Contract No. 32600047- MGC Contractors, Inc..pdf
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CONSTRUCTION MANAGER
AT RISK CONTRACT NO. 32600047
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
THIS CONSTRUCTION MANAGER AT RISK AGREEMENT
made____________________, by and between the City of Buckeye, an Arizona municipal corporation
Buckeye , and MGC Contractors, Inc., an Arizona corporation
Construction Manager
for
design phase review and complete construction services related to the Central Wastewater Reclamation
Facility (CWRF) Expansion, located in Buckeye, Arizona, and other items as deemed necessary by
Buckeye
Buckeye and the Construction Manager are referred to herein individually as a
ARTICLE 1
GENERAL
1.1
Project Summary. The Construction Manager shall perform all pre-construction services
set forth in Article
-
, subject to Section 1.2 below,
management and construction services set forth in Article 4 below
(the Pre-
Construction Services and the Construction Services are collectively referred to as
including providing all material, equipment, tools, and labor necessary to complete the Work (as defined
below) described herein and reasonably inferable from the Contract Documents (as defined below),
including the upgrades and improvements to be encompassed in the Project. The Construction Manager
will also coordinate with and provide comments to GHD Inc. (the Project Designers
Project design is constructible within the established budget.
1.2
Phased Agreement. The Services contemplated by this Agreement shall be carried out in
several distinct phases. The initial Services shall be to provide Pre-Construction Services including (A)
such environmental investigation services as applicable pursuant to Section 2.1 below, (B) review of the
Project Designers
, and (C) the Pre-Construction
Phase General Services, pursuant to Section 2.3 below
-
.
The Construction Manager shall be compensated on an hourly basis, at the agreed-upon hourly rates and
a stipulated not-to-exceed total fee, for the Pre-Construction Services as set forth in Section 7.1 below,
provided that such services may extend through the construction phase for various components of the
Project. At the point in the Pre-Construction Services as determined by Buckeye, Buckeye may, in its
sole discretion, request that the Construction Manager submit a proposal for a guaranteed maximum price
tion of the Project, which may be submitted as a single GMP or as multiple GMPs
at Buckeye
. The Construction Manager shall prepare and submit the GMP Proposals
pursuant to Article 3 below. If Buckeye and the Construction Manager agree upon the respective GMP
Proposals, the Construction Manager shall furnish, with respect to each GMP Proposal (A) such
environmental investigation services as applicable pursuant to Section 2.1 below, and (B) the Construction
Services set forth in Article 4 below. If Buckeye and the Construction Manager cannot, after good faith
efforts, agree on the GMP, Buckeye may, in its sole discretion, terminate this Agreement (subject to the
terms and conditions set forth in Section 12.2 below).
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1.3
Definitions.
A.
which are later identified as necessary or desirable by Buckeye, as more fully described in Section 4.17
below.
B.
determination, guideline, or order of, or any legal entitlement issued by, any governmental body having
jurisdiction, applicable or relating to the design, permitting, construction, equipping, financing,
ownership, possession, or any other transaction or matter contemplated hereby relating to the design and
construction of the Project.
C.
means a contract amendment issued after execution of this
Agreement or future GMP Amendments signed by Buckeye, Construction Manager, and other parties, as
may be required or appropriate, agreeing to an addition, deletion, or revision in the scope of Work, an
adjustment to the Contract Price, an adjustment to the Contract Time, or other modifications to Contract
terms.
D.
means the plans, Specifications, drawings, and special
provisions prepared by the Project Designers after correcting for permit review requirements, and as
approved by Buckeye Manager or authorized designee. The Construction Documents, once approved by
Buckeye as 100% complete, shall be attached hereto as Exhibit A and incorporated herein by reference.
E.
portion of
compensation not
related to Direct Construction Costs, as set forth in Subsection 3.4 below.
F.
1.
Change Orders and written amendments to this Agreement, including the
signed by both
Buckeye and the Construction Manager, attached hereto as Exhibit B and incorporated herein by
reference.
2.
This Agreement.
3.
The Construction Documents.
4.
Exhibit C and incorporated herein by reference, including
but not limited to:
a.
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b.
The Master Schedule relating to the applicable Scope developed in
accordance with Subsection 2.3(C) below and updated as set forth in this Agreement,
attached hereto as Exhibit D and incorporated herein by reference.
5.
Buckeye
, a copy of which is on
and incorporated herein by reference.
6.
The Construction Manager
Statement of Qualifications in response to
Buckeye
,
and
incorporated herein by reference.
In case of any inconsistency, conflict, or ambiguity among the Contract Documents, the documents shall
govern in the order in which they are listed above.
G.
means the total compensation to be paid to the Construction
Manager, as more fully described in Article 7 below.
H.
means the Days, as set forth in Article 6, indicating the period of
time, including authorized adjustments, allotted in the Contract Documents to achieve Substantial
Completion of the Work.
I.
Subsection 2.3(D) below.
J.
means the portion of Direct Construction Costs necessarily
incurred by the Construction Manager in the proper performance of the Work as more specifically set
forth in Section 3.3(B) below.
K.
means the sequence of activities from the start of the Work to
Substantial Completion of the Project for which any delay in the completion of these activities will delay
achieving Substantial Completion.
L.
(s)
(s) unless otherwise specifically noted in the Contract
Documents.
M.
means concealed or latent physical conditions or
subsurface conditions at the Site that (1) materially differ from the conditions indicated in the Contract
Documents or (2) are of an unusual nature, differing materially from the conditions ordinarily encountered
and generally recognized in the area of the Site as inherent in the Work.
N.
s
as set forth in Section 3.3 below.
O.
Underground Storage Tanks.
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P.
penalties, fines, liabilities, encumbrances, liens, costs, and expenses of investigation and defense of any
that are incurred at any time as a result of the
existence of Environmental Conditions upon, about, or beneath the Project Site or migrating or threatening
to migrate to or from the Site, and including, without limitation:
1.
Damages for personal injury, or injury to property or to natural resources
occurring upon or off the Site.
2.
Fees incurred for the services of attorneys, consultants, the Construction
Manager, experts, laboratories, and all other costs incurred in connection with the investigation or
remediation of such Environmental Conditions or violation of Environmental Requirements.
3.
Liability to any third party or governmental agency or political subdivision
to indemnify such party, agency, or political subdivision for costs expended in connection with the
items listed in Subsections 1.3(P)(1) and (2) above.
Q.
Applicable Laws, statutes, regulations,
rules, ordinances, common law codes, licenses, permits, orders, and similar items of all governmental
agencies or other instrumentalities of the United States, the State of Arizona, Maricopa County, and all
applicable judicial, administrative, and regulatory decrees, judgments, and orders relating to health, safety,
any Hazardous Materials, or the environment, including, without limitation, the Solid Waste Disposal Act,
42 U.S.C. §§ 6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. §§ 9601 et seq
mended by the Superfund Amendments and
et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the Clean Air Act, 42 U.S.C.
§§ 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Safe Drinking Water
Act, 42 U.S.C. §§ 300f et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136
et seq.; the Arizona Environmental Quality Act (Title 49, Arizona Revised Statutes); all requirements,
including but not limited to, those pertaining to reporting, licensing, permitting, investigation, and
remediation of emissions, discharges, releases, or threatened releases of Hazardous Materials into the air,
surface water, ground water, or land, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of Hazardous Materials; and any other local, state, or
federal environmental statutes, and all rules, regulations, orders, and decrees now or in the future
promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended
or come into effect in the future.
R.
, including Punch List items,
by the Construction Manager in accordance with the Contract Documents, certified to Buckeye by the
Construction Manager.
S.
means the number of Days by which an activity can be delayed without
lengthening the Critical Path and extending the Substantial Completion date.
T.
a portion of the costs incurred by the
Construction Manager during the construction phase, as set forth in Section 3.3(A) below.
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U.
Buckeye
Buckeye, usually
for costs that result from Buckeye-directed changes.
V.
any substance:
1.
D
Resource Conserva
42 U.S.C. §§ 6691 et seq., as amended from
time to time, and regulations promulgated thereunder.
2.
D
ion 311 of the Clean
Water Act, 33 U.S.C. § 1321, as amended from time to time, and the regulations promulgated
thereunder, or listed pursuant to Section 307 of the Clean Water Act, 33 U.S.C. § 1317, as amended
from time to time, and the regulations promulgated thereunder.
3.
D
Environmental Requirements adopted by the state in which the Site is located, or its agencies or
political subdivisions.
4.
Containing asbestos or asbestos-containing materials.
5.
The presence of which requires notification, investigation, or remediation
under federal, state, or local law, statute, regulation, ordinance, order, action, policy, or common
law.
6.
substance,
, or contaminant under any federal, state, or local law, statute, regulation, rule,
or ordinance, or amendments thereto.
7.
Which is petroleum, petroleum products, including crude oil or any fraction
limitation gasoline, diesel fuel, or other petroleum hydrocarbons; and, ethanol, methyl tertiary
butyl ether, or derivatives or constituents of or vapors from any of the foregoing.
8.
Which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental
authority or instrumentality of the United States or the State of Arizona.
9.
The presence of which on the Project Site causes or threatens to cause a
nuisance upon the Project Site or to the adjacent properties or poses or threatens to pose a hazard
to the health or safety of persons on or about the Project Site.
10.
The presence of which on adjacent properties could constitute a trespass by
the Construction Manager or Buckeye.
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W.
,
X.
2.3(C) below.
Y.
Buckeye and
the Construction Manager, approving a change in the Work that does not require an adjustment in the
Contract Price or the Contract Time.
Z.
(s) means the document(s) created pursuant to
Section 4.12.
AA
Buckeye to the Construction
Manager at the time of Substantial Completion indicating items to be completed or corrected, including
the time for completion or correction by the Construction Manager after Substantial Completion.
AB.
means drawings, diagrams, schedules, and other data specially
prepared for the Work by the Construction Manager or a Subcontractor, manufacturer, supplier, or
distributor to illustrate some portion of the Work.
AC.
means the land or premises on which the Project is located.
AD.
means the part(s) of the Contract Documents for the construction
phase consisting of written technical descriptions of materials, equipment, construction systems,
standards, and workmanship as applied to the Work and certain administrative details applicable thereto.
AE.
Manager or any person or entity directly or indirectly in privity with the Construction Manager to perform
any portion of the Work. The term Subcontractor does not include any separate contractor employed by
Buckeye.
AF.
with the Contract Documents to the extent that Buckeye can use or occupy the entire Project, or the
designated portion of the Project for the use intended without any outstanding, concurrent construction at
the Site, except as may be required to complete or correct Punch List items.
AG.
9001 of RCRA, 42 U.S.C. § 6991, as amended, and also shall include (1) any tank of 1,100 gallons or less
capacity used for storing motor fuel; (2) any tank used for storing heating oil for consumption on the
premises where stored; (3) any tank used for storing waste oil; (4) any septic tank; and (5) any pipes with
oil dispensers connected to items listed in clauses 1.3(AG)(1) and 1.3(AG)(2) above.
AH.
means, collectively, the (1) environmental investigation set forth in
Section 2.1 below, (2) Review of Construction Documents and design remedies set forth in Section 2.2
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below, (3) Pre-construction Phase General Services set forth in Section 2.3 below, (4) Construction
Services provided in accordance with Article 4 below, if applicable, (5) Additional Services that may be
provided pursuant to an approved Minor Adjustment or Change Order in accordance with Article 8 below,
and (6) other services that are necessary to complete the Project in accordance with and reasonably
inferable from the Contract Documents.
1.4
Cooperative Relationship. Buckeye and the Construction Manager agree to proceed with
the Project on the basis of trust, good faith, and fair dealing, and shall take all actions reasonably necessary
to perform this Agreement in an economical and timely manner, but without sacrificing quality. Buckeye
and the Construction Manager agree to consider design modifications and alternative materials or
equipment if necessary to permit the Project to be constructed by the dates of Substantial Completion and
Final Completion, as established by the mutually-agreed-upon Master Schedule attached hereto.
1.5
Buckeye Representations.
A.
Project Designer Selection. Buckeye has contracted separately with the Project
Designers to provide engineering and design for the Project.
B.
Buckeye
. Buckeye has either designated a Buckeye staff
member to act as Buckeye
, or
corporation to act as Buckeye
Buckeye
responsibilities of any nature. None of the activities of Buckeye
with the design, budget, or any other services and responsibilities furnished by the Construction Manager,
the Project Designers, or sub-consultants. All instructions by Buckeye relating to this Agreement will be
issued or made through Buckeye
Construction
Manager to Buckeye shall be issued or made through Buckeye
Buckeye or
Buckeye
Buckeye
withhold approval for the Construction Manager to communicate directly with other Buckeye officials or
the Project Designers. Throughout the term of this Agreement Buckeye
authority to establish procedures, consistent with this Agreement, to be followed by the Construction
Manager and to call periodic conferences to be attended by the Construction Manager and the Construction
Manager
Subcontractors.
C.
Limited Project Management. None of Buckeye
are intended to supplant or conflict with the design, budget, or any other services and responsibilities
customarily furnished by the Construction Manager or its Subcontractors, except as otherwise specifically
modified by this Agreement.
D.
No Third Party Relationships. The Construction Manager assumes responsibility
to Buckeye for the proper performance of the work of Subcontractors and any acts and omissions in
connection with such performance. Nothing in the Contract Documents is intended or deemed to create
any legal or contractual relationship between Buckeye and any level of Subcontractor, including but not
limited to any third-party beneficiary rights. Nothing contained in this Agreement shall create a
contractual relationship with or a cause of action in favor of a third party against Buckeye or the
Construction Manager.
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E.
Requests
for
Information.
Buckeye
shall
examine
requests
for
information/direction submitted by the Construction Manager and shall render decisions thereto promptly.
Buckeye shall furnish required information and approvals and perform its responsibilities and activities in
a timely manner to facilitate orderly progress of the Work (1) in cooperation with the Construction
Manager, (2) consistent with this Agreement, and (3) in accordance with the planning and scheduling
requirements and budgetary restraints of the Project as determined by Buckeye.
F.
Notice to Construction Manager of Defect. If Buckeye observes or otherwise
becomes aware of any fault or defect in the Project or nonconformity with the Contract Documents,
Buckeye shall give written notice thereof to the Construction Manager.
G.
Duty of Construction Manager to Notify Buckeye. The Construction Manager
must promptly notify Buckeye and the Project Designers in writing of any apparent errors, inconsistencies,
omissions, ambiguities, construction impracticalities or code violations discovered as a result of the
ocuments including any differences between actual and
indicated dimensions, locations and descriptions, and must give the Buckeye and the Project Designers
timely notice in writing of same and of any corrections, clarifications, additional drawings or
specifications, or other information required to define the Work in greater detail or to permit the proper
progress of the Work. The Construction Manager must provide similar notice with respect to any variance
between its review of the Site and physical data and Site conditions observed.
If the Construction Manager performs any Work involving an apparent error,
inconsistency, ambiguity, construction impracticality, omission or code violation in the contract
documents of which the Construction Manager is aware, or which could reasonably have been discovered
by the review required by this section, without prompt written notice to the Buckeye and the Project
Designers and request for correction, clarification or additional information, as appropriate, the
Construction Manager does so at its own risk and expense and all claims relating thereafter are specifically
waived.
H.
Approvals. Buckeye shall secure, submit, and pay for City approvals, easements,
assessments, permits, and charges required for the Project.
I.
Communication. Buckeye, its representatives, and consultants shall communicate
with the Subcontractors only through the Construction Manager unless otherwise directed or permitted by
the Construction Manager.
J.
Notices. Buckeye shall send to the Construction Manager, and shall require the
Project Designers to send to the Construction Manager, copies of all notices and communications sent to
or received by Buckeye
respect to the Project.
1.6
Construction Manager Representations.
A.
Standards. The Construction Manager shall provide the professional management
and construction services for the Project in accordance with the terms and conditions of this Agreement.
The Construction Manager covenants with Buckeye to furnish its skill and judgment with due care and in
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accordance with the highest standards of its profession and with Applicable Law in effect on the date of
this Agreement or as subsequently amended.
B.
Subcontractor Selection Program. In conjunction with its response to Buckeye
RFQ, the Construction Manager submitted to Buckeye a written procedure in conformance with ARIZ.
REV. STAT. §§ 34-601 et seq., as amended, for qualifications-based selection of Subcontractors to be
part of the SOQ. The Construction Manager shall conduct a telephone and correspondence campaign to
attempt to create interest among Subcontractors. The Construction Manager shall develop and coordinate
ruction Manager shall use best
efforts to utilize minority business enterprises, women business enterprises, and local contractors or
suppliers. The Construction Manager shall ensure that each Subcontractor has secured the required
business licenses, permits, insurance, and bonds. The Construction Manager shall be solely responsible
for ensuring that (1) the Subcontractor Selection Program is in conformance with Applicable Law and (2)
all Subcontractors are selected in accordance with the Subcontractor Selection Program. The Construction
Manager shall defend, indemnify, and hold harmless Buckeye, its agents, representatives, officers,
directors, officials, and employees for, from, and against all claims, damages, losses, and expenses
(including, but not limited to, attorney fees, court costs, and the cost of appellate proceedings) relating to,
arising out of, or alleged to have resulted from the Construction Manager
its Subcontractors. Additionally, as part of the Construction Manager
osal
under this Agreement, the Construction Manager shall utilize the Subcontractor Selection Program to meet
its requirements under Section 3.7 below.
C.
Key Personnel. The Construction Manager shall provide to Buckeye a list of the
proposed key project personnel of the Construction Manager and its Subcontractors to be assigned to the
Project. This list shall include such information on the professional background of each of the assigned
individuals as may be requested by Buckeye. Such key personnel and consultants shall be satisfactory to
Buckeye and shall not be changed except with the consent of Buckeye. The Construction Manager will
maintain an adequate number of competent and qualified persons, as determined by Buckeye, to ensure
acceptable and timely completion of the Services described in this Agreement. If Buckeye objects, with
reasonable cause, to any of the Construction Manager
Construction Manager will take prompt
corrective action acceptable to Buckeye and, if required, remove such personnel from the Project and
replace with new personnel with qualifications acceptable to Buckeye. Additionally, Buckeye shall have
the right to request that the Construction Manager personnel be removed from the Project if, in Buckeye
sole discretion, such personnel are detrimental to the Project delivery process. Upon receipt of such
request, the Construction Manager shall remove such personnel unless the Construction Manager can
provide Buckeye with sufficient documentation to prove it is commercially impractical to replace the
personnel with similarly qualified personnel. Buckeye
unreasonably withheld.
D.
Site Conditions. The Construction Manager represents that it has taken steps
reasonably necessary to ascertain the nature and location of the Work related to the Project, and that it has
investigated and satisfied itself as to the general and local conditions and constraints that are applicable to
the Work such as (1) conditions bearing on transportation, disposal, handling, and storage of materials,
(2) the availability of labor, water, power, and roads, (3) normal weather conditions, (4) observable
physical conditions at the Site, (5) the surface conditions of the ground, and (6) the character of equipment
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and facilities needed prior to and during the performance of the Work. To the extent the Construction
Manager encounters subsurface or concealed conditions that differ materially from those which could
reasonably have been determined from a Site surface investigation by the Construction Manager on the
date of this Agreement or from those ordinarily found to exist and generally recognized as inherent in the
activities of the character provided in the Contract Documents, then the Construction Manager shall give
notice to Buckeye promptly before conditions are disturbed and in no event later than seven Days after
the first observance of the conditions if a Change Order is contemplated by the Construction Manager due
to such conditions. Such materially different conditions, if discovered after a GMP is approved, may
entitle the Construction Manager to an equitable adjustment in the applicable GMP or schedule pursuant
to the Change Order provisions set forth in Article 8 below.
1.7
Buckeye and Subcontractors. Buckeye will require the Construction Manager to contract
directly with such Subcontractors as may be necessary for construction or supply of the Project. All such
contracts shall be issued consistent with (A) the applicable provisions of this Agreement, and (B)
Applicable Law, including, but not limited to, the requirements of ARIZ. REV. STAT. § 34-603(N) relating
1.8
Construction Manager to Other Project Participants. In providing the Services described
in this Agreement, the Construction Manager shall endeavor to maintain a working relationship with the
Project Designers. The Project Designers are solely responsible for the Project design and shall perform
in accordance with their respective agreements with Buckeye. Nothing in this Agreement shall be
construed to mean that the Construction Manager is responsible for the design of the Project or that the
Construction Manager assumes any of the contractual or customary responsibilities or duties of the Project
Designers or any other persons or parties not specified by this Agreement; provided, however, that the
Construction Manager shall provide comment and input in the form of a value analysis and constructability
2.2 below.
1.9
Data Confidentiality.
A.
Data Defined
written or verbal, including plans, photographs, studies, investigations, audits, analyses, samples, reports,
calculations, internal memos, meeting minutes, data field notes, work product, proposals, correspondence,
and any other similar documents or information prepared by or obtained by the Construction Manager in
the performance of this Agreement.
B.
Confidentiality. The Parties agree, subject to Arizona public records law, that all
data, including originals, images, and reproductions, prepared by, obtained by, or transmitted to the
confidential and proprietary information belonging to Buckeye.
C.
Use of Data. The Construction Manager will not divulge data to any third party
without prior, written consent of Buckeye. The Construction Manager will not use the data for any
purposes except to perform the Services required under this Agreement. These prohibitions will not apply
to any of the following data, provided the Construction Manager has first given the required notice to
Buckeye:
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1.
Data that was known to the Construction Manager prior to its performance
under this Agreement, unless such data was acquired in connection with work performed for
Buckeye.
2.
Data that was acquired by the Construction Manager in its performance
under this Agreement, and which was disclosed to the Construction Manager by a third party, who
ke such
disclosure and the Construction Manager is not otherwise required to hold such data in confidence.
3.
Data that is required to be disclosed by the Construction Manager by virtue
of law, regulation, or court order.
D.
Disclosure Notice. In the event the Construction Manager is required or requested
to disclose data to a third party, or any other information to which the Construction Manager became privy
as a result of any other contract with Buckeye, the Construction Manager will first notify Buckeye as set
forth in this Section of the request or demand for the data. The Construction Manager will timely give
Buckeye sufficient facts, such that Buckeye can have a meaningful opportunity to either first give its
consent or take such action that Buckeye may deem appropriate to protect such data or other information
from disclosure.
E.
Return After Completion. The Construction Manager, unless prohibited by law,
within 10 Days after completion of services for a third party on real or personal property owned or leased
by Buckeye, will promptly deliver, as set forth in this Section, a copy of all data to Buckeye. All data will
continue to be subject to the confidentiality requirements of this Agreement.
F.
Construction Manager Responsible. The Construction Manager assumes all
liability for maintaining the confidentiality of the data in its possession and agrees to compensate Buckeye
if any of the provisions of this Section are violated by the Construction Manager, its employees, agents,
or Subcontractors. For the purposes of seeking injunctive relief, it is agreed that a breach of this Section
will be deemed to cause irreparable harm that justifies injunctive relief in court.
ARTICLE 2
PRE-CONSTRUCTION SERVICES
2.1
Environmental Investigation.
A.
Discovery. Upon written notice from Buckeye or upon the Construction Manager
discovery of Environmental Conditions on the Site, the Construction Manager shall recommend, for
execution by Buckeye
which form of Environmental Contract shall be subject to the approval of Buckeye, for purposes of
performing an investigation and analysis of the Site prior to demolition and excavation activities, to
determine the presence of any Environmental Conditions on, in, or under the Site. The Environmental
Contracts shall provide for a commercially reasonable scope of investigation and costs approved by
Buckeye, and may provide for conducting the investigation and testing in phases acceptable to Buckeye.
