contract No. 32600223- Roadway Electric.pdf
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JOB ORDER CONTRACT
BETWEEN
CITY OF BUCKEYE
AND
ROADWAY ELECTRIC LLC
CONTRACT NO. 32600223
This JOB ORDER CONTRACT for Traffic Signal and ITS Construction Services (the "Contract") is
made and entered into, by and between the City of Buckeye, an Arizona municipal corporation
(the "City") and Roadway Electric LLC, an Arizona limited liability company (the Contractor ).
This Contract is for Traffic Signal and ITS Construction Services, and issued as required by award
of individual Job Orders (the "Project").
RECITALS
A. The City issued a Request for Qualifications
RFQ No. 32600173 Job Order
Contracting General for Category:
(the
incorporated herein
by reference, seeking proposals from contractors interested in providing Traffic Signal
and ITS Construction Services.
B. The Contractor submitted a
a copy of which
and incorporated herein by reference, and the
City desires to enter into an Agreement with the Contractor for indefinite quantity
and indefinite delivery for various projects related to Traffic Signal and ITS
Construction Services for the City. The Projects may include Design Services,
preconstruction services, permitting regulatory requirements and as-built/close-out
documents (collectively
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated
herein, and for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the City and the Contractor agree as follows:
ARTICLE 1
CONTRACT TERM
1. This Contract has a base period of two (2) years and three (3) optional periods of one (1)
year each that may be exercised in the sole discretion of the City. Any exercise of any
option to renew this Contract beyond the base period will only be effective upon written
notice from the City.
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2. The Contract Time for each Job Order shall start with the Notice to Proceed ( NTP ) and
end with Final Acceptance, as set forth below. The NTP will not be issued until prior
approval and acceptance by the City of the Job Order.
3. The Contract Time is identified in the Job Order as the Contract Duration in terms of
calendar days. Contractor agrees that it will commence performance of the Work after
receiving an official NTP letter and complete the Project through both Substantial
Completion (if applicable) and Final Completion within the Contract Time.
4. Time is of the essence of this Contract, and each Job Order issued hereunder, for each
Project, and for each phase and/or designed milestone thereof.
5. Failure on the part of Contractor to adhere to the approved Project Schedule will be
deemed a material breach and sufficient grounds for termination of a specific Job Order
and/or this Contract by the City. The City will assess liquidated damages as described in
each Job Order for each calendar day of delay beyond the Final Completion date.
ARTICLE 2
OVERVIEW OF JOB ORDER CONTRACTING UNDER THIS CONTRACT
1. This Contract establishes an indefinite delivery, indefinite quantity, Job Order Contract
for such Services within the scope of this Contract as the City may request from time to
time by issuance of an individual Job Order for each Project. Unless otherwise specified
in a specific Job Order, Job Orders generally will not include Design Services and that
where Design Services are necessary, the City will provide them under separate contract.
There will be a separate Job Order for each Project that will describe the Work to be
provided by Contractor for that Project. There may be multiple projects and therefore
multiple Job Orders under this Contract.
2. The amount to be paid by the City for the Project under each Job Order is the Contract
Price for that Job Order. The Job Order price will include a total amount for each Job Order
priced for the Work described for that Job Order. The Contract Price for any Job Order
will be established as a Firm Fixed Price, subject to the following:
(a) Estimated values for individual projects are estimated at $100,000.00 to
$1,000,000.00. Most projects will be completed within the same fiscal year they are
initiated in or within three hundred sixty-five (365) days from the Notice to Proceed.
Projects may extend into the next fiscal year and beyond, but in no instance will any
one project under this Contract exceed $2,000,000.00.
(b) There is no limit on the number of Job Orders that the City may issue to the Contractor
during the term of this Contract. Likewise, there is no requirement that the City issue
any Job Orders to the Contractor during the Term of this Contract.
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3. This Contract is non-exclusive. The City shall have the right to engage other contractors
to perform the Services or to self-perform the Services.
4. No Contract in relation to any specific Work is in effect until a Job Order has been fully
executed by the City and Contractor.
5. During the Term of this Contract, the City will issue an individual Job Order request for
proposal to the Contractors under the JOC General Construction Services category for
each Project or negotiate directly with a contractor. Each Job Order will have specific
instructions concerning that Job Order. The Contractor will follow these specific
instructions when preparing a response in the form of a Job Order Proposal.
6. The general steps for development of a Job Order are:
(a) When the City identifies a need for performance of a Project under a Job Order; the
City will issue an RFP to the Contractor and also advise the Contractor of the nature
of the Work to be done. This is done either by a delivery order request for proposal
or through direct negotiations utilizing the rankings from the RFQ evaluation process
as specified in the RFQ. At the same time, the City will advise the Contractor if Design
Services are required and how those services will be provided. Within seven (7)
working days of receipt of this notification, the Contractor will:
(i) Visit the proposed Project Site with City designated representatives; and
(ii) Arrange with the City to further define the scope of the Project.
The Contractor shall thoroughly acquaint itself with all available information concerning
the conditions of the Work under each Job Order and is responsible for correctly and fully
estimating the difficulty of performing the Work, the actions required to perform the
Work and the cost of successfully performing the Work under each Job Order.
(b) The City may arrange for any needed Design Services to produce the Drawings and
Specifications. Design Services will not begin until the scope of Design Services is
approved by the City. The Drawings and Specifications developed by the Design
Services are subject to approval by the City. If there are no Design Services, the City
will develop Drawings and Specifications consisting of a line drawing and a written
description of the contemplated Work.
(c) Upon establishment of the scope of work, the Contractor will prepare its proposal for
accomplishment of the Project. The proposal will include pricing and schedule for
completion of the Project.
7. Upon award of a Job Order, a signed copy of the Job Order will be mailed or electronically
forwarded to the Contractor. Failure by the Contractor to pick up or receive the mailed or
electronic orders shall not relieve the Contractor from the obligation to complete the
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Work under the Job Order in accordance with the terms of this Contract or the terms of
each Job Order.
8. The City may provide a verbal NTP for the Work in advance of issuing the formal NTP letter
(which will be followed up with a written NTP). Normally, NTP will be issued under
separate cover from the Job Order. The Contract duration starts with the date on the NTP
letter.
ARTICLE 3
DEFINITIONS
means written or graphic instruments issued prior to the submittal of the Proposal(s),
which clarify, correct or change the Proposal(s) requirements.
means the executed agreement between the City and Contractor,
including any amendments to the executed Agreement.
payable by the City to the Contractor.
stating
the Work required under the Contract has been completed.
certifying that the Work under the Contract is considered sufficiently complete so that the City
can occupy and use the Project or a portion thereof for its intended purposes.
a Job Order or this Contract
signed by the City and the Contractor, stating their agreement upon all of the following: the scope
of the change in the Work; the amount of the adjustment to the Contract Price; and the extent
of the adjustment to the Contract Time(s). A Change Order is an amendment to the Agreement.
means the City of Buckeye, a municipal corporation, with whom Contractor has entered
into this Contract and for whom the Services is to be provided pursuant to said Contract.
means information developed by or for the City to describe the City
program requirements and objectives for the Project, including use, space, price, time, site and
expandability requirements, as well as submittal requirements and other requirements
governing Contractor
The City
conceptual documents, design criteria, performance requirements and other Project-specific
technical materials and requirements.
City
Contract.
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of the Project including any works and its systems to meet the design needs and requirements of
the City.
Contractor or a Consultant.
Construction Documents.
precedence: (i) all written modifications, amendments and Change Orders to this Contract;
(ii) this Contract, including all exhibits and attachments, executed by the City and Contractor to
include each Job Order; (iii) written supplementary conditions; (iv) Construction Documents
prepared and approved; (v) Contractor
City
Project Criteria;
(vi)
s Project Criteria; (vii) Contractor
City
City
each awarded Job Order subject to
adjustment in accordance with this Contract.
each awarded Job Order subject to adjustment in
accordance with this Contract.
Job
to be performed under this Contract for an individual, mutually agreed upon scope of work,
schedule and price.
Contractor in performing the scope of
work described in each Job Order.
Contractor
or by the City to provide required Project design under this Contract and any subsequent
amendments.
means the firm, corporation, or other approved legal entity with whom
the City has entered into this Contract to provide services as detailed in this Contract. The term
Contractor may be used to identify the Job Order Contractor.
