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HomeMy WebLinkAbout08- Contract between City of Bozeman and Facility Improvement Corporation for New Bozeman City Hall Renovation Commissioning ServicesCONTRACT BETWEEN OWNER AND COMMISSIONING PROVIDER THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO THE UNIFORM ARBITRATION ACT MCA TITLE 27 CHAPTER 5 THIS CONTRACT made as of ~~~r~g by and between the City of Bozeman, Montana, P.O. Box 1.230, Bozeman, MT 59771-1230, hereinafter called the Owner, and Facili Im rovement Cor oration. 800 7`h Avenue North Great Falls MT 5940.2, hereinafter called the Commissioning Provider, for the following project: New Bozeman City Hall Renovation, Commissioning Services. A. BASIC CONTRACT The Commissioning Provider shall provide Basic professional services for the Project in accordance with the Project Scope of Work and with the Terms and Conditions of this Contract. 2. The Owner shall compensate the Commissioning Provider at a lump-sum, fixed, in accordance with the Terms and Conditions of this Contract, as follows: For the Scope of Work included i~ Attachment A: NINETEEN THOUSAND THREE HUNDRED SEVENTY ONE AND 00/100 DOLLARS ($X9,37.1.00) If there are professional services required beyond the scope of this Contract, those services will be negotiated. Such services must be authorized in writing by the Owner before the work is performed. 4. By signature on this Contract, the declaration is made that the Commissioning Provider is a Professional Ezagineer, registered, and licensed to practice in the State of Montana. B. THE COMMISSIONING PROVIDER'S BASIC SERVICES AND RESPONSIBILITIES 1. The Commissioning Provider's Basic Services shall consist of the services listed in: Attachment A, Scope of Commissioniog Work, dated December 17, 2007. 2. The Commissioning Provider acknowledges that the commissioning services provided to, or for the benefit of the Owner, include reasonable justification or explanation of the Commissioning Provider's professional decisions; those decisions maybe reasonably relied upon a contractor, professional, or any other party delivering services to or installing work for the Owner in accordance with the Project for which the Commissioning Provider was retained by the Owner. 3. The Commissioning Provider, as the representative of the Owner, shall advise and consult with the A-1 Owner during all phases of the services provided. 4. The Commissioning Provider shall be responsible for the professional quality, technical accuracy, and tlac coordination of all services furnished under this Contract. The Commissioning Provider shall, without additional compensation, correct or revise all errors, deficiencies, or omissions in the performance ofthese services. 5. Neither the Owner's review, approval or acceptance of, nor payment for, the services required under this Contract shall be construed to operate as a waiver of any rights under tlais Contract or of any cause of action arising out of the perfornrxance of this Contract. The Commissioning Provider shall remain liable to the Owner for any and all damages caused by the Commissioning Provider's negligent performance of any of the services furnished under this Contract. 6. The rights and remedies of the Owner provided for under this Contract are in addition to any other rights and remedies provided bylaw. C. PAYMENTS TO THE COMMISSIONING FROVIDER 1. Payments for the Commissioning Provider's Basic Services shall be made as (allows: $19,37x.00 upon completion of all work included in Attachment A. 2. The Owner will pay amounts due the Commissioning Provider as progress payments until the commissioning scope of work is completed as provided in a Schedule of Value to be submitted by the Commissioning Provider and approved by the Owner. 3. Until the work is Substantially Complete, the Owner will pay ninety (90%) percent ofthe amount due the Commissioning Provider on account of progress payments. The remaining amount due, other than that specified for the Warranty Phase, will be paid to the CornYnissioning Provider upon completion and Final Acceptance of the Project by the Owner. ~. If the Owner determines that any representations by the Commissioning Provider on his pay request are wholly or partially inaccurate, the Owner may withhold payment of sums otlaerwisc due the Commissioning Provider until the inaccuracy and its cause have been corrected to the Owner's satisfaction. 