The Environmental Contracts shall also provide that the Environmental Engineers shall begin their tests
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and inspections at the Site as soon as Buckeye is able to arrange access to the Site, or any portions thereof,
for such purposes. The Environmental Contracts shall provide that the Construction Manager, acting as
agent of Buckeye, shall coordinate the activities of the Environmental Engineers with the Work.
B.
Assessment; Remediation Analysis. The Environmental Contracts shall provide
that the Environmental Engineers shall prepare such reports, feasibility studies, and remedial plans in
accordance with
E1527-13
quantity, scope, and nature of the Environmental Conditions found to exist at the Site. The Environmental
Assessments shall contain a detailed analysis of the Environmental Conditions discovered, and the actions
, or remediation of such Environmental
Conditions (1) that are required by Environmental Requirements, or (2) that are reasonably necessary to
mitigate Environmental Damages.
C.
Impact on Master Schedule. The Environmental Contracts shall provide that the
Environmental Engineers shall promptly provide Buckeye and the Construction Manager with a copy of
each Environmental Assessment, together with any other reports and test results generated pursuant to the
Environmental Contracts. The Construction Manager shall, promptly after receipt of the foregoing matters
from the Environmental Engineers, prepare and submit to Buckeye a written report setting forth the
Construction Manager
Actions may result in an amendment to the Master Schedule and the progress of the Work.
D.
Notice; Permitting. The Environmental Contracts shall require the Environmental
Engineers to (1) give notice to Buckeye of the presence of Environmental Conditions, (2) only upon the
written consent of Buckeye, give any necessary notice to the Federal government and the State of Arizona
or other agencies of the presence of any Environmental Conditions, (3) assist Buckeye in negotiations
with Federal and Arizona agencies concerning preparation and approval of a plan for clean-up to the extent
required, and (4) obtain all necessary permits to perform any Remedial Actions.
E.
Remediation Contractors. If so instructed by Buckeye, based upon the results of
the Environmental Assessments, the Construction Manager shall assist Buckeye with obtaining bids from
Buckeye to
perform the Remedial Actions selected by Buckeye. If Buckeye elects to go forward with all or any
portion of the Remedial Actions covered by the bids submitted, Buckeye will so advise the Construction
Manager in a written notice on or before the date that is 60 Days after receipt of the foregoing matters
from the Construction Manager. Thereafter, Buckeye shall execute contracts with the selected
Remediation Contractors
F.
Coordination. Unless otherwise instructed, the Construction Manager, as agent for
Buckeye, shall be responsible for coordinating the work and services performed by the Remediation
Contractors with the Work.
G.
Payment for Remediation. Buckeye will make all payments due under the
Environmental Contracts and the Remediation Contracts directly to the Environmental Engineers and the
Remediation Contractors. Such payments will be based on requisitions, which requisitions shall be
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approved by the Construction Manager prior to submission to Buckeye. All payments due under the
Environmental Contracts, the Remediation Contracts, and for Environmental Damages, shall not be a part
of the applicable GMP, and shall be the sole responsibility of Buckeye, except as expressly provided
otherwise.
H.
Additional Discovery. If, in the course of performance of the Work, the
Construction Manager encounters on the Site any Environmental Conditions not previously disclosed and
remediated by the Environmental Engineers or the Remediation Contractors, the Construction Manager
shall immediately suspend the Work in the area affected and promptly thereafter report the condition to
Buckeye.
I.
Construction Manager Responsibility. Except as set forth in Subsection 2.1(L)
below, it is understood and agreed that with respect to any Environmental Conditions existing on the Site,
the Construction Manager is not, and shall not be deemed to be, a generator, arranger, owner, operator,
treater, storer, transporter, or disposer of, or otherwise responsible for, any such Environmental
Conditions. It is understood and agreed that the Construction Manager shall have no right to direct the
means or methods of performance of any Environmental Engineer or Remediation Contractor.
J.
Buckeye Indemnity. To the extent that the Construction Manager or the
Subcontractors are not in violation of Subsection 2.1(L) below and to the extent sufficient appropriations
are made pursuant to Section 14.18 below, Buckeye shall indemnify, defend, and hold harmless the
Construction Manager, the Subcontractors, and the directors, officers, agents, and employees of each (the
Construction Manager
, and against any Environmental Damages asserted
against or sustained by such parties as a result of any of the Construction Manager Indemnities being
deemed or determined to be a generator, arranger, owner, operator, treater, storer, transporter, or disposer
of, or otherwise responsible for, any such Environmental Conditions.
K.
Delay for Remedial Actions. Buckeye acknowledges and agrees that the
Construction Manager shall not commence or continue any demolition or construction activities on any
portion of the Site on or in which Remedial Actions are to be performed until such Remedial Actions are
to the point where construction activities will not interfere with such Remedial Actions, as evidenced by
appropriate certification by the applicable Environmental Engineer and/or Remediation Contractor, and
any required approvals of any applicable government agencies. The Construction Manager agrees to use
good faith efforts to adjust and reschedule its activities at the Site so as to minimize, to the extent
reasonably practical, the adverse effect on the progress of the Work resulting from any Remedial Actions.
L.
Hazardous Materials Prohibited. The Construction Manager shall not bring
Hazardous Materials to the Site, and shall not include Hazardous Materials in any construction materials,
unless permitted by Environmental Requirements. The Construction Manager shall comply, and shall
cause the Subcontractors to comply, with all Environmental Requirements regarding the generation,
handling, storage, treatment, and disposal of Hazardous Materials.
M.
Construction Manager Indemnity. The Construction Manager shall indemnify,
defend, and hold harmless Buckeye, its agents, representatives, officers, and employees for, from, and
against any Environmental Damages asserted against or sustained by such parties as a result of any
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violation by the Construction Manager or the Subcontractors of any Environmental Requirements arising
out of Subsection 2.1(L) above.
2.2
Review of Construction Documents; Design Remedies.
A.
Program Evaluation. The Construction Manager will provide to Buckeye a written
evaluation of Buckeye
proposed Project and Project budget, with recommendations as to the
appropriateness of each, and an analysis as to how each contribute to successfully achieving Buckeye
goal for the Project.
B.
Design Document Review. The Construction Manager shall assist Buckeye in
reviewing the Construction Documents for clarity, consistency, constructability, and coordination among
the various contractors. The Construction Manager
Construction Documents shall
occur at the 30% stage of the design for each component of the Project as designated by Buckeye and shall
be ongoing until 100% plans are final and complete for all phases of the Project. If the Construction
Manager recognizes that portions of the Construction Documents are (1) in violation of Applicable Law
or (2) in any way inadequate to achieve the intended result of the Project, the Construction Manager shall
immediately notify Buckeye in writing, describing the apparent violation or inadequacy.
1.
The Construction Manager will periodically evaluate the availability of
labor, materials/equipment, building systems, cost-sensitive aspects of the design, and other factors
that may impact the Cost Model, GMP Proposals, and/or the Master Schedule.
2.
The Construction Manager will identify those additional surface and
subsurface investigations that are required to provide the necessary information for the
Construction Manager to construct the Project. After completion of pre-construction services, the
Construction Manager may provide additional investigations to improve the adequacy and
completeness of the Site condition information and data made available with the Construction
Documents. The Construction Manager will be responsible for the time and cost required to obtain
such additional investigations, except as otherwise provided by specific Additional Services.
3.
The Construction Manager will meet with the Project team as required to
review designs during their development. The Construction Manager will thoroughly familiarize
itself with the evolving documents through schematic design, design development, and
Construction Documents (detailed design). The Construction Manager will proactively advise the
Project team and make recommendations on factors related to construction costs, and concerns
pertaining to the feasibility and practicality of any proposed means and methods, selected
materials, equipment, and building systems, and, labor and material availability. The Construction
Manager will also advise the Project team on proposed Site improvements, excavation, and
foundation considerations, as well as, concerns that exist with respect to coordination of the
Construction Documents. The Construction Manager will recommend cost-effective alternatives.
C.
Constructability and Biddability Reviews. The Construction Manager will conduct
constructability and biddability reviews of the Construction Documents. The reviews will attempt to
identify all discrepancies and inconsistencies in the Construction Documents, especially those related to
clarity, consistency, and coordination of Work of Subcontractors and suppliers. The Construction
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Manager shall provide Buckeye with a written report containing, at a minimum, (1) a summary of the
research and analysis conducted, (2) a detailed description of any constructability issues or challenges,
and (3) recommendations for correcting any constructability issues or challenges.
1.
Constructability Review. The Construction Manager will evaluate whether
(a) the Construction Documents are configured to enable efficient construction, (b) design
elements are standardized, (c) construction efficiency is properly considered in the Construction
Documents, (d) module/preassembly design are prepared to facilitate fabrication, transport, and
installation, (e) the design promotes accessibility of personnel, material, and equipment and
facilitates construction under adverse weather conditions, (f) sequences of Work required by or
inferable from the Construction Documents are practicable, and (g) the design has taken into
consideration efficiency issues concerning access and entrance to the Site, laydown and storage of
materials, staging of Site facilities, construction parking, and other similar pertinent issues.
2.
Biddability Review. The Construction Manager will check cross-references
and complementary Project drawings and sections within the Construction Documents and
evaluate whether (a) the plans and Specifications are sufficiently clear and detailed to minimize
ambiguity and to reduce scope interpretation discrepancies, (b) named materials and equipment
are commercially available and are performing well or otherwise, in similar installations, (c) the
design provides as-built data, (d) Specifications include alternatives in the event a requirement
cannot be met in the field, and (e) the Project is likely to be subject to Differing Site Conditions
considering the data on subsurface conditions, physical conditions of existing surface and
subsurface facilities, and physical conditions of underground utilities made available by the design
or resulting from conditions inherent to work similar to the Work.
3.
Reports. The results of the reviews will be provided to Buckeye in written
reports clearly identifying all discovered discrepancies and inconsistencies in the Project plans and
Specifications with notations and recommendations made on the plans, Specifications, and other
Construction Documents. If requested by Buckeye, the Construction Manager will meet with
Buckeye
s to discuss any findings and to review reports.
D.
Notification of Variance or Deficiency. Construction Manager is responsible for
assisting the Project Designers in ascertaining that the Construction Documents are in accordance with
Applicable Laws, statutes, ordinances, building codes, rules, and regulations. If the Construction Manager
recognizes that portions of the Construction Documents are at variance with Applicable Laws, statutes,
ordinances, building codes, rules, and regulations it will promptly notify the Project Designers and
Buckeye in writing, describing the apparent variance or deficiency.
E.
Value Analysis. The Construction Manager shall make recommendations to
Buckeye and the Project Designers with respect to constructability, construction cost, sequence of
construction, construction duration, possible means and methods of construction, time for construction,
and separation of the Project into contracts for various categories of the Work. Construction Manager
shall evaluate all design options to provide value analysis services and cost savings recommendations to
Buckeye. The Construction Manager shall consider options most effective in first costs as well as long
term operational costs and life cycle costs when evaluating each design option. The Construction Manager
shall submit to Buckeye and Project Designers (1) written cost studies, (2) cost-benefit evaluations of each
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cost study, (3) a formal report to the design team, (4) a final written analysis study document, and (5) a
tracking report for the increases or decreases in Project cost due to value engineering or scope changes.
Buckeye will decide which alternatives will be incorporated into the Project. The Project Designers will
have full responsibility for the incorporation of the alternatives into the Contract Documents. The
Construction Manager will include the cost of the alternatives into the Cost Model and any GMP
Proposals.
F.
Certification. At the completion of its review of the Construction Documents for
each phase of the Project, the Construction Manager shall certify, without assuming engineering
responsibility therefore, that the Construction Documents are sufficient and complete to build the
respective portion of the Project within (1) the time available before the respective Substantial Completion
date and (2) the Project budget. The Construction Manager
Construction Documents, and in making recommendations as provided herein is only for the purpose of
providing advice to Buckeye. Nothing in this Subsection shall relieve the Project Designers of their
respective responsibility for the Construction Documents.
G.
Construction Manager Not Responsible for Design. Notwithstanding the
foregoing, the Construction Manager is not responsible for providing, nor does the Construction Manager
control, the Project design and contents of the Construction Documents. By assisting with the reviews
described herein, the Construction Manager is not acting in a manner so as to assume responsibility or
liability, in whole or in part, for all or any part of the Project design and Construction Documents.
2.3
Pre-Construction Phase General Services.
A.
Personnel; Project Meetings; Project Analysis. The Construction Manager will
meet with Buckeye, the Project Designers, and all the other Project stakeholders to fully understand the
program, the Construction Documents, and all other aspects of the Project. The Construction Manager
shall attend the regularly scheduled meetings with Buckeye and the Project Designers to advise Buckeye
on matters of Site use, improvements, selection of materials, building methods, construction details,
building systems, equipment, phasing, and sequencing.
1.
The Construction Manager will provide pre-construction services,
described herein, in a proactive manner and consistent with the intent of the most current
Construction Documents. The Construction Manager will promptly notify Buckeye in writing
whenever the Construction Manager determines that any Construction Documents are
inappropriate for the Project and or cause changes in the scope of Work requiring an adjustment
in the Cost Model, Master Schedule, GMP Proposals, and/or in the Contract Time for the Work,
to the extent such are established.
2.
The Construction Manager, when requested by Buckeye or at its own
initiative, if sanctioned by Buckeye, will attend, make presentations, and participate as may be
appropriate in public agency and/or community meetings, germane to the Project. The
Construction Manager will assist the Project Designers in the preparation of drawings, schedule
diagrams, budget charts, and other materials describing the Project, when their use is required or
appropriate in any such public agency meetings.
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B.
Construction Management Plan.
1.
Preparing Plan. The Construction Manager will prepare a construction
Construction
that will detail, but not necessarily be
limited to, the Construction Mana
(a) Project milestone dates and
the Master Schedule, including the broad sequencing of the design and construction of the Project;
(b) investigations, if any, to be undertaken to ascertain subsurface conditions and physical
conditions of existing surface and subsurface facilities and underground utilities; (c) alternate
strategies for fast-tracking and/or phasing the construction; (d) separate bidding
documents/packages and strategies for the early procurement of long-lead equipment and/or
materials; (e) the number of separate subcontracts to be awarded to Subcontractors and suppliers
for the Project construction; (f) permitting strategy; (g) safety and training programs; (h)
construction quality control; (i) the Project Cost Model and basis of the model; (j) a matrix
(k) construction security. If Buckeye has
Construction Management Plan shall be coordinated with the Project Management Plan and
Design Phase Milestone Schedule prepared by the Project Manager.
2.
Maintaining Plan. The Construction Manager shall keep the Construction
Management Plan current throughout the pre-construction services phase so that the Construction
Management Plan is ready for implementation at the start of the construction phase. The
update/revisions will take into account (a) revisions in Construction Documents; (b) the
subsurface conditions, drawings of physical conditions of existing surface and subsurface
facilities, and documents depicting underground utilities placement and physical condition,
whether obtained by Buckeye, Project Designers, or the Construction Manager; (c) unresolved
permitting issues, and significant issues, if any, pertaining to the acquisition of land and rights-of-
way; (d) the fast-tracking (if any) of the construction, or other chosen construction delivery
methods; (e) the requisite number of separate bidding documents to be advertised; (f) the status of
the procurement of long-lead time equipment and/or materials; and (g) funding issues identified
by Buckeye.
C.
Schedule Development. In accordance with the Construction Management Plan,
the Construction Manager shall prepare a master schedule for the Project (the Master Schedule . In
preparing the Master Schedule, the Construction Manager shall establish (1) detailed Critical Path Method
CPM
resource-loaded schedules for the pre-construction/design phase and the construction phase of
the Project with concurrence of Buckeye and the Project Designers, and (2) monitor the Project schedules
during the pre-construction phase and ensure that the Master Schedule is updated as necessary and advise
Buckeye of any schedule deficiencies.
1.
Each Project team member is responsible for its compliance with the Master
Schedule requirements. The Construction Manager will update and maintain the Master Schedule
on behalf of and to be used by the Project team based on input from other team members. The
Master Schedule will be consistent with the most recent revised/updated Construction
Management Plan. The Master Schedule will be presented in graphical and tabular reports as
agreed upon by the Project team. The Master Schedule will include all tasks and deliverables
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required by each member of the Project team to identify long lead items, real property transactions,
utility relocation activity, permitting requirements, etc. If Project phasing as described below is
required, the Master Schedule will indicate milestone dates for the phases. The Master
activities will directly correlate with the Schedule of Values (as defined in Subsection 2.3(D)(4)
below). The Master Schedule shall include resource loading for manpower and cash flow. The
manpower loading shall include the daily manpower required to complete the task as shown on
the Master Schedule.
2.
The Construction Manager will include and integrate in the Master
Schedule the services and activities required of Buckeye
,
and Construction Manager, including all construction phase activities. The Master Schedule will
detail activities to the extent required to show (a) the coordination between schematic design,
design development, and Construction Documents (detailed design), (b) separate long-lead
procurements, (c) permitting issues, (d) land and right-of-way acquisition, if any, (e) bid packaging
strategy and awards to Subcontractors and suppliers, (f) major stages of construction, (g) start-up,
and (h) occupancy of the completed Work by Buckeye. The Master Schedule will include, by
example and not limitation, proposed activity sequences and durations for design, procurement,
construction, and testing activities, milestone dates for actions and decisions by the Project team,
preparation and processing of Shop Drawings and samples, delivery of materials or equipment
requiring long-lead time procurement, milestone dates for various construction phases, total Float
for all activities, relationships between the activities, Buckeye
portions of the Project having occupancy priority, and proposed dates for Substantial Completion
and when the Work would be ready for final acceptance.
3.
The Master Schedule will be updated and maintained by the Construction
Manager with assistance from the Project team throughout the pre-construction services phase
such that it will not require major changes at the start of the construction phase to incorporate the
Construction Manager will provide updates and/or revisions to the Master Schedule for use by the
Project team, whenever required, but no less often than monthly; provided, however, that no such
changes shall alter the date of Substantial Completion without Buckeye
The Construction Manager will include with such submittals a narrative describing its analysis of
the progress achieved versus that planned, any concerns regarding delays or potential delays, and
any recommendations regarding mitigating actions.
4.
Prior to transmitting Contract Documents to Subcontractors, the
Construction Manager shall prepare a pre-proposal construction schedule for each part of the
Project and make the schedule available to the Subcontractors. The Construction Manager shall
provide a copy of the Master Schedule to the Subcontractors. As part of the notice of award by
the Construction Manager to each Subcontractor, the Construction Manager shall inform each
Subcontractor of the requirements for the preparation of the Master Schedule. Each Subcontractor
shall prepare its own Subcontractor construction schedule in accordance with the requirements of
the Contract Documents.
D.
Cost Models; Cost Estimates and Schedule of Values. The Construction Manager
shall provide Buckeye and its Project Manager (if any) with detailed cost information for all aspects of
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the Project. Each cost model will contain a detailed estimate of the direct cost (including materials, labor,
and equipment) pertaining to each aspect of the Project along with the cost of the contract bonds, the cost
all applicable taxes, the Construction Manager
conditions, the Construction Manager
, and the amount of the
and shall be consistent with such requirements as determined by Buckeye or the Project Designers. The
1.
As soon as practical during the schematic design phase, the Construction
Manager will review all available information regarding the design and scope of the Project, and
based on the Construction Manager
, develop a Cost
Model for review and approval by Buckeye and its Project Manager (if any). Once approved by
Buckeye, the Cost Model will be continually updated and kept current as the design progresses
throughout the pre-construction phase until a final GMP for the entire Project is established. The
Cost Model will be the Construction Manager best representation of the complete functional
Construction Manager will communicate to the Project team any
assumptions made in preparing the Cost Model. The Cost Model will support the Construction
Manager
available information. The Cost Model will also include allowances as agreed to by the Project
team, including but not limited to (a) allowances for potential additional quantities and/or
additional Work that Buckeye may require, and (b) any costs related to investigations described in
Subsection 2.1.
2.
After receipt of the Project Designers
specified design milestones, the Construction Manager will provide a detailed written report to the
Project team regarding the impact of and changes to the Cost Model based on the Construction
Manager
Construction Documents made available at the specified design milestone.
Buckeye
Project Designers, and the Construction Manager will reconcile any
disagreements on the estimate to arrive at an agreed-upon estimate for the construction costs based
on the scope of the Project through that specified design milestone. The design milestones
applicable to this paragraph are schematic design document completion, design development
document completion, and detailed design completion at 30%, 60%, 95%, and 100%. If no
consensus is reached, Buckeye will make the final determination. If the Project team requires
additional updates of the Cost Model beyond that specified in this Subsection, the Construction
Manager will provide the requested information in a timely manner.
3.
If, at any point, the estimate submitted to Buckeye exceeds previously-
accepted estimates or other key aspects of the Cost Model or Buckeye
Project budget, the
Construction Manager will make appropriate recommendations to Buckeye
Project Designers on means/methods, materials, and/or other design elements that it believes will
reduce the estimated construction costs (without altering Buckeye
, such that it is
equal to or less than the established Project budget.
4.
Near completion of the 60% detailed design review and included with the
associated report, the Construction Manager will also submit to Buckeye for review and approval
a Schedule of Values which complies with the following requirements. The Schedule of Values
will highlight significant variances from any previously submitted preliminary Schedule of Values.
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The Schedule of Values will be directly related to the breakdowns reflected in the Construction
Management Plan and the Construction Manager
Values will (a) detail unit prices and quantity take-offs, (b) segregate Work covered by any changes
to construction phase Work already in progress, (c) reconcile used and remaining Construction
Manage
Contingency (as defined in Subsection 3.3(D)(1) below) allowance, (d) detail all other
allowances and unit price Work shown and specified in the detailed Construction Documents, and
(e) material and equipment costs, labor costs, General Conditions costs, hourly labor rates,
payment for pre-construction services, and total cost. Labor costs in the Schedule of Values will
include employee benefits, payroll taxes, and other payroll burdens. The total cost for any portion
of the Work to be performed by Subcontractors will include Subcontractor overhead and profit.
5.
The Construction Manager will submit to Buckeye a final Schedule of
Values based on the 100% detailed design set of Construction Documents for the entire Project or
any portion thereof, which final Schedule of Values will also be included in any proposed GMP(s).
6.
Upon request by Buckeye, the Construction Manager will submit to
Buckeye a cash flow projection for the Project based on the current updated/revised Master
Schedule and the anticipated level of payments for the Construction Manager during the pre-
construction and construction phases. In addition, if requested by Buckeye and based on
information provided by Buckeye, the Construction Manager will prepare a cash flow projection
for the entire Project based on historical records for similar types of projects to assist Buckeye in
the financing process.
E.
Traffic Control/Sequencing Plans. The Construction Manager shall provide
Buckeye with (1) a detailed traffic control plan, in accordance with Subsection 4.5(R) below, and (2)
construction sequencing plans. Upon approval by Buckeye, the traffic control plan and the construction
sequencing plan shall be attached hereto as Exhibit E and incorporated herein by reference.
F.
Phasing; Long Lead Procurement. The Construction Manager shall review the
Construction Documents and make recommendations to Buckeye with respect to the phase issuance of
the Construction Documents to facilitate phased construction of the Work, if appropriate. The
Construction Manager will take into consideration such factors as natural and practical lines of work
severability, sequencing effectiveness, access and availability constraints, total time for completion,
construction market conditions, labor and materials availability, and any other factors pertinent to saving
time and cost. The Construction Manager may also recommend to Buckeye and to the Project Designers
a list and a schedule for purchasing items necessary for the Project which may require substantial lead
Buckeye or included
as a separate GMP in this Agreement, at the discretion of Buckeye. The Construction Manager shall make
such adjustments to the Master Schedule as necessary to accommodate the procurement process for the
Long Lead Items. Upon purchase, the Construction Manager shall safeguard the Long Lead Items until
installed as part of the Project.
