obligations under this Agreement, and subject to the
obligations of the City under the Florida Public Records Act and similar statutes, laws and
regulations, the Parties agree that this Agreement and the terns and conditions hereof are strictly,
and shall forever remain, confidential, and that no Party shall disclose or disseminate ariy
information concerning any such terms to any third person(s), including, but not limited to,
representatives of the media, except that Parties may disclose the terms of this Agreement to their
respective attorneys, accountants, tax advisors, other similar professional or the Internal Revenue
Service or other appropriate federal agencies, ("Third Parties") and as required by Florida's
Public Records Law. All Third Parties to whom such disclosure is made shall agree in advance to
be bound by the terms of this Section 19. Notwithstanding the foregoing, Clark may share this
Agreement with any of its subcontractors who performed work on the Project with no obligation
to so notify the City or Hill pursuant to Section 18(b), below.
20. Non-Disoaragement. Except as required by law, all Parties agree that they shall
not engage in any conduct or make any statement that is in any way critical of, or disparaging to,
or otherwise derogatory about any of the other Parties or any of the Parties' services, business
practices, business affairs or financial condition, or any of the Parties' owners, members, directors,
officers, employees, agents or representatives. The Parties understand and agree that their
commitment not to defame, disparage, or impugn the other Parties' reputations may constitute a
willing and voluntary waiver of their rights under the First Amendment of the United States
Constitution and other laws. However,, these non -disparagement obligations do not limit the
Parties' ability to truthfully communicate with any governmental agency, whether such
communication is initiated by the Party or in response to the government
127294236.1
127294236.0
Page 369 of 445
!M�
I
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ETAL.
Settlement and Release Agreement
Page 13 of 17
21. Miscellaneous.
(a) Amendment. The terms and provisions of this Agreement may not be
amended, modified or supplemented orally or by course of conduct or course of dealing, but only
in a writing authorized, approved, and signed by each of the Parties.
(b) Waivers. The failure of a Party to require performance of any provision of
this Agreement shall in no manner affect its right at a later time to enforce such provision. No
waiver by a Party of any condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement shall be effective unless in writing, and no waiver in any
one or more instances shall be deemed to be a further or continuing waiver of any such condition
or breach in other instances or a waiver of any other condition or breach of any other term,
covenant, representation or warranty.
i
(c) Consequential. Damages Waiver. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(d) Q- 6unterparts. This Agreement may be executed in one or more
counterparts, or by the Parties in separate counterparts, each of which when so executed shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Delivery of an executed counterpart of this Agreement by electronic .pdf format (non -modifiable)
or telecopier shall have the same force and effect as delivery of an original executed counterpart
of this Agreement.
(e) Interpretation. The headings preceding the text of Sections included in this
Agreement are for convenience only and shall not be deemed part of this Agreement or be given
any effect in interpreting this Agreement. None of the Parties shall be considered the draftsman of
this Agreement, and there shall be no presumption of construing ambiguities or interpretations
under this Agreement against a particular Party. In the event of any conflict between this
Agreement and the CMaR Agreement, this Agreement shall control.
(f) Non -Admission. Nothing in this Agreement, including the above Settlement
Sum, is to be construed as an admission of wrongdoing or of any liability by any Party. Each Pariy
acknowledges and agrees that this Agreement represents a settlement and compromise reached
between the Parties. The execution of this Agreement shall not be deemed, construed or
interpreted, in any way, to be an admission by any Party regarding liability, damages, or the
validity of any claim or defense which any Party has asserted or may assert. If this Agreement is
not fully and finally consummated by its valid and binding execution date, then no statements
contained herein shall be used for any purpose whatsoever against any Party
I
(g) Applicable: Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Florida without giving effect to the
principles of conflicts of law thereof Qo
127294236.1
127294236.0
Page 370 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL:
Settlement and Release Agreement
Page 14 of 17
(h) Assigiunerit: This Agreement shall be binding upon and inure to the benefit
of the Parties and their respective estates, heirs, legal representatives, successors and assigns;
provided, however that no assignment or transfer of this Agreement shall be permissible except by
(i) operation of law, or (ii) pursuant to an order of a court of law. Each Party represents and
warrants that no other person or entity, except their respective professionals, has or has had any
interest in the claims, demands, obligations or causes of action referred to in this Agreement,
except as otherwise set forth herein, and that it has not sold, assigned, transferred, conveyed, or
otherwise disposed of any of the claims, demands, obligations or causes of action referred to in
this Agreement.
(i) Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or enforceability of the other provisions of this
Agreement shall not be affected, and there shall be deemed substituted for the provision at -issue a
valid, legal and enforceable provision as similar as possible to the provision at issue.
0) Jurisdiction arid Venue: The Parties agree that the Court in the Action,
presently the Honorable John W. Thornton (Ret.), shall have exclusive jurisdiction to enforce and
construe the provisions of this Agreement in accordance with Section 18(a). The Parties consent
to the exercise of personal and subject matter jurisdiction therein to adjudicate any such litigation,
and waive any and all personal and subject matter jurisdiction defenses and waive any rights !it
may have to a trial by jury arising out of or relating to any dispute under this Agreement.
(k) Advice of Counsel. Each Party to this Agreement represents and warrants
that it has consulted with competent counsel of their choosing in connection with this Agreement
and prior to signing it, or that each Party has had the opportunity to consult with competent counsel
of their choosing prior to signing this Agreement and has voluntarily relinquished the right to do
SO.
