541-2007 RDA Reso
RESOLUTION NO. 541-2007
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE
MIAMI BEACH REDEVELOPMENT AGENCY ("AGENCY")
APPROVING A SETTLEMENT IN THE AMOUNT OF $4,375,000.00
WHEREBY THE AGENCY WILL PAY $1,500,000.00 TO ATLANTIC
CIVIL, INC. ("ATLANTIC") AND WHEREBY ROYAL AND SUN
ALLIANCE USA ("RSA") AND DPIC, ON BEHALF OF THEIR
INSURED, KIMLEY-HORN AND ASSOCIATES, INC., WILL PAY TO
ATLANTIC $2,875,000.00 PURSUANT TO THE TERMS OF THE
ATTACHED SETTLEMENT AGREEMENT AS FULL AND FINAL
SETTLEMENT WITH REGARD TO THE CASE STYLED: ATLANTIC
CIVIL. INC. V. MIAMI BEACH REDEVELOPMENT AGENCY. ET ALii
CASE NO: 01-23635 CA 09, IN THE CIRCUIT COURT OF THE 11 I
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA;
AND FURTHER AUTHORIZING THE APPROPRIATION OF
$1,500,000.00 FROM SOUTH POINTE REDEVELOPMENT AGENCY
FUNDS.
WHEREAS, on or about August 2000, the Miami Beach Redevelopment Agency
("Agency") and Atlantic Civil, Inc. ("Atlantic") entered into an agreement for Atlantic to
perform certain improvements with regard to the project known as the "South Pointe Streetscape
Improvements Phase 1" (the "Project"); and
WHEREAS, on or about February 17, 1999, the Agency and Kimley-Horn and
Associates, Inc. ("Kimley-Horn") entered into an agreement, with subsequent amendments,
which called for Kimley-Horn to provide services including, but not limited to, professional
engineering, landscaping, and architectural services for design and implementation of street
improvements for the Project; and
WHEREAS; on or about January 31, 2001, the Agency and Hazen and Sawyer, P.C.,
("Hazen & Sawyer") entered into an agreement wherein Hazen & Sawyer was to provide, among
other things, program management services to the Project; and
WHEREAS, on or about July 20, 2000, National Fire Insurance Company of Hartford,
("National Fire") as Surety, provided a Performance Bond for the Project naming Atlantic as
Principal and the Agency as Obligee; and
WHEREAS, Royal and Sun Alliance USA ("RSA") and DPIC, a unit of RSA, provided
a policy of insurance to Kimley- Horn; and
WHEREAS, Atlantic has asserted claims against the Agency for damages arising out of
the performance of its agreement with the Agency in the case styled Atlantic Civil. Inc. v. Miami
Beach Redevelopment Agencv et. ai, Case No.: 01-23635 CA 09 in the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida; and
WHEREAS, the Agency has asserted a claim for damages against National Fire based
upon the Performance Bond issued by National Fire to Atlantic; and
WHEREAS, the Agency has asserted a claim for damages against Kimley-Horn for
indemnification based upon the claims made by Atlantic against the Agency; and
WHEREAS, Kimley-Horn has asserted a claim for contribution and indemnification
against Hazen & Sawyer as a result ofthe claims made by the Agency against Kimley-Horn; and
WHEREAS, each Party has denied liability as to the damages claimed against it, as
described above; and
WHEREAS, as more fully set forth in the Settlement Agreement attached hereto as
Exhibit A and incorporated herein by reference, the Agency, Atlantic, National Fire, Kimley-
Horn, and Hazen & Sawyer have agreed to resolve and settle all claims asserted or that could
have been asserted in the case styled: Atlantic Civil. Inc. v. Miami Beach Redevelopment
Agencv. Case No.: 01-23635 CA 09 in the Circuit Court of the Eleventh Judicial Circuit in and
for Miami-Dade County, Florida; and
WHEREAS, pursuant to the Settlement Agreement, the Agency will pay the sum of
$1,500,000.00 to Atlantic, which amount represents a compromised sum as full and complete
payment of sums due by the Agency to Atlantic relating to the Project; and
WHEREAS, funds are available from the South Pointe Redevelopment Agency Funds to
pay the Agency's settlement amount of$I,500,000.00; and
WHEREAS, RSA and DPIC will pay, on behalf of their insured, Kimley-Horn, the sum
of $2,875,000.00 to Atlantic, which amount represents a compromised sum as full and final
payment of the claims made by the Agency against Kim1ey-Horn.
