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Agenda 09/13/2011 Item #16A299/13/2411 Item 16.A.29. n EXECUTIVE SUMMARY Recommendation to approve modifications to two Local Agency Program (LAP) funded contracts: 1) 11 -6679 Intersection Improvements Deice Trafford Road and SR 29 and 2)11 - 5674 Boston Avenue Sidewalk Improvements in order to fulfill the requirements of the granting agency. ©%M TiVE: To remove language regarding workmanship warranty from the County's construction contracts (Sections 21.1 and 21.2) to meet the granting agency's requirements (Federal Highway Administration (FHWA) passed through the Florida Department of Transportation's (FDOT) Local Agency Program (LAP)). CONSIDERATIONS: The Board approved the following items on May 24, 2011; 11 -5679 Intersection Improvements Lake Trafford Road Item #16.A.12'to Gulf Paving Company, Inc, in the amount of $982,923.32 (Project #33124); and,11 -5874 Boston Avenue Sidewalk Improvements, Item # 16.A.11, to Stevens & Layton, Inc. in the amount of $152,353.55 (Project #33122). After contracts were approved by the Board, the granting agency requested that the Warranty clauses be modified because the FHWA prohibits general workmanship warranties. The FHWA believes and the FDOT /LAP staffs supports the belief that once a qualified inspection team has been hired or assigned to the pro1ect, that team will suffice in preventing any workmanship issues. The requested changes are as follows: 24-4 Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any subcontractor or materialmen supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment fumished under the Contract Documents shall be new unless- otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, -erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers; fabricators, suppliers or processors except as otherwise provided for in the Contract Document . , , , haw 24.2 No Wer-,t4;ap3g,dayropr-ieFteempirefign , QW;)eF to disqualify the GGRtFaGtGF #em,futum bid GPPGFWAities with the , Packet Page - 2024 91113/2011 Item 16.A.29. FISCAL IMPACT: This contract amendment does not impact the contracted price. Sufficient funds are available in Transportation Grant Funds 711 and 712, Projects 33124 and 33122 for 11 -.5679 Intersection Improvements Lake Trafford Road and SR 29 and 11- 5674 Boston Avenue Sidewalk Improvements respectively. GROWTH MANAQLW1E,j11T IMPACT: There is no Growth Management Impact resulting from this action. LEGAL CON MERATIQNS: The federal Highway Administration ( "FMNA ") has taken a position opposing warranties that cover post construction maintenance on the rationale that such warranties could indirectly contribute to the use of federal funds to pay for routine maintenance casts; which is prohibited by law. See 45 C.F.R. § 635.413. FDOT has taken the position that the project will not commence unless the language is removed from the county's contract. In my view the. identified' language in the county's contract is an example of a short - term performance warranty — something acceptable under the FHWA's own guidelines. Even with competent project managers and construction engineering inspectors, it's possible an entire project cannot be so closely scrutinized to detect defective work. The exclusion of this language means that the products used in construction must strictly comport with the specifications and installation requirements mandated by the contract. , This project must 'be. managed to insure that installation is conducted strictly in accordance with the design requirements and any issues that may arise must be raised and addressed contemporaneous with the construction of this project. The recommendation to remove this language is limited to this specific contract, which involves the use of federal funds and based upon the objection. raised by FDOT. This item ,has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT REC;©MMENQATIQN:; That the Board of County Commissioners approves modifications to Contracts #11 -5679 Intersection Improvements Lake Trafford Road and SR 29 and 2) 11 -5674 Boston Avenue Sidewalk Improvements as per attached Contract Amendments and that the Chairman is authorized to execute the Contract Amendment following final review by the County Attorney. Prepared by: Julio Ordonez, Project Manager, Growth Management Division, Transportation Engineering Attachments: Amendments Packet Page -2025- 9/13/2011 Item 16.A.29. COLLIER COUNTY Board of County Commissioners Item Number: 16.A.29. Item Summary: Recommendation to approve