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Agenda 09/14/2010 Item #16K 4 Agenda Item No. 16K4 September 14, 2010 Page 1 of 11 EXECUTIVE SUMMARY Recommendation to approve a contract with Sam Lee, HHCP, 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) (Fiscal Impact an additional $75,000.00). OBJECTIVE: That the Board of County Commissioners approve a contract with Sam Lee, HHCP, 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). CONSIDERA TIONS: 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. Attorneys and staff have chosen expert consultant Mr. Sam Lee, HHCP, 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. FISCAL IMPACT: Funds in the amount of $75,000 will come from Transportation impact fees and gas taxes. Source of funds are gas taxes and impact fees. Funds will be available in FY 2011. GRO'VTH MANAGEMENT IMP ACT: There is no groVvih management impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. JWH RECOMMENDA TION: That the Board of County Commissioners approve a contract with Sam Lee, HHCP, for expert consulting services to the County in the amount of $75,000.00 for the case of Ker Enterprises, Inc., d/b/a Annadillo 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 Agenda Item No. 16K4 September 14, 2010 Page 2 of 11 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K4 Recommendation to approve a contract with Sam Lee, HHCP, 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). 9/14/20109:00:00 AM Meeting Date: Prepared By Jacqueline W. Hubbard Assistant County Attorney Date County Attorney County Attorney Office 8/17/2010 2:40:42 PM Approved By Jacqueline W. Hubbard Assistant County Attorney Date County Attorney County Attorney Office 8/17/2010 2:46 PM Approved By Norm E. Feder, AICP Administrator - Transportation Date Transportation Division Transportation Administration 8/18/201010:28 AM Approved By Najeh Ahmad Director - Transportation Engineering Date Transportation Division Transportation Engineering & Construction Management S/25/2010 6:52 PM Approved By Lisa Taylor Management/Budget Analyst Date Transportation Division Transportation Administration S126/2010 12:51 PM Approved By Steve Carnell Director - Purchasing/General Services Date Administrative Services Division Purchasing & General Services 8/2S12010 8:32 AM Approved By Jeff Klatzkow County Attorney Date S/3112010 1:46 PM Approved By OMB Coordinator Date County Manager's Office Office of Management & Budget 9/1/20103:22 PM Approved By Susan Usher Management/Budget Analyst, Senior Date Office of Management & Budget Agenda Item No. 16K4 September 14, 2010 Page 3 of 11 Office of Management & Budget 914/201010:37 AM Approved By Leo E. Ochs, Jr. County Managers Office County Manager Date County Managers Office 9/7/20102:21 PM ,1, Agenda Item No. 16K4 September 14, 2010 Page 4 of 11 AGREEMENT for Expert Consultant Services THIS AGREEMENT, made and entered into on this day of August, 2010, by and between Helman Hurley Charvat Peacock/Architects, Inc. (HHCP), authorized to do business in the State of Florida, whose business address is 22 West Maitland Blvd., Maitland, FL 32751, 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 Beach Road Project arbitration and litigation case, Case Number 08-3496-CA, on the date of the issuance of a Purchase Order with this Agreement. .. 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 d/b/a Armadillo Underground v. AP AC-Soutbeast, Inc. v. Collier County, Case No. 08-3496-CA, now pending in the Twentieth Judicial Circuit in and for Collier County. It is anticipated that Sam Lee of HHCP, will be the primary person involved in research, analysis and opinion development. For the scope of services defined herein, see 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 Attorney or his designee, 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 shall pay the Contractor for the performance of this Agreement an estimated maximum amount $75,000.00 for work inclusive of all work listed in Attachment A and travel costs. The hourly rates are as follows: Sam Lee Hourly Rate = Michael Campbell Hourly Rate = Administrative/Research/Graphics Hourly Rate = $250.00 $175.00 $140.00 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 beyond the specified deadline period is subject to non-payment under the legal doctrine of Page 1 of7 " Agenda Item NO.1' 4 September 14, 2010 Page 5 of 11 "laches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this Agreement. B. For a term agreement use: The County shall pay the Contractor for the performance of this Agreement an estimated total amount not to exceed Seventy-Five Thousand and No/lOO Dollars ($75,000.00), based on the aggregate of the work performed under Attachment A. Payment will be made upon receipt of a proper 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 estimated percentage complete 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 with Chapter 218 Fla. Stats., otherwise known as the "Local Government Prompt Payment Act." - 6. TRA VEL AND REIMBURSABLE EXPENSES. Travel and Reimbursable Expenses must be approved in advance in writing by the County. Travel expenses shall be reimbursed as per Section 112.061 Fla. Stats. Reimbursements shall be at the following rates: Mileage $0.445 per mile Breakfast $6.00 (when travel begins before 6:00 am) Lunch $11.00 (when travel begins before noon and extends beyond 2;00 pm) Dinner $19.00 (when travel begins before 6:00 pm and extends beyond 8:00 pm) Airfare 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 of parking Taxi or Airport Actual cost of either taxi or airport limousine Limousine Page 2 of7 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 be responsible for all other costs and expenses associated with activities and solicitations undertaken pursuant to this Agreement. Aqenda Item No. 16K4 -September 14, 2010 Page 6 of 11 7. SALES TAX. Contractor shall pay all sales, consumer, use and other similar taxes associated with the work or portions thereof, which are applicable during the perfonnance 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: Helman Hurley Charvat Peacock / Architects, Inc. c/o Sam Lee, Senior Vice President 22 West Maitland Blvd., Maitland, FL 32751 Telephone Number: (404) 644-2656 Facsimile Number: (404) 760-0059 E-mail: SamLee:slee@HHCP.comORLibby:lbridges@HHCP.com All Notices from the Contractor to the County shall be deemed duly served if mailed or faxed to the County to: Collier County Attorney's Office c/o Jacqueline Hubbard, Litigation Section Chief 3301 Tamiami Trail, East Naples, Florida 34112 Telephone: 239-252-8400 Facsimile: 239-252-6300 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 Agreement 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. 