Resolution 2024-33066RESOLUTION NO. 2024-33066
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE AMENDMENT NO. 2 TO THE
DESIGN/BUILD AGREEMENT BETWEEN THE CITY OF MIAMI BEACH,
FLORIDA, AND RIC -MAN CONSTRUCTION FLORIDA, INC., FOR THE WEST
AVENUE PHASE II IMPROVEMENTS NORTH OF 14TH STREET PROJECT
MODIFYING THE TERMS AND CONDITIONS BY INCORPORATING AN
EXPEDITED ARBITRATION CLAUSE SUBSTANTIALLY AS REFLECTED IN
EXHIBIT A, WHICH CLAUSE DEFINES THE PARAMETERS OF AN
ARBITRATION PROCESS TO BE USED BY THE PARTIES TO RESOLVE
DISPUTES IN AN EXPEDITED MANNER.
WHEREAS, the West Avenue neighborhood is one of the lowest lying areas in the City
with elevations as low as 1.7' NAVD, with certain areas of West Avenue having experienced
flooding from high tides 58 times (NOAA Virginia Key tidal gauges) since 2017; and
WHEREAS, flooding is expected to worsen, as the City faces 14-30 inches of sea level
rise over the next thirty years (Southeast Florida Regional Climate Change Compact, 2019); and
WHEREAS, a high groundwater table and intense rain events result in additional
compound flooding concerns and without the deployment of temporary pumps, segments of the
neighborhood flood regularly during intense rain events and king tides; and
WHEREAS, Miami -Dade County is planning for 2 feet of sea level rise by 2060, and the
United States Army Corps of Engineers is planning for 3 feet of sea level rise by 2070; and
WHEREAS, concurrent to the Florida Department of Transportation's renovation of Alton
Road, in 2014 the City executed a design -build agreement for Phase I of the West Avenue Project,
making utility and roadway improvements along West Avenue, north of Lincoln Road and south
of 8th Street; and
WHEREAS, the West Avenue Phase II Improvements Project — North of 14th Street (the
"Project') represents a comprehensively defined neighborhood improvement program, focused
on resolving challenges associated with climate impacts and aged infrastructure; and
WHEREAS, the scope of this neighborhood improvement project includes replacement of
the existing water distribution/transmission systems and gravity sanitary sewers, installation of a
new robust storm water drainage collection and pumping system including new bi-fuel axillary
generators, raising of the paved roadway and harmonization to the adjacent properties,
installation of new street lighting, pedestrian lighting, replacement of existing and installation of
new traffic and pedestrian signals at intersections, new landscaping, irrigation and construction
of a new segment of the Bay Walk; and
WHEREAS, the limits of the improvements are West Avenue and Bay Road between 14th
Street and Collins Canal, including side streets; and
WHEREAS, on March 22, 2017, the Mayor and City Commission adopted Resolution No.
2017-29800, awarding design/build services (the "Design/Build Agreements or "Agreements ")
to Ric -Man Construction Florida, Inc ("Ric -Man" or "Contractor"), for the West Avenue Phase II
Improvements North of 14th Street (the "North Agreement") with the guaranteed maximum price
of $29,669,344, including a 10% contingency and for the West Avenue Phase II Improvements
South of 14th Street (the "South Agreement"); and
WHEREAS, on January 11, 2018, Change Order No. 1 was executed for a 30 -day non -
compensatory time extension due to the impact of Hurricane Irma; and
WHEREAS, on March 16, 2018, Change Order No. 2 was executed in the amount of
$3,270,932 for funding of the above -ground improvements to'the project, with no additional time
extension, increasing the cost of the Agreements to $32,940,276; and
WHEREAS, on December 12, 2018, the City Commission adopted Resolution No. 2018-
30652 authorizing the City Manager to negotiate Change Order No. 3 for additional design and
construction changes associated with the recommendations made by the Columbia University
Resiliency Accelerator Program, the Urban Land Institute (ULI) and for additional scope for a total
of $17,763,900, including contingency; and
WHEREAS, on April 30, 2019, Change Order No. 3A was executed in the amount of
$579,752 as the first partial request from Ric -Man of the approved Change Order No. 3 for the
costs incurred in support'of the Columbia University Resiliency Accelerator Workshop, re -start
impacts after a 1 year delay and 10 -year storm drainage modeling to allow for further design in
order to be able to negotiate the price of the remaining change order scope; and
WHEREAS, on June 16, 2019, Change, Order No. 313 was executed in the amount of
$17,171,211 as the second partial request from Ric -Man of the previously approved Change
Order No. 3 and includes emergency generator sets, street end enhancements, additional pumps,
additional street improvements; and
WHEREAS, on September 17, 2019, Change Order No. 4 was executed in the amount of
$327,093 to account for the 10% contingency for the above -ground improvements, which were
previously added to the Agreement as Change Order No. 2; and
WHEREAS, on April 4, 2020, the City Commission adopted Resolution No. 2020-31243
authorizing the City Manager to negotiate Change Order No. 5 for design services associated
with additional water quality treatment, as required by the Miami -Dade County Regulatory and
Economic Resources Department (RER) for a total not -to -exceed of $1,147,037, including
contingency and the City negotiated a final change order of $1,101,959; and
WHEREAS, on June 23, 2021, the City Commission adopted Resolution No. 2021- 31752
approving and authorizing the City Manager to negotiate and execute Change Order No. 6 with
Ric -Man Construction Florida, Inc., for the West Avenue Phase II Improvements North of 14th
Street, for construction of additional water quality treatment, revised storm water criteria,
relocation of the pump station, cost escalation, and a reduction in previously authorized owner's
contingency in the net change amount of $17,568,384, as well as an increase in contract time of
1,961 calendar days; and
WHEREAS, on April 27, 2022, the Administration received a letter from Ric -Man indicating
that it had instructed its legal counsel to prepare a declaratory relief action seeking termination of
both Design -Build Agreements and inviting the City to negotiate a "Termination for Convenience"
of the Design -Build Agreements; and
WHEREAS, the City has the right to terminate the design -build agreements for its
convenience in addition to the right to terminate in the event of a breach by Ric -Man; and
WHEREAS, the City had not elected to exercise either of these options and per the terms
of the Agreements, Ric -Man can terminate the Design/Build Agreements only upon the
occurrence of one of two conditions (i. e., the issuance of a stop work order by a court or other
public authority for a period of more than 90 days due to no act or fault of Ric -Man or the City' s
nonpayment of an undisputed amount owed), neither of which has occurred; and
WHEREAS, in a subsequent letter dated May 6, 2022, Ric -Man reiterated its request that
the City "should issue a Termination for Convenience," claiming "continuing project support costs,
and escalation" and
WHEREAS, on May 11, 2022, Ric -Man filed suit against the City (the "Lawsuit"); and
WHEREAS, on October 26, 2022, the City Commission adopted Resolution No. 2022-
32384, approving and authorizing the administration to finalize, consistent with the conditions set
forth in the resolution, a settlement agreement relating to the Lawsuit ("Settlement Agreement"),
Amendment No. 1 to the North Agreement (Amendment No. 1) and a corresponding Change
Order No. 7; and
