CMAR Agreement

CITY OF GLENDALE, ARIZONA
STANDARD AGREEMENT BETWEEN OWNER AND CM@RISK
ON THE BASIS OF A GUARANTEED MAXIMUM PRICE

May 15, 2023 Edition

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TABLE OF CONTENTS

ARTICLE 1
SCOPE OF WORK

ARTICLE 2
CONTRACT DOCUMENTS

ARTICLE 3
INTERPRETATION AND INTENT

ARTICLE 4
OWNERSHIP OF DOCUMENTS

ARTICLE 5
CONTRACT TIME

ARTICLE 6
PRE-CONSTRUCTION PHASE FEE AND GUARANTEED MAXIMUM PRICE

ARTICLE 7
PROCEDURE FOR PAYMENT

ARTICLE 8
TERMINATION FOR CONVENIENCE

ARTICLE 9
REPRESENTATIVES OF THE PARTIES: AUTHORITY

ARTICLE 10
BONDS AND INSURANCE

EXHIBITS

EXHIBIT A —- CM@Risk General Conditions
Attachment 1 — Performance and Payment Bonds
Attachment 2 — Amendment and Change Order Pricing Format Sample
EXHIBIT B — Willmeng Pre-Construction Services Proposal Dated September 1 st’ 2023
EXHIBIT C ~ Cost of the Work — Schedule of Values (blank template)
EXHIBIT D — Form of Amendment — GMP and Construction Phase Fee
EXHIBIT E — Construction Documents
EXHIBIT F - Statement of All Clarifications and Assumptions
EXHIBIT G — Schedule of Major Milestones
EXHIBIT H — Dispute Resolution Procedures

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This “Agreement” is made this day of in the year 2023, by and between
CITY OF GLENDALE, ARIZONA, an Arizona municipal corporation (“OWNER”), located at
5850 West Glendale Avenue, Glendale, Arizona, 85301 and Construction Manager at Risk
WILLMENG CONSTRUCTION, INC., (““CM@RISK”), located at 1702 East Highland
Avenue, Suite 400, Phoenix, Arizona 85016, (each a “Party” or collectively the “Parties”) for
services in connection with the following PROJECT: 222318.1 Heroes Regional Park Buildout
- CMAR (the “Project”), the Construction Documents for which are or will be prepared by DIG
STUDIOS (“DESIGN PROFESSIONAL” or “DP”).

In consideration for the mutual covenants and obligations contained herein, Owner and

CM@Risk agree as follows:
Article 1 Scope of Work

1.1 CM@Risk shall perform all needed services in the Pre-Construction and Construction
Phases of the Project, and provide all material, equipment, tools, and labor necessary to
satisfactorily complete all work, deliverables and services described in and reasonably inferable
from the Contract Documents (collectively “Scope of Work”, “Project Work” or “the Work”). The
Parties agree that this Agreement shall not be effective as a contract for Construction Phase
services until such time as the Parties agree on a Guaranteed Maximum Price (GMP) and
Construction Phase Fee in the form of a written amendment to this Agreement specifically
incorporating those contract terms.

1.2. The CM@Risk shall provide services for the Pre-Construction Phase in accordance with
this Agreement, “Exhibit A - CM@Risk General Conditions”, and “Exhibit B - CM@Risk's
Willmeng Construction, Inc. Pre-Construction Services Proposal Dated September 1*, 2023”.

During the Pre-Construction Phase the CM@Risk shall prepare a cost estimate and provide a
GMP, using the format set forth in “Exhibit C — Cost of the Work — Schedule of Values” (blank
template), which excludes the Pre-Construction Phase Fee, for the Owner’s review and approval
for all the Work required to complete the Project. If the GMP proposed by the CM@Risk is
acceptable to the Owner, the Parties agree to execute an amendment to this Agreement, in the form
provided on “Exhibit D — Form of Amendment — GMP and Construction Phase Fee” hereto, to
establish the GMP and Construction Phase Fee, and to incorporate herein the Construction
Documents and other Contract Documents, CM@Risk assumptions and clarifications as may be
necessary to define the Scope of Work as in “Exhibit E —- Construction Documents”, “Exhibit F —
Statement of All Clarifications and Assumptions”, and “Exhibit G — Schedule of Major
Milestones” hereto. (If the GMP is not within the Owner’s Project Budget, the Owner reserves the
right to terminate this Agreement or act as otherwise provided for in the “Exhibit A - CM@Risk
General Conditions”.)