G.
Other Deliverables; Pre-Construction Progress Payments. The Construction
Manager shall provide Buckeye with written plans for the pre-qualification of Subcontractors (according
to the Subcontractor Selection Program), subcontract bid packages, project safety, quality control, owner
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training, and commissioning. The Construction Manager will prepare and submit monthly pay
applications to Buckeye for work performed during the specific payment period for the pre-construction
phase of the Project.
ARTICLE 3
GUARANTEED MAXIMUM PRICE PROPOSAL
3.1
GMP Submittal Process. At the stage of the pre-construction phase services as determined
by Buckeye, the Construction Manager shall, if requested by Buckeye, submit a GMP Proposal, which
shall be the sum of the estimated Cost of the Work relating to completion of the Scope for the Project and
the Construction Fee relating to the Project based upon the most current version of the Cost Model. Each
GMP Proposal shall include, in the Cost of the Work, those taxes that are applicable at the time the GMP
is established. Each GMP is the total cost of the applicable portion of the Project including the cost of
labor, equipment, supplies, materials, services, and allowances to complete the applicable portion of the
Project. The cost data is directly correlated to the specific Construction Documents in existence at the
time each GMP Proposal is prepared. The assumptions used in the preparation of the GMP Proposal shall
be identified by the Construction Manager as part of the GMP Proposal. In submitting this proposal, the
Construction Manager represents that:
A.
Document Review. The Construction Manager has examined and carefully studied
the Contract Documents for the construction phase, including all addenda.
B.
Site Visit. The Construction Manager has visited the Site and become familiar with
and is satisfied as to the general, local, and Site conditions that may affect cost, progress, performance,
and furnishing of the Work.
C.
Laws and Regulations. The Construction Manager is familiar with and is satisfied
as to all Applicable Laws that may affect cost, progress, performance, and furnishing of the Work,
including, but not limited to, ARIZ. REV. STAT. § 42-5075(P), which applies to the Project contemplated
within this Agreement.
D.
Reports; Subsurface Conditions. The Construction Manager has carefully studied
all reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings
of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site
which have been identified in the Contract Documents for the construction phase. Construction Manager
acknowledges that such new reports may not be complete for Construction Manager
The
Construction Manager acknowledges that Buckeye and Project Designers do not assume responsibility for
the accuracy or completeness of information and data shown or indicated in the Contract Documents for
the construction phase with respect to underground facilities at or contiguous to the Site. The Construction
Manager has obtained and carefully studied (or assumes responsibility for having done so) all such
additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning
conditions (surface, subsurface, and underground facilities) at or contiguous to the Site or otherwise which
may affect cost, progress, performance, or furnishing of the Work or which relate to any aspect of the
means, methods, techniques, sequences, and procedures of construction to be employed by the
Construction Manager and safety precautions and programs incident thereto. The Construction Manager
does not consider that any additional examinations, investigations, explorations, tests, studies, or data are
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necessary for the determination of this GMP Proposal for performance and furnishing of the Work in
accordance with the times, price, and other terms and conditions of the Contract Documents for the
construction phase.
E.
Work by Others. The Construction Manager is aware of the general nature of Work
to be performed by Buckeye and others at the Site that relates to the Work for which the GMP Proposal
is submitted as indicated in the Contract Documents for the construction phase.
F.
Conditions and Plans Correlated. The Construction Manager has correlated the
information known to Construction Manager, information and observations obtained from visits to the
site, reports and drawings identified in the Contract Documents for the construction phase, and all
additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents
for the construction phase.
G.
Inconsistencies Resolved. The Construction Manager has given Project Designers
written notice of all conflicts, errors, ambiguities, or discrepancies that the Construction Manager has
discovered in the Contract Documents for the construction phase, and the written resolution thereof by
Project Designers is acceptable to the Construction Manager, and the Contract Documents for the
construction phase are generally sufficient to indicate and convey understanding of all terms and
conditions for performing and furnishing the Work for which the GMP Proposal is submitted.
H.
No Improper Actions. The proposal is genuine and not made in the interest of or
on behalf of any undisclosed person, firm, or corporation and is not submitted in conformity with any
agreement or rules of any group, association, organization, or corporation; Construction Manager has not
directly or indirectly induced or solicited any person, firm, or corporation to refrain from proposing; and
the Construction Manager has not sought collusion to obtain for itself any advantage over any other
contractor or over Buckeye.
3.2
Acknowledged Construction Documents. The Construction Manager, in preparing any
GMP Proposal, will obtain from the Project Designers three sets of signed, sealed, and dated Construction
Documents (including all addenda). The Construction Manager will prepare its GMP Proposal in
accordance with Buckeye
and the most-current completed Construction Documents at that
time. The Construction Manager will mark the face of each document of each set upon which its GMP
Proposal is based. The Construction Manager will send one set of those documents to Buckeye
Manager, keep one set, and return the third set to the Project Designers.
3.3
Direct Construction Costs. Direct Construction Costs means the sum of the amounts that
the Construction Manager actually and necessarily incurs constructing the Work in strict compliance with
the Contract Documents. Direct Construction Costs include only the cost categories set forth in this
Article and does not include the Pre-Construction Phase Fees or the Construction Phase Fees unless
specifically noted.
A.
General Conditions Costs. Construction Manager is entitled to receive
reimbursement for the actual cost of the allowable General Conditions items incurred between issuance
of the applicable Notice to Proceed and 30 days after the date scheduled for Substantial Completion.
Construction Manager is entitled to reimbursement for General Conditions Costs incurred before receipt
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of the Notice to Proceed, or after Substantial Completion, only with prior written approval of Buckeye.
Allowable General Conditions Cost Line Items are identified below and in Exhibit F, attached hereto
and incorporated herein by reference. These items shall be included in the General Conditions Cost
amount shown as a line item in the applicable GMP Proposal and as detailed on the Schedule of Values.
Items not specifically included below or in Exhibit F will not be allowed as a General Condition Costs.
1.
Personnel costs, which include wages paid for the
hourly employees and salaries of the
at the field office located at the Site and working on matters directly related to the Project, in
whatever capacity employed; (b) engaged on the road expediting the production or transportation
of material and equipment; and (c) performing functions directly related to the Work from the
principal or branch office. The project m
s salary may be included in the General
Conditions Costs only when the project manager is directly managing the Project. Personnel costs
also include the cost of all employee benefits and taxes including but not limited to, unemployment
compensation, Social Security, health, welfare, retirement, and other fringe benefits as required by
personnel costs are subject to audit to determine the actual cost of the wages, salaries, and
allowable employer contributions incurred by the Construction Manager for services performed
for the Project.
2.
Reasonable transportation, travel, and hotel expenses of the Construction
3.
Costs of long-distance telephone calls, telegrams, postage, package
delivery, and courier service, hardwired telephone service, and reasonable expenses of
the Work.
4.
Costs of materials, supplies, temporary facilities, equipment, and hand tools
(except those customarily owned by construction workers) supplied to the Site by the Construction
Manager, if such items are fully consumed in the construction of the Work and are included in the
list of Allowable General Conditions Cost Line Items set forth in Exhibit F. Cost for used items
shall be based on fair market value and may include transportation, installation, and minor
maintenance costs, and removal costs. If an item is not fully consumed in the construction of the
Work, its recoverable cost under this Contract shall be based on the original cost of the item less
its fair market salvage value.
5.
Rental charges for temporary facilities, equipment, and hand tools (except
those customarily owned by construction workers), supplied to the Site by Construction Manager,
provided they are included in the list of Allowable General Conditions Cost Line Items set forth
in Exhibit F and Buckeye has approved the rentals and the rental rates in advance and in writing.
Rental rates may include transportation, installation, and minor maintenance costs, and removal
costs. For tools, machinery, or construction equipment rented directly from the Construction
Manager, the rental rate, including freight and delivery costs and all operating expenses except
labor, shall be approved in advance by Buckeye and shall be in accordance with either
or the
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most recent rates provided by Equipmentwatch.com, but no higher than the prevailing competitive
rates for rental of similar equipment in the Project vicinity.
6.
The aggregate rental cost of any item charged to Buckeye shall not exceed
75% of the purchase price and maintenance cost of the item. If the anticipated aggregate rental
cost for an item of equipment exceeds 75% of the purchase and maintenance price, the
Construction Manager shall purchase the equipment and turn it over to Buckeye upon final
completion of the Work or, at Buckeye
Buckeye with the fair market resale value
of the item.
7.
Permit and inspection fees paid by the Construction Manager where
Buckeye is exempt will not be reimbursed by Buckeye.
8.
Subcontractor default insurance at the rate of 0%
liability,
Compensation, and builders risk insurance as required pursuant to Article 10
below, which shall be identified as separate line items within the applicable GMP. If the
Construction Manager intends to utilize Subcontractor Liability Wrap-up Coverage (Z-25), it will
be reimbursed at the rate of 0% of the Subcontract amount, and credited from the Subcontractor
bids. Commercial General Liability Insurance shall be reimbursed at the rate of 1.25% of the
applicable GMP amount; Builders Risk Insurance shall be reimbursed at the rate of .51% of the
applicable GMP amount; Performance and Payment Bonds shall be reimbursed at 1.1% of the
applicable GMP amount. All amounts shall be identified as separate line items within the
applicable GMP.
9.
Cost of bond premiums to the extent directly attributable to the Project.
10.
Governmental transaction privilege sales and use taxes directly attributable
to the General Conditions Items that are not subject to exemption, in the form and at the rates
legally enacted on the date of the first GMP, whether such taxes are effective or scheduled to go
into effect. Such taxes paid on materials or services that were entitled to tax exemption will not
be reimbursed by Buckeye as Direct Construction Costs.
B.
Cost of the Work. The Construction Manager is entitled to receive payment for the
actual cost of the allowable Cost of the Work items incurred after receipt of Buckeye
Notice to
Proceed with the Construction Phase Work through Final Completion of the Project. Construction
Manager is not entitled to reimbursement for Cost of the Work costs incurred before receipt of Buckeye
written Notice to Proceed. Cost of the Work includes the following:
1.
Costs of materials, supplies, and equipment purchased directly by the
Construction Manager and incorporated into or consumed in the performance of the Work,
including transportation charges, to the extent such costs of materials, supplies, and equipment are
not included in the General Conditions Costs.
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2.
Costs of removal and disposal in accordance with all Applicable Laws and
regulations of Site debris, non-hazardous substances, and waste materials, if not otherwise
included in General Conditions.
3.
Payments made by the Construction Manager to Subcontractors and their
vendors or suppliers for the subcontract work in accordance with the Construction Documents and
the requirements of the subcontracts with the Subcontractors, vendors, or suppliers.
4.
Payments earned by the Construction Manager for self-performed
subcontract work, other than General Conditions work, in accordance with the Construction
Documents and the terms of this Contract and approved by Buckeye.
5.
Fees and expenses for design services procured by the Construction
Manager related to necessary modifications to the Construction Documents.
6.
Intellectual property royalties and licenses for items specifically required
by the Construction Documents which are, or will be, incorporated into the Work.
7.
All costs associated with establishing, equipping, operating, maintaining,
and demobilizing the field office at the Site.
8.
All water, power, and fuel costs necessary for the Work.
9.
Costs incurred due to an emergency affecting the safety of persons and/or
property, excluding such costs related to the negligence or willful acts of the Construction Manager
or any person or entity for whom the Construction Manager is responsible.
10.
All costs directly incurred in the performance of the Work or in connection
with the Project, and not included in the Contract Price as set forth in Article 7 below, which are
reasonably inferable from the Contract Documents as necessary to produce the intended results,
subject to the maximum price limitation established by the respective GMP.
11.
C
Project.
C.
Exclusions from General Conditions Costs and Cost of the Work. The General
Conditions Costs and Cost of the Work shall not include the following:
1.
Any professional fees paid by Buckeye to the Project Designers or other
consultants retained directly by Buckeye.
2.
Any costs paid directly by Buckeye to Subcontractors or suppliers retained
directly by Buckeye and outside the scope of all GMPs.
3.
Any additional service costs as defined herein.
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4.
Any other costs not within the control of the Construction Manager or
identified as being not within any GMP.
5.
Any fees paid to the Construction Manager except those fees that may be
paid to the Construction Manager for Pre-construction Phase Services above.
D.
.
1.
s of the Project
identified through the refinement, development, and completion of the Construction Documents
between the Parties and it shall reflect the risk inherent in the state of completion of the
Construction Documents at the time the GMP Proposal is submitted.
2.
Any re-
to cover increases in the Direct Construction Costs must be approved by Buckeye in advance and
in writing, which approval shall not to be unreasonably withheld. In written requests to use the
documentation of the scope of work affected and the basis for any increases in costs resulting in
3.
As the Construction Documents are finalized and the buyout of the Work
progresses,
agreement of Buckeye and the Construction Manager. The buyout shall occur within the first 20%
of the construction duration for each Notice to Proceed issued for construction. Should savings
Contingency amount, will be retained by Buckeye.
E.
Calculation Methods; Audits.
1.
Buckeye and the Construction Manager understand and agree that any GMP
agreed to under this Project will be administered as a measured quantity/unit price guaranteed not-
to-exceed contract. This not-to-exceed amount is defined by the individual work items and their
associated competitively bid and/or negotiated unit prices plus negotiated on-site general
conditions, fee structures, markups, and the
. Final contract
price/payout will be based on field measured final completed quantities, approved unit prices, and
approved Minor Adjustment
as the final negotiated unit prices (costs) mutually agreed to by Buckeye and the Construction
Manager. Buckeye and the Construction Manager understand and agree that individually priced,
-
2.
Buckeye and the Construction Manager understand and agree that Buckeye,
its authorized representatives, and/or the appropriate federal or state agencies may audit the
including data used to negotiate any GMP, and including, but not limited to, self-performed items,
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qualifications-only selected Subcontractor items, Change Orders, use of allowance funds, and use
of
funds. Buckeye and its authorized representatives shall
have access, during normal working hours, to all necessary Construction Manager and
Subcontractor facilities, and shall be provided adequate and appropriate workspace, to conduct
audits in compliance with the provisions of this Subsection. Buckeye shall give the Construction
Manager or Subcontractor reasonable advance notice of intended audits.
F.
Discounts. All discounts for prompt payment shall accrue to Buckeye to the extent
such payments are made directly by Buckeye. To the extent payments are made with funds of the
Construction Manager, all cash discounts shall accrue to the Construction Manager. All trade discounts,
rebates, and refunds, and all returns from sale of surplus materials and equipment, shall be credited to the
Cost of the Work.
3.4
Construction Fee.
Construction Manager for any cost or profit expectation incurred in the performance of the Work that is
not specifically identified as being eligible for reimbursement by Buckeye elsewhere in this Agreement.
The Construction Fee includes, but is not limited to, the following items:
A.
Profit. All profit, profit expectations, and costs associated with profit sharing plans
such as personnel bonuses, incentives, and rewards; company stock options; or any other like expenses
of the Construction Manager, which shall not exceed 5% of the total applicable GMP amount, excluding
B.
Salaries. Salaries of the
estimators, schedulers, and all other employees not stationed at the Project site and performing services
directly related to the Project.
C.
Overhead. Any and all overhead, labor, or general expenses of any kind unless
specifically allowed under General Conditions. These costs include, but are not limited to: costs for the
purchase, lease, rental, allowance, or maintenance of vehicles, radios/communication equipment, jobsite
computers, copiers, and other business equipment, specialized telephone systems, and cellular/digital
phones; home office operations and support staff (i.e. accounting, purchasing); trade or professional
association dues; costs for hiring and/or relocation of
travel, per diem, and subsistence expense of the Construction Manager, its officers, or employees except
as specifically allowed under General Conditions, which shall not exceed 5.0% of the total applicable
.
D.
Financial Costs. Any financial costs incurred by the Construction Manager
including the cost of capital or interest on capital, regardless of whether it is related to the Project, and
costs associated with construction warranty reserves.
E.
Professional Fees. Any legal, accounting, professional, or other similar costs
incurred by the Construction Manager, including costs incurred in connection with the prosecution or
defense any dispute, mediation, arbitration, litigation, or other such proceeding related to or arising from
the Project.
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F.
Taxes. Any Federal and/or State income and franchise taxes paid by the
Construction Manager. Any levies, assessments, fines, penalties, sanctions, or other impositions made by
any governmental body against the Construction Manager.
G.
Damages and Related Costs. Any cost arising out of a breach of this Agreement or
the fault, failure, or negligence of the Construction Manager, its Subcontractors, or any person or entity
for whom they may be liable. These costs include, without limitation: costs to remedy defective, rejected,
or nonconforming work, materials, or equipment; costs due to failure to coordinate the Work or meet CPM
schedule milestones; costs arising from the
obligations; liquidated or actual damages imposed by Buckeye for failure to complete the Work within
the Contract Time; costs due to the bankruptcy or insolvency of any Subcontractor; and damage or losses
to persons or property.
H.
Insurance Deductibles. The cost of any and all insurance deductibles payable by
the Construction Manager and costs due to the failure of the Construction Manager or any Subcontractor
to procure and maintain insurance as and to the extent required by the Contract Documents.
I.
Costs in Excess of GMP. Any and all costs that would cause the Guaranteed
Maximum Price to be exceeded.
J.
Other Unidentified Costs. Any and all costs not specifically identified as an
element of the Direct Construction Costs.
3.5
Competitive Bidding and Sub-Bids.
A.
Subcontractor Selection. The Construction Manager will develop Subcontractor
interest, submit the names of a minimum of three qualified Subcontractors for each trade in the Project for
approval by Buckeye, and solicit bids for the various Work categories. If there are not three qualified
Subcontractors available for a specific trade, the Construction Manager will request approval by
Buckeye
Buckeye approved
Subcontractors will be allowed without prior, written approval by Buckeye.
B.
Buckeye Objections. If, prior to receipt of sub-bids or prior to award of
Subcontractors or suppliers, Buckeye objects to any nominated Subcontractor or supplier or to any self-
performed Work for good reason, the Construction Manager will nominate a substitute Subcontractor or
supplier, preferably if such option is still available, from those who submitted sub-bids for the Work
affected. Once such substitute Subcontractors and suppliers are consented to by Buckeye, the
MP for the Work or portion thereof will be correspondingly adjusted
to reflect any higher or lower costs from any such substitution.
C.
Documents; Pre-bid Conference. The Construction Manager will distribute
Construction Documents, and when appropriate, conduct a pre-bid conference with prospective
Subcontractors.
D.
Subcontractor Bid Submittal. The Construction Manager, at the required time, will
close the bidding and collect all sub-bids received within the prescribed deadline for receipt of sub-bids.
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Promptly, after the closing of sub-bids, the Construction Manager will (in the presence of Buckeye
Project Manager and Project Designers) open and read all properly and timely submitted sub-bids. The
Construction Manager will submit a completed Sub-Bid tabulation form to Buckeye
within a reasonable time after the closing of the sub-bid opening proceedings.
E.
Subcontractor Bid Evaluation. The Construction Manager, upon opening of sub-
bids will evaluate them including, but not limited to, the evaluation of lower tier Subcontractors,
Subcontractor qualification submittals, and prospective suppliers selected by each apparent low sub-
bidder. The Construction Manager will resolve any sub-bid withdrawal, protest, or disqualification in
connection with the award at no increase in the Cost of the Work.
F.
Notice of Intent for Subcontracts. Within 15 Days after sub-bid opening, the
Construction Manager will deliver to Buckeye
subcontracts, itemizing the Subcontractors and suppliers selected by the Construction Manager. The
notice of intent to award subcontracts will detail (1) for each Subcontract the amount of the sub-bid and
the corresponding Subcontractor or supplier, (2) the sum of sub-bids received for all intended
Subcontracts, and (3) trade work that the Construction Manager intends to self-perform, if any.
G.
Pre-award Conference. Promptly after receipt of the notice of intent to award
subcontracts, Buckeye will conduct a pre-award conference with the Construction Manager and other
Project team members. At the pre-award conference, the Construction Manager will (1) review the
nominated slate of Subcontractors and suppliers and discuss any concerns with or objections that Buckeye
has to any nominated Subcontractor or supplier; (2) discuss any concerns Buckeye has to any proposed
self-performed Work; (3) revi
the construction phase; (4) resolve possible time frames for the commencement date of the Contract Time
for the construction phase Work; (5) schedule the pre-construction conference; and (6) discuss other
matters as necessary.
3.6
Submittal Requirements. The Construction Manager shall include with each GMP
Proposal a written statement of its basis, which shall include:
A.
Detailed Scope. A detailed scope of services related to the respective GMP
Proposal, including a breakdown of the GMP as it relates to the applicable part of the overall Scope.
B.
Documents. A list of the Construction Documents, including all addenda that were
used in preparation of the respective GMP Proposal.
C.
Allowances. A list of allowances and a statement of their basis.
D.
Assumptions. A list of the assumptions and clarifications made by the Construction
Manager in the preparation of the respective GMP Proposal to supplement the information contained in
the Construction Documents.
E.
Substantial Completion. The Substantial Completion date, if applicable, upon
which the respective GMP Proposal is based and the Master Schedule for the Work upon which the
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respective Substantial Completion date is based, including a clear statement of the number of rain delay
days included within the Master Schedule.
F.
Alternate Prices. A schedule of applicable alternate prices.
G.
Unit Prices. A schedule of applicable unit prices.
H.
Additional Services. A statement of Additional Services included, if any.
I.
Acceptance Period. The time limit for acceptance of the GMP Proposal.
3.7
GMP Proposal Review. The Construction Manager shall meet with Buckeye and the
Project Designers to review each GMP Proposal. In the event that Buckeye discovers any inconsistencies
or inaccuracies in the information presented, Buckeye shall give written notice to the Construction
Manager, who shall make appropriate adjustments to the GMP, its basis or both.
A.
Independent Estimate. Upon receipt of any GMP Proposal from the Construction
Manager, Buckeye may submit the same documents that were used by Construction Manager in
developing its GMP to an independent third party or to the Project Designers for review and verification.
The third party or Project Designers will develop an independent estimate of the Cost of the Work and
review the Master Schedule for the associated scope of the GMP Proposals.
B.
GMP Exceeding Independent Estimate. If the Construction Manager
Proposal is greater than the independent third party or
estimate, Buckeye may require
the Construction Manager to reconfirm its GMP Proposal. The Construction Manager will accept the
estimate for the Cost of the Work as part of its GMP or
present a written request, within seven Days of receiving the estimates, to Buckeye identifying, explaining,
and substantiating the differences. The Construction Manager may be requested to, or at its own discretion
may submit a revised GMP Proposal for consideration by Buckeye. At that time Buckeye may do one of
the following:
1.
Accept the Construction Manager
within Buckeye
2.
Accept the Construction Manager
exceeds Buckeye
Construction Manager that the Project
budget has been increased to fund the differences.
3.
Reject the Construction Manager
because it exceeds either or both Buckeye
Project
estimate, in which event, Buckeye may terminate this Agreement.
C.
Design Changes During Negotiation. If, during the review and negotiation of GMP
Proposals, design changes are required, Buckeye will authorize and cause the Project Designers to revise
the Construction Documents to the extent necessary to reflect the agreed-upon assumptions and
clarifications contained in the final approved GMP Proposal. Such revised Construction Documents will
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be furnished to the Construction Manager. The Construction Manager will promptly notify the Project
Designers and Buckeye
with the agreed-upon assumptions and clarifications.
