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CITY OF GLENDALE
CONSTRUCTION MANAGER AT RISK AGREEMENT
Project:
WEST AREA WATER RECLAMATION FACILITY IMPROVEMENTS
GMP2A
Project No.
171834
TABLE OF CONTENTS
SECTION
Definitions
Construction Services ....
Representatives and Key Personnel..
Documentts ......c:.sscceesssesseserseeesesansnsensseasseneeenenseeananeaneneseeeesseeseeesensseneeeneeeseseeesnaeasneenreeeeneseneaeeneereeeeenenaaeen 5
Guaranteed Maximum Price
Schedules.
Compensation ..
Progress Payments ..
Final Payment
Additional Terms and Condition of Payment .
Project Coordinator .
Subcontractors and other Lower Tier Persons
Self-Performed Work
Performance Standards
Regulatory Compliance.... .
Health and Safety .......cccsssssssessessssscsresnsresnecseessetsesananasnenaneenscaseenseaseecgeaeeesesenseseaeasssenesensneraraesanaseneanees
Permits .
Site..
Improper or Differing Conditions .
On-site City Activity
Inspection of Work..
Warranties
Liens and Stop Notices .....sesssssssssseesscseneneerensnsensenerensesnesencsenensenenesssasaesscasaessconenseneneseneionenronssensaesee 40
No Waiver
CMAR’s Warranties and Representations .
CMAR Relationship to City
Assignments
Taxation of Revenue Bonds
Indemnity
Insurance Requirement ...........scsssescssscsssssesssnesensenennsaneneneeanenseeceensensorsseesensensesassanaenesseasenareaneensneveene
Records
Equal Employment Opportunity ..
Termination
Miscellaneous
Conditions Precedent .........c.csceseseseeeseceesererscensacesanenseeecassenscuesencanecccesneesseccecensventeqesecasasecaaeanaseanenseetees
Eixhibits 0... cceescesssseseceseescsescsssesnssssesnssesesevencasenessencaceesnsvessessessrsssassssscesessssasenensasnsneansnenersneensneateraeasaee
CONSTRUCTION MANAGER AT RISK AGREEMENT
This Construction Manager at Risk Agreement (this "Agreement") is made by and between the City of
Glendale, an Arizona municipal corporation ("City"), and Hunter Contracting Co. , an
Arizona corporation, authorized to do business in the State of Arizona ("CMAR").
A.
RECITALS
City is undertaking the design and construction of a public works project, as described in detail
in Exhibit A, to benefit its citizens and visitors and the region generally (the "Project").
City has engaged Arcadis to prepare design, programs, budgets, and other criteria for the
project (the "Design Documents").
CMAR?’s Statement of Qualifications (“SOQ”) was submitted in response to the City’s Request
for Qualifications dated April 6, 2018. CMAR was selected by a qualification-based process
in accordance with Title 34 of the Arizona Revised Statutes.
City will engage CMAR under the terms of this Agreement to manage and be responsible for
the timely and proper construction and commissioning of the fully completed and functional
Project (the “Work’).
Hunter Contracting Co. was tetained to provide “value engineering” and “constructability”
reviews of the design documents pursuant to a separate contract. Hunter Contracting Co.
will therefore not be paid for suggesting additional design changes for this Project, as the City
has already paid for such professional services. Any further design changes shall be performed
by Hunter Contracting Co. at its own risk and own cost.
AGREEMENT
City, subject to the terms and conditions of this Agreement, hereby engages CMAR to construct the
Project.
follows:
1.
CMAR accepts this engagement as provided herein. Therefore, City and CMAR agree as
Definitions. For the purposes of this Contract, the following words and terms shall have
the respective meanings set forth below. All other words shall be given their ordinary and
common usage, unless otherwise noted.
a. "Change Order" means a written amendment to this Agreement, executed on behalf
of City and CMAR that specifies the Change, and the adjustment to the Contract Sum
and/or Contract Times.
b. "Construction Documents" means those stamped and sealed documents
containing all of the elements required in this Agreement and prepared by a registered
design professional in connection with the Work that have been accepted by both
CMAR and City and approved and released for construction by the applicable
governmental permitting authorities.
c. "Construction Materials" means all fixtures, materials, and supplies provided for
incorporation in the Project.
d. "Project Documents" include:
(A) this Agreement and any amendments,
(B) Design Documents,
©) Consttuction Documents,
@) any Change Orders, Change Directives, or Field Orders,
(>) Notice to Proceed,
® Project related specifications and drawings,
(G) permits,
(A) FFE Procurement Schedules,
a) provisions of the requited bonds and insurance policies, and
()) other documents identified in Exhibit A.
"Construction Services" means all procurement and construction services of every
kind and description, including all construction services, expertise, labor, materials,
equipment, tools, utilities, supervision, coordination, scheduling, permitting, shop
drawings, transportation, insurance, testing, inspection, procurement, installation and
other facilities and services of every kind and description, and calculations incidental
and required in connection therewith and as further described in Exhibit A.
“Excusable Delay” means a delay that the City determines has or will cause the
Project Schedule not to be met as a result of an event that is not attributable in any
manner to CMAR’s actions or inactions, or attributable in any manner to the actions
or inactions of any entity under CMAR’s control or direction, and cannot be avoided
or mitigated by CMAR’s best efforts. A Force Majeure, as defined in Section 6.7
herein, would constitute an Excusable Delay.
