Construction Agreement with Fisher Sand and Gravel
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Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 1
CITY OF GLENDALE, ARIZONA
STANDARD FORM AGREEMENT BETWEEN OWNER AND
DESIGN-BUILDER
ON THE BASIS OF A GUARANTEED MAXIMUM PRICE
January 15, 2023 Edition
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
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Standard Form Agreement Between Owner and Design-Builder (January 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
FEES AND GUARANTEED MAXIMUM PRICE
ARTICLE 7
PROCEDURE FOR PAYMENT
ARTICLE 8
TERMINATION FOR CONVENIENCE
ARTICLE 9
REPRESENTATIVES OF THE PARTIES; AUTHORITY
ARTICLE 10
INSURANCE AND BONDS
ARTICLE 11
OTHER PROVISIONS
EXHIBITS
EXHIBIT A – Design-Build Agreement General Conditions
Attachment 1 – Performance and Payment Bonds
Attachment 2 – Change Order Pricing Format (Sample)
EXHIBIT B – Design-Build Agreement Scope of Services
Attachment 1 – Project Deliverables
EXHIBIT C – XXXXXXXXXXXXXXXXXXXXX
Design and Pre-Construction Services Hourly Rates Summary, Dated
EXHIBIT D – Design-Build Agreement Form of Pre-Construction Services Amendment (Template)
EXHIBIT E – Design-Build Agreement Form of GMP Amendment (Template)
EXHIBIT F – Cost of the Work (Template)
EXHIBIT G – List of Construction Documents
EXHIBIT H – Statement of All Clarifications and Assumptions
EXHIBIT J – Schedule of Major Milestones
EXHIBIT K – Dispute Resolution Procedures
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Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
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This “Agreement” is made this day of in the year 20 , by and between
CITY OF GLENDALE, ARIZONA, an Arizona municipal corporation (“OWNER”), located at
5850 West Glendale Avenue, Glendale, Arizona, 85301 and FISHER SAND & GRAVEL
COMPANY, A NORTH DAKOTA CORPORATION AUTHORIZED TO DO BUSINESS
IN ARIZONA (“DESIGN-BUILDER” or “D-B”), located at , (each a “Party” or
collectively the “Parties”) for services in connection with the following PROJECT: 232418 Black
Lot Parking Garage located generally at the NE corner of the intersection of 95th Avenue and
Montbello Avenue, (the “PROJECT”).
In consideration for the mutual covenants and obligations contained herein, Owner and
Design-Builder agree as set forth herein:
Article 1
Scope of Work
1.1
In accordance with Arizona Revised Statutes, Title 34 and the City of Glendale
Procurement Code, Owner intends to enter into a contract for design and construction services by
a qualified design-builder as described in “Exhibit A - Design-Build General Conditions” and
“Exhibit B - Design-Build Scope of Services” (hereinafter the “Scope”).
1.2
At the election of the Parties, and as may be necessary, the D-B shall perform all needed
design, pre-construction, and construction 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
1.3
At the election of the Parties, and as may be necessary, during the Design and Pre-
Construction Phase, the D-B shall provide design and preconstruction services to determine the
project designs, provide complete Construction Document Submittals, provide project GMPs,
confirm the existing site conditions, including site surveys and geotechnical studies, and confirm
project schedules, in accordance with this Agreement, “Exhibit A - Design-Build General
Conditions”, and “Exhibit B - Design-Build Scope of Services”.
1.4
The D-B must keep the Project within the Owner’s Project Budget requirements, and DB’s
estimates of probable Construction Costs shall not exceed this amount. D-B shall prepare complete
project construction cost estimates for all the Work required to complete the Project, with each
Design Phase Submittal and with each GMP Proposal, using the format set forth in “Exhibit F -
Cost of the Work”, which excludes the Design and Pre-Construction Phase Fee, so that the Owner
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
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and D-B have an opportunity to assess overall budget capacity prior to authorization of partial or
complete GMPs.
The amount within the Owner’s Project Budget available for the Work may be revised
only by an Owner-approved written modification of the D-B Agreement.
1.5
If the GMP proposed by the D-B is acceptable to the Owner, and if the Owner desires to
proceed with the Project, the Parties agree to execute an Amendment to this Agreement, in the
form provided on “Exhibit E - Design-Build Agreement Form of GMP Amendment” attached
hereto, to establish the GMP and Construction Phase Fee as described in “Exhibit F - Cost of the
Work”, and to incorporate herein the Construction Documents and other Contract Documents, and
D-B’s assumptions and clarifications as may be necessary to define the Scope of Work as described
in “Exhibit G - List of Construction Documents”, “Exhibit H - Statement of All Clarifications and
Assumptions”, and “Exhibit J - Schedule of Major Milestones” attached hereto. If the GMP is not
within the Owner’s Project Budget, or if the Owner desires not to proceed with the Project, the
Owner reserves the right to terminate this Agreement or act as otherwise provided for in the
“Exhibit A - D-B General Conditions”.
1.6
Professional Registration Requirements and Standard of Care.
D-B agrees that the D-B’s Design Professional (including Sub-Consultants) are current
registrants with the State of Arizona Board of Technical Registration (and others as required), and
are fully qualified by education, technical training, and experience as professionals, to perform
Professional Services and Contract Administration.
D-B agrees that in performing the Professional Services it will exercise the Standard of
Care described below, and will cause its Design Professional and Sub-Consultants to exercise the
same. D-B will also cause all Consultants and Sub-Consultants it employs, or contracts with, to
meet this same Standard of Care.
The “Standard of Care” is the performance standard under which D-B shall provide its
Professional Services, and is defined as: The skill, care and competence exercised by members of
the applicable professional discipline currently practicing under similar circumstances. D-B shall
perform the Professional Services as expeditiously as is consistent with the Standard of Care and
the orderly and timely progress of the Project and Project Schedule.
As my be applicable under Title 34, The Owner’s acceptance of the Design Documents
provided to it by D-B, and D-B’s estimates of Probable Construction Cost, shall not relieve D-B
from any responsibility for errors or omissions in those regards, nor from any other obligation of
D-B under the D-B Agreement or applicable laws, statutes, ordinances, building codes, rules and
regulations, or operation of law.
If applicable, D-B acknowledges and agrees that approval and involvement by the Owner
during the Design Phase (including, without limitation, recommendations by the Owner as to the
Design), in no way relieves D-B of full responsibility for the Design and the Design Documents.
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All drawings and specifications shall bear the signature and professional seal for all
disciplines.
D-B shall be fully responsible for all design and coordination provided under this
Agreement. D-B shall provide thorough review and coordination of all disciplines, drawings, and
specifications, as well as Owner’s Consultants (if any), and demonstrate to the Owner that this has
been accomplished. This includes, but is not limited to:
a. Civil Engineering, including Surveying and Drainage Analysis
b. Landscape and Irrigation Design.
c. Architectural Design
d. Acoustical Design
e. Interior Design, including FF&E
f. Structural Engineering
g. Mechanical Engineering
h. Plumbing Engineering
i. Performance Design and Specification of the Fire Sprinkler System, including
Architectural Control of Fire Sprinkler Head Locations
j. Electrical Engineering
k. Performance Design and Specification of the Addressable Fire Alarm System
l. Telecommunications Systems
m. Audio Visual Systems
n. Owner’s Proprietary Keyless Access and Security Systems
o. Interference detection and resolution at the earliest appropriate submittal phase, and at
each subsequent submittal phase
p. Cost Estimating Services for Each Phase
D-B hereby agrees, subject to the Standard of Care, that it shall have the same legal
Responsibility to the Owner as the Owner has, or may have, to others arising out of, or resulting
from, any errors or omissions of D-B.
1.7
Changes in Scope and/or Schedule:
1.7.1 The Owner at any time, by written notice to D-B, may propose changes within the
general scope of this D-B Agreement including, without limitation, to any one or more of the
following:
1. Scope of Design, Pre-Construction, and/or Construction Phase Services, including but
not limited to required drawings, designs, or specifications
2. Schedules of Milestones
3. Time for Completion
Final revisions to the work may be undertaken by mutual written agreement of the Parties.
1.7.2 If any such change causes an increase or decrease in the cost of, or the time required
for, performance of any part of the D-B Agreement, whether or not identified in the notice, the
Owner may negotiate with the D-B to make equitable adjustments to D-B’s Fee or Guaranteed
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Maximum Price, the Milestone Schedule, or the Time for Completion, or shall otherwise modify
the D-B Agreement as appropriate.
1.7.3 Any changes must be authorized by Owner in writing before they are performed.
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 or Attachments.
2.1.2 Exhibit A to this Agreement - “Design-Build General Conditions”, with
Attachments.
2.1.3 Exhibit B to this Agreement - “Design-Build Scope of Services”.
2.1.4 Exhibit F – Cost of the Work
Exhibit H – Statement of All Clarifications and Assumptions
Exhibit J – 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 G to this Agreement – “List of Construction Documents”.
2.1.6 Exhibit C to this Agreement – “Design and Pre-Construction Services Hourly Rates
Summary”, as subsequently modified by addenda, amendments or change orders, as
requested by Owner.
2.1.7 The following other documents, if any, forming part of the Agreement: Agreement
between the City of Glendale and Fisher Industries for the construction and of a Parking
Structure.
2.1.8 Owner’s Request for Qualifications (RFQ) dated December 2023, with all addenda,
exhibits and clarifications.
2.1.9 The D-B’s Statement of Qualifications (SOQ) submission, as required by the RFQ,
dated December 2023, as accepted and agreed to by the Owner, 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, with words and phrases interpreted consistent with construction and design industry
standards. In the event of any inconsistency, conflict, or ambiguity, Contract Documents shall take
precedence in the order in which they are listed in Section 2.1.
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3.2
Terms, words and phrases used in the Contract Documents, shall have the meanings as
defined in “Exhibit A - Design-Build General Conditions” or if not specifically defined, their
ordinary and common meaning.
3.3
The Contract Documents form the entire agreement between Owner and Design-Builder
and by incorporation herein are as fully binding on the parties as if repeated herein. No oral
representations or other agreements have been made by the parties except as specifically stated in
the Contract Documents.
Article 4
Ownership of Documents
4.1
The plans, drawings, specifications, notes, reports, renderings, final models, design
concepts and images, and all other documents and items to be prepared and furnished by Design-
Builder pursuant to this Part 1 Agreement (hereinafter referred to as “Work Product”), both
physical and digital, shall be the property of the Owner, including the right to use same on Owner’s
other projects without additional cost to the Owner. D-B shall maintain for its file copies of those
documents, drawings and/or other products required by law or the standards of professional
practices.
4.2
In the case of reuse or modification of the Design Documents by the Owner, D-B’s name
and all professional seals shall be removed, and D-B shall not be liable to the Owner or third parties
in their reuse.
4.3
By execution of this D-B Agreement, D-B transfers and hereby assigns all copyright,
ownership, and other intellectual property interest in the Construction Documents and the
completed Project to the Owner, and further agrees to execute any separate assignment agreement
necessary to implement such transfer. D-B may use on other projects any standard details and other
parts of the Construction Documents not prepared exclusively for Owner.
4.4
If Owner terminates the Project for its convenience as set forth in Article 8 of the
Agreement or Design-Builder elects to terminate this Agreement in accordance with Section 11.3
of the General Conditions, it is understood that the use of the Work Product is at Owner’s sole risk
without liability to Design-Builder or anyone working by or through Design-Builder, including
Design Consultants of any type.
Article 5
Contract Time
5.1
Owner and Design-Builder mutually agree that time is of the essence with respect to the
dates and times set forth in the Contract Documents.