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Article 2 Contract Documents

2.1 The “Contract Documents” are comprised of the following. In the event of a conflict in the
Contract Documents, the Contract Documents will be applied in the following order of precedence:

2.1.1. This Agreement without Exhibits.
2.1.2. Exhibit A to this Agreement — “CM@Risk General Conditions”.
2.1.3 Owner’s Project Criteria developed by Owner, and Design Professional program (if
any), with the Criteria taking precedence over the program, unless and to the extent
specifically modified by one of the subsequent documents.
2.1.4. Exhibit C — Cost of the Work — Schedule of Values

Exhibit F — Statement of All Clarifications and Assumptions

Exhibit G — Schedule of Major Milestones
For the purposes of order of precedence only, these three documents will be treated as one

document.

2.1.5 Exhibit E to this Agreement — “Construction Documents”.

2.1.6 Exhibit B to this Agreement — Willmeng Construction, Inc. Pre-Construction
Services Proposal dated September 1%, 2023, as subsequently modified by addenda,
amendments or change orders.

2.1.7. Exhibit H regarding Dispute Resolution Procedures.

2.1.8 The following other documents, if any, forming part of the Agreement: N/A.

2.1.9 Owner’s Request for Qualifications (RFQ) including all Addenda, Exhibits and
Clarifications.

2.1.10 The CM@Risk’s qualifications submission, as required by the RFQ, including any
clarifications and revisions of the submission.

Article 3 Interpretation and Intent

3.1 The Contract Documents are complementary and must be interpreted in harmony so as to
avoid conflict or ambiguity, with words and phrases interpreted consistent with construction and
design industry standards.

3.2. Terms, words and phrases used in the Contract Documents shall have the meanings as
defined in the “Exhibit A - CM@Risk General Conditions” or if not specifically defined, their

ordinary and common meaning.

3.3. The Contract Documents form the entire Agreement between Owner and CM@Risk and

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by incorporation herein are as fully binding on the Parties as if set forth herein. No oral
representations or other agreements have been made by the Parties except as specifically stated in
the Contract Documents.

3.4 Compliance. 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.

3.5 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 parties.

Article 4 Ownership of Documents

4.1 The Owner, through its separate agreement with the Design Professional, has and shall
continue to have ownership of all drawings, specifications, and other documents and electronic
data furnished by Design Professional.

4.2 The Owner shall also have ownership of documents or electronic data similar to those
described in Article 4.1 above created by or in the possession of CM@Risk as well as any
estimates, schedules, value engineering submissions, or other work product or deliverable
furnished by CM@Risk to Owner.

Article 5 Contract Time

5.1 Owner and CM@Risk mutually agree that time is of the essence with respect to the dates
and times set forth in the Contract Documents. CM@Risk understands that the time(s) for
completion(s) set forth in these documents are essential to the Owner and a material consideration
for this Agreement.

5.2 For the Pre-Construction Phase Services the Work and Contract Time shall commence
within five (5) days of execution of this Agreement, unless the Parties mutually agree otherwise
in writing. For the Construction Phase Services the Work and Contract Time shall commence
within five (5) days of CM@Risk’s receipt of Owner’s Notice-to-Proceed (NTP), unless the Parties
mutually agree otherwise in writing.

5.3 Substantial Completion

5.3.1. Substantial Completion of the Work (the Substantial Completion Date) shall be
achieved no later than TBD (XXX) calendar days after receipt of the NTP, or by date certain TBD,
subject to adjustments in accordance with the Contract Documents.

