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CONSTRUCTION AGREEMENT
This Construction Agreement ("Agreement") is entered into this day of , 2023, and is
effective between the City of Glendale, an Arizona municipal corporation ("City"), and Midstate Energy, LLC, a
general contractor authorized to do business in the State of Arizona (“Contractor").
RECITALS
A. City intends to undertake a project for the benefit of the public, with public funds, that is more fully set
forth in Exhibit A attached ("Project");
B. City desires to retain the services of Contractor to perform those specific duties and produce the specific
work as set forth in the Project;
Cc. City and Contractor desire to memorialize their agreement with this document.
AGREEMENT
The parties hereby agree as follows:
1. Project.
11 Scope. Contractor will provide all services and material necessary to assure the Project is completed
timely and efficiently consistent with Project requirements, including, but not limited to, working in
close interaction and interfacing with City and its designated employees, and working closely with
others, including other contractors, providers or consultants retained by City.
1.2 Project Team.
a. Project Manager. Contractor will designate an employee as Project Manager with sufficient
training, knowledge, and experience to, in the City's opinion, to complete the Project and
handle all aspects of the Project such that the work produced by Contractor is consistent
with applicable standards as detailed in this Agreement.
b. Project Team.
(1) The Project Manager and all other employees assigned to the Project by Contractor
will comprise the "Project Team."
(2) Project Manager will have responsibility for and will supervise all other employees
assigned to the Project by Contractor.
c Sub-contractors.
(1) Contractor may engage specific technical contractor (each a "Sub-contractor") to
furnish certain service functions.
(2) Contractor will remain fully responsible for Sub-contractor's services.
(3) Sub-contractors must be approved by the City, unless the Sub-contractor was
previously mentioned in the response to the solicitation.
(4) Contractor shall certify by letter that contracts with Sub-contractors have been
executed incorporating requirements and standards as set forth in this Agreement.
2. Schedule. The Project will be undertaken in a manner that ensures it is completed in a timely and efficient
manner. The Project shall be completed in accordance with the schedule contained in Exhibit A.
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3. Contractor’s Work.
3.1
3.3
3.4
3.6
3.7.
Standard. Contractor must perform services in accordance with the standards of due diligence, care,
and quality prevailing among contractors having substantial experience with the successful furnishing
of services and materials for projects that are equivalent in size, scope, quality, and other criteria
under the Project and identified in this Agreement.
Licensing. Contractor warrants that:
a. Contractor and Sub-contractors will hold all appropriate and required licenses, registrations,
and other approvals necessary for the lawful furnishing of services ("Approvals"); and
b. Neither Contractor nor any Sub-contractor has been debarred or otherwise legally excluded
from contracting with any federal, state, or local governmental entity ("Debarment").
(1) City is under no obligation to ascertain or confirm the existence or issuance of any
Approvals or Debarments or to examine Contractor's contracting ability.
(2) Contractor must notify City immediately if any Approval or Debarment changes
during the Agreement’s duration and the failure of the Contractor to notify City as
required will constitute a material default of this Agreement.
Compliance.
a. Services and materials will be furnished in compliance with applicable federal, state, county
and local statutes, rules, regulations, ordinances, building codes, life safety codes, or other
standards and criteria designated by City.
b. Contractor must not discriminate against any employee or applicant for employment based
on race, color, religion, sex, national origin, age, marital status, sexual orientation, gender
identity or expression, genetic characteristics, familial status, U.S. military veteran status or
any disability. Contractor will require any Sub-contractor to be bound to the same
requirements as stated within this section. Contractor, and on behalf of any subcontractors,
warrants compliance with this section.
Coordination; Interaction.
a. If the City determines that the Project requires the coordination of professional services ot
other providers, Contractor will work in close consultation with City to proactively interact
with any other contractors retained by City on the Project ("Coordinating Entities").
b. Subject to any limitations expressly stated in the budget, Contractor will meet to review the
Project, schedules, budget, and in-progress work with Coordinating Entities and the City as
often and for durations as City reasonably considers necessary to ensure the timely work
delivery and Project completion.
c. If the Project does not involve Coordinating Entities, Contractor will proactively interact
with any other contractors when directed by City to obtain or disseminate timely information
for the proper execution of the Project.