modifications to two Local Agency Program (LAP) funded contracts: 1) 11 -5679 Intersection improvements Lake Trafford Road and SR 29 and 2) 11 -5674 Boston Avenue Sidewalk Improvements in order to fulfill the requirements of the granting agency. Meeting Date: 9/13/2011 Prepared By Name: BrilhartBrenda Title: Purchasing Agent,Purchasing & General Services 8/23/20119:44:36 AM Submitted by Title: Purchasing Agent,Purchasing & General Services Name: BrilhartBrenda 8123/2011- 9:44 :37 AM Approved By Name: SmithKristen Title: Administrative Secretary,Risk Management Date: 8/23/2011 10 :41 :56 AM Name: OberrathKaren Date: 8/2312011 12:42:15 PM Name: BrilhartBrenda Title: Purchasing AgentPurchasing & General Services Date: 8/23/20114:57:41 PM Name: ICarnellSteve Title: Director Purchasing/ General Services,Purchasing Date: 8/25/20117:07:42 AM Packet Page -2026- 9/13/2011 item 16.A.29. Name: TeachScott Title: Deputy County Attorny,County Attorney Date: 8/25/2011 10:07 :53 AM Name: FoordMarlene Title: Grant Development & Mgmt Coordinator, Grants Date: 8/26/2011 3:09:30 PM Name PrceLen Title: Administrator Administrative Services, Date: 8/29/2011 10:32:44 AM Name: TeachScott Title: Deputy County Attomey,County Attorney Date: 8 /30/2011 1:17:22 PM Name: KlatzkowJeff Title: County Attorney, Date: 8/30/20114:05:11 PN1' Name: StanleyTherese Title: Management/Budget Analyst, Senior;Office of Management & Budget Date: 9/2/2011 12:02:12 PM Name: KlatzkowJeff Title: County Attorney, Date: 9/2/20112:35:21 PM Name: OchsLeo Title: County Manager Date: 9/3/2011 10 :56:09 AM - Packet Page--2027- 9/13/2011 Item 16.A.29. EXHIBIT A -1 Contract Amendment # 11 -5679 n Intersection Improvements Lake Trafford Road and SR 29 This amendment, dated , 2011 to the referenced agreement shall be by and between the parties to the original agreement, Gulf Paving Company, Inc., to be referred to as "Contractor" and Collier County, Florida, (to be referred to as "County ". Statement of Understanding RE: # 11 -5679 Intersection Improvements Lake Trafford Road and SR 29 The following change to the above referenced agreement has been mutually agreed to by the Contractor and the County: The additions to the existing language in the Agreement are shown herein by underlining; deletions from the Agreement are shown by stFikethmughs DELETE THE FOLLOWING LANGUAGE (Per Granting Agency Request - Local Agency Program (LAP /FDOT) 21. WARRANTY. 21.1 Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any subcontractor or materialmen supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents i-� shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract If Wi , ne (1\ dear after SybStan I Gemnl nn aRy VVoFk is fend to Documents. ,,� ��Tn aT.�,� ,- ��z��Tt+a��eti - r�,�To may be damaged as a Fe6ult of suGh replaGement or repair. Furthep, in the event of aR implied warranties to which 1 wRer is entitled as a matter of Ia,A/ The Contractor agrees that this amends the original Agreement. All other terms and conditions of the agreement shall remain in force. Packet Page -2028- �i The Contractor agrees that this amends the original Agreement. All other terms and conditions of the agreement shall remain in force. Packet Page -2028- 9/13/2011 Item 16.A.29. 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(s) indicated below. ATTEST: CONTRACTOR Corporate Secretary/Witness By: _ Dated: Approved as to form and Legal sufficiency: Deputy County Attorney Gulf Paving Company, Inc. By: Title: Dated: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Fred W. Coyle Chairman Packet Page -2029- Ea 9/13/2011 Item 16.A.29. EXHIBIT A -1 Contract Amendment # 11 -5674 "Boston Avenue Sidewalk Improvements" This amendment, dated , 2011 to the referenced agreement shall be by and between the parties to the original agreement, Stevens & Layton, Inc., to be referred to as "Contractor" and Collier County, Florida, (to be referred to as "County ". Statement of Understanding RE: ITB # 11 -5674 - "Boston Avenue Sidewalk Improvements" The following change to the above referenced agreement has been mutually agreed to by the Contractor and the County: The additions to the existing language in the Agreement are shown herein by underlining; deletions from the Agreement are shown by strikethm unhs DELETE THE FOLLOWING LANGUAGE (Per Granting Agency Request — Local Agency Program (LAP /FDOT) 21. WARRANTY. 