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Home My WebLink About15.A.1. Reconsideration of Award of Contract for Aquatic Park Building Project No. PR2006-3 \s. \\e. l. CITY OF SHAKOPEE MEMORANDUM To: Mayor and City Council Mark McNeill, City Administrator From: Mark Themig, Parks, Recreation, and Facilities Director Meeting Date: October 3, 2006 Subject: Reconsideration of Award of Contract for Aquatic Park Building, Project No. PR2006-3 INTRODUCTION This agenda item requests Council's reconsideration of the award of contract for the Aquatic Park building. DISCUSSION On September 19th,City Council awarded a contract to Ebert Construction for construction of the Aquatic Park building. The base bid was $658,900, plus the following alternates: Alternate NO.1: Exterior Restrooms for Lions Park $26,227 Alternate NO.3: Double-lock metal roof $23,725 Alternate No.4: Provide supported fabric awnings $13,397 Alternate NO.5: Pattern in exterior concrete $12,338 Alternate NO.6: Automatic Flush Valves & Controls $ 3,780 Alternate NO.7: New 4" Line from building for Lion's Restrooms $12,495 Representatives from Ebert Construction attended the meeting and indicated that there was an error in their bid, and if the City were to award Alternate No.7, they would not sign the contract. We issued the contract to Ebert on September 22, and received the attached notice on September 25 indicating that Ebert Construction refuses to executethe contract. Mr. Thomson has provided the attached opinion on Ebert's ability to withdraw a bid based on an error. After consulting with the City Attorney, it appears as though City Council has two options: 1. Award equivalent bid to CMConstruction, including Alternate No 7 This option would award the same bid, but would add $59,500 in additional costs to the project over Ebert's equivalent bid. If you select this option, my recommendation is that you would make a claim on Ebert's bid bond. However, the bid bond is only worth 5% of the bid ($37,500). 2. Award bid to CM Construction, excluding Alternate No. 7 This option would eliminate the water service line to Lions Park restrooms, and would still involve an additional $30,000 in costs to the City over Ebert's. With this option, the City should also make a claim against Ebert's bid bond for the $30,000 increase. With either of these options, the bonding company or Ebert could contest the claim on the bid bond. RECOMMENDED ACTION Given all the considerations, I would recommend Alternate No.2, awarding the bid without Alternate No.7. I don't believe that CM Construction's cost for the water service line to Lions Park restrooms ($42,000) is a good value for the city. However, we will include a stub out for installing the water service line in the future, should the need and desire arise. I would also recommend that you authorize making a claim on Ebert's bid bond for refusing to execute the contract. I was still working with the City Attorney on the wording for the resolutions at the time of writing this memo, so resolutions for both options will be provided to you prior to or aUhe meeting. Once you make a decision on the bid, we will return to you with the requested detail on the optional project improvement discussed at the last meeting. VISIONING RELATIONSHIP F. Housekeeping Item REQUESTED ACTION 1. Move the appropriate resolution awarding contract to CM Construction with desired alternates. (Resolutions will be provided to you prior to or at the meeting.) 2. Move to submit a claim on the bid bond provided by Ebert Construction for refusing to execute the contract. SHAKOPEE AQUATIC FACILITY-BID TABULATION FORM-September 7, 2006 General Contractor AII.#6- Provide Base Bid A1r.#l.Twinreslroom AIt#3-Doubl.1 k ...1 oaf . AII.#5- Provide panera AIt#7-p"d 4"11 dd' - & II . d' e oc m, AII.#4- Pra..de " aUlomalic flush valves & . 'eVl e new ne Base Bid wilh Allernales Base Bid wilh AIt.rnales a ItlGn a associate @Iow-slopedhigh roof area wI d lab . . In exterior concrete I @ & from new building 10 exis.. 6 & 7 3 & 6 work rpOar'owerroofarear supporte ,.rawnlngs usingcoJoredconcrete conlro 5 w.e. UonsPclrkrestrooms 1,3,4,5, 1, ,4,5 urinals Ebert Construction $658,900.00 $26,227.00 $23,725.00 $13,397.00 $12,338.00 $3,780.00 $12,495.00 $750,862.00 $738,367.00 CM Construction $703,000.00 $36,000.00 $7,500.00 $14,000.00 $3,800.00 $4,200.00 $42,000.00 $810,500.00 $768,500.00 Rochon $716,000.00 $28,000.00 $23,000.00 $14,000.00 $13,000.00 $4,500.00 $30,000.00 $828,500.00 $798,500.00 Greystone . Construction $723,650.00 $30,720.00 $23,680.00 $12,297.00 $10,480.00 $3,878.00 $33,091.00 $837,796.00 $804,705.00 Jorgenson Construction $698,000.00 $49,000.00 $56,000.00 $12,000.00 $3,800.00 $4,000.00 $30,000.00 $852,800.00 $822,800.00 K.A. Witt Construction $738,380.00 $41,000.00 $25,110.00 $15,145.00 $5,380.00 $5,805.00 $27,730.00 $858,550.00 $830,820.00 