"FFE" means the furniture, fixtures, and moveable equipment and other items of
Work that are requited for the completed Project. City may distinguish between
furniture, fixtures, and moveable equipment that will be provided by City outside
CMAR’s scope and that which CMAR will provide as a part of this Agreement.
"Final Completion" means the date when all of the following have occutted:
(A) All punch list items have been completed to the satisfaction of the
governmental permitting authority;
(B) A permanent certificate of occupancy has been secured;
(C) The Architect of Record has accepted the Project and submitted the property
Certificate of Final Completion to City; and
(D) City has accepted the Project.
"Hazardous Substance" means any element, compound, mixture, solution, particle
ot substance which is or may become dangerous, or harmful to the health and welfare
of life or the physical environment if not used, stored or disposed of in accordance
with applicable law, such as, but not limited to, explosives, petroleum products,
radioactive materials, hazardous wastes, toxic substances, pollutants or contaminants,
including without limitation: (1) any substance or material included within the
definitions of “hazardous substances," "hazardous wastes," "special wastes,"
"regulated substances," "Hazardous Substances," “toxic substances," “hazardous
pollutants" or "toxic pollutants" in any of the Resource Conservation and Recovery
Act, 42 U.S.C. § 9601, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. 6901, the Toxic Substances Control Act, the
Clean Air Act and/or the Clean Water Act, as the foregoing may be amended from
time to time, or any regulations promulgated thereunder, and any analogous state,
local or other governmental laws, rules or regulations; (2) any "PCBs" or "PCB items,"
as defined in 40 CFR § 761.3; and (3) any "asbestos," as defined in 40 CFR § 763.63.
"Subcontractor" means any person or entity, including materialmen, that has a direct
contract with CMAR to furnish any element of the Work. The prime contractor of
CMAR is not a subcontractor.
k.
"Substantial Completion" of the Work means the date when all of the following
have occurred:
(A) The Work is approved by City and deemed by the City to be substantially
complete;
B) The applicable permitting authorities have each issued its respective written
approval(s) of the Work as being sufficiently complete so that it may lawfully
be occupied by City for City's intended use;
(Q The Architect of Record has accepted the Project and submitted the property
Certificate of Substantial Completion to City certifying that the work is
substantially complete; and
@) Subject only to specified punch list items.
“Supplier” means any entity, except the CMAR and a direct Subcontractor of the
CMAR, that is contracted to furnish any labor, equipment, professional services,
Construction Materials or other goods of services to accomplish or complete the
Work required in this Agreement.
"Vendor" means a Subcontractor or Supplier who sells, but does not attach or install
Construction Materials that are not specially manufactured or fabricated for the
Project.
"Withholding" means the amount of each Progress Payment, Final Payment, or
other amount otherwise payable to CMAR will be reduced for the reasons provided
in this Agreement.
“Work” means that activity required for the timely, cost-effective, and proper design,
engineering, construction, implementation and commission of the Project. Work
includes, and is the result of, CMAR performing, furnishing, and incorporating as
necessary all labor, materials, and equipment into the construction of the Project, and
CMAR performing, furnishing, or making provision for the services and documents
required by this Agreement, including and Project documents, which are incorporated
heteto by reference.
"Work Product" means the documents generated by CMAR and its Supplier(s),
including, but not limited to, all preliminaty and completed evaluations, programs,
reports, drawings, plans, operational documents or other work product in any media
or form that CMAR and its Supplier(s) generate, or arrange for, in connection with
the Project, together with the design of the buildings and structures embodied within
them, and all items and matters included within the definition of “architectural work"
as provided in 17 U.S.C. § 101.
Construction Services.
21
CMAR Obligation.
(A) CMAR will furnish all Construction Services, including those further
described in Exhibit A, that are necessaty for the Project’s timely and proper
construction, completion, and use by City.
B) Construction Services includes the completion of every improvement
depicted, required by or reasonably inferable from any portion of the Project
Documents.
Representatives and Key Personnel.
3.1
3.2
3.3
CMAR Representative.
(A) Responsibilities. CMAR's Representative is authorized to act on CMAR’s
behalf and may not be discharged, replaced or have diminished
responsibilities on the Project without City's prior consent, which may not
be unreasonably withheld.
B) Address. CMAR’s Representative address for Notice, as required in this
Agreement, is:
Hunter Contracting Co.
ATTN: Skip Page
701 North Cooper Road
Gilbert, AZ 85233
City’s Representative.
(A) Designation of City Representative. City's Representative is authorized to
act on City’s behalf, whose address for Notice, as required in this Agreement,
is:
Tom Kaczmatowski PE
Principal Engineer
City of Glendale
5850 W. Glendale Avenue, Suite 315
Glendale, Arizona 85301
With required copies to:
City Attorney
City of Glendale
City Attorney's Office
5850 W. Glendale Avenue, Suite 450
Glendale, Arizona 85301
(B) Concurrent Notices.
(1) Except to the extent otherwise directed to CMAR in writing, all
Notices to City's Representative must be given concurrently to the
Project Coordinator and City Attorney.
(2) Notices are not considered received by City's Representative until
the time that it has also been received by the Project Coordinator
and City Attorney.
