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CITY OF GLENDALE
CONSTRUCTION MANAGER AT RISK AGREEMENT
Project: Arrowhead Hospital (COG-50) and
Sierra Verde Park (COG-51) Wells
Project No.: 212228
TABLE OF CONTENTS
SECTION
PAGE
Definitions ............................................................................................................................................... 1
Construction Services .............................................................................................................................. 3
Representatives and Key Personnel ........................................................................................................ 3
Documents .............................................................................................................................................. 5
Guaranteed Maximum Price ................................................................................................................... 6
Schedules ................................................................................................................................................ 8
Compensation ........................................................................................................................................ 13
Progress Payments ................................................................................................................................. 16
Final Payment ........................................................................................................................................ 19
Changes ................................................................................................................................................. 21
CMAR's Claims ..................................................................................................................................... 22
Additional Terms and Condition of Payment ........................................................................................ 22
Project Coordinator ................................................................................................................................ 24
Subcontractors and other Lower Tier Persons ....................................................................................... 25
Self-Performed Work .............................................................................................................................. 29
Performance Standards .......................................................................................................................... 29
Regulatory Compliance ......................................................................................................................... 29
Health and Safety ................................................................................................................................... 31
Permits ................................................................................................................................................... 32
Site ......................................................................................................................................................... 33
Improper or Differing Conditions .......................................................................................................... 33
On-site City Activity ............................................................................................................................... 35
Inspection of Work................................................................................................................................. 36
Warranties .............................................................................................................................................. 38
Liens and Stop Notices .......................................................................................................................... 38
No Waiver .............................................................................................................................................. 39
CMAR’s Warranties and Representations .............................................................................................. 39
CMAR Relationship to City ................................................................................................................... 40
Assignments ........................................................................................................................................... 40
Taxation of Revenue Bonds ................................................................................................................... 41
Indemnity ............................................................................................................................................... 41
Insurance Requirements ........................................................................................................................ 42
Records .................................................................................................................................................. 43
Equal Employment Opportunity ........................................................................................................... 44
Termination ........................................................................................................................................... 45
Dispute Resolution ................................................................................................................................ 46
Notices ................................................................................................................................................... 46
Miscellaneous ........................................................................................................................................ 47
Conditions Precedent ............................................................................................................................. 48
Exhibits .................................................................................................................................................. 48
CONSTRUCTION MANAGER AT RISK AGREEMENT
This Construction Manager at Risk Agreement (this "Agreement") is made by and between the City of
Glendale, an Arizona municipal corporation ("City"), and MGC Contractors Inc. , an Arizona
corporation, authorized to do business in the State of Arizona ("CMAR").
RECITALS
A.
City is undertaking the design and construction of a public works project, as described in detail
in Exhibit A, to benefit its citizens and visitors and the region generally (the "Project").
B.
City has engaged Hazen and Sawyer to prepare design, programs, budgets, and other criteria
for the project (the "Design Documents").
C.
CMAR’s Statement of Qualifications (“SOQ”) was submitted in response to the City’s Request
for Qualifications dated February 10, 2022. CMAR was selected by a qualification-based
process in accordance with Title 34 of the Arizona Revised Statutes.
D.
City will engage CMAR under the terms of this Agreement to manage and be responsible for
the timely and proper construction and commissioning of the fully completed and functional
Project (the “Work”).
E.
MGC Contractors, Inc. was retained to provide “value engineering” and “constructability”
reviews of the design documents pursuant to a separate contract. MGC Contractors, Inc. will
therefore not be paid for suggesting additional design changes for this Project, as the City has
already paid for such professional services. Any further design changes shall be performed by
MGC Contractors, Inc. at its own risk and own cost.
AGREEMENT
City, subject to the terms and conditions of this Agreement, hereby engages CMAR to construct the
Project. CMAR accepts this engagement as provided herein. Therefore, City and CMAR agree as
follows:
1.
Definitions. For the purposes of this Contract, the following words and terms shall have
the respective meanings set forth below. All other words shall be given their ordinary and
common usage, unless otherwise noted.
a.
"Change Order" means a written amendment to this Agreement, executed on behalf of City
and CMAR that specifies the Change, and the adjustment to the Contract Sum and/or
Contract Times.
b.
"Construction Documents" means those stamped and sealed documents containing all of
the elements required in this Agreement and prepared by a registered design professional in
connection with the Work that have been accepted by both CMAR and City and approved
and released for construction by the applicable governmental permitting authorities.
c.
"Construction Materials" means all fixtures, materials, and supplies provided for
incorporation in the Project.
d.
"Project Documents" include:
(A)
this Agreement and any amendments,
(B)
Design Documents,
(C)
Construction Documents,
(D)
any Change Orders, Change Directives, or Field Orders,
(E)
Notice to Proceed,
(F)
Project related specifications and drawings,
(G)
permits,
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(H)
FFE Procurement Schedules,
(I)
provisions of the required bonds and insurance policies, and
(J)
other documents identified in Exhibit A.
e.
"Construction Services" means all procurement and construction services of every kind and
description, including all construction services, expertise, labor, materials, equipment, tools,
utilities, supervision, coordination, scheduling, permitting, shop drawings, transportation,
insurance, testing, inspection, procurement, installation and other facilities and services of
every kind and description, and calculations incidental and required in connection therewith
and as further described in Exhibit A.
f.
“Excusable Delay” means a delay that the City determines has or will cause the Project
Schedule not to be met as a result of an event that is not attributable in any manner to CMAR’s
actions or inactions, or attributable in any manner to the actions or inactions of any entity
under CMAR’s control or direction, and cannot be avoided or mitigated by CMAR’s best
efforts. A Force Majeure, as defined in Section 6.7 herein, would constitute an Excusable
Delay.
g.
"FFE" means the furniture, fixtures, and moveable equipment and other items of Work that
are required for the completed Project. City may distinguish between furniture, fixtures, and
moveable equipment that will be provided by City outside CMAR’s scope and that which
CMAR will provide as a part of this Agreement.
h.
"Final Completion" means the date when all of the following have occurred:
(A)
All punch list items have been completed to the satisfaction of the governmental
permitting authority;
(B)
A permanent certificate of occupancy has been secured;
(C)
The Engineer of Record has accepted the Project and submitted the property
Certificate of Final Completion to City; and
(D)
City has accepted the Project.
i.
"Hazardous Substance" means any element, compound, mixture, solution, particle or
substance which is or may become dangerous, or harmful to the health and welfare of life or
the physical environment if not used, stored or disposed of in accordance with applicable law,
such as, but not limited to, explosives, petroleum products, radioactive materials, hazardous
wastes, toxic substances, pollutants or contaminants, including without limitation: (1) any
substance or material included within the definitions of "hazardous substances," "hazardous
wastes," "special wastes," "regulated substances," "Hazardous Substances," "toxic substances,"
"hazardous pollutants" or "toxic pollutants" in any of the Resource Conservation and
Recovery Act, 42 U.S.C. § 9601, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. 6901, the Toxic Substances Control Act, the Clean Air
Act and/or the Clean Water Act, as the foregoing may be amended from time to time, or any
regulations promulgated thereunder, and any analogous state, local or other governmental
laws, rules or regulations; (2) any "PCBs" or "PCB items," as defined in 40 CFR § 761.3; and
(3) any "asbestos," as defined in 40 CFR § 763.63.
j.
"Subcontractor" means any person or entity, including materialmen, that has a direct
contract with CMAR to furnish any element of the Work. The prime contractor of CMAR is
not a subcontractor.
k.
"Substantial Completion" of the Work means the date when all of the following have
occurred:
(A)
The Work is approved by City and deemed by the City to be substantially complete;
(B)
The applicable permitting authorities have each issued its respective written
approval(s) of the Work as being sufficiently complete so that it may lawfully be
occupied by City for City's intended use;
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(C)
The Engineer of Record has accepted the Project and submitted the property
Certificate of Substantial Completion to City certifying that the work is substantially
complete; and
(D)
Subject only to specified punch list items.
l.
"Supplier” means any entity, except the CMAR and a direct Subcontractor of the CMAR,
that is contracted to furnish any labor, equipment, professional services, Construction
Materials or other goods or services to accomplish or complete the Work required in this
Agreement.
m.
"Vendor" means a Subcontractor or Supplier who sells, but does not attach or install
Construction Materials that are not specially manufactured or fabricated for the Project.
n.
"Withholding" means the amount of each Progress Payment, Final Payment, or other
amount otherwise payable to CMAR will be reduced for the reasons provided in this
Agreement.
o.
“Work” means that activity required for the timely, cost-effective, and proper design,
engineering, construction, implementation and commission of the Project. Work includes,
and is the result of, CMAR performing, furnishing, and incorporating as necessary all labor,
materials, and equipment into the construction of the Project, and CMAR performing,
furnishing, or making provision for the services and documents required by this Agreement,
including and Project documents, which are incorporated hereto by reference.
p.
"Work Product" means the documents generated by CMAR and its Supplier(s), including,
but not limited to, all preliminary and completed evaluations, programs, reports, drawings,
plans, operational documents or other work product in any media or form that CMAR and its
Supplier(s) generate, or arrange for, in connection with the Project, together with the design
of the buildings and structures embodied within them, and all items and matters included
within the definition of "architectural work" as provided in 17 U.S.C. § 101.
2.
Construction Services.
2.1
CMAR Obligation.
(A)
CMAR will furnish all Construction Services, including those further described in
Exhibit A, that are necessary for the Project’s timely and proper construction,
completion, and use by City.
(B)
Construction Services includes the completion of every improvement depicted,
required by or reasonably inferable from any portion of the Project Documents.
3.
Representatives and Key Personnel.
3.1
CMAR Representative.
(A)
Responsibilities. CMAR's Representative is authorized to act on CMAR’s behalf and
may not be discharged, replaced or have diminished responsibilities on the Project
without City's prior consent, which may not be unreasonably withheld.
(B)
Address. CMAR’s Representative address for Notice, as required in this Agreement,
is:
Randy L. Gates
MGC Contractors, Inc.
4110 East Elwood Street,
Phoenix, Arizona 85040
3.2
City’s Representative.
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(A)
Designation of City Representative. City's Representative is authorized to
act on City’s behalf, whose address for Notice, as required in this Agreement,
is:
Martin A. Soma PE
Senior Civil Engineer
City of Glendale
5850 W. Glendale Avenue, Suite 315
Glendale, Arizona 85301
With required copies to:
City Attorney
City of Glendale
City Attorney's Office
5850 W. Glendale Avenue, Suite 450
Glendale, Arizona 85301
(B)
Concurrent Notices.
(1)
Except to the extent otherwise directed to CMAR in writing, all
Notices to City's Representative must be given concurrently to the
Project Coordinator and City Attorney.
(2)
Notices are not considered received by City's Representative until
the time that it has also been received by the Project Coordinator
and City Attorney.
(C)
Construction Administration Project Manager. The Construction
Administration representative (the "Project Manager") with authority to act
for the Construction Administration Firm for the Project whose information
for Notices is:
Bhaskar Kolluri, PE
Hazen and Sawyer
1400 East Southern Avenue, Suite 340,
Tempe, AZ 85282
Email: BKolluri@hazenandsawyer.com
3.3
Key Personnel.
(A)
Employment of Key Personnel. CMAR and its Subcontractors will employ
key personnel in connection with the Work, in categories of persons
identified in Exhibit B (collectively, "Key Personnel") and each of whom
will be acceptable to and approved by City.
(B)
Approval of Key Personnel.
(1)
All personnel listed in CMAR’s SOQ will be assigned to the Project and
will be dedicated to performing work on the Project at not less than the
frequency or amount of time identified in the SOQ.
(2)
Prior to the commencement of the Work, CMAR must deliver to City a
written proposal identifying the names, duties and titles, and attaching the
resumes of each person who CMAR proposes as the Key Personnel.
(3)
Except for those Key Personnel identified in the SOQ, City will have
the right to disapprove CMAR's choice of any Key Personnel,
provided City does so by giving written notice to CMAR.
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(4)
If City disapproves any of CMAR's proposed Key Personnel, CMAR
must provide City with the name and qualifications of proposed
alternates and the procedure will continue until a complement of
Key Personnel who meet with City's approval is selected.
(5)
Each Key Personnel will remain assigned to the Project throughout
the Project’s duration; and
(6)
As long as each Key Personnel remains employed by CMAR or its
Subcontractors, he or she must not be discharged, reassigned,
replaced, or have his or her responsibility diminished without City's
prior written consent.
4.
Documents.
4.1
4.2
CMAR Documents. CMAR represents that it has carefully examined, has had the
opportunity to object to, and had the opportunity to obtain limitations to the Solicitation
during the RFQ process, and fully understands this Agreement, including CMAR Documents
and all other items, conditions, and things that may affect the performance of its obligations.
Such items or conditions may include, but are not limited to, the nature or local field
conditions of the Project Site that are observable to CMAR without intrusive inspection, or
are documented in any environmental reports, surveys and other information regarding the
Site that City has furnished to CMAR.
Design Documents. MGC has already reviewed Design Documents under a
separate professional services contract with the City. Accordingly:
(A)
CMAR must consider the Design Documents in agreeing to the Guaranteed
Maximum Price (as required by Section 5 of this Agreement).
(B)
CMAR hereby waives all claims, demands or requirements for extras or
changes to the Work or the Guaranteed Maximum Price based on facts
related to the Site that were discoverable by CMAR prior to the Effective
Date of this Agreement.
(C)
CMAR will not receive any additional compensation for a change to the
design documents unless such changes are necessitated by new information
or changed conditions discovered during the course of performing the work,
as provided in Section 20.3 herein.
4.3
Work Product Formatting. Any drawings created by CMAR, its Subcontractors, or its
Supplier(s) will be generated and furnished to City in hardcopy and in freely modifiable
AutoCAD format, as City may reasonably request.
4.4
Intellectual Property Rights Assignment. CMAR hereby irrevocably conveys and assigns
to City the exclusive Ownership of, and copyright in, any Work Product that is generated by
CMAR, its Subcontractors, and its Supplier(s) in connection with the Project, together with all
copyright renewals and extensions and the right to reproduce, publish, modify, and create and
publish derivative works from the Work Product.
(A)
Use of Intellectual Property. CMAR warrants that it, its Subcontractors, and
its Supplier(s) will not utilize any of the Work Product in connection with
any other project without City’s prior written consent, which may not be
unreasonably withheld but which may be denied to the extent the requested
use is for the other project and involves any unique or signature elements of
the Project.
(B)
Non-Infringement. CMAR further warrants to City that all Work Product
generated or arranged for by CMAR, its Subcontractors, and its Supplier(s)
in connection with the Project, and CMAR's conveyance and assignment to
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City of the ownership of, and copyrights in, the Work Product and/or
copyrights in them, as provided in this section, will not infringe on the
copyrights or another party’s contractual or proprietary interests.
(C)
CMAR will include provisions equivalent to the provision(s) contained in this
Section 4 of this Agreement in each of CMAR's subcontracts and third party
agreements with its Suppliers.
5.
Guaranteed Maximum Price. The maximum amount for completion of the Work as required by the
Design Documents, as reviewed, modified and approved by CMAR, will be the Guaranteed Maximum
Price (“GMP”).
5.1
GMP Elements. The GMP will incorporate into one amount::
(A)
All CMAR's direct and indirect costs and expenses incurred in connection
with the Work, whether at the home office, Site, or elsewhere;
(B)
The cost of all construction, construction materials, engineering services,
architectural services, geotechnical services, transportation costs, labor,
supplies, services, equipment and other elements necessary for the Project’s
proper and timely completion;
(C)
All profit, home office overhead, job site overhead, wages, salaries and fringe
benefits paid to supervisory and other employees and representatives;
(D)
Job trailer rental, utilities, telephone, and other related expenses;
(E)
Printing;
(F)
Long distance charges;
(G)
Deliveries;
(H)
Transportation;
(I)
Insurance, as allowed in Section 31 of this Agreement;
(J)
Bonds, as allowed in Section 31 of this Agreement;
(K)
All building permit costs and fees required by any federal, state or local
governmental entity;
(L)
All federal, state and local taxes imposed on labor, construction materials,
equipment and services furnished, including transaction privilege, excise,
sales, use, personal property and similar taxes, as allowed in Section 7.4 of
this Agreement; and
(M)
All other general and administrative expenses incurred in connection with
the Work.
5.2
Insurance and Bond Premiums. CMAR's Reimbursable Construction Insurance and Bond
Premiums are the amounts equal to the premiums CMAR is required to pay to secure:
(A)
The Builder's Risk Policy that CMAR is required to furnish with City's
approval as provided in this Agreement;
(B)
The liability insurance CMAR and its Supplier(s) are required to furnish under
the provisions of Exhibit E in connection with the Construction Services;
and
(C)
CMAR's statutory payment and performance bonds as provided in Section
31.3 of this Agreement, if the premium has been included in the GMP
Schedule approved in writing by City.
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5.3
Contingencies. Any line item identified in the GMP Schedule as a contingency
("Contingency") belongs solely to City, and may not be drawn upon or reallocated by CMAR
without City and Project Coordinator’s prior written approval.
(A)
Draws Including a Contingency. CMAR must include with each monthly
Application for Progress Payment an itemization of each draw from the
Contingency (by date, payee, purpose and amount of each transfer or
payment) made during the Billing Month, together with a copy of City's
written approval for the draw.
(B)
Required Designation of Contingency. Unless the GMP Schedule
conspicuously designates a line item as a “contingency,” the GMP does not
include any contingency amount of any kind or nature.
5.4
Allowance. There are no line item costs identified as allowances in the GMP Schedule
("Allowance Item"). Accordingly, the GMP may only be increased or decreased by a written
amendment to this Agreement, signed by both of the Parties.
5.5
Unit Priced Items. There are no line item costs identified as a unit price item ("Unit Price
Item") or extended price ("Unit Price Extension Amount") in the GMP Schedule.
Accordingly, the GMP may only modified to include a Unit Price Item or a Unit Price
Extension Amount by a written amendment to this Agreement, signed by both of the Parties.
5.6
FFE. FFE not specified in the Construction Documents will be procured in
accordance with the FFE Procurement Schedules to be developed by CMAR subject
to CMAR and City’s mutual agreement.
(A)
FFE Warranty. CMAR warrants to City that:
(1)
Construction materials and equipment and FFE furnished under this
Agreement will be of good quality and new unless otherwise required
or permitted by the Construction Documents and the FFE
Procurement Schedules;
(2)
The construction will be free from faults and defects; and
(3)
The construction and FFE will conform to this Agreement’s
requirements, the Construction Documents, and the FFE
Procurement Schedules.
(B)
Correction of Nonconforming FFE. Construction and FFE not conforming
to these requirements, including substitutions not properly approved by City,
must be corrected in accordance with Section 22 and 23 of this Agreement.
(C)
"FFE Procurement Schedules" means the interior design drawings and
listings of specific FFE to be purchased for the Project.
5.7
CMAR Risk. CMAR bears the sole risk that any element of cost, overhead, or profit might
cause the Guaranteed Maximum Price to be exceeded. If the GMP is exceeded, the City is
not liable for such additional cost or expense unless the City agrees to such a change in an
amendment to this Agreement signed by both of the Parties.
5.8
GMP Savings. If, upon the Work’s Final Completion, the Contract Sum is less than an
amount equal to the GMP, the resulting amount will belong solely to City.
5.9
GMP Schedule. The GMP is apportioned among the Work’s various elements as provided
in Exhibit C (the "GMP Schedule"). Exhibit C may be used by City as a basis for evaluating
CMAR's Applications for Progress Payment. To the extent there is any inconsistency between
any of the provisions in Exhibit C, and any of this Agreement’s provisions, this Agreement’s
provisions govern.
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6.
Schedules.
6.1
Commencement Date. The date of City’s written notice to proceed ("Notice to Proceed")
will be the Construction Services commencement date.
(A)
City will not issue a Notice to Proceed until City has approved the applicable
Construction Documents, and all necessary Permits have been issued.
(B)
CMAR must not commence any Construction Services at the Site until City has
issued a written Notice to Proceed.
6.2
Time of the Essence. Time is of the essence in completing the Project.
6.3
Project Schedule. CMAR must perform the Work in a logical and efficient manner in
accordance with City’s project schedule ("Project Schedule"), attached as Exhibit D.
(A)
Initial Project Schedule. Within 15 days of the execution of this Agreement,
CMAR must submit an initial Project Schedule, which will include the
following:
(1)
Times (number of days or dates) for starting and completing the
various stages of the Work, including milestones as specified in
CMAR Documents;
(2)
A Schedule of Values; and
(3)
Construction Management Plan (“CMP”).
(a)
CMAR’s CMP will include:
(i)
Project milestone dates and the Project Schedule,
including the broad sequencing of the construction
of the Project;
(ii)
Investigations, if any, to be undertaken to ascertain
subsurface conditions and physical conditions of
existing surface and subsurface facilities, including
underground utilities;
(iii)
Alternate strategies for fast tracking and/or
phasing the construction;
(iv)
Number of separate sub-agreements to be awarded
to Subcontractors and Suppliers for the Project
construction;
(v)
Permitting strategy;
(vi)
Safety and training programs;
(vii)
Construction quality control;
(viii)
Commissioning program;
(ix)
Cost estimate and basis of the model; and
(x)
A matrix summarizing each Project Team
member’s responsibilities and roles.
(b)
During the course of performance of the Work on this
Project, CMR will add detail to its previous version of the
CMP to keep it current throughout the construction phase
and to take into account:
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(i)
Revisions in Drawings and Specifications;
(ii)
CMAR'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 City, Design Professional or CMAR;
(iii)
Unresolved permitting issues, and significant
issues, if any, pertaining to the acquisition of land
and right of way;
(iv)
Fast-tracking, if any, of the construction, or other
chosen construction delivery methods;
(v)
Requisite number of separate bidding documents
to be advertised;
(vi)
Status of the procurement of long-lead time
equipment (if any) and/or materials; and
(vii)
Funding issues identified by City.
(B)
Adherence to Project Schedule. CMAR must adhere to the major milestone
dates of the Project Schedule at all times during the Work, unless it has
received City's prior written approval for a deviation from or modification to
the major milestone dates of the Project Schedule. CMAR must not depart
from the major milestone dates of the Project Schedule without prior
consultation with and approval from City.
(C)
Project Schedule Revision. The Project Schedule must be revised at least
monthly, or at more frequent intervals as required by the conditions of the
Work and Project, but each Project Schedule revision must allow for
expeditious and practicable execution of the Work consistent with the
Contract Times.
(1)
The monthly revision will be a condition precedent to any payment
otherwise due to CMAR.
(2)
Each revised Project Schedule must be prepared in sufficient detail
to demonstrate for each element of the work its timing, duration,
and sequence, all integrated to show a logical order and reasonable
critical path consistent with the Substantial Completion and Final
Completion Dates.
(a)
The revised Project Schedule may take into account an
appropriate number of weather delays reasonably
anticipatable based on experience in the area, but not less
than one day per month.
(b)
Each revised Project Schedule must include activities and
logic for mitigating the cost and time impact of any
anticipated or potential delays to any critical path elements
that CMAR wishes City to consider an Excusable Delay.
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(D)
Weekly Progress Meeting. From the Effective Date until Final Completion,
CMAR will meet with City every week (or more or less frequently, as
requested by City or CMAR) to review the Work’s progress.
(1)
In advance of each such meeting, CMAR must provide City a written
progress report in the format and detail as provided in Exhibit D
(each a “Progress Report”).
(a)
The Progress report will identify:
(i)
Whether the Work is on schedule in accordance
with the Project Schedule; or
(ii)
Whether there are anticipated or potential delays to
any critical path elements in the Work’s
construction, then CMAR must include an analysis
identifying CMAR’s plan for making up or
mitigating the delay.
(b)
Unless a delay is identified in the Progress Report, CMAR’s
Progress Report will be its certification that it has not
incurred any delays to the critical path elements at least to
the extent that a cause for the delay can then be reasonably
identified.
(2)
Unless the delay is an Excusable Delay, CMAR must take all actions,
at its expense, including working overtime and hiring additional
personnel, to comply with such Project Schedule.
(3)
If the delay is an Excusable Delay, the Project Schedule may be
modified to the extent mutually agreed upon by City and CMAR.
(4)
Notwithstanding any provision to the contrary in this Agreement,
CMAR is solely responsible for the timing, sequencing,
coordination, and supervision of the Work consistent with the
Substantial Completion and Final Completion Dates.