Frerichs Construction $759,600.00 $40,500.00 $23,980.00 $15,017.00 $3,888.00 $2,722.00 $36,000.00 $881,707.00 $845,707.00 MorCon Construction $789,985.00 $25,750.00 $36,000.00 $11,875.00 $7,750.00 $6,000.00 $11,550.00 $888,910.00 $877,360.00 Kratochvil Construction $810,950.00 $41,233.00 $17,066.00 $13,759.00 $5,500.00 $3,960.00 $23,090.00 $915,558.00 $892,468.00 Merrimac Construction $852,265.00 $32,678.00 $13,838.00 $7,002.00 $3,799.00 $4,294.00 $10,201.00 $924,077.00 $913,876.00 MetCon Construction $788,000.00 $37,000.00 $26,000.00 $16,000.00 $9,000.00 $6,000.00 $45,000.00 $927,000.00 $882,000.00 Lund Martin Construction $860,000.00 $43,000.00 $24,500.00 $11,000.00 $3,500.00 $4,000.00 $21,500.00 $967,500.00 $946,000.00 PAGE 02/02 1"'11 (7631 .45'8. 181.1.0. ,. X 1763) 1138. f:l~51 f 80()) 67-7. i $~!:' Mr. Thomas Stromsodt September 22, 2006 Oertel Architects 1795 St. Clair Avenue St. Paul, MN 55105 RE: Shakopee Aquatic Center Dear Mr. Stromsodt, Today we received a construction contract for this project. As per Our letters of 9/18, 9/20 (attached), and a conversation with Mark Themig on 9120 we will not execute this contract and are returning it. The error in our bid alternate #7 was brought fOlWard as soon as we were made aware that alternate #7 was to be part of the project. We apologj~e for any inconvenience this causes the Architect, the City and Project. Sincerely, ;B Randy Pavey Project Manager J~ cc Mark Themig - City of Shakopce Kennedy 470 u.s. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 ~. (612) 337-9300 telephone - . (612) 337-9310 fax C H ART ERE 0 http://www.kennedy-graven.com MEMORANDUM TO: Mayor and City Council FROM: James J. Thomson, City Attomey~ DATE: September 29, 2006 RE: Aquatic Park Building Bid Award At its meeting on September 19, 2006, the City Council awarded the contract in this matter to the apparent low bidder, Ebert Construction. The bid award included the base bid plus six alternates. Ebert Construction has now indicated that they will not be signing the contract because of a mistake that they purportedly made with respect to Alternate # 7. Ebert Construction contends thatthe City is obligated to allow them to withdraw its bid. My understanding of the facts is as follows: 1. The bid opening occurred on September 7, 2006 and Ebert Construction submitted the apparent low bid. 2. On the afternoon of September 7, the. architect for the project contacted . a representative of Ebert to ensure that its bid was accurate. During that conversation, the architect advised Ebert that the city staffwas planning on recommending that the contract be awarded on the base bid, plus Alternates 1, 3, 4, 5, and 6. The architect advised Ebert that the staff had not yet made a determination with respect to Alternate # 7. 3. A representative of Ebert Construction contacted the architect on September 8 and indicated that the bid numbers were accurate. 4. On September 14, the city staff prepared its report to the City Council recommending the award to Ebert. The recommendation included Alternate # 7. At the time of the preparation of that report, the city staff had not been advised by Ebert of any mistakes in its bid. 5. On Monday, September 18, a representative of Ebert Construction contacted the architect and advised him that there was a mistake in the bid for Alternate # 7. The Ebert representative stated that the mistake had to do with an error in its Excel spread sheet calculation. Beyond that, Ebert provided no further details with respect to the alleged mistake. 299140vl JJT SHlSS-23 6. On September 19, a representative of Ebert appeared at the City Council meeting. At the meeting, the Ebert representative stated that Ebert wanted to withdraw its bid if the City intended to award the contract including Alternate # 7. Otherwise, Ebert stated that it did not want to withdraw the bid. I advised the City Council that Ebert needed to make a decision on whether to withdraw its entire bid and that it did not have the option of withdrawing a "portion" of its bid. Because the Ebert representative was not willing to withdraw its bid in its entirety, the City Council considered the bid not to be withdrawn and awarded the contract to Ebert. There are no. Minnesota court decisions directly addressing the issue of whether a contractor can withdraw a bid based on a mistake. Courts in other jurisdictions have concluded that withdrawal of a mistaken bid is possible if the following criteria are met: 1. The bidder's mistake related to a material aspect of the contract; 2. The mistake was of such a magnitude that enforcement of the contract would be unconscionable; 3. The mistake was made despite the exercise of reasonable care by the bidder; 4. Allowing the bidder to withdraw would not result in substantial prejudice to the city; and 5. The mistake was not caused by and was unknown to the city. Based on the above factors, it does not appear to me that the necessary elements of a "mistake" apply in this case. However, because there are no Minnesota court decisions on this issue, it is possible that a court could conclude to the contrary. 