21.1 Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any subcontractor or materialmen supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, Within one (1 ) year after S b tantial Gemnle +inn any Work is fo-nd to amnlied waFFnnties to which (limner is entitled as a muter of lanai The Contractor agrees that this amends the original Agreement. All other terms and conditions of the agreement shall remain in force. Packet Page -2030- 9/13/2011 Item 16.A.29. 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(s) indicated below. ATTEST: CONTRACTOR Corporate Secretary/Witness Stevens & Layton, Inc. By: By: Dated: Title: Approved as to form and Legal sufficiency: Deputy County Attorney Dated: OWNER: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA M Fred W. Coyle, Chairman Packet Page -2031- 4 I BrilhartBrenda From: Peronto, Michelle S [Michelle. Peronto@dot. state.fl.us] Sent: Friday, June 03, 2011 2:50 PM To: BrilhartBrenda; HallDaniel Subject: RE: 11 -5679 Lake Trafford Contract Attachments: FHWA Warranty Info,pdf; Warranty. pdf Follow Up Flag: Follow up Flag Status: Flagged Hi Brenda, 9/13/2011 Item 16.A.29. We have reviewed the pre - executed agreement and have only one comment. Part 21, "Warranty" of Exhibit H will need to revised. In Part 21. 1, remove the part that begins with "If, within one (1) year...." to the end. And, remove Part 21.2 in its entirety. (see attached) The FHWA considers anything done after construction to be a maintenance activity. Proper inspection during construction eliminates all but normal maintenance activities, i.e. wear and tear, anyway. Otherwise, the contract is approved for execution. Additionally, if the Boston Avenue project has the same warranty language, please make these changes to that contract. Should you have any questions, do not hesitate to contact me. Thank you, Michelle S. Peronto Local Agency Program Coordinator FDOT, District One, Procurement Office ^863- 519 -2791, fax 863 - 519 -1909 nichelle.peronto andot.state.fl.us LAP Website From: brenda bril ha rt5colliergov. net jmaiito:brendabrilhart colliergov.net] Sent: Thursday, June 02, 2011 12:47 PM To: Peronto, Michelle S Subject: 11 -5679 Lake Trafford Contract Hi Michelle, sorry this was such a complicated thing - let me know if you need anything additional, thanks Brenda File(s) will be available for download until 17 June 2011: File: 11 -5679 GulfPaving ContractwithExhibit I.zip, 10,956.33 KB Packet Page -2032- 9/13/2011 Item 16.A.29. ITB I1 -5679 materials, equipment or fixtures to be incorporated into the Project Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, Installed, connected. erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers. `r1a ✓Qi fabricators, suppliers or processors except as otherwise provided for in the Contract Documents -"lf, within one (1) year after Substantial Completion, any Work is found to be defective or not in conformance with the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner. Contractor shall also be responsible for and pay for replacement or repair of adjacent materials or Work which may be damaged as a result of such replacement or repair. Further, in the event of an emergency, Owner may commence to correct any defective Work, without prior notice to Contractor, at Contractor's expense. These warranties are in addition to those implied warranties to which Owner is entitled as a matter of law. X1.2 No later than 30 days prior to expiration of the warranty, the Project Manager, or Yv another representative of the Owner, shall conduct an inspection of the warranted work to verify compliance with the requirements of the Agreement. The Contractor's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the Contractor to correct the cited deficiencies shall be grounds for the Owner to disqualify the Contractor from future bid opportunities with the Owner, in addition to any other rights and remedies available to Owner. n 22. TESTS AND INSPECTIONS. 22.1 Owner, Design Professional, their respective representatives, agents and employees, and governmental agencies with jurisdiction over the Project shall have access at all times to the Work, whether the Work is being performed on or off of the Project site, for their observation, inspection and testing. Contractor shall provide proper, safe conditions for such access. Contractor shall provide Project Manager with timely notice of readiness of the Work for all required inspections, tests or approvals. 22.2 if the Contract Documents or any codes, laws, ordinances, rules or regulations of any public authority having jurisdiction over the Project requires any portion of the Worts to be specifically inspected, tested or approved, Contrador shall assume full responsibility therefore, pay all costs in connection therewith and furnish Project Manager the required certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the Project Manager. 