Contract No. 32500038- Achen Gardner.pdf
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CONSTRUCTION MANAGER
AT RISK AGREEMENT NO. 32500038
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
THIS CONSTRUCTION MANAGER AT RISK AGREEMENT
made June 25, 2025, by and between the City of Buckeye, an Arizona municipal corporation
Buckeye , and Achen-Gardner Construction, LLC, an Arizona limited liability company (the
Construction Manager
Improvements to Verrado Way and Yuma Road Intersection, North to Van Buren Street, located
in Buckeye, Arizona, and other items as deemed necessary by Buckeye
Buckeye
and the Construction M
collectively as
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
, 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 Coe
and Van Loo, LLC
Project Designers
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
below, and (C) the Pre-Construction Phase General Services, pursuant to Section 2.3 below (the
-
. 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
construction 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
Improvements to Verrado Way and Yuma Road Intersection,
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Achen-Gardner Construction, LLC
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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).
1.3
Definitions.
A.
Work, but which are later identified as necessary or desirable by Buckeye, as more fully described
in Section 4.17 below.
B.
regulation, requirement,
action, 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,
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:
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a.
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 file with the City s Finance Department and incorporated herein by reference.
6.
The Construction Manager
Statement of Qualifications in
response to Buckeye
(the SOQ ), a copy of which is on file with the City s Finance
Department 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.
described in 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
the Work as set forth in Section 3.3 below.
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O.
Underground Storage Tanks.
P.
penalties, fines, liabilities, encumbrances, liens, costs, and expenses of investigation and defense
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 Reauthorization Act of 1986
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.
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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.
U.
Buckeye
Buckeye,
usually for costs that result from Buckeye-directed changes.
V.
any substance:
1.
D
of the 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
including without 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.
Improvements to Verrado Way and Yuma Road Intersection,
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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.
W.
award,
as of the date of Contract award, which are sponsored and distributed by the Maricopa
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.
Construction 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.
accordance 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,
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concurrent construction at the Site, except as may be required to complete or correct Punch List
items.
AG.
by § 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 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
conflict 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
communications and submittals of Construction Manager to Buckeye shall be issued or made
through Buckeye
Buckeye or Buckeye
direct. Buckeye
Construction
Manager to communicate directly with other Buckeye officials or the Project Designers.
Throughout the term of this Agreement Buckeye
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.
Improvements to Verrado Way and Yuma Road Intersection,
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C.
Limited Project Management. None of Buckeye
activities 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.
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.
Approvals. Buckeye shall secure, submit, and pay for City approvals,
easements, assessments, permits, and charges required for the Project.
H.
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.
I.
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 or the Project Designers relating to the
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 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
Construction Manager submitted to Buckeye a written procedure in
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conformance with ARIZ. REV. STAT. §§ 34-601 et seq., as amended, for qualifications-based
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 procedures to provide
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
as part of
the Construction Manager
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
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
approval of substituted personnel shall not be 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 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
Improvements to Verrado Way and Yuma Road Intersection,
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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)
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 review with respect to the
2.2 below.
1.9
Data Confidentiality.
A.
Data Defined
whether 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
performance of this Agreement is 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
the legal right to make 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
Site, the Construction Manager shall
recommend, for execution by Buckeye
Environmental Engineer and 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
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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 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 applicable local, state, and federal rules, regulations, and laws,
Materials, ASTM E1527-13
order to identify and explain the quantity, scope, and nature of the Environmental Conditions found
to exist at the Site. The Environmental Assessments shall contain a detailed analysis of the
response, removal, cleanup, 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
to what extent any recommended Remedial 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
approved by 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
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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 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,
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.
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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 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
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
Improvements to Verrado Way and Yuma Road Intersection,
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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 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.
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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 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
in reviewing the Project design, 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
Improvements to Verrado Way and Yuma Road Intersection,
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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.
B.
Construction Management Plan.
