RESOLUTION 91-20362 RESOLUTION NO. 91-20362
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING A
SETTLEMENT WITH GEORGE HYMAN CONSTRUCTION
COMPANY ("HYMAN") , WHEREBY HYMAN RELEASES THE
CITY FROM A $6.7 TO $8 MILLION DELAY DAMAGE
CLAIM ON THE CONVENTION CENTER EXPANSION
PROJECT AND ANY AND ALL OTHER CLAIMS
PERTAINING TO THE CONVENTION CENTER EXPANSION
CONTRACT, THE WEST WRAP AROUND CONTRACT AND
THE TOPA CONTRACT, IN CONSIDERATION OF THE
CITY PAYING HYMAN $990,000.
WHEREAS, the City entered into the following contracts with
George Hyman Construction Company:
1) Contract dated February 2 , 1987, between City, as Owner
and Hyman, as Contractor, for the construction and
expansion of the Miami Beach Convention Center under City
of Miami Beach Bid N. 20-86/89 .
2) Contract dated December 21, 1988 between City, as Owner
and Hyman, as Contractor, for the expansion of the Miami
Beach Convention Center West Wrap Around Contract, City
of Miami Beach Bid No. 141-87/89 .
3) Contract dated June 10, 1988 between City, as Owner and
Hyman as Contractor, for the Jackie Gleason Theater of
the Performing Arts Reconstruction, under City of Miami
Beach Bid No. 12-87/89 "TOPA Reconstruction" .
and
WHEREAS, Hyman made a delay damage claim against the City with
respect to item No. 1 above, the Convention Center Expansion
Contract; and
WHEREAS, a settlement has been negotiated with Hyman, whereby
the City would pay Hyman the sum of $990, 000 and Hyman would
release all of the three above construction projects and indemnify
the City for any claims of contractors, subcontractors and sub-
subcontractors of Hyman; and
WHEREAS, funds for this Settlement are available from Bond
Fund No. 5358 .
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the following settlement
with George Hyman Construction Company is hereby approved:
1) The City would pay Hyman $990, 000.
2) Hyman would release the three construction contracts set
forth above and indemnify the City against the claims of
any subcontractors or sub-subcontractors.
3) This Settlement is subject to such documentation as the
City Attorney may require.
PASSED and ADOPTED this 11th day of September , 1991.
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MAYOR
ATTEST:
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FORM APPROVED
CITY CLERK
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C:resoluti\hyman.rel l 7November 7, 1991 Date
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�ORATEDI* "V A CA TIONL A NU U. S. A. '
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OFFICE OF THE CITY MANAGER CITY HALL
1700 CONVENTION CENTER DRIVE
TELEPHONE: 673-7010
COMMISSION MEMORANDUM NO;:: -U.X7/
DATE: September 11, 1991
TO: Mayor Alex Daoud and
Members of the City Commission
FROM: Carla Bernabei Talarico
City Manager
SUBJECT:
CONVENTION CENTER EXPANSION PROJECT - DAMAGE CLAIMS
SETTLEMENT AND CLOSURE OF THE PROJECT
This Project, which began construction in early 1987 and is now
complete, consisted of the renovation and of new construction of
about 1 10 0� q 0 0 0 square feet. The Project ect was constructed under two
separate contracts; the first broken into two parts called Phase I
and Phase II. This distinction was necessary to keep two large
exhibit halls and meeting rooms available at all times during
construction. The second contract, called the West Wraparound, was
delayed initially because of the lack of funds. Funding became
• available in 1988 which allowed the second contract (West
Wraparound) to be awarded and timed in the same time frame as Phase
II.
The total construction cost for both contracts was $75,946, 000 and
an additional amount of $14,364,000 was spent for professional
fees, funding expenses, furniture, fixtures, equipment and a
several other items relating to a Project of this nature, bringing
the total cost to date to approximately $90,310, 000.
• In May of 1990, the George Hyman Construction Company (Hyman)
submitted to the City a formal delay damage claim in the
approximate amount of $6.7 million for the Phase I and Phase II
contract, and the City has been informed that other claims may be
pending which might bring the total over $8 million. This amount
is the sum of all claims either by Hyman or subcontractors involved
with the project.
When this claim was received, both TCCEA and the City Commission
directed the Administration and the City Attorney to review the
allegations made in the claim and further authorized the hiring of
High-Point Schaer to do an independent review.