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conditions at the Site that, (i) materially differ from the conditions indicated in the Scope of Work
issued with each Job Order or (ii) are of an unusual nature, differing materially from the
conditions ordinarily encountered and generally recognized as inherent in the Work.
means the completion of the Project as prescribed in Article 10.
Critical Path and extending the Substantial Completion date.
means all applicable federal, state and local laws, codes, ordinances, rules,
regulations, orders and decrees of any government or quasi-government entity having
jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.
due by the Contractor when in breach of the
Contract. The amount is determined based off of the Contract Price and predetermined amounts
from the Maricopa Association of Governments (MAG) Uniform Standard Specifications and
Details for Public Works Construction.
City, authorizing the Contractor
to start Work or a portion of the work.
Payment Application
City form used by the Contractor to request payment for Work
performed.
brochures, diagrams and other information furnished by the Contractor to illustrate materials or
equipment for some portion of the Work.
means the Work to be completed in the execution of any awarded Job Order and as
amended and as prescribed as any Scope of Work in identified in each awarded Job Order. Project
means the Work associated with each awarded Job Order issued under this Contract.
this Contract or subsequent Job Orders.
12.
establish standards by which the Work will be judged.
of the Work.
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Document specified in the construction phase, which
divides the Contract Price into pay items, such that the sum of all pay items equals the awarded
Job Order Price for the Work, or for any portion of the Work having a separate specified Contract
Price.
Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or
distributor to illustrate some portion of the Work.
Proceed date established plus the number of Days established in each Job Order.
locations on which the Project is located, as more particularly described
in the Job Order.
Sub consultant means any person or entity retained by Contractor as an
independent contractor to perform a portion of the Work and shall include material, men and
suppliers.
Work, is sufficiently complete so that the City can occupy and use the Project or a portion thereof
for its intended purposes.
City who furnishes project management assistance
(if applicable to a Job Order).
Variations of the City
agreed changes to the City
both Parties.
s defined in Article 5, Paragraph 2.
ARTICLE 4
DESIGN PHASE AND DESIGN SERVICES
1.
proposal.
2. Normally the City will obtain Design Services from a consultant or prepare design documents
using City Staff. However, Contractor may also be required to provide incidental Design
Services for all or a portion of the Work to be constructed under a specific Job Order. If
consulting services for design and the preparation of Plans and Specifications are required;
they will be paid for as a separate
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ARTICLE 5
CONSTRUCTION SERVICES
1. Contractor shall perform all Work necessary to construct the Project in accordance with
all applicable Legal Requirements, this Contract and the specifications outlined in each
Job Order, and render the Project and all its components operational and functionally and
legally usable for their intended purpose.
2. The term "Work" shall mean whatever is done by or required of Contractor to perform
and complete its duties relating to the construction of each Job Order under the Contract,
including, without limitation, the following:
A. Construction of the whole and all parts of the Project in full and strict conformity with
each Job Order;
B. The provision and furnishing, and prompt payment therefore, of all labor, supervision,
services, materials, supplies, equipment, fixtures, appliances, facilities, tools,
transportation, storage, power, fuel, heat, light, cooling, other utilities and things
required for the construction of each Job Order;
C. The procurement and furnishing of all necessary permits and other permits required
for the construction of each Job Order;
D. The creation and submission to the City of detailed as-built drawings depicting all as-
built construction;
E. The furnishing of any required surety bonds and insurance as may be required by each
Job Order;
F. The furnishing of all equipment and product warranties, manuals, test results and user
guides required by each Job Order or otherwise reasonably available to Contractor;
G. The furnishing of all other services and things required or reasonably inferable from
the Contract Documents, including the provisions of Article 6 below.
ARTICLE 6
TIME FOR CONSTRUCTION: THE CONTRACT TIME
1. After the City has awarded each Job Order, the City shall issue a NTP directing Contractor
to proceed with the Work on the date indicated in the notice (the "Commencement
Date"). Work shall commence within ten (10) days of the Commencement Date.
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2. Contractor shall commence the Work within ten (10) days of the Commencement Date,
and the Work shall be carried out regularly and without interruption. Contractor shall
substantially complete the Work no later than the date established in each Job Order or
such other date as may be issued by a Change Order (the "Scheduled Completion Date").
The number of calendar days between the effective date of the Contract and the
Scheduled Completion Date is the "Contract Time". Contractor shall achieve Final
Completion of the Work no later than thirty (30) calendar days after achieving Substantial
Completion.
3. Contractor understands that if Substantial Completion for entire project is not attained
by the Scheduled Substantial Completion date, the City will suffer damages which are
difficult to determine and accurately specify. Contractor agrees that if Substantial
Completion is not attained by the Scheduled Substantial Completion Date, Contractor
shall pay the City the amount established in each Job Order as liquidated damages for
each day that Substantial completion extends beyond the Scheduled Substantial
Completion Date.
4. All limitations of time set forth in each Job Order are material and time is of the essence
of each Job Order.
ARTICLE 7
ADDITIONAL DUTIES AND RESPONSIBILITIES OF CONTRACTOR
1. The intent of this Contract is to require complete, correct and timely execution of all Job
Orders awarded for the Construction Work. Any and all Construction Work that may be
required reasonably implied or reasonably inferred by each Job Order as necessary to
produce the intended result shall be provided by Contractor for the Construction Price
as provided in each awarded Job Order.
2. All Work performed by Contractor shall be in strict compliance with each Job Order.
"Substantial Compliance" is not strict compliance. Any Construction Work not in strict
compliance with each Job Order is defective.
3. The Construction Work shall be strictly supervised and directed using Contractors best
and highest skill and effort. Contractor shall bear full responsibility for any and all acts
or omissions of those engaged in the Construction Work on behalf of the Contractor.
4. Contractor warrants and guarantees to the City that all labor furnished to perform the
Construction Work under each Job Order will be competent to perform the tasks
undertaken and is the best quality obtainable, that the product of such labor will yield
only superior results in strict compliance with the requirements of each Job Order, that
materials and equipment furnished will be of high quality and new unless otherwise
permitted by the Job Order, and that the Construction Work will be of high quality, free
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from faults and defects and in strict conformance with the requirements found in each
Job Order. Any and all Construction Work not strictly conforming to these requirements
shall be considered defective and shall constitute a breach of Contractor's warranty.
5. Special or specific guarantees and warranties which are required by each Job Order to
run for a fixed period of time shall commence running on the date of Substantial
Completion of all Construction Work. In general, Contractor warrants all work, including
labor and materials, for a period of two (2) years from the date of Substantial
Completion, unless otherwise specified in the Job Order.
6. Contractor, within fifteen (15) days after the Commencement Date, shall submit to the
Manager of Construction and Contracting for his information, and shall comply with,
Contractor's Schedule of Construction for each Job Order awarded. The Schedule of
Construction shall reflect the performance of all Construction Work on weekdays and
non-holidays. The Schedule of Construction shall be a detailed critical path (CPM)
schedule in a form acceptable to the City. The Schedule of Construction shall be revised
at least monthly and shall be revised to reflect conditions encountered from time to time
and shall be related to the entire Project awarded as a Job Order. Each such revision shall
be furnished to the City. Strict compliance with the requirements of this Paragraph shall
be a condition precedent for payment to Contractor, and failure to strictly comply with
this requirement shall constitute a material breach of the Contract. No claim for an
increase in the Construction Price shall be allowed as a result of Contractor basing the
Construction Price upon an early completion schedule, or as a result of delays and costs
attributable to completion later than the planned early completion date.
7. Contractor shall continuously maintain at the Site, for the benefit of the City, an updated
copy of the awarded Job Order, including one record copy of the Job Order Documents
marked to record on a current basis changes, selections and modifications made during
construction. Additionally, Contractor shall maintain at the Site, for the benefit of the
City, a copy of all Shop Drawings, Product Data, Samples, and other Submittals, if any,
that are specified in the awarded Job Order. Upon Final Completion of the Construction
Work, or upon the City's request, all of the documents described in this Paragraph shall
be finalized and delivered to the City and shall become the property of the City.
