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Temporary EasementcJOI:l-cJ79'30 Return to: Liliana M. Rainey-Lacau Water and Sewer Real Estate Manager Miami-Dade Water and Sewer Department 3071 SW 38 1h Ave (LeJeune Road , 2nd Floor) Miami, Florida 33146 TEMPORARY EASEMENT 1111111111111111111111 11111111111111111111111 CFN 2012R0552450 OR Bk 28218 P9s 1652 -1752; (101P95 RECORDED 08 /07/201 2 10:53:23 HARVEY RUVINr CLERK OF COURf MIAMI-DADE COUNTYr FLORIDA Reserved fo r Circui t Co urt THIS GRANT OF A TEMPORARY EASEMENT FOR INGRESS-EGRESS, CONSTRUCTION STAGING, AND CONSTRUCTION WORK RELATED TO THE CONSTRUCTION AND INSTALLATION OF A NEW 60-INCH (60") FORCE MAIN is entered into this _1_ day of 1\IJ ~2012 ("Effective Date "), between the CITY OF MIAMI BEACH , a municipal corporation of the State of Florida , and its successors and assigns (hereinafter called GRANTOR), and MIAMI-DADE COUNTY , a political subdivision of the State of Florida , whose mailing address is c/o Miami -Dade Water and Sewer Department, P .O . Box 330316 , Miami , FL 33233-0316 , and its successors and assigns (hereinafter called GRANTEE); 1. Grant of EASEMENT. The GRANTOR , for and in consideration of the sum of TEN DOLLARS ($1 0 .00), and other good and valuable consideration , the receipt and sufficiency of which are hereby acknowledged , hereby grants to the GRANTEE, an exclusive temporary EASEMENT (the "EASEMENT") solely for purposes of ingress-egress , construction staging, and construction work related to GRANTEE 'S construction and installation of an emergency 60-inch (60") sanitary sewage force main ("GRANTEE'S PROJECT" or the "PROJECT"), on, over, and under certain property of the GRANTOR in South Pointe Park , 1 Washington Avenue, Miami Beach , FL , as such property is more specifically described and delineated in EXHIBIT "A," attached hereto and made a part hereof (the "EASEMENT AREA "). GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER TO GRANTEE WITH RESPECT TO THE CONDITION OF THE EASEMENT AREA. GRANTEE IS ACCEPTING THE EASEMENT AREA ON AN "AS IS" "WHERE IS" BASIS AND ASSUMES Page 1 of21 ALL RISK WITH RESPECT TO THE CONDITION THEREOF INCLUDING, WITHOUT LIMITATION , THEREUNDER OR APPURTENANT THERETO , WHETHER KNOWN OR UNKNOWN TO GRANTOR. Notwithstanding the preceding paragraph, GRANTOR hereby advises GRANTEE that it is a party to that certain litigation styled The Citv of Miami Beach , Florida v. Hargreaves Associates, Inc., et at., Circuit Court Case No . 10-61979 CA 40 (the "South Pointe Park Litigation "). As Plaintiff in the South Pointe Park Litigation , GRANTOR alleges certain design and construction defects regarding certain components which comprised the South Pointe Park Improvement Project including , without limitation , the turf grass and soils , irrigation, the Washington Avenue water feature (the "water feature "), the Pylon lights , the children's playground and the Pavilion . Accordingly, prior to the Commencement Date (as hereinafter defined), representatives of GRANTOR and GRANTEE , including a representative of GRANTEE 'S PROJECT General Contractor, Ric-Man Construction, Inc. ("GRANTEE 'S Contractor" or "General Contractor"), shall jointly conduct a site inspection of the water feature located in South Pointe Park, which water feature is also at issue in the South Pointe Park Litigation, in order for GRANTEE and GRANTEE'S Contractor to inspect the working order and condition of such water feature ; following which GRANTOR and GRANTEE shall mutually agree upon and establish , in writing, the "baseline condition " for the water feature existing as of the Commencement Date of this EASEMENT (the "Baseline Condition Document"). The parties acknowledge that the water feature has been prohibited from operation since July 2009 due, in part, to the Florida Department of Health 's refusal to issue a permit for operation of the water feature as des igned and constructed . The "baseline condition " shall be based upon observations and information obtained during the inspections performed by GRANTOR , GRANTEE and GRANTEE 'S Contractor on (i) July 16, 2012; and (ii) on July 27 , 2012 (specifically to measure the existing water flow/water pressure of the water feature); and will also incorporate by reference the allegations in the Second Amended Complaint in the South Pointe Park Litigation . The Baseline Condition Document shall be attached hereto and incorporated herein as EXHIBIT "E." Notwithstanding the second paragraph of this Section 1, GRANTOR shall release GRANTEE and GRANTEE'S Contractor for any claims (including, without limitation, the South Pointe Park Litigation), liabilities , and damages regarding any condition , or conditions , in the water feature which existed prior to the Commencement Date and , specifically, which are Page 2 of21 established and memorialized in the written document to be prepared and signed off on by GRANTOR and GRANTEE establishing the "baseline condition " for the water feature . 2. Uses . 2.1 The GRANTEE shall use the EASEMENT and the EASEMENT AREA during the Term provided herein solely for the express purposes provided in Section 1 hereof, and more specifically described in this Section 2 . GRANTEE shall , at all times, utilize the EASEMENT AREA so as not to unreasonably conflict with the GRANTOR 'S operation and maintenance of those areas , including portions of South Pointe Park , which are not included w ithin the EASEMENT AREA. The GRANTOR shall have full right to enter upon the EASEMENT AREA , upon twenty-four (24) hours' written notice to the GRANTEE 'S Project Manager for non- emergency purposes; and upon a telephone call to said Project Manager, in the event of an emergency . Nothing contained herein shall be construed as prohibiting the GRANTOR, at its discretion (but not as its duty), from assisting or acting in an emergency affecting safety of persons or property . However, in providing such assistance or in taking such action(s), the GRANTOR shall only be responsible for its own costs (if any) associated therewith for those actions taken during emergencies not caused by GRANTEE 'S activities and use of the EASEMENT and EASEMENT AREA. 2.2 The GRANTEE may use the EASEMENT and the EASEMENT AREA solely for the following purposes : (a) ingress and egress (i.e. for ingress and egress to and from that portion of the EASEMENT AREA utilized by GRANTEE for construction staging , and to perform that portion of construction work on GRANTEE 'S PROJECT within the EASEMENT AREA). GRANTEE shall only be permitted to enter and exit the EASEMENT AREA from the west half of Washington Avenue , and shall not be permitted to enter, stage , store any materials and/or utilize the South Pointe Park municipal parking lot adjacent to Washington Avenue for any work related to or arising out of the PROJECT work to be performed within the EASEMENT AREA ; (b) temporary construction staging purposes in connection with the PROJECT including, without limitation , storage of materials and Page 3 of21 equipment related only to the portion of the PROJECT work to be performed within the EASEMENT AREA; and (c) to perform such portion of the PROJECT construction work (including installation) within the EASEMENT AREA. Prior to its use of the EASEMENT AREA in connection with subsections 2.2(b) and (c) above, GRANTEE , at its sole cost and expense, shall install a temporary fence , which shall be an eight foot (8') high chain link fence with top rail and privacy screen , around the complete area of that portion of the EASEMENT AREA (as delineated in the sketch attached as EXHIBIT "A" hereto) to be used for staging (including storage) and construction activities. The exact location of this fence, as well as its design and function , shall be subject to the prior written consent of GRANTOR, which consent shall not be unreasonably withheld, conditioned or delayed . GRANTEE shall, at its sole cost and expense, maintain this fence in good repair and condition because the fence will be viewed by users of South Pointe Park and (in some cases) by residents and visitors by/to the surrounding South of Fifth Street neighborhood. Damaged or broken sections, regardless of circumstance or cause, shall be repaired by GRANTEE within a reasonable timeframe, but not later than five (5) business days after written notice from GRANTOR. 2.3 The GRANTEE shall take reasonable precautions within the EASEMENT AREA for the safety of, and shall provide reasonable protection to prevent damage , injury or loss to , persons or property including , without limitation , employees, visitors to and residents of the surrounding site and those portions of the site and buildings adjacent to the EASEMENT AREA. 2.4 The GRANTEE shall not cut, disconnect, or disturb any of the GRANTOR 'S existing utility and/or service lines of any nature without the prior written consent of the GRANTOR, which consent shall not be unreasonably withheld. Prior to the work being performed, the GRANTEE shall identify the existing lines and notify the GRANTOR , in writing , as to any required and/or anticipated relocation of utility and/or service lines to perform the PROJECT work. GRANTEE shall be responsible for all costs associated with relocating any of GRANTOR'S utility and/or services lines of any nature . GRANTEE shall notify each utility company owning utility lines within the EASEMENT AREA prior to the work being performed, to arrange for positive underground location, relocation or support of its utility , where that utility may be in conflict with or endangered by GRANTEE 'S work and/or other activities. All costs of Page 4 of21 relocation of utility lines owned by ut ility companies shall be the responsibility of the utility company involved . 2.5 The GRANTEE shall not encroach upon any other of GRANTOR 'S property beyond the boundaries of the EASEMENT AREA including , without limitation , the remainder of South Pointe Park. 3. Term. The term of this EASEMENT and the easements granted herein ("Term ") shall commence on the date of recordation of this EASEMENT by GRANTEE in the public records ("Commencement Date"), and shall automatically terminate (and , accordingly, the EASEMENT will automatically cease and the EASEMENT AREA will be automatically surrendered by GRANTEE) on December 31 , 2013 ("Termination Date "), without the necess ity of any further action by GRANTOR , unless extended as provided below or pursuant to subsection 14 .18 herein. Upon termination, GRANTEE and GRANTOR will no longer have any rights in conjunction with the easements granted herein, other than terms that survive the termination of this EASEMENT. Notwithstanding the preceding, should the PROJECT be completed , or should the EASEMENT be abandoned or discontinued by the GRANTEE , before the Termination Date, this EASEMENT will automatically terminate on such date , without the necessity of any further action by GRANTOR (and the parties hereto will no longer have any rights in conjunction with the easements granted herein other than those rights that survive the termination of this EASEMENT). Termination of the EASEMENT shall be evidenced by written notice of such termination recorded by GRANTEE in the public records . In the event that GRANTEE 'S PROJECT is not completed by the Termination Date , and provided further that GRANTEE is not in default under the provisions of this EASEMENT, the Term may be extended upon mutual agreement of the parties: as to GRANTEE , by agreement of the County Mayor or the Mayor's designee , and as to GRANTOR , by approval of the Mayor and City Commission of the City of Miami Beach . The GRANTEE 'S and GRANTOR 's obligations under this EASEMENT shall remain in full force and effect following expiration of the Term , any extension of the Term or any termination of the EASEMENT as provided herein. 3.1 Construction Schedule. It is understood that GRANTEE will construct and install (or cause to be constructed and installed) GRANTEE'S PROJECT in substantial accordance with the construction schedule which has been approved by the parties, and which is attached hereto and incorporated herein as EXHIBIT "8" (the "PROJECT Construction Page 5 of21 Schedule "). While the PROJECT Construction Schedule indicates the scope and sequence of such construction , GRANTEE reserves the right to modify the PROJECT Construction Schedule ; provided , however that GRANTEE (i) shall promptly notify GRANTOR of any changes to the PROJECT Construction Schedule ; (ii) shall coordinate any substantial changes with GRANTOR (because any substantial changes may impact GRANTOR 'S operation of South Pointe Park , and/or the surrounding South of Fifth Street neighborhood); and (iii) shall obtain GRANTOR 'S prior written consent if any such modification of the PROJECT Construction Schedule involves an extension of the : (A) boundaries of the EASEMENT AREA ; (B) the Term ; and/or (C) the permitted hours of operation (as set forth below). The GRANTEE shall furnish to the GRANTOR (or its designated Owner Representative , as defined in subsection 14 .16 herein) periodic progress reports on the PROJECT including, without limitation , any significant and/or anticipated delays in the performance of the work . These progress reports shall be provided no later than two (2) months after the Commencement Date, and every two (2) months thereafter or earlier (as appropriate). 3.2 Hours of Operation . GRANTEE may utilize the EASEMENT AREA during the Term without GRANTOR'S prior written approval , during the following permitted days and hours of operation: (a) for storage of equipment and materials including those components needed for construction staging -at any time or times ; (b) for ingress-egress-at any time or times , provided GRANTEE complies with the GRANTOR 'S Noise Ordinance (as same may be amended from time to time); (c) for construction and installation work related to the micro-tunneling phase of the PROJECT -in accordance with the permitted hours of construction for the zoning district within which the EASEMENT AREA is located (which area is zoned "GU "), as such hours are set forth in Section 46-156 of the City of Miami Beach Code ("City Code "), as same may be amended from time to time ; and (d)for construction and installation work related to all other phases of the PROJECT -in accordance with the permitted hours of construction for the zoning district within which the EASEMENT AREA is located ("GU "), as such hours are set forth above and in Section 46-156 of the City Code (as same may be amended from time to time). Page 6 of2 1 As of the Commencement Date , the City Code permits construction activities in areas zoned GU between the hours of 7:30 AM and 6 :30 PM , and between the hours of 7:30AM and 7 :30 PM during daylight savings time, on any day, provided that construction noise that violates Section 46-152 of the City Code (as same be amended from time to time) shall not be permitted on Sundays or on national holidays . GRANTEE acknowledges that GRANTOR has provided it with true and correct copies of City Code Sections 46 -152 and 46-156, prior to the Commencement Date of this EASEMENT. If GRANTEE needs to utilize the EASEMENT AREA on any day(s) or time(s) other than as expressly permitted above, then GRANTEE must obtain GRANTOR 'S City Manager's prior written approval , which approval will not be unreasonably withheld , conditioned , or delayed . Notwithstanding anything contained in this subsection 3.2 including, without limitation , subsections 3.2(c) and (d) above , the GRANTOR'S City Manager may authorize any necessary construction activities to occur earlier and/or later than as otherwise provided in Section 46 -156 of the City Code, based upon a finding that: (i) there are no other reasonable alternatives; (ii) there are no prior City Code violation cases aga inst GRANTEE , GRANTEE'S General Contractor, or the construction site ; and (iii) there is a significant community need , public purpose or benefit. 4. Use Fee . In acknowledgement of the public nature of GRANTEE 'S PROJECT and the public benefit to the City of Miami Beach associated therewith and, further , in consideration of GRANTEE 'S agreement in Section 7 hereof to restore the EASEMENT AREA and compensate GRANTOR for such additional restoration to the EASEMENT AREA (and to South Pointe Park) (to the extent provided in Section 7 hereof), GRANTOR hereby agrees to waive GRANTOR 'S customary use fee for GRANTEE 'S use of the EASEMENT AREA during the Term provided herein . 5. Maintenance. At all times during the Term, the GRANTEE, at its sole cost and expense, shall properly and adequately maintain the EASEMENT AREA in a safe , clean and neat condition, and shall make all repairs necessary to keep the EASEMENT AREA in such condition . The GRANTEE , at its sole cost and expense , shall maintain the EASEMENT AREA in a neat and clean condition , free from any and all garbage , waste materials , or rubbish caused by operations of the PROJECT. If all or any portion of the EASEMENT AREA is not kept in a condition reasonably acceptable to GRANTOR, GRANTOR and/or its Owner Representative shall notify the GRANTEE , in writing , of any deficiency(ies), and GRANTEE shall correct such Page 7 of21 deficiency(ies) within 48 hours of said notice . In the event GRANTEE fails to timely comply with the foregoing obligation , GRANTOR shall have the right (but not the duty), at GRANTOR'S sole option and discretion, to correct the deficiency(ies), in which event GRANTEE shall promptly reimburse GRANTOR for the reasonable costs incurred by GRANTOR in connection therewith , but in no event later than thirty (30) days following receipt of an invoice therefor. 6 . Repairs. GRANTEE will promptly repair (or cause to be repaired) any damages to the subsurface portion (or portions) of the EASEMENT AREA , AND/OR to any and all portion(s) of the remainder of South Pointe Park outside of the EASEMENT AREA , caused by, through, under, arising out of and/or resulting from the work performed by GRANTEE, GRANTEE 'S General Contractor for the PROJECT , or any of their respective employees , subcontractors , laborers, or material suppliers . Upon receipt of written notice from GRANTOR, GRANTEE shall perform such repairs within a reasonable timeframe , but commencing and completing such repai rs not later than five (5) business days after written notice thereof. However, in the event of an emergency , affecting the safety of persons or property , GRANTEE shall immediately commence repairs to mitigate the damages caused therefrom at its sole cost and expense . If such repairs will require additional time beyond the 5 business days set forth herein , GRANTEE shall provide prompt written notice to GRANTOR and/or its Owner Representative of the additional time required for completing such repai rs and the basis therefor. If GRANTOR and/or its Owner Representative determine such time extension or delay in performing repairs beyond 5 business days is unreasonable and/or if GRANTEE fails to perform any of its obligations under this Section 6, GRANTOR shall have the right (but not the duty), to correct any condition and/or to make repairs , and the reasonable costs thereof shall promptly be reimbursed and/or paid by GRANTEE after written notice of the same , but no later than thirty (30) days after receipt of written notice thereof. Notwithstanding the foregoing provisions of this Section 6, GRANTEE shall not be responsible for repairing any damage to the subsurface portion (or portions) of the EASEMENT AREA and/or to the remainder of South Pointe Park , as to the EASEMENT AREA , to the extent it is caused by the gross negligence , recklessness or willful misconduct of GRANTOR, and/or its officers , employees , or contractors ; and , as to the remainder of South Pointe Park , to the extent it is caused by the gross negligence , recklessness or willful misconduct of GRANTOR, its officers , employees , contractors , agents , licensees, invitees, and guests as a result of their (respective) use of the Park . It is understood Page 8 of21 that the provisions under this Section 6 are intended to govern in situations otherwise not addressed in Section 7 herein and EXHIBIT "C" hereto. 7. Restoration. Notwithstanding anything to the contrary contained herein , and not including any repairs that may be required pursuant to Section 6 hereof, immediately following the Termination Date (or immediately upon earlier termination of this EASEMENT, as the case may be), GRANTEE shall promptly restore the EASEMENT AREA to the extent that GRANTEE shall return the EASEMENT AREA to pre-existing grades and in accordance with the terms , obligations and conditions delineated as "ITEMS TO BE RESTORED BY COUNTY" as set forth in EXHIBIT "C," which is attached hereto and incorporated here in. As additional consideration and inducement for GRANTOR 'S execution of the EASEMENT and GRANTOR 'S waiver of its customary use fee as set forth in Section 4 he rein , , GRANTEE shall pay to GRANTOR the sum of Three Hundred Fifteen Thousand Dollars ($315,000) (the "Restoration Credit "), which GRANTOR and GRANTEE agree constitutes the reasonable value of certain restoration work not included as "ITEMS TO BE RESTORED BY COUNTY" in EXHIBIT "C," but which is required to fully restore the EASEMENT AREA to the condit ion of its existence prior to GRANTEE 'S use and utilization thereof. The Restoration Credit to be paid as follows: thirty percent (30%) within thirty (30) days of execution of this EASEMENT and the balance to be paid upon termination and/or expiration of the Term. Upon GRANTEE 'S restoration of the EASEMENT AREA as provided in the first paragraph of this Section herein , GRANTOR'S and/or its Owner Representative 's inspection and acceptance of the repairs and restoration work as compliant with the terms of this EASEMENT and the EXHIBITS attached hereto and incorporated herein , and GRANTEE 'S payment in full of the Restoration Credit to GRANTOR , GRANTOR shall fully release the GRANTEE and GRANTEE 'S General Contractor from any and all liability regarding restoration and/or repairs in the EASEMENT AREA and South Pointe Park . However, GRANTOR does not release GRANTEE and/or its General Contractor for any latent defects in the repairs and/or restoration work that were not reasonably discoverable prior to GRANTOR 'S inspection and acceptance of said work . 8. Indemnification. 