14112-CONTRACT PHASE II.PDF

CONSTRUCTION MANAGEMENT AT RISK (CMR)
PHASE II
CONSTRUCTION SERVICES
BIX Room Upgrades West Court Building 3301
FACILITIES MANAGEMENT DEPARTMENT
By and Through the OFFICE of PROCUREMENT SERVICES
Contract # 14112-CMR
Serial # 14112-CMR
C- 73 -16' -a23"--5-- ,
Project # 14112-CMR
MARICOPA COUNTY, ARIZONA
B1X Room Upgrades West Court Building 3301 Serial # 14112-CMR
Contract between Maricopa County and Caliente Construction, Inc. Page # 1

CONSTRUCTION MANAGEMENT AT RISK
PROFESSIONAL SERVICES AGREEMENT
PHASE II
CONSTRUCTION SERVICES
BETWEEN MARICOPA COUNTY, ARIZONA, OWNER, AND
Caliente Construction, Inc., PROFESSIONAL CMR
FOR CONSTRUCTION SERVICES FOR
BIX Room Upgrades West Court Building 3301 IN Phoenix, Arizona
Whereas, Maricopa County (hereinafter the "County" or "OWNER") desires to construct BIX Room
Upgrades West Court Building 3301 in Phoenix, Arizona, and
Whereas, it is in the best interests of the County to obtain professional construction management services
in order to insure quality, timely and valued construction from a pre-approved professional Construction
Manager at Risk (CMR), and
Whereas, the COUNTY has competitively selected the Construction Manager at Risk in accordance in
following the procedures in Section 34-603, Arizona Revised Statutes, and the Maricopa County
Procurement Code from several firms, and
Whereas the selected firm will provide professional CMR and construction management services for the
BIX Room Upgrades West Court Building 3301 Project as directed by the County.
Whereas the Facilities Management Department is a part of the Maricopa County Regional Development
Services constellation, the Assistant County Manager will, from time to time, participate or assist in the
timely execution of various aspects of the design, construction, and completion management on behalf of
the Maricopa County Manager.
This agreement made this 9th day of December, 2015, by and between Maricopa County (hereinafter
called the "OWNER") and Caliente Construction, Inc., hereinafter called the "CMR" as Construction
Manager at Risk for Phase II Construction Services.
Witnesseth, that the OWNER and the CMR, for the considerations herein set forth, agrees as follows:
Construction Agreement
Construction Management at Risk Phase II
The Scope of this Project is defined as follows:
The construction of BIX Room Upgrades West Court Building 3301, and as further outlined in Exhibit
A, attached hereto and incorporated herein by reference as though fully set forth herein.
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TABLE OF CONTENTS PAGE #
ARTICLE 1- SCOPE OF WORK 5
CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP) 5
ARTICLE 2— DEFINITIONS 6
ARTICLE 3- CMR'S SERVICES AND RESPONSIBILITIES 9
ARTICLE 5- DESIGN PROFESSIONAL'S AUTHORITY 14
ARTICLE 6- TIME FOR PERFORMANCE 15
ARTICLE 7- CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
19
ARTICLE 8- PAYMENTS AND COST OF THE WORK 21
ARTICLE 10- DISCOUNTS, REBATES AND REFUNDS 27
ARTICLE 11- SUBCONTRACTS AND PURCHASE ORDERS 27
ARTICLE 12 - INSURANCE 28
ARTICLE 13 - INDEMNIFICATION AND INSURANCE 31
ARTICLE 14— PERFORMANCE / PAYMENT BOND AND QUALIFICATIONS OF
SURETY 32
ARTICLE 15 - INDEPENDENT CMR 33
ARTICLE 16- ACCESS TO AND RETENTION OF PROJECT RECORDS FOR THE
PURPOSE OF AUDIT AND/OR OTHER REVIEW 33
ARTICLE 17- AS BUILT RECORDS 34
ARTICLE 18- CMR'S RESPONSIBILITY FOR THE WORK 34
ARTICLE 19- OCCUPATIONAL HEALTH AND SAFETY 35
ARTICLE 20- PERMITS, LICENSES AND IMPACT FEES 36
ARTICLE 21— PERSONNEL 37
ARTICLE 22- CMR'S WARRANTIES 37
ARTICLE 23- DEFECTIVE WORK 38
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ARTICLE 24- CONSTRUCTION SIGNAGE 39
ARTICLE 25- OWNERSHIP OF CONTRACT DOCUMENTS 39
ARTICLE 26- CMR'S REPRESENTATIVE 39
ARTICLE 27- OWNER'S RIGHT TO TERMINATE CONTRACT 39
ARTICLE 28- RESOLUTION OF DISPUTES 40
ARTICLE 29— NOTICES 40
ARTICLE 30- REQUIREMENTS FOR CONTRACTS WITH SBE GOALS 42
ARTICLE 31- OTHER TERMS & CONDITIONS 42
ATTACHMENT A 47
EXHIBIT A - CONSTRUCTION DOCUMENTS 48
EXHIBIT B - GMP PROPOSAL 49
EXHIBIT C - INSURANCE CERTIFICATE(S) 50
EXHIBIT D - PAYMENT BOND 51
EXHIBIT E - PERFORMANCE BOND 52
EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM 53
EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION 55
EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN 59
EXHIBIT I - LEGAL WORKER CERTIFICATION 60
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ARTICLE 1 - SCOPE OF WORK
The CMR shall furnish professional Construction Management at Risk Services for the Project described
in Exhibits A and B attached hereto and incorporated herein by this reference upon issuance of CMR's
Notice-to-Proceed by the OWNER or OWNER' s representative.
The CMR shall furnish the following Services as specifically authorized by "CMR's Notice to Proceed"
issued by the Facilities Management Department.
1.1 The contract price elements are as follows:
CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP)
a. Construction $1,005,746.16
b. General Conditions $ 227,660.00
c. CMR Contingency $ 128,340.62
d. Construction (OWNER) Contingency 0
e. CMR's Fee $ 76,627.39
f. CMR's Overhead $ 91,952.87
g. Bonds $ 14,879.11
h. Builders Risk Insurance $ 14,879.11
1. General Liability Insurance $ 14,879.11
J. Taxes $ 87,666.83
TOTAL GMP (ALL INCLUSIVE) $1,712,631.20
ALTERNATE 1 RO SYSTEM PIPING
a. Construction $ 7,292.00
b. General Conditions 0
c. CMR Contingency 0
d. Construction (OWNER) Contingency 0
e. CMR's Fee $ 395.80
f. CMR's Overhead $ 474.96
g. Bonds 76.85
h. Builders Risk Insurance 76.86
1. General Liability Insurance 76.85
J. Taxes $ 4 52.82
TOTAL (ALTERNATE 1) $ 8,846.14
ALTERNATE 2 PRE ACTION IN UPS ROOM
a. Construction $ 28,942.00
b. General Conditions 0
c. CMR Contingency 0
d. Construction (OWNER) Contingency 0
e. CMR's Fee $ 1,569.95
f. CMR's Overhead $ 1,883.94
g. Bonds 304.84
h. Builders Risk Insurance 304.85
1. General Liability Insurance 304.84
J. Taxes $ 1,796.13
TOTAL (ALTERNATE 2) $ 35,088.55
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1.2 CMR hereby agrees to furnish all of the labor, materials, equipment services and incidentals
necessary to perform all of the work or reasonably inferable from the Contract Documents
Including Drawings, Specifications and Addenda for the Project known as the BIX Room
Upgrades West Court Building 3301, prepared by Energy Systems Design, Inc., the DESIGN
PROFESSIONAL.
ARTICLE 2— DEFINITIONS
2.1 AUTHORITY HAVING JURISDICTION: The Maricopa County Planning and Development
Department
2.2 BASELINE PROJECT SCHEDULE: The initial schedule attached hereto and incorporated into
Exhibit "B".
2.3 BOARD OF SUPERVISORS: The Maricopa County Board of Supervisors, its successors and
assigns.
2.4 COUNTY OR OWNER: Maricopa County, Arizona, a political subdivision of the State of
Arizona, which is the party hereto for which this Contract is to be performed. In all respects
hereunder, COUNTY performance is pursuant to the COUNTY's position as the OWNER of a
construction Project. In the event COUNTY exercises its regulatory authority as a governmental
body, the exercises of such authority and the enforcement of any rules, regulations, laws and
ordinances shall be deemed to have occurred pursuant to the COUNTY's authority as a
governmental body and shall not be attributable in any manner to COUNTY as a party to this
contract.
2.5 CHANGE ORDER: A written document ordering a change in the Contract Price or Contract
Time or a material change in the Work as determined by the PROJECT MANAGER or
CONSTRUCTION PROJECT MANAGER.
2.6 CONDITIONAL NOTICE TO PROCEED: Not applicable herein.
2.7 CMR CONTINGENCY: The GMP may include a CMR Contingency in the amount stated in the
GMP Summary. Subject to the terms of the Contract Documents and with prior written
notification (including an appropriate Change Order Request) to Owner, CMR shall be entitled to
allocate from and apply against the CMR Contingency increases in the cost of the work that could
not have been reasonably anticipated or for increases in General Condition costs. The Owner
may disallow such CMR Contingency use and deny reimbursement in the absence of prior notice
or if the Owner determines that the use was not consistent with the Contract Documents. CMR
may not apply use or allocate from the CMR Contingency any amounts for any of the foregoing
purposes that are the result of a material breach or material failure to perform by the CMR, any
subcontractor or vendor (except as necessary to replace any subcontractor or vendor because of
the bankruptcy or failure of such party to perform), or any party for which any of them are liable
or responsible at law or under the Contract Documents, or for any non-allowable costs of the
work. The Owner reserves the right to issue a deductive Change Order at any point during the
Project, as agreed to by the CMR, deducting any or all remaining CMR Contingency from the
GMP. Upon Substantial Completion the Owner will issue a deductive Change Order for the
remaining CMR Contingency balance.
2.8 CONSTRUCTION PROJECT MANAGER: An employee of OWNER or agent of the OWNER
assigned by the Director to monitor the construction and design services to be performed under
this Agreement and the construction of the Project as a direct representative of OWNER. The
Director reserves the right, not to assign a Construction Project Manager to the project. In such
case the OWNER'S Project Manager will assume all OWNER responsibilities for the project.
2.9 CONTRACT: This Construction Agreement.
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2.10 CONTRACT DOCUMENTS: The Project Manual (including this Agreement and its Exhibits,
Attachments and Forms including the General Conditions and General Requirements), drawings
and specifications, the Request For Qualifications and/or proposals, as applicable and CMR's
response thereto titled "Guaranteed Maximum Price Proposal" dated Wednesday, November 18,
2015 and herein attached as Exhibit B (as negotiated and accepted by the OWNER), any Addenda
to the Project Manual, the record of the contract award by the Board of Supervisors, the Contract,
the Performance Bond and Payment Bond, the Notice of Award, the Notice(s) to Proceed, the
Purchase Order(s) and all agreed upon modifications issued after execution of the Contract are the
documents which are collectively referred to as the Contract Documents as referenced herein.
2.11 CONTRACT PRICE: The amount established in the Contract as the Guaranteed Maximum Price
(GMP), as may be amended, if so warranted, by a Change Order issued in conformity with the
Contract Documents.
2.12 CONTRACT TIME: The time between the Project initiation date specified in the Notice to
Proceed for this phase and final completion, including any milestone dates thereof, established in
the contract, as may be amended by any change order.
2.13 CMR: An individual, partnership, corporation, association, joint venture, or any combination
thereof, which has entered into the contract with the OWNER for construction of the Work. The
Construction Manager at Risk for this Project is Caliente Construction, Inc..
2.14 DAY: A Day is defined as a 24-hour period beginning at 12:01 a.m. and ending at Midnight,
Arizona standard time.
2.15 DESIGN PROFESSIONAL: The individual, partnership, corporation, association, joint venture,
or any combination thereof, of properly registered professional architects and/or engineers, which
has entered into an agreement to provide professional services for this Project. For purposes of
this Contract DESIGN PROFESSIONAL and A/E may be used interchangeably.
2.16 DIRECTOR OF FACILITIES MANAGEMENT DEPARTMENT: The Director of this
Department, of Maiicopa County, Arizona, having the authority and responsibility for
management of the specific Projects authorized under this Agreement.
2.17 FEE: CMR Profit
2.18 FIELD ORDER or SUPPLEMENTAL INSTRUCTION: A written order which directs minor
changes or interpretations of the Contract Documents in accordance with Article 7, but which
does not involve a change in the Contract Price or Contract Time.
2.19 FINAL COMPLETION: The date certified by the DESIGN PROFESSIONAL and
CONSTRUCTION PROJECT MANAGER in the Final Certificate of Payment in which all
conditions and requirements of any permits and regulatory agencies have been satisfied; and the
documents (if any) required to be provided by CMR have been received by the
CONSTRUCTION PROJECT MANAGER; and to the best of DESIGN PROFESSIONAL's and
CONSTRUCTION PROJECT MANAGER's information and belief the Project has been fully
completed in accordance with the tenns and conditions of the Contract Documents.
2.20 GENERAL CONDITION ITEMS: Includes, but is not limited to the following types of costs for
the CMR during the construction phase: payroll costs for Project Manager or Construction
Manager but not both for Work conducted at the site, payroll costs for the superintendent and
full-time general foremen, payroll costs for management personnel resident and working on the
site, workers not included as direct labor costs engaged in support (e.g. loading/unloading, clean-
up, etc.), administrative office personnel, costs of offices and temporary facilities including office
materials, office supplies, office equipment, minor expenses, utilities, fuel, sanitary facilities and
telephone services at the site, costs of liability insurance premiums not included in labor burdens
for direct labor costs, costs of bond premiums, costs of consultants not in the direct employ of the
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CMR or Subcontractors, fees for permits and licenses. Certain limitations and exclusions are
described in the General Conditions.
2.21 GUARANTEED MAXIMUM PRICE CONSTRUCTION CONTRACT: The method of
construction contracting whereby the CMR provides design phase consulting services (pre-
construction services) and management responsibility for the Project (general conditions). The
CMR's fee is a percentage of cost fee for profit, overhead and off-site general and administrative
costs. All subcontracts are generally awarded by the CMR based on competitive bids received in
response to invitations to bid issued by the CMR to those entities on an OWNER pre-approved,
pre-qualified list of subcontractors. The total price paid to the CMR is either (a) the fee plus the
costs or (b) the Guaranteed Maximum Price (GMP), whichever is less. This contract utilizes the
Guaranteed Maximum Price as the method of compensation. The fee is for all the CMR's
services, including construction management services, and is calculated as a percentage of the
actual costs. Thus, if the actual costs of the Project plus the percentage of cost fee are less than
the GMP, the fee will reduce accordingly.
2.22 INSPECTOR: An employee of the OWNER of Maricopa County, Arizona, assigned by the
Director to make observations of work performed by a CMR.
2.23 LOOK AHEAD SCHEDULE: A schedule for a period of 3 weeks ahead of the current date to be
delivered during regular Project meetings.
2.24 MATERIALS: Materials incorporated in this Project, or used or consumed in the performance of
the Work.
2.25 NOTICE-TO-PROCEED: One or more written notices to CMR authorizing the commencement
of Work.
2.26 THE OFFICE OF PROCUREMENT SERVICES: The Maricopa County Department with
authority for all procurement activity within Maricopa County.
2.27 OWNER'S CONTINGENCY: The GMP may include an Owner Contingency. The Owner's
Contingency shall be for the sole use of the Owner and used when so directed in writing by the
Owner. Owner Contingency may be used to cover any increases in Project costs that resulted
from Owner directed changes or unforeseen site conditions. The Owner may reduce Owner
Contingency at any point in the project through a deductive Change Order to the GMP.
2.28 OVERHEAD: All CMR home office expenses.
2.29 PLANS AND/OR DRAWINGS: The official graphic representations of this construction Project
which are a part of the Contract Documents.
2.30 PRELIMINARY WORK: not applicable.
2.31 PRICING DOCUMENTS: The set of documents and specifications upon which the GMP
contract is negotiated is comprised of the following: (i) the OWNER approved Contract
Documents, (ii) the Estimated and Actual Selected Qualified Bids CMR's Direct Construction
Cost (including unit prices, quantities and explanatory notes), (iii) the CMR's General Condition
Items, (iv) schedules developed by the CMR and approved by the PROJECT MANAGER, and
any other documents or exhibits utilized to derive the GMP.
2.32 PROJECT: The construction, alteration or repair, and all services and incidents thereto, of a
Maricopa County facility as contemplated and budgeted by the OWNER as described in the
Contract Documents, including the work described therein.
2.33 PROJECT INITIATION DATE: the date of actual deployment onto the site of Work for the
Project which may be equal to or after the date of Notice to Proceed.
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2.34 PROJECT MANAGER: An employee of the OWNER or agent of the OWNER assigned by the
Director of the Department of Facilities Management to monitor the work to be performed under
this Agreement and the construction of a Project as a direct representative of the OWNER and
who is the representative of the Director concerning the Contract Documents.
2.35 PROJECT MANUAL: The official documents setting forth information and requirements;
contract forms, bonds, and certificates; general and supplementary conditions of the Contract
Documents; the specifications; and the plans and drawings of the Project.