10. 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 or municipal ordinance, rule, order or 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 or 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 satisfaction 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. 11. TERMINATION. Should the Contractor be found to have failed to perfonn his services in a manner satisfactory to the County as per this Agreement, the County may terminate this Agreement for cause; further the County may terminate this Agreement for convenience with a thirty (30) day written notice. The 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. Page 3 of7 Agenda Item No. 16K4 September 14, 2010 Page 7 of 11 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 Limit 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 mlmmum 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' Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. The coverage must include Employers' Liability with a minimum limit of $500,000 for each accident. Special Reauirements: Collier 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 Agreement. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Contractor during the duration of this Agreement. 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 event of canceIlation 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 same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. 14. INDEMNIFICATION. To the maximum extent permitted by Florida law, the ContractorN endor/Consultant 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, recklessness, or intentionally wrongful conduct of the ContractorN endor/Consultant or anyone employed or utilized by the ContractorN endor/Consultant in the performance of this Agreement. 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 Collier County. 15. CONTRACT ADMINISTRATION. This Agreement shall be administered on behalf of the County by the Collier County Attorney's Office and the Collier County Transportation Administration department. Page 4 of7 Agenda Item No. 16K4 September 14, 2010 Page 8 of 11 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 Agreement consists of the attached component parts, all of which are as fully a part of the Agreement as ifherein 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. PROHmITION 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 Administrative 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 and/or firm from doing business with the County for a specified period oftime, including but not limited to: submitting bids, RFP, and/or quotes; and, c) immediate termination of any contract held by the individual andlor 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 V.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. 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 v.rith full decision-making authority and by County's staff person who would make the presentation of any settlement reached during negotiations to County for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties Page 5 of7 Agenda Item No. 16K4 September 14, 2010 Page 9 of 11 arising out of this Agreement, the parties shall attempt to resolve the dispute through mediation before an agreed-upon Circuit Court Mediator certified by the 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 mediation as required hereunder, the other party may obtain a court order requiring mediation under Section 44.102, Fla. Stat. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must 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 PERSONNEL/PROJECT STAFFING: The proposer's personnel and management to be utilized 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 perfonnance of the contract. Selected firm shall assign 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. Pirm shall not change Key Personnel unless the following conditions are met: (1) Proposed replacements have substantially the same or better qualifications andlor experience. (2) that the County is notified in writing as far in advance as possible. Firm shall make commercially reasonable efforts to notify Collier County within seven (7) days of the change. The County retains final approval of proposed replacement personnel. 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 BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: , Deputy Clerk Fred W. Coyle, Chairman First Witness CONTRACTO~CONSULTANT HELMAN HURLEY CHARVAT PEACOCK! ARCHITECTS, INC., a Florida Corporation By: Sam Lee, Senior Vice President tType/print witness name t Second Witness tType/print witness name t Page 60f7 ,lI,genda Item No. 16K4 September 14, 2010 Page 10 of 11 Approved as to form and legal sufficiency: Jacqueline Hubbard, Litigation Sectl Office of the County Attorney Page 70f7 .. "w Agenda Item No. 16K4 September 14, 2010 Page 11 of 11 Attachment A ) HHCP SCOPE OF WORK VANDERBILT BEACH ROAD CONSTRUCTION CLAIM 1. Research and Analysis A. Project Document Review o Daily ReportslWork Directives/Inspector Reports o Change Orders o Photos o Meeting Minutes/Look Aheads o Field Notes B. Develop Timeline of Delays o Interview Personnel on Job 0, Analyze APAC Schedule (Criticality) - Time C. Opinion Development and Written Report o Formulate Questions to Assist during Discovery o Final Opinion Report The budget does not include Travel and Reimbursable Expenses (Item 3).