(C) Construction Administration Projec| Manaver. The Construction
Administration representative (the "Project Managet") with authority to act
for the Construction Administration Firm for the Project whose information
fot Notices is:
Brian Bubela PE
Arcadis
410 North 44% Street, Suite 1000
Phoenix, AZ 85008
Email: brian.bubela@arcadis.com
Key Personnel.
4,
(A) Employment of Key Personnel. CMAR and its Subcontractors will employ
key personnel in connection with the Work, in categories of persons
identified in Exhibit B (collectively, "Key Personnel") and each of whom
will be acceptable to and approved by City.
(B) Approval of Key Petsonnel.
(dy All personnel listed in CMAR’s SOQ will be assigned to the Project
and will be dedicated to performing work on the Project at not less
than the frequency or amount of time identified in the SOQ.
(2) Prior to the commencement of the Work, CMAR must deliver to
City a written proposal identifying the names, duties and titles, and
attaching the resumes of each person who CMAR proposes as the
Key Personnel.
(3) Except for those Key Personnel identified in the SOQ, City will have
the right to disapprove CMAR's choice of any Key Personnel,
provided City does so by giving written notice to CMAR.
(4) If City disapproves any of CMAR's proposed Key Personnel, CMAR
must provide City with the name and qualifications of proposed
alternates and the procedure will continue until a complement of
Key Personnel who meet with City's approval is selected.
(5) Each Key Personnel will remain assigned to the Project throughout
the Project’s duration; and
(6) As long as each Key Personnel remains employed by CMAR or its
Subcontractors, he or she must not be discharged, reassigned,
replaced, ot have his or her responsibility diminished without City's
prior written consent.
Documents.
4.1
4.2
CMAR Documents. CMAR represents that it has carefully examined, has had the
opportunity to object to, and had the opportunity to obtain limitations to the
Solicitation during the RFQ process, and fully understands this Agreement, including
CMAR Documents and all other items, conditions, and things that may affect the
performance of its obligations. Such items or conditions may include, but are not
limited to, the nature or local field conditions of the Project Site that are observable
to CMAR without intrusive inspection, or ate documented in any environmental
reports, surveys and other information regarding the Site that City has furnished to
CMAR,
Design Documents. AGC has already reviewed Design Documents undet a
separate professional services contract with the City. Accordingly:
(A) CMAR must consider the Design Documents in agreeing to the Guaranteed
Maximum Price (as required by Section 5 of this Agreement).
(B) CMAR hereby waives all claims, demands or requirements for extras or
changes to the Work or the Guaranteed Maximum Price based on facts
telated to the Site that were discoverable by CMAR prior to the Effective
Date of this Agreement.
(C) CMAR will not receive any additional compensation for a change to the
design documents unless such changes ate necessitated by new information
or changed conditions discovered during the course of performing the work,
as provided in Section 20.3 herein.
4.3 Work Product Formatting. Any drawings created by CMAR, its Subcontractors, or
its Supplier(s) will be generated and furnished to City in hardcopy and in freely
modifiable AutoCAD format, as City may reasonably request.
44 Intellectual Property Rights Assignment. CMAR hereby irrevocably conveys and
assigns to City the exclusive Ownership of, and copyright in, any Work Product that
is generated by CMAR, its Subcontractors, and its Supplier(s) in connection with the
Project, together with all copyright renewals and extensions and the right to
reproduce, publish, modify, and create and publish derivative works from the Work
Product.
A)
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©)
Use of Intellectual Property. CMAR warrants that it, its Subcontractors, and
its Supplier(s) will not utilize any of the Work Product in connection with
any other project without City’s prior written consent, which may not be
unreasonably withheld but which may be denied to the extent the requested
use is for the other project and involves any unique or signature elements of
the Project.
Non-Inftingement. CMAR further watrants to City that all Work Product
generated or arranged for by CMAR, its Subcontractors, and its Supplier(s)
in connection with the Project, and CMAR's conveyance and assignment to
City of the ownership of, and copyrights in, the Work Product and/or
copyrights in them, as provided in this section, will not infringe on the
copyrights or another party’s contractual or proprietary interests.
CMAR will include provisions equivalent to the provision(s) contained in this
Section 4 of this Agreement in each of CMAR's subcontracts and thitd party
agreements with its Suppliers.
Guaranteed Maximum Price. The maximum amount for completion of the Work as
required by the Design Documents, as reviewed, modified and approved by CMAR, will be
the Guaranteed Maximum Price (“GMP”).
5.1 GMP Elements. The GMP will incorporate into one amount:
(A)
8)
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)
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All CMAR's direct and indirect costs and expenses incurred in connection
with the Work, whether at the home office, Site, or elsewhete;
The cost of all construction, construction materials, engineering services,
architectural services, geotechnical services, transportation costs, labor,
supplies, services, equipment and other elements necessaty for the Project’s
proper and timely completion;
All profit, home office overhead, job site overhead, wages, salaries and fringe
benefits paid to supervisory and other employees and representatives;
Job trailer rental, utilities, telephone, and other related expenses;
Printing;
Long distance charges;
Deliveries;
Transportation;
Insurance, as allowed in Section 31 of this Agreement;
5.2
5.3
5.4
5.5
5.6
op) Bonds, as allowed in Section 31 of this Agreement;
09) All building permit costs and fees required by any federal, state or local
governmental entity;
L) All federal, state and local taxes imposed on labor, construction materials,
equipment and services furnished, including transaction privilege, excise,
sales, use, personal property and similar taxes, as allowed in Section 7.4 of
this Agreement; and
(M) All other general and administrative expenses incurred in connection with
the Work.
