Amendment No.1 To The Design/Build Agreement with Ric-Man Construction Florida, Inc. JAN 2 5 2023 scanned ;•
AMENDMENT NO. 1 2 0 2 2 - 3 2 3 8 4
TO THE
DESIGN/BUILD AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
RIC-MAN CONSTRUCTION FLORIDA, INC. DEC 0 9 2022
This Amendment No. 1 (this"Amendment No. 1")to the Design/Build Agreement dated
June 14, 2017, between the CITY OF MIAMI BEACH, a municipal corporation existing under •
the laws of the State of Florida(the "City"), and Ric-Man Construction Florida, Inc., ("Ric-Man"
or"Design/Builder"), is made and entered this day of ,2022. This Amendment
No.1 amends the terms of the South Agreement(as defined below).
RECITALS
WHEREAS, the West Avenue Improvements Phase II Project(the "Project") represents
a comprehensive neighborhood improvement program, focused on addressing challenges
associated with climate impacts and aged infrastructure; and
WHEREAS, the proposed improvements within the West Avenue neighborhood include
the raising of the paved roadway, harmonization to the adjacent properties, installation of a new
robust stormwater drainage collection and pumping system, replacement of the-existing water
distribution/transmission systems and gravity sanitary sewers, installation of new street lighting, is
pedestrian lighting, replacing existing and installing a new signalized intersection with mast arms,
new landscaping, irrigation and construction of a new baywalk and the limits of the improvements
are West Avenue between 8 Street and Lincoln Road, including side streets, and Bay Road
between 14 Street and Collins Canal; and
WHEREAS, due to the size of the neighborhood, the Project was divided into two
contracts, North and South, with 14th Street being the dividing line; and
WHEREAS, on March 22, 2017,the Mayor and City Commission adopted Resolution No.
2017-29799, awarding the design/build services agreement (the "South Agreement") issued
pursuant to RFP 2016-090-KB to Ric-Man Construction Florida, Inc("Ric-Man"),for West Avenue
Improvements Phase II South of 14th Street(the"South Project")with the guaranteed maximum
price of$12,809,754, including a 10% contingency; and
WHEREAS, between January 11, 2018 and June 23, 2021, to account for increased
design and construction costs and time extensions necessitated by a series of design changes
required by the City and/or regulatory agencies having jurisdiction over the Project, the City and
Ric-Man executed Change Order Nos. 1, 2, 3A, 3B, 4, 5 and 6 to the South Agreement resulting
in a new guaranteed maximum price of$25,938,237.85 and increasing the.Contract Time to 2163
days; and
WHEREAS, following the execution of Change Order No. 6, certain developments,
including the need to address the concerns of residents regarding the manner in which the
elevated roadways are to be harmonized with their properties, have prevented the
1
commencement of construction for either the South Project or the portion of the Project located
to the north of 14th Street(the "North Project"); and
WHEREAS, inflationary market conditions overall, and volatility in the construction
industry, have resulted in price escalation for commodities and labor that have not been
accounted for in the Change Orders issued to date; and
WHEREAS, the South Agreement and the North Agreement are guaranteed maximum •
price contracts, but Ric-Man has requested that the City make certain financial concessions to
take into account construction cost escalations that have occurred as a result of unforeseen
delays to the Project;,and
WHEREAS, due to the limited funding available to the City for the Project, to
accommodate Ric-Man's request for a change 'order to reflect the current conditions in the
construction industry, the City and Ric-Man have agreed to suspend the South Project and to
reduce the Contract Price for the South Agreement by $13,998,920 (including the allocable
portion of the City's contingency) pursuant to the issuance of a deductive change order in order
to make those funds available for the North Project; and
WHEREAS, Ric-Man desires to proceed with the North Project and the Parties agree that
proceeding with the North Project provides sufficient mutual consideration for the suspension of
the South Project and the deductive change order to the South Agreement; and
WHEREAS, Ric-Man acknowledges and agrees that the City will determine, in its sole
and absolute discretion, whether to proceed or not to proceed with the South Project; and
WHEREAS, if the City elects to proceed with the South Project, the Parties will have to
agree on the Contract Price and the Contract Time applicable to the South Project through a
further change order to the South Agreement.
NOW, THEREFORE, in consideration of the premises, and other good and valuable,
consideration,the receipt and adequacy of which are hereby acknowledged,the Parties agree as
follows:
1. RECITALS; HEADINGS; DEFINED TERMS
The foregoing Recitals are true and correct and are incorporated herein by reference.
The paragraph headings of this Amendment No. 1 are for convenience and reference
only and none of such headings shall limit or amplify the meaning, application or
construction of any of the provisions of this Amendment No. 1. Capitalized terms not
defined herein shall have the meanings assigned such terms'in the South Agreement.
References in this Amendment No. 1 to the term "Section" are references to numbered
sections in the South Agreement unless otherwise indicated.
