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CITY OF GLENDALE, ARIZONA
ENGINEERING DEPARTMENT
BETHANY HOME ROAD DRAINAGE
IMPROVEMENTS
CONSTRUCTION MANAGER AT RISK
DESIGN PHASE AND
PRECONSTRUCTION SERVICES
PROJECT NO. 202105
TABLE OF CONTENTS
ARTICLE
PAGE
RECITALS
1
AGREEMENT
1
ARTICLE 1 – TERMS AND DEFINITIONS
1
ARTICLE 2 – BASIC DESIGN PHASE SERVICES
4
2.1
GENERAL
4
2.2
CONSTRUCTION MANAGEMENT PLAN
4
2.3
PROJECT SCHEDULE
5
2.4
DESIGN DOCUMENT REVIEWS
6
2.5
COST ESTIMATES
7
2.6
GUARANTEED MAXIMUM PRICE (GMP) PROPOSALS
7
2.7
GMP PROPOSALS REVIEW AND APPROVALS
8
2.8
SUBCONTRACTOR AND MAJOR SUPPLIER SELECTIONS
9
ARTICLE 3 – PERIOD OF SERVICES
10
ARTICLE 4 – CONTRACT AMOUNT AND PAYMENTS
10
4.1
CONTRACT AMOUNT
10
4.2
PAYMENTS
11
4.3
ADDITIONAL DESIGN SERVICES
11
ARTICLE 5 – CITY’S RESPONSIBILITIES
12
ARTICLE 6 – ADDITIONAL CONTRACT PROVISIONS
12
6.1
PROJECT DOCUMENTS AND COPYRIGHTS
12
6.2
COMPLETENESS AND ACCURACY OF CM@RISK’S WORK
13
6.3
ALTERATION IN CHARTACTER OF WORK
13
6.4
DATA CONFIDENTIALITY
13
6.5
PROJECT STAFFING
14
6.6
INDEPENDENT CONTRACTOR
14
6.7
TERMINATION
14
6.8
DISPUTES
15
6.9
WITHHOLDING PAYMENT
16
6.10 RECORDS/AUDIT
16
6.11 INDEMNIFICATION
17
6.12 NOTICES
18
6.13 COMPLIANCE WITH FEDERAL LAWS
18
6.14 CONFLICT OF INTEREST
18
6.15 CONTRACTOR’S LICENSE AND PRIVILEGE LICENSE
19
6.16 SUCCESSORS AND ASSIGNS
19
6.17 FORCE MAJEURE
19
6.18 COVENANT AGAINST CONTINGENT FEES
20
6.19 NON-WAIVER PROVISION
20
6.20 JURISDICTION
20
6.21 SURVIVAL
20
6.22 MODIFICATION
20
6.23 SEVERABILITY
20
6.24 INTEGRATION
20
6.25 TIME IS OF THE ESSENCE
20
6.26 THIRD PARTY BENEFICIARY
20
6.27 COOPERATION AND FURTHER DOCUMENTATION
21
6.28 CONFLICT IN LANGUAGE
21
6.29 CITY’S RIGHT OF CANCELLATION
21
ARTICLE 7 – INSURANCE
21
7.1
MINIMUM SCOPE AND LIMITS OF INSURANCE
22
7.2
OTHER INSURANCE REQUIREMENTS
22
7.3
SUBCONSULTANT INSURANCE
23
7.4
NOTICE OF CANCELLATION
23
7.5
ACCEPTABILITY OF INSURERS
23
7.6
VERIFICATION OF COVERAGE
23
7.7
APPROVAL
24
EXHIBIT A – PROJECT DESCRIPTION
26
EXHIBIT B – HOURLY RATE SCHEDULE
27
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 1
CITY OF GLENDALE
(Bethany Homes Rd. Drainage
Improvements)
CONSTRUCTION MANAGER AT RISK
DESIGN PHASE SERVICES
PROJECT NO. 202105
THIS AGREEMENT made and entered into this day of
, 2022 by and between City of
Glendale, an Arizona municipal corporation, hereinafter designated the “CITY” and Haydon Building Corp,
an Arizona corporation, hereinafter designated “CONSTRUCTION MANAGER AT RISK” or “CM@Risk”.
RECITALS
A.
The City Manager of Glendale, Arizona, is authorized and empowered by provision of the City charter to
execute contracts for professional services and construction services.
B.
The City intends to construct the Bethany Homes Rd. Drainage Improvements as described in
Exhibit A attached, hereinafter referred to as the “Project”.
C.
To undertake the design of said Project the City has entered into a contract
with Haydon Building Corp to provide Design Professional services during the design phase of the
project.
D.
The CM@Risk has represented to the City its ability to provide pre-construction management services
during the design phase and to construct the Project. The CM@Risk may serve as the general
contractor during construction of the project, if it is determined to be in the City’s best interest. Once the
work or services required by this Agreement has been substantially completed, at the City’s discretion,
the City may enter into a separate construction contract with the CM@Risk for construction phase
services.
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants and considerations hereinafter contained,
it is agreed by and between the City and the CM@Risk as follows:
ARTICLE 1 – TERMS AND DEFINITIONS
Addenda – Written or graphic instruments issued prior to the submittal of the GMP Proposal(s), which clarify,
correct or change the GMP Proposal(s) requirements.
Agreement (“Contract”) – This written document signed by the City and CM@Risk covering the pre-construction
management services performed by CMAR for the design phase of the Project, and including other documents
itemized and referenced in or attached to and made part of this Agreement.
Alternate Systems Evaluations – Alternatives for design, means and methods or other scope considerations
that are evaluated using value engineering principles and have the potential to reduce construction costs while
still delivering a quality and functional Project that meets City requirements.
Change Order – A document signed by the CM@Risk and the City that authorizes an addition, deletion or
revision in the scope of services or Deliverables, or an adjustment in the Contract Amount or the period of
services, or use of Owner Contingency, and is issued on or after the Effective Date of this Agreement.
City (“Owner” or “OWNER”) – The City of Glendale, a public body or authority and municipal corporation, with
whom CM@Risk has entered into this Contract and for whom the services are to be provided pursuant to said
Contract.
City of Glendale, Arizona
Engineering Department
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 2
CM@Risk (“CONSTRUCTION MANAGER AT RISK” OR “CONTRACTOR”) – The person, firm, corporation or
other approved legal entity with whom the City has entered into this Agreement. For purposes of this
Agreement, the CM@Risk is Haydon Building Corp.
Contingency, Contractor’s– An agreed upon amount, either lump sum or a percentage of the Cost of the Work,
that is included in the GMP and to be used by the CM@Risk in accordance with the General Provisions in the
construction contract.
Contingency, Owner’s – The Owner may, at its discretion, order changes in the scope of the Project. The
Owner’s Contingency is an amount to cover changes initiated by the Owner, which may be incorporated into the
GMP as a contingency at the Owner’s discretion.
Construction Documents – The plans, specifications, and drawings prepared by the design professional.
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 for the construction phase.
Contract Documents – This Agreement, exhibits, attachments, the Notice to Proceed for design phase services,
all Written Amendments and Change Orders to this Contract and any other documents of designated in this
Agreement.
Contract Amount – The final approved not-to-exceed budget for this Contract as identified in paragraph 4.1.
Contract Time(s) – The number of days or the dates related to the construction phase that as stated in
Construction Documents applies to achievement of Substantial Completion and/or completion of the
construction Work so that it is ready for final payment.
Day – Calendar day(s) unless otherwise specifically noted in the Contract Documents.
Deliverables – The work products prepared by the CM@Risk in performing the scope of work described in this
Agreement, including Exhibit A. Some of the major deliverables to be prepared and provided by the CM@Risk
during the design phase may include but are limited to: Construction Management Plan, Project Schedule,
Schedule of Values, alternative system evaluations, procurement strategies and plans, cost estimates,
construction market surveys, cash flow projections, GMP Proposals, Subcontractor procurement plan,
Subcontractor agreements, Subcontractor bid packages, Supplier agreements, and others as indicated in this
Agreement or required by the Project Team.
Design Professional – The qualified, licensed person, firm or corporation who furnishes design services
required under the Contract Documents.
Drawings (Plans) – Documents, which visually represent the scope, extent and character of the Work to be
furnished and performed by the CM@Risk during the construction phase and which have been prepared or
approved by the Design Professional and the City. “Drawings” includes drawings that have reached a sufficient
state of completion and released by the Design Professional solely for the purposes of review and/or use in
performing constructability and biddability reviews and in preparing cost estimates (e.g. conceptual design
Drawings, preliminary design Drawings, detailed design Drawings at 30%, 60%, 90% or 100%) but “not for
construction”. Shop drawings are not Drawings as so defined.
Effective Date of this Agreement – The date specified in this Agreement on which the Agreement becomes
effective, but if no such date is so specified, the date on which the last of the two parties to sign this agreement
delivers it to the other party.
General Condition Costs – Includes, but is not limited to the following types of costs for the CM@Risk during
the construction phase: payroll costs for project manager or construction manager but not both for Work
conducted at the site, payroll costs for the superintendent and full-time general foremen, payroll costs for
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 3
management personnel resident and working directly for the project on or off the site, workers not included as
direct labor costs engaged in support (e.g. loading/unloading, clean-up, etc.), costs of offices and temporary
facilities including office materials, office supplies, office equipment, minor expenses, utilities, fuel, sanitary
facilities and telephone services at the site, costs of liability insurance premiums not included in labor burdens
for direct labor costs, costs of bond premiums, costs of consultants not in direct employ of the CM@Risk or
Subcontractors, taxes on the work and for which the CM@Risk is liable, fees for permits and licenses. Certain
limitation and exclusions are described in the General Conditions for the construction phase.
