Agenda 02/08/2011 Item #16K2
2/8/2011 Item 16.K.2.
EXECUTIVE SUMMARY
Recommendation to approve a contract with Trauner Consulting Services, Inc., for expert
consulting services to the County in the amount of $75,000 for the case of Ker Enterprises,
Inc., d/b/a Armadillo Underground v. APAC-Southeast, Inc. v. Collier County, Case No. 09-
8724-CA (Vanderbilt Beach Road Project No. 63(51) (Fiscal Impact an additional $75,(00).
OBJECTIVE: That the Board of County Commissioners approve the attached contract with
Trauner Consulting Services, for expert consulting services to the County in the amount of
$75,000.00 for the case of Ker Enterprises, Inc" d/b/a Armadillo Underground v. APAC-
Southeast, Inc. v, Collier County, Case No. 09-8724-CA (Vanderbilt Beach Road Project No.
63051 ).
CONSIDERATIONS: Pursuant to the County Purchasing Policy, Board approval is needed for
the County Attorney's Office to enter into a contract over $50,000 for expert consulting services
in litigation matters. The County Attorney's Office initially chose Helman Hurley Charvat
Peacock/Architects, Inc. (HHCP) to provide consulting services; and on September 14,2010, the
Board of County Commissioners approved a contract for $75,000 for that expert. Thereafter,
additional communications from HHCP revealed that it would not be able to agree to the terms
of the County's proposed contract. The County Attorney's Offi.ce, with input from staff, has
chosen expert consultant Trauner Consulting Services, Inc., to assist the County in its defense of
the claims in this action that amount to approximately $7 million dollars. Attached to this
-- Executive Summary is the proposed contract listing the consultant's scope of services in this
lawsuit. The County Attorney is requesting the funds previously appropriated for HHCP be re-
appropriated to Trauner Consulting Services, Inc.
This agreement is being procured under Section VII.H of the purchasing policy, which addresses
the hiring of outside experts pursuant to litigation and is therefore exempt from formal
competition.
FISCAL IMPACT: Funds in the amount of $75,000 will come from Transportation impact
fees and gas taxes. Source of flmds are gas taxcs and impact fees, Funds are available in FY
2011.
GROWTH MANAGEMENT IMP ACT: There is no growth management impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: This item is legally sut1icient for Board action. Approval of
this item requires a majority vote of the Board. JWH
RECOMMENDATION: That the Board of County Commissioners approve a contract with
Trauner Consulting Services to provide expert consulting services to the County in the amount of
$75,000.00 for the case of Ker Enterprises, Inc, , d/b/a Armadillo Underground v. APAC-
Southeast, Inc. v. Collier County, Case No, 09-8724-CA (Vanderbilt Beach Road Project No.
63051 ).
.---
PREPARED BY: Jacqueline Williams Hubbard, Litigation Section Chief
08-3496-CA:4310
Packet Page -680-
2/8/2011 Item 16.K.2.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K,2.
Item Summary: Recommendation to approve a contract with Trauner Consulting Services,
Inc., for expert consulting services to the County in the amount of $75,000 for the case of Ker
Enterprises, Inc., d/b/a Armadillo Underground v. APAC-Southeast, Inc, v, Collier County, Case
No. 09-8724-CA (Vanderbilt Beach Road Project No, 63051) (Fiscal Impact an additional
$75,000).
Meeting Date: 2/8/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
1/25/2011 11 :58:49 AM
Approved By
Name: AhmadJay
Title: Director - Transportation Engineering,Transportation Engineering & Construction Management
Date: 1/25/2011 2:10:03 PM
Name: TaylorLisa
Title: ManagementlBudget Analyst,Transportation Administr
Date: 1/25/20] 1 3:54:47 PM
Name: WardKelsey
Title: Manager - Contracts Administration,Purchasing & Ge
Date: 1/26/2011 12:20:42 PM
Name: CarnellSteve
Title: Director - Purchasing/General Services,Purchasing
Date: 1/26/2011 12:29:02 PM
Name: HubbardJacqueline
Title: Section ChieflLitigation,County Attorney
Date: 1/2612011 3:04:36 PM
Name: FederNorm
Packet Page -681-
2/8/2011 Item 16.K.2.
