HomeMy WebLinkAboutReso 2013-2036 •
RESOLUTION NO. 2013- 203/
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING THE THIRD
AMENDMENT TO DESIGN-BUILD AGREEMENT BETWEEN THE
CITY OF SUNNY ISLES BEACH AND 4M INVESTORS, LLC.,
("CONTRACTOR") IN SUBSTANTIALLY THE SAME FORM
ATTACHED HERETO AS EXHIBIT "A"; PROVIDING FOR 15 DAYS
ACCEPTANCE PERIOD FOR CONTRACTOR TO ACCEPT THIRD
AMENDMENT; AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT; AUTHORIZING THE CITY MANAGER AND CITY
ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE
THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach is the owner of certain real property consisting of
approximately 3.7 acres on Sunny Isles Boulevard; and
WHEREAS, on July 21, 2011, via Resolution No. 2011-1735, the City Commission entered
into an Agreement with 4M Investors, LLC for certain parcels of real property located in the City
which the City owns and upon which it intends to have constructed site improvements consisting of a
Park and Parking Garage for Gateway Park located in the City of Sunny Isles Beach; and
WHEREAS, Section 2.3 of the Agreement allows the Parties to amend the Contract
Documents by written amendment; and
WHEREAS, the City and Contractor agreed to enter into this Third Amendment to the
Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Third Amendment to the Design-Build Agreement. The Third
Amendment to Design Build Agreement between the of City of Sunny Isles Beach and 4M Investors;
LLC for a Park and Parking Garage in Gateway Park in substantially the same form attached hereto as
Exhibit "A" is hereby approved.
Section 2. Acceptance Period. The City Commission provides the Contractor with a 15 day
acceptance period to accept the terms of the Third Amendment. The 15 day acceptance period ends
15 days from adoption of this Resolution.
Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Third
Amendment to Agreement.
Section 4. Authorization of the City Manager and City Attorney. The City Manager and the City
Attorney are hereby authorized to do all things necessary to effectuate the intent of this Resolution.
Section 5. Effective Date. This Resolution shall become effective upon adoption.
Approving The Third Amend To Design Build Agmt Page I of 2
PASSED AND ADOPTED this 21st day of March 2013.
N an S. Edelcup'Mayor
ATTEST:
Jane A. Hines. CMG, City Clerk
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APPROVE I AS TO FORM
A
D D Ad S„� FICIENCY:
�l
H.Erittinot, City Attorney
Moved by: Vick 1► \Q.t l or Pt l oa
Seconded by: cprnhY∎0 :0-Cf∎oA ENO LL
Vote: CO
Mayor Edelcup t/ (Yes) (No)
Vice Mayor Aelion V (Yes) (No)
Commissioner Gatto ✓(Yes) (No)
Commissioner Levin r/f,Yes) (No)
Commissioner Scholl V(Yes) (No)
Approving The Third Amend.To Design Build Agmt Page 2 of 2
THIRD AMENDMENT TO DESIGN-BUILD AGREEMENT
BETWEEN
THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS, LLC
THIS THIRD AMENDMENT ("Amendment") is made as of this of 2013
and shall be effective as of the Effective Date (as defined herein) by and among THE CITY OF
SUNNY ISLES BEACH, FLORIDA (hereinafter "CITY") and 4M INVESTORS LLC
(hereinafter"CONTRACTOR"), hereinafter collectively referred to as Party or Parties.
WITNESSETH
WHEREAS, the CITY and CONTRACTOR are parties to Design-Build Agreement
("Agreement") executed on July 21, 2011, a full and complete copy of which is attached hereto
and incorporated herein as Exhibit "A"; and
WHEREAS, Section 2.3 of the Agreement allows the Parties to amend the Contract
Documents by written amendment; and
WHEREAS_. the CITY and CONTRACTOR desire to execute a written amendment to the
Agreement; and
NOW, THEREFORE, in consideration of the terms and conditions contained herein and
for other good and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. The above-referenced recitals are true and correct and are incorporated herein.
2. All other terms of a particular provision in the Agreement not otherwise expressly
modified herein shall remain in full force and affect.
3. Project Definition. Sections 1.8, 1.17, and 1.20 of the Agreement are amended to
reflect the term "Project" or "Work" includes a (a) 374 space Parking Garage Building with
approximately a sixteen thousand (16000) square feet multi-purpose shell on the first floor of the
Parking Garage; (b) Park; (c) Performance Stage; and (d) Pedestrian Bridge connecting the north
side of the Park to the north side of 826 West (subject to obtaining all necessary approvals set forth
in Section 5 below). The Project is generally described in the schematic proposal attached hereto
as Exhibit"B" and the Shopping List provided by the City which is attached hereto as Exhibit"C".