GMP Plans and Specification – The three sets of plans and specifications provided pursuant to paragraph 2.7.3
upon which the Guaranteed Maximum Price Proposal is based.
Guaranteed Maximum Price (GMP) Proposal – The offer or proposal of the CM@Risk submitted on the
prescribed form setting forth the GMP prices for the entire Work or portions of the Work to be performed during
the construction phase. The GMP Proposal(s) are to be developed pursuant to Article 2 of this Agreement.
Laws and Regulations; Laws or Regulations – Any and all applicable laws, rules, regulations, ordinances, codes
and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.
Notice to Proceed – A written notice given by the City to the CM@Risk fixing the date on which the CM@Risk
will start to perform the CM@Risk's obligations under this Agreement.
Pre-construction management services – The work to be performed by the CM@Risk under this Agreement.
Such work shall include, but is not limited to, those tasks and activities detailed in Exhibit A to this Agreement.
Progress Payment Application – The form that is accepted by the City and used by the CM@Risk in requesting
progress payments or final payment on which will include such supporting documentation as is required by the
Contract Documents and or the City.
Project – The scope of work as described in the Recital above and Exhibit “A” attached.
Project Team – Design phase services team consisting of the Design Professional, CM@Risk, Glendale
Engineering Department Project Manager, City’s Client Department’s representatives and other stakeholders
who are responsible for making decisions regarding the Project.
Samples – Physical examples of materials, equipment, or workmanship representative of a part of the
construction phase Work and which establish the standards by which that portion of the construction phase
Work will be evaluated.
Shop Drawings – All drawings, diagrams, illustrations, schedules and other data or information specifically
prepared or assembled by or for the CM@Risk and submitted by the CM@Risk to illustrate some portion of the
Work.
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.
Subcontractor – An individual, firm or corporation having a direct contract with the CM@Risk or any other
individual, firm or corporation having a contract with the aforesaid contractors at any tier, who undertakes to
perform a part of the design phase services or construction phase Work at the site for which the CM@Risk is
responsible. Subcontractors will be selected through the Subcontractor bid process described in paragraph 2.8
of this agreement.
Subconsultant – A person, firm or corporation having a contract with CM@Risk to furnish services required as
its independent professional associated or consultant with respect to the Project.
Supplier – A manufacturer, fabricator, supplier, distributor, materialman or vendor having a direct contract with
CM@Risk or with any Subcontractor to furnish materials or equipment to be incorporated in the construction
phase Work by CM@Risk or any Subcontractor.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 4
Total Float – Number of Days by which the design phase services on construction phase Work or any part of
the same may be delayed without necessarily extending a pertinent schedule milestone in the Project
Schedule.
Work – 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.
Written Amendment – A written modification to the Contract Documents, signed by the City and CM@Risk on or
after the Effective Date of this Agreement and normally dealing with the non-engineering or non-technical rather
than strictly construction-related aspects of the Contract Documents.
ARTICLE 2 – BASIC DESIGN PHASE SERVICES
2.1
GENERAL
2.1.1
The CM@Risk, to further the interests of the City, will perform the services required by, and in
accordance with this Contract, to the Satisfaction of the City Engineer, exercising the degree of care,
skill and judgment a professional construction manager performing similar services in Glendale, Arizona
would exercise at such time, under similar conditions. The CM@Risk will, at all times, perform the
required services consistent with sound and generally accepted construction management and
construction contracting practices.
2.1.2
Program Evaluation: As a participating member of the Project Team, the CM@Risk will provide to the
City and Design Professional a written evaluation of the City’s Project Program and Project Budget,
each in terms of the other, with recommendations as to the appropriateness of each.
2.1.3
Project Meetings: The CM@Risk will attend Project Team meetings which may include, but are not
limited to, monthly Project management meetings, Project workshops, special Project meetings,
Contract Documents rolling reviews and partnering sessions.
2.1.4
The CM@Risk will provide pre-construction management services during the design phase of the City’s
Bethany Home Rd. Drainage Improvements project as described herein, in a proactive manner and
consistent with the intent of the most current Drawings and Specifications. The CM@Risk will promptly
notify the City in writing whenever the CM@Risk determines that any Drawings or Specifications are
unacceptable for the Project and/or propose changes in the Scope of Work requiring an adjustment in
the cost estimate, Project Schedule, GMP Proposal and/or in the Contract Time for the Work, to the
extent such are established.
2.1.5
The CM@Risk, when requested by the City, will attend, make presentations and participate as may be
appropriate in public agency and or community meetings, germane to the Project. The CM@Risk will
provide drawings, schedule diagrams, budget charts and other materials describing the Project, when
their use is required or in the City’s interest in any such public agency meetings.
2.2
CONSTRUCTION MANAGEMENT PLAN
2.2.1
The CM@Risk will prepare a Construction Management Plan (CMP), which will detail, but not
necessarily be limited to, the CM@Risk's determinations concerning: (a) Project milestone dates and
the Project Schedule, including the broad sequencing of the design and construction of the Project; (b)
investigations, if any, to be undertaken to ascertain subsurface conditions and physical conditions of
existing surface and subsurface facilities and underground utilities; (c) alternate strategies for fast
tracking and/or phasing the construction; (d) the number of separate sub-agreements to be awarded to
Subcontractors and Suppliers for the Project construction; (e) permitting strategy; (f) safety and training
programs; (g) construction quality control; (h) a commissioning program; (i) the cost estimate and basis
of the model, and (j) a matrix summarizing each Project Team member’s responsibilities and roles.
2.2.2
The CM@Risk will add detail to its previous version of the CMP to keep it current throughout the design
phase, so that the CMP is ready for implementation at the start of the construction phase. The
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 5
update/revisions may take into account: (a) revisions in Drawings and Specifications; (b) the
CM@Risk's examination of the results of any additional investigatory reports of subsurface conditions,
drawings of physical conditions of existing surface and subsurface facilities and documents depicting
underground utilities placement and physical condition, whether obtained by the City, Design
Professional or the CM@Risk; (c) unresolved permitting issues, and significant issues, if any, pertaining
to the acquisition of land and right of way; (d) the fast-tracking of any of the construction, or other
chosen construction delivery methods; (e) a requisite number of separate bidding documents to be
advertised; (f) the statues of the procurement of long-lead time equipment (if any) and/or materials; and
(g) funding issues identified by the City.
2.3
PROJECT SCHEDULE
2.3.1
The fundamental purpose of the “Project Schedule” is to identify, coordinate and record the tasks and
activities to be performed by all Project Team members and to be utilized as a basis for managing and
monitoring each Project Team member’s compliance with the schedule requirements of the Project.
Each Project Team member is responsible for its compliance with the Project Schedule requirements.
The CM@Risk will, however, develop and maintain the “Project Schedule” on behalf of, and to be used
by, the Project Team based on input from the other Project Team members. The Project Schedule will
be consistent with the most revised/updated CMP. The Project Schedule will use the Critical Path
Method technique, unless required otherwise, in writing by the City. The CM@Risk will use Microsoft
Project scheduling software to develop the Project Schedule that is acceptable by the City. The Project
Schedule shall be presented in graphic and tabular reports, as agreed upon by the Project Team. If
Project phasing as described below is required, the Project Schedule will indicate milestone dates for
phases once determined. The Project Schedule’s activities will directly correlate with the Schedule of
Values specified in paragraph 2.6.
2.3.2
The CM@Risk will include and integrate in the Project Schedule the services and activities required of
the City, Design Professional and CM@Risk including all construction phase activities. The Project
Schedule will detail activities to the extent required to show: (a) the coordination between conceptual
design and various design phase documents; (b) separate long-lead procurements, if any; (c) permitting
issues; (d) land and right-of-way acquisition, if any; (e) bid packaging strategy and awards to
Subcontractors and Suppliers; (f) major stages of construction; (g) start-up and commissioning; and (h)
occupancy of the completed Work by the City. The Project Schedule will include, by way of example
and not as a limitation, proposed activity sequences and durations for design, Project Team,
preparation and procession of shop drawings and samples, delivery of materials or equipment requiring
long-lead time procurement (if any), milestone dates for various construction phases, total float for all
activities, relationships between activities, City’s occupancy requirements showing portions of the
Project having occupancy priority, and proposed dates for Substantial Completion and when the Work
would be ready for final acceptance.
2.3.3
The Project Schedule will be updated and maintained by the CM@Risk throughout the design phase so
that it will not require major changes at the start of the construction phase to incorporate the
CM@Risk's plan for the performance of the construction phase Work. The CM@Risk will provide
updates and/or revisions to the Project Schedule for use by the Project Team, whenever required, but
not less often than at the monthly Project Team meetings. The CM@Risk will include with such
submittals a narrative describing its analysis of the progress achieved to-date vs. the planned progress,
any concerns regarding delays or potential delays, and any recommendations regarding mitigating such
delays.
2.3.4
Project Phasing: If phased construction is deemed appropriate and the City and Design Professional
approve, the CM@Risk will review the design and make recommendations regarding the phased
issuance of Construction Documents to facilitate phased construction of the Work, with the objective of
reducing the Project Schedule and/or Cost of the Work. The CM@Risk will take into consideration
such factors as natural and practical lines of work severability, sequencing effectiveness, access and
availability constraints, total time for completion, construction market conditions, labor and materials
availability, and any other factors pertinent to saving time and cost.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 6
2.4
DESIGN DOCUMENT REVIEWS
2.4.1
The CM@Risk will evaluate and periodically assess the availability of labor, materials/equipment,
building systems, and cost-sensitive aspects of the design and other factors that may impact the cost
estimate, GMP Proposals and/or the Project Schedule.