1.
Preparing Plan. The Construction Manager will prepare a
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 summarizing each Project team
If Buckeye
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)
additional investigatory reports of 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
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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)
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 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
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
Designers, 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
requirements showing 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-
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construction services phase such that it will not require major changes at the start of the
construction phase to incorporate the
the construction phase Work. 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
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 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
all applicable
taxes, the Construction Manager
onditions, the Construction Manager
, and the
amount of the
and shall be consistent with such requirements
as determined by Buckeye or the Project Designers. The individual aspect cost models shall be
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
work, 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
Construction Manager will communicate to the Project team any assumptions made in
preparing the Cost Model. The Cost Model will support the Construction Manager
construction cost estimates and may be broken down initially as dictated by the 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
certain specified design milestones, the Construction Manager will provide a detailed
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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 Manager and 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. The Schedule of Values will be
directly related to the breakdowns reflected in the Construction Management Plan and the
Construction Manager
t Model. In addition, the Schedule of 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
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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
which may be separately procured by 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 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
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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 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
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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
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 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 Construction
the
when (a) stationed 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
Improvements to Verrado Way and Yuma Road Intersection,
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benefits and taxes including but not limited to, unemployment compensation, Social
Security, health, welfare, retirement, and other fringe benefits as required by law, labor
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
3.
Costs of long-distance telephone calls, telegrams, postage, package
delivery, and courier service, hardwired telephone service, and reasonable expenses of
support 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 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.
Improvements to Verrado Way and Yuma Road Intersection,
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8.
Cost of premiums for normal and customary Construction
N/A% of the cost of subcontracts
,
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 N/A% of the
Subcontract amount, and credited from the Subcontractor bids. Commercial General
Liability Insurance shall be reimbursed at the rate of 1.75% of the applicable GMP amount;
Builders Risk Insurance shall be reimbursed at the rate of .2% of the applicable GMP
amount; Performance and Payment Bonds shall be reimbursed at .8% 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
written 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
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.
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.
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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
to the 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.
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.
The GMP Proposal may
s of
the Project identified through the refinement, development, and completion of the
Improvements to Verrado Way and Yuma Road Intersection,
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Contingency shall be negotiated 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-
Contingency 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.
Manager shall provide detailed documentation of the scope of work affected and the basis
funds.
3.
As the Construction Documents are finalized and the buyout of the
Work progresses,
mutual 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 occur after the buyout stage, such savings, and related
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 Construction
. Final contract price/payout will be based on field measured final
completed quantities, approved unit prices, and approved Minor Adjustments and Change
(costs) mutually agreed to by Buckeye and the Construction Manager. Buckeye and the
-
items may include the cost associated with the risk of delivering the work.
2.
Buckeye and the Construction Manager understand and agree that
Buckeye, its authorized representatives, and/or the appropriate federal or state agencies
of all pricing data, including data used to negotiate any GMP, and including, but not limited
to, self-performed items, 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.
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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 ____% of the total
B.
Salaries. Salaries of the
manager(s), 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 any of the
, 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 GMP amount, excluding
.
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.
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
Improvements to Verrado Way and Yuma Road Intersection,
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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 Construction
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
change in 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
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. Promptly, after the closing of sub-bids, the Construction Manager will (in the
presence of Buckeye
timely submitted sub-bids. The Construction Manager will submit a completed Sub-Bid tabulation
form to Buckeye
ble time after the closing of the sub-bid
opening proceedings.
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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
award 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) review the Construction Man
proposed Contract Price for the Work during 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 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.
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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
GMP Proposal is greater than the independent third party or
estimate, Buckeye
may require the Construction Manager to reconfirm its GMP Proposal. The Construction Manager
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
Proposal, if within Buckeye
2.
Accept the Construction Manager
Proposal that exceeds Buckeye
Construction
Manager that the Project budget has been increased to fund the differences.
3.