5.2
For the Design and Pre-Construction Phase Services, the Work and Contract Time shall
commence within five (5) days of D-B’s receipt of Owner’s Notice to Proceed, unless the parties
mutually agree otherwise in writing. Completion of the Design Documents set forth in “Exhibit B
- Scope of Services” shall be, subject to adjustments in accordance with the Contract Documents.
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5.3
For the Construction Phase Services the Work and Contract Time shall commence within
five (5) days of D-B’s receipt of Owner’s Notice-to-Proceed (NTP), unless the Parties mutually
agree otherwise in writing.
5.4
Substantial Completion
5.4.1 Substantial Completion of the Work (the Substantial Completion Date) shall be
achieved no later than (302) calendar days after receipt of the NTP, or by date certain TBD, subject
to adjustments in accordance with the Contract Documents.
5.4.2 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: TBD.
5.5
Final Completion
5.5.1 Final Completion of the Work or portion or phase thereof shall be achieved within
(60) calendar days after the date established for Substantial Completion of the Work, or by date
certain mutually agreed by amendment or change order.
5.5.2 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: ____________________.
5.6
Liquidated Damages. Design-Builder understands and acknowledges that if Substantial
Completion is not achieved by the Date provided in Section 5.4.1 as adjusted in accordance with
the Contract Documents (the “Scheduled Substantial Completion Date”), Owner will suffer
damages which are difficult to specify accurately and ascertain. Design-Builder agrees that if
Substantial Completion for the entire Work or any portion thereof is not attained by the scheduled
Substantial Completion Date, Design-Builder shall pay Owner One Thousand Thirty Four dollars
($1,034.00) per day as liquidated damages, and not as a penalty, for each calendar day that
Substantial Completion extends beyond the Designated Date. In addition, if Final Completion is
not attained within the time period defined by Section 5.5.1, Design-Builder shall pay dollars
($1,034.00.) per day that the Owner does not have beneficial use of as liquidated damages, and not
as a penalty for each calendar day that Final Completion extends beyond the Designated Date. The
liquidated damages provided 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 achieving Final
Completion on 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.
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
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Article 6
Fees and Guaranteed Maximum Price
6.1
Fees
6.1.1 Include Basic Services and Additional Services (as defined in this Article 6.1)
(collectively “Professional Services”). The D-B shall render the Professional Services in the
Phases as described in the Scope. The Phases are to be performed in the sequence set forth in the
Scope, and D-B shall not proceed with the next Phase in the Scope without prior written
authorization from the Owner.
6.1.2 Design and Pre-Construction Phase Services. Design-Builder shall be
compensated for Design and Pre-Construction Services (Basic Services) in accordance with this
Article 6.1.2 of the Agreement. Included are the following:
Design-Builder’s Design Services Fixed Fee in the amount Dollars ($0);
Design-Builder’s Pre-Construction Services Fixed Fee in the amount of NOT TO
EXCEED Dollars ($0).
INITIAL AUTHORIZED FEES
Phase 1
Phase 2
Total
Design Services Fees
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$T
$0
$0
Sub-Total Design Services Fees
$0
$0
$0
Pre-Construction Services Fees
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
Sub-Total Pre-Construction Services Fees
$0
$0
$0
Total Initial Services Fees
$0
$0
$0
Initial Reimbursable Expenses
$0
$0
$0
FUTURE FEES AUTHORIZED BY AMENDMENT
Phase 1
Phase 2
Total
Design Services Fees
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
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phase
$0
$0
$0
phase
$0
$0
$0
Construction Administration
$0
$0
$0
Closeout / Warranty
$0
$0
$0
Sub-Total Design Services Fees
$00
$0
$0
Pre-Construction Services Fees
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
phase
$0
$0
$0
Sub-Total Pre-Construction Services Fees
$0
$0
$0
Total Future Services Fees
$0
$0
$0
Future Reimbursable Expenses
$0
$0
$0
6.1.3 Additional Design and Pre-Construction Phase Services:
6.1.3.1 Additional Design and Pre-Construction Phase Services (“Additional Services”)
is defined as all services not described in “Exhibit B - Scope of Services” and this Agreement,
but that are otherwise requested by Owner.
6.1.3.2 The following Additional Services shall be provided by D-B only when authorized
by Owner, and shall be paid for by Owner in accordance with the terms of this Agreement, in
addition to the DB’s compensation for Basic Services:
(a) Providing financial feasibility or other special studies.
(b) Providing services relative to future facilities, systems, and equipment, which are
not intended to be constructed during the Construction Phase.
(c) Providing interior design and all other similar services required for or in
connection with the selection, procurement or installation of movable furniture, furnishings, and
related equipment if not expressly stated in this Agreement.
(d) Providing consultation concerning replacement of any work damaged by fire,
natural causes or forces majeure during the course of construction.
(e) Retaining services of a competent surveyor or registered engineer or to provide
any special inspections or tests, as required by code or prudent practice, during the Construction
Phase.
(f) Providing additional services arising from the default of the D-B or the default of
any of its Subcontractors.
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(g) Providing assistance required by the Owner in any judicial, quasi-judicial,
administrative, or legislative hearings or proceedings relating to the Project.
(h) Providing staff, professional and otherwise, when directed by Owner, to perform
tasks and duties assigned as necessary to prevent slippage in progress schedule and/or timely
completion of the construction Work.
(i) Providing other reasonable services.
(j) If the Owner and the D-B agree on more extensive Design representation at the
site during the Construction Phase than is described in “Exhibit B - Scope of Services”, the D-B
shall provide one or more full-time Design Representatives. Such full-time Design
Representatives shall be selected, employed and directed by the D-B, and the D-B shall be
compensated for such services as mutually agreed in writing between the Owner and the D-B.
Any full-time Design Representatives or replacements shall be subject to prior approval by the
Owner. The Owner reserves the absolute right to reject or require replacement of any Design
Representatives.
6.1.3.3 For all Additional Services, D-B’s compensation will be computed using one or
more of the following:
(a) Mutually agreed upon adjustments to the Fixed Fee computed using the hourly
rates as listed in “Exhibit C - Design and Pre-Construction Services Hourly Rates
Summary”,
(b) A negotiated Fixed Fee amount, or
(c) Other mutually agreed upon basis.
6.1.3.4 Additional Services must be approved by Owner in writing prior to
commencement of the services.
6.1.4 Hourly Rates applicable to Design and Pre-Construction Phase Services under this
Agreement are contained in “Exhibit C - Design and Pre-Construction Services Hourly Rates
Summary”.
6.2
Construction Phase Services and Guaranteed Maximum Price
6.2.1 Reserved.
6.2.2 Guaranteed Maximum Price. The Owner and Design Builder agrees to a
Guaranteed Maximum Price of $71,860,000.00, Design Builder will construct a complete
functional project as described in “Exhibit B - Scope of Services”, and is in compliance with the
“Exhibit A - General Conditions”. The GMP is comprised of the Cost of the Work, including
Contingencies and Allowances (each as defined in “Exhibit A - General Conditions”). Unless
otherwise provided in the Contract Documents, Design-Builder’s Guaranteed Maximum Price is
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deemed to include all sales, use, consumer and other taxes mandated by applicable Legal
Requirements.
6.2.3 If the GMP requires an adjustment due to changes in the Work, the cost of such
changes shall be priced as described in Article 9.4 of “Exhibit A - General Conditions”.
6.2.4 For Owner-caused construction delays, either agreed to or awarded, D-B will
provide all the necessary extended Construction General Conditions for a daily sum as provided
for in Articles 8.1.3 and 9.4 of “Exhibit A - General Conditions”. The specific amount of extended
Construction General Conditions will be determined by the Owner on a case-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-Builder.
Article 7
Procedure for Payment
7.1
Progress Payments.
7.1.1 As may be applicable, for Design and Pre-Construction Services, Design-Builder
shall submit to Owner on the last business day of each month beginning with the first month after
the Date of Commencement, Design-Builder’s Application for Payment based on the percentage
complete agreed to by the Owner of the total Design and Pre-Construction Services, in accordance
with the Contract Documents.
7.1.2 Payment for Design-Builder’s Construction Services, shall be made in accordance
with Article 6 of “Exhibit A - Design-Build General Conditions”; or by the mutually agreed upon
schedule of progress payments. All costs, which exceed the GMP and are not authorized by change
order, are to be paid by the D-B and not the Owner.
7.1.3 Owner shall make payment on Design-Builder’s properly submitted and accurate
Application for Payment within fourteen (14) days after Owner’s receipt and approval of each
monthly Application for Payment in accordance with the Contract Documents, but in each case
less the total of payments previously made, and less amounts properly withheld under the Contract
Documents. Failure to submit a proper or accurate invoice suspends the running of the time for
payment of the invoice.
7.2
Interest. Payments properly due and unpaid by Owner to Design-Builder, whether
progress payments or final payment, shall bear interest as provided by law.
7.3
Record Keeping and Finance Controls. With respect to all Work performed by Design-
Builder, its Subcontractors and Consultants, under this Agreement, Design-Builder, its
Subcontractors and Consultants, shall keep full and detailed accounts and exercise such controls
as may be necessary for proper financial management, using accounting and control systems
approved by the Owner. During performance of the Work and for five (5) years after Final
Payment, the Design-Builder shall retain and shall also require all Subcontractors and 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
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evidence of all communications, direct and indirect costs and all other matter related to the Work.
Upon request by the Owner and if required by State or Local law, a legible copy or the original of
any or all such records shall be produced by the Design-Builder at any time during or after the
Work as the Owner may request. The Design-Builder 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
Consultant payment applications or invoices and such Subcontractor’s or Consultant’s progress
payment checks. The requirements of this Section shall be provided for in all contracts between
the Design-Builder and its Subcontractors and Consultants
Article 8
Termination for Convenience
8.1
Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and
without cause, elect to terminate the Agreement. In such event, Owner shall pay Design-Builder
for all Work executed, and for cost or expense necessarily incurred in connection with the Work,
and reasonable costs and expenses attributable to such termination, including demobilization costs,
and amounts due in settlement of terminated contracts with Subcontractors and Design
Consultants.
8.2
During its work under this, Design-Builder agrees that it will not unilaterally undertake
any irreversible commitment or make any non-cancelable agreement for the provision of future
goods, materials, or services and for which the Owner would or may be responsible should the
Owner exercise its rights to terminate this Agreement for the convenience of the Owner in
accordance with Section 8.1 above. During the course of the Work, when Design Builder
determines that irrevocable commitments for future goods, materials, or services are necessary for
the efficient and timely completion of the Project, Design-Builder shall notify the Owner of its
opinion and the reasons therefor. However, no such commitments shall be made without the prior
written authorization of the Owner, which shall not be unreasonably withheld.
Article 9
Representatives of the Parties; Authority
9.1
Owner’s Representatives.
9.1.1 Owner designates David Beard, P.E. , located at City of Glendale as the “Owner’s Senior
Representative”, which individual has the authority and responsibility for avoiding and resolving
disputes under Section 10.2.2 of “Exhibit A -Design-Build General Conditions.
9.1.2 Owner further designates name, title, company name and address as its “Project
Representatives”, which have the authority and responsibility set forth in the Contract Documents.
9.2
Design-Builder’s Representatives.
9.2.1 Design-Builder designates name, title, company name and address as “Design-Builder’s
Senior Representative”, which individual has the authority and responsibility for avoiding and
resolving disputes under Section 10.2.2 of “Exhibit A – Design-Build General Conditions”.
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9.2.2 Design-Builder designates name, title, company name and address as the “Design-
Builder’s Representative,” which individual has the authority and responsibility set forth in the
Contract Documents.