2.4.2
The CM@Risk will identify, in conjunction with the Project Team, those additional surface and
subsurface investigations that are required to provide the necessary information for the CM@Risk to
construct the Project. After completion of design phase, the CM@Risk may provide additional
investigation to improve the adequacy and completeness of the site condition information and data
made available with the Construction Documents. The CM@Risk may be responsible for the time and
cost required to obtain such additional investigations, except if otherwise provided by specific Additional
Services and agreed to in a written amendment to this contract.
2.4.3
The CM@Risk will meet with the Project Team as required to review designs during their development.
The CM@Risk will thoroughly familiarize itself with the evolving documents through the various design
phases. The CM@Risk will proactively advise the Project Team and make recommendations on
factors related to construction costs, and concerns pertaining to the feasibility and practicality of any
proposed means and methods of construction, selected materials, equipment and building systems,
and labor and material availability. The CM@Risk will also advise the Project Team of proposed site
improvements, excavation and foundation considerations, as well as, concerns that exist with respect to
coordination of the Drawings and Specifications. The CM@Risk will recommend cost effective
alternatives.
2.4.4
The CM@Risk will routinely conduct constructability and biddability reviews of the Drawings and
Specifications as necessary to satisfy the needs of the Project Team. The reviews will attempt to
identify all discrepancies and inconsistencies in the proposed Construction Documents, especially
those related to clarity, consistency, and coordination of Work of Subcontractors and Suppliers.
2.4.4.1 Constructability Reviews: The CM@Risk will evaluate whether: (a) the Drawings and Specifications are
configured to enable efficient construction; (b) design elements are standardized; (c) construction
efficiency is properly considered in the Drawings and Specifications; (d) module/preassembly design is
prepared to facilitate fabrication, transport and installation; (e) the design promotes accessibility of
personnel, material and equipment and facilitates construction under adverse weather conditions; (f)
sequences of Work required by or can be developed from the Drawings and Specifications are capable
of being implemented; and (g) the design has taken into consideration, efficiency issues concerning
access and entrance to the site, laydown and storage of materials, staging of site facilities, construction
parking, and other similar implementation issues.
2.4.4.2 Biddability Reviews: The CM@Risk will check cross-references and compatibility of Drawings and
sections within the Specifications, to evaluate whether: (a) the Drawings and Specifications are
sufficiently clear and detailed to minimize ambiguity and to reduce scope interpretation discrepancies;
(b) named materials and equipment are commercially available and are performing well or poorly; in
similar installations; (c) the design provides as-built data; (d) Specifications included alternatives, in the
event a requirement cannot be met in the field; and (e) the Project is likely to be subject to differing site
conditions considering the data on subsurface conditions, physical conditions of existing surface and
subsurface facilities, and physical conditions of underground utilities .
2.4.4.3 The results of the constructability and biddability reviews will be provided to the City in formal, written
reports clearly identifying all discovered discrepancies and inconsistencies in the Drawings and
Specifications with notations and recommendations made on the Drawings, Specifications and other
documents. If requested by the City, the CM@Risk will meet with the City and Design Professional to
discuss and review these reports.
2.4.4.4 The CM@Risk's reviews will be from a contractor’s perspective, and although these reviews will serve
to reduce the numbers of Requests for Information (RFIs) and changes during the construction phase,
responsibility for the Drawings and Specifications will remain with the Design Professional and not the
CM@Risk.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 7
2.4.5
Notification of Variance or Deficiency: It is the CM@Risk’s responsibility to assist the Design
Professional in ascertaining whether the Construction Documents were developed in accordance with
applicable laws, statutes, ordinances, building codes, rules and regulations. If the CM@Risk
recognizes that portions of the Construction Documents are at variance with applicable laws, statutes,
ordinances, building codes, rules and regulations, it will promptly notify the Design Professional and
City in writing, describing the apparent variance or deficiency.
2.4.6
Alternate Systems Evaluations: The Project Team will routinely identify and evaluate using value
engineering principles, any alternate systems, approaches, and design changes that have the potential
to reduce Project costs while still delivering a quality and functional product. If the Project Team
agrees, the CM@Risk, in cooperation with the Design Professional, will perform a cost/benefit analysis
of the alternative and submit such analysis and any recommended change in writing to the Project
Team. The Project Team will decide which alternatives will be incorporated into the Project. The
Design Professional will have full responsibility for the incorporation of the alternatives into the
Drawings and Specifications. If any alternative system is incorporated into the Drawings and
Specification, the CM@Risk will include the cost (savings) of that alternative into the cost estimate and
any GMP proposals.
2.5
COST ESTIMATES
2.5.1
Within 14 days after receipt of the documents for the various phases of design, the CM@Risk will
provide a detailed cost estimate and a written review of the documents. If the Design Professional and
CM@Risk disagree on the cost to be charged to the City for a phase of design, the CM@Risk and the
Design Professional will meet and confer to reconcile any disagreements on the estimate and agree on
such cost. If no consensus is reached; the City will make the final determination.
2.5.2
If any estimate submitted to the City exceeds previously accepted estimates or the City’s Project
Budget, the CM@Risk will make appropriate recommendations on methods and materials to the City
and Design Professional that it believes are consistent with the requirements and specification of the
design and are consistent with the City’s Project budget.
2.5.3
The CM@Risk will periodically provide a cost estimate tracking report, which identifies the upward or
downward movements of costs due to value engineering or scope changes. It shall be the
responsibility of the CM@Risk to keep the City and Design Professional informed as to the major trend
changes in costs relative to the City’s budget.
2.5.4
If requested by the City, the CM@Risk shall prepare a preliminary “cash flow” projection based upon
historical resources of similar type projects to assist the City in the financing process.
2.6
GUARANTEED MAXIMUM PRICE (GMP) PROPOSAL(S)
2.6.1
As part of the pre-construction management services provided by the CM@Risk under this contract, the
CM@Risk will develop a proposed GMP for the construction phase of the Project. The proposed GMP
may be presented as a single GMP for the entire Project or may be broken into a number of GMPs for
portions of the Work. The single or multiple GMPs will be presented in a format acceptable to the City.
The City may request a GMP Proposal for all or any portion of the Project and at any time during the
design phase. Any GMP Proposal submitted by the CM@Risk will be based on and consistent with the
current update/revised cost estimate at the time of the proposal, the associated estimates for
construction costs and include any clarifications or assumptions upon which the GMP Proposal(s) are
based.
2.6.2
A single GMP Proposal for the entire Project will be developed by providing the City the sum of the
maximum Cost of the Work, including the CM@Risk's Construction Fee, General Conditions Fee, and
Contractor’s Contingency. Multiple GMP Proposals for portions of the Project will be developed by
providing the City the sum of the maximum Cost of the Work for that portion of the Project, including the
CM@Risk's Construction Fee, General Conditions Fee, and Contractor’s Contingency. Once a GMP is
submitted to the City, the CM@Risk guarantees it will complete the Project at or below the final GMP
Proposal Amount (i.e. the GMP for the construction phase contract) approved by the City. The
CM@Risk will thereafter be solely responsible for any difference between the actual Cost of Work and
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 8
the City-approved GMP Amount, unless the parties agree to an amendment of the GMP Amount in a
writing signed by both parties.
2.6.3
In preparing any GMP Proposal, the CM@Risk will obtain three sets of signed, sealed, and dated plans
and specifications (including all addenda) from the Design Professional. The CM@Risk will prepare its
GMP Proposal in accordance with the City’s request for GMP Proposal requirements based on the
most current completed plans and specifications at that time. The CM@Risk will mark the face of each
document of each set upon which its proposed GMP is based. The CM@Risk will send one set of
those documents to the City’s Project Manager, keep one set and return the third set to the Design
Professional.
2.6.4
An updated/revised Project Schedule will be included with any GMP Proposal(s) that reflects the scope
of Work shown in the current set of design documents upon which the GMP Proposal(s) is based. Any
such Project Schedule updates/revisions will continue to comply with the requirements of paragraph
2.3.
2.6.5
In the event the CM@Risk elects, at its sole discretion, to maintain a Contractor’s Contingency within
the GMP, the criteria for development of that contingency must be acceptable to the City. In addition,
the terms and conditions regarding use of that contingency during the construction phase will be
established by the City and reflected in the contract for that phase of the Project.
2.6.6
If the construction contract is negotiated as a not-to-exceed amount, all GMP savings resulting from a
lower actual project cost than anticipated by the CM@Risk, will revert to the City.
2.7
GMP PROPOSAL(S) REVIEW AND APPROVAL
2.7.1
The CM@Risk will meet with the City and Design Professional to review any GMP Proposal(s) and the
written statement of its basis. In the event the City or Design Professional discovers inconsistencies or
inaccuracies in the information in the written statement of basis, the CM@Risk will make adjustments
as necessary to the GMP Proposal, its basis or both.
2.7.2
The City, may submit any GMP and its supporting documentation to an independent third party or to the
Design Professional for review and verification. The third party or Design Professional will review the
GMP for accuracy and suitability and may provide the City with a critique or an independent estimate of
the Cost of Work and Project Schedule for the GMP Proposal.