299140vl IJT SH155-23 2 CITY OF SHAKOPEE MEMORANDUM To: Mayor and City Council Mark McNeill, City Administrator From: Mark Themig, Parks, Recreation, and Facilities Director Travis Karlen, Recreation Supervisor Meeting Date: September 19, 2006 Subject: Consideration of Bids for Aquatic Park Building, Project No. PR2006-3 INTRODUCTION City Council is asked to consider the bid results and awarding a contract for the Aquatic Park Support building, and authorize associated improvements. BACKGROUND On August 18th, 2006, City Council approved the plans and specifications and cost estimates for the aquatic park support building and authorized advertisements for bids. The design of the building will provide restrooms, concessions, admissions, employee support areas, changing rooms, family changing rooms, storage, and mechanical controls. DISCUSSION Base Bid Results Bid opening for the Aquatic Park took place on September tho Twelve contractors submitted bids on the building design. The apparent low base bid was $658,900, and the high bid was $860,000 (see attached bid tab sheet). The architect's estimate was $945,000, so the low base bid is approximately $286,100 under the architect's estimate. Bid Alternates The bid contained seven alternates for consideration: Alternate NO.1: Lion's Park Restrooms $26,227 Alternate NO.2: TPO roofing $ 6,505 Alternate No.3: Double-lock metal roof $23,725 Alternate NO.4: Provide supported fabric awnings $13,397 Alternate No.5: Pattern in exterior concrete $12,338 Alternate NO.6: Automatic Flush Valves & Controls $ 3,780 Alternate NO.7: New 4" Line from building for Lion's Restrooms $12,495 Since we are under the architect's estimate and funding is available, we are recommending Alternates 1,3,4, 5, 6, and 7, for a total cost of: . Alternate 1 Lion's Park Restrooms $26,227 This alternate is for construction of the exterior accessed restrooms on the east end of the Aquatic Park building that would serve Lion's Park. The Lions Club would like to retain the current restrooms. However, they are not ADA compliant. By adding these restrooms we would provide accessible restrooms in the park. The existing restrooms are still in need of upgrading (repainting), and we may want to study the costs for making them accessible as well. However, that is not planned until 2007. The Parks and Recreation Advisory Board supported this alternate if funding was available. . Alternate 3 Double Lock Metal Roof $23,725 This alternate would provide a double-lock metal roof at the low-sloped high roof area of the building with TPO roofing at the lower roof areas which will provide a better roof structure. . Alternate 4 Provide supported FabricAwnings $13,397 The design of the building includes fabric awnings that were bid as alternates. These awnings would provide shade over the concessions areas and would add to the aesthetics of the building. . Alternate 5 Provide Color Pattern in Concrete $12,338 This alternate would provide a color pattern in the exterior concrete using colored concrete. The colored concrete would provide a more fun inviting area for kids coming into the building. . Alternate 6 Automatic Flush and Valve Controls $3,780 Providing automatic flush valves and control in lieu of manual operation at all water closets and urinals identified in the mechanical/electrical drawings. . Alternate 7 Provide a 4" Water Line to the Existing Lion's Park Restrooms $12,495 This alternate would provide the existing restrooms in Lion's Park with a new water line which would help with the water pressure issues for the irrigation system that serves Lions Park. Additional Project Improvements Outside of Bids Several items were identified in the pre-bid cost estimates as other improvements that could be considered outside of the contract if funding was available. These are items that we believe should be completed as part of the project in order to provide a complete package: . Concessions Equipment $10,000 Equipment for the concession operation. . Picnic Tables $12,500 Replacement picnic tables. Existing tables would be used in the park system. . Diving Board Replacement $7,500 Replace diving board, which needs to be replaced. . Fence Replacement $39,750 Replace exterior fencing around pool. Fence would be installed so it could be relocated when waterslide replacement occurs, if necessary. . Sand Play Structure $12,000 Addition of a sand play structure. -,., . Additional Shade Structures $44,000 Would provide for three additional shade structures, one on the east side, one on the west side, and an additional structure that would cover the filtration equipment to