CONSTRUCTION_AGREEMENT.pdf

EXHIBIT 1 - CONSTRUCTION CONTRACT AND FORMS

THIS AGREEMENT is dated as of the ____________ day of ________________ in the year 20____ by and between THE City OF FORT MYERS hereinafter called CITY) and _______________ (hereinafter called Contractor).

City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:

WITNESSETH

WHEREAS, the City desires to obtain the Services of said Contractor to provide and perform Services as further described hereinafter concerning the solicitation to be referred to and identified as: ITB >title, >#.

WHEREAS, the Contractor hereby certifies that Contractor has been granted and possesses valid, current licenses to do business in the State of Florida, in Lee County, and the City of Fort Myers, issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Contractor pursuant to this Agreement; and

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

Article 1. Contract Documents The Contract Documents, which comprise the entire agreement between the City and the Contractor concerning the Work consist of: 1) The advertised solicitation document, any addenda (if applicable), “Exhibit A” 2) The Respondents submittal, “Exhibit B” and also incorporate by reference: Drawings/Plans (if applicable), all Purchase Orders issued pursuant to the Solicitation documents, all amendments that may after the date of award be executed by the Contractor and the City, Certificates of Insurance, any other Solicitation Documents.

These items constitute the entire contract/agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters set forth herein, and any such prior agreements or understandings shall have no force or effect whatever on this Agreement.

Article 2. Work Contractor shall complete all Work as specified or indicated in the Contract Documents.

Article 3. Contract Time >(marked RESERVED if this doesn’t apply)

3.1 The Work will be substantially completed within >sub consecutive calendar days from the date when the Contract

Time commences and finally completed within >fin consecutive calendar days from the date when the Contract Time commences to run.

3.2 Liquidated Damages. City and Contractor recognize that time is of the essence of this Agreement and that City will suffer financial loss if the Work is not completed within the times specified in paragraph 3.1 above, plus any extensions thereof allowed. They also recognize the delays, expense and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by City if the Work is not completed on time. Accordingly, instead of requiring any such proof, City and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay City written in words_> dollars ($>$sub) for each day that expires after the time specified in paragraph 3.1 for Substantial Completion if Contractor shall neglect, refuse or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by City, Contractor shall pay City written in words_> dollars ($>$fin) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment.

Article 4. Contract Price

4.1 City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds as follows:

Written in Words Article 5. Contractor’s Representation In order to induce City to enter into this Agreement Contractor makes the following representations:

5.1 Contractor has familiarized themselves with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

5.2 Contractor has studied carefully all reports of exploration and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions (if applicable) and the General Conditions, and accepts the determination set forth in the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which Contractor is entitled to rely.

5.3 Contractor has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in paragraph 8.2 above) which pertain to the subsurface or physical conditions, at or contiguous to, the site or otherwise may affect the cost, progress, performance or furnishing of the Work as Contractor considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions; and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are, or will be, required by Contractor for such purposes.

5.4 Contractor has reviewed and checked all information and data shown, or indicated on the Contract Documents, with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are, or will be, required by Contractor in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions.

5.5 Contractor has correlated the results of all such observations, examinations, tests, reports and studies with the terms and conditions of the Contract Documents.

5.6 Contractor has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Contractor.

Article 6 - Obligations of the City

6.01 DESIGNATION OF CITY’S REPRESENTATIVE

The City agrees, after the execution of this Agreement, to promptly advise the Contractor, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the Contractor by the City’s Contract Administrator.

6.02 AVAILABILITY OF CITY INFORMATION

CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

At the Contractor’s request, the City agrees to provide to the Contractor, at no cost, all pertinent information known to be available to the City to assist the Contractor in providing and performing the required services.

Such information may include, but not be limited to: previous reports; plans, drawings and specifications;

maps; property, boundary, easement, right-of-way, topographic, reference monuments, control points, plats and related survey data; data prepared or services furnished by others to the City such as sub-surface investigations, laboratory tests, inspections of natural and man-made materials, property appraisals, studies, designs and reports.

6.03 AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

The City agrees that the Contract Administrator and the City Representative shall be available within a reasonable period of time, with reasonable prior notice given by the Contractor, to meet and/or consult with the Contractor on matters pertaining to the services to be provided and performed by the Contractor. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the Contractor.

6.04 ACCESS TO CITY PROPERTY

The City agrees to provide the Contractor with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the Contractor to provide and perform the required Services and work pursuant to this Agreement. Such rights of access shall not be exercised in such a manner, or to such an extent, as to impede or interfere with City operations, or the operations carried on by others under a lease, or other contractual arrangement with the City, or in such a manner as to adversely affect public health and safety.

