2016-29418 Reso RESOLUTION NO 2016-29418
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 $300,000 TO SETTLE ALL OUTSTANDING CLAIMS
PERTAINING TO THE RIGHT OF WAY IMPROVEMENT PROGRAM,
NEIGHBORHOOD NO. 8B, BAYSHORE—LOWER NORTH BAY ROAD
PROJECT; FUNDING FOR THE FINAL PAYMENT TO THE
CONTRACTOR IS AVAILABLE FROM THE PROJECT BUDGET.
WHEREAS, on December 8, 2010, pursuant to Invitation to Bid (ITB) 2-09/10, for
the construction of the City of Miami Beach Right-of-Way Infrastructure Improvement
Program, Neighborhood No. 8B, Bayshore, Lower North Bay Road Project, Trans
Florida Development Corporation (Trans Florida or Contractor) was awarded a contract
(Contract) in the amount of $4,055,222.92, executed on June 28, 2011; and
WHEREAS, on August 17, 2011, Trans Florida was issued the First Notice to
Proceed (NTP 1) with pre-construction activities; and
WHEREAS, on October 19, 2012, Contractor was issued the Second Notice to
Proceed (NTP 2) to mobilize and commence construction; and
WHEREAS, in the interim between issuance of NTP 1 and NTP 2, the City made
multiple revisions to the Construction Documents including revisions to the pump
station, piping material, electrical, water main, landscape, hardscape and demolition
plans until April 2012; and
WHEREAS, the project Scope of Work included improvements to the storm
water collection and disposal system, the construction of four (4) pressurized wells, two
(2) storm water pump stations, improvements to the water distribution system,
demolition, site preparation, earthwork, roadway reconstruction, roadway milling and
resurfacing, sidewalk replacement, and signage and pavement markings: and
WHEREAS, since the execution of the Contract on June 28, 2011, through the
issuance of NTP 2 on October 19, 2012, Trans Florida obtained bonds and insurance
for the project, commenced preconstruction activities which included preparation and
submittal of a project baseline schedule; permitting activities; coordination with private
utility companies; pre-construction audio-video and aerial photography; project sign
production and installation; mobilization, preliminary survey and site layout;
maintenance of traffic (MOT); selective demolition and exploratory digging/potholing;
material procurement, and entered into sub-contracts; and
WHEREAS, Trans Florida also obtained dewatering permits, prepared
presentation material for community meetings, prepared and distributed project
notifications and responded to residents' inquiries; and
WHEREAS, following work performed pursuant to NTP 1 and NTP 2, the City
determined it was in the City's and its citizens' best interests to terminate the Contract
for convenience in order to allow time to redesign the project in accordance with new
Stormwater guidelines and under a design/build agreement delivery method; and
WHEREAS, in accordance with the terms and conditions of the Contract, by
letter dated October 30, 2012, the City terminated the Contract with Trans Florida for
convenience, effective November 11, 2012; and
WHEREAS, the Contract provides that in the event of a termination for
convenience, the Contractor shall be paid for all work properly executed and accepted
and expenses incurred prior to the termination date as well as termination settlement
costs reasonably incurred in relation to the project; and
WHEREAS, on November 18, 2013, Trans Florida submitted a Claim in the
amount of $623,792.26, following the City's request for supporting documentation which
it claimed accounted for the work completed and expenses incurred for the project prior
to termination of the Contract and termination settlement costs; and
WHEREAS, following the City's request for supporting documentation, Trans
Florida subsequently revised its Claim on August 13, 2014 to $1,100,956.66, and again
on February 8, 2016 to $1,062,161.14; and
WHEREAS, City staff reviewed and evaluated Trans Florida's Claim and
supporting documentation it eventually submitted thereafter; and
WHEREAS, following good faith negotiations regarding the amount sought in
Trans Florida's Claim, the City and Trans Florida negotiated a settlement for the
disputed claims in the amount of$300,000; and
WHEREAS, the City and Trans Florida 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 Trans Florida pertaining to the project; and
WHEREAS, the negotiated settlement amount of $300,000 will be paid from the
available 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
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Miami Beach, Florida and Trans Florida Development Corporation, in the amount of
$300,000 to settle all outstanding claims pertaining to Right of Way Infrastructure
Improvement Program, Neighborhood No. 8B, Bayshore — Lower North Bay Road
project; funding for the final payment to the Contractor is available from the project
budget.
PASSED and ADOPTED this 8 day of Junes , 2016.
Aer
PHILIP LEVI 'E,
ATTEST:
1R FAE . GRANA lit:13 ‘.