help protect it from UV rays. All shade structures are proposed to be Sun Port models, and the cost includes installation. . Bike Rack Replacement $2,500 . Electricity to Jeffery Rogers Shelter $1,000 Would provide electricity to the shelter in the beach area for bands, DJ events, and birthday party rentals. . Sprinkler System $10,000 The Building Official recently commented that the City's adoption of State Building Code Chapter 1306 requires sprinkler protection when an area is in excess of 2,000 sq. ft. This requirement would apply to all the park buildings currently being constructed or considered. We have scheduled a meeting with all the architects and the Building Official for September 21 to discuss further. If this requirement is changed, this work would be dropped and the funding would not be used. Waterslide Replacement The 2008 CIP has $100,000 identified for the replacement of the waterslide. The waterslide was constructed in 1985. Portions of the slide are brittle and there are several seams that are in constant repair to maintain the safety of the slide. With the current project costs below our estimates, we met with U.S. Aquatics, designers of the 2000 improvements, to get a better feel for waterslide replacement costs. Our thought was that perhaps the slide replacement could occur in 2007. What we found was that waterslide replacement could be as high as $200,000 - $400,000, depending on what options are selected (see attachment examples). Ours might be less as we have an existing hill. In order to more fully understand the costs associated with the slide replacement, we are also recommending that we proceed with additional work with U.S. Aquatics to examine waterslide replacement options and costs, and report back to City Council over the winter at a work session. PROJECT BUDGET SUMMARY Project CIP Budget: $1,080,000 Project Costs: Design and Construction Admin $ 108,200 Base Bid $ 658,900 Testing and Contingency (5%) $ 33,000 Recommended Bid Alternates $ 91,962 Recommended Proiect Improvements $ 139.205 Total Costs $1,031,312 Balance: $ 48,688 VISIONING RELATIONSHIP A. Active and Healthy Community C. Great Place for Kids to Grow Up OPTIONS TO CONSIDER 1. Accept the bids, award the contract, and authorize the additional improvements. 2. Accept the bids and award the contract without the additional improvements. 3. Reject all bids and delete the project. 4. Table for additional information. REQUESTED ACTION If City Council concurs, move to: 1. Award a contract for construction of the Aquatic Park building by offering Resolution No. 6495, A Resolution Accepting Bids and Awarding a Contract for Construction of the Shakopee Aquatic Park Building, Project No. PR2006-3, specifying Bid Alternates No.1, 3,4,5,6, and 7. 2. Authorize contingency and testing in the amount of 5% of the base bid. 3. Authorize additional project improvements identified in the staff report not to exceed $139,205. 4. Direct staff to seek a proposal from U.S. Aquatics for professional assistance in review of the existing waterslide and preliminary waterslide replacement options and costs. CITY OF SHAKOPEE MEMORANDUM To: Mayor and City Council Mark McNeill, City Administrator From: Mark Themig, Parks, Recreation, and Facilities Director Meeting Date: September 19, 2006 Subject: Update on Consideration of Bids for Aquatic Park Building, Project No. PR2006-3 INTRODUCTION The following is an update on the bids for the Aquatic Park support building. DISCUSSION Request for Withdraw of Bid Oertel Architects was notified yesterday (September 18) that the low bidder, Ebert Construction, made a mistake in their bid. This letter was received 11 days after the architect verbally confirmed with Ebert Construction that they were comfortable with their bids numbers. According to the letter that Ebert issued on September 18, they are requesting an additional $20,800 for Alternate NO.7. If the City is not willing to provide the additional funding, which we can not legally do, the contractor has requested that we not include it in the contract, or allow the contractor to withdraw the bid. REQUESTED ACTION Action No.1: Bid Consideration Options Option A. Award the contract to Ebert Construction with Alternates No.1. 3. 4. 5. 6. and 7 bv offerina the resolution attached as OlJtion A. If you choose to award the contract to Ebert Construction, this is the option that I would recommend. However, Ebert Construction has indicated that they will not enter into a contract. If Ebert does not enter into a contract, the City has the option of drawing down on their bid bond and awarding the contract to another bidder. However, this option has potential impact in our ability to complete the project in time for opening in 2007. Project CIP Budget: $1,080,000 Project Costs: Design and Construction Admin $ 108,200 Base Bid $ 658,900 Testing and Contingency (5%) $ 33,000 Recommended Bid Alternates $ 91,962 Recommended Proiect Improvements $ 139.205 Total Costs $1,031,312 Balance: $ 48,688 Option B. Award the contract to Ebert Construction with Alternates No.1. 