9.2.3 Design-Builder designates name, title, company name and address as Design-Builder’s
“Construction Superintendent”, which individual has the authority responsibility set forth in the
Contract Documents.
9.2.4 Design-Builder’s Representatives and Construction Superintendent as approved by the
Owner, shall not be replaced without the Owner’s prior written approval.
Article 10
Insurance and Bonds
10.1
Insurance. Design-Builder shall procure in accordance with the Contract Document the
insurance coverages as defined in the General Conditions. Insurance certificates shall be submitted
to Owner prior to Owner’s issuance of a Notice to Proceed.
10.2
Bonds. Design-Builder shall provide Performance and Payment Bonds for One Hundred
(100%) percent of the Guaranteed Maximum Price stated herein, underwritten by a Surety licensed
in the State of Arizona and acceptable to the Owner, utilizing the forms established in “Exhibit A
- Design-Build General Conditions - Attachment 1”. Bonds shall be submitted to Owner prior to
Owner’s issuance of a Notice to Proceed with any construction work.
Article 11
Other Provisions
11.1
Other provisions, if any, are as follows: Consultants and Subcontractors submitted initially
and approved by the Owner shall not be replaced without the Owner’s prior written approval. Any
additional costs due to an approved change shall not be the Owner’s responsibility and will not
increase the Guaranteed Maximum Price.
Design-Builder represents that it has the necessary financial resources to fulfill its obligations
under the Contract Documents, and has the necessary corporate approvals to execute the
Agreement, and perform the Work described herein.
DESIGN-BUILDER
OWNER:
Fisher Sand & Gravel Company, a North Dakota
corporation
City of Glendale, Arizona
By Its: Authorized Representative
By Its: Authorized Representative
(Signature)
(Signature)
(Printed Name)
(Printed Name)
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(Title)
(Title)
(Date)
(Date)
ATTEST:
___________________________
Julie K. Bower
(SEAL)
City Clerk
APPROVED AS TO FORM:
___________________________
Michael D. Bailey
City Attorney
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EXHIBIT A
Design-Builder General Conditions
Dated
( pages)
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Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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CITY OF GLENDALE, ARIZONA
EXHIBIT A
DESIGN-BUILD AGREEMENT GENERAL CONDITIONS
January 15, 2023 Edition
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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TABLE OF CONTENTS
ARTICLE 1
GENERAL ARTICLES
1.1
Mutual Obligations
1.2
Basic Definitions
ARTICLE 2
DESIGN-BUILDER’S SERVICES AND RESPONSIBILITIES
2.1
General Services
2.2
Design Professional Services
2.3
Payment to Sub-Consultants
2.4
Design Submissions
2.5
Legal Requirements
2.6
Government Approvals and Permits
2.7
Design-Builder’s Construction Phase Services
2.8
Budgeting and Guaranteed Maximum Price
2.9
Design-Builder’s Responsibility For Project Safety
2.10
Design-Builder’s Warranty
2.11
Correction of Defective Work
ARTICLE 3
OWNER’S SERVICES AND RESPONSIBILITIES
ARTICLE 4
HAZARDOUS CONDITIONS AND UNCONTEMPLATED PROJECT SITE
CONDITIONS
4.1
Hazardous Materials
4.2
Unforeseen Project Site Conditions
ARTICLE 5
INSURANCE AND BONDS
5.1
Design-Builder’s Bond Requirements
5.2
Design-Builder’s Insurance Requirements
5.3
Minimum Scope and Limits of Insurance
5.4
Owner’s Liability Insurance
ARTICLE 6
PAYMENT
6.1
Guaranteed Maximum Price; Savings
6.2
Schedule of Values
6.3
Applications for Progress Payment
6.4
Payments and Retainage
6.5
Early Release of Subcontractor Retainage
6.6
Payment for On-Site and Off-Site Materials
6.7
Title to Construction Work
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6.8
Withholding of Payments
6.9
Failure of Payment
6.10
Substantial Completion
6.11
Beneficial Occupancy
6.12
Final Completion and Final Payment
6.13
Allowances
6.14
Contingencies
ARTICLE 7
INDEMNIFICATION
7.1
Proprietary Rights, Patent and Copyright Infringement
7.2
Indemnification
ARTICLE 8
TIME
ARTICLE 9
CHANGES TO THE CONTRACT PRICE AND TIME
9.1
Change Order
9.2
Change Directives
9.3
Minor Changes in the Work
9.4
Price Adjustment
9.5
Emergencies
ARTICLE 10
REQUESTS FOR CONTRACTUAL ADJUSTMENTS AND DISPUTE
RESOLUTION
10.1
Requests for Contractual Adjustments And Relief
10.2
Dispute Avoidance And Resolution
10.3
Consequential Damages
ARTICLE 11
STOP WORK AND TERMINATION FOR CAUSE
11.1
Owner’s Right to Stop Work
11.2
Owner’s Right to Perform and Terminate for Cause
11.3
Design-Builder’s Right to Stop Work and Terminate for Cause
ARTICLE 12
MISCELLANEOUS
12.1
Assignment Prohibited
12.2
Successorship
12.3
Governing Law
12.4
Severability
12.5
No Waiver
12.6
Headings
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12.7
Notice
12.8
Non-Appropriation; Non-Availability of Funds
12.9
Conflict of Interest
12.10 Compliance and Legal Worker Requirements
12.11 Assignment of Overcharge Claims
12.12 Equality
12.13 Sexual Harassment
12.14 Modification of Agreement
12.15 Veteran’s Preference
12.16 No Boycott of Israel
12.17 Complete Agreement
ATTACHMENTS
Attachment 1 - Performance and Payment Bond Forms
Attachment 2 - Amendment and Change Order Pricing Format - Sample
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ARTICLE 1
GENERAL ARTICLES
1.1
Mutual Obligations.
1.1.1 Owner and Design-Builder commit, at all times, to cooperate fully with each other, and
proceed on the basis of trust and good faith to permit each party to realize the benefits afforded
under the Contract Documents, which benefits include the satisfactory and timely completion of
the Project and 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 DESIGN-BUILDER 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 Construction Documents are the plans and specifications prepared by the Design-Builder
for the Project, approved by the Owner, and incorporated into this Agreement by reference after
such approval, to be used to construct the Project. The Construction Documents shall set forth in
detail all items necessary to complete the construction of the Project in accordance with the
Contract Documents (subject to their completion following commencement of the Construction
Phase). All amendments and modifications to the Construction Documents must be approved by
the Owner prior to incorporation into this Agreement.
1.2.2 Construction General Conditions means all on-site Project-specific job costs of Design-
Builder not itemized elsewhere in the Contract Documents to support complete construction of the
project.
General Conditions shall initially be calculated based on an itemized description of costs, shared
with the Owner for review during GMP negotiations, then shall be fixed as a dollar amount as
mutually negotiated and agreed by the Parties in writing, subject to any cost or credit adjustments
prescribed by these General Conditions Article 9.4. Construction General Conditions will be
reimbursed as a category of Work within the Schedule of Values based on negotiated amounts, as
agreed to by Owner.
Design-Builder’s Construction General Conditions-type charges may not be listed in the
Subcontractors’ Schedule of Values, nor will such charges be paid by the Owner.
All excluded expenses the Design-Builder incurs while performing and completing the Project are
not reimbursable as Construction General Conditions, and must be paid out of the Construction
Phase Fee.
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1.2.3 Cost of the Work consists of those items of Work which are paid for by the Owner to the
Design-Builder, and consists of those categories of costs set forth as allowable on “Exhibit F -
Cost of the Work”. The Estimated Cost of the Work is the difference between the Guaranteed
Maximum Price and the accepted fixed Construction General Conditions and Construction Phase
Fee. The Actual Cost of the Work is the aggregate amount of actual costs chargeable to the Owner
under the provisions of “Exhibit F - Cost of the Work”, up to the Estimated Cost of the Work plus
Construction General Conditions and Construction Phase Fee.
1.2.4 Owner means the City of Glendale, Arizona, a municipality corporation.
1.2.5 Design-Builder means the Design-Builder and all persons and entities identified as
members of the Design-Build Team in the Design-Builder’s response to the Owner’s RFQ for this
project. Except as otherwise provided herein, members of the Design-Build Team shall be treated
as Subcontractors or Design Consultants, as the context may require, within the areas of their
involvement in the Project.
1.2.6 A Design Professional is a qualified professional properly licensed in the State of Arizona,
as required for the services provided, procured or employed by anyone under contract with Design-
Builder to furnish design services required under the Contract Documents.
1.2.7 Construction Phase is defined as including but not limited to the following Subphases:
construction administration, closeout and warranty, and may include some activities that occur
after Final Completion.
1.2.8 Construction Phase Fee includes all direct and indirect costs of Design-Builder providing
off-site management, supervision and support for the completion of the Work during the
Construction Phase, plus associated overhead and profit. The Construction Phase Fee shall initially
be calculated as a percent of Direct Construction Cost only, and then shall be fixed as a dollar
amount as mutually negotiated and agreed to by the Parties in writing, subject to any cost or credit
adjustments prescribed by these General Conditions Article 9.4.
1.2.9 Design Submissions or Design Documents are the drawings, specifications, cost estimates
and other documents that are submitted for Owner’s approval to conclude the design services
required by the Agreement.
1.2.10 Hazardous Conditions are defined as any unusual materials, to include any materials,
wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements,
or which handling, remediation, or disposal are regulated by applicable Legal Requirements.
1.2.11 Legal Requirements include all applicable federal, state and local rules, laws, codes,
ordinances and regulations of any government or quasi-government entity having jurisdiction over
the Project, the practices involved in the Project, or any Work performed in connection with the
Project, including regulations, policies and practices of the City of Glendale, Arizona.
1.2.12 Project Criteria are developed by or for Owner to describe Owner’s program, requirements
and objectives for the Project, including use, space, price, time, site, and expandability
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requirements, as well as submittal requirements and other requirements governing Design-
Builder’s performance of its Work. The Project Criteria may include conceptual documents, design
criteria, performance requirements, and other Project specific technical materials and requirements
prepared by or for Owner.
1.2.13 Punch List means those minor items of Work identified and listed by Design-Builder and
agreed to by Owner to be completed by Design-Builder after Substantial Completion and prior to
Final Completion, which do not prevent the Project from being fully used for the purpose for which
it is intended and which will not prevent the issuance of a certificate of occupancy or a favorable
review by the State Fire Marshal.
1.2.14 Savings is the difference, if any, between the Guaranteed Maximum Price and the Actual
Cost of the Work plus the Construction General Conditions and the Construction Phase Fee, and
shall be allocated as set forth in Article 6.
1.2.15 The Site is the land and other areas on which the Project is located.
1.2.16 A Subcontractor (of any tier) is any person or entity who performs a portion of the Work
directly on behalf of the Design-Builder, including any material, men and suppliers, and shall
include all employees, agents and authorized representatives of such entities.
1.2.17 Substantial Completion is the date on which Design-Builder’s Work, or an agreed upon
portion of the Work, is sufficiently complete so that Owner can occupy and utilize the Project, or
a portion thereof, for the purposes for which it was intended. All Work must be complete except
for minor cosmetic corrections. Beneficial Occupancy by Owner of Project does not automatically
constitute Substantial Completion.
1.2.18 The Work is comprised of all design, other related services and construction activities
required to complete the Project as defined by the Contract Documents, including procuring and
furnishing all materials, equipment, services, and labor reasonably inferable from the Contract
Documents, or from prevailing trade usage and custom.
