2002-24949 Reso
RESOLUTION NO. 2002-24949
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AFFIRMING THE CERTIFICATION OF DEFAULT BY THE CITY AND,
PURSUANT TO ARTICLE 8.8 OF THE CONTRACT WITH CAPRICORN CONSTRUCTION
CORPORATION (CONTRACTOR), HEREBY REMOVING THE PROSECUTION OF WORK
FROM THE HANDS OF THE CONTRACTOR AND, PURSUANT TO THE AUTHORITY
GRANTED WITHIN THE CONSTRUCTION CONTRACT FOR THE THEATER OF THE
PERFORMING ARTS (TOPA) PORTECOCHERE PROJECT (PROJECT), AUTHORIZING
THE CITY MANAGER OR HIS DESIGNEE TO TAKE ANY AND ALL NECESSARY ACTIONS
TO EXECUTE THE PROSECUTION OF THE REMAINING WORK, AS NECESSARY, AT
THE RECOMMENDATION OF THE CITY'S CONSULTANT, IRA GILLER, AlA, RELATIVE
TO THE PURCHASE OF THE NECESSARY GOODS AND SERVICES REQUIRED FOR THE
PROSECUTION OF THE REMAINING WORK FOR THE COMPLl!.TION OF THE PROJECT,
PROVIDED THAT SUCH CONTRACTS, PURCHASE ORDERS, CHANGE ORDERS AND
OTHER DOCUMENTS SHALL BE IN SUBSTANTIAL ACCORDANCE WITH THE TERMS
AND CONDITIONS OF THE CURRENT CONSTRUCTION CONTRACT WITH THE
CONTRACTOR, AND SHALL NOT EXCEED THE CURRENT AMOUNT PREVIOUSLY
APPROPRIATED BY THE MAYOR AND CITY COMMISSION FOR THIS PROJECT.
WHEREAS, Invitation to Bid No. 13-00/01, for the construction of an extension to the Portecochere at the Jackie
Gleason Theater of the Performing Arts (Project), was issued on February 6, 2001, with an opening date of March 13.
2001; and
WHEREAS, pursuant to this Bid. a construction contract (Contract) was awarded to Capricorn Construction
Corporation (Contractor), as the lowest and best bidder, in the amount of $137.777; and
WHEREAS, work on the Project is presently more than 90% complete; however. the Contractor has abandoned
the prosecution of the work; and
WHEREAS, pursuant to Article 8,8 of the Contract. the Administration finds that the Contractor is in default
pursuant to the terms of the Contract. and recommends that the prosecution of the work be removed from the Contractor,
and that the City Manager or his designee be empowered to take any and all actions necessary for the prosecution of the
work, at the recommendation of Ira Giller, AlA, the City's Consultant; and
WHEREAS. the previously appropriated Project retainage is available to fund the remaining work.
NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, that the Certification of Default by the City. pursuant to Article 8,8 of the
Contract with Capricorn Construction Corporation (Contractor) is affirmed; the further prosecution of work is hereby
removed from the Contractor and, pursuant to the authority granted within the Construction Contract between the City of
Miami Beach and Capricorn Construction Corporation for the Theater of the Performing Arts (TOP A) Portecochere Project
(Project), the City Manager or his designee is hereby authorized to take any and all actions necessary for the prosecution of
the remaining work, at the recommendation of the City's Consultant. Ira Giller, AlA. relative to the purchase of the goods
and services required for the prosecution of the remaining work for the completion of the Project, provided that such
contracts, purchase orders. change orders and other documents shall be in substantial accordance with the terms and
conditions of the current Construction Contract with the Contractor, and shall not exceed the current amount previously
appropriated by the Mayor and City Commission for the Project.
~
APPROVED /IS TO MAYOR
FORM & LANGUAGE
& FOR CUTION
PASSED and ADOPTED this 31st day of
July
.2002.