8.1. To the fullest extent permitted by law , and subject to the conditions and limitations provided for tort claims under Section 768.28, Flor ida Statutes, GRANTEE , shall indemnify and hold harmless GRANTOR , its officers and employees , from any costs , liabilities , Pag e 9 of21 claims , losses , and damages (including , without limitation , reasonable attorneys' fees and disbursements at the trial level and all levels of appeal), whether suit is instituted or not , relating to death of or injury to persons , or loss of or damage to property, resulting from , arising out of, or incurred in connection with the existence and use of the EASEMENT and the EASEMENT AREA by GRANTEE , and/or its officials , employees , contractors, and agents ; and including , but not limited to , any violation by the GRANTEE , and/or its officials , employees, contractors , and agents (including , without limitation , Ric -Man Construction , Inc.), of any laws , rules , regulations or ordinances regarding hazardous materials, hazardous wastes, hazardous substances, solid waste , or pollution , whether now existing or hereafter enacted or promulgated , as they may be amended from time to time ("Environmental Laws"); any presence , release , or threat of release of hazardous materials , hazardous wastes , hazardous substances , solid waste or pollution at , upon, under, from or within the EASEMENT AREA by GRANTEE , and/or its officials , employees , contractors , and agents ; the failure of GRANTEE , and/or its officials , employees , contractors , and agents , to duly perform any obligations or act ions requ ired to be taken under any Environmental Laws (including , without limitation , the imposition by any governmental authority of any lien or so-called "super priority lien" upon the EASEMENT AREA); any clean-up costs; liability for personal injury or property damage or damage to the environment ; and any fines , penalties, and punitive damages , or any fines or assessments incurred by or claimed against GRANTOR and arising out of the failure of GRANTEE , and/or its officials , employees, contractors , and agents , to comply with Environmental Laws in connection with the use of the EASEMENT and the EASEMENT AREA by GRANTEE , and/or its officials , employees, contractors (including Ric-Man Construction , Inc.), and agents . 8.2 GRANTEE shall also, as part of the indemnification provided to GRANTOR pursuant to this Section 8, defend any and all claims asserted against GRANTOR resulting from , arising out of, or incu rred in connection with the existence and/or use of the EASEMENT and the EASEMENT AREA by GRANTEE, and/or its officials, employees, contractors (including Ric-Man Construction , Inc .), and agents . GRANTEE shall be entitled to select counsel of GRANTEE'S choice to defend the claim; provided , however, that if GRANTEE elects to retain outside counsel (i.e . counsel from other then GRANTEE 'S County Attorney 's Office), then such counsel shall first be approved by GRANTOR'S City Attorney , which approval shall not be unreasonably conditioned , withheld, or delayed ; and , provided further, that the GRANTOR shall be permitted , at its cost and expense, to retain independent counsel to monitor the claim Pag e 10 of21 proceeding . The duty to defend set forth in this subsection 8.2 shall be severable and independent from the indemnity obligations otherwise set forth in this Section 8, to the extent that if any other provis ions and/or subsections of this Section 8 are deemed invalid and/or unenforceable , this duty to defend provision shall remain in full force and effect. 8.3 Notwithstanding anything contained in Section 8 to the contrary, GRANTEE shall not be obligated or liable to GRANTOR , or any third parties , for any costs , liabilities, expenses , losses, claims or damages , with respect to third party claims , for amounts in excess of those limitations on the statutory sovereign immun ity provided to GRANTEE under Section 768 .28 , Florida Statutes (or any successor statute thereto); or with respect to the portion of those claims resulting from the gross negligence , recklessness or willful misconduct of GRANTOR or its officials , employees , contractors , and agents . 8.4 The indemnity and defense obligations set forth in this Section 8 including, without limitation, the provisions of subsection 8.3, shall survive the expiration of the Term or any termination of this EASEMENT regarding any and all costs , liabilities , claims , losses , and damages (including , without limitation , reasonable attorneys' fees and disbursements at the trial level and all levels of appeal), whether suit is instituted or not , relating to death of or injury to persons, or loss of or damage to property , resulting from , aris ing out of , or incurred in connection with the existence and use of the EASEMENT and the EASEMENT AREA by GRANTEE and/or its officials, employees , contractors (including, without limitation , Ric -Man Construction , Inc .), and/or agents , prior to the expiration of the Term or other termination of the EASEMENT , whether or not such costs , liabilities , claims, losses , and/or damages were known or unknown , accrued or unaccrued, as of the date of expiration of the Term or other termination of the EASEMENT. For purposes of example only and without limiting the generality of the foregoing, costs, liabilities, claims , losses , and/or damages which are unknown or unaccrued as of the date of expiration of the Term or other Termination of the EASEMENT could include, but not be limited to , latent construction defects and/or environmental remediation claims . 8.5 Notwithstanding anything to the contrary contained in this Section 8, GRANTOR agrees to a monetary cap in the total aggregate amount of Ten Million dollars ($1 0,000,000) on GRANTEE'S contract liability for any pre-existing subsurface conditions of the EASEMENT AREA. For purposes of this subsection 8.5, "pre-existing subsurface conditions" shall be defined as pre-existing, unknown subsurface conditions of an unusual nature, which differ materially from those generally encountered at a site of a simila r nature such as artillery or Page 11 of21 methane gas buildup from mining or well drilling practices, and which require remediation for the protection of public health , safety or the environment pursuant to local , state or federal laws and regulations. However, "pre -existing subsurface conditions " shall not include any existing utility and/or service lines, whether known or unknown. 9. [Intentionally Omitted] 10 . Hazardous Substances. GRANTEE, and/or its officials, employees , contractors (including , without limitation , GRANTEE'S PROJECT General Contractor, Ric -Man Construction, Inc .), or agents shall not cause or permit the violation of any law relating to industrial hygiene or environmental conditions including , without limitation , any Environmental Laws (as defined in Section 8 herein), in connection with the EASEMENT, the EASEMENT AREA (including soil and ground water conditions), and/or this Agreement. Except fo r GRANTEE 'S utilization of Hazardous Substances (as hereinafter defined) in the quantities necessary for the completion of the construction activities permitted under this EASEMENT , GRANTEE shall not otherwise utilize, generate, manufacture , store or dispose of any Hazardous Substances on, under, over , adjacent to or about the EASEMENT AREA. GRANTEE shall not utilize , generate , manufacture , store or dispose of any Hazardous Substances under, over, adjacent to or about the remaining portion of South Pointe Park . As used here in, the term "Hazardous Substance" means any substance or material defined or designated as a hazardous or toxic waste material or substance , or other similar term by any Federal, State or local environmental statute, regulation or ordinance presently or hereinafter in effect including , but not lim ited to , Chapter 403 of the Florida Statutes and Chapter 24 of the Code of Miami-Dade County (and as such statute, regulation or ordinance may be amended from time to time). 11. Notices. All notices , requests, consents and other communications required or permitted under this EASEMENT shall be in writing (including telex and telegraphic communications) and shall be (as elected by the person giving such notice) hand -delivered by messenger or courier service; telecommunicated ; or mailed (airmail, if international) by registered or certified mail (postage prepaid), return receipt requested; or sent by any form of overnight mail service , addressed to : AS TO GRANTOR: City of Miami Beach Attn : City Manager 1700 Convention Center Drive Miami Beach, FL 33139 WITH COPIES TO : City of Miami Beach Attn : City Attorney 1700 Convention Center Drive Miami Beach , Fl 33139 Page 12 of21 AS TO GRANTEE : Miami-Dade Water and Sewer Department Attn : Director 3071 SW 38th Avenue , 5th Floor Miami , Florida 33146 and Owner's Representative WITH COPIES TO : Miami-Dade County Attn : County Attorney 111 N.W . 1st Street, Suite 2810 Miami, FL 33128 Or to such other address as any party may designate by notice complying with the terms of this Section . Each such notice shall be deemed delivered : (i) on the date delivered if by personal delivery; (ii) on the date telecommunicated if by telegraph ; (iii) on the date of transmission with confirmed receipt if by telex, telefax or other telegraphic method ; (iv) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed ; and (v) on the day after mailing by any form of overnight ma il service . 12 . Construction Mitigation Program. GRANTEE shall implement and maintain , at its sole cost and expense, and for the duration of the Term , a Construction Mitigation Program (the "Program ") which , at a minimum , shall include , but not necessarily be limited to, the following : (a) GRANTEE 'S (and/or GRANTEE'S General Contractor's) plan to minimize and mitigate the effect of dust, debris and noise impacts , caused by its use of the EASEMENT, the EASEMENT AREA, and/or by the PROJECT, upon users of South Pointe Park, and upon the surrounding South of Fifth Street neighborhood ; which plan , at a minimum , shall address : (i) minimization of noise disruptive to Park users and the surrounding neighborhood (and the prohibition of amplified music within the EASEMENT AREA); (ii) reasonable control of dust, trash, and debris; and (iii) prohibition of vehicle "idling " to minimize exhaust fumes and noise ; (b) installation of safety/security fencing and screening around the EASEMENT AREA , and any other measures intended to safeguard and secure the EASEMENT AREA ; (c) identification of any trees and/or other landscaping within the EASEMENT AREA and surrounding areas of South Pointe Park which is intended to be relocated to such locations Page 13 of 21 within the City of Miami Beach as may be specified by the City 's Parks and Recreation Department; (d) modification of certain portions of the existing South Pointe Park irrigation system to ensure that, notwithstanding the EASEMENT and any other activities within the EASEMENT AREA, the irrigation system continues to function properly in the remaining areas of South Pointe Park outside the EASEMENT AREA; (e) no construction trailer or concrete batch plant will be allowed within the EASEMENT AREA, but a truck-mounted concrete mixer will be permitted ; (f) GRANTEE must provide a technical report , detailing the measures to be taken by GRANTEE to protect that certain work of art situated in South Pointe Park (created by Tobias Rehberger and named "Obstinate Lighthouse"); (g) GRANTEE'S plan for protecting any other significant facilities , structures , and/or features in South Pointe Park (including , without limitation turf, lawns, paved walkways/paths , the water feature, etc .); and (h) no excavated material shall be stacked higher than 25 feet above the finished grade of the EASEMENT AREA. GRANTEE shall submit a written plan detailing the Program , for GRANTOR 'S prior review and written approval (which approval shall not be unreasonably, withheld , conditioned or delayed) thirty (30) days prior to the commencement of shaft excavation activities ; except for those items identified in subsections 12(a), (b), and (c), which shall be submitted to GRANTOR , for its prior review and written approval in accordance with this Section , at least thirty (30) days prior to mobilization on the EASEMENT AREA site by GRANTEE'S General Contractor and/or any of its employees, subcontractors , laborers and/or material suppliers . The final approved Program plan shall be attached hereto and made a part hereof as EXHIBIT "0" to this EASEMENT. 13. Security and Lighting. GRANTEE shall , at its sole cost and expense, at the end of each day, secure the gate(s) providing access unto that portion of the EASEMENT AREA which is being utilized for construction activities and staging (including storage , to the extent permitted herein). If GRANTEE fails at any time to so secure the gates , then GRANTOR shall have the right, without notice, of securing the gate(s), and GRANTEE shall , upon demand , immediately reimburse GRANTOR for any reasonable expenses, if any, which GRANTOR incurs in effecting GRANTEE 'S compliance with this Section 13 and , further , GRANTOR shall in Page 14 of21 no way be liable to GRANTEE for any damages with respect to GRANTEE 'S failure to secure the EASEMENT AREA. At least thirty (30) days prior to mobilization on the site by GRANTEE'S General Contractor, and/or any of its employees, subcontractors, laborers and/or material suppliers , GRANTEE shall provide GRANTOR , for its review and written approval prior to installation (which approval shall not be unreasonably withheld , conditioned or delayed), with its lighting plan for the EASEMENT AREA , which shall include the specifics for lighting during the permitted hours of operation , as well as for adequate security lighting when the EASEMENT is not be ing utilized . All lighting must comply with any Florida Department of Environmental Protection ("FDEP ") requirements relating to same . 14 . Miscellaneous Terms and Conditions. 14 .1 Nothing contained herein shall be construed as a waiver of GRANTEE or GRANTOR'S rights of sovereign immunity. 14.2 Construction. For purposes of construction by a Court , the parties he reto acknowledge that both parties hereto participated in the drafting of this document. 14.3 Time. Time is of the essence in this EASEMENT . 14.4 No Assignment. No assignment of all or any part of this EASEMENT and no sub-easement(s) for any purpose shall be made or granted by GRANTEE without the prior written consent of GRANTOR. 14 .5 City's Governmental Capacity/No Waiver of City/County Police Powers . GRANTOR confirms that it has full power and authority to grant this EASEMENT. Nothing in this EASEMENT or in the parties ' acts or omissions in connection herewith shall be deemed in any manner to waive , impair, limit , or otherwise affect the autho rity of the GRANTOR/ City of Miami Beach or the GRANTEE/ Miami-Dade County in the discharge of its police or governmental powers . 14 .6 Remedies Cumulative. Each right and remedy of either party provided for in this EASEMENT shall be cumulative and shall be in addition to every other right or remedy provided for in this EASEMENT, or now or hereafter existing at law or in equity or by statute or otherwise , and the exercise or beginning of the exercise by a party of any one or more of the rights or remedies provided for in this EASEMENT , or now or hereafter existing at law or in equity or by statue or otherwise , shall not preclude the simultaneous or later exercise by such Pag e 15 of 21 party of any or all other rights or remedies provided for under this EASEMENT, or now or hereafter existing at law or in equity or by statue or otherwise . 14.7 Counterparts. This EASEMENT may be executed in counterparts, each of which shall be deemed an original but all of which together represent one instrument. 14 .8 Successors and Assigns . This EASEMENT, and the terms , covenants , and conditions herein shall be binding upon , and inure to the benefit of, GRANTOR AND GRANTEE and , except as otherwise expressly provided herein , their respective successors and assigns . 14.9 No Waiver. If GRANTOR excuses or condones any breach or default by GRANTEE of any obligation under this EASEMENT, this shall not be a waiver of such obligation with respect to any continuing obligation or subsequent breach or default and no such waiver shall be implied. 14 .10 Severability. If any provision of this EASEMENT is held or rendered illegal or unenforceable, it shall be considered separate and severable from this EASEMENT and the remaining provisions of this EASEMENT shall remain in full force and bind the parties as though the illegal or unenforceable provision had never been included in this EASEMENT . 14 .11 Entire Easement; Modifications. This EASEMENT sets forth the entire agreement between the parties specifically relating to the subject matter of the temporary easements granted hereby and there are no other agreements or understandings between them relating to GRANTEE'S use of the EASEMENT AREA. This EASEMENT may not be modified except by agreement in writing executed by the parties and , in the case of GRANTOR , approved by the Mayor and City Commission of the City of Miami Beach . 14 .12 Captions; References . The captions of this EASEMENT are for the purpose of convenience of reference only , and in no way define , limit or describe the scope or intent of this EASEMENT or in any way affect this EASEMENT. All references in this EASEMENT to the terms "herein ", "hereunder," "hereof," and words of similar import shall refer to this EASEMENT, as distinguished from the paragraph , Section and/or subsection within which such term is located . 14 .13 Third Parties. Nothing express or implied in this EASEMENT is intended , or shall be construed to confer upon or give any person or entity , other than GRANTOR and GRANTEE, any rights or remedies under or by reason of this EASEMENT. 14.14 Governing Law. This EASEMENT shall be governed by , and construed in accordance with, the laws of the State of Florida , both substantive and remedial , without regard Page 16 of21 to principles of conflict of laws . The exclusive venue for any litigation arising out of this EASEMENT shall be Miami-Dade County , Florida , if in state court , and the U.S. District Court for the Southern District of Florida , if in federal court . 14 .15 laws and Permits . The GRANTEE shall comply with Federal, State and Local Laws , Statutes , Ordinances, Rules, Codes , Regulations , Directives and Lawful Orders of public authorities including, without limitation , all environmental, safety and health laws , insofar as applicable to the performance of its work for the PROJECT (the "Laws "). All work , labor, services and materials to be furnished , supplied or performed by the GRANTEE , its General Contractor, or any of their employees , agents , representatives, subcontractors , laborers , or material suppliers, must strictly comply with the applicable Laws . The GRANTEE shall bear the risk and sole responsibility for all permitting and other costs necessary to insure the PROJECT is in full compliance with the Laws , unless expressly provided otherw ise herein . 14 .16 Owner Representative. The GRANTOR may select and retain , and the GRANTEE shall fund up to the amount of Ten Thousand Dollars ($1 0,000), a construction management firm and/or construction manager to act as its representative throughout the duration of the PROJECT ("Owner Representative "). The Owner Representative shall visit the site at intervals throughout construction of the PROJECT to become generally familiar with and inform the GRANTOR regarding the progress of the PROJECT work . The Owner Representative shall assume no responsibility or liability for any errors or omissions in the PROJECT work performed by or on behalf of GRANTEE , or its General Contractor , or any of their respective employees , agents , representatives , subcontractors , laborers , or material suppliers . The GRANTOR shall identify its Owner Representative , in writing , within sixty (60) days following the Commencement Date of the EASEMENT. The GRANTEE shall provide copies of any and all progress reports , Notices , and construction schedules to the Owner Representative and/or provide copies of other PROJECT records requested , in writing, to the Owner Representative within three (3) business days thereof. To the extent the Owner Representative prepares any written report ("report ") on the PROJECT'S construction activities issued to the GRANTOR, the Owner Representative shall furnish a copy of said report to GRANTEE and/or its General Contractor. However, the provisions of this paragraph of subsection 14 .16 shall in no way obligate or require the Owner Representative to prepare any such reports. The preparation and/or furnishing of a copy of said report shall be for informational purposes only Page 17 of 21 and in no way constitutes, or should be construed and/o r interpreted as , any assumption of liability or responsibility by GRANTOR and/or the Owner Representative for any errors or omissions in the PROJECT work performed by or on behalf of GRANTEE , or its General Contractor, or any of their respective employees, agents , representatives , subcontractors , laborers , or material suppliers 14.17 PROJECT Contract Amendment. As additional consideration for the EASEMENT, and as an additional inducement for GRANTOR 'S grant of the EASEMENT , GRANTEE shall amend the Design-Build Contract, dated April 15 , 2011, between GRANTEE and GRANTEE 'S Contractor, Ric -Man Construction , Inc ., Contract Number 1 ORMC1 001 (here inafter, the Design Build Contract shall be referred to as the "PROJECT Contract," and the amendment to the PROJECT Contract shall be referred to as "Amendment No. One "), to name the GRANTOR: (a) as an additional named insured (along with GRANTEE) under the insurance requirements of the PROJECT Contract (including, without limitation , those provisions in Article 13.3 INSURANCE of the PROJECT Contract); and (b) as a co-obligee (along with GRANTEE) under the bond requirements of the PROJECT Contract (including , without limitation , those provided in Articles 13.1.3 through 13 .1. 