NOW, THEREFORE, BE IT DULY RESOLVED by the Chairman and Members of
the Miami Beach Redevelopment Agency, that the Chairman and Members hereby approve the
attached Settlement Agreement that provides, inter alia, for a settlement in the amount
$1,500,000.00 dollars to be paid by the Agency to Atlantic, which amount represents a
compromise sum as full and complete payment of all sums due from the Agency to Atlantic
relating to the Project and to resolve and settle all claims asserted or that could have been
asserted in the case styled Atlantic Civil. Inc. v. Miami Beach Redevelopment Agencv. et. aI.,
Case No.: 01-23635 CA 09, in the Circuit Court of the II th Judicial Circuit in and for Miami
Dade County, Florida and further authorize the appropriation of $1,500,000.00 from South
PASSED and ADOPTED this
Pointe Redevelopment Agency Funds for this purpose.
ATTEST:
~'~.P~
David Dermer
F:\atto\TURN\RESOS\ACI Settlement Agreement.doc
APPROVED AS TO
FORM & LANGUAGE
&F ION
fly 1.-.
ntAgeneJ ~
GeiIeilII CounMl '1:f'
SECRETARY
Robert Parcher
REDEVELOPMENT AGENCY ITEM SUMMARY
Condensed Title:
Approval of a Settlement in the amount of $4,375,000 between the MBRDA and Atlantic Civil, Inc.,
whereby the MBRDA will pay $1,500,000 and whereby Royal and Sun Alliance USA ("RSA") and
DPIC, on behalf of their insured, Kimley-Horn and Associates will pay $2,875,000 regarding the South
Pointe Phase I Streetscaoe Proiect
Ke Intended Outcome Su orted:
Ensure well maintained infrastructure
Issue:
Should the MBRDA approve the settlement?
Item Summa {Recommendation:
On September 5, 2000, Atlantic Civil, Inc. (Atlantic) commenced the South Pointe Streetscape Phase I
construction (the "Projecf'). Shortly after commencement of construction, several construction issues
related to coordination of documents, omissions, errors, and deletions were raised by Atlantic as issues
causing delays and increased costs. Separate from and in addition to the design issues, the City staff
identified what it felt to be deficiencies on the part of Atlantic. Based on these continued difficulties, on
November 28,2001, the Miami Beach Redevelopment Agency Board, pursuant to Section 8.8 of the
Contract, took the prosecution of the work out of the hands of Atlantic and directed the appropriate City
officials to take the necessary actions to prosecute the remaining work, including waiving formal bidding
requirements. Further, based on the numerous difficulties noted above, the Miami Beach Redevelopment
Agency Board also omitted the remaining balance of the work from the Contract with Atlantic pursuant to
Section 9.5 of said Contract. During the course of the litigation, all sides agreed to settle the cases, in the
amount of $4,375,000 payable to Atlantic, consisting of$1 ,500,000 from the Miami Beach Redevelopment
Agency and $2,875,000 from Royal and Sun Alliance USA ("RSA") and DPIC, on behalf of their insured,
Kimley-Horn and Associates, Inc. Funding in the amount of $1 ,500,000 is available from pre-termination
South Pointe RDA funds previously allocated for the Fifth Street and Alton Road Joint Venture. These
RDA funds are not needed this year and will be replaced by S. Pointe Capital Funds and should be
a ro riated for the ur ose of the settlement.