(5)
City's review, acceptance or approval of a Project Schedule or
Progress Report provided by CMAR is not:
(a)
A waiver or bar to any rights or claims City may have against
CMAR in the event City subsequently discovers a deficiency
in such Project Schedule or Progress Report; and
(b)
An acceptance of any delay as an Excused Delay, which may
only be granted, along with any extension of time, by a
Change Directive or amendment to this Agreement.
6.4
Substantial Completion Notification. CMAR will notify City and Project Coordinator in
writing when CMAR and Engineer of Record believe that CMAR has accomplished
Substantial Completion of the Project.
(A)
Incomplete Items. If City concurs the Substantial Completion has been
accomplished, City, Project Coordinator, CMAR and Engineer of Record will
determine whether any items remain incomplete.
(B)
Certificate of Substantial Completion. If City concurs the Substantial
Completion has been accomplished and Engineer of Record will then each
issue a “Certificate of Substantial Completion” to City, which will:
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(1)
Record the Substantial Completion date as determined by City;
(2)
State each party’s responsibility for security, maintenance, air
conditioning, heat, utilities, damage to the Work and insurance;
(3)
Include a list of items identified by City, CMAR and Engineer of
Record to be completed or corrected; and
(4)
Fix a reasonable period of time for their inspection.
(C)
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 11 of this Agreement.
6.5
Substantial Completion. CMAR must accomplish substantial completion by November
15, 2023 (the "Substantial Completion Date").
(A)
Extensions. The Substantial Completion and Final Completion Dates
("Contract Time") may be extended for cause, or by Change Order, as
provided in Section 6.7 of this Agreement.
(B)
Failure to Meet Substantial Completion Date. City will be substantially
damaged if CMAR fails to accomplish Substantial Completion of the Work
by the Substantial Completion Date, and it will be extremely difficult and
impractical to ascertain the actual damages resulting from such delay;
therefore:
(1)
CMAR will pay City liquidated damages ("Liquidated Damages") in
the event of a delay.
(2)
Accordingly, if CMAR fails to accomplish Substantial Completion
by the Substantial Completion Date, as it is extended in a signed
writing by both parties, in accordance with this Agreement, City may
assess, and CMAR must pay to City as Liquidated Damages, $1,420
for each day of delay until CMAR accomplishes Substantial
Completion.
(3)
CMAR acknowledges that these sums:
(a)
Will be paid as Liquidated Damages and not as a penalty;
(b)
Are reasonable under the circumstances existing as of the
Effective Date; and
(c)
Are based on the parties' best estimate of damages City
would likely suffer in the event of a delay.
(4)
CMAR must pay City any Liquidated Damages within ten (10) days
after demand, or City may deduct these sums from any monies due
or that may become due to CMAR under this Agreement.
(5)
City’s collection of Liquidated Damages will not affect its rights to
seek other remedies in law or at equity, including but not limited to
exercising its rights under the Payment and Performance Bonds.
6.6
Final Completion. Final Completion must be accomplished by December 15, 2023 (the
"Final Completion Date").
(A)
Extensions. The Final Completion and Final Completion Dates may be
extended for cause, by Change Order or other amendment of this
Agreement, as provided in Section 6.7 below.
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(B)
Failure to Meet Final Completion Date. If CMAR does not accomplish Final
Completion by the Final Completion Date, as it is extended in accordance
with this Agreement, City may thereafter take control of the Site, effective
upon delivery of written Notice to CMAR , and City may exercise its rights
under the terms of any Payment or Performance Bond, and seek any remedy
in law or at equity, including engaging other contractors to complete the
remaining Work, at CMAR's expense.
(1)
City may deduct its resulting expenses plus 20% from amounts
otherwise payable to CMAR.
(2)
CMAR must pay any amounts not so deducted within ten (10) days
after demand.
6.7
Completion Dates Extension. The Substantial Completion and Final Completion Dates
may be equitably extended by a written, signed amendment to this Agreement. Causes for
extending the completion dates may include:
(A)
City Delay. Any of the following (each a “City Delay”) to the extent they
necessarily result in unreasonable delays that are not caused or contributed
to by CMAR:
(1)
City’s failure to make a decision regarding a major milestone item
within a reasonable time (not exceed 10 days) after written request
from CMAR accompanied by all documents and other information
necessary for making the decision; or
(2)
Any material breach of this Agreement by City.
(B)
Force Majeure. The following items shall constitute a force majeure ("Force
Majeure") event, provided they are not caused or contributed to by CMAR,
or by any Subcontractor, Supplier or other person or entity for whom CMAR
is responsible:
(1)
Fire;
(2)
War;
(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.
(C)
Excusable Delay. The Substantial and Final Completion Dates may be
extended by the number of days the City, in its sole discretion, determines is
an Excusable Delay, as such term is defined in Section 1(g.) of this
Agreement.
(D)
Mitigation of Delays. CMAR must use its best efforts to minimize any such
time and cost impact of delays and must cooperate with City to mitigate the
impact of any delays encountered by CMAR that would entitle it to an
extension of time, even if its performance is unreasonably delayed by City.
(E)
Remedies for Delays.
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(1)
Pursuant to A.R.S. § 34-607(E), the parties agree to negotiate in good
faith any increased costs incurred by CMAR for any unreasonable
delay that is attributable solely to a delay caused by City; however,
CMAR will not be entitled to additional funds for any increase in
cost due to any type of delay.
(2)
CMAR's sole and exclusive remedy for a Force Majeure event is an
extension of time.
7.
Compensation.
7.1
Contract Sum. The City shall pay MGC Contractors, Inc. a contract sum not to exceed the
GMP for its performance of the Work under this Contract.
Cost Contract Sum is calculated by adding the Construction Services plus the
CMAR’s Fee (as defined in Section 7.2) and the amount paid for FFE
Services (as defined in Section 1(h.) herein). In no event shall the Contract
Sum exceed the GMP $8,158,027.45.
7.2
CMAR's Fee. CMAR's Fee is the sole and exclusive compensation for CMAR's direct and/or
indirect profit, home office overhead expense including, without limitation, home office
administration, accounting, support, clerical services, insurance not specifically reimbursable
under this Agreement, rent, all other direct and indirect home office expenses (including the
costs specifically identified by CMAR to recruit and relocate employees and bonuses (at a not-
to-exceed amount) that are previously approved by City as reimbursable); taxes other than
reimbursable payroll related taxes and any other cost or expense not specifically included
within the Cost of Construction Services.
Cost Fee may not exceed 9% of the Construction Services minus Privilege Taxes and
CMAR’s Reimbursable Construction Insurance and Bond Premiums, as specified by
Section 5.2 of this Agreement.
7.3
Construction Services Cost.
(A)
Costs included in Construction Services. Construction Services Cost consists
of the expenses incurred and paid by CMAR in the Project’s proper and
timely construction for:
(1)
Payments to City-approved Subcontractors or Supplier for the
performance of the Construction Services and/or the furnishing of
Construction Materials, fixtures, equipment and supplies in
accordance with the provisions of their respective Subcontracts or
Sub-subcontracts;
(2)
Wages, salaries and normal fringe benefits (as approved by City), and
normal employer taxes paid by CMAR thereon, of CMAR's
supervisory staff and general field labor assigned to the Work, but
only for the portion of time actually devoted to the Work, all subject
to and as approved in writing by City, provided such costs are not
included in the costs to be paid from CMAR’s Fee per Section 7.2
of this Agreement;
(3)
Elements of the Construction Services to be self-performed by
CMAR with City's approval, in amounts approved by City (which
will not include any mark-up for CMAR's Fee);
(4)
Permit, licenses, connection fees, and other such fees to the extent
required by any governmental entity;
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(5)
Construction Materials suitably stored on the Site with City's
approval as provided in Section 12.5 of this Agreement;
(6)
Construction equipment used on the Site by CMAR with City's
approval, at rates not to exceed the lesser of:
(a)
The prevailing rates charged by others for rental of similar
equipment; or
(b)
The purchase price of the Construction equipment less the
reasonable depreciation in value of that equipment as a
result of its use on the Site;
(7)
Construction utilities, job site telephone, job trailer rental, portable
toilets, dumpsters, cleanup and other job site general conditions as
approved by City;
(8)
Premiums paid by CMAR for Reimbursable Construction Insurance
and Bond Premiums as provided in Section 5.2 of this Agreement,
without any markup for CMAR's Fee;
(9)
Any other reasonable construction expense necessarily required for
proper performance of the Work at the Site required by this
Agreement as approved in writing by City; and
(10)
Reimbursable Privilege Taxes, without any mark up for CMAR's
Fee. Expenses that do not meet the criteria set forth above are not
reimbursable as Costs. All discounts received by CMAR from
Supplier accrue to City’s benefit.
(B)
Cost Excluded from Construction Services. The Cost of the Construction
Services may not include reimbursement for:
(1)
Any amounts for FFE Services;
(2)
The performance of any Construction Services by CMAR's own
forces or use of any equipment owned by CMAR without City's prior
written approval;
(3)
Any Construction Materials not yet incorporated in the Project or
stored at the Site with City's approval, as defined in Section 12.5(A)
of this Agreement;
(4)
Payment to CMAR or a subcontractor or supplier of amounts in
excess of the amounts approved by the City for CMAR's self-
performed Construction Services or for such performance by a
subcontractor or supplier;
(5)
Repair or replacement of defective or nonconforming Work;
(6)
Repair or replacement of Work damaged by the negligence or failure
to perform a responsibility hereunder by CMAR or by any Supplier;
(7)
Any interest or penalties;
(8)
Premiums
for
business
automobile
insurance,
workers
compensation and employers liability insurance, and any general
liability and other insurance normally carried by CMAR;
(9)
Any legal expense incurred by CMAR;
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(10)
Any other home office expense;
(11)
Any expense that causes the GMP, as amended, to be exceeded; or
(12)
CMAR’s Fee or any Privilege Tax(es);
(13)
Any other expense that does not meet the criteria set forth in Section
7.3(A) of this Agreement, and
(14)
Any costs associated with changes to the Design or Design
Documents that were not required by the discovery of new
information or changed conditions during the construction of the
Project, as provided in Section 20.3 herein.
(C)
Schedule of Rates. City will consider approving written schedules of rates
upon which CMAR may base its monthly estimated costs for purposes of
Applications for Progress Payment of certain Construction Services costs,
such as supervisory salaries and equipment; but only on condition that
adoption of any schedule for these purposes is subject to audit and
adjustment necessary to reflect the actual costs of these items to CMAR.
7.4
Taxes.
(A)
Reimbursement.
(1)
Provided such payments do not cause the CMAR to exceed the
GMP, City will reimburse CMAR for Privilege Taxes paid by
CMAR on gross receipts received by CMAR. Such payments may
be made by the City if Privilege Taxes were timely paid by CMAR
and are not otherwise exempt from such taxation.
(2)
Provided such payments do not cause the CMAR to exceed the
GMP, City will reimburse CMAR for Privilege Taxes paid by
CMAR on amounts received from City for the direct costs paid by
its Subcontractors for FFE. City will not reimburse CMAR for any
amounts paid as and for Privilege Taxes by CMAR to its Supplier(s)
or by a Supplier to another Supplier, or for any markup for profit
and overhead for costs paid to Subcontractors.
(B)
Application.
(1)
Each Application for Progress Payment and Application for Final
Payment will separately identify that part which represents FFE.
(2)
CMAR and its Supplier(s) will not report transaction privilege or use
taxes paid for FFE.
(3)
CMAR will not seek reimbursement for Privilege Taxes computed
on receipts for these expenses.
(C)
Tax Licenses. CMAR must take all steps necessary to obtain state and local
retail tax licenses, issue exemption certificates to vendors, and otherwise
perfect its right to be exempt from the payment of Privilege Tax for FFE
purchases, and CMAR must require its Supplier(s) to also obtain state and
retail tax licenses, issue exemption certificates to vendors, and otherwise
perfect their rights to be exempt from the payment of Privilege Tax for FFE
purchases.
7.5
FFE Services.
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(A)
The amount to be paid to CMAR for the FFE Services will be an amount equal to
the direct expenses (exclusive of any Privilege Taxes) paid by CMAR (or by
a Subcontractor or Supplier) for the FFE, without markup for profit or
overhead of CMAR (or of the Subcontractor or Supplier).
(B)
"FFE Services" means interior design of the Project and the procurement of
the FFE.
8.
Payments.
8.1
Cash Flow Report.
(A)
CMAR will prepare a Cash Flow Report for projected monthly project cash
flow on the form provided by City.
(B)
The Cash Flow Report will be submitted for approval prior to issuance of
the Notice to Proceed, as issued in accordance with Section 6 of this
Agreement.
(C)
The Cash Flow Report will be updated and submitted with each Application
for Progress Payment and at any time City requests if the projected monthly
project cash flow varies by more than 10% of the GMP.
(D)
The Cash Flow Report will reflect the following:
(1)
Initially, the accumulation of month pay estimates costs will be
plotted versus time in accordance with the proposed construction
schedule; and
(2)
For each update, CMAR’s actual month payment versus the actual
elapsed time on the Project.
8.2
Draft Application for Progress Payment. Based on draft applications (each a "Draft
Application") followed by formal applications for progress payment (each an "Application for
Progress Payment"), City will make monthly progress payments on Contract Sum account as
provided in this Section. The Draft Application is for informational purposes only and its
submission is not an Application for Progress Payment.
(A)
Period. The period covered by each Application for Progress Payment will
be one calendar month (the "Billing Month") ending on the last day of each
month.
(B)
Date for Submission. On or before the 25th day of each Billing Month,
CMAR will submit to City its Draft Application, which must identify all
amounts CMAR expects to invoice for the entire Billing Month.
(C)
Review Meeting. The parties will thereafter meet and make good faith efforts
to reach agreement on the Draft Application by the end of the Billing Month,
whereupon CMAR will formalize its Application for Progress Payment for
the Billing Month, incorporating all of the agreements reached during the
parties' review of the Draft Application.
8.3
Application for Progress Payment. Provided that CMAR has submitted its Draft
Application for review as provided above, CMAR may submit its Application for Progress
Payment for the Billing Month to City, no earlier than the 1st day of the month following the
Billing Month.
(A)
Date for Submission. City will make a Progress Payment, subject to
applicable Withholdings, to CMAR not later than 21 days after the date on
which the Application for Progress Payment has been received by City,
subject to this Agreement.
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(B)
One Progress Payment Per Month. Unless City agrees otherwise, CMAR
may submit only one Application for Progress Payment in a month and City
will make only one Progress Payment in a month to CMAR.
(C)
Progress Payment Application Form. The Application for Progress Payment
will be in such form as City may reasonably require, and will be accompanied
by the following to City's reasonable satisfaction:
(1)
A sworn statement of the Cost of the Work furnished during the
Billing Month, together with the required form of application as City
requires, properly completed so as to allocate all Construction
Services and FFE Services according to the most recent City-
approved GMP Schedule;
(2)
An itemized report of the Work performed during the Billing
Month;
(3)
Proof of CMAR's compliance with testing, submittals, permits, and
other requirements applicable to the Work requested by City;
(4)
Conditional and unconditional waivers and releases from CMAR
and from Subcontractors, Supplier, vendors, and others relating to
Work for which the Application for Progress payment is requested,
or receipt of amounts for which payment has previously been made,
as requested by City;
(5)
Payrolls, petty cash accounts, receipted invoices or invoices with
check vouchers attached, payrolls, requisitions from Subcontractors
and material suppliers, vendors receipted invoices, purchase orders,
and delivery tickets;
(6)
CMAR's monthly updated Project Schedule as provided in Section 6
of this Agreement; and
(7)
Such other evidence substantiating the particulars of CMAR's
Application for Progress Payment as may be required by City.
(D)
Complete Application Required. A complete Application for Progress
Payment, including all required documentation, will be a condition precedent
to CMAR's right to have the Application for Progress Payment reviewed or
to receive any Progress Payments.
(E)
Incomplete or Untimely Applications. If CMAR submits an Application for
Progress Payment that is incomplete or untimely, in City’s reasonable
judgment, CMAR must resubmit the Application for Progress Payment, with
any applicable corrections.
(F)
Correspondence to Other Documents. CMAR's Application for Progress
Payment must be organized so that all back-up for each line item of the
Application for Payment corresponds to the most recently City-approved
GMP Schedule and that the back-up for the amount requested for each item
of the Construction Services, and FFE Services, and each Change Directive
or Change Order is separately provided for and is available for review by City.
(G)
Certification. The Application for Progress Payment must be signed by
CMAR the Engineer of Record certifying that:
(1)
The Work has progressed to the point indicated in the Application
for Progress Payment;
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(2)
That the Work is in accordance with the Project Documents;
(3)
CMAR is entitled to payment in the amount requested; and
(4)
Applications for Progress Payment to City will not be deemed
delivered until actually received by City.
(H)
Review of Work by City. City will have the right to review the Work after
receipt of CMAR's application.
(1)
Within three business days after receipt of the Application for
Progress Payment, City will prepare and issue a written statement
("Deficiency Notice") specifying those items covered by the
Application for Progress Payment that are not approved and
certified for payment if:
(a)
City reasonably determines that the Work actually
completed is less than that represented on the Application
for Progress Payment;
(b)
The Work is defective;
(c)
The Work does not comply with this Agreement’s
requirements; or
(d)
The other grounds for withholding as provided in Section
12.3(B) below apply.
(2)
The Deficiency Notice may be given in any reasonable manner,
including handwritten annotations on a copy of the Application for
Progress Payment returned to CMAR.
(3)
City may withhold such sums as are permitted pursuant to A.R.S.
§ 34-607 to pay the expenses City reasonably expects to incur in
correcting the deficiencies so identified.
(4)
If sums were withheld in connection with a prior Application for
Progress Payment, and the associated deficiencies have been
corrected, the amount so withheld may be included as part of the
current Application for Progress Payment.
(5)
City will have the right to amend any previously-given Deficiency
Notice, or approval for payment, in whole or in part, based on
mistake, newly-discovered information, or other grounds permitted
by Law, and such amendments will apply to any Application for
Progress Payment.
(6)
However, the failure by City to specify any defect in the Work in a
Deficiency Notice will not act as a waiver or otherwise prevent City
from raising defect issues at any time.
(I)
Progress Payment to CMAR. Within 21 days after receipt of the properly
completed Application for Progress Payment, City will pay to CMAR the
entire amount set forth in the Application for Progress Payment, less any
applicable Withholding and less retainage as provided in A.R.S. § 34-607(B).
(J)
Progress Payment to Suppliers. Within 7 days after receipt of payment by
City, CMAR will make payment available to its Subcontractors or Supplier
entitled to payment in accordance with A.R.S. § 34-607(F).
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(1)
CMAR bears all costs and damages, without reimbursement, that
arise from CMAR’s failure to pay Subcontractors entitled to payment
in a timely manner as provided by law, to the extent such payment
has been received by CMAR from City.
(2)
City has no obligation under this Agreement to pay or to be
responsible in any way for payment to a Subcontractor or Supplier
performing portions of the Work.
8.4
Proof of Payment.
(A)
Duty to Discharge Debts and Obligations. All CMAR’s debts and obligations for
labor, materials, equipment or fixtures incorporated into the Project or any other
element of Work, including that shown in any estimate, Application for Progress
Payment, requisition or claim and upon which CMAR has received a payment must
be paid or discharged by CMAR.
(B)
Proof. Receipts or vouchers showing payment or discharge must, if City so requires,
be provided to City before CMAR will be entitled to receive any other or further
payment under this Agreement.
(C)
Joint Check Alternative. At CMAR's election, CMAR may satisfy this requirement
by requesting City issue joint checks in accordance with Section 12.4 of this
Agreement.
9.
Final Payment.
9.1
Application for Final Payment. Provided that CMAR has accomplished Final Completion
in a timely fashion and to the City’s satisfaction, CMAR may submit an application for final
payment ("Application for Final Payment"); however, neither final payment nor amounts
retained, if any, will be due until:
(A)
CMAR submits to City an application for final payment with all required
documentations in accordance with Section 9.2 below; and
(B)
City has thereafter conducted a review or audit of CMAR's Final Accounting,
as defined in Section 9.2 below.
9.2
Application for Final Payment Form. The Application for Final Payment must be in such
form as City may reasonably require.
(A)
Required Information. Application for Final Payment must be accompanied
by the following to City’s satisfaction:
(1)
Waivers and Releases on Final Payment as provided in Section 12.1
of this Agreement;
(2)
CMAR's accounting ("Final Accounting"), bearing the certificates of
CMAR's chief executive and chief financial officers attesting to the
completeness and accuracy of the Cost of the Work for which
CMAR has received or seeks reimbursement from City;
(3)
The Engineer of Record certification to City that the Project is
complete;
(4)
Proof that CMAR has furnished to City the redlines, warranties,
manuals and other close-out documents required by any of the
Project Documents or applicable laws of City, county and state
governments, or other authorities with jurisdiction over the Project;
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(5)
Certificates that demonstrate all insurance required by the Project
Documents will remain in force after Final Payment is made and will
be in effect as required;
(6)
Such other documents substantiating the particulars of CMAR's
Application for Final Payment (including additional backup for
CMAR's accounting) as required by City, the Financing Parties and
CMAR's Surety;
(7)
Consent of CMAR's surety to the Final Payment; and
(8)
City may require CMAR to submit and meet to discuss a Draft
Application for Final Payment, following the procedure provided in
Section 9 of this Agreement.
(B)
Other Required Documents. CMAR must prepare or obtain and furnish to
City upon completion, prior to and as a condition of the Application for
Final Payment, in addition to any other documents as provided elsewhere in
this Agreement, the following Project Documents:
(1)
A list of capital assets as described in Governmental Accounting
Standards Board Statement No. 34, as it has been supplemented by
subsequent pronouncements of the Governmental Accounting
Standards Board;
(2)
Warranties from Subcontractors and Suppliers;
(3)
Manufacturer's warranties and manuals for all furniture, fixtures
and/or equipment installed or furnished by CMAR (whether as
Construction Services or as FFE);
(4)
Air balance reports, equipment operation and maintenance manuals;
(5)
Building certificates required prior to occupancy, mechanical,
electrical and plumbing certificates, all other required approvals and
acceptances by city, county and state governments, or other
authority having jurisdiction; and
(6)
Two sets (one reproducible on Mylar), plus one electronic set, of
redline record drawings in size to match the Construction
Documents showing complete information including descriptions,
drawings, sketches, marked prints and similar data indicating the
final "as built" conditions of the Work, and CMAR must keep
redline record drawings up to date concurrently as the Work
progresses.
(C)
Application for Final Payment Review. City will have thirty (30) days after its
receipt of the fully completed Application for Final Payment within which to
audit and/or review CMAR's Final Accounting.
(1)
City review will result in a Notice to CMAR:
(a)
Identifying and disallowing any expenses that City has
determined were not incurred and paid consistent with this
Agreement;
(b)
Approving the Contract Sum that the City will agree to pay;
and
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(c)
The amount of the Final Payment to be transmitted to
CMAR, after deduction for all payments previously made
and applicable Withholding.
(2)
CMAR must cooperate with City's review and/or audit by making
all of its records available for inspection and copying, answering
questions, and otherwise facilitating City's review promptly upon its
request.
(3)
City's review and/or audit of the Final Accounting will be conducted
in accordance with City’s established auditing policies and practices
and shall not be subject to review or challenge by CMAR or any third
party.
(D)
Final Payment. Subject to the exchange of unconditional waivers and releases
on Final Payment as provided in Section 12.1 of this Agreement, City will
make the Final Payment to CMAR, within ten (10) days after City has issued
its Notice of Final Payment in accordance with Section 9.2(C)(1)(c) above.
(E)
Payment for Withholding. If applicable Withholding exceeds amounts
otherwise payable, CMAR must pay the difference to City within ten (10)
days after demand from City.
(F)
Acceptance and Waiver. CMAR's acceptance of Final Payment will
constitute a waiver of all Claims or Disputes that have not been timely
submitted to City as CMAR Claims prior to CMAR's submission of the
Application for Final Payment.
10.
Changes. Changes in the scope of the Work or in the Project Schedule may be accomplished
only by Change Order as defined in this Agreement.
10.1
Change Orders.
(A)
Request for Proposal. If City requests CMAR to submit a proposal for a
Change Order, CMAR will do so promptly, within ten (10) days after written
request from City, on a form and following a procedure established by
Project Manager. Any Change Order proposals shall specify CMAR's
technical proposal for implementation of the proposed Change, together
with CMAR's proposal for the resulting adjustment to the Contract Sum
and/or Contract Times.
(B)
Acceptance. City may, in its sole discretion, accept or reject the Change
Order proposal and negotiate an amendment to the Scope of Work which
will be memorialized in an agreed upon Change Order. The Change Order
may be subject to City Council approval. If the parties cannot reach
agreement within ten (10) days after City has received the proposal, the
Change Order proposed will be deemed denied and no change will be
implemented.