4. Revised GMP. This Paragraph amends Sections 1.13, and 5.1, of the Agreement.
Except for the construction costs for the Pedestrian Bridge, the revised Guaranteed Maximum
Price (`'GMP") for this Project shall be Eighteen Million Eight Hundred Six Thousand Four
Hundred Eighty Four Dollars Seventy Cents ($18,806,484.70). This GMP shall include design
fees and costs associated with the construction of the following: (a) the 374 space Parking Garage
Building with the multi-purpose shell; (b) Park; and (c) Performance Stage. This GMP shall also
include design costs for the Pedestrian Bridge. The construction costs of the Pedestrian Bridge
shall be governed by Section 6 below. The GMP prior to this Amendment was Sixteen Million
Five Hundred Thousand Dollars ($16,500,000.00).
(a) This Paragraph amends Section 5.1.2 of the Agreement. The CITY shall
receive a credit against the revised GMP in the amount of One Million Three Hundred
Sixty Six Thousand Four Hundred Eighty Four Dollars and Seventy Cents
($1,366,484.70) for payments made for pay applications submitted for design services.
As of the result of the credit, the revised GMP shall be reduced to Seventeen Million
Four Hundred Forty Thousand Dollars ($17,440,000.00). The CITY agrees to provide the
CONTRACTOR a remaining balance payment of Seventy Nine Thousand Three
Hundred Thirty Five Dollars and Thirty Cents ($79,335.30) to complete the design plans
for the Pedestrian Bridge based on applications for payment submitted to the City. The
sum total of One Million Two Hundred Seventy Nine Thousand Three Hundred Thirty
Five Dollars and Thirty Cents (51,279,335.30) shall be attributed to the design phase of
the Project. Ownership in the signed and sealed 100% "Issued for Construction" set of
Plans and Specifications shall vest in the CITY once a permit is issued to commence
construction.
(b) This Paragraph deletes the text of Section 5.1.3 of the Agreement in its
entirety. Section 5.1.3 relates to the selection of a restaurant operator by the Contractor.
This is no longer a requirement of the Agreement.
5. Design of Pedestrian Bridge and Required Approvals. The CONTRACTOR
agrees to provide the CITY within five (5) days after this Third Amendment is executed by both
Parties a written list of those items it claims it needs from the CITY in order to finish the design of
the Pedestrian Bridge. The CITY agrees to provide the CONTRACTOR the information requested
(to the extent the information is available and within the care, custody or control of the CITY) no
later than thirty (30) days of the request in order to assist the CONTRACTOR's Architect with
completing the design of the Pedestrian Bridge. The CONTRACTOR agrees and understands that
a complete set of design plans for the Pedestrian Bridge are necessary for the CITY to secure
approvals ("Approvals") from Florida Power & Light ("FPL"), the Florida Department of
Transportation ("FDOT") and the Plaza of Americas. The CITY agrees to secure the Approvals
within ninety (90)days from the date that construction commences on the Parking Garage Building
and the Park or by January I, 2014, whichever occurs first. If the CITY fails to secure the
Approvals within the time prescribed, then the CONTRACTOR shall donate to the CITY One
Hundred Thousand Dollars ($100,000.00) to be used by the CITY to pay another contractor to
construct the Pedestrian Bridge. If for whatever reason, the CITY fails to secure the Approvals and
the Pedestrian Bridge must be built by another contractor, the CITY shall not be liable to the
CONTRACTOR for any direct, indirect, special and/or consequential losses or damages whether
arising in agreement, warranty, tort (including negligence) strict liability or any other cause of
action at law or inequity, including but not limited to losses of use, profits, business, reputation or
financing associated with the Pedestrian Bridge or this Project in any way. If the CITY is required
to secure the services of another contractor to construct the Pedestrian Bridge, then the CITY shall
be entitled to use the design plans prepared by the CON FRACTOR without any additional costs.
6. Construction of Pedestrian Bridge. The CONTRACTOR agrees to construct the
Pedestrian Bridge at cost plus ten percent (10%) of overhead. Pursuant to the Second Amendment
to the Agreement the total cost attributed to the Pedestrian Bridge by the CONTRACTOR was One
Million Nine Hundred and Seven Thousand Four Hundred Nine Dollars and Eighty Four Cents
(51.907,409.84). This cost figure included overhead and profit. As such, the parties agree to
amend the revised GMP to include a new price for the Pedestrian Bridge upon the securing of the
Approvals listed in Section 5 above.