5. The Commissioning Provider shall provide certification, with his request for final payment after Final Acceptance of the Project, that all bills for materials, supplies, utilities and for all other items or services furnished or caused to be furnished and used in the e~cecution of this Contract have been fully paid to date and that there are no unpaid claims or demands of Local, State or Federal Agencies, sub-contractors, consultants, employees, or any others resulting from or arising out of any work done under this Contract. D. OWNER'S RESPONSIBILITIES 1. The Owner shall provide information regarding its requirements for the Project Scope. A-2 2. The Owner or its representative shall examine documents subzxa.itted by the Commissioning Provider and shall render decisions pertaining thereto. 3. The Owner shall furnish and pay for accounting and insurance services as may be necessary for the Proj ect, and such auditing services as it naay require to ascertain how or for what purposes the Commissioning Provider or Contractor has used the moneys paid under this Contract and/or the Construction Contract. 4. If the Owner observes or otherwise becomes aware of any fault or defect in the Project or non- conformance with the Plans and Specifications, it shall give prompt notice thereof to the Commissioning Provider. E. RELATIONSHIP The relationship of Coxnxnissioning Provider to Owner under this Contract is that of an Independent Contractor. The Commissioning Provider is not an employee of the City of BozeXnan, is not carrying out the regular business of the City and is not subject to the supervision and control ofthe City. Each ofthe parties will be solely and entirely responsible for their own acts and the acts oftheir employees. No benefits are provided by the City of Bozeman to the Commissioning Provider or the Commissioning Provider's employees. F. SUCCESSORS AND ASSIGNS The Owner and the Commissioning Provider, each binds themselves, their partners, successors, legal representatives, and assigns to the other party to this Contract, and to the partners, successors, legal representatives and assigns of such other party in respect to all covenants of this Contract. Neither the Owner nor the Commissioning Provider shall assign ar transfer their interest in the Contract without written consent of the other. G. TERMINATION OF CONTRACT The Commissioning Provider or Owner may terminate this Contract upon giving written notice to the other that such party has failed to fulfill its obligations under this Contract. In the event of such default, the Commissioning Provider or Owner shall notify the other and allow ten (10) calendar days upon receipt for corrective action. Should no satisfactory corrective action be taken by the defaulting party, the other shall have the right to terminate the Contract. 2. The Owner may terminate this Contract without cause at any tirrze upon giving written notice to the Commissioning Provider. If the Contract is terminated for the convenience of the Owner, the Commissioning Provider shall be paid for all services rendered prior to receiving the written notice. 3. If the Commissioning Provider fails to fulfill his obligations and the Contract is terminated, the Owner may proceed with the Project to completion by contract or other means available. The A-3 Owner may hold the Commissioning Provider liable for any and all additional costs incurred due to the Couu~~issioning Provider's failure to perform. The rights and remedies available to the Owner provided herein are in addition to any and all other rights and remedies provided by law or equity. H. OWNERSHIP OF DOCUMENTS 1. All documents developed under this Contract are and shall become the property of the Owner whether the Project for which they are made is or is not executed. 2 The signing of this Contract shall constitute a complete transfer of ownership, intellectual property and copyright of all documents from the Commissioning Provider to the Owner upon Substantial Completion of the Project. Such transfer shall not be construed by the CozaamissioningPrnvider as a grant for usage nor can it be revolted by the Commissioning Provider. I. COMMISSIONING PROVXDER'S RECORDS The City shall have access to all records, correspondence, and files of the Commissioning Provider, its employees, Commissioning Providers, or consultants pertaining to tlae contract administration undertake~a on behalf of the City. This access shall be continuing and survive the termination of the Contract for either cause ar convenience. Such records shall be kept in a generally recognized format and shall be available to the Owner or his authorized representative at mutually convenient times for a period of three (3) years after completion and acceptance of the Project by the Owner. J. CONTINGENT FEES The Commissioning Provider warrants that he has not employed or retained any person, partnership, ar corporation, other than a bona fide employee ar agent working for the Commissioning