Hazardous Substances. Contractor is responsible for the appropriate handling, disposal of, and if
necessary, any remediation and all losses and damages to the City, associated with the use, release or
threat of release of any pollutant, contaminant or hazardous substances by Contractor in connection
with completion of the Project.
Warranties. At any time within two years after completion of the Project, Contractor must, at
Contractor’s sole expense and within 20 days of written notice from the City, uncover, correct and
remedy all defects in Contractor’s work. City will accept a manufacturet’s warranty on approved
equipment.
Bonds. Upon execution of this Agreement, and if applicable, Contractor must furnish Payment
and Performance Bonds as required under A.R.S. § 34-608.
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4. Compensation for the Project.
4A Compensation. Contractor's compensation for the Project, including those furnished by its Sub-
contractors will not exceed $1,992,563, as specifically detailed in Exhibit B ("Compensation").
4.2 Change in Scope of Project. The Compensation may be equitably adjusted if the originally
contemplated scope of services as outlined in the Project is significantly modified by the City.
a. Adjustments to the Scope or Compensation require a written amendment to this
Agreement and may require City Council approval.
b. Additional services which are outside the scope of the Project and not contained in this
Agreement may not be performed by the Contractor without prior written authorization
from the City.
c. Notwithstanding the incorporation of the Exhibits to this Agreement by reference, should
any conflict arise between the provisions of this Agreement and the provisions found in
the Exhibits and accompanying attachments, the provisions of this Agreement shall take
priority and govern the conduct of the patties.
5. Billings and Payment.
5.1 Applications.
a. Unless Exhibit B (Compensation) dictates otherwise, the Contractor will submit monthly
invoices (each, a "Payment Application") to City's Project Manager and City will remit
payments based upon the Payment Application as stated below.
b. The period covered by each Payment Application will be one calendar month ending on
the last day of the month.
5.2 Payment.
a. After a full and complete Payment Application is received, City will process and remit
payment within 30 days.
b. Payment may be subject to or conditioned upon City's receipt of:
(1) Completed work generated by Contractor and its Sub-contractors; and
(2) Unconditional waivers and releases on final payment from Sub-contractors as City
may reasonably request to assure the Project will be free of claims arising from
required performances under this Agreement.
5.3 Review and Withholding. City's Project Manager will timely review and certify Payment
Applications.
a. If the Payment Application is rejected, the Project Manager will issue a written listing of
the items not approved for payment.
b. City may withhold an amount sufficient to pay expenses that City reasonably expects to
incur in correcting the deficiency or deficiencies rejected for payment.
c. Contractor will provide, by separate cover, and concurrent with the execution of this
Agreement, all required financial information to the City, including City of Glendale
Transaction Privilege License and Federal Taxpayer identification numbers.
d. City will temporarily withhold Compensation amounts as required by A.R.S. § 34-221(C).
6. Termination.
6.1 For Convenience. City may terminate this Agreement for convenience, without cause, by
delivering a written termination notice stating the effective termination date, which may not be less
than 15 days following the date of delivery.
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6.2
Contractor will be equitably compensated any services and materials furnished prior to
receipt of the termination notice and for reasonable costs incurred.
Contractor will also be similarly compensated for any approved effort expended and
approved costs incurred that are directly associated with Project closeout and delivery of
the required items to the City.
For Cause. City may terminate this Agreement for cause if Contractor fails to cure any breach of
this Agreement within seven days after receipt of written notice specifying the breach.
a.
Contractor will not be entitled to further payment until after City has determined its
damages. If City's damages resulting from the breach, as determined by City, are less than
the equitable amount due but not paid Contractor for Service and Repair furnished, City
will pay the amount due to Contractor, less City's damages.