This process involved many meetings with all parties involved and
spanned almost a year. The end result could be summarized by
saying that the information presented by Hyman raised concern with
the City but was not detailed enough to sustain a strong offensive
by the Contractor. After several meetings with members of TCCEA,
it was decided to furnish Hyman with a summarized version of the
High-Point Schaer report. TCCEA further directed the
Administration and the City Attorney representatives to meet with
Hyman to see if some mutual settlement was possible.
A final meeting was held between Eugene E. Lunger, Senior Vice-
President and Regional Manager, George Hyman Construction Company,
Vincent E. Grimm, Projects Coordinator and Patrick N. Brown, First
Assistant City Attorney - Transactions, for the City of Miami Beach
AGENDA
A2 ACP', 5
ITEM
9-7/-
DATE
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COMMISSION MEMORANDUM PAGE TWO SEPTEMBER 11, 1991
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in late July. The result of this meeting was an agreed upon sum of
$990,00-0 to be submitted to the members of TCCEA and the City
Commission for ratification. A formal meeting of TCCEA was held on
September 3 , 1991, and a =resolution was -pas-sed to---forward the
recommendation for settlement in the amount of $990,000 to the City
Commission. If approved, this agreement would indemnify and hold
harmless the City from any claims by Hyman or any of its
subcontractors or sub-subcontractors for the contracts for Phase I,
Phase II, West Wraparound and the contract for TOPA.
ADMINISTRATION RECOMMENDATION
It is the recommendation of the Administration, that the City
Commission approve the proposed settlement settling the claims with
the George Hyman Construction Company for an amount equal to
$990, 000 and that this settlement would indemnify and hold the City
harmless from any further claims by the George _Hyman. Construction
Company for any work performed by them or any of their
subcontractors or sub-subcontractors for all contracts with the
City of Miami Beach for Phase I, Phase II of the Convention Center;
West Wraparound contract for the Convention Center and the contract
for TOPA. This settlement would be subject to the City Attorney' s
approval of all documentation implementing the settlement. The
funds for this settlement are available from Bond Fund No. 358.
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SEP 06 '91 12:31 GEO HYMAN CONST.
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T GEOR.GE 14YMAN CoNsmucTIoN Co.
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3440 HOLLYWOOD BOULEVARD. SUITE 300
HOLLYWOOD,FLORIDA 33021
(305)981.4422
September -6,-1991
-1991
•
•
Patrick N. Brown
First Assistant City Attorney
Transactions
OFFICE OF THE CITY ATTORNEY
CITY OF MIAMI BEACH, FLORIDA.
P. 0. Box 0
} Miami Beach, FL 33119-2032
SUBJECT: Convention Center Expansion
Project --Damage Claims _
Settlement and Closure
of Project
Gentlemen:
• - This is to advise that
we are in concurrence with the September 11 ,
•
1991 draft commission memorandum on the above subject which was
• forwarded to us by Mr. Vince Grimm (copy attached) .
We agree to its terms and conditions and will accept the $990, 000. 00
settlement offer based upon its payment within 45 days of the
commission' s approval .
Very truly yours ,
=�^
THE =* : UY, .- ` •ONSTRUCTION CO.
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B. B. :-
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Senior Vice President
and Regional Manager
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RELEASE OF CONSTRUCTION PROJECTS
KNOW ALL MEN BY THESE PRESENTS:
That in consideration of nine hundred ninety thousand
dollars ($990 , 000) and other good and valuable consideration, the
receipt and sufficiency of which consideration is hereby
acknowledged, the undersigned, The George Hyman Construction
Company ("Hyman") , and its successors and assigns , for and on
behalf of Hyman and its contractors , employees , attorneys,
y
agents , and representatives , does hereby release , remise, acquit,
satisfy and forever discharge the City of MiamiQ Beach
(hereinafter referred to as the "City") , a Florida municipal
corporation, of and • p
P from any and all claims , controversies,
disputes , defenses , crossclaims , counterclaims , causes of action,
suits , debts , damages , accounts, reckonings , bonds , covenants,
contracts , agreements , promises , costs , expenses , compensation,
liens , judgments , executions , obligation, liabilities and demands
whatsoever, in law or in equity, in contract or in tort, whether
known or unknown, including negligence , and of and from any and
all matters and things of any nature whatsoever which Hyman may
have had at any time up to and including the date hereof or which
Hyman may in the future have or claim against the Cityarising
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out of or in connection with the following construction '
roects:
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1 . Contract dated February 2, 1987 , between City, as Owner
and Hyman, as Contractor, for the construction and
expansion of the Miami Beach Convention Center under
City of Miami Beach Bid No. 20-86/89, including, but not
limited to , any written or unwritten claims for delay
damages made by Hyman against the City.