3.8
No Prior Costs. Prior to Buckeye
Construction
Manager shall not incur any cost to be reimbursed as part of the Cost of the Work related to such GMP
Proposal, except as provided in this Agreement or as Buckeye may specifically authorize in writing.
3.9
Acceptance; Effect. Upon acceptance by Buckeye of each GMP Proposal, the GMP
contained therein and its basis shall be set forth in the applicable GMP Amendment. Once established,
the GMP and the corresponding Substantial Completion date shall be subject to modification only as
provided in Articles 6 and 8 below. Buckeye
of Buckeye
Buckeye
Buckeye and
will be in addition to the Pro
Proposals. Use and
management of Buckeye
Buckeye
3.10
GMP Effective Date. Each GMP Proposal shall not become a part of this Agreement until
Buckeye accepts such GMP Proposal in writing by executing the applicable GMP Amendment, on or
before the date specified in each such GMP Proposal for such acceptance.
3.11 Failure to Agree Upon GMP. If Buckeye and the Construction Manager do not agree to
any provisions of the GMP Proposal, including the designated Default Neutral Arbitrator, all references
in this Agreement to the GMP shall not be applicable, and the Parties shall proceed on the basis of
reimbursement as provided in Article 7 below.
ARTICLE 4
CONSTRUCTION SERVICES
4.1
Control of Construction. After the date any Amendment to this Agreement is executed by
Buckeye and the Construction Manager approving a GMP Proposal, the Construction Manager shall
become responsible for the means, methods, sequences, and procedures used in the construction of the
portion of the Project related to such GMP Proposal and shall proceed with the Construction Manager
Construction Services related to the GMP Proposal under this Agreement.
4.2
Completeness and Accuracy of Construction Manager Work. The Construction Manager
will be responsible for the completeness and accuracy of its reviews, reports, supporting data, and other
pre-construction deliverables prepared or compiled pursuant to its obligations under this Agreement and
will at its sole expense correct its work or deliverables. The fact that Buckeye has accepted or approved
deliverables will in no way relieve the Construction Manager of any
of its responsibilities under this Agreement, nor does this requirement to correct the work or deliverable
constitute a waiver of any claims or damages otherwise available by law or contract to Buckeye.
4.3
Alteration in Character of Work. In the event an alteration or modification in the character
of work or deliverable materially increases or decreases the scope of service, cost of performance, or
Master Schedule as determined by Buckeye, the Work or deliverable will nonetheless be performed as
directed by Buckeye. However, before any altered or modified work begins, a Minor Adjustment or
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Change Order must be approved and executed by Buckeye and the Construction Manager to address such
change. Such Minor Adjustment or Change Order will not be effective until approved by Buckeye.
Additions to, modifications to, or deletions from the Project provided herein may be made, and the
compensation to be paid to the Construction Manager may be adjusted accordingly, only by mutual
agreement of the Parties. No claim for extra work done or materials furnished by the Construction
Manager will be allowed by Buckeye except as provided herein, nor will the Construction Manager do
any work or furnish any material(s) not covered by this Agreement unless such work or material is first
authorized in writing by Buckeye. Work or material(s) furnished by the Construction Manager without
the Construction Manager hereby agrees that, without prior written authorization, no claim for
compensation for such work or materials furnished will be made.
4.4
Construction Phase General Services. The Construction Manager shall furnish any and all
labor, materials, equipment, transportation, utilities, services, and facilities required to perform all Work
for the construction of the Project, and to completely and totally construct the same and install the material
therein for Buckeye. All Work will be performed in a good and workmanlike and substantial manner
according to the standards set forth in Subsection 1.6(A) above. The Work shall be to the satisfaction of
Buckeye and strictly pursuant to an
and agreed to by Buckeye. The
Buckeye and shall have the necessary expertise and experience required to supervise the Work. The
Buckeye, but not less than once
each week, and shall be vested with the authority to act on behalf of the Construction Manager. The
y be replaced only with the written consent of Buckeye.
A.
Government Approvals and Permits.
1.
The Construction Manager shall be primarily responsible to obtain all
necessary permits, approvals, and licenses required for the prosecution of the Work from any
government or quasi-government entity having jurisdiction over the Project. The Construction
Manager is specifically reminded of the need to obtain the necessary environmental permits or file
the necessary environmental notices.
2.
Copies of the required permits and notices must be provided to Buckeye
Representative prior to starting the permitted activity. In the case of Fire Department permits, a
copy of the application for permit shall also be provided to Buckeye
provision does not constitute an assumption by Buckeye of an obligation of any kind for violation
of said permit or notice requirements.
3.
Buckeye shall be responsible for permit(s) and fees for building and
demolition permits. Buckeye will also pay review fees for grading and drainage, water, sewer,
and landscaping. Buckeye shall also pay for utility design fees for permanent services.
4.
The Construction Manager shall be responsible for all other permits and
review fees not specifically listed in Subsection 4.4(A)(1) above.
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5.
The Construction Manager is responsible for all water bills on the Project
meters until Substantial Completion of the Project. Arrangements for construction water are the
B.
Pre-construction Activities.
1.
Prior to the commencement of any Work, Buckeye
schedule a pre-construction conference. The purpose of this conference is to establish a working
relationship between the Construction Manager, utility firms, various Buckeye agencies, and other
entities as may be appropriate or beneficial. The agenda will include critical elements of the Work
and Master Schedule, submittal schedule, cost breakdown of major lump sum items, payment
requests and processing, coordination with the involved utility firms, the level of Project Record
Documents required, and emergency telephone numbers for all representatives involved in the
course of construction. Minimum attendance at the preconstruction conference shall be the
safety officer, and the individuals deemed necessary by Buckeye.
2.
The Notice to Proceed date will be set by Buckeye. At or after the pre-
construction conference and upon delivery of the required bonds and insurance in a Buckeye-
approved format or at such other time as Buckeye may elect, a Notice to Proceed letter will be
issued confirming the construction start date, the Contract Time, and the Substantial Completion
date. Failure by the Construction Manager to provide the properly executed bond and insurance
forms in a timely manner may delay the construction start date; however, it will not alter the
proposed Substantial Completion date nor be a basis for any time extension request or other claims.
3.
The Construction Manager shall update the Schedule of Values based on
the categories used in the buyout of the Work but not greater than the approved GMP; the update
shall identify the
. The Schedule of Values will subdivide
the Work into all items comprising the Work.
C.
Project Management.
1.
The Construction Manager shall refine the Construction Management Plan
for the Project. In refining the Construction Management Plan, the Construction Manager shall
consider Buckeye
, and design requirements for the Project. The Construction
Manager shall then develop various alternatives for the sequencing and management of the Project
and shall make recommendations to Buckeye. The Construction Management Plan shall also
include a description of the various proposal packages recommended for the Project. The
Construction Management Plan shall be presented to Buckeye for acceptance.
2.
The Construction Manager shall conduct periodic Project meetings attended
by Buckeye
, the Project Designers, and other necessary parties. Such meetings
shall serve as a forum for the exchange of information concerning the Project and the view of
construction progress. The Construction Manager shall prepare and distribute minutes of these
meetings to Buckeye
, the Project Designers, and others in attendance.
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3.
The Construction Manager shall coordinate transmittal of documents to
regulatory agencies for review and shall advise Buckeye of potential problems in completing such
reviews.
4.
The Construction Manager shall assist Buckeye in public relations activities
and shall prepare information for and attend public meetings regarding the Project.
D.
Reports.
1.
The Construction Manager shall prepare and distribute design phase change
reports monthly to Buckeye that shall list all Buckeye-approved Minor Adjustments and Change
Orders as of the date of the report and shall state the effect of the Minor Adjustments and Change
Orders on the Project budget and the Master Schedule.
2.
The Construction Manager shall prepare and distribute schedule
maintenance reports monthly to Buckeye comparing the actual and scheduled dates for
Project.
3.
The Construction Manager shall prepare and distribute the Project cost
reports monthly to Buckeye specifying actual award prices and construction costs for each of the
individually awarded components of the Project as compared to the Project budget.
4.
The Construction Manager shall prepare and distribute cash flow reports
monthly to Buckeye specifying actual cash flow for each of the individually awarded components
of the Project as compared to the projected cash flow.
5.
The requirements for filing reports set forth in this Subsection 4.4(D) shall
not be deemed to meet the requirements for requests for extensions of time or requests for Minor
Adjustments and Change Orders as set forth in Section 6 and Section 8 below.
4.5
Work Management.
A.
Construction Manager Resources. Unless otherwise provided in the Contract
Documents to be the responsibility of Buckeye or a separate contractor, the Construction Manager shall
provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up,
material, equipment, machinery, temporary utilities, and other temporary facilities to permit the
Construction Manager to complete the Work according to the Contract Documents. The Construction
Manager shall provide and maintain a management team on the Site to provide contract administration.
The Construction Manager shall establish and implement coordination and communication procedures
among the Construction Manager, Buckeye, the Project Designers, and Subcontractors.
B.
Means, Methods and Techniques. The Construction Manager shall perform all
construction activities efficiently and with the requisite expertise, skill, and competence to satisfy the
requirements of the Contract Documents. The Construction Manager shall at all times exercise complete
and exclusive control over the means, methods, sequences, and techniques of construction.
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C.
Supervisor Presence. The Construction Manager
or the
are taking place.
1.
All elements of the Work shall be under the direct supervision of a foreman
or his designated representative on the Site who shall have the authority to take actions required
to properly carry out that particular element of the Work.
2.
In the event of noncompliance with this Subsection, Buckeye may require
the Construction Manager to stop or suspend the Work in whole or in part.
D.
Manufacturer Requirements. Where the Contract Documents require that a
particular product be installed and/or applied by an applicator approved by the manufacturer, it is the
by the manufacturer.
E.
Measurements. Before ordering materials or doing work, the Construction
Manager and each Subcontractor shall verify measurements at the Site and shall be responsible for the
accuracy of such measurements. No extra charge or compensation will be allowed because of differences
between actual dimensions and the dimensions indicated on the plans; differences shall be submitted to
Buckeye for resolution before proceeding with the Work.
F.
Field Measurements and Conditions. The Construction Manager shall take field
measurements and verify field conditions and shall carefully compare such field measurements and
conditions and other information known to the Construction Manager with the Construction Documents
before commencing activities. Errors, inconsistencies, or omissions discovered shall be reported to
Buckeye immediately.
G.
Grades, Lines, Levels, and Bench Marks. The Construction Manager shall establish
and maintain all building and construction grades, lines, levels, and bench marks, and shall be responsible
for accuracy and protection of same. This Work shall be performed or supervised by a civil engineer or
surveyor licensed as such in the State of Arizona.
H.
Proper Employee Conduct. Any person employed by the Construction Manager or
any Subcontractor who, in the opinion of Buckeye, does not perform his work in a proper, skillful, and
safe manner, or is intemperate or disorderly, or is otherwise found to be inappropriate due to the setting
of the Site, shall, at the written request of Buckeye, be removed from the Site by the Construction Manager
or Subcontractor employing such person, and the person shall not be employed again in any portion of
Work without the written approval of Buckeye. The Construction Manager or Subcontractor shall hold
Buckeye harmless from damages or claims which may occur in the enforcement of this Subsection.
I.
Coordination of Activities. The Construction Manager shall coordinate the
activities of all Subcontractors. If Buckeye performs other work on the Project or at the Site with separate
contractors under Buckeye
the Construction Manager agrees to reasonably cooperate and
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coordinate its activities with those of such separate contractors so that the Project can be completed in an
orderly and coordinated manner without unreasonable disruption.
J.
Change Processing. The Construction Manager shall establish and implement
procedures for expediting and processing requests for information, Shop Drawings, material and
equipment sample submittals, contract schedule adjustments, Minor Adjustments, Change Orders,
substitutes, payment requests, and the maintenance of logs. The Construction Manager shall maintain
daily job reports. The Construction Manager shall be the party to whom requests for information,
submittals, Subcontractor schedule adjustments, substitutions, Minor Adjustment requests, Change Order
requests, and payment requests shall be submitted.
K.
Subcontractor Meetings. Periodically, the Construction Manager shall conduct
meetings at the Site with each Subcontractor. The Construction Manager shall conduct coordination
meetings with all Subcontractors. The Construction Manager shall record, transcribe, and distribute
minutes to all attendees, Buckeye, and the Project Designers.
L.
Coordination of Inspections and Testing. Technical inspection and testing provided
by the Project Designers or others who are not Subcontractors shall be coordinated with the Construction
Manager. The Construction Manager shall be provided a copy of all inspection and testing reports on or
before the next business day after the inspection or test. The Construction Manager is not responsible for
providing, nor does the Construction Manager control, the actual performance of such technical inspection
and testing. The Construction Manager is performing a coordination function and is not acting in a manner
so as to assume responsibility or liability, in whole or in part, for all or any part of such inspection and
testing.
M.
Self-Performed Work. The Construction Manager shall perform, with its own
forces, construction Work that amounts to not less than 45% of the total Contract Price for horizontal
construction projects. For the purposes of this paragraph, the total Contract Price for construction of the
Project (1) includes the total of the GMP amounts as agreed upon by the Construction Manager and
Buckeye, and (2) does not include the cost of preconstruction services, design services, or any other related
services, or the costs to procure any right-of-way or other costs of condemnation.
N.
No Subcontractor Reliance. Construction Manager shall ensure that each
Subcontractor (1) has inspected the Site and has thoroughly reviewed this Agreement as the same may be
revised by Buckeye, and is not relying on any opinions or representations of Buckeye, (2) agrees to
perform and complete the Work in strict accordance with this Agreement and under the Construction
Manager
3) agrees that any exclusions of any Work must be approved in writing by the
Construction Manager prior to acceptance of any agreement between the Construction Manager and a
Subcontractor or same shall not be excluded hereunder, (4) is responsible for all safety precautions and
programs and shall provide all protection and necessary supervision to implement said precautions and
programs as set forth in Section 4.13 below, (5) shall provide all competent supervision necessary to
execute all Work and any work incidental thereto in a thorough, first-class, workmanlike manner, and (6)
thereto conforms to, and is performed in accordance with, Applicable Law.
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O.
Subcontractor Change Request. The Construction Manager shall review the
contents of a request for changes to the subcontract time or price submitted by a Subcontractor, assemble
information concerning the request, and endeavor to determine the cause of the requests. In instances
where the Construction Manager
Construction Manager
shall prepare a detailed report to Buckeye for approval in accordance with Articles 6 and 8 below, as
applicable. The Construction Manager shall also prepare and timely deliver a detailed report to Buckeye
of other such requests and requests found to be invalid and timely inform the Subcontractor of any such
determination. The Construction Manager shall prepare the necessary change documents for signature by
the Subcontractor.
P.
Quality Control. The Construction Manager shall establish and implement a
program to monitor the quality of construction by itself and by Subcontractors. The purpose of the
program shall be to protect Buckeye against defects and deficiencies in the Work of the Construction
Manager or the Subcontractors. The Construction Manager shall reject the Work and transmit to the
Subcontractor a notice of nonconforming work when the Construction Manager believes the Work does
not conform to the requirements of the Contract Documents. Except for minor variations as stated herein,
the Construction Manager is not authorized as part of this service to change, enlarge, relax, alter, or release
any requirement of the Contract Documents or to approve or accept any portion of the Work not performed
in accordance with the Contract Documents.
Q.
Subcontractor Document Request. The Construction Manager shall coordinate and
expedite submittals of information from the Subcontractors for record drawings and specification
preparations and shall coordinate and expedite the transmittal of Project Record Documents to Buckeye.
R.
Traffic Control. All traffic affected by the Work under this Agreement shall be
regulated in accordance with the City of Buckeye Engineering Design Standards, as amended, the latest
edition of the United States Department of Transportation Manual on Uniform Traffic Control Devices
Arizona Supplement, published by the Arizona
City of Phoenix Traffic Barricade Manual (the
ections 12-2-1 and 19-1-
,
-construction conference, each Subcontractor shall designate an
employee who is well qualified and experienced in construction traffic control and safety to be responsible
for implementing, monitoring, and altering traffic control measures, as necessary. At the same time, the
Construction Manager will designate a representative who will be responsible to see that all traffic control
and any alterations are implemented and monitored to the extent that traffic is carried through the Work
area in an effective manner and that motorists, pedestrians, bicyclists, and workers are protected from
hazard and accidents. The Construction Manager shall ensure that Subcontractors adhere to the following:
1.
All traffic control devices and advance warning signs (such as REDUCE
SPEED AHEAD, LOOSE GRAVEL, 25 MPH SPEED LIMIT, and DO NOT PASS) required for
the Work under this Agreement shall be placed in accordance with the Traffic Control
Requirements.
2.
The Subcontractor shall provide, erect, and maintain all necessary flashing
arrow boards, barricades, suitable and sufficient warning lights, signals, and signs, and shall take
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all necessary precautions for the protection of the Work and safety of the public. The
Subcontractor shall provide, erect, and maintain acceptable and adequate detour signs at all
closures and along detour routes.
3.
All barricades and obstructions shall be illuminated at night, and all safety
lights shall be kept burning from sunset until sunrise. All barricades and signs used by the
Subcontractor shall conform to the standard design generally accepted for such purposes, and
payment for all such services and materials shall be considered as included in the other pay items
of the Agreement.
4.
The Subcontractor shall ensure that all existing traffic signs are erect, clean,
and in full view of the intended traffic at all times. Street name signs at major street intersections
shall be maintained erect at all times. If these signs should interfere with construction, the
Subcontractor shall notify Buckeye at least 48 hours in advance for Buckeye personnel to
temporarily relocate said signs. Buckeye will direct the Subcontractor as to the correct positions
to re-set all traffic and street name signs to permanent locations when notified by the Subcontractor
that construction is complete.
5.
When construction activities or traffic hazards at the Site require the use of
safely.
6.
Manual traffic control shall be in conformity with the Traffic Control
Requirements. Off-duty police officers must be scheduled through the Buckeye police department.
Buckeye will reimburse the Subcontractor for the actual, documented cost of the off-duty police
officers (no markups allowed). The Subcontractor will be required to present an overall estimate
of off-duty officer hours required with the submission of its construction schedule. In the event
the Subcontractor fails to prosecute the work in a timely manner, Buckeye shall notify the
Subcontractor and may deny reimbursement for the off-duty officer(s).
7.
accomplished using adjacent local streets when possible.
8.
Equipment used and/or directed by the Subcontractor shall travel with
traffic at all times. Supply trucks shall travel with traffic except when being spotted. The
Subcontractor shall provide a flagman or off-duty, uniformed law enforcement officer to assist
with spotting.
9.
During construction, it may be necessary to alter traffic control. Any such
alterations shall be in accordance with the Traffic Control Requirements.
10.
No street within the Project area may be closed to through traffic or to local
emergency traffic without
prior written approval. Buckeye may give written approval
at its sole discretion and only if sufficient time exists to allow for notification of the public at least
two Days in advance of such closing. Partial closure of streets within the Project shall be done in
strict conformity with Buckeye
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11.
Caution should be used when excavating near intersections with traffic
signal underground cable. The Subcontractor shall notify Buckeye 24 hours in advance of any
work at such intersections. The Subcontractor shall install and maintain temporary overhead
traffic signal cable as specified by Buckeye when underground conduit is to be severed by
excavations at intersections. The Subcontractor shall provide an off-duty uniformed City of
Buckeye police officer in accordance with Subsection 4.5(R)(6) above to direct traffic while the
traffic signal is turned off and the wiring is transferred. All damaged or modified traffic signal
overhead and underground items shall be repaired and restored to Buckeye
Magnetic detector loops shall, under no circumstances, be spliced.
12.
The Subcontractor shall accommodate local access to adjacent properties in
accordance with the specification set forth below.
13.
Where crossings of existing pavement occurs, no open trenches shall be
permitted overnight, but plating may be permitted if conditions allow, as determined by Buckeye
or its authorized representative in his sole discretion. If plates cannot be used, crossings shall
either be back-filled or the Subcontractor shall provide a detour.
4.6
Control of the Work Site.
A.
Debris Removal. Throughout all phases of construction, including suspension of
Work, the Construction Manager shall keep the Site reasonably free from debris, trash, and construction
wastes to permit the Construction Manager to perform its Construction Services efficiently, safely, and
without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or an
agreed-upon portion of the Work, the Construction Manager shall remove all debris, trash, construction
wastes, materials, equipment, machinery, and tools arising from the Work or applicable portions thereof
to permit Buckeye to occupy the Project or an agreed upon portion of the Project for its intended use.
B.
Dust Control. The Construction Manager shall implement dust control measures
in accordance with MAG Specifications, Subsection 104.1.4, and in accordance with the requirements of
the Maricopa County Air Pollution Control Rules and Regulations.
C.
Accessibility. The
accessibility requirements during construction activities in an occupied building or facility. ADA and
ANSI accessibility requirements shall include, but not be limited to, parking, building access, entrances,
exits, restrooms, areas of refuge, and emergency exit paths of travel. The Construction Manager shall be
responsible for the coordination of all work to minimize disruption to building occupants and facilities.
D.
Material and Equipment Storage. Only materials and equipment that are to be used
directly in the Work shall be brought to and stored on the Site by the Construction Manager. When
equipment or materials are no longer required for the Work, each shall be removed promptly from the
Site.
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E.
Protection of Site. Protection of the Work, the Site, and construction materials and
equipment stored at the Site from weather, theft, damage, and all other adverse conditions is solely the
responsibility of the Construction Manager.
4.7
Time Management.
A.
Master Schedule Updates. The Construction Manager shall, not less than monthly,
adjust and update the Master Schedule and distribute copies to Buckeye and the Project Designers. All
adjustments to the Master Schedule must be (1) made for the benefit of the Project, and (2) acceptable to
Buckeye; provided, however, that such adjustments or updates shall not extend the time for performance
of the Work beyond the Substantial Completion date unless such extension is requested by the
Construction Manager and approved by Buckeye in accordance with Section 6 below.
B.
Subcontractor Schedule Verification. The Construction Manager shall review each
the requirements of the Contract Documents and that it establishes completion dates that comply with the
requirements of the Master Schedule.
C.
Subcontractor Progress Monitoring. The Construction Manager shall (1) review
the progress of construction of each Subcontractor on a monthly basis, (2) evaluate the percentage
, and (3)
review such percentages with the Subcontractor. This evaluation shall serve as data for input to the
periodic construction schedule report that the Construction Manager shall prepare and distribute to the
appropriate Subcontractor, Buckeye
, and the Project Designers. The report shall serve
as the basis for (1) determining the actual progress compared to scheduled progress, and (2) determining
the progress payment due to the Subcontractor. The Construction Manager shall determine and implement
alternative courses of action that may be necessary to achieve contract compliance by the Subcontractor.
D.
Change Evaluation. The Construction Manager shall, prior to the issuance of a
Minor Adjustment or Change Order, determine the effect on the Master Schedule of time extensions
requested by a Subcontractor. The Construction Manager may require a Subcontractor to prepare and
submit a recovery schedule in the event the Subcontractor fails to meet the Master Schedule.
E.
Minor Schedule Revisions. The Master Schedule shall be revised as required by
conditions and progress of the Work, but such revisions shall not relieve the Construction Manager of its
obligations to complete the Work within the Contract Time, as such dates may be adjusted in accordance
with the Contract Documents.
F.
Payment Requests. An updated Master Schedule shall be submitted monthly to
Buckeye as part of the Payment Request.