7 of the PROJECT Contract). Amendment No . One shall also amend Article 13 .1 of the PROJECT Contract to include the following language , to be added at the end of Article 13.1 .1 thereto: "Further, Ric-Man 's indemnification of the City of Miam i Beach , Florida shall be commensurate with the indemnification Ric-Man is required to provide the County for the Project pursuant to the provisions of the Contract. Subject to the provisions of the Contract, Ric-Man hereby agrees to indemnify and hold harmless the City of Miami Beach , and its officers , employees and instrumentalities (collectively , the "City "), from any and all liability, losses, or damages, including attorneys ' fees and costs of defense, which the City may incur as a result of claims, demands, su its , causes of actions or proceedings of any kind or nature to the extent arising out of, relating to , or resulting from the negligence, recklessness or intentionally wrongful conduct of Ric-Man , or its employees , agents , servants, partners , principals or subcontractors (collectively , "Ric-Man "), in the performance of the portion of this Contract related to the construction work at South Pointe Park , and Ric-Man's use of the "EASEMENT" and the "EASEMENT AREA " (as such terms are defined in the Temporary Page 18 of21 Easement)." Ric-Man is, however, not responsible to indemnify and hold harmless County nor City for any pre-existing hazardous conditions encountered at the South Pointe Park and Ric-Man's use of the "EASEMENT" and the "EASEMENT AREA" as such terms are defined in the Temporary Easement. If any hazardous condition is encountered, it shall be remedied pursuant to the provisions of Article 13 .14 ("Hazardous Conditions ") of the Contract dated April 15,2011 ." The parties hereto further agree that the EASEMENT shall be attached and incorporated as an exhibit to the amended PROJECT Contract. 14.18 Force Majeure. GRANTEE will not be liable for any breach or failure to perform under this EASEMENT if such breach or failure to perform is due to acts beyond the reasonable control of GRANTEE , which events include acts of God, acts of Federal, state or local government, fire, floods , civil disobedience , strikes, lock-outs, acts of terrorism and/or significant inclement weather (i.e . hurricanes, tornadoes); provided, however, that GRANTEE shall (a) promptly give written notice to GRANTOR and/or its Owner Representative of its inability to perform and the cause(s) therefore; and (b) resume its performance under this EASEMENT immediately upon the cessation of such cause(s). GRANTEE may request in writing that GRANTOR provide a reasonable extension of the Term of the EASEMENT (if applicable) for a period equivalent to the time lost by reason of any of the aforesaid causes defined in this subsection 14 .18 , the approval of which GRANTOR shall not unreasonably withhold . Except for acts of GRANTOR resulting from its gross negligence , recklessness or willful misconduct or any acts of GRANTOR acting in its regulatory capacity (but not in its proprietary capacity), GRANTOR shall not assume any responsibility or liability , financial or otherwise, for damages caused to the EASEMENT AREA as a result of any of the aforesaid causes . [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] F:\ATIO\AGUR\EASEMENTS\WASD -Temporary Easement For 60 Inch Force Main (City's Finai8-2-12).Doc · Page 19 of21 IN WITNESS WHEREOF, the GRANTOR herein has caused these presents to be executed in its name on the day and year first above written . Attestation of this EASEMENT by the City Clerk shall constitute evidence of approval by the City of Miami Beach . ATTEST: CityC (,! at SEAL APPROVEDASTOFORMAND CORRECTNESS : r City Attorne ~ r;__ CITY OF MIAMI BEACH, a Municipal Corporation of the State of lorida Page 20 of21 ACCEPTED BY: Approved as to form and legal sufficiency. MIAMI-DADE COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS Page 21 of21 EXHIBIT A EASEMENT AREA WASD TEMPORARY CONSTRUCTION EASEMENT AT SOUTH POINTE PARK ~ z__j <(W 2Z o.::::Z w<r: II (f)U lJ__ EXHIBIT "A" VICINITY MAP NOT TO SCALE A PORTION OF THE NORTHWEST 1/4 OF SECTION 10, TOWNSHIP 54 SOUTH, RANGE 42 EAST MIAMI-DADE COUNTY, FLORIDA A e ... I 1350 S.W. 5'71H AV811..E v 1 n o ~~~ ~~~. Fla21DA 33144 T8..( 305) 265-5030 -FAX (3051 265-5033 SEAl I. TH IS IS NOT A FIB.D 5u:l~. ""'""' ov, o.~s. SHEET CHECKED BY: J.R.A. OA'It: 05/07/2012 1 & A ~~nriATE~ Cl'QTJFICATE OF AUT\,IJQJZATIOO EB. 5098 ~~UL ~ Cl'QTIF ICATE OF AUT\,IJQ IZATIOO LB • 5098 ........., , PU1H!11S • ~ E-MAIL• .RAVII\OIAVlt-.QANJASSOCIATES.COM ALTERNATE 3 -C.M.B_ TEMPORARY CONSTRUCTION EASEMENT VICINITY MAP .rlRCE It A\1HO, P£. pgJf 49to JOB No.: 1011&.00 OF 3 SHEErs z ow (/);::) o::z ww LL-> tt<i ...., ~-- I I I I I I _L-1-~-~-~-~-~-~-~-~-L-L~ p I SOUTH POINTE DRIVE (BISCAYNE AVENUE PER PLAT) --------------------- SOUlli RIGHT OF WAY UNE ~ 1 OF SOUlli POINTE DRIVE o~-------~~~~:~~~~~~N~---------------, --ct -q f "--NORlli LINE OF I SECTION 10-54-~2 I I I :~",?~e;G?;'~"':;';~~~~ I I / -.v ·~·· . -· ' -~6·~;~~~T~~~2~/o~WAY I //~;I y} $/ PER O.R.B. 12566, PG. 2910 I X Q. I <( r.r I at~ o 1 ---R/W ----R/W FOR WASHINGTON AVENUE I I i5 <D I <:: ff J_ ----------------1---t::·~ ~i ,,---r--T ------- ---I 0 ~ -I.J.J I I r --- --~----t ~ ~ /1 ~ i( 1 ~ I LoT 5 t-oT 4 1 BLOCK 6 I LOT 2. I I 15 .~ ~ ~ I ~~ I I I "SOUTH BEACH PARK" I I I~ ii! ~ I I BLOCK 7 I I '--_ uiS I ...-. "S"UTH B";,CH PARK" (PB . 6 PG . 77) -----I -I ~ I '"' I . ~M" . \M I I l OT I I IX,o; I tf'B . 6 p ,.:.J , 77, ·-I I Sf I I I LOT 3 ___ - - - - ---_j -----....... I 100o· ~ 1 _j ------------r -7 "'-. ....L L .J_ /-\ / APOGEE GONDOM !t<!UM I ---1 ------- // \ (o .i;:.a . 26 i 33. PG .2394) 1 ,., ', / / \ I . ~ ~ LOTG-aLOEK4-I- / / ', I 1 IB IL ~ I "''SOUTH B~CH ?ARK" I L=106.71' ', I% / ~ ~-oiS -...... ..._(PB . 6 ?G . 77) I R•100.oo~',, ~\~ 1 ~~ /w ~;:r I -...1, LOT 5 \ \ \ \ \ \ \ \ lf-61'08'2o• ', ,..rd I ~~ 1• 2~ I -... I ' R•214.07' 01 t~~. 1 ~6 110 C:$ 1 '-1 .-::r///3 ' lll=33"14'2s· ~ \ t, ' 1t18 / r! "l. " '-. ~ "-"I~ I 1:<1' !41 I m;:--,. . .,.""'~ ..... :;;~~ _J / ~ S I '-'-'-. '-........ ' ........ ........ ........ ...._ ...._ ,' en tn. I b~ I ~~I I I I I I I TEMPORARY CONSTRUCTION EASEMENT 0' 80' 160' GRAPHIC SCALE SCALE : 1"=80' LEGEND Plat Book Page I. 11-11S IS NOT A F IB.D SlRVEY. ...._ · PB. PG. O.R .B. C.M.B. Official Records Book City of Miami Beach 2. BEARINGS SHOWN~ ARE BASED ON AN ASSUIAED M511DIAN AlONG TI-I:•SOUfH RIGHT OF WAY lli>E OF SOUT~ POINT DRIVE, N 67 .38'5T E. LEGAL DESCRIPTION : A Parcel of land located In Section 10, Township 54 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida, and being more particularly described as follows: Commence at the Southeast comer of Lot 1, Block 8, "SOUTH BEACH PARK" as recorded in Plat Book 6 at Page 77 of the Public Records of Miami-Dade County, Florida; thence run South 10'47'36" West for a distance of 155.76 feet to the POINT OF BEGINNING of the hereinafter described parcel of land; thence continue South 10'47'36" West for a distance of 224.57 feet to a point; thence run North 65"35'19" West for a distance of 95.80 feet to a point; thence run North 33'29'26" West for a distance of 259.94 feet to a non-tangent point on a circular curve concave to the Southwest and whose radius point bears South 34'57'44" East from this point; thence run Easterly along a 100.00 foot radius curve through a central angle of 61'08'20" for an arc distance of 106.71 feet to a point of reverse curvature of a circular curve concave to the Northeast; thence run Southeasterly along said circular curve a 214 .07 foot radius through a central angle of 33'14'25" for an arc distance 124.19 feet to a non-tangent point whose radius point bears North 07'03'49" West from this point; thence run South 10'47'36" West for a distance of 128.71 feet to a point,· thence run South 55'51'44" West for a distance of 15.98 feet to a point; thence run North 84'12'20" West for a distance of 36.26 feet to a point; thence run South 05'57'40" West for a distance of 40.00 feet to a point; thence run South 84'12'20" East for a distance of 50.79 feet to a point; thence run North 55 '51 '44" East for o distance of 47.11 feet to a point; thence run North 10'47'36" East for a distance of 119.97 feet to a point; thence run North 60'15'06" East for a distance of 18.42 feet to the POINT OF BEGINNING, containing an area of 33,045 square feet or 0. 76 acres, more or less. SUITE 207 A e ... , 1350 S.W. 5ml AVENJ: v 1 n o WEST MIAMI. Fl0121DA 33144 18...< 305! 265-5030 • FAX. 1305! 265-5033 & AOOOPJATEO CEIITIFICATE Of AlJ!l.l0121ZATICN EB. 5098 ~~UL ~ CEliTIFICATE Of AlJ!l.l0121ZATIOO l.B • 5098 .,_..,., • ..__.tuMm:ll28 E-MAIL• .RAVII\OtAVINOAWASSOCIATES.COM ALTERNATE 3 -C.M.B. TEMPORARY CONSTRUCTION EASEMENT LEGAL DESCRIPTION L l\-115 IS NOT A F IB.D &RVEY, DRA..W BY: US. SHEET D«CKm BY: J.R.A. DAn:: 05/07/2012 3 .DtC( R. A\1NO, PE. P9Af UDG X>8 No.: 1011t.OO or 3 SHEETS EXHIBIT B CONSTRUCTION SCHEDULE WASD TEMPORARY CONSTRUCTION EASEMENT AT SOUTH POINTE PARK ~ 1 . " A d l v l l y Or l g i - 'l l o E. . t y E. . t y TO i o i S U B 3 1 RE S P ~ Y i .IUN I JUI.. i f&J S E P O C I ~ ~ 10 10 Do « r i p p l o n Ou r Du r _ , Rn i o l l Ao o 1 • I NQ Y I DE C . w t i F E B l i W ! I A f l i l i i A v i J U I C U \ : I AU G ! S E P U I J / , U G J . S Q i l C4 0 2 6 0 3 Re t r i e v a l Sh a l t Co m p l e t e t ~ r :- - t ; ; A uG 1 2 1 s2 l s H A F \ R C I . . . . . . . . .. . . . . . . . . . . . . . . . . . . . ~ ~ ~ .. . . . ·· · 'P ' ·· .. . . . .. .. .~Re ~ ~ ~ I..A···· ·-···-Lt .LI .-..l..I.-.LI ~----·---4.,.1.,1._ ...... , ........ C4 l l 5 6 0 3 J Ex t r a c t Sh e e t p 1 le I • I • I O I 11 J U L 1 J I 2J J U L 1 3 -3 1 I RC I Ex1r><:tShoetpl lell C4 l l 5 7 0 3 I Re m o v e Pl a t f o r m I t5 l t5 l OI 2 4 J UL 1 3 - l t6 A U G 1 3 -3 1 I RC I Removo Plltf ~ C4 0 5 8 0 3 \R e m o v e Tu r b 1 d l t y Cu n i l l n JR C I Remove Turbidlly Curtaili ···· = ~ = · ~ .. . ~ MI L E S T O N E S ~CMS2 5 _I 1 I I' I T P AL T 3 (E S T 6- 6 - 2 0 1 2 Su b j o e 1 t o Co m m Ao p r o v o l ) I ' ! ' I O I 26 J U L 1 2 \2S J U L 1 2 I -so ! I OW N E R I NT P AL T 3 (E S T 6-6-2012 SubJedto Comm App<c"'ol) EN V I R O M E N T A L PE R M I T S I - I 08 0 0 0 1 \SF A Cl a s s 1 Pe r m i t Ap p l ic a t i o n ! • I 0 10 0 09 A P R 1 2 A 09 A P R 1 2 A I I H& S IS F A Cl a s s 1 Pe r m i t pp l i c a t l o n I 08 1 0 0 1 j SF A EA P Pe r m it Ap p li c< U I O n I 1 ' 0 10 0 09 A P A 1 2 A 09 A P R 1 2 A H& S IS F A ER P Pe n n i ! AP I I ca t i o n 08 2 0 0 , j SF A AC O E Pe r m 1 t Ap p 6 c a tt o n I ,, 0 10 0 09 A P R 1 2 A 09 A P R 1 2 A I H& S IS F A AC O E Pe " " l t A! jp u c a d o n 08 0 1 0 1 ! RI A Cl a s s 1 Pe r m 1 t Ap p l i c a h o n I 56 1 0 10 0 10 A P A 1 2 A 17 M A Y 1 2 A OW N E R - R I A C t n s l lm r u t Ap p l l e a t l o n 08 1 1 0 1 I RI A ER P Pc r m 1 t Ap p h c a t t o n 45 1 0 10 0 10 A P A 1 2 A j 24 M A Y 1 2 A ; OW N E R ~ AE R P P < jm l t Ap p l l c o l l o n I 08 2 1 0 1 1 RI A AC O E Pe r m i t Ap p li ca l i o n : s, 1 0 10 0 10 A P R 1 2 A !30 M A Y 1 2 A I OW N E R - RI A A C O E er m l t Ap p l i c a t i o n SO I L BO R I N G S I I ! 09 0 1 0 2 I Pe r f o r m Bo r i ng s / Pr e p a r e Re p o n (l a n d Si d e ) _L 22 1 0 1 00 [04 J U N 1 2 A l t5 J U N 1 2A j H& S • Pe r t on Bo r i n g S / Pl ' e p o r e Report (i.Ju>d Side) I 09 0 ~ 0 I 2 j Pe r f o r m Bo r i n g s / Pr e p a r e Re p o n (Wa t e r Bo n n g s ) I 22 1 22 0 26 J U L 1 2 I 24 A U G 1 2 I -3 5 1 H& S ~ Per l o n n Borings/ ~re Repon (W•Ier Borings ) uo • o o o o l 2 I Ch o o s o Al i g n m e n t & De p t h I 5 1 5 1 O I 27 A U G 1 2 t 31 A l J G 1 2 1 -3 s l I H& S ~C h o o s e Alignment & Deplh DE S I G N S U B M m A L S WO R K PA a C A O E 1 0 · 1r 1 A 1 1 1 EI E A O I U L 1 0 t SH A F I ' I D1 0 0 6 0 2 I SF A Fe n c e Pe t m i t (M D C ) I 12 0 10 0 06 J U N 1 2 A 1 18 J U N 1 2 A ! •o H& S I . - s f A f ' " " ' Pe n n i ! (U D C ) 01 0 0 3 0 2 I SF A 10 0 % De s i g n - Wo r l < Pa c k a g e tO (7 / 6 1 2 0 1 2 ) 22 1 0 10 0 06 J U N 1 2 A I 28 J U N 1 2 A 10 H& S - A OO ' I I o De s i g n • Worl< P~ 10 (7/E/2012) D1 0 0 4 0 1 \ RI A 10 0 °/ o De s i g n · Wo r k Pa c k : . g e 10 14 0 , 10 0 28 J U N 1 2 A . j 06 J U L 1 2 A 1 10 OW N E R -10 0 % De s i g n - Wori< Pockoge 10 01 0 0 9 0 2 1 SF A De w a t e r i ng Po r m • l (P E R A ) 5 2 ' 60 06 J U N 1 2 A 27 J U L 1 2 10 8 10 H& S IS F A De w o l o r l n g Penni! (PERA} - 01 0 0 6 0 , ! RI A Fe n c e Pe r m 1 t (M D C ) 14 7 1 50 18 J U N 1 2 A 01 A U G 1 2 -2 0 10 OW N E R . RI A Fe n c e Penni! (IIDC} 01 0 0 7 0 ' 2 !SF A Tr e e Re m o v a l Pc r m • t (P E R A ) 1 0 71 30 (06 J U N 1 2 A 03 A U G 1 2 3 10 I H& S I - : ~ FA Tr o e Removal Penni! (PERA) I l 01 0 11 0 ! 2 j S F A M 1 om 1 Be a c h RO W f BU l iO i n g P on n i t •O J ., 4 0 f 0 !l JU L 1 2A 03 A U G 1 Z I ·9 1 0 HA S J ~ A . . a m i S..CI'I RO'W'I eundlng PMIW \ 01 0 0 8 0 _ _L 1 _l ~A Tr e e Re m o v a l Pe r m it CP E R A I 14 1 14 Q i 04 A U G 1 2 17 A U G 1 2 5 10 j OW N E R • - RI A Tr e e Removal Permit (PERA) - - 01 0 1 0 0 I , l RI A De w a t e r i n g P e rm i t (P E R A ) 30 1 30 O I 28 J U L 1 2 26 A U G 1 2 ' 16 2 10 !OW N E R ~ RIA De•terlng Permit (PERA) 01 0 1 2 0 I 1 t RI A M1 3 m 1 Be 3 C h RO W / BU i l d i n g Pe r m i t 30 30 O I 04 A U G 1 2 02 S E P 1 2 I ~1 1 10 ! OW N E R • - RI A Uiami Beach ROW " Bu i lding Perm i t 2 ! 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RI A 10 0 % wo n c Pa C k a ge 13 A 1 4 1 0 1 10 0 20 J U N 1 2 A 29 J U N 1 2 A : 13 A \ OW N E R ; -" ~ Wo r i < P..,._ 13A D1 3 A 0 4 0 I 2 ll s s u c d Fo r Pr o c u r c m o n ! - Pa d < a 9 o 13 A 19 1 31 1 2 1 I 4 i • I o i 02 A U G 1 2 07 A U G 1 2 I 29 13 A I Ht . S ; li u u e d Fo r Procumnont· Pac"-13A (913112) 01 3 A O S O 2 !O r d e r M a te r i al s 12 6 we e k s Le a d T. m e ) ·~o · t 30 \_ O ! OB A U G 1 2 IS F E B 1 3 29 1 3 A I RC I i r Mllet"Ws {26 weeks l..ead llme) - - - - - - - · · - - - WO R K PA C K A G E 13 8 ·L O N G LE A D PR O C U R S E M T V A I . . V E S I 01 3 8 0 2 0 1 2 !S F A 10 0 0J . Wo r t ( P: . c k : J g e 13 8 (8 1 1 4 1 1 2 1 ; 12 o ! 10 0 1 06 J U N 1 2 A !20 J U N 1 2 A 13 8 j H& S I - FA 1 fo % Wo r k Pa c k a g e 138 (8114112) Sl:~ o t ~ O o.1 " 1l 0 C T 1 0 F: u ty R: a t ... . St t . ! f l i :J o / 1 6 h n r 1 h 0 ; J ! r OJ OC T 1 3 f' J O Q i r : : . ! ' ; IJ . '1 f RI G - M A N CO N S T R U C T I O N . IN C . ... . -~~ I c ....... 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De s i g n - Wo r k Pa c k a g e 17 I 14 •• I o 27 D E C 1 2 i 09 J A N 1 : l 25 i 17 B OW N E R .RIA 70% Design-Work Pad<age 17 01 7 B O Z O 2 SF A 1~ • De s . g n - Wo t k Pa c k a g e 17 10 10 0 10 J A N 1 3 1 24 J A N 1 3 16 17 8 H& S .-sFA 100%Design • WorkPa~17 01 7 8 0 4 0 2 SF A RO W Pe r m it 4 4 0 25 J A N 1 3 30 J A N 1 3 31 17 8 H& S -I IS FA ROWPermll D1 7 B 0 6 0 • 2 SF A Dc w a 1 e n n g Pc r m r t (P E R A ) 4 4 0 25 J A N 1 3 30 J A N 1 3 16 17 8 H& S ISFA Oewote~ng Perml1 (PERA) D1 7 8 0 8 0 2 SF A PE R A Se w o r Ex 1 e n s 1 o n Pc r m 1 t 4 4 O I _25 J A N 1 3 30 J A N 1 3 ' 16 17 6 H& S ISF A PERA SeMr Exlanslon Penni I D1 7 8 0 5 0 , RJ A RO W Pe r m i t 7 i 7 0 31 J A N 1 3 06 F E 8 1 3 46 11 B jO W N E R i .RIA ROW Penni! D1 7 B 0 3 0 , I RI A tO O o / . De s i g n · Wo r k Pa c k a g l ! 11 14 i 14 0 2 5J A N 1 3 07 F E 8 1 3 45 17 8 OW N E R ~A100%DesJgn .. WorkPacbgo17 01 7 8 0 7 0 1 I RI A De w a t e r i n g Pe r m i t (P E A A ) 30 J 30 0 31 J A N 1 3 01 M A R 1 3 2 3 1 7 8 OW N E R -RI A o.w.oring Permil (PERA) 01 7 8 0 9 0 1 j RJ A PE R A Se w e r Ex 1 e n s t o n Pe r m i t JO 30 0 31 J A N 1 3 OI M A A 1 3 23 17 8 OW N E R -RIA PERA s-r Extension Pennl1 D1 7 8 1 0 0 2 Is s u e d Fo r Co n s t r u c U o n - Pa c k a g e 17 8 ' 5 5 0 04 M A R 1 3 J oa M A R 1 3 15 17 8 H& S lassued For Canotruc:tiOn • ..__ 17B ' WO R K . P A C K A G E 11 • RE T R I E V A l . SH A F T II I O D S D1 1 0 0 0 I 2 SF A 70 ' k De s 1 g n . 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Oo s ig n • Wo > l l P ac k a g o 11 14 \ 14 0 14 D E C 1 2 27 D E C 1 2 I •o u , OW N E R _,A 100% Design J w""' P-, D1 1 9 9 9 2 Jl s s ue d Fo r Co n s t N C l l o n ·P a c k a g e 11 (1 1 1 6 1 1 3 ) i 5 5 OJ 2 B D E C 1 2 04 J A N 1 3 I 73 11 H& S a..ued For eonslruc:1Jon-Pockoge 11 (1116113) I WO R K PA a < A G E 12 ·M I C R O 1\ J N N E L D 12 0 0 0 2 I SF A 70 % Oe s • g n - Wo r k Pa c k a g e 12 (1 2 1 1 9 1 1 2 ) 2G 26 : Ol 2 6 0 C T 1 2 f os O E C 1 2 10 12 [ H& S -FA7n%Deslgn-W""'P-12(12n9112) 01 2 0 1 0 , RI A 7( ) " 1 . De s i g n - Wo r k Pa c k a g e 12 14 , .. Oj 0 6 D E C 1 2 i1 9 D E C 1 2 14 12 \OW N E R -.wA 70% Design-Work Package 12 D1 2 0 2 0 2 SF A 10 0 ~ ~ De s 1 g n - Wo r k Pa c k a g e 1 2 (1 1 1 7 / 13 ) , , O j 2 0D E C 1 2 j o7 J A N 1 3 : 8 12 I H& S -A 1llm'o Design • W""' .._\12(1117113) 01 20 3 0 1 )R I A 10 0 % De s i g n · W o r k P< 1 1 e k : t g e 12 14 ) 1 4 0 08 J A N 1 3 j2 1 J AN 1 3 10 1 2 !OW N E R , ~A 100% DHion ·WoN Pacicae~o 12 01 2 9 9 9 I 2 ts s u c d Fo r Co n s t r u c t i o n · Pa c k a g e 12 (2 / 8 1 1 3 ) 6 6 O I2 2 J AN 1 3 j 29 J A N 1 3 • 12 I H& S ~~issued ForCon&trudlon· Package 12(2i8113) - - - - - - - - - - - - - - - - - - - - - - -- - WO R K PA C K A G E 13 • 1 E C H A M C A U P I P N i 01 3 0 0 0 • 2 SF A 70 % 0c s 1 Q n ·W o r k Pa c k a g o 13 (7 / 6 1 1 2) 22 \ 21 S i 25 J U L 1 2 A 23 A U G 1 2 I 68 13 ! H& S ~A7 0 % D e s l g n - W o r k P a c k a g e 1 3 ( 7 / 6 1 12 ) 01 3 0 1 0 . , Rt A 70 " 1. Dc s t g n - Wo t k Pa C k a g e 13 ,. , 14 0 •24 A U G 1 2 06 S E . P 1 2 ! 10 3 13 -OW N E R - A 70% Design-Work Package 13 01 3 0 2 0 I 2 SF A tO O ~~ De s i g n - Wor ' o ~ . Pa c k a g e 13 (8 1 6 1 1 2 ) , , , O j 07 S E P 1 2 2t S E P 1 2 69 13 H& S . - s F A 100% Do&ign-W""' Pocbgo 13 (816112) - 01 3 0 4 0 I 2 SF A RO W Pe r m i t t • n g - Wo r k Pa c k a g e 13 s : 5 0 1 24 S E P 1 2 28 S E P 1 2 : 84 13 H& S I SFA ROW P....,;ua,g-W""' P"""-13 01 3 0 6 0 2 I SF A Oe w a l e n n g Pe r m • I ( P E R A } 5 • 5 0 24 S E P 1 2 28 S E P 1 2 69 13 H& S IS F A Dewotertng Permit (PERA) 01 31 00 2 I S FA PE R A Se w e r E' l l e r \ S I O n Pe r m t t I 5 5 0 24 S E P 1 2 28 S E P t 2 69 13 H& S IS F A PERA Sewer ~on Permit 01 3 0 3 0 , I RI A tO O o / . 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Connect lo 60" PCCP @ Sta 52 .. 901 C9 t 0 0 3 0 I 3 ln ~ t a D +f · 32 0 LF of 60 . PC C P 45 45 0 17 A P R 1 3 02 J U L 1 3 -2 7 \R C I lnsbiU +1-320 LF o160" PCCF C9 1 0 0 4 0 I 3 \I n s t a l l AR V an d Ma n h o l e I 2 2 , 00 3 J U L 1 3 05 J U L 1 3 ·2 7 I RC I lnstaiiARVand- C9 1 0 0 5 0 I 3 Co n n e c t so · Fo r ce Ma m to 50 · FM al Sh a f t I 4 • I 0 L 11 J U L 1 3 16 J U L 1 3 I ·2 9 \ RC I Conned 60" Force Ualn to 60"' FU at Shaq C9 1 0 0 6 0 1 3 I Re m o v e De w a t e r i n g I 3 i 31 O j 17 J U L 1 3 22 J U L 1 3 I · 29 j RC I Remov• OewaiMtngl C9 1 0 0 7 0 : 3 jR c s lo r a ti o n ol Af f t ' C i c d Ar e a I 16 1 16 \ 0 !23 J U L 1 3 16 A U G 1 3 · 29 RC I ' ResloraUon of Aftect:ed ~ $L. l " ' ' D~ : •• 13 0 C T1 0 E: u l t R . " ... . St l e c 1 1 6 o l 1 6 r .. . . -. 1 1 0 !1 . \ r 03 0 C 1 ' 3 Pr O Q r r s - . & r RI C · M A N CO N S T R U C T I O N , IN C . 0. 1 • R. v i " t l o n ' .,_,_. I .......... O :a t . " \ (' h • o H J t . l l 12 ' R" ' " O .l i C' OI A \J C 12 : ! 1 2 1 Cn i !Q I Ac w r: y MI A M I DA D E GO V E R N M E N T CU T TU N N E L Ju l y 2. 5 , 20 1 2 Sc h e d u l e Up c t a t e • Al t e r n a t e 3 • AU Ac t iv i ti e s ~ Pr i ma v e r a Sy s t e m s . In c . Th i s Sc h e d u l e Ba s e d on Un r e s t r i c t e d Wo r k s Ho u r s EXHIBIT C WASD RESTORATION WORK IN SOUTH POINTE PARK WASD TEMPORARY CONSTRUCTION EASEMENT AT SOUTH POINTE PARK WASD RESTORATION WORK IN SOUTH POINTE PARK SIDEWALKS & PAVING ·--- -·' ITEMS TO BE RESTORED BY COUNTY 1 26' wide Washington Ave Paving 2 West edge of Washington Ave plaza, curb & gutter ITEMS TO BE REIMBURSED BY COUNTY (NOT RESTORED) COST 1 West edge of Washington Ave plaza $24,336.00 2 Serpentine walk West of Washington Ave plaza $26,520.00 3 Plaza paving, West edge $36,300 .00 4 Section of walk @ North end of Washington Ave plaza $1,950.00 SUBTOTAL $89,106.00 ELECTRICAL LIGHTING ITEMS TO BE RESTORED BY COUNTY ITEMS TO BE REIMBURSED BY COUNTY {NOT RESTORED) COST 1 G2 12' pole mounted metal halide including electrical $17,500 .00 2 G9 12' pole mounted hi -pressure sodium elec $21,000 .00 3 G4 ground recessed $15,400 .00 4 Restore power G2 pole lights East side water feature $1,200.00 5 Restore power G9 pole lights A Apogee $2,400 .00 6 Barricade 2 pylon lights $1,000 .00 SUBTOTAL $58,500.00 I ·~ WATER FEATURE r .•. c ITEMS TO BE RESTORED BY COUNTY 1 Replacement of pump vault bunker (cost if impacted: $33,750} 2 Replace 2 banks of 8 turret fountains (cost if impacted: $21,000) ITEMS TO BE REIMBURSED BY COUNTY {NOT RESTORED) COST 1 Water feature, electric & plumbing $48,900.00 SUBTOTAL $48,900.00 DRAINAGE ~ :. ~· I ITEMS TO BE RESTORED BY COUNTY 1 Restore drain structures 2 Reconstruct drainage infiltration wells 3 18" HOPE related to items 1 & 2 4 Reconstruct dome drain structures 5 Reconstruct 15" HOPE pipe for item #4 6 Reconstruct removed retention box 7 Reconstruct exfiltration trench with 18" HOPE perf. Pipe 8 Reconstruct 18" HOPE 9 Reconstruct 6" HOPE or PVC fountain overflow drain ITEMS TO BE REIMBURSED BY COUNTY {NOT RESTORED) COST SUBTOTAL I $o.ool e WATER & SANITARY SEWER ! ITEMS TO BE RESTORED BY COUNTY 1 2" water meter-cut & relocate 2 2" HOPE pipe for water line 3 2" HOPE pipe to drink fountain and pump room 4 2" valve to drink fountain 5 2" check valve to drink fountain 6 Drinking fountain -re-install 7 2" RPZ backflow preventer 8 4" PVC C900 pipe to sanitary ITEMS TO BE REIMBURSED BY COUNTY (NOT RESTORED) COST SUBTOTAL $0.00 LANDSCAPE REPLACEMENT ~ ITEMS TO BE RESTORED BY COUNTY ITEMS TO BE REIMBURSED BY COUNTY (NOT RESTORED) COST 1 18'-20' Live Oaks $11 ,200.00 2 18' Saba! Palms $3,000.00 3 10'-12' Wild Tamarind $500.00 4 28' Green Malayan Coconut Palms $10,400 .00 5 25' Coconut Palms $4,000 .00 6 1 gallon Lantana $7,065 .00 7 1 gallon Boston Fern $7,767.00 8 1 gallon Sand Cordgrass $2,250 .00 9 1 gallon Gama Grass $1,800.00 10 Aloha Seashore Paspalum Sod $3,900.00 11 Mulch $2,160 .00 12 Restoration of disturbed area & regrading $15,000.00 SUBTOTAL $69,042.00 IRRIGATION REPLACEMENT ~ v·~·• .. .. ITEMS TO BE RESTORED BY COUNTY 1 Restore 4" main line to maintain irrigation to remainder of park 2 Restore zones C2 & C3 ITEMS TO BE REIMBURSED BY COUNTY (NOT RESTORED) COST Bi-weekly temporary watering for trees, sod, & plants in Apogee area (Est, 12 months X 2 1 visits per week) $52,000.00 2 Temporary watering for trees relocated from Apogee area to other locations in the City $52,000 .00 SUBTOTAL $104,000.00 TOTAL $369,548.00 AMOUNT TO BE REIMBURSED BY WASD $315,000.00 EXHIBIT D CONSTRUCTION MITIGATION PROGRAM (THE FINAL APPROVED PROGRAM PLAN SHALL BE ATTACHED HERETO THIRTY (30) DAYS PRIOR TO THE COMMENCEMENT OF SHAFT EXCAVATION ACTIVITIES.) WASD TEMPORARY CONSTRUCTION EASEMENT AT SOUTH POINTE PARK EXHIBIT E WATER FEATURE CONDITION ASSESSMENT REPORT {BASELINE CONDITION DOCUMENT) WASD TEMPORARY CONSTRUCTION EASEMENT AT SOUTH POINTE PARK HAzEN AND SAWYER Environmental Engineers & Scientists August 1, 2012 Ric-Man Construction 3100 SW 15th Street Deerfield Beach, FL 33442 (954)426·1221 Fax : (954) 426·1226 (954) 426·1221 TO: Steven Mancini (Ric-Man Construction, Inc.) FROM: Orlando Castro, P.E. (Hazen and Sawyer, P.C .) Hazen and Sawyer, P.C . 