ATTEST:
~aP~
CITY CLERK
T'IAgendaI2OO211u131\Regular\TOPAPonSUMM.DOC
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CITY OF MIAMI BEACH
1700 Convention Center DrIve, Miami Beach, FL 33139
http://cl,mlaml-beach.ft,U$
Capital Improvement Projects
Telephone (305) 673-7071
Facsimile (305) 673-7073
July 19, 2002
Mr. Hector Castro
President
Capricom Construction Corp.
2883 SW 69th Ct.
Miami, FL 33155
-VII FacsImIe end CeItfIfed Mall
RE: Contract No, 13-00/01
Theater of Performing Arts (TOPA) Project
NOTICE OF DEFAULT
Dear Mr. Castro:
Based upon the attached letter from Mr. Ira Giller, Giller & Giller, Inc. (Architect), The City of
Miami Beach has declared Capricom Construction Corporation in Default of the above
referenced Contract for failure to comply with said contract in a timely manner.
To date, the Work has not been substantially completed nor has the project obtained final
approvals from the City's Building Department. Your substantial completion date through
Change Order No.2 was February 11, 2002. The work was not completed by that date. The first
punchlist inspection occurred on May 12, 2002 resulting in many incomplete items. A second
punchlist was developed on June 7, 2002, which has yet to be resolved. Additionally,
Capricom's response letter dated July 15, 2002 to Mr. Ira Giller, does not provide any
assurances that the project will be fully completed immediately.
In light of the above, the City has no other option than to declare you in Default. Failure to fully
complete the remaining items of said project and obtain required approvals from the City's
Building Department, including substantial and final completion certification by the Architect, by
the end of business on July 29, 2002, will cause the City to act under section 8.8 of your
contract.
Demand is hereby imposed upon you to respond immediately.
Attachment
c: Jorge Gonzalez, CIty Manager
Munay Dubbln, City Attorney
Bob Middaugh, AssIstant City Manager
.........._~.....CGonItllItor
Carl Hastings, Construction Manager
John J, Barry, Mld-State Surety Company
Ira Giller, Giller & Giller
F:'CAP~AZOSJ\TOPA ..._.\07-19-02 _loCeprlc:am,cloc
Jul 18 02 02:18p
Giller.. Giller
305-538-5921
p.l
Giller & Giller, Inc.
The Giller Building
975 Arthur Godfrey Road
Miami Beaoh. Florida 33140
(305) 538-6324 falllmodem (305) 538-5921
Reg, #M C001364
FAXMEMO
Project: NEW PORTECOCHERE
Theater of the Performing Arts (TOPA)
City of Miami Beach
To Carl Hastings
CMB/CIP
From, Ira Giller, A- I. A- ~
Date: 7/18/02
Comm, No:
95203
Pages transmitted including this page: 3
Attached is Capricorn's letter of 7/15/02 and my response today.
Capricorn Construction's response does not provide any assurance that the project will be fully
completed immediately, A capable contractor should be able to complete the work in 7 -10
days.
In light of Capricorn's inability to complete this project on a timely basis (it's 5 months late now),
it is my recommendation that the City declare the contract in default pursuant to the terms of
the contract.
ARCHITECTS
INTERIOR DESIGNERS
CONSTRUCTION MANAGERS
Jul IB 02 02:1Bp
Giller" Giller
305-53B-5921
p.2
Giller & Giller, Inc.
The Giller Building
975 Arthur Godfrey Road
Miami Beach, Florida 33140
(305) 538-6324 fax/modem (305) 538-5921
Reg, #AA C001364
~002
Mr, Hector Castro
President
Capricorn Construction Corp.
2883 SW 69th Ct.
Miami, FL. 33155
VIA FAX 305-266-3373
Re: NEW PORTECOCHERE
Theater of the Performing Arts (TOPA)
City of Miami Beach
Comm, No. 95203
Dear Mr. Castro:
In response to your letter fax of 7/15/02. please be advised as follows:
1. The continuous daily rain you refer to lasted over a two week period from
approximately the end of June until July 12, 2002. The comJ.>letion of the work
should have been undertaken immediately after our June 7 inspection during the
three weeks of good weather. The weather this week has also been good.
