2016-29417 Reso RESOLUTION NO. 2016-29417
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A SETTLEMENT AGREEMENT AND MUTUAL RELEASE
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA (CITY) AND TRANS
FLORIDA DEVELOPMENT CORPORATION, IN THE AMOUNT OF $482,748
TO SETTLE ALL OUTSTANDING CLAIMS PERTAINING TO THE RIGHT OF
WAY INFRASTRUCTURE IMPROVEMENT PROGRAM, NEIGHBORHOOD
NO. 12/D/E/F, SOUTH POINTE PHASES III, IV AND V PROJECT; FUNDING
FOR THE FINAL PAYMENT TO THE CONTRACTOR IS AVAILABLE FROM
THE PROJECT BUDGET.
WHEREAS, pursuant to Invitation to Bid (ITB) 17-09/10, on July 14, 2010, the City
awarded a Contract to Trans Florida Development Corporation (Contractor) for the construction
of the City of Miami Beach Right-of-Way Infrastructure Improvement Program, Neighborhood
No. 12/D/E/F, South Pointe Phases III, IV and V, Project in the amount of$9,950,715.92; and
WHEREAS, on November 29, 2010, the Contractor was issued the second Notice to
Proceed (NTP 2) to commence construction and with approved Contract Time Extensions, the
project was scheduled to be substantially lcompleted on June 28, 2013; and
WHEREAS, during the course of the Project, the Contractor experienced a number of
delays, which extended the Substantial Completion date to August 17, 2014, certified by the
Engineer of Record; and
WHEREAS, on February 8, 2016, the Contractor asserted a Claim for additional
compensation and time against the City pertaining to the project in the total amount of
$2,338,553.60; and
WHEREAS, City staff reviewed and evaluated the Contractor's Claim and supporting
documentation submitted therewith; and
WHEREAS, following good faith negotiations regarding the amount sought in the
Contractor's Claim, which included in part, costs for Excusable Compensable Delays and
additional owner requested scope of work which extended the Contract Time without
Compensation for General Conditions, and as set forth in City staff's evaluation attached as
Exhibit B, the City and Contractor negotiated a settlement for the disputed claims in the amount
of $482,748; and
WHEREAS, the City and Contractor desire to resolve, compromise and settle all claims,
disputes, past, present or future, regarding the project; and
WHEREAS, the Settlement Agreement is intended as a compromise of all claims and
disputes raised by the Contractor pertaining to the project; and
WHEREAS, the negotiated settlement amount will be paid from the balance remaining
in the project budget.
NOW,THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA authorizing the Mayor and City
Clerk to execute a Settlement Agreement and mutual release between the City of Miami Beach,
Florida and Trans Florida Development Corporation, in the amount of $482,748 to settle all
outstanding claims pertaining to the Right of Way Infrastructure Improvement Program,
Neighborhood No. 12/D/E/F, South Pointe Phases III, IV and V; funding for the final payment to
the Contractor is available from the project budget.
PASSED and ADOPTED this 2 day of —TAW— , 2016.
PHILIP LEVIN, 4'A s 5R
ATTEST: may'
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ININCUR ORATED FORM R LANGUAGE
EXECUTION
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COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach,Florida,Authorizing The Mayor And City Clerk To Execute
A Settlement Agreement And Mutual Release Between The City Of Miami Beach(City)And Trans Florida Development Corporation,In
The Amount Of$482,748 To Settle All Outstanding Claims Pertaining To The Right Of Way Infrastructure Improvement Program,
Neighborhood No. 12/D/E/F,South Pointe Phases III,IV And V;Funding For The Final Payment To The Contractor Is Available From The
Project Budget.
Key Intended Outcome Supported:
Build and maintain priority infrastructure with full accountability.
Supporting Data(Surveys,Environmental Scan,etc:The 2014 Customer Satisfaction Survey indicated that over 77%of residents
rated recently completed capital improvement projects as"excellent"or"good".
Item Summary/Recommendation:
Pursuant to Invitation to Bid (ITB) 17-09/10, on July 14, 2010, the City awarded a Contract to Trans Florida Development
Corporation(Contractor)for the construction of the City of Miami Beach Right-of-Way Infrastructure Improvement Program
Neighborhood No.12,South Pointe Phases III,IV and V,Project in the amount of$9,950,715.92. On November 29,2010,the
Contractor was issued the second Notice to Proceed (NTP 2) to commence construction. With approved Contract Time
Extensions,the project was scheduled to be substantially completed on June 28, 2013.
The Project limits in general are bounded by Washington Avenue, 5th Street, Ocean Drive, South Pointe Drive, and Alton
Road.The Project Scope of Work included,the construction of twenty-three(23)gravity fed storm water discharge wells,the
installation of a storm water pump station,water distribution system upgrades,roadway reconstruction,milling and resurfacing,
new sidewalks,curb and gutter,landscaping,irrigation,brick paver crosswalks,signage,pavement markings and pedestrian
lighting.
During the course of the Project,the Contractor experienced a number of delays.
On February 8, 2016, the City received a Claim from the Contractor in the total amount of $2,338,553.60, seeking
compensation that it claimed was owed by the City for retainage,work performed not yet paid,extended general conditions
and delays as outlined in the attached Exhibit A.The majority of the Contractor's Claim is related to delays due to no fault of
their own and additional owner requested scope of work which extended the Contract Time without Compensation for General
conditions.
