14056-CONTRACT PHASE I.PDF

CONSTRUCTION MANAGEMENT AT RISK
MARICOPA COUNTY, ARIZONA
OET Remote Sites Refresh
FOR PROFESSIONAL SERVICES
PHASE I
PRE-CONSTRUCTION SERVICES
Office of Procurement Services
Serial # 14056-CMR
Contract # 14056-CMR
C-70-
Project # FM151001
Facilities Management Department, Maricopa County Arizona
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CONSTRUCTION MANAGEMENT AT RISK
PROFESSIONAL SERVICES AGREEMENT
PHASE I
PRE-CONSTRUCTION SERVICES
BETWEEN COUNTYCOUNTYMARICOPA COUNTY, ARIZONA, AND CONTRACTOR
FOR
PROFESSIONAL SERVICES
FOR THE
OET Remote Sites Refresh in Maricopa County, Arizona
Whereas, Maricopa County, Arizona desires to construct OET Remote Sites Refresh in Maricopa
County, Arizona, and
Whereas, it is 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 construction management services for the OET
Remote Sites Refresh project as directed by the Director of the Facilities Management Department.
This agreement made this _29th day of September, 2014.
By and between Maricopa County (hereinafter called the "Owner") and ForeSite Design &
Construction, Inc. (hereinafter called the "Contractor") as a
Construction Management at Risk Firm
Phase I Pre-Construction Services
Witnesseth, that the Owner and the Contractor for the considerations herein set forth, agree as follows:
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TABLE OF CONTENTS PAGE #
PROFESSIONAL SERVICES AGREEMENT 2
ARTICLE 1- SCOPE OF WORK 4
ARTICLE 2- DEFINITIONS 4
ARTICLE 3- TERM AND TIME OF PERFORMANCE 6
ARTICLE 4- COMPENSATION 6
ARTICLE 5- CHANGES IN SCOPE OF SERVICES 7
ARTICLE 6- INDEMNIFICATION 7
ARTICLE 7- TERMINATION OR SUSPENSION OF THE CONTRACT 8
ARTICLE 8- MISCELLANEOUS 10
EXHIBIT A - SCOPE OF SERVICES 16
EXHIBIT B 20
SMALL BUSINESS ENTERPRISE PROGRAM 20
Participation Reporting Form 21
EXHIBIT C - ALTERNATIVE DISPUTE RESOLUTION 22
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ARTICLE 1- SCOPE OF WORK
The Contractor shall furnish professional Construction Management (CM) Services for the project described in
Exhibit A attached hereto, upon issuance of Contractor's Notice to Proceed by the Owner or Owner's Designee.
The Contractor shall furnish the following Services as specifically authorized by CM Contractor's Notice to Proceed
issued by the Owner or Owner's Designee.
1.1 CONTRACTOR hereby agrees to furnish all of the labor, materials, equipment services and incidentals
necessary to perform all of the work described in the Contract Documents Including Drawings,
Specifications and Addenda for the Project known as the OET Remote Sites Refresh, prepared by Pearson
Engineering Associates.
ARTICLE 2- DEFINITIONS
2.1 BOARD OF SUPERVISORS: The Maricopa County Board of Supervisors, its successors and assigns.
2.2 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.
2.3 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.
2.4 CONSULTANT: 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 to the Owner.
2.5 CONTINGENCY: An established sum included in the Guaranteed Maximum Price (GMP) for the purpose
of defraying actual expenses that may arise due to unforeseen circumstances of the Project for which the
contingency is established.
2.6 CONTRACT DOCUMENTS: The Project Manual (including this Agreement and its Exhibits, attachments
and Forms), drawings and specifications, the Request For Qualifications and CONTRACTOR's response
thereto (as negotiated and accepted by the COUNTY), any Addenda to the Project Manual, the record of the
contract award by the Maricopa County Board of Supervisors, the Contract, the Notice of Award, the
Notice(s) to Proceed, the Purchase Order and all agreed upon modifications issued after execution of the
Contract are the documents which are collectively referred to as the Contractor Documents.
2.7 CONTRACT PRICE: The amount established in the Contract as the Guaranteed Maximum Price (evil)), as
may be amended by Change Order.
2.8 CONTRACT: This Construction Agreement.
2.9 DESIGNEE: the person or entity named, nominated or selected for the purpose identified in that section of
this Contract.
2.10 CONTRACTOR: An individual, partnership, corporation, association, joint venture, or any combination
thereof, which has entered into the contract with the Owner for construction of the Owner's facilities and
incidents thereto. The contractor for this project is ForeSite Design & Construction, Inc..
2.11 DIRECTOR OF FACILITIES MANAGEMENT: The Director of this Department, of Maricopa County,
Arizona, having the authority and responsibility for management of the specific projects authorized under
this Agreement.
2.12 FIELD ORDER: A written order which directs minor changes in the work, but which does not involve a
change in the Contract Price or Contract Time.
2.13 FINAL COMPLETION: The date certified by the CONSULTANT and PROJECT MANAGER in the Final
Certificate of Payment in which all conditions and requirements of any permits and regulatory agencies have
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been satisfied; and the documents (if any) required to be provided by CONTRACTOR have been received
by the PROJECT MANAGER; and to the best of Consultant's and PROJECT MANAGER' s information
and belief has been fully completed in accordance with the terms and conditions of the Contract Documents.
