CMAR Construction Services Contract

CITY OF EL MIRAGE
EL MIRAGE LIBRARY REMODEL / RELOCATION

CONSTRUCTION MANAGER AT RISK
CONSTRUCTION SERVICES

PROJECT NO. EM20-F01

TABLE OF CONTENTS

RECITALS
ARTICLE 1
ARTICLE 2
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ARTICLE 4 —
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EXHIBITA —
EXHIBITB —
EXHIBITC —
EXHIBITD —
EXHIBITE -—
EXHIBITG —

CM@RISK’S SERVICES AND RESPONSIBILITIES..
CITY’S SERVICES AND RESPONSIBILITIES ....
CONTRACT TIME ....
CONTRACT PRICE..
CHANGES TO THE CONTRACT PRICE AND TIME
PROCEDURE FOR PAYMENT a
CLAIMS AND DISPUTEG............... 20
SUSPENSION AND TERMINATION
INSURANCE AND BONDS
INDEMNIFICATION
GENERAL PROVISIONS

SIGNATURE PAGE
SETTLEMENT OF CLAIMS.
APPROVED GMP PROPOSAL.
GMP SPECIFICATIONS. ..........cceeeecceeeeeeeeees

GMP CLARIFICATIONS, INCLUSIONS & EXCLUSIONS.
GMP LIST OF CONSTRUCTION DOCUMENTS

Project Name: City of El Mirage — City Hall Project No. EM15-F01

Construction Manager at Risk
Construction Services

Project No. EM20-F01

THIS CONTRACT is made and entered into on the 8th day of July, 2021, by and between
City of El Mirage, hereinafter called the “City” and CORE Construction, Inc., hereinafter
called the "Construction Manager at Risk" or “CM@Risk”

RECITALS

A. The City engages the CMV@Risk to perform construction services
for the project known and described as the El Mirage Library
Remodel / Relocation, Project No. EM20-F01, herein called the
“Project”.

B. To undertake the design of said Project, the City has entered into
a contract with bo ARCH L.L.C., hereinafter referred to as the
“Design Professional’.

Cc. The CM@Risk has represented to the City the ability to provide
construction management services and to construct the Project
and based on this representation the City engages the CM@Risk
to provide these services and construct the Project.

D. A previous contract has been executed between City and
CM@Risk to perform design phase services.
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants and considerations
hereinafter contained, itis agreed by and between the City and the CM@Risk as follows:
Article 1 - Definitions
“Agreement” or “Contract” This written document signed by the City and CM@Risk

covering the construction phase of the Project, and including other documents itemized
and referenced in or attached to and made part of this Contract.

“Change Order” A written order issued by the City to the CM@Risk to make changes in
the Work or to perform extra Work, and setting forth conditions for payment and/or
adjustment in time of completion.

“City” “Owner” or “OWNER’) The City of El Mirage, a municipal corporation, with whom
CM@Risk has entered into this Contract and for whom the services is to be provided
pursuant to said Contact.

“CM@Risk’” The firm selected by the City to provide construction services as detailed in
this Agreement.

“Contingency, CM@Risk” (Contractor's) A fund to cover cost growth during the project
used at the discretion of the CMAR usually for costs that result from project circumstances.
The amount of the CM@Risk’s Contingency shall be negotiated as a separate line item in
the GMP package. Use of the CM@Risk’s Contingency is described in Section 5.2.2.3.

“Contract Documents” The following items and documents executed by the City and the
CM@Risk: (i) all written Change Orders; (ii) this Agreement, including all exhibits and
attachments and (iii) GMP Plans and Specifications.

“Contract Price” The amount or amounts set forth in Article 5 and as modified by Change
Order.

“Construction Fee” The CM@Risk’s administrative costs, home office overhead, and profit,
whether at the CM@Risk’s principal or branch offices. This includes the administrative
costs and home office costs and any limitations or exclusions that may be included in the
General Conditions Costs.

“Contract Time” The Days as set forth in Article 4 for the period of time, including authorized
adjustments, allotted in the Contract Documents for Final Acceptance of the Work.

“Cost_of the Work” The direct costs necessarily incurred by the CM@Risk in the proper
performance of the Work. The Cost of the Work shall include direct labor costs,
subcontract costs, costs of materials and equipment incorporated in the completed
construction, costs of other materials and equipment, temporary facilities required to
construct the Work, permit and license fees, materials testing, and related items. The Cost
of the Work shall not include the CM@Risk’s Construction Fee, General Conditions Costs,
CM@Risk’s Contingency and taxes.

“Critical Path” The sequence of activities which control the overall duration of the project
from the start of the Work to the Final Acceptance of the Project. Any delay in the
completion of these activities will extend the Contract Time

“Day(s)” Calendar day(s) unless otherwise specifically noted in the Contract Documents.

“Design Phase Services Contract” An agreement between the City and CM@Risk for
Services provided by the CM@Risk during the design phase.

“Design Professional” A qualified, licensed design professional who furnishes design and/or
construction administration services for the Project.

“Differing Site Conditions” Concealed or latent physical conditions or subsurface conditions
at the Site that, (i) materially differ from the conditions indicated in the Contract Documents
or (ii) are of an unusual nature, differing materially from the conditions ordinarily
encountered and generally recognized as inherent in the Work at the general area of the
project site.

“Final Acceptance” The completion of the Work including punch list, as prescribed in
Section 4.1.

Float” The number of Days by which an activity can be delayed without lengthening the
Critical Path and extend the Contract Time.