Pursuant to staff evaluation of the Trans Florida's Claim outlined in the attached Exhibit B,the following determination was
made:
Item No. 1- Contract Work Yet to be Paid -The City has already paid the Contractor for Items 1A- Retainage
Withheld and amounts due for 1B,coconut palms and pigeon plum trees.
Item No. 2 - Repair of Commerce Court-The amount claimed for the repair of Commerce Court could not be
substantiated,therefore claim was denied.
Item No. 3- Extended Costs - Trans Florida's Claim sought the total amount of $353,595.79, of this amount,
$67,747.65,will be paid as part of the negotiated settlement.
Item No.4-Excusable Delays Pursuant to Article 41 of the Contract-Trans Florida's claim sought$1,115,000;
of this amount, $415,000,will be paid as part of the negotiated settlement of the construction contract.
Item No.5-Additional Cost for LED Lighting-The amount claimed for additional cost for LED lighting could not be
substantiated,therefore claim was denied.
Following good faith negotiations between the City and the Contractor regarding the Contractor's Claim in the amount of
$2,338,553.60 and based on the information provided staff recommends a settlement in the amount of$482,748,comprised of
$67,747.65 for Extended Costs and$415,000,for Compensable Excusable Delays pursuant to Article 41 of the Contract.The
attached Settlement Agreement(Exhibit C)is intended as a compromise of all claims and disputes raised by the Contractor
pertaining to the Project.
In order to expedite the completion of the Project, it.was in the best interest of the City to remove certain scope of work from
the Contract and perform the work utilizing other contractors.A deductive change order in the amount of$1,028,610.67 will be
executed for work not performed by Trans Florida and to close out the Contract.The total amount remaining in Trans Florida's
Purchase Order is$1,511,358.67.The negotiated settlement amount of$482,748.00 will be paid from the balance remaining
in the Purchase Order.The final contract amount with Trans Florida Contract including Settlement amount is$11,034,180.
THE ADMINIS //// ION RECOMMENDS ADOPTING THE RESOLUTION.
Source Amount Account
Funds: 1. $482,748 389-2333-069357 South Pointe Capital - PO #1 C IL{ ;,CjD
OBPI 1 Total $482,748 Total
Financi. Impact Summary:
City Clerk Office Legislative Tracking:
Sign-Offs:
Depart �'t D' ector Assistant City Manager City nager
DM .,A A ETC JLM
T:WGENDA\2016\June\CIP\SouthPointe III,IV,V-Trans Florida Settlement\Trans Florida.Settlement.SouthPointe.S mary.doc
M I AM I B CAC H AGENDA ITEM C C
L I DATE (P' .-
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Member. of the City I ommission
L _.
FROM: Jimmy Morales, City Manager -
DATE: June 8, 2016
SUBJECT: A RESOLUTION OF THE MAY•R AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN THE CITY OF MIAMI
BEACH(CITY)AND TRANS FLORIDA DEVELOPMENT CORPORATION,IN THE AMOUNT
OF$482,748 TO SETTLE ALL OUTSTANDING CLAIMS PERTAINING TO THE RIGHT OF
WAY INFRASTRUCTURE IMPROVEMENT PROGRAM, NEIGHBORHOOD NO.12/D/E/F,
SOUTH POINTE PHASES III, IV AND V; FUNDING FOR THE FINAL PAYMENT TO THE
CONTRACTOR IS AVAILABLE FROM THE PROJECT BUDGET.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOME
Build and maintain priority infrastructure with full accountability.
FUNDING
$482,748 South Pointe Capital
BACKGROUND
Pursuant to Invitation to Bid (ITB) 17-09/10, on July 14, 2010, the City awarded a Contract to Trans
Florida Development Corporation (Contractor)for the construction of the City of Miami Beach Right-of-
Way Infrastructure Improvement Program Neighborhood No. 12, South Pointe Phases III, IV and V,
Project in the amount of$9,950,715.92. On November 29, 2010,the Contractor was issued the second
Notice to Proceed (NTP 2) to commence construction. With approved Contract Time Extensions, the
project was scheduled to be substantially completed on June 28, 2013.
The Project limits in general are bounded by Washington Avenue, 5th Street, Ocean Drive, South Pointe
Drive,and Alton Road.The Project Scope of Work included,the construction of twenty-three(23)gravity
fed storm water discharge wells,the installation of a storm water pump station,water distribution system
upgrades,roadway reconstruction, milling and resurfacing, new sidewalks,curb and gutter,landscaping,
irrigation, brick paver crosswalks, signage, pavement markings and pedestrian lighting.
During the course of the Project, the Contractor experienced a number of delays, including the
construction of the Miami-Dade County Emergency 60-inch Force Main Project, which commenced in
September 2012,and continued through April 2013. Trans Florida was required to suspend construction
activities along Washington Avenue, Commerce Street and Alton Road to allow the force main work to
proceed. Following the force main installation, Trans Florida's storm water drainage system and pump
station had to be repaired, cleaned, and re-tested for a second time prior to City's acceptance.
City Commission Memorandum—Trans Florida Settlement Agreement
June 8, 2016
Page 2 of 3
Other delays which impacted the Contractor, included, the City's request to change from the approved
and permitted solar powered irrigation system design, to a hardwired irrigation controller for better
performance and reliability. The coordination efforts for the design and pricing of such a system took
longer than expected. The Contractor was directed to place the system on temporary battery operated
timers to preserve and maintain the landscape material until the new system could be redesigned.