If City's direct damages exceed amounts otherwise due to Contractor, Contractor must pay
the difference to City immediately upon demand; however, Contractor will not be subject
to consequential damages more than $1,000,000 or the amount of this Agreement,
whichever is greater.
Insurance. For the duration of the term of this Agreement, Contractor shall procure and maintain
insurance against claims for injuries to persons or damages to property which may arise from or in
connection with the performance of all tasks or work necessary to complete the Project as herein defined.
Such insurance shall cover Contractor, its agent(s), representative(s), employee(s) and any subcontractors.
7A
7.2
Minimum Scope and Limit of Insurance. Coverage must be at least as broad as:
a.
Commercial General Liability (CGL): Insurance Services Office Form CG 00 01,
including products and completed operations, with limits of no less than $1,000,000 per
occurrence for bodily injury, personal injury, and property damage. Ifa general aggregate
limit applies, either the general aggregate limit shall apply separately to this project/location
or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code
1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property
damage.
Worker’s Compensation: Insurance as required by the State of Arizona, with Statutory
Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per
accident for bodily injury or disease.
Other Insurance Provisions. The insurance policies required by Section 7.1 above must contain,
or be endorsed to contain the following insurance provisions:
a.
The City, its officers, officials, employees, and volunteers are to be covered as
additional insureds of the CGL and automobile policies for any liability arising from or
in connection with the performance of all tasks or work necessary to complete the Project
as herein defined. Such liability may arise, but is not limited to, liability for materials, parts
or equipment furnished in connection with any tasks, or work performed by Contractor or
on its behalf and for liability arising from automobiles owned, leased, hited, or borrowed
on behalf of the Contractor. General liability coverage can be provided in the form of an
endorsement to the Contractor’s existing insurance policies, provide such endorsement is
at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 23 37 if later
revisions ate used.
For any claims related to this Project, the Contractor’s insurance coverage shall be
ptimary insurance as respects the City, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees, or
volunteers shall be in excess of the Contractot’s insurance and shall not contribute with it.
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7.3
74
7.6
7.7
7.8
c. Each insurance policy required by the Section shall provide that coverage shall not be
canceled, except after providing notice to the City.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating
of no less than A: VII, unless the Contractor has obtained prior approval from the City stating that
a non-conforming insurer is acceptable to the City.
Waiver of Subrogation. Contractor hereby agrees to waive its rights of subrogation which
any insurer may acquire from Contractor by virtue of the payment of any loss. Contractor agrees
to obtain any endorsement that may be necessary to effect this waiver of subrogation. The
Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City
for all work performed by the Contractor, its employees, agent(s) and subcontractor(s).
Verification of Coverage. Within 10 days of the Effective Date of this Agreement, Contractor
shall furnish the City with original certificates and amendatory endorsements, or copies of any
applicable insurance language effecting the coverage required by this Agreement. All certificates
and endorsements must be received and approved by the City before work commences. Failure to
obtain, submit or secure the City’s approval of the required insurance policies, certificates, or
endorsements prior to the City’s agreement that work may commence shall not waive the
Contractor’s obligations to obtain and verify insurance coverage as otherwise provided in this
Section. The City reserves the right to require complete, certified copies of all required insurance
policies, including any endorsements or amendments, required by this Agreement at any time
during the Term stated herein.
Contractor’s failure to obtain, submit or secure the City’s approval of the required insurance
policies, certificates or endorsements shall not be considered a Force Majeure or defense for any
failure by the Contractor to comply with the terms and conditions of the Agreement, including any
schedule for performance or completion of the Project.
Subcontractors. Contractor shall require and shall verify that all subcontractors maintain
insurance meeting all requirements of this Agreement.
Special Risk or Circumstances. The City reserves the right to modify these insurance
requirements, including any limits of coverage, based on the nature of the risk, prior experience,
insurer, coverage, or other circumstances unique to the Contractor, the Project or the insurer.