WHEREAS, Amendment No. 1 and additive Change Order No. 7 modified the terms and
conditions to the North Agreement, for additional design and engineering services, cost escalation
of construction commodities and labor, extended pre -construction services, escalation of general
conditions as a result of a seventeen (17) month delay, addition of three micro -pump stations at
certain low lying properties, other miscellaneous scope; extension to the contract time of 521
calendar and for a total value of $12,726,291 plus a 10% owner' s contingency in the amount of
$1,272,629, resulting in an increase of the total contract amount to $83,687,596; and
WHEREAS, Amendment No. 1 to the South Agreement included a deductive Change
Order No. 7 modifying the terms and conditions to the Design/Build Agreement between the City
and Ric- Man Construction Florida, Inc for the West Avenue Phase I I Improvements South of 14th
street project (the "South Project"), for a credit 'for work not performed in the amount of
$13,998,920; and
WHEREAS, the Settlement Agreement, Amendment No. 1 to the North Agreement,
Amendment No. 1 to the South Agreement and Change Order No. 7 for each of the North
Agreement and the South Agreement were executed in December 2022; and
WHEREAS, by October of 2023, Ric -Man again began seeking termination or recission
of the Design/Build Agreements, based on further alleged delays and added costs and again
retained counsel, threatening to file a lawsuit to seek such relief; and
WHEREAS, the notice to proceed to start the construction of the pump station at the City's
parking lot on West Avenue was issued and the construction began on January 2, 2024; and
WHEREAS, the Project is in final design and permitting phase and coordination with the
community continues as the private property harmonization designs are being prepared and
presented to the individual property representatives; and
WHEREAS, the West Avenue Phase II Improvements Project is a large multi-year
construction project with a complicated scope of work; and
WHEREAS, with any project of this nature and complexity, it is expected that numerous
challenges will arise during the planning, design and construction phases; and
WHEREAS, during the life of the project, due to unexpected events, there are complicated
issues that result in complex disputes and claims, which cannot be resolved by negotiation
between the Contractor and City staff, and
WHEREAS, while the City's project team has worked diligently to address those
challenges as they arose, it is undeniable that certain challenges became nearly insurmountable;
and
WHEREAS, Ric -Man claims, among other things, that due to the need to apply for new
permits for some of the disciplines for the project due to the revision to the design drawings and/or
expiation of the old permit(s), and changes as a result of the community request for parking
modifications, the project construction start date has been delayed; and
WHEREAS, Ric -Man has been submitting delay claims requesting additional time and
cost associated with staff and equipment; and
WHEREAS, the City disagrees with many of Ric -Man's claims, including claims for
compensable time which are not permitted pursuant,to the terms of the Design -Build Agreement
absent a showing of fraud, bad faith or intentional interference; and
WHEREAS, these disputes have not been resolved; and
WHEREAS, Ric -Man had refused until recently to execute Contingency Draws which are
the means to compensate the design/build team, within the contract amount, for necessary scope
changes and provide the necessary construction documents to start the roadway portion of the
Project; and
WHEREAS, these types of claims normally remain unresolved until the end of the project;
and
WHEREAS, in a typical project, this timing fosters efficiency because any claims which
are usually relatively minor—can all be resolved on the back -end of the project, and the contractor
will continue working in the interim; and
WHEREAS, with respect to this Project, waiting to resolve all disputes until the end of the
Project could result in undue delays and costs, as well as a ballooned claim amount as the Project
takes years and years to complete; and
WHEREAS, under the existing terms of the Design -Build Agreement, mediation of
unresolved claims often occurs following Substantial Completion, however, the City may
determine, in its sole and absolute discretion, to require mediation of claims prior to Substantial
Completion, but mediation is a non-binding, non -adjudicative proceeding; and
WHEREAS, both Ric -Man and the City's Office of Capital Improvement Projects
Department, with the advice and counsel of the City Attorney's Office, agreed that it could be
beneficial to explore a modification to the Agreements that would provide for arbitration (which is
a binding, adjudicative proceeding), if such arbitration proceedings could be accomplished on an
expedited basis and without inordinate cost or delay; and
WHEREAS, it is anticipated that the City and Ric -Man would agree on hiring an arbitrator
(or an arbitration panel for claims exceeding a threshold to be determined), who has appropriate
experience and expertise, to review the disputed issues with both parties and provide a conclusive
decision; and
WHEREAS, the expedited arbitration as an alternative dispute resolution process would
help resolve disputes in a "real-time" manner so as to avoid project delays that frequently arise in
complex projects such as West Avenue, when the parties do not agree on cost and time impacts
of scope changes; and
WHEREAS, on April 3, 2024, the City Commission adopted Resolution 2024-32978,
authorizing the Administration to engage in negotiations with Ric -Man Construction Florida, inc.,
to define the parameters of an arbitration process to be used by the parties to resolve disputes
related to the Project, in an expedited manner; and
WHEREAS, as a result of negotiations between the City Attorney's Office and counsel for
Ric -Man, the City and Ric -Man have agreed to incorporate an expedited arbitration clause
substantially in the form included as Section 15.2.1 .in Exhibit A to this Resolution (the "Expedited
Arbitration Clause") into the Design/Build Agreement as an alternative dispute resolution
mechanism that could be triggered by either party for claims that cannot be resolved through
mutual agreement; and
WHEREAS, if authorized by the Mayor and City Commission, Amendment No. 2 to the
Design/Build Agreement would incorporate.the Expedited Arbitration Clause into the Design/Build
Agreement; and
WHEREAS, for the foregoing reasons, the Administration recommends that the Mayor
and City Commission approve Amendment No. 2 substantially in the form of Exhibit A to this
Memorandum and authorize the City Manager and City Clerk to execute said Amendment No. 2;
and
WHEREAS, the Administration recommends the adoption of this Resolution by the Mayor
and City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission of the City of Miami Beach, Florida, hereby approve, and authorize the City
Manager and City Clerk to prepare (subject to review and form approval by the City
Attorney) and execute, Amendment No. 2 to the Design/Build Agreement between the City
of Miami Beach, Florida, and Ric -Man Construction Florida, Inc., for the West Avenue
Phase II Improvements North of 14th Street project modifying the terms and conditions by
incorporating an expedited arbitration clause substantially as reflected in Exhibit A to this
resolution, which clause defines the parameters of an arbitration process to be used by the
parties to resolve disputes in an expedited manner.