1.2.19 Beneficial Occupancy is that point in which the Design-Builder’s Work, or a portion of, is
sufficiently complete to allow the Owner to legally occupy and utilize the project for its intended
purpose. At this point, additional work by the Design-Builder may be required to achieve proper
Substantial Completion.
1.2.20 Final Completion is defined as 100% completion, including all punch lists, Close-Out
Documents and Owner training/start up activities.
SECTION 2
DESIGN-BUILDER’S SERVICES AND RESPONSIBILITIES
2.1
General Services.
2.1.1 Design-Builder’s Representative shall supervise all work and attend all meetings. During
the Construction Phase, Design-Builder’s Representative and Superintendent shall be at the Site
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at all times when work is being performed, and shall have the necessary expertise and experience
required to properly supervise the Work. Design-Builder’s Representative shall communicate
regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder as
to all matters. Design-Builder’s Representative may only be replaced with the mutual agreement
of Owner and Design-Builder.
2.1.2 Design-Builder shall provide Owner, on a monthly basis, a written status report detailing
the progress of the Work, including whether the Work is proceeding according to Schedule, an
updated Critical Path Method (CPM) Schedule, copies of the construction superintendent’s daily
site reports, identification of any discrepancies, conflicts, or ambiguities existing in the Contract
Documents that require resolution, whether health and safety issues have arisen in connection with
the Work, and whether other items exist that require resolution so as not to jeopardize Design-
Builder’s ability to complete the Work for the Guaranteed Maximum Price and within the Contract
Time(s).
2.1.3 Design-Builder shall prepare and submit a Logic Net Critical Path Method (CPM)
Schedule for the work in the Agreement and a detailed cost estimate in CSI or systems format that
includes a quantity and a cost for every item in the estimate to the Owner for approval. The CPM
shall include adequate Owner review time for Design Submission Documents three (3) weeks,
Government Agency reviews and all necessary approvals. The schedule shall indicate the dates for
the start and completion of the various stages of Work, including the dates when Owner
information and approvals are required and all necessary shutdowns or suspensions of Owner or
separate vendor activities on the site. The schedule shall be revised as required by conditions and
progress of the Work, but Design-Builder shall not be relieved of its obligations to complete the
Work within the Contract Time(s). Owner’s review of the schedule shall not be construed as
relieving Design-Builder of its complete and exclusive control over the means, methods,
sequences, and techniques of construction, except as limited and defined elsewhere in the Contract
Documents.
2.1.4 The parties will meet after execution of each part of this Agreement to discuss issues
affecting the administration of the Work, and to implement the necessary procedures, including
submittals and Owner site activity schedules, to permit the parties to perform their obligations
under the Contract Documents.
2.1.5 With respect to all Work performed by Design-Builder and its Subcontractors and
Consultants, Design-Builder, its Subcontractors and Consultants, shall keep full and detailed
accounts and exercise such cost controls as may be necessary for proper financial management,
using accounting and control systems in accordance with generally accepted accounting principles
and subject to review by Owner. During performance of the Work and for five (5) years after Final
Payment, the Design-Builder shall retain and shall also require all Subcontractors and Consultants
to retain for review or audit, or both, 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 matters related
to the Work. Upon request by the Owner, a legible copy or the original of any or all such records
as are described above shall be produced by the Design-Builder at any time during or after the
Work as the Owner may request. Upon request the Design-Builder shall submit to the Owner
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copies of all payrolls, reports, estimates, records, change order costs and data, and any other data
concerning Work performed or to be performed, materials supplied or to be supplied, including
Subcontractor or Consultant payment applications or invoices and such Subcontractor’s or
Consultant’s progress payment checks. The requirements of this Article shall be provided for in
all contracts between the Design-Builder and its Subcontractors and Consultants. The Owner may
exercise its rights under this Paragraph as often as reasonably necessary in the Owner’s sole
judgment to assure the Owner has a complete and accurate understanding of all Project costs
2.2
Design Professional Services.
2.2.1 Refer to “Exhibit B – Scope of Services”.
2.3
Payment to Sub-Consultants
2.3.1 D-B shall pay each of its Sub-Consultants within thirty (30) days of receipt of its monthly
payment from the Owner, that amount properly due and payable to said Sub-Consultant for
services performed within the payment period. D-B shall, by an appropriate agreement with each
of its Sub-Consultants, require each such Sub-Consultant to make payments to its Sub-Sub-
Consultants in a similar manner. Upon request of the Owner, D-B shall furnish documentary
evidence of compliance with these payment provisions
2.4
Design Submissions
2.4.1 Based on the Contract Documents, Design-Builder shall submit all required Design
Submissions to support the overall Project schedule, and to describe the Project’s essential
elements. The Design Submissions required in the Agreement will include drawings,
specifications, cost estimates, and other documents, as outlined in “Exhibit B - Scope of Services”.
At the time of the scheduled Submissions, Design-Builder and Owner shall meet and confer about
the Submission, with Design-Builder identifying during the meeting, among other things, the
evolution of the design and significant changes or deviations from the Contract Documents, or
previously submitted Design Submissions, if any. Minutes of the meeting will be maintained by
Design-Builder and provided to all attendees for review. Following the design review meeting,
Owner shall have the opportunity to review the Design Submission and, within three (3), weeks
share comments with Design-Builder, for incorporation into the design, and to achieve mutual
agreement on the design by Owner and Design-Builder.
2.4.2 As necessary for the timely completion of the work, Design-Builder shall submit
Construction Documents describing the requirements for construction of the Work, and reflecting
a design which has been mutually agreed upon by Owner and Design-Builder. The parties shall
have design review meetings to discuss the Construction Documents consistent with Article 2.4.1
above. Following the design review meetings Owner shall have the opportunity to review the
Construction Documents and, within three (3) weeks, share comments with Design-Builder for
incorporation into the Construction Documents, and to achieve mutual agreement on the
Construction Documents by Owner and Design-Builder. Upon approval of the GMP per Section
2.8, Design-Builder shall proceed with construction in accordance with the current CPM Schedule,
based on the final Construction Documents. Design-Builder shall provide Owner with AutoCAD,
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PDF, and/or word processing electronic files compatible with Owner’s software of these
documents, and any subsequent updates, as outlined in “Exhibit B - Scope of Services”.
2.4.3 Owner’s review of Design-Builder’s Design Submissions is for the purpose of mutually
establishing a conformed set of Construction Documents that is compatible with the Work.
Owner’s review of any Design Submission or the Construction Documents shall not be deemed to
transfer any design or design-related liability or responsibility from Design-Builder to Owner, nor
to waive any of Owner’s rights.
2.4.4 Because this is a design-build project, Design-Builder may prepare and submit Design
Submissions and Construction Documents piecemeal and in such sequence as shall assure the
timely completion of the project.
2.5
Legal Requirements
2.5.1 Design-Builder shall perform all Work in accordance with all applicable Legal
Requirements and shall provide all notices applicable to the Work.
2.5.2 The Guaranteed Maximum Price or Contract Time(s) of performance or both shall be
adjusted to compensate Design-Builder for any unforeseeable changes in the Legal Requirements
affecting the performance of the Work, including any revisions Design-Builder is required to
make following Owner’s approval of Design Submission.
2.6
Government Approvals and Permits
2.6.1 Unless otherwise provided in the Contract Documents, Design-Builder shall obtain and
pay for all necessary permits, approvals, licenses, government charges and inspection fees required
for the prosecution of the Work by any government or quasi-government entity having jurisdiction
over the Project.
2.7
Design-Builder’s Construction Phase Services
2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or
a separate contractor, Design-Builder shall provide through itself or its Subcontractors all
necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery,
temporary utilities, and other temporary facilities to permit Design-Builder to complete all
construction of the Project consistent with the Contract Documents.
2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite
expertise, skill, quality and competence to satisfy the requirements of the Contract Documents.
Design-Builder shall at all times exercise complete and exclusive control over the means, methods,
sequences and techniques of construction.
2.7.3 Subcontractor Selection. Regarding the potential employment of Subcontractors on this
project, D-B is aware of the requirements of A.R.S. Title 34. Upon Owner’s request, D-B will
provide an attestation of compliance with Title 34.
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2.7.3.1 Pre-Construction Phase. Reserved.
2.7.3.2 Construction Phase. Reserved.
2.7.3.3 Reserved.
2.7.3.4 As evidence of compliance with this Article Design-Builder shall furnish to the
Owner, within 30 days after award of the subcontract, one fully executed copy of
each subcontract for this Project. Each copy shall consist of the subcontract
agreement and all special or supplementary conditions applicable to the subcontract.
2.7.4 The Design-Builder shall provide the Owner with requirements and assignment of
responsibilities for safety precautions and programs as required for the execution of the Work,
temporary Project facilities and for equipment, materials and services for common use of
Subcontractors and verify that all such information is included in the Construction Documents.
2.7.5 Design-Builder Self-Performance.
2.7.5.1 The Design-Builder must disclose to the Owner, prior to initiation of Construction
Phase services, any portions of the Work that the Design-Builder desires to self-perform, and must
secure written authorization from the Owner to consider self-performance, which authorization
will not be unreasonably withheld.
2.7.5.2 Reserved. If the Owner authorizes the Design-Builder to consider self-performance
of any portion of the construction work, the following procedures will be followed. The Design-
Builder must submit its qualifications to do the listed portion(s) of the construction work to the
Owner and if the Owner is satisfied with Design-Builder’s qualifications as to that portion of the
construction work, the Owner will designate the Design-Builder as a pre-qualified Subcontractor
for that portion of the construction work. A bid package for each portion of the construction work
as to which Design-Builder is a pre-qualified Subcontractor will be prepared in the same manner
and content as bid packages for Subcontractors in other trades. Design-Builder will submit a
proposed price (the “Price Submission”) for each of these portions of the construction work. This
proposed price shall include labor rates, and certify that sub-sub trades and materials will be bid
with a minimum of three pre-qualified bidders. Overtime for self-performed work shall be
approved by Owner in writing in advance.
2.7.5.3 At the election of the Parties, and as may be necessary to evaluate the Design-
Builder’s Price Submission on self-performed work, Owner may do any or all of the following at
the Owner’s discretion: (i) engage an estimator selected by Owner to prepare an independent
estimate of this portion of the construction work: (ii) engage other consultants to do a construction
market study to confirm construction market impacts to the cost of this portion of the construction
work, or (iii) take other action to evaluate the Design-Builder’s Price Submission. In any event,
Design-Builder is responsible to establish to the Owner’s satisfaction that the Design-Builder’s
Price Submission is reasonable and appropriate. If the Owner is satisfied that the Design-Builder
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Price Submission is reasonable and appropriate, the Owner will advise the Design-Builder that the
Design-Builder is selected as Subcontractor for the respective portion of the construction work.
2.7.5.4 At the election of the Parties, and as may be necessary, if, at the conclusion of the
review of the Design-Builder’s proposed price, the Owner is not satisfied that the Design-Builder’s
Price Submission is reasonable and appropriate, the Owner will so advise the Design-Builder and
the Design-Builder will proceed in the following manner: There will be a normal Subcontractor
bid competition for selection of the Subcontractor to perform this portion of the construction work,
in accordance with the procedures in Article 2.7.3.2, except that, notwithstanding any other
provision of the Design-Builder Design Phase Services Contract Documents to the contrary, (i)
the Design-Builder’s Price Submission will be the Design-Builder’s bid for that portion of the
work in the Subcontractor bidding process; (ii) the Design-Builder must obtain bids for that portion
of the construction work from a minimum of two other pre-qualified Subcontractors, (iii) the
Subcontractor bids for that portion of the construction work must be delivered to Owner rather
than the Design-Builder, and (iv) the Owner will decide which Subcontractor bid to accept, in
accordance with Article 2.7.3.2.