1.
The Construction Manager shall provide Buckeye with a monthly status
report for the Master Schedule detailing the progress of the Work, including (a) if the Work is
proceeding according to schedule, (b) any discrepancies, conflicts, or ambiguities found to exist
in the Contract Documents that require resolution, and (c) other items that require resolution so as
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not to jeopardize ability to complete the Work as presented in the applicable GMP and within
the Contract Time.
2.
With each schedule submittal the Construction Manager shall include a
transmittal letter including the following:
a.
Description of problem tasks (referenced to field instructions and
requests for information), as appropriate.
b.
Current and anticipated delays including:
i.
Cause of the delay.
ii.
Corrective action and schedule adjustments to correct the
delay.
iii.
Known or potential impact of the delay on other activities,
milestones, and the Substantial Completion date.
c.
Changes in construction sequence.
d.
Pending items and status thereof including but not limited to:
i.
Time Extension requests.
ii.
Other items.
e.
Substantial Completion date status:
i.
If ahead of schedule, the number of Days ahead.
ii.
If behind schedule, the number of Days behind.
f.
Other project or scheduling concerns.
G.
Buckeye Review. Buckeye
Master Schedule is only
for general conformance with the scheduling requirements of the Contract Documents. The review shall
not (1) relieve the Construction Manager from (a) compliance with the requirements of the Contract
Documents, or (b) the time extension request process set forth in Section 6 below; or (2) be construed as
relieving the Construction Manager of its complete and exclusive control over the means, methods,
sequences, and techniques for executing the Work.
H.
CPM Diagram. The updated Master Schedule shall include a CPM diagram
schedule that shows the sequence of activities, the interdependence of each activity, and indicate the
Critical Path.
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1.
The CPM diagram schedule shall be in Days and indicate duration, earliest
and latest start and finish dates for all activities, and total Float times for all activities except critical
activities. The CPM diagram shall be presented in a time-scaled graphical format for the Project
as a whole.
2.
The CPM diagram schedule shall indicate all relationships between
activities.
3.
The activities making up the Master Schedule shall be in sufficient detail to
ensure that adequate planning has been done for proper execution of the Work and such that it
provides an appropriate basis for monitoring and evaluating the progress of the Work.
4.
The CPM diagram schedule shall be based upon activities that coincide with
the Schedule of Values.
5.
The CPM diagram schedule shall show all submittals associated with each
Work activity and the review time for each submittal.
6.
The schedule shall show milestones, including milestones for Buckeye-
furnished information, and shall include activities for Buckeye-furnished equipment and furniture
when those activities are interrelated with the Construction
activities.
7.
The schedule shall include a Critical Path activity that reflects anticipated
rain and weather delay during the performance of this Agreement. The duration shall reflect the
average climatic range and usual industrial conditions prevailing in the locality of the Site.
Weather data shall be based on information provided by the National Weather Services or other
source approved in writing by Buckeye.
I.
Occupancy Consideration. The Master Schedule shall consider Buckeye
occupancy requirements showing portions of the Project having occupancy priority.
J.
Float Time. Float time shall be as prescribed below:
1.
The total Float within the overall Master Schedule is not for the exclusive
use of either Buckeye or the Construction Manager, but is jointly owned by both and is a resource
available to and shared by both Parties as needed to meet contract milestones and the Project
completion dates.
2.
The Construction Manager shall not sequester shared Float through such
strategies as extending activity duration estimates to consume available Float, using preferential
logic, or using extensive crew/resource sequencing. Float time within the schedule is jointly
owned; no time extensions will be considered or granted, nor delay damages considered or paid
until a delay occurs that extends the Work beyond the Substantial Completion date.
3.
Buckeye-caused delays on the Project may be offset by Buckeye-caused
time savings (i.e., Critical Path submittals returned in less time than anticipated by the Master
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Schedule; approval of substitution requests and credit changes which result in savings of time to
the Construction Manager). In such an event, the Construction Manager shall not be entitled to
have considered or receive a time extension or delay damages until all Buckeye-caused time
savings are exceeded, and the Substantial Completion date is also exceeded.
K.
Occupancy/Use Plan. The Construction Manager shall prepare an occupancy plan
for the Project. This plan shall be provided to Buckeye not later than 60 Days prior to the scheduled
Substantial Completion date.
4.8
Cost Management.
A.
Subcontract Schedule of Values. The Construction Manager shall, in participation
with the Subcontractors, determine a Schedule of Values for each of the construction subcontracts. The
Schedule of Values shall be the basis for the allocation of the Contract Price to the activities shown on the
Buckeye shall approve the subcontract Schedule of Values before
acceptance for progress billings.
B.
Contract Price Allocation. Each
the applicable portions of the Contract Price
activities shall equal to or less than the total Contract Price. The Construction Manager shall review the
Contract Price allocations and verify that such allocations are made in accordance with the requirements
of the Contract Documents. Progress payments to a Subcontractor and the Construction Manager shall be
Contract Documents.
C.
Additional Information. In instances where a lump sum or unit price is not
determined prior to performing Work described in a request for changes to the Contract Price, the
Construction Manager shall request from the Subcontractor records for the cost of payroll, materials, and
equipment, and the amount of payments to its Subcontractors, if any, incurred by the Subcontractor in
performing the Work.
D.
Trade-off Studies. The Construction Manager shall provide trade-off studies for
various minor construction components. The results of the trade-off studies shall be in report form and
distributed to Buckeye
and the Project Designers.
E.
Payment Applications. In consultation with the Project Designers, the Construction
Manager shall review the payment applications submitted by each Subcontractor and determine whether
Construction Manager shall
make appropriate adjustments to each payment application and shall prepare and forward a progress
payment report to Buckeye. The progress payment report shall state the total Contract Price, payments to
date, current payment requested, retainage, and actual amounts owed for the current period. Included in
this report shall be a certificate for payment that shall be signed by the Construction Manager and delivered
to Buckeye. The Construction Manager shall keep the Project and the Site free and clear of all liens and
claims from its Subcontractors, suppliers, or materialmen.
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4.9
Shop Drawings, Product Data, and Samples.
A.
Purpose. Shop Drawings, product data, samples, and similar submittals are not
Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for
which submittals are required the way the Construction Manager proposes to conform to the information
given and the design concept expressed in the Contract Documents.
B.
Review. The Construction Manager shall review, approve, verify, and submit to
the Project Designers five copies, or electronic submission as mutually agreed upon, of each Shop
Drawing, product data, sample, and similar submittal required by the Contract Documents so as to cause
no delay in the Work or in the activities of Buckeye or of separate contractors. Submittals made by the
Construction Manager that are not required by the Contract Documents may be returned without action.
C.
Project Designer Approval. The Construction Manager shall perform no portion of
the Work requiring submittal and review of Shop Drawings, product data, samples, or similar submittals
until the respective submittal has been approved by the Project Designers. Such Work shall be in
accordance with approved submittals.
D.
Construction Manager Verification. By approving, verifying, and submitting Shop
Drawings, product data, samples, and similar submittals, the Construction Manager represents that the
Construction Manager has determined and verified materials, field measurements, and field construction
criteria related thereto, or will do so, and has checked and coordinated the information contained within
such submittals with the requirements of the Work and of the Contract Documents.
E.
No Deviation Approval; Errors. The Construction Manager shall not be relieved
of responsibility for deviations from requirements of the Contract Documents by the
approval of Shop Drawings, product data, samples, or similar submittals, unless the Construction Manager
has specifically informed the Project Designer in writing of such deviation at the time of submittal and
the Project Designer has given written approval to the specific deviation. The Construction Manager shall
not be relieved of responsibility for errors or omissions in Shop Drawings, product data, samples, or
similar submittals by the
approval thereof.
F.
Highlight Changes. The Construction Manager shall direct specific attention, in
writing or on resubmitted Shop Drawings, product data, samples, or similar submittals, to revisions other
than those requested by the Project Designers on previous submittals.
G.
Informational Submittals. Informational submittals upon which the Project
Designer is not expected to take responsive action may be so identified in the Contract Documents.
H.
Other Certifications. When professional certification of performance criteria of
materials, systems, or equipment is required by the Contract Documents, the Project Designer shall be
entitled to rely upon the accuracy and completeness of such calculations and certifications.
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4.10
Quality Control, Testing, and Inspection.
A.
New Materials. All materials used in the Work shall be new and unused, unless
otherwise noted, and shall meet all quality requirements of the Contract Documents.
B.
Inspection and Approval. All construction materials to be used in the Work or
incorporated into the Work, equipment, plant, tools, appliances, or methods to be used in the Work may
be subject to the inspection and approval or rejection by Buckeye or the Project Designers. Any material
rejected by Buckeye or the Project Designers shall be removed immediately and replaced in an acceptable
manner.
C.
Test Methods. The procedures and methods used to sample and test material will
be determined by the Project Designers. Unless otherwise specified, samples and tests shall be made in
accordance with MAG 700 Series and the standard methods of AASHTO or ASTM as referenced in the
MAG 700 Series.
D.
Testing Facility. The Construction Manager will select a pre-qualified independent
testing laboratory and will pay for initial Buckeye acceptance testing.
1.
When the first and subsequent tests indicate noncompliance with the
Contract Documents, the cost associated with that noncompliance and retesting will be paid for by
the Construction Manager. The
cannot be utilized for the
cost of re-testing.
2.
When the first and subsequent tests indicate noncompliance with the
Contract Documents, all retesting shall be performed by the same testing agency.
E.
Cooperation. The Construction Manager will cooperate with the selected testing
employees or agents access to the Work at all times.
F.
At-source Approval. At the option of Buckeye, materials may be approved at the
source of supply before delivery.
G.
Code Compliance. Code compliance testing and inspections required by codes or
ordinances, or by a plan approval authority shall be the responsibility of and shall be paid by the
Construction Manager, unless otherwise provided in the Contract Documents.
H.
Responsibility. The
shall be the sole responsibility of the Construction Manager and shall be paid solely by the Construction
Manager.
4.11
Trade Names and Substitutions.
A.
Substitutions. Substitute or alternate items to Contract Document references to
equipment, materials, or patented processes by manufacturer, trade name, make, or catalog number may
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be permitted, unless indicated that no substitutions are permitted, and if permitted are subject to the
following:
1.
The substitution shall be submitted by the Construction Manager in writing
to the Project Designers.
2.
The Construction Manager shall certify that the substitution will perform
the functions and achieve the results called for by the general design, be similar and of equal
substance, and be suited to the same use as that specified.
3.
The submittal shall outline any required changes in the Contract Documents
to adapt the design to the proposed substitution.
4.
The submittal shall contain an itemized estimate of all costs and credits that
will result directly and indirectly from the acceptance of such substitution, including the cost of
design, license fees, royalties, and testing. Also, the submittal shall include any request for
adjustment in the Contract Time created by the substitution.
B.
Samples; Additional Information. The Construction Manager, if requested by the
Project Designers, shall submit samples or any additional information that may be necessary to evaluate
the acceptability of the substitution.
C.
Project Designer Determination. The Project Designers will make the final
decision and will notify the Construction Manager in writing as to whether the substitution has been
accepted or rejected.
D.
Presumed Rejection. If the Project Designers do not respond in a timely manner,
the Construction Manager shall continue to perform the Work in accordance with the Contract Documents
and the substitution will be considered rejected.
4.12
Project Record Documents.
A.
Redline Prints. During the construction period, the Construction Manager shall
maintain at the Site a set of redline, blueline, or blackline prints of the Construction Documents and Shop
Drawings for Project Record Document purposes. Such documents can be store as accessible electronic
files. The Construction Manager will certify that these documents are up to date when it submits its
monthly pay application. The Construction Manager shall also:
1.
Mark these drawings to indicate the actual installation where the installation
varies appreciably from the original Construction Documents and give particular attention to
information regarding concealed elements that would be difficult to identify or measure and record
later. Items required to be marked include, but are not limited to:
a.
Dimensional changes to the drawings.
b.
Revisions to details shown on drawings.
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c.
Depths of foundations below first floor.
d.
Locations and depths of underground utilities.
e.
Revisions to routing of piping and conduits.
f.
Revisions to electrical circuitry.
g.
Actual equipment locations.
h.
Duct size and routing.
i.
Locations of concealed internal utilities.
j.
Changes made by Change Order or Minor Adjustment.
k.
Details not on original Contract Documents.
l.
Similar deviations, variations, and modifications.
2.
Mark completely and accurately Project Record Documents or Shop
Drawings, whichever is the most capable of indicating the actual physical condition. Where Shop
Drawings are marked, show cross-reference on the Construction Documents.
3.
Except for electronic files, mark Project Record Document sets with red
erasable colored pencil.
4.
Note Change Order or Minor Adjustment numbers, as required to identify
the source of the change to the Construction Documents.
5.
As a condition of Substantial Completion, submit Project Record
Documents and Shop Drawings to Buckeye Representative for review and comment.
B.
Corrections. Upon receipt of the reviewed Project Record Documents from
Buckeye, the Construction Manager shall correct any deficiencies and/or omissions to the drawings and
prepare the following for submission to Buckeye within 14 Days:
1.
A complete set of electronic Project Record Documents prepared in
AutoCAD format compatible with Buckeye CADD technology. The Project Designers will
provide files of the original Construction Documents to the Construction Manager for the use of
preparing these final Project Record Documents or the Construction Manager may contract with
the Project Designers to revise and update the electronic drawing files. Each drawing shall be
-
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2.
A copy of the Project Record Documents showing all redline mark-ups
against the original versions.
4.13
Project Safety. The Construction Manager recognizes the importance of performing the
Work in a safe manner so as to prevent damage, injury, or loss to (A) all individuals at the Site, whether
working or visiting; (B) the Work, including materials and equipment incorporated into the Work or stored
on-Site or off-Site; and (C) all other property at the Site or adjacent thereto.
A.
Responsibility. The Construction Manager assumes responsibility for
implementing and monitoring all safety precautions and programs related to the performance of the Work.
B.
Safety Representative. The Construction Manager shall, prior to commencing
construction, designate a safety representative with the necessary qualifications and experience to
supervise the implementation and monitoring of all safety precautions and programs related to the Work.
Unless otherwise required by the Contract Documents, the
safety representative
shall be an individual stationed at the Site who may have other responsibilities on the Project in addition
to safety.
C.
Daily Inspections. The
safety representative shall make
routine daily inspections of the Site and shall hold weekly safety meetings with the Construction
, and others as applicable. The Construction Manager shall provide
Buckeye copies of daily inspection reports and weekly safety meeting minutes, with the monthly payment
applications.
D.
Legal Requirements. The Construction Manager and Subcontractors shall comply
with Applicable Law relating to safety, as well as any Buckeye-specific safety requirements set forth in
the Contract Documents, provided that such Buckeye-specific requirements do not violate Applicable
Law. If the Construction Manager believes a Buckeye-specific requirement violates Applicable Law, the
Construction Manager shall notify Buckeye of such violation within 24 hours of discovery.
E.
Reporting. The Construction Manager will immediately report in writing any
safety-related injury, loss, damage, or accident arising from the Work to Buckeye
to the extent mandated by Applicable Law, to all government or quasi-government authorities having
jurisdiction over safety-related matters involving the Project or the Work.
F.
Subcontractor Responsibility. The
safety under this Section is not intended in any way to relieve Subcontractors of their own contractual and
legal obligations and responsibility for (1) complying with Applicable Law, including those related to
health and safety matters, and (2) taking all necessary measures to implement and monitor all safety
precautions and programs to guard against injury, losses, damages, or accidents resulting from their
performance of the Work.
4.14
Substantial Completion. When the Construction Manager considers that the Work has
reached Substantial Completion, it shall submit a request to Buckeye
of Substantial Completion. Substantial Completion must occur not later than the date set forth in the
applicable GMP Amendment, subject to modification by changes in the Contract Time according to
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Article 6 below. A prerequisite for Substantial Completion, over and above the extent of construction
completion required, is receipt by Buckeye of acceptable documentation that the Construction Manager
has successfully tested and demonstrated all systems for their intended uses. In consultation with the
Project Designers, Buckeye
substantially complete. The Substantial Completion date shall be confirmed by a Certificate of Substantial
Completion signed by Buckeye and the Construction Manager. The Certificate of Substantial Completion
shall state the respective responsibilities of Buckeye and the Construction Manager for security,
maintenance, and damage to the work and insurance. The Certificate of Substantial Completion shall also
include the Punch List as created by the Construction Manager and modified by the Project Designers in
consultation with Buckeye and establish the time for completion and correction of all Punch List items.
The Construction Manager shall proceed promptly to complete and correct Punch List items. Failure to
include an item on the Punch List does not alter the responsibility of the Construction Manager to complete
all Work in accordance with the Contract Documents. If Buckeye and the Construction Manager cannot
agree as to the appropriate Substantial Completion date, such issue shall be submitted for dispute
resolution in accordance with the procedures set forth in Article 13 below. Notwithstanding such
disagreement, the Construction Manager shall diligently proceed with completion of the Punch List items.
Warranties required by the Contract Documents shall commence on the Substantial Completion date or
designated portion thereof unless otherwise provided in the Contract Documents.
4.15
Final Completion. In consultation with the Project Designers, Buckeye shall determine
has reached Final Completion. Final Completion
must occur not later than 60 Days after the Substantial Completion date, subject to modification by
changes in the Contract Time in Article 6 below. Final Completion shall be achieved only upon Buckeye
written acceptance of (A) the construction, (B) all testing, (C) demonstration by the Construction Manager
that the Work functions as required by the Contract Documents and meets all Contract Document
requirements, (D) resolution of all outstanding system deficiencies and Punch List items, if any, (E)
delivery of all as-built documentation, drawings, completed Project Record Documents (with revisions
made after Substantial Completion), annotated submittals and design document deliverables, (F)
submittal, acceptance, and delivery of the 100% complete O&M manuals, (G) delivery of warranties,
guarantees, inspection certificates, bonds and all other required documents, (H) all pre-requisites for final
all required documentation. Upon Final Completion Buckeye shall issue a Certificate of Final Completion
to the Construction Manager on behalf of Buckeye. Following receipt of payment from Buckeye, the
Construction Manager shall make all payments due to the Subcontractors.
4.16
Correction of Defective Work.
A.
During the Work. During the Work, Construction Manager shall take meaningful
steps to commence correction of such nonconforming Work as notified by Buckeye. This includes the
correction, removal, or replacement of the nonconforming Work and any damage caused to other parts of
the Work affected by the nonconforming Work.
B.
During Warranty Period. The Construction Manager agrees to correct any Work
that is found to not be in conformance with the Contract Documents within the warranty period described
in Subsection 5.6(A) below, or within such longer period to the extent required by the Contract Documents
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or as may be allowed by law. A progress payment, or partial or entire use or occupancy of the Project by
Buckeye, shall not constitute acceptance of Work not in accordance with the Contract Documents.
C.
Commencement by Construction Manager. The Construction Manager shall take
meaningful steps to commence correction of nonconforming Work subject to Subsections 4.16(A) and (B)
above within seven Days of receipt of written notice from Buckeye. This includes the correction, removal,
or replacement of the nonconforming Work and any damage caused to other parts of the Work affected
by the nonconforming Work. If the Construction Manager fails to commence the necessary steps within
such seven-Day period, Buckeye, in addition to any other remedies provided under the Contract
Documents or allowed by law, may provide the Construction Manager with written notice that Buckeye
will commence correction of such nonconforming Work with its own forces. If Buckeye corrects such
nonconforming Work with its own forces, the GMP will be adjusted to deduct the cost to Buckeye. If
Buckeye performs corrective Work after final payment, the Construction Manager shall be responsible for
all reasonable costs incurred by Buckeye in performing such correction.
D.
Emergencies. In the event nonconforming Work creates an emergency requiring
an immediate response, the Construction Manager will respond and initiate corrections within 24 hours.
E.
No Effect on Limitations Period. The two-year period referenced in
Subsection 5.6(A) below applies only to the
Work as provided in this Section and is not intended to constitute a period of limitations for any other
rights or remedies Buckeye may have regarding the
Contract Documents or as may be allowed by law.
4.17
Additional Services. Any Additional Services must be authorized in advance by Buckeye
in writing; the Construction Manager shall furnish or obtain from others such authorized services. The
Construction Manager shall be paid for these Additional Services by Buckeye as herein provided to the
extent they exceed reasonably inferable obligations of the Construction Manager under this Agreement.
Potential Additional Services include:
A.
Planning. Providing additional planning surveys or alternative site evaluations
other than as required or reasonably inferred in this Article 4.
B.
Future/Outside of Project Design. Providing design services relative to future
facilities, systems, and equipment that are not intended to be constructed as part of the Project, other than
general planning and master planning for future work as indicated by Buckeye
Providing design and engineering of any work outside the Site if said work is not expressly identified and
included in the Scope.
C.
Major Document Revisions/Additional Documents. Making major revisions in the
Construction Documents, or other documents when such revisions are inconsistent with written approvals
or instructions previously given by Buckeye, or are due to causes beyond the control and without the fault
and negligence or partial fault or negligence of the Construction Manager or its consultants or agents.
Preparing additional documents for alternate, separate, or sequential bids, or providing services in
connection with bidding, negotiation, or construction prior to the completion of the construction phase,
other than as required or reasonably inferred in this Article 4. Making revisions to Construction
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Documents after Buckeye has approved them when revisions are due to causes beyond the control and not
the fault or partial fault of the Construction Manager.
D.
Advanced Soils Analysis. Providing additional soils sampling, classification, and
analysis other than as required or reasonably inferred in the foregoing sections of Article 4. The
Construction Manager is entitled to rely upon the soils analysis and recommendations as provided by a
geotechnical consultant, however, the Construction Manager is responsible for interpretation of such data
for the purpose of establishing the means and methods of construction and such interpretation shall not be
considered Additional Services during the design phase or the construction phase.
E.
Expert Testimony. Preparing to serve or serving as an expert witness for Buckeye
in connection with any public hearing, arbitration proceeding, or legal proceeding wherein the
Construction Manager or Subcontractor of the Construction Manager is not a party or allegedly at fault;
provided, however, preparing to serve or serving as a fact witness for Buckeye or rendering testimony
necessary to secure governmental approval for the Project shall not constitute an additional service.
F.
Survey. Providing surveying services such as platting, mapping, subdivision
agreements, or recording subdivision plats other than as required or reasonably inferred in this Article 4.
G.
Additional Travel. Providing Additional Services and costs necessitated by out-of-
town travel required of and approved in writing by Buckeye other than visits to the Project and other than
for travel required to accomplish the Work.
H.
Unrelated Services. Providing any other services not otherwise included in this
Agreement, not reasonably inferred by this Agreement, or not customarily furnished in accordance with
generally accepted contractual practices consistent with the term of this Agreement.
I.
Replacement Work. Providing consultation concerning replacement of Work
damaged by fire or other causes and not due in whole or in part to the
inaction during construction, or furnishing services required in connection with the replacement of such
work.
J.
Special Studies. Providing additional special surveys, environmental studies, and
submissions required for approvals of governmental authorities or others having jurisdiction over the
Project, other than as required or reasonably inferred in this Article 4.
K.
O&M Analysis. Providing analyses of operating and maintenance costs other than
as required for value analysis in Subsection 2.2(E) above, unless provided for in the Scope.
L.
Assisting with Buckeye-Performed Work. Designing and providing other services
supporting the procurement of materials to be obtained, or work, if any, to be performed by Buckeye, that
are not a part of the Work.
ARTICLE 5
POST-CONSTRUCTION PHASE
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5.1
Final Accounting and Close-out. At the conclusion of the Project, the Construction
Manager shall prepare final Project accounting and close-out reports.