Insurance and Bond Premiums. CMAR's Reimbursable Construction Insurance
and Bond Premiums are the amounts equal to the premiums CMAR is required to
pay to secure:
(A) The Builder's Risk Policy that CMAR is requited to furnish with City's
approval as provided in this Agreement;
(B) The liability insurance CMAR and its Supplier(s) are required to furnish under
the provisions of Exhibit E in connection with the Construction Services;
and
(C) CMAR's statutory payment and performance bonds as provided in Section
31.3 of this Agreement, if the premium has been included in the GMP
Schedule approved in writing by City.
Contingencies. Any line item identified in the GMP Schedule as a contingency
("Contingency") belongs solely to City, and may not be drawn upon or reallocated by
CMAR without City and Project Coordinator’s prior written approval.
(A) Draws Including 9 Contingency. CMAR must include with each monthly
Application for Progress Payment an itemization of each draw from the
Contingency (by date, payee, purpose and amount of each transfer or
payment) made during the Billing Month, together with a copy of City's
written approval for the draw.
(B) Required Designation of Contingency. Unless the GMP Schedule
conspicuously designates a line item as a “contingency,” the GMP does not
include any contingency amount of any kind or nature.
Allowance. There are no line item costs identified as allowances in the GMP
Schedule ("Allowance Item"). Accordingly, the GMP may only be increased or
decreased by a wtitten amendment to this Agreement, signed by both of the Parties.
Unit Priced Items. There are no line item costs identified as a unit price item ("Unit
Price Item") or extended price ("Unit Price Extension Amount") in the GMP
Schedule. Accordingly, the GMP may only modified to include a Unit Price Item or
a Unit Price Extension Amount by a written amendment to this Agreement, signed
by both of the Parties.
FFE. FFE not specified in the Construction Documents will be procured in
accordance with the FFE Procurement Schedules to be developed by CMAR subject
to CMAR and City’s mutual agreement.
(A) FFE Warranty. CMAR warrants to City that:
() Construction materials and equipment and FFE furnished under this
Agreement will be of good quality and new unless otherwise required
5.7
5.8
5.9
or permitted by the Construction Documents and the FFE
Procurement Schedules;
(2) The construction will be free from faults and defects; and
(3) The construction and FFE will conform to this Agreement’s
requirements, the Construction Documents, and the FFE
Procurement Schedules.
(B) Correction of Nonconforminy FFE. Construction and FFE not conforming
to these requirements, including substitutions not properly approved by City,
must be corrected in accordance with Section 22 and 23 of this Agreement.
(C) "FFE Procurement Schedules" means the interior design drawings and
listings of specific FFE to be purchased for the Project.
CMAR Risk. CMAR bears the sole risk that any element of cost, overhead, or profit
might cause the Guaranteed Maximum Price to be exceeded. If the GMP is exceeded,
the City is not liable for such additional cost or expense unless the City agrees to such
a change in an amendment to this Agreement signed by both of the Parties.
GMP Savings. If, upon the Work’s Final Completion, the Contract Sum is less than
an amount equal to the GMP, the resulting amount will belong solely to City.
GMP Schedule. The GMP is apportioned among the Work’s various elements as
provided in Exhibit C (the "GMP Schedule"). Exhibit C may be used by City as a
basis for evaluating CMAR's Applications for Progress Payment. To the extent there
is any inconsistency between any of the provisions in Exhibit C, and any of this
Agrteement’s provisions, this Agreement’s provisions govern.
Schedules.
61
6.2
6.3
Commencement Date. The date of City’s written notice to proceed ("Notice to
Proceed") will be the Construction Services commencement date.
(A) City will not issue a Notice to Proceed until City has approved the applicable
Construction Documents, and all necessary Permits have been issued.
(B) CMAR must not commence any Construction Setvices at the Site until City
has issued a written Notice to Proceed.
Time of the Essence. Time is of the essence in completing the Project.
Project Schedule. CMAR must perform the Work in a logical and efficient manner
in accordance with City’s project schedule ("Project Schedule"), attached as
Exhibit D.
(A) Initial Project Schedule. Within 15 days of the execution of this Agreement,
CMAR must submit an initial Project Schedule, which will include the
following:
(1) Times (number of days or dates) for starting and completing the
various stages of the Work, including milestones as specified in
CMAR Documents;
(2) A Schedule of Values; and
(3) Construction Management Plan (“CMP”).
(a) CMAR’s CMP will include:
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(a)
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(vi)
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Project milestone dates and the Project Schedule,
including the broad sequencing of the construction
of the Project;
Investigations, if any, to be undertaken to ascertain
subsurface conditions and physical conditions of
existing surface and subsurface facilities, including
underground utilities;
Alternate strategies for fast tracking and/or
phasing the construction;
Number of separate sub-agreements to be awarded
to Subcontractors and Suppliers for the Project
construction;
Permitting strategy;
Safety and training programs,
Construction quality control;
Commissioning program;
Cost estimate and basis of the model; and
A matrix summarizing each Project Team
member’s responsibilities and roles.