2.7.6 All required construction subcontractors that are not listed as part of the Design-Build
Team in the RFQ submittals, shall be contracted with by Design-Builder only after submission to
and approval by Owner of Design-Builder’s selected subcontractor.
2.7.7 Design-Builder assumes responsibility for its Subcontractor’s successful performance of
their construction activities and any acts and omissions in connection with the performance of their
work. Nothing in the Contract Documents is intended to create any legal or contractual relationship
between Owner and a Subcontractor (of any tier). In addition, nothing in the Contract Documents
shall be intended to, or deemed to create any third-party beneficiary rights.
2.7.8 Design-Builder is responsible for coordinating the activities of all Subcontractors. If
Owner is performing other work with separate Contractors at the Project with separate contractors
under Owner’s control, Design-Builder agrees to cooperate and coordinate its Work with the work
of Owner’s separate contractors so that the Project can be completed in an orderly, efficient and
coordinated manner reasonably free of significant disruption to any party.
2.7.9 Design-Builder shall keep the Site free from debris, trash and construction wastes to permit
Design-Builder to perform its construction services efficiently, safely, and so as not to interfere
with the use of any adjacent land areas, including the reasonable aesthetic appearance of the jobsite
and all storage/staging areas. Upon Substantial Completion, or if required for Beneficial
Occupancy of the Work, or a portion of the Work, Design-Builder shall remove all debris,
materials, wastes, equipment, machinery and tools from the Project to permit Owner to occupy the
Project or a portion of the Project for the use in which it is intended.
2.7.10 Any changes affecting the previously approved Construction, shall receive prior written
approval of the Owner.
2.7.11 Design-Builder shall deliver to the Owner, at the completion of the construction of the
project, the Design Professional Project Closeout Phase Deliverables described in “Exhibit B -
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Scope of Services”, and the Contractor Closeout Deliverables described in “Exhibit B - Scope of
Services”.
2.8
Budgeting and Guaranteed Maximum Price
2.8.1 The Design-Builder shall provide the Design and Pre-Construction Phase Services for the
Design and Pre-Construction Phase Fee identified in the Agreement. That fee will be earned based
upon the amount of Design Phase Work completed. That fee shall be billed and payable monthly
as a percentage of completion of Design Phase Services. The Construction Phase Services of
Design-Builder will be provided based upon an Open Book Cost of the Work, plus the separate
Construction General Conditions and Construction Phase Fee for Design-Builder identified in the
Agreement, which together comprise the GMP as set forth in Article 2.8.2 below.
2.8.2 As provided for in Article 1.3 of the Agreement and when the design has sufficiently
progressed, the Design-Builder shall propose a GMP for the construction that is to be based on the
Cost of the Work. The Design-Builder shall attach to the GMP a list of the Drawings and
Specifications used by the Design-Builder in preparing and setting the GMP and also a “Statement
of All Clarifications and Assumptions” that the Design-Builder used to supplement the information
contained in the Drawings and Specifications Design-Builder has listed. The “Statement of All
Clarifications and Assumptions” may, at the discretion of Design-Builder, be shown in the form
of Drawings or be in narrative form or a combination of both, but must in any event be complete
and detailed.
2.8.3 The Owner will, at its sole discretion, have the option to accept the GMP submitted by
Design-Builder, request that Design-Builder submit another GMP, or reject the GMP and
terminate all contracts and agreements with the Design-Builder. In the event of such a termination
the Design-Builder shall receive payment for services it has provided to date and other reasonable
termination costs approved by Owner. In this situation, there shall be no amounts paid for any lost
profits, lost opportunity or other similar costs.
2.8.4 Once accepted by the Owner, the GMP may be revised only by an approved amendment
or change order.
2.8.5 For any Contingency within the GMP, the criteria for the development of that Contingency
must be acceptable to the Owner. Thereafter, the Design-Builder must inform the Owner of any
intended usage of the Contingency, with supporting itemized schedule and pricing documentation,
to maintain complete records and confirm its appropriate use for the Project.
2.9
Design-Builder’s Responsibility for Project Safety
2.9.1 Design-Builder recognizes the importance of performing its Work in a safe manner so as
to prevent damage, injury or loss to (i) all individuals at or in the vicinity of the Project, whether
working or visiting the Project; (ii) all Work at or relating to the Project, including materials and
equipment incorporated into the Project or stored on or off site; and (iii) all other property at the
Project or adjacent thereto. Design-Builder assumes responsibility for implementing and
monitoring all safety precautions and programs related to the performance of the Work. Design-
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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Builder shall, prior to commencing construction, designate a Safety Manager with the necessary
qualifications and experience to supervise the implementation and monitoring of all safety
precautions and programs related to the Work. The Safety Manager shall make routine daily
inspections of the Project site, and shall hold weekly safety meetings with Design-Builder’s
personnel and its Subcontractors.
2.9.2 Design-Builder and its Subcontractors shall comply with all Legal Requirements relating
to safety, as well as any Owner specific safety requirements set forth in the Contract Documents,
which do not violate any applicable Legal Requirements. Design-Builder will immediately report,
in writing, any injury, loss, damage or accident to Owner’s Representative and all government or
quasi-government authorities having jurisdiction over matters involving the Project or the Work.
2.9.3 Design-Builder’s responsibility for safety under Article 2.9 is not intended to in any way
relieve Design-Builder’s Subcontractors (of any tier) from applicable obligations and
responsibilities for complying with all Legal Requirements, including those related to health and
safety matters, and taking all necessary measures to implement and monitor all safety precautions
and programs to guard against injury, losses, damages or accidents resulting from their
performance of the Work.
2.10
Design-Builder’s Warranty
2.10.1 Design-Builder warrants to Owner that the construction, including all materials and
equipment furnished as part of the construction, shall be new unless otherwise specified in the
Contract Documents, of good quality, in conformance with the Contract Documents and free of
defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects
caused by abuse, alterations, or unreasonable failure to maintain the Work by persons other than
Design-Builder or others under Design-Builder’s control. Nothing in this warranty is intended to
limit any manufacturer’s warranty which provides Owner with greater warranty rights than set
forth in this Article 2.10 or the Contract Documents. Design-Builder will provide Owner with all
manufacturer’s warranties upon Substantial Completion of each Phase of the Project. Design-
Builder shall provide Owner a two (2) year warranty that will commence for all portions of the
Project upon Substantial Completion of each portion of the Work, as determined by the Owner
under the Contract requirements. In addition, all statutory warranties related to latent defects will
remain in force and are not limited by this provision.
2.11
Correction of Defective Work
2.11.1 Design-Builder agrees to promptly correct any Work that is found not to be in conformance
with the Contract Documents. This obligation shall continue for a period of two (2) years from the
date of Substantial Completion of each portion of the Work as determined by Contract.
2.11.2 Design-Builder, upon receipt of written notice from Owner that the Work is not in
conformance with the Contract Documents, shall, within seven (7) days (except in the case of an
emergency which will require immediate response) commence correction of such nonconforming
Work, including the correction, removal or replacement of the nonconforming Work and any
damage caused to any other parts of the Work affected by the nonconforming Work. In the event
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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Design-Builder fails to commence the necessary steps within seven (7) days, Owner, in addition
to any other remedies provided under the Contract Documents, may at the end of the seven (7) day
period provide Design-Builder with notice that (i) it will commence to correct such nonconforming
Work with its own forces; and (ii) Design-Builder shall be responsible for all costs and expenses
that Owner incurs in remedying any Work not in conformance with the Contract Documents,
including any and all design professional fees incurred. Owner will notify Design-Builder if its
intent to make such corrections at or before the commencement of the corrective work.
2.11.3 The two-year period referenced in Article 2.11.1 applies only to the Design-Builder’s
obligation to correct Work not in conformance with the Contract Documents, and is not intended
to constitute a period of limitations with respect to any other rights or remedies Owner may have
with respect to Design-Builder’s other obligations under the Contract Documents. Design-Builder
acknowledges that, for purposes of statues of limitations, Owner is an instrumentality of the State
of Arizona, acting in its sovereign capacity.
ARTICLE 3
OWNER’S SERVICES AND RESPONSIBILITIES
3.1
Owner shall, throughout the performance of the Work, cooperate with Design-Builder and
perform its responsibilities, obligations and services in a timely manner so as not to delay or
interfere with Design-Builder’s performance of its obligations under the Contract Documents.
3.2
Owner’s Representative shall be responsible for processing Owner-supplied information
and approvals or rejections in a timely manner to permit Design-Builder to fulfill its obligations
under the Contract Documents. Owner’s Representative shall also provide Design-Builder with
reasonably prompt notice if it observes any failure on the part of Design-Builder to fulfill its
contractual obligations, including errors, omissions or defects in the performance of its Work.
3.3
Owner shall provide reviews and approvals or rejections of Design Submissions and
Construction Documents within three (3) weeks upon receipt of the documents as required in this
Contract.
3.4
Owner is responsible for all work performed at the Project by separate contractors under
its control. Owner shall contractually require its separate contractors to cooperate with, and
coordinate their activities so as not to unreasonably interfere with, Design-Builder’s ability to
complete its Work in a timely manner and consistent with the Contract Documents.
ARTICLE 4
HAZARDOUS CONDITIONS AND UNCONTEMPLATED
PROJECT SITE CONDITIONS
4.1
Hazardous Conditions
4.1.1 It is the sole responsibility of the Design-Builder, as part of the agreed upon GMP, to
properly remove and dispose of any Hazardous Materials in the Project identified as such in the
Contract Documents by the Owner. Design-Builder, upon encountering any Hazardous Materials
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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not identified in the Contract Documents, shall stop Work immediately in the affected area and
notify Owner and, if required by any Legal Requirements, all governmental or quasi-governmental
entities with jurisdiction over the Project. Owner has responsibility to take the necessary measures
required to properly remove and dispose of Hazardous Materials not identified in the Contract
Documents as being the responsibility of the Design-Builder.
4.1.2 Design-Builder will be entitled, in accordance with the provisions of these General
Conditions, to an adjustment in the GMP or Contract Time(s) of performance, or both, to the extent
that the Design-Builder’s costs or time of performance have been adversely and materially
impacted by the presence of unforeseen or undisclosed Hazardous Materials.
4.1.3 Owner is not responsible for Hazardous Materials introduced to the Site by Design-Builder,
Subcontractors (of any tier) or anyone else for whom the Design-Builder is responsible unless
provision of such Hazardous Materials are called for in the Contract Documents.
4.1.4 Design-Builder agrees to indemnify, defend and hold harmless Owner and others under
Owner’s control, and the officers, directors, employees and agents of each of them, from and
against all claims, losses, liabilities, costs and expenses, including but not limited to attorney’s
fees and expenses, arising out of or resulting from Design-Builder’s importation, improper
handling, storage, abatement, removal or disposal of any Hazardous Materials by Design-Builder.
4.1.5 Releases of Hazardous Substances. Upon any release of any hazardous substance in
connection with the Work, whether relating to a pre-existing condition or acts or omissions of
Design-Builder, Design-Builder shall take immediate action reasonably necessary to contain the
release and if the hazardous material release is not a Design-Builder release, Owner will pay
Design-Builder the reasonable costs incurred by Design-Builder in taking such containment action.
Owner may elect to have Design-Builder control and carry out any containment, clean-up, removal
and remediation activity needed, provided that if the release is not a Design-Builder release, Owner
will be responsible to pay Design-Builder for such Design-Builder containment activities in
accordance with Article 9.4 of these General Conditions, including allowance of additional
Contract Time thereunder.
