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Home My WebLink AboutR-2025-194 Burkhardt Third Amendment to CMAR Agreement CW ThomasRESOLUTION NO. 2025-194 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING THE THIRD AMENDMENT TO THE CONSTRUCTION MANAGER AT RISK AGREEMENT WITH BURKHARDT CONSTRUCTION, INC. FOR THE CW THOMAS PARK IMPROVEMENTS; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. . WHEREAS, the original Contract was executed on September 19, 2022; Amendment No. 1 and Amendment No. 2 modified portions of the Contract, including the Guaranteed Maximum Price (“GMP”); and WHEREAS, under Article 11 of the Contract, the Construction Manager is required to maintain continuous, uninterrupted insurance coverage, including Commercial General Liability, Automobile Liability, Workers’ Compensation, and other policies as specified in the Contract; WHEREAS, the Construction Manager allowed its required Builder’s Risk insurance coverage to lapse for the period of time during the performance of the Work; and WHEREAS, while the Construction Manager has since reinstated its required insurance coverage, the insurance carrier is unable provide retroactive coverage for the period of the lapse; and WHEREAS, pursuant to the Third Amendment Contractor provides the City with requires assurance that it will not bear any financial exposure arising from acts, omissions, incidents, claims, losses, damages, or liabilities occurring during the lapse in insurance coverage. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the foregoing “Whereas” clauses are ratified and confirmed and are incorporated herein by this reference as the legislative findings of the City Commission. Section 2. That the City Commission hereby approves the third amendment with Burkhardt Construction, Inc. for the Construction Manager at Risk services for the CW Thomas Park, park improvements, a copy of which Third Amendment is attached as Exhibit A, and is incorporated into this Resolution by this reference. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are hereby repealed to the extent of such conflict. Section 4. That this Resolution shall be effective ten (10) days after passage. 2 RESOLUTION #2025-194 PASSED AND ADOPTED on December 9, 2025. Motion by Commissioner Lewellen, second by Vice Mayor Salvino. FINAL VOTE ON ADOPTION: Unanimous X Yes No Commissioner Lori Lewellen ____ ____ Commissioner Luis Rimoli ____ ____ Commissioner Archibald J. Ryan IV ____ ____ Vice Mayor Marco Salvino ____ ____ Mayor Joyce L. Davis ____ ____ ATTEST: ELORA RIERA, MMC JOYCE L. DAVIS CITY CLERK MAYOR APPROVED AS TO FORM AND CORRECTNESS: EVE A. BOUTSIS CITY ATTORNEY AMENDMENT NO. 3 TO CONSTRUCTION MANAGER-AT-RISK CONTRACT FOR C.W. THOMAS PARK IMPROVEMENTS THIS AMENDMENT NO. 3 (“Amendment”) to the Construction Manager-at-Risk Contract (“Contract”) between the City of Dania Beach, Florida (“Owner”) and Burkhardt Construction, Inc. (“Construction Manager” or “Contractor”) is made and entered into by the parties as of the date of last execution below. WHEREAS, The original Contract was executed on September 19, 2022; Amendment No. 1 and Amendment No. 2 modified portions of the Contract, including the Guaranteed Maximum Price (“GMP”). This Amendment No. 3 supplements the Contract as follows: WHEREAS, under Article 11 of the Contract, the Construction Manager is required to maintain continuous, uninterrupted insurance coverage, including Commercial General Liability, Automobile Liability, Workers’ Compensation, and other policies as specified in the Contract; and WHEREAS, the Construction Manager allowed its required Builder’s Risk insurance coverage to lapse for a period of time during the performance of the Work; and WHEREAS, while the Construction Manager has since reinstated its required insurance coverage, the insurance carrier has not and will not provide retroactive coverage for the period of the lapse; and WHEREAS, the City requires assurance that it will not bear any financial exposure arising from acts, omissions, incidents, claims, losses, damages, or liabilities occurring during the lapse in insurance coverage; NOW, THEREFORE, for good and valuable consideration the acceptance of which is acknowledged, the parties agree as follows: 1. Uninsured Builder’s Risk Period A new section is hereby added to Article 11 (Insurance) of the Contract: 11.17 Uninsured Builder’s Risk Period Due to a lapse in Builder’s Risk Insurance under this Contract, and because such insurance was not in effect retroactively, the Construction