(b) During the course of performance of the Work on this
Project, CMR will add detail to its previous version of the
CMP to keep it current throughout the construction phase
and to take into account:
@)
Gi)
(iii)
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)
(vi)
(vit
Revisions in Drawings and Specifications;
CMAR's examination of the results of any
additional investigatory reports of subsurface
conditions, drawings of physical conditions of
existing sutface and subsurface facilities and
documents depicting underground _ utilities
placement and physical condition, whether
obtained by City, Design Professional or CMAR;
Unresolved permitting issues, and significant
issues, if any, pertaining to the acquisition of land
and right of way;
Fast-tracking, if any, of the construction, or other
chosen construction delivery methods,
Requisite number of separate bidding documents
to be advertised;
Status of the procurement of long-lead time
equipment (if any) and/or materials; and
Funding issues identified by City.
Adherence to Project Schedule. CMAR must adhere to the major milestone
dates of the Project Schedule at all times during the Work, unless it has
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received City's prior written approval for a deviation from or modification to
the major milestone dates of the Project Schedule. CMAR must not depatt
from the majot milestone dates of the Project Schedule without prior
consultation with and approval from City.
Project Schedule Revision. The Project Schedule must be revised at least
monthly, or at more frequent intervals as required by the conditions of the
Work and Project, but each Project Schedule revision must allow for
expeditious and practicable execution of the Work consistent with the
Conttact Times.
(1) The monthly revision will be a condition precedent to any payment
otherwise due to CMAR.
(2) Each revised Project Schedule must be prepared in sufficient detail
to demonstrate for each element of the work its timing, duration,
and sequence, all integrated to show a logical order and reasonable
critical path consistent with the Substantial Completion and Final
Completion Dates.
(a) The tevised Project Schedule may take into account an
appropriate number of weather delays reasonably
anticipatable based on experience in the atea, but not less
than one day per month.
(b) Each revised Project Schedule must include activities and
logic for mitigating the cost and time impact of any
anticipated or potential delays to any critical path elements
that CMAR wishes City to consider an Excusable Delay.
Weekly Progress Meeting. From the Effective Date until Final Completion,
CMAR will meet with City every week (or more or less frequently, as
requested by City or CMAR) to review the Work’s progress.
(1) Tn advance of each such meeting, CMAR must provide City a written
progress report in the format and detail as provided in Exhibit D
(each a “Progress Report”).
(a) The Progress report will identify:
(i Whether the Work is on schedule in accordance
with the Project Schedule; or
(ii) Whether there ate anticipated or potential delays to
any critical path elements in the . Work’s
construction, then CMAR must include an analysis
identifying CMAR’s plan for making up or
mitigating the delay.
(b) Unless a delay is identified in the Progress Report, CMAR’s
Progress Report will be its certification that it has not
incurred any delays to the critical path elements at least to
the extent that a cause for the delay can then be reasonably
identified.
(2) Unless the delay is an Excusable Delay, CMAR must take all actions,
at its expense, including working overtime and hiring additional
personnel, to comply with such Project Schedule.
10
6.4
6.5
GB) If the delay is an Excusable Delay, the Project Schedule may be
modified to the extent mutually agreed upon by City and CMAR.
(4) Notwithstanding any provision to the contrary in this Agreement,
CMAR is solely responsible for the timing, sequencing,
coordination, and supervision of the Work consistent with the
Substantial Completion and Final Completion Dates.
(5) City's review, acceptance or approval of a Project Schedule ot
Progtess Report provided by CMAR is not:
(a) A waiver or bar to any tights or claims City may have against
CMAR in the event City subsequently discovers a deficiency
in such Project Schedule or Progress Report; and
(b) An acceptance of any delay as an Excused Delay, which may
only be granted, along with any extension of time, by a
Change Directive or amendment to this Agreement.
Substantial Completion Notification. CMAR will notify City and Project
Coordinator in writing when CMAR, Architect of Record, and Engineer of Record
believe that CMAR has accomplished Substantial Completion of the Project.
(A)
(8)
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Incomplete Items. If City concurs the Substantial Completion has been
accomplished, City, Project Coordinator, CMAR, Architect of Record, and
Engineer of Record will determine whether any items remain incomplete.
Certificate_of Substantial Completion. If City concurs the Substantial
Completion has been accomplished, Architect of Record, and Engineer of
Record will then each issue a “Certificate of Substantial Completion” to City,
which will:
(1) Record the Substantial Completion date as determined by City;
(2) State each party’s responsibility for security, maintenance, air
conditioning, heat, utilities, damage to the Work and insurance;
(3) Include a list of items identified by City, CMAR, Architect of Record
and Engineer of Record to be completed or corrected; and
(4) Fix a reasonable period of time for their inspection.
Disagreement as to Substantial Completion. Disagreemnents between City
and CMAR regarding the Certificate of Substantial Completion will be
resolved in accordance with provisions of Section 11 of this Agreement.
Substantial Completion. CMAR must accomplish substantial completion by 365
days after issuance of Notice to Proceed letter by the City (the "Substantial
Completion Date").
(A)
®)
Extensions. The Substantial Completion and Final Completion Dates
("Contract Time") may be extended for cause, or by Change Order, as
provided in Section 6.7 of this Agreement.