4.2
Uncontemplated Project Site Conditions
4.2.1 If Design-Builder encounters, during the performance of its Work, concealed or latent
physical conditions or subsurface conditions at the Project which (i) materially differ from the
conditions indicated in the Contract Documents; or (ii) are of an unusual nature which differ
materially from the conditions ordinarily encountered and generally recognized as inherent in the
Work provided hereunder, Design-Builder shall immediately provide written notice to Owner.
Design-Builder shall not disturb or modify such conditions without Owner’s prior written consent.
Owner shall promptly investigate Design-Builder’s claim of an un-contemplated site condition.
4.2.2 If the conditions encountered by Design-Builder in Article 4.2.1 are determined to be
uncontemplated project site conditions, Design-Builder will be entitled, in accordance with the
provisions of these General Conditions, to an adjustment in its Guaranteed Maximum Price or
Contract Time(s) of performance or both to the extent that Design-Builder’s cost or time of
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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performance have been adversely and materially impacted by the un-contemplated conditions.
Adjustments to Guaranteed Maximum Price will be for the actual direct cost impact to address un-
contemplated conditions. Extensions of Contract Time(s) will be considered only when based upon
submission of an updated CPM Schedule showing an actual unavoidable delay to the Project
Critical Path.
4.2.3 In no event shall the Guaranteed Maximum Price be adjusted for conditions that could or
should have been observed or determined by the Design-Builder during RFQ Process.
ARTICLE 5
INSURANCE AND BONDS
5.1
Design-Builder’s Bond Requirements
5.1.1 The Design-Builder, after acceptance of the GMP by the Owner and prior to the start of
any Construction Phase Services by the Design-Builder, shall furnish to the Owner performance
and payment bonds, satisfactory in form to the Owner each in a penal sum equal to one hundred
percent (100%) of the GMP. These surety bonds in the form attached hereto as Attachment “1” to
these General Conditions are not to be expressly limited as to time in which action may be
instituted against the surety company. The bonds shall be furnished on Owner’s forms and shall
be executed by a surety company authorized to do business in the State of Arizona and shall strictly
comply with the provisions of Arizona Revised Statutes, Title 34, which shall control in the event
of any conflict of the Bonds, or either of them with the requirements of these General Conditions.
Individual sureties and default type insurance will not be accepted by Owner as a substitute for the
requisite Design-Builder performance and payment bonds.
5.1.2 The Owner may require each proposed Subcontractor whose initial subcontract amount
will be $100,000 or more to furnish a performance bond on Owner’s form or on a form approved
by Owner, which provides equal or better coverage, for the full amount of its subcontract. This
bond shall be obtained by the Subcontractor as a separate entity and the cost shall be included in
the Subcontractor’s bid to the Design-Builder. Alternatively, in place of Subcontractor
performance bonds, if approved in advance by the Owner, the Design-Builder may provide
Subcontractor default protection that is equivalent or better than bonds provided by the
Subcontractors. The cost of such bonds or default protection shall be included in the GMP.
5.2
Design-Builder’s Insurance Requirements
5.2.1 The Design-Builder shall not commence any Work until it obtains all required insurance
and bonds and furnishes satisfactory proof thereof to the Owner. The Design-Builder shall not
permit Subcontractors to commence Work until insurance and bond requirements have been
complied with by Subcontractor.
5.2.2 Insurance coverage assuring the adequacy of the Design-Builder’s performance and
warranty obligations shall be maintained for the full warranty period specified in Article 2.9.1 and
any specific guarantee or warranty available by law.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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5.3
Minimum Scope and Limits of Insurance
5.3.1 Without limiting any liabilities or any other obligations of the Design-Builder, the Design-
Builder shall provide and maintain, and cause its Subcontractors to provide and maintain,
insurance coverage in forms and with duly licensed or approved non-admitted insurers in the state
of Arizona and rated at least A-VII in the current A.M. Best Company ratings. The Owner in no
way warrants that the above-required minimum insurer rating or the following minimum coverages
are sufficient to protect the Design-Builder or any Subcontractor from all insured or insurable risks
or from potential insurer insolvency.
5.3.1.1 The Design-Builder shall cause its subcontractors engaged in the performance of
services under this Agreement to provide and maintain appropriate types and amounts of insurance
coverage and limits of liability, as determined by Design-Builder and agreed to by Owner,
commensurate to the type of work to be performed and exposure to risk. Subcontractor coverage
shall be maintained through Final Completion and additionally provided whenever performing
services at the project site during the full warranty period. Design-Builder shall provide
certification with each payment application that its subcontractors comply with this provision.
5.3.2 Worker's Compensation Insurance. Design-Builder shall procure and maintain worker's
compensation insurance to cover obligations imposed by federal and state statutes having
jurisdiction of the Design-Builder, its employees, or both, engaged in the performance of services
under this Agreement. Design-Builder shall maintain coverage through Final Completion for all
employees engaged in the performance of services under this Agreement, and shall maintain
coverage through the full warranty period specified herein for all employees that perform services
at the Project Site after Final Completion, and during the full warranty period.
Worker’s Compensation
Employer’s Liability
Statutory
Each Accident
$1,000,000
Disease – Each Employee
$1,000,000
Disease – Policy Limit
$1,000,000
The policy shall contain a waiver of subrogation against the City of Glendale, and its officers,
officials, agents, and employees for losses arising from work performed by or on behalf of the
Design-Builder.
This requirement shall not apply to: Separately, each contractor or Subcontractor that is exempt
under A.R.S. 23-901, and when such contractor or Subcontractor executes the appropriate waiver
(Sole Proprietor/Independent Contractor) form.
5.3.3 Commercial General Liability Insurance. The policy shall be an occurrence form policy
and shall include coverage for bodily injury, broad form property damage (including completed
operation), personal injury (including coverage for contractual and employee acts), and blanket
contractual products. Said policy shall contain a severability of interest provision, and shall not
contain any provision which would serve to eliminate third-party action over claims.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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General Aggregate
$2,000,000
Products – Completed Operations Aggregate
$1,000,000
Personal and Advertising Injury
$1,000,000
Blanket Contractual Liability – Written and Oral
$1,000,000
Fire Legal Liability
$
50,000
Each Occurrence
$1,000,000
Design-Builder shall maintain coverage through Final Completion for Design-Builder and all
Subcontractors engaged in the performance of services under this Agreement. Design-Builder shall
maintain coverage through the full warranty period specified herein for Design-Builder and all
Subcontractors that perform services at the project site after Final Completion, during the full
warranty period.
The policy shall be endorsed to include the following additional insured language: “The City of
Glendale, Arizona shall be named as additional insured with respect to liability arising out of the
activities performed by or on behalf of the Design-Builder".
The policy shall contain a waiver of subrogation against the City of Glendale, Arizona for losses
arising from work performed by or on behalf of the Design-Builder.
5.3.4 Business Automobile Liability Insurance. Design-Builder shall procure and maintain
commercial/business automobile liability insurance with a minimum, combined single limit for
bodily injury and property damage of not less than $1,000,000.00 each accident with respect to the
Design-Builder’s owned, hired, or non-owned vehicles assigned to or used in performance of the
services.
If Hazardous Materials or wastes are to be transported, the Commercial Automobile Liability
insurance shall be endorsed with the MCS-90 endorsement in accordance with applicable legal
requirements.
Design-Builder shall maintain the above-listed coverage through Final Completion for Design-
Builder and all Subcontractors engaged in the performance of services under this Agreement.
Design-Builder shall maintain the above-listed coverage through the full warranty period specified
herein for Design-Builder and all Subcontractors that perform services at the project site after Final
Completion, during the full warranty period.
The policy shall be endorsed to include the following additional insured language: “City of
Glendale, Arizona shall be named as additional insured with respect to liability arising out of the
activities performed by or on behalf of the Design-Builder".
Policy shall contain a waiver of subrogation against the City of Glendale, Arizona for losses arising
from work performed by or on behalf of the Design-Builder.
5.3.5 Builder’s Risk Insurance. Design-Builder shall provide and maintain, until written notice
of Substantial Completion from the Owner, a Builder’s All Risk Insurance Policy, which will
protect the interests of the Owner and contractors of all tiers against loss as specified below. This
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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policy shall provide coverage for 100% of the insurable value of the Work, including any Owner
furnished work. The insurance shall provide replacement cost coverage for all real and personal
property incorporated into the Work including engineered and Project specific false works and
formings, while at the Project Site, off-site, or in transit. Coverage shall be extended to include
soft costs (such as reasonable compensation for Design Professional, Owner and contractors’
services and expenses required as a result of an insured loss, excluding any Liquidated Damages),
extra expense, and expediting expense.
The insurance obtained under this Article 5.3.5 shall insure against “all risks” of direct physical
loss or damage, including, without duplication of coverage, collapse, earthquake, flood, testing
and startup, and ensuing damage as a result of faulty workmanship or material or both.
The policy shall name the City of Glendale as loss payee for all covered losses as its interests may
appear.
The policy shall be endorsed waiving the carrier’s right of recovery under subrogation against the
Owner, Design-Builder and Subcontractors, for losses covered under the Builder’s Risk policy.
The Design-Builder shall be responsible for the deductible on each loss.
The Design-Builder shall be solely responsible for any required notice to or consent of the insurer
providing the Builder’s Risk coverage regarding a) a covered event or occurrence and b)
occupancy of the Work, or a portion thereof, by the Owner.
This insurance shall not cover any contractor’s equipment, including, but not limited to machinery,
tools, equipment, or other personal property owned, rented, or used by the Design-Builder or
Subcontractors in the performance of their work on the Work, which will not become a part of the
Work to be accepted by the Owner.
5.3.6 Professional Liability Insurance.
Each Claim
$3,000,000
Annual Aggregate
$3,000,000
The policy shall cover professional misconduct or lack of ordinary skill for those positions defined
in the Scope of Work of this Contract and, except as set forth below, shall be an occurrence form
policy.
In the event that the professional liability insurance required by this Contract is written on a claims-
made basis, Design-Builder warrants that any retroactive date under the policy shall be no later
than the effective date of this Contract, and that either continuous coverage will be maintained or
an extended discovery period will be exercised for a period of two (2) years beginning at the time
of Final Completion.
Design-Builder is required to maintain unimpaired aggregate limits for this insurance. In the event
aggregate limits become impaired by claims or payments during the coverage term required by
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 23
this Contract, Design-Builder shall notify Owner within 30 days of becoming aware of such
impairment, and shall procure additional coverage to restore full aggregate limits. Any new
coverage procured must have a retroactive date no later than the date the original limits became
impaired.
Policy shall contain a waiver of subrogation against the City of Glendale, and its officers, officials,
and employees for losses arising from work performed by or on behalf of the Design-Builder.
5.3.7 Umbrella/Excess Liability Insurance. Design-Builder shall procure and maintain
Umbrella/Excess insurance covering General, Automobile and Employers Liability in excess of
scheduled primary limits, with minimum policy limits as reflected in the table below.
The Umbrella/Excess insurance policy shall include a drop-down provision. In the event of the
depletion or exhaustion of the Design-Builder’s underlying policy aggregate(s) by payment of loss,
the umbrella/excess policy shall continue for subsequent losses as follows:
In the event of such depletion, it shall continue for subsequent losses as excess insurance over the
amount of insurance remaining under the underlying insurance, subject to the policy limits.
In the event of such exhaustion it shall continue for subsequent losses as primary insurance excess
of any retention specified in the excess policies.
