CMR PHASE II CONSTRUCTION SERVICES BOILER PATE 07-22-2013.DOCX

CONSTRUCTION MANAGEMENT AT RISK
MARICOPA COUNTY, ARIZONA
FOR PROFESSIONAL SERVICES
PHASE II
CONSTRUCTION SERVICES
FACILITIES MANAGEMENT DEPARTMENT
By and Through the OFFICE of PROCUREMENT SERVICES
Southeast Campus OET Network Facilities Upgrade CMAR
Contract # 12159-CMR
Serial # 12159-CMR
Project # MC-A-12-1296
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 1

CONSTRUCTION MANAGEMENT AT RISK
PROFESSIONAL SERVICES AGREEMENT
PHASE II
CONSTRUCTION SERVICES
BETWEEN MARICOPA COUNTY, ARIZONA, OWNER, AND
Caliente Construction, Inc., PROFESSIONALCONTRACTOR
FOR CONSTRUCTION SERVICES FOR
Southeast Campus OET Network Facilities Upgrade CMAR AT Maricopa County’s South
East Complex in Mesa, Arizona
Whereas, Maricopa County (hereinafter the “County” or “Owner”) desires to construct
Southeast Campus OET Network Facilities Upgrade CMAR at Maricopa County’s South
East Complex in Mesa, 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 contractor and construction management
services for the Southeast Campus OET Network Facilities Upgrade CMAR 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 13th day of September, 2013, by and between Maricopa County
(hereinafter called the “Owner”) and Caliente Construction, Inc., hereinafter called the
“Contractor” as Construction Manager at Risk for Phase II Construction Services.
Witnesseth, that the owner and the Contractor, 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 Southeast Campus OET Network Facilities Upgrade CMAR, and as
further outlined in Exhibit A, attached hereto and incorporated herein by reference as though
fully set forth herein.
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 2

Table of Contents
ARTICLE 1 - SCOPE OF WORK.....................................................................................6
ARTICLE 2 - DEFINITIONS .............................................................................................6
ARTICLE 3 - CONTRACTOR’S SERVICES AND RESPONSIBILITIES.......................10
3.1 INTENTION OF OWNER: .................................................................................10
3.2 THE CONTRACTOR:........................................................................................10
3.3 THE CONTRACTOR:........................................................................................11
3.4 SUPERINTENDENCE AND SUPERVISION:....................................................11
3.5 CONTRACTOR TO CHECK DRAWINGS, SPECIFICATIONS AND DATA:.....12
3.6 DIFFERING SITE CONDITIONS:......................................................................12
3.7 SUBMITTALS....................................................................................................13
3.8 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS:........................14
3.9 INSPECTION AND TESTING: ..........................................................................15
3.10 TAXES ...........................................................................................................16
ARTICLE 4 - PRIORITY OF PROVISIONS....................................................................16
ARTICLE 5 - DESIGN PROFESSIONAL’S AUTHORITY .............................................17
ARTICLE 6 - TIME FOR PERFORMANCE....................................................................18
6.1 CONTRACT TIME:............................................................................................18
6.2 SUBSTANTIAL COMPLETION DATE:..............................................................19
6.3 NOTIFICATION OF CHANGE OF CONTRACT TIME OR CONTRACT PRICE:
19
6.4 USE OF COMPLETED PORTIONS:.................................................................20
ARTICLE 7 - CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
........................................................................................................................................21
7.4 CHANGE ORDERS:..........................................................................................21
7.5 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS:.............................22
7.6 NO DAMAGES FOR DELAY:............................................................................23
7.7 EXCUSABLE DELAY: COMPENSABLE & NON-COMPENSABLE:.................23
ARTICLE 8 - PAYMENTS AND COST OF THE WORK................................................24
8.3.1 SUBCONTRACTOR COSTS:........................................................................25
8.3.2 CONTRACTOR’S LABOR COSTS:...............................................................26
8.3.3 MATERIALS AND EQUIPMENT:...................................................................26
8.3.4 MISCELLANEOUS COSTS: ..........................................................................26
8.4 EXCLUSIONS TO COST OF THE WORK:.......................................................28
8.5 PROGRESS PAYMENTS: ................................................................................29
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8.11 PROJECT CLOSEOUT:.................................................................................31
ARTICLE 9 - CONTINGENCY .......................................................................................31
ARTICLE 10 - DISCOUNTS, REBATES AND REFUNDS ............................................31
ARTICLE 11 - SUBCONTRACTS AND PURCHASE ORDERS ...................................31
ARTICLE 12 - INSURANCE...........................................................................................32
12.1 CERTIFICATES OF INSURANCE.................................................................35
12.2 CANCELLATION AND EXPIRATION NOTICE..............................................36
ARTICLE 13 - INDEMNIFICATION................................................................................36
ARTICLE 14 - PERFORMANCE AND PAYMENT BOND AND QUALIFICATIONS OF
SURETY .........................................................................................................................36
14.2 QUALIFICATIONS OF SURETY:...................................................................37
ARTICLE 15 - INDEPENDENT CONTRACTOR............................................................37
ARTICLE 16 - ACCESS TO AND RETENTION OF PROJECT RECORDS FOR THE
PURPOSE OF AUDIT AND/OR OTHER REVIEW ........................................................38
ARTICLE 17 - AS BUILT RECORDS ............................................................................39
ARTICLE 18 - CONTRACTOR’S RESPONSIBILITY FOR THE WORK.......................39
ARTICLE 19 - OCCUPATIONAL HEALTH AND SAFETY ...........................................40
ARTICLE 20 - PERMITS, LICENSES AND IMPACT FEES..........................................41
ARTICLE 21 - PERSONNEL..........................................................................................42
ARTICLE 22 - CONTRACTOR'S WARRANTIES..........................................................42
ARTICLE 23 - DEFECTIVE WORK ...............................................................................43
ARTICLE 24 - CONSTRUCTION SIGNAGE .................................................................44
ARTICLE 25 - OWNERSHIP OF CONTRACT DOCUMENTS ......................................45
ARTICLE 26 - CONTRACTOR'S REPRESENTATIVE .................................................45
ARTICLE 27 - OWNER RIGHT TO TERMINATE CONTRACT.....................................45
ARTICLE 28 - RESOLUTION OF DISPUTES ...............................................................46
ARTICLE 29 - NOTICES................................................................................................47
ARTICLE 30 - REQUIREMENTS FOR CONTRACTS WITH SBE GOALS ..................48
ARTICLE 31 - OTHER TERMS & CONDITIONS...........................................................48
31.1 THIRD PARTY BENEFICIARIES:..................................................................48
31.2 CONFLICTS:..................................................................................................48
31.5 CANCELLATION:...........................................................................................49
EXHIBIT A - CONSTRUCTION DOCUMENTS..............................................................54
EXHIBIT B - GMP PROPOSAL......................................................................................55
EXHIBIT C - INSURANCE CERTIFICATE(S) ................................................................56
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
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EXHIBIT D - PAYMENT BOND......................................................................................57
EXHIBIT E - PERFORMANCE BOND............................................................................58
EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM ....59
EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION.................................................61
EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN.............................................66
EXHIBIT I - LEGAL WORKER CERTIFICATION...........................................................67
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ARTICLE 1 - SCOPE OF WORK
The Contractor 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 Contractor’s Notice-to-Proceed by the Owner or Owner’s representative.
The Contractor shall furnish the following Services as specifically authorized by “Contractor’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 $1,493,543.75
b. General Conditions $ 572,725.00
c. Construction (Owner) Contingency $ 125,418.00
d. Contractor’s Fee $ 127,695.40
e. Contractor’s Overhead $ 127,695.40
f. Bonds $ 20,662.71
g. Builders Risk Insurance $ 20,662.71
h. General Liability Insurance $ 20,662.71
i. Taxes $ 124,724.35
TOTAL GMP (ALL INCLUSIVE) $2,633,790.63
1.2 CONTRACTOR 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 Southeast Campus OET Network Facilities Upgrade CMAR, prepared
by Pearson Engineering Associates, 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 scheduled attached hereto and
incorporated into Exhibit “C”.
2.3 BOARD OF SUPERVISORS: The Maricopa County Board of Supervisors, it’s
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
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Contract between Maricopa County and Caliente Construction, Inc. pg # 6

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.
2.6 CONDITIONAL NOTICE TO PROCEED: Not applicable herein.
2.7 CONSTRUCTION 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 and
should include overhead and profit. Overhead and profit included in contingency shall
be returned to the County if contingency is added but not utilized. Any use of
construction contingency funds must first be approved in writing by the Owner.