8. Contractor shall review, study, and approve, or take other necessary action upon all Shop
Drawings, Product Data, Samples, and other Submittals to ensure that each Job Order
will be constructed in a timely fashion in strict compliance with the requirements of the
Contract and Job Order. No deviation from, substitution for or other modification from
the Documents shall be allowed by Contractor in a shop drawing or submittal without
written approval, in the form of a Change Order from the City, and signed by the parties
hereto. Contractor shall engage in prompt and adequate review of Shop Drawing and
other Submittals to maintain the Construction Schedule; Contractor also warrants it will
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use its best independent professional judgment in its review to determine compliance
with the Contract Documents.
9. The City shall also, in its discretion, have the right to review and approve Submittals. In
the event that the City exercises the foregoing right to review, Contractor shall not
perform any portion of the Construction Work unless and until the City approves in
writing such Submittal. Any such approval shall not be evidence that Construction Work
installed pursuant to the City's approval conforms to the requirements of the Contract
nor shall such approvals relieve Contractor of any of its responsibilities or warranties
under the Contract. If the City elects to review Submittals, Contractor shall maintain a
Submittal log which shall include, at a minimum, the date of each Submittal, the date of
any resubmittal, the date of any approval or rejection, and the reason for any approval
or rejection. Contractor shall have the duty to carefully review, inspect and examine any
and all Submittals before submission of same to the City. Shop Drawings and other
Submittals from Contractor do not constitute a part of this Contract.
10. Contractor shall procure from all Subcontractors and Suppliers and shall transmit to the
City, all warranties required by the Contract. Contractor shall review all such warranties
and shall certify to the City that the warranties are in strict compliance with the
requirements of the Contract.
11. Contractor shall prepare or procure and shall transmit to the City all documentation
required by this Contract regarding the operation and recommended maintenance
programs relating to the various elements of the Construction Work.
12. If required in the Job Order, Contractor shall prepare and provide to the City a complete
set of all as-built drawings which shall be complete and, except as specifically noted, shall
reflect performance of the Construction Work in strict compliance with the requirements
of this Contract.
13. Contractor shall assume all labor responsibility for all personnel assigned to or
contracted for the performance of the Construction Work and agrees to strictly comply
with all its obligations as employer with respect to said personnel under all applicable
labor laws.
14. Contractor shall be responsible for procuring all tests and inspections required by sound
professional practices and by governmental authorities having jurisdiction over the
Project. Contractor shall submit certified results of such tests to the City. If the laws,
ordinances, rules, regulations or orders of any public authority having jurisdiction require
any Construction Work to be specifically inspected, tested, or approved, Contractor shall
assume full responsibility therefore, pay all costs in connection therewith and furnish to
the City the required certificates of inspection, testing or approval.
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15. Contractor shall, during the course of the Construction Work, comply with any
regulations or guidelines prescribed by the City. Contractor warrants that it will comply
with all public laws, ordinances, rules and regulations applicable to the services to be
performed under the Contract, including without limitation, those relating to the terms
and conditions of the employment of any person by Contractor in connection with the
Construction Work to be performed under the Contract.
16. Contractor shall perform the Construction Work in accordance with all construction
codes, laws, ordinances or regulations applicable to the design and execution of the
Construction Work. Any fine or penalty which may be imposed as consequence of any
violation of this provision shall be paid by Contractor, and Contractor, to the fullest
extent permitted by the law, shall fully defend, indemnify and hold the City harmless for,
from and against all loss, damage, and expense, including attorney's fees, resulting from
any such violation or alleged violation of codes, laws, ordinances, or regulations,
regardless of a concurrent contribution by the City, through negligence or other wrongful
act, to such loss, damage, or expense, except that such indemnity shall not apply if the
violation is solely and directly caused by a negligent or willful act or omission of the City,
its officers, agents, or employees.
17. All construction and building permits, licenses and authorizations necessary for the
construction of the Project shall be secured and paid for by Contractor. Contractor shall
notify the City when it has received said permits, licenses, and authorizations, and upon
receipt shall supply the City with copies of same. The originals of permits, licenses and
authorizations shall be delivered to the City upon completion of the Construction Work,
and receipt of these documents by the City shall be a condition precedent to final
payment. Contractor shall also give and maintain any and all notices required by
applicable laws pertaining to the construction of the Construction Work.
18. While on the City's property, all Contractor's employees and Subcontractors shall confine
themselves to areas designated by the City and will be subject to the City's badge and
pass requirements, if any, in effect at the Site of the Construction Work.
19. Contractor shall take all reasonable steps and legally required measures at the site to
comply with applicable safety regulations and standards and to adequately protect the
Construction Work, stored materials, and temporary structures located on the premises,
and to prevent unauthorized persons from entering upon the site. Contractor shall at all
times safeguard the City's property and employees from injury or loss in connection with
the performance of the Contract. Contractor shall at all times safeguard and protect its
own partially or completely finished Construction Work and that of the adjacent
property and all adjacent construction Work from damage. Contractor shall protect the
City's equipment, apparatus, machinery, and other property and all adjacent
construction Work with boarding and other safeguards so as to keep the premises free
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from dampness, dirt, dust, or other damage and shall remove all such temporary
protection upon completion of the Construction Work.
20. Unless otherwise instructed by the City, Contractor shall repair and return to original
condition all buildings, streets, curbs, sidewalks, utilities or other facilities affected by
Contractor's performance of the Construction Work.
21. Contractor shall keep the site reasonably clean during performance of the Construction
Work. Upon Final Completion of the Construction Work, Contractor shall thoroughly
clean the site and the Project and remove all waste, debris, trash and excess materials
or equipment, together with Contractor's property therefrom.
22. At all times relevant to the Contract, Contractor shall provide access to the Construction
Work to the City and its designees without formality or other procedure.
23. The City's decisions in matters relating to aesthetic standards and effect shall be final.
24. In performing both Design Services and Construction Work under this Contract, the
relationship between the City and Contractor is that of independent contractor, and the
execution of this Contract does not change the independent status of Contractor.
Contractor shall exercise independent judgment in performing its duties under this
Contract and is solely responsible for setting working hours, scheduling or prioritizing the
Contract work flow and determining how all Contract work is to be performed. No term
or provision of this Contract or act of Contractor in the performance of this Contract shall
be construed as making Contractor the agent, servant or employee of the City, or making
Contractor or any of its employees eligible for the fringe benefits, such as retirement,
insurance and worker's compensation, which the City provides its employees.
ARTICLE 8
CONTRACT PRICE
1. The City shall pay, and Contractor shall accept, as full and complete payment for all Work
associated with each Job Order the amount approved and awarded to the Contractor as
a Job Order. Each Job Order will be a separate contract under this Contract. The general
terms and conditions will be established by this Contract and special contract provisions
will be established within each Job Order.
2. Job Order Construction Price, unless changed by Change Order, represents the absolute
limit of obligation or liability that the City may ever have insofar as the cost for full and
final completion of the Work, and the total of all payments to Contractor or its
Subcontractors are concerned. Should additional amounts be required to be expended,
over and above a Job Order Construction Price, to achieve completion of the Construction
Work, including Project construction, and payment to Contractor, in accordance with this
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Contract and any Special Provisions included in each awarded Job Order, liability for and
payment of such additional amounts shall be the sole responsibility of Contractor and its
Contract Surety herein, and the City shall never be liable for same.
3. In addition to the Construction Work Contractor will perform, it will also provide all the
usual and necessary traditional construction management services incident to
construction projects of the nature and scope of this Project, for which the Contract Price
described in this Contract is paid. Such construction management services are not
intended in any manner to diminish the overall responsibility of Contractor for the full
and final completion of the Construction Work within the time and cost constraints
specified in this Contract.
4. The City agrees to pay Contractor for the Cost of the Construction Work as defined in each
Job Order, subject to submission by Contractor of all backup substantiation as may be
reasonably required by the City. In no event shall the sum of payments for the Cost of the
Construction Work and any other Contractor compensation exceed the Construction
Price, as adjusted by Change Order. The term "Cost of the Construction Work" shall be
defined in each Job Order and be established as a Firm-Fixed Price Contract.
ARTICLE 9
PAYMENT OF THE CONTRACT PRICE
1. Payments of the Contract Price will be made monthly as Work progresses. Payment
Applications, covering labor, material, equipment, supplies, and other items completed,
delivered or suitably stored on site during a period ending on the last calendar day of each
month, shall be submitted to the City by the Contractor on the current edition of AIA
Documents G702 and G703, within five (5) days after end of the period. Payment
Applications shall be notarized shall be supported by such data substantiating the
Contractor's right to payment as the City may require, and reflect retainage, if any, as is
provided. All payments shall be subject to any offset or retainage provisions of the
Contract.