2.7.3
If the CM@Risk GMP Amount proposed is greater than the estimate generated by the independent
third party, the City may require the CM@Risk to reconfirm its GMP Proposal or ask the CM@Risk to adopt the
independent third party’s estimate as the GMP. If the CM@Risk will not accept the independent third party’s
estimate as the GMP Amount, the CM@Risk will submit a report to the City within seven days of receiving the
third party’s estimate identifying, explaining and substantiating the differences in the GMP amounts. The
CM@Risk may, at its own discretion or upon the request of the City, submit a revised GMP Proposal for
consideration by the City. After review, the City may do one of the following:
(a)
Accept the CM@Risk’s original or revised GMP Proposal, if within the City’s budget, without
comment;
(b)
Accept the CM@Risk original or revised GMP Proposal that exceeds the City’s budget, and
indicate in writing to the CM@Risk that the Project Budget has been increased to fund the
differences; or
(c)
Reject the CM@Risk’s original or revised GMP Proposal because it exceeds the City’s budget,
or the independent third party’s estimate, in which event, the City may terminate this Contract
and/or elect not to enter into a subsequent contract with the CM@Risk for the construction
phase of the Project.
2.7.4
If during the review and negotiation of GMP Proposals, the City determines that design changes are
required, the City may authorize and cause the Design Professional to revise the Drawings and Specifications
to the extent necessary to reflect the agreed-upon changes approved in the final approved GMP Proposal.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 9
Such revised documents will be furnished to the CM@Risk. The CM@Risk will promptly notify the Design
Professional and City if it believes any such revised Construction Documents are inconsistent with the agreed-
upon assumptions and clarifications and the parties will meet and confer to produce a final Construction
Management Plan and GMP Proposal in accordance with Sections 2.2 and 2.6 of this Agreement.
2.8
SUBCONTRACTOR, SUBCONSULTANTS AND MAJOR SUPPLIER SELECTIONS
2.8.1.1 The CM@Risk may use subcontractors, subconsultants and suppliers to perform the pre-construction
tasks and activities required by this Agreement, including its Exhibit A.
2.8.2
The CM@Risk may select subcontractors, subconsultants and major suppliers (hereinafter referred to
collectively as Subcontractors) using a qualifications-based selection or competitive bid process.
2.8.3
Selection by qualifications only – The City may approve the selection of a Subcontractor based only on
its qualifications when the City agrees that it is in the best interest of the Project.
2.8.3.1 Qualification based selection of a Subcontract should only occur prior to the submittal of the GMP
Proposal.
2.8.3.2 The CM@Risk will prepare a Subcontractor selection plan and submit the plan to the City for approval.
The CM@Risk shall use the criteria approved by the City and contained in the plan to evaluate the
qualification(s) of a Subcontractor and will provide the City with its review and recommendation for
selecting a Subcontractor.
2.8.3.3 The CM@Risk must receive City approval of the selected Subcontractor.
2.8.3.4 The CM@Risk will negotiate costs for services/supplies from each Subcontractor selected under this
method.
2.8.4
Selection by competitive bid – All work shall be competitively bid unless a Subcontractor was selected
pursuant to Section 2.8.2 above. Competitive bids may occur prior to or after the GMP Proposal(s) and
the bid process shall be consistent with the City’s procurement code and ARS Title 34.
2.8.4.1 To develop Subcontractor interest, the CM@Risk will solicit bids from and submit the names of a
minimum of three qualified Subcontractors for each trade required for performance of the Project to the
City for approval. If three qualified Subcontractors are not available for a specific trade, or there are
extenuating circumstances, the CM@Risk may request approval by the City to submit less than three
names. CM@Risk may also propose self performing some or all of the work itself. Without prior written
approval by the City, no change in the City-approved Subcontractors will be allowed.
2.8.4.2 Prior to GMP, the City may object to performance of all or part of the work by the CM@Risk or a
Subcontractor without cause. If the City objects to any nominated Subcontractor or to any self-
performed Work, the CM@Risk will nominate a substitute Subcontractor.
2.8.4.3 The CM@Risk will distribute Drawings and Specifications, and when appropriate, conduct a pre-bid
conference with prospective Subcontractors.
2.8.4.4 If the CM@Risk desires to self-perform certain portions of the Work, it will request to be one of the
approved Subcontractor bidders for those specific portions of work or tasks and submit a bid. The
CM@Risk’s bid will be evaluated in accordance with the process identified below. If the City concurs,
the CM@Risk may self-perform Work without bidding or re-bidding such portion of work or task.
2.8.4.5 The CM@Risk shall receive, open, record and evaluate all bids submitted in response to a bid
solicitation. The responsive low bidders will be interviewed to determine the quality of their proposals.
In evaluating the responsiveness of bid proposals, the CM@Risk may consider price, past performance
on similar projects, qualifications, and experience of personnel assigned, quality management plan,
approach or understanding of the work to be performed, and performance schedule to complete the
work. The final evaluation of Subcontractor bids will be provided to the City Representative.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 10
2.8.4.6 Within fifteen days after opening Subcontractors’ bids opening, the CM@Risk will prepare a list of
recommended Subcontractors for each category of work, for the City’s review and approval. The list
will detail: (a) for each sub-agreement, the amount of the Subcontractor bid and the corresponding
Subcontractor; (b) the sum of Subcontractor bids received for all intended sub-agreements, (c) trade
work and its cost that the CM@Risk intends to self-perform, if any.
2.8.5
The CM@Risk may make a single or multiple awards to Subcontractors as provided in City Code, and
as approved by the City for this Project. Upon City approval of all Subcontractors, the CM@Risk shall
submit a summary report to the City of the selection process. The report will indicate the
Subcontractors contacted to determine interest, the Subcontractors solicited, the bids received/costs
negotiated, and the recommended Subcontractors for each category of work.
2.8.6
The approved Subcontractors will provide a schedule of values with their bid proposals, which will be
used to create the overall project schedule of values.
2.8.7
If after receipt of bids or after award(s) have been made, the City objects to any nominated
Subcontractor or to any self-performed Work to be performed by the CM@Risk, the CM@Risk will
nominate a substitute Subcontractor or Supplier, preferably if such option is still available, from those
who submitted Subcontractor bids for the Work to be performed. Once such substitute Subcontractors
are approved by the City, the CM@Risk’s proposed GMP for the work or portion thereof may be
correspondingly adjusted, by the City in a signed writing, to reflect any higher or lower costs from any
such substitution.
2.8.8
Promptly after the CM@Risk issues the Notice(s) of Intent to Award, the CM@Risk will conduct a pre-
award conference with the City and other Project Team members. At the pre-award conference, the
CM@Risk will: (a) review the nominated slate of Subcontractors and discuss any concerns with or
objections that the City has to any nominated Subcontractor; (b) discuss any concerns the City may
have relating to any proposed self-performed Work; (c) review the CM@Risk’s proposed GMP Amount
that includes the work to be performed during the construction phase; (d) discuss the conditions, if any,
under which the City will agree to pay or include any portion of the remaining Contractor’s Contingency
for the construction phase Work; (e) resolve possible delays of the Date of Commencement for the
construction phase of the Work; (f) schedule the pre-construction conference; and (g) discuss other
matters related to payment for or performance of the work.
2.8.9
The CM@Risk will resolve any Subcontractor bid withdrawal, protest or disqualification in connection
with the award at no increase in the Cost of the Work, and with no financial or legal assistance by the
City.
ARTICLE 3 – PERIOD OF SERVICES
3.1
The pre-construction management services for the design phase of the Project(s) described in this
Contract will be performed by the CM@Risk in accordance with the most current updated/revised
Project Schedule. Failure on the part of the CM@Risk to adhere to the Project Schedule requirements
for activities for which it is responsible will be sufficient grounds for termination of the Contract by the
City.
3.2
If the date of performance of any obligation or the last day of any time period provided for herein should
fall on a Saturday, Sunday, or holiday for the City, then said obligation will be due and owing, and said
time period will expire, on the first day thereafter which is not a Saturday, Sunday or legal City holiday.
Except as may otherwise be set forth herein, any performance provided for herein will be timely made if
completed no later than 5:00 p.m. (Arizona time) on the day of performance.
ARTICLE 4 – CONTRACT AMOUNT AND PAYMENTS
4.1
CONTRACT AMOUNT
4.1.1
The City will pay the CM@Risk a fixed fee not to exceed $ 149,885 dollars for the pre-
construction management services being provided under this Contract as follows:
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 11
For the pre-construction management services described in Article 2 and Exhibit A, the CM@Risk shall
receive a fee not to exceed: $ 149,885
Additional Services and allowances:
Early Procurement of equipment Budget Allowance
$ 5,300
Allowances
$ 314,699
Owner’s Contingency:
$ 0.00
Total Contract Amount, not to exceed
$ 469,884
4.2
PAYMENTS
4.2.1
Requests for payments for services rendered may be made by the CM@Risk on a monthly basis and
must be submitted on the City’s “Progress Payment Request” form. Such requests for payment will be
accompanied by a progress report, detailed invoices and receipts, if applicable. Any requests for
payment will include, at a minimum, a narrative description of tasks accomplished during the billing
period, a listing of any Deliverables submitted, and copies of any Subcontractors’ requests for payment,
plus similar narrative and listings of Deliverables associated with their Work.
4.2.2
The fees for the CM@Risk and any Subcontractors will be based upon the hourly rate schedule
included as Exhibit B attached.
4.2.3
The CM@Risk will pay all sums due to Subcontractors for services rendered and for reimbursable
expenses within 14 calendar days after the CM@Risk has received payment for those services from
the City. In no event will the City pay more than 90 percent of the Contract Amount until final
acceptance of all the design phase services, and award of the final approved GMP for the entire Project
by City Council.