Such access may, or may not be, within the Contractor's normal office and/or field workdays and/or work hours.

6.05 SUBMITTAL REVIEWS

Submittal reviews by City staff is only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions or programs incident thereto. The review does not relieve the Contractor from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

Article 7. Payment Procedures See General Conditions

Article 8 - Time and Schedule of Performance

8.01 TIME OF PERFORMANCE

Should the Contractor be obstructed or delayed in the execution or completion of its obligations under this Agreement and its Amendment(s), as a result of causes beyond the control of the Contractor, or its Sub- Contractor(s) and/or Sub-Contractor(s), and not due to their fault or neglect, the Contractor shall notify the City, in writing, within five (5) calendar days after the commencement of such delay, stating the cause(s) thereof and requesting an extension of the Contractor’s time of performance. Upon receipt of the Contractor’s request for an extension of time, the City will begin determination with the Contractor to length of extension and legitimacy of cause.

8.02 CONTRACTOR WORK SCHEDULE

The Contractor shall be required, as a condition of this Agreement, to prepare and submit to the City, on a monthly basis, commencing with the issuance of the Notice to Proceed, a Contractor’s Work Schedule. Said Schedule shall be updated at each pay request. The Work Schedule shall set forth the time and manpower scheduled for all of the various phases and/or tasks required to provide, perform and complete all of the services and work required for completion of the various phases, and/or tasks of the project services set forth and described in this Agreement, pursuant to this Agreement in such a manner that the Contractor’s planned and actual work progress can be readily determined. The Contractor’s Work Schedule of planned and actual work progress shall be updated and submitted by the Contractor to the City on a monthly basis.

8.03 FAILURE TO PERFORM IN A TIMELY MANNER

Notwithstanding anything to the contrary in Paragraph 8.02 above, should the Contractor fail to commence, provide, perform and/or complete any of the services and work required pursuant to this Agreement in a timely and diligent manner, the City may consider such failure as justifiable cause to terminate this Agreement. As an alternative to termination, the City at its option, may, upon written notice to the Contractor, withhold any or all payments due and owing to the Contractor, not to exceed the amount of the compensation for the work in dispute, until such time as the Contractor resumes performance of his obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements set forth in the Agreement, or any Supplemental Agreement(s), or Change Order(s) or Amendment(s) issued thereto.

Contractor shall not be responsible for failure to perform in a timely manner due to causes outside Contractor’s reasonable control.

Article 9. Conflict of Interest The Contractor represents that to the best of its knowledge and belief, 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.

The Contractor further agrees that no person having any such interest shall be employed or engaged by the Contractor for said performance.

If Contractor, for itself and on behalf of its Sub-Contractors, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by Contractor or such Sub- Contractor under this Agreement, then it will promptly bring such potential conflict of interest to the City'S attention, in writing. The City will then advise the Contractor, in writing, within ten (10) calendar days as to the period-of-time required by the City to determine if such a conflict of interest exists. If the City determines that there is a conflict of interest, Contractor or such Sub-Contractor shall decline the representation upon written notice by the City.

If the City determines that there is no such conflict of interest, then the City shall give its written consent to such representation. If Contractor or Sub-Contractor accepts such a representation without obtaining the City'S prior written consent, and if the City subsequently determines that there is a conflict of interest between such representation and the work being performed by Contractor or such Sub-Contractor under this Agreement, then the Contractor or Sub-Contractor agrees to promptly terminate such representation. Contractor shall require each of such Sub-Contractors to comply with the provision of this Section.

Should the Contractor fail to advise or notify the City, as provided hereinabove, of representation which could, or does, result in a conflict of interest, or should the Contractor fail to discontinue such representation, the City may consider such failure as justifiable cause to terminate this Agreement.

Article 10.00 - Assignment, Transfer and Sub-contracts The Contractor shall not assign or transfer any of its rights, benefits or obligations hereunder, without prior written approval from the City, except for transfers that result from: (1) the merger or consolidation of Contractor with a third party; or (2) the disestablishment of the Contractor’s practice and the establishment of a successor Contractor, or consulting organization. Nor shall the Contractor sub-contract any of its service obligations hereunder to third parties, except as otherwise authorized in this Agreement or Amendment(s) thereto, without prior written approval of the City.

The Contractor shall have the right, subject to the City’s prior written approval, to employ other persons and/or firms to serve as Sub-Contractors and/or Sub-Contractors to Contractor in connection with Contractor providing and performing services and work pursuant to the requirements of this Agreement. The City shall have the right and be entitled to withhold such approval. Such approval shall not be unreasonably withheld.