10.2
Field Orders. City or Project Coordinator, when reasonable under the circumstances, may
issue a written order that makes or authorizes minor deviations in the Work or provides
necessary interpretation of the Construction Documents.
(A)
City may issue a Field Order unilaterally or at the request of CMAR.
(B)
The total value of the work performed under any and all Field Order(s) may
not exceed $50,000 without City Council approval.
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(C)
If CMAR disagrees that the deviation or interpretation is appropriate for a
Field Order, it will provide Notice to City of its disagreement and City and
CMAR may agree upon a Change Order.
(D)
Change Orders shall not be subdivided to avoid the requirements of the
Procurement provisions of the City Code, as provided in Section 2-145.
10.3
Authorization Required. CMAR may not perform any Change, or be entitled to any
compensation or extension of time, unless CMAR has first received a Change Order or Field
Order as provided in this Section 10.
11.
CMAR's Claims. CMAR may request an increase in the GMP or extension of the Contract
Times, or both, that is otherwise permissible under this Agreement ("CMAR Claim") using
the following procedure:
11.1
CMAR’s Duty to Mitigation Claims. CMAR must at all times, and in an all circumstances,
use its best efforts to avoid or mitigate any potential impact of a CMAR Claim.
11.2
Notice of CMAR Claim. The request for a CMAR Claim must be preceded in each case by
a written notice from the CMAR, submitted to both the City and its Project Coordinator,
within five days of when CMAR first knew or should have known of the matter, occurrence
or event that is the basis for the request for additional compensation or time (“Notice of
Claim”).
(A)
Information. The Notice of Claim must furnish sufficient detail to inform
City and its Project Coordinator of the basis and cause of the CMAR Claim
and must include:
(1)
A reasonable estimate of the amount of compensation or time
CMAR anticipates it will require to avoid or mitigate any potential
impact of the matter occurrence or event; and
(2)
A list of action CMAR intends to take in order to mitigate the time
and cost impact of the situation that gave rise to or is related to
CMAR Claim.
(B)
Supplementation. CMAR must supplement the Notice of Claim during the
course of the Work as additional information becomes available.
(C)
Continuing Delays. Only one notice is necessary in the case of a continuing
delay that is attributable to the same cause described in the Notice of Claim.
(D)
Waiver. If CMAR fails to submit a Notice of Claim within five days after
CMAR first knew or should have known of the basis of the CMAR Claim,
CMAR will be deemed to have waived the right to request or pursue a Notice
of Claim arising from such matter, occurrence or event.
11.3
Procedures for Resolving a CMAR Claim. The procedures of this Section apply to
requests for a CMAR Claim only. However, as provided in Section 36.2 of this Agreement,
CMAR must continue to perform the Work during the pendency of any request for additional
compensation or time under this Section.
12.
Additional Terms and Condition of Payment.
12.1
Lien Waivers and Releases. Except as otherwise expressly set forth elsewhere herein, with
each Application for Progress Payment, application for release of retention or other
withholding, and Application for Final Payment, CMAR must submit lien waivers and sworn
statements for the application from CMAR, and lien waivers and sworn statements from all
Suppliers and third parties who have furnished labor, Construction Materials, equipment,
tools, fixtures, services or other work directly or indirectly to or for CMAR, in form and
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substance as required by City to assure that the Site and Project will be free of liens arising
from the Work for which the payment is requested.
12.2
Reservations upon Payment.
(A)
No Determination of Standard. No approval given or payment made by City
is intended to be evidence of satisfactory performance of any Work, or of the
sufficiency of any applicable application for payment.
(B)
Non-Acceptance. No payment to CMAR will constitute an acceptance of
any Work not in accordance with this Agreement’s requirements.
(C)
No Waiver of Defective Work. Any application for payment approval
pursuant to A.R.S. § 34-607 will constitute approval solely for purposes of
making payments and will not constitute a waiver of City's right to have all
defective or incomplete Work corrected and performed in accordance with
this Agreement, or to later modify or amend a Deficiency Notice or any
approval or deemed approval previously given by City.
12.3
Retainer. An amount will be held by City as additional security for performance of CMAR's
obligations, and may be applied by City towards payment of any back-charge, setoff, or other
amount payable by CMAR to City.
(A)
Discretionary Reduction of Retainer. After the Work is 50% complete,
CMAR may submit a request for reduction of the amount withheld from
subsequent Progress Payments.
(1)
If CMAR has performed its obligations on schedule and is otherwise
in compliance with the Project Documents, City may, but will not
be required to, reduce the retained amount from future Progress
Payments to not less than 5%, subject to City's right to later reinstate
an appropriate retainer if CMAR thereafter fails to perform any
responsibility under the Project Documents.
(2)
With the regular Progress Payment after CMAR has accomplished
Substantial Completion, City may release unapplied retainer to
CMAR, less an amount equal to 200% times City's estimate of the
costs it would incur to engage a third party to complete any
remaining Work.
(3)
With the Final Payment, any retainer will be released to CMAR.
(B)
Withholding.
(1)
The amount of each Progress Payment, or Final Payment, otherwise
payable to CMAR will be reduced by the following amounts
("Withholding"), as applicable and such amounts shall be applied to
any outstanding debts or charges owed to the City::
(a)
Sums as permitted under applicable law on account of:
(i)
The items identified in all applicable Certificates for
Payment and/or Deficiency Notices and amendments
thereto; or
(ii)
Any additional amounts City in good faith believes
are necessary to withhold, back-charge, or setoff in order to
satisfy or cover any actual or reasonably anticipated loss,
liability, damage or judgment that City has incurred or may
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incur in connection with CMAR's performance or non-
performance of this Agreement;
(b)
Any Liquidated Damages then due.
(2)
City will make appropriate adjustments to Withholding after final
disposition of the Application for Payment, Deficiency Notice,
CMAR Claim or other cause that resulted in such Withholding.
(3)
If the expense incurred by City is less than the amount withheld, City
may release the difference to CMAR within fourteen (14) days after
such final disposition.
(4)
If, however, such expense exceeds the unpaid amounts otherwise
due, CMAR must pay the difference within fourteen (14) days after
demand from City.
12.4
Payments to Supplier.
(A)
Remittance to Supplier. Although not required by Section 8 or elsewhere in
this Agreement, the City, at its sole discretion, may:
(1)
Pay any Subcontractor or Supplier directly for performance of the
Work, or
(2)
Issue joint checks For payment to Subcontractor or Supplier if:
(a)
CMAR agrees to accept joint checks and to execute, when
requested by City, joint check agreements in a form acceptable to
City.
(b)
Joint checks and direct payments made pursuant to this
section will be credited against the Contract Sum.
(B)
Communications with Supplier. Although not required before the City
makes such direct payment, CMAR consents to the City’s direct payment
and to City communicating directly with CMAR's Subcontractors, Suppliers
and other Vendors.
12.5
Non-Incorporated Construction Materials. CMAR must not charge City for any
Construction Materials that are not used for the Work or to complete the Project, unless City
has given its written agreement to pay such charges.
(A)
Storage of Materials. City may condition its approval on its determination
that the Construction Materials are suitably stored and properly secured from
casualty, properly insured, and that title has passed to City free and clear of
any liens or encumbrances.
(B)
Receipt of Documentation. City may further condition the making of
payments for Construction Materials not used for the work or to complete
the Projectupon receipt of contracts, bills of sale, or other agreements
satisfactory to City to establish City's title to the Construction Materials, or
otherwise protect City's interest.
13.
Project Coordinator. The City’s Project Coordinator will assist City in this Agreement’s
administration and overall Project administration.
13.1
Project Coordinator’s Authority. The City’s Project Coordinator and his/her staff, if any,
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as
an agent and has no authority, express or implied, to bind City to any obligations.
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13.2
Project Coordinator’s Duties.
(A)
The City’s Project Coordinator shall provide direction and communicate with
CMAR, and will review and make recommendations to City regarding:
(1)
The Work and Work Product;
(2)
The Services furnished by CMAR in connection with the Project;
and
(3)
CMAR's invoices.
(B)
The City’s Project Coordinator may have other duties and responsibilities as
the City may delegate or designate in writing from time to time.
13.3
Cooperation. CMAR agrees to cooperate with the City’s Project Coordinator so as not to
result in any delay in the progress of the Work or completion of the Project.
14.
Subcontractors and Supplier.
14.1
Subcontractors Unless otherwise agreed upon in writing by City and CMAR, the
Construction Services will be performed by qualified Subcontractors and Suppliers,
who will be selected and engaged by the CMAR, with approval of the City, as provided in
Section 14.2 and 14.3 below.
CMAR will be responsible and liable to City for the Work’s proper and timely
performance by any and all of its Subcontractors, Suppliers and any other person or
entity who furnishes any Work for this Project on CMAR’s behalf.
14.2
Subcontractor Selection. Subcontractors will be selected on the basis of qualifications alone,
or a combination of qualifications and price, but not price alone, as provided in the
Subcontractor’s Selection Plan developed by CMAR and submitted during the selection
process. The process for Subcontractor selection will include:
(A)
Selection may be a single step process, based on a combination of
qualifications and price, or a two-step process, where the first step is a
screening of applicants based on qualifications and the second step is based
on a combination of qualifications and price or on price alone;
(B)
CMAR will then determine, with City’s advice, which bids or proposals will
be accepted;
(C)
CMAR may obtain bids or proposals from Subcontractors from the list
previously reviewed and, after analyzing such bids or proposals, will deliver
copies of such bids or proposals to City;
(D)
CMAR will not be required to contract with anyone to whom CMAR has a
reasonable objection;
(E)
Requests for submittal of qualifications must be in writing, and kept by
CMAR in its Project records; and
(F)
Each Subcontract must meet other requirements set forth in all applicable
sections of this Agreement, including, but not limited to, this Section and
Sections 17, 18 and 30.
(G)
Solicitation and selection of subcontractors shall be conducted in accordance
with ARS Title 34, the City’s Procurement policies, and the City Code.
14.3
Subcontracts. Except as provided in Section 14.5 of this Agreement, each
subcontract must:
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(A)
Be in writing, and signed by both the CMAR and Subcontractor;
(B)
Provide for a fixed, or not-to-exceed amount as the Subcontractor's entire
compensation;
(C)
State that the Subcontract is subject to this Agreement’s terms and conditions
and specifically incorporate this Agreement’s provisions (except its
compensation terms);
(D)
Bind and obligate the Subcontractor to CMAR as CMAR is bound to City
under this Agreement;
(E)
State that City is the intended third-party beneficiary of the subcontract, with
the right (but not the obligation) to pursue claims for damages and/or
equitable or other relief or remedies directly against Subcontractor for any
breach of Subcontractor's obligations under the Subcontract, or any breach
of any warranty given by Subcontractor;
(F)
State that City may exercise its rights as a third-party beneficiary if a breach
of contract or warranty continues without cure for seven days after written
notice has been given to CMAR;
(G)
Contingently assign the subcontract to City in the event this Agreement is
terminated, subject to City's election to accept the assignment by delivery to
Subcontractor of written notice—which City is not obligated to give;
(H)
Obligate Subcontractor to be joined as a party to any arbitration or other
dispute resolution proceeding in which City or CMAR are parties and which
arises out of or relates to Subcontractor's performance or nonperformance
of the subcontract;
(I)
Include a termination for convenience clause equivalent to Section 35.5 of
this Agreement;
(J)
Contain an indemnity that is, at a minimum, equivalent to the provisions of
Section 30 herein and identifying, as Indemnities, all Indemnified parties
identified in Section 30 of this Agreement;
(K)
Include any other provision required by the Project Documents; and
(L)
Agree to contract with Supplier as provide in Section 14.4 below.
(M)
Confirm that the City is not liable to Subcontractor for compensation for any
work performed for the Project, unless the City so agrees;
(N)
Contain the City’s non-discrimination clause prohibiting the Subcontractor
from discriminating against any employee based on his/her race, color,
religion, sex, national origin, age, marital status, sexual orientation, gender
identity or expression, genetic characteristics, familial status, US military
veteran status or disability.
14.4
Supplier. Except as provided in Section 14.5 below, each agreement between CMAR and
Supplier, between any Subcontractor and Supplier or any other parties contracted to provide
Work or perform tasks, activities or actions on the Project must:
(A)
Be in writing, and signed by both the CMAR and Supplier;
(B)
Provide for a fixed, or not-to-exceed amount as the Supplier's entire
compensation;
27
(C)
State that the Supplier’s contract is subject to this Agreement’s terms and
conditions and specifically incorporate this Agreement’s provisions (except
its compensation terms);
(D)
Bind and obligate the Supplier to CMAR as CMAR is bound to City under
this Agreement;
(E)
State that City is the intended third-party beneficiary of the Supplier’s
contract, with the right (but not the obligation) to pursue claims for damages
and/or equitable or other relief or remedies directly against Supplier for any
breach of Supplier's obligations under its contract with CMAR, or any breach
of any warranty given by Supplier;
(F)
State that City may exercise its rights as a third-party beneficiary if a breach
of contract or warranty continues without cure for seven days after written
notice has been given to CMAR;
(G)
Contingently assign the Supplier’s contract to City in the event this
Agreement is terminated, subject to City's election to accept the assignment
by delivery to Supplier of written notice—which City is not obligated to give;
(H)
Obligate Supplier to be joined as a party to any arbitration or other dispute
resolution proceeding in which City or CMAR are parties and which arises
out of or relates to Supplier's performance or nonperformance of the
subcontract;
(I)
Include a termination for convenience clause equivalent to Section 35 of this
Agreement;
(J)
Contain an indemnity that is, at a minimum, equivalent to the provisions of
Section 30 herein and identifying, as Indemnitees, all Indemnified parties
identified in Section 30 of this Agreement; and
(K)
Include any other provision required by the Project Documents.
(L)
Confirm that the City is not liable to Subcontractor for compensation for any
work performed for the Project, unless the City so agrees;
(M)
Contain the City’s non-discrimination clause prohibiting the Subcontractor
from discriminating against any employee based on his/her race, color,
religion, sex, national origin, age, marital status, sexual orientation, gender
identity or expression, genetic characteristics, familial status, US military
veteran status or disability.
14.5
Immigration Law Compliance.
(A)
Contractor, and on behalf any subcontractor, warrants, to the extent
applicable under A.R.S. § 41-4401, compliance with all federal immigration
laws and regulations that relate to their employees as well as compliance
with A.R.S. § 23-214(A) which requires registration and participation with
the E-Verify Program.
(B)
Any breach of warranty under subsection 8.1 above is considered a material
breach of this Agreement and is subject to penalties up to and including
termination of this Agreement.
(C)
City retains the legal right to inspect the papers of any Contractor or
subcontractor employee who performs work under this Agreement to
28
ensure that the Contractor or any subcontractor is compliant with the
warranty under subsection 8.1 above.
(D)
City may conduct random inspections, and upon request of City,
Contractor shall provide copies of papers and records of Contractor
demonstrating continued compliance with the warranty under subsection
8.1 above. Contractor agrees to keep papers and records available for
inspection by the City during normal business hours and will cooperate
with City in exercise of its statutory duties and not deny access to its
business premises or applicable papers or records for the purposes of
enforcement of this section.
(E)
Contractor agrees to incorporate into any subcontracts under this
Agreement the same obligations imposed upon Contractor and expressly
accrue those obligations directly to the benefit of the City. Contractor also
agrees to require any subcontractor to incorporate into each of its own
subcontracts under this Agreement the same obligations above and
expressly accrue those obligations to the benefit of the City.
(F)
Contractor’s warranty and obligations under this section to the City is
continuing throughout the term of this Agreement or until such time as the
City determines, in its sole discretion, that Arizona law has been modified in
that compliance with this section is no longer a requirement.14.5.7 The “E-
Verify Program” above means the employment verification program
administered by the United States Department of Homeland Security, the
Social Security Administration, or any successor program.
14.5
Condition Precedent to Work of Supplier. Satisfaction of all requirements of this Section
14 is a condition precedent of Subcontractor or Supplier’s right to commence any Work
element and to receive the payment of any amount otherwise payable to CMAR for any Work
performed by the Subcontractor or Supplier.
(A)
Compliance Warranty. By permitting a Subcontractor or Supplier to
commence any Work element, CMAR conclusively warrants to City that all
of this Agreement’s requirements have been fulfilled and must continue to
be fulfilled as to the Subcontractor or Supplier.
(B)
CMAR Responsibility for Supplier. CMAR is solely responsible and liable to
City for the Work’s proper and timely performance by each Subcontractor
and Supplier.
(C)
Copies of Subcontracts. CMAR shall furnish a copy of any subcontract or
third party contract, including those with any Supplier, to City within two (2)
days after it is requested by City. City shall have no obligation to make such
a request, or to review any Subcontract or Supplier when received, and no
review, non-review, objection or failure to object by City shall relieve CMAR
and its Subcontractors and Suppliers from their responsibilities for fulfilling
this Agreement’s requirements.
(D)
Change of Subcontractor Approval. CMAR will not change a Subcontractor
after the Subcontractor has been approved by City, without City's written
consent to the change.
29
15.
Self-Performed Work.
15.1
Selection of CMAR. CMAR, its subsidiary, affiliate or entity under control of CMAR, may
seek to self-perform portions of the Construction Services only if selected by City following
this Agreement’s full subcontractor procurement process, and if and only:
(A)
CMAR has been selected by City in accordance with City Code 2-145 and as
provided in Section 14.2 of this Agreement, or
(B)
City has given prior written approval to CMAR’s self-performance of de
minimus Construction Services, such as minor clean-up work (but only to the
extent of the type of de minimus work and the not-to-exceed amount
authorized in City’s written approval).
15.2
Contract for Self-Performed Work. If CMAR is selected to self-perform portions of the
Construction Services, a written subcontract will not be required, as this Agreement’s
provisions will apply. Prior to initiation of the self-performance of Work, the City and CMAR
will agree to a written scope of work to be self- performed and a lump sum to be paid for
such self-performed work. This lump sum will not exceed the amount budgeted for
performance of the same work by a Subcontractor or other third party and will include
CMAR's direct and indirect compensation, labor, labor burden, supervision, overhead, and all
other costs. CMAR’s self-performance of any Work allowed under this Section will not
change, in any way, the amount CMAR is entitled to as compensation under this Agreement
or the Contract Sum, CMAR’s Fee or the GMP, as those terms are defined and calculated in
Section 7 of this Agreement.
16.
Performance Standards. CMAR warrants to City that:
16.1
Standard of Care. CMAR, its Subcontractors and Suppliers, will perform their respective
obligations under this Agreement with the professional diligence and care prevailing among
highly skilled and experienced members of the industry with demonstrated ability to timely
and properly complete construction projects equivalent to the Project (the "Standard of
Care"), on schedule, within budget, and without obvious or latent defects.
16.2
Standard of Work. The Work must be:
(A)
In accordance with the requirements of the Project Documents;
(B)
Free from defects; and
(C)
Fit for City's intended use.
16.3
Standard of Construction Materials. All Construction Materials will be new and in excellent
condition, except to the extent specifically provided otherwise in the Project Documents.
16.4
Quality Control. CMAR must establish, maintain, and implement a quality control program
that is consistent with that described in the CMP and which is:
(A)
Sufficient to insure proper supervision, examination, inspection, and testing
of all item of Work at appropriate intervals, including the work of
Subcontractors, Supplier, suppliers; and
(B)
Sufficient to assure conformance to the Project Documents with respect to
Specifically Described Items, as defined in Section 22.2 of this Agreement,
and general workmanship, construction, and equipment (including
maintenance, while-idle, and functional performance) requirements.
17.
Regulatory Compliance.
17.1
Duty to Comply. CMAR must comply with all federal, state, county, and local laws,
including, statutes, rules, regulations, codes, ordinances, executive orders, and other legislative,
executive, or judicial requirements and/or decisions (collectively, "Laws") applicable to the
30
Work whether or not specifically referenced elsewhere in this Agreement. Compliance with
such Laws shall include, but not be limited to:
(A)
Compliance with Laws pertaining to contractor licensing, occupational
health, safety, disabilities, building codes, construction standards, licensure,
social security, employment, workers compensation, immigration, wages,
payrolls, health, discrimination, equal employment opportunity, civil rights,
storm water, solid wastes, Hazardous Substances, grading, air pollution, water
pollution, waste disposal, human remains, land use, historic preservation,
endangered or threatened species, navigable waters, waters of the United
States and tributaries thereof, and any other Laws applicable to the
performance of the Work; and
(B)
Compliance with any applicable standards, specifications, manuals, or codes
of any technical society, organization, or association, adopted by City (and as
may be modified from time to time), or those commonly used as the industry
standard in the design and construction of projects comparable to the Project
being performed and completed in accordance with this Agreement by the
CMAR.
17.2
Notification of Investigations. To the fullest extent permitted by applicable Law, CMAR
will notify City, and, in each case, require its Subcontractors and Suppliers to notify City, within
twenty-four (24) hours of a demand for records or notice of audit being received and/or any
inspection or other investigation is commenced by any federal, state or local governmental
agency that relates to the Work, including, without limitation:
(A)
Any Site inspection or investigation conducted to a determine compliance
with any Laws or permits pertaining to Hazardous Substances, waste, dust
control, air quality, water pollution, storm water runoff, endangered species,
navigable waters, occupational health or safety; and
(B)
Any inspection, audit or other investigation, whether on- or off-Site,
conducted to verify the immigration and/or worker authorization status of
any person employed or contracted by CMAR, its Subcontractors, or any
Supplier.
17.3
City's Rules. City has the right, but not the obligation, to adopt and prescribe from time to
time one or more rules and regulations ("City's Rule(s)") governing parking, access, times of
work, noise, behavior towards City’s employees, customers, guests or invitees, and such other
matters not involving the means, method, techniques or manner of the Work’s performance
that City deems pertinent to preventing disruption to City's ongoing operations.
(A)
CMAR will enforce, and will be responsible to City for, the failure of its employees,
or employees of its Subcontractors or Supplier to comply with City's Rules.
(B)
Compliance with City's Rules will be a condition to the right of any person to enter
upon any of City's property. City has the right to revoke such right of access to any
person who has breached or failed to comply with any of City's Rules.
(C)
The issuance or non-issuance, enforcement or non-enforcement of City's Rules by
City will not relieve CMAR from its sole and exclusive responsibility to City for
taking all appropriate precautions, in accordance with applicable Laws, to
ensure the health and safety of persons and property with respect to the
Work.
17.4
Compliance Assurances. CMAR warrants to City that CMAR and its Subcontractors and
Suppliers are in compliance with all of the following:
31
(A)
Subcontractors and Supplier now hold—and, at all times relevant to this Project, will
hold—all licenses, registrations and other approvals necessary for the lawful
performance of the work; and
(B)
Subcontractors and Suppliers are not—and, at all times relevant to this
Project, will not—be debarred or otherwise legally excluded ("Debarred")
from contracting with any federal, state or local governmental entity; and
(C)
Except with City's knowledge and consent, Subcontractors and Suppliers
will not:
(1)
Accept trade discounts;
(2)
Have a significant direct or indirect financial interest in CMAR or
any of its Subcontractors or Supplier; or
(3)
Undertake any activity or employment or accept any contribution
that conflicts, directly or indirectly, with the City’s interests.
18.
Health and Safety.
18.1
General Safety Duty.
(A)
CMAR is solely responsible for the safety and health effects of the Work as
it may impact all persons and property whether or not under CMAR’s
control.
(B)
CMAR shall at all times:
(1)
Provide proper traffic control, warnings, and all other measures
necessary to protect City and City's residents, employees, invitees,
licensees, and agents, and all other third persons from illness,
sickness, death, personal injury or property damage arising from or
relating to the Work; and
(2)
Maintain a safe working environment, in full compliance with all
applicable Laws, especially such laws relating to occupational health
and safety and drugs in the workplace.
18.2
Hazardous Substances. CMAR is responsible for the proper handling, management,
storage, transportation and disposal of every substance, material and equipment it brings to
the Site, and in the conduct of its operations, so as to prevent the release of any Hazardous
Substance:
(A)
Remediation. CMAR is responsible for the cost of investigation,
characterization, management, response and/or remediation of a release or
threatened release of a hazardous substance. CMAR is also responsible for
all other losses and damages to City or any third party resulting from any
release or threatened release of a hazardous substance by CMAR or any of
its subcontractors or suppliers.