2.8 CONTRACT: This Construction Agreement.
2.9 CONTRACT DOCUMENTS: The Project Manual (including this Agreement and its
Exhibits, Attachments and Forms), drawings and specifications, the Request For
Qualifications and/or proposals, as applicable and CONTRACTOR’s response thereto
titled “Revised Guaranteed Maximum Price Proposal” dated Wednesday, July 31, 2013
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.
2.10 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.
2.11 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. Time shall
commence following receipt of all required permits.
2.12 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 Work. The Construction Manager at Risk for this project is Caliente
Construction, Inc. CONTRACTOR, for purposes of this agreement shall have the same
meaning as Construction Manager at Risk (CMR).
2.13 DAY: A Day is defined as a 24-hour period beginning at 12:01 a.m. and ending at
Midnight, Arizona standard time.
2.14 DESIGN PROFESSIONAL: The individual, partnership, corporation, association, joint
venture, or any combination thereof, of properly registered professional architects and/or
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engineers, which has entered into an agreement to provide professional services for this
project.
2.15 DIRECTOR OF FACILITIES MANAGEMENT DEPARTMENT: The Director of this
Department, of Maricopa County, Arizona, having the authority and responsibility for
management of the specific projects authorized under this Agreement.
2.16 FIELD ORDER or SUPPLEMENTAL INSTRUCTION: A written order which directs minor
changes or interruptions of the Contract Documents in accordance with Article 7, but
which does not involve a change in the Contract Price or Contract Time.
2.17 FINAL COMPLETION: The date certified by the DESIGN PROFESSIONAL and
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 CONTRACTOR have been received by
the PROJECT MANAGER; and to the best of DESIGN PROFESSIONAL’s and
PROJECT MANAGER’s information and belief has been fully completed in accordance
with the terms and conditions of the Contract Documents.
2.18 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
CMR or Subcontractors, fees for permits and licenses. Certain limitations and
exclusions are described in the General Conditions for the construction phase
2.19 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 to those entities on an Owner pre-approved, pre-qualified
list of subcontractors. 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.
2.20 INSPECTOR: An employee of the OWNER of Maricopa County, Arizona, assigned by
the Director to make observations of work performed by a Contractor.
2.21 LOOK AHEAD SCHEDULE: A schedule for a period of 2 weeks ahead of the current
date to be delivered during regular project meetings.
2.22 MATERIALS: Materials incorporated in this Project, or used or consumed in the
performance of the Work.
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2.23 NOTICE-TO-PROCEED: One or more written notices to CONTRACTOR authorizing the
commencement of Work.
2.24 THE OFFICE OF PROCUREMENT SERVICES: The Maricopa County Department with
authority for all procurement activity within Maricopa County.
2.25 PLANS AND/OR DRAWINGS: The official graphic representations of this construction
project which are a part of the Contract Documents.
2.26 PRELIMINARY WORK: not applicable.
2.27 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 and Actual Selected Qualified Bids 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.
2.28 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.
2.29 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.
2.30 PROJECT MANAGER: An employee 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.
2.31 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.
2.32 RESIDENT PROJECT REPRESENTATIVE: An authorized representative of the
DESIGN PROFESSIONAL on the Project.
2.33 SCHEDULE: The document setting for the timeline and milestones for this project (see
Exhibit C).
2.34 SCHEDULE OF VALUES: The schedule for payment of the allotted funds for the project
based upon the GMP and project schedule.
2.35 SUBCONTRACTOR: A person, firm or corporation having a direct contract with
CONTRACTOR 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.
2.36 SUBMITTAL SCHEDULE: The schedule for initiation and completion of submittals.
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2.37 SUBSTANTIAL COMPLETION: That date on which, as certified in writing by DESIGN
PROFESSIONAL, the Work, or a portion thereof designated by the 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).
2.38 SURETY: The surety company or individual which is bound by the performance bond
and payment bond with and for CONTRACTOR who is primarily liable, and which surety
company or individual is responsible for CONTRACTOR’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.
2.39 UNCONDITIONAL NOTICE TO PROCEED: The date for initiation of this project and
enclosed in the Notice to Proceed letter.
2.40 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 CONTRACTOR’s obligations. The work may constitute the whole or a part of the
project.
2.41 WRITTEN NOTICE: As set forth in Article 30 herein.
ARTICLE 3 - CONTRACTOR’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 CONTRACTOR. 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 permit issuance. OWNER shall have no duties other than those duties and
obligations expressly set forth within the Contract Documents.
3.2 THE CONTRACTOR:
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 CONTRACTOR’s expense.
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3.3 THE CONTRACTOR:
Shall plan, record, and update, at least monthly, 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 conditions 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 2.21.
3.4 SUPERINTENDENCE AND SUPERVISION:
3.4.1 The orders of OWNER are to be given through the Owner or Owner’s Designee,
which instructions are to be strictly and promptly followed in every case.
CONTRACTOR 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
CONTRACTOR and ceases to be in its employ. The SUPERINTENDENT shall
represent CONTRACTOR and all direction given to the SUPERINTENDENT
shall be as binding as if given to CONTRACTOR and will be confirmed in writing
by DESIGN PROFESSIONAL. CONTRACTOR shall give efficient supervision to
the work, using its best skill and attention.
3.4.2 Daily, CONTRACTOR’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,
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 in ink. 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.
3.4.3 The CONTRACTOR, DESIGN PROFESSIONAL and PROJECT MANAGER
shall meet at least every two (2) weeks 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 two weeks. The DESIGN PROFESSIONAL shall publish, keep,
and distribute minutes and any comments thereto of each such meeting.
3.4.4 CONTRACTOR 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.
CONTRACTOR shall be solely responsible for the means, methods, techniques,
sequences and procedures of construction.
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3.5 CONTRACTOR TO CHECK DRAWINGS, SPECIFICATIONS AND DATA:
CONTRACTOR 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. CONTRACTOR will not be allowed to take advantage of any error,
omission or discrepancy, (as full instructions will be furnished by DESIGN
PROFESSIONAL.) CONTRACTOR shall not be liable for damages resulting from
errors, omissions or discrepancies in the Contract Documents unless
CONTRACTOR recognized or should have recognized such error, omission or
discrepancy and failed to report it to DESIGN PROFESSIONAL.
3.6 DIFFERING SITE CONDITIONS:
In the event that during the course of the work, CONTRACTOR 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 and 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, CONTRACTOR, 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 CONTRACTOR’s written notice, investigate the site conditions identified by
the CONTRACTOR. If, in the sole opinion of DESIGN PROFESSIONAL, the
conditions do materially so differ and cause an increase or decrease in
CONTRACTOR’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 and CONTRACTOR cannot agree on an adjustment in
the contract price or Contract Time, the adjustment shall be determined by the
Owner in accordance with Article 29.
No request by CONTRACTOR for an equitable adjustment or change to the contract
price or Contract Time under this provision shall be allowed unless the
CONTRACTOR has given written notice within detailing the facts for such request in
a reasonable time (not exceeding thirty (30) days from when the CONTRACTOR
knew or should have known of such conditions) in accordance with the provisions of
this Section.
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.
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3.7 SUBMITTALS
3.7.1 CONTRACTOR shall submit submittals (including but not limited to shop
drawings, product samples, product data, warranties, closeout submittals, reports
and photographs) as required by the specifications. The submittals serve as the
CONTRACTOR’s coordination documents and demonstrate the suitability,
efficiency, technique of manufacture, installation requirements, detailing and
coordination of specified products, components, assemblies and systems, and
evidence compliance or noncompliance with the Contract Documents. The
CONTRACTOR’s submittals are not part of the Contract Documents but are
documents prepared and utilized by the CONTRACTOR to coordinate the work.
3.7.2 Within ten (10) calendar days after the date of the first or Conditional Notice to
Proceed, CONTRACTOR shall submit to DESIGN PROFESSIONAL a list of all
submittals required. Within twenty (20) calendar days of the date of the Notice to
Proceed, CONTRACTOR shall submit to DESIGN PROFESSIONAL (with a copy
to the PROJECT MANAGER) a comprehensive list of items for which submittals
are to be submitted and shall identify the critical items. Approval of this list (the
Submittal Schedule) by DESIGN PROFESSIONAL shall in no way relieve
CONTRACTOR from submitting complete submittals as required by the Contract
Documents and providing services, products, materials, equipment, systems and
assemblies, fully in accordance with the Contract Documents.