2.14 GENERAL CONDITION ITEMS: The provision of facilities or performance of work by the
CONTRACTOR for items, which do not lend themselves readily to inclusion in one of the separate trade
contracts. Payment for the General Condition items will be at cost and included as part of the Guaranteed
Maximum Price.
2.15 GUARANTEED MAXIMUM PRICE CONSTRUCTION CONTRACT: The method of construction
contracting whereby the CONTRACTOR provides design phase consulting services (pre-construction
services) and management responsibility for the project (general conditions). The fee is a dollar amount
negotiated for profit, overhead and off-site general and administrative costs. All subcontracts are generally
awarded by the CONTRACTOR based on competitive bids received in response to invitations to bid issued
by the CONTRACTOR. The total price paid to the CONTRACTOR is either the fee plus the costs or the
Guaranteed Maximum Price (GMP), whichever is less. This contract utilizes the Guaranteed Maximum
Price as the method of compensation.
2.16 INSPECTOR: An employee of Maricopa County, Arizona, assigned by the Director of the Facilities
Management Department to make observations of work performed by a Contractor.
2.17 LUMP SUM COMPENSATION: The amount established in the Pre-Construction Services contract as the
amount to be paid to the contract for the services outlined in the contract, as may be amended by Change
Order.
2.18 MATERIALS: Materials incorporated in this Project, or used or consumed in the performance of the Work.
2.19 NOTICE TO PROCEED: One or more written notices to CONTRACTOR authorizing the commencement
of Work.
2.20 PLANS AND/OR DRAWINGS: The official graphic representations of this construction project which are a
part of the Contract Documents.
2.21 PRICING DOCUMENTS: The set of documents upon which the GMP contract is negotiated is comprised of
the following: (i) the Owner approved Contract Documents, (ii) the Estimated CONTRACTOR's Direct
Construction Cost (including unit prices, quantities and explanatory notes), (iii) the CONTRACTOR's
General Condition Items, (iv) schedules developed by the CONTRACTOR and approved by the PROJECT
MANAGER, and any other documents or exhibits utilized to derive the GMP.
2.22 PROJECT: The construction, alteration or repair, and all service and incidents thereto, of the Maricopa
County, Arizona facility, as contemplated and budgeted by the Owner, including the work described in
Exhibit A herein.
2.23 PROJECT MANAGER: The ranking managerial employee of the agency of COUNTY government which
requested the Project, or that person's designee, expressly designated as PROJECT MANAGER, in writing
by the DIRECTOR; who is the representative of the Owner, concerning the Contract Documents.
2.24 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.
2.25 RESIDENT PROJECT REPRESENTATIVE: An authorized representative of CONSULTANT on the
Project.
2.26 SMALL BUSINESS ENTERPRISE (SBE): has the meanings set forth in Article 13.8 of the General
Conditions to the Construction Contract and Section 00810, Maricopa County Small Business Enterprise
Program Construction Contracting Requirements and as set forth in A.R.S. § 41-1001.
2.27 SUBCONTRACTOR: A person, firm or corporation having direct contact with CONTRACTOR including
one who furnishes material worked to a special design according to the Project Manual for this work, but
does not include who merely furnishes material not so worked.
2.28 SUBSTANTIAL COMPLETION: That date on which, as certified in writing by CONSULTANT, the Work,
or a portion thereof designated by the PROJECT MANAGER in its sole discretion, is at a level of
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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. A Certificate of Final Inspection must be
issued for Substantial Completion to be achieved, however, the issuance of a Certificate of Occupancy or the
date thereof are not to be determinative of the achievement or date of Substantial Completion.
2.29 VALUE ENGINEERING: An organized approach to providing the necessary function or product which
provides equal or better performance at a lower cost.
2.30 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 CONTRACTOR to fulfill the CONTRACTOR' s obligations. The work may
constitute the whole or a part of the project.
2.31 WRITTEN NOTICE: Shall be deemed to have been duly served if delivered in person to the individual or to
a member of the firm or to an officer of the corporation for whom it is intended, if delivered at or sent by
registered mail or other traceable delivery service to the last known business address. Electronic, facsimile
(FAX) or other telephonic transmission shall not be considered as written notice.
ARTICLE 3- TERM AND TIME OF PERFORMANCE
3.1 The term of this Agreement shall begin on the date it is fully executed by both parties and shall end on the
date of commencement of the term of the agreement between the COUNTY and the CONTRACTOR for
construction services for the OET Remote Sites Refresh or, no later than, August 30, 2015, unless
terminated in accordance with Article 7. The Owner shall have the authority to extend the term of this
Agreement for such period of time as deemed necessary for the Project. Any such extension shall be
accomplished by an amendment to this Agreement in accordance with the "AMENDMENTS" provisions
stated in Article 8 herein.
3.2 All duties, obligations, and responsibilities of CONTRACTOR required by this Agreement shall be
completed no later than August 30, 2015. Time shall be deemed to be of the essence in performing the
duties, obligations and responsibilities required by this Agreement.