Substantial scope of work changes and additional work were awarded to the Contractor including, the
addition of storm water structures, pump station relocation,removal of a portion of and decommissioning
of a large drainage box culvert along Jefferson Avenue, additional roadway reconstruction, additional
landscape and irrigation.
On February 8,2016,the City received a Claim from the Contractor in the total amount of$2,338,553.60,
seeking compensation that it claimed was owed by the City for retainage,work performed not yet paid,
extended general conditions and delays as outlined in the attached Exhibit A. The majority of the
Contractor's Claim is related to delays due to no fault of their own and additional owner requested scope
of work which extended the Contract Time without Compensation for General conditions.
ANALYSIS
Pursuant to staff evaluation of the Trans Florida's Claim outlined in the attached Exhibit B,the following
determination was made.
Claim Item No. 1- Contract Work Yet to be Paid;
The City has already paid the Contractor for Items 1A- Retainage Withheld and amounts due for 1B,
coconut palms and pigeon plum trees.
Item No. 2 - Repair of Commerce Court
The amount claimed for the repair of Commerce Court could not be substantiated, therefore claim was
denied.
Item No. 3- Extended Costs
Trans Florida's Claim sought the total amount of$353,595.79,of this amount,$67,747.65,will be paid as
part of the negotiated settlement.
Item No. 4- Excusable Delays Pursuant to Article 41 of the Contract
Trans Florida's claim sought$1,115,000;of this amount,$415,000,will be paid as part of the negotiated
settlement of the construction contract.
Article 41 states that the Contractor shall be compensated when the delay that extends the Contract Time
is caused by circumstances beyond the control of the Contractor,and as set forth in the Contract,the City
and Contractor agreed that indirect costs recoverable by the Contractor would be liquidated in the amount
of One Thousand Dollars ($1,000) per calendar day that the Contractor was delayed due to a
Compensable Excusable Delay.
As part of the Settlement Agreement,the City negotiated with Trans Florida for Excusable Compensable
Delays the amount of $415,000, which accounts for the four hundred fifteen (415) calendar days of
impact to the Project schedule. The impact is from the Substantial Completion date of June 28, 2013 to
the actual Substantial completion date of August 17, 2014, certified by the Engineer of Record.
Item No. 5-Additional Cost for LED Lighting
The amount claimed for additional cost for LED lighting could not be substantiated,therefore claim was
denied.
SUMMARY:
Following good faith negotiations between the City and the Contractor regarding the Contractor's Claim in
the amount of$2,338,553.60 and based on the information provided staff recommends a settlement in
City Commission Memorandum-Trans Florida Settlement Agreement
June 8, 2016
Page 3 of 3
the amount of$482,748, comprised of$67,747.65 for Extended Costs and$415,000,for Compensable
Excusable Delays pursuant to Article 41 of the Contract.The attached Settlement Agreement(Exhibit C)
is intended as a compromise of all claims and disputes raised by the Contractor pertaining to the Project.
In order to expedite the completion of the Project, it was in the best interest of the City to remove certain
scope of work from the Contract and perform the work utilizing other contractors. A deductive change
order in the amount of$1,028,610.67 will be executed for work not performed by Trans Florida and to
close out the Contract.The total amount remaining in Trans Florida's Purchase Order is$1,511,358.67.
The negotiated settlement amount of $482,748.00 will be paid from the balance remaining in the
Purchase Order. The final contract amount with Trans Florida Contract including Settlement amount is
$11,034,180.
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution.
Attachments:
Exhibit A-Trans Florida's Claim
Exhibit B-Claim Staff Evaluation
Exhibit C- ettlement Agreement
JM/EEI M
T:WGENDA\2016\June\CIP\SouthPointe III,IV,V-Trans Florida Settlement\Trans Florida.Settlement.SouthPointe.Memo.doc
SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN
TRANS FLORIDA DEVELOPMENT CORP. AND THE CITY OF MIAMI BEACH,
FLORIDA
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
this day of , 2016, by and between TRANS FLORIDA DEVELOPMENT
CORP., a Florida corporation, (hereinafter "TFD") and the CITY OF MIAMI BEACH,
FLORIDA, a political sub-division of the State of Florida (hereinafter, the "CITY"). TFD and
the CITY may also be referred to individually as a "Party," and collectively as the "Parties."
RECITALS
WHEREAS, pursuant to ITB No. 17-09/10, awarded on July 14, 2010, TFD and the
CITY are parties to a construction contract (the "Contract") for the Right-of-Way Infrastructure
Improvement Program, Neighborhood No. 12/D/E/F, South Pointe Phases Ill/IV/V, located in
Miami Beach, Florida (hereinafter, the "Project");
WHEREAS, TFD asserted claims for additional compensation and time against the
CITY pertaining to the Project (the "TFD Claim");
WHEREAS, following good faith negotiations regarding the amount sought in the TFD
Claim, the Parties desire to settle all claims, disputes, past, present, or future regarding the
Project, regardless of responsibility; and
WHEREAS, the Parties believe it would be in their best interests and the best interests of
the citizens of the CITY to enter into this Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Recitals: The above Recitals are true and correct and are incorporated herein.
2. Settlement: The Parties hereby settle and compromise all claims of any kind or
nature (including any claims for attorney's fees and costs), relating to, arising out of and/or in
connection with, the Project, except as set forth herein.
3. Settlement Terms: In consideration for the releases executed herein, the Parties
agree as follows:
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(a) The CITY agrees to pay TFD the sum of Four Hundred Eighty-Two
Thousand Seven Hundred Forty-Eight Dollars and 00/100 ($482,748.00) (the
"Final Payment").