2. Each payment made to the Contractor shall be on account of the total amount payable to
the Contractor, and title to all Work covered by a paid partial payment shall thereupon
pass to the City. Nothing in this section shall be construed as relieving the Contractor from
the sole responsibility for care and protection of materials and Work upon which
payments have been made, for restoration of any damaged Work, or as a waiver of the
right of the City to require fulfillment of all terms of Contract Documents.
3. The City, within seven (7) days after receipt of the Payment Application, will either issue
a Certificate for Payment for such amount as is properly due or issue written notice of the
reasons for withholding such a certificate.
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4. The issuance of a Certificate for Payment will constitute a representation by the City,
observations at the site and the data comprising the Payment Application, that the Work
is in accordance with the Contract Documents (subject to an evaluation of the Work for
conformance with the Contract Documents upon Substantial Completion, to the results
of any subsequent tests required by or performed under the Contract Documents, to
minor deviations from the Contract Documents correctable prior to completion, and to
any specific qualifications stated in his certificate); and that the Contractor is entitled to
payment in the amount certified.
5. Payment may be withheld in whole or in part to protect the City on account of:
a. Unsatisfactory job progress as determined by the City.
b. Defective Work or materials not remedied.
c. Disputed Work or materials.
d. Claims or other encumbrances filed or reasonable evidence indicating
probable filing of claims or other encumbrances by Subcontractors or
Suppliers, or others.
e. Failure of the Contractor to make payment to Subcontractors or Suppliers
within seven (7) days after receipt of each progress payment.
f. A reasonable doubt as determined by the City that the Work can be completed
for the unpaid balance of the Contract Price or within the Contract Time.
g. The Contractor's failure to perform any of its contractual obligations under the
Contractor Documents, or any other Contract with the City.
h. Deficiencies or claims asserted by the City against Contractor arising from any
other project. Within fourteen (14) days following the receipt of the Certificate
for Payment, the City shall pay to the Contractor 90% of the value of the Work
in place and materials suitably stored at the Site. The remaining 10% shall be
retained by the City until the Contract is 50% completed at which time the
retainage shall be reduced to 5%; provided that: (a) the Contractor is making
satisfactory progress on the Contract; and (b) in the City's sole judgment, there
is no specific cause or claim requiring a greater amount than 5% to be retained.
Thereafter, the City shall pay the Contractor 95% of the value of the Work,
unless and until it determines satisfactory progress is not being made, at which
time the 10% retainage may be reinstated. Such 10% reinstatement would be
10% of the total contract value of Work in place and materials stored. The
City's sole judgment concerning the satisfactory progress of the Work shall be
final.
6. Within sixty (60) days after the issuance of the Certificate of Final Completion by the City
and receipt of all other documents required by the Contract, all retained amounts shall
be paid to Contractor as part of Final Payment:
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a. The Final Payment shall not become due until the Contractor delivers to the
City full and final unconditional releases from subcontractors and major
suppliers acknowledging payment in full. Any claim filed thereafter shall be
the responsibility of the Contractor.
b. If any claim remains unsatisfied after all payments are made, the Contractor
shall immediately upon demand refund to the City all monies that the latter
may be compelled to pay in discharging such claim including all costs, interest
and attorneys' fees.
ARTICLE 10
SUBSTANTIAL AND FINAL COMPLETION
1.
"Substantial Completion" means that stage in the progression of the Construction
Work, as approved by the City in writing, when the Project is sufficiently complete in
accordance with the Contract that the City can enjoy beneficial use or occupancy of
the entire Project and can utilize it for all of its intended purposes. A condition
precedent to Substantial Completion is the receipt by the City of all necessary
authorizations for the use of the Project required by any governmental or regulatory
authority. The City reserves the right to use any part, phase or system of the Project
when such part, phase or system is substantially completed, but such partial use of
the Project shall not result in the Project being deemed substantially complete, and
such partial use shall not be evidence of Substantial Completion.
2.
When Contractor believes that the Construction Work is substantially complete,
Contractor shall notify the City in writing and shall submit to the City a list of items
remaining to be completed or corrected. The City, the City's designee, (or an
independent consultant hired by the City) will perform an inspection. If the
Construction Work is substantially complete, in the sole opinion of the City, the City
will prepare a Certificate of Substantial Completion which shall establish the date of
Substantial Completion. The Certificate of Substantial Completion shall state the
responsibilities of the City and Contractor for Project security, maintenance, damage
to the Construction Work, and insurance, and shall fix the date, not more than 30 days
after the established date of Substantial Completion, within which Contractor shall
complete any items of incomplete or defective Construction Work. The Certificate of
Substantial Completion shall be submitted to Contractor for its written acceptance of
the responsibilities assigned to it in such certificate.
3.
Within thirty (30) days following (a) Substantial Completion of the Construction Work,
and
execution of the Certificate of Substantial Completion the City will
remit payment of all sums due Contractor, including such amount of retainage based
upon the value of remaining performance, less the reasonable costs for completing
all incomplete Construction Work and/or any Design Services, correcting and bringing
into strict conformance all defective and nonconforming Construction Work, and
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handling all outstanding or threatened claims. Such payment less reasonable costs
shall be determined by the City in its sole and absolute discretion.
4.
"Final Completion" means the completion of all Work required by, and in strict
compliance with, this Contract, the Job Order, including Contractor's provision to the
City of all documents and deliverables required to be provided by the Contract.
5.
When Contractor believes that all of the Construction Work is finally complete, and
Contractor is ready for a final inspection, Contractor shall so notify the City in writing.
The City (or an independent consultant hired by the City) will then make final
inspection of the Construction Work and, if the Construction Work is complete in strict
accordance with the Contract, and the Contract has been fully performed, then the
City will issue a Certificate for Final Payment, providing for payment of the remainder
of the Contract Price, less any amount withheld pursuant to the Contract.
6.
The City shall make final payment of all remaining sums due to Contractor within thirty
(30) days after Final Completion as reflected by the City's Certificate for Final Payment,
provided that all documents and deliverables required to be delivered to the City
under this Contract have been delivered as required, and provided that all other
conditions precedent to payment have been satisfied.
7.
Prior to being entitled to receive final payment, and as a condition precedent thereto,
Contractor shall furnish the City, in the form and manner required by the City, the
following:
(a) a signed and notarized statement of final payment and release, in
particular certifying that all Subcontractors and Suppliers have been
paid all sums lawfully due to them, and releasing the City from all claims
that Contractor had or might have asserted during the performance of
this Contract;
(b) if required by the City, separate releases of lien or lien waivers from
each Subcontractor, lower tier subcontractor, laborer, Supplier or other
person or entity who has, or might assert a claim against the City or the
City's property;
(c) consent of surety to final payment;
(d) a complete set of the as-built drawings to include AutoCAD disks and
the record set of Contract Documents; and
(e) All product warranties, operating manuals, instruction manuals and
other record documents, drawings and things customarily required of a
Contractor, or expressly required herein, as a part of or prior to Project
closeout.
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8.
Acceptance by Contractor of final payment shall constitute a waiver and release of all
claims against the City by Contractor except for those claims previously made in
writing against the City by Contractor, pending at the time of final payment and
specifically identified on Contractor's pay request for final payment as unsettled at
the time it submits its pay request.
ARTICLE 11
CITY'S DUTIES, OBLIGATIONS, AND RESPONSIBILITIES
In addition to payment, the City shall undertake to perform the following:
1.
The City shall provide Contractor with information regarding the City's requirements
for the Project including any desired or required design or construction schedule.
2.
The City shall review any documents submitted by Contractor requiring the City's
decision, and shall render any required decisions pertaining thereto.
3.
In the event the City has actual knowledge of (a) any material fault or defect in the
Construction Work, (b) nonconformance with the Contract, or (c) errors, omissions or
inconsistencies in the Design Documents, the City shall give prompt written notice
thereof to Contractor.
4.
The City shall provide Contractor access to the Site and to the Construction Work, and
shall provide Contractor with such information, existing and reasonably available,
necessary to Contractor's performance of the Contract as Contractor may request.
5.
The City shall cooperate with Contractor in securing any necessary licenses, permits,
approvals or other necessary authorizations for the design, construction and
certification of the Project.