Reject the Construction Manager
Proposal because it exceeds either or both Buckeye
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 be furnished to the Construction Manager. The Construction
Manager will promptly notify the Project Designers and Buckeye
roject Manager if any such
revised Construction Documents are inconsistent with the agreed-upon assumptions and
clarifications.
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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
Amendment will include the amount of Buckeye
Buckeye
Contingency will be set solely by Buckeye and will be in addition to the Project costs included in
Proposals. Use and management of Buckeye
at 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
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
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 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
Improvements to Verrado Way and Yuma Road Intersection,
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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 such
and 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 and in conformity
Buckeye. The Construction
Buckeye and shall have the necessary
expertise and experience required to supervise the Work. The
Representative shall communicate regularly with Buckeye, but not less than once each week, and
shall be vested with the authority to act on behalf of the Construction Manager. The Construction
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
Department permits, a copy of the application for permit shall also be provided to
Buckeye
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
B.
Pre-construction Activities.
1.
Prior to the commencement of any Work, Buckeye
will 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 p
, 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
Improvements to Verrado Way and Yuma Road Intersection,
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and distribute minutes of these meetings to Buckeye
, the Project
Designers, and others in attendance.
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
the 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
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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.
C.
Supervisor Presence. The Construction Manager
or the
activities 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
approved 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
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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 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
construction of the Project. 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
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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) has acknowledged that it is
and is performed in accordance with, Applicable Law.
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,
City of
Phoenix Traffic Barricade Manual
ections 12-2-1 and 19-1-2 of
, which are incorporated herein by reference
-
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
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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 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
direct traffic 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.
shall be 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.
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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
directions.
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
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.
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C.
Accessibility. The
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.
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
in accordance with 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
construction schedule, 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.
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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 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.
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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.
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:
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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 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
Buckeye shall approve the
subcontract Schedule of Values before acceptance for progress billings.
B.
Contract Price Allocation. Each
shall have the applicable portions of the Contract Price
sum of the prices of the 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
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,
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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
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.
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 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
Improvements to Verrado Way and Yuma Road Intersection,
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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.
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 laboratory and all others responsible for testing and inspecting the Work and shall provide
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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
inspections 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 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.
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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. 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.
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.
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.
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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.
-
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 Construction
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
, 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.
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E.
Reporting. The Construction Manager will immediately report in writing
any safety-related injury, loss, damage, or accident arising from the Work to Buckeye
Representative and, 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
for 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
certificate 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 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 shall determine when the
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
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
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
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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
enclosing 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 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
nonconforming 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 Construction
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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
Project program. 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 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.
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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 Construction
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
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
,
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.
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5.5
Inspection and Testing. With the assistance of Buckeye
the 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.
C.
Actions by Others.
warranty obligation excludes
defects 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
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.
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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.
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.
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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 Path, such shall constitute an
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 or materials
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.
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.
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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
Delay and/or Inexcusable Delay within 10 Days after receipt by Buckeye of the Construction
Manager
ten request for such determination. The 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.
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
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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 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.
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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 Two Hundred Seventeen Thousand Five Hundred Forty-Eight Dollars and Ninety
Cents ($217,548.90) 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 April 30, 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.
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
the discretion of Buckeye to cover any increases in Project costs that result from Buckeye-directed
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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
to ensure 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
shall 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 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
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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
basis for the cost to
perform the work and the effect, if any, on the applicable GMP. The Construction Manager shall
make a recommendation to Buckeye pursuant to this Article 8 prior to Buckeye
all 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.
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)
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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 an
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. At
substantially similar to the form attached hereto as Exhibit J, with each Application for Payment.
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.
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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
estimated cost of completing any 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 be free and clear of liens, claims, security interests, or encumbrances
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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
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Buckeye, its employees, elected officials, and agents, except those previously made in writing and
identified as unsettled at the time of final payment.