4.2.4
The CM@Risk agrees that no charges or claims for costs or damages of any type will be made against
the City for any delays or hindrances during the progress of any portion of the services specified in this
Agreement. Such delays or hindrances, if any, will be solely compensated for by an extension of time
for such reasonable period as may be mutually agreed between the parties. It is understood and
agreed, however, that permitting the CM@Risk to proceed to complete any services, in whole or in part,
after the date to which the time of completion may been extended, will in no way act as a waiver on the
part of the City of any of its legal rights herein.
4.2.5
No compensation to the CM@Risk will be allowed contrary to Title 34 of the Arizona Revised Statues.
4.2.6
If any service(s) performed by the CM@Risk is abandoned or suspended in whole or in part, for a
period of more than 180 days through no fault of the CM@Risk, the CM@Risk is to be paid for the
services performed prior to the abandonment or suspension and the City may seek damages for such
abandonment or suspension.
4.3
ADDITIONAL DESIGN PHASE SERVICES
4.3.1
The following Additional Services may be required for the successful completion of the Project.
Additional Services and the incurrence of additional costs are not authorized unless approved in
advance by the City, with a written amendment executed by both of the parties to this contract. Only
the Additional Services are reimbursable as specifically identified below and authorized herein:
Non-overhead printing expenses incurred, including the printing of Construction
Documents for bidding, courier services or other Project-related services that
may be requested by the City. The cost of such service will not exceed $500.00
without further approval by the City.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 12
ARTICLE 5 – CITY’S RESPONSIBILITIES
5.1
The City, at no cost to the CM@Risk, will furnish the following information:
5.1.1
One copy of data the City determines pertinent to the work. However, the CM@Risk will be responsible
for searching the records and requesting information it deems reasonably required for the Project.
5.1.2
All available data and information pertaining to relevant policies, standards, criteria, studies, etc.
5.1.3
The name of the City employee or City’s representative who will serve as Project Manager during the
term of this Agreement. The Project Manager has the authority to administer this Contract and will
monitor the CM@Risk’s compliance with all terms and conditions stated herein. All requests for
information from or decisions by the City on any aspect of the work or Deliverables will be directed to
the Project Manager.
5.2
The City additionally will:
5.2.1
Contract separately with one or more design professionals to provide architectural and/or engineering
design services for the Project. The scope of services for the Design Professional will be provided to
the CM@Risk for its information. The CM@Risk will have no right to limit or restrict any changes of
such services that are otherwise mutually acceptable to the City and Design Professional.
5.2.2
Supply, without charge, all necessary copies of programs, reports, drawings, and specifications
reasonably required by the CM@Risk.
5.2.3
Provide the CM@Risk with adequate information in its possession or control regarding the City’s
requirements for the Project.
5.2.4
Give prompt written notice to the CM@Risk when the City becomes aware of any default or defect in
the Project or non-conformance with the Drawings and Specifications.
5.2.5
Notify the CM@Risk of changes affecting the budget allocations.
5.3
The City’s Project Manager may have the authority to approve the Project Budget and Project
Schedule, and render decisions and furnish information the Project Manager deems appropriate to the
CM@Risk, provided such decision-making authority is not barred by the City Charter, the City Code or
any internal City policy or procedure.
ARTICLE 6 – ADDITIONAL CONTRACT PROVISIONS
6.1
PROJECTS DOCUMENTS AND COPYRIGHTS
6.1.1
City Ownership of Project Documents: All work products (electronically or manually generated)
including but not limited to: cost estimates, studies, design analyses, original mylar drawings, Computer
Aided Drafting and Design (CADD) file diskettes, and other related documents which are prepared in
the performance of this Agreement (collectively referred to as Project Documents) are to be and remain
the property of the City and are to be delivered to the Project Manager before the final payment is made
to the CM@Risk. Nonetheless, in the event these Project Documents are altered, modified or adapted
without the written consent of the CM@Risk, which consent the CM@Risk will not unreasonably
withhold, the City agrees to hold the CM@Risk harmless to the extent permitted by law, from the legal
liability arising out of or resulting from the City’s alteration, modification or adaptation of the Project
Documents.
6.1.2
CM@Risk to Retain Copyrights: The copyrights, patents, trade secrets or other intellectual property
rights associated with the ideas, concepts, techniques, inventions, processes or works of authorship
developed or created by the CM@Risk, its Subcontractor(s) or personnel, during the course of
performing this Agreement or arising out of the Project will belong to the CM@Risk.
6.1.3
License to City for Reasonable Use: The CM@Risk hereby grants, and will require its subconsultants to
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 13
grant, a license to the City, its agents, employees, and representatives for an indefinite period of time to
reasonably use, make copies, and distribute as appropriate, the Project Documents, Construction
Documents, Contract Documents, Specifications, Drawings or Deliverables or any other documents
developed or created for the Project unless such documents are privileged, work product or proprietary.
This license will also include the making of derivative works.
6.1.4
Documents to Bear Seal: When applicable and required by state law, the CM@Risk and its
Subcontractors will have an Arizona professional endorse and/or seal all plans, works and Deliverables
prepared by them for this Contract.
6.2
COMPLETENESS AND ACCURACY OF CM@RISK’S WORK
6.2.1
The CM@Risk will be responsible for the completeness and accuracy of its reviews, reports, supporting
data, Construction Documents, Contract Documents, Specifications, Drawings or Deliverables and
other documents prepared or compiled pursuant to its obligations under this Contract and will, at its
sole and separate expense, correct its work or such deliverable or document. The fact that the City has
accepted or approved the CM@Risk’s work or such deliverable or document will in no way relieve the
CM@Risk of any of its responsibilities under this Agreement, nor does this requirement to correct the
work, deliverable or document constitute a waiver of any claims or damages otherwise available under
any applicable law by the City.
6.3
ALTERATION IN CHARACTER OF WORK
6.3.1
In the event an alteration or modification in the character of work or any Deliverable or document
prepared or compiled pursuant to the CM@Risk’s obligations under this contract results in a substantial
change in this Agreement, and thereby materially increasing or decreasing the scope of services, cost
of performance, or Project Schedule, the work or Deliverable will nonetheless be performed as directed
by the City. However, before any altered or modified work begins, a written Change Order or
Amendment must be approved and executed by the City and the CM@Risk. Such Change Order or
Amendment will not be effective until executed by the City Manager or his designee, and, if necessary,
approved by the City Council. Additions to, modifications, or deletions from the Project provided herein
may be made, and the compensation to be paid to the CM@Risk may accordingly be adjusted by
mutual agreement of the contracting parties. No claim for extra work done or materials furnished by the
CM@Risk will be allowed by the City except as provided herein, nor will the CM@Risk do any work or
furnish any material(s) not covered by this Contract unless such work or material is first authorized in a
signed writing. Work or material(s) furnished by the CM@Risk without such prior written authorization
will be undertaken by the CM@Risk’s at its sole jeopardy, cost and expense. The CM@Risk further
agrees that without prior written authorization, no claim for compensation for such work or materials
furnished will be made against the City.
6.4
DATA CONFIDENTIALITY
6.4.1
As used in this Contract, “data” means all information, whether written or verbal, hard copy or
electronic, including plans, photographs, studies, investigations, audits, analyses, samples, reports,
calculations, internal memos, meeting minutes, data field notes, work product, proposals,
correspondence and any other similar documents or information prepared by or obtained by the
CM@Risk in the performance of this contract.
6.4.2
The parties agree that all data, including original, images, and reproductions, prepared by, obtained by,
or transmitted to the CM@Risk in connection with the CM@Risk’s performance of this Contract is
confidential and proprietary information belonging to the City.
6.4.3
The CM@Risk will not divulge data to any third party without prior written consent of the City. The
CM@Risk will not use the data for any purposes except to perform the services required under this
Contract. These prohibitions will not apply to the following data provided the CM@Risk has first given
the required notice to the City:
(1)
Data which was known to the CM@Risk prior to its performance under this contract unless such data
was acquired in connection with work performed for the City;
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 14
(2)
Data which was acquired by the CM@Risk in its performance under this Contract and which was
disclosed to the CM@Risk by a third party, who to the best of the CM@Risk’s knowledge and belief,
had the legal right to make such disclosure and the CM@Risk is not otherwise required to hold such
data in confidence; or
(3)
Data, which is required to be disclosed by the CM@Risk by virtue of law, regulation, or court.
6.4.4
In the event the CM@Risk is required or requested to disclose data to a third party, the CM@Risk will
first notify the City as set forth in this article of the request or demand for data. The CM@Risk’s notice
will give the City sufficient facts, so the City can have a meaningful opportunity to either give its consent
or take such action, including legal action, that the City may deem appropriate to protect such data or
other information from disclosure.
6.4.5
The CM@Risk, unless prohibited by law, within ten calendar days after completion of services for a
third party on real or personal property owned or leased by the City, will promptly deliver, as set forth in
this section, a copy of all data to the City. All data will continue to be subject to the confidentiality
agreements of this Contract.
6.4.6
The CM@Risk assumes all liability for maintaining the confidentiality of the data in its possession and
agrees to compensate the City if any of the provisions of this section are violated by the CM@Risk, its
employees, agents or Subconsultants. Solely for the purposes of seeking injunctive relief, it is agreed
that a breach of this section will be deemed to cause irreparable harm that justifies injunctive relief in
court.