(1) Entire Agreement. This Agreement represents and contains the entire
agreement and understanding among the Parties hereto with respect to all issues raised or that
could have been raised regarding the subject matter of this Agreement, with the exception of the
contemporaneously executed Supplemental Agreement between Clark and Hill. Each of the Parties
acknowledges and agrees that there are no written or oral communications or understandings
contrary, different, or that in any way restrict this Agreement and all prior agreements or
understandings within the scope of the subject matter of this Agreement are superseded in all
respects and are null and void upon the execution of this Agreement. The Parties agree they will
make no claim and waive any right they may have now or may have hereafter based upon any
alleged oral alteration, amendment, modification or any other alleged change in this Agreement.;
(m) Authority. The individuals executing this Agreement in a representative
capacity expressly represent and warrant that they are fully authorized and empowered to execute
this Agreement on behalf of the Party on whose behalf they are signing, and each Party represents
that no other persons, entities or parties in interest are required to execute this Agreement in order
to effectuate the purpose and intent of this Agreement.
127294236.1
127294236.0
Page 371 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 15 of 17
(n) Notice. All notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed delivered when personally delivered, received from an
overnight delivery courier service, or emailed to the applicable addresses as follows:
127294236.1
127294236.v1
If to Clark:
Rick Yezzi
Clark Construction Group, LLC
7500 Old Georgetown Road, Bethesda, MD 20814
riek.Yezzi ,clark construction.com
With a copy to:
Legal Department Attn: Jay Cox
Clark Construction Group, LLC
7500 Old Georgetown Road, Bethesda. MD 20814
iay.c6x(c-)clarkcongti-uction.coan and
legalreviews @clarkconstruction.com
If to the City:
City Manager
City of Miami Beach
1700 Convention Center Dr.
Miami Beach, FL 33139
Alinahudak@,miamibeachfI.gov
l.gov
With a copy to:
City Attorney Lu Prats, Esq.
City of Miami Beach Carlton Fields
1700 Convention -Center Dr. 4221 W. Boy Scourt Blvd
Miami Beach, FL 33139 Tampa, Florida 33607
Raf aelpazCmiamibeachf l.gov 1pratsCa,)carltonf ields.com
If to Hill
ties hn�G� Raj, eft 1�1a�c�r
a . —�
C-C11X e(US d
s (� R
7 16-3
tcch h; ((i n`F I . Cc /Vz-
Page 372 of 445
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MLIMI BEACH, FLORIDA, ET AL!.
Settlement and Release Agreement
Page 16 of 17
127294236.1
127294236.v1
[signature page to follow]
Page 373 of 445
11
CLARK CONSTRUCTION GROUP, LLC v. THE CITY OF MIAMI BEACH, FLORIDA, ET AL.
Settlement and Release Agreement
Page 17 of 17
i
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
and delivered as of the later date set forth below.
CLARK
By:
GROUP, LLC THE CITY OF MIAMI BEACH, FLORIDA
Print Name
Title: Dc � t�l�s►. .1 -
Date: Opz
By:
i
Print Name:
Title:
Date:
HILL INTERNATIONAL, INC.
By:
Print Name:yP
Title: (' s� Ec cO uq;C-gr i dd.0
Date:
127294236.1
127294236.0
Page 374 of 445
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
i
Cily Altorney
I
Dale
EXHIBIT A
RFI Response Follow -Up Miami Beach Convention Center 4/20/2021
compiled by Hill International, Inc. Page 375 of 445
General Revisions to the [REV S] Drawings Dated 04.06.21
Discipline & Item
Sheet or Specification Section
Drawings: All revisions, additions, deletions indicated by clouds or delta.
Reason for Change
No.
Specifications: All revisions, additions, deletions indicated by tracked changes.
08 Structural - S
Field Condition
S 1
Rev S - SCS INT Rev 18
24" HDPE Equalizer Line Support
15 Mechanical - M
Field Condition
E 1
M3002
Cooling tower modifications
Field Condition
E 2
M7000
Cooling tower modifications
compiled by Hill International, Inc. Page 375 of 445
SECTION OCCURS AT TOP
GIRT AND BOTTOM GIRT
15
'Mlsl,
X48'
oGrG i
HSS 10x8x5/16 (LLH)
GIRT CENTERED ON
UPPER AND LOWER
BOLT HOLES OF
WELDED PIPE BRACKET
AT EXP. JT. (SEE SATELLITE
IMAGE FOR LOCATION)
COLUMN IS SEPARATED INTO
(2)-18"x23.5" COLUMNS
EMBED PL
5/8"x14"xt'-0" SECTION
1/4" COVER PLATE WITH
ALL-AROUND 1/8" SEAL
WELD TO END OF HSS
3/4" DIA. A307 THREADED ROD AT EACH
BRACKET. PROVIDE ALL AROUND
SEALANT AT EACH BOLT HOLE
18' MAX. T
L
BRACKET RATED
FOR 3,000 LBS'•,`
MIN. SPACED AT
12'-0" MAX.
SECTION BETWEEN
CONCRETE COLUMNS
CORNERS MAY
(E)18"x48" BE CHAMFERED
CONCRETE TO 14" BASE
COLUMN
(2) -ROWS OF (3)-3/4" DIA. A307
THREADED RODS EMBED 12" INTO (E)
CONCRETE COLUMN WITH SIMPSON
— SET -XP ADHESIVE. FIELD LOCATE
REBAR PRIOR TO DRILLING. NOTIFY
EOR OF REBAR CONFLICTS PRIOR TO
FINAL INSTALLATION
I
ELEVATION
LOCATION OF EOUALIZEF
LINE SUPPORT GIRTS ON
NORTH FACE OF (E)
CONCRETE COLUMNS
ning: It Is aWWI of the law for any person, unless acting under the drection of a kersed architect, to allot on item in any xay. g an tern in this document la.gored, the Owing arofted, Ifother than the archdect of Moore. shag a To W the item He eeaI end thenotation °.Aered br fall. -by his cignolut, and the date of such alteration, no one specific description of the alembon.