(B)
Actions upon Discovery. If CMAR discovers material on the Site that may
be a Hazardous Substance, then CMAR must immediately:
(1)
Notify the City and the National Response Center if the Hazardous
Substance presents or may present an imminent threat or
endangerment to public health or welfare or the environment;
(2)
Notify City in writing of the discovery of the Hazardous Substance
and provide all relevant information if the Hazardous Substance
32
does not present an imminent threat or endangerment to public
health or welfare or the environment;
(3)
Discontinue Work and take whatever precautions are necessary to
protect persons and property from exposure to the Hazardous
Substance, including, but not limited to, taking actions to prevent
the release or threatened release of such material or any action that
may accelerate the release of or threatened release of such
Hazardous substance in accordance with applicable Laws or the
direction provided by any regulatory agency such as the EPA,
ADEQ or the Maricopa County Environmental Services
Department;
(4)
CMAR may resume operations in the affected area only after City
has determined that the material is either not a Hazardous Substance
or that it is a Hazardous Substance but the response has remedied,
eliminated, mitigated or managed the risk in accordance with
applicable Law; and
(5)
If the remedy directed by City results in a delay to the Work’s critical
path, and if CMAR did not cause, allow, or contribute to the release
or threat of release of the Hazardous Substance, CMAR may seek
an equitable adjustment of the Contract Times and Contract Sum, in
accordance with Section 11 or Section 20.3(E) of this Agreement.
18.3
Waste.
(A)
Waste Defined. "Waste" includes any dust, solids, liquids or other form of
inert or discardable material that is not a Hazardous Substance, pollutant or
contaminant.
(B)
Waste Management. CMAR must maintain proper precautions so that the
amount of Waste resulting from CMAR’s Work is at all times:
(1)
Kept at minimum;
(2)
Confined within the Site; and
(3)
Not permitted to interfere with or disturb City’s ongoing operations
or the activities of City’s employees, customers, residents, guests,
invitees, or licensees.
(C)
Waste Removal. All Waste must be removed from the Site each day,
pursuant to a plan approved by City, and the Waste must be properly
transported and disposed of at an appropriate disposal facility in accordance
with applicable Law.
(D)
Contract. CMAR must contract with City for any Waste removal. CMAR
may be charged for the City’s provision of waste management collection and
disposal services at the then market rate. Such charges shall be considered
part of the Contruction Services Cost and will not effect the CMAR’s Fee,
the Contract Sum or the GMP.
19.
Permits.
19.1
Duty to Secure. CMAR will timely and proactively apply for, and undertake all actions
necessary to secure and comply with all federal, state and local permits, licenses and approvals
required for the Work. CMAR must also provide adequate time in the construction schedule
to secure all required permits and approvals.
33
19.2
Costs of Permits. The cost of permits, licenses, connection fees, and other such fees must
be included in the Construction Services Costs. If CMAR’s actions cause the cost of the Work
to increase because permit application review and issuance may cause it to fail to meet the
Construction Schedule, the cost for obtaining expedited review and approval of such permit
applications must be borne solely by CMAR. Such cost will also not be reimbursed by City or
be used as a justification to seek an adjustment or increase of the GMP.
19.3
Public Hearings. CMAR will attend and participate in all public hearings held by local
governmental jurisdictions and utilities in connection with the issuance and compliance with
such permits, licenses and approvals.
19.4
Compliance. CMAR and each of its Subcontractors and Suppliers must comply with, give
all notices and take all actions required by all permits issued for the Work. Any failure to
comply with the terms and conditions of such permits will be the responsibility of the CMAR
and any penalties imposed for such failure(s) shall be borne by the CMAR alone.
20.
Site.
20.1
Title to Project Site. City warrants that it owns title to the Project site and that all known
easements, licenses, and restrictions that may affect the Project have or will be timely disclosed.
20.2
On-Site Locations.
(A)
Reference Points. City will provide engineering surveys to establish reference
points for construction which in City’s judgment are necessary to enable
CMAR to begin the Work.
(B)
Site Layout. CMAR will be responsible for laying out the Work, protecting
and preserving the established reference points and must not make change
relocations without the proper written approval of City.
(C)
CMAR’s Responsibilities. CMAR must report to City whenever any
reference point is lost or destroyed or whenever relocation of a reference
point is required due to necessary changes in grades or locations. CMAR will
be responsible for the accurate replacement or relocation of the reference
points by professionally qualified personnel.
20.3
Newly Discovered or Changed Conditions. As Design Phase Consultant, CMAR has
specialized and detailed knowledge of the site and the conditions pre-existing for construction
of the Project. Based on this knowledge, CMAR warrants and represents that CMAR:
(A)
Inspection. Has conducted a visual inspection of the Site, reviewed the soils
report, and performed all other due diligence activities CMAR considers
adequate to verify the conditions of the soils and other conditions at the Site;
(B)
No Defects. Has observed no defects, discrepancies, deficiencies or faults
with the Site making it unsuitable for the Project or found any defects,
discrepancies, deficiencies or faults in any Project Documents that would
require further investigation (except those that have already been reported to
City in writing as the Design Phase oversight contractor); and
(C)
Acceptance. Accepts the condition of the soils and the Site as being fit and
proper to allow for the full performance of the Work.
(D)
Discovery of Conditions. If, at any time CMAR during the performance of
the Work, CMAR encounters previously unknown conditions at the Site,
which could not reasonably have been detected by CMAR's investigation or
during CMAR’s performance prior of Design Phase services at the site, and
that make it unsuitable for the Work’s proper and accurate performance,
CMAR must promptly:
34
(1)
Discontinue Work in the affected area;
(2)
Leave the Newly Discovered or Changed Conditions as they are
found (taking reasonable precautions for the protection of persons
and property);
(3)
Notify City and its Project Coordinator (immediately by phone or
email, followed by written notice within 24 hours identifying the
Newly Discovered or Changed Conditions with specificity); and
(4)
Await clarification and direction before CMAR proceeds with any
Work that may be affected.
For purposes of this Section, “Newly Discovered” or “Changed”
conditions shall include, without limitation: conditions in or beneath
the Site that differ materially from indications in the Design
Documents or information that was known or could have been
reasonably discovered by CMAR during its performance of Design
Phase Services, or other newly discovered or changed conditions
that may adversely impact the Work that occurred after Design
Documents were approved as final.
(E)
Equitable Adjustment. If the Newly Discovered or Changed Conditions
could not be reasonably discovered or foreseeable by CMAR during its
performance of Design Phase review services, CMAR may seek an equitable
adjustment of the Contract Times and GMP for any resulting critical path
delays or additional expenses incurred by CMAR, subject to Sections 10 and
11 of this Agreement
(F)
Liability and Responsibility. If CMAR proceeds with Work after discovery
of a Newly Discovered or Changed Condition without notifying City,
suspending applicable Work as provided in this Section and getting the City’s
approval to proceed, CMAR will be liable and responsible to City for all
resulting losses, liabilities, damages, and expenses. CMAR proceeds without
so notifying the City and obtaining its approval, CMAR will have waived any
right to seek a CMAR Claim or Equitable Adjustment as provided herein
based on any Newly Discovered or Changed Condition.
20.4
Underground Facilities. CMAR will comply with the provisions of A.R.S. § 40-360.21 et.
seq., relating to underground facilities, and further:
(A)
Other Owners. CMAR acknowledges that City is not the owner of some
underground facilities on, or contiguous to, the Project Site. “Underground
facilities” includes, but is not limited to, electrical conduit, water irrigation
canals and ditches, gas lines, telecommunications lines, or other
communications fibers, and such facilities may be owned and/or operated by
governmental or private entities;
(B)
Information and Data. The information and data shown or indicated on the
Design Documents and other site specific documents concerning existing
underground facilities at, or contiguous to, the Project Site will be based on
the information and data furnished to City by the owners or operators of the
underground facilities;
(C)
CMAR’s Responsibilities. City will not be responsible for the accuracy or
completeness of the information or data provided by others. CMAR will
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have the responsibility for the following activities, the cost of which are
included in the GMP:
(1)
Reviewing and verifying the information and data provided by
others;
(2)
Locating all underground facilities on, or contiguous to, the Project
Site, to the extent knowledge of adjacent underground facilities is
necessary and reasonable to secure;
(3)
Coordinating the Work with the owners of the underground
facilities during construction;
(4)
Providing for the safety and protection of all underground facilities
affected by the Work; and
(5)
Integrating any underground facility into the Work as necessary.
(D)
Repair and Replacement. City will not be responsible for any repair or
consequential damages resulting from CMAR’s mistake in locating or failing
to locate underground facilities and taking such locations into account when
performing the Work.
(E)
City-Owned Underground Facilities. City will provide CMAR with
information and data about the location and characteristics of any
underground facility that it owns, such as water and sewer lines. The CMAR
may rely on that information and data.
20.5
Archaeological Deposits. In accordance with A.R.S. § 41-844, if CMAR discovers any
archaeological sites or objects, CMAR must promptly report them to City and Director of the
Arizona State Museum:
(A)
CMAR will further ensure compliance with the provisions of State
law with respect to archaeological sites or objects; and
(B)
CMAR may be allowed an adjustment for time depending on the
extent of the tasks required to catalogue and preserve the find and
to mitigate any impact such find may have on the Work.
21.
On-Site City Activity.
21.1
Partial Utilization. Before Final Completion of the Project, as defined in Section 6.6 of this
Agreement, City may divide the Project and place a portion of the Project into use, if such that
portion has been completed. The City may exercise the option to divide and use a portion of
the Project if:
(A)
The Design Documents identify a distinct phase of the Project, and the part
of the Project being sought to be placed into use has been completed ; or
(B)
City and CMAR agree that the portion sought to be placed into use is a
separately functioning and usable part of the Work that can be used by City
for its intended purpose without significantly interfering with CMAR’s timely
and proper performance of the remainder of the Work.
(C)
If the Project is not phased and City decides to place a part of the Project
into use such that CMAR incurs additional costs or requires additional time,
CMAR may present a CMAR Claim for additional time or compensation in
accordance with Section 11 of this Agreement.
21.2
City’s Performance of On-site Work. City may perform other work on-site that is related
to the Project using the City’s own work force, or contractors, vendors or suppliers. Such
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work may include, but not limited to, utility relocation or co-location, (e.g., electric, gas,
telecommunications)(“City’s On-site Work”).
(A)
Access. CMAR will assure that the entities handling the City’s On-site Work
have safe and proper access to all portions of the Project Site necessary for
the performance of the City’s On-site Work.
(B)
Materials and Equipment. CMAR will assure that persons performing the
City’s On-site Work have adequate space to transport, handle, stage and store
materials and equipment and adequate space and opportunity to conduct the
City’s On-site Work.
(C)
Coordination. CMAR will coordinate its Work with the City’s On-site Work
so that both parties may perform their Work in a timely and efficient manner.
(1)
Unless otherwise provided in the Project Documents, CMAR will
perform all cutting, fitting, and patching of material or elements of
the Work that may be required to make the CMAR’s Work and the
City’s On-site Work consistent and functional.
(2)
CMAR will not endanger the City’s On-site Work while integrating
the parties’ performance.
(3)
If the CMAR’s completion of any portion of the Work depends on
the completion of City’s On-site Work, CMAR will inspect the City’s
On-site Work and timely report to City any delays, defects, or
deficiencies that may delay or hinder CMAR’s completion of the
Work. A failure by CMAR to inspect and report the City’s On-Site
Work will constitute acceptance of that Work and any objection or
request for a CMAR Claim or Equitable Adjustment CMAR may
have is deemed to be waived.
21.3
Transfer of Control. In the event control of the Project Site is transferred from CMAR to a
third party, CMAR and City will work to assure that safety of the Project Site is not
compromised, that access to and control of the Project Site is maintained, that proper
insurance is in place and that the Work will continue without undue delay.
22.
Inspection of Work.
22.1
City Inspections. City has the right to inspect the Work at any time for any purpose.
(A)
Required Inspections. Certain aspects of the Work will require inspections
in accordance with existing City Ordinances and City Code provisions or in
accordance with the scope of Work as set forth in this Agreement.
(1)
CMAR must timely schedule and perform or participate in any
required inspections and testing.
(2)
CMAR will pay all costs associated with any required inspections,
and these costs shall be included in the GMP. The costs of any
testing or collection of data that is required for the inspection of City
shall not be the basis for any Change Order, CMAR Claim, Equitable
Adjustment, or an amendment to the GMP.
(3)
CMAR must obtain and provide to City Certifications or warranties
required or any test results or analyses which were generated from
the required inspection or testing.
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(B)
Cooperation. CMAR will cooperate fully with any inspections conducted by
the City. The City will attempt to coordinate its inspections with the CMAR
so as not to disrupt the Work; however, inspections for life or safety issues
will be handled by both parties on a priority basis.
(C)
Independent Inspections. City may employ the services of an independent
party to conduct any tests or inspections at City’s cost and expense.
22.2
Specifically Described Items. If any material, component, or equipment (collectively, an
“Item”) is specified or described in the Project Document, Construction Document, or other
document submitted to City by CMAR or required by industry standard, trade, proprietary, or
supplier name, that Item shall be used in performing or completing the Work.
(A)
“Or-equal”. If the specification or description contains or is followed by the
words “or-equal”, other Items of a similar kind or nature may be accepted by
City, in its sole discretion, if the City determines, prior to the substitution,
that the Item proposed by CMAR is qualitatively and functionally equal to of
the Specifically Designed Item.
(B)
Substitutions. If CMAR proposes to use an Item different than that which
is specifically described or named, CMAR must obtain the City’s approval
of such substitution prior to use or prior to any modification or deviation
intended to accommodate the use.
(1)
CMAR must submit a request for substitution in writing to City.
(2)
CMAR must submit with the request for substitution the following:
(a)
Information about the Item sufficient for City to make a
determination whether the Item is essentially equivalent to
that named and is an acceptable substitute.
(b)
Any effect the substitution may have on timely achievement
of the Substantial Completion date;
(c)
Any cost or credits that will result from the substitution; and
(d)
Any other relevant information requested by City.
(3)
City approval of any substitute Item will be within its sole discretion.
(4)
CMAR is responsible for the costs associated with making the
request for substitution, including the cost of obtaining the data.
(5)
Approval of such substitution does not constitute an agreement to
increase the GMP or constitute issuance of a Field Order or Change
Order. CMAR must still obtain separate approval for the increased
cost in accordance with the procedures continued elsewhere in this
Agreement.
22.3
Uncovering Work. City or its Project Coordinator may require CMAR to uncover Work for
inspection and testing.
(A)
Builder’s Responsibility. If the Work had been covered without CMAR's
compliance with all applicable inspection and approval requirements of the Project
Documents, CMAR must properly remedy or replace all nonconforming or deficient
Work, and adjacent property damaged thereby, to City's satisfaction. CMAR must
also pay the costs City incurred in connection with uncovering, testing, inspecting,
remedingand recovering the Work.
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(B)
City Responsibility. If the Work had been covered in accordance with all applicable
inspection and approval requirements of CMAR Documents, City will pay the costs
CMAR reasonably incurred to uncover, test, inspect, and remed the Work, subject
to § 11.
22.4
Rejected Work. CMAR must promptly, and so as not to interfere with the Project Schedule,
remove and replace, at CMAR's sole expense, any Work that is rejected by City or its Project
Coordinator as defective, contrary to CMAR's warranties, or otherwise not in accordance with
the Project Documents.
22.5
City’s Remedy. If CMAR does not correct such deficient or nonconforming Work within
seven (7) days, or initiate any Work that would reasonably take longer than seven (7) days,
after receipt of written notice from City to do so, City may, without prejudice to any other
remedies it may have, take whatever steps are necessary to correct the deficient or
nonconforming Work, and CMAR will pay City the costs City incurs in connection with any
corrective action.
23.
Warranties.
23.1
CMAR Warranty. CMAR warrants that the Work performed pursuant to this Agreement is
free from defects. Upon 20 days written notice from the City, and within two years from the
Final Completion of the Work, CMAR must, at CMAR's sole expense, uncover, correct, and
remedy any and all defects in CMAR's Work or any defects in work of CMAR’s Subcontractors
or Suppliers.
23.2
Third Party Warranties. If any other Contract Document or third party warranty provides
for a period longer than two years, the longer period applies.
23.3
Call-Back Remedial Work. CMAR, at CMAR's sole expense, will properly restore any of
the Work or property that is damaged by reason of any remedial Work, to City's satisfaction.
(A)
Warranty on Remedial Work. All remedial Work will have an extended
warranty equal to the later of Final Completion or six (6) months after
completion of the remedial Work.
(B)
Self-Help. If CMAR fails to correct any defects in accordance with this call-
back warranty, then City may correct the defects and CMAR must reimburse
City for all expenses incurred by City.
(C)
Non-exclusivity. This express call-back warranty is given in addition to, and
without any limitation on, any other claim, right or remedy City may have
under this Agreement or applicable Law including, without limitation, any
claim, right or remedy arising from tort, contract breach, license bond,
recovery fund, latent defect, breach of the implied warranty of habitability,
CMAR's violation of any Law, or any other claim, right or remedy, whether
discovered before or after the above described call-back period (as may be
extended above).
(D)
No Fault of CMAR. This express call-back warranty excludes remedy for
damage or defect caused by abuse, modifications not executed by CMAR,
improper or insufficient maintenance, improper operation, or ordinary wear
and tear usage.
24.
Liens and Stop Notices.
24.1
Title to Work. CMAR warrants that title to all Work covered by an Application for Progress
Payment or Application for Final Payment will pass to City no later than the time of payment.
24.2
Work Free of Liens. CMAR further warrants that, upon Application for Progress Payment
or Application for Final Payment submittal, all Work for which payment is requested and
39
received from City must, to the best of CMAR's knowledge, information and belief, be free
and clear of liens, claims, security interests or encumbrances.
24.3
Duty to Remove Liens. In the event any document intending to give rise to a lien, or any
other claim is asserted, filed, or maintained against the Project or City contrary to the foregoing
warranty by CMAR, Subcontractor, or any Supplier, then CMAR agrees to cause such lien or
claim to be satisfied, removed, or otherwise discharged at its own expense, by payment, bond
or otherwise, within ten (10) days from the lien’s filing date.
24.4
City’s Remedy for Liens.
(A)
City Right to Action. If CMAR fails to take such action promptly after notice
from City, then City has the right, in addition to all other rights and remedies
available under this Agreement or at Law, to cause each such lien or claim to
be removed, satisfied or discharged by whatever means City chooses.
(B)
Costs and Expenses. CMAR will be responsible for the entire cost and
expense of this lien removal action, including reasonable attorneys' fees and
expenses incurred by City, and will remit payment for these costs and
expenses immediately upon demand by City.
25.
No Waiver. Any review or approval given, or payment made, by City or any of its
representatives does not:
25.1
Constitute acceptance of CMAR's Work or of the sufficiency of any request for payment;
25.2
Operate as an acquiescence to, or waiver of, any departure from, or CMAR's failure to perform
in accordance with, any of this Agreement’s requirements;
25.3
Constitute approval of:
(A)
The adequacy, form or content of any subcontract; or
(B)
Any actions taken by CMAR or by any Subcontractor.
25.4
Relieve CMAR, any Subcontractor or Supplier of any obligations or responsibilities under this
Agreement;
25.5
Be accepted as evidence of satisfactory performance of any Work; or
25.6
Diminish in any manner City’s rights and remedies under this Agreement or applicable Law.
26.
CMAR’s Warranties and Representations.
26.1
Warranty. As an inducement to City to enter into this Agreement, CMAR represents
and warrants the following to City (in addition to the other representations and
warranties contained in the Agreement) that:
(A)
Financial Condition. CMAR, its subsidiaries and its affiliated entities are
financially solvent and able to pay their debts as they mature, and possessed of
sufficient working capital to complete the Work and perform all obligations under
this Agreement, provided that City satisfies its payment and other obligations under
this Agreement;
(B)
Performance Ability. CMAR is able to furnish the Construction Services and FFE
Services required to complete the Project and perform its obligations hereunder,
provided that City satisfies its payment and other obligations, and that CMAR has
sufficient experience and competence to do so;
(C)
Litigation Status. There are no pending or threatened legal actions or proceedings
which might materially impair CMAR or its subsidiaries or affiliated entities’ ability
to satisfy their obligations hereunder;
40
(D)
Legal Status. CMAR, its subsidiaries and affiliated entities are licensed by the Arizona
Registrar of Contractors to perform construction and that all construction
Subcontractors and Suppliers used on this Project by CMAR also will be so licensed;
and
(E)
Proper Authorization. That execution of this Agreement and its performance are
within its authorized powers.
26.2
Survival. These representations and warranties survive this Agreement’s termination
and the Project’s Final Completion, whichever is later.
27.
CMAR Relationship to City.
27.1
CMAR's relationship to City is in all respects that of an independent contractor.
27.2
CMAR is solely responsible for the means, manner, method, supervision, performance,
coordination, safety programs, or control of the Work to be performed by CMAR.
27.3
CMAR is not and will not be found to be an employee, instrumentality, department or agent
of City for any purpose.
27.4
This Agreement will in no respect be construed to create a partnership, joint venture, or agency
between the parties.
27.5
Neither party has right or power to bind or obligate the other party for any liabilities or
obligations without the other party’s prior written consent.
28.
Assignments.
28.1
City Assignment. City may assign or transfer this Agreement without CMAR's consent.
28.2
City Financing. CMAR agrees that if City assigns this Agreement to any lender or other
third party source of funding for the Project (each, a "Financing Party");
(A)
CMAR will cooperate with any such assignments, and will execute any
consents, assignments and other instruments reasonably required to facilitate
the assignments;
(B)
CMAR will cooperate with any inspectors engaged by a Financing Party to
observe or inspect the work; and
(C)
CMAR will execute any documents that the Financing Party reasonably
requests it to execute in connection with its review of any of CMAR's Work
or any of City's requests to Financing Party for disbursements on account of
the Work.
28.3
CMAR Assignment. CMAR will not, without City’s prior written consent, which may not
be unreasonably withheld, do the following:
(A)
Sell, transfer, assign or delegate any interest in this Agreement or any rights
or CMAR’s obligations; or
(B)
Until Final Payment is made, cause, suffer or permit:
(1)
Any sale, transfer or assignment of any stock, membership or other
equity ownership interest in CMAR, or
(2)
The issuance of any new stock or other equity ownership in CMAR.
28.4
Void Assignments. Any transfer, sale, assignment, delegation, or issuance of any stock,
membership, or other interest in CMAR without City's written consent is void.
41
29.
Taxation of Revenue Bonds. City may issue revenue bonds to fund the Project’s design,
construction and implementation. If City issues these bonds:
29.1
CMAR, to the extent within its control, and so long as it does not increase CMAR's time or
cost of performance of the Work, covenants that it will not knowingly take any action, or fail
to take any action, that adversely affects the inclusion from gross income of the interest on
any of revenue bonds under § 103(a) of the Internal Revenue Code of 1986, as amended (the
"Code");
29.2
CMAR will not cause the interest on any revenue bonds to become an item of tax preference
for purposes of the alternative minimum tax imposed on individuals and corporations under
the Code; and
29.3
In the event of such action or omission, CMAR will, promptly upon having any action or
inaction brought to its attention, take any reasonable actions based upon an opinion of bond
counsel to City, as may rescind or otherwise negate such action or omission.
29.4
CMAR, to the extent within its control, and so long as it does not increase CMAR's time or
cost of performance of the Work, will not knowingly directly or indirectly use or permit the
use of any proceeds of any revenue bonds or any other funds of City to take or omit to take
any action that would cause any revenue bonds issued to be or become "arbitrage bonds"
within the meaning of § 148(a) of the Code or to fail to meet any other applicable requirement
of §§ 103, 141, 148, 149 and 150 of the Code to the extent applicable to the Revenue Bonds.
30.
Indemnity.
30.1
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, liquidated, and punitive), 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 (whether or not taxable by
statute), and expenses incurred by each Indemnified Party.
30.2
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.
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30.3
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 fifteen (15) 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.
30.4
Negligence of Indemnified Party. The foregoing obligations to indemnify, defend, save
and hold harmless apply even if a Claim results in part from the negligence of an Indemnified
Party, but, in such event, the ultimate liability of CMAR is only to the extent the Claim is found
to have resulted from the negligence of CMAR or of any Subcontractor or Supplier.
(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.
31.
Insurance Requirements.
31.1
Insurance Obligation. CMAR must, as a material obligation to City and a condition
precedent to any payment otherwise due to CMAR, furnish and maintain, and cause its
Subcontractors and Suppliers to furnish and maintain, insurance in accordance with the
Insurance Requirements attached as Exhibit E.
(A)
Force Placement. In the event CMAR fails, or any Subcontractor or Supplier
fails, to maintain all insurance as provided in Exhibit E, City may, in addition
to, and without prejudice to any other remedies available to it under this
Agreement or applicable Law, on two (2) days’ notice, purchase equivalent
insurance.