Provider to solicit or secure this Contract, and that he has not paid or agreed to pay any person, partnership, or corporation, other than a bona Ede employee or agent, any fee, or any other co nsideration, contingent upon the making of this Contract. K. EXTENT OF CONTRACT This Contract represents the entire and integrated agreement between the Owner and the Commissioning Provider and supersedes all prior negotiations, representations oragreements, whether written or oral. This Contract may be amended only by written instrument signed by both Owner and Corn~nissioning Provider. L. VENUE In tl~e event of mediation, arbitration, or litigation concerning the Contract, venue shall be the Eighteenth rudicial District in and for the County of Gallatin, Montana, and the Contract shall be A-4 interpreted according to the Laws of Montana. M. INDEMNITY AND HOLD HARMLESS The Commissioning Provider shall indemnify, hold harmless and defend the City of Bozeman, xts officers, employees, agents and assigns, from and against all damages, claims anal liability arising out of the negligent acts, errors or omissions of the Commissioning Provider, its officers, agents, consultants, and employees, including all judgments, awards, losses, expenses, costs and attorneys' fees. N. INSURANCE The Commissioning Provider shall procure and maintain Workers Compensation insurance, uneznployiment insurance, and other general liability insurance sufficient for protection from claims, actions, damages and liability due to or arising out of bodily injury, autoxmobile accidents, personal injury, sickness, disease, death or other incidents for himself and all his employees and from claims, actions, damages and liability to or destruction of property including losses resulting therefrom. O. DISPUTE RESOLUTION BETWEEN OWNER AND CONTRACTOR 1 In the event a dispute arises between the Ow~ier and Contractor, or any other party, whether during .,~. construction. or thereafter, the Conua~issioning Pzavider shall advise and consult with the Owner in attempting to resolve the dispute, whether informally or by meth anon,-a~bi~ta, or litigation. The 1~ Comzx~.issioning Provider will :tmake himself and/or his agents and employees available anal shall _______.~ perra.it inspection of his records. In the event that it is ultimately determined that the Commissioning Provider did not cause or contribute to the dana.ages or expenses alleged, the Commissioning Provider shall be reimbursed by the Owner for all costs reasonably incurred. If tllere is 11a formal finding of fault, the Commissioning Provider and Owner shall negotiate terms for payment. The Owner will not be required to reimburse the Commissioning Provider at any time prior to the final determination and resolution for the responsibility of aXry claim or dispute. 2 ~ the event the Commissioning Provider caused, in whole or in part, the dispute or controversy, the Commissioning Provider shall bear his costs for participating in the resolution. P. DISPUTE RESOLUTION BETWEEN OWNER AND COMMISSIONING FROVIDER n.nd_al~ca~tro-v-~sl~,rlai-o~'~thma~t~s--b~~th~,-,~,A~b o'er-°f- --related ~o- phi a~-o-~rtr~:c~-or~r~eac-I~ the~ol'; shall-bc~lee~~dl-s~l~y-~~i~at~~Flo C' ~ - 't~c~~ ter--~-~~Me~nta ll 1y ~~~~ PV r`PY1~+Y~vc, A~_YT ~.]Y/"1l r~ ,,t~~.. A-5 ~~.. 3 Good faith effort and attempt shall be made by both parties to decide and settle any and all controversies, disputes, claims or other matters ' ' - - o~i~gs-either "a ~ y through negotiation or mediation. Mediation shall be conducted by a nEUtral. third party agreed to --'~--- iii writing by the parties in dispute. -dam--~ 4 The complaining party shall, at a minimum, provide notice of any clain~, dispute or potential for legal proceedings pursuant to the applicable statute(s) of limitations as provided in Montana law. C ~J~ ~ ~j . rhifra~ tin ~, ~( ,~~~,aTTnTxu~rlttan e-~ntyra to tl~a ntl-gar r»r-t~c~ of t~ra rntir~itinne tat ~n ca t~tha_ ~~n~~~~ ~sput~._ ~Y ~[TiT[Tt'kSx~Gr'6~1~~.i~~-Aii.,,,+.,.,., ~ 1i1Y7-Hv~t~a_tronrica ~nr a77 ~r~-.iC~.-'`~.~t~~~'7~'1~.1{~~'~LA7'CC7.~.~" lam!°~ clial1 rrnvr~rn~,~~~.~}n=n.--- .011 ~rl-~itare e}~all l~a~r~r~rti--}Ty-_ a~A ~~ar-~~i~~i6'1~'"'"` ------,.... --Asti~a. CP.1P.l-tY,~nn~,~ nfarhit,~~~l~mntnl va~ Per3~~ in Yxrritincrh~crhn1h na~~a~_ 7~'t~v~ ~aaz~,i~s~atrit,~x~-sb~11 trr, a,.~--,~-e-~-~i~~~~d~sla~~-C-eur~ ,, ~- r ,,, y ~+;,, ---Ce~~::at~.far-soon-o#~rb~.ter~___. 7 During arbitration and resolution, of an dispute, complaint or claim, the Commissioning Provider shall continue with scheduled performance of work in accordance with this Contract. The Owner shall continue to make payment in accordance with the provisions of this Contract except in those areas involving the complaint, dispute or claim. Q. EMPLOYMENT 1 The Commissioning Provider shall be familiar with and be responsible for and adhere to all Federal at~d State requirements regarding emplayment practices. 