(b) Subject to the CITY Commission's approval of this Agreement, TFD's
execution of the Agreement and TFD's execution of a deductive Change Order in
the amount of One Million Twenty-Eight Thousand Six Hundred Ten Dollars and
Sixty-Seven Cents ($1,028,610.67), all of which are material conditions precedent
to the execution and enforceability of any provision of this Agreement, following
CITY Commission approval, the CITY shall execute the associated Resolution,
execute the Agreement and make the Final Payment to TFD within sixty (60)
days unless force majeure or other like good cause is shown.
4. Releases: In further consideration of the execution of this Agreement, the Parties
for themselves and their respective parent companies, subsidiaries, divisions, affiliates, unit
owners, insurers, officers, directors, agents, employees, subcontractors, representatives,
successors and assigns (the "CITY Releasors" or "TFD Releasors" as the case may be), hereby
execute, subject to the conditions and exclusions set forth in this Agreement, the following
Releases:
(a) TFD Releasors' Release of CITY Releasors:
Upon payment of the Final Payment by the CITY, the TFD Releasors hereby remise,
release, acquit, satisfy and forever discharge the CITY Releasors, which throughout this
Agreement includes, but is not limited to, its affiliates, Commissioners, insurers, sureties,
directors, officers, employees, agents and attorneys, together with its heirs, executors,
administrators, associates, representatives, successors and assigns, of and from any and all
manner of past, present and future claims, action and actions, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, obligations, damages, judgments, costs, expenses, cause and
causes of action, executions, claims, liabilities, and demands whatsoever, in law or in equity,
whether for compensatory, punitive, or other damages (collectively referred to in this Paragraph
as the "Claims"), which the TFD Releasors have held or now hold, ever had, now have, or which
the TFD Releasors, hereinafter can, shall or may have against the CITY Releasors, for any and
all Claims, whether known or unknown, arising from, pertaining to and/or in any way relating to
the Project.
(b) CITY Releasors' Release of TFD Releasors:
Except as provided and expressly subject to the limitations set forth in Paragraph 5
herein, which the Parties agree and acknowledge limits the scope of the CITY Releasors' release
of the TFD Releasors, the CITY Releasors hereby remise, release, acquit, satisfy and forever
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discharge the TFD Releasors, which throughout this Agreement includes, but is not limited to, its
affiliates, insurers, sureties, directors, officers, employees, agents and attorneys, together with its
heirs, executors, administrators, associates, representatives, successors and assigns, of and from
any and all manner of past, present and future claims, action and actions, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, obligations, damages, judgments, costs, expenses,
cause and causes of action, executions, claims and liabilities, and demands whatsoever, in law or
in equity, whether for compensatory, punitive, or other damages (collectively referred to in this
Paragraph as the "Claims"), which the CITY Releasors have held or now hold, ever had, now
have, or which the CITY Releasors, hereinafter can, shall or may have against the TFD
Releasors, for any and all Claims, whether known or unknown, arising from, pertaining to and/or
in any way relating to the Project.
5. Latent Defects and Warranties:
(a) The Parties agree that, specifically excluded from any release or waiver by the
Parties under this Agreement, are any demands, claims and causes of action arising from,: (i)
latent defects; (ii) warranty claims; or (iii) any third party actions for property damage, bodily
injury, personal injury or death pertaining to the Project. The CITY shall not be precluded from
bringing any action at law or equity arising from or relating to such matters. Neither Party shall
be precluded from asserting defenses thereto.
(b) TFD agrees that it shall honor and be responsible to the CITY for all warranties
and guarantees as specified in the Contract and/or as otherwise provided by law or in equity.
TFD further acknowledges and agrees that nothing contained in this Agreement shall constitute a
waiver of any right by the CITY to seek enforcement of those warranties and guarantees against
TFD, its sureties, insurers, subcontractors and suppliers, and nothing in this Agreement shall
constitute a waiver of any defenses thereto by TFD.
6. No Admission of Liability: It is understood and agreed that the claims which are
the subject of this Agreement are disputed claims and that the execution of this Agreement by the
Parties, and the exclusions set forth in this Agreement, are not intended to, and shall not in any
way, constitute or be deemed an express or implied admission or acceptance of any negligence,
misconduct, responsibility or liability by the Parties or an admission against interest by the
Parties, and that the Parties expressly and specifically deny all such claims. Such consideration
is being given to reduce the expense, uncertainties and hazards of litigation and to mitigate
damages to each of the Parties. There shall not be any implication by any trier of fact or law of
any admission or acceptance of liability or admission against interest by the Parties and it shall
not be used against the CITY Releasors or the TFD Releasors in any attempt to prove any future
liability claims.
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7. Binding Effect: Subject to CITY Commission approval, execution of the
associated Resolution and execution of the Agreement by both Parties, this Agreement shall be
binding upon the Parties and their respective successors and assigns. However, execution and
notarization by all Parties shall be a strict and material condition precedent to the effectiveness of
this Agreement as binding against any Party. If the CITY Commission does not issue the
approval, the Agreement shall be null and void and of no force and effect.
8. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the
CITY Releasors or the TFD Releasors to resolve a dispute regarding enforcement of the terms of
this Agreement, then the prevailing party as between the CITY Releasors and the TFD Releasors
shall be entitled to recover reasonable attorney's fees and court costs incurred. The Parties shall
bear their own fees and costs relating to the negotiation and execution of this Agreement to date.