In the event that the Contractor in providing and performing the services and work required pursuant to this Agreement, Contractor intends to engage the assistance of the Sub-Contractor(s) and/or Sub-Contractor(s) Article 11 - Applicable Law Unless otherwise specified, this Agreement shall be governed by the laws, rules, and regulations of the State of Florida, or the laws, rules, and regulations of the United States when providing services funded by the United States Government.

The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the State or Federal courts in Lee County, Florida, for any and all claims or causes of action arising from or related to this Agreement.

Article 12 – Covenants Against Discrimination

12.1 FOR PROJECTS WITH FUNDS APPROPRIATED FROM GENERAL CITY REVENUES

The Contractor for itself, its successors in interest, and assigns as part of the consideration thereof, does hereby covenant and agree that in the furnishing of services to City hereunder, no person on the grounds of race, religion, national origin, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The Contractor shall make every effort to comply with any MBE goals, which have been established for this project.

12.2 FOR PROJECTS WITH FUNDS APPROPRIATED EITHER IN PART OR WHOLLY FROM FEDERAL, STATE SOURCES

OR OTHER SOURCES

The Contractor for itself, its successors in interest, and assigns as part of the consideration thereof, does hereby covenant and agree that in the furnishing of services to City hereunder, no person on the grounds of race, national origin, religion, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The Contractor shall comply with the Office of Federal Contract Compliance Programs (OFCCP) and Executive Order 11246 Affirmative Action.

Contractor who are uncertain of their obligations regarding MBE for this project must obtain a copy of all relevant federal, state or other grantor’s guidelines from the City OF FORT MYERS PROCUREMENT SERVICES. The failure of the Contractor to adhere to relevant guidelines shall subject the Contractor to any sanctions, which may be imposed upon the City.

Article 13 Insurance (see solicitation) Article 14 – Duties and Obligations Imposed on the Contractor The duties and obligations imposed upon the Contractor by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

Article 15 - Representation of the City The Contractor in providing and performing the services and work required pursuant to this Agreement, and Amendments thereto, shall only represent the City in the manner and to the extent specifically set forth in writing in this Agreement or Amendments thereto, and as provided in any written Supplemental Agreement(s), and Change Order(s) issued there under.

In the event the Contractor’s services or work involves construction contract administrative support services, the Contractor is not authorized to act on the City’s behalf, and shall not act on the City’s behalf, in such a manner as to result in change(s) to (1) the cost or compensation to be paid the construction contractor, or (2) the time for completing the work as required and agreed to in the construction contract, or (3) the scope of the work set forth in the construction contract documents, unless such representation is specifically provided for, set forth and authorized in this Agreement or Amendment thereto.

The City will neither assume nor accept any obligation, commitment, responsibility or liability, which may result from representation by the Contractor, not specifically provided for and authorized as stated hereinabove.

Article 16 – Waiver of Breach Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement.

Article 17 – Ownership of Documents

All documents such as drawings, tracings, notes, computer files, photographs, plans, specifications, maps, evaluations, reports and other records and data relating to this project, other than working papers, specifically prepared or developed by the Contractor under this Agreement, shall be property of the Contractor until the Contractor has been paid for providing and performing the services and work required to produce such documents.

Upon completion or termination of this Agreement, or upon the issuance by the City of a written Change Order deleting all or portions of the scope of services or task(s) to be provided or performed by the Contractor, all of the above documents, to the extent requested in writing by the City, shall be delivered by the Contractor to the City within seven

(7) calendar days of the City making such a request. In the event the City gives the Contractor a written Notice of Termination of all, or part of, the services or work required, or upon the issuance to the Contractor by the City of a written Change Order deleting all, or part of, the services or work required, the CONTRACTOR shall deliver to the City the requested documents as set forth hereinabove, with the mutual understanding and commitment by the City that compensation earned or owing to the Contractor, for services or work provided or performed by the Contractor prior to the effective date of any such termination or deletion, will be paid to the Contractor within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order. Effective date of any such termination or deletion will be paid to the Contractor within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order.

The Contractor, at its expense, may make and retain copies of all documents delivered to the City for reference and internal use. The Contractor shall not, and agrees not to, use any of these documents, and data and information contained therein, on any other project, or for any other client, without the prior expressed written permission of the City.