7. Contract Time. Section 4.1 of the Agreement shall be amended to extend the
Contract Time. Time is of the essence. The CONTRACTOR agrees to complete the design and
construction of the entire Project no later than Three Hundred Sixty Five (365) days from the date
of issuance of a building permit for the Project, exclusive of the construction of the Pedestrian
Bridge. The CONTRACTOR agrees to apply for a building permit for the Project, except for the
Pedestrian Bridge, with the Building Department of the City of Sunny Isles Beach no later than
October 1, 2013. The CITY shall issue a Notice to Proceed for the construction of the Project,
except for the Pedestrian Bridge, upon the issuance of a building permit or no later than sixty (60)
days from the date of filing an application for building permit for the Project, whichever occurs
first.
8. Payment and Performance Bonds. Except for amendments herein, Article 10
shall remain in full force and effect and nothing herein in this Amendment shall be deemed to
modify or change the duties and responsibilities of the CONTRACTOR as it relates to securing a
payment bond and performance bond. Each bond must be for the full cost of the Project, excluding
the design costs, as required under Section 10.1.2. The performance bond includes the
performance of the CONTRACTOR with respect to the design of the plans as well as the
subsequent construction of the Project. This is a design build Project and has been since its
inception when the CONTRACTOR signed the Agreement on July 21, 2011. The CITY does not
waive and has not waived the CON I RACTOR's obligations to secure these necessary bonds. The
payment bond is likewise necessary for the design professionals who are performing services for
the CONTRACTOR on a subcontract basis as well as the subcontractors, material men, and other
laborers who perform services for the CONTRACTOR during the construction of the Project.
Section 10.1 of the Agreement requires the CONTRACTOR to secure these two bonds within
fifteen (15) days after the issuance of the Notice to Award which in this instance was in 2011, but
in any event prior to commencing the work on the Project which includes the design phase of the
Project. Section 10.1 of the Agreement is amended to require the CONTRACTOR to submit
payment and performance bonds, each in the amount of Sixteen Million Two Hundred Forty
Thousand Dollars (S16,240,000.000), upon the request of the CITY within five (5) days of
issuance of the building permit for the Project, exclusive of the Pedestrian Bridge. A separate
performance and payment bond shall be required for the Pedestrian Bridge. The CITY reserves all
of its rights under Article 10 to demand that the CONTRACTOR execute and furnish to the CITY
a performance and payment bond in a form acceptable to the CITY at any time.
(a) This Paragraph amends Section 10.2 of the Agreement. Payment and
performance bonds shall continue in effect for one (1) year after final payment becomes due except
as otherwise provided by law or regulation or by the Contract Documents with the final sum of
said bonds reduced after final payment to an amount equal to fifteen percent (15%) of the
Guaranteed Maximum Price:
9. Site Investigation. Section 13.8 of the Agreement is deleted in its entirety and
replaced with the following:
3
CONTRACTOR understands and agrees that any information provided to it by the CITY,
at any time, as to any aspect of the Project is not guaranteed. The CONTRACTOR acknowledges
that it has satisfied itself as to the nature and location of the Work, the general and local conditions,
particularly those bearing upon availability of transportation, disposal, handling and storage of
materials, availability of labor, water, electric power, and roads, the conformation and conditions at
the ground and all other matters which in any way affect the Work or the Guaranteed Maximum
Price. The CONTRACTOR further acknowledges that it has satisfied itself as to the character,
quality, and quantity of surface and subsurface materials to be encountered from evaluating
information included in the Contract Documents. Any failure by the CONTRACTOR to acquaint
itself with all the provided information will not relieve CONTRACTOR from responsibility for
properly estimating the difficulty or cost thereof under the Contract Documents.
10. Construction Hours. The CITY agrees to allow the CONTRACTOR to work on
Saturdays, if required.
11. Obligations. The Parties expressly agree that the CONTRACTOR shall not be
released from any and all duties, obligations and/or liabilities arising under or related to the
Agreement.
12. Conflict of Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Florida; without giving effect to the conflicts of law or
choice of law provisions thereof.
13. Signature. The Parties agree that a facsimile signature may substitute for and
have the same legal effect as the original signature.
14. Amendment. This Amendment shall be deemed fully executed on the date that
the last Party signs it.
SIGNATURES ON NEXT PAGE
4
IN WITNESS WHEREOF, CITY and CONTRACTOR agree to the above terms.