9. Miscellaneous: The Parties further agree as follows:
(a) The Parties acknowledge and agree that this Agreement is fully and
adequately supported by consideration and is fair and reasonable. The Parties
further acknowledge and agree that: (i) each Party has had the opportunity to
consult with, and has in fact consulted with, such professionals,experts and legal
counsel of its choice as such Party may have desired with respect to all matters
settled and resolved herein; (ii) each Party has participated fully in the negotiation
and preparation of this Agreement; (iii) each Party has carefully reviewed this
Agreement and is entering into same freely; and (iv) this Agreement is entered
into in good faith and was not obtained by fraud, misrepresentation, or deceit.
Accordingly, this Agreement shall not be more strictly construed against any
Party.
(b) The Parties hereto understand and agree that this Agreement will not be
binding on the Parties to this Agreement until such time as the CITY Commission
of the CITY of Miami Beach has approved same, the associated Resolution has
been executed and the Agreement is fully executed by the Parties to the
Agreement. CITY Commission approval is a strict and material condition
precedent to the execution and enforceability of this Agreement, without which
the CITY does not agree to, and is not subject to, the terms and conditions
contained herein.
(c) Each of the signatories hereto represents that he or she has authority to
execute this Agreement and to bind the Party on whose behalf he or she has
signed.
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(d) This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement shall
be construed and governed in accordance with the laws of the State of Florida and
the sole and exclusive venue for any lawsuit relating to this Agreement is Miami-
Dade County, Florida. The Parties expressly agree to waive trial by jury in any
action to enforce this Agreement.
(e) In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall
be held to include every other and all genders, and captions and paragraph
headings shall be disregarded.
(f) Any exhibits attached to this Agreement are incorporated in, and made a
part of, this Agreement.
(g) Time is of the essence in the performance of this Agreement.
10. Entire Agreement: This Agreement, together with any documents referenced
herein, constitutes the full and entire agreement and understanding between the Parties as related
to the Project, and there are no agreements, representations or warranties except as specifically
set forth herein. This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the terms of this Agreement. All prior discussions,
negotiations, letters, demands and writings of any kind are fully merged into this Agreement and
are to be construed to be of no further force or effect, it being the intention of the Parties that this
Agreement shall serve as the sole and entire expression of their agreement and understanding.
This Agreement shall be binding on, and shall inure to the benefit of, the respective successors
and assigns, if any, of each Party.
11. Modification; No Waiver: This Agreement may only be modified in writing
signed by both Parties. No waiver or modification of the Agreement or of any covenant,
condition or limitation contained herein, shall be valid unless in writing and signed by all Parties
to the Agreement, or their authorized counsel. If the CITY or TFD excuses or condones any
breach or default by the other Party of any obligation under this Agreement, 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.
12. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together represent one instrument
binding on the Parties, notwithstanding that all of the Parties are not signatories to the same
5
counterpart. The Parties further agree that this Agreement may be signed and submitted via
facsimile or electronic mail.
13. Severability: If any provision of this Agreement is held or rendered illegal or
unenforceable, it shall be considered separate and severable from this Agreement and the
remaining provisions of this Agreement shall remain in full force and effect and bind the Parties
as though the illegal or unenforceable provision had never been included in the Agreement.
14. Captions; References: The captions of this Agreement are for the purpose of
convenience of reference only and in no way define, limit or describe the scope or intent of the
Agreement or in any way affect the terms and conditions of this Agreement. All references in
the Agreement to the terms "herein," "hereunder," "hereof' and words of similar import shall
refer to this Agreement, as distinguished from the Paragraph, Section and/or Subsection within
which such term is located.
15. Third Parties: Nothing express or implied in this Agreement is intended or should
be construed to confer upon or give any person or entity, other than the CITY and TFD, any
rights or remedies under, or by reason of, this Agreement.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
[Remainder of page intentionally left blank.]
6
TRANS FLORIDA DEVELOPMENT CORP.
Attest:
AQUILINO MELO, President
Secretary
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
2016, by AQUILINO MELO as President of TRANS FLORIDA DEVELOPMENT CORP., who
is personally known to me or who has produced (type of
identification).
Name:
(Print Name)
Notary Public—State of Florida
My Commission Expires:
7
THE CITY OF MIAMI BEACH, FLORIDA,
a Municipal Corporation of the State of Florida
By:
Print Name:
Title:
ATTEST:
RAFAEL GRANADO, CITY CLERK
SEAL
APPROVED AS TO FORM AND
CORRECTNESS:
e \-
RAUL J. AGUILA, CITY ATTORNEY
•
8
Exhibit A
TRANS FLORIDA DEVELOPMENT CORP.
TRANS FLORIDA General Engineering Contractor
ZIV FAIL
2/08/16
Tab I
Contract Work Yet To Be Paid
A. Retainage Held to Date $ 495,905.21
B. Installed Coconut Palms installed since July of 2013, 133 $ 174,717.60
and 27 that were picked by COMB consultant and delivered that
were stopped.from installing and 97 pigeon Plums installed.