0 Z
w
a U
a Z
w O
w
z z z
— w
it w z
N 0
U
F 2
~O W
Ur w L)
Z o W m
0 <
o a 2
ca
LLIw
cU
z
W
LL
SKETCH NUMBER:
Rev S —SCS
INT Rev 18
y u
LLJc
2 COOLING TOWER SECTION# ,COOLING TOWER SECTION 11
3 CONDENSER WATER SUPPLY HEADER
Y�
� RO
t P
F ..
1-
:a
61
L'..:� = r'i"..:. ..+. mumew bmo NARLEY71
__ menvmnemearn
MANUFACTURER'S DETAILS FOR REFERENCE
wic w
oWevl YPa mu+� bNCvl WP9 rtlrtaQ Lupy
nww W= .NPL LNPW .WWW
aw— v !!!mm!!!mm!!!mmMmm WWLi
aWM VPL WWaI ate WLe aWpq owea>t wWWP
u[aL aWDn+L oWWW vWVA ovvaq uWWP
Wlvl uvp W® �WLSY vNaV oWPRL eeW WA
r
wn.
ura�iururt-r m.,.rt.1yv[m/r1/m.m�a 0 e.n
A ^� amnm
MANUFACTURER'S DETAILS FOR REFERENCE
�• A
M7000
MIAMI BEACH
EXHIBIT B
MBCC 2021-2022
MSCC Legend
TF— RrPaf Pbnrrn --- wMsewKFTj�
DAY OF MONTH
D{YOPWEEK
1 21 3 M
T
71 B 1 9 110111 12 33 23 24 25 26 27 28 29 30
W T T P M T W T
Hall
1. IP
nem _ _I_I
I F 1 9 11M
s^F.m^s {»«ube ovu.baevnv.avbsnv..va
i ..
Hall B
Hall C
-
___ s mif lnbmabn^I PbikNrn Eaeo _
Hall D
Grand Ballroom
.mecca;
Ocean Drive
Lincoln Road
Art Deco
East Rooms
a*aT.^srom.
mxl la.mmuna Plo.rwwbr 'o
'1
West Rooms
--___I
Sunset Vista
if
EWm
DAY OF M
TH11
1 1 2
24 25
6 1 71 B 1 9 1101111IL2113114115116117118119ILD1211 121T
T F !! M T W ! M T T !!
Ha A
rFrM1 bbmabva amacaF ', 1 mamllnFinab�drl{Pm ansr
-0
{
Hall B
Hall
Hall DI
Ylra waelmMg cw..snlPnadw.eav
Grand Ballroom
•
w!T4T.4F^me
wumwrc^'>n^'giMMFbf/ n�COMoa..A ^.• 1 1
Ocean Drive
:wr.ln.mm.ea Fn.+cae lwa mbmalev+ue+en..
,•
1,•
I- 1
4 1
—j
-- taa i
Lincoln Road
o
1
I Ja!?oz u^. I � i i j 1I—
emw smPl^anun e,P.
Art Deco
East Rooms
m•w��nv. I I
West Rooms
I I I
__
j LFWemI
Sunset Vista
E"E.r^'-
DAY OF MONTH
DAY OF WEEK
31
W
4 5 6 7 B 9 10 11 12 13 14115116117118119120121122 123124125126127128129 30 31
T P M T M W T O M T W T F! B M T W
WIT
Hall
urav^via wamg
Hall B
4PJlvnva wane ,� _
Hall
Hall D
i
Inbmabnr cow..:a eanm..asw •_ '
uwawva wemE ;, emb:NWW - _ _
1I An NMI
Ww �^^via w.ira I 'cmr.wond --- _�-
mrmaanacv� mEen.nKFasw
Grand Ballroom
Ocean Drive
Lincoln Road
'
Art Deco
East Rooms
{vv.a w.mg cw.ivwM
l.m.11 Y �1 dcomP.nra.mn
LAm^IbnY Canynrar P'baln{sw I.. _. ' _ .
I I Imre
West Rooms
Sunset vista
DAY OF MONTH
"YOFWEEK
1 21 31 45 6 7 B 9 10
T P e M I T I W ITM
11112113114115 16 17 18 19 20 21 2212312412S! 26127126129 30 31
! T W T P M i W T F M T W T P
Hall A
nw mee.mr ehb31S.tdF',:�qg.'v!`Si_3'i�ty;�'3�wi�yt;'�13�',
Hall B
ac laa..
.'. ..- .i .. .. .. . . . ....._..I_-.
IveEvmN '�
Ims: m=t"
Hall C
Hall D
wN
itk�IFFli:.tK+itfSnl6ll4b A6f�rh7di6"elEEl1�.