Any use by the City of said documents, and data and information contained therein, obtained by the City under the provisions of this Agreement, for any purpose not within the scope of this Agreement, shall be at the risk of the City, and without liability to the Contractor. The City shall be liable, and agrees to be liable for, and shall indemnify, defend and hold the Contractor harmless for any and all claims, suits, judgments or damages, losses and expenses including court costs, expert witness and consultation services, and attorneys' fees arising out of the City's use of such documents in a manner contrary to the provisions set forth hereinabove.

Article 18 – Maintenance of Records See General Conditions Article 19.

Article 19 – Headings The HEADINGS of the Articles, Sections, Exhibits, Attachments, Phases or Tasks, as contained in this Agreement, are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions contained in such Articles, Sections, Exhibits, Attachments, Phases or Tasks.

Article 20. Notices and Address of Record

20.1 All notices from the City to the Contractor shall be deemed duly served if mailed by registered or certified mail, hand delivered, or electronically transmitted to the Contractor at the following address:

Company Name: >

Attn: > Address: >

City, State Zip: > Phone: > Email: >

20.2 All notices from the Contractor to the City shall be deemed duly served if mailed by registered or certified mail, hand delivered, or electronically transmitted to the City at the following address:

City of Fort Myers Procurement Services, City Clerk, and

Attorney Office 2200 Second Street

Fort Myers FL 33901 Phone: 239.321.7232

Email: >email

20.3 Change of Address of Record. Either party may change its address of record by written notice to the other party given in accordance with the requirements of this Article.

Article 21 - Termination

This Agreement will terminate once the agreement is fully satisfied and accepted by the City. This Agreement may also be terminated by the City at its convenience, or due to the fault of the Contractor, by the City giving thirty (30) days written notice to the CONTRACTOR.

If the Contractor is adjudged bankrupt or insolvent; if it makes a general assignment for the benefit of its creditors; if a trustee or receiver is appointed for the Contractor or for any of its property; if it files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws; if it disregards the authority of the City’s designated representatives; if it otherwise violates any provisions of this Agreement; or for any other just cause, the City may, without prejudice to any other right or remedy, and after giving the Contractor a thirty (30) calendar day written notice, terminate this Agreement.

In addition to the City’s contractual right to terminate this Agreement in its entirety, as set forth above, the City may also, at its convenience, stop, suspend, supplement or otherwise change all, or any part of, the Scope Of Services, or the Project Guidelines and Criteria, or as such may be established by Supplemental Agreement or Change Order. The City shall provide written notice to the Contractor in order to implement a stoppage, suspension, supplement or change.

The Contractor may request that this Agreement be terminated by submitting a written notice to the City dated not less than thirty (30) calendar days prior to the requested termination date and stating the reason(s) for such a request. However, the City reserves the right to accept, or not accept, the termination request submitted by the Contractor, and no such termination request submitted by the Contractor shall become effective unless, and until, Contractor is notified, in writing, by the City of its acceptance.

21.1 Contractor TO DELIVER MATERIALS ON TERMINATION

Upon termination, the Contractor shall deliver to the City all papers, drawings, models, and other material in which the City has exclusive rights by virtue hereof or of any business done, or services or work performed or provided by the Contractor on behalf of the City.

Article 22 – Amendments/Modifications

Modifications to covenants, terms and provisions of this Agreement may be amended upon the mutual acceptance thereof, by both parties and shall only be valid when issued in writing as a properly executed Amendment(s), or Supplemental Agreement(s), or Change Order(s). In the event of any conflicts between the requirements, provisions, and/or terms of this Agreement and any written Amendment(s), Supplemental Agreement(s), and/or Change Order(s), the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

In the event the City issues a purchase order, memorandum, letter, or other instruments covering the Services, work and materials to be provided and performed pursuant to this Agreement, it is hereby specifically agreed and understood that such purchase order, memorandum, letter or other instruments are for the City's internal control purposes only, and any and all terms, provisions and conditions contained therein, whether printed or written, shall in no way modify the covenants, terms and provisions of this Agreement and shall have no force or effect thereon.

No modification, waiver, or termination of the Agreement, or of any terms thereof, shall impair the rights of either party.

Article 23 – Prohibition Against Contingent Fees The Contractor warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this agreement, and that he has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of this Agreement.

Article 24 - Acceptance IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement on the dates shown below to be effective the day and year first shown above.

Signatures on the Following Page

City OF FORT MYERS, FLORIDA a Municipal Corporation ATTEST:

By: ____________________________________ _________________________________ Kevin B. Anderson, Mayor Gwen Carlisle, MMC, Deputy City Clerk

Date: __________________________________

By: ____________________________________ Marty K. Lawing, City Manager

Date: __________________________________

APPROVED AS TO FORM:

Grant Williams Alley, City Attorney

[COMPANY NAME]

________________________________________ BY: _______________________________________ (Witness) (Authorized Signature)

(Witness) (Title)

DATE: ____________________________________

CORPORATE SEAL:

Jason Sciandra update

Attachment 1.