4000 Hollywood Boulevard Seventh Floor, North Tower Hollywood, Florida 33021 (954)987-0066 Fax: (9S4) 987-2949 SUBJECT: Washington Avenue Plaza Water Feature Condition Assessment Report- Revised On July 16, 2012 the City of Miami Beach (CMB) performed a test of the water feature located in the Washington Avenue Plaza of South Pointe Park. Present at this test were members of the CMB, Miami-Dade WASD, CM/IT, Ric-Man Construction and Hazen and Sawyer. CMB staff operated the water feature as the members present inspected the demonstration and took pictures and video recordings. A subsequent site visit was done on July 27, 2012 to discuss some issues CMB had with the Condition Assessment Report of the July 16th visit. This report assesses the condition of the water feature as inspected by Ric-Man Construction and Hazen and Sawyer on July 16th and July 27th. This report is intended to supplement those conditions that are including but not limited to those referenced in the pending litigation "In The Circuit Court Of The Eleventh Judicial Circuit, In And For Miami-Dade County, Florida" (Case No" 10-61979 CA 40, see attached). Water Feature The water feature consists of four fountain modules each with eight 1-inch jets that shoot water in an arch to a center drain. At the center drain there are smaller jets that shoot water up . All four center drains are piped to a reservoir underneath fountain module #2 and from the reservoir two suction lines are piped to the two pumps inside the pump station vault. During the inspection of the water feature, the following items were observed: 1. The pavers for all four water feature modules were incorrectly sloped and water flows away from the center drain. 2. The small jets that shoot water up around the perimeter of the center drain were not shown to be working. 3. It was mentioned by CMB staff that the reservoir underneath fountain module #2 has a leak. 4. The computer software that operates the water feature was defective. The software wasn't able to run through the entire water pumping cycle. 5. Some of the water feature pavers near the western sidewalk were separated in various locations. 6. On July 27th, the water feature pumps were not kept running adequately to gather pressure and flow data from the discharge side of the pump. The maximum time the pumps ran was 21.6 seconds. Water Feature CAR .docx Page 1 of 9 Washington Ave . Plaza Water Feature Condition Asses sment Report August 1, 2012 Pump Station Vault The pump station vault is located just west of the water feature. The inspection of the vault was limited to just a structural inspection. No pump , valve , electrical equipment or mechanical accessories were inspected as part of this report . During the inspection of the vault, the following items were observed : 1. On July 16th there was rainwater leaking though a crack in the ceiling of the vault. The re-inspection of the same crack on July 27'h showed less water markings , but the crack was still visible . 2. On July 16th there was groundwater leaking through the tie holes on the south wall of the vault. During the re-inspection of those same tie holes water was only shown to be leaking through the lower two tie holes of the south wall. 3. There was groundwater leaking though the two 4-inch link seals on the northern side of the east wall of the vault on both inspection days . 4. The 2-inch coupling on the north side of the vault was actively leaking on both inspection days. 5. It was mentioned by CMB staff that there was a leak in the air compressor. Lighting The water feature contains up-lighting in each of the four center drains . There is also street lighting to the east and west and up-lighting in the serpentine walk west of the water feature. During the inspection of the lighting , the following items were observed: 1. The up-lighting at each of the four center drains do not work . 2. The up-lighting in the serpentine walk were not able to be turned on during the July 27 1 h demonstration. A CMB electrician mentioned that those lights were fed off a separate panel and will only turn on at night. On various nights, a Ric-Man representative has showed up to the site to check on these lights and they do not turn on . Enclosed are pictures documenting some of the observed items mentioned in this condition assessment report. There are more pictures and video recordings available that can be provided . Should you have any questions , please feel free to contact us at your convenience . Enclosed: Photographs Copy of Case No. 10-61979 CA 40 c: D . Mancini F. Manning B . Calabrese D . LaCross T. Carney J . Cowgill Water Feature CAR.docx Page 2 of 9 Wash ington Ave. Plaza Water Feature Condition Assessment Report August 1, 2012 The water features at the Washington Avenue Plaza of South Pointe Park Improper slope causing water to run-off to the northeast at fountain module #1 Water Feature CAR.docx Page 3 of 9 Washington Ave . Plaza Water Feature Condition Assessment Report August 1, 20 12 Improper slope causing water to run-off to the southeast at fountain module #1 Water running-off to the southwest at fountain module #2: pavers separating near sidewalk Water Feature CAR.docx Page 4 of 9 Washington Ave . Plaza Water Feature Condition Assessment Report August 1, 2012 Crack in the ceiling of the pump station vault (July 16 1h) Crack in the ceiling of the pump station vault (July 27 1h) Water Feature CAR.docx Page 5 of 9 Washington Ave. Plaza Water Feature Condition Assessment Report August 1, 2012 Leak at the tie hole on the south wall of the pump station vault (Julv 16th) Leak at the tie-hole at mid-height of the south wall of the pump station vault (July 27th) Water Feature CAR. docx Page 6 of 9 Washington Ave . Plaza Water Feature Condition Assessment Report August 1, 2012 Leak at the tie-hole at bottom of the south wall of the pump station vault (July 271h) Active leaking through the link seals on the northern side of the eastern wall of the vault Water Feature CAR.docx Page 7 of 9 Washington Ave. Plaza Water Feature Condition Assessment Report August 1, 2012 Rust at the leaking link seals (typical for both leaking link seals) Leaking coupling on the north side of the pump station vault (July 161h) Water Feature CAR.docx Page 8 of 9 Washington Ave . Plaza Water Feature Condition Assessment Report August 1, 2012 Leaking coupling on the north side of the pump station vault (July 27th) Serpentine sidewalk west of the water feature Water Feature CAR.docx Page 9 of9 THB CITY OF MIAMI BEACH, FLORIDA Plailltiff, v. HARGRBA VES ASSOCIATES, INCORPORATED, WHLIAM LANB ARCIDTBCT, INC., WILLIAM LANE, SAV.lNO & MILLER DBSION STUDIO, P.A., DAN BUSER WATERARCIDTBCTURB, INC., KBNNB'IH DIDONATO, INC., KBNNETH DIDONATO, LAM PARTNERS, INC., WILUAM A. AnARCA, P.E., PLAY.SITB.ARCHlT.BcrultE, INC., JOANNE HIR.OMURA, JOHNSON, AVBDANO, LOPBZ, RODRIGUEZ & WALBWSKI ENGINBBRING GROUP, lNC., HORACIO A. RO.ORIGUBZ, P.B •• MAGNUM CONSTRUCTION MANAGEMENT CORPORATION DfBIA MCM CORP. AND/OR MCM, and TRA VBLBRS CASUALTY AND SURE'IY CO:MPANY OF AMERICA, Defendants. I IN TIIB CIRCUff COURT OF TIIB ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI·DADB COUNTY, FLORIDA CASE NO.: 10-61979 CA 40 PLAINTIFF. TBE CITY OF MlAMl BEACR FLORIDA'S. SECOND AMRN»ED COMPLAINT FOR DAMAGES AND DEMAND FOR JQRY TRIAL Pla.intift; the City of Miami Beach, Florida. (tho 11 City11), sues Defendants, Hargreaves Associates, Incorporated eHargreaves" 01' the "Consaltllnt'~, Willimn Lane Architects, Iuc. CWJ.A'?, William Lane (41 Lane'~. Savino & Miller Design Studio, P.A. ("SMDS,), Dan E1.1ser Wate.rarchltecture, Inc. C'DBW'1, Kenneth Didonato, Iuo. C'XDr'), Kenneth Didonato ("Didonato"), Lam Partners, Inc. ("LAM"). William A. Abat'Ca, P.A. (uAbarca'j, Play.Sito.Ambitecture, Inc. ("PSA'•), Joanne Hiromura C'Hiromum'?, Johnoon, Avedano, Lopez, Rodriguez & Walewsld Bngfneerlng Group, Inc. ("JALRW''~ Horado A. Roddguez1 P.B. CASE NO.: 10-61979 CA40 ("Rodriguez"), t Magnwn Construction Management Corporation d/b/a MCM Corp. m1dlor MCM f'MCM'') lllld 'D;a.velers Casualty and Surety Company of America (''Travelm'' (collectively referred to as the "Defendants"), and alleges as follows; JURJSPICTIQN, YENUE 4M> IDRNIIFICATION OF PAltTIEB l. This is an action for breach of contract, professional negligence, negligence per s~ and breach of warranty, seeking damages in egoess of $15,000.00, exclusive of interea~ attomey's fees and costs, and is within the jwisdictfon of this Court . 2. The City ie a political sub -division of iho Stute of Florida. 3. Hargreaves is a Califronia corporation with its prlncfpal plaoe of buainess in San Fr811cisco, California. At all times material hereto, it WIIS doing buaineas in Miami· Dade County, Fl01ida. 4. WLA is a Florida corporation with im principal place ofbusiness in Miami Beach, FlGrlda. At aJJ times material hereto. it was doing buslnoss in Miami-Dad~ County, Florid~ S. lAme is a resident ofMlami-Dade County, over the age ofrofdotity and otherwise sui juris. 6. BMDS is a Florida corporation with ibl principal .Place of busin.Bss in North Miami, Florida. At all times material hereto, it was doing businesa in Miami-Dade County, Florida. 7. DEW is a Canadian co1poration with its plincjpal plaoe ofbuainesa in Richmond Hill, Ontario, Canada. At all times material hereto, it was doing bus~uess ln. Mimnl-Da.de County, Florida. 1 The Dcfuwhm1B, WLA. lane, SMDS, DRW, KDI, Didonato, LAM, PSA, Hiromura, JALRW, Abarca and R~ !!lWl bo oolJeotjvely nn&rred to herein M tho ''DesignSuboonsultantu," 2 CASBNO.: 10·61979 CA 40 8. ICDI is a Floclda corporation with tts prlnclpal place of business in Hollywood, Florida. At all times 'JllAtedal hereto, it was doing business i:!t Miami-Dade County, Florida. 9. Didonato is a resident of the State of Florida, over the age of majority and is otherwise sui juris. 10. LAM is a Massacbuaetts corporation with its p1:inclpal place of business ln Cambridge, M888a.cbusctts. At all times mAterial hereto, it was doing business in Miami-Dade County, Florida. 11. PSA is a Massachusetts omporatf.on with its principal place of bus!neas fn Acton, Massacbusetts. At ll1l times material hereto, it was doing business in Miami~Dade County, Florida. 12, HirolilllJ:B. iB a resident of the State of Florida, over the ago of majority and is otherwise sui jurla. 13. JALRW is a Florida. corpotation with ita principal place of business in Miami- Dade CountyJ Florida. At all times material hereto, it was doing business in Miami-Dade County) Florida. 14. Aboroa is a resident of the State of Florida, over the age of mejority and is othorw.i8e sui juris . 15. Rodriguez is 4 l'esident of the State of Flo1ida, over the aga of n11ijorlty and is otherwise aui jUI'ia. 16. MCM is a Florida for profit COJ.poration with its pl'incipal place of business in Miami" Dade County, Florida. At all times mster.ial hereto, it was doing business in Miami-Dade C<Jr.anty, Plorlda. 3 CASBNO.: 10·61979CA40 17. Travelers is a Com1eoticut corporation with its principal place of bus:iuess in Hartford, CT. At all times tnaterial horeto, it was doing business in Miam.f.-Dade County, Flol'lda, 18. Venue is proper in this Court becauso the 04USea of action alleged herein accrued in this Cfrouit, Article 12 of the Agreement for Professional Architectore and Bugineetlng Services sued upon provides for venue in Miami-Dade County, Florida a.nd Article 6.10 of the general contract betweea the City and MCM provides for the exclusive venue in Mhunt-Dade County, Florida. 19. This Court has personal jurisdiction over B1.l of the Defendants by virtue of the flwt that each Ddendant contracted to perfOrm services and/or .supply materials to tho subject property located in Miami-Dade County, Florida. failed to ptrlo.nn and/or negligently performed acts required by their respective contracts to be perf-ormed. in Florida and/or caused injury to propm1y in Florida, whioh is the subject of the causes of action alleged herehl. gENERAL FActUAL ALLEGATIONS 20. Tho City allocatedsubatanJial funds. in exceBS of$22 million dollars. to transform along neglected opan. space into a. world class signature park. 21. The redevelopment of the more than 17 acl1l8 of green apace wM part of 1he City's compreboo.sive redevelopment plans for the rebil1:h offhe South Pointe area. 22. '!he concept of the Project was to provido residents and visitors a 'Ulliqlle park 6Xp~lence. Special features of the Project were to include an expfii1Bivo pramEUlll.da along Oovemment Cut, affording residents and visitors spectacular views o:f the ocean~ Government Cut, Fisher Islaru:l, Bisoayne Bay and the Port of Miami; to provide wide horizons for viewing 4 -1 CASBNO.: 10-61979 CA 40 sumises and sunsets, watcl:ling omise shlps pass by and observi11g the tide changes; water tbuntaim: sweeping palm lawns; and dune areaa. 23. On or about January 12, 2005, the City Commission ret!dned Hargreaves to be the Archltect/Bngiuaet C:'NE~~ of record for the South Pointe Park Improvement Project (the "Project'~, punruant to which Hargreaves was to enter into a lnmp sum contract for the performance of design phase services including, without litllitation, to ptovido the planning, wtan deaign, arcbi~ landscaping, st1:uctura.l and engineering aervioes required to identify and plan comprehensive hnprovements to the P1•oject (11Agcnda Item R-7E"). A oopy of Agenda Item R-7B is attached hereto 118 Exhibit ''An and incorporated he.reln . 24. On or about J81luary 12, 2005, tho City and Hargreaves entered into an Agreement for Pm&!ssional Arcbiteoture and Engineel'ing Sel'vices (the "AlB Agreement't) pursuant to a request far qualifications No . RFQ-39-03/04, pur8U81It to which Hargreaves would be the arohitect of record for the Project, and would perfonn design phase services for the Projeot. A wpy of the AlE AgJ:eement and the five (5) amendments thereto (collectivelyref~'ed to as the "Am.eruhneots"), are attached hereto BB Bxllibits "B," "C,n "D," "B," "F," s.nd "G", respectively, and are incorporated herein. 25. Hargreaves, fn tum, entered into various consulting agreements with the Design SubconBOltantu to podbnn design, administration, superv.iaion and related Be.rvices 011 the Project. 26. WLA, as a. professional m"Obftectural finn, signed and sealed the Projoot drawings through ita agent Lane. 27. AB required by law, Lane, as a registered arohitect, signed and sealed the Project drawings. 5 CASE NO.: 10.61979 CA 40 28. SMDS, as a professional landscaping arcbiteClfural fum 1 through im agents, signed and sealed tOO landscaping arobitectoral plliDB fur the Project. 29. DEW, lUI a professiond Jandsoape arclliteoturo and water feature desigo firm, through its agents, signed and seQled tbe water feature derign plans fur the Project. 30. KDl, as a promsiol'lal engineering finn regarding irrlgatiOtt dea!gu., through its agent Dl.doll8to, signed and sealed the lrriaation plans for the Project. 31. AB required by law, Didonlito, as a professional engin.eer, signoo and sealed lhe irrigation plans for the Project. 32. LAM, as a professional architectural .lighting design finn, through its agent, signed and sealed the lighting plans for the Project. 33. PS.A, as a playground architoctun.l design firm, signed and sealed the pla.ygroll!ld design plans for the Project. 34. AB required by law, Hiromura. BB a playground design professional, signed and sealed the playground design plans for the Project. 35. JALRW, as a mechanical, electrical and phunbing engineering fum, throu.gb. its agent Rodrigusz, Bigned and sealed tha mechanical, electJ.ical and plumbing plana for tho Project. 36. AB required by law, Rodriguez, as a professional engineor, signed and &ealed the mechanical and plumbing plans for the PJ.'Ojoot 37. A1J required by law, Abarca, a professional engineor, signed. and sealed tho electrical pl1U18 for the Project. 38. On or about Jll!llJa.'cy 24t 2007, the City initiated a competitive bid process for Bid No.; 26~07 for the Project. Su ltlvltation to Bid, attached hereto as Exhibit "H," and incorporated herein. 6 i CASBNO.: 10-61979 CA40 39. On or about February 20, 2007, MCM submitted a bid to the City to act as genernl contractor for the Project. 40. On or about May 3, 2007, following the oompetitivc bid process, tM City awarded the lump sum general oontraot to MCM in the amount of approximaWly $21,698,000.00 (~ludlng Bltemates). Copies of the contract ("General Contract', and general conditions ("General Conditions"), without specifications (collootively refen'ed to herein as the "Contract DocnmentB'', are attached hereto as Composite Exhi'bit "I," and incot:porated herein. 41. Travelers issued a Public Works Performance Bond aud Payment Bond for the Project (colJeoti.vely refened to herein u the 11Bond 11), Bond Number: 104924814, in the amount of$22,453,000.00. The Bond names the l?rojeot's general oontraetor, MCM as the Principal and the City as Obligee. A copy of the Bond is attached hereto and meorpOi'ated hc.rcln us Exhibit FACTS GIVING RISE TO THE CAUSES OF ACTION: TBE REQUIREMENTS OF Till,!\ CONI'RACTS 42. Pursuant to 1he AlE Agreemont, Hargreaves agreed to provide the planning, urban design, arohiteoturc, landscape architecture, and engineering services required to identify and plan comprehmlsive improvements to the Project. 43. The BD.ticipated improvements included lM.dscaping, inigation, rca:cationa! areae, walk:wa}'B, restroOJDB. signage, support structures, parking, lighting. Beawall improvements~ bay walk, water feat.ures, oonCMSion areas, and appropriat-e accessory patk commercial uses, as well RB My other pm·k elemmts or public facilities required or desired by the City duting the planning process. 44. Section 2.4.18 of tlm AlE Agreement provides, in relevant part, that: 7 • -1 CASB NO.: 10-61979 CA40 The Consultant covenants with the City to futnish its services hereunder properly, in e.ccordanco with tho standards of its profession and in accordance wi1h applicable construction, building and health codes 81ld other applicable Federal, state and local rules, regnlations ftlld laws, of which it should reRBODably be aware, throughout the term of this Agreement. See Exhibit "B." 45. In Artiole 11 of the AlB Agreemen4 Hargreaves agreed to indemnify md hold hanDless fh.e Clty, its officers, Md employees, from liabilities, damages, losses and costs including, 'bnt not limited to, reasonable atttuney's fees, to 1h5 extent caused by the negligence, recklessnesg, or intentio.nal wrongful conduct of Hargreaves Wld other persons. See td. 46. Pursuant to Amendment No. 1 to the AlB AgreemMt, Hargreaves further agreed to amend its scope of services to inalude the pt-eparation of contract documents in accordance wi1h the Cit~s design standards and specifications, to participate in l1le review of the bidding lllld awm:ding of the construction of the Project, and to provide construction administratl.on of the Contract Documeut&, plans and specifications, and supcrvJsion over the construotion activities dw.ing the construction pha.sc of tho Pmj ect. See Exhibit "C.,, 47. In Anumdm.ent No. 2 to the A/JJ Agreement, Hargreaves further agreed to amend iffs soope ofsorvices relative to the conceptual deaigo, sohematio design, development of a des;go criteria paokage, bid coordinatl.on, and COllBb.'Uction administration services for tbe South Pointe Pier. Ses Bxln'bit "'D." 48. In Amendment No. 3 to the AlB Agreement, Hargreaves fiuthcr agreed to amend ibl BCOpe of services to include the coordinati.011 of a6l"Vices wifh the design and permitting work and coordination of the art work in the Project See Exhibit "E." 49. Pursuant to Ameadment No. 4 to the AlB Agreement, Hargreaves agreed to extend Us scope of services to include upgrades to Washington Avenue extending tbe Project's 8 CASB NO.: 10·619?9 CA 40 improvements beyond the Park's limits to South Pointe Drive, and agreed to perfo1m extended conotruction administration and supervision s&Ivices in connection therewith. S(l(l Exhibit ''F.u 50. In Amendment No. S to the AlE Agreemcmt, Hargreaves further agreed to amMd its scope of services fur additional aerviees associated with the So11th Pointe Pier improvements. See Exhibit "0." S 1. Pursuant to the Contract Documents, MCM was to act as the general contractor fur the Pl'Oject and tumish labor and materials to construct the Project in accordance witb. the plans and speoificationa. mi applicable codes IUld regula.tions arul indusCry standards. See e.g. Compi)S{te Exhibit "I,,. Articli:IS 2 and 14. S of the General Conditions. 52.. Pursuant to Article 14,5 of the General Condltlons, MCM, as the general con'l.l.llctor for the Project, agreed to perfonn its work "competently and efficiently, devoting such attention thereto and applying BUob s1d1Is and expertise as may be necessary to perform the Work in aoconlanoe with ths Con.lract Doouments." See id. 53, Article 6. 7 of the General Contract provides, in pertinent part: CONTRACTOR shall perf'onn its duties, obllgatiol!B, 1111d services under this Contract in a ski.ll.:ful and l'eSpectable manner. The quality of CONTRACTOR's perfonnROoo and all iute.rim and final product(s) provided to or on behalf of CITY shall be comparable to the best local and national standards. Su Composite Exhibit '"I.,, 54. PurBUMt to the Contract Documents, MCM wmanted to furnish labor and material £reo from defects and deficiencies. 55. For exampleJ Article 23 of the General Conditions states: Wa.rnmty: OONTRACfOR W8.1'l'Bnts to CITY that all materials and equipment furnished under 1tlis Contraot will bo new UJll.esa otherwise specified and that all of the Work wUl be of goo£1 quality, free from faults and defeots and in oo.n:funnance with the Contract Documents. All work not conforming to these requiremmts1 inoluding substitutions not prDperly approved and • i .... CASBNO.: 10-61979CA40 authorized, may be considered defective. .•• This wmnmty is uot limited by the provisions of A:11icle 25 [Defective Work] hel'ein. Sseid. 56. The Confl."act Documents further provide that any defeotive wolk performed by MCM shall be remedied at no cost to the City. 57. 58. Specifically, Article 25.3 of the General Conditions provides, in relevant part: :Qefectiye Work: If. within one (1} year aftel· the date of substantial completion or such longer period of time WI may be prescn'bed by the te:nns of any appllcablo special wammty required by the Contract DoCDments, or by any specific provision of the Contract Documents, lllly of th.e Worl: is found to be defective Ol' 110t in accordance with the Contract Documents, CONTRACfOR, Aftet 1-eceipt of wtitten notice ftom CITY, shall promptly correct such. defktive or nonoonforming Work wifhin th6 time specified by Cl'IY without cost to CITY, to do so. Nothing contlliiled :herein shall be construed to establish a period of limitation with respect to any other obligation which CONTRACTOR might ha.ve undel' the Con1nwt Documents meluding~ but not limited to, At'ticle 23 [Warranty} hereof and any clahn regardill,g latent defects. See td. Article 25.4 further provides that the fallure to reject any defective wodc or material shall not in WlY way prevent later rejection when such defect is discovered,~ or oblipte the City to final accep1ailce, See ld. 59. Notwithstanding Hargreaves' approval of ahop dtawfugs, the Contract Documents obligate MCM to ensure 1he proper :fitting and COl.lBf.rllctlon. of the work and 1he :liunishlng of materials and work 1'tquired by the. Contract DocUtne!lls~ whether included on the shop drawings or not See td., Artiolo 44.6 of the General Conditions. 