“General Conditions Costs” Includes but is not limited to the following types of costs for the
CM@Risk during the construction phase: (i) payroll costs for project manager or CM@Risk
for Work conducted at the site, (ii) payroll costs for the superintendent. (iii) payroll costs for
other administrative and management personnel for Work conducted at the site, (iv) costs
of offices and temporary facilities including office materials, office supplies, office equipment
and minor expenses, (v) cost of utilities, fuel, sanitary facilities and telephone services at the
site, (vi) costs of liability insurance premiums not included in labor burdens for direct labor
costs, (vii) costs of bond premiums, or Contractor’s default insurance.

“Guaranteed Maximum Price” or “GMP” The sum of the maximum Cost of the Work; the
CM@Risk’s Construction Fee; General Conditions Costs, taxes, bonds, insurance costs
and CM@Risk’s Contingency.

“GMP Plans and Specifications” The set of plans and specifications provided in the Design
Phase Services upon which the Guaranteed Maximum Price Proposal is based.

“Legal Requirements” All applicable federal, state and local laws, codes, ordinances, rules,
regulations, orders and decrees of any government or quasi-government entity having
jurisdiction over the Project or Site, the practices involved in the Project or Site and relating
to the performance of the Work.

“Notice to Proceed” or “NTP” A directive issued by the City, authorizing the CM@Risk to
start the Work, which shall not be issued before the CM@R has received the executed
Contract and all permits necessary to begin construction.

“Payment Request” The City form used by the CM@Risk to request progress payments for
Work in accordance with Article 7.

“Product Data” Illustrations, standard schedules, performance charts, instructions,
brochures, diagrams and other information furnished by the CM@Risk to illustrate materials
or equipment for some portion of the Work.

“Project Record Documents” The documents created pursuant to Section 2.10.

“Samples” Physical examples, which illustrate materials, equipment or Workmanship and
establish standards by which the Work will be evaluated.

“Shop Drawings” Drawings or reproductions of drawings, detailing; fabrication and erection
of structural elements, false Work and forming for structures, fabrication of reinforcement
steel, installed equipment and installation of systems, or any other supplementary plans or
similar data, which the CM@Risk is required to submit for approval.

“Site” The land or premises on which the Project is located.

“Specifications” The part(s) of the Contract Documents for the construction phase
consisting of written technical descriptions of materials, equipment, construction systems,
standards and Workmanship as applied to the Work and certain administrative details
applicable thereto. Except as modified by the project plans, specifications and Change
Orders, this Project shall be constructed using the current Uniform Standard Specifications
and Details for Public Works Construction as furnished by the Maricopa Association of
Governments and as amended by the City.

“Subcontractor” Those having direct contracts with the CM@Risk and those who furnish
material worked into a special design according to the plans and specifications for the
Work, but not those who merely furnish material not so worked.

“Supplier” A manufacturer, fabricator, supplier, distributor, material man or vendor having a
direct contract with CM@Risk or any Subcontractor to furnish materials or equipment to be
incorporated in the construction phase Work by CM@Risk or any Subcontractor.

“Work” or “Project” The entire completed construction or the various separately identifiable
parts thereof, required to be furnished during the construction phase. Work includes and is
the result of performing or furnishing labor and furnishing and incorporating materials,
resources and equipment into the construction, and performing or furnishing services and
documents as required by the Contract Documents for the construction phase.

Article 2 - CM@Risk’s Services and Responsibilities

2.1 Standard Specifications and Details

2.1.1 The City is now operating under the latest revision of the Uniform Standard
Specifications and Details for Public Works Construction, published by the Maricopa
Association of Governments, the City of El Mirage Infrastructure Guide, the City of El Mirage
Details, and the City of Peoria Standard Details where such details are not adopted or
included in MAG, and all are herewith incorporated by reference and made a part hereof.

2.1.2 Copies of the Uniform Standard Specifications and Uniform Standard Details,
published by the Maricopa Associations of Governments, are available at the Maricopa
Association of Governments office, 302 N. 1st Avenue, Suite 300, Phoenix, Arizona; they
may be downloaded at their web site: http://www.mag.maricopa.gov/ under “Publications”.

2.2 General Services

CM@Risk’s Representative shall be available to the City and shall have the necessary
expertise and experience required to supervise the Work. CM@Risk’s Representative shall
communicate regularly with City but not less than once a week and shall be vested with the
authority to act on behalf of the CM@Risk. CM@Risk’s Representative may be replaced
only with the written consent of the City.

2.3 Government Approvals and Permits

2.3.1 Unless otherwise provided, the CM@Risk shall obtain all necessary permits for
the Work, and pay all applicable fees. The CM@Risk is specifically notified of the need to
obtain the necessary environmental permits or file the necessary environmental and
regulatory permit notices.

2.3.2 Copies of these permits and notices must be provided to the City prior to
starting the permitted activity

2.3.3 City shall pay and be responsible for Zoning, Engineering and Building Safety
permit(s). City shall also pay for utility design fees for permanent services.

2.4 Pre-construction Conference

2.4.1 Prior to the commencement of any Work, the City will schedule a Pre-
construction conference.

2.4.2 The purpose of this conference is to establish a Working relationship between

the CM@Risk, utility firms, and various City agencies. The agenda will include critical
elements of the Work schedule, submittal schedule, cost breakdown of major lump sum
items, Payment Requests and processing, coordination with the involved utility firms, and
emergency telephone numbers for all representatives involved in the course of construction.

2.4.3 The Notice to Proceed date will be concurred to by the parties or set by the City.
At or after the meeting and upon receipt of an executed Contract and the receipt of the
required City permit(s)..

2.4.4 The CM@Risk shall provide a schedule of values based on the categories used
in the buyout of the Work. The schedule of values shall not be greater than the approved
GMP and shall identify the CM@Risk’s Contingency. The schedule of values will subdivide
the Work into all items comprising the Work.

2.4.5 Minimum attendance by the CM@Risk shall be the CM@Risk’s Representative,
who is authorized to execute and sign documents on behalf of the firm, the job
superintendent, and the CM@Risk's safety officer.

