HomeMy WebLinkAboutCORRESPONDENCE - RFP - P954 POLICE SERVICES FACILITY DESIGN & BUILDCity of Fort Collins
AAPTER 5 REFERENCE
10.AGREEMENT
COMMENTS
Hensel PhD% e
Corimbu bon Ca
ROTH 77 SHEPPARD
A R C H I T E C T 5
AMR. UN H '
A[CHrt S w
M-� ...
FORT COLLINS POLICE SERVICES FACILITY
CITY OF FORT COLLINS - DESIGN -BUILD RFP NO. P954
8.3 AGREEMENT COMMENTS
The Hensel Phelps Design -Build team anticipates that a successful contract arrangement will be able to
be negotiated that is based upon the form of contract in the RFP.
Some specific comments regarding the language in the contract are hereby tendered as a starting point
of negotiating terms and conditions:
Agreement
1. Article 3.01 The days for completion is 1,064 days, per addendum 2.
Attachments 00410 — 00670
1. Lien Waiver, section 00650 is assumed to be final release only, not partial.
Standard General Conditions
1. Article 3.02.1; prefer that original language be retained.
2. Article 4.02.A.1; remove `but not" after "geotechnical documents".
3. Article 4.02.B; change "but" to "and" afte, "reports and drawings".
4. Article 4.02.B; delete "not" prior to "Contract Documents.
5. Article 4.02.13; delete (i) and (ii) in entirety, and add "erroneous" after "any" in (iii).
6. Article 4.02.E; delete "Possible" in title. Delete "Owner concludes that".
7. Article 4.02.F; delete "Possible" in title.
8. Article 4.04 E; retain original language and add "and hazardous materials or other material
identified in paragraph 4.04A" each time that "Hazardous Environmental Condition occurs.
9. Article 5.04.B.1; delete "5.04C" and delete "any other persons or entities indicated in the
Supplementary Conditions".
10. Article 5.06.13; next to last sentence, add "and shall include coverage for resultant damage on ALS
form 67 or equivalent" at end of sentence.
11. Article 6.08.A; delete the last day for receipt of Proposals or".
12. Article 6.20.A.1: delete added language that begins with "unless ...".
13. Article 6.21.A; restore "but only to the extent" in first sentence.
14. Article 6.21.A; delete "in whole or in part" that has been added.
15. Article 6.21.A; delete all added language at end of paragraph that begins with "regardless of
whether...".
16. Article 10.013.6; delete in entirety.
17. Article 12.10.A; delete "the time within which the obligation to comply with the Contract Documents
may be sought to be enforced no to" following "and has no relationship to".
18. Article 14.02.B; delete "claims" at each occurrence.
19. Article 14.03.A.3; retain original language.
City of Fort Collins Police Services Facility — Design -Build RFP No. P954 8. Additional Information - 11
CITY OF FORT COLLINS POLICE SERVICES FACILITY
SECTION 10. AGREEMENT COMMENTS
Design Build team is expected to sign the agreement (Chapter 7). Any exceptions to
the agreement must be stated with your submission of qualifications for this project.
The City makes no guarantees it will change the agreement but will consider the
exceptions.
We have reviewed the Agreement and Contract General Conditions, and feel that
this contract form is acceptable to us and will serve as an effective agreement
between the parties. In reviewing the documents internally and with our insurance
carrier, we have identified questions, clarifications and concerns, detailed below,
which we would like to further discuss with the City prior to finalizing a contract.
Agreement Para. 3.01 Stipulates substantial Completion within 375 after Notice to Proceed. It
is assumed this is for construction, but the Agreement is for Design Build and the
schedule at Exhibit 4 of the RFP shows a total duration of two years. We request
clarification on this item.
Para. 3.02 Liquidated Damages are $2,000 per day. This is acceptable, but will
require a clear definition of completion and a schedule both parties agree to.
Para. 6.01 Provides for the Design Builder's Fee to be a fixed dollar amount. We
don't consider this to be a problem, but would like clarification and additional
discussion on the mechanics of this item to understand the City's objectives.
General Conditions Para. 4.04 This section is for Hazardous Materials and the 6 original paragraphs
are fully stricken and one new paragraph is added. The issue is covered to some
extent in Differing Site Conditions, but what is lacking is the ability to stop work if
Hazardous Materials are encountered. Even though the land has always been
agricultural, the site is adjacent to the old pipe plant that had dirt floors, and there is
the potential for contamination, which could create safety issues for persons
employed at the project site.
Para. 5.04.B.1 Requires additional insureds for City for Professional E&O which
cannot be done.
Para. 5.04.B.4 Specifies Design Builder's contractual liability insurance covers
the specific indemnity obligations at 6.1 I.A.3 and 6.21. Our insurance cannot so
state but can state that Neenan carries standard contractual liability insurance
coverage.
Para. 5.06 Original Property Insurance language is deleted. Our insurance agent
requests that Property Insurance language that has been crossed out should be
reinstated. There is substantial logic for the deleted language to be included in the
contract. If the crossed out language remains crossed out, Design Builder will be
required to purchase full builders risk insurance coverage and pass the cost along to
the Owner even though the Owner is required to purchase coverage. The City's risk
of loss is only to property for which it has an insurable interest. Under the contract
terms, the Design/Builder could be left without coverage for labor and materials
installed but not paid for by the Owner at the time of loss, property on site awaiting
installation, materials in transit and materials stored off site. There should be no
additional cost for the Owner to include the Design/Builder as a Named Insured on
the Owner's builders risk policy.
Neenan • Humphries Poli • Brinkley Sargent Page 10-1
Proposal to Provide Design -Build Services Proposal P954
CITY OF FORT COLLINS POLICE SERVICES FACILITY
Para. 5.07 Waiver of Rights Original language which waived Consequential
Damages is stricken. Therefore, Design/Builder is susceptible to Consequential
Damages. This is a bigger concern for after completion than before because of the
Liquidated Damages, which are to be in lieu of Consequential Damages, although
the language regarding Liquidated Damages is not clear about the matter.
Our insurance carrier also suggests that this paragraph should not be stricken. If the
waiver of subrogation is removed, Neenan will have to purchase a builders risk
policy. Perhaps the City is subject to a large deductible under its property insurance
policy and does not wish to be exposed to an unsubrogated builders risk claim. If
this is the case, they suggest that Neenan provide the builders risk insurance
coverage, and name the Owner as a Named Insured, with a waiver of subrogation.
Para. 6.20.A.1 Warranty states that Design Builder is not responsible for abuse,
modification, or improper maintenance or operation unless such "could have been
prevented by Design Builder." An example of a logical extension is that if the walls
get damaged by equipment being moved around, Design Builder should have
installed chair rail. This could become problematic for both parties in grey areas.
Para. 6.21 Indemnification requires Design Builder to defend City for anything
that Design Builder creates in whole or part. This is versus the standard language,
which was stricken, and which said that we would defend only to the extent of our
negligent act or omission. Our insurance carrier will very likely object to this
language.
Para. 7.01 Concerns other City contractors at the site. As written it fails to include
compliance with the Design Builder's safety program which is critical because in
the eyes of OSHA, the Design Builder is the controlling contractor. We believe that
for safety in general at the project site, the City would want their contractors in
strict compliance with safety protocols.
Para. 11.01.0 Design Builder Fee for Change Orders is three percent (3%).
Insurance and bond alone will run as much as 1.5%. Did the City intend this to be
the case? A clarification would be appreciated.
Neenan • Humphries Poli • Brinkley Sargent Page 10-2
Proposal to Provide Design -Build Services Proposal P954