2 All hiring and other employment practices of the Commissioning Provider shall be in accordance with Federal Equal Employment Opportunity Commission regulations and slaall be nondiscriminatory, based on merit and qualifications without regard to race, color, religion, creed, political ideas, sex, age, marital status, physical or mental handicap, or national origin. P. NOTICES All notices required under this Agreement shall be deemed properly served if delivered in writing, personally, or sent by certified or registered mail to the address given below. Unless and until changed by either party by notice in writing, notices shall be sent to: tames Gohnnig City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 John. Phillips, P.E. Facility hnprovement Corporation 800 '7th Ave. North Great balls, MT 59401 The date of mailing shall be deemed the date of such notice and sezvice thereof A-6 Q. ATTORNEY'S FEES. In the event it becomes necessary for either Party to this Agreement to retain an attorney or use an in- house counsel, to include the City Attorney, to enforce any of the terms or conditions of this Agreezxzent, then the prevailing Party shall be entitled to reasonable attorney's fees and costs, including fees, salary, anal costs of in-house counsel. R. SEVERABII.ITY The provisions of this Agreement shall be deemed independent and severable, az7d the invalidity, partial invalidity, or unenforceability of any one provision or portion thereof shall n.ot affect the validity or enforceability of any other provision herein. S. WAVER It is agreed and understood by and between the parties that a waiver by either party of any breach of any terzxz, covenant or condition herein shall not be deemed a continuing waiver of that breach or be deemed to imply or constitute a waiver of any subsequent breach of any term, covenant or condition under this Agreement by either party. A~-'1 This Contract entered into as of the day and year I"tzst wi7tten above: COMMISSIO G PROVIDER ',a (Title) ~~~o '1 Date Taxpayer's I.D. No. 9~ '~ Sa~SZI Js this firm incorporated? no ~ yes OWNER: CITY OF BOZEMAN (Signature) (Title) ~~ r~.r `} acro8' Date A-8 ATTACHMENT A NEW BOZEMAN CITY HALL LEED~EB 2.0 BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work LEED Requirements The commissioning program will meet the requirements of the LEED~EB 2.0 Building Systems Commissioning prerequisite (EA Prerequisite 1) required for certification in the LEED Green Building Rating System. DPfinifions Static Testing ~ Tests performed by the Contractor on equipment and systems that are required to complete the installation of the systems. These tests include flushing of piping systems, pressure and leak tests, water quality tests, boiler flushing and boil-out, duct leakage tests, etc. Start-up Testing -Normal start-up services performed by the Contractor ar Manufacturer's Representative to bring each system into full operational state. This includes initial operational settings and calibrations of equipment and controls, alignment, lubrication, motor rotation check, etc. This includes factory start-up services for major equipment as specified. Testing, Adjusting, and Balancing (TAB) -Testing, Adjusting, and Balancing of equipment and systems as specified in Division 15. Functional Performance Tests -Tests performed by the Commissioning Authority to verify all components, subsystems, and systems function in accordance with the contract documents and design intent. These tests include Mechanical Inspections, Controls Calibration Verification, Control Sequence Testing, Balance/Flow Verification, and Performance Verification Tests. Mechanical Inspections: Inspections to verify that the equipment and systems are physically installed per the contract drawings and specifications. Controls Calibration Verification: Verification of calibration of sensors, transmitters, actuators, and other control devices. Control Sequence Testing: Verification of proper programming and execution of all specified control sequences including control loops, interlocks, overrides, safeties, and scheduling. Balance/Flow Verification: Verification of flow settings and proper balancing of air and water systems. Performance Verification: Additional tests performed to verify that the performance of the systems conforms to the design intent. FACILITY IMPROVEMENT CORPORATIQN 12/17/07 Page 9 ATTACHMENT A NEW BOZEMAN CITY HALL LEED-EB 2.0 BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work Buildin S sfems Sco e The building systems included in the Scope of Commissioning Work shall be: Mechanical Sysfems -Commissioning, as outlined within this document, for all building mechanical systems and components included in Division 15 of the project Plans and Specifications with the following limitations: Plumbing Systems - a) Domestic Water, Drain/Waste/Vent Distribution -Commissioning limited to oversight and documentation of all pressure testing, flushing, and water quality tests of plumbing systems piping as required by the specifications and authority having jurisdiction. Includes mechanical inspections of the systems. b) Domestic Hot Water Generation ~ Full Commissioning. 