Agenda 03/13/2012 Item #11J3/13/2012 Item 1 U.
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement and Release with RWA, Inc. pertaining to
consulting services provided under Contract No. 07 -4112, in connection with Project No. 51803,
Gateway Triangle Stormwater Improvements — Phase 2 Construction, and to authorize payment.
OBJECTIVE: Recommendation that the Board approve a Settlement Agreement and Release
with RWA, Inc. ( "RWA ") to settle all outstanding claims pertaining to consulting services
provided by RWA under Contract No. 07 -4112, the Gateway Triangle Stormwater
Improvements — Phase 2 Construction Project (the "Project ").
CONSIDERATIONS: This stormwater improvement Project experienced considerable
unforeseen underground issues related to directional boring under US41 at Palm Street due to
unstable subsurface conditions. On July 27, 2011, the Board of County Commissioners
approved Change Order #6 under Contract No. 10 -366 with the Project's general contractor,
Stevens & Layton ( "S &L ") to complete the work by performing an open cut across US41. That
Change Order provides a detailed accounting of a series of events that led the county and S &L to
abandon further attempts to cross US41 with a directional bore and to instead proceed with an
open cut on US41 to install a southerly outfall pipe for the stormwater management system.
The original plans for the Project showed the directional bore going through the caprock laver.
S &L attempted the directional bore in the soft soils below the caprock but could not complete
any of its attempts due to collapsing drill holes. The county's soil borings went well below the
caprock to determine the soils conditions at the location of the attempted directional bores.
County staff found the soils to be extremely weak and subject to caving in around the entry hole.
S &L attempted one final directional bore below the caprock with a new drilling subcontractor
but this attempt also failed.
When the county initially became aware of problems with the directional bore, staff reviewed the
plans and geotechnical reports to determine whether any fault could be attributed to RWA in
approving the plans. The plans RWA proposed were typical of similar projects; including the
successful directional bore utilized to go across Davis Boulevard on this very same project. The
county had additional soil borings taken on the south side of the roadway and verified that the
soil conditions mirrored that of the soil borings on the north side of the road.
County staff then directed S &L to attempt the bore through the caprock, as shown on the plans.
S &L refused to attempt this, claiming it could fracture the caprock and trigger a collapse of the
roadway. While the borings at each side of the road show the same depth of caprock, there is no
guarantee that the caprock isn't thinner in the middle of the road; so the concerns expressed by
this experienced underground contractor were reasonable. While county staff would have
preferred that S &L attempt a directional bore through the caprock, staff did not wish to assume
risking the potential collapse of US41.
County staff coordinated with S &L and RWA to provide the services necessary to complete a
successful crossing of US41. RWA developed plans for the open cut crossing and obtained the
necessary permits from the Florida Department of Transportation after participating in a number
Packet Page -1063-
3/13/2012 Item 1 U.
of meetings prior to approval. Ultimately, S &L successfully completed an open cut crossing of
US41.
As noted above, county staff directed S &L to accomplish the boring according to the plans
certified by RWA but the contractor declined based upon the multiple failed attempts and its
concern that doing so could result in a collapse of the roadway. The county did not force an
attempt to perform a directional bore according to the plans approved by RWA notwithstanding
the fact that: (1) the plans had been reviewed and approved by a drilling contractor during
design and (2) a similar boring crossing at Davis Boulevard was successful on the same Project.
Rather, county staff elected not to force an attempt to directionally bore according to plan to
avoid the risk of collapsing the roadway in the process.
RWA submitted an invoice in the amount of $36,000.00 for its services to proceed with the open
cut crossing rather than the directional bore it certified in the design plans. The county
acknowledges that RWA performed substantial additional services to facilitate the open cut
crossing and that ultimately staff decided against compelling the contractor to perform the
directional bore according to plans approved by RWA due to the potential risk that the roadway
could collapse. Simply put, the risk of going forward outweighed the possibility that US41
would not be traversable for a substantially long time if the roadway were to collapse. County
staff negotiated a reduction of RWA's final invoice from $36,000.00 to $27,000. The reduction
balances the additional services RWA provided to assist with the successful open cut against the
inability to successfully complete the directional bore as shown in the plans.