3.7.3 After the approval of the submittal schedule, CONTRACTOR shall promptly
request submittals from the various manufacturers, fabricators, and suppliers.
3.7.4 CONTRACTOR shall thoroughly review and check the submittals and 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 CONTRACTOR’s review of that submittal
in the form required by the Contract Documents.
3.7.5 The CONTRACTOR shall maintain a Submittal Log which shall include, at a
minimum, the date of each submittal, the date of any resubmittal, the date of any
approval or rejection, and the reason for any approval or rejection.
3.7.6 If the submittals indicate deviations or departures from the requirements of the
Contract Documents, CONTRACTOR shall make specific mention thereof in its
letter of transmittal. Failure to point out such deviations or departures shall not
relieve CONTRACTOR from its responsibility to comply with the Contract
Documents.
3.7.7 The DESIGN PROFESSIONAL shall have no duty to review partial or incomplete
submittals except as may be provided otherwise within the Contract Documents.
3.7.8 Provided such Submittals conform to the approved Submittal schedule,
Contractor shall allow the DESIGN PROFESSIONAL up to ten (10) 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
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PROFESSIONAL’s approval of Submittals will be general and shall not relieve
CONTRACTOR 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 CONTRACTOR from
responsibility for errors or omissions on the Submittals or for compliance with the
requirements of the Contract Documents.
3.7.9 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 CONTRACTOR’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.
3.7.10 Additional information provided by the CONTRACTOR on any Submittal shall be
typewritten or lettered in ink.
3.7.11 CONTRACTOR 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.
3.7.12 CONTRACTOR shall keep one set of DESIGN PROFESSIONAL approved
Submittals at the project site at all times.
3.8 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS:
3.8.1 The entire responsibility for establishing and maintaining line and grade in the
field lies with CONTRACTOR. CONTRACTOR 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 on mylar 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 prices bid for the
appropriate items.
3.8.2 CONTRACTOR 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 CONTRACTOR 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
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Documents, including Submittals and other Project Record Documents required
elsewhere in the Project Manual and specifications shall be delivered to the
PROJECT MANAGER.
3.8.3 Prior to, and as a condition precedent to Final Payment, CONTRACTOR shall
submit to OWNER, CONTRACTOR’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.
3.8.4 The CONTRACTOR shall deliver to DESIGN PROFESSIONAL for delivery to the
OWNER all equipment data, along with its recommended spare parts list,
maintenance manuals, manufacturer’s warranties and operations 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.
3.9 INSPECTION AND TESTING:
3.9.1 DESIGN PROFESSIONAL and PROJECT MANAGER shall at all times have
access to the work, and CONTRACTOR shall provide for use by the DESIGN
PROFESSIONAL the facilities described in the specifications, drawings, and
solicitation for such access and for inspecting, measuring and testing.
3.9.1.1 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, CONTRACTOR, shall update
and provide weekly for the Owner and DESIGN PROFESSIONAL a two
(2) 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.
3.9.1.2 If any of the Work which requires approval is covered up without approval
or consent of Authority Having Jurisdiction, it must, if required by
Authority Having Jurisdiction, be uncovered at CONTRACTOR’s cost for
examination and properly restored to the satisfaction of the DESIGN
PROFESSIONAL.
3.9.1.3 Should reexamination of any of the Work be ordered by DESIGN
PROFESSIONAL for any reason other than that specified in 3.9.1.2, the
Work must be uncovered by the CONTRACTOR. 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,
CONTRACTOR shall pay such cost to be deducted from the
CONTRACTOR’s fee at no additional cost to OWNER and no extension
of time will be granted.
3.9.2 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
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Documents nor to delay the contract by failure to inspect the materials and work
with reasonable promptness without the written permissions or instructions of
DESIGN PROFESSIONAL and PROJECT MANAGER.
3.9.3 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 CONTRACTOR to any
inspector, directly or indirectly, is strictly prohibited, and any such act on the part
of the CONTRACTOR will constitute a breach of this contract.
3.10 TAXES
3.10.1 CONTRACTOR shall pay all applicable sales, consumer, use and other taxes
required by law. CONTRACTOR 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 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
following order:
4.2.1 Permits from other agencies required by law.
4.2.2 Change Orders, Supplemental Agreements and approved revisions to Contract
Specifications and Contract Drawings
4.2.3 Contract Specifications
4.2.4 Contract Drawings – Material/Equipment Schedules
4.2.5 Contract Drawings – Detailed Plans
4.2.6 Contract Drawings – General Plans
4.2.7 Standard Plans, i.e. standard structural details, devices or instructions referred to
on the Plans or Specifications by title or number.
4.2.8 Reference Specifications, i.e. Building Codes, Test References, etc.
4.3 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 CONTRACTOR shall
control.
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4.4 The organization of the Specifications into divisions and sections and the arrangement of
drawings shall not control CONTRACTOR 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 is for the convenience of the
CONTRACTOR and is not intended to relieve the CONTRACTOR 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 will promptly notify the Owner and contractor in writing and will direct
that all reasonable steps be taken to correct such fault, defect or nonconformance. The
DESIGN PROFESSIONAL shall have the authority to reject work that does not in its
opinion, or in the opinion of the Owner, conform to the Contract Documents.
5.3 DESIGN PROFESSIONAL shall monitor the overall quality, progress and Cost of the
Work.
5.4 DESIGN PROFESSIONAL shall not have control over construction means, method,
techniques, sequences and procedures employed by CONTRACTOR 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
CONTRACTOR.
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 CONTRACTOR,
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, whether or not 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 CONTRACTOR, prior written approval from the
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 CONTRACTOR.
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ARTICLE 6 - TIME FOR PERFORMANCE
6.1 CONTRACT TIME:
6.1.1 CONTRACTOR shall be instructed to commence the work by written Second or
Unconditional Notice-to-Proceed issued by the Owner. The Conditional Notice to
Proceed will not be issued until CONTRACTOR’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
Conditional 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 second
or Unconditional Notice to Proceed for all other Work. The Work to be performed
pursuant to the Unconditional Notice to Proceed shall commence within ten (10)
calendar days of the Project Initiation Date specified in the second Notice to
Proceed.
6.1.2 Time is of the essence throughout this contract. The project shall be
substantially completed within one hundred sixty eight (168) calendar days
from the date of the Unconditional Notice to Proceed. The total project shall be
completed and ready for final payment in accordance with Article 8 within thirty
(30) calendar days from the date certified by DESIGN PROFESSIONAL as the
date of Substantial Completion.
6.1.3 Upon failure of CONTRACTOR to substantially complete the project within the
specified period of time, plus approved time extensions, CONTRACTOR shall
pay to OWNER the sum of five hundred Dollars ($500.00) for each day after the
time specified in Article 6.1.2, plus any approved extensions for Substantial
Completion. After Substantial Completion should CONTRACTOR 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
payment, CONTRACTOR shall pay to OWNER the sum of five hundred Dollars
($500.00) for each 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.
Liquidated damages are hereby fixed and agreed upon between the parties,
recognizing the impossibility 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 CONTRACTOR to
complete the Contract on time. The above-stated liquidated damages shall apply
separately to each phase of the project for which a time for completion is given.
6.1.4 PROJECT MANAGER is authorized to deduct liquidated damages from monies
due to CONTRACTOR for the work under this contract or as much thereof as
PROJECT MANAGER may, at its option, deem just and reasonable.
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6.1.5 CONTRACTOR 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
CONTRACTOR, whichever date is later. Such costs shall be deducted from the
monies due CONTRACTOR for performance of work under this contract by
means of unilateral credit change orders issued periodically to OWNER as costs
are incurred by DESIGN PROFESSIONAL and agreed to by OWNER.
6.1.6 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:
When CONTRACTOR considers that the Work, or portion thereof designated by
PROJECT MANAGER pursuant to Article 6.4 hereof, has reached Substantial
Completion, CONTRACTOR shall so notify PROJECT MANAGER and DESIGN
PROFESSIONAL in writing. DESIGN PROFESSIONAL and PROJECT MANAGER
shall then promptly inspect the work.