2. Hydronic Systems ~ Full commissioning of heating hot water system, including boilers pumps. Flushing of hot water system will be witnessed. StartTup of the boilers will be verified. 3. HVAC Systems -Full commissioning of all air handling equipment, VAV terminal units, and exhaust systems. 4. Temperature Control System -Full commissioning. 5. Systems Testing, Adjusting, and Balancing -Full commissioning. 6. Variable Frequency Drives ~ Full commissioning. Electrical Sysfems -Commissioning, as outlined within this document, for the following building electrical systems and components: Fire Alarm Systems -Commissioning limited to verification of all fire alarm system interfaces with the mechanical systems. Building systems excluded from the Commissioning Scope of Work include Site Utilities, Building Envelope, Fire Protection Systems, Power Distribution Systems, Emergency Power Generation, Communications Systems, Security Systems, and Vertical Transportation Systems. FAOILITY IMPROVEMENT CORPORATION 12/17/07 Page 10 ATTACHMENT A NEW BOZEMAN CITY HALL LEED-EB 2.0 BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work Desi n Phase Commissionin Tasks Review the Construction Documents to ensure that commissioning is adequately specified, that each commissioned system can be commissioned and meets the design intent relative to functionality, energy performance, water performance, maintainability, sustainability, system cost, indoor environmental quality, and local environmental impacts. 2. Develop specification Division 17 that defines the commissioning plan requirements for the contractors. Coordinate this specification with other portions of the project construction documents. 3. Include Operation and Maintenance Manual requirements and Training requirements for the building systems included in the Scope of Commissioning Work in specification Division 17. 4. Review and assist the Owner and design team with development of the Building Operations Plan that includes the requirements of building usage, and addresses the heating system, cooling system, lighting system, safety systems and the building automation controls. Biddin Phase Commissionin Tasks 1. Address contractor questions related to commissioning, research questions regarding the commissioning process, and write commissioning addenda as required for distribution to contractors. Consfrucfion Phaso Commissionin Tasks Develop a draft Commissioning Plan including a brief overview of the commissioned systems; an outline of inspection, start-up, functional testing, training and O&M documentation requirements for commissioning the building systems; identification of the primary commissioning participants and their responsibilities; and a list of the expected work products. A tentative commissioning schedule based on the overall construction schedule submitted by the contractor will also be included. 2. Conduct a commissioning scope meeting with all team members to review the plan and proposed schedule. The roles and responsibilities of each party are discussed. 3. Complete and submit the final Commissioning Plan to the team members. FACILITY IMPROVEMENT CORPORATION 12/17/07 Page 11 ATTACHMENT A NEW BOZEMAN CITY HALL LEED-EB 2.D BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work 4. Make one general site visits to observe construction to note details that might affect equipment and system commissionability oroperation. 5. Oversee and document all static testing including pressure tests, cleaning/flushing, and water quality tests of piping systems as required by the specifications and authority having jurisdiction. Duct pressure testing is not specified. Witness selected static testing. 6. Develop the Start-up Test Plan for all equipment and systems included in the Scope of Commissioning Work. Start-up procedures will be based on manufacturer's standard start-up documentation. This will be augmented by additional procedures to ensure complete integrated system start-up. 7. Oversee and document all start-up testing performed by the contractors and/or equipment vendors based on the requirements of the Start-up Test Plan. Verify all start-up testing during functional performance testing. S. Develop summaries of discrepancies noted during static testing, performance of prefunctional checklists, and start-up testing. Coordinate with the design team, contractors, and vendors to solve discrepancies. 