3. 4. 5. and 6 bv offerina the resolution attached as Option B. This would eliminate the water service line from the project. I am not recommending this option. I believe that Ebert Construction should be held responsible for their bid as submitted. Project CIP Budget: $1,080,000 Project Costs: Design and Construction Admin $ 108,200 Base Bid $ 658,900 Testing and Contingency (5%) $ 33,000 Recommended Bid Alternates $ 79,467 Recommended Proiect Imorovements $ 139.205 Total Costs $1,018,772 Balance: $ 61,228 Option C. Allow Ebert Construction to withdraw their bid and award the contract to the next lowest bidder. CM Construction with Alternates No.1. 3, 4, 5, and 6 bv offerina the resolution attached as Option C. This is my recommended option. If you choose this, the project budget will not provide adequate funding for Alternate No 7. Project CI P Budget: $1,080,000 Project Costs: Design and Construction Admin $ 108,200 Base Bid $ 703,000 Testing and Contingency (5%) $ 35,150 Recommended Bid Alternates $ 65,500 Recommended Proiect Imorovements $ 139.205 Total Costs $1,051,055 Balance: $ 28,945 Option D. Reiect all bids and delete the proiect. Option E. Table for additional information and consideration. Action No.2: Contingency Authorize contingency and testing in the amount of 5% of the base bid. Action No.3: Additional Project Improvements We are requesting that you defer specific action at this time. If you generally concur with the additional improvement projects, we will return with price quotes for further consideration. Action No.4: Waterslide Research Direct staff to seek a proposal from U.S. Aquatics for professional assistance in review of the existing waterslide and preliminary waterslide replacement options and costs. /St A. L DN 1~ YDLe. RESOLUTION NO. 6511 A Resolution Accepting Bids and Awarding a Contract for the Construction of the Shakopee Aquatic Park Building, Project No. PR2006-3 WHEREAS, pursuant to an advertisement for bids for the Construction Aquatic Park Building, Project PR2006-3, bids were received, opened and tabulated according to law, and the following bids were received complying with the advertisement: Bidder Base Bid Ebert Construction $658,900 Jorgenson Construction $698,000 CM Construction $703,000 Rochon $716,000 Greystone Construction $723,650 K.A. Witt Construction $738,380 Frerichs Construction $759,600 MetCon Construction $788,000 MorCon Construction $789,985 Kratochvil Construction $810,950 Merimac Construction $852,265 Lund Martin Construction $860,000 AND WHEREAS, on September 19, 2006, Ebert Construction, Inc. was awarded the contract for the base bid and bid alternates 1, 3, 4, 5, 6 and 7 through Resolution No. 6495; AND WHEREAS, Ebert Construction, Inc. received the contract on September 22, 2006; AND WHEREAS, Ebert Construction, Inc. provided notice on September 22, 2006 that they would not execute the contract and were returning it; AND WHEREAS, City Council has carefully considered the remaining bids and bid alternates and has determined that next lowest responsible bidder is CM Construction, 12215 Nicollet Avenue South, Burnsville, Minnesota 55337; AND WHEREAS, City Council has carefully considered the alternates to the bid and is selecting the following alternates in order to remain within the project budget: X Alternate NO.1: Lion's Park Restrooms $36,000 _Alternate NO.2: TPO roofing $ 3,000 X Alternate NO.3: Double-lock metal roof $ 7,500 X Alternate NO.4: Provide supported fabric awnings $14,000 X Alternate No; 5: Pattern in exterior concrete $ 3,800 X Alternate NO.6: Automatic Flush Valves & Controls $ 4,200 Alternate NO.7: New 4" Line from building for Lion's Restrooms $42,000 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY . OF SHAKOPEE, MINNESOTA: 1. The appropriate City officials are hereby authorized and directed to enter into a contract with CM Construction in the name of the City of Shakopee for the construction of the Aquatic Park Building, Project No. PR2006-3, according to the plans and specifications therefore authorized by the City Council and on file in the office of the City Clerk. 2. City Council authorizes an amount equal to 5% of the base bid for contingency on this project in authorizing change orders or quantity adjustments. 3. The City Clerk is hereby authorized and directed to return forthwith to all bidders the deposits made with their bids, except that the deposits of the successful bidder and the next lowest bidder shall be retained until a contract has been signed. Adopted in session of the City Council of the City of Shakopee, . Minnesota, held this day of ,2006. Mayor of the City of Shakopee A TIEST: City Clerk