Advisory Board Recommendation:
I NA
Financial Information:
Source of Amount Account Approved
F~s: 1 $1,500,000 379-6296-069400
{fj 2
3
4
OBPI Total $1,500,000
Financial Impact Summary:
Istant City Manager
City Manager
lD
~
MIAMIBEACH
AGENDA ITEM
DATE
9.8
H 7 -()1
e MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
TO:
FROM:
DATE:
SUBJECT:
REDEVELOPMENT AGENCY MEMORANDUM
Chairman David Dermer and Members of the Board
Jorge M. Gonzalez, Executive Director ~~
January 17, 2007 (f U
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY ("AGENCY") APPROVING A
SETTLEMENT IN THE AMOUNT OF $4,375,000.00 WHEREBY THE
AGENCY WILL PAY $1,500,000.00 TO ATLANTIC CIVIL, INC.
("ATLANTIC") AND WHEREBY ROYAL AND SUN ALLIANCE USA
("RSA") AND DPIC, ON BEHALF OF THEIR INSURED, KIMLEY-HORN
AND ASSOCIATES, INC., WILL PAY TO ATLANTIC $2,875,000.00
PURSUANT TO THE TERMS OF THE ATTACHED SETTLEMENT
AGREEMENT AS FULL AND FINAL SETTLEMENT WITH REGARD TO
THE CASE STYLED: ATLANTIC CIVIL. INC. V. MIAMI BEACH
REDEVELOPMENT AGENCY. ET AL.. CASE NO: 01-23635 CA 09, IN
THE CIRCUIT OF THE 11tH JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA; AND FURTHER AUTHORIZING THE
APPROPRIATION OF $1,500,000.00 FROM PREVIOUSLY ALLOCATED
SOUTH POINTE REDEVELOPMENT AREA FUNDS.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
On September 5, 2000, Atlantic Civil, Inc. ("Atlantic") commenced the South Pointe
Streetscape Phase I construction (the "Project"), which consisted of roadway, drainage,
water, sanitary sewer, lighting and landscaping improvements along Third Street from
Michigan Avenue to Ocean Drive and along Washington Avenue from South Pointe Park to
Fifth Street. A roadway and associated parking were also constructed to connect South
Pointe Park to the park's existing parking lot.
Shortly after commencement of construction, several construction issues related to
coordination of documents, omissions, errors, and deletions were raised by Atlantic as
issues causing delays and increased costs. On January 31, 2001, as a result of staff
concerns, a status report was provided to the Redevelopment Agency advising that these
conditions had contributed to time delays and additional costs.
Commission Memorandum-ACI Settlement
January 17, 2007
Page 2 of 2
On May 16, 2001, staff reported to the Redevelopment Agency that Atlantic submitted a
Request for Equitable Adjustment (REA) in excess of $1.3 million, representing the
increased costs Atlantic attributed to delays associated with the issues referenced above.
The City and its engineer, Kimley Horn and Associates ("KHA"), requested Atlantic to submit
specific documentation to support its REA, which was not responded to in a manner
acceptable to the City and KHA. Without this information, the City and KHA could not
evaluate Atlantic's claim and therefore, on August 10, 2001, the City rejected the REA until
such time that Atlantic forwarded the requested information.
Separate from and in addition to the design issues, the City staff identified what it felt to be
deficiencies on the part of Atlantic. The identified deficiencies included: actions that
exacerbated the timely completion of this project; refusal of requests of the Project team to
address construction in a manner that minimized potential damages to the residents and
businesses; refusal to continue with extra work and incidental work; refusal to coordinate its
work and/or had assertions that it intended to make claims against the City for coordinating
its work with others; blocking of access to businesses and residents; conducting business in
disregard for the residents and businesses in the work area; and failure to complete the
project within the contractual mandated time.
Based on these continued difficulties, on November 28, 2001, the Miami Beach
Redevelopment Agency Board, pursuant to Section 8.8 of the Contract, took the prosecution
of the work out of the hands of Atlantic and directed the appropriate City officials to take the
necessary actions to prosecute the remaining work, including waiving formal bidding
requirements. Further, based on the numerous difficulties noted above, the Miami Beach
Redevelopment Agency Board also omitted the remaining balance of the work from the
Contract with Atlantic pursuant to Section 9.5 of Contract. The City withheld the sum of
$1,200,000.00.