22.3 Contractor is responsible, without reimbursement from Owner, for re- inspection fees and costs; to the extent such re- inspections are due to the fault or neglect of Contractor. 22,E if any Work that is to be inspected, tested or approved is covered without written concurrence from the Project Manager, such work must, if requested by Project Manager, be uncovered for observation. such uncovering shall be at Contractor's n GC-CA -1+18 Packet Page -2033- ft le-1.1 Federal Highway Administration, DOT pipes, and (2) the number and types of such alternatives which must be set forth in the specifications for various types of drainage installations. (e) Reference in specifications and on plans to single trade name materials will not be approved on Federal -aid contracts. § 635.413 Warranty clauses. The SEA may include warranty pro- visions in National Highway System (NHS) construction contracts in ac- cordance with the following: (a) Warranty provisions shall be for a specific construction product or fea- ture. Items of maintenance not eligible for Federal participation shall not be covered. (b) All warranty requirements and subsequent revisions shall be sub- mitted to the Division Administrator for advance approval. (c) No warranty requirement shall be approved which, in the judgment of the Division Administrator, may place an undue obligation on the contractor for items over which the contractor has no control. (d) A SHA may follow its own proce- dures regarding the inclusion of war- ranty provisions in non -NHS Federal - aid contracts. [60 FR 44274, Aug. 25, 1995] 9/13/2011 Item 16.A.29. §W.501 § 635.417 Convict produced materials. (a) Materials produced after July 1, 1991, by convict labor may only be in- corporated in a Federal -aid highway construction project if such materials have been: (1) Produced by convicts who are on parole, supervised release, or probation from a prison or (2) Produced in a qualified prison fa- cility and the cumulative annual pro- duction amount of such materials for use in Federal -aid highway construc- tion does not exceed the amount of such materials produced in such facil- ity for use in Federal -aid highway con- struction during the 12 -month period ending July 1, 1987. (b) Qualified prison facility means any prison facility in which convicts, dur- ing the 12 -month period ending July 1, 1987, produced materials for use in Fed- eral -aid highway construction projects. [53 FR 1923, Jan. 25, 1988, as amended at 58 FR 38975, July 21, 1993] APPENDIX A TO SUBPART D OF PART 635— SUMMARY OF ACCEPTABLE CRI- TERIA FOR SPECIFYING TYPES OF CULVERT PIPES Type of drainage installs- lion Alternatives required AASHTO des - Ignstions to be in- cluded with afer- Application Remarks Yes No Number natives Cross drains under high- .............. X ........... ................... ............................. Statewide ............ Any AASHTO -ap- type pave�Li proved matenal.2 Other cross -drain installs- X ........... .............. 3 minimum M -170 and M- do .................. D0.2 lions. 190. Side -drain installations ....... X ........... .............. ......do ........ .................... ......do ..... - ........... D0.2 Special installation con& .............. X ........... ................... ............................. Individual instatla- Specified to meet riots. don. special con& trans. Special drainage systems .............. X ........... ................... ............................. ......do _ ........... ... Specified to meet (storm sewers, inverted site require - siphons, etc.). mania. I High -type pavement is generally described as FHWA construction type codes I, J, K L, and plant mix and penetration mac- adam segments, respectively shown in the right -hand columns of type codes G and H having a combined thickness of surface and base of 7 in or more (or equivalent) or that are constructed on rigid bases. 2Types not included In currently approved AASHTO specifications may be specified d recommended by the State with ade- quate justtliication and approved by FHWA Subpart E--interstate Maintenance Guidelines SOURCE: 45 FR 20793, Mar. 31, 1980, unless otherwise noted. § 635.501 Purpose. To prescribe Interstate maintenance guidelines and establish the policy and procedures to insure that the condition of Interstate routes is maintained at 191 Packet Page -2034-