>FDOT Contracts Only

SPECIAL CONTRACTING METHODS

16.1 OVERVIEW

16.2 ALTERNATIVE CONTRACTING METHODS

16.2.1 Bid Alternates

16.2.2 Cost-Plus-Time (A + B Bidding)

16.2.3 Design-Build

16.2.4 Incentive/Disincentive

16.2.5 Indefinite Quantity/Indefinite Delivery Contracting

16.2.6 Lane Rental

16.2.7 Lump Sum Bidding

16.2.8 Warranty

16.3 INNOVATIVE CONTRACTING METHODS

16.3.1Construction Manager at Risk (CM@Risk) 16.3.2No Excuse Incentive/Bonus

16.4 DISALLOWED CONTRACTING METHODS

16.5 RESOURCES

16.1 OVERVIEW

The Department allows use of special contracting methods for Federal-aid projects, as allowed under Chapters 337.025 Florida Statutes (F.S.) and 287.055(9) F.S. and 23 USC 502. The Department recognizes that items such as quality, delivery time, safety, life-cycle costs and use of new or improved technologies are also valuable in addition to cost alone. In 1995, the Florida Legislature authorized the Department to use the designbuild process for buildings, major bridges, and rail corridor projects. In 1996, this authority was further expanded to include all project types as a part of the "innovative" practices package. Alternative contracting techniques may control time and cost increases on construction projects.

Since 1990, the FHWA has been evaluating methods for improving the efficiency of delivering transportation improvement projects under the Special Experimental Projects 14 Program (SEP-14 program). The SEP-14 program provides State DOTs with a vehicle for evaluating various types of non-traditional contracting methods on Federal-aid highway contracts. The objective of the SEP-14 program is to evaluate project specific innovative contracting practices that have the potential to reduce the life cycle costs of projects, while maintaining product quality.

Project delivery methods that have graduated or been proven under the SEP-14 program become operational and are referred to in this Chapter as “Alternative Contracting Methods” (Section 16.2). These operational methods do not require additional FHWA approvals as delivery methods for LAP projects, rather the Department may approve their use in LAP. Methods that are still being tested or vetted and require additional approvals under the SEP-14 program are referred to in this Chapter as “Innovative Contracting Methods” (Section 16.3).

This Chapter identifies only those alternative and innovative contracting methods allowed in LAP. For a complete listing of definitions for all types of alternative and innovative contracting methods, reference the FHWA Contract Administration Core Curriculum Manual and the FDOT Office of Construction website at:

http://www.fdot.gov/construction/AltContract/AltContract.shtm.

16.2 ALTERNATIVE CONTRACTING METHODS

Alternative contracting methods are also referred to as “operational” methods by FHWA.

Alternative methods are approved for use on all Federal-aid highway construction projects. LAs must receive Department concurrence for use of alternative contracting methods for LAP project delivery. FHWA’s alternative contracting website provides Special Contracting Methods Alternative Contracting Chapter 16-3 sample specifications and contracting provisions for these techniques from various transportation agencies at:

https://www.fhwa.dot.gov/construction/contracts/acm/.

16.2.1 Bid Alternates

Additive or deductive bid alternates are techniques employed on a transportation project to achieve the maximum project scope within an available budget. The LA defines its critical project scope components as the “base” bid and defines specific additional components as “alternates.” Priority order of additive or deductive bid alternates shall be clearly defined. The contract is awarded to the lowest responsive and responsible bidder providing the maximum scope (within the budget).

Additive alternates: As the budget allows, bid alternates are added to the base in a predefined order to establish the low bid.

Deductive alternates: To meet the budget, bid alternates are deducted from the base scope in a predefined order to result in a contract that fits the budget.

It is strongly recommended that LAs use this method to maximize their budgets and also adjust for pay item cost fluctuations on LAP projects. Per the terms of the LAP Agreement, the Department may only allocate available funds to a LA. The LA is responsible for all project costs exceeding the Department funded amount(s). Additional information on Bid Alternates may be found in Chapter 13 and the FHWA Contract Administration Core Curriculum Manual.

16.2.2 Cost-Plus-Time (A + B Bidding)

Cost-plus-time bidding, more commonly referred to as A + B bidding, reduces total construction cost by making time a factor, in addition to cost, when awarding a contract.