6.
The City shall perform the duties set forth in this Article 11 in a reasonably timely
manner so as to permit the orderly and timely progress of Contractor's Design Services
and of the Construction Work.
7.
The City's review, inspection, or approval of any Construction Work, Design
Documents, Submittals, or pay requests by Contractor shall be solely for the purpose
of determining whether such Construction Work and such documents are generally
consistent with the City's construction program and requirements. No review,
inspection, or approval by the City of the Construction Work or documents shall
relieve Contractor of its responsibility for the performance of its obligations under the
Contract or the accuracy, adequacy, fitness, suitability, or coordination of its Design
Services or the Construction Work. Approval by any governmental or other regulatory
agency or other governing body of any Construction Work, Design Documents, or
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Contract Documents shall not relieve Contractor of responsibility for the strict
performance of its obligations under the Contract. Payment by the City pursuant to
the Contract shall not constitute a waiver of any of the City's rights under the Contract
or at law, and Contractor expressly accepts the risk that defects in its performance, if
any, may not be discovered until after payment, including final payment, is made by
the City.
8.
The City's agreement not to exercise, or its delay or failure to exercise, any right under
the Contract or to require strict compliance with any obligation of Contractor under
the Contract shall not be a waiver of the right to exercise such right or to insist on such
compliance at any other time or on any other occasion.
9.
The City shall furnish to Contractor, prior to the execution of each Job Order, any and
all written and tangible material knowingly in its possession concerning conditions
below ground at the site of the Project. Such written and tangible material is furnished
to Contractor only in order to make complete disclosure of such material and for no
other purpose. By furnishing such material, the City does not represent, warrant, or
guarantee its accuracy or completeness either in whole or in part, and shall have no
liability therefore. If Contractor requests in writing, the City shall also furnish surveys,
legal limitations, and utility locations (if known), and a legal description of the Project
site.
10.
The City shall obtain all easements required for construction, and shall pay for
necessary assessments and charges required for use and occupancy of the
Construction Work. Contractor shall render such assistance as the City may request in
obtaining such easements, certificates of occupancy, and the like.
11.
In the event Contractor fails or refuses to perform the Construction Work in strict
accordance with the Contract, or is otherwise in breach of this Contract in any way,
the City may, at its option, instruct Contractor to cease and desist from performing
further Construction Work, or any part thereof. Upon receipt of such instruction from
the City in writing, Contractor shall immediately cease and desist as instructed by the
City and shall not proceed further until the cause for the City's instructions has been
corrected, no longer exists, or the City instructs that the Construction Work may
resume.
12.
In the event the City issues such instructions to stop Construction Work, and in the
further event that Contractor fails and refuses within seven (7) days of receipt of same
to provide adequate assurance to the City that the cause of such instructions will be
eliminated or corrected, then the City shall have the right to carry out the
Construction Work with its own forces, or with the forces of other contractors, and
Contractor shall be fully responsible for the costs incurred in correcting any defective
or deficient Construction Work. The rights set forth in Article 11, Paragraph 11 and
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this Article 11, Paragraph 12 are in addition to, and without prejudice to, any other
rights or remedies the City may have against Contractor, including the rights to
terminate or withhold payment as provided herein.
ARTICLE 12
JOB ORDER (PROJECT) DOCUMENTATION
1.
Contractor shall maintain and protect all records relating in any manner whatsoever
to the Project (the "Project Records") for no less than four (4) years after Final
Completion of the Project, and for any longer period of time as may be required by
law or good management practice.
2.
All Project Records which are in the possession of Contractor or Contractors
Subcontractors shall be made available to the City for inspection and copying upon
the City's request at any time. Additionally, such records shall be made available upon
request by the City to any state, federal or other regulatory authorities and any such
authority may review, inspect and copy such records. The Project Records include,
without limitation, all drawings, plans, specifications, Submittals, correspondence,
logs, minutes, memoranda, photographs, audio or video recordings, or other writings
or things which document the Project, its design, or its construction. Said records
include those documents reflecting the cost of design and construction to Contractor.
ARTICLE 13
PERSONNEL, SUBCONTRACTORS AND SUPPLIERS
1.
A "Subcontractor" means an entity which has a direct contract with Contractor to
perform a portion of the Construction Work or the Design Services. For purposes of
the Contract, Subcontractors shall also include those furnishing any equipment and
materials for the Project.
2.
A "Supplier" means an entity providing only equipment or materials for the
performance of the Construction Work.
3.
Upon execution of this Contract, and at such later times as may be applicable,
Contractor shall furnish the City, in writing, the names of persons or entities proposed
by Contractor to act as Subcontractors on the Project. Contractor shall provide such
information regarding such proposed Subcontractors as the City deems necessary.
The City shall promptly reply to Contractor, in writing, stating any objections the City
may have to such proposed Subcontractors
. With
respect to this Contract and the subject matter hereto, Contractor shall not engage
the services of or otherwise enter into a contract with a disapproved Subcontractor.
Notwithstanding the foregoing, any consent or failure to reject a subcontractor by the
City shall in no way relieve Contractor of any of its duties or warranties under this
Contract.
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4.
All subcontracts and purchase orders with Subcontractors shall afford Contractor
rights against the Subcontractor which correspond to those rights afforded to the City
against Contractor under this Contract, including those rights of Contract suspension,
termination, and stop Construction Work orders as set forth in this Contract. It is
expressly agreed that no relationship of agency, employment, contract, obligation or
otherwise shall be created between the City and any Subcontractor of Contractor, and
a provision to this effect shall be incorporated into all agreements between
Contractor and its Subcontractors.
5.
Should Contractor subcontract all or any part of the Construction Work, such
subcontracting of the Construction Work shall not relieve Contractor from any liability
or obligation under the Contract or under any applicable policy, law or regulation, and
Contractor shall be responsible for all and any acts, defaults, omissions or negligence
of
subcontractors, suppliers, and contractors.
6.
In accordance with Article 7, Paragraph 4 above, Contractor shall employ and assign
only qualified and competent personnel to perform any service or task concerning the
Project. Contractor shall designate one such person as the Project Contractor. Absent
written instruction from Contractor to the contrary, the Project Contractor shall be
deemed to be Contractor's authorized representative and shall be authorized to
receive and accept any and all communications from the City. Key design and
supervisory personnel assigned by Contractor to each Job Order will be provided at
the time the contractor submits the RFP pricing package. The contractor shall conform
to all requirements established in each Job Order RFP issued by the City.
7.
If, at any time during the course of the Project, the City reasonably determines that
the performance of any Subcontractor or any member of Contractor's staff
construction working on the Project is unsatisfactory, the City's Representative may
require Contractor to remove such Subcontractor or staff member from the Project
immediately and replace the staff member at no cost or penalty to the City for delays
or inefficiencies the change may cause.
ARTICLE 14
CHANGES AND EXTENSIONS OF TIME
1.
Changes in the Design Services (if required) or the Construction Work under this
Contract, consisting of additions, deletions, revisions or any combination thereof, may
be ordered unilaterally by the City without invalidating the Contract. Such changes
shall be communicated by Change Order as applicable. Contractor shall proceed
diligently with any changes, and same shall be accomplished in strict accordance with
the terms and conditions as set forth in this Contract/Job Order.
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2.
All change orders, changes requested by Contractor, or extensions of Contract Time
occurring during construction of the Project related to actual Construction Work shall
be governed by the applicable provisions of this Contract/Job Order. All requests for
additional compensation due to a change in the scope, and all requests for an
extension of time to the Schedule, shall include sufficient backup documentation to
reasonably understand the request and the amount of time or compensation
requested and determines the merits of the request.
3.
Upon the occurrence of a change order for Construction Work which increases the
Cost of the Construction Work, the Construction Price will thereafter include such Cost
of the Construction Work and Services attributable to such change to the extent
allowed.
4.
In the event the parties are unable to agree on the terms of a Change Order or
Supplemental Agreement, then Contractor shall continue to diligently perform the
Work, including any change directed by the City by Change Order or Supplemental
Agreement, and shall keep thorough records of the cost of performance of such
Change Order or Supplemental Agreement.
5.
Contractor recognizes and accepts a fiduciary relationship of trust and confidence
hereby established between Contractor and the City and agrees that it shall at all
times in good faith use its best efforts to advance the City's interests and agrees to
perform the Work in the highest professional manner.