9. Attend on-site meetings as required far coordination and discussion of the construction phase commissioning. Meetings shall be scheduled to coincide with other site visits included in the scope of work. Accepfance Phase Commissioningq Tasks Develop the function performance test procedures to be used during the acceptance phase. 2. Perform functional performance testing, with the assistance of selected contractors as required. Functional performance testing will verify that the equipment, systems, and controls are installed and operate per the contract documents. Functional performance testing will be performed per the Commissioning Plan and Division 17 specifications. Document all functional performance testing. 3. Develop summaries of discrepancies noted during functional performance testing. Coordinate with the design team, contractors, and vendors to solve discrepancies. 4. A contingency will be included for retesting of equipment and systems to verify correction of deficiencies. Retesting required because of contractor's negligence or poor workmanship is excluded from the Scope of Wark. This testing will be considered FACILITY IMPROVEMENT CORPORATIQN 12/17/07 Page 12 ATTACHMENTA NEW BOZEMAN CITY HALL LEED-EB 2.0 BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work extra services. The Division 17 specifications require that the cost of retesting be paid for by the general contractor. 5. Review and coordinate the training program and attend training sessions for the commissioned systems as specified in the contract documents. 6. Review mechanical and temperature controls operation and maintenance manuals prepared and submitted by the contractors, Review of electrical systems operation and maintenance manuals is not included. 7. Attend on-site meetings as required far coordination and discussion of the acceptance phase commissioning. Meetings shall be scheduled to coincide with other site visits included in the scope of work. Warranty Period Commissioningg Tasks 1. Perform delayed testing during the next heating/cooling season to allow verification of operation under design weather conditions as required. Issue discrepancy reports to the contractor, noting deficiencies discovered via delayed testing to be corrected during the one-year warranty period. Documentation Design Phase w Submit Division 17 specifications section to the Architect for inclusion into the final construction documents. Construction Phase - Submit the final Commissioning Plan to the Owner's Representative for distribution to the contractors. 2. Submit site visit reports to the Owner's Representative during construction as required. 3. Submit the Start-up Test Plan to the Owner's Representative for distribution to the contractors. 4. Submit static testing and start-up testing discrepancy summaries to the Owner's Representative for distribution to the contractors. FACILITY IMPROV~M~N7 CORPORATION 12/17/07 Page 13 ATTACHMENT A NEW BOZEMAN CITY HALL LEED-EB 2.0 BUILDING SYSTEMS COMMISSIONING (EA PREREQUISITE 1) Scope of Commissioning Work Acceptance Phase -~ Submit functional testing discrepancy summaries to the Owner's Representative for distribution to the contractars. 2. Submit proposed training plan review comments to the Owner's Representative for distribution to the contractors. 3. Submit comments from review of operation and maintenance manuals to the Owner's Representative for distribution to the contractars. 4. Submit two (2) sets of a final Commissioning Report to the Owner's Representative. The Commissioning Report shall include the commissioning plan, site visit reports, completed static test forms, completed prefunctional checklists, completed start-up test farms, completed functional performance test forms, deficiency reports, the training plan, O&M manual review comments, meeting notes and agendas, and other correspondence and documentation. 5. Submit a signed LEED Letter Template to the Owner's Representative confirming that the commissioning plan has been successfully executed and the design intent of the building has been achieved. Warranfy Period - Submit discrepancy reports, Hating deficiencies discovered as a result of delayed testing to the Owner's Representative for distribution to the contractors for warranty repair. END OF SCOPE OF COMMISSSIONING WORK FACILITY IMPROVEMENT CORPORATION 12/17/07 Page 14