A daily road user cost must be identified in the contract and will be used to calculate the low bid. Under the A + B method, each submitted bid consists of two components:

• The ‘A’ component is the traditional bid price for the contract items based on unit prices and quantities

• The ‘B’ component is the bidder’s estimate of the time required to complete critical construction pay items as defined in the contract. Calendar days are typically used to reduce potential for disputes.

For the purposes of determining the apparent low bidder, the B component is converted to a dollar value by multiplying the number of days by the daily road user cost identified in the contract. When an A + B bidding procedure is used, the contracting agency incorporates an incentive/disincentive (I/D) provision based on the “daily road user cost rate”.

16.2.3 Design-Build

Design-build assigns the design and construction of a project to one firm (or team), allowing construction to begin before plans are complete. This contracting method provides a single point of contact for quality, cost, and schedule from design through completion of construction, thus generally reducing contract time, change orders, and claims due to errors and omissions. A LA that is certified to design projects and administer construction may also be LAP certified to perform design-build projects.

To accelerate certain major construction projects, the Florida Legislature allows the use of design-build contracts to accelerate the project completion schedule under Section 337.11(7), F.S. Design-build minor contracts are allowed under Section 337.025, F.S.

The two categories of design-build contracts, major and minor, do not apply for LAP projects. LAP projects are simply considered as design-build projects. Federal requirements for design-build contracting are described in 23 CFR 636.

For LAP Classification A, B, and C projects, the LA must use FDOT Procedure No. 625- 020-010, Design-Build Procurement and Administration for selecting a design-build team. LAP project concept designs must be reviewed and approved by the Department’s Structures Office before procurement. The Department may at its sole discretion, reject designs which do not meet Department standards. The Department may also, in its sole discretion, allocate Department-managed resources, including structures engineers and/or project managers to projects involving complex design structures and other design structures not commonly used by the Department. In addition, all complex bridges and bridge types not commonly used by the Department constructed via the LAP delivery method will be monitored and inspected by Department personnel. In addition, the Department provides standard contract language to be used for LAP Classification A, B, and C projects at:

https://www.fdot.gov/programmanagement/Implemented/LAP/Default.shtm.

For LAP Classification D projects, the procedure used by the LA for selecting a designbuild firm should be similar to the FDOT Procedure No. 625-020-010, Design-Build Procurement and Administration. LAP project concept designs must be reviewed and approved by the Department’s Structures Office before procurement. The Department may at its sole discretion, reject designs which do not meet Department standards. The Department may also, in its sole discretion, assign a project manager and/or structures engineer to projects involving complex design structures. Chapter 287.055(9) F.S.

Special Contracting Methods Alternative Contracting Chapter 16-5 governs LA design-build procedures and procurement methods allowed under Florida laws.

16.2.4 Incentive/Disincentive

I/D contracting uses incentive monies, which are paid to the contractor for early completion of a project as provided for in the contract. Disincentive monies are subtracted from the amount paid to a contractor for completing the project later than time allowed by the contract. I/D may be a stand-alone method, or may be applied to other alternative contracting techniques including No Excuse Bonus (see Section 16.3), A + B Bidding, Lane Rental, Design-Build or any combination.

I/D contracts are assessed on a daily basis and are typically used to achieve specific milestones within a project to encourage timely completion of the total contract. If intermediate milestones are used, it is recommended that a milestone also be placed at the end of the project to ensure overall reduction of contract time. Bonuses must be included in the original contract award. Bonuses added to the contract after contract award are not eligible for Federal-aid participation.

16.2.5 Indefinite Quantity/Indefinite Delivery Contracting

Effective January 18, 2019, FHWA Notice 5060.2 makes ID/IQ contracting operational, which authorizes State DOTs to enter into ID/IQ delivery construction contracts without seeking a SEP-14 approval when the conditions of the Federal Notice are met.

ID/IQ contract – The term “ID/IQ contract” means a type of contract that does not specify a firm quantity of supplies or services (other than a minimum or maximum quantity) and provides for the issuance of orders for the performance of tasks or delivery of supplies or services during the period of the contract. The ID/IQ contracts are also known as “pushbutton contracts,” “on-call contracts,” and “task order contracts.” For the purpose of the notice, ID/IQ contract is specific to Federal-aid construction projects. It is a single award task or work order contract and is awarded by competitive bidding to the lowest responsive bidder.

Job Order Contract – The term “Job Order Contract” (JOC) for Federal-aid construction projects means a type of ID/IQ contract that utilizes a construction task catalog with prepriced work item descriptions. Contractors bid “adjustment factors” and the contract is awarded by competitive bidding to the lowest responsive bidder determined by their markup rate.