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 Certificate of Substantial Completion by utilizing form No. AIA G704
which shall establish the Date of Substantial Completion; shall state the
responsibilities of OWNER and CONTRACTOR 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 CONTRACTOR to complete all of the
work in accordance with the Contract Documents. The Certificate of Substantial
Completion shall be submitted to the PROJECT MANAGER, after execution by
CONTRACTOR, 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 CONTRACTOR to the PROJECT MANAGER with
a copy to 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
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by CONTRACTOR’s written statement that 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 be determined by Owner in accordance with Article
29 hereof, if Owner and CONTRACTOR 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.
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 CONTRACTOR if a
claim is made therefore as provided in Article 6.3.1 and 7.7.1. 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.
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, CONTRACTOR shall be entitled to reasonable
extra compensation, or reasonable extension of time or both, by appropriate
adjustment pursuant to Article 7.4 or 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 CONTRACTOR in writing at least fifteen
(15) calendar days prior to OWNER’s intended occupancy of a
designated area.
6.4.2.2 CONTRACTOR shall complete to the point of Substantial
Completion the designated area. Additionally, CONTRACTOR shall
submit a request for an inspection and issuance of a Certificate of
Substantial Completion (AIA - Form G704 or equivalent) for the
designated area. The CONTRACTORS open punch list 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 or 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 CONTRACTOR and to which the insurance company or
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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 CONTRACTOR and of
the insurance company or companies to such occupancy or use shall
not be unreasonably withheld.
ARTICLE 7 - CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
7.1 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.
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
7.2 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 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 The PROJECT MANAGER through the DESIGN PROFESSIONAL may direct the
CONTRACTOR to expedite the work by whatever means the CONTRACTOR 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 CONTRACTOR, then the additional
costs incurred shall be the subject of an appropriate adjustment issued pursuant to
Article 7.4 or Article 7.6, below as applicable.
7.4 CHANGE ORDERS:
7.4.1 Changes in the quantity or character of the work within the scope of the project
which are not properly executed, or the subject of Field Orders or Supplemental
Instructions, 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 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 CONTRACTOR’s fee on such changes which exceeds GMP shall be
determined as follows:
(a) A mutually acceptable fixed fee; or, if none can be agreed upon,
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(b) A fee based upon a percentage of the net change to the Cost of the Work
resulting from the Change Order, in accordance with Article 8.3, hereof,
not to exceed five percent (5%).
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 CONTRACTOR by common ownership or
management, or is effectively controlled by the CONTRACTOR, no fee will be
allowed on the subcontractor costs. In the event there is more than one level of
subcontractors such as second and third tier subcontractors, the sum of all of the
subcontractors’ percentage markups for overhead and profit shall not in the
aggregate exceed twenty percent (20%).
7.4.3 CONTRACTOR 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 CONTRACTOR
commences work pertaining to a Change Order prior to receiving written
authorization through the Project Manager it does so at its own risk and assume
all associated responsibility and costs. Upon receipt of a Change Order,
CONTRACTOR shall promptly proceed with the work set forth within the
document.
7.4.4 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 the neutral Arbitrator as set forth in Exhibit G, incorporated herein.
During the pendency of the dispute, and upon receipt of a Change Order,
CONTRACTOR shall promptly proceed with the change in the work involved and
advise the DESIGN PROFESSIONAL and PROJECT MANAGER in writing
within seven (7) calendar days of CONTRACTOR’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.
7.4.5 On approval of any Contract change increasing the contract price,
CONTRACTOR shall ensure that the Performance Bond and Payment Bond are
increased so that each reflects the total contract price as increased.
7.4.6 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.
7.4.7 All approved Change Orders will be deemed final and inclusive of all claims
related thereto.
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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. CONTRACTOR 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,
however, that this provision shall not preclude recovery of damages by CONTRACTOR
for hindrance or delays due solely to fraud, bad faith or active interference on the part of
OWNER or its agents. Otherwise, CONTRACTOR 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 CONTRACTOR or its
subcontractors, materials persons, suppliers, or vendors is Excusable Delay.
CONTRACTOR is entitled to a time extension of the Contract Time for each day
the work is delayed due to excusable delay. CONTRACTOR shall document its
claim for any time extensions as provided in Article 6.3 hereof.
Failure of CONTRACTOR to 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.
(a) Compensable Excusable Delay. Excusable Delay is only compensable
when: (i) the delay extends the Contract Time, and (ii) is due solely to
fraud, bad faith or active interference on the part of OWNER or its
DESIGN PROFESSIONAL. In no event shall CONTRACTOR be
compensated for interim or non-critical delays, which do not extend the
Contract Time.
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CONTRACTOR shall be entitled to direct and indirect costs for
Compensable Excusable Delay. Direct costs recoverable by
CONTRACTOR shall be limited to the actual additional costs allowed
pursuant to Article 8.3 hereof. OWNER and CONTRACTOR recognize
and agree that the amount of CONTRACTOR’s precise actual indirect
costs for delay in the performance and completion of the work is
impossible to determine as one of the date of execution of the Contract
Documents, and that proof of the precise amount will be difficult.
Therefore, indirect costs recoverable by the CONTRACTOR shall be
liquidated on a daily basis for each day the Contract Time is delayed due
to a Compensable Excusable Delay. These liquidated indirect costs shall
be paid to compensate CONTRACTOR or for all indirect costs caused by
a Compensable Excusable Delay and shall include, but not be limited to,
all profit on indirect costs, home office overhead, acceleration, loss of
earnings, loss of productivity, loss of bonding OWNER, loss of opportunity
and all other indirect costs recoverable shall be fifty Dollars ($50.00) per
day for each day the Contract is delayed due to a Compensable
Excusable Delay.
(b) Non-Compensable Excusable Delay. When Excusable Delay is (i)
caused by circumstances beyond the control of CONTRACTOR, 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 CONTRACTOR or its subcontractors,
materials persons, suppliers or vendors and by the OWNER or DESIGN
PROFESSIONAL, then CONTRACTOR 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 CONTRACTOR hereunder, the OWNER shall pay to the
CONTRACTOR a sum of money not to exceed the contract price which is defined to be
the total of: (i) the CONTRACTOR’s Direct Construction Cost, (ii) so much of the
CONTRACTOR’s General Conditions as may have been expended, (iii) so much of the
approved amount of the Construction Contingency as may have been expended, and
(iv) the CONTRACTORS’s construction management 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 CONTRACTOR 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 CONTRACTOR’s 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 CONTRACTOR’s 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 8.11. The Owner reserves the right to issue a deductive
Change Order at any point during the project, reducing the Construction (Owner)
Contingency. The Owner also reserves the right to issue a deductive Change Order at
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any point during the project, as agreed to by the CONTRACTOR, deducting calculated
savings from the Guaranteed Maximum Price. In the event that the CONTRACTOR’s
total approved expenditures for the project shall exceed the Guaranteed Maximum Price,
the CONTRACTOR 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 CONTRACTOR shall
have no claim against the OWNER on account thereof.
8.3 The term ‘Cost of the Work” shall mean the sum of all direct costs necessarily and
reasonably incurred and paid by the CONTRACTOR 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:
(1) The CONTRACTOR’s Direct Construction Cost, as generally described in
Exhibit A, attached hereto, to be performed by the General Contractor or
performed by subcontractors 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.
(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, CONTRACTOR 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 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 CONTRACTOR, if applicable, shall be itemized
separately.
(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 CONTRACTOR’s Cost of the
Work, subject to the limitation on subcontractor’s fees set forth in Article
7.4.
(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.
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8.3.2 CONTRACTOR’S LABOR COSTS:
Costs for employees in the direct employ of CONTRACTOR 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 by
OWNER and CONTRACTOR. 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
receipt of written request by the CONTRACTOR.
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 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
CONTRACTOR 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:
(1) The cost, as documented by the CONTRACTOR’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.
(2) Premiums on bonds and insurance, including subcontractor bonds, if any
that the CONTRACTOR 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.
Self-insurance by the CONTRACTOR or insurance through any affiliates
of CONTRACTOR 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.
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(3) 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.
(4) 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 CONTRACTOR 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
CONTRACTOR shall not be required to remove debris created by the
OWNER’s separate contractors except pursuant to Change Order
procedures set forth herein.
(5) The cost and expenses, actually sustained by the CONTRACTOR in
connection with the work, of protecting and repairing adjoining property, if
required, except to the extent that any such cost or expense is:
(a) the responsibility of the CONTRACTOR under Article 13,
reimbursable by insurance or otherwise;
(b) Due to the failure of the CONTRACTOR to comply with the
requirements of the Contract Documents with respect to
insurance; or
(c) Due to the failure of any officer of the CONTRACTOR 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 of a general contractor 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 CONTRACTOR’s
costs.