5.3.2 Interim milestones and/or Substantial Completion of identified portions or phases
of the Work shall be achieved as follows, subject to adjustments in accordance with the Contract
Documents: DIG Studio Design Plans and Specifications, Approved GMP Scope of Work, and

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5.5

Final Inspection Report.
5.4 Final Completion

5.4.1 Final Completion of the Work or portion or phase thereof shall be achieved within
(TBD at GMP) calendar days after the date established for Substantial Completion of the Work,
or by date certain (TBD at GMP), unless otherwise mutually agreed by amendment or change order.

5.4.2 Interim milestones and/or Final Completion of identified portions or phases of the
Work shall be achieved as follows, subject to adjustments in accordance with the Contract
Documents: All Site Civil Work, Play Field Installations, Vertical Construction Items per DIG
STUDIO Design Plans and Specifications. Please see detailed Scope of Work found within the
approved GMP.

Liquidated Damages. CM@Risk understands and acknowledges that if Substantial Completion
is not achieved by the Substantial Completion Date provided in Article 5.3.1, and Article 5.3.2
above for identified portions or phases of the Work, Owner will suffer damages, which are
difficult to accurately quantify and ascertain. CM@Risk agrees that if Substantial Completion
for each portion or phase of the Work is not timely achieved, CM@Risk shall pay Owner as per
MAG SECTION 00500- Agreement 3.2.1 108.9 FAILURE TO COMPLETE ON TIME: "X"
dollars (STBD) per day as liquidated damages, and not as a penalty, for each calendar day that
Substantial Completion for each portion or phase extends beyond the Scheduled Substantial
Completion Date(s). In addition, if Final Completion is not attained within the time period
defined by Article 5.4 above, CM@Risk shall pay Owner as per MAG SECTION 00500-
Agreement 3.2.1 108.9 FAILURE TO COMPLETE ON TIME: "X" dollars (STBD) per day as
additional liquidated damages, and not as a penalty, for each calendar day that Final Completion
extends beyond the required date. The liquidated damages provided for herein shall be in lieu of
all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages,
whether special or consequential, and of whatsoever nature incurred by Owner which are
occasioned by any delay in CM@Risk achieving Substantial Completion or Final Completion on
or after the established dates.

Notwithstanding anything stated herein, the above-stated liquidated damages shall in no way limit
Owner’s other rights (e.g. “recovery measures” or termination) or limit Owner’s entitlement to
damages for any breach other than for delay for which Contractor may be responsible pursuant to
the terms of this Agreement or applicable law. If for any reason liquidated damages as set forth in
this section are unenforceable, Owner shall be entitled to recover its actual damages sustained as
a result of any delay in the completion of this Project.

Article 6 Pre-Construction Phase Fee and Guaranteed Maximum Price

6.1 Owner shall pay CM@Risk a Pre-Construction Phase Fee for the Pre-Construction
Services and a Construction Phase Fee for Construction Phase Services as provided in the Contract
Documents. The CM@Risk’s Construction Phase Fee, plus the Cost of the Work, Contingencies
and Allowances, each as defined in the “Exhibit A — CM@Risk General Conditions”, will
comprise the GMP to be established in compliance with the “Exhibit A - CM@Risk General

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Conditions”. Unless otherwise agreed to, CM@Risk’s GMP is deemed to include all required
taxes (including sales and use taxes), as well as all applicable bond and insurance costs.

6.1.1 The Pre-Construction Phase Fee, as defined in Section 1.2 of the “Exhibit A —
CM@Risk General Conditions”, shall be a not-to-exceed amount of $147,416.00 CMAR and a
$30,000.00 Owners-Contingency fee for a total of : One-Hundred-Seventy-Seven-Thousand,
Four-Hundred-Sixtee dollars ($177,416.00).

6.1.2 The Construction Phase Fee (profit and overhead only) shall be established initially
as a fix percentage of 7.0% of the direct construction cost. The Parties understand and agree that
during GMP negotiations the 7.0% will be expressed as a dollar amount in the worksheet found in
Exhibit C.

6.2 ‘If the GMP requires an adjustment due to changes in the Scope of Work during the
Construction Phase, the cost of such changes shall be priced under Section 10 of the “Exhibit A —
CM@Risk General Conditions”.