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
personnel payroll, reimbursable expenses pertaining to this Project, and records of accounts
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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.
B.
Audit Rights. Buckeye, its authorized representative, and/or the appropriate
federal agency, reserve the right to audit the Construction Manager
and 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-
verify the accuracy of cost and 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-
and one or more 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,
Manager fails to execute the security document as required, 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. 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
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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
-
r as currently listed in the most recent
Best Key Guide, 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,
check. If the Construction Manager fails to execute the security document as required, 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 submission of the proposa
-
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.
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3.
If Buckeye materially delays the Construction Manager in the
performance of the Work.
4.
If Buckeye otherwise materially breaches this Agreement.
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
notice from either Party to the other. In the event of a termination for failure to agree on a GMP,
performed and to receive equitable adjustment for all Work performed through the date of
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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
notice to the Construction Manager, terminate this Agreement, in whole or in part, for the
convenience of Buckeye, 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
lusive 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
assessment of the termination amount by the method of dispute 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 13.4 (G) below, the alternative dispute resolution
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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.
13.2
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
represented any party to the arbitration.
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 of
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
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
Neutral 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.
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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 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,
must be supported by written findings of fact, 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
unless the 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,
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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.
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
fees, and the prevailing Part
, and costs, will be
paid by the non-prevailing Part
hourly fees be awarded in an amount in 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
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.
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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 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 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
Improvements to Verrado Way and Yuma Road Intersection,
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Achen-Gardner Construction, LLC
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530 East Monroe Avenue
Buckeye, Arizona 85326
Attn: Procurement
contracts@buckeyeaz.gov
If to Project Designers:
Coe and Van Loo, LLC
4550 North 12th Street
Phoenix, Arizona 85014
Attn: Ryan Weed
rweed@cvlci.com
If to Construction Manager: Achen-Gardner Construction, LLC
2195 West Chandler Road, Suite 200
Chandler, Arizona 85226
Attn: Dan Spitza, President
dspitza@achen.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
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
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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.
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
books, 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
to ensure that the Construction Manager and its Subcontractors are complying with the warranty
under Subsection 14.15 below (all the foregoing h
open to inspection and subject to audit and/or 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
(including direct and indirect costs and overhead allocations) incurred, or 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
m 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
Agreement and may result in the termination of this Agreement by Buckeye.
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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.
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
discretion of 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
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
pursuant to this 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
Republic of China. If the Construction Manager 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, ACHEN-GARDNER CONSTRUCTION,
an Arizona municipal corporation
LLC, an Arizona limited liability company
______________________________
David B. Roderique, Interim City Manager
Dan Spitza, President
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EXHIBIT A
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[Construction Documents]
See following pages.
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EXHIBIT B
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[Amendments]
See following pages.
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EXHIBIT C
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[GMP Proposals]
See following pages.
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EXHIBIT D
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[Master Schedule]
See following pages.
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EXHIBIT E
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[Traffic Control/Construction Sequencing]
See following pages.
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EXHIBIT F
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[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
ACHEN-GARDNER CONSTRUCTION, LLC
[Pre-Construction Cost Summary]
See following pages.
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Emailed: June 17, 2025
acamillucci@buckeyeaz.gov (Allyson Camillucci, PE)
EXHIBIT I: PRE-CONSTRUCTION COST SUMMARY AND PROPOSAL
June 17, 2025
City of Buckeye Program Management Office
945 N. 215th Avenue, Suite 137
Buckeye, AZ
Attn: Allyson Camillucci, PE (Project Manager)
Re:
Verrado Way and Yuma Road Intersection, North to Van Buren Street ʹ CIP Project No. 101150
Contract No.: 32500038
Subject:
Achen-Gardner Pre-Construction Services Proposal - Project No.: 4205100
Dear Ms. Camillucci:
Achen-Gardner Construction, LLC (Achen-Gardner) respectfully submits for your review and approval our Pre-
Construction Services Proposal (Proposal) for the above referenced project. As discussed, we are proposing our
scope of services based on the following scope criteria:
Two design packages and GMP submittals:
1) Intersection of Yuma Road & Verrado Way and Long-lead Procurement Items
2) Verrado Road Widening and Related Improvements
We propose to perform the scope and services detailed and qualified herein, for the not-to-exceed amount of
$217,548.90 as follows:
Base Hourly Pre-Construction Services
$ 135,639.30 (Note 1)
Allowances and Reimbursables
$ 81,909.60
Total
$ 217,548.90
Note 1: Tasks to be performed as described herein and compensated at the hourly rates and not-to-exceed
Subtotal (1) ʹ Achen-Gardner Basic Services (see Exhibit I.2 ʹ CMAR Pre-construction Services Estimate).