3.3 At or before the above referenced completion date for this contract the CONTRACTOR, following
completion of cost estimating, value engineering and other services set forth in Article 4 will tender to the
COUNTY a written Guaranteed Maximum Price (GMP) for final completion of this project. The COUNTY,
by and through the Director, the PROJECT MANAGER and/or other COUNTY personnel, will have the
opportunity to negotiate the amount of the GMP with the CONTRACTOR. In the event a GMP which is
satisfactory to COUNTY personnel in their reasonable discretion is not agreed upon in writing within 30
days of the tender of GMP, the COUNTY reserves the right to terminate this Contract for convenience and
the CONTRACTOR will immediately tender all documents, in accordance with the applicable provisions of
this agreement. The CONTRACTOR shall have no recourse from this termination and the COUNTY shall
take such documents, as defined, in Section 8.1 herein, and commence negotiations with the second and
third ranked firm, respectively. Conditions, precedent to a Phase II contract, for this project are the
satisfactory final completion of Phase I and an agreed upon GMP. If a GMP is agreed to with the
CONTRACTOR, a separate agreement will be entered into between the parties.
ARTICLE 4- COMPENSATION
4.1 Owner agrees to pay CONTRACTOR, in the manner specified in Section 4.2, the total Lump Sum
Compensation in the amount of Ninety-Nine Thousand, Seven Hundred and Three Dollars, and No
Cents ($99,703.00) for work actually performed and completed pursuant to this Agreement, which amount
shall be accepted by CONTRACTOR as full compensation for all such work. It is acknowledged and agreed
by CONTRACTOR that this amount is the maximum payable and constitutes a limitation upon Owner's
obligation to compensate CONTRACTOR for its services related to the Scope of Services set forth in
Exhibit A attached hereto and in this Agreement. This maximum amount, however, does not constitute a
limitation, of any sort, upon CONTRACTOR's obligation to perform all items of work required by or which
can be reasonably inferred from the Scope of Services. No amount shall be paid to CONTRACTOR to
reimburse its expenses.
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The Lump Sum Compensation for Phase I Pre-Construction Services in the amount of Ninety-Nine
Thousand, Seven Hundred and Three Dollars, and No Cents ($99,703.00) shall be paid out in
accordance with the percentage amount set forth therein as follows:
PROJECT PHASES FEE %
Scheduling 10%
Constructability Review 20%
Cost Estimating 20%
Value Engineering 10%
Guaranteed Maximum Price (GMP) 20%
Prequalification of Subcontractors 20%
4.1.1 It is understood that the method of compensation is that of Lump Sum which means that
CONTRACTOR shall perform all services set forth in Exhibit A, and in this Agreement, for the
total compensation in the Lump Sum amount. This Lump Sum amount is considered, by all parties
to the contract, to include all CONTRACTOR reimbursable expenses. Absent a Change Order
specifically indicating otherwise, no amount greater than the Lump Sum Compensation will be paid
to reimburse the CONTRACTOR for any other expenses (reimbursable or otherwise).
4.2 METHOD OF BILLING AND PAYMENT
4.2.1 CONTRACTOR may submit invoices for compensation no more often than on a monthly basis, but
only after the services for which the invoices are submitted have been completed. Such invoices
shall include the phase of the services for which invoice is submitted along with a detail of the task
or services performed for that phase. An original invoice plus one copy are due within fifteen (15)
days of the end of the month, except the final invoice which must be received no later than thirty
(30) days after this Agreement expires. Invoices shall designate the nature of the services
performed and/or the expenses incurred.
4.2.2 COUNTY shall pay CONTRACTOR within thirty (30) calendar days of receipt of
CONTRACTOR's proper statement. To be deemed proper, all invoices must comply with the
requirements set forth in this Agreement and must be submitted on the form and pursuant to
instructions prescribed by PROJECT MANAGER. Payment may be withheld for failure of
CONTRACTOR to comply with a term, condition, or requirement of this Agreement.
4.3 Notwithstanding any provision of this Agreement to the contrary, COUNTY may withhold, in whole or in
part, payment to the extent necessary to protect itself from loss on account of inadequate or defective work
which has not been remedied, or resolved in a manner satisfactory to the PROJECT MANAGER, and/or due
to CONTRACTOR's failure to comply with Section 8.1 herein. The amount withheld shall not be subject to
payment of interest by COUNTY.
4.4 Payment shall be made to CONTRACTOR at the address registered for CONTRACTOR with Maricopa
County's Office of Procurement Services/Finance Departments at their on-line registration:
http://www.maricopa.gov/finance/vendors.aspx
ARTICLE 5- CHANGES IN SCOPE OF SERVICES
5.1 Any change to the Scope of Services must be accomplished by a written amendment, executed by the parties
in accordance with Article 8 herein.
ARTICLE 6- INDEMNIFICATION
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6.1 CMR's Duty to Indemnify and Defend. To the fullest extent permitted by law, the CMR shall defend,
indemnify and hold harmless the OWNER, its agents, representatives, officers, directors, officials, and
employees 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.