2.5 Control of the Work

2.5.1 Unless otherwise provided in the Contract Documents to be the responsibility of
the City or a separate contractor, CM@Risk shall provide through itself or Subcontractors
the necessary supervision, labor, inspection, testing, start-up, material, equipment,
machinery, temporary utilities and other temporary facilities to permit CM@Risk to complete
the Work consistent with the Contract Documents.

2.5.2 CM@Risk shall perform all construction activities efficiently and with the
requisite expertise, skill and competence to satisfy the requirements of the Contract
Documents. CM@Risk shall at all times exercise complete and exclusive control over the
means, methods, sequences and techniques of construction.

2.5.3 CM@Risk or the CM@Risk’s Superintendent shall be present at the Site at all
times that Work under this contract is taking place.

2.5.34 All elements of the Work shall be under the direct supervision of a foreman or
his designated representative on the Site who shall have the authority to take actions
required to properly carry out that particular element of the Work.

2.5.3.2 In the event of noncompliance of this section, the City may require the
CM@Risk to stop or suspend the Work in whole or in part.

2.5.4 Where the Contract Documents require that a particular product be installed
and/or applied by an applicator approved by the manufacturer, it is the CM@Risk’s
responsibility to ensure the Subcontractor employed for such Work is approved by the
manufacturer.

2.5.5 Before ordering materials or doing Work, the CM@Risk and each Subcontractor
shall verify measurements at the Site and shall be responsible for the correctness of such
measurements. No extra charge or compensation will be allowed because of differences
between actual dimensions and the dimensions indicated on the drawings.

2.5.6 The CM@Risk shall take field measurements and verify field conditions and
shall carefully compare such field measurements and conditions and other information
known to the CM@Risk with the Contract Documents. Errors, inconsistencies or omissions
discovered shall be reported to the City at once.

2.5.7 The CM@Risk shall establish and maintain all construction grades, lines, levels,
and bench marks, and shall be responsible for accuracy and protection of same. This Work
shall be preformed or supervised by a licensed civil engineer or surveyor in the State of
Arizona, in accordance with section 2.7

2.5.8 CM@Risk shall be responsible for the proper performance of the Work of
Subcontractors and any acts and omissions in connection with such performance. Nothing
in the Contract Documents is intended or deemed to create any legal or contractual
relationship between City and any Subcontractor or Sub-Subcontractor, including but not
limited to any third-party beneficiary rights.

2.5.9 CM@Risk shall coordinate the activities of all Subcontractors. If the City
performs other Work on the Project or at the Site with separate contractors under City's
control, CM@Risk agrees to cooperate and coordinate its activities with those of such
separate contractors so that the Project can be completed in an orderly and coordinated
manner without unreasonable disruption.

2.5.10 The respective sections of the specifications contain detailed requirements for
materials testing and inspections to be performed by an approved testing laboratory. All
costs incurred for testing laboratory services will be paid by the CM@Risk at no cost to the
City.

2.6 Control of the Work Site

2.6.1 Throughout all phases of construction, including suspension of Work, CM@Risk
shall keep the Site reasonably free from debris, trash and construction wastes to permit
CM@Risk to perform its construction services efficiently, safely and without interfering with
the use of adjacent land areas. Prior to Final Acceptance of the Work, or a portion of the
Work, CM@Risk shall remove all debris, trash, construction wastes, materials, equipment,
machinery and tools arising from the Work or applicable portions thereof to permit City to
occupy the Project or a portion of the Project for its intended use.

2.6.2 CM@Risk shall take whatever steps, procedures or means necessary to
prevent dust nuisance due to construction operations. The dust control measures shall be
maintained at all times to the satisfaction of the City and in accordance with the
requirements of the Maricopa County Bureau of Air Pollution Control Rules and
Regulations.

2.6.3 CM@Risk shall maintain ADA and ANSI accessibility requirements during
construction activities. ADA and ANSI accessibility requirements shall include, but not be
limited to, parking, building access, areas of refuge, and emergency exit paths of travel.
CM@Risk shall be responsible for the coordination of all Work to minimize disruption to
residents and the public.

2.6.4 Only materials and equipment used directly in the Work shall be brought to and
stored on the Site by the CM@Risk. When equipment is no longer required for the Work, it
shall be removed promptly from the Site. Protection of construction materials and
equipment stored at the Site from weather, theft, damage and all other adversity is solely
the responsibility of the CM@Risk.

2.7 Construction Survey

2.7.1 General: The CM@Risk shall furnish the services of a surveyor professionally
licensed or Registered (RLS) to perform land surveying in the State of Arizona. At the pre-
construction conference, the CM@Risk shall provide to the City in writing the name and
license number of the person who will perform the survey Work. The City or their
designated representative will initially provide the alignment control points and the control
elevation benchmark(s). All other Master Control surveying in connection with this contract
shall be the responsibility of the CM@Risk to provided surveying services. Ata minimum
these services shall include preconstruction surveys, construction surveys and a post-
construction survey and their accuracy shall be third order or better. Payment for these
services shall be included in the GMP.

2.7.2 Preconstruction Surveys: Preconstruction surveys include, but are not limited
to:

2.7.2.1 Valve and Manhole Ties: Prior to the start of construction, the CM@Risk will
reference survey monuments to a permanent feature. A copy of all reference ties shall be
provided to the City Inspector and to the CM@Risk. The City will provide to the CM@Risk
as-built records showing these locations and ties to existing valves.

2.7.2.2 Topographic Survey: The CM@Risk shall perform topographic surveys
necessary to ascertain unforeseen conditions as requested by the City.