Indemnification.
a. To the fullest extent permitted by law, Contractor must defend, indemnify, and hold
harmless City and its elected officials, officers, employees and agents (each, an
"Indemnified Party," collectively, the "Indemnified Parties"), for, from, and against any and
all claims, demands, actions, damages, judgments, settlements, personal injury (including
sickness, disease, death, and bodily harm), property damage (including loss of use),
infringement, governmental action and all other losses and expenses, including attorneys'
fees and litigation expenses (each, a "Demand or Expense"; collectively, "Demands or
Expenses") asserted by a third-party (4e., a person or entity other than City or Contractor)
and that arises out of or results from the breach of this Agreement by the Contractor or
the Contractor’s negligent actions, errors or omissions (including any Sub-contractor or
other person or firm employed by Contractor), whether sustained before or after
completion of the Project.
b. This indemnity and hold harmless provision applies even if a Demand or Expense is in
part due to the Indemnified Party's negligence or breach of a responsibility under this
Agreement, but in that event, Contractor shall be liable only to the extent the Demand or
Expense results from the negligence ot breach of a responsibility of Contractor or of any
person or entity for whom Contractor is responsible.
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10.
11.
12.
13.
c. Contractor is not required to indemnify any Indemnified Parties for, from, or against any
Demand or Expense resulting from the Indemnified Party's sole negligence or other fault
solely attributable to the Indemnified Party.
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Contractor warrant
their compliance and that of its subcontractor with all federal immigration laws and regulations that relate to
their employees and compliance with the E-verify requirements under A.R.S. § 23-214(A). The Contractor
or subcontractor’s breach of this warranty shall be deemed a material breach of the Agreement and may
result in the termination of the Agreement by the City under the terms of this Agreement. The City retains
the legal right to randomly inspect the papers and records of the other party to ensure that the other party is
complying with the above-mentioned warranty. The Contractor and subcontractor warrant to keep their
respective papers and records open for random inspection during normal business hours by the other party.
The parties shall cooperate with the City’s random inspections, including granting the inspecting party entry
rights onto their respective properties to perform the random inspections and waiving their respective rights
to keep such papers and records confidential.
No Boycott of Israel. To the extent A.R.S § 35-393 through § 35-393.03 are applicable, the parties hereby
certify that they are not currently engaged in and agree for the duration of the Agreement to not engage in,
a boycott of goods or services from Israel, as that term is defined in A.R.S § 35-393.
Uyghur Forced Labor Prevention Act (UFLPA). Contractor certifies that it does not currently, and during
the term of this Agreement, will not use:
the forced labor of ethnic Uyghurs in the People’s Republic of China;
b. any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China; and
c. any contractors, subcontractors or suppliers that use the forced labor or any goods
or services produced by the forced labor of ethnic Uyghurs in the People’s Republic
of China.
Conflict. Contractor acknowledges this Agreement is subject to A.R.S. § 38-511, which allows for
cancellation of this Agreement in the event any person who is significantly involved in initiating,
negotiating, securing, drafting, or creating the Agreement on City's behalf is also an employee, agent, or
consultant of any other party to this Agreement.
Attestation of PCI Compliance. When applicable, the Consultant will provide the City annually with a
Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance certificate signed by an
officer of Consultant with oversight responsibility.
Notices.
13.1. A notice, request or other communication that is required or permitted under this Agreement (each
a"Notice") will be effective only if:
a. The Notice is in writing, and
b. Delivered in person or by private express overnight delivery service (delivery charges
prepaid), certified or registered mail (return receipt requested).
c Notice will be deemed to have been delivered to the person to whom it is addressed as of
the date of receipt, if:
(1) Received on a business day, or before 5:00 p.m., at the address for Notices
identified for the Party in this Agreement by U.S. Mail, hand delivery, or overnight
courier on ot before 5:00 p.m.; or
(2) As of the next business day after receipt, if teceived after 5:00 p.m.
d. The burden of proof of the place and time of delivery is upon the Party giving the Notice.