60. The Project Specifications~ incorporated into and mado part of the Contracl Documents, obligate MCM to properly complete the w01k for the Pl'Ojcct, including the instwhUion of materials and fumiah:ing of services which may be necessary to properly complete the worlc, whether or not they 8l'e called for in the ContlllCt Dooome~1ts, at no additional oost to 10 CASB NO.: 10~61979 CA 40 the City. A copy of select sections of the Project Specifications is a.ttaobed hereto 68 Composite &hlbit "K., 61. The Project Specitloations further provide that MCM will ensure that all material and fqUipment inCOiporated into its work will confunn to applicable speoi:fioations and standards, be installed in accordance with best engineering IUld shcp p1-aotioes, and comply with all applicable codee, laws, ordlnanees, standards and specifications Ol' as otherwise required by the Contract DocmmenfB. See id. 62. MCM was also rcquJred to take nny and all CQI:'J.'001ive action to etJSUto the work was properly performed and mateJ:jals wera suffioiett~ and to maintain the Project's landscaping untilmch time as all con·ective mell8ures were completed and accepted by the City. 63. Patagrapb. 3.24 {FINAL COMPLETION) of Section 02935 (Landscape Maintenance) of tlw Project Specifications states. in pertittent part: B. Correctlve Woxk: Work requiring cortootivo 110tion or rcpla.oomcnt in the judgment of the Owner's Representative shall be perfbnned within ten oalendar days after the Final Review. Con'eCtf.ve work and replacement materials $ball be in accordance with ihe Drawings and Specifications. After cottective work is [sic) completed, the Conttactor shall again request a Final Review for Flrull Completion as outlined abovo. Contraetor 1hall coutfnne malnteuan~ of landseaped areas unUI snch ttme a1 corredive measum have been completed and aecepted by the Owner. (BmphaBiB supplied). Sse Composite Exhibit 1'K.." 64. The Contract Documoots also require MCM to a.abieve Final Completion within thirty (30) da)'8 of Substantial COlnpletiOllt and provide for liquidated damages in the evant MCM fails to timely achieve Final Completion. 8ee Exhibit ''L.u 65. Final Completion ia defined in tho Contraot Documents as: The date C6l1:ified by Consultant in the Final C«tificate ofPayme.nt upon which. all conditions and t"eqUiremenfB of an.y permits and regu1JJ1ory agencies have been satisfied; any documents required by the Contract Docnnnen.ts ha\'e been received by Consultant; any 11 • . -1 CASBNO.: 10-61979CA40 oth.er documents require to be provided by Contraoror have been reoeived by Cotuultant~ and to the best ofConsultsnt's knowledge, Urlbrmation and boliet; the Work deftned herem has been fully eompleted in aceordance wlUJ the terms and condltions of tlte Contrad Doea.mentB. (Bmpltasis supplied), See ld., Section 00200, Patagt-aph 1.16. 66. 'Ihe liquidated damages clause, which assesses MCM approximately $1,000.00 per day for each da.y tba.t MCM ftlilB to thnely achieve Final Completion! is intended to compOJJsate the City for monetary loBBes arising ftom MCM's :&ilure to timely achieve Final Completion. See Composite Exhibit "1," Article 2.3 of the Gan.enU. Contract. 67. Artialc 6 of the Geneml Conditions provides, in pe11inent patt Indemnification 6.1 CONTRACTOR shall indemnifY and hold harmleBS CITY, ita officers, agenta, directors, and employees, ftom liabilities, damages, losses, and costs, includin& but not limited to reasonably attorn.~a fees, to the extent caused by the negllgenc~ reclde88.tless or intentional wrongful misconduct of CONTRACI'OR and persons employecl or 'Utilized by CONTRACI'OR in the perfonnance of this Agreement See id. 68. The Contract Documents obligated MCM to sooure a performance and pa}llllent bond fur the Project. &e ld. 69. MCM semued the Bond for the Project tlu-ough n-avelers in the w:nount of $2.1,698.000.00 (excluding alternates). See Exhibit "1.11 70. The Bond guarantees MCM's timely and proper perfonnanoo of its contractual obligations and payment to its subcontractors, suppllet"S aud materialmen, regarding im work on the Projeot. See ld. 12 ... CASE NO.: 10~61979 CA 40 71. Tra.velem, as surety, agreed to be jointly bound with MCM to the City l'egarding MOM's obligations under the Contract Documents, which are incorporated into and made part of the Bond hyrefe.t'Cbce, See /d. THE DEFENJ)ANJS• BREACHES OF OONTRACT AND NEGIJGEN"CE 72. Hargreaves and the Desisn SubcollBnltru:lts committed architectural and design eJtOrs, resulting in deslgrt and/or conatruction deficiencies, and negligently perfonned their obligatiollB to the City under ili.e AlB Agreement, the Amendments thereto, and the Design SuhC0118llltants' respective llg('eemw fur professional consulting se1vlees which include~ witbout limitllfioD, the following: {a) The bellll.S and open areas of the Pl'Ojeot aro excessively compacted, tJrecluding draina,stJ aod p1·event:Lng the Seashore Paspalum turf grass and other landscaping from growing and thriving at the Project; (b) The Seashore Paspalum turf grass specified in the plans and installed 1rt the Projaot ia in a. distressed state, demowtrating lack of turf vigor, unifurmity and density, excessive weed infe.~~tation, browning 1n many locations, and is unfit for its intended use at the Project due to, Olllong other things, the poor subsurface soil conditions specified and insb!lled, excessive compactlon of' the soil materials. fhe improper composition of son ma1erials specified and/or installed, and defective installation of &absurface soil materials; (c) Tho plani and speoificatiOM call fur lime rook, an alkaline matet.i.al, to be used as the base material for the plRllted areas of the P.rojoot, whioh Js not suitable far planted areas, tb.ereby precluding hmdscaplng from properly gJ:owlng end thriving at flo Project (d) The pump hause fur the Washington Avenue WR.ter feaiure :Is not air conditioned, thereby preventing !.he main controls from properly operaii.og; (e) The water reservoir apeclfied and installed fol' th.o Washington A venue water featuxe is inadequately sized, precluding its ability to function as designed and approved by tlte City. including failing to allow fot· the proper volume of water necessary fol' proper operatloni 13 CASE NO.: 10-61979 CA 40 (f) The Waahington Avenue water feature's d~ was defectiv~y designed and installed. resulting in excessive water loss from the spray jets due to the improper slopJng and grading of the dock; (g) The mllin sump ova"tlow line for tlle Washington Avenue water featuro was improperly designed and/or installed, inoluding failing to llavo the requisite check valve insta1led, 1·esultlng in the backflow of storm drainage water into the mmp pump; (h) The Washington Avenue wator featm:e designed l11l.d installed at the Project was not delivered in a condition tlmt would allow it to bo properly permitted for use. 1'h.e water feature created numerous potential heal1h code violations inoluding o~ing the pennitted aize fllld design and felling to include the design and coDBlruotion of testroom facilities and showet-s located within 200 feet in violati.on of'local health codes. AccordlnglyJ this has resulted m the City's inability to obtain an operating fi'Ottl the Florida Department ofHealth and prohibiting it8 operation as designed; (i) Stainless steelmater.lala were specified and inBtalJed for the Pylon lights, oontraty fD the IllanUfacturet' s recommendation to use aluminum materials, rmJlting in tea~staining of the Pylon. llghts ftlld unnecessarily in.creasing the cost of the Project; (j) 'The control wiring specified and installed for the Project's Pylon lights is defective aa fiboc optio cables should have bem1 used, 111ther than CAT-S copper wi:rlng, to allow these Ugbtlng components to operate ronslsteo.tly and properly, resulting fn multiple failures of the lighting system due to, among other things, the con'Osive effects of the salt air environment and lightning strikes; (k) The Project•s Pylon llgbtlng system as designed and installed allows fur failnres of the entire Pylon Ugllting system potmtially triggered by an individual component's fi.ilme (i.e. lamp tailute) and cannot adequately withstand electrical surg68 and/or lightning, thereby precluding tho lightins components fiom ope1'a1ing consiatently and properly; (1) The children's playgrouud equipment specified and installed fhlled to oomply with National Playground Safety Institute Btandmds and otl:utt goveming national and local safety codes aud regti]ations required for children's playgrounds, posed &ignifioaut lif.o..safety bazatda fur its users, induding oholdng and hnpalement h~ards. and was unfit for its interu:led use at the Project, resulting in its extended closure to the public and requiring its complete retnoval and replacement to make it available for public use; (m) The materlals specified and .installed to construct the Coquina pathways at the Project ware inadequatl\ fiill.ed to reflect proper 14 . ·• CASE NO.: 10-61979 CA 40 requirements fur the soil building 1naterials and stabilization of the path material and failed to account fur the Project's intended use, resulting In delamination and overall premahlre deterioration of the pathways; (n) The irrigation system was improperly desl.gued and/or installed, including falHng to provide adequate coverage in certllin areas of the landscaping while overwaterlng other m-eas, placing the berms aud otlJ.Sl' areas of the landscaping under significant moisture and nutritional distress, and tbe installatJon of itn.Pl'Oper sprinkler heads; (o) The Pavilion's air cooditio.ning system was defectivcly IUld/or installed, failing to :function properly due to, among other things, the location of the condensing unitB inside a closed area, below grade.., and laclc of proper ventilation fOr the air oondensing 11nits, thereby preventing pmper ventilatioJJ and cooling throughout the building (p) The water oloBcts in the restrooms of Project's Pavilion were not propel'ly specified wd installed to UU1tch the incoming water P!essurt\ therefore requiring booster pumps to increase the water presi!Ul'e to permit the installed fixtures to properly flush. The lack of ac:Wquate water prea8llt'o preolruied proper flusbin& creating potentially hazardous and unsBDitary conditions; (q) The grout specified and installed for the port hole windows and miling sygtem of the Project's Pavilion are defective. resulting in rusting of the reinforcing steel due to water intrusion~ (r) The main sign at the entrance of the Project was not properly d~igned and installoo ~n that it Willi not installed in accordance with fhe shop drawings submitted and approved, demoDBtrated early signs of dim'epairJ mcl.uding peeling off lettering, and fu.iled to include the requisite anti~thefi hardw~ resulting in its actual theft :from tlul Project; and (s) The failuro to obtai11 the ~te Florida prothssionallioan.Ni>e arui ensure the Design Subconsulta.nts, their agents and employees, au.d MCM and its subcontractors obtained all requisitel lic::enses and pemnts to propedy pe.rfurm the work on the Project; and (t) The 1hilura to properly monit01: the work of the Design Subcon8Ultants, tbeJr agents and employees, MCM and its subcontractors, to ensure that tho pl!Ule and speci.ficationa met the applicable standwd of care for the Prqject, complied with all governing laws and regulations, p,nd that the work was performed properly, in accordance with the plans and speoifications, goveming 1Kws fli1d regulatioJlB ll.lld applicable jndustry standards. 15 . ·i • ., CASE NO.: 10·61979 CA 40 73. MCM. as general. oonfraotor of tho P~:oject~ was obligated to pel'fonn its wot·k properly and in a worlmumlike manner, and in accordance with the Project's plans and specifications. applicable codes and regulations, and the best local and national industl"y standards. 74. MCM fail&! to perfonn ifs work propedy, in a worlananlike and skillful manner comparable to tile best local and national standard8, resulting in numerous OonBtru.otion defects and deficiencies at the Froj ect wbioh ill elude, without limitation, ~ full owing: (a) 1hc berms 1U1d open areas of the Project are excessively compacted, precluding drainage and pl'evcnting the Seashore PJBpaiU111 turf grass and otbet· landscaping from growing and thriving at the Projeot; (b) The Sea$h.ore Paspalum twf gL'8SS specified in tho plans and installed at th~ Project is in. a diBtJ.-essed mste~ demonBtrating lnck -of turf vigor, unifomrlty and density, exce~Sslve weed infestation, browning in many locations, and fs unfit fo1· its intended use at the :P.rojeot due to, among other thin~ the poor mbsurflwe soil conditions specified and installed, excessive compaction of the soil materials, the im.pl'opet composition of soil materials specified andlot installed, and defective installation of subaur.f.ace soil materials; (c) The pump house fur the WaBhi.ngton Avenue water feature is not trlr conditioned, thereby ptfJVenting the maln. oontrols fro111 propcl'ly operating; (d) 'Ihe water reservoir specified and installed for fue Waabington Avenue water featura ill inadequately sized, precluding Its ability to function as deBigned and approved by 1he City, including failing to allow for the propm volume of wacer neoos.sary for proper operation; (e) The Washington Avcmue water feature's deck waa defectively designed and installed. resulting h1 excru~sive water loss from the spray jets due to 1he improper sloping aM. grading of the deck~ (f) The main sump overflow line for the Washington Avenue wa.f.el' mature was impxoperly desiglled 81l.d/ot installed, iltcluding falling to have the requisite check valve installed. resulting in the ba.akflow of storm drainage water into the sump pump; (a) The Washington Avenue wator featut-e designed and inslalled at the Project WBB not delivered in a condition that would allow it to be 16 -i CASE NO.: 1(}..61979 CA 40 properly perml«ed for use. The water featw:o areated numerous potcnt.ial health code violations including exceeding the perntitted size and design aud fajling to inoludo the design and construction of restroom facilities and showers located witbln 200 feet in violation of local healtl1 oodes. Accordingly, this haa resulted in the Cityts inability to obtain an opm·atin.g from the Flol'ida Department of Health 1111d prolu'biting its operation as designed; (h) Stainless steel materlals were specified and installed for the Pylon llghts, contral'y to the mtUmfacturer's 1'e00mmeruiation to use liluminwn materials, resulting in tea-Bta.ining of d1~ Pylon lights and uoneoessarily increasing tho cost of tho Project; (i) The oonttol wiring specified and installed fo1· the Pt-ojoot•B Pylon lights is defective as fiber optic ~lcs should ba~ been used, rather than CAT-5 I'..Opper wiling, to ellow theBe lighting components tn operate consi8tently and properly, resulting in mu1tl:ple failures of the lighting system due to, among other thillgs, the corrosive ef.£'eet8 of the salt lrir oovironment and lightning strikes; (j) The Project's Pylon ligbting system as designed flild ins1alled allows fur failures of the entire Pylon lighting system potentialJy 'triggered by an individual component's failure (i.e. lamp failiJl'e) and cmmot adequately withstand electrical surges and/or lightning, tlweby precluding the lighting components ftom operating consfstently and properly; (k) The chil~·s pla.ygroUJ'ld equipment specified and installed failed to comply with National Playground Safety Institute standi\Ids and other governing national qnd local safety codes and regulations required fur cbildren's playgrounds, posed significant lif-e-safety hazards for its user, including cboldug and hnpalcmcnt hazanhl, and was unfit for its inkm.ded use at the Project, ~-esulting in its extended cloBUre to the public and requiring ita complete removal and replacement to make it available for public use; 0) The matmialfl ~oojfjed and it'lStalled to co118trnct the Coqtuna pathways at the Project were inadequate, failed to refloot pl'()per requirements for the soil building matetials and stabilization of the path matelial and failed to accotmt for the Project's intended us~ :resulting in delamination and overall premature deterioration of the pathways; (m) The irrigation system was improperly designed and/or installed) including .fhlling to pL'Ovide adequate coverage in certain areas of the Jandscap;ng while overwaooring othel.· areas, plac.i:og the berms and other areas of the landscaping under significant moisture and nutritional diBt:ress1 and tho installation of improper sprlulder heads; 17 • 75. CASBNO.: 10-61979 CA 40 (n) The Pa.vilion,s aft oonditioning system was defectively and/or ln8talled, falling to function pl'operly due to, among ether things, the location o£ the oondentrlng units inside a closed area, below grade, and lack of Pl'Oper ventilatlo11 for the air condensing units, thereby p:reventing proper ventilatio11. and cooli11g throughout the building; (o) The water closets ill the l'eBtl'Ooms of Project's Pavilion wete not properly specified and installed to match the inCOlilinj water pressure, therefOre tequiling booster pumps to inctease the water pressure to permit the installed fixtures to properly flush. The lack of adequate water preBB\tte precluded proper flushfn& creating potentially ha.za.rdm~ aud UllSanitary conditions; (p) The grout Bpi'Oified and mstailed for the po1t hole windows and raillDg system of the Project~s Pavilion are defective, resulti.u.8 In rus1:ing of the reinforcing steal due to water intrusion; (q) The main sisn at the entrance of the Project WSB not properly designed end installed in that it waa not installed in accordance with the shop drawings submitted mtd approved, demonstrated early signs of dm-epair, including peelin,g off letterltt& and failed to include the requisite antt~1heft hardwa1-e, resulting in its aotua1 theft ftom the Project; (r) Defeom and deiiciec.ci~ at the Project caused by MCM's fiillure to properly monitor the work of its subcontractors, suppliers and m.atarlnlmen, to ensure that the mafmials and equipment installed were :!tee of faults and defects, of good quality and in oonfonnance wJth all contract doOW»ents and that all work waa perfutmed properly, 1n accordance with the plana and speoJfloationa, gt>vem:ing laws and regulations and appHoable industry standards; and (s) Tho f!rlluro io aohiew Final Cotupletion of the Project liB defined io the Contract Documents, a.od failure to pay the liquidated damages to the City t'eBUltl.ng therefrom. MCM's failures and breaches of its controotual obligations rendet-ed MCM in defunlt, triggering the City's ability, as Obligee, to pursue its tights lllld remedies under the Bond. 76. Pursuant to the Perfonnance Bond, thB City clemanded Travelers remedy the Projeot"'s defects and deficiencies. 18 CASE NO.: 10·61979 CA40 77. Notwithstanding demand, Travelers has failed and/or refused to 1-emedy the defects and defloleno:les at the Project, contrary to its obligations uudet· the Perfonnanoe Bond. 78. As a. resnlt of the Defendants' negligence and brea.oh.es of their co11tractua1 obligations in coiUJ.ection with the Projectt the City has suffered aubfrtantial damages. 79. The City's damages include, without limitation, the cost of cottecting ~or replach1g defioient and detective work on the Projeot perfonned by Hargreaves. its Design Soboonsultants, their o.gouts and employees, MCM and its rmbcontnwtors, 9Uppllera and ·materialmen. caused by de&gn errors, improper and/or negligent collBtruetion of the Project, defective materials and tbe fllilUJ:'e to properly perfhnn eontract admioistra.tion and supervisory duties. The8e damages include, without limitation, the costs to: (a) Repair and/or replace the flUbsurface soU conditions of the turf grass including 1he base material, soil and any other earthwork materials; (b) Replace the turf grass at the Proj ecl; (c) Replace dead landscs.ping Md landsoaping that failed to properly grow and thrive in the defective soil conditions irurtalled at the Projectj (d) Repair and/or repl!Ule modify and/or replace the irrigation system, or pot1ions thereof, in oooroination with the replacement of tho sub8urfuce soil conditions and to:r.f gtaSs; (e) Repair, replace Ellldlor modify the slopes of the hnns to allow grass to grow and to make more safe for public "USe; (f) Repair. rephwo and/or modify the air conditioning system for the PaviHon to ensure proper venWation and cooling; (g) Repair and/or modify the plumbing system in the Pavilion and vehicular storage building to tmBUl'" proper and adequate water pressure; (h) Demolish and replaoe 'the Washillgto11 Avenue water feature, deck and any o1her requisite compon.ents associated therewi1h, to enrue it is pennittable as requited by the Department of Health and any othetregulatory agencies, and to ensure iti\mctions properly for Its intended use; · 19 -1 CASBNO.: 10·61979 CA40 (i) Repair and/or replace the Pylon light system, or components thereo~ to etlllut'e the system can reasonably withstand electrical surges, preveot the fni..lure of one component :6:om short clroaiting all of the othor lightsJ allow for consil!tent "USC and minimize oonushre effects of salt water and existing weather oonditioos common to the geographic region where the Project is located; (I) Repair and/oc 1nodify the pump house for water feature to include an air conditioning system to pennit the controls to function properly; (k) R.cmcve and l'eplace and/or modify the Coquina. pathways with appropriate materlals to allow the pathways to function properly for their intoo.ded use; (1) ReylQCO the entire children1s pla.ygrmmd to ensure it complies with all applieab[B national and local safety guidelines and is fit for its intended use; (m) Repair the rusting stee1 around the port hol~ windows and railing syutetn of the Pavilion; (n) R(9laoo the entrance sign for the Project, ineluding inst1llting a proper anti-tlteft system; ( o) Complete the Project work, including increBBed costs associated with tb.e additional work required for completion. caused by the:ao envl'B and omissions: and (p} O.multing design and cmll!tmction fee, ru~sociated wifh remediation. of the design and construction defects and deficiencies at the Project 80. All conditiona precedent to the filing of this action have been perfunned, have occwred or have bem excused . 