2.7.2.3 Elevations: When it is a requirement of the contract for the CM@Risk to pothole
existing utilities to verify their location and elevation, the CM@Risk shall ascertain stationing
and elevations of the existing utilities and compute slopes and distances to insure potential
conflicts are identified. The CM@Risk shall provide this data to the City sufficiently in
advance of construction so that remedial action can be taken.

2.7.3 Construction Surveys: During construction the CM@Risk shall provide survey
services including, but not limited to:

2.7.3.1 Staking: The CM@Risk shall provide all construction staking, including right-of-
way and easements, slope staking, line and grade, and other staking, from which
measurement of items of Work can be taken conveniently by the construction force and
which will insure the project is constructed according to the plans.

2.7.3.2 Quantity Surveys: Quantity surveys, for identified unit price items, shall be
conducted, and the data derived from these surveys shall be used in computing the
quantities of Work performed and the actual construction completed and in place.

2.7.3.3 The CM@Risk shall conduct the original and final surveys and surveys for any
periods for which progress payments are requested and shall make the computations based
on these surveys. All these surveys shall be conducted under the direction of a
representative of the City, unless the City waives this requirement in a specific instance.
The CM@Risk shall make the computations based on the surveys for any periods for which
progress payments are requested.

2.7.3.4 Promptly upon completing a survey, the CM@Risk shall furnish the originals of
all field notes and all other records relating to the survey or to the layout of the Work to the
City, who shall use them as necessary to determine the amount of progress payments. The
CM@Risk shall retain copies of all such material furnished to the City.

2.7.4 Post-Construction Surveys: Upon completion of construction and prior to
submittal of record drawings, the CM@Risk shall conduct the necessary surveys to verify
final alignment and grade, location and elevation of underground utility stub outs, and
permanent ties for all valves, fire hydrants, flushing lines, corporation stops, and other
features as directed by the City. Promptly upon completing the survey the CM@Risk shall
furnish the original of all field notes and records relating to the post-construction surveys to
City. A copy of the field notes and records shall be retained by the CM@Risk for use in
preparation of the record drawings.

2.7.5 Datum: Unless otherwise specified, all surveys shall be conducted using the
NAVD 88 datum.
2.7.6 Quality Assurance: From time to time, the City or the City’s Representative may

cause a quality assurance survey to be performed. Such survey may include, but not be
limited to:

e Review of records, methods, procedures and techniques.
e Verification of computations.
e Resurveying using in-place hubs, stakes or monuments.

2.7.7 Defective Work: The City will notify the CM@Risk of any non-compliance with
the foregoing provisions of this section and the actions to be taken. The CM@Risk shall,
after receipt of such notice, immediately take corrective action. If the CM@Risk fails or
refuses to comply promptly, the City may issue an order stopping all or part of the Work until
satisfactory corrective action has been taken. No part of the time lost due to any such stop
orders, nor any Work performed which must be removed and replaced as a result of
defective survey Work, shall be made the subject of a claim for extension of time or for
excess costs or damages by the CM@Risk. If recurring deficiencies indicate the registered
land surveyor is not competent to perform the required surveys, corrective action shall be
taken as directed and progress payments may be withheld until such corrective action has
been completed.

2.7.8 Certification: Upon completion of all survey Work on this contract, the RLS shall
submit a letter to the City, on letterhead stationery, containing the following paragraph:

"| hereby certify that all elevations, dimensions, measurements, tabulations and
computations provided by me on this contract are true, correct and accurate to the best of
my knowledge and belief."

(Typed Name)
Registered Land Surveyor

This letter shall be signed by the RLS and cite the City project name and number and shall
be stamped with the RLS's professional stamp.

2.8 Quality Control, Testing and Inspection

2.8.1 All materials used in the Work shall be new and unused, unless otherwise
noted, and shall meet all quality requirements of the Contract Documents.

2.8.2 All construction materials to be used on the Work or incorporated into the Work,
equipment, plant, tools, appliances or methods to be used in the Work may be subject to
the inspection and approval or rejection by the City. Any material rejected by the City shall
be removed immediately and replaced in an acceptable manner.

2.8.3 The CM@Risk shall be responsible for all Quality Control and Acceptance
Testing.
2.8.4. When the first and subsequent tests indicate noncompliance with the Contract

Documents, all retesting shall be performed by the same testing agency.

2.8.5 The CM@Risk will cooperate with the selected testing laboratory and all others
responsible for testing and inspecting the Work and shall provide them access to the Work
at all times.

2.8.6 At the option of the City, materials may be approved at the source of supply
before delivery is started.

2.8.7 Code compliance testing and inspections required by codes or ordinances, or by
a plan approval authority, and which are made by a legally constituted authority, shall be the
responsibility of the CM@Risk to coordinate and to comply, unless otherwise provided in the
Contract Documents.

2.8.8. Failure of the City or City’s selected testing agency to discover or detect
noncompliance by CM@Risk with the Contract Documents shall not relieve the obligation of
CM@Risk to comply with the Contract Documents and to correct any defective work or work
not in compliance with the Contract Documents, at CM@Risk’s sole cost and expense.

2.9 Trade Names and Substitutions

2.9.1 Contract Document references to equipment, materials or patented processes
by manufacturer, trade name, make or catalog number, unless indicated that no
substitutions are permitted, substitute or alternate items may be permitted, subject to the
following:

2.9.2 The substitution shall be submitted by CM@Risk in writing to the City.

2.9.3 The CM@Risk shall certify that the substitution will perform the functions and
achieve the results called for by the general design, be similar and of equal substance, and
be suited to the same use as that specified.

2.9.4 The submittal shall state any required changes in the Contract Documents to
adapt the design to the proposed substitution.

2.9.5 The submittal shall contain an itemized estimate of all costs and credits that will
result directly and indirectly from the acceptance of such substitution, including cost of
design, license fees, royalties, and testing. Also, the submittal shall include any adjustment
in the Contract Time created by the substitution.