J Ime. mEt
Grand Ballroom
Ocean Drive
E
's ._ .,`
�a70{q�}�t I�I���pp®�g�g�g��gFF�yT4E�g!�,
' 'lii7 GS'ZST7dlEYlxT{ i?98:{tRNEm naCEPD:Dlrc`
Lincoln Road
Art DecopgguRr•'•rEast
N`1�
F°d�3ji�"'q�"�"r'»�'jP�,1e�`j�,�i�
•west
Rooms
Roams
i
i I
Sunset Vista
DAY OF M THI
11 2 131 41 5 1 61 7 1 8 1 9 110111112113114115116117118
19 20 21 22 23 24 25 26 27 28 29 30 31
T w
'.sU. c'�0'rAo,gna
nmansay.s�. 1
Hall
via weE�y
arm rl 1 'orgma amanW^^sn^. mbais {nn l
Hall
mbsrsan^uFlw.rw
HallCiAYSp���yp�{,
"
o.gma Ema,wvemw
PCS 6XJIT*`T1
ps�1pp�yyq
Mori"
M...,EEL'OIP 'KIIR"iS�:Aat EE�{^n"'1
Hall D
Grand Ballroom
3
,INVv ih9,FL{f - I sam sTs{nnealr.s�a
Ocean Drive
R
pS�pym�bMw�p�yI
111g1�.*i1g etyma us Knpu. sno. ! f
�p�q7��. �Pyt��+tp��1W:��1T;�}�,gh�Il J..,.le,nam I 1 ! sm srs umv,inrva.a
Lincoln Road
Art Deco
East Rooms
g^Ai9t1LClge%308Y'al�iKI1�4.b�EriS_ _L ___—;. _ — arm lTl Mnual.walp
s
West Rooms..-J.wrr.mmm
_!r smn sts ammo erw�q
Ivan.ar. E rf.,gl � 1! 1 f 1 i 1
Sunset vista
DAY OF MO THI
11 2 3141 5 61 7 8 9 110111112113114115 16 17 18 39 20 21 22 23 24 25 26127128129 30 31
DAY OF WEEK
!Il1M1 Iwl F1lll1MIT w1T �1-191M
T T F ! M 9 P
Hall A
{ mrmaxnar . mnsnw � 11
Hall B_�__!_
I mbmeama Tr:MW O^at anwF - _ _�__. _
.
Imvmsona rRm.na masn^r
Hall C
Hall
_. _l_-_
�mFM mbamee mbmamnr ramvm ewnsne,.
._
I _ Inbmn AYv<nIFMlnananw I
Grand Ballroom
2
^�raW+Y
wmmlor:.r.
Ocean Drive
__
Lincoln Road
I mbm.wnaram.ne avnsnw �
._ I
_
_ ___�-. mbmslw�a re<elw mnsnv.
Art Deco
I mbmmnna ra<Mvve mnsn^. i
East Rooms
West Rooms
mem w.mm�{w mbmemna r.m.um eonsnew �______ I i :
i � I �
J In - '
Sunset Vista
EXHIBIT C
Miami Beach Convention Center Flex Duct
9/8/2021
BIM #
Description
Location
At 28 locations throughout Grand Ballrooms A, B acid C the flexible duct
20765
has separated from the hard duct. Exact locations are shown in
attachment in BIM360 dated June 25, 2021
Grand Ballroom A/B/C
Page 380 of 445
EXHIBIT D
Miami Beach Convention Center Skimmers List 9/8/2021
ID
Description
Location Path
1
Install Skimmer S-14
Convention Center Drive
2
Install Skimmer S-12
Convention Center Drive
3
Repair Skimmer D-18
21 st Street Park
Page 381 of 445
EXHIBIT E
Miami Beach Convention Center Light List
9/812021
BIM #110 # Description
Location
18173
The LP7 light fixtures are not installed at any of the north stalls, with the exception of the northwest. As mentioned
in other comments, the lenses are not installed at any of the stalls as well.
RESTROOMS>4.29.15 - PUBLIC RESTROOM - TYPE A
17403
Work is incomplete on all the L20 light fixtures.
1.28.08 - Loading Elevated Circulation
20189
Replace light near banyan tree
Site>NorthEast
16322
The lights installed between the stalls do not appear to be of the correct LP23 type. The plans call for five of these
fixtures yet three of the alternate are installed instead.
RESTROOMS>2.04.05 - PUBLIC RESTROOM - TYPE A
13681
The LP33A-DIM light fixture at the east meeting rooms curved soffit is not installed and/or working.
CIRCULATION PUBLIC>2.28.01 -PUBLIC CONCOURSE
10624
The LP3B-DIM light fixtures on the columns east of rid Q.8 don't turn on.
CIRCULATION PUBLIC>2.03.01 - BALLROOM
PREFUNCTION
16480
The fire rated sleeve next to door 2.07.26 is not installed
MEETING ROOM>2.07.11 - MEETING ROOM 4
15645
The LP7 light fixtures in the women's restroom stalls need to be installed and completed
RESTROOMS>4.29.15 - PUBLIC RESTROOM - TYPE A
16323
The lens covers are not installed at any of the LP7 light fixtures.
RESTROOMS>2.04.05 - PUBLIC RESTROOM - TYPE A
12087
None ofthe LP2-DIM light fixtures are installed at the east soffit.
MEETING ROOM>1.30.17 - MEETING ROOM 4
13531
None of the lighting trim kits between grids 23.73 & 23.1 are installed. This issue affects about 19 lights.
CIRCULATION PUBLIC>2.30.12 - MEETING ROOM
PREFUNCTION
18597
The D6 -DIM light fixture above the sink is not installed.
RESTROOMS>2.06.12 - TOLIET 2
16367
None of the LP7 light fixtures are installed.
RESTROOMS>2.04.03 - PUBLIC RESTROOM - TYPE A
18171
The lenses for the LP7 light fixtures are not installed at any of the stalls.
RESTROOMS>4.29.15 - PUBLIC RESTROOM - TYPE A
18581
The two west light switches on the north wall don't control anything.
BACK OF HOUSE>2.06.09 - VIP SUITE
13756
The light fixture at portals 2.29.04 & 2.29.26 are not installed.