, CITY C Nr•"11%%
:
Trans Florida
Development Corp. Exhibit A
Claim Summary
February 29th, 2016
CONTRACT AMOUNT $3,830,197.92
Net Change Orders yet to approve 751,115.14
Contract Sum To Date 4,581,313.06
DESCRIPTION OF WORK CONTRACT AMOUNT Billing
General Conditions
1.Ola Bonds and Insurance 95,426.93
1.02a Mobilization/Demobilization 79,875.00
1.03a Survey Layout and As Built 75,500.00
1.04a Maintenance Of Traffic 89,564.42
1.05a Engineer's Field office 3,600.00
1.06a Public Information Services 15,600.00
1.07a Trench safety Act 24,000.00 •
$383,566.35
Additional Cost
1 Office Over Head $67,325.00
2 Office Engineer $110,000.00
3 Field personal and management $118,250.00
$295,575.00
June 28, 2011 Contracted 16+ Months
November 11, 2012 Terminated
Bidding 12/15/09
Expected Profit $383,019.79
$1,062,161.14
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, TFD and the CITY are parties to a construction contract, dated June 28,
2011 (the "Contract"), awarded pursuant to ITB No. 2-09/10, for the construction of the Right-
of-Way Infrastructure Improvement Program-Neighborhood No. 8B, Bayshore, Lower North
Bay Road, located in Miami Beach, Florida (hereinafter,the "Project");
WHEREAS, following work performed pursuant to Notice to Proceed 1 and Notice to
Proceed 2, the CITY determined it was in the CITY's and its citizens' best interests to terminate
the Contract for convenience in order to allow time to redesign the Project in accordance with
new Stormwater guidelines and under a design/build agreement delivery method;
WHEREAS, in accordance with the terms and conditions of the Contract, by letter dated
October 30, 2012, the CITY terminated TFD for convenience, effective November 11, 2012;
WHEREAS, TFD asserted a claim for compensation it contended accounted for work
executed and expenses incurred prior to termination in addition to termination settlement costs
reasonably incurred 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 agree 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.
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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:
(a) The CITY agrees to pay TFD the sum of Three Hundred Thousand Dollars
and No Cents ($300,000.00) (the "Final Payment").
(b) Subject to the CITY Commission's approval of this Agreement and TFD's
execution of the Agreement, both of which are material conditions precedent to
the execution and enforceability of any provision of the 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 and clearance of said funds, 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.
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(b) CITY Releasors' Release of TFD Releasors:
Except as provided and expressly subject to the limitations set forth in this Paragraph
4(b), 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
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. 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.
6. 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.
7. 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
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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.
8. 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.
(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
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be held to include every other and all genders, and captions and paragraph
headings shall be disregarded.
(f) Time is of the essence in the performance of this Agreement.
9. 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.
10. 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.
11. 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
counterpart. Each Party shall execute four(4) original copies of the Agreement.
12. 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.
13. 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.
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14. 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.]
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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:
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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
APPROVED AS TO FORM AND
CORRECTNESS:
411V _da
RAUL J. AGUILA, CITY ATTORNEY
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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$300,000 To Settle All Outstanding Claims Pertaining To Bayshore Neighborhood No 8B—Lower North Bay Road Right Of
Way Improvements;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:
On December 8,2010,pursuant to Invitation to Bid(ITB)2-09/10,for the construction of the City of Miami Beach Right-of-Way Infrastructure
Improvement Program Neighborhood No.8B,Bayshore,Lower North Bay Road Project,Trans Florida Development Corporation(Trans Florida
or Contractor)was awarded a contract(Contract)in the amount of$4,055,222.92.
On August 17,2011,Trans Florida was issued the First notice to proceed with pre-construction activities.The Second Notice to Proceed(NTP 2)
to mobilize and commence construction was issued on October 19,2012.In the interim,the City made multiple revisions to the Construction
Documents including revisions to the pump station,piping material,electrical,water main,landscape,hardscape and demolition plans until April
2012.The Project was scheduled to be substantially completed on December 13,2013.
The Project Scope of Work at that time included improvements to the storm water collection and disposal system,the construction of four(4)
pressurized wells,two(2)storm water pump stations,improvements to the water distribution system,demolition,site preparation,earthwork,
roadway reconstruction,roadway milling and resurfacing,sidewalk replacement,and signage and pavement markings.