5.2
Occupancy Plans. The Construction Manager shall prepare and distribute reports as
necessary associated with the occupancy plan.
5.3
Certificates. The Construction Manager shall secure required certificates of inspection,
testing, or approval and deliver them to Buckeye.
5.4
Manufacturer Manuals and Warranties. The Construction Manager shall require the
, and
guarantees for materials and equipment installed in the Project. Prior to Final Completion of the Project,
the Construction Manager shall compile such manuals, warranties, and guarantees, bind same in an
organized manner, and deliver the bound materials to Buckeye; Buckeye shall not be required to issue the
final payment to the Construction Manager pursuant to Section 9.6 below until after the compiled manuals,
warranties, and guarantees have been delivered to Buckeye. At the discretion of Buckeye, electronic
records may be substituted for the bound materials required in this section.
5.5
Inspection and Testing. With the assistance of Buckeye
Construction Manager shall direct the inspection of utilities and operations of systems and equipment for
readiness, and assist in their initial start-up and testing.
5.6
Warranties.
A.
Warranty for the Work. The Construction Manager or its assignee shall give to
Buckeye a two-year warranty against deficiencies in material and workmanship for all Work on the Project
or other such warranty as required by Buckeye Engineer, which warranty shall begin on the Substantial
Completion date. Any material deficiencies in material or workmanship identified by Buckeye staff
during the two-year warranty period shall be brought to the attention of the Construction Manager or its
assignee that provided the warranty, which both shall promptly remedy or cause to be remedied such
deficiencies to the reasonable satisfaction of Buckeye Engineer. Continuing material deficiencies in a
particular portion of the Work shall be sufficient grounds for Buckeye to require (1) an extension of the
warranty for an additional two-year period, and (2) the proper repair of, or the removal and reinstallation
of, that portion of the Work that is subject to such continuing deficiencies. Regardless of whether the
applicable warranty period has expired, the Construction Manager agrees to repair any damage to the
Work caused by construction activities on the Site. Nothing contained herein shall prevent Buckeye or
the Construction Manager from seeking recourse against any other third party for damage to the Work
caused by such third party.
B.
New Materials. The Construction Manager warrants that all materials and
equipment furnished under construction phase(s) of this Agreement are (1) new unless otherwise specified
and approved by Buckeye, (2) of good quality, (3) in conformance with the Contract Documents, and (4)
free from defective workmanship, defective materials, and Hazardous Materials. Warranties shall
commence on the date of Substantial Completion of the Work or of a designated portion if the warranted
items are fully installed, operational, and available for use, and if not, at such time after the date of
Substantial Completion as they are fully installed, operational, and available for use.
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C.
Actions by Others.
caused by abuse, alterations, or failure to maintain the Work by persons other than Construction Manager
or anyone for whose acts Construction Manager may be responsible and/or liable.
D.
No Limitation on Other Warranties. Nothing in this warranty is intended to limit
Buckeye with greater warranty rights than set forth in this
Section or the Contract Documents.
E.
No Limitation on Legal Remedies. Nothing in this warranty is intended to limit
any other remedy at law that may be available to Buckeye.
ARTICLE 6
CONTRACT TIME
6.1
Progress and Completion. Buckeye and the Construction Manager agree the time limits
stated in the Contract Documents, as the same may be amended and updated by the Parties, are of the
essence of this Agreement.
6.2
Commencement of the Work. The Work, except for the (A) environmental investigation
services set forth in Section 2.1 above, (B) review of Construction Documents and design remedies
services set forth in Section 2.2 above, and (C) Pre-Construction Phase General Services set forth in
Section 2.3 above, shall commence on the Notice to Proceed date of the applicable GMP Amendment,
and shall proceed in general accordance with the Schedule for the Work set forth therein. Each GMP
Amendment shall establish a separate Notice to Proceed date, Substantial Completion date, and portion of
the Contract Time applicable to that GMP. The Substantial Completion dates may be sequential or may
run consecutively.
6.3
Prosecution of the Work. The Construction Manager shall prosecute the Work so that the
portion of the Work completed at any point in time shall be not less than as required by the Master
Schedule. If the delay is an Inexcusable Delay, as defined below, the Construction Manager shall prepare
a recovery schedule for Buckeye
Construction Manager will
compensate for the delays and achieve Substantial Completion by the date shown on the Master Schedule.
If the Construction Manager is unable to demonstrate how it will overcome Inexcusable Delays, Buckeye
may order the Construction Manager to employ such extraordinary measures as are necessary to bring the
Work into conformity with the date of Substantial Completion set forth therein, the costs of which shall
be included as part of the Cost of the Work. If the delay is an Excusable Delay, as defined below, Buckeye
shall either (A) authorize an equitable extension in the Master Schedule to account for such delay, and
equitably adjust the GMP on account of such delay, or (B) request that the Construction Manager prepare
a recovery schedule showing how (if possible) the Construction Manager can achieve Substantial
Completion by the date shown on the Master Schedule, and equitably adjust the applicable GMP in
accordance with the Change Order provisions of this Agreement related to any extraordinary activities
required of the Construction Manager on account of such recovery schedule.
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6.4
Critical Path Activities. To the extent the Construction Manager completes activities on
the Critical Path earlier than scheduled, the savings in time on account thereof shall belong solely to the
Construction Manager.
6.5
Construction Activities. At such time as the Construction Documents, or any portion
thereof, are complete, the Construction Manager shall submit a revised Master Schedule to Buckeye for
incorporation into the Contract Documents, which will expand the Master Schedule approved to date, but
which will not, in and of itself, change the Substantial Completion date for the Project. This revised
Master Schedule shall be based upon a CPM and shall show in complete detail starting and completion
time of detail activities, the sequence of the Work, and all significant activities.
6.6
Extensions of Time.
A.
Limited to Excusable Delay. An extension in the scheduled Substantial Completion
date will only be granted in the event of Excusable Delays affecting Work activities on the Critical Path.
The Construction Manager shall be entitled to general condition costs and extra costs related to the
Excusable Delay for idle labor, equipment inefficiency, and lost productivity of the performance of the
Work; however, the Construction Manager must submit evidence reasonably satisfactory to Buckeye
substantiating such costs. Such adjustment to the contract sum and Substantial Completion date shall be
issued in an amendment to this Agreement.
B.
Excusable Delays. To the extent any of the following events results in an actual
delay in the Work affecting activities on the Critical P
1.
Delays resulting from Force Majeure events. The term
means an occurrence that is beyond the control of the Party affected and occurs without its fault
or negligence. Without limiting the foregoing, Force Majeure includes acts of God, acts of the
public enemy, war, riots, strikes, mobilization, labor disputes, civil disorders, fire, floods, lockouts,
injunctions-intervention-acts or failures or refusals to act by government authority, and other
similar occurrences beyond the control of the Party declaring Force Majeure which such Party is
unable to prevent by exercising reasonable diligence. The Force Majeure shall be deemed to
commence when the Party declaring Force Majeure notifies the other Party, in accordance with
Subsection 14.6, of the existence of the Force Majeure and shall be deemed to continue as long as
the results or effects of the Force Majeure prevent the Party from resuming performance in
accordance with this Agreement. Force Majeure shall not include (a) late delivery of equipment
the market, inefficiencies, or similar occurrences, or (b) late performance by a Subcontractor
unless the delay arises out of a Force Majeure occurrence in accordance with this
Subsection 6.6(B). Any delay or failure in performance by either Party hereto shall not constitute
default hereunder or give rise to any claim for damages or loss of anticipated profits if, and to the
extent that such delay or failure is caused by Force Majeure. The delayed Party shall cause such
delay to cease as soon as practicable and shall notify the other Party in writing. The time of
Substantial Completion or Final Completion shall be extended by written amendment for a period
of time equal to the time that the results or effects of such delay prevent the delayed Party from
performing in accordance with this Agreement.
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2.
Differing, unusual, or concealed Site conditions that could not reasonably
have been anticipated by the Construction Manager in preparing the Master Schedule, including,
without limitation, archaeological finds and unusual soil conditions (including rock or other
geological conditions), underground foundations, abandoned or not properly identified utility
lines, and water conditions.
3.
Delays resulting from the existence or discovery of Hazardous Materials on
the Site not brought to the Site by or on behalf of the Construction Manager.
4.
Delays resulting from changes in Applicable Law occurring after the date
of execution of this Agreement.
5.
Delays occurring due to the acts or omissions of Buckeye and those within
the control of Buckeye.
6.
Delays occurring due to the acts or omissions of a utility, so long as the
Construction Manager has coordinated with the utility causing the delay, and the delay occurs
despite reasonable steps taken by the Construction Manager to avoid the delay.
7.
Delays resulting from weather conditions that make it unreasonable to
perform the Work in accordance with the Master Schedule.
C.
Process for Requesting Extension of Time. To obtain an extension of time due to
an Excusable Delay, the Construction Manager must comply with the following requirements: the
Construction Manager shall notify Buckeye of the Excusable Delay as soon as practicable, but in no event
more than seven Days after the Construction Manager becomes aware of the occurrence of the Excusable
Delay. Such notice shall describe the Excusable Delay and shall state the approximate number of Days
the Construction Manager expects to be delayed. After the cessation of the Excusable Delay, the
Construction Manager shall notify Buckeye of the number of Days the Construction Manager believes
that its activities were in fact delayed by the Excusable Delay. In the event that the delay arises as a result
of a Change Order request by Buckeye, the request for an extension of time contained in the resulting
Change Order proposal or amendment to this Agreement, as applicable, shall be deemed sufficient for
purposes of this Subsection.
D.
Buckeye Determination. Within 10 Days after cessation of an event giving rise to
either an Excusable Delay or Inexcusable Delay, the Parties will use good faith efforts to agree on the
extent to which the Work has been delayed and whether the delay is an Excusable Delay or an Inexcusable
Delay. In the absence of agreement between the Parties as to the then-current status of Excusable Delays
and Inexcusable Delays, Buckeye will provide the Construction Manager with written notice of Buckeye
determination of the number of Days of Excusable Delay and/or Inexcusable Delay within 10 Days after
receipt by Buckeye of the Construction Manager
Construction Manager shall not, however, deem an issuance by Buckeye of such a determination to be a
concurrence with any matters set forth in the Construction Manager
. The Construction Manager
may invoke the dispute resolution procedures set forth in Article 13 below with respect to such
determination.
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6.7
Concurrent Delays. To the extent the Construction Manager may be entitled to an
extension of time due to an Excusable Delay, but the performance of the Work would have been
suspended, delayed, or interrupted by the fault or neglect of the Construction Manager or by an
Inexcusable Delay, the Construction Manager shall not be entitled to any additional costs for the period
of such concurrency.
6.8
Weather Delays. The Construction Manager shall include and clearly identify an
appropriate number of Days of weather-related delays within (A) the aggregate Master Schedule for the
Work, and within the portions of the Master Schedule submitted with each GMP Proposal relating to any
phase of the Project, and (B) each GMP Amendment. If the Construction Manager experiences additional
weather-related delays beyond the number of Days set forth in the Master Schedule and the GMP
Amendment, the Construction Manager shall be entitled to commensurate extension of time and
reimbursement of costs associated with such delay; provided such requests for extensions of time are
submitted and approved according to the process set forth in Section 6.6 above. If the Construction
Manager fails to include an appropriate number of Days of weather-related delays within the applicable
GMP Proposal for any portion of the Project, the Construction Manager shall not be eligible for any
extension of time or reimbursement of costs related to otherwise Excusable Delays relating to weather for
the applicable GMP Proposal.
6.9
Liquidated Damages.
A.
Established. The Construction Manager and Buckeye acknowledge that in the
event that the Construction Manager fails to achieve Substantial Completion or Final Completion of the
Project by the dates established therefore in the applicable GMP Amendment, as adjusted, Buckeye will
incur substantial damages and the extent of such damages shall be incapable of accurate measurement.
Nonetheless, the Parties acknowledge that on the date of this Agreement, the amount of liquidated
damages set forth below represents a good faith estimate as to the actual potential damages that Buckeye
would incur as a result of late Substantial Completion or Final Completion of the Project. Such liquidated
damages shall be the sole and exclusive remedy of Buckeye for late completion of the Project, and
Buckeye hereby waives all other remedies available at law or in equity with respect to losses resulting
from late completion. The amount of the liquidated damages calculated hereunder does not include any
penalty.
B.
Amount of Liquidated Damages.
1.
If the Construction Manager fails to achieve Substantial Completion of that
portion of the Work applicable to a particular GMP Proposal on or before the Substantial
Completion date set forth in the applicable GMP Proposal, as adjusted, for any reason other than
Excusable Delays, the Construction Manager shall pay to Buckeye liquidated damages in the
amount per Day as determined by the MAG Specifications existing on the date this Agreement is
approved by Buckeye City Council for each Day Substantial Completion is delayed beyond the
Substantial Completion date set forth in the applicable GMP Amendment.
2.
If the Construction Manager fails to achieve Final Completion of that
portion of the Work applicable to a particular GMP Proposal on or before the Final Completion
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date, as adjusted, for any reason other than Excusable Delays, the Construction Manager shall pay
to Buckeye liquidated damages in the amount per Day as determined by MAG Specifications for
each Day Final Completion is delayed beyond the Final Completion date established according to
the applicable GMP Amendment.
3.
In no case may the amount of liquidated damages due under this Subsection
6.9(B) for any single Day of delay exceed the highest amount, as determined according to MAG
Specifications, that would be charged for any single Inexcusable Delay existing on such Day.
4.
Payment of liquidated damages is to be made contemporaneously with any
required payment to the Construction Manager, and such payments may be offset against each
other.
ARTICLE 7
CONTRACT PRICE
7.1
Pre-construction Phase Compensation.
A.
. The cost of services performed directly
by the Project Designers are not included in the Construction Manager
B.
Amount. Buckeye shall pay the Construction Manager an amount not-to-exceed
Three Hundred Seventy-Three Thousand One Hundred Fifty-Three Dollars and Sixty Cents
($373,153.60) for services performed during the Pre-construction Phase, as set forth in Article 2 above,
and as more particularly described in the Pre-Construction cost summary, attached hereto as Exhibit G
and incorporated herein by reference, including all cost items, allowances, and reimbursable expenses.
C.
Equitable Adjustment. Compensation of Pre-construction Services shall be
equitably adjusted if such services extend beyond July 31, 2026, for reasons beyond the reasonable control
and not the fault or partial fault of the Construction Manager or as provided in Section 8.2 below. For
changes in Pre-construction Services, compensation shall be adjusted as mutually agreed upon by Buckeye
and the Construction Manager at the time of such extended services.
D.
Payments. Payments for Pre-construction Services shall be due and payable within
30 Days following approval of the Construction Manager
Buckeye. Payments due
the Construction Manager that are unpaid for more than 30 Days from the due date of the invoice shall
bear interest at the statutory rate.
7.2
Construction Phase Compensation. The portion of Contract Price applicable to the
Construction Services shall be the aggregate of all approved GMP Amendments.
A.
GMP. The Guaranteed Maximum Price is composed of the Direct Construction
Costs and the Construction Fee. The Construction Manager is at risk to cover any additional Project costs.
To the extent the combined total of the Direct Construction Costs and the Construction Fee at the
conclusion of the Project is less than the GMP, the difference shall be retained by Buckeye.
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B.
GMP Adjustment. If a GMP requires an adjustment due to changes in the Work,
the cost of such changes is determined subject to Article 8. The markups permitted on such changes shall
be no greater than the markups delineated in the approved GMP.
C.
Buckeye
. Buckeye
discretion of Buckeye to cover any increases in Project costs that result from Buckeye-directed changes
or unforeseen Site conditions. Buckeye
approved in conjunction with the applicable
GMP Amendment but will not be included in the full Contract Price. Markups for Construction Fee and
taxes will be applied by the Construction Manager at the time that Buckeye
The
amount of contingency for each GMP amendment will be negotiated separately.
D.
Payment Data. The Construction Manager shall submit to Buckeye, upon request,
all payrolls, reports, estimates, records, and any other data concerning the Work performed or to be
performed, or concerning materials supplied or to be supplied, as well as Subcontractor or Consultant
payment applications or invoices,
or Consultant progress payment checks. The
requirements of this Section shall be included in all contracts between the Construction Manager and its
Subcontractors and Consultants. Buckeye may exercise its rights under this Section as often as reasonably
necessary in Buckeye
Buckeye has a complete and accurate understanding of
all Project costs.
7.3
Adjustment in the Contract Price. Adjustment to the respective components of the Contract
Price shall be made as follows:
A.
Changes in the Work. For changes in the Work as provided in Article 8 below, the
applicable Contract Price shall be adjusted as mutually agreed by the Parties, in writing, prior to
commencement of any work pursuant to such changes.
B.
Delays in the Work. For delays in the Work not caused, in whole or in part, by the
Construction Manager, Subcontractors, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, there will be an equitable adjustment in the Contract Price to compensate
the Construction Manager for increased expenses due to unforeseeable circumstances, according to the
requirements of Article 6 above.
C.
Replacement Work. If the Construction Manager is placed in charge of managing
the replacement of an insured or uninsured loss not caused by or the fault of the Construction Manager or
other parties identified in Subsection 7.3(B) above, the Construction Manager shall be paid an additional
fee in the same proportion that the applicable portion of the Contract Price bears to the estimated
applicable Cost of the Work, or as otherwise agreed to by the Parties.
ARTICLE 8
CHANGES IN THE WORK
8.1
Prescribed Methods for Changes. Changes in the
only be made by a written Minor Adjustment or Change Order to this Agreement signed by Buckeye and
the Construction Manager. Changes involving (A) a change in the lump sum for the Pre-Construction
Services set forth in Section 7.1 above, or (B) a change in any GMP, shall be considered a Change Order
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and must be approved as an amendment to this Agreement and executed by Buckeye and the Construction
Manager. The Construction Manager shall not (A) perform any additional Services, or (B) eliminate any
duties included in the Services until a written amendment addressing the Change Order has been properly
approved and executed by both Parties. The Construction Manager shall proceed to perform the Services
required by the Change Order only after receiving written notice from Buckeye directing the Construction
Manager to proceed.
8.2
Change Control System. The Construction Manager shall establish and implement a
change control system. All proposed changes shall first be described in detail in writing by the requesting
party. The requesting party shall submit detailed information to the Construction Manager for evaluation
concerning the costs and time adjustments, if any, necessary to perform the proposed changed work. The
Construction Manager shall discuss the proposed change with the appropriate Subcontractor and endeavor
to de
applicable GMP. The Construction Manager shall make a recommendation to Buckeye pursuant to this
Article 8 prior to Buckeye
change requests.
8.3
Minor Adjustments; Change Orders; GMP Adjustments. Changes in the Work that are
within the general scope of this Agreement may be accomplished by Minor Adjustment without
invalidating this Agreement; provided, however, that any change in the Work that will result in an increase
to a GMP or extension of the Substantial Completion date shall be pursuant to a Change Order approved
by a written amendment to this Agreement clearly delineating the amounts attributable to compensation
for the General Conditions Costs, the Construction Fee and other Cost of the Work.
8.4
Determination of Cost. An increase or decrease in a GMP resulting from a change in the
Work shall be determined by one or more of the following methods:
A.
Unit prices set forth in this Agreement or as subsequently agreed.
B.
Mutually accepted, itemized lump sum.
C.
Costs determined as defined in Article 3 above.
D.
If an increase or decrease cannot be agreed to as set forth in Subsections 8.4(A) and
(B) and Buckeye issues a written order for the Construction Manager to proceed with the change, the cost
of the change in the Work shall be determined by the reasonable expense or savings of the performance
of the Work resulting from the change.
8.5
No Obligation to Perform. The Construction Manager shall not be obligated to perform
changed Work until a Minor Adjustment or a Change Order/amendment to this Agreement, as applicable,
has been executed by Buckeye and the Construction Manager, except as provided in Subsection 8.4(D)
above.
8.6
Adjustment of Unit Prices. If a proposed change alters original quantities to a degree that
application of previously agreed to unit prices would be inequitable to either Buckeye or the Construction
Manager, the unit prices shall be equitably adjusted, and, if the result is an increase to a GMP, an
amendment to this Agreement shall be executed.
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8.7
Unknown Conditions. If, in the performance of the Work, the Construction Manager or its
Subcontractor finds latent, concealed, or subsurface physical conditions that (A) differ from the conditions
the Construction Manager or its Subcontractor should have reasonably anticipated, (B) differ substantially
from available soils reports, or (C) differ substantially and materially from those normally encountered
and generally recognized as inherent in the kind of work provided for in this Agreement at this location
(occurrence of shifting and expansive soils, including clay soils and sandstone expressly noted as
commonly occurring in the Project area), then the applicable GMP compensation and/or the Substantial
Completion date may be equitably adjusted only if the Construction Manager notifies Buckeye within
seven Days after the conditions are first observed in accordance with Article 6 above.
8.8
Emergencies. In any emergency affecting the safety of persons and/or property, the
Construction Manager shall act, at its discretion, to prevent threatened damage, injury, or loss. Any
change in a GMP, compensation for Pre-construction Services, the Contract Price, and/or extension of the
Substantial Completion date on account of emergency work shall be determined as provided in this
Agreement.
ARTICLE 9
PAYMENT
9.1
Progress Payments.
A.
Submittal Process. On or before the 15th day of each month after the construction
phase has commenced, the Construction Manager shall submit to Buckeye
consisting of the Cost of the Work performed up to the end of the prior month, including the cost of
material stored on the Site or at other locations approved by Buckeye, along with a proportionate share of
the Construction Fee. For the purpose of audit, prior to submission of the next Application for Payment,
the Construction Manager shall make available at the request of Buckeye a statement accounting for the
disbursement of funds received under the previous Application. The form and extent of such statement
shall be as agreed upon between Buckeye and Construction Manager.
B.
Buckeye
. Within seven Days after approval of each monthly
Application for Payment, Buckeye shall pay directly to the Construction Manager the appropriate amount
for which Application for Payment is made, less amounts (1) previously paid by Buckeye, (2) sufficient
to pay expenses Buckeye reasonably expects to incur in correcting deficiencies that are set forth in writing
and provided to the Construction Manager, and (3) any retainage as set forth in Section 9.2 below.
C.
No Liens. The Construction Manager warrants and guarantees that the title to all
Work, materials, and equipment covered by an Application for Payment, whether incorporated in the
Project or not, will pass to Buckeye upon receipt of such payment by the Construction Manager free and
clear of all liens, claims, security interests, or encumbrances.
Manager shall complete and submit a Lien Release, in a form substantially similar to the form attached
hereto as Exhibit J, with each Application for Payment.
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D.
Non-Conforming Work. Buckeye
, or use of the
Project, whether in whole or in part, shall not be deemed as acceptance of any Work not conforming to
the requirements of this Agreement or the Contract Documents.
E.
Unfinished Items. Upon Substantial Completion of the Work, Buckeye shall pay
the Construction Manager the unpaid balance of the Cost of the Work, General Conditions Costs, and the
Construction Fee, less a sum equal to the Construction Manager
unfinished items as agreed to between Buckeye and the Construction Manager as to extent and time for
completion. Buckeye thereafter shall pay the Construction Manager monthly the amount retained for
unfinished items as each item is completed.
9.2
Retainage.
A.
Exceptions to Retainage Requirement. No retainage shall be withheld with respect
to gross receipts tax and premiums for bonds and insurance.
B.
Amount Retained. With respect to the Work, Buckeye shall retain 10% of the
amount of each estimate until Final Completion and acceptance of all material, equipment, and work
covered by the Contract Documents.