Exhibit I includes the following attached and/or referenced documents:
EXHIBIT I.1: CMAR Pre-construction Services Scope of Work and Qualifications (Attached)
EXHIBIT I.2: CMAR Pre-construction Services Estimate (Attached)
EXHIBIT I.3: CVL Design Schedule and CMAR Pre-con Schedule (Attached)
CVL Design Scope of Work (Reference)
Achen-Gardner͛ s SOQ (reference)
Please feel free to contact me with any questions or comments. We are looking forward to working with the City of
Buckeye staff on this project.
Sincerely,
ACHEN-GARDNER CONSTRUCTION, LLC
Christie Hall, Pre-Construction Manager
Attachments
Cc: Project file/DS/BM/AG
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EXHIBIT I.1 (4 Pages)
CMAR PRE-CONSTRUCTION SERVICES
SCOPE OF WORK AND QUALIFICATIONS
VERRADO WAY AND YUMA RD. INTERSECTION, NORTH TO VAN BUREN ST.
RFQ NO.: 32500038
ACHEN-GARDNER PROJECT NO.: 4205100
Note: The sections below are numbered to correspond with the provisions of Contract
Article 2 Pre-construction Services, Contract Article 3 Guaranteed Maximum Price Proposal,
and the Tasks detailed in Exhibit I.2 - Pre-construction Services Estimate.
ARTICLE 2.1 Ȃ ENVIRONMENTAL INVESTIGATION
A. Discovery
Achen-Gardner excludes the recommendation of consultants and/or engineers
(ȊEnvironmental Engineersȋ). An allowance is provided for Environmental Investigation
Coordination (see Pre-construction Services Allowance/Reimbursable Item No. 4 below
and Exhibit I.2).
ARTICLE 2.2 Ȃ REVIEW OF CONSTRUCTION DOCUMENTS; DESIGN REMEDIES
A. Program Evaluation (Task 1)
This task is excluded.
B. Design Document Reviews (Task 2)(30%, 60%, 95%, and Final)
C. Constructability and Bid-ability Reviews (Task 3)(30%, 60%, and 95%)
D. Notification of Variance or Deficiency (Task 4)(60% and 95%)
These task sections will be performed in conjunction with each other. Reviews and
comments will be compiled and submitted at the noted design stage milestones noted
above for each of the two design packages Ȃ 1) Yuma Road and Verrado Way Intersection
and 2) Verrado Way Widening. The final review with comments will detail any changes
that may have occurred post-GMP submittal (should the GMP(s) be finalized with a design
document submittal prior to the 100% or final design stages). This final review will provide
a summary of the minor changes with related cost and/or schedule impacts to facilitate
identification of funding and schedule adjustments within the GMP amount/scope.
E. Value Analysis (Task 5)
Through a combination of value and risk assessment, Achen-Gardner will work with the
project team to assess and identify any value opportunities available for the project and
provide the analyses required to determine the technical viability of each opportunity
and the related costs, constructability, and maintenance/operational impacts. We will
provide a risk matrix with collaborative input from the team to identify the project risks
and rank them relative to cost and time impacts to provide a Baseline Risk Management
Plan. This Plan will be updated as required during pre-construction and construction.