ARTICLE 7- TERMINATION OR SUSPENSION OF THE CONTRACT
7.1 TERMINATION BY THE OWNER FOR CAUSE
7.1.1 Criteria for Termination for Cause. The Owner may terminate the Contract if the CMR :
7.1.1.1 Persistently or repeatedly refuses or fails to supply enough properly skilled Workers or
proper materials;
7.1.1.2 Persistently disregards laws, ordinances, or rules, regulations or orders of a public
authority having jurisdiction;
7.1.1.3 Material breaches of any provision of the Contract;
7.1.1.4 Fails to furnish the Owner with assurances satisfactory to the Owner evidencing the
CMR's ability to complete the Work in compliance with all the requirements of the
Contract; or
7.1.1.5 Fails after commencement of the Work to proceed diligently and continuously with the
construction and completion of the Work for more than seven (7) days, except as
permitted under the Contract.
7.1.1.6 Persistently or repeatedly refuses or fails to carry out the Safety provisions as required
by Contract.
7.1.1.7 Fails to make payment to Subcontractors for materials or labor in accordance with the
respective agreements between the CMR and the Subcontractors;
7.1.2 Effect of Termination for Cause. When any of the above conditions exist, the Owner, after
consultation with the Owner's Agent, and upon certification by the A/E that sufficient cause exists
to justify such action, may without prejudice to any other rights or remedies of the Owner and after
giving the CMR and the CMR's Surety, if any, three (3) days' written notice, terminate the Contract
and may, subject to any prior rights of the Surety:
7.1.2.1 Take possession of the Site and all materials, equipment, tools, and construction
equipment machinery thereon owned by the CMR ;
7.1.2.2 Accept assignment of subcontracts pursuant to the terms of this contract and A.R.S.; and
7.1.3 Finish the Work by whatever reasonable method the Owner may deem expedient. CMR Right to
Receive Payment. When the Owner terminates the Contract for one of the reasons stated in Article
7.1.1, the CMR shall not be entitled to receive further payment until the Work is finished.
7.1.4 Costs for Finishing Work. If the unpaid balance of the Contract Sum exceeds costs of finishing the
Work, including compensation for the Owner's and A/E's services and expenses made necessary
thereby, such excess shall be paid to the CMR. If such costs exceed the unpaid balance, the CMR
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shall pay the difference to the Owner. The amount to be paid to the CMR or Owner, as the case
may be, shall, upon application, be certified by the A/E after consultation with the Owner, and this
obligation for payment shall survive termination of the Contract.
7.2 SUSPENSION BY THE OWNER FOR CONVENIENCE
7.2.1 Owner's Right. The Owner may, without cause, order the CMR in writing to suspend, delay or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
7.2.2 Adjustment in Contract Sum. An adjustment shall be made for increases in the cost of performance
of the Contract, including profit on the increased cost of performance, caused by suspension, delay
or interruption. No adjustment shall be made to the extent:
7.2.2.1 That performance is, was or would have been so suspended, delayed or interrupted by
another cause for which the CMR is responsible; or
7.2.2.2 That an equitable adjustment is made or denied under another provision of this Contract.
7.2.3 Method for Adjustment in Contract Sum. Adjustments made in the cost of performance may have a
mutually agreed fixed or percentage fee.
7.3 OWNER'S TERMINATION FOR CONVENIENCE
7.3.1 Effect of Termination for Convenience. The Owner reserves the right to terminate the Contract for
convenience and without cause even if the CMR has not failed to perform any part of the Contract.
Termination of the Work hereunder shall be effected by written notice to the CMR. Upon receipt
of such notice, the CMR shall, unless the notice otherwise directs:
7.3.1.1 Immediately discontinue the Work and the placing of all orders and subcontracts in
connection with this Contract;
7.3.1.2 Immediately cancel all of the existing orders and subcontracts made hereunder;
7.3.1.3 Immediately transfer to the Owner all materials, supplies, Work in progress, appliances,
facilities, machinery and tools acquired by the CMR in connection with the performance
of the Contract, and take such action as may be necessary or as the Owner may direct for
protection and preservation of the Work relating to this Contract; and
7.3.1.4 Deliver all plans, Drawings, Specifications and other necessary information to the
Owner.
7.3.2 CMR's Exclusive Remedy. If the Owner terminates the Contract for convenience, the following
shall be the CMR's exclusive remedy:
7.3.2.1 Reimbursement of all actual expenditures and costs approved by the Owner as having
been made or incurred in performing the Work;
7.3.2.2 Reimbursement of expenditures made and costs incurred with the Owner's prior written
approval in settling or discharging outstanding commitments entered into by the CMR
in performing the Contract; and
7.3.2.3 Payment of profit, in so far as profit is realized hereunder, of an amount equal to the
estimated profit on the entire Contract at the time of termination multiplied by the
percentage of completion of the Work. In no event shall the CMR be entitled to
anticipated fees or profits on Work not required to be performed.
7.3.3 Warranties, Guarantees and Indemnities to Remain in Effect. All obligations of the CMR under the
Contract with respect to completion of the Work, including but not limited to all warranties,
guarantees and indemnities, shall apply to all Work completed or substantially completed by the
CMR prior to a convenience termination by the Owner. Notwithstanding the above, any
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convenience termination by the Owner or payments to the CMR shall be without prejudice to any
claims or legal remedies that the Owner may have against the CMR for any cause.