Since the execution of the Contract on June 28,2011,through the issuance of the Second Notice to Proceed on October 19,2012,Trans Florida
obtained bonds and insurance for the project,commenced preconstruction activities which included preparation and submittal of a project
baseline schedule;permitting activities;coordination with private utility companies;pre-construction audio-video and aerial photography,project
sign production and installation; mobilization, preliminary survey and site layout; maintenance of traffic(MOT); selective demolition and
exploratory digging/potholing;material procurement,and entered into sub-contracts. Trans Florida also obtained dewatering permits,prepared
presentation material for community meetings,prepared and distributed Project notifications and responded to residents'inquiries.
Following work performed pursuant to Notice to Proceed 1 and Notice to Proceed 2,the CITY determined it was in the CITY's and its citizens'
best interests to terminate the Contract for convenience in order to allow time to redesign the Project in accordance with new Stormwater
guidelines and under a design/build agreement delivery method.
In its October 30,2012 correspondence,the City Terminated the Agreement with Trans Florida for convenience,effective November 11,2012.
As stipulated in the Contract,the termination letter advised Trans Florida they would be paid for all work executed and expenses incurred prior to
the termination date.
On November 18, 2013, in response to the termination letter,Trans Florida submitted a claim in the amount of$623,792.26,for the work
completed and expenses incurred for the project prior to and following termination of the Agreement.The costs outlined were primarily related to
General Conditions.
In its February 20,2014 correspondence,the City acknowledged the receipt of an invoice for the project,and requested that Trans Florida
submit their payment request in the contractual format,including all supporting documentation to substantiate the request for payment.
On August 13,2014,Trans Florida without any reasonable justification revised its claim increasing the amount to$1,100,956.66.Trans Florida
stated the revised claim now included monies attributable to three unexecuted change orders(and profits for work not performed).Despite
numerous requests, Trans Florida failed to provide documentation to support its claim.
The City,in its correspondence dated December 18,2014,denied Trans Florida's claim in its entirety stating it was unable to properly evaluate
the claim amounts since Trans Florida had failed to provide supporting documentation.
On February 8,2016,Trans Florida submitted a revised Claim in the amount of$1,062,161.14.The Claim included costs for General Conditions,
Additional costs for office overhead,engineer,field personnel and management,and anticipated profits. Trans Florida requested the City re-
evaluate the claim.
Subsequently,following good faith negotiations and based on the additional information provided,Staff recommends a settlement in the amount
of$300,000, for all direct costs, profit on indirect costs, overhead, loss of earnings, loss of productivity, loss of bonding capacity, loss of
opportunity and all other indirect costs incurred by the Contractor.The Settlement is intended as a compromise of all claims and disputes raised
by Trans Florida pertaining to the Project.The negotiated settlement amount of$300,000 will be paid from the available Project Budget.
THE ADMINIST ATIO •ECOMMENDS ADOPTING THE RESOLUTION.
Source ofA, • Amount Account
Funds: Q�_. 1. $62,476.21 423-2326-069357- Water&Sewer—Gulf Breeze Series 2006
2. $38,586.17 428-2326-061357- Stormwater Bonds Phase I
3. $62,173.00 431-2326-069357- 2011 Stormwater Bonds—Resolution 2011-27782
4. $136,764.62 432-2326-069357- 2015 Stormwater Bonds—Resolution 2015-28988
e=PI Total $300,000.00 Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Sign-Offs:
Depa nt ii'rector Assistant City anager City .nager
DM fj ETC JL
T:\AGENDA\2016\June\CIP owerNorthBayRoad.Trans Florida Settlement\Trans Florida.Settlement.LNBR.Sum - .doc
MIAMI BEACH AGENDAITE 7D
DATE /
\ A
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
C• MISSION MEMORANDUM
TO: Mayor Philip Levine and Members •; the City C.j mission
FROM: Jimmy Morales, City Manager I (.
DATE: June 8, 2016
SUBJECT: A RESOLUTION OF THE MAYO!' AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AUTHORIZING THE AYOR 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 $300,000 TO
SETTLE ALL OUTSTANDING CLAIMS PERTAINING TO BAYSHORE NEIGHBORHOOD NO
8B — LOWER NORTH BAY ROAD RIGHT OF WAY IMPROVEMENTS; FUNDING FOR THE
FINAL PAYMENT TO THE CONTRACTOR IS AVAILABLE FROM THE PROJECT BUDGET.
FUNDING
$ 62,476.21 Water& Sewer—Gulf Breeze Series 2006
$ 38,586.17 Stormwater Bonds Phase I
$ 62,173.00 2011 Stormwater Bonds— Resolution 2011-27782
$136,764.62 2015 Stormwater Bonds— Resolution 2015-28988
$300,000.00 Total
ADMINISTRATION RECOMMENDATION
The Administration recommends adopting the Resolution.