State DOTs and their subrecipients are authorized to execute ID/IQ contracts when the following conditions are met:

• Projects qualify as categorical exclusions under NEPA – NEPA categorical exclusions are actions that meet the definition contained in 40 CFR 1508.4, and, based on past experience with similar actions, do not involve significant environmental impacts. See also 23 CFR 771.117.

• Low-cost contract – A low-cost contract is a short-term (1 to 2 year) base contract that is awarded to the lowest responsive bidder where the total value of task or work orders may not exceed $2,000,000 per year on average over the contract term. With FHWA approval, the base contract may be extended up to five (5) years.

Subject to the limitations of FHWA Notice 5060.2, State DOTs may use ID/IQ contracting and JOC, a form of ID/IQ contracting, to perform a variety of construction work including, but not limited to:

• Preventive maintenance and bridge preventative maintenance as described in FHWA Memorandum “Guidance on Highway Preservation And Maintenance” dated February 25, 2016 and the FHWA Bridge Preservation Guide (Spring 2018)

• Construction of pedestrian facilities (including ramps)

• Intelligent transportation system (ITS) installation

• Pavement resurfacing

• Safety improvements

• Traffic control device installation

• Traffic signal installation

• Clearing for construction contracts to avoid sensitive habitat Contact the State LP Administrator for concurrence prior to entering into an ID/IQ contract for LAP projects.

16.2.6 Lane Rental

Lane rental is a contract provision that incentivizes contractors to schedule and work during non-peak periods by charging rental fees for lane or shoulder use, with higher fees during peak periods. The lane rental fee is based on the estimated cost of delay or inconvenience to the road user during the rental period. The fee is assessed for the time that the contractor occupies or obstructs part of the roadway and is deducted from the monthly progress payments.

Special Contracting Methods Alternative Contracting Chapter 16-7 The rental fee rates are stated in the bidding proposal in dollars per lane per time period, which could be daily, hourly, or fractions of an hour. Neither the contractor nor the contracting agency estimate the anticipated amount of time for which the assessment will apply, and the low bid is determined solely on the lowest amount bid for the contract items. All lane closures shall be documented on the Lane Rental Form No. 700-050-57 for LAP Classification A, B, and C projects.

16.2.7 Lump Sum Bidding

Lump sum bidding requires the contractor to provide a lump sum price to complete a project as opposed to bidding on individual pay items with identified quantities. The benefits include reductions in quantity overruns and in paperwork associated with quantity measurement and verification.

The Department has used this method for Federal-aid projects including resurfacing, bike path construction, box culvert extensions, or minor bridge widening. Lump sum guidelines are published in the FDOT Design Manual and the method is allowed under Section

337.11 F.S.

16.2.8 Warranty

NHS project warranties: All warranties proposed on NHS projects must be pre-approved by the FHWA, Florida Division Office prior to advertising and awarding the construction contract. Product warranties (as offered by manufacturers) are allowed and are not applicable to this guidance.

FHWA provides specific warranty guidance applicable to all Federal-aid highway construction projects on the NHS in 23 CFR 635.413. FHWA’s policy against use of warranties on Federal-aid construction projects was based on the logic that participation in a warranty payment constituted indirect participation in routine maintenance.

Maintenance costs are not eligible participating costs on Federal-aid projects. Updated guidance received from the FHWA in 2015 now allows warranty provisions for specific highway construction products or features in Federal-aid contracts on the NHS. General warranties for the entire project are not acceptable unless the project in question is delivered by a design-builder per 23 CFR 635.413(e).

General rules of thumb for NHS project warranties include:

• A warranty may not cover any item ineligible for Federal-aid participation.

• A warranty may not cover damage caused by others.

525-010-300 January 2007 Local Programs Manual Revised: February 2022 Special Contracting Methods Alternative Contracting Chapter 16-8

• A warranty may not cover routine maintenance.

• A warranty may cover preventative maintenance as defined in the October 8, 2004 FHWA memorandum on “Preventative Maintenance Eligibility.”

• Contractors cannot be required to warrant items over which they have no control.

• Length of warranty is dependent on the surety’s willingness to underwrite the warranty. Five years is a general maximum.

SHS project warranties are regulated by the FDOT Standard Specifications and the FDOT CPAM. Warranty provisions must be approved by the Department for use on all LAP projects located on the SHS.

Local roadway warranties are subject to the LA policy. Federal-aid participation is not allowed for warranty bonds, and a separate pay item may be added to the project estimate in order to isolate cost(s) associated with the warranty.