CIRCULATION PUBLIC>2.28.08 - MEETING ROOM
PREFUNCTION
14518
The ighting underneath the cabinet is not installed.
OPERATIONS>2.14.03 - STAFF BREAK ROOM
20
Issue with Touch Screen at C, MC Dean and Cooper Lighting to Address
Lincoln Ball Room
44
West lobby 1st and 2nd lights will dim but won't turn off. MC Dean investigated and could not find problem. MC
Dean and Cooper Lighting to Address
Lobbies
28
Sunset A levels not changing. MC Dean investigated and could not find problem. MC Dean and Cooper Lighting to
Address
Sunset Ballroom
24
LP5 fixtures require DMX controls (need direction from ME). MC Dean stated this has been confused with Starry
Night fixtures which have been deleted, to confirm with Cooper Lighting
Sunset Ballroom
3
This applies to all Ballrooms, are controls to automate partitioning? ME Comment 04.09.21: For the ballrooms, the
documents require the lighting groups be controllable based on the wall positions. This does not necessarily require
wall position sensors as long as the program includes grouping of like light fixture types together for all possible wall
configurations. Further, lighting control for all possible wall configurations shall be available and selectable from the
touchscreen wall controllers. MC Dean and Cooper to confirm work has been installed per ME's comment
Ocean Ballroom Level 1
39
LP 33 -Dim to be controlled with DMX - MC Dean to verify it is completed
Grand Ballroom
40
lVerify emergency power to lights in room
Grand Ballroom
19
E and F need Touch screens troubleshot / mounted
Lincoln Ball Room
82
Entry Lights - Room 216 OK. Room 221 light is installed and has power. Cooper issue.
216-221
80
2 room entrances missing lights and covers (224- Rin. 2.29.15), (225 is Rm 2.29.15) 1 missing just cover (226 is
Rm.2.28-.05) (227 is-Rm.-2.28.06) entrance-is-ok. _
224,225,226,227
Page 382 of 445
BIM #1 ID # Description
Location
9
Missing 2 LP 27
Ocean Ballroom Level 1
11
Waiting on 2 Ballast. MC Dean Temporarily disconnect for show on 4-07-21 at Spectra request
Lincoln Ball Room
1
Waiting on Ballast. MC Dean temporarily disconnected for show on 4-07-21 at Spectra request
Ocean Ballroom Level 1
8
Ongoing: one entry, top section out -Needs to be replaced. Second Entry just missing top section cover
Ocean Ballroom Level 1
22
Ongoing; Missing 5 - LP 27 and 6 - LP29 fixtures
Lincoln Ball Room
26
3 LP 24 lights missing; will notify his office and provide update.
Sunset Ballroom
35
DMX Conrols, Fixtures need to have addresses match Channels. DMX control programmed into iLumin and
building lighting control; Ballrooms B & C functioning but B partitioning to be done via GVA software; further
troubleshooting for addressing and fixtures needed, particularly in Ballroom Av
Grand Ballroom
13
LP29-Dim, Some fixtures appear brighter than others, One set has yellow tint
Lincoln Ball Room
Page 383 of 445
EXHIBIT F
Miami Beach Convention Center Tecta Warranty List
91812021
ID
Description
Location Path
1
Warranty leak in roof
Area 1, Level 1 - Approx location 10' west of column line R and column line 3 intersection
2
Warranty leak in roof
Level 2 Service Corridor - 'A rox column line 10.52 & F
3
Warranty leak in roof
Level 4 Ram - Approx column line 10.52 & F
Page 384 of 445
EXHIBIT G
Miami Beach Convention Center Closeout List
9/13/2021
ID
Item
Description
Update submittal 260502-015.0 to remove references to 'temporary power", include any
changes mage by approximately 60 RFIS and all field changes after 03/27/2019 and
1
Electrical As-Builts
stamp drawings with "Final As Builts"
Page 385 of 445
EXHIBIT H
Greg Colevas
Division President
Clark Construction Group, LLC
7500 Old Georgetown Road
Bethesda, MD 20814
Re: Miami Beach Convention Center Renovation and Expansion
Dear Mr. Colevas,
The renovation of the Miami Beach Convention Center included a complete demolition and
reconstruction of the existing exhibit halls, meeting rooms, and pre -function and support spaces,
as well as a 263,000 square foot (SF) expansion for a total of 1,435,859 SF. There are five
ballrooms, two on the ground floor, two on the second level and a 20,000 SF glass rooftop
ballroom with an open terrace on the 3rd level overlooking the park. The 60,000 SF Grand
Ballroom was added as part of the building addition. This is the largest ballroom south of
Orlando. All new mechanical, electrical, and plumbing systems were installed, 796 new parking
spaces were added, and significant improvements were made to the facility's fagade,
landscaping, and adjacent streets. The convention center achieved LEED Silver certification
and there were 5 public art projects through the city's Art in Public Places program installed
within the facility and adjacent grounds. j
Clark Construction Group, LLC, the construction manager at risk for the project, delivered this
technically and logistically complex project. In addition, the Miami Beach Convention Center
remained open during construction to allow for planned conventions and meetings, both large
and small, to take place while the facility was under renovation. Throughout construction the
convention center was able to host more than 90 shows, including five Art Basel events, an
important show for both the convention center and the local Miami Beach economy, the 2020
NFL Experience (Super Bowl LIV) and Major League Baseball "Fanfest'. The team maintained
an outstanding safety record with more than 5,000,000 worker hours without a lost time incidenIt
and provided more than 63% of the over 7,000 jobs to local workers.