2, Pursuant to the terms of the contract with the City, there is no such condition as
"de Facto substantially complete", Your Substantial Completion date through C.O.
#2 was February 11, 2002. The work was not completed by that date. The first
punchlist inspection with Carl Hastings on May 12, 2002 had many incomplete
items. As a result, the project was not deemed substantially complete in May.
3. The 6f7/02 punchlist detailed the work still incomplete on that date. It included
items from Mr. Hastings inspection as well as new items.
4. A copy of the Certificate of Completion from the Building Department has not
been furnished to this office.
5. Items #1 1, 12, and 13 are not completed, I have not received the documents.
The Work has not been accepted as Substantially Complete as yet. Your failure to do SO
may result in the City declaring your contract in default. The City will then have the work
completed by another contractor and backcharge you for the costs and damages as well
as seek other remedies.
Cc: Carl Hastings/CMB
ARCHITECTS
INTERIOR DESIGNERS
CONSTRUCTION MANAGERS
!
.!
II Capncorn ConstlUCtion Corp.
2883 SW 69th. CT.
Miami, Florida 33155
FAX
To:
~----'---_._.- ..,..- ,
Mr. Ira Giller
Projcct Architect
TOP A Pone-cochere.
fax no: 305-538-5921
I
L
F..-:
Hector A. Castro
Date:JuIy 15,2002
Number of pages:l
Phone: 305-260-4464
Fall: 305.266.3373
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I:~ :': m YO. kuc<~ ;wy ,~ ----- ----
I have been sick and in the hospital for some time now. In addition, it has been raining every day fOf' over 1 1/2
months and it is still raining. Also the theater has had functions that made work not possible. lbe punch list
items that are left over require at least an uninterrupted week of good weather and work so that they can be
done. dtyed and finished.
Conttary to your claim, this project has been "de facto" substantially completed before February 11,2002 and a
punch list was generated by Mr. Hastings some time ago. We worked on this punch list and covered 95% of
the items generated. The second punch list that you generated on 6nl02 was II rt:petition of tile items left over
(rom Mr. Hastings' list.
(n addition. this project has been finally accepIed as completed by the Building Department as demonstrated by
the final (nspection results. Items 11,12 and 13 have been completed.
,I do not know which fax number you are using, however. if you need to communicate with us you should use
the 305-266-3313 number whicb has aI:ways been our main fax number. You may have been using a diseon-
nected number. Our telephones are rcmpo~ly out of Drder but our fax is working.
( cannot predict a date to complete the punch list items because. ., you well know. it is still raining every day.
However, if the City feels that it must deQlare our contract in default and finish those pwu:h list itemS them-
selves that is, of course, their prerogative,
cc: Mr. Carl Hastings! eM8
-..~.._,.. -~ ,. .._.....~.__.._.._.._..__._..._-_..._--_. .-...---. ..-.----
J
f~;I:<r '<~<PGiII~';~~~'n~~" ..,
The Giller Building
975 Arthur Godfrey Road
Miami Beach, Florida 33140
I (305) 538-6324 fax/modem (305) 538-5921
" Reg. #AA C001364
f
,.....
Jl:)
"
July 2, 2002
Mr, Hector Castro
President
Capricorn Construction Corp,
2663 SW 69th Ct.
Miami, FL. 33155
Re: NEW PORTECOCHERE
Theater of the Performing Arts (TOPA)
City of Miami Beach
Comm, No, 95203
Dear Mr. Castro:
Enclosed is my Field Report of June 7,2002 which I have attempted to fax to you at
least 6 times, None have gone through,
It has been over three weeks since the list of incomplete work was prepared, At this
date, the work is still not complete,
Your attention is also directed to the liquidated damages clause of your contract and
your liabilities thereunder, The Work has not been accepted as Substantially Complete
as yet. Your completion date through C.O. #2 was February 11, 2002.