2.36 RESIDENT PROJECT REPRESENTATIVE: An authorized representative of the DESIGN
PROFESSIONAL on the Project.
2.37 SCHEDULE: The document setting for the timeline and milestones for this Project (see Exhibit B).
2.38 SCHEDULE OF VALUES: A schedule showing the portion of the Work to be used to make
payment of the allotted funds for the Project based upon the GMP and Project schedule.
2.39 SUBCONTRACTOR: A person, firm or corporation having a direct contract with CMR including
one who furnishes material worked to a special design according to the Project Manual for this
work, but does not include those who merely furnish material not so worked.
2.40 SUBMITTAL SCHEDULE: The schedule for initiation and completion of submittals.
2.41 SUBSTANTIAL COMPLETION: That date on which, as certified in writing by DESIGN
PROFESSIONAL, the Work, or a portion thereof designated by the CONSTRUCTION
PROJECT MANAGER in its sole discretion, is at a level of completion in substantial compliance
with the Contract Documents such that all conditions of permits and regulatory agencies have
been satisfied and the OWNER or its designee can enjoy beneficial use or occupancy and can use
or operate it in all respects for its intended purpose(s).
2.42 SURETY: The surety company or individual which is bound by the performance bond and
payment bond with and for CMR who is primarily liable, and which surety company or individual
is responsible for CMR's acceptable and timely performance of the work under the contract and
for the payment of all debts pertaining thereto in accordance with Arizona Revised Statutes. All
surety companies or individuals shall be authorized to conduct suretyship business under Arizona
Law and have an Arizona Resident Agent.
2.43 WORK: The totality of the obligations, including construction and other services required by the
Contract Documents, whether completed or partially completed, including all labor, materials,
equipment and service provided or to be provided by CMR to fulfill CMR's obligations. The
work may constitute the whole or a part of the Project.
2.44 WRITTEN NOTICE: As set forth in Article 29 herein.
ARTICLE 3- CMR'S SERVICES AND RESPONSIBILITIES
3.1 INTENTION OF OWNER: It is the intent of OWNER to describe in the Contract Documents a
functionally complete Project (or part thereof as applicable) to be constructed in accordance with the
Contract Documents. Any work, materials or equipment that may reasonably be inferred from the
Contract Documents as being required to produce the intended result shall be supplied by CMR. When
words, which have a well-known technical or trade meaning, are used to describe work, materials or
equipment, such words shall be interpreted in accordance with that meaning. Reference to standard
specifications, manuals, or codes of any technical society, organization or association, or to the laws or
regulations of any governmental authority, whether such reference be specific or by implication, shall
mean the latest standard specification, manual, code or laws or regulations in effect at the time of
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permit issuance. OWNER shall have no duties other than those duties and obligations set forth within
the Contract Documents.
3.2 THE CMR: Shall promptly order and expedite all materials and other parts of the Work to be readily
available as and when required or needed for or in connection with the construction, furnishing and
equipping of the improvements. No excess materials are to be purchased, and the OWNER shall not be
charged for any materials acquired but not used in the Project, and any materials remaining at the end of
the Project are to be removed at CMR's expense. Shall plan, record, and update, the construction
schedule of the Project. The Schedule shall indicate the dates for the commencement and completion of
the various stages of construction and shall be revised as required by the Contract Documents and the
condition of the Work. The Progress Schedule shall encompass all of the work of all trades necessary
for the construction of the Project and shall be sufficiently complete and comprehensive to enable
progress to be monitored on a weekly basis. This schedule is in addition to the look ahead schedule as
discussed in Article 2.2.3.
3.3 SUPERINTENDENCE AND SUPERVISION:
3.3.1 The orders of OWNER are to be given through the OWNER or OWNER's Representative,
which instructions are to be strictly and promptly followed in every case. CMR shall keep on
the Project site during its progress, a competent, full time, English speaking
SUPERINTENDENT or PROJECT MANAGER (hereinafter referred to as
SUPERINTENDENT) and any necessary assistants, all satisfactory to the OWNER and
DESIGN PROFESSIONAL. The SUPERINTENDENT shall not be changed except with the
written consent of OWNER, unless the SUPERINTENDENT proves to be unsatisfactory to
CMR and ceases to be in its employ. The SUPERINTENDENT shall represent CMR and all
direction given to the SUPERINTENDENT shall be as binding as if given to CMR and will be
confirmed in writing by CONSTRUCTION PROJECT MANAGER. CMR shall give efficient
supervision to the work, using its best skill and attention.
3.3.2 Daily, CMR's SUPERINTENDENT shall record, at a minimum, the following information in a
bound log: the day; date; weather conditions and how any weather conditions affected the
progress of the work; time of commencement of work for the day; the work being performed;
materials, labor, personnel, equipment and subcontractors at the Project site; visitors to the
Project site including representatives of OWNER, DESIGN PROFESSIONAL, and regulatory
authorities; any special or unusual conditions or occurrences encountered; and the time of
termination of work for the day. All information shall be recorded in the daily log. The daily
log shall be kept on the Project site and shall be available at all times for inspection and
copying by the OWNER and DESIGN PROFESSIONAL.
3.3.3 The CMR, DESIGN PROFESSIONAL and CONSTRUCTION PROJECT MANAGER shall
meet at least every week or as otherwise determined by the OWNER and/or DESIGN
PROFESSIONAL during the course of the work to review and agree upon the work performed
to date and to establish the controlling items of work for the next three weeks. The CMR shall
publish, keep, and distribute minutes and any comments thereto of each such meeting.
3.3.4 CMR shall supervise and direct the work competently and efficiently, devoting such attention
thereto and applying such skills and expertise as may be necessary to perform the Work in
accordance with the Contract Documents. CMR shall be solely responsible for the means,
methods, techniques, sequences and procedures of construction.
3.4 CMR TO CHECK DRAWINGS, SPECIFICATIONS AND DATA: CMR shall use reasonable effort to
verify all dimensions, quantities and details shown on the drawings, specifications or other data
received from DESIGN PROFESSIONAL, and shall notify OWNER and DESIGN PROFESSIONAL
of all errors, omissions and discrepancies found therein within three (3) calendar days of discovery.
CMR will not be allowed to take advantage of any error, omission or discrepancy. CMR shall not be
liable for damages resulting from errors, omissions or discrepancies in the Contract Documents unless
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CMR recognized or should have recognized such error, omission or discrepancy and failed to report it
to DESIGN PROFESSIONAL.
3.5 DIFFERING SITE CONDITIONS:
3.5.1 In the event that during the course of the work, CMR encounters an underground utility
that was not shown on the Contract Documents; or subsurface or concealed conditions at
the Project site which differ materially from those shown on the Contract Documents or
from those ordinarily encountered and generally recognized as inherent in work of the
character called for in the Contract Documents; or unknown physical conditions of the
Project site, of an unusual nature, which differ materially from that ordinarily
encountered and generally recognized as inherent in work of the character called for in
the Contract Documents, CMR, without disturbing the conditions and before performing
any work affected by such conditions, shall, no later than 9:00 a.m. the next day after
their discovery, notify the OWNER and DESIGN PROFESSIONAL in writing of the
existence of the aforesaid conditions. DESIGN PROFESSIONAL shall, within one (1)
business day after receipt of CMR's written notice, investigate the site conditions
identified by the CMR. If, in the opinion of OWNER and DESIGN PROFESSIONAL,
the conditions do materially so differ and cause an increase or decrease in CMR's cost of,
or the time required for, the performance of any part of the work, whether or not charged
as a result of the conditions, DESIGN PROFESSIONAL shall recommend an equitable
adjustment to the contract price, or the Contract Time, or both, which is subject to written
approval by the OWNER. If DESIGN PROFESSIONAL, OWNER, and CMR cannot
agree on an adjustment in the contract price or Contract Time, the adjustment shall be
determined by the OWNER in accordance with Article 28 below.
3.5.2 No request by CMR for an equitable adjustment or change to the contract price or
Contract Time under this provision shall be allowed unless the CMR has given written
notice detailing the facts for such request in a reasonable time (not exceeding thirty (30)
days from when the CMR knew or should have known of such conditions) in accordance
with the provisions of this Section.
3.5.3 No request for an equitable adjustment or change to the contract price or Contract Time
for different site conditions shall be allowed if made after the date certified by DESIGN
PROFESSIONAL as the date of Substantial Completion.
3.6 SUBMITTALS:
3.6.1 CMR shall submit submittals (including but not limited to shop drawings, product
samples, product data, warranties, closeout submittals, reports and photographs) as
required by the General Conditions (Section 00700), General Requirements, and
specifications. The submittals serve as the CMR's coordination documents and
demonstrate the suitability, efficiency, technique of manufacture, installation
requirements, detailing and coordination of specified products, components, assemblies
and systems, and shall evidence compliance or noncompliance with the Contract
Documents. The CMR's submittals are not part of the Contract Documents but are
documents prepared and utilized by the CMR to coordinate the work.
3.6.2 Within ten (10) calendar days after the date of the Notice to Proceed, CMR shall submit
to DESIGN PROFESSIONAL and OWNER a list of all submittals to be required.
Within twenty (20) calendar days of the date of the Notice to Proceed, CMR shall submit
to DESIGN PROFESSIONAL (with a copy to the CONSTRUCTION PROJECT
MANAGER) a comprehensive list of items for which submittals are to be submitted and
shall identify the critical items, stating the dates for submittals and approval of
submittals. Approval of this list (the Submittal Schedule) by DESIGN PROFESSIONAL
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shall in no way relieve CMR from submitting complete and timely submittals as required
by the Contract Documents and providing services, products, materials, equipment,
systems and assemblies, fully in accordance with the Contract Documents.
3.6.3 After the approval of the submittal schedule, CMR shall promptly request submittals
from the various manufacturers, fabricators, and suppliers.
3.6.4 CMR shall thoroughly review and check the submittals and timely submit them to the
DESIGN PROFESSIONAL in accordance with the requirements for such submittals
specified in Division 1 of the specifications. Each submittal and required copy thereof
shall indicate the CMR's review of that submittal in the form required by the Contract
Documents.
3.6.5 The CMR shall maintain a Submittal Log which shall include, at a minimum, the date of
each submittal, the date of any resubmittal, the date of any approval or rejection, and the
reason for any approval or rejection.
3.6.6 If the submittals indicate deviations or departures from the requirements of the Contract
Documents, CMR shall make specific mention thereof in its letter of transmittal. Failure
to point out such deviations or departures shall not relieve CMR from its responsibility to
comply with the Contract Documents.
3.6.7 The DESIGN PROFESSIONAL shall have no duty to review partial or incomplete
submittals except as may be provided otherwise within the Contract Documents.
3.6.8 Provided such Submittals conform to the approved Submittal schedule, CMR shall allow
the DESIGN PROFESSIONAL up to fourteen (14) calendar days from the date received
by the DESIGN PROFESSIONAL for review and approval of the submittals, unless said
Submittals are rejected by DESIGN PROFESSIONAL for material reasons or the
Submittals are of substantial building systems which require more time for thorough
review. DESIGN PROFESSIONAL's approval of Submittals will be general and shall
not relieve CMR of responsibility for the accuracy of such drawings, nor for the proper
fitting and construction of the work, nor for the furnishing of materials or work required
by the Contract Documents. No work for which submittals are required shall be
performed until said Submittals have been approved by DESIGN PROFESSIONAL.
Approval shall not relieve CMR from responsibility for errors or omissions on the
Submittals or for compliance with the requirements of the Contract Documents.
3.6.9 No review or approval will be given to partial Submittals for items, which interconnect
and/or are interdependent where necessary to properly evaluate the Submittal. It is
CMR's responsibility to assemble the Submittals for all such interconnecting and/or
interdependent items, check them and then make one Submittal to DESIGN
PROFESSIONAL along with its comments as to compliance, noncompliance, or features
requiring special attention.
3.6.10 Additional information provided by the CMR on any Submittal shall be typewritten or
lettered in ink.
3.6.11 CMR shall submit the number of copies required by the Contract Documents plus the
number required by jurisdictional authorities (when submittals are to be made to such
authorities). Resubmissions of Submittals shall be made in the same quantity until final
approval is obtained from DESIGN PROFESSIONAL.
3.6.12 CMR shall keep one set of DESIGN PROFESSIONAL approved Submittals at the
Project site at all times.
3.7 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS:
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3.7.1 The entire responsibility for establishing and maintaining line and grade in the field lies
with CMR. CMR shall maintain an accurate and precise record of the location and
elevation of all pipe lines, conduits, structures, manholes, handholds, fittings and other
accessories/features and shall prepare a complete site survey sealed by an Arizona
registered Professional Surveyor which shall be submitted as a Project record document at
the time of requesting final payment. Final surveys shall be submitted in hardcopy and as
an electronic media submittal prepared in accordance with requirements for electronic
media submittals as specified elsewhere in the Project Manual. The cost of all such field
layout and recording work is included in the Contract Price for the Project.
3.7.2 CMR shall maintain in a safe place at the Project site, one record copy of all drawings,
plans, specifications, addenda, written amendments, change orders, field orders, submittals
and written interpretations and clarifications in good order and annotated to show all
changes made during construction. Each of these documents shall be clearly marked by
CMR as "Project Record Documents". These Project Record Documents together with all
approved samples and a counterpart of all approved Submittals shall be available at all
times to DESIGN PROFESSIONAL for reference. Upon final completion of the Project
and prior to Final Payment, these Project Record Documents, including Submittals and
other Project Record Documents required elsewhere in the Project Manual and
specifications shall be delivered to the CONSTRUCTION PROJECT MANAGER in an
electrical media as required by the OWNER.
3.7.3 Prior to, and as a condition precedent to Final Payment, the CMR shall submit to
OWNER, CMR's record drawings or as-built drawings acceptable to DESIGN
PROFESSIONAL. Record drawings/as-builts will be delivered on electronic media, CD
preferred, in AutoCAD format with all external references bound and PDF fonnat.
3.7.4 Prior to, and as a condition for substantial completion, the CMR shall deliver to DESIGN
PROFESSIONAL for review and approval and delivery of the same to the OWNER all
equipment data, along with its recommended spare parts list, manufacturer's warranties
(separately) and operations and maintenance manuals as may be required within the
Project Manual for the OWNER's employees and agents to maintain and operate any
equipment provided as part of the work. Submission of the above documents shall include
(1) one hardcopy and (1) one electronic copy.
3.8 INSPECTION AND TESTING:
3.8.1 DESIGN PROFESSIONAL and OWNER shall have reasonable access to the work, and
CMR shall provide the DESIGN PROFESSIONAL and OWNER with the facilities
described in the specifications, drawings, and solicitation for such access and for
inspecting, measuring and testing.
3.8.1.1 Should the Contract Documents, DESIGN PROFESSIONAL's instructions, any
laws, ordinances, or public authority require any of the Work to be specially
tested or approved, CMR, shall update and provide weekly for the OWNER and
DESIGN PROFESSIONAL a three (3) week Look-Ahead Schedule denoting all
activities to be performed and highlighting those that need testing and approval.
If the testing or approval is to be made by an authority other than OWNER,
timely notice shall be given of the date fixed for such testing. Testing shall be
made promptly, and where practicable, at the source of supply.
3.8.1.2 If any of the Work which requires approval is covered up without approval or
consent of Authority Having Jurisdiction, it must, if required by the Authority
Having Jurisdiction, be uncovered at CMR's cost for examination and properly
restored to the satisfaction of the DESIGN PROFESSIONAL and OWNER.
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3.8.1.3 Should reexamination of any of the Work be ordered by DESIGN
PROFESSIONAL or OWNER for any reason other than that specified in 3.8.1.2,
the Work must be uncovered by the CMR. If such work is found to be in
accordance with the Contract Documents, OWNER shall pay the cost of
reexamination and replacement by means of a Change Order. If such work is not
in accordance with the Contract Documents, CMR shall pay such cost to be
deducted from the CMR's fee at no additional cost to OWNER and no extension
of time will be granted.
3.8.2 No inspector, employee or agent of the OWNER shall have the authority to permit
deviations from, nor to modify any of the provisions of the Contract Documents nor to
delay the contract by failure to inspect the materials and work with reasonable
promptness without written permission and instruction by the CONSTRUCTION
PROJECT MANAGER.
3.8.3 The payment of any compensation, whatever may be its character or form, or the giving
of any gratuity or the granting of any favor by CMR to any inspector, directly or
indirectly, is strictly prohibited, and any such act on the part of the CMR will constitute a
breach of this contract.
3.9 TAXES: CMR shall pay all applicable sales, consumer, use and other taxes required by law.
CMR is responsible for reviewing the pertinent state statutes and regulations involving state taxes
and complying with all requirements.
ARTICLE 4- PRIORITY OF PROVISIONS
4.1 The Contract Documents shall be interpreted so as to eliminate inconsistencies or conflicts, but in
the event of any conflict, requirements for greater quantity and/or more expensive work indicated
shall govern such interpretation.
4.2 Anything shown on the drawings and not mentioned in the specifications or mentioned in the
specifications and not shown on the drawings shall have the same effect as if shown or mentioned
respectively in both. In the event of a conflict among the Contract Documents, the most stringent
requirements applicable to the CMR shall control.
4.3 In case of conflicts between the provisions of this Contract, any ancillary documents executed
contemporaneously herewith or prior hereto, or any other of the Contract Documents, the
provisions of this Contract (including all Exhibits) shall prevail in the order of preference stated
in the General Conditions (See § 1.1.7).