The Miami Beach Convention Center is now a magnificent and technologically advanced facility
that will meet the needs of our city and convention goers for years to come.
Sincerely,
City of Miami Beach
Page 386 of 445
EXHIBIT I
Miami Beach Convention Center - Warranties
Kahua 4
Spec Name
Submittal Category
Participant
017700-002.1
Closeout Requirements
General Warranty
Banker Steel Co., LLC
017700-003.1
Closeout Requirements
General Warranty
Brazos Urethane
017700-004.1
Closeout Requirements
General Warranty
Creative Sign Designs
017700-005.1
Closeout Requirements
General Warranty
Dash Door & Closer
017700-006.1
Closeout Requirements
General Warranty
David Allen Company, Inc.
017700-007.1
1 Closeout Requirements
General Warranty
The Duffy & Lee Carpet Company
017700-008.1
Closeout Requirements
General Warranty
Eugenio Painting Company j
017700-009.1
Closeout Requirements
General Warranty
Florida Architectural Precast
017700-010
Closeout Requirements
General Warranty
Florida Blacktop
017700-011
Closeout Requirements
General Warranty
Hayward Baker
017700-012.1
Closeout Requirements
General Warranty
HJ Foundation Company
017700-013.1
Closeout Requirements
General Warranty
Hollywood Woodwork, LLC
017700-014.1
Closeout Requirements
General Warranty
Hufcor j
017700-015.1
Closeout Requirements
General Warranty
ISEC, Inc. Eastern Division
017700-016.1
Closeout Requirements
General Warranty
Nash Mechanical, LLC
017700-017.1
Closeout Requirements
General Warranty
Robins & Morton Group
017700-018.1
Closeout Requirements
General Warranty
Rite Hite j
017700-019.1
Closeout Requirements
General Warranty
Specified Architectural Systems
017700-020.1
Closeout Requirements
General Warranty
Superior Landscaping
017700-021.1
Closeout Requirements
General Warranty
Tate Ornamental, Inc.
017700-022
Closeout Requirements
General Warranty
Therma Seal Insulation Systems, Inc.
017700-023.1
Closeout Requirements
General Warranty
Trident Surfacing, Inc.
017700-024.1
Closeout Requirements
General Warranty
Tru Steel
017700-027.1
Closeout Requirements
General Warranty
Argyle Security
017700-028.1
Closeout Requirements
General Warranty
Ford Audio -Video Systems, LLC j
017700-029.1
Closeout Requirements
General Warranty
Decon Environmental j
017700-030.2
Closeout Requirements
General Warranty
Won -Door
017700-031
Closeout Requirements
General Warranty
American Fireproofing
017700-032
Closeout Requirements
General Warranty
Pro -Bel
017700-033
Closeout Requirements
General Warranty
Overhead Door
017700-034
Closeout Requirements
General Warranty
Apex j
017700-035.1
Closeout Requirements
General Warranty
Lutron Electronics
017700-036.0
Closeout Requirements
General Warranty
Trex
017700-037.0
Closeout Requirements
General Warranty
Mardale
017700-038.0
Closeout Requirements
General Warranty
National Fire Protection
017700-039
Closeout Requirements
General Warranty
Harmon, Inc.
017700-040
Closeout Requirements
General Warranty
WPM Southern
017700-041
Closeout Requirements
General Warranty
East Coast Strutures
017700-042
Closeout Requirements
General Warranty
Camarata Masonry
017700-043.0
Closeout Requirements
General Warranty
M C Dean, Inc.
017700-044.0
Closeout Requirements
General Warranty
Royce Integrated Solutions
017700-045
Closeout Requirements
General Warranty
C.S.E. Paving
017700-046.1
Closeout Requirements
General Warranty
Otis Elevator Company
017700-047
Closeout Requirements
General Warranty
Arazoza Brothers Corp
017700-048
Closeout Requirements
General Warranty
P&J Stripping
017700-050
Closeout Requirements
General Warranty
Homestead
017700-051
Closeout Requirements
General Warranty
Acousti Engineering Co of Florida
017700-052.0
Closeout Requirements
General Warranty
Tecta America South Florida j
017700-053
Closeout Requirements
General Warranty
Honeywell International
07 0150.61-015
Roof Re -Coating
Manufacturers Warranty
Tecta America South Florida
070150.61-016
Roof Re -Coating
Warranty
Tecta America South Florida
071326-022
Self -Adhering Sheet Waterproofing
Special Warranty
Tecta America South Florida j
071413-047
Hot Fluid -Applied Rubberized Asphalt Waterproofing
Special Warranty
Tecta America South Florida j
071413-048
Hot Fluid -Applied Rubberized Asphalt Waterproofing
Special Warranty
Tecta America South Florida
074213.23-006
Metal Composite Material Wall Panels
Special Warranty
Tate Ornamental, Inc.
074213.23-007
Metal Composite Material Wall Panels
Special Warranty
Tate Ornamental, Inc.
075423-039
Thermoplastic Polyolefin (Tpo) Roofing
Special Warranty
Tecta America South Florida
075423-040
Thermoplastic Polyolefin (Tpo) Roofing
Special Warranty
Tecta America South Florida
077129-017.0
Manufactured Roof Expansion Joints
Special Warranty
Tecta America South Florida
079200-019.1
Joint Sealants
Manufacturers Warranty
Therma Seal Insulation Systems, Inc.
079200-020.1
Joint Sealants
Special Warranty
Therma Seal Insulation Systems, Inc.
079200-021
Joint Sealants
Manufacturers Warranty
Harmon, Inc.