2. ACKNOWLEDGMENT OF FULL PAYMENT
Design/Builder warrants and represents to the City that (a) Design/Builder has been
paid in full•for all Work performed through the date of this Amendment No. 1 including
any costs associated with the suspension of the South Project (b) payment has been
made to Consultant, all Subcontractors, Design Subconsultants, consultants,
2
employees, laborers and material suppliers, at all tiers, for all labor, services, materials
and equipment furnished by or though Design/Builder for the South Project; and (c) all
contracts executed by Design/Builder in connection with the South Agreement and/or
the South Project have been suspended, completed or terminated.
3. SUSPENSION OF SOUTH AGREEMENT
The City and Design/Builder agree that the South Agreement is suspended effective
immediately, and Design/Builder acknowledges and agrees that it shall not prosecute
any additional Work pursuant to the South Agreement or otherwise relating to the South
Project, or be entitled to receive any additional payment pursuant to the South
Agreement or in respect of the South Project, unless and until (a) the City provides
written notice to Design/Builder advising that it wishes to proceed with the South Project
and to re-engage in discussions with Design/Builder(the"Re-Engagement Notice")and
(b) the City and Design/Builder execute a Change Order ratifying or amending the
existing scope of the South Agreement and specifying the new Contract Price and
Contract Time to apply to the South Project. It is understood between the parties that
the design for the South Project is not complete as of the Effective Date of this
Agreement. Any such Change Order to re-start the South Project will address the
remaining outstanding design elements to the extent Design/Builder's design
consultant, CES, demonstrates to the City why such incomplete design elements are
not contemplated by the South Agreement prior to this suspension or are not
contemplated by Change Order No. 7 or any other prior Change Orders.
For the avoidance of doubt, the City shall have the sole and absolute discretion to
determine whether to proceed or not to proceed with the South Project and, if the City
determines that it wishes to proceed, it shall have no obligation to proceed with
Design/Builder and Design/Builder has no obligation to proceed with the South Project.
If the City has not provided the.Re-Engagement Notice to Ric-Man by or before January
1, 2024, the City shall be deemed to have terminated the South Agreement for
convenience pursuant to Section 16.1. If the City is deemed to have terminated the
South Agreement for convenience pursuant to the foregoing or the City issues a Notice
of Termination for Convenience pursuant to Section 16.1 prior to January 1, 2024, then
the provisions of Section 16.1 shall apply, provided, (a) because Design/Builder has
been paid in full,for all Work completed through the date of this Amendment No. 1 and
will not be performing additional Work, or entering into contracts or making other
commitments with respect to the South Project unless the. City elects to proceed
therewith as contemplated above, then notwithstanding anything in Section 16.1 or any
other provision in the South Agreement to the contrary, Design/Builder shall not be
entitled to receive any payment of any kind or nature that:may otherwise be due in
connection with a termination for convenience, (b) the Design/Builder will provide City
with all design documents as currently exist at that time and (c) because the
Design/Builder has been paid one hundred percent (100%)for design documents that
are ninety-six and forty-three hundredths percent (96.43%) complete, Design/Builder
shall make payment to the City. in the amount of $119,168.29 at the time of such
termination, such amount representing 3.57% of payments made to Design/Builder
through the date of this Amendment No. 1.
For the avoidance of doubt, if the City elects to proceed with the South Project and the
City and Ric-Man enter into a Change.Order as contemplated in this Section 3,the City
shall continue to have the right to terminate the South Agreement for convenience in
accordance with the provisions of Section 16.1.
3
4. MODIFICATIONS
a. Promptly following the full execution of this Amendment No: 1, the .City and
Design/Builder shall execute Change Order No. 7 to the South Agreement:in the
:forma attached hereto as.Exhibit "A" to reduce the Contract Price for the South
Agreement by $13,998,920,01 (including:the allocable portion ::of the City's:.
• contingency) in order to make those funds available for the North Project:
b. :.Design/Builder hereby releases the City from all Claims, demands, or coupes of
action arising out of the transactions, events and occurrences giving rise to this •
Amendment:No:.1.
c. This Amendment No: 1 sets forth the entire agreement of the parties with respect to
• the 'subject. matter.hereof: All prior or contemporaneous understandings and
discussions, whether written or verbal, regarding the subject matter hereof are
entirely superseded by this Amendment No.. 1: If there is any conflict between the
terms and conditions of the South Agreement and those set forth in this Amendment
' No. 1, the terms,and conditions in this Amendment No: 1 shall govern: : .
5: RATIFICATION
Except as amended by the express provisions of this Amendment No. 1,the terms and :
conditions of the South Agreement are hereby ratified and confirmed by.theCity and the Design/Builder and shall remain in full force and effect..
IN WITNESS.WHEREOF, the parties hereto have caused this Amendment No: 1 to
be executed in their names by their duly authorized-offcials as ofthe date first set forth above:
ATTEST:.
CITY OF:MIAMI'BEACH, FLORIDA -
DEC :0. 9 2022 .