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EXHIBIT I.1 - CMAR Pre-Construction Services Ȃ Scope of Work
Page 2
ARTICLE 2.3 Ȃ PRE-CONSTRUCTION GENERAL SERVICES
A. Personnel; Project Meetings; Project Analysis (Tasks 6 through 8)
Achen-Gardner excludes development and management of a meeting agenda and
minutes for regular project design progress meetings. For specialty meetings that
Achen-Gardner conducts, such as field site walks for utility conflict review, we will
provide an agenda and minutes. Project Analysis (Task 7) is included in Task 3 hours
(see Exhibit I.2 Ȃ CMAR Pre-construction Services Estimate).
B. Construction Management Plan (Task 9)
A formal Construction Management Plan is excluded. A formal plan adds unnecessary
costs to the pre-construction services as this information is provided in the other pre-
construction tasks and deliverables. Achen-Gardner will endeavor to organize and house
the Projectȇs associated Achen-Gardnerȇs deliverables and reports in a format that will
satisfy the CMPȇs documentation requirements and use for construction.
C. Schedule Development (Task 10)
Achen-Gardner has assumed an approximate 10-month pre-construction services
duration starting approximately July 17, 2025 and extending to approximately May 17,
2026. This duration assumes services for two design packages (see Article 2.3.D below
and Task 11) running concurrently (See Exhibit I.3 Ȃ CVL Design Schedule with CMAR Pre-
con Schedule). For construction, our SOQ schedule will serve as the draft starting point.
This schedule will be developed with Project Team collaboration and confirmation of
sequencing/phasing, number of GMPs, and construction start.
D. Cost Models; Cost Estimates and Schedule of Values (Task 11)
Cost Models/Preliminary Estimates will be provided at the 30% design stage as agreed
upon by the Project Team. The following Cost Models are proposed:
One (1) Cost Model for the Yuma Road/Verrado Way Intersection design package
One (1) Cost Model for the Verrado Way Widening and Related Improvements
design package.
Sales taxes shall be an indirect cost percentage applied to Cost Models/Estimates and
GMPs. Sales taxes shall be excluded from being applied to pre-construction basic services
hourly rates.
F. Phasing: Long Lead Procurement (Task 13)
The pre-construction scope of services will provide for an early GMP (GMP 1 Ȃ see Task
16a) for the long-lead street lights and traffic signal poles, arms, and equipment. This
GMP may also include the temporary (shoefly) road at the Yuma Road and Verrado Way
intersection in preparation for the intersection construction (GMP 2 Ȃ see Task 16b).
G. Other Deliverables; Pre-Construction Progress Payments (Task 14)
The Subcontractor and Supplier Plan will be as per the Plan submitted in the Achen-
Gardner SOQ, Section C.2, dated May 08, 2025 (Contract Exhibit F). Our team will submit
a detailed plan identifying the major subcontractors and suppliers we intend to solicit
with a request for approval.
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EXHIBIT I.1 - CMAR Pre-Construction Services Ȃ Scope of Work
Page 3
PRE-CONSTRUCTION SERVICES ALLOWANCE / REIMBURSABLE ITEMS (SEE EXHIBIT I.2)
1) Buckeyeȇs Contingency (Article 1.3.U Ȃ Definitions) Ȃ Allowance (Task 18)
The Buckeyeȇs Contingency amount will be determined by the City if directed and will only
be utilized with prior written approval from the city construction manager or project
manager.
2) Utility Pothole/Designation (Article 2.2.B.2) Ȃ Allowance (Task 19)
An allowance to self-perform or contract with a potholing subcontractor to continue
investigating unknown utilities and locations (with prior written approval from the city
representative). This allowance includes survey data of potholes and found utility
locations and a detailed pothole report.