81. forth herein. COUNT{ CLAIM FOR BRRACH OF CONTRACT AGAINST HARGREAVES ASSOCIATESJ INCORPORATED The City re-alleges and re1ncorporates Pamgraphs 1 through 80 as if fully set 82. Th6 City ha.«~ comp1ied with its obligations under the AlE Agreement and the .Amendments thereto . 20 CASE NO.: 10..61979 CA40 83. Pursuant to the AlE Agt'eement and Amendments thereto, Hargreaves was required to perfonn its scope of work properly, in accordBUce with its cout:J:actual obligations including, without limitation, designing, planning, overseeing and supe~Wing the construction of a fully functional Project as approved by the City, obtaining the requisite professional Florida l.icensure and ensuring that the Design Subconsultants, their agents and employees, MCM and its subcontractors. BllPPliets and matelialmen obtained all necessary licensing, pennitil or oth.et'Wise complied with applicable laws and 1Cglll!ltions, in connection with the wDrk on the Project. See Exhibits "B" through .. G." 84. Hargreaves breached the AlB Agreement and 1he Amendments thetoeto including. without limitation, those bt-eaches and negligent acta and/or omissioos related to the design and construction work on the Project, and supervision thereof; ass« forth in Paragraphs 72 and 74 herein, and as follows: (a.) Failing to properly perfonn its work. in BCC()rdance with the requirements and obligations set forth in. the AlB Agreelllent and Amendm~nts thereto and exercising that degrer:t of ~c arui skill as would be tmeroised by other reasonably skilled IU'ohitecmral fi:nns pract:iolng in the South Florida araa under the same or similar ·circum.stances; (b) Failing to comply with all applicable Florida professional licensing and othet· code requirements necessary to p6rform its work on the Project; (o) Failing to properly perform its contract administration duties, monitnr~ supervise and ovm"Bee the work of the Desigll Subeonsultants, their agents ftlld employees, MCM and its subcontractors. suppliers tmd materialmen, to ensure tbat the phu1s were .free from design errors~ met the applioable standards of care Md thAt the work an the Project was perfunned in accordance with the plans and specifications a11d other applicable Contract Documents; (d) Failing to ensure Final Completion of the Project; and (e) Failing to ensure the Pl'oject, and all components thereof,. complied with all applicable national, state and local laws, regulations, codes and ordinmcea. 21 CASE NO.: 10-61979 CA 40 85. As a direct and proximate reiUlt ofHargl'eaves' breaches of the AlB Agreement and the Amendments thereto, the City has suffered substantial damages including, without limitation, those set forth in Paragraph 79 hore.ln. WHEREFORE, the Plaintiff, City of Miami Beach, Florida, respectfully t·equesta that 1"hb Court entur judgment against Defendaot, Hargreaves Associate~ InCOl'POTated, awarding the City compensatory damages pursuant to Count I of this Second Amended Complaint, plus prejudgment interest, reasonable:> attorney• a fees, the costs of this aotl.on and any other relief that this Court deems just and proper. COUNTll CLAIM FOR NEGLIGENCE AGAINST HARGREAVES ASSOCIATES, JNCORPORATliD 86. 'I'he City re-alleges and reincorporates Paragraphs 1 tlu:ough 80, as if fully set forth herein. 87. Hargreaves agreed to provide competent professional services to tho City with regard to the design, planning, administration and supervision of the eonsfruofion of the Project. 88. Hargreaves, as a professional architectural firm, owed a. duty to exercise a reasonable degroo of care and skill in the design, planning, adminf11tration and aupervision offhe consi:Netion of the Projeot as would be exercf!ed. by other reasonably skilled aroh.iteots practicing in the South Florida area under the sw.ne or similer cdrcumstances. 89. Hargre~MS b1-eached. its duty of care incl.udinJJ~ withot~t limitation: (a) Falling to exel.'cise that degree of care and sldll as would be expected by other reasonably skilled architects pmotioing in the South Florida area under the same or similftl" circumstances; (b) Failing to cc.mply with all applicable Florida professional licensing and other code requit'eltlents necegsary to perform ifB work on the Project; (c) F!liJing to pmperly monitor tho worl!: of the Design Subconsultanta, their agents and employees, MCM and its 22 i • -1 CASE NO.: 10-61979 CA 40 subeontractora, suppliers and materialmen, to cmsure that tho plalls were free from design en'Ors, met the applicable standards of care and that the work on the Project was perfurmed in accordance with the plans and specifioatlo11B and othm applicable Conttaot Documents; (d) Failing to ensure Final Completion of the Project; (e) Failing to ensure the Project, and all eomponetlts "thereof. oompJied with all applicable natJ.onal, state and local laws, regulRtions, codes and ordinancea; and {f) Falling to properly perform its work as set forth in further detnil ill Paragraph 72 hetein, 90. AB a direct and proxilnaw result of Hargreav~· negligence, tho City has suffered substantial dama.gea Including, without limitation, those datns.ges set forth in Paragraph 79 herein . WHERBFORE, the Plaintifi; City of Mio.tui B~ FJolida, respsctfully tequests this Comt enter judgment fur damages in its favor against D6fim.dallt, Hargreaves Associates, Incorporated, for an amount in excess of $1 5,000.00, exclusive of costs, and demands a jury trial of all issues friable as of right by jury. COUNTIIl CLAIM FOR NEGLIGENCE PER SE AGAlNS'l' HARGREAVES ASSOCIATES, INCORPORATED 91 . "''fuu City toe-alleges and refnooiporates Paragt.'apha 1 through 80, as if fully set ford1 herein. 92. National standards for playgl.'ounds have been developed by the Aw~rio!ln Society fur Testing and Motcuials ln1e!.national {ASTMI). the U.S. CODSUlllel' Product Safety Commission (CPSC)J and theintematlonal Playgx'Ound Safety Institute (IPSI). 93. The CPSC publishes the Handbook for Public Playground Safety, which includes safety grrldtilines fur dceigning, constructing, opemting and nurlntaining public playgrounds. 23 -f CASENO.: 10·61979CA40 94. Hargreavea failed to comply widt the standal:ds set forth in ASTMI, CPSC, and JPSI (oolleotivoly tefe.rred to u "tho Code'')J by failing to abide by safety code design requirements and 88fety operatingraquirements. Accordingly, Hargreaves' llCfB and omissions in &.iling oo comply with the Code's standards render it negligent, as a. matter of law. 95. The City is a member of th.e class that the safety nlqlliremtmts of the Code were desjgned to protect and the damagea auffured are 'the type th!tt the Code was intended to pl'event. 96. As a direct and 1:1roxnnate tcsnlt of Hargl•eaves' violations of the safety reqWrem.ents of the Code, the City ~ suffered substantial damages including, without .Hmttlllion, those set forth in Paragraph 79 herein. WHBREFORB, the Phlintiff. City of Miami Beaoh, Florida, respectfully l'equesti this Court ent« judgment for d~~tnages in its favor against Defendant, Hargres.ves Associates, Incorporated, fOI compensatory damage$ in excess of $15,000,00, exclusive of costs~ and demmtds a jury trial of all issues friable as ofdgll.t by juty. COUNTlV CLAlM FOR PROFESSIONAL NEGLIGENCE AGAINST WILLIAM LANE ARcmTECTS,INC. 97. The City re·alleges and reincorporates Parag1·aphs 1 througll 80, as if fu11y aet fbrth herein . 98. WLA agreed to prov:ide oompatent :ptofessio.nal services with regard to ilie design, planning and superv:lsfon of the construction of the Pl'Oject. 99. WLA, as a professional arohitectural finn, owed a duty to exercise a reasonable degJ."eo of care ana skill in the design, planning, supervision, and administration of the construction of the Project as would be exercised by othe1· reB8onably skilled arahiteots practiGing in tho South Florida area under the same or similar circtul1Stancea. -1 CASE NO.: 10-61979 CA 40 100. WLA breaohed its duty of cll.'re inoludmg, without limitatiotlt as described in Paragraph. 72 herein and as fo11ows: (a.) Failing to exercise that degl'ee of care and skill as would be exercised by other reasonably skilled architectural firms pt'aCticing in the South Flol'ida uea uuder the;, same or similar ciroulnstances; (b) Fnlling to oomply with all applicable regulatory, induatry and best practice requirem.entsi (c) Failing to verify or ascertain the proper location, reqwsite components and proper ventilation for the air oondJtloning system at the Project's Pavilfoa to ellSW'e it functioned properly for its Intended use; (d) Fw.1:ing to verifY 01' properly design the water closets in the Project's Pavilion flll.d vehicular storage building to match the incomin8 water pressure to allow for proper flusbing and functioning of the installed fixturca; (e) Failing to specify the appropriate grout for tho port bole windows and railing of the Projoot•s Pavilion; (f) Failing to adha-e to manufacturer specifications; and (g) Fmling to prop5rly supervise, monitor and oversee the constrnction of the buildings at the Project to en9U:te oompliance with the plans, specifications and other applicable Contract Dooum.ents. 101. As a direct and proximate result of WLA's negligence, the City has suffered subslatltial damages including, without limita.ti~ those set forth In Paragraph 79 herein. WHEREFORE, th& .Plaintiff, City of Miami Beach, Florida, respectfully requests this Court enter judgment for damages in its favor against De:&ndanr, William Lana Architects, Inc., for an amount in excess of $15,000.00~ EU.clusive of costs, and demon.ds a jury trial of all issues triable as of right by jury. 25 • CASB NO.: 10-61979 CA 40 COIJNTY CLAIM FOR .PROFESSIONAL NEGLIGENCE AGAINST WILLIAM LANE 102. Tho City to-alleges and reittcotpol'ates Paragraphs 1 through 80, as if fully set forth .herein. 103. Lane agreed to provide competent professional services with regard to tho design, planning and supervision of the construction of the Project. 104. Laue. as a profeBSional arcllitect, owed a duty to exarclse a t"eaBonable degree of care and skill fn tho design, planning, supervision, and admioJattatton of the oo1l8truction of the Project as would be exercfBed by other rt)Ssonahly skilled erobiteofB practicing in the South Florida fl!e4 under the same or similar chwtnstanoes, I 05. Lane breached his duty of caro inoluding, without lim.itation. as described in Pm'Bgraph 12 herein and as follows: (a) Falling to exerolse that degree of care and skill a& wonW be oxcrclsed by other reasonably skilled architects practicing in the South Floridq area under the same or similar clrcumstances; (b) Failing to comply with all applicable regula1ory, industry and best practire reqtrlremants~ (o) Failing to verify or aa~ta.in tha pmper location) requisite cornponenta and proper ventilation for the air conditionlng system Ill the Project's Pavilion to ensure it functioned properly for its intended use; (d) Failing to verify or properly desigtl the water closets in the Project's Pewilion and vohicolllt storage building to tn.atclJ. the incoming water presstll'e to allow for ptopm· flushing and funolioning of the installed fixtures; (e) Foiling to specifY the appropriate grout for the port h.ole windows and railing of the Project's Pavilion; (f) Failing to adhere to manufa.oturar specifications; and (g) Failing to properly supervise) monitor and oversee the constr1.1ction of tho building~~ at the Project to ensure compliance with the plans, specifications and other applicable Contract Documents. .26 CABBNO.: 10-61979CA40 106. As a direct end proximate result of Lane's negligence, the City has suffered substantial damages includin& without limitatio~ those 11et forth in Paragraph 79 herein. WHEREFORE, the Plaintift City of Miami Beach, Florida, 1~peotful1y requests tbis Court enter judgment :fur damages in ita favor against Defendant, William Lane, for an amount in excesa of $15,000.00, exclusive of costs, and demands a jwy trial of all issues triable as of right by jury. COUNT VI CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST SAVINO & MILLER DESIGN STUDlOf P.A. 107. The City re-alleges and reincorporates Paragraphs 1 through 80, as if fully Bet forth heroin. 108. SMDS iB a local architectural finn. holding itself out aslandsoape architec:t.B, with extensive experienoo in designing park and other public areas in South Florida. The finn was retained by Hargreaves to deaign the landscaping components of the P1uject and assist Hargreaves in perfonni:ng contract adminbtt-ation services including, without limitation, supervising and overseeing COD.$tTUction of the Projeot, 109. SMDS, as o. professional architectural fi1m, owed a duty to e.xerolse a reasonable degree of care and skill in t11e desi&n, planning, supervision, and administration of the construction of the Projeot as would be exercised by othar reasonably sldlled arollitectural firma pracliaing in the South Florida areu. under the same or similar <liroumstances. 110. SMDS breaahed its duty of care including, without limitation, BB described in Paragraph 72 Jwrein aruJ as follows: (a) PaiJiog to oxe1·o!se that degree of care and skill as would be e.xeroised by other reasonably slcilled atcllitects practicing in the South Florida al'ea under the same or similar circumstances; 27 CASE NO.: 10-61979 CA40 (b) Failiiig to comply with all applictlble regulatory, indusby mid best practice reqnh'elUents; (c) Fdling to asoortain or advise the City that the soil conditions throughout the Pt'Ojeot oontained exoessiv~ sand particles and were exOCBSively oompacted, significantly impeding wator :infiltration, percolation, and drainage; (d) Failing to properly specify appropriate subsurface aoil oonditions, the use of soil and earfllwork m.e.tet~als and grass oonduclvo for growing a vib1ut, healthy, and 1'eSilient turf graas and overall landscaping at the Project; (e) Approving berms and opeu areas that ware exoosaively compacted and too steep} precluding dJ:ainage and preventing landscaping from growing in tho open areas; (f) Failing to properly design and apecify the appropriate materials . fur tbfl Coquina. pathways; (8) Falling to properly design certain components of the Project inoludmg. without limitation, proper sbadfng structures and seming, taking into ll.COOunt t11e geographic location and associated known weather conditions and intMded use of the Projeotj (h) Failing to ensure tho irrigation system designed and installed Bt the Projoot was euffiaient to properly maintain and service the twf grass and other land«caping at the Project; and (i) Failibg to properly monitor and supervise the work ofMCM, its subcontractors, suppliCllll and materialmen. to eJJBUt~ that the work pcrfolllled aud nt11.terlals ftunished for the Project wel'e fn aooordanoe with the plllllB n.nd specificationa and othet• applicable Contract Documents. regulations and cod~. 111. As a direct and proximate result of SMDS•s negligMoe, the City bOB suffered wbstautld dam.agca including, wifhout limitation. those damages set forth :In Parngraph 79 herein. W.HBRBFORB, the Plaintiff, City of Miami Beaoh, Florida, respectfully requests this Court enter judgment for damages m its &vor against Defm&nt, Savino & Miller Design Stodi.o, P .A., fur an amount in exoesB of $lS,OOO.OO, e)lO\usive of coste, and damands a jury trial of all issues triable as of right by jill'}'. 28 CASENO.: 10-61979CA40 COUNTyn CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST DAN EUSER WATERARCHITECTURE, INC. 112. The City reo-alleges and reincorporates Paragraphs l through 80, as if fully Bet forth herem . 113. DBW iJJ a lacdaoape architecture and water felltl.lN design finn, retained by Hargreaves to design the Washington Avenue water feature and related components for the Project. 114. DBW, as a profesmonal landsoape arobiteoture and water feature design finn, owed a duty to cxerclse a reasonable degtt~e of care and skill in the design. plallllin.g, supervisio~ and adtniniBtraf:ion of the const:ruotion of the Washington A vem~e water feature and related compon~nfs of the Project as would be exercised by other reasonably sldlled water :feature architooturo firms practicing in the South Florida area undor the same or &mnar ciroumstanoe~~. 115. DBW breached its duty of care including, without limitation, as described in Pa.ragtllph 72 herein and as follows: (a) Failing to exerol.se that degree of care and sldll as would be exercised by other reasoxuwly skilled lau.dsoa:pe at•cbitects a1ld water teature design. professionals practicing in the South Florida Q1'ea under the same or si!Ililar clrcumstan.ces; (b) FaJ.linB to obtttin the requisite Florida professionallicensme to perlorm work on the Project; (c) Failing to comply with all applicable regulatory, industry and best practioe requirements; (d) Failing to pctfonn itB work in compliance with all governing oodes, law11 1 regulations und ordinfl!lces; (e) Failing to verify, asoortain Ml.d/or properly desig11 and specifY the appropriatfl size and location of the reservoir for the Washingtcn Avenue water feabn-e in ordec for it to operate properly, (t) Fmling to properly design the water feature's deck tG ensure proper drainagej 29 -i CASE NO.: 10-61979 CA40 (g) Failing to design the Washington Avenue water feature and related components to eD.lfUl'e compliance with all applicable codes, laws, regulations and ordinances govemitlg its ope.t~tion; (h) Failing to design the Washington Avenue watet' feature to properly account fol' wind and related weather conditions to ensure minimal loss of water during operation; (i) FPiling to 8SCel.'tain air conditioning for the pump hou.9e servicing the Washington Avenu~ water feature to ensure the main controls function properly; (j) Failing to properly design the lll8in sump overflow line to prevent the bacldlow of storm drainage water into the sump pump; (k) Failing to deliver the WBBhington Avenue waoor feature in a condition that would allow it to he propel.'ly permitted by gov~:llrlng regulatory autborlties to allow for its Intended o:Peration and 'US6 at the Project; and (g) Failing to properly monitor and supervhle tho WP1k of M~ its subcontractors, suppliers and materialmen, to oosu.re that the work pertbrmed and materials furnished fur the Project's Waablngton. A venue water feature and .related oomp<>nents, were in accotdance witll the plana and specificatioilll a.n.d other applicable Contract Documents. regulations and codes. 116. As a dlreot and proximate remJlt of DEWs negligence~ the City has suffered substantial damages includin& without Hmitatfo~ those damages set forth in Paragraph 79 Jlarein . WIIBREFORB, t,he Plain~ City of Miami Beach, Florida, respectfully requesta this Court ooter judgment fur damages in its favOJ against Defimdl!lt. Dan Buser WaterarcltitectureJ Ino., for on amount in axce..qs of $15,000.00, excluaive of costs, and demands a jury trial of all issues biable as of right by jury. 30 ·t ... CASE NO.; 1 0-61979 CA 40 COUNTvm CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST KENNETH DIDONATO, INC, 117. The City re-alleges and reincorporates Paragraphs 1 through 80, as if fully set forth herein. 118. KDI is an irrigation engineering and design finn, t'etflined by Hargreaves to design certain irrigation-related oomponentB of the Project. t 19. KDI, es a professional engineering :finn, owod a duty to exercise a reaBonahle degte(l of care and .skill in the design, planning, supervision, and administration of the construction. of the irrigation componeubl of the Project aa would be exercised by other reasonably skilled engineering firms providing engineering and deaign smrices related to irrigation in the South Florida. area under tb.e s11rne Ol' similar clrwmstallces. 120. KDI breached its duty of cure including, without l:hnitation, as described in Paragraph 72 herein and as follows: (a) Failing to exercise that degree of care and skiU as would be cx.eroia~d by other reasonably skilled engineering :t1rrnA providing eogin.oot.ing md design services related to irrigation in. the South Florida area under the same or similar circumstances; (b) Failing to comply with all applicable Jegulatory, induslry and best practice requirements; (c) Falling to design 8l'ld engineer an mfective hrlgatio11 syBtem that -uniformly and adequately distributes water over the grassed meas of the Project1 espcoiallyon the mounds and steep benns; aud (d) Failing to properly monitor a.u.d supervise the WOJk of MCM, its subcontractors, rmppllers and materialmen, to ensure that the work perfonned and materlals furnished for the irrigation system on 1he Project were ib. acoordan.ce with the plans ancl specifiomions and other applicable Contmct Documents, regulations and codes . 121. As a direct and proximate result . of KDrs negligence, the City has su:.ffered substantial dameges which include, without limitation, those damages set forth in Pamgraph 79 herein. 31 CASB NO.: 10·61979 CA 40 WHEREFORE, the Plaintiff, City of Miami Beach, Florida, respectfully requests this Court wter judgment for damages in its favor against Defend!ID~ Kannetb Didonato, Iuo., for an amount in excess of Sl 5,000.00, exclusive of costs, and demll1tds a jury trial of all i.saues trlable as of right by jury. COUNT IX CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST KENNETH DIDONATO~ P.E. 122. The City re-alleges ftlld reincorpora!:eR Paragraphs 1 through 80, as if fully set forth 'hal"Bin. 123. Didonato agreed to provide competent pl'Ofessional services with regard to the design, plWUli.ng. 8Upervision and administration of the C011Btruction of tb& larufsca..PO Irrigation system at tlte Project. 124. Didonato, as a professional engineer, owed a duty to exercise a reasonable degroo of care and skill in tho design, planning, supervision, and administration of the construction of the Jandscapa itrl.gat:ion system at the Project as would be ex.ercised by other reasonably skilled profosslonal engineers per.timning design ond enginooring services 1'elated to irrigation in "the South Florida area. under fl.w smne or similar oiroumstances. 125. Didonato breacll.ed his duty of oare including, without limitatio~ as described in Paragraph 72 herein, and as fullows: (a.) Failing to axorciae that degree of~ ao.d skill BB would be exmcised by other 1-eaoonably skilled engineers providing engineerlng and design services related to irrigation in the) South Florida area under tho same or similar oit·cumstances; (b) Failing to comply with a)l applicable regulatory, industry and best p.motice requirements; (c) Failing to design and engineer an effective irrigation system !hat unifonnly and adequately diatrlbutes water over tho grassed areas offhe Project, especially on tlw mounds and steep benns; and 32 CASE NO.: 10-61979 CA 40 (d) FaiUng to propedy monitor and superv.lse the work of MCM, its subcontractors, suppliets and materialmen, to e.t1BUt6 that the worlt p«oform.ed and materials furnished for fhe irrigation system on the Project were in accordance with the pl8118 and spaclftcationB and other applicable Contract Documet'lts, regulations and codes. 