7.3.4 Conversion of Termination for Cause to Termination for Convenience. Upon a determination that a
termination of this Contract other than a termination for convenience under this Article was
wrongful or improper for any reason, such termination shall automatically be deemed converted to
a convenience termination under this Article 7, and the CMR's remedy for such wrongful
termination shall be limited to the recoveries specified under Article 7.3.2.
7.3.5 Remedy Limited to Damages. In the event that the CMR is terminated, whether for cause or
convenience, the CMR's sole remedy shall be for damages. In no event shall the CMR be entitled
to reinstatement or other equitable relief from a court or through alternative dispute resolution as
provided in the Phase II Construction Services Contract.
7.3.6 Notice that Contract is Subject to Termination Provisions of A.R.S. § 38-511. The parties
acknowledge, and as required by law, notice is hereby given that this Contract is subject to A.R.S. §
38-511.
ARTICLE 8- MISCELLANEOUS
8.1 OWNERSHIP OF DOCUMENTS
Any and all reports, photographs, surveys, and other data and documents provided or created in connection with
this Agreement are and shall remain the property of COUNTY. In the event of termination of this Agreement,
any reports, photographs, surveys, estimates, schedules, drawings, and other data and documents prepared by
CONTRACTOR, whether finished or unfinished, shall become the property of COUNTY and shall be delivered
by CONTRACTOR to the PROJECT MANAGER within seven (7) days of termination of this Agreement by
either party. Any compensation due to CONTRACTOR shall be withheld until all documents are received as
provided herein. This shall apply to all documents produced in any phase of the work, regardless of whether a
subsequent phase is undertaken with CONTRACTOR.
8.2 AUDIT RIGHT AND RETENTION OF RECORDS
COUNTY shall have the right to audit the books, records and accounts of CONTRACTOR that are related to this
Project. CONTRACTOR shall keep such books, records, and accounts as may be necessary in order to record
complete and correct entries related to the Project.
CONTRACTOR shall preserve and make available, at reasonable times for examination and audit by COUNTY,
all financial records, supporting documents, statistical records and any other documents pertinent to this
Agreement for the required retention period of 9 years. If any audit has been initiated and audit findings have not
been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records and
accounts shall be retained until resolution of the audit findings. Any incomplete or incorrect entry in such books,
records, and accounts shall be a basis for COUNTY's disallowance and recovery of any payment upon such
entry.
8.3 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH
DISABILITIES; SMALL BUSINESS ENTERPRISE POLICY
8.3.1 This Contract is made in accordance with and subject to the provision of all applicable laws,
statutes, ordinances, rules, regulations, executive orders and codes. To the extent required by
applicable law, each party hereto shall comply and require its Subcontractors and suppliers to
comply with all then applicable federal, state of Arizona and local nondiscrimination laws, rules,
regulations, ordinances and executive orders, including, without limitation, the Civil Rights Act of
1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act, as they
may be amended, modified, codified, supplemented or repealed from time to time.
8.3.2 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
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County. A full description of the County's SBE program and the contractual requirements are
attached hereto and incorporated herein by reference in Exhibit B.
8.4 INDEPENDENT CONTRACTOR
CONTRACTOR is an independent contractor under this Agreement. Services provided by CONTRACTOR
pursuant to this Agreement shall be subject to the supervision of CONTRACTOR. In providing such services,
neither contractor nor its agents shall act as officers, employees, or agents of the COUNTY. This Agreement
shall not constitute or make the parties a partnership or joint venture. The COUNTY is not responsible for any
debt, default, act or omission of the Contractor.
8.5 THIRD PARTY BENEFICIARIES
Neither CONTRACTOR nor COUNTY intends to directly or substantially benefit a third party by this
Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no
third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties
expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity
under this Agreement.
8.6 NOTICES
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
Maricopa County
401 West. Jefferson Street
Phoenix, Arizona 85003
FOR CONTRACTOR:
Scott Breeding,Operations Manager
ForeSite Design & Construction, Inc.
1425 North Mondel Drive
Gilbert, Arizona, 85233
8.7 ASSIGNMENT AND PERFORMANCE
Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered by either party. In
addition, CONTRACTOR shall not subcontract any portion of the work required of it by this Agreement without
written consent of the PROJECT MANAGER.
CONTRACTOR represents that all persons delivering the services required by this Agreement have the
knowledge and skills, either by training, experience, education, or a combination thereof, to adequately and
competently perform the duties, obligations, and services set forth in the Scope of Services and to provide and
perform such services to COUNTY's satisfaction for the agreed compensation. CONTRACTOR shall perform
its duties, obligations, and services under this Agreement in a skillful and respectable manner. The quality of
CONTRACTOR's performance and all interim and fmal product(s) provided to or on behalf of COUNTY shall
be comparable to the best local and national standards.
8.8 CONFLICTS
Neither CONTRACTOR nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible with CONTRACTOR' s
loyal and conscientious exercise of judgment related to its performance under this Agreement.
CONTRACTOR 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, CONTRACTOR 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
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administrative proceeding. The limitations of this section shall not preclude CONTRACTOR or any other
persons from representing themselves in any action or in any administrative or legal proceeding.
In the event CONTRACTOR is permitted to utilize subcontractors to perform any services required by this
Agreement, CONTRACTOR agrees to prohibit such subcontractors, by written contract, from having any
conflicts within the meaning of this section.