BACKGROUND
On December 8,2010, pursuant to Invitation to Bid(ITB)2-09/10,for the construction of the City of Miami
Beach Right-of-Way Infrastructure Improvement Program Neighborhood No.8B,Bayshore,Lower North
Bay Road Project,Trans Florida Development Corporation(Trans Florida or Contractor)was awarded a
contract(Contract) in the amount of$4,055,222.92.
On August 17,2011,Trans Florida was issued the First notice to proceed with pre-construction activities.
The Second Notice to Proceed(NTP 2)to mobilize and commence construction was issued on October
19, 2012. In the interim, the City made multiple revisions to the Construction Documents including
revisions to the pump station, piping material, electrical, water main, landscape, hardscape and
demolition plans until April 2012.The Project was scheduled to be substantially completed on December
13, 2013.
The project limits consist of the North Bay Road Corridor which is bounded by 20th Street to the South,
Biscayne Bay to the West, Alton Road to the east and north, including the intersecting streets within the
aforementioned project limits.
The Project Scope of Work at that time included improvements to the storm water collection and disposal
system,the construction of four(4)pressurized wells,two(2)storm water pump stations, improvements
to the water distribution system,demolition,site preparation,earthwork,roadway reconstruction,roadway
milling and resurfacing, sidewalk replacement, and signage and pavement markings.
Since the execution of the Contract on June 28, 2011, through the issuance of the Second Notice to
Proceed on October 19, 2012,Trans Florida obtained bonds and insurance for the project,commenced
preconstruction activities which included preparation and submittal of a project baseline schedule;
permitting activities; coordination with private utility companies; pre-construction audio-video and aerial
photography; project sign production and installation; mobilization, preliminary survey and site layout;
maintenance of traffic (MOT); selective demolition and exploratory digging/potholing; material
procurement,and entered into sub-contracts. Trans Florida also obtained dewatering permits, prepared
City Commission Memorandum—Trans Florida Settlement Agreement
June 8, 2016
Page 2 of 2
presentation material for community meetings, prepared and distributed Project notifications and
responded to residents' inquiries.
Following work performed pursuant to Notice to Proceed 1 and Notice to Proceed 2,the CITY determined
it was in the CITY's and its citizens' best interests to terminate the Contract for convenience in order to
allow time to redesign the Project in accordance with new Stormwater guidelines and under a design/build
agreement delivery method.
In its October 30, 2012 correspondence, the City Terminated the Agreement with Trans Florida for
convenience, effective November 11, 2012.As stipulated in the Contract,the termination letter advised
Trans Florida they would be paid for all work executed and expenses incurred prior to the termination
date.
On November 18, 2013, in response to the termination letter, Trans Florida submitted a claim in the
amount of $623,792.26, for the work completed and expenses incurred for the project prior to and
following termination of the Agreement.The costs outlined were primarily related to General Conditions.
In its February 20, 2014 correspondence,the City acknowledged the receipt of an invoice for the project,
and requested that Trans Florida submit their payment request in the contractual format, including all
supporting documentation to substantiate the request for payment.
On August 13, 2014, Trans Florida without any reasonable justification revised its claim increasing the
amount to $1,100,956.66. Trans Florida stated the revised claim now included monies attributable to
three unexecuted change orders(and profits for work not performed). Despite numerous requests, Trans
Florida failed to provide documentation to support its claim.
The City, in its correspondence dated December 18, 2014, denied Trans Florida's claim in its entirety
stating it was unable to properly evaluate the claim amounts since Trans Florida had failed to provide
supporting documentation.
CURRENT STATUS
On February 8,2016,Trans Florida submitted a revised Claim in the amount of$1,062,161.14(Exhibit A).
The Claim included costs for General Conditions, Additional costs for office overhead, engineer, field
personnel and management, and anticipated profits. Trans Florida requested the City re-evaluate the
claim.
SUMMARY
Subsequently, following good faith negotiations and based on the additional information provided, Staff
recommends a settlement in the amount of$300,000 (Exhibit B), for all direct costs, profit on indirect
costs,overhead,loss of earnings, loss of productivity,loss of bonding capacity,loss of opportunity and all
other indirect costs incurred by the Contractor.The Settlement is intended as a compromise of all claims
and disputes raised by Trans Florida pertaining to the Project. The negotiated settlement amount of
$300,000 will be paid from the available Project Budget.
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution.
ATTACHMENTS:
Exhibit A-Trans Florida's Claim
Exhibit B-Settlement Agreement
JM/ETC/r
T:\AGENDA\2016\June\CIP\LowerNorthBayRoad.TransFlorida Settlement\Trans Florida Development Settlement LNBR.memo.doc