2 . Contract dated December 21 , 1988 between City, as Owner,
and Hyman, as Contractor, for the expansion of the Miami
Beach Convention Center West Wrap Around Contract , City
of Miami Beach Bid No. 141-87/89.
3. Contract dated June 10, 1988 between City, as Owner and
Hyman as Contractor, for the Jackie Gleason Theater of
the Performing Arts Reconstruction, under City of Miami
Beach Bid No . 12-87/89 "TOPA Reconstruction".
The foregoing contracts are collectively referred to as the
"Construction Contracts".
This Release Agreement operates as an absolute release and
discharge of the City of and from all matters and things alleged
in or pertaining to the Construction Contracts , of and from all
right , title , interest , claim and demand in and to the
Construction Contracts , and of and from all matters and things
g
provided in or pertaining to the Construction Contracts . This
Release Agreement further operates as an absolute release and
discharge of the City of and from any and all claims ,
controversies , disputes, defenses , counterclaims ,
crossclaims ,
causes of action, and demands , direct or indirect, of which Hyman
is now aware or should, through the exercise of reasonable
diligence , be aware and of which Hyman may become aware
respecting the Construction Contracts .
This Release Agreement has been made by Hyman and accepted
by the Citysolelyand exclusivelybenefitp•
for the of the City
and no other legal person shall be benefitted hereby.
Additionally and specifically, no legal person other than the
City shall , under any circumstances , be deemed to be a
beneficiary, including an incidental or third partybeneficiary,
.
of the provisions hereof or of the release and discharge
evidenced hereby.
Hyman hereby expressly acknowledges and agrees that the
facts in respect to which this Release Agreement has been
executed, delivered and accepted may hereafter prove to be other
than or different from the facts in that connection now known or
believed by Hyman to be true . Hyman further hereby accepts and
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assumes the risk of the facts proving to be so different, and
agrees that this Release Agreement and the release evidenced
hereby shall in all respects be and remain effective after the
effective date hereof and not subject to cancellation or
rescission by any such difference in facts .
The provisions of this Release Agreement , and the
consideration paid, transferred or received in connection with
the execution and delivery hereof, represent the amicable
resolution, settlement and compromise of disputed claims , and
nothing provided herein is intended to be, nor shall the same
constitute or be construed to be an admission against interest or
an admission of liability on the part of Hyman or the City.
Y
Hyman expressly waives notice by the City of acceptance of
this Release Agreement and of the release evidenced hereby .
Y
Hyman expressly acknowledges having received advice of counsel
regarding the legal effect of executing and delivering
counterparts of this Release Agreement.
Hyman hereby agrees to indemnify and defend the City from any
damage claim or loss which may arise by virtue of anyclaim
by
any subcontractor, sub-subcontractor, supplier of labor and/or
material , or any person or entity claiming by, through or under
}--.yman, arising out of the Construction Contracts for payment for
kirk or materials furnished through the date hereof.
- 2-
This Release Agreement is limited to the Construction
Contracts and is not intended to release any claim that Hyman
might have against the City arising out of other projects or
contracts , if any.
Notwithstanding the foregoing, in the event the City asserts
a claim against Hyman arising out of Hyman having been the
contractor under the Construction Contracts , nothing contained in
this Release Agreement shall prevent or preclude Hyman from
raising the defenses of design error, or negligence by the City
or its Consultants ; and if some third party (other than a
subcontractor, sub-subcontractor, supplier of labor and/or
material or any person or entity claiming by, through or under
Hyman) asserts a claim against Hyman arising out of Hyman having
been the contractor under the Construction Contracts , Hyman shall
have the right to assert a claim against the City for
indemnification and/or contribution arising out of design error
or negligence by the City or its Consultants .
IN WITNESS WHEREOF, the undersigned has executed this
Release Agreement in several counterparts , each of which shall be
deemed to be an original hereof, as of this /'- `/; day of
November, 1991 .
Signed, sealed and
delivered in the
presence of:
THE GEORGE HYMAN
CONSTRUCTION COMPANY,
a cor orMaryland a '
y p mon
-JDyE. E. Lunger
Senior Vice President
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-3-
01'IGINAL
RESOLITION NO. 91-20362
Approving a settlement with George Hyman
Construction Company ("Hyman") , whereby
Hyman releases the City form a $6. 7 to
$8 million delay damage claim on the
Convention Center Expansion Project and
any and all other claims pretaining to
the Convention Center Expansion Contract,
the West Wrap Aroung Contract and the
TOPA Contract, in consideration of the
City paying Hyman $990,000.