2.9.6 The CM@Risk if requested by the City shall submit Samples or any additional
information that may be necessary to evaluate the acceptability of the substitution.

2.9.7 The City will make the final decision and will notify the CM@Risk in writing as to
whether the substitution has been accepted or rejected.

2.9.8 If the City does not respond in a timely manner, the CM@Risk shall continue to
perform the Work in accordance with the Contract Documents and the substitution will be
considered rejected.

2.10 Project Record Documents

2.10.1 During the construction period, the CM@Risk shall maintain at the jobsite a set
of blueline or blackline prints of the Construction Document drawings and shop drawings for
Project Record Document purposes.

2.10.1.1 |The CM@Risk shall mark these drawings to indicate the actual installation
where the installation varies appreciably from the original Construction Documents. Give
particular attention to information on elements that will be concealed, which would be
difficult to identify or measure and record later. Items required to be marked include but are
not limited to:

Dimensional changes to the Drawings
Revisions to details shown on Drawings
Locations and depths of underground utilities
Revisions to routing of piping and conduits
Actual equipment locations

Changes made by Change Order

Details not on original Contract Drawings

2.10.1.2 | The CM@Risk shall mark completely and accurately Project Record Drawing
sets of Construction Documents.

2.10.1.3 The CM@Risk shall mark Project Record Drawings sets with red erasable
colored pencil.

2.10.1.4 The CM@Risk shall note request for information (RFI) Numbers and Change
Order numbers, etc., as required to identify the source of the change to the Construction
Documents.

2.10.1.5 | The CM@Risk shall submit Project Record Drawing sets and Shop Drawings to
the City or its representative for review and comment.

2.10.2 Upon receipt of the reviewed Project Record Drawings from the City, the
CM@Risk shall correct any deficiencies and/or omissions to the drawings and submit the
final original of the Project Record Drawings to the City prior to Final Acceptance and as a
condition of Final Acceptance.

2.10.3 The City Representative will review the Project Record Drawings monthly prior
to the date established for the Payment Request and shall be the sole judge of acceptance
of these drawings.

2.11 Project Safety
2.11.1 These Construction Documents, and construction covered by this agreement
are to be governed, at all times, by applicable provisions of the federal laws, including but
not limited to, the latest amendments of the following:

a. Williams-Steiger Occupational Safety & Health Act of 1970, Public Law, 91-596.

b. Part 1910 and Part 1926 - Occupational Safety and Health Standards, Chapter

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XVII of Title 29, Code of Federal Regulations.

c. Part 1518 - Safety and Health Regulations for Construction, Chapter XIII
of Title 29, Code of Federal Regulations.

2.11.2 The CM@Risk is responsible for safety of the job site for employees of
CM@Risk as well as for members of the general public and others who may drive or walk
through or be in the job site. CM@Risk recognizes the importance of performing the Work
in a safe manner so as to assist with preventing damage, injury or loss to, all individuals at
the Site, whether working or visiting, shall report to the CM@Risk’s field office and sign in
before entering the Project Site.

2.11.3 CM@Risk recognizes the importance of performing the Work in a safe manner
so as to prevent damage, injury or loss to (i) all individuals at the Site, whether Working or
visiting, (ii) the Work, including materials and equipment incorporated into the Work or
stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto.

2.11.4 CM@Risk assumes responsibility for implementing and monitoring all safety
precautions and programs related to the performance of the Work.

2.11.5 The CM@Risk shall provide a “competent person” as required by O.S.H.A.
regulations. The “competent person” shall be identified at the preconstruction conference
with the City advised in writing of any changes.

2.11.6 The “competent person” shall make routine daily inspections of the Site and
shall hold weekly safety meetings with CM@Risk’s personnel, Subcontractors and others as
applicable.

2.11.7 CM@Risk and Subcontractors shall comply with all legal and regulatory
requirements relating to safety, as well as any City-specific safety requirements set forth in
the Contract Documents, provided that such City-specific requirements do not violate any
applicable legal and regulatory requirement.

2.11.8 CM@Risk will immediately report in writing any safety-related injury, loss,
damage or accident arising from the Work to City’s Representative and, to the extent
mandated by Legal Requirements, to all government or quasi-government authorities
having jurisdiction over safety-related matters involving the Project or the Work.

2.11.9 CM@Risk’s responsibility for safety under this Section is not intended in any
way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal
obligations and responsibility for (i) complying with all Legal Requirements, including those
related to health and safety matters, and (ii) taking all necessary measures to implement
and monitor all safety precautions and programs to guard against injury, losses, damages
or accidents resulting from their performance of the Work.

2.11.10 Nothing in this agreement shall relieve the CM@Risk of his responsibility to
maintain traffic, structures, etc., as noted on the plans, specifications, and Special
Provisions. The CM@Risk is responsible to provide all necessary shoring, bracing and
trench support as is necessary to maintain traffic structures, etc., as stipulated in the plans,
specifications, and Special Provisions. If the stability of adjoining building, walls, roadways,
etc., is endangered by the CM@Risk's excavation, shoring, bracing, or underpinning shall
be provided as necessary to ensure project safety. Cost for shoring, bracing,
underpinnings, and trench support shall be included in the appropriate items listed in the
GMP, and no additional payment shall be made for this Work.

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2.12 Warranty

2.12.1 CM@Risk warrants to City that the construction, including all materials and
equipment furnished as part of the construction, shall be new unless otherwise specified in
the Contract Documents, of good quality, in conformance with the Contract Documents and
free of defects in materials and Workmanship.

2.12.2 The date of Final Acceptance and the beginning of the Warranty period shall be
the date upon which the City indicates final completion and acceptance of the Work,
irrespective of early completion by some subcontractors of their Work. Final Acceptance
will not be issued until all items of Work, including punch list items have been completed.
The CM@Risk shall furnish extended warrantees for facilities placed in service before Final
Acceptance and that expire no earlier than one year beyond Final Acceptance except as
otherwise required in the specifications.