The City hired a replacement contractor and the project was completed in 2003.
Atlantic filed the action styled as ATLANTIC CIVIL. INC. V. MIAMI BEACH
REDEVELOPMENT AGENCY. ET AL.. CASE NO: 01-23635 CA 09, IN THE CIRCUIT OF
THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA in early
2002, alleging damages in excess of $7,000,000.00.
During the course of the litigation, all parties agreed to settle the cases, in the amount of
$4,375,000.00 payable to Atlantic. The Miami Beach Redevelopment Agency would pay
$1,500,000.00 previously allocated for the Fifth Street and Alton Road Joint Venture. These
RDA funds are not needed this year and will be replaced by S. Pointe Capital Funds. Royal
and Sun Alliance USA ("RSA") and DPIC, on behalf of their insured, Kimley-Horn and
Associates, Inc. would pay $2,875,000.00. Funding is available from MBRDA funds and
$1,500,000.00 should be appropriated for the purpose of settlement.
The Settlement Agreement is attached to this memorandum.
Attachment
T:\AGENDA\2007~an1707\Regular\RDA Atlantic Civil Settlement.doc
SETTLEMENT AGREEMENT
TIns Agreement is made by and between MIAMI BEACH REDEVELOPMENT AGENCY,
a Public Body Corporate and Politic (hereinafter "MERA"); ATLANTIC CIVIL, INC., a Florida
corporation (hereinafter "ATLANTIC"); KIMLEY-HORN and ASSOCIATES, INC., a foreign
corporation registered to do businesses in tile State of Florida (hereinafter "KHA."); NATIONAL
FlRE INSIJRA,NCE COMPANY OF l'Li\RTFORD, a foreign corporation (hereinafter "NATION,i\l,
FIRE"); and HAZEN AND SAWYER., P c., 8 f0reign cOlvoration (hereinafter "H&S") effective as
of the 2'" day of January, 2007.
1. WHEREAS, this Settlemcnt Agreement mises ii'om the construction and
improvements at the Project known as the "South Pointe StreetS cape Improvements Phase I"
(hereinafter the "Project"); and
2. VvlIEREAS, in or about August, 2000, MBRA and ATLANTIC entered into an
Agreement for ATLANTIC to perfonn ceJ1ain improvements at the Project; and
3. WHEREAS, on or abont February 17, 1999, MBRA and KHA entered into an
Agreement, with suhsequent amendments which called for I<HA to provide services which included
but were not limited to: professional en~,'ineeJing, landscaping, and arclntectura1 services for design
and implementation of street improvements for the Project; and
4. WHEREAS, on or about Jm1llary 3], 2001, MBRA and H&S entered into an
Agreement wherein H&S was to provide, among other tlnngs, program manager services to the
Project; and
5. WHEREAS, NATiONAL FIRE, as Surety, provided a Perfon11311ce Bond for tins
Project naming ATLANTIC as P,incipal and MBRA as Obligee; and
Page I 0[8
$f1/
6. WHEREAS, Royal and SunAlliance USA ("RSA") and DPIC, a unit of RSA
provided a policy ofinsnrance to KIli\; and
7. WHEREAS, ATLANTIC has asserted monetary claims against MBRA for damages
arising out ofthe pelfol1nance under the Agreement between MBRA and ATLANTIC; and
8. VVHEREAS, MBRA has asserted a claim for damages against NATIONAL FlRE
based upon the PerfOlmance Bond issued by NATIONAL FTRE to ATLAtWIC; and
9. \\'llEREAS, I'vrnRi; bas asserted a claim for damages against Kl-LA for
indemnification based upon the claims made by ATLANTIC against MBR";'.; and
1 O. \VHEREAS, KHA has asserted a claim for contlibution and illdemnification against
H&S as a result of the claims nlade by MBRA against KHA;
11. WHEREAS, H&S intends to asserted a claim against KHA for attomey's fees and
costs pursuant to Fla, Stat 1)57.105, among other things, if this litigation were to continue; and
12. WHEREAS, each p31ty has denied liability as to the d31112.ges claimed against it as
described above; and
13. WHEREAS, MBRA; ATLANTIC; NATIONAL FIRE; KHA and H&S have agreed
to resolve 31ld settle all claims asserted or tilat could have been asselted in the case styled: Atlantic
Civil. Inc, v. Miami Beach Redevelopment Agency, Case No.: 01-23635 CA 09 in tile Circuit Couti of
the Eleventh Judicial Circuit in and for !'\.1iami-Dade COUJ1lY, F10lida.