At the request of the City through Carl Hastings, Project Manager, you are directed to
complete the work as set forth in the above Field Report no later than July 15, 2002.
Failure to do so will result in the City declaring your contract in default. The City will then
have the work completed by another contractor and backcharge you for the costs and
damages as well as seek other remedies,
I have attempted to contact you by telephone as well. Both your office and cell phones
, ring with no answer.
Ira . Giller, A.IA
President
Cc: Carl Hastings/eMB
ARCHITECTS
INTERIOR DESIGNERS
CONSTRUCTION MANAGERS
CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
m
-
Condensed Title:
A Resolution affirming the certification of default by the City and pursuant to article 8.8 of the contract with
Capricorn Construction Corporation (Contractor), hereby removing the prosecution of work from the hands of
the Contractor for the Theater of the Performing Arts (TOPA) Portecochere Project (Project), authorizing the
City Manager or his designee to take all necessary actions to execute the prosecution of the remaining work,
relative to the purchase of the necessary goods and services required for the completion of the project.
Issue:
Shall the Mayor and City Commission permit the Administration to take control of the TOPA Portecochere
Project and complete the work.
Item Summary/Recommendation:
The Contract to construct a new canopy over the TOPA driveway was to be completed by April 14, 2002.
The contractor, Capricorn Construction Corp. has brought the work to over 90% completion, and has
stopped working. Parts of the work completed are of poor workmanship. The Architect, Ira Giller, AlA, has
recommended that the City declare the contract in default, and complete the work using other resources.
The City holds $16,651 from the project retainage; this amount is believed sufficient to complete the
remaining work. The Administration recommends that the Mayor and City Commission approve the
attached Resolution to take the prosecution of the work out of the hands of Capricorn Construction
Corporation, and permit the Administration to take the necessary action to complete the remaining work.
This action will permit the City to see this project to completion.
Advisory Board Recommendation:
I N/A
Financial Information:
Source of Amount " Account APProved
Funds: 1 $1 6,651 8.0. 16033
( 10 2
3
l ." 4
Fin nce Dept. Total $1 6,651
City Clerk's Office Legislative Tracking:
I Carl Hastings
Sign-Offs:
Department Director
AGENDA ITEM
DATE
!(7:r
7-3/..(),-
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www.cLmiami-beach.fl.us
To:
From:
Subject:
COMMISSION MEMORANDUM
Mayor David Dermer and
Members of the City Commission
Jorge M. Gonzalez \..~
City Manager r-' U
Date: July 31, 2002
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AFFIRMING THE CERTIFICATION
OF DEFAULT BY THE CITY AND PURSUANT TO ARTICLE 8.8 OF THE
CONTRACT WITH CAPRICORN CONSTRUCTION CORPORATION
(CONTRACTOR), HEREBY REMOVING THE PROSECUTION OF WORK
FROM THE HANDS OF THE CONTRACTOR AND PURSUANT TO THE
AUTHORITY GRANTED WITHIN THE CONSTRUCTION CONTRACT
FOR THE THEATER OF THE PERFORMING ARTS (TOPA)
PORTECOCHERE PROJECT (PROJECT), AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO TAKE ANY AND ALL NECESSARY
ACTIONS TO EXECUTE THE PROSECUTION OF THE REMAINING
WORK, AS NECESSARY, AT THE RECOMMENDATION OF THE
CONSULTANT, RELATIVE TO THE PURCHASE OF THE NECESSARY
GOODS AND SERVICES REQUIRED FOR THE PROSECUTION OF THE
REMAINING WORK FOR THE COMPLETION OF THE PROJECT,
PROVIDED THAT SUCH CONTRACTS, PURCHASE ORDERS,
CHANGE ORDERS AND OTHER DOCUMENTS SHALL BE IN
SUBSTANTIAL ACCORDANCE WITH THE TERMS AND CONDITIONS
OF THE CURRENT CONSTRUCTION CONTRACT WITH THE
CONTRACTOR, AND SHALL NOT EXCEED THE CURRENT AMOUNT
PREVIOUSLY APPROPRIATED BY THE MAYOR AND CITY
COMMISSION FOR THIS PROJECT.