2.12.3 CM@Risk’s warranty obligation shall be in accordance with MAG Specification
108.

2.12.4 Nothing in this warranty is intended to limit any manufacturer's warranty which
provides City with greater warranty rights than set forth in this section or the Contract
Documents. CM@Risk will provide City with all manufacturers’ warranties prior to Final
Acceptance.

2.12.5 CM@Risk’s warranty obligation excludes defects caused by abuse, alterations,
or failure to maintain the Work by persons other than CM@Risk or anyone for whose acts
CM@Risk may be responsible and/or liable.

2.13 Correction of Defective Work

2.13.1 CM@Risk agrees to correct any Work that is not in conformance with the
Contract Documents, including that part of the Work subject to Section 2.12 above, within a
period of one year from the date of Final Acceptance of the Work, or within such longer
period to the extent required by the Contract Documents. A progress payment, or partial or
entire use or occupancy of the Project by the City, shall not constitute acceptance of Work
not in accordance with the Contract Documents.

2.13.2 CM@Risk shall take immediate steps to commence correction of
nonconforming Work, subject to Section 2.12 above, within fourteen calendar days of
receipt of written notice from City in accordance with MAG Specifications. This includes the
correction, removal or replacement of the nonconforming Work and any damage caused to
other parts of the Work affected by the nonconforming Work. If defects develop which are
determined by the City to be an emergency, the City shall notify the CM@Risk, via the most
expeditious means regarding the nature and condition of the defects. In turn, the CM@Risk
shall immediately dispatch necessary forces to correct the defect or the emergency
condition in accordance with MAG Specifications.

2.13.3 The one year period referenced in Division 2.13.1 above applies only to
CM@Risk’s obligation to correct nonconforming Work and is not intended to constitute a
period of limitations for any other rights or remedies that the City may have regarding
CM@Risk’s other obligations under the Contract Documents.

2.13.4 The failure of City to discover or detect noncompliance by CM@Risk with the
Contract Documents shall not relieve the obligation of CM@Risk to comply with the
Contract Documents and to correct any defective work or work not in compliance with the
Contract Documents, at CM@Risk’s sole cost and expense. The City’s approval of the
Project, or any part thereof, shall not constitute a waiver of the City’s right to require the

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CM@Risk to correct any Work subsequently found or determined not to be in compliance
with the Contract Documents.

2.14 Contractor Labor Requirements

The CM@Risk shall insure that all employees have a legal right to live and Work in the
United States. Upon request by the City of El Mirage, a copy of the Birth Certificate,
Certificate of Naturalization, Immigration Card, or Special Entry Permit shall be provided to
the City Engineer. In addition, employee compensation shall meet all applicable
requirements of the Fair Labor Standards Act (FLSA) and Federal Minimum Wage Laws.

2.15 CM@Risk Self Perform

(Applies to Horizontal Projects only) CM@Risk shall perform, with the CM@Risk’s own
organization, construction Work that amounts to not less than forty-five percent of the total
contract price for construction. For the purposes of this paragraph, the total contract price
for construction does not include the cost of preconstruction services, design services or
any other related services or the cost to procure any right-of-way of other cost of
condemnation.

Article 3 - City’s Services and Responsibilities
3.1 City’s Representative and Inspector

3.1.1 City’s Representative is responsible for providing City-supplied information and
approvals in a timely manner to assist CM@Risk to fulfill its obligations under the Contract
Documents.

3.1.2 City’s Representative will also provide CM@Risk with prompt notice if it
observes any failure on the part of CM@Risk to fulfill its contractual obligations, including
any default or defect in the project or non-conformance with the drawings and
specifications.

3.1.3 The City may utilize field inspectors to assist the City’s Representative during
construction in observing performance of the CM@Risk. The inspector is for the purpose of
assisting the City’s Representative and should not be confused with an inspector with a
regulatory agency.

3.1.3.1 The inspector is authorized to inspect all Work and materials furnished. Such
inspection may extend to all or part of the Work and to the preparation, fabrication or
manufacture of the materials to be used.

3.1.3.2 The inspector is not authorized to issue instructions contrary to the Construction
Documents or to act as foremen for the CM@Risk.

3.1.3.3 The inspector shall have the authority to reject Work or materials until any
questions at issue can be decided by the City’s Representative.

3.1.3.4 The furnishing of an inspector by the City shall not make the City responsible for
or give the City control over construction means, methods, techniques, sequences or
procedures or for safety precautions or programs or responsibility for the CM@Risk’s failure
to perform the Work in accordance with Contract Documents.

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3.2 Design Professional Services

The City may contract separately with one or more Design Professionals to provide
construction administration of the project. The Design Professional's contract as well as
other firms hired by the City shall be furnished to the CM@Risk. The CM@Risk shall not
have the right to limit or restrict or reject any contract modifications that are mutually
acceptable to the City and Design Professional.

3.3 City’s Separate Contractors

City is responsible for all Work performed on the Project or at the Site by separate
contractors under City’s control. City shall contractually require its separate contractors to
cooperate with, and coordinate their activities so as not to interfere with, CM@Risk in order
to enable CM@Risk to timely complete the Work consistent with the Contract Documents.

3.4 Permit Review and Inspections

3.4.1 If requested by the CM@Risk, the City’s Representative will provide assistance
and guidance in obtaining necessary reviews, permits and inspections.

3.4.2 The regulating agencies of the City, such as Public Works, Fire, and Planning

Departments, enforce Legal Requirements. The enforcement activities of the City are
independent and separate from this Agreement.