Title: Administrator - Gro",1h Management Div,Transportati
Date: 1/26/20114:22:37 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 1/27/2011 4:55:36 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 1/29/20119:54:11 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 1/31/2011 4:29:24 PM
Name: OchsLeo
Title: County Manager
Date: 1/31/2011 6:26:22 PM
Packet Page -682-
2/8/2011 Item 16.K.2.
AGREEMENT
for
EXDert Consultant Services
THIS AGREEMENT, made and entered into on this day of , 2011, by and
between Trauner Consulting Services, Inc., a foreign corporation authorized to do business in the State
of Florida, whose business address is 5337 Millenia Lakes Boulevard, Suite 200, Orlando, Florida
32839, hereinafter called the "Contractor" or "Consultant," and Collier County, a political subdivision of
the State of Florida, Collier County, Naples, hereinafter called the "County":
WIT N E SSE T H:
1. COMMENCEMENT. The Contractor shall commence the work on the Vanderbilt Bcach Road
Project arbitration and litigation case, Case Number 08-3496-CA, on the date of the issuance of a
Purchase Order with this Agreement.
The general terms and conditions of this Agreement shall be for the duration of the litigation case
through trial, commencing as stated above and terminating at the conclusion of trial.
2. STATEMENT OF WORK. The Contractor shall provide independent consulting services in
connection with certain issues arising out of the construction of the Project during the arbitration
and litigation of the case styled Ker Enterprises dlbla Armadillo Underground v, AP AC-Southeast,
Inc. v, Collier County, Case No. 08-3496-CA, now pending in thc Twentieth Judicial Circuit in
and for Collier County, It is anticipated that Richard E. Burnham, Director, will be the primary
person involved in research, analysis and opinion development. The scope of services will be
defined in a series of phases as work hereunder proceeds as shown in the attached Scheduled
Scope of Services through delivery of a written report prior to May 1, 2011. As of the date of
execution of this Agreement the agreed-upon scope is that which is attached hereto as Attachment
A.
This Agreement contains the entire understanding between the parties and any modifications to
this Agreement shall be mutually agreed upon in writing by the Contractor and the County, in
compliance with the County Purchasing Policy and Administrative Procedures in effect at the time
such services are authorized,
3. THE CONTRACT SUM. The County has established a "Maximum Budget Amount" of$75,000
for the Contractor's work hereunder, inclusive of all work listed in Attachment A, allowable
expenses, and travel costs, The budget will he adjusted as necessary as the parties agree to budget
amounts for additional phases of work and add the scope of work related to those subsequent
phases by adding to or amending Attachment A. The hourly rates are as set forth in the attached
hourly fee schedule attached hereto as Attachment B.
4. PAYMENTS:
A. Payments will be made for services furnished, delivered, and accepted, upon receipt and
approval of invoices submitted on the date of services or within six (6) months after
completion of the services under this Agreement. Any untimely submission of invoices
Page I of7
Packet Page -683-
2/8/2011 Item 16.K.2.
beyond the specified deadline period is subject to non-payment under the legal doctrine of
"laches" as untimely submitted, Time shall be dccmcd of the essence with respect to the
timely submission of invoices under this Agreement.
B. For a term agreement use: Payment will be made upon receipt of a monthly invoice
submitted to the County Attorney or his designee and upon approval of the Collier County
Transportation Department, and in compliance with Chapter 218, Fla, Stats" otherwise
known as the "Local Government Prompt Payment Act."
5. COMPENSATION: The County shall pay the Contractor for the performance of this Agreement
upon completion or partial completion of the work tasks as accepted and approved by the County
Attorney or his designee pursuant to the fees as set forth in this Agreement, together with the
Travel and Reimbursable Expenses as defined in this Agreement. Payments shall be made to the
Contractor when requested as work progresses, but not more frequently than once per month, on
an hourly basis in accordance with the hourly fee schedule set forth in Attachment B for the
services and at costs for Travel Expenses set forth below. Payment will be made upon receipt of a
proper invoice and in compliance v.;th Chapter 218, Fla, Stats" otherwise known as the "Local
Government Prompt Payment Act."
6. TRAVEL AND REIMBURSABLE EXPENSES. Travel and Reimbursable Expenses must be
approved in advance in v.Titing by the County. Travel expenses shall be reimbursed as per Section
112,061, Fla. Stats.