FISCAL IMPACT: Funds in the amount of $27,000.00 are available in the Stormwater Capital
Program. Source of funds are ad valorem.
LEGAL CONSIDERATIONS: RWA presented claims totaling $36,000.00 consisting of
engineering consulting services performed to complete the open cut crossing for the Project.
RWA agrees to release all claims against the county arising out of the Project for the
compromised sum of $27,000.00. The proposed settlement amount is reasonable and
recommended to avoid the potential costs of probable litigation absent an agreement to resolve
this dispute. This item has been reviewed and approved by the County Attorney's Office, is
legally sufficient for Board action, and requires majority vote for approval. —SRT
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board approves a Settlement Agreement and Release with
RWA, Inc., in the amount of $27,000.00, as a compromise of disputed claims comprising
engineering consulting services under Contract No. 07 -4112.
Prepared by: Scott R. Teach, Deputy County Attorney
Attachments: Settlement Agreement and Mutual Release
Packet Page -1064-
3/13/2012 Item 1 U.
COLLIER COUNTY
Board of County Commissioners
Item Number: 111
Item Summary: Recommendation to approve a Settlement Agreement and Release with
RWA, Inc. pertaining to consulting services provided under Contract No. 07 -4112, in connection
with Project No. 51803, Gateway Triangle Stormwater Improvements — Phase 2 Construction,
and to authorize payment.
Meeting Date: 3/13/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary, County Attorney
3/5/2012 12:39:21 PM
Approved By
Name: AhmadJay
Title: Director - Transportation Engineering,Transportation Engineering & Construction Management
Date: 3/5/2012 2:17:00 PM
Name: TeachScott
Title: Deputy County Attorney,County Attorney
Date: 3/5/2012 2:30:30 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 3/5/2012 4:05:59 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 3/5/2012 4:40:52 PM
Name: OchsLeo
Title: County Manager
Date: 3/5/2012 5:24:14 PM
Packet Page -1065-
3/13/2012 Item 11.J.
SETTLEMENT AGREEMENT AND RELEASE BETWEEN
COLLIER COUNTY AND RWA, INC.
THIS SETTLEMENT AGREEMENT AND RELEASE (hereinafter referred to as the
"Agreement ") is entered into and made as of March 13, 2012, by and between Collier County
(hereinafter referred tp as "the County "), a political subdivision of the State of Florida, and
RWA, Inc. (hereinafter referred to as "RWA "), a Florida corporation with its main office located
in Naples, Florida.
WITNESSETH:
WHEREAS, on December 8, 2008, the County opened Work Order Number
45001031156 under Contract No. 07 -4112 with RWA for the provision of professional design,
surveying and engineering support services on the Gateway Triangle Stormwater Improvements
— Phase 2 Construction, Project No. 51803 (the "Project "); and
WHEREAS, the Project included the installation of a stormwater improvements within
the right of way of U.S. 41 at the intersection of US 41 and Palm Street in Collier County,
Florida, which extended less than two hundred feet on either side of the US 41 right of way; and
WHEREAS, the prompt completion of the Project was impeded by numerous
unforeseeable unstable surface conditions, which delayed both the means and the method of
timely completing the Project, and resulted in additional expense incurred by both the contractor
on the Project, Stevens and Layton, Inc., as well as RWA; and
WHEREAS, those unforeseeable conditions resulted in a change from a directional bore
drilling under US41 and Palm Street to an open cut, requiring the preparation of additional plans
and obtaining necessary permits from the Florida Department of Transportation ( "FDOT "); and
WHEREAS, RWA's continued provision of professional engineering support services
to: (1) oversee the placement of the multiple attempted directional bores and subsurface piping,
(2) prepare plans to provide for an alternative course of construction involving an open cut on
US41, and (3) facilitating the procurement of required permits from FDOT was a critical and
necessary aspect of completing the Project; and
WHEREAS, RWA claims it incurred additional fees related to its extended oversight of
the Project through completion in the sum of $36,000.00 but is willing to accept the reduced sum
of $27,000.00 as negotiated with the County in compromise of a disputed claim for
reimbursement; and
1
Packet Page -1066-
Em
3/13/2012 Item 11.J.