3) Utility Designation/Pothole Plan/Coordination/Field Supervision (Article 2.2.B.2) Ȃ
Allowance (Task 20)
An allowance to be used for developing the pothole plan with the project team, Blue
Stake/utility site meets and coordination required to clear Blue Stake, and field
supervision to direct potholing activities.
4) Environmental Investigations Coordination (Article 2.1) Ȃ Allowance (Task 21)
An allowance to coordinate the Work with any Environmental Engineers or Contractors
during the Pre-construction Services Phase.
5) Public Outreach/Stakeholder Coordination Ȃ Allowance (Task 22)
Assist the City with public outreach and stakeholder coordination by assisting with
development of a communication and notifications plan. Provide notifications and
update communication media as required.
ARTICLE 3 Ȃ GUARANTEED MAXIMUM PRICE PROPOSALS (TASK 16)
Article 3.3.A.8 (Insurances): The combined insurances rate for subsequent Cost
Models/Estimates and GMPs shall be 1.75%.
Article 3.3.A.8 (Bonds): Performance and Payment bonds shall be an indirect cost
percentage in the amount of .80% and will accommodate the required two-year warranty
described in Article 5.6.A.
Article 3.4.A: Profit shall be an indirect cost as a percentage in the amount of 7.0 %.
Article 3.4.C: Overhead shall be an indirect cost as a percentage in the amount of 5.0%.
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EXHIBIT I.1 - CMAR Pre-Construction Services Ȃ Scope of Work
Page 4
GENERAL QUALIFICATIONS
1) Measured Quantity/Unit Price GMP Contract Administration: The City and Achen-
Gardner understand and agree that any GMP agreed to under this Project will be
administered as a measured quantity/unit prices 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 allowances, on-site
general conditions, fee structure (overhead and profit), markups (sales taxes, insurances
and bonds), and Construction Managerȇs Contingency. The final contract price/payout will
be based on field-measured final completed quantities at the approved unit prices,
approved allowance and/or contingency utilization, approved Change Directives/Change
Orders, and the application of the agreed upon fee and markup structure. Furthermore,
the term ȊCost of Workȋ and Ȋactual costȋ are defined as the final negotiated unit prices
mutually agreed to by the City and Achen-Gardner. The individually priced Ȋself-
performedȋ items may include the cost associated with the risk of delivering the work. As
necessary, Achen-Gardner will provide a breakdown of each item using the following
industry breakdowns or alternate City approved format:
Labor and Burden
Equipment (Owned and Rented)
Materials, Supplies, and Fees
Subcontracts
Allowances and Contingencies
2) Allowance Definition: Achen-Gardnerȇs Cost Models, Estimates, and GMPs will likely
include Allowances for specific items that are expected to be needed for the Project, but
which are difficult to accurately quantify. With no definition of ȊAllowanceȋ in the
Contract, the following definition shall apply:
ȊAllowanceȋ Ȃ means an agreed amount between the City of Buckeye and Achen-Gardner for
items that may be required to complete the scope of work but which cannot be detailed with
exact unit pricing or quantities. Utilization of Allowance funds shall require the approval of
the City Project Manager. Any unused Allowance funds shall remain with the City and/or may
be allocated to other construction requirements of the project within the GMP by the City
Project Manager.
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EXHIBIT H
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[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
ACHEN-GARDNER CONSTRUCTION, LLC
[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
ACHEN-GARDNER CONSTRUCTION, LLC
[Lien Release]
See following pages.
Improvements to Verrado Way and Yuma Road Intersection,
North to Van Buren Street, Contract No. 32500038
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LIEN RELEASE
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
CONTRACT NO. 32500038
IMPROVEMENTS TO VERRADO WAY AND YUMA ROAD INTERSECTION,
NORTH TO VAN BUREN STREET
Upon receipt of payment in the amount of __________Dollars and __________Cents ($0.00),
____________________, an Arizona limited liability company (the ЊContractorЋ), hereby releases any
mechanicЍs 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
against the above referenced contract and project located at _________________ in Buckeye, Arizona,
to the following extent. The release covers a progress payment for all labor, services, equipment, and
materials furnished to the project or to the City of Buckeye, an Arizona municipal corporation
(ЊBuckeyeЋ), through ________________, and does not cover any retention, if applicable, pending any
changes to the contract via change orders, amendments, or items furnished after that date.