Failure to Meet Substantial Completion Date. City will be substantially
damaged if CMAR fails to accomplish Substantial Completion of the Work
by the Substantial Completion Date, and it will be extremely difficult and
impractical to ascettain the actual damages resulting from such delay;
therefore:
11
6.6
6.7
ed) CMAR will pay City liquidated damages ("Liquidated Damages") in
the event of a delay.
(2) Accordingly, if CMAR fails to accomplish Substantial Completion
by the Substantial Completion Date, as it is extended in a signed
writing by both parties, in accordance with this Agreement, City may
assess, and CMAR must pay to City as Liquidated Damages, $1420
for each day of delay until CMAR accomplishes Substantial
Completion.
QB) CMAR acknowledges that these sums:
a) Will be paid as Liquidated Damages and not as a penalty;
(b) Are reasonable under the circumstances existing as of the
Effective Date; and
(c) Are based on the patties’ best estimate of damages City
would likely suffer in the event of a delay.
(4) CMAR must pay City any Liquidated Damages within ten (10) days
after demand, or City may deduct these sums from any monies due
or that may become due to CMAR under this Agreement.
(5) City’s collection of Liquidated Damages will not affect its rights to
seek other remedies in law or at equity, including but not limited to
exercising its rights under the Payment and Performance Bonds.
Final Completion. Final Completion must be accomplished by 90 days after
issuance of Substantial Completion by the City (the "Final Completion Date").
(A)
8)
Extensions. The Final Completion and Final Completion Dates may be
extended for cause, by Change Order or other amendment of this
Agreement, as provided in Section 6.7 below.
Failure to Meet Final Completion Date. If CMAR does not accomplish Final
Completion by the Final Completion Date, as it is extended in accordance
with this Agreement, City may thereafter take control of the Site, effective
upon delivery of written Notice to CMAR , and City may exercise its rights
under the terms of any Payment or Performance Bond, and seek any remedy
in law or at equity, including engaging other contractors to complete the
remaining Work, at CMAR's expense.
(1) City may deduct its resulting expenses plus 20% from amounts
otherwise payable to CMAR.
(2) CMAR must pay any amounts not so deducted within ten (10) days
after demand.
Completion Dates Extension. The Substantial Completion and Final Completion
Dates may be equitably extended by a written, signed amendment to this
Agteement. Causes for extending the completion dates may inchide:
(A)
City Delay. Any of the following (each a “City Delay”) to the extent they
necessarily result in unreasonable delays that are not caused or contributed
to by CMAR:
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63) City’s failure to make a decision regarding a major milestone item
within a reasonable time (not exceed 10 days) after written request
from CMAR accompanied by all documents and other information
necessary for making the decision; or
2 Any material breach of this Agreement by City.
y gr yy City
(B) Force Majeure. The following items shall constitute a force majeure ("Force
Majeure") event, provided they are not caused or contributed to by CMAR,
or by any Subcontractor, Supplier or other person or entity for whom CMAR
is responsible:
(1) Fire;
(2) War;
@B) Damage or disruption committed on behalf of any foreign interests
to further international political objectives;
(4) Injunction in connection with litigation, governmental action;
6) Severe and adverse weather conditions beyond those that can be
reasonably anticipated as of the Effective Date of this Agreement.
© Excusable Delay. The Substantial and Final Completion Dates may be
extended by the number of days the City, in its sole discretion, determines is
an Excusable Delay, as such term is defined in Section 1(g,) of this
Agreement.
@) Mitigation of Delays. CMAR must use its best efforts to minimize any such
time and cost impact of delays and must cooperate with City to mitigate the
impact of any delays encountered by CMAR that would entitle it to an
extension of time, even if its performance is unreasonably delayed by City.
®&) Remedies for Delays.
() Pursuant to A.R.S. § 34-607 (B), the parties agree to negotiate in good
faith any increased costs incurred by CMAR for any unreasonable
delay that is attributable solely to a delay caused by City; however,
CMAR will not be entitled to additional funds for any increase in
cost due to any type of delay.
(2) CMAR's sole and exclusive remedy for a Force Majeure event is an
extension of time.
Compensation.
7A Contract Sum. The City shall pay $9,251,838.52 a contract sum not to exceed the
7.2
GMP for its performance of the Work under this Contract.
Cost Contract Sum is calculated by adding the Construction Services plus the
CMAR’s Fee (as defined in Section 7.2) and the amount paid for FFE
Services (as defined in Section 1(h.) herein). In no event shall the Contract
Sum exceed the GMP $9,251,838.52.
CMAR's Fee. CMAR's Fee is the sole and exclusive compensation for CMAR's
direct and/or indirect profit, home office overhead expense including, without
limitation, home office administration, accounting, support, clerical services,
insurance not specifically reimbursable under this Agreement, rent, all other direct
and indirect home office expenses (including the costs specifically identified by
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7.3
CMAR to recruit and relocate employees and bonuses (at a not-to-exceed amount)
that are previously approved by City as reimbursable); taxes other than reimbursable
payroll related taxes and any other cost or expense not specifically included within the
Cost of Consttuction Services.
Cost Fee may not exceed 9% of the Construction Services minus Privilege
Taxes and CMAR’s Reimbursable Construction Insurance and Bond
Premiums, as specified by Section 5.2 of this Agreement.