(B)
Reimbursement for Force Placement. CMAR will reimburse City upon
demand, or, at City’s option, by way of withholding or off-setting amounts
otherwise due to CMAR, for all expenses City incurs in connection with
obtaining such insurance.
31.2
Risk of Loss.
(A)
CMAR bears the risk of loss to all materials, equipment, fixtures, supplies, or
other Work element, whether in transit, stored off-site, or stored or housed
on site, until such elements(s) have been incorporated into the Project, at
which time CMAR risk of loss will be addressed in accordance with the other
portions of this Agreement.
43
(B)
CMAR is solely responsible for insuring all such materials, equipment fixtures
or other Work element from loss until such materials, equipment, fixtures or
other elements have been physically incorporated in the Project, at which
time CMAR risk of loss will be addressed in accordance with the other
portions of this Agreement.
31.3
Bonds. Upon this Agreement’s execution, CMAR must furnish Payment and Performance
Bonds required under the provisions of A.R.S. § 34-608. The forms of the bonds will comply
with the statute and be provided by a surety approved by City.
31.4
Builder's Risk Insurance. CMAR will furnish an all risk property insurance ("Builder's Risk")
for the replacement value of the Work performed.
(A)
Form. The form of policy for this Builder's Risk coverage must be non-
reporting, in completed value with no co-insurance, and valued at
replacement cost with non-standard (broad) form all risk policy.
(B)
Coverage Value. The value utilized must be 100% of the completed value
(including Contract Amendments) of the renovation, repairs or construction.
31.5
Other Property Lost Coverage. Insurance against loss of tools, equipment, or other items
not incorporated into the Work, but required for the Work’s performance, is CMAR’s
responsibility.
32.
Records. CMAR must keep full and detailed accounts and exercise controls as may be
reasonably necessary for the Work’s proper financial management using generally accepted
accounting methods and control systems reasonably satisfactory to City.
32.1
City and its properly authorized representatives—who may be City employees or independent
contractors as determined by City—will be afforded access at all times on reasonable advance
notice to all CMAR's tangible and electronic records received or generated in connection with
the Project, including, without limitation, records, books, ledgers, correspondence,
instructions, drawings, receipts, contracts, subcontracts, vouchers, memoranda, electronic
data bases and other electronically stored data and printouts thereof, and similar data relating
to this Agreement (“Project Data”).
(A)
Project Data availability will allow for audit, review, inspection and copying,
at the Site or at CMAR's offices, if these offices are located in Maricopa
County, Arizona.
(B)
Access will be available during regular business hours.
(C)
Project Data will be available for this inspection for at least one year after
Final Completion of the Project or one year after the City has issued its Final
Payment and resolved all disputes regarding payments under this Agreement,
whichever is later.
32.2
CMAR will be entitled to a reasonable charge for furnishing more than one hard copy
of any document that is requested by City. CMAR will provide electronic copies to
the City upon request.
32.3
CMAR must preserve all such Project Data for a period of six (6) years after Final Payment,
or longer where required by Law, and prior to destruction, Project Data will be
delivered to City if City requests.
32.4
CMAR must include these record keeping and record retention provisions in its
subcontracts and contracts with Suppliers and require these parties to afford the City
similar access for audit, inspection and copying, to all of the hard copy and electronically
stored Project Data.
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33.
Equal Employment Opportunity.
33.1
Non-Discrimination Policies. CMAR must develop, consistently implement, and
effectively maintain non-discrimination policies.
(A)
Duty to Not Discrimination. CMAR and CMAR's Subcontractors and
Suppliers must not discriminate against any employee or applicant for
employment because of race, religion, color, sex, sexual orientation, national
origin, age, marital status, gender identity or expression, genetic
characteristics, familial status, US military veteran status or disability.
(B)
Affirmative Action. CMAR must take affirmative action to attract diverse
applicants, and ensure that the employees are treated during employment
without regard to their race, religion, color, sex, sexual orientation, national
origin, age, marital status, gender identity or expression, genetic
characteristics, familial status, US military veteran status or disability. This
affirmative action includes, but not be limited to, the following:
(1)
employment;
(2)
upgrading;
(3)
demotion or transfer;
(4)
recruitment or recruitment advertising;
(5)
layoff or termination;
(6)
rates of pay or other compensation; and
(7)
selection for training, including apprenticeship.
33.2
Notices of Non-Discrimination Policies. CMAR will post in conspicuous places, available
to employees and applicants for employment, notices that set forth the non-discrimination
policies and CMAR, its Subcontractors and Suppliers will, in all solicitations or advertisements
for employees placed by them or on their behalf, state that all qualified applicants will receive
consideration for employment without regard to race, religion, color, sex, sexual orientation,
national origin, age, marital status, gender identity or expression, genetic characteristics,
familial status, US military veteran status or disability.
34.
Immigration Law Compliance: CMAR, and on behalf any Subcontractor and Supplier,
warrants, to the extent applicable under A.R.S. § 41-4401, compliance with all federal
immigration laws and regulations that relate to their employees as well as compliance with
A.R.S. § 23-214(A) which requires registration and participation with the E-Verify Program.
34.1
Any breach of warranty under this Section is considered a material breach of this
Agreement and is subject to penalties up to and including termination of this
Agreement.
34.2
City retains the legal right to inspect the papers of any CMAR, Subcontractor or
Supplier employee who performs work under this Agreement to ensure that CMAR,
its Subcontractors and Suppliers are fully in compliance with any warranty under this
Section.
34.3
City may conduct random inspections, and upon request of City, CMAR shall provide
copies of papers and records of CMAR demonstrating continued compliance with
the warranty under this Section. CMAR agrees to keep papers and records available
for inspection by the City during normal business hours and will cooperate with City
in exercise of its statutory duties and not deny access to its business premises or
applicable papers or records for the purposes of enforcement of this Section.
45
34.4
CMAR agrees to incorporate into any subcontracts under this Agreement the same
obligations imposed upon CMAR and expressly accrue those obligations directly to
the benefit of the City. CMAR also agrees to require any subcontractor to incorporate
into each of its own subcontracts under this Agreement the same obligations above
and expressly accrue those obligations to the benefit of the City.
34.5
CMAR’s warranty and obligations under this Section to the City continue throughout
the term of this Agreement or until such time as the City determines, in its sole
discretion, that Arizona law has been modified so that compliance with this Section
is no longer a requirement.
34.6
The “E-Verify Program” above means the employment verification program
administered by the United States Department of Homeland Security, the Social
Security Administration, or any successor program.
35.
Termination.
35.1
For Cause. City has the right to terminate this Agreement without notice if CMAR:
(A)
Fails to maintain insurance required by this Agreement;
(B)
Violates any applicable Law regulating Hazardous Substances, occupational
health, job safety, or environmental matters;
(C)
Jeopardizes the health, safety or welfare of persons or property;
(D)
Is Debarred by any governmental entity (in which event the termination will
be effective as of the date of the sanction or debarment); or
(E)
Abandons the Work.
35.2
For Breach. If this Agreement is breached by CMAR, City may terminate this Agreement if
CMAR fails to cure the breach within seven (7) calendar days after delivery of written notice
specifying the breach or within such longer period of time as City may agree to in writing.
35.3
Remedy after Termination. If this Agreement is terminated, CMAR will immediately stop
Work and remove its employees from the Project Site. City may, without prejudice to any
other right or remedy available at Law or in equity, complete the Project through alternate
means and in whatever manner City deems appropriate. City may also, at its election, take
possession of and use the materials, equipment, tools and machinery of CMAR, a
Subcontractor, or any Supplier to complete the Work otherwise required of the CMAR under
this Agreement.
35.4
Payment after Termination. CMAR will have no right to any further payment until after
City has completed the Project and determined the amount of its costs, and expenses and
damages resulting from the termination.
(A)
If the unpaid balance of the Contract Sum exceeds the costs City incurs to
complete the Project, plus other expenses and damages incurred by City
resulting from CMAR's breach of this Agreement, City will pay CMAR the
difference.
(B)
If the expense of completing the Project, plus City's damages and other
expenses, exceeds such unpaid balance, CMAR will pay the difference to City
upon demand.
35.5
For Convenience. City may terminate this Agreement as to all or any part of the
Work for convenience at any time without cause upon five (5) days written notice.
(A)
Notice of Termination for Convenience. Notice of termination for
convenience:
46
(1)
Will be provided no less than five (5) days before cessation of Work;
(2)
Will specify the date of termination for that part of the Work; and
(3)
Will direct the sequence and manner in which the termination will be
implemented.
(B)
Payment after Termination for Convenience. Upon termination for
convenience, City will pay CMAR the reasonable value of all Work
performed prior to the date of termination, including costs necessarily
incurred, reasonable costs of demobilization and shut down, and reasonable
overhead and profit on Work performed, but excluding any profit or
overhead on unexecuted Work.
35.6
Abandonment.
(A)
City’s Right to Terminate. In the event CMAR, any Subcontractor or
Supplier suspends or terminates its performance under this Agreement for
any reason, City has the right to suspend or terminate all or any part of this
Agreement and finish the suspended or terminated Work by whatever means
City determines is appropriate.
(B)
Replacement. To prevent termination, CMAR must replace Subcontractor
or Supplier within five (5) days by procurement of a Subcontractor or
Supplier in a manner that is acceptable to City.
(C)
Withholding of Payments. If the abandoning Subcontractor or Supplier is
not timely replaced, City may complete the Work at CMAR's expense, in
which case:
(1)
CMAR will not be entitled to receive any further payment hereunder until:
(a)
The entire Project is complete; and
(b)
All direct and indirect costs incurred by City to complete
CMAR's Work, plus a reasonable allowance for City's
overhead and profit, has been paid or offset against the
GMP.
(2)
Direct and indirect costs and the allowance for overhead and profit will
apply against the Contract Price and, if the cost to complete the Project is
greater than the amount due CMAR, CMAR will pay that difference
immediately to City.
36.
Dispute Resolution.
36.1
Each claim, controversy and dispute (each a "Dispute," collectively, "Disputes") will be
initiated and resolved as provided in Exhibit G.
36.2
CMAR will continue performance of the Work pending resolution of any CMAR Claim,
request for Equitable Adjustment or any Dispute, unless otherwise directed by City in writing.
37.
Notices.
37.1
Any communication or notice required to be issued or given under this Agreement (each, a
"Notice") will be effective only if:
(A)
Notice is in writing; and
(B)
Delivered to the physical or electronic address given in Section 3 of this
Agreement on a business day observed by City ("Business Day"):
47
(1)
in person;
(2)
by private express overnight delivery service (delivery service charges
prepaid);
(3)
certified or registered mail (return receipt requested); or
(4)
electronic mail, if confirmation of receipt is given and received.
37.2
A notice will be deemed delivered to the party:
(A)
As of the date of receipt if received before 5:00 PM on a Business Day at the
address for Notices identified in Section 3 of this Agreement; or
(B)
As of the next Business Day if received after 5:00 PM on a Business Day at
the address for Notices identified in Section 3 of this Agreement.
37.3
The party giving Notice will have the burden of proof as to the time and place of delivery.
37.4
A party may only change its representative or the information for giving Notice by giving
Notice of the change to the other party in writing at least ten (10) days prior to the date such
change becomes effective.
38.
Miscellaneous.
38.1
Contract Amendment. The parties may, at any time, modify this Agreement by written
agreement ("Contract Amendment") signed by both City and CMAR. The Contract
Amendment shall become effective and an enforceable pat of this Agreement upon its
execution.
38.2
Integration. This is the entire agreement of City and CMAR, and it supersedes all
negotiations and any prior agreements between them relating to the Work and the Project.
No other documents are included unless incorporated herein by reference.
38.3
Counterparts. This Agreement may be executed in counterparts, and all counterparts will
together comprise one instrument.
38.4
Successor and Assigns. This Agreement will inure to the benefit of and be binding on the
parties’ successors and assigns.
38.5
Rights and Remedies.
(A)
All rights and remedies provided in this Agreement are cumulative and the
exercise or assertion of one or more rights or remedies will not affect any
other rights or remedies allowed by Law or equity or this Agreement.
(B)
Neither the failure nor any delay on the part of a party to exercise any right,
remedy, power or privilege under this Agreement’s provisions, or with
respect to any occurrence, shall operate as a waiver with respect to such
provision or occurrence thereof.
(C)
No single or partial exercise of any right, remedy, power or privilege
precludes any other or further exercise of the same or of any right, remedy,
power or privilege.
38.6
No Waiver. No waiver is effective unless it is in writing and is signed by the party asserted
to have granted such waiver.
38.7
Severability. If any provision of this Agreement is held by any court to be void or
unenforceable, that provision will not affect the validity of the remaining provisions of this
Agreement.
38.8
Survival. Except as specifically provided otherwise in this Agreement, each warranty,
representation, indemnification provision, insurance requirement, and every other right,
48
remedy and responsibility of City or CMAR under this Agreement will survive the Project’s
completion, or this Agreement’s earlier termination.
39.
Conditions Precedent. This Agreement’s effectiveness, and City's obligations hereunder, are
contingent upon City's written confirmation to CMAR that each of the following
contingencies have been fulfilled:
39.1
Funding. City has allocated funds specifically for the purpose of the Project or has secured
financing it deems satisfactory for the Project.
39.2
Approval. This Agreement has been approved by the Glendale City Council.
40.
Exhibits. The following exhibits are incorporated by this reference:
Exhibit
Title
A
The Project
B
The Work; Key Personnel
C
GMP Schedule
D
Project Schedule
E
CMAR's Insurance Requirements
F
Forms of Payment and Performance Bonds
G
Dispute Resolution Procedures
49
IN WITNESS WHEREOF, City and CMAR enter into this agreement and it shall
become effective as of the ___ day of ________________, 2022 (the "Effective Date").
Exhibit A
THE PROJECT
The City of Glendale - COG 50/COG 51 Well Drilling - Project No. 212228
Construction Manager At Risk Contractor
Tab 1 - Scope of Work
Tab 1 - Scope of Work
PROJECT SCOPE DESCRIPTION AND OVERVIEW: CITY OF GLENDALE WELLS PROGRAM
Overall project description of Guaranteed Maximum Price (GMP) 1:
Wellsite COG-50 (Arrowhead Hospital):
Preconstruction Services will be performed. These include attending design meetings, conducting design reviews, and
cost model developments at 30%, 60%, and 90% design phases, submittals, and procurement of long-lead items. Miscella-
neous site visits and team workshops will be conducted.
All long-lead equipment for wellsite COG-50 will be purchased and installed in GMP-2.
Site mobilization and setup of temporary facilities. This includes the procurement of dust control and SWPPP permits
and establishing best management practices per permitted plans. A construction water source will be installed with a city
meter and certified backflow preventer. MGC does not believe a site office trailer will be required for GMP-1 and has not
included one. Sound panels will be installed per pre-approved sound panel designs. Sound and vibration monitoring will be
performed four times during the well drilling process.
Drilling of the new well per Leonard Rice Engineering (LRE) design Specifications. We are furnishing and installing a
stainless-steel well casing, stainless-steel louvered screen, stainless-steel sounding tube, filter pack, and sanitary seal. The
well will be capped and secured, as well as a security fence will be installed around the casing for public safety. A well drill-
er will perform all well testing except for gyroscopic testing, which LRE will perform. MGC will establish survey benchmarks
and complete a survey of the new well location.
Temporary well testing piping will be installed from the new well to the corner of North 64th Drive and West Union
Hills Drive. Temporary piping will cross North 64th Drive heading west and run along the Abrazo Arrowhead Hospital
eastside parking lot heading south; it will cross two driveway entrances before ending at the stormwater headwall located
at North 64th Drive and West Union Hills Drive. A Temporary Construction Easement (TCE) will be required before tempo-
rary piping installation.
After well drilling and testing is completed, temporary piping will be removed, site cleanup will be performed, and the
well will be capped and secured for public safety.
Wellsite COG-51 (Sierra Verde Park):
Preconstruction Services will be performed. These include attending design meetings, conducting design reviews, and
cost model developments at 30%, 60%, and 90% design phases, submittals, and procurement of long-lead items. Miscella-
neous site visits and team workshops will be conducted.
As design progress and final specifications for well site equipment are finalized, MGC will solicit pricing for each piece
of equipment and compile an adjustment proposal submitted to the City for review and approval. Once approved, adjust-
ment proposal costs will be drawn from the long-lead equipment allowance, and Purchase Orders/Subcontracts will be
written. Long-lead submittals will be vetted, compiled, submitted, and approved. After approval, long-lead equipment will
be released. Long-lead equipment will be stored onsite until installed in GMP-2.
Site mobilization and setup of temporary facilities. This includes the procurement of dust control and SWPPP permits
and establishing best management practices per permitted plans. A construction water source will be installed with a city
meter and certified backflow preventer. MGC does not believe a site office trailer will be required for GMP-1 and does not
have one included. Sound panels will be installed per pre-approved sound panel designs. Sound and vibration monitoring
will be performed four times during the well drilling process.
The City of Glendale - COG 50/COG 51 Well Drilling - Project No. 212228
Construction Manager At Risk Contractor
Tab 1 Cont. - Scope of Work
Tab 1 Cont. - Scope of Work
The location of the new well site at Sierra Verde Park will be cleared and grubbed, a site fence will be installed, a
pedestrian walking path consisting of a 4-foot-wide asphalt ADA walkway around site fencing will be installed, irrigation
lines will be cut and capped as necessary, temporary water feed to disturbed vegetation will be installed, and a 2” thick
asphalt turnout will be installed on North 71st Avenue to allow the large construction equipment to enter and leave the job
site.
Drilling of the new well per Leonard Rice Engineering (LRE) design Specifications. We are furnishing and installing a
stainless-steel well casing, stainless-steel louvered screen, stainless-steel sounding tube, filter pack, and sanitary seal. The
well will be capped and secured, as well as a security fence will be installed around the casing for public safety. A well
driller will perform all well testing except for gyroscopic testing, which LRE will perform. MGC will establish survey
benchmarks and complete a survey of the new well location.
Temporary well testing piping will be installed from the new well to the intersection of North 75th Avenue and West Rose
Garden Lane. Temporary piping runs west out of wellsite, through the north section of Sierra Verde Park, head west on
West Rose Garden Lane, crossing three intersections at Sierra Verde Elementary School and North 74th Avenue until it
reaches the intersection of 75th Avenue. It will then be buried and tied into the sanitary sewer manhole on North 75th
Avenue and West Rose Garden Lane. A Temporary Construction Easement (TCE) will be required before temporary piping
installation.
After well drilling and testing is completed, temporary piping will be removed, site cleanup will be performed, and the well
will be capped and secured.
A permanent 10-foot-tall site wall and 20-foot-wide site gate will be installed. The exterior of the site wall will have a
smooth finish stucco installed. An allowance of $50,000 has been included for public art. One steel wall sleeve will be
installed prior to wall footing construction for future electrical power conduits to be ran for permanent utility power.
Landscaping that was disturbed during well drilling activities will be repaired. This includes replacing irrigation lines and
sprinkler heads, re-seeding the disturbed grass area, new trees will be installed, and replacement DG will be placed.
The temporary turnout will be removed, and a permanent one will be installed. This includes curbing, asphalt paving,
striping, and sidewalk.
The construction of the existing parking lot improvements on the south side of the new site wall will be a 2" raised
blacktop overlay. This area will be utilized as a temporary staging area and future parking spaces. Final design and
construction of the extended parking spaces will be included in GMP 2.
1.
Size: Less than 1 acre being disturbed
2.
Type of Job: Well drilling
3.
Usage: RAW water supply
4.
Work to be completed: Demolition, well drilling, temporary discharge lines for testing, long-lead
equipment procurement, and preconstruction services
5.
Number of anticipated GMPs: 2
Wellhead(s)
Location
Design Engineer
COG-50
N 64th Drive, Glendale, AZ 85308
Hazen
COG-51
W Rose Garden & N 71st Ave, Glendale, AZ 85308
Hazen
The City of Glendale - COG 50/COG 51 Well Drilling - Project No. 212228
Construction Manager At Risk Contractor
Tab 8 - Clarifications & Assumptions
Tab 8 - Clarifications & Assumptions
CLARIFICATIONS & ASSUMPTIONS
Work will be completed generally in accordance with the Leonard Rice Engineering (LRE) Technical
Specifications for Drilling and Installation of City of Glendale Arrowhead Hospital Well 50 dated February
2022, except as noted below:
1. GMP 1 only includes the outlined items in the attached MGC cost breakdown sheets and the written
scope letter. All other project scope items will be included in GMP 2.
2. Preconstruction Services have been included. Costs for Preconstruction Services will be billed out on a
monthly basis as scope items are completed. Potholing work will be billed out on a time and materials
basis. All unused money will be returned to the City of Glendale after the Preconstruction Services
contract has been completed.
3. Building permits and plan check fees are excluded. Permits usually procured by the CMAR, such as
Storm Water Pollution Prevention Plan and Dust Control Plan, have been included.
4. Special inspections have been excluded.
5. Third-party testing and inspections are not included.
6. We have excluded any hazardous materials' handling, removal, or abatement.
7. We have excluded the reparation of existing code violations.
8. We have excluded the operation of any existing valves and equipment not shown in the contract
documents to be modified or operated by MGC.
9. We assumed that others would perform public outreach efforts, and associated costs were not
included. MGC will provide schedules and information to others for public outreach efforts.
10. All required shutdowns will be coordinated with City staff.
11. Due to volatility in steel and stainless-steel prices and the global pandemic, well casing and louvered
screen prices are subject to fluctuation after the guaranteed price period defined in the quote has
expired. MGC has included allowances to cover price escalations due to these unforeseen
circumstances.
12. The Contract Documents do not include plans. Only specifications were provided for the well at
COG-50. MGC and our drilling subcontractors are basing the costs of this GMP for both wells
COG-50 and COG-51 off the Leonard Rice Engineering (LRE) Technical Specifications for drilling
and installation of the COG-50 well site. Unit pricing for COG-50 well drilling will be applied to
the COG-51 well drilling and will be billed out as actual units performed. We have included a
backup sheet for COG-51 with LRE and MGC assumptions of quantities.
13. Project site security and camera surveillance are included.
14. We have included allowances as shown below:
• Long-Lead Materials ($988,477.00): This allowance only includes wellsite COG-51
long-lead equipment and is to be drawn upon as the design is completed and final
equipment Specifications are developed. Full backup for pricing will be provided in submitted
adjustments sent for City of Glendale review and approval. A breakdown of this allowance has
been provided in GMP.
• General Allowances ($1,377,837.83): As the design develops, this allowance will be drawn
upon for specified allowance items. Full backup for pricing will be provided in submitted
adjustments sent for City of Glendale review and approval. A breakdown of this allowance has
been provided in GMP.
• After the project is completed, all unused allowance money will be returned to the
City of Glendale.
15. Long-lead equipment submittals management efforts for Wellsite COG-51 have been included in our
Preconstruction Services pricing.
16. We have NOT included costs associated with existing parking lot improvements south of the proposed
site wall. This will be included in GMP 2. Performing this work in GMP 1 before GMP 2 work is
completed may cause damage to existing parking lot improvements.
17. A 4-foot-wide asphalt walkway around the construction area has been included in GMP 1.
18. During the drilling portion of the project at Well 51, the parks parking lot will not be utilized.
19. Builders Risk Insurance is excluded.
The City of Glendale - COG 50/COG 51 Well Drilling - Project No. 212228
Construction Manager At Risk Contractor
Tab 2 - GMP Proposal Summary Sheet
Tab 2 - GMP Proposal Summary Sheet
Date: 5/5/2022
Project Title:
AMOUNT
DIRECT COSTS
1
Cost of Construction Well 50
2,021,553.87
$
2
Cost of Construction Well 51
2,118,450.52
$
-
$
SUBTOTAL DIRECT COSTS
4,140,004.39
$
INDIRECT COSTS
CALCULATED
RATE:
A.
6.39%
264,746.81
$
B.
1.00%
81,580.27
$
C.
2.00%
163,160.55
$
D.
SUBTOTAL GENERAL CONDITIONS COSTS
509,487.63
$
E.
SUBTOTAL DIRECT AND INDIRECT COSTS
4,649,492.02
$
F.
8.00%
331,200.35
$
G.
SUBTOTAL DIRECT AND INDIRECT COSTS (INCLUDING FEE)
4,980,692.37
$
H.