PASSED and ADOPTED this IS day of 4 , 2024.
ATTESI�'-V
MAY 2 1 2024
Rafael E. Granado, City Clerk
Steven Meiner, Mayor
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
(-42:) Sq 10 j ?zUZ¢--
City Attorney Date
Exhibit A
Expedited Arbitration Clause to be incorporated into Article 15 through Amendment No.2
of the Design/Build Agreement between the City of Miami Beach and Ric -Man
Construction Florida, Inc. .
Underline denotes additions
c+rlkpth ,, �.,h denotes deletions
ARTICLE 15
CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
15.1. Claims.
a. Claims must be initiated by written notice and, unless otherwise specified in
Section 11.8 or otherwise in this Agreement, submitted to the other party within twenty-one (21)
days of the event giving rise to such Claim or within 21 days after the claimant reasonably should
have recognized the event or condition giving rise to the Claim, whichever is later.' Such Claim
shall include sufficient information to advise the other party of the circumstances giving rise to the
Claim, the specific contractual adjustment or relief requested including, without limitation, the
amounts and number of days of delay sought, and the basis of such request. The Claim must
include all job records and other documentation supporting entitlement, the amounts and time
sought. In the event additional time is sought, the Design/Builder shall include a time impact
analysis to support such Claim. The City shall be entitled to request additional job records or
documentation to evaluate the Claim. The Claim shall also include the Design/Builder's written
notarized certification of the Claim in accordance with the False Claims Ordinance, Sections 70-
300 et seq., of the City Code.
b. Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Section 15 or other Contract Documents shall be deemed conclusively
waived, the satisfaction of which shall be conditions precedent to entitlement.
Design/Builder assumes all risks for the following items, none of which shall be the subject of any
Change Order or Claim and none of which shall be compensated for except as they may have
been included in the Design/Builder's Contract Price as provided in the Contract Documents: Loss
of any anticipated profits, loss of bonding capacity or capability losses, loss of business
opportunities, loss of productivity on this or any other project, loss of interest income on funds not
paid, inefficiencies, costs to prepare a bid, cost to prepare a quote for a change in the Work, costs
to prepare, negotiate or prosecute Claims, and loss of projects not bid upon, or any other indirect
and consequential costs not listed herein. No compensation shall be made for loss of anticipated
profits from any deleted Work.
15.2. Dispute Avoidance and Resolution.
a. Claims shall first be submitted to the City for initial recommendation for
determination by the City at the time and in the manner specified in Section 15.1 herein unless
otherwise specified in this Agreement or other Contract Documents. The City shall render an initial
recommendation for determination of such Claim, in writing, as soon as practicable, but not later
than forty-five (45) days of receipt of such Claim, unless the parties mutually stipulate otherwise
in writing or other circumstances warrant a time extension as determined by the City.. Failure to
render a written decision within the forty-five 451 days, or a later date if stipulated by the parties,
shall be considered a denial of the Claim submitted by the claimant.
b. In order to preserve for review an initial recommendation for determination of the
City at mediation, through an Expedited ADR (as defined below) and/or by a court of competent
jurisdiction (as applicable), then the party seeking review shall notify the other party in writing
within fifteen (15) days of such recommendation by the City or, if no recommendation, within
fifteen 151 days of when the Claim is deemed denied as a result of inaction by the City. Failure
to timely preserve review of the City's written recommendation or denial by inaction shall
constitute a waiver of such Claim or entitlement to such objection and the recommendation of the
City (whether by affirmative written recommendation or denial by inaction) shall be deemed final
and binding, but subject to mediation and litigation (as applicable).
C. If the City agrees to pay a portion of the Claim, the Design/Builder may reserve the
remaining portion of the Claim by executing a conditional release in a Change Order, which states
the remaining amount and time sought and identifies the particular scope of Work to which the
reservation applies. Unspecified amounts or time claimed will not preserve a Claim or right to a
Claim. Each such Change Order shall contain a release and waiver of all Claims as of the date
the Design/Builder executes the Change Order, except as specifically included in a reservation of
Claims within the Change Order. The reservation of Claims shall, as to each reserved individual
Claim, state the amount and time sought in the Claim and identify the scope of Work giving rise
to the Claim. Any Claim not included in the reservation of Claims or that fails to specify the amount
and/or time sought are deemed waived and abandoned.
d. In the event any Claims which have been timely preserved remain unresolved by
Substantial Completion, then the parties shall. participate in mediation within sixty (60) days,
unless the City terminates the Agreement, which shall render such mediation moot. If the City
determines, at its sole and absolute discretion, that it would be beneficial to mediate any particular
Claims at any time prior to Substantial Completion, then any such Claims shall be submitted to
mediation at the City's election. The parties shall mutually agree to the selection of a mediator,
and mediation, which shall be confidential in the same manner as Court-ordered mediation, shall
take place within the 60 -day post -Substantial Completion time period, unless both parties mutually
agree otherwise. The parties shall split the mediator's fees equally. Participation in mediation shall
be a condition precedent to filing suit in a court of competent jurisdiction unless otherwise excused
by the terms of this Article 15 or stipulated by both parties in writing.
e. In the event of a dispute arising after Substantial Completion, Final Progress
Payment or Final Completion, mediation is encouraged but is not a condition precedent to
litigation.
15.2.1Expedited ADR. In lieu of waiting until Substantial Completion to mediate or litigate any
Claims which have been timely preserved but remain unresolved, any or both of the Parties may
compel one or more of such Claims to be submitted to expedited alternative dispute resolution
("Expedited ADR') under this Section 15.2.1. The Parties have mutually agreed to establish a
panel ("Panel") of seven (7) arbitrators, to be selected by mutual agreement of the Parties from
the list of active members of the Dispute Review Board for the Florida Department of
Transportation, and agree to include as one of the members of the Panel the present Chairman
of the Florida Department of Transportation State Arbitration Board, who shall act as Chairman
of the Panel ("Chairman") and will serve as the coordinator for the Panel. The Parties shall
exchange proposed Panel compositions within ten (10) days following the Effective Date and
agree on the Panel within thirty (30) days following the Effective Date. In the event the Parties
have not selected a Panel within such thirty (30) day period, then the first instance when a Party
notifies the other Party in writing that it desires to submit a Claim to Expedited ADR, the Parties
shall select the Panel in the manner described above within thirtv (30) days of the notice.