Manager hereby expressly agrees to assume full and complete responsibility and liability for any and all claims, losses, damages, costs, expenses, injuries, or liabilities of any kind whatsoever that occurred, arose, or are alleged to have arisen during the period in which the Construction Manager failed to maintain required insurance coverage (“Uninsured Period”). The Construction Manager’s responsibility under this Section applies only to losses, damages, or claims that otherwise would have been covered by the required Builder’s Risk insurance had such coverage been in effect during the Uninsured Builder’s Risk Period. Such responsibility includes, but is not limited to: 1. Damage to the Work, materials, equipment, or property to be incorporated into the Work; 2. Losses from theft, vandalism, fire, weather, or other causes typically insured under Builder’s Risk policies; 3. Costs incurred by the City to repair, replace, or mitigate damage to the Work that Builder’s Risk insurance would have covered; 4. Delay-related costs arising from damage to the Work that would have been insured; 5. Any claim by subcontractors, suppliers, or third parties arising from or relating to damage to the Work that would have been insured. This assumption of liability applies solely to risks normally covered under Builder’s Risk insurance and does not apply to risks covered by General Liability, Auto, Workers’ Compensation, or other insurance policies under Article 11. This assumption of liability applies regardless of whether the Construction Manager was negligent, unless the claim arises solely from the City’s negligence. This provision survives completion of the Work and final payment. 2. Builder’s Risk Co-Insurance Provision The Contractor may maintain a Builder’s Risk insurance policy that includes a co-insurance provision, provided that such coverage is otherwise compliant with all requirements of this Contract. However, the Contractor shall be solely responsible for any portion of a loss that is not recoverable under the Builder’s Risk insurance policy due to the application of a co-insurance penalty or other policy limitation. This responsibility includes, but is not limited to: • The difference between the amount of loss incurred and the amount recoverable under the policy due to underinsurance or valuation; • Any deductible, co-insurance penalty, or percentage-based reduction in coverage that reduces the total recovery otherwise available for a covered loss; • Any additional costs, damages, or expenses the City incurs as a result of the reduced insurance recovery. The City shall not bear any risk or financial exposure resulting from the Contractor’s election to maintain a Builder’s Risk policy with a co-insurance provision. This obligation survives completion of the Work and final payment. 3. No Waiver of City Rights Nothing in this Amendment shall constitute a waiver of any rights, remedies, or claims available to the City under the Contract, at law, or in equity, including the right to pursue default remedies for failure to maintain required insurance. 4.. No Other Modifications Except as expressly modified by this Amendment No. 3, all other terms, conditions, requirements, and obligations of the Contract, as previously amended, remain unchanged and in full force and effect. 5. Effective Date This Amendment No. 3 becomes effective upon full execution by both parties. SIGNATURE PAGE FOLLOWS IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year hereinabove written. CITY: ATTEST: CITY OF DANIA BEACH, FLORIDA a Florida Municipal Corporation ELORA RIERA, MMC JOYCE L. DAVIS CITY CLERK MAYOR APPROVED AS TO LEGAL FORM AND CORRECTNESS: EVE A. BOUTSIS ANA M. GARCIA, ICMA-CM CITY ATTORNEY CITY MANAGER Dated: _____________, 2025 CONTRACTOR Burkhardt Construction, Inc. Witnesses: By: ______________________________ Signature ______________________________ (Print or Type Name) Print Name ______________________________ Title ___________________________________ (Print or Type Name) STATE OF FLORIDA COUNTY OF _______________ The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, on this ____ day of ______________________, 2025, by _____________________ as ___________________ of Burkhardt Construction, Inc., a Florida corporation, authorized to conduct business in Florida on behalf of the corporation. He is personally known to me or who has produced (type of identification) as identification. NOTARY’S SEAL: NOTARY PUBLIC, STATE OF FLORIDA (Name of Acknowledger Typed, Printed or Stamped) Commission Number