6.3 For events giving rise to an extension of the CPM Schedule pursuant to Section 9.4 of the
“Exhibit A -CM@Risk General Conditions”, either agreed to or awarded, CM@Risk will provide
all the necessary extended Construction General Conditions for a daily sum as provided for in
Sections 9.6 and 10.4 of the “Exhibit A - CM@Risk General Conditions”. The specific amount of
extended Construction General Conditions will be determined by the Owner on acase- by-case
basis prior to issuance of a change order and must be determined to be fair and reasonable to the
satisfaction of the Owner and the Design Professional.

Article 7 Procedure for Payment

7A Progress Payments. For Pre-Construction Services, CM@Risk shall submit to Owner on
the last business day of each month CM@Risk’s Application for Payment based on the percentage
completed for each Pre-Construction Design Phase as agreed to by the Owner. Payment for
CM@Risk’s Construction Services shall be made in accordance with Section 7 of the “Exhibit A
— CM@Risk General Conditions”. All costs, which exceed the GMP and are not authorized by
change order, are to be paid by the CM@Risk and not the Owner.

7.2 Record Keeping and Finance Controls. With respect to all Work performed by
CM@Risk, its Subcontractors and consultants under this Agreement, CM@Risk, its
Subcontractors and any consultants, shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management, using accounting and control
systems in accordance with generally accepted accounting principles, and subject to approval by
the Owner. During performance of the Work and for five (5) years after Final Payment, the
CM@Risk shall retain and shall also require all Subcontractors and any consultants to retain for
review and/or audit by the Owner all correspondence, meeting minutes, memoranda, electronic
media, books, accounts, reports, files, time cards, material invoices, payrolls, and evidence of all
communications, direct and indirect costs and all other matter related to the Work. For avoidance
of doubt, the parties agree that: (i) where the costs of the Work is determined by reference to fixed
labor, equipment and/or mark-up rates set forth in the Contract Documents, the audit of such costs

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shall be limited to the quantity of units to which the established rates are applied; and (ii) for
competitively procured subcontracts performed pursuant to a stipulated sum, the audit shall be
limited to change orders performed on a “cost-plus” basis Upon request by the Owner, a legible
copy or the original of any or all such records shall be produced by the CM@Risk at any time
during or after the Work as the Owner may request. The CM@Risk shall submit to the Owner
upon request all payrolls, reports, estimates, records and any other data concerning Work
performed or to be performed and concerning materials supplied or to be supplied, as well as
Subcontractor or any consultant payment applications or invoices and such Subcontractor’s or any
consultant’s progress payment checks. The requirements of this Article shall be provided for in
all contracts between the CM@Risk and its Subcontractors and any consultants employed by the
CM@Risk.

Article 8 Termination for Convenience

8.1 This Agreement may be terminated for the convenience of Owner as provided for in
Section 12.1 of the “Exhibit A - CM@Risk General Conditions”.

Article 9 Representatives of the Parties; Authority
9.1 Owner’s Representatives.

9.1.1 Owner designates Mr, Eddie Garcia, located at C.0.G. Engineering Department 2" floor,
5970 W. Brown Street, Glendale, AZ. as as the “Owner’s Senior Representative”, who has _ the
authority and responsibility set forth in the Contract Documents, including the authority and
responsibility for avoiding and resolving disputes under Section 11 of the “Exhibit A -CM@Risk
General Conditions”.

9.1.2 Owner designates Mr. James Hannasch, C.I.P. Project Manager, City of Glendale as its
“Owner’s Representative(s)”, who has the authority and responsibility set forth in the Contract
Documents.

9.2 CM@Risk’s Representatives.

9.2.1 CM@Risk designates Mike Ploeger, Project Executive, Willmeng located at: 1702 E.
Highland Ave., Suite 400 Phoenix, AZ 85016 as “CM@Risk’s Senior Representative”, who has
the authority and responsibility set forth in the Contract Documents, including the authority and
responsibility for avoiding and resolving disputes under Section 11 of the “Exhibit A CM@Risk
General Conditions”.

9.2.2 CM@Risk designates Kenny Shepherd, Project Manager, Willmeng located at: 1702 E.
Highland Ave., Suite 400 Phoenix, AZ 85016 as the “CM@Risk Representative,” who has the
authority and responsibility set forth in the Contract Documents.