Each Claim shall be heard by a single arbitrator, who is the Chairman, unless: (i) the Chairman is
unavailable to resolve the Claim on an expedited basis as provided in this Section 15.2.1, in which
case the Chairman shall appoint another Panel member after confirming said member's
availability, or (ii) the Claim amount exceeds $1,000,000, in which case the Claim shall be heard
by a panel of three (3) arbitrators, with the Chairman acting as one (1) member and selecting the
other two (2) Panel members (or, if the Chairman is unavailable to serve on the panel to resolve
the Claim on an expedited basis as provided in this Section 15.2.1, the Chairman shall select
three (3) Panel members). In all cases, the Chairman shall confirm potential Panel members'
availability to meet the expedited schedule prior to appointing such member.
A Party who seeks to compel Expedited ADR pursuant to this Section 15.2.1 shall notify the
Chairman and the other Party in writing of its desire to compel Expedited ADR, including a brief
description of the Claim. Within five (5) business days, (a) if the Claim amount is equal to or less
than $1,000,000, the Chairman shall confirm his availability to resolve the Claim on an expedited
basis or appoint another Panel member after confirming said member's availability or (b) if the
Claim amount exceeds $1,000,000, the Chairman shall designate the other two (2) Panel
members (or all three (3) Panel members, if the Chairman is unavailable to resolve the Claim on
an expedited basis as provided in this Section 15.2.1) to serve as the arbitrators for the Claim. In
selecting Panel members to hear a particular Claim, the Chairman shall take into account all
relevant factors including without limitation the amount of the Claim, the nature of the Claim, and
the relevant experience and availability of the Panel members. Further, in addition to considering
his schedule and availability to resolve the Claim on an expedited basis, the Chairman in his/her
sole discretion may determine that a different Panel member has more relevant experience than
he/she does for the Claim in question, in which case the Chairman may appoint such other Panel
member to serve as the single arbitrator or as one of the three (3) arbitrators, as applicable.
Except as modified in this Section 15.2.1, the Panel shall apply the American Arbitration
Association's Construction Industry Arbitration Rules to resolve Claims submitted to Expedited
ADR. There shall be no discovery permitted with respect to any Expedited ADR other than
requests for document production, and only if required by the Chairman. If so required, each Party
will, upon written request of the other Party and written instruction by the Chairman, promptly
provide the other Party with copies of all relevant documents.
The Party who has compelled such Expedited ADR (in each instance, the "Compelling Party")
shall present its position with respect to the issue(s) to be determined by such Expedited ADR by
submitting a written statement via e-mail to the Chairman, copying the other Party (in each
instance, the "Defending Party") The Defending Party shall then submit an opposing statement
(which shall set forth any counter -claim or offset to the Claim) via e-mail to the Chairman, copying
the Compelling Party, within ten (10) business days of submission of the Compelling Party's
written statement.
At the Chairman's sole discretion, each of the Parties to such Expedited ADR may present its
position with respect to the issue(s) to be determined by such Expedited ADR by an oral
presentation to the Chairman or the three (3) arbitrators from the Panel, as applicable. Such oral
Presentation may be held in-person (at a location in Miami -Dade County, Florida selected by the
Chairman) or virtually via remote technology (e.g., Zoom) at the Chairman's sole discretion.
Provided the Chairman or the three (3) arbitrators from the Panel, as applicable, is/are
accompanied by representatives of both the City and the Design/Builder, the Chairman or the
three (3) arbitrators from the Panel, as applicable, may, at his/her/their option, visit the applicable
Project Site to make an independent review in connection with any Claim. If the Chairman or the
three (3) arbitrators from the Panel, as applicable, in his/her/their sole discretion, elect(s) to hear
oral presentations with regard to a particular Claim, then each Party shall be given the opportunity
to hear and orally respond to the other Party's presentations to the Chairman or the three (3)
arbitrators from the Panel, as applicable, and to present documents to the Chairman or the three
(3) arbitrators from the Panel, as applicable, in support of such Party's position. The Chairman or
the three (3) arbitrators from the Panel, as applicable, shall have the right to limit the documents
presented to assure a prompt resolution of the issue(s) to be determined by the Chairman or the
three (3) arbitrators from the Panel, as applicable, The Parties to such Expedited ADR may have
;hairman or the thr
(3) arbitrators from the Panel, as applicable,
If a Party has compelled a Claim to be submitted to Expedited ADR, then the Parties shall use
Expedited ADR exclusively, rather than mediation or litigation, as a means of resolving such
Claim. The Expedited ADR will be scheduled so that it is completed and a decision is announced
within ninety (90) days from the date the Claim is first submitted to the Chairman. If requested by
the Parties, a written award shall be rendered within ten (10) business days of the announcement
of the decision of the Chairman or the three (3) arbitrators from the Panel, as applicable. Time is
of the essence for any Expedited ADR under this Section 15.2.1, and the Chairman shall ensure
that members of the Panel shall agree to these limits prior to accepting appointment.
The written award by the Chairman or the three (3) arbitrators from the Panel, as applicable, shall
be the binding, final determination on the merits of the Claim submitted for Expedited ADR and
shall preclude any subsequent litigation or mediation on such merits. This Section 15.2.1 shall
not be construed to either expand or restrict any rights, duties, obligations, or limitations set forth
elsewhere in this Agreement or under applicable law. Any award in an Expedited ADR under this
Section 15.2.1 shall be limited to monetary compensation and/or an award of additional time, and
shall include no injunction or direction to any party other than the direction to pay a monetary
amount or to provide for additional time. The'parties agree that any disputes that arise out of such
an award shall be resolved exclusively by Expedited ADR pursuant to this Section 15.2.1,
provided that the Parties may institute legal proceedings in any court of competent jurisdiction to
enforce judgment upon an Expedited ADR award in accordance with applicable laws. Each Party
shall bear its own attorneys' fees and costs relating to the Expedited ADR, but the fees and costs
of the Chairman or the three (3) arbitrators from the Panel, as applicable, shall be borne equally
by the Parties to the Expedited ADR.