4.4 The organization of the Specifications into divisions and sections and the arrangement of
drawings shall not control CMR in dividing the Work among subcontractors or in establishing the
extent of the work to be performed by any trade. The organization of the Specifications and the
arrangement of the Drawings are for the convenience of the CMR and is not intended to relieve
the CMR from its obligation to conduct a complete study of the Drawings, Specifications and
Addenda for the purpose of directing and coordinating the various subcontractors and suppliers as
to their respective responsibilities.
ARTICLE 5- DESIGN PROFESSIONAL'S AUTHORITY
5.1 DESIGN PROFESSIONAL will provide overall technical and management services to assist the
OWNER in maintaining schedules, establishing budgets, controlling costs, and achieving quality.
5.2 If at any time the DESIGN PROFESSIONAL observes or becomes aware of any fault or defect in
the Work or of any nonconformance with the Contract Documents, DESIGN PROFESSIONAL
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will promptly notify the OWNER and CMR in writing and will recommend reasonable steps be
taken to correct such fault, defect or nonconformance. The OWNER shall have the authority to
reject work that does not, in its opinion, conform to the Contract Documents.
5.3 DESIGN PROFESSIONAL shall monitor and report to the OWNER the overall quality and
progress of the Work.
5.4 DESIGN PROFESSIONAL shall not have control over construction means, method, techniques,
sequences and procedures employed by CMR in the performance of the work, but shall be
responsible for using its best efforts to review and, if unacceptable, disapprove such and shall
recommend a course of action to the OWNER if requirements of the Contract Documents are not
being met by CMR.
5.5 The OWNER will be assisted by DESIGN PROFESSIONAL in the areas of on-site review of
work in progress, review of pay requests submitted by the CMR, assisting in the interpretation of
the intent of the Contract Documents for the proper execution of the work, and such other
assistance as the OWNER may request.
5.6 The DESIGN PROFESSIONAL shall have no authority to order or approve any deviation from
the Contract Documents, if such deviation affects the Cost of the Work, or the date of Substantial
Completion. In the event any such deviation is sought by DESIGN PROFESSIONAL or CMR,
prior written approval from the CONSTRUCTION PROJECT MANAGER must be obtained.
5.7 Any responsibility not specifically delegated to the DESIGN PROFESSIONAL in the contract
between the OWNER and the DESIGN PROFESSIONAL and not identified as responsibility of
the OWNER in the Contract shall be deemed a question of means and methods and shall be the
responsibility of the CMR.
ARTICLE 6- TIME FOR PERFORMANCE
6.1 CONTRACT TIME:
6.1.1 CMR shall be instructed to commence the work by written Notice-to-Proceed issued by
the OWNER. The Notice-to-Proceed will not be issued until CMR's submission to
OWNER of all required documents and after execution of the CONTRACT by both
parties. Preliminary work, including submission of a Baseline Project Schedule,
Schedule of Values, Submittal Schedule, completed security clearance documents for all
personnel and a subcontractor list, performance of work that does not require permits,
shall be submitted within ten (10) calendar days after the date of the Notice-to-Proceed.
Receipt of all permits, the Guaranteed Maximum Price, insurance documents, payment
bond and performance bond documents and the signed contract are all conditions
precedent to the issuance of a Notice-to-Proceed for all other Work. The Work to be
performed pursuant to the Notice-to-Proceed shall commence within ten (10) calendar
days of the Project Initiation Date specified in the Notice-to-Proceed.
6.1.2 Time is of the essence throughout this contract. The Project shall be substantially
completed within 188 calendar days from the date of the Notice to Proceed. The total
Project shall be completed and ready for fmal payment in accordance with Article 8
within 188 calendar days from the date certified by DESIGN PROFESSIONAL as the
date of Substantial Completion.
6.1.3 Upon failue of CMR to substantially complete the Project within the specified period of
time, plus approved time extensions, CMR shall pay to OWNER the sum of six hundred
Dollars ($600.00) for each calendar day after the time specified in Article 6.1.2, plus any
approved extensions for Substantial Completion. After Substantial Completion, should
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CMR fail to complete the remaining work within the time specified in Article 6.1.2
above, plus approved time extensions thereof, for completion and readiness for Final
Completion, CMR shall pay to OWNER the sum of Six Hundred Dollars ($600.00) for
each calendar day after the time specified in Article 6.1.2 above, plus any approved
extensions, for completion and readiness for final payment. These amounts are not
penalties but are liquidated damages to OWNER for its inability to obtain full beneficial
occupancy of the Project.
6.1.4 Upon failure of CMR to finally complete the Project within the specified period of time,
plus approved time extensions, CMR shall pay to OWNER the sum of six hundred
Dollars ($600.00) for each calendar day after the time specified in Article 6.1.2, plus any
approved extensions for Final Completion. After Final Completion, should CMR fail to
complete the remaining work within the time specified in Article 6.1.2 above, plus
approved time extensions thereof; for completion and readiness for Final Completion,
CMR shall pay to OWNER the sum of six hundred Dollars ($600.00) for each calendar
day after the time specified in Article 6.1.2 above, plus any approved extensions, for
completion and readiness for final payment. These amounts are not penalties but are
liquidated damages to OWNER for its inability to obtain full beneficial occupancy of the
Project.
6.1.5 Liquidated damages are hereby fixed and agreed upon between the parties, recognizing
the impossibility or difficulty of precisely ascertaining the amount of damages that will
be sustained by OWNER as a consequence of such delay, and both parties desiring to
obviate any questions of dispute concerning the amount of said damages and the cost and
effect of the failure of CMR to complete the Contract on time. The above-stated
liquidated damages shall apply separately to Substantial Completion and Final
Completion.
6.1.6 PROJECT MANAGER and/or CONSTRUCTION PROJECT MANAGER is authorized to
deduct liquidated damages from monies due to CMR for the work under this contract or as
much thereof as PROJECT MANAGER and/or CONSTRUCTION PROJECT MANAGER
may, at its option, deem just and reasonable.
6.1.7 CMR shall be responsible for reimbursing OWNER, in addition to liquidated damages, for
all costs incurred by DESIGN PROFESSIONAL in administering the construction of the
Project beyond the completion dates specified above or beyond an approved extension of
time granted to CMR, whichever date is later. Such costs shall be deducted from the monies
due CMR for performance of work under this contract by means of unilateral deductive
change orders by OWNER.
6.1.8 Extensions to the Contract Time for delays caused by the effects of adverse weather shall be
submitted as a request for change in Contract Time pursuant to Article 6.3. If adverse
weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions were abnormal for the period of
time and could not have been reasonably anticipated, and that weather conditions had an
adverse effect on the scheduled construction.
6.2 SUBSTANTIAL COMPLETION DATE:
6.2.1 When CMR considers that the Work, or portion thereof designated by PROJECT
MANAGER pursuant to Article 6.4 hereof, has reached Substantial Completion, CMR shall
notify the DESIGN PROFESSIONAL in writing. The DESIGN PROFESSIONAL and the
CONSTRUCTION PROJECT MANAGER shall then promptly inspect the work.
6.2.2 When OWNER, on the basis of such an inspection, determines that the work or designated
portion thereof is substantially complete, DESIGN PROFESSIONAL will then prepare a
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Certificate of Substantial Completion by utilizing form No. AIA G704 or a comparable
form, which shall establish the Date of Substantial Completion; shall state the
responsibilities of OWNER and CMR for security, operation, safety, maintenance, utilities,
damage to the work, insurance, and warranties; shall list all work yet to be completed
(Punch List) to satisfy the requirements of the Contract Documents for Final Completion.
The failure to include any items of corrective work on such list does not alter the
responsibility of CMR to complete all of the work in accordance with the Contract
Documents. The Certificate of Substantial Completion shall be submitted to the
CONSTRUCTION PROJECT MANAGER, after execution by CMR, and DESIGN
PROFESSIONAL, indicating their written acceptance of such certificate.
6.3 NOTIFICATION OF CHANGE OF CONTRACT TIME OR CONTRACT PRICE:
6.3.1 Any claim for a change in the Contract Time or Contract Price shall be made by written
notice and delivered by CMR to the DESIGN PROFESSIONAL within five (5) calendar
days of the commencement of the event giving rise to the claim and stating the general
nature of the claim. Notice of the nature and elements of the claim shall be delivered within
twenty (20) calendar days after the date of such written notice. Thereafter, within ten (10)
calendar days of the termination of the event giving rise to the claim, notice of the extent of
the claim with supporting data shall be delivered unless DESIGN PROFESSIONAL allows
an additional period of time to ascertain more accurate data in support of the claim and shall
be accompanied by CMR's written statement and explanation how the adjustment claimed is
justified as a result of the occurrence of said event. All claims for adjustment in the Contract
Time or contract price shall ultimately be determined by OWNER in accordance with
Article 28 hereof, if OWNER and CMR cannot otherwise agree. NO CLAIM FOR AN
ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT PRICE WILL BE VALID
IF NOT SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF
THIS SECTION AND ARTICLE 28 HEREOF.
6.3.2 The Contract Time will be extended in an amount equal to time lost due to delays beyond
the control of and through no fault or negligence of CMR if a claim is made therefore as
provided in Articles 6.3.1 and 7.7. Such delays shall include, but not be limited to, acts
or neglect by any separate independent contractors employed by OWNER, fires, floods,
labor disputes, epidemics, abnormal weather conditions or acts of God.
6.3.3 All approved Change Orders will be considered full and final and inclusive of all claims
related thereto, both as to time and costs.
6.4 USE OF COMPLETED PORTIONS:
6.4.1 OWNER shall have the right, at its sole option, to take possession of and use of any
completed or partially completed portions of the Project. Such possession and use shall
not be deemed an acceptance of any of the Work not completed in accordance with the
Contract Documents. If such possession and use increases the cost of or delays of the
work, CMR shall be entitled to reasonable extra compensation, or reasonable extension of
time or both, by appropriate adjustment pursuant to Articles 7.4 and 7.6 hereof.
6.4.2 In the event OWNER takes possession of any completed or partially completed portions
of the Project, the following shall occur:
6.4.2.1 OWNER shall give notice to CMR in writing at least fifteen (15) calendar
days prior to OWNER's intended occupancy of a designated area.
6.4.2.2 CMR shall complete to the point of Substantial Completion the designated
area. Additionally, CMR shall submit a request for an inspection and issuance
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of a Certificate of Substantial Completion (AIA - Form G704 or equivalent)
for the designated area. The CMR's open punch list for that area shall be
attached to the request for Substantial Completion.
6.4.2.2.1 Upon DESIGN PROFESSIONAL's issuance of a Certificate of
Substantial Completion, OWNER will assume full responsibility
for maintenance, utilities, subsequent damages of the area by the
OWNER and the public, adjustment of insurance coverage and
start of warranty for the occupied area.
6.4.2.3 If the OWNER finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use shall not
commence prior to a time mutually agreed upon by OWNER and CMR and to
which the insurance company or companies providing the property insurance
have consented by endorsement to the policy or policies. Insurance on the
unoccupied or unused portion or portions shall not be canceled or lapsed on
account of such partial occupancy or use. Consent of CMR and of the
insurance company or companies to such occupancy or use shall not be
unreasonably withheld.
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ARTICLE 7- CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
7.1 CHANGE ORDER - AMENDMENTS:
7.1.1 Any changes to the terms of the Contract Documents must be contained in a written
document, executed by the parties hereto, with the same formality and of equal dignity
prior to the initiation of any work reflecting such change. This section shall not prohibit
the issuance of Change Orders executed only by OWNER as hereinafter provided.
7.1.2 All amendments to this Contract shall be in writing and approved/signed by both parties.
7.2 EXTRA WORK: Without invalidating the Contract and without notice to the surety, OWNER
reserves and shall have the right, from time to time, to make such increases, decreases or other
changes in the character, timing, or quantity of the work as may be considered necessary or
desirable to complete fully and acceptably the proposed construction in a satisfactory manner Any
extra or additional work within the scope of this Project must be accomplished by means of an
appropriate Change Order in accordance with the requirements of the Contract Documents.
7.3 EXPEDITING THE WORK: The CONSTRUCTION PROJECT MANAGER may direct the CMR
to expedite the work by whatever means the CMR may choose, including, without limitation,
increasing staffing or working overtime to bring the work back within the progress schedule. If the
expediting of Work is required due to reasons outside the control or responsibility of the CMR, then
the additional costs incurred shall be the subject of an appropriate adjustment issued pursuant to
Articles 7.4 and Article 7.6, below, as applicable.
7.4 CHANGE ORDER PROCEDURES:
7.4.1 Changes in the quantity or character of the work within the scope of the Project including
ones which are the subject of Field Orders or Supplemental Instructions, and including all
changes resulting in changes in the contract price, or the Contract Time, shall be authorized
only by written change orders approved and issued in advance of the work and in
accordance with the provisions of the Contract Documents and Article 5 of the Maricopa
County Procurement Code which is deemed to be incorporated by reference herein as
though set forth in full.
7.4.2 The CMR's overhead and fee on such changes which exceeds GMP shall be determined by
a mutually acceptable agreement between the Owner and CMR prior to execution of this
Contract. The CMR's overhead for this project shall be $91,952.87 (with no Alternate 1
or 2). The CMR's fee for this project shall be $76,627.39 (with no Alternate 1 or 2). The
combined total of overhead and fee will not exceed $168,580.26 (Not including Alternate
1 or 2) .
7.4.3 Subcontractor's percentage markup on change orders for overhead and profit shall be
reasonable, but in no event shall the aggregate of the subcontractor's overhead and profit
markups exceed fifteen percent (15%). In the event subcontractor is affiliated with the
CMR by common OWNERship or management, or is effectively controlled by the CMR,
no fee will be allowed on the subcontractor costs. In the event there is more than one level
of subcontractor, such as second and third tier subcontractors, the sum of all of the
subcontractor's percentage markups for overhead and profit shall not in the aggregate
exceed twenty percent (20%).
7.4.4 CMR shall not start work on any changes requiring an increase in the contract price or the
Contract Time until a Change Order setting forth adjustments is approved and issued by the
OWNER. If the CMR commences work pertaining to a Change Order prior to receiving
written authorization through the CONSTRUCTION PROJECT MANAGER it does so at
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its own risk and assumes all associated responsibility and costs. Upon receipt of a Change
Order, CMR shall promptly proceed with the work set forth within the document.
7.4.5 In the event satisfactory adjustment cannot be reached for any item requiring a change in
the Contract Price or Contract Time, and a Change Order has not been issued, OWNER
reserves the right at its sole option to either terminate the Contract as it applies to the items
in question and make such arrangements as may be deemed necessary to complete the
disputed work; or submit the matter in dispute to ADR as set forth in the attached Exhibit,
incorporated herein. During the pendency of the dispute, and upon receipt of a Change
Order, CMR shall promptly proceed with the change in the work involved and advise the
CONSTRUCTION PROJECT MANAGER in writing within seven (7) calendar days of
CMR's agreement or disagreement with the method, if any, provided in the Change Order
for determining the proposed adjustment in the Contract Price or Contract Time.
7.4.6 On approval of any Contract change increasing the contract price, CMR shall ensure that
the Performance Bond and Payment Bond are increased so that each reflects the total
contract price as increased.
7.4.7 To avoid delays to the Project and to mitigate damages to the parties, Change Orders may
be issued unilaterally by OWNER in accordance Article 5 of the Maricopa County
Procurement Code and the Article 5 Procedures Manual.
7.4.8 All approved Change Orders will be deemed final and inclusive of all claims related
thereto, including costs and time.
7.5 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS:
7.5.1 The DESIGN PROFESSIONAL shall have the right to approve and issue changes setting
forth written interpretations of the intent of the Contract Documents and ordering minor
changes in work execution, providing the Field Order involves no change in the Contract
Price or Contract Time.
7.5.2 DESIGN PROFESSIONAL shall have the right to approve and issue Supplemental
Instructions setting forth written orders, instruction, or interpretations concerning the
Contract Documents, provided such supplemental instructions involve no change in the
contract price or Contract Time.
7.6 NO DAMAGES FOR DELAY: No claim for damages, or any claim other than for an extension
of time, shall be made or asserted against OWNER by reason of any delays unless such delay is
one for which the Owner is responsible, which is unreasonable under the circumstances and
which was not one within the contemplation of the parties at the time of contracting. Otherwise
CMR shall not be entitled to an increase in the Contract Price or payment or compensation of any
kind from OWNER for direct, indirect, consequential, impact or other costs, expenses or
damages, including, but not limited to, costs of acceleration or inefficiency, arising because of
delay, disruption, Eichleay Formula Costs, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference or hindrance be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable; provided further, however, that this
provision shall not preclude recovery of damages by CMR for hindrance or delays due solely to
fraud, bad faith or active interference on the part of OWNER or its agents. Otherwise, CMR
shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for
such resulting delay, in accordance with and to the extent specifically provided above.
7.7 EXCUSABLE DELAY: COMPENSABLE & NON-COMPENSABLE:
7.7.1 Excusable Delay: Delay which extends the completion of the work which is caused by
circumstances beyond the control of CMR or its subcontractors, materials persons,
suppliers, or vendors is Excusable Delay. CMR is entitled to a time extension of the
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Contract Time for each day the work is delayed due to excusable delay. CMR shall
document its claim for any time extensions as provided in Article 6.3 hereof.