079200-022
Joint Sealants
Special Warranty
Dash Door & Closer
079200-023
Joint Sealants
Manufacturers Warranty
Dash Door & Closer
079200-024
Joint Sealants
Special Warranty
Eugenio Painting Company
079200-025.0
Joint Sealants
IManufacturers Warranty
Eugenio Painting Company
079219-003
Acoustical Joint Sealants
Manufacturers Warranty
Acousti Engineering Co of Florida
Page 387 of 445
Miami 'Beach Convention Center - Warranties
Kahua #
Spec Name
Submittal Category
Participant
079219-004
Acoustical Joint Sealants
Special Warranty
Acousti Engineering Co of Florida
081416-003
Flush Wood Doors
Special Warranty
Argyle Security
081416-004
Flush Wood Doors
Special Warranty
Hollywood Woodwork, LLC
083340-005.1
Overhead Coiling Smoke and Fire Curtains
Manufacturers Warranty
Specified Architectural Systems
083483-007.1
Elevator Door Smoke Containment System
Manufacturers Warranty
Specified Architectural Systems
084110-022
1 Storefront Glazing System
Special Warranty
Harmon, Inc.
084110-022
Storefront Glazing System
Special Warranty
Harmon, Inc.
084110-024
Storefront Glazing System
Special Warranty
Dash Door & Closer
084110-024
Storefront Glazing System
Special Warranty
Dash Door & Closer
084413-077
Glazed Aluminum Curtain Walls
Warranty
Harmon, Inc.
084413-078
Glazed Aluminum Curtain Walls
Special Warranty
Harmon, Inc. j
084413-080.1
Glazed Aluminum Curtain Walls
Special Warranty
Harmon, Inc.
084413-080.1
Glazed Aluminum Curtain Walls
Warranty
Dash Door & Closer
085653-004
Security Windows
Special Warranty
Dash Door & Closer !
087100-017
Door Hardware
Special Warranty
Harmon, Inc.
087100-017
Door Hardware
Special Warranty
Dash Door & Closer
087100-017
Door Hardware
Warranty
Dash Door & Closer
087100-017
Door Hardware
Warranty
Dash Door & Closer
087100-017
Door Hardware
Warranty
Argyle Security
088000-013
Glazing
Warranty
Dash Door & Closer
088000-016
Glazing
Warranty
Harmon, Inc.
088000-017
Glazing
Warranty
Harmon, Inc.
088000-018
Glazing
Warranty
Hannon, Inc.
088000-019
Glazing
Warranty
Harmon, Inc.
088000-020
Glazing
Warranty
Harmon, Inc.
088000-021.1
Glazing
Warranty
Dash Door & Closer !
088113-002
Decorative Glass Glazing
Special Warranty
Hollywood Woodwork, LLC
088113-002
Decorative Glass Glazing
Special Warranty
Dash Door & Closer
088300-005
Mirrors
Special Warranty
Dash Door & Closer
095443-008
Stretched -Fabric Ceiling Systems
Special Warranty
Acousti Engineering Co of Florida
096813-014
Tile Carpeting
Special Warranty
The Duffy & Lee Carpet Company;
097723-007
Fabric -Wrapped Panels
Special Warranty
Acousti Engineering Co of Florida!
098433.13-005.1 Metal -Faced Sound -Absorbing Wall Units
Special Warranty
Acousti Engineering Co of f lorida
098433-011
Sound -Absorbing Wall Units
Special Warranty
Acousti Engineering Co of Florida
101401-003
Exterior Signage
Warranty
Creative Sign Designs
102238-013.1
Operable Panel Partitions
Special Warranty
Hufcor
102239-009.1
Folding Panel Partitions
Special Warranty
Specified Architectural Systems
102600-009.0
Wall And Door Protection
Special Warranty
Mardale
102800-001
Toilet, Bath, And Laundry Accessories
Warranty
Mardale
102800-011.0
Toilet, Bath, And Laundry Accessories
Special Warranty
Mardale
105113-003.1
Metal Lockers
Special Warranty
Mardale .
111233-007.0
Parking Gates
Warranty
Royce Integrated Solutions
111319-005
Stationary Loading Dock Equipment
Manufacturers Warranty
Rite Hite
114000-059
Closeout Requirements
General Warranty
Baring Industries
114000-059
Food Service Equipment
Warranty
Baring Industries
133423.16-004
Fabricated Control Booths
Special Warranty
Honeywell International
133429-008
Fabricated Engineered Structures
Special Warranty
Harmon, Inc.
133429-009 ,
Fabricated Engineered Structures
Special Warranty
Harmon, Inc.
142100-031
Electric Traction Elevators
Manufacturers Warranty
Otis Elevator Company
142400-031
Hydraulic Elevators
Manufacturers Warranty
Otis Elevator Company
142713-010
Custom Elevator Cab Finishes
Special Warranty
Otis Elevator Company
143100-032.0
Escalators
Manufacturers Warranty
Otis Elevator Company
221123-002.1
Domestic Water Booster
Warranty
Nash Mechanical, LLC
221500-015.0
Compressed Air System
Warranty
Nash Mechanical, LLC !
223000-037.0
Plumbing Equipment
Warranty
Nash Mechanical, LLC
223000-037.0
Plumbing Equipment
Warranty
Nash Mechanical, LLC
230502-006.1
Basic Mechanical Requirements
Warranty
Nash Mechanical, LLC
230900-015.0
Building Automation And Automatic Temperature Control Systen Warranty
Honeywell International
233600-009.0
Air Terminal Units
Warranty
Nash Mechanical, LLC
233600-009.0
Air Handling Units With Coil
Warranty
Nash Mechanical, LLC
236416-007
Centrifugal Water Chillers
Warranty
Nash Mechanical, LLC
260913-002
Electrical Power Monitoring -
Warranty
M C Dean, Inc.