6.5
PROJECT STAFFING
6.5.1
Prior to the start of any work or Deliverable under this Contract, the CM@Risk will submit to the City an
organization chart identifying the key personnel the CM@Risk and any Subcontractors have assigned
to this Project and provide detailed resumes of such personnel. Unless the City notifies the CM@Risk
of its objection to the use of any such personnel within 14 days of receiving the organizational chart and
resumes, the City is deemed to have accepted and approved the use of such Team members to
perform such services under this Contract. In the event the CM@Risk desires to change such key
personnel during its performance of this Contract, the CM@Risk will submit the qualification of the
proposed substituted personnel to the City for prior approval. Key personnel will include, but are not
limited to, principal-in-charge, project manager, superintendent, project director or those persons
specifically identified to perform services of cost estimating, scheduling, value engineering, and
procurement planning.
6.5.2
The CM@Risk will maintain an adequate number of competent and qualified persons, as determined by
the City, to ensure acceptable and timely completion of the scope of services described in this Contract
throughout the period of those services. If the City objects to any of the CM@Risk’s staff, the
CM@Risk will take prompt corrective action acceptable to the City and, if required, remove such
personnel from the Project and replace him/her with new personnel acceptable to the City.
6.6
INDEPENDENT CONTRACTOR
6.6.1
The CM@Risk is and will be an independent contractor to the City, no matter what measure of control
the City may exercise over the work or Deliverable or direction the City gives to CM@Risk during the
performance of this Contract. No provision in this Contract will give or be construed to give the City the
right to direct the CM@Risk as to the details of accomplishing the work or Deliverable.
6.7
TERMINATION
6.7.1
The City and the CM@Risk hereby agree to full performance of the covenants contained herein, except
the City reserves the right, at its sole discretion and without cause, to terminate or abandon any or all
services provided for in this Contract, or abandon any portion of the Project for which services have
been or may be performed by the CM@Risk upon thirty (30) days written notice to the CMAR.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 15
6.7.2
In the event the City abandons any or all of the services or any part of the services as herein provided,
the City will so notify the CM@Risk in writing, and the CM@Risk will immediately after receiving such
notice, discontinue advancing the Work specified under this Contract and mitigate the expenditure, if
any, of costs resulting from such abandonment of termination.
6.7.3
The CM@Risk, upon such termination or abandonment, will promptly deliver to the City all paid for
reports, estimates and other work or Deliverable entirely or partially complete, together with all unused
materials supplied by the City.
6.7.4
The CM@Risk may request payment for the work completed prior to receipt of the City’s notice to
abandon or terminate and submit an invoice to the City for evaluation and compensation. The City will
have the right to inspect the CM@Risk’s work or Deliverable to determine if the work has been
performed and properly completed in accordance with the terms and conditions of this Contract.
6.7.5
The CM@Risk will receive compensation in full for services satisfactorily performed prior to the date of
such termination. Such compensation will be paid in accordance with Article 4 of this Contract, an
amount mutually agreed upon by the CM@Risk and the City. If there is no mutual agreement, the final
determination will be made in accordance with paragraph 6.8, “Disputes”. However, in no event will any
amount requested cause the full amount of costs incurred and paid to exceed the fixed Contract
Amount as set forth in Article 4 or as amended in accordance with paragraph 6.3, “Alteration in
Character of Work”. The City will make the final payment within sixty days of the latter of the
CM@Risk’s delivery of any remaining completed work item or the date the parties agree the amount is
due as the CM@Risk’s final payment.
6.8
DISPUTES
6.8.1
In any unresolved dispute arising out of an interpretation of this Contract or the duties required therein,
the final determination at the administrative level will be made by the City Engineer.
6.8.2
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.
6.8.2.1 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.
6.8.2.2 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:
(a)
Record the Substantial Completion date as determined by City;
(b)
State each party’s responsibility for security, maintenance, air conditioning, heat,
utilities, damage to the Work and insurance;
(c)
Include a list of items identified by City, CMAR, Architect of Record and Engineer
of Record to be completed or corrected; and
(d)
Fix a reasonable period of time for their inspection.
6.8.2.3 Disagreement as to Substantial Completion. Disagreements between City and CMAR
regarding the Certificate of Substantial Completion will be resolved in accordance with
provisions of Section 6.8.1 of this Agreement.
6.8.3
Substantial Completion. CMAR must accomplish substantial completion by 60 calendar days from
Substantial Completion (the "Substantial Completion Date").
6.8.3.1 Extensions. The Substantial Completion and Final Completion Dates ("Contract Time")
may be extended for cause, or by Change Order, as provided in Section 6.8.4 of this
Agreement.
6.8.3.2 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
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 16
Date, and it will be extremely difficult and impractical to ascertain the actual damages
resulting from such delay; therefore:
(a)
CMAR will pay City liquidated damages ("Liquidated Damages") in the event of a
delay.
(b)
Accordingly, if CMAR fails to accomplish Substantial Completion by the
Substantial Completion Date, as it is extended in accordance with this Agreement,
City may assess, and CMAR must pay to City as Liquidated Damages, 430.00 for
each day of delay until CMAR accomplishes Substantial Completion.
(c)
CMAR acknowledges that these sums:
(1)
Will be paid as Liquidated Damages and not as a penalty;
(2)
Are reasonable under the circumstances existing as of the Effective Date;
and
(3)
Are based on the parties' best estimate of damages City would likely suffer
in the event of a delay.
(d)
CMAR must pay City any Liquidated Damages not so deducted 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.
(e)
City’s collection of Liquidated Damages will not affect its rights to seek other
remedies in law or at equity, including exercising its rights under the Payment and
Performance Bonds.
6.8.4
Final Completion. Final Completion must be accomplished by _March 10, 2023_ (the "Final
Completion Date").
6.8.4.1 Extensions. The Final Completion and Final Completion Dates may be extended for
cause, by Change Order or other amendment of this Agreement, as provided by this
Section.
6.8.4.2 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.
(a)
City may deduct its resulting expenses plus 20% from amounts otherwise payable
to CMAR.
(b)
CMAR must pay any amounts not so deducted within ten (10) days after demand.
6.9
WITHHOLDING PAYMENT
6.9.1
The City reserves the right to withhold funds from the City’s progress payments up to the amount equal
to the claims the City may have against the CM@Risk, until such time that a settlement on those claims
has been reached.
6.10
RECORDS/AUDIT
6.10.1 Records of the CM@Risk’s direct personnel payroll, reimbursable expenses pertaining to this Project
and records of accounts between the City and CM@Risk will be kept on a generally recognized
accounting basis for a period of three years after Substantial Completion. The City, its authorized
representative, and/or the appropriate state or federal agency, reserve the right to audit the CM@Risk’s
records to verify the accuracy and appropriateness of all pricing data, including data used to negotiate
this Contract and any Change Orders for a period of three years after Substantial Completion pursuant
to this Contract. The City reserves the right to decrease Contract Amount and/or payments made on
this Contract if, upon audits of the CM@Risk’s records, the audit discloses the CM@Risk has provided
false, misleading or inaccurate cost and pricing data.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 17
The CM@Risk will include a provision similar to paragraph 6.10.1 in all of its agreements with
Subconsultants, Subcontractors, and Suppliers providing services under this Contract to ensure the
City, its authorized representative, and/or the appropriate state or federal agency, has access to the
Subconsultants’, Subcontractors’ and Suppliers’ records to verify the accuracy of cost and pricing data.
The City reserves the right to decrease Contract Amount and/or payments made on this Contract if the
above provision is not included in Subconsultants, Subcontractor, and Supplier contracts, and one or
more of those parties do not allow the City to audit their records to verify the accuracy and
appropriateness of pricing data.
6.11
INDEMNIFICATION
6.11.1 Duty to Indemnify, Defend, and Hold Harmless. To the fullest extent permitted by Law, CMAR will
indemnify, defend, save and hold harmless City and its elected officials, officers, employees, agents,
consultants, sub-consultants, representatives, and agents (individually, an "Indemnified Party";
collectively, the "Indemnified Parties") for, from and against any and all third-party claims, demands,
causes of action, damages (including compensatory, consequential and liquidated), judgments,
penalties, settlements and all other losses arising (collectively “Claim”) from the performance or
nonperformance of this Agreement by CMAR or of a Subcontractor, Supplier, or any other person or
entity for whom CMAR is responsible and all attorneys' fees, consultants' fees, court costs, and
expenses incurred by each Indemnified Party.
6.11.2 Extent of Indemnification.
(a)
This indemnification is comprehensive and encompassing to the maximum extent
permitted by Law and includes, but is not limited to, a Claim, just or unjust, of any kind,
nature or description whatsoever, whether sounding in a tort, warranty, contract (including
breach of this Agreement), equity, a statute, or any other theory of liability, and whether
Claim is based on an alleged death, personal injury, sickness, conversion, breach of
contract, breach of warranty (express or implied), breach of representation, defective work
not remedied, lien, stop notice, property damage (including property damage to the Work),
patent infringement, copyright infringement, loss of use and all other economic loss,
release of a petroleum byproduct or other substance regulated by applicable Law, legal
violations or other claimed damage.
(b)
This indemnity is in addition to and will not be deemed to limit any other indemnity given by
CMAR.
6.11.3 Defense of Indemnified Party. CMAR will defend each Indemnified Party under this indemnity at
CMAR’s expense with counsel reasonably acceptable to the Indemnified Party, subject to the
following:
(a)
The Indemnified Party has the opportunity to participate in the defense against the Claim;
(b)
If there are potential conflicting interests that would make it inappropriate for the same
counsel to represent both CMAR and the Indemnified Party, or the Indemnified Party has
defenses available to it that are not available to CMAR, then the Indemnified Party may
select separate counsel to represent it at CMAR's expense;
(c)
No settlement or compromise can be effected by CMAR without the prior consent of the
Indemnified Party; and
(d)
If CMAR does not, within thirty (30) days after receipt of Notice from the Indemnified Party
(or such shorter period of time as may be necessary to avoid a default on a Claim), give
Notice to the Indemnified Party of CMAR's election to assume the defense of the Claim,
the Indemnified Party has right to undertake, at the expense and risk of CMAR, the
defense, compromise or settlement of the Claim.