9.2.3. CM@Risk designates Mark Ruthrauff, Project Superintendent, Willmeng located at: 1702
E. Highland Ave., Suite 400 Phoenix, AZ 85016 as the “Superintendent”, who has the authority
and responsibility set forth in the Contract Documents.

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9.2.4 CM@Risk’s Representatives and Superintendent, as approved by the Owner, shall not be
replaced without the Owner’s prior written approval.

9.2.5 CM@Risk warrants and shall ensure that only individuals who are authorized to legally
bind CM@Risk will sign documents associated with this Agreement.

Article 10 Bonds and Insurance

10.1 Prior to, and as a condition for, the CM@Risk to perform Pre-Construction Phase Services,
CM@Risk shall procure, deliver and maintain insurance coverage as provided in Section 6 of the
“Exhibit A — CM@Risk General Conditions.” Prior to, and as a condition for, CM@Risk to
perform Construction Phase Services and Owner issuance of a Notice-To-Proceed, CM@Risk
shall procure, deliver and maintain Performance and Payment Bonds and insurance coverage, as
provided in Section 6 of the “Exhibit A - CM@Risk General Conditions.”

CM@RISK:
Willmeng Construction, Inc.
By Its: Authorized Representative

OWNER:
City of Glendale, Arizona
By Its: Authorized Representative

(Signature) (Signature)
Mheddee Mouceeu
(Printed Name) a (Printed Name)
PRESIOENT
(Title) (Title)
OF. 2/, ZOZ5

(Date) (Date)
ATTEST:
Julie K. Bower (SEAL)
City Clerk
APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

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EXHIBIT A
CM@Risk General Conditions
Dated September 26% 2023

(3 pages)

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City of Glendale Standard Form Agreement Between Owner and CM@Risk (May 15, 2023)

CITY OF GLENDALE, ARIZONA
EXHIBIT A
CONSTRUCTION MANAGER AT RISK AGREEMENT (CM@Risk)
GENERAL CONDITIONS
May 15, 2023 Edition

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TABLE OF CONTENTS
SECTIONS

SECTION 1
GENERAL
1.1 Mutual Obligations
1.2. Basic Definitions
1.3. Mutual Understanding

SECTION 2
CM@RISK’S SERVICES AND RESPONSIBILITIES
2.1 General Services
2.2. Pre-Construction Services
2.3. Legal Requirements
2.4 Government Approvals and Permits
2.5 CM@Risk’s Construction Phase Services
2.6 | CM@Risk’s Responsibility for Project Safety
2.7 Warranty
2.8 Correction of Defective Work

SECTION 3

DESIGN PROFESSIONAL’S SERVICES AND RESPONSIBILITIES

SECTION 4
OWNER’S SERVICES AND RESPONSIBILITIES

SECTION 5

HAZARDOUS CONDITIONS AND UNFORESEEN PROJECT SITE CONDITIONS

5.1 Hazardous Materials
5.2 Unforeseen Project Site Conditions
5.3 Archeological Conditions

SECTION 6
INSURANCE AND BONDS
6.1 Bond Requirements
6.2. CM@Risk’s Insurance Requirements
6.3 Minimum Scope and Limits of Insurance

SECTION 7
PAYMENT
71 Guaranteed Maximum Price; Savings
7.2 Schedule of Values
73 Applications for Progress Payment
74 Payments and Retainage
7.5 Early Release of Subcontractor Retainage

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7.6

Payment for On-Site and Off-Site Materials

17 Ownership of Construction Work
7.8 Substantial Completion
71 Final Completion and Final Payment
7.2 Allowances
7.3 Contingencies
74 Rental Equipment
SECTION 8

INDEMNIFICATION
8.1 Proprietary Rights, Patent and Copyright Infringement
8.2 General Indemnity

SECTION 9
TIME AND DELAY

SECTION 10
CHANGES TO THE CONTRACT SCOPE, PRICE, TIME AND TERMS
10.1 Changes
10.2 Change Directives
10.3. Minor Changes in the Work
10.4 Price, Time or Scope of Work Adjustment
10.5 Emergencies