Construction Services Cost.
(A) Costs included in Consttuction Services. Construction Services Cost consists
of the expenses incurred and paid by CMAR in the Project’s proper and
timely construction for:
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2)
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(4)
6)
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Payments to City-approved Subcontractors or Supplier for the
performance of the Consttuction Services and/or the furnishing of
Construction Materials, fixtures, equipment and supplies in
accordance with the provisions of their respective Subconttacts or
Sub-subcontracts;
Wages, salaries and normal fringe benefits (as approved by City), and
normal employer taxes paid by CMAR thereon, of CMAR's
supervisory staff and general field labor assigned to the Work, but
only for the portion of time actually devoted to the Work, all subject
to and as approved in writing by City, provided such costs are not
included in the costs to be paid from CMAR’s Fee per Section 7.2
of this Agreement,
Elements of the Construction Services to be self-performed by
CMAR with City's approval, in amounts approved by City (which
will not include any mark-up for CMAR's Fee);
Permit, licenses, connection fees, and other such fees to the extent
required by any governmental entity;
Construction Materials suitably stored on the Site with City's
approval as provided in Section 12.5 of this Agreement;
Construction equipment used on the Site by CMAR with City's
approval, at tates not to exceed the lesser of:
(a) The prevailing tates charged by others for rental of similar
equipment; or
(b) The purchase price of the Construction equipment less the
teasonable depreciation in value of that equipment as a
result of its use on the Site;
Construction utilities, job site telephone, job trailer rental, portable
toilets, dumpsters, cleanup and other job site general conditions as
approved by City;
Premiums paid by CMAR for Reimbursable Construction Insurance
and Bond Premiums as provided in Section 5.2 of this Agreement,
without any markup for CMAR's Fee;
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®)
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(10)
Any other reasonable construction expense necessarily required for
proper performance of the Work at the Site required by this
Agteement as approved in writing by City; and
Reimbursable Privilege Taxes, without any mark up for CMAR's
Fee. Expenses that do not meet the criteria set forth above are not
reimbursable as Costs. All discounts teceived by CMAR from
Supplier accrue to City’s benefit.
Cost Excluded from Construction Services. The Cost of the Construction
Services may not include reimbursement for:
@)
2)
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(4)
6)
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7)
8)
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(10)
(11)
(12)
(13)
(14)
Any amounts for FFE Services,
The performance of any Construction Services by CMAR's own
forces or use of any equipment owned by CMAR without City's prior
written approval;
Any Construction Materials not yet incorporated in the Project or
stored at the Site with City's approval, as defined in Section 12.5(A)
of this Agreement;
Payment to CMAR ot a subcontractor or supplier of amounts in
excess of the amounts approved by the City for CMAR's self-
performed Construction Services or for such performance by a
subcontractor or supplier;
Repair or replacement of defective or nonconforming Work;
Repair ot replacement of Work damaged by the negligence or failure
to perform a responsibility hereunder by CMAR or by any Supplier;
Any interest or penalties;
Premiums for business automobile insurance, workers
compensation and employers liability insurance, and any general
liability and other insurance normally carried by CMAR;
Any legal expense incurred by CMAR;
Any other home office expense;
Any expense that causes the GMP, as amended, to be exceeded; or
CMAR’s Fee or any Privilege Tax(es);
Any other expense that does not meet the criteria set forth in Section
7.3(A) of this Agreement, and
Any costs associated with changes to the Design or Design
Documents that were not required by the discovery of new
information or changed conditions duting the construction of the
Project, as provided in Section 20.3 herein.
Schedule of Rates. City will consider approving written schedules of rates
upon which CMAR may base its monthly estimated costs for purposes of
Applications for Progress Payment of certain Construction Services costs,
such as supervisory salaties and equipment; but only on condition that
adoption of any schedule for these purposes is subject to audit and
adjustment necessary to reflect the actual costs of these items to CMAR.
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74 Taxes.
(A)
(8)
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Reimbursement.
(1) Provided such payments do not cause the CMAR to exceed the
GMP, City will reimburse CMAR for Privilege Taxes paid by
CMAR on gtoss receipts received by CMAR. Such payments may
be made by the City if Privilege Taxes were timely paid by CMAR
and are not otherwise exempt from such taxation.
(2) Provided such payments do not cause the CMAR to exceed the
GMP, City will reimburse CMAR for Privilege Taxes paid by
CMAR on amounts received from City for the direct costs paid by
its Subcontractors for FFE. City will not reimburse CMAR for any
amounts paid as and for Privilege Taxes by CMAR to its Suppliet(s)
ot by a Supplier to another Supplier, or for any markup for profit
and overhead for costs paid to Subcontractors.
Application.
(1) Each Application for Progress Payment and Application for Final
Payment will separately identify that part which represents FFE.
(2) CMAR and its Supplier(s) will not report transaction privilege or use
taxes paid for FFE.
(3) CMAR will not seek reimbursement for Privilege Taxes computed
on receipts for these expenses.
Tax Licenses. CMAR must take all steps necessary to obtain state and local
retail tax licenses, issue exemption certificates to vendors, and otherwise
perfect its right to be exempt from the payment of Privilege Tax for FFE
purchases, and CMAR must require its Supplier(s) to also obtain state and
tetail tax licenses, issue exemption certificates to vendors, and otherwise
perfect their rights to be exempt from the payment of Privilege Tax for FFE
purchases.