ATTEST: CITY OF SUNNY ISLES BEACH, FLORIDA
Jane A. Hines, CMC, City Clerk Norman S. Edelcup, Mayor
APPROVED AS TO FORM:
Hans Ottinot, City Attorney
4M Investors, LLC, a Florida limited liability
company ("CONTRACTOR")
Jose Milton
Print
Title
4M INVESTORS
Signed and dated this day of , 2013.
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 2013, by
who is personally known to me or who has produced
as identification.
(Signature of Notary Public - State of Florida)
(Print, Type or Stamp Commissioned Name of
Notary Public, Commission Number and
Expiration Date of Commission.)
5
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Cily Commission „ t .
Norman S.Edelcup March 6, 2013
Isaac Aelion Via Email Only
Vice Mayor
Jeanette Golfo Mr. Jose Milton
Commissioner 3211 Ponce De Leon Blvd., Suite 301
Jennifer Levin Coral Gables, FL 33.134
Commissioner
George"Bud"Scholl RE: Executed llemorandum
Col nmissim ier
Dear Jose:
Christopher J. Russo
ly Mati ger Please find attached the Memorandum executed by the undersigned that reiterates our
Hans Oi linol verbal agreement as it relates to the amendment to the contract with 4M Investors to build
City-:Atlorney
the Park, Parking Garage, and Pedestrian Bridge:
Jane A. Hines
city clerk.cmc
I have instructed the City Attorney and the City Manager to work with your attorney and
your son to draft the appropriate amendment to the contract, which is subject to the
approval of the City Commission.
Sincerely,
rman S. Edelcup
'Mayor
/Memorandum
cc: Hans Ottinot, City Attorney
Christopher J. Russo, City Manager
Joe Milton, 4MInvestors
Stephen J. Helfinan, Esq. Weiss Serota Helfman&Pastoriza PL
•
March 6, 2013
Memorandum
Verbal agreement between-Jose Milton (4M-investors) and Honorable
Mayor Norman Edelcup (City Mayor).
Jose Milton agrees in a reduction of the total price.of the new.contract-of
$1,225,000.00 for a total including the new design fees of the new project for a
total of $17,440,000:00. The $440,000.00.over $17;000,000.00 is the additional
cost for the metal panels of the garage $423,813.70 submitted to the City on
February 20, 2013 plus 4% increase, It makes'$440;000.00. Additional donation
made when the. City ordered Breaking Grotind Of project, 800 lineal feet of
decorative fence cost of$120,000.00 previously requested by theCity.
Previous reduction requested by Hon. Mayor Edelcup (2nd Amendment) for
stage park and garage 5% total cost. This reduction now of $1,225,000.00 is
approximately 6.5% of total cost make a total reduetion for the project of 11.5%.
Second donation that will be made to. the City by Jose Milton is the
Pedestrian Bridge at cost if the City gives to the Architect the information
- et t. start design Of the Pedestrian Bridge. The City needs to have FPL,
k h4 FDOT, and Plaza of America negotiations completed within 90 days after the
r1�d construction commences on the park/garage or by January '1,. 2014, whichever
comes first.
Definition of cost: Purchase cost of labor or material plus 10% overhead
cost which.is the minimum in the industry. Nobody charges less than 10%. It will
be zero profit to.Contractor.
•
I
If the City fails to give.Milton Architect the required:information within,the
requested time, Mr. Milton will donate to the City $100,000.00 to be used by the
City to pay another contractor for the cost Pedestrian Bridge,
Time Is of the essence. Schedule of time.
contract and schedule of payments must be signed within 30 days (1 month)
Estimated new project design 5 Months
Construction time after permit (bonded with penalty to $2,000 daily
for anytime to exceed) 12 Months
Total Time 18 Months
City agreed to let Contractor work on Saturdays, If required.
Performance bond by the Contractor will be issued within 5 days of
issuance of permit for the time needed to start construction to complete contract
in the total amount of$16;240,000.00.
The schedule of payments will be submitted to the City for approval and it
will be made in the basis-of completed parts of the work..
This memo is to help the Attorneys to write the agreement. Any other
clarification must be requested from Honorable Mayor Norman Edelcup or Jose
Milton that both will sign this memo.
Accepted as correct:
Jose Milt , Architet y•norabie Mayor'Norman Ed- cup
Contract r /ity of Sunny isles Beach
Preview Page 1 of 2
oES°""Y 'st City of Sunny Isles Beach
u = 18070 Collins Avenue
Sunny Isles Beach, Florida 33160
\--< �r
so' � sioa�° s.' (305)947-0606Cih Hall
°?.° un .a° (305)949-3113 Fax
MEMORANDUM
TO: • The Honorable Mayor and City Commission
FROM: Hans Ottinot, City Attorney
DATE: 3/21/2013
RE: Third Amendment to Design Build Agreement with 4M Investors, LLC
RECOMMENDATION:
This Resolution is presented for your consideration.