15.3. Duty to Continue Performance. Pending resolution of any dispute, the Design/Builder
shall proceed and shall cause its Subcontractors to proceed diligently with the performance of its
duties and obligations under the Contract Documents and the City shall continue to make
payments of undisputed amounts in accordance with the Contract Documents. The failure of the
Design/Builder to continue prosecution of the Work in the event of a pending dispute shall be
deemed a Default pursuant to Section 16.2 of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising after Final Progress Payment
or Final Completion, or a dispute which arose prior to Substantial Completion, has been preserved
and which was not successfully resolved at mediation or Expedited ADR, a court of competent
jurisdiction in Miami -Dade County shall hear such disputes. The parties hereby waive a trial by
jury, which requirement shall be included in each and every Subcontract, sub -consulting
agreement and purchase order that Design/Builder executes, in connection with its Work on the
Project.
Resolutions - C7 BJ
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rickelle Williams, Interim City Manager
DATE: May 15, 2024
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,
APPROVING AND AUTHORIZING THE CITY MANAGER AND CITY CLERK TO PREPARE (SUBJECT TO
REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY) AND EXECUTE AMENDMENT NO. 2 TO THE
DESIGN/BUILD AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA, AND RIC -MAN
CONSTRUCTION FLORIDA, INC., FOR THE WESTAVENUE PHASE II IMPROVEMENTS NORTH OF 14TH
STREET PROJECT MODIFYING THE TERMS AND CONDITIONS BY INCORPORATING AN EXPEDITED
ARBITRATION CLAUSE SUBSTANTIALLYAS REFLECTED IN EXHIBIT A, WHICH CLAUSE DEFINES THE
PARAMETERS OF AN ARBITRATION PROCESS TO BE USED BY THE PARTIES TO RESOLVE DISPUTES
IN AN EXPEDITED MANNER.
RECOMMENDATION
The Administration recommends adopting the Resolution.
BACKGROUND/HISTORY
The West Avenue Phase I I Improvements North of 14 Street project (The 'Project) is designed to enhance quality of life with
aesthetics and infrastructure, and to reduce flood risk to this vulnerable neighborhood both now and in the future. This neighborhood is
one of the lowest lying areas in the City with elevations as low as 1. 7' NAVD. Since 2017, low-lying areas of West Avenue have
experienced flooding from high tides 59 times (NOAA Virginia Key tidal gauges). Flooding is expected to worsen, as the City faces
14-30 inches of sea level rise over the next thirty years (Southeast Florida Regional Climate Change Compact, 2019). A high
groundwater table and intense rain events result in additional compound flooding concerns. Without the deployment of temporary
pumps, segments of the neighborhood flood regularly during intense rain events and king tides. Miami- Dade County is planning for 2
ft of sea level rise by 2060, and the United States Army Corps of Engineers is planning for 3 ft of sea level rise by 2070.
The Project represents a comprehensively defined neighborhood improvement program, focused on resolving challenges associated
with climate impacts and aged infrastructure. The scope of this neighborhood improvement project includes replacement of the
existing water distribution/transmission systems and gravity sanitary sewers, installation of a new robust storm water drainage
collection and pumping system including new bi-fuel axillary generators, raising of the paved roadway and harmonization to the
adjacent properties, installation of new street lighting, pedestrian lighting, replacement of existing and installation of new traffic and
pedestrian signals at intersections, new landscaping, irrigation and construction of a new segment of the Bay Walk. The limits of the
improvements are West Avenue and Bay Road between 14th Street and Collins Canal, including side streets.
On March 22, 2017, the Mayor and City Commission adopted Resolution No. 2017-29800, awarding design/build services (the
"Design/Build Agreements" or "Agreements") to Ric- Man Construction Florida, Inc ("Ric -Man" or "Design -Builder"), for The Project
with the guaranteed maximum price of $29,669,344, including a 10% contingency.
On January 11, 2018, Change Order No. 1 was executed for a 30 -day non -compensatory time extension due to the impact of
Hurricane Irma.
On March 16, 2018, Change Order No. 2 was executed in the amount of $3,270,932 for funding of the above -ground improvements
to the project, with no additional time extension, increasing the cost of the Agreements to $32,940,276.
On December 12, 2018, the City Commission adopted Resolution No. 2018- 30652, authorizing the City Manager to negotiate
Change Order No. 3 for additional design and construction changes associated with the recommendations made by the Columbia
University Resiliency Accelerator Program, the Urban Land Institute (ULI) and for additional scope for a total of $17,763,900,
including contingency.
On April 30, 2019, Change Order No. 3A was executed in the amount of $579,752 as the first partial request from Ric- Man of the
approved Change Order No. 3 for the costs incurred in support of the Columbia University Resiliency Accelerator Workshop, re -start
impacts after a 1 -year delay and 1.0 -year storm drainage modeling to allow for further design in order to be able to negotiate the price
of the remaining change order scope.
On June 16, 2019, Chanqe Order No. 3B was executed in the amount of $17,171,211 as the second partial request from Ric -.Man of
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the previously approved Change Order No. 3 and includes emergency generator sets, street end enhancements, additional pumps,
additional street improvements.
On September 17, 2019, Change Order No. 4 was executed in the amount of $327,093 to account for the 10% contingency for the
above -ground improvements, which were previously added to the Agreements as Change Order No. 2.
On April 4, 2020, the City Commission adopted Resolution No. 2020-31243, authorizing the City Manager to negotiate Change Order
No. 5 for design services associated with additional water quality treatment, as required by the Miami -Dade County Regulatory and
Economic Resources Department (RER) for a total not to exceed $1,147,037, including contingency. The City negotiated a final.
change order in the amount of $1;101,959.
On June 23, 2021, City Commission adopted Resolution No. 2021-31752, approving and authorizing the City Manager to negotiate
and execute Change Order No. 6 with Ric -Man Construction Florida, Inc., for the West Avenue Phase II Improvements North of 14th
Street, for construction of additional water quality treatment, revised storm water criteria, relocation of the pump station, cost
escalation, and a reduction in previously authorized owner s contingency in the net change amount of $17,568,384, as well as an
increase in contract time of 1,961 calendar days. The total contract value, subsequent to Change Order No. 6, is $69,688,675.