7.5 FFE Services.
(A)
8)
8. Payments.
The amount to be paid to CMAR for the FFE Services will be an amount
equal to the direct expenses (exclusive of any Privilege Taxes) paid by CMAR
(or by a Subcontractor or Supplier) for the FFE, without markup for profit
ot overhead of CMAR (or of the Subcontractor or Supplier).
"FFE Services" means interior design of the Project and the procurement of
the FFE.
8.1 Cash Flow Report.
(A)
8)
CMAR will prepare a Cash Flow Report for projected monthly project cash
flow on the form provided by City.
The Cash Flow Report will be submitted for approval prior to issuance of
the Notice to Proceed, as issued in accordance with Section 6 of this
Agreement.
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8.2
8.3
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The Cash Flow Report will be updated and submitted with each Application
for Progress Payment and at any time City requests if the projected monthly
project cash flow varies by more than 10% of the GMP.
The Cash Flow Report will reflect the following:
(1) Initially, the accumulation of month pay estimates costs will be
plotted versus time in accordance with the proposed construction
schedule; and
(2) For each update, CMAR’s actual month payment versus the actual
elapsed time on the Project.
Draft Application for Progress Payment. Based on draft applications (each a
"Draft Application") followed by formal applications for progress payment (each an
"Application for Progress Payment"), City will make monthly progress payments on
Contract Sum account as provided in this Section. The Draft Application is for
informational purposes only and its submission is not an Application for Progress
Payment.
A
B)
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Period. The period covered by each Application for Progress Payment will
be one calendar month (the "Billing Month") ending on the last day of each
month.
Date for Submission. On or before the 25% day of each Billing Month,
CMAR will submit to City its Draft Application, which must identify all
amounts CMAR expects to invoice for the entire Billing Month.
Review Meeting. The parties will thereafter meet and make good faith efforts
to reach agreement on the Draft Application by the end of the Billing Month,
whereupon CMAR will formalize its Application for Progress Payment for
the Billing Month, incorporating all of the agreements reached during the
patties’ review of the Draft Application.
Application for Progress Payment. Provided that CMAR has submitted its Draft
Application for review as provided above, CMAR may submit its Application for
Progtess Payment for the Billing Month to City, no earlier than the 1st day of the
month following the Billing Month.
(A)
8)
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Date for Submission. City will make a Progress Payment, subject to
applicable Withholdings, to CMAR not later than 21 days after the date on
which the Application for Progress Payment has been received by City,
subject to this Agreement.
One Progress Payment Per Month. Unless City agrees otherwise, CMAR
may submit only one Application for Progress Payment in a month and City
will make only one Progress Payment in a month to CMAR.
Progtess Payment Application Form. The Application for Progress Payment
will be in such form as City may reasonably require, and will be accompanied
by the following to City's reasonable satisfaction:
(4) A sworn statement of the Cost of the Work furnished during the
Billing Month, together with the required form of application as City
requires, properly completed so as to allocate all Construction
Services and FFE Services according to the most recent City-
approved GMP Schedule;
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&)
(G)
cy
(2) An itemized report of the Work performed during the Billing
Month;
6) Proof of CMAR's compliance with testing, submittals, permits, and
other requirements applicable to the Work requested by City;
(4) Conditional and unconditional waivers and releases from CMAR
and from Subcontractors, Supplier, vendors, and others relating to
Work for which the Application for Progress payment is requested,
or receipt of amounts for which payment has previously been made,
as tequested by City;
(5) Payrolls, petty cash accounts, receipted invoices of invoices with
check vouchers attached, payrolls, requisitions from Subcontractors
and material suppliers, vendors receipted invoices, purchase orders,
and delivery tickets;
(6) CMAR's monthly updated Project Schedule as provided in Section 6
of this Agreement; and
(7) Such other evidence substantiating the particulars of CMAR's
Application for Progress Payment as may be required by City.
Complete Application Required. A complete Application for Progress
Payment, including all required documentation, will be a condition precedent
to CMAR's right to have the Application for Progress Payment reviewed or
to receive any Progress Payments.
Incomplete or Untimely Applications. If CMAR submits an Application for
Progress Payment that is incomplete or untimely, in City’s reasonable
judgment, CMAR must resubmit the Application for Progress Payment, with
any applicable corrections.
Correspondence to Other Documents. CMAR's Application for Progress
Payment must be otganized so that all back-up for each line item of the
Application for Payment corresponds to the most tecently City-approved
GMP Schedule and that the back-up for the amount requested for each item
of the Construction Services, and FFE Services, and each Change Directive
ot Change Order is separately provided for and is available for review by City.
Certification. The Application for Progress Payment must be signed by
CMAR, the Architect of Record or the Engineer of Record certifying that:
(A) The Work has progressed to the point indicated in the Application
for Progress Payment;
(2) That the Work is in accordance with the Project Documents;
(3) CMAR is entitled to payment in the amount requested; and
(4) Applications for Progress Payment to City will not be deemed
delivered until actually received by City.
Review of Work by City. City will have the right to review the Work after
receipt of CMAR's application.
(1) Within three business days after receipt of the Application for
Progress Payment, City will prepare and issue a written statement
("Deficiency Notice") specifying those items covered by the
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