260933-004.0
Central Dimming Controls
Warranty
M C Dean, Inc.
260943-022.0
Network Lighting Control
Manufacturers Warranty
M C Dean, Inc.
260943-022.0
Network Lighting Control
Warranty
M C Dean, Inc.
262213-012.0
Low Voltage Distribution Transformers
IManufacturers Warranty
M C Dean, Inc.
262500-013.0
lEnclosed Bus Assemblies
lWarranty
I M C Dean, Inc.
Page 388 of 445
Miami Beach Convention Center - Warranties
Kahua #
Spec Name
Submittal Category
Participant
263005-009
Utility Floor Boxes
Warranty
M C Dean, Inc.
263353-010.1
Static Uninterruptible Power Supply
Warranty
M C Dean, Inc.
264314-007.0
Surge Protective Device (Spd)
Warranty
M C Dean, Inc.
265113-026.0
Lighting Fixtures
Warranty
Trex
265113-028
Lighting Fixtures
Warranty
M C Dean, Inc.
281300-007
Access Control System
Warranty
Honeywell International
282300-023
Video Surveillance System
Warranty
Honeywell International
283111-034
Digital, Addressable Fire -Alarm System (Voice Evacuation)
Special Warranty
Honeywell International
313116-004
Termite Control
Special Warranty
Apex
321218-006
Crushed Shell Aggregate
Special Warranty
Superior Landscaping
328400-012
Irrigation Systems
Warranty
Superior Landscaping
329300-035
lPlants And Planting
Warranty
Superior Landscaping
329300-036
IPlants And Planting
Warranty
Arazoza Brothers Corp
'Page 389 of 445
THIS PAGE INTENTIONALLY LEFT BLANK
Resolutions - R7 I
MIAMI BEAH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager and Rafael A. Paz, Acting
City Attomey
DATE: September 30, 2021
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT
AGREEMENT BETWEEN CLARK CONSTRUCTION GROUP, LLC
("CLARK"), HILL INTERNATIONAL INC. ("HILL"), AND THE CITY OF MIAMI
BEACH, FLORIDA ("SETTLEMENT AGREEMENT"), AS ATTACHED TO THE
COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, TO
SETTLE THE LITIGATION STYLED AS CLARK CONSTRUCTION GROUP,
LLC, VS. THE CITY OF MIAMI BEACH AND HILL INTERNATIONAL INC.,
ELEVENTH JUDICIAL CIRCUIT, CASE NO. 2020-002129 CA 01, -IN
CONNECTION WITH THE MIAMI BEACH CONVENTION CENTER
REDEVELOPMENT PROJECT ("PROJECT"), AND AUTHORIZING THE
CITY TO (1) RELEASE THE $X MILLION IN RETAINAGE WITHHELD
FROM PAY APPLICATIONS UNTIL CONTRACT COMPLETION, IN
PAYMENT FOR WORK PERFORMED ON THE PROJECT; (2) APPROVE
PAYMENT OF $X MILLION WITHHELD AS LIQUIDATED DAMAGES FROM
CLARK ON THE PROJECT PAY APPLICATIONS TO ACCOUNT FOR
PROJECT -RELATED SCHEDULE DELAYS, IN PAYMENT FOR WORK
PERFORMED ON THE PROJECT; AND (3) APPROVE PAYMENT OF AN
ADDITIONAL TOTAL AMOUNT OF $X MILLION, IN FULL SATISFACTION
OF ALL PROJECT -RELATED CLAIMS ASSERTED BY CLARK AGAINST
THE CITY, IN THE TOTAL AMOUNT OF $X MILLION, INCLUDING,
WITHOUT LIMITATION, EXTRA WORK AND CHANGE ORDERS, CLARK'S
CLAIM FOR GENERAL CONDITIONS, AND SUBCONTRACTOR IMPACT
CLAIMS; WITH THE TOTAL SETTLEMENT AMOUNTS TO BE PAID BY THE
CITY IN THE FOLLOWING INSTALLMENT PAYMENTS TO CLARK: $X
MILLION ON OR BEFORE OCTOBER 15, 2021; $X MILLION ON OR
BEFORE DECEMBER 31, 2021; $X MILLION ON OR BEFORE THE
OUTSIDE DATE OF MAY 15, 2022; $X MILLION ON OR BEFORE
DECEMBER 31, 2022; AND $X IN PERFORMANCE BASED PAYMENTS
TIED TO THE COMPLETION OF THE REMAINING WORK MILESTONES
AS SET FORTH IN THE SETTLEMENT AGREEMENT; AND FURTHER,
AUTHORIZING THE CITYMANAGERAND CITYATTORNEYTO TAKE THE
NECESSARY AND APPROPRIATE STEPS FOR THE IMPLEMENTATION
OF THE SETTLEMENT AGREEMENT, AND AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE THOSE DOCUMENTS
Page 346 of 397
AND/OR AGREEMENTS NECESSARY TO EFFECTUATE THE
SETTLEMENT AGREEMENT CONSISTENT WITH THIS RESOLUTION.
(ITEM TO BE SUBMITTED IN SUPPLEMENTAL)
SUPPORTING SURVEY DATA
N/A
Is this a "Residents Right
to Know" item, pursuant to
City Code Section 2-14?
Yes
Does this item utilize G.O.
Bond Funds?
No
Legislative Tracking
Office of the City Attorney/Office of the City Manager
Page 347 of 397