Loading...
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