Article 4 - Contract Time

41 Contract Time

4.1.1 Contract Time shall start with the Notice to Proceed (NTP) and end with Final
Acceptance. The Notice to Proceed shall not require CM@Risk to commence with
construction Work prior to CM@Risk’s receipt of the required permit(s) or recipe of the
executed Construction Contract.

4.1.2 Contract Time for the Agreement shall be two hundred sixty-two (262)
consecutive calendar days starting with the Notice to Proceed. Contract Time shall be for
the completion of the Work.

4.1.3 CM@Risk agrees that it will commence performance of the Work and achieve
the Contract Time.

4.1.4 All of the times set forth in this Article 4 shall be subject to adjustment in
accordance with Article 6.

4.2 Final Acceptance

Upon receipt of written notice that the Work is ready for final inspection and acceptance, City
and CM@Risk will jointly inspect to verify that the remaining items of Work have been
completed. There shall be no partial acceptance. Final Acceptance shall not be issued until
all items of Work, including punch list items, have been completed to the City’s satisfaction.

4.3 Liquidated Damages

4.3.1 For this project, time is of the essence. Therefore, there will be liquidated
damage assessment made for each calendar day the project is not completed after the

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specified completion date. For each and every calendar day that Work shall remain
incomplete after the time specified for the completion of the Work in the GMP, or as
adjusted by the City, the sum per MAG Section 108.9, per calendar day, shall be deducted
from monies due to the CM@Risk, not as a forfeit or penalty, but as liquidated damages
and added expenses including administrative, inspectors’ cost and loss of facility revenue.
This sum is fixed and agreed upon between the parties, because the actual loss to the City
caused by delay in completion will be impractical and extremely difficult to ascertain and
determine.

4.3.2 Final Acceptance means the completion of all items of Work, including punch
list items subject to Section 4.2.

4.3.3 Permitting the CM@Risk to continue and finish the Work or any part of it after
the time fixed for its completion, or after the date to which the time fixed for its completion
may have been extended, does not operate as a waiver by the City of any rights under this
contract.

4.3.4 The CM@Risk acknowledges and agrees to the amount of liquidated damages,
specified in Section 4.3.1.

4.3.5 Nothing herein shall be deemed to constitute a waiver of damages mutually
agreed upon by the Parties as liquidated damages in this Article 4.3, and excluding losses
covered by insurance required by the Contract Documents. City and the CM@Risk agree to
waive all claims against each other for any consequential damages that may arise out of or
relate to this Contract. City agrees to waive consequential damages including but not limited
to the City's for loss of use of the Project, any rental expenses incurred, loss of income,
profit or financing related to the Project, as well as the loss of business, loss of financing,
loss of profits not related to this Project, loss of reputation, or insolvency. The CM@Risk
agrees to waive consequential damages including but not limited to for loss of business,
loss of financing, principal office overhead and expenses, loss of profits not related to this
Project, loss of bonding capacity, loss of reputation, or insolvency. The provisions of this
section shall also apply to the termination of this Contract and shall survive such
termination.

4.4 Project Schedule

4.4.1 The Project Schedule approved as part of a GMP shall be updated and
maintained throughout the Work.

4.4.2 The Project Schedule shall be revised as required by conditions and progress of
the Work, but such revisions shall not relieve CM@Risk of its obligations to complete the
Work within the Contract Time, as adjusted in accordance with the Contract Documents.

4.4.3 An updated Project Schedule shall be submitted monthly to the City as part of
the Payment Request. The monthly submittal shall include one full size plot of the entire
schedule and one computer disk containing the schedule in a format acceptable to the City.

4.44 CM@Risk shall provide City with a monthly status report with each Project
Schedule detailing the progress of the Work, including: (i) if the Work is proceeding
according to schedule, (ii) any discrepancies, conflicts, or ambiguities found to exist in the
Contract Documents that require resolution, and (iii) other information detailing items that
require resolution so as not to jeopardize the ability to complete the Work as presented in
the GMP and within the Contract Time.

4.4.5 With each Project Schedule submittal, the CM@Risk shall include a transmittal
letter including the following:

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e Description of problem tasks, referenced to field instructions or requests for
information (RFI’s), as appropriate

e Current and anticipated delays including:
e Cause of the delay
e Corrective action and schedule adjustments to correct the delay
e Known or potential impacts and their delay on other activities, milestones,
and their impact date of Final Completion
e Changes in construction sequence

e Pending items and status thereof including but not limited to:
e Time Extension requests
e Other items

e Final Completion date status:
e If ahead of schedule, the number of calendar days ahead
e If behind schedule, the number of calendar days behind

e Other Project or scheduling concerns.

446 City’s review of and response to the Project Schedule serves to ensure for
general conformance with the scheduling requirements of the Contract Documents. The
review shall not relieve the CM@Risk from compliance with the requirements of the
Contract Documents or be construed as relieving the CM@Risk of its complete and
exclusive control over the means, methods, sequences and techniques for executing the
Work.

4.4.7 The Project Schedule shall include a Critical Path Method (CPM) diagram
schedule showing the sequence of activities, the interdependence of each activity and
identifies the Critical Path.

44.8 The CPM diagram schedule shall be in Days and indicate duration, earliest and
latest start and finish dates for all activities, and total Float times for all activities except
critical activities. The CPM diagram shall be presented in a time scaled graphical format for
the Project as a whole.

4.4.9 The CPM diagram schedule shall indicate all relationships between activities.

4.4.10 The activities making up the schedule shall contain sufficient detail to assure
that adequate planning has been done for proper execution of the Work and such that it
provides an appropriate basis for monitoring and evaluating the progress of the Work.

4.4.11 The CPM diagram schedule shall be based upon activities, which coincide with
the schedule of values.

4.412 The CPM diagram schedule shall show all submittals associated with each
Work activity and the review time for each submittal.