16.3 INNOVATIVE CONTRACTING METHODS

The Department’s innovative contracting methods are authorized under Section 337.025, F.S. The allowed methods applicable to LAP are those experimental methods also allowed by FHWA under the SEP-14 program. The SEP-14 program strives to identify, evaluate, and document innovative contracting practices that have the potential to reduce life cycle cost of projects while maintaining product quality. The use of an experimental method on a Federal-aid highway construction project requires prior approval of the SEP14 program workplan by FHWA’s Office of Innovative Program Delivery.

In some cases, the methods listed here are not categorized the same by the FHWA and FDOT and additional approvals may be required by one or both agencies for LAP projects. Always confirm with your District LP Administrator prior to employing any of these methods for local project delivery.

16.3.1 Construction Manager at Risk

Construction Manager at Risk or CM@Risk contracting is described as an integrated team approach applying modern management techniques to the planning, design, and construction of a project. These techniques help to control time and cost, and to assure quality for the project owner. FHWA refers to this method as Construction Manager/General Contractor (CM/GC) and the Florida Division Office must pre-approve this method for use on LAP projects. Section 1303 of MAP-21 made CM/GC operational on October 1, 2012, but FHWA is still formulating policy directives to fully implement CM/GC. This is an authorized procurement method by the Department under s. 337.025, F.S.

The contract is awarded to a team consisting of the owner, the architect/engineer, and the construction manager (CM). CM@Risk includes pre-construction and construction services, allowing the CM to provide direct input on construction decisions, project phasing, risk allocation, and innovations. The following are types of projects that can benefit from CM@Risk:

• Building type projects where construction methods and specifications vary between professional groups (i.e. engineer/architect and constructions trades).

• Innovative funding scenarios, where multiple owners may dictate final project criteria.

• Projects where limiting budgets threaten the delivery of the project and where the CM alternative can help maintain costs.

• Major projects that are technically complex or have challenging schedules.

• Lengthy Corridor Projects.

• Bridge Rehabilitation (Bascule).

A LA shall develop procedures for the CM@Risk delivery method subject to review and acceptance by both the Department’s Central Office and FHWA. The District LP Administrator coordinates reviews with the LA, Central Office, and FHWA.

16.3.2 No Excuse Incentive/Bonus

The contractor is given a “drop-dead date” for completion of a phase or project and receives a bonus for meeting that completion date. No excuses are accepted for delays in meeting that date. Other than the bonus date, normal contract administration procedures are followed. This method is recommended for projects where the LA desires project completion by a specific date.

16.4 DISALLOWED CONTRACTING METHODS

Currently, Bid Averaging and Reverse Auction methods are not allowed on Federal-aid highway construction projects. LAs may direct all questions or requests for clarifications to the District LP Administrator or to the State LP Administrator in the Central Office of Program Management.

16.5 RESOURCES

FDOT Office of Construction website:

http://www.fdot.gov/construction/AltContract/AltContract.shtm FHWA’s alternative contracting website:

https://www.fhwa.dot.gov/construction/contracts/acm/ FDOT Procedure No. 625-020-010, Design-Build Procurement and Administration LAP Classification A, B, and C projects required contract language:

http://www.fdot.gov/programmanagement/Implemented/LAP/Default.shtm.

FDOT Standard Specifications Book FDOT Construction Project Administration Manual (CPAM) (Topic No. 700-000-000)

FDOT Design Manual (Topic No. 625-000-007)

Form 1. Payment Bond

BONDING COMPANY MAY ISSUE BONDS ON THEIR OWN FORMS

Any singular reference to Contractor, Surety, City or other party shall be considered plural where applicable.

CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business):

CITY: City OF FORT MYERS, FLORIDA

CONSTRUCTION CONTRACT

Date: _________________________ (to be entered by City Clerk)

Amount: _______________________

Description: __________________________________________________________________________

BOND

Date: _________________________ (to be entered by City Clerk)

Amount: _______________________

Modifications to this Bond Form: ________________________________________________________

CONTRACTOR AS PRINCIPAL SURETY

Company: ___________________________ (Corp. Seal) Company: ____________________________(Corp. Seal)

Signature: ___________________________ Signature: _____________________________________

Name and Title:_______________________ Name and Title:_________________________________

CONTRACTOR AS PRINCIPAL SURETY

Company: ____________________________(Corp. Seal) Company:_____________________________(Corp. Seal)

Signature: ___________________________ Signature: ______________________________________

Name and Title: ________________________ Name and Title: __________________________________

1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the City to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference.

2. With respect to the City, this obligation shall be null…