7.7.1.1 Failure of CMR to timely comply with Article 6.3 hereof as to any particular event
of delay shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any and all claims resulting from that particular event of delay.
7.7.2 Excusable Delay may be compensable or non-compensable.
7.7.2.1 Compensable Excusable Delay. Excusable Delay is only compensable when: (i) the
delay extends the Contract Time, and (ii) is one for which the Owner is
responsible, which is unreasonable under the circumstances and one not within the
contemplation of the parties at the time of contracting or is due solely to fraud, bad
faith or active interference on the part of OWNER or its DESIGN
PROFESSIONAL. In no event shall CMR be compensated for interim or non-
critical delays, which do not extend the Contract Time. CMR shall be entitled to
direct and indirect costs for Compensable Excusable Delay. Direct costs
recoverable by CMR shall be limited to actual additional costs allowed pursuant to
Article 8.3 hereof. All indirect costs shall be compensated through the overhead
percentage previously agreed to for revisions.
7.7.2.2 Non-Compensable Excusable Delay. When Excusable Delay is (i) caused by
circumstances beyond the control of CMR, its subcontractors, material persons,
suppliers and vendors, or is also caused by circumstances beyond the control of the
OWNER or (ii) is caused jointly or concurrently by CMR or its subcontractors,
materials persons, suppliers or vendors and by the OWNER or DESIGN
PROFESSIONAL, then CMR shall be entitled only to a time extension and no
further compensation for the delay.
ARTICLE 8 - PAYMENTS AND COST OF THE WORK
8.1 In full consideration of the full and complete performance of the Work and all other obligations of
the CMR hereunder, the OWNER shall pay to the CMR a sum of money not to exceed the contract
price which is defined to be the total of: (i) the CMR's Direct Construction Cost, (ii) so much of the
CMR's General Conditions as may have been expended, (iii) so much of the approved amount of
the CMR Contingency as may have been expended, and (iv) the CMR's construction management
"percentage of cost" fee. The contract price shall not exceed the sum shown in Article 1.0 as the
Guaranteed Maximum Price, adjusted to take into account any approved Change Orders, and shall
mean those costs necessarily incurred and paid by the CMR in connection with the performance of
all the work.
8.2 After completion and acceptance of the work, in the event that the Cost of the Work plus the
CMR's "percentage of cost" fee are less than the Guaranteed Maximum Price after giving effect
to adjustments to the GMP made in accordance with this Contract then the difference between the
Cost of the Work plus the CMR's "percentage of cost" fee on the one hand and the GMP on the
other hand is the "savings". The savings shall accrue to the OWNER as stated in Article 8.1. The
OWNER reserves the right to issue a deductive Change Order at any point during the Project,
reducing the OWNER Contingency. The OWNER also reserves the right to issue a deductive
Change Order at any point during the Project, as agreed to by the CMR, deducting CMR
Contingency or calculated savings from the Guaranteed Maximum Price. In the event that the
CMR's total approved expenditures for the Project shall exceed the Guaranteed Maximum Price,
the CMR shall pay such excess from its own funds, and the OWNER shall not be required to pay
any amount that exceeds the GMP; and the CMR shall have no claim against the OWNER on
account thereof.
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8.3 The term "Cost of the Work" shall mean the sum of all direct costs necessarily and reasonably
incurred and paid by the CMR in the performance of the Work. Such costs shall be at rates not
higher than those customarily paid in the locality of the Project except with the prior written
consent of OWNER. The Cost of the Work shall include only those items set forth in this Article
8.3 and shall not include any items listed in Article 8.4. Cost of the Work shall be determined as
follows:
8.3.1 SUBCONTRACTOR COSTS:
8.3.1.1 The CMR's Direct Construction Cost, for the work as generally described in
Exhibit A, attached hereto, to be performed by the General CMR or performed
by subcontractor selected in accordance with Article 11, below. Where the
work is covered by unit prices contained in the Contract Documents or an
applicable subcontract, the Cost of the Work shall be determined by application
of unit prices to the quantities of items involved.
8.3.1.2 Whenever a change in subcontractor work is to be based on mutual acceptance
of a lump sum, whether the amount is an addition, credit or no change-in-cost,
CMR shall submit an initial cost estimate obtained from the subcontractor and
acceptable to OWNER subject to the Limitations set forth in Article 7.4. The
breakdown shall list the quantities and earlier agreed unit prices for materials,
labor, equipment and other items of cost. Whenever a change involves more
than one subcontractor and the change is an increase in the GMP, overhead and
profit percentage of each subcontractor and CMR, if applicable, shall be
itemized separately.
8.3.1.3 If the subcontract provides that the subcontractor is to be paid on the basis of
Cost of the Work plus a fee, the subcontractor's Cost of the Work shall be
determined in the same manner as CMR's Cost of the Work, subject to the
limitation on subcontractor's fees set forth in Article 7.4.
8.3.1.4 If changes to subcontracted work affected the GMP, such changes shall be
accomplished in accordance with Article 7.4, Change Orders. The amount of
decrease in the GMP, for any change that results in a net decrease in cost, will
be the amount of the actual net decrease. When both additions and decreases
are involved in any one change, the combined effect shall be figured on the
basis of the net change in the GMP, if any.
8.3.2 CMR'S LABOR COSTS: Costs for employees in the direct employ of CMR in the
performance of the work described in the Contract Documents. In lieu of wages and a
labor burden, it is agreed that wages shall be reimbursed in accordance with Attachment
A — Billable Rate Schedule, which shall be mutually agreed upon for the duration of the
Project by OWNER and CMR. Costs for employees not employed full time on the work
covered by the Contract shall be apportioned on the basis of the time the employees spent
on the work. In lieu of wages and a labor burden, it is agreed that wages shall be
reimbursed in accordance with Attachment "A" - Billable Rate Schedule. Rates included
in Attachment A — Billable Rate Schedule shall include salaries, social security
contributions, unemployment, excise and payroll taxes, working compensation, health
insurance, sick leave, pensions or 401k programs, vacation and holiday pay. A detailed
accounting of time spent on the Project must be provided at the request of the County
within seven (7) business days of the receipt by the CMR of written request therefor.
8.3.3 MATERIALS AND EQUIPMENT: Cost of all materials and equipment furnished and
incorporated in the work, including costs of transportation and storage thereof, and
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manufacturers' field services required in connection therewith, adjusted in accordance with
Article 10, pertaining to Discounts, Rebates and Refunds; rentals of all construction
equipment and machinery and the parts thereof whether rented from CMR of others in
accordance with rental agreements and the costs of transportation, loading, unloading,
installation, dismantling and removal thereof, all in accordance with the terms of said
agreements. The rental of any such equipment, machinery or parts shall cease when the use
thereof is no longer necessary for the work.
8.3.4 MISCELLANEOUS COSTS:
8.3.4.1 The cost, as documented by the CMR's detailed receipts, of telephone, telegrams,
postage, photographs, blueprints, office supplies, first aid supplies and related
miscellaneous costs reasonably incurred in direct support of the work at the
Project location.
8.3.4.2 Premiums on bonds and insurance, including subcontractor bonds, if any that the
CMR secures and maintains under the terms of the CONTRACT DOCUMENTS
and such other insurance and bonds as may be required, All insurance and bonds
shall be provided by companies acceptable to the OWNER 's Risk Manager.
8.3.4.3 Self-insurance by the CMR or insurance through any affiliates of CMR shall not
be permitted without the OWNER's prior written approval. OWNER's approval
shall not be required on a subcontractor bond, and premiums thereof shall be
considered a Cost of the Work.
8.3.4.4 The cost of obtaining and using any utility services required for the Work that are
not paid directly by OWNER, including fuel and sanitary services at the Project
site.
8.3.4.5 The cost of removal of debris from the site. The Project site, lay-down locations,
and staging sites will be kept clear of all debris on a daily basis. All subcontracts
shall require subcontractors to remove all debris daily created by their activities,
and the CMR shall exercise its best efforts to enforce such requirements or effect
the removal of the debris of the subcontractors who fail in this regard. Provided,
however, the CMR shall not be required to remove debris created by the
OWNER' s separate CMRs except pursuant to Change Order procedures set forth
herein.
8.3.4.6 The cost and expenses, actually sustained by the CMR in connection with the
work, of protecting and repairing adjoining property, if required, except to the
extent that any such cost or expense is:
8.3.4.6.1 the responsibility of the CMR under Article 13, reimbursable by
insurance or otherwise;
8.3.4.6.2 Due to the failure of the CMR to comply with the requirements of
the Contract Documents with respect to insurance; or
8.3.4.6.3 Due to the failure of any officer of the CMR or any of its
representatives having supervision or direction of the Work to
exercise good faith or the standard of care normally exercised in the
conduct of the business CMR experienced in the performance of
work of the magnitude, complexity and type encompassed by the
Contract Documents, in any of which events any such expenses shall
not be included in CMR's costs.
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8.3.4.7 Federal, state, municipal, sales, use and other taxes required by law, as
applicable to the Project, all with respect to service performed or materials
furnished for the work, it being understood that none of the foregoing includes,
federal, state or local income or franchise taxes.
8.3.4.8 All reasonable costs and expenditures necessary for the operation of the Project
job site office(s), including cost of field computer equipment and software.
8.3.4.9 The proportion of necessary transportation, travel and subsistence expenses of
CMR's employees, excluding travel time, incurred in discharge of duties
connected with the work except for local travel to and from the site of the
Work. Out of state travel must be approved in advance in writing by the
OWNER.
8.3.4.10 Cost, including transportation and maintenance, of all materials, supplies,
equipment, machinery, appliances, office and temporary facilities at the site
and hand tools not owned by the workers, which are consumed in the
performance of the work, and cost less market value of such items used but not
consumed which remain the property of CMR.
8.3.4.11 Deposits lost for causes other than CMR's negligence, royalty payments and
fees for permits and licenses.
8.3.4.12 Cost of premiums for additional bonds and insurance required because of
changes in the Work.
8.3.4.13 Cost of special DESIGN PROFESSIONALS, including, but not limited to,
engineers, architects, testing laboratories, surveyors employed for services
specifically related to the Work except for those required for deferred
submittals.
8.3.4.14 Any other expenses or changes incurred, with the prior written approval of the
OWNER, in the performance of the Work.
8.4 EXCLUSIONS TO COST OF THE WORK: Overhead is defined as any and all other costs, not
referenced in Article 8.3, of the CMR and its operation which are not in direct support of the
Project. The CMR agrees to furnish and perform, as a part of the CMR's Fee and without
reimbursement, said overhead items. The term "Cost of the Work" shall not include any of the
following:
8.4.1 Payroll costs and other compensation of CMR's officers, executives, principals (of
partnership and sole proprietorship), general managers, estimators, purchasing and
contracting agents, clerks and other personnel employed by CMR whether or not
approved by the OWNER whether at the site or in its principal or a branch office for
general administration that are not specifically included in the General Conditions are to
be considered administrative costs covered by CMR's fee.
8.4.2 Other than those expenses authorized on Exhibit B, expenses of CMR's principal and
branch offices.
8.4.3 Any part of CMR's capital expenses, including interest on CMR's capital employed for
the Work and charges against CMR for delinquent payments.
8.4.4 Other overhead, general expense costs or charges of any kind and the cost of any item not
specifically and expressly included in Article 8.3.
8.4.5 Costs in excess of the Guaranteed Maximum Price.
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8.4.6 Entertainment and meal expenses, car allowances and charges of a personal nature.
8.4.7 Bonuses, pensions, profit sharing or other special labor charges not included in Article
8.3.2, above.
8.4.8 Any outside legal or accounting fees incurred without prior written approval from the
OWNER, which approval is at the sole discretion of the OWNER.
8.5 PROGRESS PAYMENTS:
8.5.1 CMR may make Application for Payment for Work completed during the Project
utilizing AIA form 702/703 or equivalent at intervals of not more than once a month.
CMR shall submit such applications to the DESIGN PROFESSIONAL. CMR's
application shall show a complete breakdown of the Project components, the percentages
completed and the fees and General Conditions amounts due in proportion to the
percentages of the Work completed. Each application shall be accompanied by such
supporting evidence as may be reasonably required by DESIGN PROFESSIONAL and
OWNER, however each application shall, at a minimum be accompanied by a conditional
lien waiver, and in addition thereto, an unconditional lien waiver for the preceding
application for payment. CMR shall submit with each Application for Payment, an
updated progress schedule acceptable to DESIGN PROFESSIONAL and OWNER. Each
Application for Payment shall be accompanied by a completed SBE Program
Participation Reporting form in the form attached hereto as an Exhibit. OWNER shall
make payment to CMR, as required by A.R.S. § 34-609 and the Prompt Payment Act.
8.5.2 Ten percent (10%) of all monies earned by CMR shall be retained by OWNER until Final
Completion and acceptance by OWNER in accordance with Article 8.5.4 hereof.
8.5.3 After fifty percent (50%) of the Work has been completed, the PROJECT MANAGER
may reduce the total retainage held to five percent (5%) of all monies previously earned
and all monies earned thereafter. Any reduction in retainage shall be in the sole
discretion of the CONSTRUCTION PROJECT MANAGER, and CMR shall have no
entitlement to a reduction. Any interest earned on retainage shall accrue solely to the
benefit of OWNER.
8.5.4 The CMR shall have the right, pursuant to Arizona Revised Statues, to submit securities
in lieu of retention. The CMR is required to request this option at least ten (10) business
days prior to submission of first Application for Payment to allow time for preparation of
forms.
8.5.5 OWNER may withhold, in whole or in part, any progress payment to CMR to such extent
as may be sufficient to pay the Expenses the OWNER reasonably expects to incur to
correct an deficiency in the Work set forth in specific written findings by DESIGN
PROFESSIONAL or CONSTRUCTION PROJECT MANAGER prepared for those
items in the pay application of the estimate of the Work that are not approved for
payment in that pay application under Contract. If PROJECT MANAGER in its good
faith judgment, determines that the portion of the GMP then remaining unpaid will not be
sufficient to complete the Work in accordance with Contract Documents as set forth in
written detail and provided to CMR pursuant to A.R.S. § 34-609, no additional payments
will be due to CMR hereunder unless and until CMR, at its sole cost, performs a
sufficient portion of the Work so that such portion of the GMP then remaining unpaid is
determined by DESIGN PROFESSIONAL and PROJECT MANAGER to be sufficient to
so complete the Work. It is the intention of this Article 8.5 to provide OWNER with the
maximum protection afforded an OWNER under the Prompt Pay Provisions of A.R.S. §
34-609.
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8.5.6 The Schedule of Values, prepared in accordance with Exhibit B, shall reflect the CSI
Divisions including the cost of materials, the cost of labor, the cost of equipment and the
cost of subcontractor Work. Each monthly Application for Payment shall be for a sum
equal to (i) that portion of the CMR's Direct Construction Cost equal to the percentage of
the Work completed; plus (ii) an appropriate amount of the CMR 's General Conditions
Costs and Fees as related to the percentage of the Work completed. The calculation of
the percentage of the Work completed shall be in accordance with the approved Progress
Schedule; provided, however, prior to the date of the Final Request, and unless subject to
reduction under Article 8.5.2, the aggregate of the CMR's Fee payments shall not exceed
Ninety (90%) percent of the CMR's Fee as stated in Article 8.3.
8.5.7 The CMR's Direct Construction Cost shall be segregated and detailed in a manner
satisfactory to the DESIGN PROFESSIONAL and CONSTRUCTION PROJECT
MANAGER to evaluate the charges. The Request for Payment shall indicate the
percentage of completion of each portion of the Work, and the total Work, as of the end
of the period covered by the Application for Payment. The Schedule of Values shall be
used as one basis for reviewing the Request for Payment when such amounts are
approved.
8.6 The DESIGN PROFESSIONAL and CONSTRUCTION PROJECT MANAGER shall review
each such Request for Payment and may make such exceptions, as the DESIGN
PROFESSIONAL and the CONSTRUCTION PROJECT MANAGER reasonably deem
necessary or appropriate under the state of circumstances then existing. Final determination
resides with the CONSTRUCTION PROJECT MANAGER. In no event shall the OWNER be
required to make payment for items of the CMR's Cost to which the CONSTRUCTION
PROJECT MANAGER reasonably take(s) exception.
8.7 CMR shall remain solely liable for subcontractor's Work and for any unpaid laborers, material
suppliers or subcontractors in the event it is later discovered that said Work is deficient or that
any of said laborers, material suppliers or subcontractors did not receive payments due them on
the Project.
8.8 Within 30 days after Final Completion of the Work and acceptance thereof by the OWNER, the
CMR shall submit a Final Request for Payment (Final Request) to the DESIGN
PROFESSIONAL, which shall set forth all amounts due and remaining unpaid to the CMR
(including the unpaid portion of the CMR's Fee).
8.9 Except for the CMR's Fee, the CMR shall use the sums paid to it pursuant to this Article 8 solely
for the purpose of performance of the Work and the construction, furnishing and equipping of the
Work in accordance with the Contract Documents and payments of bills incurred by the CMR in
performance of the Work.
8.10 The CMR shall promptly pay all bills for labor and material performed and furnished by its
subcontractors, suppliers and materials providers, in connection with the construction, furnishing
and equipping of the Work and the performance of the Work.