ARTICLE 15
CLAIMS BY CONTRACTOR
1.
Claims by Contractor against the City are subject to the terms and conditions of this
Article 15, and strict compliance herewith shall be a condition precedent to any
liability of the City therefore.
2.
All claims for additional compensation or additional time, regardless of their nature,
when they occur, or whether they occur during the design or construction phase, shall
be governed by the City of Buckeye Procurement Code.
3.
Contractor shall provide, and continue to provide, to the City all such documentation,
including cost and time records, as and when the City may request so that the City
may evaluate Contractor's claim.
4.
Contractor shall continue its performance under this Contract regardless of the
existence of any claims submitted by Contractor against the City.
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5.
In the event Contractor seeks to make a claim for an increase in the Construction
Price, as a condition precedent to any liability of the City for any claim, Contractor
shall strictly comply with the requirements of Paragraph 2 above and such notice shall
be given by Contractor before proceeding to execute any alleged additional or
changed Construction Work. Failure of the condition precedent to occur shall
constitute a waiver by Contractor of any claim.
6.
In connection with any claim by Contractor against the City for compensation in excess
of the Construction Price, any liability of the City shall be strictly limited to the Cost of
the Construction Work and Design Services if required as defined and allowed in this
Contract and subsequent Job Orders and shall in no event include, indirect,
consequential, impact or other costs, expenses or damages of Contractor or its
Subcontractors. The City shall not be liable to Contractor for claims of third parties,
including Subcontractors, for acts, omissions, events, or conditions for which the City
would not be liable to Contractor under the terms of the Contract. As a condition
precedent to the City's liability to Contractor for any loss or damage resulting from
claims of third parties, including Subcontractors, such third parties must have
complied with all conditions contained in their agreements with Contractor and such
claims must have been submitted to the City by Contractor in strict compliance with
all the requirements of this Article. The City shall not be liable to Contractor for claims
of third parties including Subcontractors, unless and until the liability of Contractor
has been established in a court of competent jurisdiction.
7.
The resolution of any claim under this Article shall be reflected by a Change Order or
Supplemental Agreement executed by the City and Contractor.
ARTICLE 16
UNCOVERING AND CORRECTING CONSTRUCTION WORK
1.
If any of the Construction Work is covered, concealed or obscured contrary to the
written request of the City, or contrary to any provision of the Contract, said
Construction Work shall, if required by the City, be uncovered for inspection and shall
be properly replaced at Contractor's expense without change in the Contract Time.
2.
If any of the Construction Work is covered, concealed or obscured in a manner not
inconsistent with Paragraph 1 above, it shall, if required by the City, be uncovered for
inspection. If such Construction Work conforms strictly to the Contract, the cost of
uncovering and proper replacement shall be charged to the City. If such Construction
Work does not strictly conform to the Contract, Contractor shall pay the cost of
uncovering and proper replacement.
3.
Contractor shall immediately proceed to correct Construction Work rejected by the
City as defective or failing to conform to the Contract. Contractor shall pay all costs
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and expenses associated with correcting such rejected Construction Work, including
any additional testing and inspections made necessary thereby.
4.
In addition to its warranty obligations set forth elsewhere herein, Contractor shall be
specifically obligated to correct at its cost and expense any and all defective or
nonconforming Construction Work for a period of twelve (12) months following Final
Completion upon written direction from the City. This obligation shall survive final
payment by the City and termination of the Contract.
5.
Nothing contained in Paragraph 4 shall establish any period of limitation with respect
to other obligations which Contractor has under the Contract. Establishment of the
one-year time period in Paragraph 4 above relates only to the duty to Contractor to
specifically correct the Construction Work.
6.
The City may, but shall in no event be required to, choose to accept defective or
nonconforming Construction Work. In such event, the Contract Price shall be reduced
by the reasonable costs of removing and correcting the defective or nonconforming
Construction Work. The City shall be entitled to a reduction in the Construction Price
regardless of whether the City has, in fact, removed and corrected such defective
Construction Work. If the unpaid balance of the Construction Price, if any, is
insufficient to compensate the City for the acceptance of defective or nonconforming
Construction Work, Contractor shall, upon written demand from the City, pay the City
such additional compensation for accepting defective or nonconforming Construction
Work.
ARTICLE 17
SUSPENSION AND TERMINATION
1.
The City may for any reason whatsoever suspend performance under the Contract.
The City shall give written notice of such suspension to Contractor specifying when
such suspension is to become effective.
2.
From and upon the effective date of any Suspension ordered by the City, Contractor
shall incur no further expense or obligations in connection with this Contract and
Contractor shall cease its performance. Contractor shall also, at the City's direction,
either suspend or assign to the City any of its open or outstanding subcontracts or
purchase orders.
3.
In the event the City directs a suspension of performance under this Article 17,
through no fault of Contractor, and provided Contractor submits a proper claim as
provided in this Contract, the City shall pay Contractor as full compensation for such
suspension Contractor's reasonable costs, actually incurred and paid, of:
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(a)
Demobilization and remobilization, including such costs paid to
Subcontractors
(b)
Preserving and protecting Construction Work in place;
(c)
Storage of materials or equipment purchased for the Project, including
Insurance.
(d)
Performing in a later, or during a longer, time frame than that
contemplated by this contract.
4.
If the City lifts the suspension it shall do so in writing and Contractor shall promptly
resume performance of the Contract unless, prior to receiving the notice to resume,
Contractor has exercised its right of termination as provided herein.
5.
The City reserves the right, for any reason whatsoever (including, but not limited to,
terminate performance under the Contract by Contractor for convenience. The City
shall give thirty (30) calendar days advance written notice of termination for
convenience to Contractor. Contractor shall incur no further obligations in connection
with the Contract and Contractor shall stop Work when such termination becomes
effective. Contractor shall also, at the City's direction, either terminate or assign to
the City outstanding orders and subcontracts. Contractor shall settle the liabilities and
claims arising out of any terminated subcontracts and orders. The City may direct
Contractor to assign Contractor's right, title and interest under terminated orders or
subcontracts to the City or its designee. Contractor shall transfer title and deliver to
the City such completed or partially completed Design Documents (if any),
Construction Work and materials, equipment, parts, fixtures, information and
Contract rights as Contractor has.
6.
When terminated for convenience, Contractor shall be compensated as follows:
(a) Contractor shall submit a termination claim to the City specifying the amounts
believed to be due because of the termination for convenience together with costs,
pricing or other data required by the City. If Contractor fails to file a termination claim
within three (3) months from the effective date of termination, the City shall pay
Contractor an amount derived in accordance with Subparagraph (c) below;
(b) The City and Contractor may agree to the compensation, if any, due to Contractor
under this paragraph;
(c) Absent agreement to the amount due to Contractor, the City shall pay Contractor, as
full compensation for termination for convenience, the following amounts:
(i)
the Cost of the Construction Work and Services, as defined and allowed by
to the extent incurred or paid prior to receipt by Contractor of the notice
of termination;
(ii)
such portion of Work which is completed and unpaid as of the date of
receipt by Contractor of the notice of termination; and
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(iii)
Reasonable costs of settling and paying claims arising out of the
termination of subcontracts or orders hereinabove. These costs shall not
include amounts paid in accordance with other provisions of this Contract.
In no event shall Contractor be entitled to recover lost profits or other
incidental or consequential damages from the City on account of a
termination for convenience, or an erroneous termination for cause as
described below.
7.
If Contractor does not perform the Construction Work, or any part thereof, in a timely
manner, supply adequate labor, supervisory personnel or proper equipment or
materials, or if it fails to timely discharge its obligations for labor, equipment and
materials, or proceeds to disobey applicable laws, ordinances, rules, regulations or
orders of any public authority having jurisdiction, or otherwise commits a violation of
a material provision of the Contract, then the City may by written notice to Contractor,
without prejudice to any other right or remedy against Contractor or others,
terminate the performance of Contractor and take possession of the Project site and
of all materials and equipment at the site and may finish the Construction Work by
whatever methods it may deem expedient. In such cases, Contractor shall not be
entitled to receive any further payment until the Construction Work is finished.
8.
In the event the employment of Contractor is terminated by the City for cause and it
is subsequently determinedly a court or other tribunal of competent jurisdiction that
such termination was without cause, such termination shall thereupon be deemed a
Termination for Convenience under this Paragraph and the provisions of this
Paragraph regarding compensation shall apply.