Total Project Budget
Required Excess/Umbrella Limits
$0 - $2 M
$0
$2M - $10M
$2M per occurrence, $2M aggregate
$10M - $25M
$5M per occurrence, $5M aggregate
$25M - $100M
$10M per occurrence, $10M aggregate
Greater than $100M
$25M per occurrence, $25M aggregate
Design-Builder shall maintain Umbrella/Excess Liability coverage through Final Completion for
Design-Builder and all Subcontractors engaged in the performance of services under this
Agreement. Design-Builder shall maintain coverage through the two-year full warranty period
specified herein for Design-Builder and all Subcontractors that perform services at the project site
after Final Completion, during the two-year full warranty period.
5.3.8 Additional Insurance Requirements. The policies required in Articles 5.3.3 (Commercial
General Liability), 5.3.4 (Business Automobile Liability), 5.3.5 (Builder’s Risk Insurance) shall
include, or be endorsed to include, the following provisions:
The City of Glendale, and its officers, officials and employees wherever additional insured status
is required. Such additional insured shall be covered to the full limits of liability purchased by the
Design-Builder, even if those limits of liability are in excess of those required by this Contract.
The Design-Builder’s insurance coverage shall be primary insurance with respect to all other
available sources, except for Worker’s Compensation insurance. Any self-insurance or other
insurance carried by the City of Glendale, its officers, or employees, if any, shall be excess and
not contributory to the insurance provided by the Design-Builder.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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Coverage provided by the Design-Builder shall not be limited to the liability assumed under the
indemnification provisions of this Contract.
5.3.9 Proof of Insurance. Design-Builder shall provide to the Owner certificates of insurance
(ACORD form or equivalent approved by the Owner) evidencing the coverages required herein as
proof that the policies providing the required coverages are in full force and effect prior to the
Design-Builder’s performing any work on the premises of the Owner. The certificates for each
insurance policy are to be signed by a person authorized by that insurer to bind coverage on its
behalf. All of the above conditions shall be clearly shown on each certificate. Such certificates
shall identify this Agreement or be an annual or periodic certificate stating that it covers any and
all projects or work performed by the Design-Builder during said period. Coverage afforded under
the policies will not be canceled, terminated or materially altered until at least thirty (30) days'
prior written notice has been provided by the Design-Builder to the Owner as evidenced by a return
receipt signed by the Owner. Certificates of insurance should be addressed as follows:
City of Glendale
Risk Management Department
5850 W. Glendale Avenue
Glendale, AZ 85301
Owner has the right to request and to receive, within ten (10) working days, certified copies of any
or all of the policies and/or endorsements required in this Agreement. Owner shall not be obligated
to review same or to advise Design-Builder of any deficiencies in such policies and endorsements,
and such receipt shall not relieve Design-Builder from, or be deemed waiver of, Owner's right to
insist on strict fulfillment of Design-Builder’s obligations under this Agreement.
5.3.10 Failure to Provide or Maintain Insurance. Failure on the part of the Design-Builder to
procure or maintain the required insurance shall constitute a material breach of this Agreement
upon which the Owner may immediately terminate this Agreement, or at its discretion procure
new or renew such insurance and pay all premiums in connection therewith, and all monies so paid
by the Owner shall be repaid by the Design-Builder to the Owner upon demand, or the Owner may
offset the cost of such premiums together with interest at the statutory legal rate against any money
due the Design-Builder from the Owner. Costs for coverages maintained by the Design-Builder in
excess of those required hereunder shall not be charged to the Owner unless otherwise agreed to
and included in the GMP.
5.3.11 Authorization to Obtain Information. The Owner may, and the Design-Builder hereby
authorizes the Owner to, request and receive directly from insurance companies utilized by the
Design-Builder in meeting the insurance requirements, any and all information reasonably
considered necessary in the sole discretion of the Owner.
5.3.12 Waiver. Design-Builder and its insurers providing the coverages required above shall and
do hereby waive all rights of recovery against the City of Glendale, Arizona and its officers and
employees.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 25
5.3.13 Claim Reporting. Any failure to comply with the claim reporting provisions of the policies
or any breach of a policy warranty shall not affect coverage afforded under the policy to protect
Owner.
5.3.14 Self-insurance. The policies specified herein may provide coverage which contains
deductibles or self-insured retentions. Such deductibles and/or self-insured retentions shall not be
applicable with respect to the coverage provided to Owner under such policies. The Design-
Builder shall be solely responsible for any deductible and/or self-insured retention, and Owner, at
its option, may require the Design-Builder to secure the payment of such deductible or self-insured
retention by a surety bond or an irrevocable and unconditional letter of credit.
5.3.15 Cancellation of Insurance. In the event any insurance coverage required in their Article 6
for the Work is canceled, reduced, or terminated, Design-Builder agrees to provide notice to Owner
and replace the insurance without any lapse of protection to Owner. If such coverage is not
replaced, or Design-Builder fails to meet any of the requirements for insurance listed above, Owner
may at its option immediately terminate the Agreement between Owner and Design-Builder, or in
Owner’s discretion, procure or renew such missing insurance coverage and pay the premiums
therefore. Any such premium amounts paid by Owner shall be repaid by Design-Builder upon
demand, or Owner if not paid, may offset the premium cost plus interest at the legal rate from
Design-Builder’s Final Payment under the Agreement. Except for the Builder’s Risk coverage, the
Owner's exercise of its option to occupy and use completed portions of the Work shall not relieve
the Design-Builder of its obligation to maintain insurance required under the insurance provisions
of this Agreement until the date of Final Completion and/or the expiration of the warranty period
as specified in 5.3.2, 5.3.3, 5.3.4, and 5.3.7 above.
5.3.16 Contractual Obligations. The stipulation of insurance coverages in this Article 5.3 or
elsewhere, shall not be construed to limit, qualify, or waive any liabilities or obligations of Design-
Builder, assumed or otherwise, under this Agreement.
5.4
Owner’s Liability Insurance
5.4.1 The Owner, at its option, may purchase and maintain such insurance as will protect it
against claims which may arise from operations under the Contract.
ARTICLE 6
PAYMENT
6.1
Guaranteed Maximum Price;
6.1.1 The Owner shall pay the Design-Builder for the Design-Builder’s performance of this
Agreement and the work, and the Design-Builder shall accept the Actual Cost of Work (as defined
herein) plus the Construction General Conditions and the Construction Phase Fee as payment in
full; provided, however, that the sum of the Actual Cost of Work plus the Construction General
Conditions and the Construction Phase Fee shall not exceed the GMP as originally fixed or as
adjusted from time to time as provided in these General Conditions.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 26
6.1.2 Reserved.
6.2
Schedule Of Values
6.2.1 Before execution of an Amendment to the Agreement authorizing a Guaranteed Maximum
Price, and commencement of Work in the Construction Phase, the Design-Builder shall submit to
the Owner, and the parties shall agree upon, a schedule of values, generally similar to the sample
format in “Exhibit F – Cost of the Work”, setting forth the various portions of the Work, and the
portions of the Guaranteed Maximum Price allocated to each portion. This schedule of values shall
be used as a basis for payment as the Work progresses. Those portions of the schedule of values
allocable to work performed by Subcontractors of the Design-Builder shall be finalized as and
when the Subcontracts are executed. “Bidding Contingency” may be used for buyout of
Subcontracts, and shall, upon approval by the Owner, be available for later use by the Design-
Builder as Construction Contingency for reallocation to other line items as provided for in these
General Conditions.
6.3
Applications For Progress Payment
6.3.1 The Design-Builder shall deliver to the Owner on the last business Day of each month, or
as mutually agreed upon a sworn application for progress payment, in a format identical to the
Schedule of Values approved under Article 6.2.1 above. Each such application for payment shall
be based on the Schedule of Values and be in an amount determined by the percentage of
completion of the Work in the month being billed. It shall show the percentage of completion of
each category of the Work performed in the billing period. The payment application shall be
accompanied (as separate documents) by (a) an updated CPM Schedule and narrative schedule
update report as provided for herein, (b) conditional lien waivers from each Subcontractor or
supplier entitled to progress payment thereunder, and (c) confirmation of updated as-built
documents. In addition, the Design-Builder shall provide the following documentation upon
specific request by Owner: a) a written accounting in a form agreed to by Design-Builder and
Owner of the Cost of Work completed, and b) a report by the Design-Builder on Subcontractor
buy-out status, contract sums and Subcontractor pay applications.
6.3.2 The Design-Builder Construction Phase Fee shall be paid monthly, or as mutually agreed
upon in accordance with the percentage of completion of the Work. The Construction General
Conditions shall be paid monthly based on percentage of work complete. The amount approved
and paid for progress achieved in the month billed for shall not constitute final acceptance of the
Work and is subject to final adjustment at the time of final acceptance and Final Payment so as to
fully comply with, and not exceed, the GMP.
6.3.3 The Owner, within seven (7) days after receipt of the Design-Builder’s application for
progress payment, and no later, will either a) advise the Design-Builder that the application is
approved or b) issue specific written findings setting forth those items in detail in the estimate of
the Work in the pay application that are not approved for payment under the contract. Any items
that are not specifically identified by the Owner as not approved, with written detailed findings,
shall be deemed approved.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 27
6.3.4 As to any items not approved for payment, the Owner may withhold an amount from the
progress payment to be made for the time period billed for a sufficient sum to pay the expenses
Owner reasonably expects to incur in correcting the deficiency set forth in the written finding
issued by the Owner.
6.4
Payment and Retainage
6.4.1 Within fourteen (14) days following the receipt of the Design-Builder’s properly submitted
and accurate payment application, and the issuance of the Owner’s written detailed findings of
items not approved, if any, the Owner shall pay to the Design-Builder the amount due on the
progress payment application. However, the payment shall be limited to 90% of the approved value
of the construction work in place and the value of materials suitably stored in accordance with
Article 6.7.1 below of these General Conditions during the month being billed, unless otherwise
agreed upon. The remaining 10% shall be retained by the Owner until the Contract is 50%
complete at which time the retainage shall be reduced to no more than 5%; provided that: (a) the
Design-Builder is making satisfactory progress on the Contract; and (b) in the Owner’s sole
judgment, there is no specific cause or claim requiring a greater amount than 5% to be retained.
Thereafter, the Owner shall pay the Design-Builder 95% of the value of the construction work and
materials on approved progress billings, unless and until it determines satisfactory progress is not
being made, at which time the 10% Retainage may be reinstated. Such 10% reinstatement would
be 10% of the total contract value of construction work in place and materials stored. The Owner’s
determination concerning the satisfactory progress of the Work for retainage adjustment purposes
shall be final.
6.4.2 Within sixty (60) calendar days after the issuance of the Certificate of Final Completion
and receipt by Owner of all other documents required from Design-Builder by the Contract
Documents, all retained amounts shall be paid to Design-Builder as part of Final Payment provided
however: a) the Final Payment shall not become due from Owner until the Design-Builder delivers
to the Owner all items set forth in Article 6.13, including full and final unconditional releases in
statutory form from all Subcontractors and major Suppliers acknowledging that they have received
payment in full; any claim filed thereafter shall be the responsibility of the Design-Builder, and b)
if any claim does remain unsatisfied after all payments are made by Owner, the Design-Builder
shall immediately upon demand refund to the Owner all monies that the latter may be compelled
to pay in discharging such unsatisfied claim including all costs, interest and attorneys’ fees.
6.4.3 Design-Builder may, in the alterative, furnish a substitute security in lieu of the 10%
retainage, provided the City of Glendale issues its written consent to this alternative.