WHEREAS, the County believes that compromised sum of $27,000.00 is consistent with
the general engineering services provided by RWA under Work Order Number 45001031156
and Contract No. 07 -4112, which services are not being criticized or considered deficient or
below the standard of care, and concurs that it accurately reflects the time and resources spent by
RWA on the Project; and
WHEREAS, in the interest of avoiding litigation, which has not been brought by RWA,
with its attendant costs and uncertainties, the Parties to wish settle all outstanding claims
pertaining to the engineering and surveying consulting services it provided under Work Order
Number 45001031156 and Contract No. 07 -4112, by County paying the reduced, compromised
amount of $27,000.00, in exchange for it being released with respect to any claim that RWA has
made, or could make, arising from the matters set forth above.
NOW, THEREFORE, in consideration of the foregoing Recitals, and other good and
valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged,
the Parties agree as follows:
1. County shall pay RWA, within 30 days from the date first set forth above, the
sum of $27,000.
2. In consideration of this sum, RWA, on behalf of itself, its officers, employees,
shareholders, directors, agents, representatives, members, affiliates and subsidiaries, and the
successors and assigns of each of them, hereby releases County from any claims, damages and
causes of action which were or which could have been asserted related to Contract 4 07 -4112 and
with respect to Work Order Number 45001031156, pertaining to the Gateway Triangle
Stormwater Improvements — Phase 2 Construction, Project No. 51803,that RWA may have had,
may now have, or hereafter may have, concerning or arising out of any facts, allegations or
circumstances, from the beginning of time to the date of this Agreement.
3. Each Party represents to the other Party, as a material condition for their entering
into this Agreement, except for those matters set forth in the recitals, neither Party is aware of
any claim or potential cause of action it may presently have against the other.
4. The Parties understand and agree that this Settlement is the compromise of a
disputed claim for payment and that County agrees and understands that as of the date of this
Packet Page -1067-
2
3/13/2012 Item 1 U.
Agreement County does not have any concerns or criticism of the design professional work
provided by RWA.
5. Each Party acknowledges and agrees that this Agreement is the product of mutual
negotiation and no doubtful or ambiguous language or provision in this Agreement is to be
construed against any Party based upon a claim that the Party drafted the ambiguous provision or
language or that the Party was intended to be benefited by the ambiguous provision or language.
6. This Agreement is the entire understanding between the Parties with respect to the
matters set forth herein, superseding any and all prior discussions, written or oral. This
Agreement may be amended only by a written instrument specifically referring to this
Agreement and executed with the same formalities as this Agreement. This Agreement shall be
governed by the laws of the State of Florida. The Parties agree that any dispute which arises
concerning the either the enforcement or the terms of this Agreement shall be brought to any
State Court having competent jurisdiction located within Collier County.
REMAINDER INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW,.'
3
Packet Page -1068-
-011�1I
3/13/2012 Item 1 U.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and
year first above written.
Attest:
DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
LION
wa
, Deputy Clerk FRED W. COYLE, Chairman
Approved as to form and
legal sufficiency:
Scott R. Teach
Deputy County Attorney
I
Packet Page -1069-
4
3/13/2012 Item 11.J.
As to RWA, Inc.
Name: Christopher O Wright, P.E.
Title: CEO
STATE OF FLORIDA:
COUNTY OF COLLIER:
The foregoing Agreement was acknowledged before me this day of
, 2012, by of RWA, Inc., who is
personally known to me or has produced as proof of identity.
[NOTARIAL SEAL]
Signature of Person Taking Acknowledgment
Packet Page -1070-
E