Reimbursements shall be at the following rates:
.-------
Mileage I $0.445 per mile
Breakfast j $6,00 (when travel begins before 6:00 ~)
I Lunch I $11. 00 (when travel begins before noon
.___ I and extends beyond 2:00 pm)
I Dinner ~19,OO (when travel begins before 6:00 pm
_n- O and extends beyond 8:00 pm)
Airfare I Actual ticket cost limited to tourist or coach
! class fare
..
Rental car Actual rental cost limited to compact or
standard-size vehicles
Lodging Actual cost of lodging at single occupancy
rate with a cap of no more than $150.00 per
night
Parking Actual cost ofp~JdnjL_
Taxi or Airport Actual cost of either taxi or airport limousine
Limousine ~---L_o 0
Reimbursable items other than travel expenses shall be limited to the following: telephone long-
distance charges, fax charges, photocopying charges and postage. Reimbursable items will be paid
only after Contractor has provided all receipts. Contractor shall he responsible for all other costs
and expenses associated with activities and solicitations undertaken pursuant to this Agreement.
Page 2 of?
Packet Page -684-
2/8/2011 Item 16.K.2.
7. SALES TAX. Contractor shall pay all sales, consumer, use and other similar taxes assoeiated
with the work or portions thereof, which are applicable during the performance of the work.
8. NOTICES. All notices from the County to the Contractor shall be deemed duly served if mailed
or faxed to the Contractor at:
Richard E. Burnham, Director
Trauner Consulting Services, lnc,
5337 Millenia Lal(es Boulevard, Suite 200
Orlando, F]orida 32839
Telephone: (407) 345-0366
Facsimile: (407) 248-9535
E-Mail Address:rick.burnham(a2traunerconsulting.com
All Notices from the Contractor to the County shall be decmcd duly served if mailed or faxed to
the County to:
Collier County Attorney's Office
c/o Jacqueline Hubbard, Litigation Section Chief
3299 Tamiami Trail, East, Suite 800
Naples, Florida 341]2
Telephone: (239) 252-8400
Facsimi]e: (239) 884-0225
E-Mail Address:iacquelinehubbard@.colliergov.net
The Contractor and the County may change the above mailing addresses and telephone or
facsimile numbers at any time upon giving the other party written notification, All notices under
this Agrecment must be in writing.
9, NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a
partnership between the County and the Contractor or to constitute the Contractor as an agent of
the County,
] O. NO IMPROPER USE. The Contractor will not use, nor suffer or permit any person to use in any
manner whatsoever, County facilities for any improper, immoral or offensive purpose, or for any
purpose in violation of any federal, state, county Dr rnunicipal ordinance, rule, order o~ regulation,
or of any governmental rule or regulation now in effect or hereafter enacted or adopted, In the
event of such violation by the Contractor or if the County Dr its authorized representative shall
deem any conduct on the part of the Contractor to be objectionable or improper, the County shall
have the right to suspend this Agreement with the Contractor. Should the Contractor fail to correct
any such violation, conduct, or practice to the safisfaction of the County within twenty-four (24)
hours after receiving notice of such violation, conduct, or practice, such suspension to continue
until the violation is cured. The Contractor further agrees not to commence operation during the
suspension period until the violation has been corrected to the satisfaction of the County. .
Page 3 of7
Packet Page -685-
2/8/2011 Item 16.K.2.
11. TERMINATION. Should the Contractor be found to have failed to perform his services in a
manner satisfactory to the County as pcr this Agreement, the County may terminate this
Agreement for cause; further the County may terminate this Agreemcnt for convenience with a
thirty (30) day written notice. Thc County shall be sole judge of non-performance.
12. NO DISCRIMINATION. The Contractor agrees that there shall be no discrimination as to race,
sex, color, creed or national origin.
13. INSURANCE. The Contractor shall provide insurance as follows:
A. Commercial General Liabilitv: Coverage shall have minimum limits of $1,000,000 Per
Occurrence, Combined Single Lirnit for Bodily Injury Liability and Property Damage
Liability. This shall include Premises and Operations; Independent Contractors; Products
and Completed Operations and Contractual Liability,
B. Business Auto Liabilitv: Coverage shall have m1111rnum limits of $500,000 Per
Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage
Liability, This shall include: Owned Vehicles, Hired and Non-Owned Vehicles and
Employee Non-Ownership.