.
Rafael E. „,--"Dan Gelber
Granado, City Z 6 3 �� � B fyor
`Clerk UJCORFi OI AT
.
ATTEST: DtSIGN/BUILDER:
R1 AN CONSTRUCTION DA, INC.6, „ .,
Secretary President
.0 • •
Print.Name Print Name
•
Attachment: Exhibit"A"=•Change Order No. 7 to South:Agreement
APPROVED TO
FORM&LANGUAGE
&FOR'EXECUTION
1•I �3o1zozi.
�,�
_ City Attorney• Dote
EXHIBIT
CHANGE ORDER NO. 7 TO SOUTH AGREEMENT
MIA/\AI BEACH WEST AVENUE-PHASE II
PROJECT NAME: IMPROVEMENTS SOUTH OF 14TH ST
A/E CONSULTANT: CES Consultants, Inc.
CONTRACTOR: Ric-Man Construction Florida, Inc.
RPR/CEI: Chen Moore and Associates, Inc.
CHANGE ORDER NO. 7 DATE: 10/06/2022
You are hereby directed to make the following thanes to the Contract Documents:
DESCRIPTION OF This Change Order,pursuant to Amendment No.1 to the Agreement,and as resolved and authorized by the City
CHANGE: Commission on October 26,2022,effectively and immediately suspends the Agreement in its entirety. Further,as
stipulated in Amendment No.1,this Change Order 7 shall reduce the contract amount by$13,998,920.01,
withdrawing unused funds. This credit will be used to fund Change Order 7 for the West Avenue-Phase II
Improvements-Master Project(North Contract).
REASON FOR Pusuant to discussion,review and approval by the City Commission on October 26,2022,this project Is
CHANGE: suspended.
CLASSIFICATION: Credit IF OTHER: N/A
ATTACHMENTS: Schedule of values of last pay application
CHANGE IN CONTRACT SUM CHANGE IN CONTRACT TIME
Original Contract Sum: $12,809,75400 Original Contract Time to Substantial 545 DAYS
Completion:
Net change by previously $13,128,483.85 Net change from previous Change 1,618 DAYS
authorized Change Orders: Orders:
Contract Sum prior to this Contract Time to Substantial
Change Order: $25,938,237.85 Completion prior to this Change 2163 DAYS
Order is:
Contract Sum will be
Increased/decreased by this Contract Time will be
Change Order In the amount $(13,998,920.01) increased/decreased by the 0 DAYS
of: following calendar days:
New Contract Sum including this $11,939,317.84 New Contract Time to Substantial 2163 DAYS
Change Order is: Completion is:
II NO ADJUSTMENTS IS MADE,THE CONTRACT AMOUNT REMAINS UNCHANGED
ADJUSTMENTS TO TIME FOR PERFORMANCE.In connection with the change(s)noted in this document.CONTRACTOR'S TIME FOR PERFORMANCE REMAINS UNCHANGED
unless specifically noted herein.
This Change Order is being executed contemporaneously with Amendment No 1 to the Agreement between the Contractor and City("Amendment No I")and the terms of Amendment No I
are incorporated herein. Accordingly,all references to"this Change Order"below shall be deemed to include the terms and conditions set fbrh in Amendment No I Contractor hereby
releases the City from all claims.demands,or causes of action arising out of the transactions,events and occurrences giving rue to this Change Order This Change Order sets forth the entire
agreement of the ponies with respect to the subject matter hereof. All prior or contemporaneous understandings and discussions,whether written or verbal,regarding the subject matter hereof
are entirely superseded by thin Change Order If there is any conflict between the terms and conditions of the Agreement and those set(brill in Nis Change Order.the terms and conditions in
this Change Order shall govern
EXCEPT AS EXPRESSLY MODIFIED HEREIN,THE TERMS AND CONDITIONS OF THE CONTRACT DOCUMENTS REMAIN UNCHANGED
• • ov d •, -• - •El: Approved by CIP Capital Project Coordinator: Approved by CIP Division Director:
�11G II % 1O14. t 11.g.22
Ch= h400rean,Ass -•=,Inc. D e N/A Date David A.Go :z Date
Ap• • ,• ems• Record: Approved by Sr.Capital Project Coordinator: ••rove A .
• CIP Director:
%�7�� ♦Jt / tnlZ — 1, , J2 'ZZ
ES Consultants,Inc. Date N/A Date David E Date
Approved C actor, CitySle; Ma
r------
ill , j J- /2 f 2pa DEC 0 9 202, ..� _
Cetsiir••
Ric-Man Construction,Florida /Date Rata do Date Dan Gelber as
ATTEST: APPROVED AS TO
FORM&LANGUAGE
;� "�; �'• , &FOR EXECUTION
Rafael E. ,, 1
ranado, City Clerk Page 1 of 1 -,G�2-.-.-4. /-lid-*--, I i I3p1 zoZ L.
.70r• City Attorney Dote