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14.
15.
16.
13.2
Digitalized signatures and copies of signatures will have the same effect as original
signatures.
Representatives.
a.
Contractor. Contractor's representative ("Contractor's Representative") authorized to act
on Contractor's behalf with respect to the Project, and his or her address for Notice
delivery is:
Midstate Energy, LLC
c/o Raul Justin Rojas, Vice President, Southwest
23325 N 23rd Avenue, Suite 120
Phoenix, Arizona 85027
City. City's representative ("City's Representative") authorized to act on City's behalf, and
his or her address for Notice delivery is:
City of Glendale
c/o
With required copies to:
City of Glendale City of Glendale
City Manager City Attorney
5850 West Glendale Avenue 5850 West Glendale Avenue
Glendale, Arizona 85301 Glendale, Arizona 85301
Concurrent Notices.
e) All notices to City’s representative must be given concurrently to City Manager
and City Attorney.
(2) A notice will not be considered to have been received by City’s representative until
the time that it has also been received by City Manager and City Attorney.
(3) City may appoint one or more designees for the purpose of receiving notice by
delivery of a written notice to Contractor identifying the designee(s) and their
respective addresses for notices.
Changes. Contractor or City may change its representative or information on Notice, by
giving Notice of the change in accordance with this section at least ten days prior to the
change.
Financing Assignment. City may assign this Agreement to any City-affiliated entity, including a non-
profit corporation or other entity whose primary purpose is to own ot manage the Project.
Term.
The term of this contract is one yeat, which shall commence on the Effective Date of this Agreement. This
Agreement will terminate on the one-year anniversary of its Effective Date or when the City determines
construction is complete, in its sole unreviewable discretion, whichever is sooner.
Entire Agreement; Survival; Counterparts; Signatures.
16.1
Integration. This Agreement contains, except as stated below, the entite agreement between City
and Contractor and supersedes all prior conversations and negotiations between the patties
regarding the Project or this Agreement.
a.
Neither Party has made any representations, warranties, or agreements as to any matters
concerning the Agreement’s subject matter.
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17.
18.
16.2
16.3
16.4
16.5
16.6
16.7
b. Representations, statements, conditions, or warranties not contained in this Agreement will
not be binding on the parties.
c. Any solicitation, addendums and responses submitted by the Contractor are incorporated
fully into this Agreement as Exhibit A. Any inconsistency between Exhibit A and this
Agreement will be resolved by the terms and conditions stated in this Agreement.
Interpretation.
a. The parties fairly negotiated the Agreement’s provisions to the extent they believed
necessary and with the legal representation they deemed appropriate.
b. The parties are of equal bargaining position and this Agreement must be construed equally
between the parties without consideration of which of the parties may have drafted this
Agreement.
c. The Agreement will be interpreted in accordance with the laws of the State of Arizona.
Survival. Except as specifically provided otherwise in this Agreement each warranty,
representation, indemnification and hold harmless provision, insurance requirement, and every
other right, remedy, and responsibility of a Party, will survive completion of the Project, or the
earlier termination of this Agreement.
Amendment. No amendment to this Agreement will be binding unless in writing and executed by
the parties. Any amendment may be subject to City Council approval.
Remedies. All rights and remedies provided in this Agreement are cumulative and the exercise of
any one or more right or remedy will not affect any other rights or remedies under this Agreement
or applicable law.
Severability. If any provision of this Agreement is voided or found unenforceable, that
determination will not affect the validity of the other provisions, and the voided or unenforceable
provision will be reformed to conform to applicable law.
Counterparts. This Agreement may be executed in counterparts, and all counterparts will together
comprise one instrument.
Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered according to the American Arbitration Association’s
Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
Exhibits. The following exhibits, with reference to the term in which they are first referenced, are
incorporated by this reference.
Exhibit A Project
Exhibit B Compensation
Exhibit C Section 3 Clause Applicability
(The remainder of this page left blank intentionally. Signatures appear on the following page.)