On April 27, 2022, the Administration received a letter from Ric -Man indicating that it had instructed its legal counsel to prepare a
declaratory relief action seeking termination of both Design/Build Agreements and inviting the City to negotiate a "Termination for
Convenience" of the Design/ -Build Agreements. The City has the right to terminate the design -build agreements for its convenience
in addition to the right to terminate in the event of a breach by Ric -Man. The City had not elected to exercise either of these options
and per the terms of the Agreements, Ric -Man can terminate the Design/Build Agreements only upon the occurrence of one of two
conditions (i. e., the issuance of a stop work order by a court or other public authority for a period of more than 90 days due to no act
or fault of Ric -Man or the City' s nonpayment of an undisputed amount owed), neither of which has occurred. In a subsequent letter
dated May 6, 2022, Ric -Man reiterated its request that the City "should issue a Termination for Convenience," claiming "continuing
project support costs, and escalation." On May 11, 2022, Ric -Man filed suit against the City.
On October 26, 2022, the City Commission adopted Resolution No. 2022-32384, approving and authorizing the administration to
finalize, consistent with the conditions set for the resolution:
1) Amendment No. 1 and additive Change Order No. 7, modifying the terms and conditions to the Design/Build Agreement between
the. City and Ric- Man Construction Florida, Inc., for the West Avenue Phase II Improvements North of 14th Street Project, for
additional design and engineering services, cost escalation of construction commodities and labor, extended pre -construction
services, escalation of general conditions as a result of a seventeen (17) month delay, addition of three micro -pump stations at certain
low lying properties, other miscellaneous scope, extension to the contract time of 521 calendar and the Change Order No. 7 total
value of $12,726,291 plus a 10% owner' s contingency in the amount of $1,272,629, resulting in an increase of the total contract
amount to $83,687,596;
2) The Amendment No. 1 also included a deductive Change Order No. 7 modifying the terms and conditions to the Design/Build
Agreement between the City and Ric- Man Construction Florida, Inc for the West Avenue Phase II Improvements South of 14th
street project, for a credit for work not performed in the amount of $13,998,920; and
3) Execution of a settlement agreement dismissing the lawsuit filed by Ric -Man Construction Florida, Inc., against the City asserting
claims arising out of the West Avenue Phase I I projects.
Amendment No. 1 and Change Order No. 7 were executed in December of 2022.
By October of 2023, however, Ric -Man again began seeking termination or rescission of the Design/Build Agreements, based on
further alleged delays and added costs. Ric -Man has again retained counsel, threatening to file a lawsuit to seek such relief.
Under the existing terms of the Agreements, the City has the sole and absolute discretion to require mediation of claims, but
mediation is a non-binding, non -adjudicative proceeding. Both Ric -Man and the City's Office of Capital Improvement Projects
Department , with the advice and counsel of the City Attorney's Office, have agreed that it could be beneficial to explore a
modification to the Agreements that would provide for arbitration (which is a binding, adjudicative proceeding), if such arbitration
proceedings could be accomplished on an expedited basis and without inordinate cost or delay.
ANALYSIS
The notice to proceed to start the construction of the stormwater pump station at the City's parking lot on West Avenue was issued
and the construction began on January 2, 2024. The rest of the project is in final design and permitting phase. Coordination with the
community continues as the private property harmonization designs are being prepared and presented to the individual property
representatives.
The Project is a large multi-year construction project with a complicated scope of work. With any project of this nature and complexity,
it is expected that numerous challenges will arise during the planning, design and construction phases. While the project team has
worked diligently to address those challenges as they arose, it is undeniable that certain challenges became nearly insurmountable.
During the life of the project, due to unexpected events, there are complicated issues that result into complex disputes and claims,
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which cannot be resolved by negotiation between the Contractor and City start.
Ric -Man claims that, due to City review of the previously prepared design drawing leading to comments that needed to be addressed
by the design team, applying for new permits for certain disciplines for the project due to the revision to the design drawings and/or
expiration of the old permit(s), and changes as a result of the community's request for parking modifications, their estimated project
construction start date has been delayed. Ric -Man has been submitting delay claims requesting additional time and cost associated
With staff and equipment. The City is not in agreement with Ric -Man's claims; therefore these disputes have not been resolved. Ric -
Man has been emphasizing and re-emphasizing this issue, refusing until recently to execute Contingency Draws which are the means
to compensate the design/build team, from the project contingency included in the contract amount, for small design changes and
provide the necessary construction documents to start the roadway portion of the Project.
These types of claims normally remain unresolved until the end of the project. In an ordinary project, this timing fosters efficiency
because any claims—which are usually relatively minor—can all be resolved on the back -end of the project, and the contractor will
continue working in the interim. With respect to this Project, however, waiting to resolve all disputes until the end of the Project could
result in undue delays and costs, as well as a ballooned claim amount as the Project takes years and years to complete. The current
Agreements between the City and Ric- Man Construction Florida, Inc., allow for non-binding, non -adjudicative mediation; however, in
this type of scenario, binding, adjudicative arbitration would be most effective and conclusive. One of the best practices to expedite
and resolve the disputes would be implementation of an expedited arbitration process. In this process, the City and Ric -Man would
agree on hiring an arbitrator, who has appropriate experience and expertise, to review the disputed issues with both parties and
provide a conclusive decision toward a fair path forward. The expedited arbitration as an alternative dispute resolution process would
help resolve disputes in a "real-time" manner so as to avoid Project delays that frequently arise in complex projects such as West
Avenue, when the parties do not agree on cost and time impacts of scope changes.
On April 3, 2024, the City Commission adopted Resolution 2024-32978, authorizing the Administration to engage in negotiations with
Ric -Man, to define the parameters of an arbitration process to be used by the parties to resolve disputes related to the Project, in an
expedited manner.
As a result of negotiations between the City Attorneys Office and counsel for Ric -Man, the City and Ric -Man have agreed to
incorporate an expedited arbitration clause substantially in the form included as Section 15.2.1 in Exhibit A to this Memorandum (the
"Expedited Arbitration Clause") into the Design/Build Agreement as an alternative dispute resolution mechanism that could be
triggered by either party for claims that cannot be resolved through mutual agreement. If authorized by the Mayor and City
Commission, Amendment No. 2 to the Design/Build Agreement would incorporate the Expedited Arbitration Clause into the
Design/Build Agreement.
For the foregoing reasons, the Administration recommends that the Mayor and City Commission approve Amendment No. 2
substantially in the form of Exhibit A to this Memorandum and authorize the City Manager and City Clerk to execute said Amendment
No. 2.
SUPPORTING SURVEY DATA
N/A
FINANCIAL INFORMATION
N/A
Amount(s)/Account(s):
The Administration recommends that the Mayor and City Commission approve the resolution.
Applicable Area
South Beach
Is this a "Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Capital Improvement Projects
ATTACHMENTS:
Description
Exhibit A- Expedited Arbitration Clause
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Exhibit A
Expedited Arbitration Clause to be incorporated into Article 15 through Amendment No.2
of the Design/Build Agreement between the City of Miami Beach and Ric -Man
Construction Florida, Inc.