(6) 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.
(7) 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) The proportion of necessary transportation, travel and subsistence
expenses of CONTRACTOR’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.
(9) 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
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performance of the work, and cost less market value of such items used
but not consumed which remain the property of CONTRACTOR.
(10) Deposits lost for causes other than CONTRACTOR’s negligence, royalty
payments and fees for permits and licenses.
(11) Cost of premiums for additional bonds and insurance required because of
changes in the Work.
(12) Cost of special DESIGN PROFESSIONALs, including, but not limited to,
engineers, architects, testing laboratories, surveyors employed for
services specifically related to the Work.
(13) Any other expenses or changes incurred, with the prior written approval of
the DESIGN PROFESSIONAL, 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
CONTRACTOR and its operation which are not in direct support of the project. The
CONTRACTOR agrees to furnish and perform, as a part of the Contractor’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 CONTRACTOR’s officers, executives,
principals (of partnership and sole proprietorship), general managers, estimators,
purchasing and contracting agents, clerks and other personnel employed by
CONTRACTOR 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 CONTRACTOR’s fee.
8.4.2 Other than those expenses authorized on Exhibit B expenses of
CONTRACTOR’s principal and branch offices.
8.4.3 Any part of CONTRACTOR’s capital expenses, including interest on
CONTRACTOR’s capital employed for the Work and changes against
CONTRACTOR 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.
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.
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8.4.8 Any outside legal or OWNER accounting fees incurred without prior written
approval from the OWNER Attorney, which approval is at the sole discretion of
the OWNER Attorney.
8.5 PROGRESS PAYMENTS:
8.5.1 CONTRACTOR 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. CONTRACTOR’s application shall show a complete breakdown
of the Project components, the percentages completed and the amount due in
proportion to the percentages of the Work completed or, as to General
Conditions, at cost. Each application shall be accompanied by such supporting
evidence as may be reasonably required by OWNER and/or DESIGN
PROFESSIONAL, however each application shall, at a minimum be
accompanied by statements/invoices from each subcontractor and/or materials
provider for the application period along with conditional lien waivers, and in
addition thereto, unconditional lien waivers/releases from all subcontractors and
materials providers from the preceding application for payment. CONTRACTOR
shall submit with each Application for Payment, an updated progress schedule
acceptable to DESIGN PROFESSIONAL with either release of liens relative to
the Work which is the subject of the Application or consent of the surety as to
such payment.
Each Application for Payment shall be accompanied by a completed SBE
Program Participation Reporting form in the form attached hereto as Exhibit G.
OWNER shall make payment to CONTRACTOR, after approval by DESIGN
PROFESSIONAL as required by A.R.S. § 34-609.
8.5.2 Ten percent (10%) of all monies earned by CONTRACTOR shall be retained by
OWNER until Final Completion and acceptance by OWNER in accordance with
Article 8.5.4 hereof, except for the following items: General Conditions and self-
performed Work performed on a cost reimbursement basis, if any.
8.5.3 After fifty percent (50%) of the Work has been completed, the PROJECT
MANAGER may reduce the retainage 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 PROJECT MANAGER, shall be
recommended by DESIGN PROFESSIONAL, and CONTRACTOR 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. The CMR shall request and obtain securities
forms through Owner. The CMR must identify either securities option or
retention option prior to first Application for Payment.
8.5.5 Owner may withhold, in whole or in part, an progress payment to CONTRACTOR
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
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findings by DESIGN PROFESSIONAL or 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 DESIGN
PROFESSIONAL, 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
CONTRACTOR pursuant to A.R.S. § 34-609 no additional payments will be due
to CONTRACTOR hereunder unless and until CONTRACTOR, 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 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.
8.5.6 The Schedule of Values, prepared in accordance with Exhibit B, shall be listed
and supported by a Schedule of Values reflecting the CSI Divisions including the
cost of materials, the cost of labor, the cost of equipment and the cost of
subcontractor Work and shall include all supporting documentation including, but
not limited to, each subcontractor invoice, the SBE reporting form, and
conditional releases from each submitted subcontractor. Each monthly
Application for Payment shall be for a sum equal to (i) that portion of the
CONTRACTOR’s Direct Construction Cost equal to the percentage of the Work
completed; plus (ii) an appropriate amount of the CONTRACTOR ‘s Fee 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
CONTRACTOR’s Fee payments shall not exceed Ninety (90%) percent of the
Contractor’s Fee as stated in Article 8.3.
The CONTRACTOR’s Direct Construction Cost shall be segregated and detailed
in a manner satisfactory to the DESIGN PROFESSIONAL and the 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 PROJECT MANAGER shall review each such
Request for Payment and may make such exceptions, as the DESIGN PROFESSIONAL
and the PROJECT MANAGER reasonably deem necessary or appropriate under the
state of circumstances then existing. In no event shall the OWNER be required to make
payment for items of the CONTRACTOR’s Cost to which the DESIGN PROFESSIONAL
or the CONTRACTOR PROJECT MANAGER reasonably take exception.
8.7 CONTRACTOR shall remain solely liable for subcontractor’s Work and for any unpaid
laborers, material suppliers or subcontractors or subcontractor 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.
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8.8 Within thirty (30) days after Final Completion of the Work and acceptance thereof by the
OWNER, the CONTRACTOR shall submit a Final Request for Payment (Final Request)
which shall set forth all amounts due and remaining unpaid to the CONTRACTOR
(including the unpaid portion of the Contractor’s Fee).
8.9 Except for the Contractor’s Fee, the CONTRACTOR 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 CONTRACTOR in performance of the
Work.
8.10 The CONTRACTOR 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 Direct
Construction Cost and/or General Conditions shall be returned to the OWNER through a
final deductive Change Order, reducing the Guaranteed Maximum Price. Final Payment
shall only be made after full execution of the final deductive Change Order.
ARTICLE 9 - CONTINGENCY
9.0 THE CONSTRUCTION CONTINGENCY:
The GMP may include a construction contingency. Costs may be applied against the
contingency if first approved by the OWNER in writing. The CONTRACTOR shall
furnish all documentation evidencing the expenditures charged to this Contingency prior
to release of funds by the OWNER. At Final Completion of the Project, any remaining
monies in the Construction Contingency shall vest in the OWNER. The Guaranteed
Maximum Price shall be reduced in the amount of the Construction Contingency
remaining monies, if any. Any use of construction contingency funds must first be
approved in writing by the Owner.
ARTICLE 10 - DISCOUNTS, REBATES AND REFUNDS
10.1 All cash discounts obtained on payments made by the CONTRACTOR shall accrue to
the OWNER irrespective of whether or not the CONTRACTOR 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, except for work to be specifically performed by the General Contractor 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 Contractor’s Direct
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Construction Cost required under this Contract. All subcontracts and purchase orders
shall be awarded according to the following procedure:
The CONTRACTOR 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 CONTRACTOR’s schedule of minimum requirements. The
CONTRACTOR shall obtain bids from a minimum of three (3) such subcontractors for
each subcontract, when available. If the CONTRACTOR is unable to do so for any
subcontract, it must request and obtain the approval of the Chief Procurement Officer.
After receiving such bids, the CONTRACTOR 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 CONTRACTOR
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 CONTRACTOR’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 CONTRACTOR to the same extent that
the CONTRACTOR is bound to the Owner; that the CONTRACTOR and OWNER shall
be named as additional insureds on subcontractor’s comprehensive general liability
insurance policy and provide an insurance certificate evidencing the same; for
termination of the subcontract by the CONTRACTOR 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
contractor designated by the OWNER, without additional or increased cost, provided the
subcontractor is paid in accordance with its subcontract. The CONTRACTOR shall sign
and 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 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
CONTRACTOR is incorporated herein by this reference as Exhibit H.
ARTICLE 12 - INSURANCE
12.1 The CONTRACTOR, at the CONTRACTOR’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 A7.
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.
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12.1.2 CONTRACTOR’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. CONTRACTOR shall be solely responsible for the deductible and/or
self-insured retention and COUNTY, at its option, may require the
CONTRACTOR 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. COUNTY shall not be obligated, however, to review such
policies and/or endorsements or to advise the CONTRACTOR of any
deficiencies in such policies and endorsements, and such receipt shall not relieve
the CONTRACTOR from, or be deemed a waiver of Maricopa COUNTY’S right
to insist on strict fulfillment of the CONTRACTOR’S obligations under this
Contract.