6.11.4 Negligence of Indemnified Party. The foregoing obligations to indemnify, defend, save and hold
harmless apply to the ultimate liability of CMAR only to the extent the Claim is found to have resulted
from the negligence of CMAR or of any Subcontractor or Supplier; however,
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 18
(a)
In no event, however, will an Indemnified Party be indemnified for a Claim to the extent it
results from the gross negligence or intentional conduct of the Indemnified Party or the
Indemnified Party’s agents, employees or indemnity as provided in A.R.S.§ 34-226.
(b)
An Indemnified Party's acting or failing to act in reliance on promises, representations or
agreements made by CMAR in the performance of the Work may not be considered gross
negligence or an intentional act or failure to act by the Indemnified Party.
6.12
NOTICES
6.12.1 Unless otherwise provided herein, demands under this Contract will be in writing and will be deemed to
have been duly given and received either (a) on the date of service if personally served on the party to
whom notice is to be given, or (b) on the third day after the date of the postmark of deposit by first class
United States mail, registered or certified, postage prepaid and properly addressed as follows:
To City:
David Beard, City Engineer
Glendale City Hall
5850 W. Glendale Ave.
3rd Floor – Engineering Department
Glendale, Arizona 85301-2599
To CM@Risk
Haydon Building Corp
To Design Professionals:
Stantec Consulting Services, Inc.
Copy to:
Glendale City Hall
5850 W. Glendale Ave.
3rd Floor – Engineering Department
Glendale, Arizona 85301-2599
6.13
COMPLIANCE WITH FEDERAL LAWS
6.13.1 The CM@Risk understands and acknowledges it is subject to of the Americans With Disabilities Act,
the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to it. The
CM@Risk agrees to comply with these Acts and all other applicable federal and state laws and City
Charter and Code provisions in performing this Contract and to permit the City to verify such
compliance.
6.14
CONFLICT OF INTEREST
6.14.1 To evaluate and avoid potential conflicts of interest, the CM@Risk will provide written notice to the City,
as set forth in this section, of any work or services performed by the CM@Risk for third parties that may
involve or be associated with any real property or personal property owned or leased by the City. Such
notice will be given seven business days prior to commencement of the Project by the CM@Risk for a
third party, or seven business days prior to an adverse action as defined below.
Written notice and disclosure will be sent to:
City of Glendale
Attn: David Beard
5850 W. Glendale Ave.
3rd Floor - Engineering Department
Glendale, Arizona 85301-2599
Conflicts. Contractor acknowledges this Agreement is subject to A.R.S. § 38-511, which allows for
cancellation of this Agreement in the event any person who is significantly involved in initiating,
negotiating, securing, drafting, or creating the Agreement on City's behalf is also an employee, agent,
or consultant of any other party to this Agreement.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 19
6.14.2 Actions considered to be adverse to the City under this Contract include but are not limited to:
(a)
Using data as defined in the Contract, acquired in connection with this Contract to any third party
contrary to section 6.4 herein;
(b)
Testifying or providing evidence on behalf of any person in connection with administrative or
judicial action against the City;
(c)
Using data to produce income for the CM@Risk or its employees independently of performing the
services under this Contract, without the prior written consent of the City.
6.14.3 The CM@Risk represents that except for those persons, entities and projects previously identified in
writing to the City, the services to be performed by the CM@Risk under this Contract will not create an
interest with any person, entity, or third party project that is or may be adverse to the interests of the
City.
6.14.4 The CM@Risk’s failure to provide a written notice and disclosure of the information as set forth in this
section will constitute a material breach of this Contract.
6.15
CONTRACTOR’S LICENSE AND PRIVILEGE LICENSE
6.15.1 The CM@Risk must provide to the City’s Engineering Department, its Contractor’s License
Classification and number, its City of Glendale Privilege License number, and its Federal Tax I.D.
number prior to the execution of this Agreement.
6.16
SUCCESSOR AND ASSIGNS
6.16.1 The City and the CM@Risk will each bind itself, and its partners, successors, assigns, and legal
representatives to the other party to this Contract and to the partners, successors, assigns, and legal
representatives of such other party in respect to all covenants of this Contract. Neither the City nor the
CM@Risk will assign, sublet, or transfer its interest in this Contract without the written consent of the
other. In no event will any contractual relation be created or be construed to be created as between
any third party and the City.
6.17
FORCE MAJEURE
6.17.1 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;
(3)
Damage or disruption committed on behalf of any foreign interests to further international political
objectives;
(4)
Injunction in connection with litigation, governmental action;
(5)
Severe and adverse weather conditions beyond those that can be reasonably anticipated as of the
Effective Date of this Agreement.
6.17.2 If either party is delayed or prevented from the performance of any service, in whole or part, required
under this Contract by reason of force majeure, acts of God, or other cause beyond the control and
without fault of that party (financial inability excepted), performance of that act will be excused, but only
for the period of the delay. The time for performance of the act will be extended for a period equivalent
to the period of delay.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 20
6.18
COVENANT AGAINST CONTINGENT FEES
6.18.1 In addition to those rights provided to the City pursuant to A.R.S. 38-511, the CM@Risk warrants that
no person has been employed or retained to solicit or secure this Contract upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee, and that no member of the
City Council, or any employee of the City of Glendale has any interest, financially, or otherwise, in the
firm. The City of Glendale will, in the event of the breach or violation of this warranty, have the right to
annul this Contract without liability, or at its discretion to deduct from the Contract Amount or
consideration, the full amount of such commission, percentage, brokerage, or contingent fee.
6.19
NON-WAIVER PROVISION
6.19.1 The failure of either party to enforce any of the provisions of this Contract or to require performance by
the other party of any of the provisions hereof will not be construed as a waiver of such provisions, nor
will it affect the validity of this Contract or any part thereof, or the right of either party to thereafter
enforce each and every provision.
6.20
JURISDICTION
6.20.1 This Contract will be deemed to be made under, and will be construed in accordance with and
governed by the laws of the State of Arizona, without regard to the conflicts or choice of law provisions
thereof. An action to enforce any provision of this Contract or to obtain any remedy with respect hereto
will be brought in the Superior Court, Maricopa County, Arizona, and for this purpose, each party
hereby expressly and irrevocably consents to the jurisdiction and venue of such Court.
6.21
SURVIVAL
6.21.1 All warranties, representations and indemnifications by the CM@Risk will survive the completion or
termination of this Contract.
6.22
MODIFICATION
6.22.1 No supplement, modification, or amendment of any term of this Contract will be deemed binding or
effective unless in writing and signed by the parties hereto and in conformation with provision of this
Contract, except as expressly provided herein to the contrary.
6.23
SEVERABILITY
6.23.1 If any provision of this Contract or the application thereof to any person or circumstances will be invalid,
illegal or unenforceable to any extent, the remainder of this Contract and the application thereof will not
be affected and will be enforceable to the fullest extent permitted by law.
6.24
INTEGRATION
6.24.1 This Contract contains the full agreement of the parties hereto. Any prior or contemporaneous written
or oral agreement between the parties regarding the subject matter hereof is merged and superseded
hereby.
6.25
TIME IS OF THE ESSENCE
6.25.1 Time of each of the terms, covenants, and conditions of this Contract is hereby expressly made of the
essence.
6.26
THIRD PARTY BENEFICIARY
6.26.1 This Contract will not be construed to give any rights or benefits in the Contract to anyone other than
the City and the CM@Risk. All duties and responsibilities undertaken pursuant to this Contract will be
for the sole and exclusive benefit of the City and the CM@Risk and not for the benefit of any other
party.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 21
6.27
COOPERATION AND FURTHER DOCUMENTATION
6.27.1 The CM@Risk agrees to provide the City such other duly executed documents as may be reasonably
requested by the City to implement the intent of this Contract.
6.28
CONFLICT IN LANGUAGE
6.28.1 All work or Deliverables performed will conform to all applicable City of Glendale codes, ordinances and
requirements as outlined in this Contract.
6.29
CITY’S RIGHT OF CANCELLATION
Lack of Appropriations. Nothing in this Agreement guarantees that some or all of the funds
necessary to comply with all of the City’s obligations under this Agreement will be appropriated or
otherwise be available. The City agrees to seek such appropriations in good faith from the City Council,
and agrees not to use the lack of appropriation as a substitute for termination for convenience. If
sufficient funds are not appropriated or otherwise available, the City may unilaterally terminate this
Agreement after providing thirty (30) days written notice. In the event the City provides such notice, the
City will not be entitled to a refund or offset of any amounts previously paid, but will not pay any
amounts that become due after providing such notice.
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Contractor
warrant their compliance and that of its subcontractor with all federal immigration laws and
regulations that relate to their employees and compliance with the E-verify requirements under A.R.S.
§ 23-214(A). The Contractor or subcontractor’s breach of this warranty shall be deemed a material
breach of the Agreement and may result in the termination of the Agreement by the City under the
terms of this Agreement. The City retains the legal right to randomly inspect the papers and records
of the other party to ensure that the other party is complying with the above-mentioned warranty. The
Contractor and subcontractor warrant to keep their respective papers and records open for random
inspection during normal business hours by the other party. The parties shall cooperate with the
City’s random inspections, including granting the inspecting party entry rights onto their respective
properties to perform the random inspections and waiving their respective rights to keep such papers
and records confidential.