8.9 CONTINGENCY FEE
CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide
employee working solely for CONTRACTOR, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working
solely for CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or
resulting from the award or making of this agreement. For a breach or violation of this provision, COUNTY
shall have the right to terminate this Agreement without liability at its discretion, or to deduct from the
Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or consideration.
8.10 MATERIALITY AND WAIVER OF BREACH
COUNTY AND CONTRACTOR agree that each requirement, duty, and obligation set forth herein is substantial
and important to the formation of this Agreement and, therefore, is a material term hereof
COUNTY failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or
modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deem a
waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement.
8.11 COMPLIANCE WITH LAWS
CONTRACTOR 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.
8.12 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 CONTRACTOR 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.
8.13 JOINT PREPARATION
The parties acknowledge that they have sought and received whatever competent advice and counsel as was
necessary for them to form a full and complete understanding of all rights and obligations herein and that the
preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent
and the resulting document shall not, solely as a matter of judicial construction, be construed more severely
against one of the parties than the other.
8.14 PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit
attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by
reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement,
or provision contained in this Agreement shall prevail and be given effect.
8.15 APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of
Arizona. Venue for litigation or any proceedings concerning this Agreement shall be in Maricopa County,
Arizona.
8.16 AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless
contained in a written document prepared with the same or similar formality as this Agreement and executed by
the COUNTY and CONTRACTOR.
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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
8.17 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 Section 8.16 above.
8.18 DRUG-FREE WORKPLACE
It is a requirement of COUNTY that it enter into contracts only with firms that certify the establishment of a drug
free work place. Execution of this Agreement by CONTRACTOR shall serve, as CONTRACTOR's required
certification that it either has or that it will establish a drug free work place.
8.19 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.
8.20 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 contractor who fails, or whose subcontractors fail, to comply
with Arizona Revised Statutes § 23-214-A. The Contractor 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 Contractor. The Contractor acknowledges that a breach of this warranty by Contractor 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 Contractor, subcontractor and sub-subcontractor employee who
performs work under this Contract, and to conduct random verification of the employment records of the
Contractor and any subcontractor and sub-subcontractor who works on this Contract, to ensure that the
Contractor and each subcontractor and sub-subcontractor is complying with the warranties set forth
above. Contractor shall be responsible for all costs associated with compliance with this requirement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date first
above written, each of which shall, without proof or accounting for the other counterparts, be deemed an
original contract.
14056-CIVIR
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9-30-14
Date
Scott Breeding, 86-0711556
Printed Name Federal Tax Identification Number
Operations Manager 95182
Title Arizona Contractor's License Number
Net 30 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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LIST OF EXHIBITS AND FORMS
EXHIBITS: A. SCOPE OF SERVICES
B. SMALL BUSINESS ENTERPRISE PROGRAM
C. ALTERNATIVE DISPUTE RESOLUTION
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EXHIBIT A - SCOPE OF SERVICES
The scope of work defining preconstruction services to be provided by the Construction Manager at Risk
(CONTRACTOR) for this project, are as follows:
I. SCHEDULING
(A) The CONTRACTOR shall develop a Detailed Project Schedule, utilizing Critical Path Method (CPM)
logic sequencing, reflecting the design (remaining portion thereof) and construction of the overall
project.
(B) The CONTRACTOR shall utilize the completed Detailed Project Schedule, to develop a Project Control
Schedule, which shall be presented in a bar graph format. The purpose of the Project Control Schedule
is to summarize the information contained in the CPM schedule in order to provide the project team
with a management tool and an overall project visual aid to easily determine the schedule and status of
the total project and shall be provided to the County in Microsoft Project. The information derived from
these two schedules are to become part of the CONTRACTOR's management plan developed by the
CONTRACTOR.
(C) CONTRACTOR shall periodically update on a monthly basis both the Detailed Project Schedule and
the Project Control Schedule throughout the term of the preconstruction and construction phases of the
project as part of the CONTRACTOR' s management activity.
II. CONSTRUCTABILITY REVIEW
(A) The CONTRACTOR shall review and evaluate Design Development documents for clarity,
consistency, completeness, and ease of construction in order to achieve the overall objective of the
project.
(B) CONTRACTOR's review of the design documents shall include the following activities:
1. Preparing a Master Checklist to be used as a guide for reviewing each technical discipline.
2. Conducting reviews by preparing a "mark-up" set of documents and a list of comments
corresponding to the "mark-up."
3. Preparing and presenting a written report of constructability problems and concerns, including:
(a) recommendations
(b) checklist and comments
At least at each of the following stages:
(a) programming
(b) schematic design
(c) design development
(d) construction documents
4. Attending workshop meetings with the Consultant and the PROJECT MANAGER to review
proposed changes and recommending the changes, which are to be implemented for the project.
5. Verifying and conducting final review of changes to the construction Documents.
III. COST ESTIMATING
(A) The CONTRACTOR shall be responsible for preparing a minimum of four Construction Cost
Estimates.