The undersigned warrants that the Contractor has already or will use the monies received from this
progress payment to promptly pay in full all the ContractorЍs laborers, subcontractors, and suppliers
for all work, materials, equipment, and services provided for or to the above referenced project up to
the date of this release.
CONTRACTOR:
ACHEN-GARDNER CONSTRUCTION, LLC,
an Arizona limited liability company
By:_________________________________
Name/Title:
Improvements to Verrado Way and Yuma Road Intersection,
North to Van Buren Street, Contract No. 32500038
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LIEN RELEASE
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
CONTRACT NO. 32500038
IMPROVEMENTS TO VERRADO WAY AND YUMA ROAD INTERSECTION,
NORTH TO VAN BUREN STREET
Upon receipt of the nal payment in the amount of __________Dollars and __________Cents
($0.00), ____________________, an Arizona limited liability company (the ЊContractorЋ), hereby
releases in full any mechanicЍs 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 against the above referenced contract and project located at _________________ in
Buckeye, Arizona, to the following extent. The release covers the nal payment for all labor, services,
equipment, and materials furnished to the project or to the City of Buckeye, an Arizona municipal
corporation (ЊBuckeyeЋ), as of ________________.
The undersigned warrants that the Contractor has already or will use the monies received from this
nal payment to promptly pay in full all the ContractorЍs laborers, subcontractors, and suppliers for
all work, materials, equipment, and services provided for or to the above referenced project.
CONTRACTOR:
ACHEN-GARDNER CONSTRUCTION, LLC,
an Arizona limited liability company
By:_________________________________
Name/Title:
Improvements to Verrado Way and Yuma Road Intersection,
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EXHIBIT K
TO
CONSTRUCTION MANAGER
AT RISK AGREEMENT
BETWEEN
CITY OF BUCKEYE
AND
ACHEN-GARDNER CONSTRUCTION, LLC
[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 policy shall be endorsed to include the following additional insured language: ͞ The City of
Buckeye shall be named as an additional insured with respect to liability arising out of the
activities performed by, or on behalf of the Contractor.͟
(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 additional insured language: ͞ The City of
Buckeye shall be named as an additional insured with respect to liability arising out of the
activities performed by, or on behalf of the Contractor͟ including automobiles owned, leased,
hired or borrowed by the Contractor.͟
(b) Workers Compensation and Employers Liability
Workers Compensation
Statutory
Employers͛ Liability
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
is written on a ͞ claims made͟ basis, coverage shall be maintained for two
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,
that ͞ follows form͟ and applies in excess of the Commercial General Liability,
Automobile Liability, and Employer͛ s Liability, as required above.
(e) Builder͛ s Risk Insurance. 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
Buckeye,
the
Construction
Manager,
and
the
Construction
Manager͛ s
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 consultant͛ s and Subcontractor͛ s Insurance. Contractor͛ s certificate(s) shall
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 coverage͛ s for subcontractors and sub CONTRACTOR͛ S 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. Best͛ s 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,
or agent thereof (Buckeye and any such person being herein called an ͞ Indemnified
Party͟ ), for, from, and against any and all losses, claims, damages, liabilities, costs,
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and expenses (including, but not limited to, reasonable attorneys͛ fees, court costs,
and the costs of appellate proceedings) to which any such Indemnified Party may
become subject, under any theory of liability whatsoever (͞ Claims͟ ) to the extent
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
Manager͛ s work or services in the performance of this Agreement. The amount and
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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