Underline denotes additions
Strokethro gh denotes deletions
ARTICLE 15
CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
15.1. Claims.
a. Claims must be initiated by written notice and, unless otherwise specified in
Section 11.8 or otherwise in this Agreement, submitted to the other party within twenty-one (21)
days of the event giving rise to such Claim or within 21 days after the claimant reasonably should
have recognized the event or condition giving rise to the Claim, whichever is later. Such Claim
shall include sufficient information to advise the other party of the circumstances giving rise to the
Claim, the specific contractual adjustment or relief requested including, without limitation, the
amounts and number of days of delay sought, and the basis of such request. The Claim must
include all job records and other documentation supporting entitlement, the amounts and time
sought. In the event additional time is sought, the Design/Builder shall include a time impact
analysis to support such Claim. The City shall be entitled to request additional job records or
documentation to evaluate the Claim. The Claim shall also include the Design/Builder's written
notarized certification of the Claim in accordance with the False Claims Ordinance, Sections 70-
300 et seq., of the City Code.
b. Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Section 15 or other Contract Documents shall be deemed conclusively
waived, the satisfaction of which shall be conditions precedent to entitlement.
Design/Builder assumes all risks for the following items, none of which shall be the subject of any
Change Order or Claim and none of which shall be compensated for except as they may have
been included in the Design/Builder's Contract Price as provided in the Contract Documents: Loss
of any anticipated profits, loss of bonding capacity or capability losses, loss of business
opportunities, loss of productivity on this or any other project, loss of interest income on funds not
paid, inefficiencies, costs to prepare a bid, cost to prepare a quote for a change in the Work, costs
to prepare, negotiate or prosecute Claims, and loss of projects not bid upon, or any other indirect
and consequential costs not listed herein. No compensation shall be made for loss of anticipated
profits from any deleted Work.
15.2. Dispute Avoidance and Resolution.
a. Claims shall first be submitted to the City for initial recommendation for
determination by the City at the time and in the manner specified in Section 15.1 herein unless
1.1
otherwise specified in this Agreement or other Contract Documents. The City shall render an initial
recommendation for determination of such Claim, in writing, as soon as practicable, but not later
than forty-five (45) days of receipt of such Claim, unless the parties mutually stipulate otherwise
in writing or other circumstances warrant a time extension as determined by the City. Failure to
render a written decision within the fort -five 451 days, or a later date if stipulated by the parties,
shall be considered a denial of the Claim submitted by the claimant.
b. In order to preserve for review an initial recommendation for determination of the
City at mediation, through an Expedited ADR (as defined below) and/or by a court of competent
jurisdiction (as applicable), then the party seeking review shall notify the other party in writing
within fifteen (15) days of such recommendation by the City or, if no recommendation, within
fifteen 151 days of when the Claim is deemed denied as a result of inaction by the City. Failure
to timely preserve review of the City's written recommendation or denial by inaction shall
constitute a waiver of such Claim or entitlement to such objection and the recommendation of the
City (whether by affirmative written recommendation or denial by inaction) shall be deemed final
and binding, but subject to mediation and litigation (as applicable).
C. If the City agrees to pay a portion of the Claim, the Design/Builder may reserve the
remaining portion of the Claim by executing a conditional release in a Change Order, which states
the remaining amount and time sought and identifies the particular scope of Work to which the
reservation applies. Unspecified amounts or time claimed will not preserve a Claim or right to a
Claim. Each such Change Order shall contain a release and waiver of all Claims as of the date
the Design/Builder executes the Change Order, except as specifically included in a reservation of
Claims within the Change Order. The reservation of Claims shall, as to each reserved individual
Claim, state the amount and time sought in the Claim and identify the scope of Work giving rise
to the Claim. Any Claim not included in the reservation of Claims or that fails to specify the amount
and/or time sought are deemed waived and abandoned.
d. In the event any Claims which have been timely preserved remain unresolved by
Substantial Completion, then the parties shall participate in mediation within sixty (60) days,
unless the City terminates the Agreement, which shall render such mediation moot. If the City
determines, at its sole and absolute discretion, that it would be beneficial to mediate any particular
Claims at any time prior to Substantial Completion, then any such Claims shall be submitted to
mediation at the City's election. The parties shall mutually agree to the selection of a mediator,
and mediation, which shall be confidential in the same manner as Court-ordered mediation, shall
take place within the 60 -day post -Substantial Completion time period, unless both parties mutually
agree otherwise. The parties shall split the mediator's fees equally. Participation in mediation shall
be a condition precedent to filing suit in a court of competent jurisdiction unless otherwise excused
by the terms of this Article 15 or stipulated by both parties in writing.
e. In the event of a dispute arising after Substantial Completion, Final Progress
Payment or Final Completion, mediation is encouraged but is not a condition precedent to
litigation.
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15.2.1 Expedited ADR. In lieu of waiting until Substantial Completion to mediate or litigate any
Claims which have been timely preserved but remain unresolved, any or both of the Parties may
compel one or more of such Claims to be submitted to expedited alternative dispute resolution
("Expedited ADR") under this Section 15.2.1. The Parties have mutually agreed to establish a
panel ("Panel") of seven (7) arbitrators, to be selected by mutual agreement of the Parties from
the list of active members of the Dispute Review Board for the Florida Department of
Transportation, and agree to include as one of the members of the Panel the present Chairman
of the Florida Department of Transportation State Arbitration Board, who shall act as Chairman
of the Panel ("Chairman") and will serve as the coordinator for the Panel. The Parties shall
exchange proposed Panel compositions within ten (10) days followinq the Effective Date and
agree on the Panel within thirty (30) days following the Effective Date. In the event the Parties
have not selected a Panel within such thirty (30) day period, then the first instance when a Party
notifies the other Party in writing that it desires to submit a Claim to Expedited ADR, the Parties
shall select the Panel in the manner described above within thirty (30) days of the notice.
Each Claim shall be heard by a single arbitrator, who is the Chairman, unless: (i) the Chairman is
unavailable to resolve the Claim on an expedited basis as provided in this Section 15.2.1, in which
case the Chairman shall appoint another Panel member after confirming said member's
availability, or (ii) the Claim amount exceeds $1,000,000, in which case the Claim shall be heard
by a panel of three (3) arbitrators, with the Chairman acting as one (1) member and selecting the
other two (2) Panel members (or, if the Chairman is unavailable to serve on the panel to resolve
the Claim on an expedited basis as provided in this Section 15.2.1, the Chairman shall select
three (3) Panel members). In all cases, the Chairman shall confirm potential Panel members'
availability to meet the expedited schedule prior to appointing such member.