126. As a direct and proximate result of Didonato'~ negligence, the City has suffered substantial datnagea which include, wiiliout Jim!tatio~ tllose damages set forth in Paragraph 79 WHBRBFO~ the Plaintiff, City of Miami Beaclt. Florida, respectfully requests this Court enter judgment for damages i11 its favor against Defendant, Kenneth Didonato, P.B., for an amount in excess of $1 S,OOO.OO, exclnslve of costs, ond demands a jury trisl of all issues 1riable as ofrightbyjury. COUNT X CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST LAM PARTNERS, INC 127. The City re-alleges and reJnoorpora.tes Paragraphs 1 through 80, as if fully set forth herein. 128. LAM is an architectural lighting design firm, retained by Hru:greaves tu design certain lighting components of tbe Project. 129. LAM, M a professional architectural lighting design fU'm, owed a duty to exercise a reasonable degree of ca.re and BldU in the design, planning, mpervision. and administration of the construction of the llglrting com.po11onts of the P1·oject aB would be exercised by othet· reasooably skilled arcbitectm'al lighting desigp.. finns pt·acticing in the South. Florida m·ea lUlder the S81lle or similar oiooumetanoes. 130, LAM breaohed its duty of care :including, without llmitation, as descclbcd ln Paragraph 72 herein and liB fuUows: 33 -i CASB NO .: 1 0-61979 CA 40 (a.) Failing to exeroise that degree of oaro and skill all wo'Uld be exercised by other reasonably skilled IU'cltitecturalllshting design :firma practicing in the South Florida area under the same Ol' similar circumstauces; (b) Failing to romply with all applicable regulatory, induatry and best practice requirements; (o) Failing to adhel.'e to the manufacturer speci.fiOirtiom to use aluminum materials, as opposed to stldnless steel mat~ia!B, for the Pylon lights: (d) Failing to properly design and specifY fiber optic cables, as opposed to CAT~S copper wiring. for the control wiring of the Pylon lights; (e) Falling to design a lighting system at the Project that could adequately and reasonably withstand electrical sur~; (t) Failing to properly design and specify an appropriate Ughting system, including all materials and applicable compOilDilts thereto, fur the Pt'Ojoot that properly accounts for the geographic location of the Project, including its olose proximity ro salt water, average heat index. typical wind conditions and average lightning frequency; (g) Falling to properly dMigu. 11 lighting a system to prevent the failure of one lighting (lamp) component from MUsing ofher lighting components to fail as a result of the individual CQtnponent's failure. th.et:eby precludJng (:()D.Sistent and proper operation of the liaflting system; and (h) Failing to propuly monitor and supervise the work of M~ fts subcontractors, wppliers and materialmen, to ensure that the work performed and materials furnished on the Proje~ regardfug the lighthlg system, ifloluding tbe Pylon lights, wera in llCCordance w:i.tb the pllmB 1111d specifications and otheJ.• applJcable Contract Documents~ regulations and oodes. 131. As a direct and pl'Oximate result of LAM's negligence, the City has BUfferoo mbatantial damages which include, without limitation, those damages set forth in Patllgfaph 79 WHEREFORE, the Plaintiff, City of Miami Beach, Florida, respe3tfully requesm this Court enta judgment for damages in its favor against Defendant, LAM Partnet-s, Inc., for ru1 amount in e;x:cess of $15)000.00, exclusive of com, and demanda a jury trial of all issues triable as of right by jury. 34 ...; CASBNO.: 10.61979CA40 COJJN'IXI CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST WILLIAM A. ABARCA. P.E. 132. The City r&-alleges and relnootporates PIIIBgraphs 1 tluuugh 80, as if fully set furth herein. 133 . Abaroa agreed to provide competent professional services with regard to the design, planning, supervision and admitrlstrati.on of the construction ofthe electrical system fur the Project. 134. Abarca, as a profe88ional engineer providing e1eofrical engineering service~~, owed a duty to exercise a. re~U~onable dogree of care and skill in the design. plantrlng, supervision and administration of1he construction ofthe electrical system of the Project as would be exercised by other reasonably aki.Ued engineers providing electdoal engineering services in the South Florida m:ea under the IUllllo or similar circumstances. 135. Abfl!(lft breached his duty of 08l"e including, without limitation, as desctibed in Paragraph 12 herein and as fullows: (a) Failing to exeroisc that degree of care and skill as would be ex.ercised by other reasonably skilled c:nginecDJ providing electrloal engineering services in the South Florida area under the sBIO.e or sim.ila.t• circumstancesi (b) Palling to comply with s1l applicable Ngulato:ry, induslry and best practice requirem.enm; (c) Failing to properly design and ecgineer an eleotrical system fot· the site and exterior I!ghting componeuts of the Project that could adequately and reasonably withstand electrical surges; (d) Failing to properly design and engineer an eleotrloal system to prevent the failure of one lighting (lamp) component from causing other lighting comporumts to fail as a result of tbe individual componen~11 fidllll'e, thereby precluding consistent llll.d propor operation. of the lighting sysl'C111; (o) Failing to prop~ly design and e11ginoor an electdoa.lsystem for the site 1t11d exteri01· lighting components of the Project that properly aooounbl for the Project's gwgraphio location, includJng 35 CASE NO.: 10·61979 CA 4D its close proximity to salt water, avemge heat index, typfoal wJnd conditions and avel'age lightJling frequency; end (f) Failing to proper1y monitor and supervise the worlc. ofMCM, its subQOntractors, suppliers and materilllmen, to ensm.'t! ihat the worl!: performed and matmials fumislted 011 the Project regarding the electrlcal system, including the electrical engineering and witing for 1he aite Wld ex.terlor lighting, we.re in accordance with the plans and spectflcations and other applicable Ccn.tr~ct DoClUlllente, regulatiQDB ll!ld ood~s. 136. As a. direct and proldmate resuLt of Abarcs~s neglig$l.CO, the City lw suffered substantial damages which include, without limitatiollt those damages set fo1'fil in Pamgraph 79 herein. WHBRHFORE, the Plaintiff, City of Miami Beach, Florida, resp~tfully requests tllis Court enter judgment for damages in its favor against Defendant, Willi!llD A. Abru'Ca, P.E., for an amount in excess of $15,000.00, exclusive of costa! and demands a jury trial of all issues triable as of right by jm.y. COUNTXIl CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST PLAY.S.ITE.ARCBI'I'ECTURE, INC.3 137. The City re-alleges and reinootporates Paragraphs t through. 80, as if fully set forth herein. 138. PSA is a playground design firm. retained by Hargreaves to design ce11ain aspects of tba Project. 139 . PSA, as o. professional playground design finn. cwed a duty to exercise a reasonable degree of care and skill in the design, planning, .supervision_ eud adrninisl:nltion of the oonslruction. of the pla.yground component of the P1'oject as wo-uld be exercised by other t Ths City obtaittcd an Order of Def11ult 1111 to Play.Site.Architeotwc, Ino., entered by the Court on December 8, 2011. 36 ..j CASE NO.: 10-61979 CA40 reasonably skilled pl'ofeasional playground design firms pracdchlg in the South Florida area under the same or B:imilBr circumstances. 140. PSA breached its duty for the following reasollB, including, but not limited to: (1) fidllng to exercise that degree of care and wll as would be mreroised by other reasonably skilled professional playground deaigtl firms practicing in the South Florida. area under the same or similar circumstmces; (2) failing to comply with all applicable code requirements. inoludfng applicable safety codeg and ADA requirenum.ts; (3) failing to adhere to m!l!lufaoturer specifications; and (4) faili11g to design a. playgi.'Ound for its intended QBe Jn a. regional signatur:e p~~rk: that could withstand the an.vironment and excessive wear a.11d tear. 141. As a di1'ec:t and proxllll&te result of PSNs negligence, the City has suffered damages which inolude, without limitation, the delay m completion of the entire Project, the replacem.ent of the playgro\Dld equipm8llf, and those damages set forth in Paragraph 79 herein. WHEREFORE. tbe Plaintift; City of Miami Beacl4 Florida, respectfully requests this Court enter judgment for damages in its favor against Defendant, Ple.y.Site.Architecture. Inc., for IUl amount in mt0088 of $15,000.00, excluaivo of ooats, and demlll.ds a jury trlal of all issues triable as of right by jury. COYNTXIU CLAIM FOR NEGUGENCE PER BE AGAINST PLAY.SITE.ARCHI1ECI'URE, INC. 142. The City re-alleges and reincorporates Paragraphs 1 through 80, as if fully set forth herein. J 43. Natioll.lll standards for playgrounds have been dcwelDPed by the Amerioau Sooiety for Tesfulg and Materials International (ASTMI), the U.S. Consumer Product Safety Commission (CPSC). and the httematioDal Playground Safety lDBtitute (IPSI). 37 CASBNO.: 10-61979 CA 40 144. The CPSC pubUshes the Handbook for Public Playg~:ound Safety, which includes safety guidelines f'or designing, constructing. opEU"oting and maintaining public playgl'CUllds. 145. PSA &.iled to comply wiib the atalldards set forth in ASTMI, CPSC, and IPSI (colleaively refemd to as 14the Coden) by failing to abide by safety code design requirements and safety operating requlremenll!. Accordingly, PSNs acts IUld omissions in fafllog to com.ply with the Code render it negligent. as a matter of law. 146. The City is a member of the class that the safety requiremen!!J of the Code were designed to protect and the damages suJJered are the type that tho Code was intended to prevent. 147. AB a direct and proxh:nate result ofPSA's violation of the s1d'.ety requiremeuts of the Code. the City luls suffered damages which include, witlmnt limitation, the delay in completion of the entire Project, the replacement of the playground equipment, and those damages set furtb in Paragraph 79 herein. WHEREFORE. the Plain~ City of Miami Beach, Florida, respectfully requests this Court ent« judgment for damages in ita favor against Defewlant, Play.Site.Ar.chi.tooture, Ino .• for oomp$18atory d80Ulges in. ex.ces11 of $15,000.0G, exclusive of oosrsJ and demands a jury trial of all issues triable as of right by jury. COUNIXIY CLAIM FOR PROFESSIONAL NEGLIGENCE AGA1NST JOANNE JITROMURA3 148. The City reo-alleges and reincorporates Puagraphs 1 through 80, as if fully set forth herein. 3 Ms. Hlromura ftled a petition fbr Chapmt-7 b!llkroptoy relief In tho U.S. B~y Court for tho Distdct of MasBaolnwdls o;n 1uly 10, 20l1. Tho U.S. Blllllauptcy CDurt fOr the Dlsrrlct of Massadn~Setta entered a Disclwge ofDebmr as1D Ms.Hironwra on Ootobor 10,2011. 38 ; -1 CASE NO.: 10--61979 CA40 149. Hiromura agreed to provido crunpetent professional secvices with regard to the design, planning, supervision and administration of the oollBtruction of the playground component of the Project. l SO. Hiromura, as a professional playg~.·ound deBigner, owed a duty to exercise a reasonable degree of care and skill in the design, planning. supemsion, and administJ:ation of the oorudruotion of the playground component of the Project as would be exercjsed by other reasonably skilled playgrou11d deaign profeseionals practicing in the South Florida. area under the sam~ or similar ch'COll1Btanoes. lSl. Hlrom.ura breached her duty for the following reasons which include, without limitation: (a) failing to exercise that degree of care aud ekill as would be exercised by other reaaonably skilled playground design professionals practicing hl the South Florida area uuder the same or similar circumstances; (b) failing to eomply with all applicable code requirements;((}) failing to adhere to manufacturer specifications; and (d) fiUJing to design a playground fur its intended use :in a regional signature park that could withstand the environment and excessive wear and tear. 152. AB a direct and proximate result of ffiromura.' s negJfgence, including her violation of the safety requirements of the Code. tho City has suffered damages which include, without limitation, the delay io oompleti011 of the .Proj ect1 the replacement of tho playground equipmen~ and those damages set forth in Paragraph 79 herein. WHBRBFORB, the Plainti.ft City of Miami Beach, Florida, respectfully reqtwats this Court enter judgment for damages in its favor against Defendwlt, Joanne Hiromura, for compensatory dmnages in excess of $15,000.00, tmclusive of costs. and demands a jury trial of fill ;ssueA trlllble as of right by jwy. 39 • -i CASBNO .: 10-61979 CA40 COUNIXV CLAIM FOR NEGLIGENCE PER SE AGAINST JOANNE HIROMURA 153. The Cily l'~alleges and reincorporates Paragraphs 1 through 80, as if fully set forth herein. 154. Na:tionalata.ndards for playgrounds hav6 been developed by the American Society for Testing and Materials Intema.tiorutl (ASTMI), the U.S. Consumer Product Safety Commission (CPSC), and the International Playground Safety h1stitute (IPSI). 155. The CPSC publishes the Handbook for Public Playground Safety, which includes safety guidelines fo1· designing, conatructin& operating and maintaining public playgrounds. 156. Hiro.mura tlliled to comply with the standards set forth in ASTMI, CPSC. and IPS! (collectively referred to as uthe Code'? by failing to abide by the applicable safety code design r~ments and safety operating requirements. Acoordiugly, Hilnomura•s acts and omissions in fhlling to oomply with the Code render her negligen~ llB a. matter oflnw. 157. The City is a member of the class that the safety requm,m.ents of the Code were demgoed. to protect and the dllllla&es suffered are the type tha.t the Code was intended to prevent. 158. As a direct and proximate result of Hirolnum.,s violation of the safety requirements of the Code, the City has suffured damages which include~ without limitation, the delay in. completion of the Project, the replacement of the playgt:ound equipment, fllld those damages set forth in Paragraph 79 herein. WHEREFORE, the P~ City of MiiUlli Beach, Florida, respectfully 1·equests this Court enter judgment fur damages in ita ~vor against Defendant, Joanne Hiromllllta for an wnount in exooss (Jf$15~000.00, exclusive of costs, and demands a.jul'y trial of all issues triable 88 of right by jury. 40 .. '1 163. CAS:BNO.: 10-61979 CA 40 its close proxhnity to salt watar, average h~t index, typioal wind oonditiom and average lightning :frequency; and (f) Failing to pro,Perly design and engineer tbe air conditioning system at the Pl'oject's Pavilion to allow for proper ventilation and en8Ul'b it functioned properly for its illteoded use; (g) Failing to verify or properly design and enginea· the water closets in the Project's Pavilion and vehicular storage building to match the lncomit'lg water pressure to allow for proper flu.shing and functioning of the mlltalled ftxrures; (f) Failing to properly monitor and supervise the wodc ofMCM, its subcontractors, suppliem and materialmen, to enmu.-e that the wcu·k performed and materials furnished o.n: the Project regardjng the moobanioal) elootrl.cal and plumbing components, were i.p. RCcordance with the planB and specliioations and other applicable Contract Dooumtmts, regulations and oodes. AB a d1rect ilD.d proximate 1'eSUlt of J'ALRW's negligeu.c"> the City baa suffered substantial damages including, without limitation, those set forth in Paragraph 79 herein. WHERBFORB, the PI~ City of Miami Beach, Florida, reapectfully request~ this Court enter judgment for d8111DgeB in its favor against Defendant, Johnson, Avedano, Lopez, Rodriguez & Walcwaki Engineering Group, Inc., for a.n amml11t in excess of $15,000.00, exclusive of costs, and demands a jury trlal of all issues triable as of right by jury. COUNT XVII CLAIM FORPROFESBIONALNEGUGENCE AGAINST HORACIO A. RODRIGUEZ, P,A. 164. The City re-alleges and reincotl>Ol'ates Paragraphs 1 through 80, as if fully set :furth. herein. 165. Rodriguez agreed to provide competent professional services with regard to the design. planning, ~sion and administration of the construction of the mechanical and plwnbing components of the Project. 166. Rodriguez, as a professional mechanical engineer~ owed a duty to exercise a reasonable degree of care and skill in tb5 design, planning, supervlsi.on, 1u.1d administration of the 42 .. CASBNO.: 10-61979 CA40 COUNT XVI CLAIM FOR PROFESSIONAL NEGLIGENCE AGAINST JOHNSON, A VEDANO, LOPE~ RODRIGUEZ & WALEWSIO ENGINEERING GROUP, INC. 159. The City re-alleges and reincorporates ParagL·aphs 1 through 80, 118 if fully set forth herein. 160. JALRW is a local engineering firm, retained by Hargreaves to design certain aspects of the Project. 161.. JAJ.JlW, 8B a professional engineering firm. owed a duty to exercise a reasonable degree of &ale and s1dll in the design, pliUllling. supm'Vision, and administration of the construction ofthe mechftllical, electrical and plumbing components of the Project as would b~ CJteroised by other reasonably Bkilled engineering firms practicing h1 the Soufh Florida area under the same or shnilar C<ircumsta.nces. 162. JALRW breached its duty of care including, without limitation BB described in Paragr8ph 72 herein aud as follows: (a) Failing to exercise that degree of oaro and aki.lt as would be exeroi.Red by othm reasonably skilled engineerfng firms providing moWanioal, olectrical and ptumbin.g engineering services in the South Flodda area under tbe spme or similar cJt(l[Jtnsfano6S; (b) :Falling to comply with all applicable regulatory, ind:qatry and best praotiee requirements; (c) Failing to propel'ly design and engineer an electrical system for the sito md ex.terlar lighting components of the Projeot that could adequately and reasonably withstand electrical surges; (d) Failing to properly desig11 and engineer rut electrical system tn preV611t the fki.lure of one lighting Qamp) compo11ent :B:om Cl\llsing other lighting componoots to firiJ as a t'f.8Ult of the individual component's failure_ thereby precluding consistent and proper operation of the lighting system; (e) Failing to properly design and engineer an electrical system for the llite and exterior lighting components of the Project that properly accounts for the Pm.fect's geographic location. including 41 CASE NO.: 10.61979 CA 40 cons1:rtwtion of the mecltanioal and plumbing components of the Project as would be exercised by other reasonably skilled mecllanical engineers practicing in the Sou1h F1mida area under th6 same or similar eiromnstancea. 167. Rodriguez breacl1ed his duty of care ino1uding. without limitation, as set forth in Paragraph 12 herein and as follows: (a) Failing to exercise that degree of onre and skill as would be exel'cised by other reasonably skilled engineers providing lllechanical and plumbiltg engineering services in the South Florida area under d1e saruo or sim.Uar circumstances; (b) Falling to comply with all applicable regulatory, industry and best practice requirements; (c) Fafling to properly design and engineer the air conditioning system at the Project's Pavilion to allow for proper ventilation IU1d ensure it functioned properly fot• its intended use; (d) Failing to verify or properly design and engineer th~ wa.tel' closets in tho Project's Pavilion and vehicular storase buildittg to :tn.tdch the incoming water pre6sure to allow fur propor flushing and functioning of the in11talled fixfures; and ( o) Failing to properly mocitor and supervise the work ofMCM, its subcontractors, -suppliers and materialmen, to ensure that the wOJk perfonned and materials furnished on tho Project l-egardlng tho medlanioal and plumbing componenb!, were in accordanoe mtb tba plans and specifications and other applicable Contract Docmments, regulations and codes. 