C. Workers' Comvensation: Insurance covering all employees meeting Statutory Limits in
compliance with the applicable state and federal laws,
The coverage rnust include Employers' Liability with a minimum limit of $500,000 for each
accident.
Special Requirements: Collicr County Government shall be listed as the Certificate Holder
and included as an Additional Insured on the Comprehensive General Liability Policy, A
copy of the insurance certificates shall be attached to this Agreernent.
Current, valid insurance policies meeting the requirement herein identified shall be
maintained by Contractor during the duration of this Agrecment. Renewal certificates shall
be sent to the County ten (10) days prior to any expiration date. There shall be a thirty (30)
day notification to the County in the evcnt of cancellation or modification of any stipulated
insurance coverage,
Contractor shall insure that all subcontractors comply with the same insurance requirements
that the Contractor is required to meet. The sarne Contractor shall provide County with
certificates of insurance meeting the required insurance provisions,
14, INDEMNIFICATION. To the maximum extent permitted by Florida law, the
ContractorlV endorlConsultant shall indemnify and hold harmless Collier County, its officers and
employees from any and all liabilities, damages, losses and costs, including, but not limited to,
reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence,
rccklessness, or intentionally wrongful conduct of the ContractorlV endor/Consultant or anyone
employcd or utilized by the Contractor/Vendor/Consultant in the performance of this Agreement.
Page 4 of7
Packet Page -686-
2/8/2011 Item 16.K.2.
This indemnification obligation shall not be construed to negate, abridge or reduce any other rights
or remedies which otherwise may be available to an indemnified party or person described in this
paragraph.
This section does not pertain to any incident arising from the sole negligence of
ColJier County.
15. CONTRACT ADMINISTRATION. This Agreement shall be administered on behalf of the
County by the ColJier County Attorney's Office and the Collier County Transportation
Administration department.
16. CONFLICT OF INTEREST: Contractor represents that it presently has no interest and shall
acquire no interest, either direct or indirect, which would conflict in any manner with the
performance of services required hereunder. Contractor further represents that no persons having
any such interest shall be employed to perform those services,
17. COMPONENT PARTS OF THIS CONTRACT. This Agrcement consists of the attached
component parts, all of which are as fully a part of the Agreement as if herein set out verbatim,
18. SUBJECT TO APPROPRIATION. It is further understood and agreed by and between the
parties herein that this Agreement is subject to appropriation by the Board of County
Commissioners.
19. PROHIBITION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall
offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to
any County employee, as set forth in Chapter 112, Part III, Florida Statutes, Collier County Ethics
Ordinance No. 2004-05, and County Administrativc Procedure 5311. Violation of this provision
may result in one or more of the following consequences: a) prohibition by the'individual, firm,
and/or any employee of the firm from contact with County staff for a specified period of time; b)
prohibition by the individual andlor firm from doing business with the County for a specified
period of time, ineluding but not limited to: submitting bids, RFP, and/or quotes; and, c) immediate
termination of any contract held by the individual and/or firm for cause.
20. IMMIGRATION LAW' COMPLIANCE. By executing and entering into this Agreement, the
Contractor is formally acknowledging without exception or stipulation that it is fully responsible
for complying with the provisions of the Immigration Reform and Control Act of 1986 as located
at 8 D,S.C. 1324, et seq, and regulations relating thereto, as either may be amended. Failure by the
Contractor to comply with the laws referenced herein shall constitute a breach of this Agreement
and the County shall have the discretion to unilaterally terminate this Agreement immediately,
21. OFFER EXTENDED TO OTHER GOVERNMENTAL ENTITIES. Collier County
encourages and agrees to the successful proposer extending the pricing, terms and conditions of
this solicitation or resultant contract to other governmental entities at the discretion of the
successful proposer.
Page 5 of7
Packet Page -687-
2/8/2011 Item 16.K.2.
22. AGREEMENT TERMS. If any portion of this Agreement is held to be void, invalid, or
otherwise unenforceable, in whole or in part, the remaining portion of this Agreement shall remain
in effect.
23. ADDITIONAL ITEMS/SERVICES. Additional items andlor services may be added to this
Agreement upon satisfactory negotiation of price by the County Attorney or his designee and the
Collier County Transportation Administration department.