1.
Any securities submitted by the Construction Manager in lieu of retainage
as may be allowed by law, shall be deposited in an escrow account by Buckeye. Buckeye shall be
listed as payee or multiple payee with the Construction Manager on all such securities.
2.
When the Work is 50% completed, one-half of the amount retained,
including any securities substituted pursuant to Subsection 9.2(B)(1), shall be paid to the
Construction Manager upon the Construction Manager
Construction
Manager is making satisfactory progress on the Work and there is no specific cause or claim
requiring a greater amount to be retained. After the construction Work is 50% completed, no more
than 5% of the amount of any subsequent progress payments made under the Contract Documents
may be retained, provided the Construction Manager is making satisfactory progress on the
Project. If, at any time, Buckeye determines satisfactory progress is not being made, 10% retention
shall be reinstated for all progress payments made under the Contract Documents after the
determination.
9.3
Payment for On-site and Off-site Stored Materials. Payment shall be made on account of
materials and equipment delivered and suitably stored at the Site for subsequent incorporation in the Work.
Payment may similarly be made for materials and equipment suitably stored off the Site, conditioned upon
the Construction Manager furnishing evidence to the Owner that (A) title to the materials and equipment
will pass to Buckeye upon payment therefore, (B) the materials and equipment are adequately insured,
and (C) such other matters as Buckeye may reasonably request in order to protect its interests.
9.4
Title to Construction Work. The Construction Manager warrants that title to all Work
covered by an Application for Payment shall pass to Buckeye no later than the time of payment. The
Construction Manager further warrants that, upon submittal of an Application for Payment, all Work for
which Applications for Payment have been previously issued and payments received from Buckeye shall
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be free and clear of liens, claims, security interests, or encumbrances in favor of the Construction Manager,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having
provided labor, materials, and equipment relating to the Work.
9.5
Offset.
A.
Offset for Damages. In addition to all other remedies at law or equity, Buckeye
may offset against any money due to the Construction Manager any amounts the Construction Manager
owes to Buckeye for damages resulting from breach or deficiencies in performance or breach of any
obligation under this Agreement.
B.
Offset for Delinquent Fees or Taxes. Buckeye may offset against any money due
to the Construction Manager any amounts the Construction Manager owes to Buckeye for delinquent fees,
transaction privilege use taxes, and property taxes, including any interest or penalties.
9.6
Final Payment.
A.
Fully Completed Work. Final payment, consisting of the unpaid balance of (1) the
Cost of the Work, (2) compensation for Pre-Construction Services, and (3) the Construction Fee, shall be
due and payable when the Work is fully completed and accepted by Buckeye. Before issuance of final
payment, Buckeye may request satisfactory evidence that all payrolls, materials bills, and other
indebtedness connected with the Work have been paid or otherwise satisfied.
B.
Waiver of Claims. In making final payment, Buckeye waives all claims against the
Construction Manager except for:
1.
Outstanding liens.
2.
Improper workmanship or defective materials.
3.
Work not in conformance with the Contract Documents or work not
completed.
4.
Terms of any special warranties required by the Contract Documents.
5.
Delivery to Buckeye of all warranties, operation and maintenance manuals,
record drawings, and other documents as required by the Contract Documents.
6.
Right to audit Construction Manager records for a period of three years.
7.
Claims previously made in writing that remain unsettled.
C.
Acceptance as Waiver. Acceptance of final payment by the Construction Manager
shall constitute a waiver of affirmative claims by the Construction Manager against Buckeye, its
employees, elected officials, and agents, except those previously made in writing and identified as
unsettled at the time of final payment.
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9.7
Payments to Subcontractors.
A.
The Construction Manager shall pay its Subcontractors or suppliers within seven
Days of receipt of each progress payment from Buckeye and as required by Arizona law. The Construction
Manager shall pay for the amount of Work performed or materials supplied by each Subcontractor or
Supplier as accepted and approved by Buckeye with each progress payment. In addition, any reduction
of retention by Buckeye to the Construction Manager shall result in a corresponding reduction to
Subcontractors or suppliers who have performed satisfactory work. The Construction Manager shall pay
Subcontractors or suppliers the reduced retention within 14 Days of the payment of the reduction of the
retention to the Construction Manager. No Contract between the Construction Manager and its
Subcontractors and suppliers may materially alter the rights of any Subcontractor or supplier to receive
prompt payment and retention reduction as provided herein or by Arizona law.
B.
Failure to Timely Pay. The Construction Manager agrees that if it fails to make
payments in accordance with these provisions, Buckeye may take any one or more of the following
actions:
1.
Hold the Construction Manager in default under this Agreement.
2.
Withhold future payments, including retention, until proper payment has
been made to Subcontractors or suppliers in accordance with these provisions.
3.
Reject all future offers to perform work for Buckeye from the Construction
Manager for a period not to exceed one year from the date of Substantial Completion of this
Project.
4.
Terminate this Agreement.
5.
Make a claim against the bonds required pursuant to Article 11.
C.
No Waiver. Should Buckeye fail or delay in exercising or enforcing any right,
power, privilege, or remedy under this Section, such failure or delay shall not be deemed a waiver, release,
or modification of the requirements of this Section or of any of the terms or provisions thereof.
D.
Inclusion in Subcontracts. The Construction Manager shall include these prompt
payment provisions in every subcontract, including procurement of materials and leases of equipment for
this Agreement.
9.8
Record Keeping and Finance Controls.
A.
Retention Requirement. Records of the Construction Manager
payroll, reimbursable expenses pertaining to this Project, and records of accounts between Buckeye and
the Construction Manager shall be kept on a generally recognized accounting basis and shall be available
for three years after Final Completion of the Project.
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B.
Audit Rights. Buckeye, its authorized representative, and/or the appropriate federal
agency, reserve the right to audit the Construction Manager
appropriateness of all pricing data, including data used to negotiate Contract Documents and any Change
Orders.
C.
Pricing Data Inaccuracies. Buckeye reserves the right to decrease Contract Price
and/or payments made on this Agreement, in an amount determined by Buckeye in its sole discretion, if,
upon audit of the Construction Manager
Construction Manager has
provided false, misleading, or inaccurate cost and pricing data.
D.
Inclusion in Subcontracts. The Construction Manager shall include a similar
provision in all of its agreements with Sub-consultants and Subcontractors providing services under the
Contract Documents to ensure Buckeye, its authorized representative, and/or the appropriate federal
agency, has access to the Sub-
pricing data.
E.
Buckeye Remedies. Buckeye reserves the right to decrease Contract Price and/or
payments made under this Agreement, in an amount determined by Buckeye in its sole discretion, if the
above provision is not included in Sub-
-
consultants and/or Subcontractors do not allow Buckeye to audit their records to verify the accuracy and
appropriateness of pricing data.
ARTICLE 10
INSURANCE AND INDEMNITY
10.1
See Exhibit K.
ARTICLE 11
BONDS
11.1
Performance Bond. After Buckeye and the Construction Manager have agreed to a GMP
but prior to commencing the Construction Services attributable to such GMP, the Construction Manager
shall be required to furnish Buckeye with an irrevocable security binding the Construction Manager to
provide faithful performance of this Agreement in the amount of 100% of the percentage of the GMP
attributable to the Construction Services, payable to Buckeye, and shall not include the cost of any design
services, preconstruction services, finance services, maintenance services, operations services, or any
other related services. Performance security shall be in the form of a performance bond, certified check,
Construction Manager may be found in material default of this Agreement, permitting Buckeye to
terminate this Agreement for cause as set forth in Section 12 below. In case of default Buckeye reserves
all rights. All performance bonds shall be executed on the form attached hereto as Exhibit H and
incorporated herein by reference, duly executed by the Construction Manager as Principal and having as
Surety thereon a Surety company approved by Buckeye and holding a Certificate of Authority issued by
the Arizona Department of Insurance to transact surety business in the State of Arizona. Individual
sureties are unacceptable. All Insurers and Sureties shall have at the time of submission of the proposal
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-
published by the A.M. Best Company.
11.2
Payment Bond. After Buckeye and the Construction Manager have agreed to a GMP but
prior to commencing the Construction Services attributable to such GMP, the Construction Manager shall
be required to furnish Buckeye with an irrevocable security for the protection of all claimants supplying
labor or materials to the Construction Manager or any Subcontractor in the prosecution of the construction
and not for the protection of persons providing any design services, preconstruction services, finance
services, maintenance services, operations services, or other related services related to the Agreement.
Payment security shall be in the amount of 100% of the portion of the GMP attributable to the Construction
Services and be payable to Buckeye. Payment security shall be in the form of a payment bond, certified
check,
the Construction Manager may be found in material default of this Agreement, permitting Buckeye to
terminate this Agreement for cause as set forth in Section 12 below. All payment bonds shall be executed
on the form attached hereto as Exhibit I and incorporated herein by reference, duly executed by the
Construction Manager as Principal and having as Surety thereon a Surety company approved by Buckeye
and holding a Certificate of Authority issued by the Arizona Department of Insurance to transact surety
business in the State of Arizona. Individual sureties are unacceptable. All Insurers and Sureties shall have
at the time of su
-
listed in the most recent Best Key Guide, published by the A.M. Best Company.
ARTICLE 12
TERMINATION AND SUSPENSION
12.1
Termination by the Construction Manager.
A.
Procedure. Upon 30
written notice to Buckeye of one of the reasons set forth
below, and if Buckeye fails to cure or initiate reasonable action to cure within 30 Days of receipt of said
notice, the Construction Manager may terminate this Agreement for any of the following:
1.
If the Work has been stopped for a 60-Day period:
a.
Under court order or order of other governmental authorities having
jurisdiction; or
b.
As a result of the declaration of a national emergency or other
governmental act during which, through no act or fault of the Construction
Manager, materials are not available.
2.
If the Work is suspended by Buckeye for more than 60 Days.
3.
If Buckeye materially delays the Construction Manager in the performance
of the Work.
4.
If Buckeye otherwise materially breaches this Agreement.
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B.
Payment to Construction Manager. Upon termination by the Construction Manager
in accordance with Subsection 12.1(A) above, the Construction Manager shall be entitled to recover from
Buckeye payment for all Work completed to the date of termination plus reasonable demobilization costs,
subcontract and purchase order termination costs, reasonable overhead, extended general conditions, and
profit on the Work performed. Buckeye may subtract reasonable estimates of costs for deficient work
from the payments noted above.
12.2
Termination by Buckeye for Cause.
A.
Construction Manager Default. If the Construction Manager refuses or fails, except
in cases for which extension of time is provided, to supply sufficient properly skilled staff or proper
materials, or disregards laws, ordinances, rules, regulations, or orders of any public authority jurisdiction,
or otherwise substantially violates or materially breaches any term or provision of this Agreement, and
such nonperformance or violation continues without cure for 15 Days after the Construction Manager
receives written notice of such nonperformance or violation from Buckeye, then Buckeye may, without
prejudice to any right or remedy otherwise available to Buckeye, terminate this Agreement.
B.
Construction Manager Insolvency. Upon the appointment of a receiver for the
Construction Manager, or if the Construction Manager makes a general assignment for the benefit of
creditors, Buckeye may terminate this Agreement, without prejudice to any right or remedy otherwise
available to Buckeye, upon giving three
written notice to the Construction Manager. If an order for
relief is entered under the bankruptcy code with respect to the Construction Manager, Buckeye may
terminate this Agreement by giving three
written notice to the Construction Manager unless the
Construction Manager or the trustee does all of the following:
1.
Promptly cures all breaches within such three-Day period.
2.
Provides adequate assurances of future performance.
3.
Compensates Buckeye for actual pecuniary loss resulting from such
breach(es).
4.
Assumes the obligations of the Construction Manager within the established
time limits.
C.
Failure to Agree on a GMP. If Buckeye and the Construction Manager fail, after
good faith efforts, to agree upon a GMP, this Agreement may be terminated upon 15
either Party to the other. In the event of a termination for failure to agree on a GMP, the Construction
equitable adjustment for all Work performed through the date of termination plus reasonable
demobilization costs, subcontract and purchase order termination costs, reasonable overhead and profit on
the Work performed. The Construction Manager shall not be entitled to be paid any amount as profit for
unperformed Work or Services or consideration for the termination under this Subsection.
12.3
Termination by Buckeye for Convenience. Buckeye may, upon 30 D
the Construction Manager, terminate this Agreement, in whole or in part, for the convenience of Buckeye,
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without prejudice to any right or remedy otherwise available to Buckeye. Upon receipt of such notice,
the Construction Manager shall immediately discontinue all services affected unless such notice directs
otherwise. In the event of a termination for convenience of Buckeye, the Construction Manager
and exclusive right and remedy shall be to be paid for all Work performed and to receive equitable
adjustment for all Work performed through the date of termination plus reasonable demobilization costs,
subcontract and purchase order termination costs, reasonable overhead and profit on the Work performed.
The Construction Manager shall not be entitled to be paid any amount as profit for unperformed Work or
Services or consideration for the termination of convenience by Buckeye.
12.4
Set Off. Upon termination of this Agreement by Buckeye, Buckeye shall be entitled to
furnish or have furnished the Services to be performed hereunder by the Construction Manager by
whatever method Buckeye may deem expedient. Also, in such case, the Construction Manager shall not
be entitled to receive any further payment until completion of the Work and the total compensation to the
Construction Manager under this Agreement shall be the amount that is equitable under the circumstances.
If Buckeye and the Construction Manager are unable to agree on the amount to be paid under the foregoing
sentence, Buckeye shall fix an amount, if any, that it deems appropriate in consideration of all of the
circumstances surrounding such termination, and shall make payment accordingly. The Construction
Manager may dispute Buckeye
resolution under Article 13 of this Agreement.
12.5
Suspension by Buckeye for Convenience.
A.
Procedure. Buckeye may order the Construction Manager in writing to suspend,
delay, or interrupt all or any part of the Work without cause for such period of time as Buckeye may
determine to be appropriate for its convenience, but not in abrogation of the rights given the Construction
Manager in Section 12.1 above.
B.
Adjustments to GMP and Schedule. Adjustments caused by suspension, delay, or
interruption shall be made for increases in the applicable GMP and/or the applicable Substantial
Completion date. No adjustment shall be made if the Construction Manager is or otherwise would have
been responsible for the suspension, delay, or interruption of the Work, or if another provision of this
Agreement is applied to render an equitable adjustment.
ARTICLE 13
DISPUTE RESOLUTION
13.1
Scope. Notwithstanding anything to the contrary provided elsewhere in the Contract
Documents, except for Subsection
provided for herein shall be the exclusive means for resolution of claims or disputes arising under, relating
to, or touching upon the Agreement, the interpretation thereof, or the performance or breach by any party
thereto, including but not limited to original claims or disputes asserted as cross claims, counterclaims,
third party claims, or claims for indemnity or subrogation, in any threatened or ongoing litigation or
arbitration with third parties, if such disputes involve parties to agreements containing this ADR provision.
13.1.2 The Construction Manager has no right to stop Work as a consequence of non-
payment. In the event of any disagreement between the Construction Manager and Buckeye involving the
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Construction Manager
Construction Manager
claim
in accordance with the terms of this section. The Construction Manager must diligently proceed with the
Work pending resolution of the claim. If, however, an application for payment has been approved for
payment by the Buckeye, and the Buckeye fails to make payment within sixty (60) days of the approval
for payment by the Buckeye, the Construction Manager may upon ten (10) days written notice to the
Buckeye, stop work if payment is not made by the Buckeye within ten (10) days following the notice.
13.2
Neutral Evaluator, Arbitrators. Buckeye will select a Neutral Evaluator to serve as set forth
in this ADR process. Buckeye and the Construction Manager shall each select an arbitrator to serve as set
forth in this ADR process. Each arbitrator selected shall be a member of the State Bar of the State of
Arizona and shall have experience in the field of construction law. None of the arbitrators nor any of the
tion.
13.3
Neutral Evaluation Process. If the Parties have been unable to resolve the disputes after
discussions and partnering, the following neutral evaluation process shall be used to resolve any such
dispute.
A.
Notification of Dispute. Buckeye shall notify the Neutral Evaluator in writing of
the existence of a dispute within 10 Days of Buckeye or the Construction Manager declaring need to
commence the neutral evaluation process.
B.
Non-Binding Informal Hearing. The Neutral Evaluator shall schedule a non-
binding informal hearing of the matter to be held within seven Days from receipt of notification of the
existence of a dispute. The Neutral Evaluator may conduct the hearing in such manner as he deems
appropriate and shall notify each party of the hearing and of its opportunity to present evidence it believes
will resolve the dispute. Each party to the dispute shall be notified by the Neutral Evaluator that it shall
submit a written outline of the issues and evidence intended to be introduced at the hearing and the
proposed resolution of the dispute to the Neutral Evaluator before the hearing commences. Arbitrators
shall not participate in such informal hearing or proceedings process. The Neutral Evaluator is not bound
by the rules of evidence when admitting evidence in the hearing and may limit the length of the hearing,
the number of witnesses, or any evidence introduced to the extent deemed relevant and efficient.
C.
Non-Binding Decision. The Neutral Evaluator shall render a non-binding written
decision as soon as possible, but not later than five Days after the hearing.
13.4
Binding Arbitration Procedure. The following binding arbitration procedure, except as
provided in Subsection 13.4(G) below, shall serve as the exclusive method to resolve a dispute if any party
chooses not to accept the decision of the Neutral Evaluator. The party requesting binding arbitration shall
notify the Neutral Evaluator in writing within three Days
a request for arbitration. If the Construction Manager requests arbitration it shall post a cash bond with
the Neutral Evaluator in an amount agreed upon by the Parties or, in the event of no agreement, the Neutral
Evaluator shall establish the amount of the cash bond to defray the cost of the arbitration as set forth in
Subsection 13.4(M) and the proceeds from the bond shall be allocated in accordance with
Subsection 13.4(M) by the Arbitration Panel.
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A.
Arbitration Panel. The Arbitration Panel shall consist of three arbitrators:
Buckeye
Construction Manager
, and a third arbitrator (or
Parties
Subsection 13.4(B)
below. If one or more Subcontractor(s) is (are) involved in a dispute, the Subcontractors shall agree on
an appointee to serve as arbitrator on behalf of all such Subcontractors. The Neutral Evaluator shall not
participate in the proceedings.
B.
Selection of Neutral Arbitrator. The Parties
Arbitrator within five Days of receipt of notification of a dispute from the Neutral Evaluator. The Neutral
Arbitrator shall have the same qualifications as those of the arbitrators set forth in Section 13.2 above. In
the event that the selected arbitrators cannot agree on the Neutral Arbitrator as set forth above, the Neutral
Arbitrator shall be the Default Neutral Arbitrator. The Default Neutral Arbitrator shall be selected as
follows: Buckeye and the Construction Manager shall each submit two names to the presiding judge of
the Maricopa County Superior Court, who shall select one person to serve as the Default Neutral
Arbitrator.
C.
Expedited Hearing. The Parties have structured this procedure with the goal of
providing for the prompt, efficient, and final resolution of all disputes falling within the purview of this
ADR process. To that end, any Party can petition the Neutral Evaluator to set an expedited hearing. If
the Neutral Evaluator determines that the circumstances justify it, the Neutral Evaluator shall contact the
selected Arbitration Panel and arrange for scheduling of the arbitration at the earliest possible date. In
any event, the hearing of any dispute not expedited will commence as soon as practical but in no event
later than 20 Days after notification of request for arbitration having been submitted. This deadline can
be extended only with the consent of all the Parties to the dispute, or by decision of the Arbitration Panel
upon a showing of emergency circumstances.
D.
Procedure. The Arbitration Panel will select a chairman and will conduct the
hearing in such a manner that will resolve disputes in a prompt, cost-effective manner giving regard to the
rights of all parties. Each Party shall supply to the Arbitration Panel a written pre-hearing statement which
shall contain a brief statement of the nature of the claim or defense, a list of witnesses and exhibits, a brief
description of the subject matter of the testimony of each witness who will be called to testify, and an
estimate as to the length of time that will be required for the arbitration hearing. The Arbitration Panel
shall review and consider the Neutral Evaluator decision. The chairman shall determine the nature and
scope of discovery, if any, and the manner of presentation of relevant evidence consistent with deadlines
provided herein, and the
objective that disputes be resolved in a prompt and efficient manner. No
discovery may be had of any materials or information for which a privilege is recognized by Arizona law.
The chairman, upon proper application, shall issue such orders as may be necessary and permissible under
law to protect confidential, proprietary, or sensitive materials or information from public disclosure or
other misuse. Any Party may make application to the Maricopa County Superior Court to have a
protective order entered as may be appropriate to confirm such orders of the chairman.
E.
Hearing Days. In order to effectuate
goals, the hearing once commenced,
will proceed from Day to Day until concluded, absent a showing of emergency circumstances.
F.
Award. The Arbitration Panel shall, within 10 Days from the conclusion of any
hearing, by majority vote issue its award. The award shall include an allocation of fees and costs pursuant
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to Subsection 13.4(M) below. The award is to be rendered in accordance with this Agreement and the
laws of the State of Arizona.
G.
Scope of Award. The Arbitration Panel shall be without authority to award punitive
damages, and any such punitive damage award shall be void. The Arbitration Panel shall be without any
authority to issue an award against any individual Party in excess of 20% of the original Agreement
amount, but in no event shall any award exceed $2,000,000, exclusive of interest, arbitration fees, costs,
Party in excess of $100,000, exclusive of
interest, arbitration fees, costs,
conclusions of law, and a statement as to how damages were calculated. Any claim in excess of 20% of
the original Agreement amount or in excess $2,000,000 shall be subject to the jurisdiction of the Superior
Court of Arizona, Maricopa County. Any Party may contest the validity of the amount claimed if an
action is filed in the Superior Court.
H.
Jurisdiction. The Arbitration Panel shall not be bound for jurisdictional purposes
by the amount asserted in any
claim, but shall conduct a preliminary hearing into the question of
jurisdiction upon application of any Party at the earliest convenient time, but not later than the
commencement of the arbitration hearing.
I.
Entry of Judgment. Any Party can make application to the Maricopa County
Superior Court for confirmation of an award, and for entry of judgment on it.
J.
Severance and Joinder. To reduce the possibility of inconsistent adjudications, the
Neutral Evaluator or the Arbitration Panel, may (1) at the request of any Party, join and/or sever Parties,
and/or claims arising under other contracts containing this ADR provision, and (2) the Neutral Evaluator,
on his own authority, or the Arbitration Panel may, on its own authority, join or sever Parties and/or claims
subject to this ADR process as they deem necessary for a just resolution of the dispute, consistent with
the
goal of the prompt and efficient resolution of disputes; provided, however, that the
Construction Manager, the Project Designers, and other Project professionals shall not be joined as a Party
to any claim made by a Subcontractor. Nothing herein shall create the right by any Party to assert claims
against another Party not germane to the Agreement or not recognized under the substantive law applicable
to the dispute. Neither the Neutral Evaluator nor the Arbitration Panel is authorized to join to the
proceeding Parties not in privity with Buckeye. The Construction Manager cannot be joined to any
pending arbitration proceeding, without the Construction Manager
Construction Manager is given the opportunity to participate in the selection of the non-Buckeye
appointed arbitrator.
K.