168, As a d1rect and proximate result of Rodrlguez•s negligence, the City has suffered substantisl damages whioh .include, without limitation~ those set forth in Pm:agraph 79 he1·ein. WHRRBFO~ the Pla:inti~ City of Miami Beach, Florida, 1-espectfully requests thi.s Court enter judgment for damages in its favor against Defendant, Eoracio A. Rodriguez, P .E., for an mount in exoess of $15,000.00, exclusive of cost:B, and demmda a jury trlal of all issues triable as of right by jury. 43 CASBNO.: 10-61979 CA40 cowrxvm CLAIM FOR BREACH OF CONTRACT AGAINST 1\ICM 16.9. The City r&-alleges and reincorpOl'ates Paragraphs 1 through 80, as if fully set 170. Pursoant to the Contract Documents, MCM agreed to pcrfonu its work on the Projeet io a good and wor1ananlib manner, in accordau.ce with the Project's plans and specifications, applicable codes and regulations and the best local and national industry stand&'ds. 171. MCM breached tho Contract Documents inoludin& without limitation: (a) Failing to prope.dy p~rl'onn ibl work in a good BDd workmanlike manner; (b) Failing to provide semces and fumiwb materials ftee from defects in accordance with the Project's plans &td specifications, appHcahle codes and regulations and the bost local and national industry standards; (u} Failing to use the xnaterials speai.Ded in the Contraot Documents or as approved by Hargreaves and/or its Design Suboonsultants, fit for their intellded purpose, free fi1>m faults and defeots and of good quality; (d) Failing to properly oompleto, t'ellledy and/or correct its defuodve worlc on the Pxojoot as required by the Contract Oocunuw:ts; (e) Failing tx> achieve Final Completion of tho Project; and (f) Falling ro pay the City liquidated damages for its failuto to timely achieve Final Completion as set forth in the Contract Docum.cnts. 172. MCM breached the Contmot Doouments by falling to propmly, timely and oompletely perfurm its work properly, in a wo:rkmanlfke and sldllful manner. causing numerous construction defects and deficiencies including, witlwlrt limitation, those tet furth in Pfllll.graph 74 here.io. and RS :fullows: 44 CASBNO,; 10 ·61979 CA40 (a} The berms and open areas of the Project are excessively compacted, p1'COludiug drainaao a.nd _preventing the Seashore Paspalwn turf grass and other landscaping ftom growing and thriving at the Project; (b) The Seashore Paspalum turf gt.'US specified in the plans and installed at th.e Project is in a diBb'e8sed state, demonstrating laclc of turf vigor, unifbonity and density, excessive weed infestation, browning in many locatioDB, and is unfit fur its intended use at the Project due to, wrong other things, the poor subsurface soil conditions specifled and installed, exoessive compaction of the soil 1lJateria1g, the improper composition of soil materials specified and/or installed, and defective installation of sllhmrfaoo · soil matflrlals; (c) The l'UJQP ho1.1se for the WI\Bbington Avenue water feature is not air conditioned, thereby preventing the main controls from properly operating; (d) The water reservoir specified and installed for the Waahlngton Avenue water feature is inadequately sized, precluding itll ability to funotion as designed and approved by tho City, including failing to allow for the ptoper volume of water necessary fur proper operation; (e) The Washington Averwe water feature's deck was dofectively designed and installed, resulting in excessive water losa from the spray jets due to the improper sloping and grading of the deck; (f) The mllfn swnp overflow line for the Washington Avenue water feature was improperly designed and/or installed, including failing to havo the requisite ohcclc valvo instnlled, reeulting in the bacldlow of storm drainage water in1o the sump pump; (g) Th.e Washington Avenue water feature designed and insUdlad at the Pl'ojeot was not delivered in a condition that would Allow it to be properly pemutted for use. The water feature created numerous potantial health code violations including e.g.ceeding the pennitted size and design and failing to include the design and construction of restroom :&cilititm and show en'S located wUhin 200 feet in violation of local health oodes. AcoordlngJy, 'this has resulted in the City's lnability to obtain an operating fi.'Olu the Florida De.parbnent of Health and prohibiting its operation as designed; (h) Stainless steel materials were specified and int~Wled for the Pylon lights, conb.'at'Y to the manufaoturel''s tecotnmendatioo. to use aluminum materlals, resulting in tea-staining of the Pylon lights md unnecessarily increasing the cost of the Projoot; 45 ---------- CASE NO.: lo-.61979 CA 40 (i) The control wiring specified and installed for the Project•s Pylon lights is defective as fiber optic cables should ha.ve been used. rathet' than CAT~S coppe1· wlrin& to allow these ligbting oompo.nants to opetate consistently and properly, resulting in nmltiplo fal1U1'C8 of the lighting systeln doe to, among other things, the corrosive) effects of the salt air environment and ligh1nfng strikes; (1) The P1'0ject's Pylon lighting system as designed and installed allows for fililures of the entire Pylon lighting system potentially triggered by an individual compon6tlt'a failure (i.e. lamp fllilure) and ca.unot adequately withstand eleotrical BUtges and/or llghtnin& tbareby pl'OOluding the lighting componenm fiom operating CODBiafently and properly; (k) The children's playground equipment speclfied and installed failed to comply with National Playground Safety In9titute standards and other govemins national and local safety codes ood regulatious required for children's playgrounds, posed significant lif~safety hazards :fur its usera, was unfit fur its intended use at the Projeot, t'CSUlting in its extended closure to the public md requiring ita complete removal and replacement to :make it available fur publi~use; 0) The materials apcoified and instelled to construct the COquina pathways q,t the Project were inadequate, failed to reflect proper requirements for the soil building materials and stabilization of the path material and failed to accouot fur 1M Projoot's intended use. resalting ill delamination and overall premature deterioration of the pathways; (:m} 'The irrigation system was improperly designed and/or installed, includJ:ng falling to provide adequate coverage in certain areas of 1he landsoapina whllo overwater.ing other areas, plftclng the berms and other areas of the landa®ping under tdgulfican.t moisture and nutritional distr~s, and the inBtallation of improper spl'lnkler heads; (n) Thl' PaviUon's 1tir conditioning system WBB defectively and/or installed, f8illng to ftu1ction properly due to, among other things, the Jooation of the 0011densing unita inside a. closed area, below grade, and laok of proper ventilation for the a:fr COildensing lllll.ts. thereby proventing proper ven1ilation and cooling througlumt the building; (o) The wat..er closets in the restrooms of Project's Pavilion were not properly specified end installed to match the incoming water pte.'IS1ll'e, therefore l'equir.ing booster pumps to inorease the water pressure to permit the Installed :fixtures to properly flush. Tho lack 46 CASBNO.: 10-61979 CA40 of adequate water pressure preoluded proper flu!lhiog, creating potentially hazal.'dous and unsMitary conditions; (p) The grout specified and installed fur the port hole windows and railing system of the Project's Pavilion are defective, resulting in rusting of the reinforcing steel duo to water intrueion; (q) The main sign at tho entrance of the Project wafl not properly designed and installed in that it was not inBtallod in aocordatl.ce with the shop ch·awings submitted and approved, demon.stnned early signs of disrepait. including peeling off Jettering. and failed to include the t-equfsite anti-theft hardware, l'esulting i11 its actud theft ftom the Project; and (r) Def.eeiB and defiaioocias a.t the Project caused by MCM•s failure to properly monitor the work of its suboontractom, auppliem and materialmen, to emuro that the matmi.als and equipment installed were free of fuults and defectl, of good quality and in conformance with all con1ract documenm end that all work was performed properly, in a.coordance with the plans and speo!fica:tions> govmning laWB and regulations and applicable industry standards. 173. As a direct and pt'OJdmate result ofMCM's breaches of its duties and obligatio.ns under the Contract Documents, the City has Sll:tmred wbsttmtial damages which include, without limitation, those set furth in Paragl.'aph 79 herein. WHERBFORE, 1he Plaintiff, City of Miatni Beach, Florida, respectfully requests this Court enter judgment for dmnageB in its favor against Defendant, Magnum Coostmotion Management Corpondion d/b/s. MCM Corp. and/or MCM, fur an ~tmount in exoess of $15,000.00, exclusive of costs, attorney's fees and costs as pl'Ovided for by contract OJ' {)therwise by Florida Iaw, and hereby demands a jury trial of all issues triable as of right by juJ:y. COlJNIX1X CLAIM FOR BREACH OF WARRANTY AGA1NSTMCM 174. The City reo-alleges and. reincotpo1'8t.68 Paragraphs 1 through 80, as if fully sel forth hetein. 47 -i I ~ CASE NO.: 10-61979 CA 40 175. Pursuant to the Contract DocumentB, MCM expres~tly and implisdly warranted, among other things, dlat it would perform its work free ftmn defetlls and in. accordance with the Contract Document11. 176. Specifically, Article 23 of the General Contract provides, ill. pertinent part: Warrant\!: CONTRAC'rOR. wammts to CITY that an materials and equipment furnished under this Colltract will be new unless otherwise specifi.cd and that all of the Work will be of good quality, free from &ults and defects end in confurmance with the Contract Documents. All work not oonfutn'lillg to these requirements, fnaluding substitutions not propel'ly approved and authorized. may be considered defective .••. This warranty is not limited by the provisions of Article 25 [Defective Work] herein. See Composite Exhibit "I.u 177. MCM owed a duty to the City to exercise reasonJ\ble care, teclulical skill aud ability in tlle per.formance of its duties Qltd obligations as general contractor under the ·Contract DoCUlll.ents. 178. Notw.ithatuuding tltc City's repeated notices and demands to MCM to properly perlbrm. correct and/or complete its work on the Projoct, MCM breaclled its duties and obligations to exercise reasonable care, toohnicaf skill and ability in the perfmmanoo of its woik and wa1.1anty obligatiotlB including without limitation: (a.) FWlin.g to properly perform its work in a. good and workmanlike tnanner; (b) Failing to provide servioee and finnish materials free from defects in acoorda.n.ce with 1he Project's plans and specificatiotiB, applicable codes and regulations m1d the best local and national industry standards; (o) Failing to use the materials specified in the Contract Docnmeuts or as approved by Hargreaves and/or its Design Subcoll8ulta1lfll, fit for 1heir intended purpose, free from :fuults and defects pnd of good quality; 48 CASE NO.: 10-61979 CA 40 (d) Falling to pl'Operly complete. remedy and/or oorrect itB defective work on tho Ptoject as required by fhe Contract Documents; and {o) Failing to achieve Fmal Completion of the :Project 119. MCM's breaches of its warranty obligations under the Contract Docmnents caused numerous construction defects and d~ticlenoies including, without Hmitation, those set forth in Paragraph 74 h~rein and as follows: (a) TI1e berms and open ftl'elt!l of the Projeot are excessively compacted, precluding d.rainaga and preventing the Seashom Paspalwn tutf grasB and other landscaping from growing and thriving at the Project; (b) The Seashore Paspalum turf grass specified in the plans and :lnsta.lled at t.ha Project is in o. distressed stato, demcDBtmting laclc of turf' vigor, unifumrlty and density, excessive weed infestation, brown:ing in many locations, and ist~nflt for ita intended use at tho Projeot du.e to, among other things, the poor sub!JUl':fa.ce soil conditiOllB specified ftlld installed, excesaivc compaction of the soil materials~ the improper composition of soU matelials speaified and/or installed, and defective installation of subaurfaoo soiL ma.te.ials; (c) The pump house for the Washington Ave11ue water feature is not air conditioned, thereby prevont:lng the main oontrola from properly operating; (d) ".1118 water reservoir specified and installed fot· the Washington Avenue wa.iEn' fealllre is inadequately sized, precludins its ability to functiDn as desig1.1ed and approved by 1he City, including firiling to allow fur the proper volume of water necessary fur proper operation; (e) 'rho Washington Avenue water feature's deck was defectively designed and installed, resulting in excessive water loss fi:om the spre.y jets due to the improper sloping and grading of the deck; (f) Tho m8in sump ovErllow line fur the WfiB1lington Avooua water featw·e was bnpropm-ly designed and/or installed, inoludlng failing to have the l'equisito check valve installed, resulting in the baokflow of storm drainage wat~ into the sump pump; (g) The Washington Avenue water feature designed and itllltalled at the Project WBB not delivered in a condition tllat 49 " -1 CASB NO.: 10-61979 CA 40 would allow it to bo properly permitted for use. The WBtet' feature created numerous potential health code violations includ.ing exceeding the permitted size and design and fiUling to include the design M.d constm~tion of restroom faailities and showers located within 200 feet ln violation of local health codes. Accordingly, this has resulted in the City's ina1>ility to obtain an operating from the Florida Depm1ment of Health and prohibiting !ta operation as designed~ (h) Stainless steel materials weJ.'e specified end installed for the Pylan lights, contrary to the manufacturer's recommendation to use aluminum 111Bf:erials, 1'emlting in tea--atai.ning of the Pylon fights and unnecessarily increasing the oo~t o:f the Project; (i) The oontrol w.hing specified and installed for the Project's Pylon tights is defective u fiber optic cables abould have been used, rather than CAT"S copper wiring, to allow these lighting com_ponenfB to operate OOilllistently and properly, 'te.qultJng jn multiple failures of tl1e lighting system due to, among other t1ili!,g.s, the corroslvc effects of the Blllt air onvironnwnt and lightning strikes; (j) 'I'ho Project's PyJon ligbtfng Aystem as designed and installed allows fur failures of the t:mtire Pylon lightibg system potentialJy trigge~:ed by an individual component's failure (i .e. Jatnp :&llura) and caonot adequately withstand electrical surges and/or l!ghUrlng, thereby preclucflng the lighting oompouents from operating consistently and properly; (k) The children's playgt'Ound equipment speoUied and installed failed to comply with National Playground Safely Institute stBndards and odrer governing national and loosl safety codes aru1 regulations requited for children's playgrounds, poaed sigoificam lifu-safety hawda fur its UBen, was unftt :for its intended use at the l'mjec~ resulting jn its mended olosure to the public and requiring ita complew removal and replacement 1o make it a.vailable for public use; Q) The materials specified and installoo to construct the Coquina. pathways at the Project were inadequate, tailed to reflect pmper requirements for the soil building materials and stabilization of the path matmial and failed to account for the Project's intended use, resulting in delamination and overall pre.b14turc deterioration of the pathways; 50 CASE NO .: 1 0·61979 CA 4() (m) Tho i11'igation system waa improperly designed and/or Installed, including failing to provide adequate covtf'aga in certoin areas of the laruU!caping while ove1watering other areas> placing the benna Blld other areas of the landscaping under sign.lilcant 1noisture Dlld nutrltional distress, aud the installation of impmper sprlnk:ler h&ads; (n) The Pavllionts air conditionillg system was defectively and/or installed, failing to funotion pr()perly due to, fUllOng other things, the location of the condensing units inside a. closed area, below grade, llild lack of proper ventilation for the air 001l.de.nsing units, thereby preventing proper ventilation sud cooling throughout the building; ( o) The water closet& in the restrooms of Project's Pavilion were not properly spec;ificd 81ld installed to match the incoming water pressure, th~eforerequiringbooster pumps to inaeaso 'fhe water pressure to permit the fustalled fixtures to propedy flush. 'fhe lack of adequate water pressure precluded proper flushing, creaililg potentially hazardous and unsanitary oonditioilB; (p) The grold: apeoified and fnstallod fur the port hole windows and railing ,ystem of the Project's Pavilion a.nt defective, resu1ting in rusting of the reinforcing steel due to water mtrl)Sionj (q) Tho main sign at the enbuce of the Project was not properly designed and installed in that it was not illstalled in acool'dance with the shop drawillg8 Bllbmitted and approved, danonsttated eerly signs of diBrepllir, including peeling off lettering, and failed to include the requiaite anti· theft hardware. resulting in its actual theft from the Project; and (r) Defeats and deficiencies at the Project caused by MCM's failure to properly monitor the work of its Sllbcontraotors, suppliers awl matel'ialmen, to ensure that the materials end equipment installed were ftee of faulm and dofects, of good quality and in oonfbrmanoo with all contract doaumants a11d thJLt all work was plrlorm.ed properly, in acOOl'da.nce with the pllllls and speclflca.tions, · governing laws and regulations cwd appli~hle industry standards. 180. As a direct and proximate l'esult of MCM's breaches of its warranty obligations under th.e Contract Documents, the City bas sqffel'ed subBtantlal damagoo wbioh include, without limibtti(ltl, those set furth in Paragraph 79 herein. 51 i .j CASBNO.: 10·61979 CA40 WHEREFORE, the Plaintitt City of Miami Beach. 1'espeotfully requests trus Court enter judgDlcnt for damages in its favor against Defendant, Magnum Construction MWJ.Agernent Corporation d/b/a MCM Corp. and/or MCM, fur an amount in exoess of$15,000.00, exclusive of costs, and demands a jury mal of all issues ttia.ble 118 of light by jury. COUNT XX BRRACH OF PERFORMANCE BOND AGAINST TRAVELERS 181. The City re-aUeges and :reincorporates Paragraphs 1 through 80, as if fully eet forth herein. 182. On or about May 14~ 2007, Tra.vel61.'S issued a Public Worb Pcrlonnsnce Bond and Payment Bond for the Project, Bond Number: 104924814, in the amount of $22,453.000.00. See Exhibit "J." 183. Th.e Bond names MCM as the Pr.lnaipal and (h.e City as Obligee. 184. The Bond gulltalltees MCM'a timely and proper perl'onnance of its contractual obligations and payment to MCM's subcontractors, suppliers and materialm.e.n, regarding its worlc. on the Project. ISS. Travelers' obligations under the Bond ora govat'Jred by the terms of the Bond and Section 255.05, Fla.. Stat . 186. The Performance Bond issued for the Project provides, in }lart:i.rumt part) that Tmvelers' obHgations unda· the Bond remain in fuil force and effect until the following conditions have been met: (a} MCM performs the Contract at the times and in the manner prescribed in the Contract, which is incorporated by refenmce into tbeBond; (b) MCM pays lhe City fur all I.osr~es, liquidated dawages, experuos, costs and attomey•s fees tllat the City sustains as a 1't8ult ofMCM's defimlt; and 52 i ; CASE NO.: 10-61979 CA 40 (c) MCM perfurms the guarantee of all work and m.ateriala furnished unda· tho Con1ract for tho timo specified in th~ Contract. 187. MCM breaohed the Contract DocmneJlts rendering it in default of ita contractual obligati0118 including, without limitation: (a) Failing to proporly perfonn its work on the Pl'Ojoot in n good and worlttnanlike manne1·; (b) Failing to pmvide services and fumish materials free from defects .in aoool'dance with the Project's p18118 and specifications, applicable oodea and regulations and the best local and national indust1y srendards; (e) Failing to uea the matet.ials speoi1ied in the Contract Documents or as approved by Ha.rgreaves and/or its Design Subcorurultants, fit fur their intended purpose, free ftom faults IUld defects and of good quelity; (d) Failing to properly complete, remedy a.ndlor correat its dcll:clive work on tho Project as requil•ed by the Contract Documents; ( o) Failing to a.cWeve Final Completion of the P~'Oject; and (f) Failing ro pay tho City liquidated damages for its failure to timely aohievc Fiu.al Completion, as set forth in the Contract Dooumcnts. 188. MCM's failures and breacbes of its contractual obligation11 as set forth in Paragraphs 74, 169 through 180 and otherwise h«ein, have ren.dered MCM in dc:~&ult, triggering thb City's ability, aa Obligee, to pnmue its rights and remedies under the Performance Bond. 189. PUIBlWlt to tlle terms B:IUl condition& set forth in the Perionnanoe Bond, Tra.velel'S must remedy any and all defects and deficiencies identified at the Project by electing to: (a) Promptly remedy MCM's default; (b) Complete the Pl'Oject in aecm:dance with the terms and couditiom of the Contract DacumentB; or (c) In cootdination with the City, solicit bids. retain and pay another oontr&Dtor to properly complete the Project, including remedying all defects and deficiencies, 190. The City notified Travelers of MCM's failures and breaohes and deroanded Travelers perfonn its obligations under the Penfolmauce Bond. 5.3 CASBNO.: 10·61979 CA 40 191. Notwithstanding tho City's demand, Travelers haB failed and refused to remedy the Project's defects and deficlenoles, remedy MCM' s defaclt and/or complete the Project in accordance with the tenns P1ld conditions of the ('..o:n.tt·act Documents, in breach of its obligations under tho Performance Banet. 192. As a direct and proximate result of Travelers• breach ofibl contractual obligations under the Performance Bond, 1he City has suffered, and continues to suffer, substantial damages includin& without Jl.mitati()n, those damages set forth in Paragraph 79 herein. WHEREFORE, the Plahlf.ift: City of Miami Beach, l'espeotfu1ly requests this Court entm judgment for damagas in its fuvo.r against Defendant, Travelers Casualty and Surety C01np1U1y of America, for an amoWlt in excess of $15,000.00, exclusive of oosts, and demands !!jury bial of all issues triable as of right by jury. DATED this ...22::: ~y of December, 2011. 54 LYDBCK.BR] DIAZ, L.L.C. Aitofneya for Plaintiff 1221 B.rlckell Avenue, 19th Floor Miami, Florida 33131 (305) 41()..3180 Telephone (305) 416-3190 Fae!dm.ile BY:~~~~~~~~~~~ RICKS,ES Florida Bar o. 768146 Email: mah@I.Ydeckerdiaz.com MERIIDYTH 8. COOPER, ESQ. FloridaBarNo.: 0054231 Ematl: msc@lydeclrerdiaz.com I -f Mark A. B'endrlcb• Bsq. MeredJth s. Cooper. Esq. LYDBCKRR ID~ U.C 1221 Jirlctmll Avenue, 19111 Fioor Miami 1 Florida 33131 (305) 41f.3180 Te!eph.ono (305) 4l6·3l9G Pacaimilo Bman; mgb@Jydeclcmdiaz,oom BmaU: mag@lvdee.ketdlaz.oom Counnlfor 11le Ci/)' o/Mioml Beruih S'ttwen Rotlwleln, Eaq, CITY OF MIAMIBBACH 1700 CoJMlllf.lon Cmter Drive, 4a. Floor Miami Beach. PL 331351 Tel: @05) 673·7470 in; (30S) 67J.-7002 Jlmail: Stsypnltptl)atct@miarm'beacbf1.gov CtJ-Coutwtl for fi• City ofMlamt BBIJCh Robart .A. BIDgJton, .._. WBLLBAOM, OOBRNSBY, BINOSTON, ORB.BNIBAP, ORBGO:RY, BLACK. RUNE& TBDMAS, J.1.1! 901 :PonooDoLeonBoulr:vard. 10111Floor Coral GllhJcs. FL sg 134-307.3 Tol: ~OS) 441-8900 Fax: (305) .f41·225S Bmailt hhfnemn@welbanm.com CD~matlfor Hargreaves Aaso~Jiates, Inc. .Peter X. Sp-RsfJ. StevmD. Gonntar. Eeq, WHINBBRO, waBKLBR, HUDGINS, ffiJNN &DlAL. LLC 2601 South Bayaltoro Drive, Stlite BSO Miami. PL~133 Tel: (305) 4SS-~$00 FP: (305) 455-9501 Bmall; p!!J)f!UI@wwhgd,!jOM Email: ~qz@nilgd.com Collruel for Savino & Mlllu D€'..9/gn St1idio, P ..4. .Richard X, Daniell', Etq, Jeaa M. Guerra, Esq. DANJl'!LS ICA8HTAN DOWNS ROBERTSON &MCGIRNBY 3300 l'onoo DoLconBcralcvard Coml O.ablcs. FL 33134 Tel: (30~) 448-7988 Fax: "OS)448-'1978 Broait muma@rlkdr.COJ!l Cowwlfor JiJLRJY CASBNO.: 10·61979 CA 40 Servloo List 56 Jamea M. KAplan. Esq. DanfD. Saavedra, Esq. KAPLAN ZEBNA, LLP 2 S. BiscayMBoul~vard Oao B'"moa:)'ne Tower, Suite 3050 Miemi, PL33131 Tel: (30S) .5'30.0800 Fax: {305) S3(}()801 Email: fomMJw!l&l@kap~,gom Smail: jlarrla,aaavodm@lamlan;ee.con\ CcJlNJel for J(ltl1J4m Lane Architect. Inc. anel Tf'l/llRm Lane, indlvldualfy Rlchnrd J, Ston~ Esq. :RICHARD J. STO~ P.A. Two Detran Clontu 9130 S, Dadeltud BIW., Penthouse 1-A Mfamf, FL 33156 Tel: (30S) 670-lOOO [?ax.; (305) 610..2345 Email: ticb@dtlntl!illlvt.llQ1ll Co-CoutiSflfor William Lt:~nt .4rchil6ct.. !Ju:. and WUllam La~e, 'illdlvtdually Gl:o.&'ge B. 'l'I1d«t Jr., .Esq. Danlal E. Levin, Etq. corn SCO'IT& IO:SSANB, P.A. lJadeland CenlrD 11 9150 8. Dadollmd:Blvd.. Sufto 1400 Mlami, FL 331~15 Tol: (786) 268·6815 Fax: (305) 373~2294- Bmafl: GOii§.lruitt@caklcgd.oom Etnail: dmli&l.levlg@ru!klogol.oom CoUlfSel for Dan EU8er 'W'atuarc!t/Jecture, Jnc . George R. 'J.l:lritt, .Tr., Esq. 8Amllel.Padua, Eeq. COLBSCO'IT & XJSSANB, P .A. nlldvlarul CcuJto n 91SO 8. D~dckndBlvd., 8nitc 1400 Miami, FL 331S6 ~1: ('186) 268·&815 Pax: (305) 373-2294 Email: eeome,frl1i1t@csklmLoam Bt»Ml: lllm!lcl.p!!dua@o!!1cleuJ.com CQW&fcl/or l.am.Pal'btera, Inc.