12.1.6 The insurance policies required by this Contract, except Workers’ Compensation,
shall name COUNTY, its agents, representatives, officers, directors, officials, and
employees as Additional Insured’s.
12.1.7 The policies required hereunder, except Workers’ Compensation, shall contain a
waiver of transfer of rights of recovery (subrogation) against COUNTY, Maricopa
County, City its agents, representatives, officers, directors, officials, and
employees for any claims arising out of the CONTRACTOR’S work or service.
12.1.8 CONTRACTOR is required to procure and maintain the following coverages:
12.1.8.1 Commercial General Liability. Commercial General Liability
insurance and, when necessary, Commercial Umbrella insurance with
a limit of not less than $2,000,000 for each occurrence, $2,000,000
Personal/Advertising Injury, $4,000,000 Products/Completed
Operations Aggregate, and $4,000,000 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
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combined single limit for bodily injury and property damage of not less
than $2,000,000 each occurrence with respect to any of the
CONTRACTOR’S owned, hired, and non-owned vehicles assigned to
or used in performance of the CONTRACTOR’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 CONTRACTOR’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.
CONTRACTOR 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 CONTRACTOR pursuant to this agreement.
12.1.8.4 Builder’s Risk (Property) Insurance. CONTRACTOR 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, CONTRACTOR,
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, CONTRACTOR agrees to assume full
responsibility for loss or damage to the work being performed and to
the structures under construction. For renovation construction
projects, CONTRACTOR 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.
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.
Builders’ Risk insurance must provide coverage from the time any
covered property comes under CONTRACTOR’S control and/or
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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.
If the Contract requires testing of equipment or other similar
operations, at the option of COUNTY, CONTRACTOR will be
responsible for providing property insurance for these exposures
under a Boiler Machinery insurance policy or the Builders’ Risk
Insurance policy.
12.1.8.5 COVERAGES
Commercial General
Liability $2,000,000 Each Occurrence
$2,000,000 Personal & Advertising
Injury
$4,000,000 General Aggregate
$4,000,000 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
12.1 CERTIFICATES OF INSURANCE
12.1.9 Prior to commencing work or services under this Contract, the CONTRACTOR
shall furnish County with Certificates of Insurance in a form acceptable to
COUNTY, or formal endorsements as required by the Contract in the form
provided by the County, issued by the CONTRACTOR’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.
12.1.10 In the event any insurance policy(ies) required by this contract is(are)
written on a “claims made” basis, coverage shall extend for two (2) years past
completion and acceptance of the CONTRACTOR’S work or services and as
evidenced by annual Certificates of Insurance.
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12.1.11 If a policy does expire during the life of the Contract, a renewal certificate
must be sent to COUNTY fifteen (15) days prior to the expiration date.
12.2 CANCELLATION AND EXPIRATION NOTICE
12.2.1 Insurance required herein shall not expire, be canceled, or materially
changed without thirty (30) days prior written notice to COUNTY.
ARTICLE 13 - INDEMNIFICATION
13.1 To the fullest extent permitted by law, the CONTRACTOR shall defend, indemnify, and
hold harmless, COUNTY, and 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 acts, errors, omissions or mistakes relating to the performance of this Contract.
The CONTRACTOR’S duty to defend, indemnify, and hold harmless COUNTY, 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 any negligent acts, errors, omissions, or
mistakes in the performance of this Contract including any person for whose negligent
acts, errors, omissions, or mistakes the CONTRACTOR may be legally liable.
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.
The scope of this indemnification does not extend to the sole negligence of County.
ARTICLE 14 - PERFORMANCE AND PAYMENT BOND AND QUALIFICATIONS OF SURETY
14.1 Within ten (10) calendar days of being notified of the award, CONTRACTOR 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 deemed by law to be on the form required and set forth in A.R.S. § 34-222(I).
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 if 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 final 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 CONTRACTOR
will, upon notification by OWNER, correct any defective or faulty Work or
materials which appear within one year after final completion of the Contract.
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14.1.3 Alternate form of Security: In lieu of a Performance Bond and a Payment Bond,
CONTRACTOR may furnish 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. The CMR shall
request and obtain securities forms through Owner. The CMR must identify
either the securities in lieu of retention option or retention option prior to first
Application for Payment.
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 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:
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
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ARTICLE 15 - INDEPENDENT CONTRACTOR
15.1 In performing, the CONTRACTOR shall be deemed an independent contractor and not
an agent or employee of the OWNER. The CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR which relate to the Project
and to any claim for additional compensation made by CONTRACTOR. CONTRACTOR
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, CONTRACTOR shall
provide OWNER access to its books and records at CONTRACTOR’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. § 41-1347.B.) is determined by OWNER to be
applicable to CONTRACTOR’s records, CONTRACTOR 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 CONTRACTOR’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 CONTRACTOR 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 OWNER to review, inspect and audit such records.
CONTRACTOR shall include such requirements in all written subcontracts and
purchase orders issued.
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16.3 The OWNER reserves the right to audit the CONTRACTOR 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 CONTRACTOR
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 CONTRACTOR.
Any adjustments and/or records shall be made within a reasonable amount of time (not
to exceed thirty (30) days) from presentation of the OWNER findings to the
CONTRACTOR.
ARTICLE 17 - AS BUILT RECORDS
17.1 As required by the technical specifications (or, in absence of technical specification
requirements concurrent with the Final Request for Payment), the CONTRACTOR shall
furnish final surveys in electronic media utilizing CAD Standards, all external references
bound, as designated by the PROJECT MANAGER, in addition to three (3) sets of hard
copy, showing the exact locations of all structures and underground site utilities installed
by CONTRACTOR, 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.
ARTICLE 18 - CONTRACTOR’S RESPONSIBILITY FOR THE WORK
18.1 CONTRACTOR 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 CONTRACTOR 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; CONTRACTOR shall
replace it without cost to OWNER. CONTRACTOR 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.
CONTRACTOR shall afford other persons or contractors reasonable opportunity for the
introduction and storage of materials and the execution of Work under such separate
contracts. CONTRACTOR 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 CONTRACTOR’s Work depends on proper execution or results upon the
Work of any other persons, CONTRACTOR shall inspect and promptly report to
DESIGN PROFESSIONAL any defects in such Work that render it unsuitable for such
proper execution and results. CONTRACTOR’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
CONTRACTOR’s Work, except as to defects which may develop in other
CONTRACTOR’S Work after the execution of CONTRACTOR’s Work.
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18.5 CONTRACTOR 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
CONTRACTOR did not take reasonable steps, the CONTRACTOR 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, CONTRACTOR shall inspect the
Work already in place and shall at once report to DESIGN PROFESSIONAL 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 reasonable precautions for safety of, and
shall provide reasonable 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 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, reasonable 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
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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.
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 accidents and
administration of the CMR’s written Safety Program. The Safety Representative shall be
onsite full-time and shall have a minimum of a 10-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.
19.7 Accident Reports. The CMR shall report in writing within one (1) working day of the
CMR’s knowledge, to the Owner, all accidents arising out of or in connection with the
Work which cause death, personal injury or property damage, giving full details and
statements of any witnesses. In addition, if death or serious personal injuries or serious
damages are caused, the accident 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 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 4.2 and Article 7.
ARTICLE 20 - PERMITS, LICENSES AND IMPACT FEES
20.1 CONTRACTOR LICENSE REQUIREMENT
20.1.1 The Contractor shall procure all permits, insurance, licenses 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 Contractor 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
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Contract and shall comply with the same. Contractor 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 Contractor 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 Contractor and its
Subcontractors are not relieved of its obligation to posses the required licenses
by subcontracting of the labor portion of the Contract.
ARTICLE 21 - PERSONNEL
21.1 All personnel used or employed by the CONTRACTOR in the performance of the Work
shall be qualified by training and experience to perform their assigned tasks. At the
request of the OWNER or the DESIGN PROFESSIONAL, the CONTRACTOR shall not
use in the performance of the Work any personnel deemed by the OWNER or the
DESIGN PROFESSIONAL to be incompetent, careless, or unqualified to perform the
work assigned to that person him, or otherwise unsatisfactory to the OWNER.
21.2 The CONTRACTOR 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 CONTRACTOR or any other contractor may then be erecting or altering on
behalf of the OWNER.
21.3 The CONTRACTOR agrees that it shall not employ any labor that will interfere with labor
harmony at the Project site or with the introduction and storage of materials and the
execution of Work by other contractors or by subcontractors.