NOW THEREFORE, in consideration of the premises and of the mutual coven31lts
contained herein and otiler good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
14. TIle Parties agree that the foregoing recitals are true arld COlTect and that such recitals
are incorporated herein by reference.
Page 2 of8
./11II
15. MBRA will pay the sum of$I,500,OOO.00 to ATLANTIC between January 17, 2007
and January 23,2007, which amount represents a compromised sum as full and complete payment of
sums due by lvlBRA to A TL\.c"lTIC relating to this Project.
16. DPIC and RSA will pay, on behalfofKHA, the sum of$2,875,000.00 to ATI..ANTlC
between January 17, 2007 and January 23,2007, which amount represents a compromised sum as filll
and fIllal payment ofthe claims made by I\1BRA against KHA.
17. H&S agrees to f(Jrbear its daim for attOJ11cy'S fees and costs set forth above,
18. In consideration of the undel1akings described above, each P81ty to this Agreement
releases and forever disc.harges each other Party. together v..ritb its agents, representatives, present or
fon11er en1ployees, officers, insurers, attomeys, predecessors, successors, assigns, heirs, executors,
subsidiaries, parents and affiliates, and any of them, fi'om any and all claims, liabilities, demands,
obligations, costs, attorneys' fees, actions and causes of actions of every nature, character and
description which each P811y has held or now holds or may hold in the future, against each other
Party, atising out of the Project referenced in P81'agraph 1. With respect to MERA, the Release shall
inure to the benefit of all current 8l1d fonner elected and appointed offIcial.s of tbe City of Mianri
Beach.
19. ACI shall indemnify and hold IvlBRA hannless fi'om all claims of subcontractors atld
material suppliers providulg labor. services or mate:tials to the Project.
20. Upon ACI's receipt of the payments set forth above, the Parties shall file a Joint
Stipulation for Disnrissal with Prejudice of the action referenced in Paragraph 13, above.
2!. Each p81ty to this Agreement agrees to bear its own attorney's fees atld costs
associated with the action set ti:mh in P81'agraph 13, above.
22. Each person sigtring this Agreement W81Tants that he or she has full legal power to
execute tlris Agreement on behalf of the Palty for whom he or she is signing, and to bind and obligate
Page 3 of8
fI(1
such Party with respect to all provisions contained in this Agreement, except that as to the Miami
Beach Redevelopment Agency, a Resolution approving this Settlement in open session is required.
23. This Settlement Agreement contains the entire agreement between the Parties to this
Agreement, and the tenns ofthe Agreement are contractual and not a merely recital. The Parties to
this Agreement agree that all prior negotiations and understandings between the Parties have been
merged herein and that this Agreement may not be modified or changed, except by a writing signed
by a duly authorized representative of each Party.
IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on the
date first above written.
(Corporate Seal)
MIAMI BEACH REDEVELOPMENT
AGENCY
By: t-~ ~/-
~rg . Gon;alez, E;,~rr.e@D
~t\~%Ab-
,
(
It squire
Generalounse1
1700 Convention Center Drive
Fourth Floor
Miami Beach, Florida 33139
Siegfried Rivera Lerner De La Torre & Sobel, P.A.
201 Alhambra Circle, Suite 1102
Coral Gables, Florida 33134
As A rneys for Miami Beach Rede pment Agency
Page 4 of8
a~
ATLANTIC CIVIL, INC.
~~,~~\)
(Corporate Seal)
)
: Ss
COUNTY OF MIAMI-DADE)
The foregoing instmment was acknowledged before me this 1'1 fA day of Deeember, 2006 by
Sff;..l/c- 0 'Se- Jr<. of ATLANTIC CIVIL, INC., on behalf of ATLANTIC CIVIL,
INC. H She is person' Iv known to me or produced jJ lit as identification
and did/did not take an oath. '
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STATE OF FLORIDA
. ~~.