Appeal. Any party may appeal (1) errors of law by the Arbitration Panel if, but
only if, the errors arise in an award in excess of $100,000, (2) the exercise by the chairman or Arbitration
Panel of any powers contrary to or inconsistent with this Agreement, or (3) on the basis of any of the
grounds provided in ARIZ. REV. STAT. § 12-1512. Appeals shall be to the Maricopa County Superior
Court within 15 Days of entry of the award. The standard of review in such cases shall be that applicable
to the consideration of a motion for judgment notwithstanding the verdict, and the Maricopa County
Superior Court shall have the authority to confirm, vacate, modify or remand an award appealed under
this Section, but not to conduct a trial, entertain the introduction of new evidence or conduct a hearing de
novo.
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L.
Uniform Arbitration Act. Except as otherwise provided herein, binding arbitration
pursued under this provision shall be governed by the Uniform Arbitration Act as codified in Arizona in
ARIZ. REV. STAT. §§ 12-1501, et seq.
M.
Fees and Costs. Each Party shall bear its own fees and costs in connection with any
informal hearing before the Neutral Evaluator. All fees and costs associated with any arbitration before
prevailing
Part
, and costs, will be paid by the non-prevailing Party,
n
excess of $200 per hour and (1) costs shall not include any travel expenses in excess of mileage at the rate
paid by Buckeye, not to exceed a one-way trip of 150 miles, and (2) all travel expenses, including meals,
shall be reimbursed pursuant to the travel policy of Buckeye in effect at the time of the hearing. The
determination of prevailing and non-prevailing Parties, and the appropriate allocation of fees and costs,
will be included in the award by the Arbitration Panel. Fees for the Neutral Evaluator shall be paid by
Buckeye.
N.
Confidentiality. Any proceeding initiated under ADR shall be deemed confidential
to the maximum extent allowed by Arizona law and no Party shall, except for disclosures to a Part
attorneys or accountants, make any disclosure related to the disputed matter or to the outcome of any
proceeding except to the extent required by law, or to seek interim equitable relief, or to enforce an
agreement reached by the Parties or an award made hereunder.
O.
Equitable Litigation. Notwithstanding any other provision of ADR to the contrary,
any Party can petition the Maricopa County Superior Court for interim equitable relief as necessary to
preserve the status quo and prevent immediate and irreparable harm to a Party or to the Project pending
resolution of a dispute pursuant to ADR provided herein. No court may order any permanent injunctive
relief except as may be necessary to enforce an order entered by the Arbitration Panel. The fees and costs
incurred in connection with any such equitable proceeding shall be determined and assessed in ADR.
P.
Change Order. Any award in favor of the Construction Manager against Buckeye
or in favor of Buckeye against the Construction Manager shall be reduced to a Change Order amendment
to this Agreement and executed by the Parties in accordance with the award and the provisions of this
Agreement.
Q.
Merger and Bar. Any claim asserted pursuant to this ADR process shall be deemed
to include all claims, demands, and requests for compensation for costs and losses or other relief, including
the extension of the Agreement performance period which reasonably should have or could have been
brought against any Party that was or could have been brought into this ADR process, with respect to the
subject claim. The Arbitration Panel shall apply legal principles commonly known as merger and bar to
deny any claim or claims against any Party regarding which claim or claims recovery has been sought or
should have been sought in a previously adjudicated claim for an alleged cost, loss, breach, error, or
omission.
R.
Inclusion in Other Contracts. The Construction Manager shall cooperate with
Buckeye in efforts to include this ADR provision in all other Project subcontracts. The Construction
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Manager agrees that any modification to this ADR provision that is included in the construction or other
subcontracts shall also apply to the Construction Manager. It is the intent of the Parties that any changes
to this ADR provision in later contracts will be evolutionary and designed to incorporate the terms of this
ADR provision without material changes to the substance or procedure of this ADR provision.
ARTICLE 14
ADDITIONAL PROVISIONS
14.1
Confidentiality. The Construction Manager shall not disclose or permit the disclosure of
any confidential information except to its agents, employees, and Subcontractors who need such
confidential information in order to properly perform their duties relative to this Agreement.
14.2
Limitation and Assignment. Buckeye and the Construction Manager each bind themselves,
their successors, assigns, and legal representatives to the terms of this Agreement. Neither Buckeye nor
the Construction Manager shall assign or transfer its interest in this Agreement without the written consent
of the other, except that the Construction Manager may assign accounts receivable to a commercial bank
for securing loans without approval of Buckeye. Nothing contained in this Section shall prevent the
Construction Manager from employing such consultants, associates, or Subcontractors as the Construction
Manager may deem appropriate to assist in performance of the Services hereunder.
14.3
Entire Agreement. This Agreement represents the entire and integrated agreement between
Buckeye and the Construction Manager and supersedes all prior negotiations, representations, or
agreements, either written or oral. This Agreement may be amended only by written instrument signed
by both Buckeye and the Construction Manager. Nothing contained in this Agreement is intended to
benefit any third party. Subcontractors, if any, and the Project Designers are not intended third-party
beneficiaries of this Agreement.
14.4
Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be enforceable
without such provision.
14.5
Meaning of Terms. References made in the singular shall include the plural and the
masculine shall include the feminine or neuter.
14.6
Notices and Requests. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given if
(A) delivered to the Party at the address or email address with receipt confirmation set forth below,
(B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth
below, or (C) given to a recognized and reputable overnight delivery service, to the address set forth
below:
With copies to:
City of Buckeye
530 East Monroe Avenue
Buckeye, Arizona 85326
Attn: Procurement
contracts@buckeyeaz.gov
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If to Project Designers:
GHD Inc.
3200 E. Camelback Road, Suite 210
Phoenix, Arizona 85018
Attn: Bhaskar Kolluri, Business Group Leader Water and
Wastewater
Email: Bhaskar.Kolluri@ghd.com
If to Construction Manager: MGC Contractors, Inc.
4110 E. Elwood Street
Phoenix, Arizona 85040
Attn: Randy Gates, CEO
Email: rgates@mgccontractors.com
or at such other address, and to the attention of such other person or officer, as any Party may designate
in writing by notice duly given pursuant to this Section. Notices shall be deemed received (A) when
delivered to the Party, (B) three business days after being placed in the U.S. Mail, properly addressed,
with sufficient postage, or (C) the following business day after being given to a recognized overnight
delivery service, with the person giving the notice paying all required charges and instructing the delivery
service to deliver on the following business day. If a copy of a notice is also given to a Part
other recipient, the provisions above governing the date on which a notice is deemed to have been received
by a Party shall mean and refer to the date on which the Party, and not its counsel or other recipient to
which a copy of the notice may be sent, is deemed to have received the notice.
14.7
Governing Law. This Agreement shall be governed by the laws of the State of Arizona
and venue shall be in Maricopa County.
14.8
No Waiver of Performance. The failure of either Party to insist, in any one or more
instances, on the performance of any of the terms, covenants, or conditions of this Agreement, or to
exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant,
condition, or right with respect to further performance.
14.9
Headings. The headings given to any of the provisions of this Agreement are for ease of
reference only and shall not be relied upon or cited for any other purpose.
14.10 Asbestos Free Materials. The Project is to be constructed by the Construction Manager
with asbestos-free materials. A written, notarized statement on company letterhead shall be submitted to
Buckeye by the Construction Manager with the final payment request certifying that the Construction
Manager has incorporated no asbestos material into the Project. Final payment shall be withheld until
such statement is submitted. The Construction Manager shall agree that if materials containing asbestos
are subsequently discovered at any future time to have been included in the construction done by the
Construction Manager or any of its Subcontractors or agents and were not specified in the design or
required by the Contract Documents, the Construction Manager shall be liable for all costs related to the
abatement of such asbestos and damages or claims against Buckeye notwithstanding any statute of
limitations or other legal bar to any claim by Buckeye.
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14.11 Cancellation. This Agreement may be cancelled by Buckeye pursuant to ARIZ. REV. STAT.
§ 38-511.
14.12 Survival of Representations and Warranties. Notwithstanding any other provision of this
Agreement, the representations, warranties, and covenants herein shall survive termination of this
Agreement.
14.13 Endangered Hardwoods Prohibited. The Construction Manager shall ensure that products
containing endangered wood species shall not be utilized in the construction of the Project unless
exempted pursuant to ARIZ. REV. STAT. § 34-201(J), as amended.
14.14 Records and Audit Rights. The Construction Manager
records, correspondence, accounting procedures, and practices, and any other supporting evidence relating
to this Agreement, including the papers of any of the Construction Manager and its Subcontractor
employees who perform any work or Services pursuant to this Agreement to ensure that the Construction
Manager and its Subcontractors are complying with the warranty under Subsection 14.15 below (all the
foregoing h
reproduction during normal working hours by Buckeye, to the extent necessary to adequately permit (A)
evaluation and verification of any invoices, payments or claims based on Construction Manager
Subcontractor
units expended directly in the performance of work under this Agreement, and (B) evaluation of the
Construction Manager
referenced in Subsection 14.15 below. To the extent necessary for Buckeye to audit Records as set forth
in this Subsection, the Construction Manager and its Subcontractors hereby waive any rights to keep such
Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units
expended, Buckeye shall have access to said Records, even if located at its Subcontractor
the effective date of this Agreement for the duration of the work and until three years after the date of final
payment by Buckeye to the Construction Manager pursuant to this Agreement. The Construction Manager
and its Subcontractors shall provide Buckeye with adequate and appropriate workspace so that Buckeye
can conduct audits in compliance with the provisions of this Subsection. Buckeye shall give the
Construction Manager or its Subcontractors reasonable advance notice of intended audits. The
Construction Manager shall require its Subcontractors to comply with the provisions of this Subsection
by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
14.15 E-Verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the
Construction Manager and its Subcontractors 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 Construction Manager
warranty shall be deemed a material breach of this Agreement and may result in the termination of this
Agreement by Buckeye.
14.16 Israel. The Construction Manager certifies that it is not currently engaged in, and agrees
for the duration of this Agreement that it will not engage in, a boycott of Israel, as that term is defined
in ARIZ. REV. STAT. § 35-393.
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14.17 Independent Contractor. The Construction Manager is and will be an independent
contractor and whatever measure of control Buckeye exercises over the work or deliverable pursuant to
the Agreement will be as to the results of the work only. No provision in this Agreement will give or be
construed to give Buckeye the right to direct the Construction Manager as to the details of accomplishing
the work or deliverable. These results will comply with all Applicable Laws and ordinances.
14.18 Agreement Subject to Appropriation. Buckeye is obligated only to pay its obligations set
forth in this Agreement as may lawfully be made from funds appropriated and budgeted for that purpose
during Buckeye
-current fiscal year. Buckeye
Buckeye concerning
budgeted purposes and appropriation of funds. Should Buckeye City Council elect not to appropriate and
budget funds to pay its Agreement obligations, this Agreement shall be deemed terminated at the end of
the then-current fiscal year term for which such funds were appropriated and budgeted for such purpose
and Buckeye shall be relieved of any subsequent obligation under this Agreement. The Parties agree that
Buckeye has no obligation or duty of good faith to budget or appropriate the payment of Buckeye
obligations set forth in this Agreement in any budget in any fiscal year other than the fiscal year in which
this Agreement is executed and delivered. Buckeye City Council shall be the sole judge and authority in
determining the availability of funds for its obligations under this Agreement. Buckeye shall keep the
Construction Manager informed as to the availability of funds for this Agreement. The obligation of
Buckeye to make any payment pursuant to this Agreement is not a general obligation or indebtedness of
Buckeye. The Construction Manager hereby waives any and all rights to bring any claim against Buckeye
from or relating in any way to Buckeye
Section.
14.19 Forced Labor of Ethnic Uyghurs. To the extent applicable under ARIZ. REV. STAT. § 35-
394, the Construction Manager warrants and certifies that it does not currently, and agrees for the duration
of this Agreement that it will not 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 produced
becomes aware that it is not in compliance with this paragraph, the Construction Manager shall notify the
Town of the noncompliance within five business days of becoming aware of it. If the Construction
Manager fails to provide a written certification that the Construction Manager has remedied the
noncompliance within 180 days after that, this Agreement shall terminate unless the termination date of
this Agreement occurs before the end of the remedy, in which case this Agreement terminates on the
contract termination date.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set forth
above.
CITY:
CONSTRUCTION MANAGER:
THE CITY OF BUCKEYE, MGC CONTRACTORS, INC.,
an Arizona municipal corporation
an Arizona corporation
______________________________
Doug Sandstrom, City Manager
Randy Gates, Chief Executive Officer
ATTEST:
Lucinda Aja, City Clerk
RECOMMENDED:
Rob Roach, Interim Procurement Manager
APPROVED AS TO FORM:
K. Scott McCoy, City Attorney
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EXHIBIT A
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Construction Documents]
See following pages.
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EXHIBIT B
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Amendments]
See following pages.
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EXHIBIT C
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[GMP Proposals]
See following pages.
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Contract No. 32600047
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EXHIBIT D
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Master Schedule]
See following pages.
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EXHIBIT E
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Traffic Control/Construction Sequencing]
See following pages.
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EXHIBIT F
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Allowable General Conditions Cost Line Items]
See following page.
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ALLOWABLE GENERAL CONDITIONS COST LINE ITEMS
On-Site Project Management Staff
Safety Coordinator/Assistant(s)
CPM Scheduler
Project Executive
Superintendent(s)
Office Engineer(s)
Project Manager(s)
Project Expeditor(s)
Project Support Staff
Assistant Superintendent(s)
Out-of-State Project Specific Travel*
Bonds and Insurance
General Liability Insurance
Payment and Performance Bonds
Other Project Insurance as Required by
Contract
Temporary Project Utilities
Non-LEED Recycling Dumpsters
Temporary Toilets
Project Electricity
Temporary Fire Protection
Monthly Telephone / Internet Service
Telephone / Internet System Installation
Street Rental and Barricades
Temporary Water Distribution and Meters
Fencing and Covered Walkways
Temporary Electrical Distribution and Meters
Site Erosion Control (BMP) and Project
Project Water, Ice, and Supplements to Prevent
Entrance(s)
Dehydration
Field Offices & Office Supplies
Partnering Costs
First Aid Supplies
Job Photos/Videos
Reproduction Services
Project Specific Signage
Monthly Office Supplies
Postage/Special Shipping
Remote Parking Expenses
Project/As-Built (Record) Drawings
Project Reference Manuals
Project Milestone Event(s)*
Security System/Watchman
Move-In/Out and Office Setup
Safety Material and Equipment
Employee Identification System
Drinking Water and Accessories (Including Ice)
Small Tools and Storage Trailers
Office Clean-Up/Janitorial Services
Monthly Office Trailer Rental Costs
Field Engineering
Mobilization and Demobilization
(Equipment Only)
*
Specific justification and all estimated costs shall be submitted and approved by Buckeye prior to any
travel or event.
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EXHIBIT G
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Pre-Construction Cost Summary]
See following pages.
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Central Wastewater Reclamation Facility (CWRF) Expansion
Contract No. 32600047
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86
EXHIBIT H
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Performance Bond]
See following page.
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PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT,
___________________________________________________________
(hereinafter
called Principal), as Principal, and_________________________________________, a corporation
organized and existing under the laws of the State of ____________________________, with its principal
office at ________________________ (hereinafter called the Surety), as Surety, are held and firmly bound
unto
the
City
of
Buckeye
(hereinafter
called
the
Obligee)
in
the
amount
of
______________________________(Dollars) ($_____________________), for the payment whereof, the
said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns,
jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the
________ day of _________________ 20___, for the material, service or construction described as
___________________________________________________________________ is hereby referred to and
made a part hereof as fully and to the same extent as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal
faithfully performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of the
Contract during the original term of the Contract and any extension of the Contract, with or without notice to
the Surety, and during the life of any guaranty required under the Contract, and also performs and fulfills all
of the undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the
Contract that may hereafter be made, notice of which modifications to the surety being hereby waived, the
above obligation is void. Otherwise it remains in full force and effect.
PROVIDED, however, that this bond is executed pursuant to the provisions of Title 34, Chapter 2,
Article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the
provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the extent as if it were copied at
length in this agreement.
The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney
fees that may be fixed by a judge of the Court.
Witness our hands this _______ day of ________________________ 20___.
_______________________________________
Principal
Seal
By:____________________________________
_______________________________________
Surety
Seal
By:____________________________________
_______________________________________
Agency of Record
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EXHIBIT I
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Payment Bond]
See following page.
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PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT, __________________________________________ (hereinafter called Principal), as
Principal, and _______________________________, a corporation organized and existing under the laws of
the State of __________________________, with its principal office at ______________________
(hereinafter called the Surety), as Surety, are held and firmly bound unto the City of Buckeye (hereinafter
called the Obligee)
in
the amount of ____________________________________
(Dollars)
($___________________), for the payment whereof, the said Principal and Surety bind themselves, and their
heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the
___________ day of _________________ 20___, for the material, service or construction described as
_________________________________________ which Contract is hereby referred to and made a part
hereof as fully and to the same extent as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal
Subcontractors in the prosecution of the Work provided for in the Contract, this obligation is void. Otherwise
it remains in full force and effect.
PROVIDED, however, that this bond is executed pursuant to the provisions of Title 34, Chapter 2,
Article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the
provisions, conditions and limitations of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the same
extent as if they were copied at length in this agreement.
The prevailing party in a suit on this bond shall recover as a part of the judgment reasonable attorney
fees that may be fixed by a judge of the Court.
Witness our hands this _______ day of _________________, 20___.
_______________________________________
Principal
Seal
By:____________________________________
_______________________________________
Surety
Seal
By:____________________________________
_______________________________________
Agency of Record
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EXHIBIT J
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Lien Release]
See following pages.
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Conditional waiver and release on progress payment
Type 1 Form A.R.S. 33.1008.d.1
Project Name:
Contract No.:
On receipt by the undersigned of a check from
(maker of check)
in the sum of $
payable to
(amount of check)
(payee or payees of check)
and when the check has been properly endorsed and has been paid by the bank on which it is
drawn, this document becomes effective to release any mechanic's lien, any state or federal
statutory bond right, any private bond right, any claim for payment and any rights under any
similar ordinance, rule or statute related to claim or payment rights for persons in the
undersigned's position that the undersigned has on the job of
(owner)
located at
to the following extent.
(job description)
This release covers a progress payment for all labor, services, equipment or materials furnished
to the jobsite or to
,
(person with whom undersigned contracted)
through
only and does not cover any retention, pending modifications and
(date)
changes or items furnished after that date. Before any recipient of this document relies on it, that
person should verify evidence of payment to the undersigned.
The undersigned warrants that he either has already paid or will use the monies he receives from
this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and
suppliers for all work, materials, equipment or services provided for or to the above referenced
project up to the date of this waiver.
Date:
(Company name)
By:
(Signature)
(Title)
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Unconditional waiver and release on progress payment
Type 2 Form A.R.S. 33.1008.d.2
Project Name:
Contract No.:
The undersigned has been paid and has received a progress payment in the sum of
$
for all labor, services, equipment or material furnished to the jobsite or to
(person with whom undersigned contracted)
on the job of
(owner)
located at
(job description)
and does hereby release any mechanic's lien, any state or federal statutory bond right, any private
bond right, any claim for payment and any rights under any similar ordinance, rule or statute
related to claim or payment rights for persons in the undersigned's position that the undersigned
has on the above referenced project to the following extent. This release covers a progress
payment for all labor, services, equipment or materials furnished to the jobsite or to
(person with whom undersigned contracted)
through
only and does not cover any retention, pending modifications
(date)
and changes or items furnished after that date.
The undersigned warrants that he either has already paid or will use the monies he receives from
this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and
suppliers for all work, materials, equipment or services provided for or to the above referenced
project up to the date of this waiver.
Date:
(Company name)
By:
(Signature)
(Title)
Notice: This document waives rights unconditionally and states that you have been paid for
giving up those rights. This document is enforceable against you if you sign it, even if you have
not been paid. If you have not been paid, use a conditional release form.
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Conditional waiver and release on final payment
Type 3 Form A.R.S. 33.1008.d.3
Project Name:
Contract No.:
On receipt by the undersigned of a check from
(maker of check)
in the sum of $
payable to
(amount of check)
(payee or payees of check)
and when the check has been properly endorsed and has been paid by the bank on which it is
drawn, this document becomes effective to release any mechanic's lien, any state or federal
statutory bond right, any private bond right, any claim for payment and any rights under any
similar ordinance, rule or statute related to claim or payment rights for persons in the
undersigned's position, the undersigned has on the job of
located at
(owner)
.
(job description)
This release covers the final payment to the undersigned for all labor, services, equipment or
materials furnished to the jobsite or to
,
(person with whom undersigned contracted)
except for disputed claims in the amount of $
. Before any recipient of this
document relies on it, the person should verify evidence of payment to the undersigned.
The undersigned warrants that he either has already paid or will use the monies he receives from
this final payment to promptly pay in full all his laborers, subcontractors, materialmen and
suppliers for all work, materials, equipment or services provided for or to the above referenced
project up to the date of this waiver.
Date:
(Company name)
By:
(Signature)
(Title)
Central Wastewater Reclamation Facility (CWRF) Expansion
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Unconditional waiver and release on final payment
Type 4 Form A.R.S. 33.1008.d.1
Project Name:
Contract No.:
The undersigned has been paid in full for all labor, services, equipment or material furnished to
the jobsite or to
,
(person with whom undersigned contracted)
on the job of
located at
and does hereby waive
(owner)
(job description)
and release any right to mechanic's lien, any state or federal statutory bond right, any private
bond right, any claim for payment and any rights under any similar ordinance, rule or statute
related to claim or payment rights for persons in the undersigned's position, except for disputed
claims for extra work in the amount of $
.
The undersigned warrants that he either has already paid or will use the monies he receives from
this final payment to promptly pay in full all of his laborers, subcontractors, materialmen and
suppliers for all work, materials, equipment or services provided for or to the above referenced
project.
Date:
(Company name)
By:
(Signature)
(Title)
Notice:
This document waives rights unconditionally and states that you have been paid for giving up
those rights. This document is enforceable against you if you sign it, even if you have not been
paid. If you have not been paid, use a conditional release form.
Central Wastewater Reclamation Facility (CWRF) Expansion
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EXHIBIT K
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
MGC CONTRACTORS, INC.
[Insurance and Indemnity]
See following pages.
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INSURANCE
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
The
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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The policy shall be endorsed to include the following
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.
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(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,
the Commercial General Liability,
(e)
. Unless expressly waived by Buckeye in a written
amendment to this Agreement, the Construction Manager shall be responsible for
purchasing and maintaining insurance to protect the Project from perils of physical
loss. The insurance shall provide for the full cost of replacement for the entire
Project at the time of any loss. The insurance shall include as named insureds
Subcontractors, and shall insure against loss from the perils of fire and all-risk
coverage for physical loss or damage due to theft, vandalism, collapse, malicious
mischief, transit, flood, earthquake, and testing, and resulting loss arising from
defective design, negligent workmanship, or defective material. The Construction
Manager shall increase the coverage limits as necessary to reflect changes in the
estimated replacement cost.
(f) 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.
(g) 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.
(h) 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:
Procurement
Finance Department
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City of Buckeye
530 East Monroe Avenue
Buckeye, Arizona 85326
contracts@buckeyeaz.gov
(i) 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.
(j) 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 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.
(k) 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.
(l) 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.
(m) Indemnity. To the fullest extent permitted by law, the Construction Manager shall
indemnify and hold harmless Buckeye and each council member, officer, employee,
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and the costs of appellate proceedings) to which any such Indemnified Party may
that such Claims (or actions in respect thereof) are caused by the negligent acts,
recklessness, or intentional misconduct of the Construction Manager, its officers,
employees, agents, or any tier of subcontractor in connection with the Construction
type of insurance coverage requirements set forth below will in no way be construed
as limiting the scope of the indemnity in this Section.
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