8.11 PROJECT CLOSEOUT: Prior to the Notice of Final Completion being issued, any remaining
monies in the Guaranteed Maximum Price shall be returned to the OWNER through a final
deductive Change Order issued by the DESIGN PROFESSIONAL, reducing the Guaranteed
Maximum Price. Final Payment shall only be made after full execution of the final deductive
Change Order.
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ARTICLE 9- CONTINGENCY
9.1 THE OWNER CONTINGENCY: The GMP may include an OWNER Contingency. The
OWNER'S Contingency shall be for the sole use of the OWNER and used when so directed in
writing by the OWNER. OWNER Contingency may be used to cover any increases in Project
costs that resulted from OWNER directed changes or unforeseen site conditions. The OWNER
may reduce OWNER Contingency at any point in the project through a deductive Change Order
to the GMP.
9.2 CMR CONTINGENCY: The GMP may include a CMR Contingency in the amount stated in the
GMP Summary. Subject to the terms of the Contract Documents and with prior written
notification (including an appropriate Change Order Request) to DESIGN PROFESIONAL and
with OWNER approval, CMR shall be entitled to allocate from and apply against the CMR
Contingency increases in the cost of the work that could not have been reasonably anticipated or
for increases in General Condition costs. The OWNER may disallow such CMR Contingency
use and deny reimbursement in the absence of prior notice or if the OWNER determines that the
use was not consistent with the Contract Documents. CMR may not apply use or allocate from
the CMR Contingency any amounts for any of the foregoing purposes that are the result of a
material breach or material failure to perform by the CMR, any subcontractor or vendor (except
as necessary to replace any subcontractor or vendor because of the bankruptcy or failure of such
party to perform), or any party for which any of them are liable or responsible at law or under the
Contract Documents, or for any non-allowable costs of the work. The OWNER reserves the
right to issue a deductive Change Order at any point during the Project, as agreed to by the CMR,
deducting any or all remaining CMR Contingency from the GMP. Upon Substantial Completion
the DESIGN PROFESSIONAL shall issue a deductive Change Order for the remaining CMR
Contingency balance.
ARTICLE 10- DISCOUNTS, REBATES AND REFUNDS
10.1 All cash discounts obtained on payments made by the CMR shall accrue to the OWNER
irrespective of whether or not the CMR actually advanced its own funds, prior to receipt of funds
from OWNER, to make the payment giving rise to the discount.
ARTICLE 11- SUBCONTRACTS AND PURCHASE ORDERS
11.1 All Work, including work to be specifically performed by the CMR, must be obtained via
competitive pricing and subcontract, in compliance with the requirements of this Article 11 and
A.R.S. Titles 34 and 41, for the balance of the CMR's Direct Construction Cost required under
this Contract. All subcontracts and purchase orders shall be awarded according to the following
procedure:
11.2 The CMR shall prepare for DESIGN PROFESSIONAL's and PROJECT MANAGER's review
and approval a list of pre-qualified subcontractors and suppliers for each bid who meet the
CMR's schedule of minimum requirements. The CMR shall obtain bids from a minimum of
three (3) such subcontractors for each subcontract, when available. If the CMR is unable to do so
for any subcontract, it must request and obtain the approval of the PROJECT MANAGER. After
receiving such bids, the CMR shall analyze them and make recommendations to the OWNER and
DESIGN PROFESSIONAL for awards in compliance with A.R.S. Title 34. Unless the DESIGN
PROFESSIONAL and PROJECT MANAGER determine any such subcontract to be
unacceptable, the CMR shall contract solely in its own name and behalf, and not in the name or
behalf of the OWNER, with the specified subcontractor or supplier. The CMR's subcontract form
shall provide: that the subcontractor shall perform its portion of the Work in accordance with all
applicable provisions of this Contract and the other Contract Documents; that subcontractor is
bound to the CMR to the same extent that the CMR is bound to the OWNER; that the CMR and
OWNER shall be named as additional insureds on subcontractor's comprehensive general
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liability insurance policy and provide an insurance certificate evidencing the same; for
termination of the subcontract by the CMR in the same manner and method as provided in Article
27 of this Contract, or as otherwise provided in such subcontract, whichever is more protective of
the OWNER's interest; subcontractor shall comply with A.R.S. § 41-4401; and shall further
provide that, in the event this Contract is terminated for any reason, that the subcontract shall, at
the OWNER's option, be assigned to OWNER and subcontractor shall perform its subcontract for
the OWNER, or for a CMR designated by the OWNER, without additional or increased cost,
provided the subcontractor is paid in accordance with its subcontract. The CMR shall sign, and
shall cause each subcontractor to sign, an Assignment of Rights under Construction Subcontract.
Nothing contained herein shall impose on the OWNER an obligation to assume any subcontract
or to make any payments to any subcontractor to perform and nothing contained herein shall
create any contractual relationship between the OWNER and any subcontractor. The
subcontractor selection and management plan submitted by CMR is incorporated herein by this
reference as Exhibit H.
ARTICLE 12- INSURANCE
12.1 The CMR, at the CMR'S own expense, shall purchase and maintain the herein stipulated
minimum insurance from a company or companies duly licensed by the State of Arizona and
possessing a current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the
stipulated insurance may be purchased from a company or companies, which are authorized to do
business in the State of Arizona, provided that said insurance companies meet the approval of
COUNTY. The form of any insurance policies and forms must be acceptable to COUNTY.
12.1.1 All insurance required herein shall be maintained in full force and effect until all work or
service required to be performed under the terms of the Contract is satisfactorily
completed and formally accepted. Failure to do so may, at the sole discretion of
COUNTY, constitute a material breach of this Contract.
12.1.2 CMR'S insurance shall be primary insurance as respects COUNTY, and any insurance or
self-insurance maintained by COUNTY shall not contribute to it.
12.1.3 Any failure to comply with the claim reporting provisions of the insurance policies or any
breach of an insurance policy warranty shall not affect the COUNTY'S right to coverage
afforded under the insurance policies.
12.1.4 The insurance policies may provide coverage that contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with
respect to the coverage provided to COUNTY under such policies. CMR shall be solely
responsible for the deductible and/or self-insured retention and COUNTY, at its option,
may require the CMR to secure payment of such deductibles or self-insured retentions by
a surety bond or an irrevocable and unconditional letter of credit.
12.1.5 COUNTY reserves the right to request and to receive, within ten (10) working days,
certified copies of any or all of the herein required insurance policies and/or
endorsements and any amendments thereto. COUNTY shall not be obligated, however,
to review such policies and/or endorsements or to advise the CMR of any deficiencies in
such policies and endorsements, and such receipt shall not relieve the CMR from, or be
deemed a waiver of Maricopa COUNTY'S right to insist on strict fulfillment of the
CMR'S obligations under this Contract.
12.1.6 The insurance policies required by this Contract, except Workers' Compensation, shall
name Maricopa County, its officers, elected officials, employees agents and
representatives as Additional Insured's.
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12.1.7 The policies required hereunder, except Workers' Compensation, shall contain a waiver
of transfer of rights of recovery (subrogation) against Maricopa County, its officers,
elected officials, employees agents and representatives for any claims arising out of the
CMR'S work or service.
12.1.8 CMR is required to procure and maintain the following coverage's:
12.1.8.1 Commercial General Liability. Commercial General Liability insurance and,
when necessary, Commercial Umbrella insurance with a limit of not less than
$3,000,000 for each occurrence, $3,000,000 Personal/Advertising Injury,
$5,000,000 Products/Completed Operations Aggregate, and $5,000,000
General Aggregate Limit. The policy shall include coverage for bodily
injury, broad form property damage, and blanket contractual coverage, and
shall not contain any provision that would serve to limit third party action
over claims. There shall be no endorsement or modification of the CGL
limiting the scope of coverage for liability arising from explosion, collapse,
or underground property damage.
12.1.8.2 Automobile Liability. Commercial/Business Automobile Liability insurance
and, if necessary, Commercial Umbrella insurance with a combined single
limit for bodily injury and property damage of not less than $2,000,000 each
occurrence with respect to any of the CMR'S owned, hired, and non-owned
vehicles assigned to or used in performance of the CMR's work or services
under this Contract.
12.1.8.3 Workers' Compensation. Workers' Compensation insurance to cover
obligations imposed by federal and state statutes having jurisdiction of the
CMR's employees engaged in the performance of the work or services under
this Contract; and Employer's Liability insurance of not less than $1,000,000
for each accident, $1,000,000 disease for each employee, and $1,000,000
disease policy limit.
12.1.8.4 CMR waives all rights against COUNTY and its agents, officers, directors
and employees for recovery of damages to the extent these damages are
covered by the Workers' Compensation and Employer's Liability or
commercial umbrella liability insurance obtained by CMR pursuant to this
agreement.
12.1.8.5 Builder's Risk (Property) Insurance. CMR shall purchase and maintain, on a
replacement cost basis, Builders' Risk insurance and, if necessary,
Commercial Umbrella insurance in the amount of the initial Contract amount
as well as subsequent modifications thereto for the entire work at the site.
Such Builders' Risk insurance shall be maintained until final payment has
been made or until no person or entity other than COUNTY has an insurable
interest in the property required to be covered, whichever is earlier. This
insurance shall include interests of COUNTY, CMR, and all subcontractors
and sub-subcontractors in the work during the life of the Contract and course
of construction, and shall continue until the work is completed and accepted
by COUNTY. For new construction Projects, CMR agrees to assume full
responsibility for loss or damage to the work being performed and to the
structures under construction. For renovation construction Projects, CMR
agrees to assume responsibility for loss or damage to the work being
performed at least up to the full Contract amount, unless otherwise required
by the Contract documents or amendments thereto.
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12.1.8.5.1 Builders' Risk insurance shall be on a special form and shall also
cover false work and temporary buildings and shall insure against risk
of direct physical loss or damage from external causes including
debris removal, demolition occasioned by enforcement of any
applicable legal requirements, and shall cover reasonable
compensation for architect's service and expenses required as a result
of such insured loss and other "soft costs" as required by the Contract.
12.1.8.5.2 Builders' Risk insurance must provide coverage from the time any
covered property comes under CMR'S control and/or responsibility,
and continue without interruption during construction, renovation, or
installation, including any time during which the covered property is
being transported to the construction installation site, and while on the
construction or installation site awaiting installation. The policy will
provide coverage while the covered premises or any part thereof are
occupied. Builders' Risk insurance shall be primary and any insurance
or self-insurance maintained by the County is not contributory.
12.1.8.5.3 Environmental Liability Coverage Insurance. Contractor shall
maintain in force for the full period of this contract insurance
covering losses caused by pollution conditions that arise from the
operations of the contractor described under the scope of services of
this contract.
12.1.8.5.4 This insurance shall apply to bodily injury; property damage,
including loss of use of damaged property or of property that has not
been physically injured; cleanup costs; and defense, including costs
and expenses incurred in the investigation, defense, or settlement of
claims. The policy of insurance affording these required coverages
shall be written in an amount of at least $3,000,000 per loss, with an
annual aggregate of at least $5,000,000.
12.1.8.5.5 The policy of insurance shall be endorsed to include as an insured
Maricopa County, its officers, elected officials, and employees.
12.1.8.5.6 If the Contract requires testing of equipment or other similar
operations, at the option of COUNTY, CMR will be responsible for
providing property insurance for these exposures under a Boiler
Machinery insurance policy or the Builders' Risk Insurance policy.
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12.1.8.6 COVERAGES
Commercial General
Liability $3,000,000 Each Occurrence
$3,000,000 Personal & Advertising Injury
$5,000,000 General Aggregate
$5,000,000 Products/Completed Operations
Automotive Liability $2,000,000 Each Occurrence
Workers' Compensation $1,000,000 Each Accident
$1,000,000 Disease for Each Employee
$1,000,000 Disease Policy Limit
Builders' Risk Replacement Cost
Environmental Liability $3,000,000 Per Loss
$5,000,000 Annual Aggregate
12.2 CERTIFICATES OF INSURANCE: Prior to commencing work or services under this Contract,
the CMR shall furnish County with Certificates of Insurance and Policy Endorsements in a form
acceptable to COUNTY, or formal endorsements as required by the Contract in the form provided
by the County, issued by the CMR's insurer(s), as evidence that policies providing the required
coverage's, conditions, and limits required by this Contract are in full force and effect. Such
certificates shall identify this contract number and contract title. Subguard insurance will not be
accepted by the COUNTY.
12.2.1 In the event any insurance policy (ies) required by this contract is (are) written on a
"claims made" basis, coverage shall extend for one (1) year past completion and
acceptance of the CMR's work or services and as evidenced by annual Certificates of
Insurance.
12.2.2 If a policy does expire during the life of the Contract, a renewal certificate must be sent to
COUNTY not later than fifteen (15) days prior to the expiration date.
12.3 CANCELLATION AND EXPIRATION NOTICE: Insurance required herein shall not expire, be
canceled, or materially changed without thirty (30) days prior written notice to COUNTY.
ARTICLE 13 - INDEMNIFICATION AND INSURANCE
13.1 CMR's Duty to Indemnify and Defend. To the fullest extent permitted by law, the CMR shall
defend, indemnify and hold harmless Maricopa County, its officers, elected officials, employees
agents and representatives from and against all claims, damages losses, and expenses, including
but not limited to attorney fees, court costs, expert witness fees, and the cost of appellate
proceedings, relating to, arising out of, or alleged to have resulted from the negligent, reckless, or
intentionally wrongful acts, errors, omissions or mistakes of the CMR, its agents,
representatives, employees, or subcontractors relating to the performance of this Contract.
CMR's duty to defend, indemnify and hold harmless the OWNER, its agents, representatives,
officers, directors, officials, and employees shall arise in connection with any claim, damage loss
or expense that is attributable to bodily injury, sickness, disease, death or injury to, impairment,
or destruction of property, including loss of use resulting therefrom, caused by the referenced
acts, errors, omissions or mistakes in the performance of this Contract, including those made by
any person for whose acts, errors, omissions or mistakes, the CMR may be legally liable.
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13.2 The amount and type of insurance coverage requirements set forth herein will in no way be
construed as limiting the scope of the indemnity in this paragraph.
ARTICLE 14 — PERFORMANCE / PAYMENT BOND AND QUALIFICATIONS OF SURETY
14.1 Within ten (10) calendar days of being notified of the award, CMR shall furnish a Performance
Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment
Bond attached hereto. All bonds regardless of form, will be on the form required and set forth in
A.R.S. § 34-222(1).
14.1.1 Each Bond shall be in the amount of one hundred percent (100%) of the GMP
guaranteeing to OWNER the completion and performance of the Work covered in such
Contract as well as full payment concerning all suppliers, material providers, laborers, or
subcontractors employed pursuant to this Project. Each Bond shall be with a surety
company which is qualified pursuant to Article 14.2.
14.1.2 Each Bond shall continue in effect for one year after substantial completion and
acceptance of the Work with liability equal to one hundred percent (100%) of the
Contract sum, or an additional bond shall be conditioned that CMR will, upon
notification by OWNER, correct any defective or faulty Work or materials which appear
within one year after substantial completion of the Contract.
14.2 QUALIFICATIONS OF SURETY:
14.2.1 Each bond must be executed by a surety company in recognized standing, authorized to
do business in the State of Arizona as surety, having a resident agent in the State of
Arizona and having been in business with a record of successful continuous operation for
at least five years.
14.2.2 The Surety Company shall hold a current certificate of authority as acceptable surety on
federal bonds in accordance with United States Department of Treasury Circular 570,
Current Revisions. If the amount of the Bond exceeds the underwriting limitation set
forth in the circular, in order to qualify, the net retention of the surety company shall not
exceed the underwriting limitation in the circular, and the excess risks must be protected
by coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297,
revised September 1, 1973 (31 DFR Section 223.10, Section 223.111). Further, the
Surety Company shall provide OWNER with evidence satisfactory to OWNER, that such
excess risk has been protected against in an acceptable manner.
14.2.3 The OWNER will accept a surety bond from a company with a rating of B+ or better for
bonds up to $2 million, provided, however, that if any surety company appears on the
watch list that is published quarterly by Intercom of the Office of the Arizona Insurance
Commissioner, the OWNER shall review and either accept or reject the surety company
based on the financial information available to the OWNER. A surety company that is
rejected by the OWNER may be substituted by the bidder or proposer with a surety
company acceptable to the OWNER, only if the bid amount does not increase. The
ratings of Surety shall correspond to the amount of bonds as follows:
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Policy
Holder's Financial Size
Amount of Bond Ratings Category
500,001 to 1,000,000 B+ Class I
1,000,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or More A Class VII
ARTICLE 15 - INDEPENDENT CMR
15.1 In performing, the CMR shall be deemed an independent CMR and not an agent or employee of
the OWNER. The CMR shall be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and for coordinating all portions of the
Work under this Contract, unless the Contract Documents give other specific instructions
concerning these matters.
ARTICLE 16- ACCESS TO AND RETENTION OF PROJECT RECORDS FOR THE PURPOSE
OF AUDIT AND/OR OTHER REVIEW
16.1 OWNER or its designee shall have the right to audit, inspect and copy the books and records and
accounts of CMR and all major subcontractors including but not limited to books, records,
correspondence, instructions, drawings, receipts, payment records, vouchers, and memoranda
which relate in any way to the Project, and to any claim for additional compensation made by
CMR which relate to the Project and to any claim for additional compensation made by CMR.