(B) The CONTRACTOR shall prepare the first Construction Cost Estimate based on the information
prepared at the completion of the Programming phase and shall estimate the cost of the major elements
and subcomponents of the project. The purpose of the first Construction Cost Estimate is to verify the
owner's ability to complete the project within the established construction budget. The cost information
derived from this estimate shall directly relate to the CONTRACTOR's recommendations in the
Constructability and Value Engineers Report relative to ways to reduce and/or control costs.
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(C) The CONTRACTOR shall prepare the second Construction Cost Estimate based on the information
prepared at the completion of the Schematic Design phase and shall estimate the cost of the major
elements and subcomponents of the project. The purpose of the second Construction Cost Estimate is to
verify the owner's ability to complete the project within the established construction budget. The cost
information derived from this estimate shall directly relate to the CONTRACTOR's recommendations
in the Constructability and Value Engineers Report relative to ways to reduce and/or control costs.
(D) The CONTRACTOR shall prepare the third Construction Cost Estimate based on Design Development
documents and shall estimate the cost of the major elements and subcomponents of the project. The
purpose of the first Construction Cost Estimate is to verify the owner's ability to complete the project
within the established construction budget. The cost information derived from this estimate shall
directly relate to the CONTRACTOR's recommendations in the Constructability and Value Engineers
Report relative to ways to reduce and/or control costs.
(E) The final Construction Cost Estimate shall be based on one hundred percent (100%) complete
construction documents and shall be "permit ready" with sufficient detail to permit issuance of a
building permit and to obtain all required approval of all governmental authorities having jurisdiction
over the project. The second Construction Cost Estimate shall be used as the basis for negotiating the
Guaranteed Maximum Price (GMP) for the project and the basis for monitoring status of the project
throughout the construction phase.
(F) Additional Construction Cost Estimates may need to be developed during the pre-construction phase of
the project and will be identified by the County PROJECT MANAGER prior to development of the
Lump Sum Compensation amount.
IV. VALUE ENGINEERING
As a result of the CONTRACTOR'S Constructability Review or Construction Cost Estimate and in order to
reduce or control costs, the CONTRACTOR and Project Team shall work together to analyze the building's
structural, architectural, mechanical, electrical and plumbing systems and elements, and make
cost/performance recommendations for the Owner's consideration. The CONTRACTOR shall prepare the
team's recommendations in the form of a written report to be presented to the Owner.
V. GUARANTEED MAXIMUM PRICE (GMP)
Utilizing the information arrived at by formulating a schedule and cost estimates along with the results
achieved by performing a constructability review and Value Engineering, the Contractor shall determine a
(GMP). Based upon the definition as set forth in Section 2.15 of this agreement:
(A) The Contractor shall present the GMP in writing to the owner.
(B) The final GMP shall include all pricing documents as set forth in Section 2.21 of this agreement.
VI. PREQUALIFICATION OF SUBCONTRACTORS
(A) The CONTRACTOR shall conduct a community outreach program to identify potential minority
subcontractors who may be selected to participate in the project as small business enterprises (SBE) in
order to satisfy the project's assigned goals assigned by COUNTY for the construction phase of the
project.
(i) CONTRACTUAL RELATIONSHIP
(1) Nothing contained in the Contract shall create any contractual relationship between the
Owner or ALE and any Subcontractor.
(ii) AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE
WORK
(1) Award. There are two ways to select subcontractors and major suppliers (hereafter
referred to as Subcontractors) prior to submission of a GMP. They are qualifications-
based selection and competitive bidding.
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(2) Selection by qualifications only. The Owner may approve the selection of a Subcontractor
(s) based only on their qualifications when the Owner agrees that it is in the best interest of
the Project.
(3) Qualification based. Selection of a Subcontractor (s) should only occur prior to the
submittal of the GMP Proposal.
(4) Approval. The CMR must receive Owner approval of the selected Subcontractor (s).
(5) Costs. The CMR will negotiate costs for services/supplies from each Subcontractor
selected under this method.
(6) Selection by competitive GMP and qualifications. All Work shall be competitively GMP
unless a Subcontractor was selected pursuant to the Contract document(s). Competitive
GMPs may occur prior to or after the GMP Proposal.
(7) Subcontractor Interest. The CMR will develop Subcontractor interest, submit the names
of a minimum of three qualified Subcontractors for each trade in the Project for approval
by the Owner and solicit GMP's for various work categories.
(8) Objections. If the Owner objects to any Subcontractors or to any self-performed work for
good reason, the CMR will nominate a substitute Subcontractor.
(9) Pre-GMP Conference. The CMR will conduct a pre-GMP conference with the prospective
Subcontractors and the Owner will attend this meeting at their discretion.
(10) Self-performed Work. If the CMR desires to self-perform certain portions of the Work, it
will request to be one of the approved Subcontractors bidders for those specific GMP
packages. The CMR's GMP will be evaluated in accordance with the process identified
below. If events warrant and the Owner concurs that in order to insure compliance with
the project schedule and /or cost, the CMR may self-perform work without bidding or re-
bidding the work.
(11) Evaluate GMPs. The CMR shall receive, open, record, and evaluate the GMPs. The
apparent low bidders will be interviewed to determine the responsiveness of their
proposals. In evaluating the responsiveness of the GMP proposals the CMR, in addition to
GMP price, may consider the following factors: past performance on similar projects,
qualifications and experience of personnel assigned, quality management plan, approach
or understanding of the work to be performed, and performance schedule to complete the
Work. The final evaluation of subcontractor GMPs will be done with the Owner. The
CMR will resolve any Subcontractor GMP withdrawal, protest or disqualification in
connection with the award at no increase in the GMT'.