SECTION 11

REQUESTS FOR CONTRACTUAL ADJUSTMENTS AND DISPUTE RESOLUTION

11.1

Dispute Avoidance and Resolution

11.2 Administrative Hearing Process

11.3. Consequential Damages

11.4. Decisions of Design Professional or Owner
SECTION 12

STOP WORK AND TERMINATION

12.1 Owner’s Right to Stop Work or Terminate for Convenience

12.2. Owner’s Right to Perform and Terminate for Cause

12.3 CM@Risk’s Right to Stop Work and Terminate for Cause
SECTION 13

MISCELLANEOUS

13.1. Assignment Prohibited

13.2 Successorship

13.3. Governing Law

13.4 Severability

13.5 No Waiver

13.6 Headings

)
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13.7

13.8

13.9

13.10
13.11
13.12
13.13
13.14
13.15
13.16
13.17
13.18

Notice

Non-Appropriation; Non-Availability of Funds
Conflict of Interest

Compliance and Legal Worker Requirements
Assignment of Overcharge Claims

Disputes

Sexual Harassment

Modification of Agreement

Veteran’s Preference

No Boycott of Israel

Uyghur Forced Labor Prevention Act
Complete Agreement

ATTACHMENTS

ATTACHMENT | - PERFORMANCE AND PAYMENT BOND FORMS

ATTACHMENT 2 - AMENDMENT AND CHANGE ORDER PRICING FORMAT -

SAMPLE

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SECTION 1
GENERAL

1.1 MUTUAL OBLIGATIONS.

1.1.1 Owner and Construction Manager at Risk (CM@Risk) commit, at all times, to
cooperate fully with each other, and proceed on the basis of trust, confidence, and good faith to
permit each Party to realize the benefits expected and afforded under the Contract Documents,
which benefits include the satisfactory and timely completion of the Project and performance of
all obligations required by the Contract Documents.

1.2 BASIC DEFINITIONS.

Contract Documents are those documents noted under Article 2 of “STANDARD FORM
AGREEMENT BETWEEN OWNER AND CM@RISK ON THE BASIS OF A
GUARANTEED MAXIMUM PRICE” (the “Agreement”) and also include, but are not limited
to, the Agreement, amendments, change orders, these General Conditions, any supplementary or
special conditions referenced in the Agreement and any other items stipulated to as being included
in the Contract Documents, including the complete design as accepted by the Owner.

1.2.1 Reserved.

1.2.2 “Allowances” are items set forth on “Exhibit C — Cost of the Work — Schedule of Values”
to the Agreement as an estimate for the cost of that item of work and to the extent that the Cost of
the Work for that item is lesser or greater than the estimate the GMP will be reduced or increased
by change order.

1.2.3. “Bidding Contingency or Construction Contingency” means that part of the Guaranteed
Maximum Price (GMP) the CM@Risk may use during the Bidding or Construction Phase for
purposes as set forth in Section 7.11.1 below, all subject to Owner’s approval, after GMP has been
accepted. Contingency may not be used to cover the cost of any work on the Project after issuance
of the Certificate of Final Completion.

1.2.4 “CM@Risk” means the CM@Risk and all persons and entities identified as members of the
CM@Risk Team in the CM@Risk’s response to the Owner’s RFQ which led to the Agreement
with all amendments, and any substitutes permitted under the terms of the Agreement, and these
General Conditions. The CM@Risk participates in the Pre-Construction Phase as set forth in the
Agreement by, among other things, doing value engineering, evaluating costs and constructability,
preparing schedules, implications of alternate designs and systems and materials during and after
design of the Project. During construction, the CM@Risk assumes all risk for price and schedule
under the Agreement and its GMP.

1.2.5 “Construction Documents” are the Design Documents prepared by the Design Professional
for the Project, approved by the Owner as incorporated into the Guaranteed Maximum Price, to be
used to construct the Project. All modifications to the Construction Documents must be approved
by the Owner, in writing, prior to incorporation into the Agreement.

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