Sales Tax
280,911.05
$
5,261,603.42
$
J. Allowances (Well 51)
1,377,837.83
$
K Long Lead Material Allowance (Well 51)
988,477.00
$
L. Preconstruction Services
65,160.00
$
M. Owners Contingency
464,949.20
$
8,158,027.45
$
GMP 1 SUMMARY SHEET
N. Total Contract Amount
Construction Fee (Overhead & Profit)
Project Number:
GLENDALE WELLS 50 & 51 LONG LEAD PROCUREMENT & WELL DRILLING
CONSTRUCTION SERVICES
General Conditions (Excluding Bonds and Insurance)
Payment and Performance Bonds
Insurance
I. Direct & Indirect Cost Plus Sales Tax
EXHIBIT B
THE WORK
KEY PERSONNEL
(See Attached)
Key Personnel
Bryan Forster,
Project Manager
Aubrey Roumo
Precon Manager
Subconsultant
Randy Gates,
Estimator
Billy Stokes
Project Superintendent
Erick Ledezma -Safety Director
Quality Control Manager
Equipment Manager
Support
Equipping
Drilling
Construction Phase
Preconstruction Phase
GENERAL INFORMATION
A.1 General description of the firm
MGC Contractors is an experienced and trusted CMAR contractor and has been
a construction industry leader in Arizona for over 47 years. Our company has
performed more than $1B in water and wastewater production construction, via
both alternative and traditional project delivery. We specialize in all forms of
Water and Wastewater General Contracting including Construction Manager
at Risk (CMA@R) throughout the state. We are known for high-quality
installations, having a customer service-oriented philosophy, and the ability to
complete complex construction projects on time and within budget.
Legal organization of the firm
MGC Contractors, Inc. is an Employee-Owned, Arizona Corporation with roots
in Phoenix dating back to 1974. MGC serves these markets: industrial, water
and wastewater facilities, and infrastructure.
A.2 Organizational Chart
A.3 Principal and home office locations
MGC’s principal office is located at 4110 East Elwood Street, Phoenix AZ
85040. This office will be responsible for this project, and is the home office for
all key staff members for this project.
A.4.a. MGC’s license information
MGC Contractor License: AZ ROC069949 | General Engineer A
MGC Contractor License: AZ ROC071441 | General Commercial B1
Yellow Jacket Drilling Licenses:
Contractors License # 218848, Class A-4
Contractors License # 218849, Class R-53
A.4.b. Contract termination and claim history
MGC has had no contract issues in the last three years and we have no potential
contract issues pending.
A.4.c. Company’s bonding capacity
Upon selection as a finalist for your project, MGC will provide a statement from
our surety company (A- or better), describing MGC’s bonding capacity.
City of Glendale - Arrowhead Ranch and Sierra Verde Wells
Project Number: 212228 / Bid Number: 42200024
1
EXHIBIT C
GMP PROPOSAL SCHEDULE
(See Attached)
The City of Glendale - COG 50/COG 51 Well Drilling - Project No. 212228
Construction Manager At Risk Contractor
Tab 10 - Project Schedule
Tab 10 - Project Schedule
Activity #
Duration
Start Date
Finished
1
14-Jun-22
2
4 Days
16-Jun-22
21-Jun-22
3
5 Days
17-Jun-22
23-Jun-22
4
2 Days
24-Jun-22
27-Jun-22
5
10 Days
28-Jun-22
28-Jul-22
6
45 Days
5-Jul-22
6-Sep-22
7
7 Days
17-Aug-22
25-Aug-22
6
3 Days
12-Sep-22
14-Sep-22
7
10 Days
15-Sep-22
5-Oct-22
8
5 Days
5-Oct-22
11-Oct-22
9
55 Days
12-Oct-22
3-Jan-23
10
18-Apr-23
8-Jan-24
* Project start is based on June 14, 2022 Council Meeting for approval
* Added an extra 10 days here to help cover Thanksgiving and Christmas holidays.
Mobilization to Well 51 - Sierra Verde Park
The City of Glendale - Simple Schedule for Well 51 - Sierra Verde Park Project
Activity Name
Notice to Proceed - After City Council Approval
Sound Wall Removal
Siera Park GMP2 Construction - (estimated for
+/- 9 months)
Site Preparation: Temporary Walkway/Turnout
Sound Wall Installation
Start Well Drilling, Geophysical Logging, Zonal
Sampling, Casing/Screen, Filter Pack Installation,
and Airlift Development
Mobilize Test Pump
Conduct Pumping Test / Disinfect and Cap Well
Site Wall Installation, Cleanup and Replace
Landscape
Pilot Hole Drilling
Install Temporary HDPE Discharge Pipe
EXHIBIT D
PROJECT SCHEDULE
SCHEDULE UPDATES
(See Attached)
Activity ID
Activity Name
Original
Duration
Start
Finish
City of Glendale Wells
City of Glendale Wells Program
449
17-Jan-22 A
16-Jan-24
GMP 1 Preconstructi
GMP 1 Preconstruction, Long-Lead, Well Drilling
449
17-Jan-22 A
16-Jan-24
Administration & Miles
Administration & Milestones
449
13-Apr-22 A
16-Jan-24
Administration
Administration
46
13-Apr-22 A
15-Jun-22
A1310
GMP 1 Submission & Approval
20
13-Apr-22 A
10-May-22
A1320
City Council Approval
0
14-Jun-22*
A1330
Notice to Proceed w/ Field Work
0
15-Jun-22*
Project Milestones
Project Milestones
403
15-Jun-22
16-Jan-24
A1300
Well Drilling Subcontractor Procurement
0
15-Jun-22
A5420
COG-51 Long-Lead Equipment Adjustment for Allowance Use
0
14-Nov-22
A1350
COG-51 Drilling Completion
0
14-Dec-22
A1340
COG-50 Drilling Completion
0
27-Dec-22
A5410
COG-50 Long-Lead Equipment Adjustment for Allowance Use
0
13-Feb-23
A1370
GMP-2 Submission
0
25-May-23
A5440
COG-51 All Long-Lead Equipment Delivered
0
17-Oct-23
A5430
COG-50 All Long-Lead Equipment Delivered
0
16-Jan-24
Preconstruction Serv
Preconstruction Services and Long-Lead Equipment
449
17-Jan-22 A
16-Jan-24
Preconstruction Servi
Preconstruction Services and Design Phases
287
17-Jan-22 A
25-May-23
COG-51 (Sierra Verd
COG-51 (Sierra Verde Park)
272
17-Jan-22 A
04-May-23
A4940
30% Design
80
17-Jan-22 A
16-Jun-22
A4950
30% Design Review and VE Ideas
20
16-Jun-22
14-Jul-22
A4960
60% Design
150
17-Jun-22
19-Jan-23
A4970
Long-Lead Equipment Specifications
20
20-Sep-22
17-Oct-22
A4980
60% Design Review and VE Ideas
20
19-Jan-23
15-Feb-23
A4990
90% Design
40
20-Jan-23
16-Mar-23
A5000
Permitting
30
03-Mar-23
13-Apr-23
A5010
90% Design Review and VE Ideas
20
17-Mar-23
13-Apr-23
A5020
100% Design
15
14-Apr-23
04-May-23
COG-50 (Arrowhead
COG-50 (Arrowhead Hospital)
282
14-Feb-22 A
18-May-23
A4800
30% Design
80
14-Feb-22 A
30-Jun-22
A4860
30% Design Review and VE Ideas
20
30-Jun-22
28-Jul-22
A4810
60% Design
150
01-Jul-22
02-Feb-23
A4820
Long-Lead Equipment Specifications
20
16-Dec-22
16-Jan-23
A4890
60% Design Review and VE Ideas
20
02-Feb-23
01-Mar-23
A4830
90% Design
40
03-Feb-23
30-Mar-23
A4840
Permitting
30
17-Mar-23
27-Apr-23
A4920
90% Design Review and VE Ideas
20
31-Mar-23
27-Apr-23
A4850
100% Design
15
28-Apr-23
18-May-23
Cost Models and G
Cost Models and GMP 2
231
30-Jun-22
25-May-23
A4870
30% Cost Model
25
30-Jun-22
04-Aug-22
A5040
COG-51 Long-Lead Equipment Proposal for Allowance Draw
20
18-Oct-22
14-Nov-22
A4900
COG-50 Long-Lead Equipment Proposal for Allowance Draw
20
17-Jan-23
13-Feb-23
A4880
60% Cost Model
20
02-Feb-23
01-Mar-23
A4910
90% Cost Model
20
31-Mar-23
27-Apr-23
A4930
GMP 2 - Well Equipping
20
28-Apr-23
25-May-23
Long-Lead Equipmen
Long-Lead Equipment Submittals & Procurement
297
15-Nov-22
16-Jan-24
A1440
GMP 1 - Write COG-51 Long-Lead Contracts
10
15-Nov-22
29-Nov-22
A1360
GMP 1 - Write COG-50 Long-Lead Contracts
10
14-Feb-23
27-Feb-23
Submittals to Engin
Submittals to Engineer
92
30-Nov-22
10-Apr-23
COG-51 Submittals
COG-51 Submittals
30
30-Nov-22
12-Jan-23
A5110
Deep Vertical Turbine Well Pump and Motor
25
30-Nov-22
05-Jan-23
A5120
Ductile Iron Pipe and Appurtenances
10
30-Nov-22
13-Dec-22
A5130
Valves
10
30-Nov-22
13-Dec-22
A5140
Electrical Enclosure
20
30-Nov-22
28-Dec-22
A5150
Electrical Instrumentation
10
30-Nov-22
13-Dec-22
A5160
Electrical Gear
30
30-Nov-22
12-Jan-23
COG-50 Submittals
COG-50 Submittals
30
28-Feb-23
10-Apr-23
A5050
Deep Vertical Turbine Well Pump and Motor
25
28-Feb-23
03-Apr-23
A5060
Ductile Iron Pipe and Appurtenances
10
28-Feb-23
13-Mar-23
A5070
Valves
10
28-Feb-23
13-Mar-23
A5080
Electrical Enclosure
20
28-Feb-23
27-Mar-23
A5090
Electrical Instrumentation
10
28-Feb-23
13-Mar-23
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
2022
2023
City of Glendale - Wells Program - COG-50 and COG-51
Actual Work
Remaining Work
Critical Remaining Work
Activity ID
Activity Name
Original
Duration
Start
Finish
A5100
Electrical Gear
30
28-Feb-23
10-Apr-23
Submittals Returne
Submittals Returned from Engineer
97
14-Dec-22
01-May-23
COG-51 Submittals
COG-51 Submittals
35
14-Dec-22
02-Feb-23
A5240
Ductile Iron Pipe and Appurtenances
10
14-Dec-22
28-Dec-22
A5250
Valves
10
14-Dec-22
28-Dec-22
A5270
Electrical Instrumentation
10
14-Dec-22
28-Dec-22
A5260
Electrical Enclosure
10
29-Dec-22
12-Jan-23
A5230
Deep Vertical Turbine Well Pump and Motor
12
06-Jan-23
23-Jan-23
A5280
Electrical Gear
15
13-Jan-23
02-Feb-23
COG-50 Submittals
COG-50 Submittals
35
14-Mar-23
01-May-23
A5180
Ductile Iron Pipe and Appurtenances
10
14-Mar-23
27-Mar-23
A5190
Valves
10
14-Mar-23
27-Mar-23
A5210
Electrical Instrumentation
10
14-Mar-23
27-Mar-23
A5200
Electrical Enclosure
10
28-Mar-23
10-Apr-23
A5170
Deep Vertical Turbine Well Pump and Motor
12
04-Apr-23
19-Apr-23
A5220
Electrical Gear
15
11-Apr-23
01-May-23
Procurement
Procurement
267
29-Dec-22
16-Jan-24
COG-51 Procurem
COG-51 Procurement
205
29-Dec-22
17-Oct-23
A5360
Ductile Iron Pipe and Appurtenances
25
29-Dec-22
02-Feb-23
A5370
Valves
25
29-Dec-22
02-Feb-23
A5390
Electrical Instrumentation
25
29-Dec-22
02-Feb-23
A5380
Electrical Enclosure
35
13-Jan-23
02-Mar-23
A5350
Deep Vertical Turbine Well Pump and Motor
70
24-Jan-23
01-May-23
A5400
Electrical Gear
180
03-Feb-23
17-Oct-23
COG-50 Procurem
COG-50 Procurement
205
28-Mar-23
16-Jan-24
GMP 1 Wells COG-51
GMP 1 Wells COG-51 and COG-50
135
15-Jun-22
27-Dec-22
GMP 1 Well Drilling Mi
GMP 1 Well Drilling Milestones
135
15-Jun-22
27-Dec-22
Milestones
Milestones
135
15-Jun-22
27-Dec-22
Well COG-51
Well COG-51
127
15-Jun-22
14-Dec-22
A4240
Well Drilling Subcontractor Procurement
0
15-Jun-22
A4420
Well COG-51 MGC Mobilization
0
17-Jun-22
A4370
Well Driller Mobilization
0
27-Jun-22
A4360
Final Well Design
0
05-Aug-22
A4410
Well COG-51 Drilling Rig Mobilization
0
09-Sep-22
A4390
Test Pump Demobilization Completion
0
03-Oct-22
A4400
Well COG-51 Drilling Phase Completion
0
14-Dec-22
Well COG-50
Well COG-50
68
21-Sep-22
27-Dec-22
A4280
Well COG-50 MGC Mobilization
0
21-Sep-22
A4300
Well Driller Mobilization
0
22-Sep-22
A4290
Final Well Design
0
26-Oct-22
A4310
Well Drilling Rig Demobilization
0
09-Dec-22
A4340
Well COG-50 Drilling Rig Mobilization
0
09-Dec-22
A4320
Test Pump Demobilization Completion
0
20-Dec-22
A4330
Well COG-50 Drilling Phase Completion
0
27-Dec-22
GMP-1 Well Drilling
GMP-1 Well Drilling
135
16-Jun-22
27-Dec-22
Well COG-51 Drilling (
Well COG-51 Drilling (Sierra Verde Park)
127
16-Jun-22
14-Dec-22
Well Drilling
Well Drilling
127
16-Jun-22
14-Dec-22
Submittals & Procu
Submittals & Procurement
60
16-Jun-22
09-Sep-22
A3730
COG-51- Contracts, Submittals & Procurement
60
16-Jun-22
09-Sep-22
Well Installation
Well Installation
127
16-Jun-22
14-Dec-22
Mobilization and
Mobilization and Site Preperation
36
16-Jun-22
05-Aug-22
A4510
Mobilization
4
16-Jun-22
21-Jun-22
A4520
Misc. Site Preperation Including Clear & Grub and Turnout
5
17-Jun-22
23-Jun-22
A4530
Well Survey Staking
1
20-Jun-22
20-Jun-22
A4540
Vibration & Sound Monitoring - Initial
1
24-Jun-22
24-Jun-22
A4550
Drilling Subcontractor Mobilization & Surface Casing Installation
2
24-Jun-22
27-Jun-22
A4560
Install Sound Barricades
10
28-Jun-22
12-Jul-22
A4570
Vibration Monitoring - Second
1
01-Jul-22
01-Jul-22
A4580
Drill Pilot Hole & Conduct Geophysical Logging
10
05-Jul-22
18-Jul-22
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
2022
2023
City of Glendale - Wells Program - COG-50 and COG-51
Actual Work
Remaining Work
Critical Remaining Work
Activity ID
Activity Name
Original
Duration
Start
Finish
A4590
Vibration Monitoring - Third
1
08-Jul-22
08-Jul-22
A4600
Sound Monitoring - Second
1
08-Jul-22
08-Jul-22
A4610
Perform Zonal Sampling Test
8
19-Jul-22
28-Jul-22
A4620
Final Well Design
6
29-Jul-22
05-Aug-22
Well Constructio
Well Construction
32
08-Aug-22
21-Sep-22
A4630
Ream Bore Hole & Conduct Calipar Logging
10
08-Aug-22
19-Aug-22
A4640
Vibration Monitoring - Fourth
1
09-Aug-22
09-Aug-22
A4650
Sound Monitoring - Third
1
09-Aug-22
09-Aug-22
A4690
Install 12" HDPE Discharge Piping
7
17-Aug-22
25-Aug-22
A4660
Casing & Screen Installation
3
22-Aug-22
24-Aug-22
A4670
Filter Pack Installation (60 MT)
1
25-Aug-22
25-Aug-22
A4680
Conduct Airlift Well Development
7
26-Aug-22
06-Sep-22
A4700
Demobilize Drill Rig & Equipment
3
07-Sep-22
09-Sep-22
A4710
Mobilize Test Pump
3
12-Sep-22
14-Sep-22
A4720
Conduct Pump & Surge Development
3
15-Sep-22
19-Sep-22
A4730
Plumbness & Alignment Test
2
20-Sep-22
21-Sep-22
Pumping Test, V
Pumping Test, Video, and Disinfection
14
22-Sep-22
11-Oct-22
A4740
Install Test Pump & Equipment
3
22-Sep-22
26-Sep-22
A4750
Conduct Pumping Test
3
27-Sep-22
29-Sep-22
A4760
Demobilization of Test Pump
2
30-Sep-22
03-Oct-22
A4770
Conduct Final Well Video
1
04-Oct-22
04-Oct-22
A4780
Disinfect & Cap Well
1
05-Oct-22
05-Oct-22
A5030
Remove Sound Panels
5
05-Oct-22
11-Oct-22
Site Work & Cle
Site Work & Cleanup
45
12-Oct-22
14-Dec-22
A5510
Scarify Grass Area Soil
1
12-Oct-22
12-Oct-22
A5610
Install Sleeves w/ Encasements for Under Wall Footing Piping & Future Conduits
3
12-Oct-22
14-Oct-22
A5520
Install/Repair Irrigation System
7
13-Oct-22
21-Oct-22
A5450
Excavate Wall Footings & Subgrade Compaction Testing
3
17-Oct-22
19-Oct-22
A5460
Form, Rebar, Pour, Strip Wall Footings
6
20-Oct-22
27-Oct-22
A5470
Construct Masonry Wall (8' Tall)
17
28-Oct-22
21-Nov-22
A5620
Form, Pour, Strip Entry Gate Track w/ Embeds
6
28-Oct-22
04-Nov-22
A5540
Demo Temporary Pull Out Area
2
18-Nov-22
21-Nov-22
A5480
Apply Stucco w/ Smooth Finish (Exterior Only)
5
22-Nov-22
29-Nov-22
A5550
Grade Pull Out Area & Compaction Test Subgrade
2
22-Nov-22
23-Nov-22
A5560
Form, Pour, Strip Pull Out Area Curb
5
25-Nov-22
01-Dec-22
A5570
Form, Pour, Strip Pull Out Area Sidewalk
5
25-Nov-22
01-Dec-22
A5490
Paint Stucco Wall
3
30-Nov-22
02-Dec-22
A5580
Pave Pull Out Area
1
02-Dec-22
02-Dec-22
A5500
Install Site Entry Gate
3
05-Dec-22
07-Dec-22
A5530
Replace Landscaping (Re-Seed & Plant Replacement Tree's)
5
05-Dec-22
09-Dec-22
A5590
Strip Pull Out Area
1
05-Dec-22
05-Dec-22
A5600
Landscaping Finishes & Punchlist Items
7
06-Dec-22
14-Dec-22
Well Drilling COG-50 (A
Well Drilling COG-50 (Arrowhead Hospital)
135
16-Jun-22
27-Dec-22
Submittals & Procu
Submittals & Procurement
60
16-Jun-22
09-Sep-22
A3300
GMP 1 - Contracts, Submittals & Procurement
60
16-Jun-22
09-Sep-22
Well Installation
Well Installation
75
12-Sep-22
27-Dec-22
Mobilization and Sit
Mobilization and Site Preperation
33
12-Sep-22
26-Oct-22
A2960
Mobilization, Establish BMPS, Survey, Site Water, Etc...
7
12-Sep-22
20-Sep-22
A2970
Well Survey Staking
1
13-Sep-22
13-Sep-22
A2980
Drilling Subcontractor Mobilization & Surface Casing Installation
2
21-Sep-22
22-Sep-22
A2990
Install Sound Barricades
10
23-Sep-22
06-Oct-22
A3010
Drill Pilot Hole & Conduct Geophysical Logging
10
23-Sep-22
06-Oct-22
A3040
Perform Zonal Sampling Test
8
07-Oct-22
18-Oct-22
A3050
Final Well Design
6
19-Oct-22
26-Oct-22
Well Construction
Well Construction
31
27-Oct-22
09-Dec-22
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
2022
2023
City of Glendale - Wells Program - COG-50 and COG-51
Actual Work
Remaining Work
Critical Remaining Work
Activity ID
Activity Name
Original
Duration
Start
Finish
A3060
Ream Bore Hole & Conduct Calipar Logging
10
27-Oct-22
09-Nov-22
A3090
Casing & Screen Installation
3
10-Nov-22
14-Nov-22
A3100
Filter Pack Installation (65 MT)
1
15-Nov-22
15-Nov-22
A3110
Install 12" HDPE Discharge Piping
7
16-Nov-22
25-Nov-22
A3120
Conduct Airlift Well Development
7
28-Nov-22
06-Dec-22
A3130
Demobilize Drill Rig & Equipment
3
07-Dec-22
09-Dec-22
Pumping Test, Vide
Pumping Test, Video, and Disinfection
9
12-Dec-22
22-Dec-22
A3170
Install Test Pump & Equipment
3
12-Dec-22
14-Dec-22
A3190
Conduct Pump & Surge Development
1
15-Dec-22
15-Dec-22
A3250
Plumbness & Alignment Test
1
16-Dec-22
16-Dec-22
A3210
Demobilization of Test Pump
2
19-Dec-22
20-Dec-22
A3220
Conduct Final Well Video
1
21-Dec-22
21-Dec-22
A3230
Disinfect & Cap Well
1
22-Dec-22
22-Dec-22
Site Work & Cleanu
Site Work & Cleanup
2
23-Dec-22
27-Dec-22
A3240
Demobilization Temporary Pipe, Final Site Cleanup and Walkthrough
2
23-Dec-22
27-Dec-22
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
2022
2023
City of Glendale - Wells Program - COG-50 and COG-51
Actual Work
Remaining Work
Critical Remaining Work
EXHIBIT E
CMAR'S INSURANCE REQUIREMENTS
CMAR must, as a material obligation to City and a condition precedent to any payment otherwise due
to CMAR, furnish and maintain, and cause its Subcontractors and Suppliers to furnish and maintain,
insurance in accordance with the provisions of this Exhibit.
CMAR must secure and maintain without interruption, from the date of commencement of the Work
until the later of the date of Final Completion, the date of final payment, or the date until which this
Agreement requires any coverage to be maintained after final payment, policies of commercial general
liability, commercial auto, umbrella/excess, workers compensation and employers liability insurance,
providing the following coverage, limits and endorsements:
1.
Commercial General Liability Insurance.
1.1
The CGL policy must be written on an occurrence basis, on ISO form CG 001 or its
equivalent, providing coverage for bodily injury, broad form property damage,
personal injury (including coverage for contractual and employee acts), contractual
liability, incidental professional liability, the hazards commonly referred to as XCU,
and products and completed operations, with a combined single limit of liability of
not less than $5,000,000 for each occurrence applicable to the Work, and an annual
aggregate limit of liability of not less than $5,000,000 applicable solely to the Work,
and meeting all other requirements of this Exhibit.
1.2
The general liability insurance may be accomplished with a combination of a
general liability and an excess/umbrella liability policy.
1.3
Each general liability policy must be endorsed or written to:
(A)
Include the per project aggregate endorsement;
(B)
Name as additional insureds the following: City of Glendale and its
employees, representatives and agents (collectively, the "Additional
Insureds");
(C)
Stipulate that the insurance afforded by the policies furnished by CMAR will
be primary insurance and that any insurance, self-insured retention,
deductibles, or risk retention programs maintained or participated in by the
Additional Insureds, or their agents, officials or employees will be excess and
not contributory to the liability insurance furnished by CMAR and by its
Subcontractors;
(D)
Includes a severability of interest clause; and
(E)
Waive all rights of recovery against the Additional Insureds.
2.
Workers' Compensation Insurance.
2.1
The Workers’ Compensation policy must meet all Arizona statutory requirements, and
Employers' Liability Insurance, with limits of at least $500,000 per accident or disease per employee,
both policies endorsed to waive subrogation against the Additional Insureds.
2.2
CMAR must provide, at CMAR's expense, Voluntary Compensation insurance for the
protection of employees engaged in the Work who are exempt from the coverage provided under the
Workers' Compensation statutes with coverage equivalent or better than the coverage required in the
preceding sentence, for the duration of the project.
3.
Auto Liability Insurance
3.1
Auto Liability must be carried with minimum combined single limits of $1,000,000 per
occurrence for bodily injury and property damage.