(12) List of Subcontractors. Within 10 days after Subcontractor GMP opening, the CMR will
prepare a list of recommended Subcontractors for each category of Work, for the Owner's
review and approval. The list will detail:
(a) For each sub-agreement, the amount of the Subcontractor GMP and the
corresponding Subcontractor.
(b) The sum of Subcontractor GMP's received for all intended sub-agreements.
(c) Trade work and its cost that CMR intends to self-perform, if any.
(d) The Arizona Contractors License number of each Subcontractor shall be provided.
Upon request by the Owner, the CMR shall promptly provide an experience
statement or other requested information providing evidence of the Subcontractors'
qualifications for the Work and experience with similar projects.
(13) Subcontractor Summary Report. Upon Owner approval, the CMR shall submit a summary
report to the Owner of the selection process. The report will indicate the Subcontractors
contacted to determine interest, the Subcontractors solicited, the GMPs received, costs
negotiated, and recommended Subcontractors for each category of work.
(14) Approved Subcontractors. The approved Subcontractors will provide a schedule of values
with their GMP proposals, which will be used to create the overall project schedule of
values.
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(15) Owner Objections. If, after receipt of Sub-bids or after award of Subcontractors, the
Owner objects to any nominated Subcontractor or to any self-performed Work for good
reason, the CMR will nominate a substitute Subcontractor or Supplier from those who
submitted GMPs for the Work affected. Once such substitute Subcontractors and
Suppliers are consented to by the Owner, the CMR's proposed GMP for the Work or
portion thereof will be correspondingly adjusted to reflect any higher or lower costs from
any such substitution.
(16) Pre-Construction Conference. Promptly after issuance of the Notice to Proceed, the
Owner will conduct a pre-award conference with the CMR and other team members.
(iii) SUBCONTRACTUAL RELATIONS
(1) Subcontractors Subject to Contract. By an appropriate written Agreement, the CMR shall
require each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the CMR by the terms of the Contract, and to assume toward
the CMR all the obligations and responsibilities which the CMR assumes toward the
Owner and ALE, except with respect to the ADR provisions of this Contract. The CMR
shall require its Subcontractors to enter into similar agreements with their Subcontractors,
except with respect to the ADR provisions of this Contract. The CMR shall make
available to each proposed Subcontractor, prior to the execution of the subcontract, copies
of this Contract to which the Subcontractor will be bound, except with respect to the ADR
provisions of this Contract. Each Subcontractor shall similarly make copies of this
Contract available to their Subcontractors.
(2) Terms to be Included in Subcontracts. All Work performed for the CMR by a
Subcontractor shall be pursuant to a written agreement between the CMR and the
Subcontractor. The CMR will insure that each such subcontract contains provisions
requiring:
(3) That the Work be performed and guaranteed in accordance with the requirements of this
Contract.
(4) Submission to the CMR of Applications for Payment under each subcontract, and
reasonable time to enable the CMR to apply for payment in accordance with Article 4:
(a) That the Subcontractor pay sub-Subcontractors in accordance with A.R.S. § 34-221;
(b) That the Subcontractor purchase and maintain insurance and comply with all
insurance provisions as required by Article 7. If any subcontractor is unable to
comply with this paragraph the CMR shall request a waiver of this requirement in
writing, and shall provide justification for a waiver. If the Owner grants the request
it shall not constitute a waiver of the Owner's right to strict performance of this
contract, including the insurance requirements for all other subcontractors. No
waiver of a subcontractor's insurance requirements will be effective unless it is in
writing.
(c) That the Subcontractor consents to an assignment of the subcontract from the CMR
to the Owner in the event of termination of the CMR by the Owner.
(d) That the Subcontractor complies with all safety requirements.
(iv) CONTINGENT ASSIGNMENT OF SUBCONTRACT
(1) Each subcontract for a portion of the Work is hereby assigned by the CMR to the Owner
provided that:
(a) Assignment is effective only after termination of the Contract by the Owner for
cause pursuant to this Contract and only for those subcontracts which the Owner
accepts by notifying the Subcontractor in writing; and
(A) The CONTRACTOR shall work in coordination with the COUNTY to verify and ensure the eligibility
of potential SBE participants for the SBE program and counting the participation of those SBE
participants towards the assigned SBE reporting requirement for the construction project.
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EXHIBIT B
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
Contractors 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
iliqlqi@it
Contract between Maricopa County and ForeSite Design & Construction, Inc. Pg. # 20

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/Contractor 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 flu as the SBE firm.
SBE Finn Name SBE Firm Address Type of Work Performed $ Pd to SBE this App/Inv
$
$
$
$
$
$
$
$
$
$
o A mark in this box certifies that no SBE firms were utilized as the prime, sub-consultant or
subcontractor with respect to this pay application/invoice.
Date:
Signature
Phone No.:
Printed Name
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EXHIBIT C - 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
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Panel shall review 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
ALE, 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.
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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 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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