21.4 CONTRACTOR shall furnish the DESIGN PROFESSIONAL on request, resumes of
CONTRACTOR's key personnel involved in the day-to-day Work on the Project.
ARTICLE 22 - CONTRACTOR'S WARRANTIES
22.1 CONTRACTOR 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 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,
CONTRACTOR 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.
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22.2 The CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR 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, except as otherwise expressly provided for in the Contract
Documents.
22.2.4 That CONTRACTOR warrants that they will be in compliance with A.R.S. § 23-
214(A) and 41-4401.
ARTICLE 23 - DEFECTIVE WORK
23.1 DESIGN PROFESSIONAL shall have the authority to reject or disapprove work which
DESIGN PROFESSIONAL finds to be defective. If required by DESIGN
PROFESSIONAL, CONTRACTOR shall promptly either correct all defective work or
remove such defective work and replace it with nondefective work. CONTRACTOR
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 CONTRACTOR 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 DESIGN PROFESSIONAL, OWNER shall have the
authority to cause the defective work to be removed or corrected, or make such repairs
as may be necessary at CONTRACTOR'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 CONTRACTOR and deducted from the GMP, or may be
charged against the Performance Bond. In the event of failure of CONTRACTOR to
make all necessary repairs promptly and fully, OWNER may declare a default.
23.3 If, within one (1) year after the date of final 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, CONTRACTOR, 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
CONTRACTOR might have under the Contract Documents.
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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 CONTRACTOR 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 Final 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 contractor or subcontractor of
the OWNER unless the CONTRACTOR is acting in such capacity or capacities. The
cost of the CONTRACTOR of performing any of its obligations under this Article 23 shall
be within the Guaranteed Maximum Price. The CONTRACTOR's responsibility to make
repairs and redo work under this Article 23 is in addition to the CONTRACTOR's
responsibility to the OWNER for any other damages of any kind for which the
CONTRACTOR would be legally responsible.
23.6 If the OWNER and the CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR. If no monies are held by the
OWNER, reimbursement shall be made to the OWNER within thirty (30) days by the
CONTRACTOR.
23.7 The CONTRACTOR'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.
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 DESIGN PROFESSIONAL and PROJECT MANAGER. The
CONTRACTOR recognizes that all signage may be disallowed, in the DESIGN
PROFESSIONAL's and 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.
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ARTICLE 25 - OWNERSHIP OF CONTRACT DOCUMENTS
25.1 Drawing, specifications, designs, models, photographs, reports, surveys, and other data
submitted by the CONTRACTOR 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 CONTRACTOR shall
become the property of OWNER and shall be delivered by CONTRACTOR to OWNER
within seven (7) days of termination of the Contract Documents by either party. Any
compensation due to Contractor shall be withheld until all documents are received as
provided herein.
ARTICLE 26 - CONTRACTOR'S REPRESENTATIVE
26.1 CONTRACTOR shall advise, the OWNER, in writing of any limitations on the authority of
CONTRACTOR's representative; otherwise, CONTRACTOR's representative shall be
considered to have full authority to execute any and all instruments requiring the
CONTRACTOR's signature and to act on behalf of the CONTRACTOR with respect to
all matters arising out of this Agreement.
ARTICLE 27 - OWNER RIGHT TO TERMINATE CONTRACT
27.1 If CONTRACTOR 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 shall perform the
Work unsuitably, or cause it to be rejected as defective and unsuitable, or shall
discontinue the prosecution of the Work pursuant to the accepted schedule or it’s
CONTRACTOR shall fail to perform any material term set forth in the Contract
Documents, including non-payment of subcontractors or materials providers, or if
CONTRACTOR 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,
PROJECT MANAGER may give notice in writing to CONTRACTOR and its Surety of
such delay, neglect or default, specifying the same.
If CONTRACTOR, within a period of ten (10) calendar days after such notice, shall not
proceed in accordance therewith, then OWNER may upon written certificate from
DESIGN PROFESSIONAL of the fact of such delay, neglect or default and
CONTRACTOR's failure to comply with such notice, terminate the services of
CONTRACTOR, exclude CONTRACTOR from the Project site and take the prosecution
of the Work out of the hands of CONTRACTOR, 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, CONTRACTOR shall not be entitled to
receive any further payment until the Project is completed.
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
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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 CONTRACTOR. In case the damages and expenses
so incurred by OWNER shall exceed the unpaid balance, then CONTRACTOR shall be
liable and shall pay to OWNER the amount of said excess.
27.2 If after notice of termination of CONTRACTOR's right to proceed, it is determined for any
reason that CONTRACTOR was not in default, the rights and obligations of OWNER and
CONTRACTOR 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 27.3 below.
27.3 This Contract may be terminated for convenience in writing by OWNER upon ten- (10)
day’s written notice to CONTRACTOR (delivered by certified mail, return receipt
requested) of intent to terminate and the date on which such termination becomes
effective. In such case, CONTRACTOR shall be paid for all work executed and
expenses incurred prior to termination in addition to termination settlement costs
reasonably incurred by CONTRACTOR relating to commitments which had become firm
prior to the termination. 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.
27.4 Upon receipt of Notice of Termination pursuant to Article 27 or 27.3 above,
CONTRACTOR 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 to the extent provided in Article 29.
Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement
of PROJECT MANAGER and CONTRACTOR 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 are 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,
CONTRACTOR 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.
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CONTRACTOR, pursuant to Article 11 of this Agreement, shall specifically bind all
subcontrators to the provisions of this Contract.
Pending resolution of any dispute arising under this Contract, other than termination
hereof, the CONTRACTOR 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 giving notice shall remain the same as set forth
herein unless changed in the manner provided in this Article.
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:
Janet Palacino, Director
Facilities Management Department
Maricopa County
401 W. Jefferson Street
Phoenix, AZ 85003
AND
Wes Baysinger, Chief Procurement Officer
Office of Procurement Services
Maricopa County
320 W. Lincoln Street
Phoenix, Arizona 85003
FOR CONTRACTOR:
Lorraine Bergman, President/CEO
Caliente Construction, Inc.
242 S. El Dorado Circle
Mesa, AZ 85202
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And to DESIGN PROFESSIONAL:
Al Kruger, P.E.
Pearson Engineering Associates
8825 N. 25th Avenue, Suite 11
Phoenix, AZ 85021
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 SBEs, 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 CONTRACTOR nor OWNER intend 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:
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 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.
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31.5 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 an 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
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.
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
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.
31.6 JOINT PREPARATION:
Preparation of this Contract has been a joint effort of OWNER and CONTRACTOR 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.
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 CONTRACTOR
shall also serve, as CONTRACTOR's required certification that it either has or that it will
establish a drug-free workplace.
31.8 ASSIGNMENT:
The CONTRACTOR 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 CONTRACTOR assign any monies due or to become
due to it hereunder, without the previous written consent of the OWNER.
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31.9 WAIVER:
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.
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 CONTRACTOR from any of its
obligations hereunder.
31.10 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.
31.11 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.
31.12 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.
31.13 PRIOR AGREEMENTS
This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained
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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.
31.14 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.
31.15 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.
31.16 CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
31.16.1 The undersigned (authorized official signing for the Contractor) certifies to the
best of his or her knowledge and belief, that the Contractor, defined as the
primary participant in accordance with 45 CFR Part 76, and its principals:
31.16.1.1 are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from covered transactions
by any Federal Department or agency;
31.16.1.2 have not within 3-year period preceding this 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
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antitrust statues or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
31.16.1.3 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 paragraph (2) of this certification; and
31.16.1.4 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.
31.16.2 Should the Contractor not be able to provide this certification, an explanation
as to why should be attached to the Contact.
31.16.3 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.
31.17 INFLUENCE
31.17.1 As prescribed in MC1-1202 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 MC1-902. An attempt to influence includes, but is not
limited to:
31.17.1.1 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,
31.17.1.2 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.
31.17.2 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
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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.
Southeast Campus OET Network Facilities Upgrade CMAR
12159-CMR
Principal (Signature) Date
Lorraine Bergman 86-0697201
Printed Name Federal Tax Identification Number
President/CEO 091625, B-1
Title Arizona Contractor’s License Number
Net 30 days 909-24
Vendor Terms NIGP Commodity Code (Advantage)
COUNTY OF MARICOPA, ARIZONA
RECOMMENDED BY: ACCEPTED AND APPROVED:
_______________________________ __________________________________
Department Head Date Chairman, Board of Supervisors Date
ATTEST:
__________________________________
Wes Baysinger, Chief Procurement Officer 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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EXHIBIT A - CONSTRUCTION DOCUMENTS
a. Drawings & Plans dated: July 12, 2013
b. Specifications dated: N/A
These documents are voluminous and maintained separately from the contract documents but
are incorporated into the contract as though fully set forth and attached.