Total Value of Contract Work Completed To Be Paid $ 670,622.81
Tab 2
Change Order For Repair of Commerce Court
Repair of Commerce Court roadway due to PW fire line installation $15,000.00
Tab3
Extended Costs
Staging Yard Due to Extended Time (11 mths) $ 31,900.00
Field Office Due to Extended Time (1 linths) $ 45,100.00
General Conditions Due to Extended Time (11 mths) $ 238,051.00
Survey and Layout Site Controls Extended Time (5 MThs) $ 27,916.70
Maintenance of Traffic Due to Extended Time(11 mths) $ 10,628.09
Total Value of Above items $ 368,595.79
13960 S.W. 144 Ave. Rd.. Miami, Fl.. 33186- Phone(305)378-2323 - Fax(305)378-6161 C.0!} E982003
Tab 4
Excusable Delay Claims As Per Article 41 of The Contract
As per Letter of July 3, 2013 to D. Martinez
Irrigation Controller Delay March 6th 2012 to October 22 2013
as per article 41 628 Calendar days $ 1,000.00 per day $ 628,000.00
Landscaping Coconut Palms Stop Work Order Sept. 6, 2012—
February 22, 2013 as per article 41 $ 1,000.00 per Day 175 Days $ 175,000.00
Delays since February 22, 2013 with Coconut Palms as selected by $ 312,000.00
Landscape Architect to Jan. 1 2014
Total $ 1,115,000.00
Tab 5
Claim for Additional Cost of LED Lighting
Due to short fall calculation of Change Order 11 True cost of LED
Fixtures is $ 1,303.00 versus $ 448.12 + (CO 11) $ 773.14=
$ 1,221.26 making for a material difference of$ 81.74 + Labor Cost,
Taxes, Markups and Fees $ 184,335.00
Grand Total of All Claims South Point $ 2,338,553.60
13960 S.W. 144 Ave. Rd.. Miami. FL 33186 - Phone (305)378-2323 - Fax(305)378-6161 C.0 4 E982003
EXHIBIT B
MIAMI BEACH
Office of Capital Improvement Projects
Trans Florida's Claims of
Retainage, Work Performed, Extended General Conditions and Delays
& Staff Evaluation
TRANS FLORIDA DEVELOPMENT CORPORATION CLAIM AMOUNTS SETTLEMENT AMOUNT
CLAIM ITEMS DESCRIPTION
1-CONTRACT WORK YET TO BE PAID
A. Retainage Withheld $ 495,905.21 $ -
B. 160 Coconut Palms and Pigeon Plum Trees $ 174,717.60 $ -
2-Repair of Commerce Court $ 15,000.00 $ -
3-Extended Costs(General Conditions) $ 353,595.79 $ 67,747.65
4-Excusable Delays per Article 41 of the Contract $ 1,115,000.00 $ 415,000.00
5-Additional Cost for LED Lighting $ 184,335.00 $ -
TOTALS $ 2,338,553.60 $ 482,747.65
Item No. 1- Contract Work Yet to be Paid; Item No. 2 - Repair of Commerce Court; and
Item No. 5 - Additional Cost for LED Lighting
As noted in the table above, Items 1, 2 and 5 are not considered a part of this Settlement
Agreement. The City has already paid the Contractor for Items 1A and B, regarding retainage
withheld and amounts that were due for coconut palms and pigeon plum trees. The amounts
included in Item 2 - Repair of Commerce Court, and in Item 5 -Additional Cost for LED Lighting,
are not included in the negotiated settlement amount as they could not be substantiated by
Contractor.
Item No. 3 - Extended Costs
Trans Florida's claim sought the total amount of $353,595.79, for "Extended Costs (General
Conditions), which included extended costs for a Staging Yard; Field Office; General Conditions;
Survey and Layout; and Maintenance of Traffic. As part of the negotiated settlement for this
Item, Trans Florida will be paid $67,747.65, which accounts for one hundred and twenty (120)
calendar days of Direct Costs (Excluding General Conditions), for time extensions granted
without the above-mentioned extended costs associated with the staging yard, field office,
survey and site controls and maintenance of traffic (MOT), from March 1, 2013 through June 28,
2013.
Item No. 4- Excusable Delays Per Article 41 of the Contract ($1,000.00 per day)
Trans Florida's claim sought $1,115,000 for "Excusable Delays Per Article 41 of the Contract,"
related to several items it claimed impacted the Project. The City considers some of the time
requested as running concurrent with other items cited in the Contractor's Claim, and therefore
will agree to pay only the portion of the amount sought for this Item for Excusable Compensable
delays from the revised Substantial Completion date of June 28, 2013 to August 17, 2014.
Exhibit C
SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN
TRANS FLORIDA DEVELOPMENT CORP. AND THE CITY OF MIAMI BEACH,
FLORIDA
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
this day of , 2016, by and between TRANS FLORIDA DEVELOPMENT
CORP., a Florida corporation, (hereinafter "TFD") and the CITY OF MIAMI BEACH,
FLORIDA, a political sub-division of the State of Florida (hereinafter, the "CITY"). TFD and
the CITY may also be referred to individually as a"Party," and collectively as the"Parties."
RECITALS, \
WHEREAS, pursuant to ITB No, 17-09/10,)awarded on July 14, 2010, TFD and the
CITY are parties to a construction contract (the "Contract"), for the Right-of-Way Infrastructure
Improvement Program, Neighborhood No. 12-South Pointe Phases III/IV/V, located in Miami
\ \
Beach, Florida(hereinafter, the"Project"); `. . � \
WHEREAS, TFD asserted clai s4or additional compensation and time against the
CITY pertaining to the Project(the "TFDVCla im"); ��v\
WHEREAS, following good faith negotiations regarding the amount sought in the TFD
Claim, the Parties desire to settle vall claims,' disputes, past, present, or future regarding the
Project, regardless of responsibility; and
WHEREAS,the Parties believe it would be in)their best interests and the best interests of
the citizens-of the CITYto,agree.to the provisions'of this Agreement.