REASONS:
The City of Sunny Isles Beach ("City") wishes to enter into a Third Amendment to the Design-
Build Agreement with 4M Investors. LLC ("Contractor"). By way of background, the City of
Sunny Isles Beach is the owner of certain real property consisting of approximately 3.7 acres on
Sunny Isles Boulevard.
On July 21, 2011, via Resolution No. 2011-1735, the City Commission entered into an agreement
with Contractor for certain parcels of real property located in the City which the City owns and
plans to construct site improvements consisting of a Park and Parking Garage for Gateway Park
located in the City.
Section 2.3 of the Design-Build Agreement allows the parties to amend the agreement through
written amendment. Accordingly, the parties desire to enter into a Third Amendment to the
Design-Build Agreement to reflect a revised scope of project and new Guaranteed Maximum
Price. More precisely, the parties desire to revise the scope of the project to include (a) a 375
space parking garage building with approximately a sixteen thousand (16,000) square foot multi-
purpose shell on the first floor of the building; (b) Park; (c) Performance Stage; and (d)
Pedestrian Bridge.
The parties also desire to revise the Guaranteed Maximum Price ("GMP") to Seventeen Million
Four Hundred and Forty Thousand Dollars ($17,440,000.00) which includes design fees and
costs associated with the construction of the following: (a) 375 space Parking Garage Building
with the multi-purpose shell; (b) Park; and (c) Performance Stage. This new GMP shall also
http://sibagenda.sibfl.net/Agenda/Preview.aspx?ItemID=1001&MeetinglD=O&MeetingDa... 3/13/2013
Preview Page 2 of 2
include design costs for the Pedestrian Bridge. The GMP prior to this Third Amendment was
Sixteen Million Five Hundred Thousand Dollars ($16,500,000.00).
Please see attached, executed Memorandum re-iterating the parties verbal agreement regarding
this Third Amendment.
ATTACHMENTS:
• Approving the Third Amend. to Design Build Agmt
Approving the Third Amend. to Design Build Agmt
http://sibagenda.sibf .net/Agenda/Preview.asps?ItemID=1001&MeetingDD=0&MeetingDa... 3/13/2013
SUNNY iStE City of Sunny Isles Beach S.E Commission
of tr -,_�se Norman S.Edelcup.Mayor
a - s 18070 Collins Avenue, Suite 250 Isaac Action. Vice Mawr
ti -
— , Sunny Isles Beach, Florida 33160 Jeanette Gatto. Commissioner
Jennifer Levin,Commissioner
- (305)947-0606 City Hall George-Bud-Scholl.Commissioner
•� '5., (305)949-3113 Fax
sy erid R\ 'yce (305)947-2150 Building Department ChristopherJ.Russo City Manager
ejrr of SUM O (305)947-5107 Fax Jane A.Hinnes.CMC'C,�Clerk
MEMORANDUM
TO: The Honorable City Commission
FROM: Christopher J. Russo, City M gere'1
Hans Ottinot, City Attorney
DATE: March 21. 2013
RE: Revised Third Amendment to the Design-Build Agreement between the City of Sunny
Isles Beach and 4M Investors, LLC
As you may know, we met with representatives of 4M Investors, LLC ("Contractor") to discuss
pending issues relating to the Gateway Project. At the meeting, representatives of the Contractor
informed us there were four critical issues that they are requesting revisions from the original contract.
These critical issues are:
(1) design cost for the Pedestrian Bridge; and
(2) payment and performance bond after completion of the Project; and
(3) termination for convenience clause; and
(4) liability for unknown conditions on the site.
It is important to note that the Contractor is seeking to change provisions that it had agreed to in the
original contract.
As a result of the meeting, the City agreed to modify its Third Amendment to reduce the bonds amount
from 50% of the GMP to 15% of the GMP after completion of the Project. The City has agreed to pay
the additional costs associated with the bonds after the completion of the Project. Further, the City has
modified the site conditions liability exposure from a cost standpoint. However, the City is rejecting
the Contractor's request to eliminate the termination for convenience clause and request for additional
fees for the design of the Pedestrian Bridge. The City has agreed to pay $79,335.30 to finish the design
of the Pedestrian Bridge.
As a point of information, it is critical that all remaining terms of the original agreement stays intact.
The original agreement provides the City with the ability to manage the Project. If the City's ability to
manage the project is diminished by revisions requested by the Contractor, the Project will be more
expensive. _ Q___ _
Agenda Item to J
Date