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The parties enter into this Agreement as of the date shown above.
ATTEST:
Julie K. Bower (SEAL)
City Clerk
APPROVED AS TO FORM:
Michael D. Bailey
City Attorney
WOMEN-OWNED/MINORITY BUSINESS [ ] YES [
9
]NO
City of Glendale,
an Arizona municipal corporation
By: Kevin R. Phelps
Its: City Manager
Midstate Energy, LLC
CAS
By: Clayton Boop
Its: Vice President, West
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EXHIBIT A
CONSTRUCTION AGREEMENT
SCOPE OF WORK
Interior lighting retrofit from T8/T5 fluorescent lighting to LED lighting at Foothills Library, Main Library
and Velma Teague Library. In cases where there are recessed can fixtures, the entire fixture will be replaced
with a recessed can fixture.
Exterior building lighting will be replaced with new LED light fixtures where LED retrofit kits are not
available. This work will be performed at Foothills Library and Main Library.
Replace 23+ year old 110-ton constant speed screw chiller at Foothills Library with a new efficient screw
chiller. Replace two 36+ year old 100-ton constant speed reciprocating chillers with two efficient screw
chillers. All chiller replacement includes signed and stamped engineered drawings to be provided to the
district for approval and as-builts to the district following completion.
Replace existing two-cell cooling tower at the Main Library. Cooling tower replacement includes signed and
stamped engineered drawings to be provided to the district for approval and as-builts to the district
following completion of the project.
Chilled water reset controls/logic will be provided to eliminate the current cooling strategy of a constant 45
degrees all year long. The chilled water reset will lower the water temperature automatically as the outside air
temperature goes up and the building demand increases. The chilled water temperature would do the
opposite when the outside air temperature lowers and the building demand decreases. This control/logic
will be installed/implemented at Foothills Library and Main Library.
Where applicable, existing park lighting fixtures that are not currently LED will be retrofitted with LED
lamps or replaced with new fixtures. Pole replacements or additions are not included in this scope. This
work will take place at Foothills Park, Grand Linear Park, Foothills Sports Park, Foothills Playground,
Chaparral Park, Rose Lane Park, and Rose Lane Aquatic Center.
Orchestrate is a cloud-based software solutions allowing the client to access it 24 hours a day and 7 days a
week from any computer or mobile device with internet connectivity. As a cloud-based product it does not
use up valuable space on the client’s servers and is continually updated without requiring support from the
client’s IT staff. The proposed suite includes Automated Utility Data Services and the Orchestrate
Integration Platform. Orchestrate will be implemented at Foothills Library and Main Library. Midstate
Energy, LLC will provide, install, and train owner personnel staff on the use a new utility data aggregation
application. The new system will provide the owner personnel with the following functionality:
* Automated Monthly Utility Data Updates
¢ Advanced Reports
* Advanced Regression Analysis
* Automated Weather Data
* Baseline Analysis and Regression Calibration
* Commissioned Energy Reports
In addition, the system will provide the following standard functionality:
* Unlimited users
* Standard Performance Dashboards
* Basic Reporting
* Data imports from provided templates
* Mobile Access
* Standard support and training
¢ Remote training
* Access to an online Learning Center
* Live email support (Monday-Friday 8:00am-6:00p.m. EST)
EXHIBIT B
CONSTRUCTION AGREEMENT
COMPENSATION
METHOD AND AMOUNT OF COMPENSATION
Progress payments based on phased completions submitted and approved by the City.
NOT-TO-EXCEED AMOUNT
The total amount of compensation paid to Contractor for full completion of all work required by the Scope of
Work during the entire term of the Project must not exceed $1,992,563.
DETAILED PROJECT COMPENSATION
Project Cost Breakdown:
Total Contract Value - $1,992,563
Total Construction Cost - $1,930,153
Estimated Tax - $62,410
Total Project Cost - $1,992,563
EXHIBIT C
SECTION 3 CLAUSE APPLICABILITY