NOW\THEREFORE,''in consideration for the exchange of promises contained herein,
and for other good and valuable'consideration, the receipt and sufficiency of which are hereby
acknowledged by the,Parties, the Parties agree as follows:
1. Recitals: The above Recitals are true and correct and are incorporated herein.
2. Settlement: The Parties hereby settle and compromise all claims of any kind or
nature (including any claims for attorney's fees and costs), relating to, arising out of and/or in
connection with, the Project, except as set forth herein.
3. Settlement Terms: In consideration for the releases executed herein, the Parties
agree as follows:
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(a) The CITY agrees to pay TFD the sum of Four Hundred Eighty-Two
Thousand Seven Hundred Forty-Eight Dollars and 00/100 ($482,748.00) (the
"Final Payment").
(b) Subject to the CITY Commission's approval of this Agreement, the Final
Payment shall be made by the CITY within thirty (30) days following CITY
Commission approval, execution by the CITY of the associated Resolution
approving such settlement and full execution of the Agreement by each Party.
4. Releases: In further consideration of the execution of this Agreement, the Parties
for themselves and their respective parent companies, subsidiaries, divisions, affiliates, unit
owners, insurers, officers, directors, agents, employees, subcontractors, representatives,
successors and assigns (the "CITY Releasors" or "TFD Releasors'as the case may be), hereby
execute, subject to the conditions and exclusions/set forth in this Agreement, the following
Releases: , \
(a) TFD Releasors'Release of CITY'Releasors:
Upon payment of the Final Payr ent by the CITY\the TFD Releasors hereby remise,
release, acquit, satisfy and forever di'schargthe CITY. Releasors, which throughout this
Agreement includes, but is not limitedto, its affiliates, Commissioners, insurers, sureties,
directors, officers, employees, agents and attorneys, 'together;with its heirs, executors,
administrators, associates, representatives, successors and assigns, of and from any and all
manner of past, present and future claims, action and actions, suits, debts, dues, sums of money,
accounts, reckonings, bonds,bills, specialties, covenants, contracts, controversies, agreements,
promises, variances,trespasses, obligations, damages, judgments, costs, expenses, cause and
causes of action, executions, claims, liabilities, and'demands whatsoever, in law or in equity,
whether for, ompensatory, punitive, or,other damages (collectively referred to in this Paragraph
as the"Claims'), which the TFD Releasers have held or now hold, ever had, now have, or which
the TFD Releasors, hereinafter can, shall or may have against the CITY Releasors, for any and
all Claims, whether known or unknown, arising from, pertaining to and/or in any way relating to
the Project.
(b) CITY.Releasors' Release of TFD Releasors:
Except as provided and expressly subject to the limitations set forth in Paragraph 5
herein, which the Parties agree and acknowledge limits the scope of the CITY Releasors' release
of the TFD Releasors, the CITY Releasors hereby remise, release, acquit, satisfy and forever
discharge the TFD Releasors, which throughout this Agreement includes, but is not limited to, its
affiliates, insurers, sureties, directors, officers, employees, agents and attorneys, together with its
heirs, executors, administrators, associates, representatives, successors and assigns, of and from
any and all manner of past, present and future claims, action and actions, suits, debts, dues, sums
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of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, obligations, damages, judgments, costs, expenses,
cause and causes of action, executions, claims and liabilities, and demands whatsoever, in law or
in equity, whether for compensatory, punitive, or other damages (collectively referred to in this
Paragraph as the "Claims"), which the CITY Releasors have held or now hold, ever had, now
have, or which the CITY Releasors, hereinafter can, shall or may have against the TFD
Releasors, for any and all Claims, whether known or unknown, arising from, pertaining to and/or
in any way relating to the Project.
5. Latent Defects and Warranties:
(a) The Parties agree that, specifically excluded fro zany release or waiver by the
Parties under this Agreement, are any demands, claims and causes\of action arising from (i)
latent defects; (ii) warranty claims; or (iii) any third party actions for property damage, bodily
injury, personal injury or death pertaining to the Project. The CITY shall riot be precluded from
bringing any action at law or equity arising from or relating to such matters.
/
(b) TFD agrees that it shall honor and be responsible to the CITY for all warranties
and guarantees as specified in the Contract and/or as otherwise provided by law or in equity.
TFD further acknowledges and agrees that nothing contained in this Agreement shall constitute a
waiver of any right by the CITYYto seek enforcement of those warranties and guarantees against
TFD, its sureties, insurers, subcontractors and supph rs
6. No Admission.of Liability: It is understood and agreed that the claims which are
the subject of this Agreement are disputed claims and\that the execution of this Agreement by the
Parties, and'the exclusions set forth in this Agreement, are not intended to, and shall not in any
way, constitute or be deemedn express or implied admission or acceptance of any negligence,
misconduct, responsibility or liability by\the Parties or an admission against interest by the
Parties, and that the Parties expressly and-specifically deny all such claims. Such consideration
is being given to reduce the expense, uncertainties and hazards of litigation and to mitigate
damages to each of the Parties. There shall not be any implication by any trier of fact or law of
any admission or acceptance of liability or admission against interest by the Parties and it shall
not be used against the CITYYReleasors or the TFD Releasors in any attempt to prove any future
liability claims.