CMR shall preserve and make available to OWNER all financial records, supporting documents,
statistical records and any other documents which relate to the Project and to any claim for a
period of nine (9) years following final completion of the Project. During the Project and for the
appropriate record retention period, CMR shall provide OWNER access to its books and records
at CMR's usual place of business upon seventy-two (72) hours written notice. If any audit has
been initiated and audit findings have not been resolved at the end of the end of the retention
period or within Five (5) years, whichever is longer, the books, records and accounts shall be
retained until resolution of the audit findings.
16.2 If the Arizona Public Records Act (A.R.S. §39-121.01 et seq.) is determined by OWNER to be
applicable to CMR's records, CMR shall comply with all requirements thereof. Any incomplete
or incorrect entry in such books, records and accounts shall be a basis for OWNER's
disallowance and recovery of any payment upon such entry.
16.2.1 CMR's records shall include, but not be limited to accounting records (hard copy, as well
as computer readable data), written policies and procedures; subcontractor files
(including proposals of successful and unsuccessful bidders and bid recaps), surety files
and bond company files, original estimates, estimating work sheets, correspondence,
change order files (including, but not limited to, documentation covering negotiated
settlements), back charge logs and supporting documentation, general ledger entries
detailing cash and trade discounts earned, insurance rebates and dividends and any other
supporting evidence deemed necessary by the OWNER to substantiate charges related to
this Contract (all of the foregoing hereinafter referred to as records).
16.2.2 CMR shall require all subcontractors, insurance agents and material suppliers (payees) to
keep and maintain comparable records for the same time period and to permit the
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OWNER to review, inspect, and audit such records. CMR shall include such
requirements in all written subcontracts and purchase orders issued.
16.3 The OWNER reserves the right to audit the CMR records at any time during the life of this
contract whether or not the Project has been completed. If an audit inspection or other
examination by the OWNER or the OWNER's representatives in accordance with this Article,
disclose overcharges (of any nature) by the CMR to the OWNER, the cost of the OWNER' s audit
(whether performed by the OWNER or outside auditors) shall be reimbursed or paid to the
OWNER by the CMR. Any adjustments and/or records of overcharges shall be made within a
reasonable amount of time (not to exceed thirty (30) days) from presentation of the OWNER
findings to the CMR.
ARTICLE 17 - AS BUILT RECORDS
17.1 As required by the General Conditions, General Requirements, and the technical specifications
or, in absence of technical specification requirements, prior to the issuance of Final Completion
and the CMR's Request for Final Payment, the CMR shall furnish As Builts and final Air
Balance Report to the Design Professional for review and approval. Submittals shall include (1)
one hardcopy and (1) one electronic copy. Upon approval of these documents and completion of
any other Final Completion Requirements the CMR may request Final Payment. As Builts shall
indicate the exact locations of all structures and underground site utilities installed by CMR,
including all water, sewer, gas, fuel, telephone, security and electric lines and main, and locations
of all easements for such utilities. Such surveys shall be prepared by a licensed Arizona surveyor
who shall certify that the Work is installed and erected entirely upon the Project Site and within
the building restriction lines, if any, and does not overcharge or encroach upon any easement or
right-of-way of others. As Builts shall also include project specifications with markings
identifying installed product and materials.
ARTICLE 18 - CMR'S RESPONSIBILITY FOR THE WORK
18.1 CMR shall bear full responsibility for the Work against all loss or damage of whatsoever nature
sustained until final acceptance by OWNER, and shall promptly repair any damage done from
any cause whatsoever.
18.2 CMR shall be responsible for all materials, equipment and supplies pertaining to the Project. In
the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior
to final acceptance by OWNER; CMR shall replace it without cost to OWNER. CMR shall be
responsible to protect all materials, equipment and supplies, keeping them free from deterioration,
weathering, rusting or other action detrimental to the materials.
18.3 OWNER reserves the right to award other contracts in connection with this Project. CMR shall
afford other persons or contractors reasonable opportunity for the introduction and storage of
materials and the execution of Work under such separate contracts. CMR shall properly connect
and coordinate this Work with the Work of any other persons or contractors that might contract
separately with OWNER.
18.4 If any part of CMR's Work depends on proper execution or results upon the Work of any other
persons, CMR shall inspect and promptly report to CONSTRUCTION PROJECT MANAGER
any defects in such Work that render it unsuitable for such proper execution and results. CMR's
failure to so inspect and report shall constitute an acceptance of the other person's Work as fit and
proper for the reception of CMR's Work, except as to defects which may develop in other
CMR'S Work after the execution of CMR's Work.
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18.5 CMR shall conduct its operations and take all reasonable steps to coordinate the prosecution of
the Work so as to create no interference or impact on any other contractor on the site. Should
such interference or impact occur, and the CMR did not take reasonable steps, the CMR shall be
liable to the affected contractor for the cost of such interference or impact.
18.6 To ensure the proper execution of subsequent Work, CMR shall inspect the Work already in place
and shall at once report to CONSTRUCTION PROJECT MANAGER any discrepancy between
the executed Work and the requirements of the Contract Documents.
ARTICLE 19 - OCCUPATIONAL HEALTH AND SAFETY
19.1 CMR'S DUTY TO PROTECT: The CMR shall take all necessary precautions for safety of, and
shall provide protection to prevent damage, injury or loss to:
19.1.1 Employees on the Work and other persons who may be affected thereby;
19.1.2 The Work and materials and equipment to be incorporated therein, whether in storage
on or off the Site, under care, custody or control of the CMR or the CMR's
subcontractors;
19.1.3 The Work and materials and equipment to be incorporated therein, if the Project Site is
within a floodplain;
19.1.4 Other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal, relocation or
replacement in the course of construction; and
19.1.5 Construction or operations by the OWNER or other contractors.
19.2 COMPLIANCE WITH SAFETY NOTICES AND LAWS: The CMR shall comply with all
local,state and federal applicable laws, ordinances, rules, regulations and lawful orders of public
authorities bearing on safety of persons or property or their protection from damage, injury or
loss.
19.3 SAFETY PRECAUTIONS: The CMR shall erect and maintain, as required by existing
conditions and performance of the Contract safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety regulations and
notifying OWNERs and users of adjacent sites and utilities. The CMR shall also be responsible,
at the CMR's sole cost and expense, for all measures necessary to protect any property adjacent
to the Site and improvements thereon. Any damage to such property or improvements shall be
promptly repaired by the CMR. Without limiting the indemnity provisions elsewhere in the
Contract, the CMR shall indemnify, defend and hold harmless the Indemnitees from and against
any and all liabilities, claims or demands (including attorney's fees and costs) arising out of or
resulting from damage to such property or improvements.
19.4 USE OF EXPLOSIVES OR HAZARDOUS MATERIALS: When use or storage of explosives
or other hazardous materials or equipment or unusual methods is necessary for execution of the
Work, the CMR shall exercise utmost care and carry on such activities under supervision of
properly qualified personnel. When use or storage of explosives, other hazardous materials or
equipment or unusual methods are necessary, the CMR shall secure the OWNER's approval prior
to their storage or use.
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19.5 CMR LIABILITY: The CMR shall promptly remedy damage and loss to any property caused in
whole or in part by the CMR or subcontractor or anyone or by anyone for whose acts they may be
liable.
19.6 SAFETY REPRESENTATIVE: The CMR shall designate a responsible member of the CMR's
organization at the Site whose duty shall be the prevention of injuries/accidents and
administration of the CMR's written Safety Program. The Safety Representative, if required by
OWNER, shall be onsite full-time and shall have a minimum of a 30-Hour Occupational Safety
and Health Training Course within the past (2) years and must maintain that competency. This
person shall attend all Project safety meetings and shall conduct regular safety meetings for
employees of the CMR and Subcontractors engaged in construction activities at the Site,
recording the dates and topics covered during the safety meetings.
19.7 ACCIDENT/INJURY REPORTS: The CMR shall report in writing within one (1) working day
of the CMR's knowledge, to the OWNER, all accidents or injuries arising out of or in connection
with the Work which cause personal injury or property damage, giving full details and statements
of any witnesses. In addition, if death or serious personal injuries requiring admitted hospital stay
or serious damages are caused, the incident shall be reported immediately by telephone or
messenger to the OWNER.
19.8 SAFETY COOPERATION: The CMR and its subcontractors shall cooperate fully with the
OWNER and all interested parties on accident/injury prevention and claim handling procedures.
19.9 RISK OF LOSS: The CMR shall be fully responsible for, and shall bear the full risk of loss of,
all the CMR's tools, equipment, materials, and other property.
19.10 EMERGENCIES:
19.10.1 In an emergency affecting safety of persons or property, the CMR shall act, at the
CMR's discretion, to prevent damage, injury or loss. Additional compensation or
extension of time claimed by the CMR on account of an emergency shall be determined
as provided in Article 7.
ARTICLE 20- PERMITS, LICENSES AND IMPACT FEES
20.1 CMR LICENSE REQUIREMENT:
20.1.1 The CMR shall procure all permits, insurance, licenses for, and pay the charges and fees
necessary and incidental to, the lawful conduct of his/her business, and as necessary
complete any required certification requirements, required by any and all governmental
or non-governmental entities as mandated to maintain compliance with and in good
standing for all permits and/or licenses. The CMR shall keep fully informed of existing
and future trade or industry requirements, Federal, State and Local laws, ordinances, and
regulations which in any manner affect the fulfillment of a Contract and shall comply
with the same. CMR shall immediately notify both Office of Procurement Services and
the using agency of any and all changes concerning permits, insurance or licenses.
20.1.2 CMR and its Subcontractors furnishing finished products, materials or articles of
merchandise that will require installation or attachment as part of the Contract, shall
possess any licenses required. A CMR and its Subcontractors are not relieved of its
obligation to possess the required licenses by a subcontracting of the labor portion of the
Contract.
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ARTICLE 21— PERSONNEL
21.1 All personnel used or employed by the CMR in the performance of the Work shall be qualified by
training and experience to perform their assigned tasks. At the request of the OWNER, the CMR
shall not use in the performance of the Work any personnel deemed by the OWNER to be
incompetent, careless, or unqualified to perform the work assigned to that person him, or
otherwise unsatisfactory to the OWNER.
21.2 The CMR agrees that in the performance of the Work called for by this Contract, it will employ
only such labor, and engage subcontractors that employ only such labor, as will not delay or
interfere with the speedy and lawful progress of the Project, and as will be acceptable to and work
in harmony with all other workers employed on the Project site or on any other building,
structure, or other improvement which the CMR or any other contractor may then be erecting or
alerting on behalf of the OWNER.
21.3 CMR shall furnish the OWNER on request, resumes of CMR's key personnel involved in the day-
to-day Work on the Project.
ARTICLE 22- CMR'S WARRANTIES
22.1 CMR warrants to OWNER that all materials and equipment under this Contract will be new
unless otherwise specified and that all of the Work will be of good quality free from faults and
defects and in conformance with the Contract Documents. All Work not conforming to these
requirements, including substitutions not properly approved and authorized by the
CONSTRUCTION PROJECT MANAGER and DESIGN PROFESSIONAL may be considered
defective and shall be repaired or replaced in accordance with the requirements of this Contract.
If required by DESIGN PROFESSIONAL, CMR shall furnish satisfactory evidence as to the kind
and quality of materials and equipment. This warranty is not limited by the provisions of Article
23 herein.
22.2 The CMR further represents and warrants:
22.2.1 That it is financially solvent, able to pay its debts as they mature, and is possessed of
sufficient working capital to perform this Contract; that is able to furnish the Materials,
and Services; that is experienced in and competent to perform the Work contemplated by
this Contract; and it is qualified to do the Work herein and is authorized to do business in
the State of Arizona.
22.2.2 That the CMR holds a license, permit or other special license to perform the services
included in this Contract, as required by law, or employs or works under the general
supervision of the holder of such license, permit or special license.
22.2.3 The CMR agrees that the Work shall be performed in a good and professional manner,
free from defects in materials and execution, and that all Materials shall be new and
approved by or acceptable to the DESIGN PROFESSIONAL and PROJECT
MANAGER, except as otherwise expressly provided for in the Contract Documents.
22.2.4 That CMR warrants that they will be in compliance with A.R.S. § 23-214(A) and 41-
4401.
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ARTICLE 23- DEFECTIVE WORK
23.1 CONSTRUCTION PROJECT MANAGER shall have the authority to reject or disapprove work
which CONSTRUCTION PROJECT MANAGER or DESIGN PROFESSIONAL finds to be
defective. If required by CONSTRUCTION PROJECT MANAGER, CMR shall promptly either
correct all defective work or remove such defective work and replace it with non-defective work.
CMR shall pay all direct, indirect and consequential costs of such removal or corrections
including cost of testing laboratories and personnel. Such costs shall be included in the GMP.
23.2 Should CMR fail or refuse to remove or correct any defective work or to make any necessary
repairs in accordance with the requirements of the Contract Documents within the time indicated
in writing by CONSTRUCTION PROJECT MANAGER, OWNER shall have the authority to
cause the defective work to be removed or corrected, or make such repairs as may be necessary at
CMR's expense. Any expense incurred by OWNER in making such removals, corrections or
repairs shall be paid for out of any monies due or which may become due to CMR and deducted
from the GMP, or may be charged against the Performance Bond. In the event of failure of CMR
to make all necessary repairs promptly and fully, OWNER may declare a default.
23.3 If, within one (1) year after the date of Substantial Completion or such longer period of time as
may be prescribed by the terms of any applicable special warranty required by the Contract
Documents, any of the work is found to be defective or not in accordance with the Contract
Documents, CMR, after receipt of written notice from OWNER, shall promptly correct such
defective or nonconforming work within the specified by OWNER without cost to OWNER, to
do so. Nothing contained herein shall be construed to establish a period of limitation with respect
to any other obligation, which CMR might have under the Contract Documents.
23.4 Failure to reject any defective work or material shall not in any way prevent later rejection when
such defect is discovered, or obligate OWNER to final acceptance.
23.5 The CMR shall (I) replace any part of the work that fails to conform with the requirements of this
Contract that appear during progress of the work on the Project; (II) remedy any defects in the
Work due to faulty materials or workmanship which appear within a period of one (1) year from
the time of Substantial Completion of the Work or portions thereof hereunder or within such
longer period of time as may be set forth in the Contract Documents or as may be required by
law; and (III) replace, repair or restore any parts of the Project or furniture, fixtures, equipment or
other items placed therein (whether by the OWNER or any other part) that are injured or damaged
by any such parts of the Work that do not conform to the requirements of this Contract or are due
to defects in the Work. The provisions of this Article 23 shall not apply to corrective work
attributable solely to the acts or omissions of any separate CMR or subcontractor of the OWNER
unless the CMR is acting in such capacity or capacities. The cost of the CMR of performing any
of its obligations under this Article 23 shall be within the Guaranteed Maximum Price. The
CMR's responsibility to make repairs and redo work under this Article 23 is in addition to the
CMR's responsibility to the OWNER for any other damages of any kind for which the CMR
would be legally responsible.
23.6 If the OWNER and the CMR deem it inexpedient to require the correction of work damaged or
not performed in accordance with the Contract Documents, an equitable deduction from the
Contract Price and the Guaranteed Maximum Price shall be made by agreement between the
CMR and the OWNER. Until such settlement, the OWNER may withhold such sums as the
OWNER deems just and reasonable from monies, if any, due the CMR. If no monies are held by
the OWNER, reimbursement shall be made to the OWNER within thirty (30) days by the CMR.
23.7 The CMR's express warranty herein shall be in addition to, and not in lieu of, any other
warranties or remedies the OWNER may have under this Contract, at law, or in equity for
defective Work and warranty periods will commence at Substantial Completion date.
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ARTICLE 24- CONSTRUCTION SIGNAGE
24.1 Any requirements for a Project sign shall be as set forth within the Technical Specifications
section.
24.2 All construction signage located at the Project location shall be subject to the prior written
approval of the CONSTRUCTION PROJECT MANAGER. The CMR recognizes that all signage
may be disallowed, in the CONSTRUCTION PROJECT MANAGER's sole discretion, and that
existing signage or advertising on construction field offices, trailers, construction fences, and
other construction elements or aids, may be required to be masked or deleted at no cost or
expense to the OWNER. Such signage will be considered an overhead expense pursuant to
Article 8.4 and if allowed shall not be included within the Cost of the Work.
ARTICLE 25- OWNERSHIP OF CONTRACT DOCUMENTS
25.1 Drawing, specifications, designs, models, photographs, reports, surveys, and other data submitted
by the CMR provided in connection with this Agreement are and shall remain the property of the
OWNER whether the Project for which they are made is completed or not. All finished or
unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports
prepared by CMR shall become the property of OWNER and shall be delivered by CMR to
OWNER within seven (7) days of termination of the Contract Documents by either party. Any
compensation due to CMR shall be withheld until all documents are received as provided herein.
ARTICLE 26- CMR'S REPRESENTATIVE
26.1 CMR shall advise, the OWNER, in writing of any limitations on the authority of CMR's
representative; otherwise, CMR's representative shall be considered to have full authority to
execute any and all instruments requiring the CMR's signature and to act on behalf of the CMR
with respect to all matters arising out of this Agreement.