4.4.13 The project schedule shall show milestones, including milestones for Owner-
furnished information, and shall include activities for Owner-furnished material and
construction by other contractors when those activities are interrelated with the CM@Risk
activities.

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4.4.14 The Project Schedule shall consider the City’s and the tenants’ use of portions
of the Project during Contract Time and prior to Final Acceptance.

4.4.15 Float time shall be as prescribed below:

4.4.15.1 The total Float time within the overall schedule, is not for the exclusive use of
either the City or the CM@Risk, but is jointly owned by both and is a resource available to
and shared by both parties as needed to meet contract milestones and the Project
completion date.

4.4.15.2 | The CM@Risk shall not sequester shared Float time through such strategies as
extending activity duration estimates to consume available Float, using preferential logic, or
using extensive crew/resource sequencing, etc. Since Float time within the schedule is
jointly owned, no time extensions will be granted nor delay damages paid until a delay
occurs which extends the Work beyond the Contract Time.

4.4.15.3 Since Float time within the schedule is jointly owned, it is acknowledged that
City-caused delays on the Project may be offset by City-caused time savings (i-e., critical
path submittals returned in less time than allowed by the contract, approval of substitution
requests and credit changes which result in savings of time to the CM@Risk, etc.). In such
an event, the CM@Risk shall not be entitled to receive a time extension or delay damages
until all City-caused time savings are exceeded and the Contract Time is also exceeded.

Article 5 - Contract Price

5.1 General

The CM@Risk agrees at his own proper cost and expense, to do all Work as aforesaid for
the construction of said improvements and to completely construct the same and install the
material therein, as called for by this Agreement free and clear of all claims, liens, and
charges whatsoever, in the manner and under the conditions specified within the time, or
times, stated in the approved Guaranteed Maximum Price.

5.2 Contract Price

5.2.1 The Contract Price will be as approved in the Guaranteed Maximum Price
proposal attached as Exhibit “C” an amount of Two Million, One Hundred Fifty Thousand
Dollars ($2,150,000) plus Owner's Contingency as described in Section 5.2.3 below, the
sum of which will be the full contract price for construction.

5.2.2 Guaranteed Maximum Price is composed of the following not-to-exceed lump
sum amounts defined below. The CMV@Risk is at risk to cover any additional Project costs;
excluding Owner's Contingency.

§.2.2.1 The Cost of the Work is actual costs and is a not-to-exceed reimbursable
amount.

§.2.2.2 The General Conditions costs and the Construction Fee are firm fixed lump
sums.

5.2.2.3 CM@Risk’s Contingency is an amount the CM@R may use under the following
conditions: (1) at its discretion to cover costs that have not been identified as a trade
specific scope on the GMP setting documents and may require further clarification or
coordination. These costs may include scope gap, coordination issues between trades, and

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cost growth during the project, or (2) with written approval of the City for increases in
General Condition Costs. CM@R’s Contingency is assumed to be a direct project cost and,
therefore, shall and shall be assumed to have received all markups at the time of GMP
submission. Construction Contingency does not account for design revisions or additional
scope requests made by the City or Design Professional.

5.2.2.3.1 At the time that CM@Risk’s Contingency is used by the CM@Risk, the
appropriate markups for overhead and profit will be applied.

§.2.2.3.2 | When the CM@Risk utilize CM@Risk’s Contingency funds, the CM@Risk shall
make the appropriate changes to the schedule of values with the next regular progress
payment request. The CM@Risk shall deduct the amount of CM@Risk’s Contingency funds
used from the CM@Risk’s Contingency line item and adding the same amount to the line
item on the schedule of values where the funds were used. If the CM@Risk’s Contingency
funds are used for a new line item that was not given with the original schedule of values,
that will be so indicated.

§.2.2.3.3 Any portion of the CM@Risk’s Contingency not utilized after Final Acceptance of
the project shall be retained by the City.

5.2.2.4 Taxes are deemed to include all sales, use, consumer and other taxes which
are legally enacted when negotiations of the GMP were concluded, whether or not yet
effective or merely scheduled to go into effect. Taxes are actual costs and are a firm fixed
lump sum.

5.2.3 Owner's Contingency funds are to be used at the sole discretion of the City.
Owner’s Contingency will be added to the Contract Price for approval by Council to cover
any increases in Project costs that result from City directed changes or unforeseen site
conditions. Owner's Contingency will be added to the GMP amount provided by the
CM@Risk, the sum of which will be the full contract price for construction. At the time that
Owner's Contingency is used, the appropriate markups per section 12 will be applied.

5.2.4 The GMP is subject to adjustments made in accordance with Article 6 and by
Change Orders to this Agreement.

5.2.4.1 GMP Change Orders are cumulative except for contingency.
5.2.4.2 If the GMP requires an adjustment due to changes in the Work, the cost of such
changes is determined subject to Article 6. The markups that shall be allowed on such

changes shall be no greater than the markups delineated in Article 6.6.

Article 6 - Changes to the Contract Price and Time

6.1 Delays to the Work

Delays and damages shall be determined in accordance with MAG Standard Specifications
Section 108.9. In addition if CM@Risk is delayed at any time in the commencement or
progress of the Work by any cause beyond the control of CM@Risk, CM@Risk shall be
entitled to an equitable extension of the Date of Final Completion, and related overhead and
expenses. Examples of causes beyond the control of CM@Risk include, but are not limited
to, the following: (a) acts or omissions of City or Design Professional; (b) changes in the
Work or the sequencing of the Work ordered by City, or arising from decisions of City that
impact the time of performance of the Work; (c) encountering Hazardous Materials, or
concealed or unknown conditions; (d) transportation delays not reasonably foreseeable; (e)
labor disputes not involving CM@Risk; (f) disruptions in labor or materials resulting from a

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