No Boycott of Israel. The Parties agree that they are not currently engaged in, and agree that for the
duration of the Agreement they will not engage in, a boycott of Israel, as that term is defined in A.R.S.
§35-393.
Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered according to the American Arbitration Association’s
Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
Non Discrimination. Contractor must not discriminate against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin, age, marital status, sexual
orientation, gender identity or expression, genetic characteristics, familial status, U.S. military veteran
status or any disability. Contractor will require any Sub-contractor to be bound to the same
requirements as stated within this section. Contractor, and on behalf of any subcontractors, warrants
compliance with this section.
ARTICLE 7 – INSURANCE
The CM@Risk will procure and maintain for the duration of the Contract, insurance against claims for injury to
persons or damage to property which may arise from or in connection with the performance of the work or
Deliverables hereunder by the CM@Risk, its agents, representatives, employees, Subconsultants,
Subcontractors, and/or Suppliers. Insurance requirements related to any construction Work done during the
construction phase will be defined in a separate contract associated with the construction phase. The CM@Risk
will cause all Subcontracts to contain identical terms and conditions to those included in this Article.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 22
The insurance requirements herein are minimum requirements for this Contract and in no way limit the
indemnity covenants that might arise out of the performance of the work or Deliverables under this Contract by
the CM@Risk, its agents, representatives, employees, Subconsultants, Subcontractors, or Suppliers and
CM@Risk is free to purchase such additional insurance as it may determine necessary.
7.1
MINIMUM SCOPE AND LIMITS OF INSURANCE
7.1.1
CM@Risk will provide coverage at least as broad and with limits
below.
of liability not less than those stated
7.1.1.1 Commercial General Liability-Occurrence Form
(Form CG 0001, ed. 10/93 or any replacements thereof)
General Aggregate/per project
$1,000,000
Products-Completed Operations Aggregate
$1,000,000
Personal & Advertising Injury
$1,000,000
Each Occurrence
$1,000,000
Fire Damage
$100,000
7.1.1.2 Automobile Liability-Any Auto or Owned, Hired and Non-Owned Vehicles
(Form CA 0001, ed. 12/93 or any replacement thereof)
Combined Single Limit Per Accident
$2,000,000
for Bodily Injury and Property Damage
7.1.1.3 Workers Compensation and Employers Liability
Workers Compensation
Statutory
Employers Liability:
Each Accident
$500,000
Disease-Policy Limit
$500,000
Disease-Each Employee
$500,000
7.1.2
Self-Insured Retentions Any self-insured retentions and deductibles greater than $10,000 must be
declared to and approved by the City.
7.2
OTHER INSURANCE REQUIREMENTS
7.2.1
The Commercial General Liability and Automobile Liability policies are to contain, or be endorsed to
contain, the following provisions:
7.2.1.1 Except for Professional Liability and Workers’ Compensation and Employer’s Liability coverage, the
City and its agents, representatives, directors, officials, employees, and officers shall be named as
additional insureds on all policies for insurance coverage required by this Contract.
7.2.1.2 The Commercial General Liability Insurance will contain broad form contractual liability coverage and
will not exclude liability arising out of the explosion, collapse or underground hazard (“EXU”).
7.2.1.3 The City will be an additional insured to the full limits of liability purchased by the CM@Risk, even if
those limits of liability are in excess of those required by this Contract. The Commercial General
Liability additional insured endorsement will be at least as broad as the Insurance Service Office, Inc.’s
Additional Insured, CG 20 10 04 13 and CG 20 37 04 13.
7.2.2
The CM@Risk’s insurance coverage will be primary insurance with respect to the City. Insurance or
self-insurance maintained by the City will be in excess of the CM@Risk‘s insurance and will not
contribute to it.
7.2.3
The CM@Risk‘s insurance will apply separately to each insured against whom claim is made or suit is
brought that, except with respect to the limits of the insurer’s liability. The coverage provided by the
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 23
CM@Risk and its Subcontractors will not be limited to the liability assumed under the indemnification
provisions of this Agreement.
7.2.4
The policies will contain a waiver of subrogation against the City for losses arising from Work performed
for the City.
7.2.5
Workers’ Compensation and Employers Liability policies are to contain, or be endorsed to contain, the
following: The insurer will agree to waive all rights of subrogation against the City for losses arising
from work performed for the City.
7.2.6
Property Coverage. CMAR shall purchase and maintain, in a company or companies lawfully
authorized to do business in the jurisdiction in which the Project is located, property insurance written
on a builders risk “all-risk” or equivalent policy form in the amount of the initial Contract sum, plus value
of subsequent Contract modifications and cost of materials supplied or installed by others, comprising
total value for the entire Project at the site on a replacement cost basis. This insurance shall include
interests of the City, the CMAR, Subcontractors and its subcontractors in the Project, and shall include
insurance against the perils of fire and physical loss or damage including, without duplication of
coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework,
testing and startup, temporary buildings and debris removal, including demolition occasioned by
enforcement of any applicable legal requirements.
7.3
SUBCONSULTANT INSURANCE
7.3.1
CM@Risk‘s certificate(s) shall include all subcontractors as insureds under its policies or the CM@Risk
shall furnish to the City separate certificates for each subcontractor. All coverages for subcontractors
shall be subject to the minimum requirements identified above.
7.4
NOTICE OF CANCELLATION
7.4.1
Each insurance policy required by the insurance provisions of this Contract will provide the required
coverage and not be suspended, voided, canceled by either party, reduced in coverage or in limits
except after thirty (30) days prior written notice has been given, by certified mail, return receipt
requested to the City’s named Project Manager at:
5850 W. Glendale Ave.
3rd Floor – Engineering Department
Glendale, Arizona 85301-2599
7.5
ACCEPTABILITY OF INSURERS
7.5.1
Insurance is to be placed with insurers duly licensed or City approved unlicensed companies in the
State of Arizona, and with an A.M. Best’s rating of no less than A-:VII. The City in no way warrants that
the above required minimum insurer rating is sufficient to protect the CM@Risk from potential insurer
insolvency.
7.6
VERIFICATION OF COVERAGE
7.6.1
The CM@Risk will furnish the City, Certificates of Insurance (ACORD form or equivalent approved by
the City) with original endorsements effecting coverage as required by this Contract. The certificates
and endorsements for each insurance policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf. Any policy endorsements that restrict or limit coverages will be clearly
noted on the certificate of insurance.
7.6.2
All certificates and endorsements are to be received and approved by the City before work commences.
Each insurance policy required by this Contract must be in effect at or prior to the earlier of
commencement of work under this Contract or signing of this Contract, and remain in effect for the
duration of the Project. Failure to maintain the insurance policies as required by this Contract or to
provide evidence of renewal is a material breach of contract.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 24
7.6.3
All Certificates of Insurance required by this Contract will be sent directly to the Services Department
Contracts Administration Section contracts officer for this Project. The Project Number and Project
description will be included on the Certificates of Insurance. The City reserves the right to require
complete, certified copies of all insurance policies required by this Contract, at any time.
7.7
APPROVAL
7.7.1
Any modification or variation from the insurance requirements in this Contract must be approved by the
Law Department, whose decision will be final. Such action will not require a formal contract
amendment, but may be made by administrative action.
This Contract will be in full force and effect only when it has been approved and executed by the duly
authorized City officials.
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City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 25
IN WITNESS WHEREOF, the parties hereto have executed this Contract.
ATTEST
CITY OF GLENDALE
By:
Julie K. Bower
Kevin R. Phelps
City Clerk
City Manager
REVIEWED BY:
CM @ RISK
Haydon Building Corp,
an Arizona Corporation
By:
Michael D. Bailey
Mark Eklund
City Attorney
Its: Vice President
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 26
EXHIBIT A – PROJECT DESCRIPTION
The project intent is to provide drainage improvements near Bethany Homes Rd from 51st Ave & 43rd Ave between
Maryland and Grand Avenues, and on Grand Avenue between 47th and 51st Avenues and, associated watershed.
Haydon Construction (Contractor) to provide design phase assistance and construction services as the
Construction Manager at Risk (CMAR).
The drainage improvements will mitigate recurring drainage issues near the intersection of Bethany Home Road,
51st Avenue and Grand Ave by intercepting and redirecting stormwater with storm drain system, and by providing
additional retention and detention facilities. The project is divided into three (3) separate design packages to
advance construction start dates in specific locations. Each package will be submitted and finalized on independent
schedules.
City of Glendale – (Bethany Homes Rd. Drainage Improvements-202105)-CMAR 27
EXHIBIT B - HOURLY RATE SCHEDULE
The schedule of hourly labor rates for employees of the CM@Risk and its Subconsultants follow and are based
on the approved proposal submitted to the City on 04/19/2022.
LIST OF CLASSIFICATIONS:
For all phases of design and pre-construction services (Programming/ Schematic Design, Design
Development, Construction Documents):
Personnel
Hourly Rate
PreCon Manager
$135
Estimating Manager
$135
Estimator
$128
Project Manager
$128
Utilities Coordinator
$109
Project Superintendent
$119
Project Engineer
$107
Agtek-(includes Takeoff Engineers)
$101
GPS/Drone Crew
$121
Safety Manager
$119
For all phases of design and pre-construction services (Programming/ Schematic Design, Design
Development, Construction Documents):
Phases
Total
Package 1
$37,471.25
Package 2
$67,448.25
Package 3
$44,965.50