7. Binding Effect: Subject to CITY Commission approval and execution by the
Parties, this Agreement shall be binding upon the Parties and their respective successors and
assigns. However, execution and notarization by all Parties shall be a condition precedent to the
effectiveness of this Agreement as binding against any Party. If the CITY Commission does not
issue the approval, the Agreement shall be null and void and of no force and effect.
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8. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the
CITY Releasors or the TFD Releasors to resolve a dispute regarding enforcement of the terms of
this Agreement, then the prevailing party as between the CITY Releasors and the TFD Releasors
shall be entitled to recover reasonable attorney's fees and court costs incurred. The Parties shall
bear their own fees and costs relating to the negotiation and execution of this Agreement to date.
9. Miscellaneous: The Parties further agree as follows:
(a) The Parties acknowledge and agree that this Agreement is fully and
adequately supported by consideration and is fair and reasonable. The Parties
further acknowledge and agree that; (i) each Party has had the opportunity to
consult with, and has in fact consulted with, such professionals, experts and legal
counsel of its choice as such Party/may have desired with respect to all matters
settled and resolved herein; (ii) each Party has participated fully in the negotiation
and preparation of this Agreement; (iii) each Party has carefully reviewed this
Agreement and is entering into same freely, and (iv) this Agreement is entered
into in good faith and was�not obtained by\fraud, misrepresentation, or deceit.
Accordingly, this Agreement shall not be more strictly construed against any
Party.
(b) The Parties hereto understand/and agree that this Agreement will not be
binding on\the Parties to this Agreement until such time as the CITY Commission
of the CITY\of Miami Beach has approved same, and the Agreement is fully
executed by the Parties to the Agreement. CITY Commission approval is a
material condition`precedent to�tlie execution and enforceability of this
Agreement, without which the CITY does not agree to, and is not subject to, the
''terms and conditions contained herein.
(c) Each of the signatories hereto represents that he or she has authority to
execute 'this Agreement and to bind the Party on whose behalf he or she has
signed.
(d) This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement shall
be construed and governed in accordance with the laws of the State of Florida and
the sole and exclusive venue for any lawsuit relating to this Agreement is Miami-
Dade County, Florida. The Parties expressly agree to waive trial by jury in any
action to enforce this Agreement.
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(e) In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall
be held to include every other and all genders, and captions and paragraph
headings shall be disregarded.
(f) Any exhibits attached to this Agreement are incorporated in, and made a
part of, this Agreement.
(g) Time is of the essence in the performance of this Agreement.
j
10. Entire Agreement: This Agreement, together vith any documents referenced
herein, constitutes the full and entire agreement and understanding between the Parties as related
to the Project, and there are no agreements, representations or warranties except as specifically
set forth herein. This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the terms, of this Agreement. All prior discussions,
negotiations, letters, demands and writings of any kind are full merged into this Agreement and
are to be construed to be of no further force or effect, it being,the intention of the,Parties that this
Agreement shall serve as the sole and entire expression of\their agreement and understanding.
This Agreement shall be binding on, and\shall inure to the.benefit of, the respective successors
and assigns, if any, of each Party.
,, ,_>
11. Modification; No Waiver: This,'Agreement may only be modified in writing
signed by both Parties\\No waiver or modification of the-Agreement or of any covenant,
condition or limitation contained,herein,,shall be valid unless in writing and signed by all Parties
to the Agreement, or-their authorized counsel. If the CITY or TFD excuses or condones any
breach or default by the other Part' of any obligation under this Agreement, 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.
12. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be'deemed an original, but all of which together represent one instrument
binding on the Parties, notwi hstanding that all of the Parties are not signatories to the same
counterpart. The Parties further agree that this Agreement may be signed and submitted via
facsimile or electronic mail.
13. Severability: If any provision of this Agreement is held or rendered illegal or
unenforceable, it shall be considered separate and severable from this Agreement and the
remaining provisions of this Agreement shall remain in full force and effect and bind the Parties
as though the illegal or unenforceable provision had never been included in the Agreement.
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14. Captions; References: The captions of this Agreement are for the purpose of
convenience of reference only and in no way define, limit or describe the scope or intent of the
Agreement or in any way affect the terms and conditions of this Agreement. All references in
the Agreement to the terms "herein," "hereunder," "hereof' and words of similar import shall
refer to this Agreement, as distinguished from the Paragraph, Section and/or Subsection within
which such term is located.
15. Third Parties: Nothing express or implied in this Agreement is intended or should
be construed to confer upon or give any person or entity, other than the CITY and TFD, any
rights or remedies under, or by reason of, this Agreement. /
IN WITNESS WHEREOF, the Parties have set their hands,and seals on the day and date
first written above: )
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[Remainder of page intentionally left blank.]
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TRANS FLORIDA DEVELOPMENT CORP.
Attest:
AQUILINO MELO, President
Secretary
Print Name
i
/ \
STATE OF FLORIDA
COUNTY OF MIAMI-DADE N
)
The foregoing instrument was,acknowledgedbefore/me this day of
2016, by AQUILINO MELO as President of-TRANS FLORIDA DEVELOPMENT CORP., who
is personally known to me or who\ has produced N, (type of
identification).
Name:
�\ (Print Name)
Notary Public,—State of Florida
\ . My Commission Expires:
i
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THE CITY OF MIAMI BEACH, FLORIDA,
a Municipal Corporation of the State of Florida
By:
Print Name:
Title:
ATTEST:
RAFAEL GRANADO, CITY CLERK
/
SEAL
N
APPROVED AS TO FORM AND '
CORRECTNESS:
RAUL J. AGUILA, CITY ATTORNEY'\
N
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