24. DISPUTE RESOLUTION, Prior to the initiation of any action or proceeding permitted by this
Agreement to resolve disputes between the parties, the parties shall make a good faith effort to
resolve any such disputes by negotiation. The negotiation shall be attended by representatives of
Contractor with full decision-making authority and by County's staffpcrson who would mal,e the
prescntation of any settlement reachcd during negotiations to County for approval. Failing
resolution, and prior to the commencemcnt of depositions in any litigation between the parties
arising out of this Agreement, the parties shall attempt to resolve the dispute through mediation
before an agrecd-upon Circuit Court Mediator certified by thc State of Florida, The mediation
shall be attended by representatives of Contractor with full decision-making authority and by
County's staff person who would make the presentation of any settlement reached at mediation to
County's board for approval. Should either party fail to submit to rnediation as required
hereunder, the other party may obtain a court order requiring mediation under Section 44,102, Fla,
Stats,
Any suit or action brought by either party to this Agreement against the other party relating to or
arising out of this Agreement rnust be brought in the appropriate federal or state courts in Collier
County, Florida, which courts have sole and exclusive jurisdiction on all such matters,
25. KEY PERSONNELIPROJECT STAFFING: The proposer's personnel and managernent to be
utilizcd for this project shall be knowledgeable in their areas of expertise. The County reserves the
right to perform investigations as may be deemed necessary to insure that competent persons will
be utilized in the performance of the contract. Selected firm shall a~sign as many people as
necessary to complete the project on a timely basis, and each person assigned shall be available for
an amount of time adequate to meet the dates set forth in the Project Schedule. Firm shall not
change Key Personnel unless the following conditions are met: (I) Proposed replacements have
substantially the same or bctter qualifications andlor experience. (2) that the County is notified in
writing as far in advance as possible, Firm shall make commercially reasonable cfforts to notify
Collier County within seven (7) days of the change, Thc County retains final approval of proposed
replacement personnel.
Page 6 of7
Packet Page -688-
2/8/2011 Item 16.K.2.
IN WITNESS WHEREOF, the Contractor and the County, have each, respectively, by an authorized
person or agent, hereunder set their hands and seals on the date and year first above written.
ATTEST:
Dwight E. Brock, Clerk of Courts
By:__
, Deputy Clerk
Vd'1V
First Witness
...
Richard E. Burnham
tType/print witness namet
~J~ ~ .~ss.
Second Witness
Teri B. Doss
tType/print witness name t
Approved as to form and
legal sufficiency:
~tb~
r
II V Vt-Y.
J 4queline Hubbard, Liti~ation Section Chief
ICe of the County Attorney
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Pred W, Coyle, Chairman
CONTRACTO~CONSULTANT
TRAUNER CONSULTING SERVICES, INC,
a Foreign Corporation
BY:~~ cz;:;,~
Theodore /~;;ne:: ~CEO
Page 7 of7
Packet Page -689-
2/8/2011 Item 16.K.2.
ATTACHMENT A
SCOPE OF SERVICES
KER Enterprises, Inc, d/b/a Armadillo Underground v, AP AC-SE, et al v, Collier County
Case ~o, 08-3496-CA
Vanderbilt Beach Road Project 63051
PHASES SERVICES UPTO I
AMOUNT
I Schedule Delay Analysis to Substantial Completion _~_ $19,000
"-_.-- $ 4,000
II Meeting with County Staff and Consultants I
to review their attribution of the causes of delays to
Substantial Completion
----- - .~--_._-
III Schedule Delay Analysis to Interim Milestones $29,000
IV I Written Report of Schedule Delay Analyses to Substantial $18.000
I Completion and Interim Milestones (prior to May 1, 2001 I
Mediation)
V I Meeting with County Staff and Consultants $5,000
, to review their attribution of the cause of delay to Interim
! Milestones and Finalize Report (also prior to May 1, 2011
_ _Mediation)
I -----"-
---~
TOTAL:
$75,000
Packet Page -690-
2/8/2011 Item 16.K.2.
ATTACHMENT B
FEE SCHEDULE
KER Enterprises, Inc. d/b/a Armadillo Underground v. AP AC-SE, et al v, Collier County
Case No. 08-3496-CA
Vanderbilt Beach Road Project 63051
. TRAUNER STAFF HOURLY RATE
-------
PRINCIPALS $295 - $475
DIRECTORS $180-$250
CONSULTING STAFF $105 - 185
TECHNICAL/SUPPORT STAFF $75 - 105
Packet Page -691-