ARTICLE 27- OWNER'S RIGHT TO TERMINATE CONTRACT
27.1 If CMR fails to begin the Work within the (10) calendar days after the Project initiation Date, or
fails to perform the Work with sufficient workers and equipment or with sufficient materials to
insure the prompt completion of the Work, or performs the Work unsuitably, or causes it to be
rejected as defective and unsuitable, or delays or discontinues the prosecution of the Work
pursuant to the accepted schedule or if CMR shall fail to perform any material term set forth in the
Contract Documents, including non-payment of subcontractors or materials providers, or if CMR
shall become insolvent or be declared bankrupt, or commit any act of bankruptcy or insolvency, or
shall make an assignment for the benefit of creditors, or from any other cause whatsoever shall not
carry on the Work in an acceptable manner, CONSTRUCTION PROJECT MANAGER may give
notice in writing to CMR and its Surety of such delay, neglect or default, specifying the same.
27.2 If CMR, within a period of ten (10) calendar days after such notice, does not proceed in
accordance therewith, then OWNER may terminate the services of CMR, exclude CMR from the
Project site and take the prosecution of the Work out of the hands of CMR, and appropriate or use
any or all materials and equipment that are an integral part of the Work on the Project site as may
be suitable and acceptable. In such case, CMR shall not be entitled to receive any further payment
until the Project is completed.
27.3 In addition OWNER, may enter into an agreement for the completion of the Project according to
the terms and provisions of the Contract Documents, or use such other methods as in OWNER'S
sole opinion shall be required for the completion of the Project according to the terms and
provisions of the Contract Documents, or use such other methods as in OWNER'S sole opinion
shall be required for the completion of the Project in an acceptable manner All damages, costs
and charges incurred by OWNER, together with the costs of completing the Project, shall be
deducted from any monies due or which may become due to CMR. In case the damages and
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expenses so incurred by OWNER shall exceed the unpaid balance, then CMR shall be liable and
shall pay to OWNER the amount of said excess.
27.4 If after notice of termination of CMR's right to proceed, it is determined for any reason that CMR
was not in default, the rights and obligations of OWNER and CMR shall be the same as if the
notice of termination had been issued pursuant to the Termination for Convenience clause as set
forth in Article 27.5 below.
27.5 This Contract may be terminated for convenience in writing by OWNER upon ten- (10) day's
written notice to CMR (delivered by certified mail, return receipt requested) of intent to terminate
and the date on which such termination becomes effective. In such case, CMR shall be paid for all
work executed and expenses incurred prior to termination in addition to termination settlement
costs reasonably incurred by CMR relating to commitments which had become firm prior to the
tennination. Payment shall include reasonable profit for work and/or services performed. No
payment shall be made for profit for work and/or services that have not been performed.
27.6 Upon receipt of Notice of Termination pursuant to Article 27 or 27.3 above, CMR shall promptly
discontinue all affected work unless the Notice of Termination directs otherwise and deliver or
otherwise make available the OWNER all data, drawings, specifications, reports, estimates,
summaries and such other information as may have been required by the Contract Documents
whether completed or in process.
ARTICLE 28- RESOLUTION OF DISPUTES
28.1 To prevent all disputes and litigation, it is agreed by the parties hereto that OWNER shall decide
all questions, claims, difficulties and disputes of whatever nature which may arise relative to the
technical interpretation of the Contract Documents and fulfillment of this Contract as to the
character, quality amount value of any work done and materials furnished, or proposed to be done
or furnished under or by reason of, the Contract Documents and OWNER's estimates and
decisions upon all claims, questions, difficulties and disputes shall be final and binding. Any
claim, question, difficulty or dispute which cannot be resolved by mutual agreement of
CONSTRUCTION PROJECT MANAGER and CMR shall be submitted to the Alternative
Dispute Resolution process as outlined in Exhibit G.
28.2 This Agreement shall be interpreted and construed in accordance with and governed by
the laws of the State of Arizona. Any controversies or legal problems arising out of this
Agreement and any action involving the enforcement or interpretation of any rights hereunder
which might be eligible for judicial resolution shall be submitted to the jurisdiction of the
Superior Court of the State of Arizona in and for Maricopa County, and shall be governed by the
laws of the State of Arizona. By entering into this Contract, CMR and OWNER hereby expressly
waive any rights either party may have to trial by jury of any civil litigation related to, or arising
out of the Project. CMR, pursuant to Article 11 of this Agreement, shall specifically bind all
subcontractors to the provisions of this Contract.
28.3 Pending resolution of any dispute arising under this Contract, other than termination hereof, the
CMR shall proceed diligently with performance of this Contract and the OWNER shall continue
to make payments in accordance with the Contract Documents.
ARTICLE 29— NOTICES
29.1 Notices: All notices to be given hereunder shall be in writing, and may be given by depositing
the same in the United States Mail addressed to the party to be notified, postpaid, return receipt
requested or by delivering the same in person to such party with written receipt of
acknowledgement of delivery by a person at the address (s) set forth below. All notices to be
given to the parties hereto shall be sent to or made to the addresses shown below. The place for
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giving notice shall remain the same as set forth herein unless changed in the manner provided in
this Article.
29.2 Whenever either party desires to give notice to the other, such notice must be in writing, sent by
certified United States mail, postage prepaid, return receipt requested, or by hand-delivery with a
request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is
intended at the place last specified. The place for giving notice shall remain the same as set forth
herein until changed in writing in the manner provided in this section. For the present, the parties
designate the following:
Reid Spaulding, Director, Facilities Management Department
Facilities Management Department
Maricopa County
401 W. Jefferson St.
Phoenix, Arizona 85003
AND
Wes Baysinger, Chief Procurement Officer
Office of Procurement Services
Maricopa County
320 W. Lincoln Street
Phoenix, Arizona 85003
29.3 FOR CMR:
Lorraine Bergman, President
Caliente Construction, Inc.
485 West Vaughn Street
Tempe, Arizona 85283
And to DESIGN PROFESSIONAL:
Ron Korte„ PE, Principal
Energy Systems Design, Inc.
7135 E. Camelback Rd
Suite 274
Phoenix, Arizona 85251
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ARTICLE 30 - REQUIREMENTS FOR CONTRACTS WITH SBE GOALS
30.1 It is Maricopa County's policy to provide Small Business Enterprises (SBE) with the opportunity to
participate in the County's solicitation process and to be considered to fulfill the requirements for various
commodities and services. This contract has no requirement for utilization of SBE's; however, it does require
that utilization of SBE firms by CMR be reported for tracking by the County. A full description of the
County's SBE program and the contractual requirements are attached hereto and incorporated herein by
reference in Exhibit F.
ARTICLE 31- OTHER TERMS & CONDITIONS
31.1 THIRD PARTY BENEFICIARIES: Neither CMR nor OWNER intends to directly or substantially benefit a
third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this
Contract and that no third party shall be entitled to asset a claim against either of them based upon this
Contract.
31.2 CONFLICTS:
31.2.1 Neither CMR nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible with CMR's
loyal and conscientious exercise of judgment related to its performance under this Agreement.
31.2.2 CMR agrees that none of its officers or employees shall, during the term of this Agreement, serve as
an expert witness against COUNTY in any legal or administrative proceeding in which he or she is
not a party, unless compelled by court process. Further, CMR agrees that such persons shall not give
sworn testimony or issue a report or writing, as an expression of his or her expert opinion, which is
adverse or prejudicial to the interests of COUNTY in connection with any such pending or threatened
legal or administrative proceeding. The limitations of this section shall not preclude CMR or any
other persons from representing themselves in any action or in any administrative or legal proceeding.
31.2.3 In the event CMR is permitted to utilize subcontractor to perform any services required by this
Agreement, CMR agrees to prohibit such subcontractor, by written contract, from having any
conflicts within the meaning of this section.
31.3 CANCELLATION: The OWNER hereby gives notice that pursuant to A.R.S. § 38-511(A) this contract
may be canceled without penalty or further obligation within three (3) years after execution if any person
significantly involved in initiating, negotiating, securing, drafting, or creating a contract on behalf of the
OWNER is, at any time while the contract or an extension of the contract is in effect, an employee or agent
of any other part to the contract in any capacity or a consultant to any other party of the contract with
respect to the subject matter of the contract. Cancellation under this section shall be effective when written
notice from the OWNER is received by all parties to the contract. In addition, the OWNER may recoup any
fee or commission paid or due to any person significantly involved in initiating, negotiating, securing,
drafting or creating the contract on behalf of the OWNER from any other party to the contract arising as a
result of the contract.
31.4 COMPLIANCE WITH LAWS: CMR shall comply with all federal state, and local laws, codes, ordinances,
rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement.
31.5 SEVERANCE: In the event a portion of this Agreement is found by a court of competent jurisdiction to be
invalid, the remaining provisions shall continue to be effective unless COUNTY or CMR elects to terminate
this Agreement. An election to terminate this Agreement based upon this provision shall be made within
seven (7) days after the finding by the court becomes final.
31.6 JOINT PREPARATION: Preparation of this Contract has been a joint effort of OWNER and CMR and the
resulting document shall not, solely as a matter of judicial construction, be construed more severely against
one of the parties than any other.
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31.7 DRUG FREE WORKPLACE: It is a requirement of OWNER that it enter into contracts only with firms
that certify the establishment of a drug-free workplace. Execution of this Contract by CMR shall also serve,
as CMR's required certification that it either has or that it will establish a drug-free workplace.
31.8 ASSIGNMENT: The CMR shall not assign this Contract or subcontract it as a whole without the written
consent of the OWNER by and through the Chief Procurement Officer for Maricopa County; nor shall the
CMR assign any monies due or to become due to it hereunder, without the previous written consent of the
OWNER.
31.8.1 No consent or waiver, express or implied, by either party to this Contract to or of any breach or
default by the other in the performance of any obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other of future breach or default by such party
hereunder, nor deemed to be a modification of this Contract.
31.8.2 Failure on the part of any party hereto to complain of any act or failure to act of the other party
or to declare the other party in default hereunder, irrespective of how long such failure
continues, shall not constitute a waiver of the rights of such party hereunder, provided however
this section shall not alter or amend the notice provisions set forth in the Construction
Documents including but not limited to, in Article 6. Inspection by, payment by or tentative
approval or acceptance by the OWNER, or the failure of the OWNER to perform any inspection
hereunder shall not constitute a final acceptance of the Work or any part thereof and shall not
release the CMR from any of its obligations hereunder.
31.9 CONSTRUCTION OF TERMS: Unless the context clearly intends to the contrary, words singular or plural
in number shall be deemed to include the other and pronouns having masculine or feminine gender shall be
deemed to include the other. The term "person" shall be deemed to include an individual, corporation,
unincorporated organization, partnership, trust, government and governmental agency or subdivision, as the
context shall require.
31.10 CAPTIONS: The captions used for the Articles of this Contract are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of the intent of this
Contract or any Article hereof.
31.11 ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS: These Contract Documents incorporate
and include all prior negotiations, correspondence, conversations, agreements, and understandings
applicable to the matters contained herein and the parties agree that there are no commitments,
agreements or understanding concerning the subject matter of this Contract that are not contained in the
Contract Documents. Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or written. It is further agreed that
no modification, amendment or alteration in the terms or conditions contained herein shall be effective
unless contained in a written document in accordance with Article 7. In the event any provision of the
Contract Documents shall be found by a court of competent jurisdiction to be invalid or otherwise
unenforceable, the remainder of this Contract shall not be affected thereby and each remaining provision,
term, covenant or condition of the Contract Documents shall continue to be effective.
31.12 PRIOR AGREEMENTS: This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained herein and the parties
agree that there are no commitments, agreements or understandings concerning the subject matter of this
Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or conditions contained
herein shall be effective unless set forth in writing in accordance with Article 7 of this document.
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31.13 INCORPORATION BY REFERENCE: The truth and accuracy of each "Whereas" clause set forth
herein is acknowledged by the parties. The attached Exhibits are incorporated into and made a part of this
Agreement.
31.14 LEGAL WORKER REQUIREMENTS: As required by Arizona Revised Statutes §41-4401, the County
is prohibited after September 30, 2008 from awarding a contract to any service or construction CMR who
fails, or whose subcontractors fail, to comply with Arizona Revised Statutes § 23-214-A. The CMR
warrants that it complies fully with all federal immigration laws and regulations that relate to its
employees, that it shall verify, through the employment verification pilot program as jointly administered
by the U.S. Department of Homeland Security and the Social Security Administration or any of its
successor programs, the employment eligibility of each employee hired after December 31, 2007, and that
it shall require its subcontractors and sub-subcontractors to provide the same warranties to the CMR. The
CMR acknowledges that a breach of this warranty by CMR or by any subcontractor or sub-subcontractor
under this Contract shall be deemed a material breach of this Contract, and is grounds for penalties,
including termination of this Contract, by Maricopa County. Maricopa County retains the right to inspect
the records of any CMR, subcontractor and sub-subcontractor employee who performs work under this
Contract, and to conduct random verification of the employment records of the CMR and any
subcontractor and sub-subcontractor who works on this Contract, to ensure that the CMR and each
subcontractor and sub-subcontractors complying with the warranties set forth above. CMR shall be
responsible for all costs associated with compliance with this requirement.
31.15 CERTIFICATION REGARDING DEBARMENT AND SUSPENSION:
31.15.1 The undersigned (authorized official signing for the contractor/bidder) certifies to the best of his
or her knowledge and belief, that the contractor/bidder, and its principals:
31.15.1.1 Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from covered transactions by any Federal
Department or agency
31.15.1.2 Have not within 3-year period preceding this solicitation/contract been
convicted of or had a civil judgment rendered against them for commission
of fraud or a criminal offense in connection with obtaining, attempting to
obtain, or performing a public (Federal, State or local) transaction or contract
under a public transaction; violation of Federal or State antitrust statues or
commission of embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen property;
31.15.1.3 Are not presently indicted or otherwise criminally or civilly charged by a
government entity (Federal, State or local) with commission of any of the
offenses enumerated in this paragraph of this certification; and
31.15.1.4 have not within a 3-year period preceding this Contract had one or more
public transaction (Federal, State or local) terminated for cause of default.
31.15.2 Should the contractor/bidder not be able to provide this certification, a comprehensive
explanation as to why should be attached to its contract.
31.15.3 The contractor agrees to include, without modification, this clause in all lower tier covered
transactions (i.e. transactions with subcontractors) and in all solicitations for lower tier covered
transactions related to this contract.
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31.16 INFLUENCE:
31.16.1 As prescribed in Article 12 of the Maricopa County Procurement Code, any effort to
influence an employee, or agent, to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for Debarment or Suspension under
Article 9. An attempt to influence includes, but is not limited to:
31.16.2 A Person offering or providing a gratuity, gift, tip, present, donation, money,
entertainment or educational passes or tickets, or any type valuable contribution or
subsidy,
31.16.3 That is offered or given with the intent to influence a decision, obtain a contract, garner
favorable treatment, or gain favorable consideration of any kind.
31.16.4 If a Person attempts to influence any employee or agent of Maricopa County, the Chief
Procurement Officer, or his designee, reserves the right to seek any remedy provided by
the Maricopa County Procurement Code, any remedy in equity or in the law, or any
remedy provided by this contract
31.17 AMENDMENTS: All amendments to this Contract shall be in writing and approved/signed by both
parties. Maricopa County Office of Procurement Services shall be responsible for approving all
amendments for Maricopa County.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
date first above written, in counterparts, each of which shall, without proof or accounting for the
other counterparts, be deemed an original contract.
14112-DBB
BIX Room Upgrades West Court Building 3301
November 19, 2015
Date
86-0697201
Federal Tax Identification Number
President/CEO ROC 091625
Title Arizona CMR's License Number
Net 21 (ARS 34 -609) 90924
Vendor Terms NIGP Commodity Code (Advantage)
COUNTY OF MARICOPA, ARIZONA
RECOMMENDED BY: ACCEPTED AND APPROVED:
Department Head Date Chairman, Date
Board of Supervisors
ATTEST:
Clerk of the Board Date
LEGAL REVIEW
Approved as to form and within the powers and
authority granted under the laws of the State of
Arizona to Maricopa County.
By:
Attorney for the Board of Supervisors
Date:
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ATTACHMENT A
[General Condition Costs, Key Personnel and Labor Rates per Section 8.3.2.]
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EXHIBIT A - CONSTRUCTION DOCUMENTS
a. Drawings, Plans & Specifications dated:
These documents are voluminous and maintained separately from the contract documents but are
incorporated into the contract as though fully set forth and attached.