ANALYSIS
The Portecochere at the Jackie Gleason Theater of the Performing Arts (TOPA) is
designed to be an extension of the existing canopy covering the front entrance and the
sidewalk area in front of TOPA. The old canopy sheltered only one vehicle, while the new
canopy covers the driveway sufficiently to shelter three vehicle lanes with three vehicles in
each lane.
Invitation to Bid No. 13-00/01 for the Construction of a New Portecochere for the Theater of
the Performing Arts (TOPA) was issued on February 6, 2001, with an opening date of
March 13, 2001. A contract for the work was awarded on April 18, 2001, pursuant to
Commission Memorandum No. 194-01 to Capricorn Construction Corporation (Capricorn).
A Notice to Proceed was issued to Capricorn on May 31,2001, with a starting date of June
7, 2001. The starting date was delayed at the request of TOPA management due to the
pending Microsoft Show in July, and the Source Awards event in August.
City Commission Memorandum
July 31,2002
TOPA Porte-Cochere
Page 2 of 3
The Contractor was given permission to begin work on August 20, 2001, with a 90-day
contract term for completion of the work. Due to supplier delays for the delivery of the
structural steel for the roof deck (53 days), the fabrication of letters for the facade sign and
neon backlights (48 days) as part of a change order, additional time for roofing (5 days),
and time to gain approval of change orders 1 and 2 (30 days), as well as time added due to
TOPA scheduled events, including the Boat Show, which prevented work for a number of
days, the project completion date was extended until April 14, 2002.
On March 20, 2002, the Mayor and City Commission passed a resolution approving the
addition of a project contingency for the contract Standing Order. The additional funds
were used for the purpose of re-roofing the old canopy area to create a unified roof over
the entire Portecochere, and for new letters and backlighting for an identity sign on the
facade of TOPA. Subsequent to the approval of the additional funding, the roofing work
was completed, and the sign letters were procured and installed. The total project budget
after this addition of the contingency allowance is $166,514.
The Contractor ceased work on the job in May. Repeated telephone calls and fax
communications went unanswered until recently. The Owner and President of the
Contractor sent a fax on July 15, 2002, reporting that he had been too ill to complete the
work, and that the recent rainy weather would have prevented work in any case. The
Contractor offered no assurance of whether he intends to finish the work, or of when the
City might expect it to be completed. Both the Architect and the Administration are of the
opinion that the contractor has failed to pursue the completion of the work. There are
coming events at TOPA, which require that the work on the front entrance area be
completed soon to maintain the appearance of TOPA properly. Copies of correspondence
with the contractor are attached.
Inspection of the work reveals that some ofthe work is of poor workmanship, and needs to
be re-done or touched up to be acceptable. The consulting Architect, Ira Giller, AlA, has
prepared a "punch list" of remaining items of work needed to finish the project. The City
currently retains $16,651 in funding, which if the attached resolution is approved, will be
available for completion of the project.
The Administration is now proposing to remove further prosecution of the work from the
contractor, and arrange for the remaining elements of the work to be completed by others
as allowed under the Contract. It is estimated that the retained funds should be sufficient
to complete the work, and to compensate the Consultant for any additional Construction
Administration services required.
City Commission Memorandum
July 31, 2002
TOPA Porte-Cochere
Page 3 of 3
RECOMMENDATION:
The Administration recommends that the Mayor and City Commission approve the
attached Resolution to take the prosecution of the work out of the hands of Capricorn
Construction Corporation, and permit the Administration to take the necessary action to
complete the remaining work. It is anticipated that Property Management will complete the
remaining work. However, it may be necessary to utilize a contractor for some portions.
This action will permit the City to see this project to completion.
JMG/RCMITH/JDP/CH
T:\AGENDA\2002\JUL3102IREGULARITOPAPortMEM2.doc