ARTICLE 18
INDEMNITY
1. To the fullest extent permitted by law, Contractor agrees to defend, indemnify and hold the
City, its elected officials, officers, agents and employees, harmless for, from and against any and
all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property
damage or other harm for which recovery of damages is sought, suffered by any person or
persons, that may arise out of or be occasioned by Contractor's breach of any of the terms or
provisions of this Contract, or by any negligent, grossly negligent or strictly liable act or omission
of Contractor, its officers, agents, or employees, in the performance of this Contract; except that
the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole
negligence or fault of the City, its elected officials, officers, agents, employees or separate
contractors. The provisions of this paragraph are solely for the benefit of the parties hereto and
are not intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
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ARTICLE 19
INSURANCE AND BONDS
See Exhibit A.
ARTICLE 20
CANCELLATION UNDER A.R.S. § 38-511
1. This Contract may be cancelled pursuant to the terms of Arizona Revised Statutes Section 38-
511 as amended.
ARTICLE 21
GIFT TO PUBLIC SERVANT
1. The City may terminate this Contract immediately if Contractor has offered, conferred,
or agreed to confer any benefit upon a City of Buckeye employee or official that the City
of Buckeye employee or official is prohibited by law from accepting.
2. For purposes of this section, "benefit" means anything reasonably regarded as pecuniary
gain or pecuniary advantage, including benefit to any other person in whose welfare the
beneficiary has a direct or substantial interest, but does not include a contribution or
expenditure made and reported in accordance with law.
3. Notwithstanding any other legal remedies, the City may require Contractor to remove
any employee of Contractor from the Project who has violated the restrictions of this
section or any similar state or federal law, and obtain reimbursement for any
expenditures made to Contractor as a result of the improper offer, agreement to confer,
or conferring of a benefit to a City employee or official.
ARTICLE 22
NONDISCRIMINATION
1. As a condition of this Contract, Contractor covenants that Contractor will take all
necessary actions to insure that, in connection with any work under this Contract,
Contractor, his associates and subcontractors, will not discriminate in the treatment or
employment of any individual or groups of individuals on the grounds of race, color,
religion, national origin, age, sex, or handicap unrelated to job performance, either
directly, indirectly or through contractual or other arrangements. Contractor shall also
comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A.
§§12101-12213, as amended. In this regard, Contractor shall keep, retain and safeguard
all records relating to this Contract or work performed hereunder for a minimum period
of three (3) years from final Contract completion, with full access allowed to authorized
representatives of the City, upon request, for purposes of evaluating compliance with this
and other provisions of the Contract.
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2. Subject to existing law, and regulations, illegal or undocumented persons will not be
employed by the Contractor for any work or services to be performed pursuant to this
contract. The Contractor will ensure that this provision is expressly incorporated into any
and all subcontracts or subordinate agreements issued in support of this contract.
Contractor shall notify the City upon the selection and agreement with any sub-
contractor, and shall notify the City prior to any subcontractor being on site doing work.
Contractor agrees to comply with the provisions of section 274A(a)(1)(A) and 274A(a)(2)
of the Immigration and Nationality Act
(8 U.S.C.1324a(a)(1)(A), 1324a(a)(2)) (the
"INA employment provisions"), and any amendments thereto, prohibiting the unlawful
employment of illegal or undocumented persons. Under the terms of this agreement, the
Contractor shall not knowingly hire or employ for any work performed pursuant to this
contract any workers or employees not lawfully authorized to work in the United States
under the provisions of the INA or any other applicable federal or state laws. Violation of
the provisions of this Article 22 shall be deemed a material breach of this Contract.
ARTICLE 23
MISCELLANEOUS PROVISIONS
1. This Contract shall be governed by the laws and court decisions of the State of Arizona.
This Contract is performed in Maricopa County, Arizona, and exclusive venue for the
enforcement of rights or legal obligations under this Contract shall be in Maricopa County,
Arizona.
2. This Contract shall be binding upon and inure to the benefit of the parties to this Contract
and their respective successors and, except as otherwise provided in this Contract, their
assigns.
3. Contractor shall not assign this Contract, or any part of this Contract, without prior written
consent of the City.
4. All notices, communications, and reports required or permitted under this Contract shall
be personally delivered, mailed, or emailed to the respective parties by depositing same
in the United States mail, postage prepaid, at the addresses shown below, unless and until
either party is otherwise notified in writing by the other party, at the following addresses.
Mailed notices shall be deemed communicated as of five days after mailing.
If intended for the City, to:
City of Buckeye
Attn: Procurement
530 E. Monroe Ave.
Buckeye, Arizona 85326
Email: contracts@buckeyeaz.gov
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If intended for Contractor, to: Roadway Electric LLC
Attn: Paul Boatman, Area Manager
8660 E. Hartford Drive, Suite 305
Scottsdale, Arizona 85255
Email: pboatman@roadwayelectric.com
5. No information relative to the existence or the details of the Design Services or the
Construction Work shall be released by Contractor, either before or after completion of
the Project, for publication, advertising or any commercial purposes without the City's
prior written consent.
6. In the event that any portion or any portions of this Contract are held to be unenforceable
by a court of competent jurisdiction, then the remainder of this Contract shall be enforced
as though such portions had not been included, unless to do so would cause this Contract
to fail of its essential purposes.
7. This Contract, with all Exhibits and incorporated or referenced attachments, and any Job
Order, together with Contractor's and Surety's performance and payment bonds for the
Project, constitute the entire and exclusive agreement between the City and Contractor
with reference to the Project. This Contract supersedes any and all prior documents,
discussions, communications, representations, understandings, negotiations or
agreements by and between the parties.
8. If the City Council does not appropriate funds to continue this Contract or any Job Order
into a subsequent fiscal year, and pay for charges hereunder or under any current Job
Order for a Project that extends into a new fiscal year, the City may terminate this
Contract at the end of the current fiscal period, or at the time that funds are no longer
available to meet the City
City agrees to give
written notice of termination to the Contractor at least thirty (30) days prior to any
termination for a lack of funds and will pay to the Contractor all approved charges
availability of funds
therefore.
9. Cooperative Purchasing- Specific eligible political subdivisions and nonprofit educational
or health
procurement agreements developed by the City, at their discretion and with the
agreement of the awarded Consultant. Consultant may, at its sole discretion, accept
orders from Eligible Procurement Unit(s) for the purchase of the Materials and/or
Services at the prices and under the terms and conditions of this Agreement, in such
quantities and configurations as may be agreed upon between the parties. All
cooperative procurements under this Agreement shall be transacted solely between the
requesting Eligible Procurement Unit and Consultant. Payment for such purchases will be
the sole responsibility of the Eligible Procurement Unit. The exercise of any rights,
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responsibilities or remedies by the Eligible Procurement Unit shall be the exclusive
obligation of such unit. The City assumes no responsibility for payment, performance or
any liability or obligation associated with any cooperative procurement under this
Agreement. The City shall not be responsible for any disputes arising out of transactions
made by others.
ARTICLE 24
E-VERIFY
1. E-Verify Requirements. To the extent applicable under Ariz. Rev. Stat. §41-4401, Contractor
and its subconsultants warrant compliance with all federal immigration laws and
regulations that relate to their employees and compliance with the E-Verify requirements
under Ariz. Rev. Stat. §23-214(A). The Contractor or its subcontractor
with such warranty shall be deemed a material breach of this Agreement and may result in
the termination of this Agreement by the City.
2. The Contractor and its subcontractors warrant to keep the papers and records open for
random inspection during normal business hours by the City. The Contractor and its
subcontractors shall cooperate with the City
City
respective rights to keep such papers and records confidential.
ARTICLE 25
ISRAEL
1. To the extent required by applicable law, pursuant to Arizona Revised Statute § 35-393.01,
Contractor certifies that it is not currently engaged in, and agrees for the duration of the
Contract to not engage in, a boycott of Israel, or any entity that does business in Israel or
any territories controlled by Israel.
ARTICLE 26
FORCED LABOR OF ETHNIC UYGHURS
1.
Pursuant to A.R.S. § 35-394, Contractor certifies that it does not, and will not for the
duration of the Contract, use the forced labor, any goods or services produced by the
forced labor, or any contractors, subcontractors, or suppliers that use the forced labor or
any goods or services produce
Republic of China.