Drawing list as follows:
T0.0 Title Sheet 9.1.15
A201 Demo Plan Bix Two 11.3.15
A210 Floor Plan Bix One 11.3.15
A211 Floor Plan Bix Two 11.3.15
A212 Ceiling Plan Bix Two 11.3.15
A700 Details 11.3.15
A800 Fire Rated Systems 11.3.15
A801 Fire Rated Systems 11.3.15
A802 Fire Rated Systems 11.3.15
A803 Fire Rated Systems 11.3.15
A1.0 GCN, Dtls, Roof Framing 7.24.15
M1.0 Mech Demo Plan 11.9.15
M2.0 Mech New Plan 11.9.15
M3.0 Mech New Plan 11.9.15
M4.0 Mech Roof Plan 11.9.15
M5.0 Mech Schedules 11.9.15
P0.1 Plumb & Fire Protection Plans 11.9.15
P0.2 Plumb Fire Protection Plans 11.9.15
P1.0 Plumb Demo Plan 11.9.15
P2.1 Plumb Floor Plan 11.9.15
P2.2 Plumb Floor Plan 11.9.15
E0.0 Elect Symbols, Notes, Sched 11.9.15
E0.1 Elect Fire Alarm Notes 11.9.15
E0.2 Elect Key Plan 11.9.15
E1.0 Elect Power Plan 11.9.15
E1.1 Elect Power Plan 11.9.15
E2.0 Elect Power Plan 11.9.15
E2.1 Elect Power Plan 11.9.15
E3.0 Elect Lighting Plan 11.9.15
E4.0 Elect Mech/FA Plan 11.9.15
E4.1 Elect Mech Roof Plan 11.9.15
E5.0 One Line Diagram 11.9.15
E5.1 One Line Diagram 11.9.15
E5.2 One Line Diagram 11.9.15
E6.0 Elect Panel Schedules 11.9.15
E6.1 Elect Panel Schedules 11.9.15
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EXHIBIT B - GMP PROPOSAL
(GMP Summary Document follows — full proposal is found in the Project file and is incorporated into the
contract as though fully set forth and attached)
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EXHIBIT C - INSURANCE CERTIFICATE(S)
The Insurance Certificate document(s) follow this cover page and are incorporated into the contract as
though fully set forth therein.
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EXHIBIT D - PAYMENT BOND
(Document follows and is incorporated into the contract as though fully set forth therein.)
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EXHIBIT E - PERFORMANCE BOND
(Document follows and is incorporated into the contract as though fully set forth therein.)
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EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM
CMR CONTRACTING REQUIREMENTS
PART 1: PURPOSE
1.1 It is Maricopa County's policy to provide Small Business Enterprises (SBE) with the
opportunity to participate in the County's solicitation process and to be considered to fulfill
the requirements for various commodities and services. This contract has no requirement for
utilization of SBEs, however it does require that utilization of SBE firms by CMR be reported
for tracking by the County.
PART 2: REPORTING APPLICABLE TO USE OF SBEs.
2.1 SBE CMR: An SBE CMR may indicate the SBE participation for that portion of the contract
that they themselves perform, plus those portions subcontracted to other SBE firms.
2.2 SBE Subcontractor: The SBE amount will be based on that portion (dollar value) of the
contract that the SBE Subcontractor performs.
2.3 SBE — Non-SBE Joint Venture: A joint venture consisting of SBE participation and non-SBE
participation, functioning as a CMR, may list the SBE participation on the basis of the
percentage of profit accruing to the SBE firm.
2.4 Lower Tier Non-SBE Participation: SBE Subcontractors proposing to further subcontract to
non-SBE CMRs shall not have that portion of subcontracting activity considered when
determining SBE participation.
2.5 SBE Suppliers: Any SBE Supplier that manufactures or substantially alters the material or
product it supplies will have that portion of activity considered when determining SBE
participation.
2.6 SBE Trucking: trucking by SBEs will be the amount to be paid when the SBE trucker has
performed the trucking with his/her trucks, tractors, and employees or when an SBE trucking
broker has signed agreements with SBE truckers.
PART 3: REQUESTS FOR PAY
3.1 Each Request for Payment, including the final Request for Payment must be accompanied by
a Maricopa County SBE Program Participation Report in the form as provided in Attachment
1 to this Section.
PART 4: ATTACHMENTS
4.1 Attachment 1: SBE Participation Reporting Form (1 page).
END OF SECTION
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Maricopa County Small Business Enterprise Program
Participation Reporting Form
This form is to be submitted with each pay application or invoice. Any pay application or invoice without
this form attached is subject to rejection as not being a completed pay application or invoice pursuant to
the terms of the contract.
Name of Prime Consultant/CMR Contract No.
Contact Person Project No.
Street Address Amount of this Pay Application/Invoice
City, State ZIP
Complete below with information on the SBE firms utilized as SubConsultants/SubContractors for this
pay application/invoice. If work was self-performed and your firm, as the prime, is an SBE firm pursuant
to A.R.S. § 41-1001, et seq., then you may list your firm as the SBE firm.
SBE Firm Name SBE Firm Address Type of Work $ Pd to SBE this
Performed App/Inv
$
$
$
$
$
$
$
$
$
$
o A mark in this box certifies that no SBE firms were utilized as the prime, SubConsultant or
SubContractors with respect to this pay application/invoice.
Signature Date
Printed Name Phone No.
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EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION
1.1 Scope. Notwithstanding anything to the contrary provided elsewhere in the Contract, the alternative
dispute resolution ("ADR") process provided for herein shall be the exclusive means for resolution of
claims or disputes arising under, relating to or touching upon the Contract, 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
contracts containing this ADR provision.
1.2 Neutral Evaluator, Arbitrators. The County will select a Neutral Evaluator to serve as set forth in this
ADR process. As needed under § 1.6.2 below, the County and CMR 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. All arbitrators, once
selected, shall serve as neutral arbitrators, even if they are party-appointed. The County and the CMR
shall name their respective arbitrators within five (5) calendar days after the declaration of a failure of
mediation or the mutual waiver of mediation.
1.3 Discussion and Partnering. When a claim is made or a dispute arises relating to the Contract, senior
representatives of the County and the claimant will meet personally within ten (10) days to discuss the
claim/dispute and attempt to resolve it. If, after good faith efforts, resolution is not achieved, the
claim/dispute (hereafter "dispute") will proceed to the neutral evaluation process.
1.4 Neutral Evaluation Process. If the parties have been unable to resolve the dispute after discussions and
partnering, the following neutral evaluation process shall be used to resolve any such dispute.
1.4.1 Notification of Dispute. The County through its Agent shall promptly notify the Neutral
Evaluator in writing of the existence of a dispute within ten days of the County or the CMR
declaring need to commence the neutral evaluation process.
1.4.2 Non-Binding Informal Hearing. The Neutral Evaluator shall schedule a non-binding informal
hearing of the matter to be held within ten (10) calendar 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 of its opportunity to present such
evidence as they believe will resolve the dispute. The Neutral Evaluator shall notify each party
to the dispute that they shall submit a written outline of the issues and evidence intended to be
introduced at the hearing and their proposed resolution of the dispute to the Neutral Evaluator
before the hearing commences. Potential 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.
1.4.3 Non-Binding Decision. The Neutral Evaluator shall render a non-binding written decision as
soon as possible, but not later than five (5) calendar days after the hearing concludes.
1.4.4 Further proceedings. In the event that either party declines to accept the Neutral Evaluator's
decision as the resolution of the dispute, the dispute will proceed to mediation.
1.5 Mediation. In the event that a meeting of principals and neutral evaluation have failed, the parties shall
engage in mediation (as a condition precedent to arbitration) within fifteen (15) days of a party's
notifying the Neutral Evaluator that the party declines to accept the Neutral Evaluator's decision as the
resolution of the dispute. The mediator shall be chosen by the parties' agreement. If such agreement is
not reached by five (5) days after the neutral evaluator's receipt of a party's notification, then the
mediator shall be named by the Neutral Evaluator. In the event that mediation fails (or is waived by both
parties) then the matter shall proceed to binding arbitration.
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1.6 Binding Arbitration Procedure. The following binding arbitration procedure shall serve as the
exclusive method to resolve a dispute if any party chooses not to accept the decision of the Neutral
Evaluator and mediation has failed or has been waived. A party requesting binding arbitration shall
notify the Neutral Evaluator in writing within seven (7) calendar days of the failure or waiver of
mediation of the party's demand for arbitration. If the CMR 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 paragraph 1.6.11 and the proceeds from the bond shall be allocated in accordance with paragraph
1.6.13 by the Arbitration Panel. The bond must be in the full amount agreed upon or as established by
the Neutral Evaluator to pay the potential cost of the full arbitration proceeding. The bond must be
posted with and received by the Neutral Evaluator within five (5) calendar days after the demand for
arbitration.
1.6.1 Arbitration Panel and Applicable Law and Rules. Disputes involving less than $200,000
shall be heard by one single arbitrator chosen by agreement of the parties. For disputes in excess
of $200,000, the Arbitration Panel shall consist of three arbitrators: the County's appointed
arbitrator, the CMR's appointed arbitrator and a third arbitrator (or "neutral arbitrator") who
shall be selected by the parties' arbitrators as set forth in Section 1.5.2. The arbitration is to be
convened and administered under the Revised Uniform Arbitration Act ("RUAA") (A.R.S. § 12-
3001 et seq.) and the American Arbitration Association Construction Rules shall serve as a
guideline for proceedings, thus as a supplement to the RUAA.
1.6.2 Selection of Neutral Arbitrator. For disputes in excess of $200,000, the parties' arbitrators
shall choose the Neutral Arbitrator, within ten (10) calendar days of notification of a demand for
arbitration having been received by the Neutral Evaluator. The Neutral Arbitrator shall have the
same qualifications as those of the arbitrators set forth in paragraph 1.2 above. In the event that
the two party selected arbitrators cannot agree on a Neutral Arbitrator as set forth above, the
Neutral Arbitrator shall be selected as the Default Neutral Arbitrator. If the County and CMR
cannot agree on the single arbitrator or upon a Default Neutral Arbitrator, then County and the
CMR shall each submit two names to Judge Eino Jacobson, or his successor as designated by
Maricopa County, who shall select one person. The Neutral Arbitrator may submit his invoices
for services to the OWNER, and the OWNER shall pay the amounts invoiced (subject to the
provisions of paragraph 1.4.13) unless and until the CMR is determined by the Arbitration Panel
to be the non-prevailing party and the Arbitration Panel determines per 1.6.11 what party pays
such costs.
1.6.3 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 single arbitrator or 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 twenty (20) calendar days after
notification of request for arbitration having been received. This deadline can be extended only
with the consent of all the parties to the dispute, or by decision of the single arbitrator or the
Arbitration Panel upon a showing of emergency circumstances.
1.6.4 Procedure. The single arbitrator or the Arbitration Panel will conduct the hearing in such a
manner that will resolve disputes in a prompt, cost efficient manner giving regard to the rights of
all parties. Each party shall supply to the single arbitrator or 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 single arbitrator or the Arbitration Panel shall review
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and consider the Neutral Evaluator decision. The single arbitrator or 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 parties' 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 single arbitrator or 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 or enforce such orders
of the Chairman.
1.6.5 Hearing Days. In order to effectuate parties' goals, the hearing once commenced, will proceed
from working day to working day until concluded, absent a showing of emergency
circumstances.
1.6.6 Award. The single arbitrator shall within ten (10) calendar days of the conclusion of a hearing
issue a reasoned award. The Arbitration Panel shall, within ten (10) calendar days from the
conclusion of any hearing, by majority vote issue its reasoned award. The award shall include an
allocation of fees and costs pursuant to 1.6.11 herein. The award is to be in accordance with the
Contract and the law of the State of Arizona.
1.6.7 Scope of Award. Regardless of the provisions of the RUAA, the Arbitration Panel shall be
without authority to award punitive damages, and any such punitive damage award shall be void.
If an award is made against any party in excess of one hundred thousand dollars ($100,000),
exclusive of interest, arbitration fees, costs and attorneys' fees, it shall be supported by written
findings of fact, conclusions of law and a statement as to how damages were calculated.
1.6.8 Jurisdiction. The Arbitration Panel shall not be bound for jurisdictional purposes by the
amount asserted in any party's claim, but shall conduct a preliminary hearing into the question
of jurisdiction over the claim as regards its amount upon application of any party at the earliest
convenient time, but not later than the commencement of the arbitration hearing. If the dispute
is in reality one involving less than $200,000, the arbitration shall continue before the Neutral
Arbitrator as a single arbitrator, with the party appointed arbitrators being excused.
1.6.9 Entry of Judgment. As provided in the RUAA, any party can make application to the
Maricopa County Superior Court for confirmation of an award, and for entry of judgment on it.
1.6.10 Severance and Joinder. To reduce the possibility of inconsistent adjudications, the Neutral
Evaluator or the single arbitrator or Arbitration Panel, may: (i) at the request of any party, join
and/or sever parties, and/or claims arising under other contracts containing this ADR provision,
and (ii) the Neutral Evaluator, on his own authority, or the single arbitrator or Arbitration Panel
may, on its own authority, join or sever parties and/or claims subject to this ADR process as
deemed necessary for a just resolution of the dispute, consistent with the parties' goal of the
prompt and efficient resolution of disputes, provided, however, that the A/E, OWNER and
Project Professionals shall not be joined as a party to any claim made by a CMR. Nothing
herein shall create the right by any party to assert claims against another party not germane to
the Contract or not recognized under the substantive law as applicable to the dispute. Neither
the Neutral Evaluator nor the single arbitrator or Arbitration Panel is authorized to join to the
proceeding parties not in privity with the County. CMR cannot be joined to any pending
arbitration proceeding, without CMR's express written consent and unless CMR is given the
opportunity to participate in the selection of the single arbitrator or non-County appointed
arbitrator.
1.6.11 Fees and Costs. Each party shall bear its own fees and costs in connection with any informal
hearing before the Neutral Evaluator and the mediation. All fees and costs associated with any
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arbitration before the single panel or Arbitration Panel, including without limitation the
Arbitrator fees, and the prevailing party's reasonable attorneys' fees, expert witness fees and
costs, will be paid by the non-prevailing party, except as provided for herein. In the event that
CMR is the non-prevailing party, all fees and costs as noted above shall first be paid out of the
bond posted with the Neutral Evaluator. In no event shall the CMR's obligation to pay fees and
costs be limited to the amount of the bond posted herein. In no event shall any Arbitrator's
hourly fees be awarded in an amount in excess of $250 per hour and (i) costs shall not include
any travel expenses in excess of mileage at the rate paid by Maricopa County, not to exceed a
one way trip of 150 miles, and (ii) all travel expenses, including meals, shall be reimbursed
pursuant to the travel policy of Maricopa County 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 single arbitrator or Arbitration Panel. Fees for the
Neutral Evaluator shall be paid by County.
1.6.12 Confidentiality. Any proceeding initiated under this ADR provision shall be deemed
confidential to the maximum extent allowed by Arizona law and, except for disclosures to a
party's attorneys or accountants, no party shall make any disclosure related to the disputed
matter or to the outcome of any proceeding except to the extent required by law, or to seek
interim equitable relief, or to enforce an agreement reached by the parties or an award made
hereunder. This provision does not affect the County's right to inform the County Supervisors
of the resolution of the dispute.
1.6.13 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 may become
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.
1.6.14 Change Order. Any award in favor of the CMR against the County or in favor of the County
against the CMR shall be reduced to a Change Order and executed by the parties in accordance
with the award and the provisions of the Contract.
1.6.15 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 Contract performance period which reasonably should 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.
1.7 Inclusion in Other Contracts. The CMR shall cooperate with the County in efforts to include this
ADR provision in all other Project contracts. Subject to CMR's reasonable agreement, the CMR agrees
that any modification to this ADR provision that is included in the construction or other contracts shall
also apply to the CMR. 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.
END OF EXHIBIT
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EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN
(The Subcontractor Management Plan is incorporated into the CMR's Statement of Qualification
submitted during the procurement process. This Plan is incorporated herein by reference as though fully
set forth in the contract documents.)
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EXHIBIT I - LEGAL WORKER CERTIFICATION
December 9, 2015
(Date)
Maricopa County
Facilities Management Department
401 West Jefferson Street
Phoenix, Arizona 85003
As required by Arizona Revised Statutes §41-4401, Maricopa County (the "County") is prohibited, after
September 30, 2008 from awarding a contract to any CMR who fails, or whose subcontractors fail, to
comply with Arizona Revised Statutes § 23-214-A. The undersigned entity warrants that it complies fully
with all federal immigration laws and regulations that relate to its employees, that it shall verify, through
the employment verification pilot program as jointly administered by the U.S. Department of Homeland
Security and the Social Security Administration or any of its successor programs, the employment
eligibility of each employee hired after December 31, 2007, and that it shall require its subcontractors and
sub-subcontractors to provide the same warranties to the below entity.
The undersigned acknowledges that a breach of this warranty by the below entity or by any subcontractor
or sub-subcontractor under any Contract resulting from this solicitation shall be deemed a material breach
of the Contract, and is grounds for penalties, including termination of the Contract, by the County. The
County retains the right to inspect the records of the below entity, subcontractor and sub-subcontractor
employee who performs work under the Contract, and to conduct random verification of the employment
records of the below entity and any subcontractor and sub-subcontractor who works on the Contract, to
ensure that the below entity and each subcontractor and sub-subcontractor is complying with the
warranties set forth above.
Caliente Construction Inc 485 W Vaughn St
(Firm) (Address Line 1)
Lorraine Bergman
(Print Name) (T Aein ddij' esS- 2) 2" 8"59 -( g 3
President/CEO 480 894 5500
(Print Title) (Phone)
480 894 2323
(Fax)
lbergman@calienteconstruction.corn 86-0697201
(Email Address) (Federal Taxpayer ID Number)
B1X Room Upgrades West Court Building 3301 Serial # 14112-CMR
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