3.2
This policy must include a duty to defend and cover all owned, non-owned, leased, hired,
assigned or borrowed vehicles.
3.3
This policy must be endorsed to name the Additional Insureds as such, stipulate that any
insurance carried by the Additional Insureds must be excess and not contributory, and to waive
subrogation against the Additional Insureds.
4.
Equipment Property Insurance.
4.1
CMAR must secure, pay for, and maintain all-risk insurance as necessary to protect City against
loss of owned, non-owned, rented or leased capital equipment and tools, equipment and scaffolding,
staging, towers and forms owned or rented by CMAR, its Subcontractors or Supplier and any
construction material in transit or stored in any location other than the Site.
4.2
This policy must have a waiver of subrogation in favor of the Additional Insureds.
5.
Commercial Crime Insurance. This policy must cover employees responsible to disburse
funds to pay project costs against employee dishonesty, forgery or alteration, or computer
fraud.
6.
Waiver of Subrogation. CMAR hereby waives, and will require each of its Subcontractors
and Suppliers to waive, all rights of subrogation against the Additional Insureds to the extent
of all losses or damages covered by any policy of insurance.
7.
Term of Coverage.
7.1
The products and completed operations liability coverage required by this Agreement must
extend for a period of not less than five years after the earlier of Final Payment for the Work, or the
termination of the Agreement (the "Completed Operations Term").
7.2
If at any time prior to the conclusion of time limit described in Section 7.1 above, CMAR
cannot obtain equivalent coverage by replacement or renewal, CMAR must acquire a tail policy prior to
expiration of the existing policy not less than five years after the earlier of Final Payment for the Work,
or the termination of the Agreement (the "Completed Operations Term").
7.3
CMAR will furnish certificates of insurance and other evidence that City may reasonably
require during the Completed Operations Term to establish compliance with the requirements of this
paragraph.
7.4
All other policies of insurance must be maintained continuously in force from commencement
of the Work until the date of Final Payment.
8.
Subcontractor and Supplier Insurance Requirements.
8.1
CMAR must require all of CMAR's Subcontractors and Suppliers, as a condition of working
on the Project, and of receiving payment, to:
(A)
Purchase
and
maintain
Commercial
General
Liability,
Workers'
Compensation and Employer's Liability, and Automotive insurance policies,
with the same coverage, endorsements, terms of coverage and other
provisions as are required of CMAR under by this Exhibit, EXCEPT
THAT the combined coverage limits of the general liability insurance to be
furnished by Supplier must be $1,000,000 per occurrence, and $1,000,000 as
the annual aggregate limit); and
(B)
Timely furnish to City proper certificates, endorsements, copies of
declarations pages, and other documents necessary to establish the
Subcontractor's compliance with this Exhibit.
(C)
The Supplier’s general liability policy must also be endorsed to provide the
same coverage as the primary insurance, the general liability insurance
furnished by CMAR must be the secondary and non-contributory, and any
insurance carried by the Additional Insureds must be excess, tertiary and non-
contributory to the insurance furnished by CMAR and Subcontractor.
(D)
City has the right to inspect and copy all such certificates, endorsements, or
other proof at any reasonable time.
9.
Other Policy Provisions. Each policy to be furnished by CMAR, each Subcontractor and
Supplier must:
9.1
Be issued by an insurance carrier having a rating from A.M. Best Company of at least A-VII
or better;
9.2
Have a deductible not exceeding $10,000 unless otherwise agreed upon by City;
9.3
Provide that attorneys’ fees shall be outside of the policy's limits and shall be unlimited;
9.4
Include the Facility per aggregate endorsement;
9.5
Waive all rights of subrogation against City;
9.6
Contain a provision that coverage afforded under the policies will not be canceled, allowed to
expire, or reduced in amount until at least thirty (30) days prior written notice has been given to City;
and
9.7
Be otherwise satisfactory to City. City agrees to consider alternatives to the requirements
imposed by this Exhibit but only to the extent that City is satisfied the insurance is not commercially
available to the insured. In such event, City shall have the right to set conditions for such waiver,
including, but not limited to, additional indemnities, and the request that City shall be a loss-payee under
the policy.
10.
Certificates and Endorsements.
10.1
Within ten (10) days after the execution of this Agreement, CMAR must provide City with all
certificates and endorsements evidencing that all insurance requirements have been met;
10.2
Within ten (10) days after execution of each subcontract (but in all events prior to such
Subcontractor or Supplier commencing Services), CMAR must provide City with certificates and
endorsements from each of its Subcontractors and Suppliers, in all cases evidencing compliance by
CMAR, and each Subcontractor and Supplier, with the requirements of this Exhibit. CMAR must also
submit letters from the respective carriers (including, but not limited to, the Errors and Omissions
insurance carriers) that there are no known or pending claims or incidents which have resulted in the
establishment of a reserve or otherwise have reduced the amount of coverage potentially available to
City under the policy and that available coverage has not been reduced because of revised limits or
payments made. In the event such representations cannot be given, CMAR, its Subcontractors and
Suppliers must furnish the particulars thereof to City.
10.3
If any of the foregoing insurance coverage is required to remain in force after Final Payment,
CMAR must submit an additional certificate evidencing continuation of such coverage with the
Application for Final Payment.
11.
Reduction in Coverage. CMAR, each of its Subcontractors and Suppliers must promptly
inform City of any reduction of coverage resulting from revised limits, claims paid, or both.
City shall have the right to require CMAR or the applicable Subcontractor or Supplier to obtain
supplemental or replacement coverage to offset such reduced coverage, at the sole cost or
expense of CMAR or the applicable Subcontractor or Supplier.
12.
Suppliers and Materialmen Coverages.
12.1
CMAR will endeavor to cause all suppliers and materialmen to deliver any equipment,
machinery or other goods FOB Site.
12.2
With respect to any equipment, machinery or other goods for which City or CMAR has paid
a deposit, CMAR will cause the respective suppliers and materialmen to maintain personal property
insurance in an amount equal to the value of such equipment, machinery or other goods (but in no
event less than the amount of the applicable deposit) during fabrication, storage and transit, naming
City and CMAR as loss payee as their interests appear.
13.
Condition Precedent to Starting Work.
13.1
Prior to, and as a condition of its right to begin performing any Work on the Site, CMAR and
each Subcontractor and Supplier must deliver to City certificates of insurance representing that the
required insurance is in force, together with the additional insured endorsements and waivers of
subrogation required above, and such other proof satisfactory to City that the required insurance is in
place; together with the original of each bond required under this Agreement. CMAR and each
Subcontractor and Supplier hereby authorize City to communicate directly with the respective insurance
agents, brokers and/or carriers and sureties to verify their insurance and bond coverage;
13.2
City shall be under no obligation or duty to make any such inquiry and City shall be entitled
to rely on any proofs of insurance tendered by CMAR and its Subcontractors and Suppliers. City's
acceptance of any proof of insurance and bonds offered by CMAR or any Subcontractor or Supplier
will not be deemed a waiver of the obligations of CMAR and Subcontractors and Suppliers to furnish
the insurance and bonds required by this Exhibit.
14.
Additional Proofs of Insurance. CMAR must, within ten (10) days after request, provide
City with certified copies of all policies and endorsements obtained in compliance with this
Agreement.
15.
Indemnity. The fact that CMAR and its Subcontractors and Suppliers are required by this
Agreement to purchase and maintain insurance in no way limits or restricts any other
obligations or duties CMAR and its Subcontractors and Suppliers may have to indemnify,
defend or hold harmless City and the other Additional Insureds from and against any and all
Demands, Liabilities, Losses or Expenses of whatever kind or nature.
16.
Interpretation. In the event of any inconsistency between the provisions of this Exhibit and
those of the other provisions of the Agreement, the terms of this Exhibit will govern.
MGC's Insurance Paperwork
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
REVISION NUMBER:
CERTIFICATE NUMBER:
COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
$
$
$
$
PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS
AUTOS ONLY
NON-OWNED
SCHEDULED
OWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-
STATUTE
PER
LIMITS
(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
POLICY EFF
POLICY NUMBER
TYPE OF INSURANCE
LTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB
$
EACH OCCURRENCE
$
AGGREGATE
$
OCCUR
CLAIMS-MADE
DED
RETENTION $
$
PRODUCTS - COMP/OP AGG
$
GENERAL AGGREGATE
$
PERSONAL & ADV INJURY
$
MED EXP (Any one person)
$
EACH OCCURRENCE
DAMAGE TO RENTED
$
PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE
OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY
PRO-
JECT
LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
4/28/2022
Lovitt & Touché A Marsh and McLennan Agency, LLC
1050 W Washington Street, Suite 233
Tempe AZ 85281
Kelly J. Batka, CIC
602-956-2250
602-956-2258
kbatka@lovitt-touche.com
Zurich American Insurance Company
16535
MGCCO-1
Berkley Assurance Company
39462
MGC Contractors, Inc.
P.O. Box 61748
Phoenix AZ 85082
Travelers Property Casualty Co of Amer
25674
1163645688
A
X
1,000,000
X
100,000
X
$0 Deductible
10,000
1,000,000
2,000,000
X
X
Y
Y
GLO485845605
5/1/2022
5/1/2023
2,000,000
A
1,000,000
X
X
X
Y
Y
BAP485845705
5/1/2022
5/1/2023
C
X
X
9,000,000
Y
CUP3T00537500NF
5/1/2022
Y
5/1/2023
9,000,000
X
10,000
A
X
Y
WC485845505
5/1/2022
5/1/2023
1,000,000
1,000,000
1,000,000
B
Professional Liability
Pollution Liability
Prof Retro Date: 04/01/07
Y
Y
Y
Y
PCAB50181060522
5/1/2022
5/1/2023
Aggregate
Each
Deductible
$4,000,000
$2,000,000
$25,000
Excess Liability is follow form
Pollution Liability: Occurrence form with the exception of Biological Contamination Liability; Retro Date: 10/01/2010. Policy provides coverage for
Transportation beyond the boundaries of the job site.
The above-indicated Additional Insured and Waiver of Subrogation (WOS) are provided with respects to General Liability, Automobile Liability, Workers’
Compensation (WOS only) and Pollution Liability when required in a written and executed contract. Such coverage afforded by these policies for the benefit of
the additional insured(s) is primary and any other coverage maintained by such additional insured(s) shall be non-contributory when required in a written and
See Attached...
City of Glendale
5850 West Glendale Avenue
Suite 315
Glendale AZ 85301
ACORD 101 (2008/01)
The ACORD name and logo are registered marks of ACORD
© 2008 ACORD CORPORATION. All rights reserved.
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM,
FORM NUMBER:
FORM TITLE:
ADDITIONAL REMARKS
ADDITIONAL REMARKS SCHEDULE
Page of
AGENCY CUSTOMER ID:
LOC #:
AGENCY
CARRIER
NAIC CODE
POLICY NUMBER
NAMED INSURED
EFFECTIVE DATE:
MGCCO-1
1
1
Lovitt & Touché A Marsh and McLennan Agency, LLC
MGC Contractors, Inc.
P.O. Box 61748
Phoenix AZ 85082
25
CERTIFICATE OF LIABILITY INSURANCE
executed contract.
Supporting endorsements attached include: UGL2162A, CG2404, CG2503, CA2048, UCA424, WC000313
Worker's Compensation coverage applies in Arizona and Texas
Project: Arrowhead Hospital and Sierra Verde Park Wells
Project No. 212228
MGC Project No. 22435
Additional Insured – Automatic – Owners, Lessees Or
Contractors
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Policy No.
Effective Date:
This endorsement modifies insurance provided under the:
Commercial General Liability Coverage Part
A. Section II – Who Is An Insured is amended to include as an additional insured any person or organization whom you
are required to add as an additional insured under a written contract or written agreement executed by you, but only
with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" and subject to the
following:
1. If such written contract or written agreement specifically requires that you provide that the person or organization
be named as an additional insured under one or both of the following endorsements:
a. The Insurance Services Office (ISO) ISO CG 20 10 (10/01 edition); or
b. The ISO CG 20 37 (10/01 edition),
such person or organization is then an additional insured with respect to such endorsement(s), but only to the extent
that "bodily injury", "property damage" or "personal and advertising injury" arises out of:
(1) Your ongoing operations, with respect to Paragraph 1.a. above; or
(2) "Your work", with respect to Paragraph 1.b. above,
which is the subject of the written contract or written agreement.
However, solely with respect to this Paragraph 1., insurance afforded to such additional insured:
(a) Only applies if the "bodily injury", "property damage" or "personal and advertising injury" offense occurs
during the policy period and subsequent to your execution of the written contract or written agreement;
and
(b) Does not apply to "bodily injury" or "property damage" caused by "your work" and included within the
"products-completed operations hazard" unless the written contract or written agreement specifically
requires that you provide such coverage to such additional insured.
2. If such written contract or written agreement specifically requires that you provide that the person or organization
be named as an additional insured under one or both of the following endorsements:
a. The Insurance Services Office (ISO) ISO CG 20 10 (07/04 edition); or
b. The ISO CG 20 37 (07/04 edition),
such person or organization is then an additional insured with respect to such endorsement(s), but only to the extent
that "bodily injury", "property damage" or "personal and advertising injury" is caused, in whole or in part, by:
(1) Your acts or omissions; or
(2) The acts or omissions of those acting on your behalf,
U-GL-2162-A CW (02/19)
Page 1 of 4
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
GLO485845605
05-01-2022
in the performance of:
(a) Your ongoing operations, with respect to Paragraph 2.a. above; or
(b) "Your work" and included in the "products-completed operations hazard", with respect to Paragraph
2.b. above,
which is the subject of the written contract or written agreement.
However, solely with respect to this Paragraph 2., insurance afforded to such additional insured:
(i) Only applies if the "bodily injury", "property damage" or "personal and advertising injury" offense
occurs during the policy period and subsequent to your execution of the written contract or written
agreement; and
(ii) Does not apply to "bodily injury" or "property damage" caused by "your work" and included within
the "products-completed operations hazard" unless the written contract or written agreement
specifically requires that you provide such coverage to such additional insured.
3. If neither Paragraph 1. nor Paragraph 2. above apply and such written contract or written agreement requires that
you provide that the person or organization be named as an additional insured:
a. Under the ISO CG 20 10 (04/13 edition, any subsequent edition or if no edition date is specified); or
b. With respect to ongoing operations (if no form is specified),
such person or organization is then an additional insured only to the extent that "bodily injury", "property damage"
or "personal and advertising injury" is caused, in whole or in part by:
(1) Your acts or omissions; or
(2) The acts or omissions of those acting on your behalf,
in the performance of your ongoing operations, which is the subject of the written contract or written agreement.
However, solely with respect to this Paragraph 3., insurance afforded to such additional insured:
(a) Only applies to the extent permitted by law;
(b) Will not be broader than that which you are required by the written contract or written agreement to
provide for such additional insured; and
(c) Only applies if the "bodily injury", "property damage" or "personal and advertising injury" offense occurs
during the policy period and subsequent to your execution of the written contract or written agreement.
4. If neither Paragraph 1. nor Paragraph 2. above apply and such written contract or written agreement requires that
you provide that the person or organization be named as an additional insured:
a. Under the ISO CG 20 37 (04/13 edition, any subsequent edition or if no edition date is specified); or
b. With respect to the "products-completed operations hazard" (if no form is specified),
such person or organization is then an additional insured only to the extent that "bodily injury" or "property damage"
is caused, in whole or in part by "your work" and included in the "products-completed operations hazard", which is
the subject of the written contract or written agreement.
However, solely with respect to this Paragraph 4., insurance afforded to such additional insured:
(1) Only applies to the extent permitted by law;
(2) Will not be broader than that which you are required by the written contract or written agreement to provide
for such additional insured;
(3) Only applies if the "bodily injury" or "property damage" occurs during the policy period and subsequent to
your execution of the written contract or written agreement; and
(4) Does not apply to "bodily injury" or "property damage" caused by "your work" and included within the
"products-completed operations hazard" unless the written contract or written agreement specifically
requires that you provide such coverage to such additional insured.
U-GL-2162-A CW (02/19)
Page 2 of 4
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
B. Solely with respect to the insurance afforded to any additional insured referenced in Section A. of this endorsement,
the following additional exclusion applies:
This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of
the rendering of, or failure to render, any professional architectural, engineering or surveying services including:
1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field
orders, change orders or drawings and specifications; or
2. Supervisory, inspection, architectural or engineering activities.
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision,
hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury"
or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of or
the failure to render any professional architectural, engineering or surveying services.
C. Solely with respect to the coverage provided by this endorsement, the following is added to Paragraph 2. Duties In The
Event Of Occurrence, Offense, Claim Or Suit of Section IV – Commercial General Liability Conditions:
The additional insured must see to it that:
(1) We are notified as soon as practicable of an "occurrence" or offense that may result in a claim;
(2) We receive written notice of a claim or "suit" as soon as practicable; and
(3) A request for defense and indemnity of the claim or "suit" will promptly be brought against any policy issued by
another insurer under which the additional insured may be an insured in any capacity. This provision does not
apply to insurance on which the additional insured is a Named Insured if the written contract or written
agreement requires that this coverage be primary and non-contributory.
D. Solely with respect to the coverage provided by this endorsement:
1. The following is added to the Other Insurance Condition of Section IV – Commercial General Liability
Conditions:
Primary and Noncontributory insurance
This insurance is primary to and will not seek contribution from any other insurance available to an additional
insured provided that:
a. The additional insured is a Named Insured under such other insurance; and
b. You are required by written contract or written agreement that this insurance be primary and not seek
contribution from any other insurance available to the additional insured.
2. The following paragraph is added to Paragraph 4.b. of the Other Insurance Condition under Section IV –
Commercial General Liability Conditions:
This insurance is excess over:
Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an additional
insured, in which the additional insured on our policy is also covered as an additional insured on another policy
providing coverage for the same "occurrence", offense, claim or "suit". This provision does not apply to any
policy in which the additional insured is a Named Insured on such other policy and where our policy is required
by a written contract or written agreement to provide coverage to the additional insured on a primary and non-
contributory basis.
E. This endorsement does not apply to an additional insured which has been added to this Coverage Part by an
endorsement showing the additional insured in a Schedule of additional insureds, and which endorsement applies
specifically to that identified additional insured.
F. Solely with respect to the insurance afforded to an additional insured under Paragraph A.3. or Paragraph A.4. of this
endorsement, the following is added to Section III – Limits Of Insurance:
Additional Insured – Automatic – Owners, Lessees Or Contractors Limit
The most we will pay on behalf of the additional insured is the amount of insurance:
U-GL-2162-A CW (02/19)
Page 3 of 4
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
1. Required by the written contract or written agreement referenced in Section A. of this endorsement; or
2. Available under the applicable Limits of Insurance shown in the Declarations,
whichever is less.
This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations.
All other terms, conditions, provisions and exclusions of this policy remain the same.
U-GL-2162-A CW (02/19)
Page 4 of 4
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
POLICY NUMBER:
COMMERCIAL GENERAL LIABILITY
CG 25 03 05 09
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CG 25 03 05 09
Insurance Services Office, Inc., 2008
Page 1 of 2
DESIGNATED CONSTRUCTION PROJECT(S)
GENERAL AGGREGATE LIMIT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Designated Construction Project(s):
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. For all sums which the insured becomes legally
obligated to pay as damages caused by
"occurrences" under Section I ---- Coverage A, and
for all medical expenses caused by accidents
under Section I ---- Coverage C, which can be
attributed only to ongoing operations at a single
designated construction project shown in the
Schedule above:
1. A separate Designated Construction Project
General Aggregate Limit applies to each
designated construction project, and that limit
is equal to the amount of the General
Aggregate Limit shown in the Declarations.
2. The Designated Construction Project General
Aggregate Limit is the most we will pay for the
sum of all damages under Coverage A, except
damages because of "bodily injury" or
"property damage" included in the "products-
completed operations hazard", and for
medical expenses under Coverage C
regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
3. Any payments made under Coverage A for
damages or under Coverage C for medical
expenses shall reduce the Designated
Construction Project General Aggregate Limit
for that designated construction project. Such
payments shall not reduce the General
Aggregate Limit shown in the Declarations nor
shall they reduce any other Designated
Construction Project General Aggregate Limit
for any other designated construction project
shown in the Schedule above.
4. The limits shown in the Declarations for Each
Occurrence, Damage To Premises Rented To
You and Medical Expense continue to apply.
However, instead of being subject to the
General Aggregate Limit shown in the
Declarations, such limits will be subject to the
applicable Designated Construction Project
General Aggregate Limit.
A GENERAL AGGREGATE LIMIT APPLIES TO EACH CONSTRUCTION PROJECT WHERE
THE NAMED INSURED IS PERFORMING OPERATIONS, HOWEVER, A GENERAL
AGGREGATE LIMIT DOES NOT APPLY TO ANY CONSTRUCTION PROJECT WHERE THE
NAMED INSURED IS PERFORMING OPERATIONS THAT ARE INSURED UNDER A WRAP
UP OR ANY OTHER CONSOLIDATED OR SIMILAR INSURANCE PROGRAM
GLO485845605
B. For all sums which the insured becomes legally
obligated to pay as damages caused by
"occurrences" under Section I ---- Coverage A, and
for all medical expenses caused by accidents
under Section I ---- Coverage C, which cannot be
attributed only to ongoing operations at a single
designated construction project shown in the
Schedule above:
1. Any payments made under Coverage A for
damages or under Coverage C for medical
expenses shall reduce the amount available
under the General Aggregate Limit or the
Products-completed Operations Aggregate
Limit, whichever is applicable; and
2. Such payments shall not reduce any
Designated Construction Project General
Aggregate Limit.
C. When coverage for liability arising out of the
"products-completed operations hazard" is
provided, any payments for damages because of
"bodily injury" or "property damage" included in
the "products-completed operations hazard" will
reduce the Products-completed Operations
Aggregate Limit, and not reduce the General
Aggregate Limit nor the Designated Construction
Project General Aggregate Limit.
D. If the applicable designated construction project
has been abandoned, delayed, or abandoned
and then restarted, or if the authorized
contracting parties deviate from plans, blueprints,
designs, specifications or timetables, the project
will still be deemed to be the same construction
project.
E. The provisions of Section III ---- Limits Of
Insurance not otherwise modified by this
endorsement shall continue to apply as
stipulated.
POLICY NUMBER:
COMMERCIAL GENERAL LIABILITY
CG 24 04 05 09
CG 24 04 05 09
Insurance Services Office, Inc., 2008
Page 1 of 1
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY
AGAINST OTHERS TO US
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Name Of Person Or Organization:
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
The following is added to Paragraph 8. Transfer Of
Rights Of Recovery Against Others To Us of Section
IV ---- Conditions:
We waive any right of recovery we may have against
the person or organization shown in the Schedule
above because of payments we make for injury or
damage arising out of your ongoing operations or
"your work" done under a contract with that person
or organization and included in the "products-
completed operations hazard". This waiver applies
only to the person or organization shown in the
Schedule above.
ANY PERSON OR ORGANIZATION THAT REQUIRES YOU TO WAIVE YOUR RIGHTS OF
RECOVERY, IN A WRITTEN CONTRACT OR AGREEMENT WITH THE NAMED INSURED
THAT IS EXECUTED PRIOR TO THE ACCIDENT OR LOSS.
GLO485845605
CA 20 48 10 13
© Insurance Services Office, Inc., 2011
Page 1 of 1
POLICY NUMBER:
COMMERCIAL AUTO
CA 20 48 10 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED INSURED FOR
COVERED AUTOS LIABILITY COVERAGE
This endorsement modifies insurance provided under the following:
AUTO DEALERS COVERAGE FORM
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless
modified by this endorsement.
This endorsement identifies person(s) or organization(s) who are “insureds” for Covered Autos Liability Coverage
under the Who Is An Insured provision of the Coverage Form. This endorsement does not alter coverage
provided in the Coverage Form.
This endorsement changes the policy effective on the inception date of the policy unless another date is indicated
below.
Named Insured: MGC CONTRACTORS, INC.
Endorsement Effective Date:
SCHEDULE
Name Of Person(s) Or Organization(s):
ONLY THOSE PERSONS OR ORGANIZATIONS WHERE REQUIRED BY WRITTEN CONTRACT
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Each person or organization shown in the Schedule is
an “insured” for Covered Autos Liability Coverage, but
only to the extent that person or organization qualifies
as an “insured” under the Who Is An Insured provision
contained in Paragraph A.1. of Section II – Covered
Autos Liability Coverage in the Business Auto and
Motor Carrier Coverage Forms and Paragraph D.2. of
Section I – Covered Autos Coverages of the Auto
Dealers Coverage Form.