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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 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 (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/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 firm as the SBE firm.
Type of Work $ Pd to SBE this
SBE Firm Name SBE Firm Address
Performed App/Inv
$
$
$
$
$
$
$
$
$
$
☐ A mark in this box certifies that no SBE firms were utilized as the prime,
subconsultant or subcontractor with respect to this pay application/invoice.
Date: ________________________________________
_______________________________
Signature
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Phone No.: ___________________________________
_______________________________
Printed Name
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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. 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. The County and the CMR shall name their respective arbitrator within five (5)
calendar days after the receipt of the Neutral Evaluator’s decision.
1.3 Neutral Evaluation Process. If the parties have been unable to resolve the disputes
after discussions and partnering, the following neutral evaluation process shall be used
to resolve any such dispute.
1.3.1 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.
1.3.2 Non-Binding Informal Hearing. The Neutral Evaluator shall schedule a non-
binding informal hearing of the matter to be held within seven (7) 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 evidence 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. 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.
1.3.3 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.
1.4 Binding Arbitration Procedure. The following binding arbitration procedure, except as
provided elsewhere in this Contract, shall serve as the exclusive method to resolve a
dispute if any party chooses not to accept the decision of the Neutral Evaluator. The
party requesting binding arbitration shall notify the Neutral Evaluator in writing within
three (3) working days of receipt of the Neutral Evaluator’s decision of a request 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
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arbitration as set forth in paragraph 1.4.13 and the proceeds from the bond shall be
allocated in accordance with paragraph 1.4.13 by the Arbitration Panel. The bond must
be in the full amount agreed upon or as established by the Neutral Evaluator to defray
the cost of the full arbitration proceeding. The bond must be posted with and received by
the Neutral Evaluator within 5 days after receipt by CMR of the Neutral Evaluator’s
written decision.
1.4.1 Arbitration Panel. 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
1.4.2 Selection of Neutral Arbitrator. The parties’ arbitrators shall choose the
Neutral Arbitrator, within five (5) business days of receipt of notification of a
dispute from the Neutral Evaluator. The Neutral Arbitrator shall have the same
qualifications as those of the arbitrators set forth in paragraph 1.2. In the event
that the selected arbitrators cannot agree on the Neutral Arbitrator as set forth
above, the Neutral Arbitrator shall be the person who shall be selected as the
Default Neutral Arbitrator. The Default Neutral Arbitrator shall be selected jointly
by the County and CMR before 14 calendar days after Notice to Proceed is
issued. If the County and CMR cannot agree on a Default Neutral Arbitrator, the
County and the CMR shall each submit two names to Judge Eino Jacobson, or
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.
1.4.3 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
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) working
days after notification of request for arbitration having been submitted. This
deadline can be extended only with the consent of all the parties to the dispute,
or by decision of the Arbitration Panel upon a showing of emergency
circumstances.
1.4.4 Procedure. The Arbitration Panel will select a Chairman and will conduct the
hearing in such a manner that will resolve disputes in a prompt, cost efficient
manner giving regard to the rights of all parties. Each party shall supply to the
Arbitration Panel a written pre-hearing statement which shall contain a brief
statement of the nature of the claim or defense, a list of witnesses and exhibits, a
brief description of the subject matter of the testimony of each witness who will
be called to testify, and an estimate as to the length of time that will be required
for the arbitration hearing. The Arbitration Panel shall review and consider the
Neutral Evaluator decision. The Chairman shall determine the nature and scope
of discovery, if any, and the manner of presentation of relevant evidence
consistent with deadlines provided herein, and the parties’ objective that disputes
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be resolved in a prompt and efficient manner. No discovery may be had of any
materials or information for which a privilege is recognized by Arizona law. The
Chairman upon proper application shall issue such orders as may be necessary
and permissible under law to protect confidential, proprietary or sensitive
materials or information from public disclosure or other misuse. Any party may
make application to the Maricopa County Superior Court to have a protective
order entered as may be appropriate to confirm such orders of the Chairman.
1.4.5 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.
1.4.6 Award. The Arbitration Panel shall, within ten (10) calendar days from the
conclusion of any hearing, by majority vote issue its award. The award shall
include an allocation of fees and costs pursuant to 1.4.13 herein. The award is to
be rendered in accordance with the Contract and the law of the State of Arizona.
1.4.7 Scope of Award. 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 individual party in excess of one hundred thousand
dollars ($100,000), exclusive of interest, arbitration fees, costs and attorneys’
fees, it must be supported by written findings of fact, conclusions of law and a
statement as to how damages were calculated. Any party can contest the validity
of the amount claimed if an action is filed in the Superior Court.
1.4.8 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 upon application of any party at the
earliest convenient time, but not later than the commencement of the arbitration
hearing. The amount of any recommended award contained in the decision of
the Neutral Evaluator shall constitute a presumption of the amount of the claim
for jurisdictional purposes, and may be overcome by a preponderance of the
evidence.
1.4.9 Entry of Judgment. Any party can make application to the Maricopa County
Superior Court for confirmation of an award, and for entry of judgment on it.
1.4.10 Severance and Joinder. To reduce the possibility of inconsistent adjudications,
the Neutral Evaluator or the 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
Arbitration Panel may, on his own authority, join or sever parties and/or claims
subject to this ADR process as they deem necessary for a just resolution of the
dispute, consistent with the 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 or against the 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
applicable to the dispute. Neither the Neutral Evaluator nor the Arbitration Panel
is authorized to join to the proceeding parties not in privity with the County. CMR
can not be joined to any pending arbitration proceeding, without CMR’s express
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written consent, unless CMR is given the opportunity to participate in the
selection of the non-County appointed arbitrator.
1.4.11 Appeal. Any party may appeal (i) errors of law by the Arbitration Panel if, but
only if, the errors arise in an award in excess of one hundred thousand dollars
($100,000); (ii) the exercise by the Chairman or Arbitration Panel of any powers
contrary to or inconsistent with the Contract; or (iii) on the basis of any of the
grounds provided in ARS § 12-1512. Appeals shall be to the Maricopa County
Superior Court within fifteen (15) calendar days of entry of the award. The
standard of review in such cases shall be that applicable to the consideration of a
motion for judgment notwithstanding the verdict, and the Maricopa County
Superior Court shall have the authority to confirm, vacate, modify or remand an
award appealed under this section, but not to conduct a trial, entertain the
introduction of new evidence or conduct a hearing de novo.
1.4.12 Uniform Arbitration Act. Except as otherwise provided herein, binding
arbitration pursued under this provision shall be governed by the Uniform
Arbitration Act as codified in Arizona in A.R.S. § 12-1501, et seq.
1.4.13 Fees and Costs. Each party shall bear its own fees and costs in connection with
any informal hearing before the Neutral Evaluator. All fees and costs associated
with any arbitration before the Arbitration Panel, including without limitation the
Arbitration Panelists’ fee, 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 $200 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 Arbitration Panel. Fees for the
Neutral Evaluator shall be paid by County.
1.4.14 Confidentiality. Any proceeding initiated under ADR 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.
1.4.15 Equitable Litigation. Notwithstanding any other provision of ADR to the
contrary, any party can petition the Maricopa County Superior Court for interim
equitable relief as necessary to preserve the status quo and prevent immediate
and irreparable harm to a party or to the Program 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.
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 65

1.4.16 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 this Contract.
1.4.17 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.
1.5 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
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 66

EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN
(The Subcontractor Management Plan is incorporated into the Contractor’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.)
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 67

EXHIBIT I - LEGAL WORKER CERTIFICATION
August 5, 2013
(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 contractor 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. 242 S. El Dorado Circle
(Firm) (Address Line 1)
Lorraine Bergman Mesa, AZ 85202
(Print Name) (Address Line 2)
President/CEO 480-894-5500
(Print Title) (Phone)
480-894-2323
(Signature Required) (Fax)
Lbergman @calienteconstruction.com 86-0697201
(Email Address) (Federal Taxpayer ID Number)
Southeast Campus OET Network Facilities Upgrade CMAR Serial # 12159-CMR
Contract between Maricopa County and Caliente Construction, Inc. pg # 68