A Party who seeks to compel Expedited ADR pursuant to this Section 15.2.1 shall notify the
Chairman and the other Party in writing of its desire to compel Expedited ADR, including a brief
description of the Claim. Within five (5) business days, (a) if the Claim amount is equal to or less
than $1,000,000, the Chairman shall confirm his availability to resolve the Claim on an expedited
basis or appoint another Panel member after confirming said member's availability or (b) if the
Claim amount exceeds $1,000,000, the Chairman shall designate the other two (2) Panel
members (or all three (3) Panel members, if the Chairman is unavailable to resolve the Claim on
an expedited basis as provided in this Section 15.2.1) to serve as the arbitrators for the Claim. In
selecting Panel members to hear a particular Claim, the Chairman shall take into account all
relevant factors including without limitation the amount of the Claim, the nature of the Claim, and
the relevant_ experience and availability of the Panel members. Further, in addition to considering
his schedule and availability to resolve the Claim on an expedited basis, the Chairman in his/her
sole discretion may determine that a different Panel member has more relevant experience than
he/she does for the Claim in question, in which case the Chairman may appoint such other Panel
member to serve as the sinale arbitrator or as one of the three (3) arbitrators. as applicable.
Except as modified in this Section 15.2.1, the Panel shall apply the American Arbitration
Association's Construction Industry Arbitration Rules to resolve Claims submitted to Expedited
ADR. There shall be no discovery permitted with respect to any Expedited ADR other than
requests for document production, and only if required by the Chairman. If so required, each Party
E�3
will, upon written request of the other Party and written instruction by the Chairman, promptly
provide the other Party with copies of all relevant documents.
The Party who has compelled such Expedited ADR (in each instance, the "Compelling Party")
shall present its position with respect to the issue(s) to be determined by such Expedited ADR by
submitting a written statement via e-mail to the Chairman, copying the other Party (in each
instance, the "Defending Party") The Defending Party shall then submit an opposing statement
(which shall set forth any counter -claim or offset to the Claim) via e-mail to the Chairman, copying
the Compelling Party, within ten (10) business days of submission of the Compelling Party's
written statement.
At the Chairman's sole discretion, each of the Parties to such Expedited ADR may present its
position with respect to the issue(s) to be determined by such Expedited ADR by an oral
presentation to the Chairman or the three (3) arbitrators from the Panel, as applicable. Such oral
Presentation may be held in-person (at a location in Miami -Dade County, Florida selected by the
Chairman) or virtually via remote technology (e.g., Zoom) at the Chairman's sole discretion.
Provided the Chairman or the three (3) arbitrators from the Panel, as applicable, is/are
accompanied by representatives of both the City and the Design/Builder, the Chairman or the
three (3) arbitrators from the Panel, as applicable, may, at his/her/their option, visit the applicable
Project Site to make an independent review in connection with any Claim. If the Chairman or the
three (3) arbitrators from the Panel, as applicable, in his/her/their sole discretion, elect(s) to hear
oral presentations with regard to a particular Claim, then each Party shall be given the opportunity
to hear and orally respond to the other Party's presentations to the Chairman or the three (3)
arbitrators from the Panel, as applicable, and to present documents to the Chairman or the three
(3) arbitrators from the Panel, as applicable, in support of such Party's position. The Chairman or
the three (3) arbitrators from the Panel, as applicable, shall have the right to limit the documents
presented to assure a prompt resolution of the issue(s) to be determined by the Chairman or the
three (3) arbitrators from the Panel, as applicable, The Parties to such Expedited ADR may have
their respective counsels present at such Expedited ADR, but there shall be no examination or
cross-examination of witnesses other than as required or permitted by the Chairman or the three
(3) arbitrators from the Panel, as applicable,
If a Party has compelled a Claim to be submitted to Expedited ADR, then the Parties shall use
Expedited ADR exclusively, rather than mediation or litigation, as a means of resolving such
Claim. The Expedited ADR will be scheduled so that it is completed and a decision is announced
within ninety (90) days from the date the Claim is first submitted to the Chairman. If requested by
the Parties, a written award shall be rendered within ten (10) business days of the announcement
of the decision of the Chairman or the three (3) arbitrators from the Panel, as applicable. Time is
of the essence for any Expedited ADR under this Section 15.2.1, and the Chairman shall ensure
that members of the Panel shall agree to these limits prior to accepting appointment.
The written award by the Chairman or the three (3) arbitrators from the Panel, as applicable, shall
be the binding, final determination on the merits of the Claim submitted for Expedited ADR and
shall preclude any subsequent litigation or mediation on such merits. This Section 15.2.1 shall
not be construed to either expand or restrict any rights, duties, obligations, or limitations set forth
elsewhere in this Agreement or under applicable law. Any award in an Expedited ADR under this
Section 15.2.1 shall be limited to monetary compensation and/or an award of additional time, and
shall include no iniunction or direction to any party other than the direction to pay a monetary
amount or to provide for additional time. The parties agree that any disputes that arise out of such
an award shall be resolved exclusively by Expedited ADR pursuant to this Section 15.2.1,
provided that the Parties may institute legal proceedings in any court of competent jurisdiction to
enforce judgment upon an Expedited ADR award in accordance with applicable laws. Each Party
shall bear its own attorneys' fees and costs relatinq to the Expedited ADR, but the fees and costs
of the Chairman or the three (3) arbitrators from the Panel, as applicable, shall be borne equally
by the Parties to the Expedited ADR.
15.3. Duty to Continue Performance. Pending resolution of any dispute, the Design/Builder
shall proceed and shall cause its Subcontractors to proceed diligently with the performance of its
duties and obligations under the Contract Documents and the City shall continue to make
payments of undisputed amounts in accordance with the Contract Documents. The failure of the
Design/Builder to continue prosecution of the Work in the event of a pending dispute shall be
deemed a Default pursuant to Section 16.2 of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising after Final Progress Payment
or Final Completion, or a dispute which arose prior to Substantial Completion, has been preserved
and which was not successfully resolved at mediation or Expedited ADR, a court of competent
jurisdiction in Miami -Dade County shall hear such disputes. The parties hereby waive a trial by
jury, which requirement shall be included in each and every Subcontract, sub -consulting
agreement and purchase order that Design/Builder executes, in connection with its Work on the
Project.
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