BAP485845705
05-01-2022
Policy No.
Eff. Date of Pol.
Exp. Date of Pol.
Eff. Date of End.
Producer No.
Add’l. Prem
Return Prem.
09192000
INCL
U-CA-424-F CW (04-14)
Page 1 of 6
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
Coverage Extension Endorsement
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the:
Business Auto Coverage Form
Motor Carrier Coverage Form
A.
Amended Who Is An Insured
1.
The following is added to the Who Is An Insured Provision in Section II – Covered Autos Liability Coverage:
The following are also "insureds":
a.
Any "employee" of yours is an "insured" while using a covered "auto" you don't own, hire or borrow for acts
performed within the scope of employment by you. Any “employee” of yours is also an “insured” while
operating an “auto” hired or rented under a contract or agreement in an “employee’s” name, with your
permission, while performing duties related to the conduct of your business.
b.
Anyone volunteering services to you is an "insured" while using a covered "auto" you don’t own, hire or
borrow to transport your clients or other persons in activities necessary to your business.
c.
Anyone else who furnishes an "auto" referenced in Paragraphs A.1.a. and A.1.b. in this endorsement.
d.
Where and to the extent permitted by law, any person(s) or organization(s) where required by written contract
or written agreement with you executed prior to any "accident", including those person(s) or organization(s)
directing your work pursuant to such written contract or written agreement with you, provided the "accident"
arises out of operations governed by such contract or agreement and only up to the limits required in the
written contract or written agreement, or the Limits of Insurance shown in the Declarations, whichever is less.
2.
The following is added to the Other Insurance Condition in the Business Auto Coverage Form and the Other
Insurance – Primary and Excess Insurance Provisions Condition in the Motor Carrier Coverage Form:
Coverage for any person(s) or organization(s), where required by written contract or written agreement with you
executed prior to any "accident", will apply on a primary and non-contributory basis and any insurance maintained
by the additional "insured" will apply on an excess basis. However, in no event will this coverage extend beyond
the terms and conditions of the Coverage Form.
B.
Amendment – Supplementary Payments
Paragraphs a.(2) and a.(4) of the Coverage Extensions Provision in Section II – Covered Autos Liability
Coverage are replaced by the following:
(2) Up to $5,000 for the cost of bail bonds (including bonds for related traffic law violations) required because of an
"accident" we cover. We do not have to furnish these bonds.
(4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a
day because of time off from work.
BAP485845705
05-01-2022
05-01-2023
U-CA-424-F CW (04-14)
Page 2 of 6
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
C.
Fellow Employee Coverage
The Fellow Employee Exclusion contained in Section II – Covered Autos Liability Coverage does not apply.
D.
Driver Safety Program Liability and Physical Damage Coverage
1.
The following is added to the Racing Exclusion in Section II – Covered Autos Liability Coverage:
This exclusion does not apply to covered "autos" participating in a driver safety program event, such as, but not
limited to, auto or truck rodeos and other auto or truck agility demonstrations.
2.
The following is added to Paragraph 2. in the Exclusions of Section III – Physical Damage Coverage of the
Business Auto Coverage Form and Paragraph 2.b. in the Exclusions of Section IV – Physical Damage
Coverage of the Motor Carrier Coverage Form:
This exclusion does not apply to covered "autos" participating in a driver safety program event, such as, but not
limited to, auto or truck rodeos and other auto or truck agility demonstrations.
E.
Lease or Loan Gap Coverage
The following is added to the Coverage Provision of the Physical Damage Coverage Section:
Lease Or Loan Gap Coverage
In the event of a total "loss" to a covered "auto", we will pay any unpaid amount due on the lease or loan for a covered
"auto", less:
a.
Any amount paid under the Physical Damage Coverage Section of the Coverage Form; and
b.
Any:
(1) Overdue lease or loan payments at the time of the "loss";
(2) Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage;
(3) Security deposits not returned by the lessor;
(4) Costs for extended warranties, credit life insurance, health, accident or disability insurance purchased with the
loan or lease; and
(5) Carry-over balances from previous leases or loans.
F.
Towing and Labor
Paragraph A.2. of the Physical Damage Coverage Section is replaced by the following:
We will pay up to $75 for towing and labor costs incurred each time a covered "auto" of the private passenger type is
disabled. However, the labor must be performed at the place of disablement.
G. Extended Glass Coverage
The following is added to Paragraph A.3.a. of the Physical Damage Coverage Section:
If glass must be replaced, the deductible shown in the Declarations will apply. However, if glass can be repaired and
is actually repaired rather than replaced, the deductible will be waived. You have the option of having the glass
repaired rather than replaced.
H.
Hired Auto Physical Damage – Increased Loss of Use Expenses
The Coverage Extension for Loss Of Use Expenses in the Physical Damage Coverage Section is replaced by the
following:
Loss Of Use Expenses
For Hired Auto Physical Damage, we will pay expenses for which an "insured" becomes legally responsible to pay for
loss of use of a vehicle rented or hired without a driver under a written rental contract or written rental agreement. We
will pay for loss of use expenses if caused by:
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(1) Other than collision only if the Declarations indicate that Comprehensive Coverage is provided for any covered
"auto";
(2) Specified Causes Of Loss only if the Declarations indicate that Specified Causes Of Loss Coverage is provided
for any covered "auto"; or
(3) Collision only if the Declarations indicate that Collision Coverage is provided for any covered "auto".
However, the most we will pay for any expenses for loss of use is $100 per day, to a maximum of $3000.
I.
Personal Effects Coverage
The following is added to the Coverage Provision of the Physical Damage Coverage Section:
Personal Effects Coverage
a.
We will pay up to $750 for "loss" to personal effects which are:
(1) Personal property owned by an "insured"; and
(2) In or on a covered "auto".
b.
Subject to Paragraph a. above, the amount to be paid for "loss" to personal effects will be based on the lesser of:
(1) The reasonable cost to replace; or
(2) The actual cash value.
c.
The coverage provided in Paragraphs a. and b. above, only applies in the event of a total theft of a covered
"auto". No deductible applies to this coverage. However, we will not pay for "loss" to personal effects of any of
the following:
(1) Accounts, bills, currency, deeds, evidence of debt, money, notes, securities, or commercial paper or other
documents of value.
(2) Bullion, gold, silver, platinum, or other precious alloys or metals; furs or fur garments; jewelry, watches,
precious or semi-precious stones.
(3) Paintings, statuary and other works of art.
(4) Contraband or property in the course of illegal transportation or trade.
(5) Tapes, records, discs or other similar devices used with audio, visual or data electronic equipment.
Any coverage provided by this Provision is excess over any other insurance coverage available for the same "loss".
J.
Tapes, Records and Discs Coverage
1.
The Exclusion in Paragraph B.4.a. of Section III – Physical Damage Coverage in the Business Auto Coverage
Form and the Exclusion in Paragraph B.2.c. of Section IV – Physical Damage Coverage in the Motor Carrier
Coverage Form does not apply.
2.
The following is added to Paragraph 1.a. Comprehensive Coverage under the Coverage Provision of the
Physical Damage Coverage Section:
We will pay for "loss" to tapes, records, discs or other similar devices used with audio, visual or data electronic
equipment. We will pay only if the tapes, records, discs or other similar audio, visual or data electronic devices:
(a) Are the property of an "insured"; and
(b) Are in a covered "auto" at the time of "loss".
The most we will pay for such "loss" to tapes, records, discs or other similar devices is $500. The Physical
Damage Coverage Deductible Provision does not apply to such "loss".
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K.
Airbag Coverage
The Exclusion in Paragraph B.3.a. of Section III – Physical Damage Coverage in the Business Auto Coverage Form
and the Exclusion in Paragraph B.4.a. of Section IV – Physical Damage Coverage in the Motor Carrier Coverage
Form does not apply to the accidental discharge of an airbag.
L.
Two or More Deductibles
The following is added to the Deductible Provision of the Physical Damage Coverage Section:
If an accident is covered both by this policy or Coverage Form and by another policy or Coverage Form issued to you
by us, the following applies for each covered "auto" on a per vehicle basis:
1.
If the deductible on this policy or Coverage Form is the smaller (or smallest) deductible, it will be waived; or
2.
If the deductible on this policy or Coverage Form is not the smaller (or smallest) deductible, it will be reduced by
the amount of the smaller (or smallest) deductible.
M. Physical Damage – Comprehensive Coverage – Deductible
The following is added to the Deductible Provision of the Physical Damage Coverage Section:
Regardless of the number of covered "autos" damaged or stolen, the maximum deductible that will be applied to
Comprehensive Coverage for all "loss" from any one cause is $5,000 or the deductible shown in the Declarations,
whichever is greater.
N.
Temporary Substitute Autos – Physical Damage
1.
The following is added to Section I – Covered Autos:
Temporary Substitute Autos – Physical Damage
If Physical Damage Coverage is provided by this Coverage Form on your owned covered "autos", the following
types of vehicles are also covered "autos" for Physical Damage Coverage:
Any "auto" you do not own when used with the permission of its owner as a temporary substitute for a covered
"auto" you do own but is out of service because of its:
1.
Breakdown;
2.
Repair;
3.
Servicing;
4.
"Loss"; or
5.
Destruction.
2.
The following is added to the Paragraph A. Coverage Provision of the Physical Damage Coverage Section:
Temporary Substitute Autos – Physical Damage
We will pay the owner for "loss" to the temporary substitute "auto" unless the "loss" results from fraudulent acts or
omissions on your part. If we make any payment to the owner, we will obtain the owner's rights against any other
party.
The deductible for the temporary substitute "auto" will be the same as the deductible for the covered "auto" it
replaces.
O. Amended Duties In The Event Of Accident, Claim, Suit Or Loss
Paragraph a. of the Duties In The Event Of Accident, Claim, Suit Or Loss Condition is replaced by the following:
a.
In the event of "accident", claim, "suit" or "loss", you must give us or our authorized representative prompt notice
of the "accident", claim, "suit" or "loss". However, these duties only apply when the "accident", claim, "suit" or
"loss" is known to you (if you are an individual), a partner (if you are a partnership), a member (if you are a limited
liability company) or an executive officer or insurance manager (if you are a corporation). The failure of any
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agent, servant or employee of the "insured" to notify us of any "accident", claim, "suit" or "loss" shall not invalidate
the insurance afforded by this policy.
Include, as soon as practicable:
(1) How, when and where the "accident" or "loss" occurred and if a claim is made or "suit" is brought, written
notice of the claim or "suit" including, but not limited to, the date and details of such claim or "suit";
(2) The "insured’s" name and address; and
(3) To the extent possible, the names and addresses of any injured persons and witnesses.
If you report an "accident", claim, "suit" or "loss" to another insurer when you should have reported to us, your
failure to report to us will not be seen as a violation of these amended duties provided you give us notice as soon
as practicable after the fact of the delay becomes known to you.
P.
Waiver of Transfer Of Rights Of Recovery Against Others To Us
The following is added to the Transfer Of Rights Of Recovery Against Others To Us Condition:
This Condition does not apply to the extent required of you by a written contract, executed prior to any "accident" or
"loss", provided that the "accident" or "loss" arises out of operations contemplated by such contract. This waiver only
applies to the person or organization designated in the contract.
Q. Employee Hired Autos – Physical Damage
Paragraph b. of the Other Insurance Condition in the Business Auto Coverage Form and Paragraph f. of the Other
Insurance – Primary and Excess Insurance Provisions Condition in the Motor Carrier Coverage Form are replaced
by the following:
For Hired Auto Physical Damage Coverage, the following are deemed to be covered "autos" you own:
(1) Any covered "auto" you lease, hire, rent or borrow; and
(2) Any covered "auto" hired or rented under a written contract or written agreement entered into by an "employee" or
elected or appointed official with your permission while being operated within the course and scope of that
"employee's" employment by you or that elected or appointed official’s duties as respect their obligations to you.
However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto".
R.
Unintentional Failure to Disclose Hazards
The following is added to the Concealment, Misrepresentation Or Fraud Condition:
However, we will not deny coverage under this Coverage Form if you unintentionally:
(1) Fail to disclose any hazards existing at the inception date of this Coverage Form; or
(2) Make an error, omission, improper description of "autos" or other misstatement of information.
You must notify us as soon as possible after the discovery of any hazards or any other information that was not
provided to us prior to the acceptance of this policy.
S.
Hired Auto – World Wide Coverage
Paragraph 7a.(5) of the Policy Period, Coverage Territory Condition is replaced by the following:
(5) Anywhere in the world if a covered "auto" is leased, hired, rented or borrowed for a period of 60 days or less,
T.
Bodily Injury Redefined
The definition of "bodily injury" in the Definitions Section is replaced by the following:
"Bodily injury" means bodily injury, sickness or disease, sustained by a person including death or mental anguish,
resulting from any of these at any time. Mental anguish means any type of mental or emotional illness or disease.
EXHIBIT F
FORMS OF PAYMENT AND PERFORMANCE BONDS
(See Attached)
PAYMENT BOND
A.R.S. § 34-608
Penal Sum: $________________
KNOW ALL MEN BY THESE PRESENTS:
That _________________________________________________________ as Principal, hereinafter called
Contractor, and ____________________________________________________________, as Surety,
hereinafter called Surety, jointly and severally, bind themselves to the City of Glendale, a municipal corporation
of the State of Arizona ("Obligee") and its assigns, solely for the protections of claimants supplying labor or
materials to CMAR or to CMAR’s Subcontractors in the prosecution of construction and not for the protection
of persons providing any design services, preconstruction or other non-construction services as provided in
A.R.S. § 34-608(A)(2).
WHEREAS Principal has by written agreement dated ___________________entered into that certain "CMAR
Agreement" ("Contract") with Obligee (referred to therein as "City") for the design and construction of that
certain ___________________________, as provided therein. In accordance with A.R.S. § 34-608(A)(2)(C),
the Obligee estimates the price of the Construction Services the Obligee believes is likely to be furnished as of
the date hereof $_______________ (the "Penal Sum").
NOW, THEREFORE, the condition of this obligation is that if the Principal promptly pays all monies due to
all persons supplying labor or materials to the Principal or the Principal's Subcontractors in the prosecution of
the construction provided for in the Contract, this obligation is void. Otherwise it remains in full force and
effect. Provided, however, that this bond is executed pursuant to Title 34, Chapter 6, Arizona Revised Statutes,
and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations
of Title 34, Chapter 6, Arizona Revised Statutes, to the same extent as if they were copied at length in this
Agreement. The Surety hereby consents in advance to, and waives notice of any change directive or change
order, extension of time or any other material alteration or modification of the Contract, or of the Work to be
performed thereunder. The prevailing party in a suit on this bond shall recover as a part of the judgment
reasonable attorney fees that may be fixed by the court.
Witness our hands this __________ day of __________________, 200____.
PRINCIPAL
SEAL
SURETY
SEAL
By:
By:
(Attorney-in-Fact)
Title:
Agency of Record
Agency Address
Arizona Resident Agent Countersignature
Bond Number ____________________
PERFORMANCE BOND
A.R.S. § 34-608
Penal Sum: $_________________
KNOW ALL MEN BY THESE PRESENTS:
That ____________________________________________________________ as Principal, hereinafter called
Contractor, and __________________________________________, as Surety, hereinafter called Surety, jointly and
severally bind themselves to the City of Glendale, a municipal corporation of the State of Arizona ("Obligee") and its
assigns solely for the protection of Obligee as provided in A.R.S.§ 34-608(A)(1).
WHEREAS Principal has entered into that certain "CMAR Agreement" ("Contract") with Obligee (referred to therein
as
"City"),
dated
________________,
for
the
design
and
construction
of
that
certain
_____________________________, as described therein, which Contract, together with all Change Orders and
amendments thereto, is by reference made a part hereof, providing for a cumulative amount to be paid to Contractor
for all design services, construction and other work (collectively, "Work" as described in the Contract) not to exceed
guaranteed maximum price of $_____________ dollars. In accordance with A.R.S. § 34-608(A)(1)(A), the Obligee
estimates the price of the Construction Services the Obligee believes is likely to be furnished as of the date hereof
$_______________ (the "Penal Sum").
NOW, THEREFORE, the condition of this obligation is that, if the Principal faithfully performs and fulfills all of the
undertakings, covenants, terms, conditions and agreements of the Contract during the original term of the Contract and
any change, extension, alteration or modification of the Contract, with or without notice to the Surety, and during the
life of any guaranty required under the Contract, and also performs and fulfills all of the undertakings, covenants, terms,
conditions and agreements of all duly authorized changes, extensions, alterations or modifications of the Contract that
may hereafter be made, notice of which changes, extensions, alterations or modifications to the Surety being hereby
waived, the above obligation is void. Otherwise it remains in full force and effect. Provided, however, that this bond
is executed pursuant to Title 34, Chapter 6, Arizona Revised Statutes, and all liabilities on this bond shall be determined
in accordance with Title 34, Chapter 6, Arizona Revised Statutes, to the extent as if it were copied at length in this
Agreement. The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees
that may be fixed by the court.
The performance under this bond is limited to the construction to be performed under the Contract and does not
include any design services, preconstruction services, finance services, maintenance services, operations services or any
other related services included in the Contract.
Signed and sealed this __________ day of _____________________, 200____.
PRINCIPAL
SEAL
SURETY
SEAL
By:
By:
(Attorney-in-Fact)
Title:
Agency of Record
Agency Address
Arizona Resident Agent Countersignature
Bond Number ____________________
EXHIBIT G
DISPUTE RESOLUTION PROCEDURES
1.
Disputes.
1.1
Each Dispute arising out of or related to this Agreement (including Disputes
regarding any alleged breaches of this Agreement) shall be initiated and decided under
the provisions of this Exhibit.
1.2
CMAR and City shall each designate in writing to the other party, from time to time,
a member of senior management who shall be authorized to attempt to expeditiously
resolve any Dispute relating to the subject matter of this Agreement in an equitable
manner.
1.3
A party shall initiate a Dispute by delivery of written notice to the members of
management designated by the respective parties under Section 1.2 of this Exhibit.
1.4
The parties must:
(A)
Attempt to resolve all Disputes promptly, equitably and in a good faith
manner; and
(B)
Provide each other with reasonable access during normal business hours to
any and all non-privileged records, information and data pertaining to any
such Dispute.
1.5
With respect to matters concerning modification of the GMP or any schedule, CMAR
must first follow the provisions of any Claim procedure established by the Design-
Build Agreement before seeking relief under these Procedures.
2.
Emergency Arbitration.
2.1
If the parties are unable to accomplish resolution of a Dispute, the expedited
resolution of which either party considers necessary to prevent or mitigate a material
delay to the critical path of the Services (a "Time Sensitive Dispute") within two days
after the Time Sensitive Dispute has been initiated by a party, either party may
thereafter seek emergency relief before an emergency arbitrator (the "Emergency
Arbitrator") appointed as follows:
(A)
The parties will exercise best efforts to pre-select an Emergency Arbitrator
within 20 days after entering into this Agreement;
(B)
If the Emergency Arbitrator has not been selected at the time a party delivers
Notice of a Time Sensitive Dispute, the parties will each select a
representative within one day after the Notice is delivered and the two
representatives will then select the Emergency Arbitrator by the third day
following delivery of the Notice.
(C)
The Emergency Arbitrator shall be an attorney with at least ten (10) years’
experience with commercial construction legal matters in Maricopa County,
Arizona, be independent, impartial, and not have engaged in any business for
or adverse to either party for at least ten (10) years.
2.2
The Emergency Arbitrator will conduct a hearing and render a written determination
on the Dispute to both parties within five business days of the matter being referred
to him or her, all in accordance with Rules O-1 to O-8 of the American Arbitration
Association ("AAA") Commercial Rules-Optional Rules for Emergency Protection
Commercial Rules ("AAA Emergency Rules").
2.3
Although the hearing will be conducted using AAA rules, unless both parties agree
otherwise, this dispute process will not be administered by the AAA but will be
conducted by the parties in accordance with these procedures.
2.4
If, however, an Emergency Arbitrator has not selected within three days after delivery
of the Notice, either party may upon three days additional notice, thereafter seek
emergency relief before the AAA, in accordance with the AAA Emergency Rules,
provided that the Emergency Arbitrator meets the qualifications set forth above.
2.5
All proceedings to arbitrate Time Sensitive Disputes shall be conducted in Glendale,
Arizona.
2.6
Presentation, request for determination (i.e., a party’s prayer), and the Emergency
Arbitrators decision will adhere to the procedures required in Section 3.6 of this
Exhibit.
2.7
The finding of the Emergency Arbitrator with respect to any Time Sensitive Dispute
will be binding upon the parties on an interim basis during progress of the Services,
subject to review de novo by arbitration after the Project Substantial Completion Date.
2.8
The time and extent of discovery will be as determined by the Emergency Arbitrator.
(A)
Discovery orders of the Emergency Arbitrator will consider the time
sensitivity of the matter and the parties desire to resolve the issue in the most
time and costs efficient manner;
(B)
The parties are obligated to cooperate fully and completely in the provision
of documents and other information, including joint interviews of individuals
with knowledge such that the matter moves toward resolution in the most
time and costs efficient manner and the Emergency Arbitrator is empowered
to fashion any equitable penalty against a party that fail to meet this
obligation.
3.
Non-Emergency Arbitration.
3.1
Except as provided in Section 5 of this Exhibit, any Dispute that is either a non-
emergency Dispute that has not been resolved by negotiation, or a de novo review of
an AAA emergency arbitration will be decided by binding arbitration by a panel of
three arbitrators in accordance with, but not necessarily administered by, the
Construction Industry Rules of the AAA.
(A)
The parties shall each select an arbitrator within 15 days after notice that a
party desires to resolve a dispute by arbitration.
(B)
The two arbitrators shall then each select a third arbitrator. If an arbitrator
is not selected within any such 15 day period, then the arbitrator shall be
appointed by the AAA.
3.2
The arbitrator(s) shall meet the qualifications of Emergency Arbitrators as provided
in Section 2 of this Exhibit.
3.3
The arbitrators do not have the authority to consider or award punitive damages as
part of the arbitrators' award.
3.4
In connection with such arbitration, each party shall be entitled to conduct up to five
depositions, and, no less than 90 days prior to the date of the arbitration hearing, each
party shall deliver to the other party copies of all documents in the delivering party's
possession that are relevant to the dispute.
3.5
The arbitration hearing shall be held within 150 days of the appointment of the
arbitrators.
3.6
At the arbitration hearing, each party will argue its position to the arbitrators in
support of one proposed resolution to the dispute (a “Proposed Resolution”).
(A)
Each party’s Proposed Resolution must be fully dispositive of the dispute.
(B)
The arbitrators must select one Proposed Resolution by majority consent and
are not free to fashion any alternative resolutions.
(C)
The parties must submit their proposed resolution of the matter to the
arbitrators and the other party 15 days prior to the date set for
commencement of the arbitration proceeding.
(D)
The decision of the arbitrators will be forwarded to the parties within 15 days
after the conclusion of the arbitration hearing.
(E)
The decision of the arbitration panel is final and binding on the parties and
may be entered in any court of competent jurisdiction for the purpose of
securing an enforceable judgment.
(F)
All costs and expenses associated with the arbitration, including the
reasonable legal fees and costs incurred by the prevailing party, must be paid
by the party whose position was not selected by the arbitrators.
4.
Continuing Work. Unless otherwise agreed to in writing, CMAR must continue to perform
and maintain progress of the Work during any Dispute Resolution or arbitration proceedings,
and City will continue to make payment to CMAR in accordance with the Agreement.
5.
Exceptions.
5.1
Neither City nor CMAR are required to arbitrate any third-party claim, cross-claim,
counter claim, or other claim or defenses in any action that is commenced by a third-
party who is not obligated by contract to arbitrate disputes with City and CMAR.
5.2
City or CMAR may commence and prosecute a civil action to contest a lien or stop
notice, or enforce any lien or stop notice (but only to the extent the lien or stop notice
the party seeks to enforce is enforceable under Arizona law), including, without
limitation, an action under A.R.S. § 33-420, without the necessity of initiating or
exhausting the procedures of this Exhibit.
5.3
This Exhibit does not apply to, and may not be construed to require arbitration of,
any claims, actions or other process undertaken, filed, or issued by the City of
Glendale Building Safety Department, Code Compliance Department, Police
Department, Fire Department, or any other agency of City acting in its governmental
permitting, for the benefit of public health, safety, and welfare, or other regulatory
capacity.
5.4
In connection with any arbitration, the arbitrators do not have the authority to, and
may not enforce, any provision of the Federal or Arizona Rules of Civil Procedure.