[SIGNATURE PAGE TO FOLLOW]
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THEREFORE, the City of Buckeye by its City Manager and City Clerk have hereunto subscribed
their names this _____________________.
CITY:
CONTRACTOR:
THE CITY OF BUCKEYE, ROADWAY ELECTRIC LLC,
an Arizona municipal corporation
an Arizona limited liability company
______________________________
By:_________________________________
Doug Sandstrom, City Manager
Its:_________________________________
ATTEST:
Lucinda Aja, City Clerk
RECOMMENDED:
Rob Roach, Grant Program and Procurement
Manager
APPROVED AS TO FORM:
Tosca, Henry, City Attorney
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EXHIBIT A
TO
JOB ORDER CONTRACT FOR
TRAFFIC SIGNAL AND ITS CONSTRUCTION SERVICES
BETWEEN
CITY OF BUCKEYE
AND
ROADWAY ELECTRIC LLC
[INSURANCE AND BONDS]
SEE FOLLOWING PAGES
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INSURANCE AND BONDS
1. Concurrently with the execution of the Contract, the Contractor shall furnish the City of
Buckeye a certificate of insurance on a standard insurance industry ACORD form. The ACORD
form shall be issued by an insurance company authorized to transact business in the State of
Arizona.
2. Contractor, subcontractors and subconsultants shall procure and maintain until all of their
obligations have been discharged, including any warranty periods under this Contract are
satisfied, insurance against claims for injury to persons or damage to property, which may arise
from or in connection with the performance of the work hereunder by the Contractor, his agents,
representatives, employees, or subcontractors.
A. The insurance requirements herein are minimum requirements for this Contract and
in no way limit the indemnity covenants contained in this Contract.
B. The City in no way warrants that the minimum limits contained herein are sufficient
to protect the Contractor from liabilities that might arise out of the performance of
the work under this Contract by the Contractor, his agents, representatives,
employees, subcontractors or subconsultants and Contractor is free to purchase such
additional insurance as may be determined necessary.
C. Minimum Scope and Limits of Insurance. Contractor shall provide coverage at least
as broad and with limits of liability not less than those stated below.
(i)
Commercial General Liability-Occurrence Form Policy shall include bodily injury,
property damage, and broad form contractual liability and XCU coverage.
General Aggregate
$2,000,000
Products-Completed Operations Aggregate
$2,000,000
Personal & Advertising Injury
$1,000,000
Each Occurrence
$1,000,000
Buckeye shall be named as an additional insured with respect to liability arising out of the
(a) Automobile Liability- Bodily injury and property damage for any owned, hired, and
non-owned vehicles used in the performance of this Contract
Combined Single Limit (CSL)
$1,000,000
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Buckeye shall be named as an additional insured with respect to liability arising out of the
(b) Workers Compensation and Employers Liability
Workers Compensation
Statutory
Each Accident
$ 1,000,000
Disease-Each Employee
$ 1,000,000
Disease-Policy Limit
$ 1,000,000
The policy shall contain a waiver of subrogation against the City of Buckeye.
(c) Professional Liability
If this Agreement is the subject of any professional services or work, or if the
Contractor engages in any professional services or work in any way related to
performing the work under this Agreement, the Contractor shall maintain
Professional Liability insurance covering negligent errors and omissions arising out of
the Services performed by the Contractor, or anyone employed by the Contractor, or
anyone for whose negligent acts, mistakes, errors, and omissions the Contractor is
legally liable.
Each Claim
$2,000,000
Annual Aggregate
$2,000,000
(i)
The required professional liability coverage must cover work done or to be
done or on the behalf of the Contractor.
(ii)
In the event that professional liability insurance required by this Contract
years past completion and acceptance of the Work or services required by
this Contract.
(iii)
Should the Contract include the services of design as an integral part of the
work, any professional liability shall specifically delete any design-build or
similar exclusions that could compromise coverages because of the design-
build delivery of the Project.
(d) Umbrella/Excess Liability: Umbrella/Excess Liability insurance with a limit of not less
than $5,000,000 per occurrence combined limit Bodily Injury and Property Damage,
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(e) Additional Insurance Requirements. The policies shall include, or be endorsed to
include, the following provisions:
(i)
On insurance policies where the City of Buckeye is named as an additional insured,
the City of Buckeye shall be an additional insured to the full limits of liability
purchased by the Contractor even if those limits of liability are in excess of those
required by this Contract.
(ii)
The Contractor's insurance coverage shall be primary insurance and non-
contributory with respect to all other available sources.
(iii)
Coverage provided by the Contractor shall not be limited to the liability assumed
under the indemnification provisions of this Contract.
(f) Sub
and
include all subcontractors as additional insureds under its policies or subcontractors
shall maintain separate insurance as determined by the Contractor, however,
subcontractor's limits of liability shall not be less than $1,000,000 per occurrence /
$2,000,000 aggregate. All
for subcontractors and sub
shall
be appropriate to cover all of its work performed herein.
(g) Notice of Cancellation. Each insurance policy required by the insurance provisions of
this Contract shall provide the required coverage and shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits except after thirty (30) days
prior written notice has been given, by certified mail, return receipt requested to:
Attn: Procurement
Finance Department
City of Buckeye
530 East Monroe Avenue
Buckeye, Arizona 85326
(h) Acceptability of Insurers. Insurance is to be placed with insurers duly licensed or
approved unlicensed companies in the State of Arizona and with an A. M.
rating
of no less than A -. The City in no way warrants that the above required minimum
insurer rating is sufficient to protect the Contractor from potential insurer insolvency.
(i) Verification of Coverage:
(i) Contractor shall furnish the City Certificates of Insurance (ACORD form or equivalent
approved by the City) and with original endorsements effecting coverage as required
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by this Contract. The certificates and endorsements for each insurance policy are to
be signed by a person authorized by that insurer to bind coverage on its behalf. Any
policy endorsements that restrict or limit coverages shall be clearly noted on the
certificate of insurance.
(ii) All certificates and endorsements are to be received and approved by the City before
work commences. Each insurance policy required by this Contract must be in effect
at or prior to the earlier of commencement of work under this Contract or the signing
of this Contract and remain in effect for the duration of the Project. Failure to
maintain the insurance policies as required by this Contract or to provide evidence
of renewal is a material breach of contract.
(iii) All certificates of insurance required by this Contract shall be sent directly to the
City of Buckeye, Contracts Manager. The contract number and project description
shall be included on the Certificates of Insurance. The City reserves the right to
require complete, certified copies of all insurance policies required by this Contract,
at any time.
(j) Approval. Any modification or variation from the insurance requirements in this
Contract shall be approved by the City, whose decision shall be final. Such action will
not require a formal contract amendment, but may be made by administrative action.
(k) Approval, disapproval or failure to act by the City regarding any insurance supplied by
Contractor or its Subcontractors shall not relieve Contractor of full responsibility or
liability for damages, errors, omissions or accidents as set forth in this Contract.
Neither the bankruptcy or insolvency of Contractor's insurer nor any denial of liability
by Contractor's insurer shall exonerate Contractor from the liability or responsibility
of Contractor set forth in this Contract.
(l) Bonds and Other Performance Security. Contractor shall provide the following
performance bond and labor and material payment bond:
(i)
Prior to execution of any Work under this Contract, the Contractor must
provide a performance bond and a labor and materials bond, each in an
amount equal to the amount of initial Contract Price designated for
construction services set forth in each Job Order.
(ii)
Each such bond shall be executed by a surety company or companies
holding a Certificate of Authority to transact surety business in the State
of Arizona, issued by the Arizona Department of Insurance and Financial
Institutions. A copy of the Certificate of Authority shall accompany the
bonds. The Certificate shall have been issued or updated within two years
prior to the execution of the Contract.
(iii)
The bonds shall be made payable and acceptable to the City of Buckeye.
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(iv)
The bonds shall be written or countersigned by an authorized
representative of the surety who is either a resident of the state of
Arizona or whose principal office is maintained in this state, as by law
required, and the bonds shall have attached thereto a certified copy of
Power of Attorney of the signing official.
(v)
Upon the request of any person or entity appearing to be a potential
beneficiary of bonds covering payment of obligations arising under the
Contract, the Contractor shall promptly furnish a copy of the bonds or
shall permit a copy to be made.
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