Slgnature- Notary he
f:$ey:
MAG/HI f.
Printed Name of Notary Public
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(SEAL)
By:
Page 5 of8
(Corporate Seal)
KIMLEY-lIORN II"" 7.:'A1"~ INC.
By: (J.w. L.
Title: ~.nVI...~~...J!_+
ATIEST:
STATE OF FLORIDA )
: Ss
COUNTY OF MIAMI-DADE)
~. e foregoing instrument was acknowledged before me this ~ day of December, 2006 by
e!> L, I>eeo{ of KIMLEY-HORN & ASSOCIATES, INC., on behalf of
KIMLEY-HORN & ASSOCIATES, INC. He/She is personally known to me or produced
("I &00 152- 53 2 ,g. as identification and did/did not take an oath.
~\~ ..'?';~' ./ .o.oJ
~v'<,:~_
Si -N' IC
j !\rJ\fj 6oV\~it'" -:) Q.
Printed Name of Notary P lie
(SEAL)
Daniels Kashtan Downs Robertson & Magathan
3300 Ponce De Leon Boulevard
Coral Gables, Florida 33134
As Attorneys for Kimley-Horn & Associates, IDe.
~ ~
'., I
By: . Gt..-
t:?' Josep W.'i;~~I' Esquire
,.yes 8QNF1Gl.IO JR.
. .., J M\IC._otflorldl
, >l: _ """""",,,"3110
. . III eooo::. . OD 813211
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Page 6 of8
(Corporate Scal)
NATIONAL FIRE INSURANCE
COMPANY OF HARTFORD
ATrE~ 11i~
By: T~ ~rt5 ylM '7(; '5
Title: -L1r.ifl.f!,fIlA/?;;Ot:1 A-G{r1V I
STATEOFFLORIDA )
: Ss
COUNTY OF MIAMI-DADE)
27.
'_.-j 111e f~egoing instrument was acknowledged before me this /1 day of December, 2006 by
!ft,4-nu"A/ 21c--u.4../ of NATIONAL FIRE INSURANCE COMPANY OF
HARTFORD on behalf of NATIONAL FIRE INSURANj::E COMPANY OF HARTFORD. He/She
is personally known to me or produced ...././.....- as identification and did/did not
take an oath.
: ... .... ...'...... ......
. .OFFICIAl SEAL. '.
: MARIA M. MEDINA .
: Notory Public. State of IItlnoIa .
. MV Commission Expires ~It 5109
.......................
. .
)10.~h.--/}{J,,~
Signature- Notary Public'.
M fft:.11f. /h. /h. ED /I,) fI-
Printed Name of Notary Public
(SEAL)
Page 7 of8
(Corporate Seal)
HAZEN AND SAWYER, P.C.
I~ C'
By: fcU:R.u.t." 0- ~
Title:~lG Vfi.E:S \ Da-,\
ATTEST:
~..
c::::
J /)1/r;;;:;J-'-,_.
c'
STATE OF FLORIDA )
: Ss
COUNTY OF MIAMI-DADE)
The foregoing instrwnent was acknowledged before me this ~ day of December, 2006 by
'?/'-'\9.IC-I'- A \).1:>.,;,5 of HAZEN AND SAWYER, P.C. on behalf of HAZEN AND
SAWYER, P.C. He/She is personally known to me or produced as
identification and did/did not take an oath,
(l ;J
y~L4.4/ !(f~_L
Signature- Notary Public
S',):'5 AN /!e 1(:,./-1
Printed Name of Notary Public
(SEAL)
~J\. - RlIietI
\.~j My Commlaalon 00'1_
0Ii~'- Expirel January 09. 2007'
Moye, O'Brien, O'Rourke, Pickert & Martin, LLP
800 South Orlando Avenue
Maitland, Florida 32751
As Attorney fo azen and , P.c.
By:
Page 80f8
JII(