6.5
Early Release of Subcontractor Retainage
6.5.1 If a Subcontractor has completed its portion of the Work (including all Punch list items)
pursuant to any given Subcontract, the Design-Builder may request the Owner to disburse the
Retainage allocable to such Subcontractor, after delivering to the Owner any necessary consent to
such disbursement from such Subcontractor’s surety, in a form reasonably satisfactory to the
Owner. If the Owner is reasonably satisfied that the Subcontractor’s Work has been completed in
accordance with the Contract Documents, the Owner shall disburse said Retainage to Design-
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Builder for payment to the Subcontractor, and the two-year warranty period with respect to such
Work shall commence at Final Completion of the Work.
6.6
Payment for On-Site and Off-Site Materials
6.6.1 Payment shall be made on account of materials and equipment delivered and suitably stored
at the Site for subsequent incorporation in the Work. Payment may be similarly made for materials
and equipment suitably stored off the Site, conditioned upon the Design-Builder furnishing
evidence to the Owner that (a) title to the materials and equipment will pass to the Owner upon
payment therefor; (b) the materials and equipment are adequately insured; and (c) such other
matters as the Owner may reasonably request in order to protect its interests.
6.7
Title to Construction Work
6.7.1 The Design-Builder warrants that title to all Construction Work covered by an Application
for Payment shall pass to the Owner no later than the time of payment. The Design-Builder further
warrants that upon submittal of an Application for Payment, all Construction Work for which
Applications for Payment have been previously issued and payments received from the Owner
shall, to the best of the Design-Builder’s knowledge, information and belief, be free and clear of
liens, claims, security interests or encumbrances in favor of the Design-Builder, Consultants,
Subcontractors, material suppliers, or other persons or entities making a claim by reason of having
provided labor, materials and equipment relating to the Work. Design-Builder shall provide
unconditional waivers of lien from each Subcontractor or Consultant when requested by Owner.
6.8
Withholding of Payment
6.8.1 The Owner may withhold payment on account of an Application for Payment to the extent
necessary to protect the Owner from loss because of:
6.8.1.1 Defective Work not remedied;
6.8.1.2 Claims filed by third parties, or reasonable evidence indicating the probable filing
of such claims alleging personal injury or property damage (other than to the Work itself) to the
extent not covered by insurance.
6.8.1.3 Failure of the Design-Builder to make payments of undisputed amounts to
Consultants, or Subcontractors for labor, materials or equipment;
6.8.1.4 Damage to the Owner or a Separate Contractor caused by the fault or neglect of the
Design-Builder to the extent not covered by insurance; or
6.8.1.5 Reasonable evidence that the Work will not be Substantially Completed within the
Contract Time due to Un-excusable Delay.
When the above reasons for withholding payment are removed, payment shall be made for
amounts previously withheld. Prior to any withholding pursuant to this Article, the Owner shall
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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meet with Design-Builder to discuss potential withholding, and attempt in good faith to resolve
such issue without the need for withholding.
6.9
Failure of Payment
6.9.1 If the Owner does not pay the Design-Builder within fourteen (14) Days after the date
established herein the Design-Builder may proceed as set forth in Article 11.3 below.
6.10
Substantial Completions
6.10.1 When the Design-Builder considers that the Work, or a portion thereof which the Owner
agrees to accept separately, is Substantially Complete, the Design-Builder shall prepare and submit
to the Owner a comprehensive list of Punch List items. The Design-Builder shall proceed promptly
to complete and correct Punch List items. Failure to include an item on the Punch List does not
alter the responsibility of the Design-Builder to complete all work in accordance with the Contract
Documents. Upon five (5) working days of receipt of the Punch List, the Owner and Design-
Builder will jointly make an inspection to determine whether Substantial Completion has occurred.
If it is determined by the Owner that the work or a portion thereof is Substantially Complete, the
Owner shall issue the Certificate of Substantial Completion stating the date of Substantial
Completion which shall be executed by the Owner and the Design-Builder.
6.11
Beneficial Occupancy
6.11.1 The Owner may occupy or use any completed or partially complete portion of the
Construction Work at any time, provided such Beneficial Occupancy or use is authorized by public
authorities having jurisdiction over the Construction Work. Such Beneficial Occupancy or use may
commence whether or not the portion is Substantially Complete, provided the Owner and the
Design-Builder have accepted, in writing, the responsibilities assigned to each of them for
payment, security, maintenance, heat, utilities, damage to the Construction Work and insurance,
and have agreed, in writing, concerning the period for correction of the Construction Work.
Immediately prior to such Beneficial Occupancy, the Owner and the Design-Builder shall jointly
inspect the area to be occupied in order to determine and record the condition of the Construction
Work. Unless otherwise agreed, Beneficial Occupancy or use of a portion of the Construction
Work shall not constitute acceptance of Work not complying with the requirements of the
Construction Documents and does not establish the date of Substantial Completion.
6.12
Final Completion and Final Payment
6.12.1 Completion of all outstanding Work items noted in the Substantial Completion “Punch
List” for the entire Work or portion thereof and other Contract requirements is required for Owner
to certify Final Completion. The requirements include, but are not limited to, equipment operations
training for Owner, and submission and approval by Owner of all Record and Close Out
Documents such as record drawings and specifications, operation and maintenance instructions,
maintenance agreements (if any), and extended transferable warranties.
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6.12.2 Conditions Precedent to Final Payment. Neither final payment nor any final release of
Retainage shall become due until the Design-Builder submits to the Owner:
6.12.2.1
An affidavit that payrolls, bills for materials and equipment, and all pays to
all subcontractors, and other indebtedness connected with the Work for which the Owner or the
Owner’s property might be responsible or encumbered (less amounts withheld by the Owner) have
been paid or otherwise satisfied;
6.12.2.2
A certificate evidencing that insurance required by the Contract Documents
to remain in force after final payment is currently in effect and will not be canceled or allowed to
expire until at least thirty (30) Days’ prior written notice has been given to the Owner;
6.12.2.3
Consent of Surety to final payment; and
6.12.2.4
If required by the Owner, other data establishing payment or satisfaction of
obligations, such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract Documents.
6.12.3 If after Substantial Completion of the Work, Final Completion is materially delayed
through no fault of the Design-Builder or by the issuance of additional Change Orders or Change
Directives by the Owner, the Owner may at its sole discretion, upon request of the Design-Builder,
and without terminating the Contract, make payment of the balance due for that portion of the
Work fully completed. If the remaining balance for Work not fully completed is less than the
Retainage, and if bonds have been furnished, the written consent of surety to payment of the
balance for that portion of the Work fully completed shall be submitted by the Design-Builder to
the Owner, and such payment shall be made under the terms and conditions governing final
payment, except that it shall not constitute a waiver of claims by either the Design-Builder or the
Owner.
6.12.4 Acceptance of final payment by the Design-Builder shall constitute a waiver of affirmative
claims by the Design-Builder. The making of the final payment by the Owner shall constitute a
waiver of claims by the Owner, except those arising from (a) liens, claims, security interests and
encumbrances arising out of the Work after final payment; (b) latent defects arising after final
payment; or (c) the terms of warranties required by the Contract Documents.
6.13
Allowances
6.13.1 The Design-Builder shall include in the GMP all Allowances stated in the Contract
Documents. Items covered by Allowances shall be supplied for such amounts and by such persons
or entities as the Owner may direct, but the Design-Builder shall not be required to employ persons
or entities against which the Design-Builder makes reasonable objection. Unless otherwise
provided in the Contract Documents:
a)
Materials and equipment under an Allowance shall be selected by the Owner within
a reasonable time frame as defined in the Owner approved Project CPM Schedule;
b)
Allowances shall cover the cost to the Design-Builder of materials and equipment
delivered at the Site and all required taxes, less applicable trade discounts;
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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c)
Allowances shall not include professional or construction fees, Construction General
Conditions, or bond or insurance premiums;
d)
Allowances shall cover Design-Builder’s costs for unloading and handling at the Site,
labor, installation costs and other expenses;
e)
Whenever costs are more than or less than Allowances, the GMP may be adjusted
accordingly by change order in accordance with provisions of Article 9. The amount
of the change order shall reflect the difference between actual costs and the
Allowances plus Fee on such difference in accordance with Article 9 hereof if the
actual costs are greater than the Allowances.
6.14
Contingency
6.14.1 The Design-Builder and the Owner acknowledge that the Guaranteed Maximum Price
contains a line item for a “Bidding Contingency or Construction Contingency”. On a monthly
basis, after finalization (i.e., “buyout” or subcontractor contract issuance) of a line item, the
Schedule of Values will be adjusted to reflect the actual amount. Contingencies shall not be carried
in line item amounts after finalization. The Bidding Contingency, upon approval of the Owner,
shall be for the Design-Builder’s use and shall be increased by amounts not expended on other line
item bid packages and shall decrease by additional amounts required to be expended on other line
item bid packages. Following completion of all contract execution by Subcontractors (Project
finalization), Bidding Contingency shall become Construction Contingency and Design-Builder
may use this Construction Contingency for legitimate unforeseen construction expenses, subject
to Owner’s review or approval, at Owner’s discretion.
Design-Builder shall submit detailed monthly reports to Owner indicating how the Construction
Contingency was used in the reporting period, and the status of the Construction Contingency. The
Owner has the authority to reject any use of the Construction Contingency after it has been
submitted if the Owner believes in its reasonable judgment that some or all of the amount included
in the use of the Construction Contingency is not a legitimate expense for the Project. Upon the
Owner’s rejection of a Construction Contingency use, the Design-Builder will thereupon credit the
Construction Contingency amount back to the Construction Contingency in the next subsequent
payment request. Any amounts remaining in “Bidding Contingency or Construction Contingency”
at Final Completion shall be deemed Savings and will be allocated to Owner as such. Should the
“Bidding Contingency or Construction Contingency” be exhausted prior to award of all the bid
packages, any subsequent overruns in bid package costs shall be the Design-Builder’s sole
responsibility, with no additional compensation due thereon from the Owner.
6.14.2 Contingency shall not be used for Construction General Conditions unless approved in
writing by the Owner.
6.14.3 Upon award of each bid package, the difference between the Design-Builder’s estimated
Cost of the Work contained within the bid package, exclusive of contingency, versus the actual
award cost thereof as determined by the bidding and award of the package shall be promptly
calculated. If the award cost exceeds the Design-Builder’s estimated cost in the GMP, any
necessary portion of the Bidding Contingency shall be applied, subject to Owner’s approval, to
cover any overrun and any underrun amount shall be used to increase the Bidding Contingency.
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6.14.4 Design-Builder will include an explicit requirement that change orders between Design-
Builder and the Subcontractors will be priced consistent with the requirement of Article 10 of these
General Conditions with adequate itemized change order pricing regardless of whether or not there
is a comparable change order between Design-Builder and the Owner. In addition, Design-Builder
shall retain, and make available to Owner upon request, all bid documents including requests for
proposals, requests for quotes, and bid responses from both successful and unsuccessful bidding
Subcontractors.
6.14.5 Any amounts remaining in Contingency at Final Completion shall be Savings and will be
distributed per Article 6.1.
6.15
NOT USED. RESERVED
ARTICLE 7
INDEMNIFICATION
7.1
Proprietary Rights, Patent And Copyright Infringement
7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any
claim that the Work, or any part thereof, or the operation thereof or use of the Work or any part
thereof, constitutes infringement of any proprietary rights, patent or copyright, now or hereafter
issued (“Proprietary Rights”). Owner agrees to give prompt notice in writing to Design-Builder of
any such action or proceeding and to provide authority, information and assistance in the defense
of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages
and costs, including attorney’s fees, awarded against Owner or Design-Builder in any such action
or proceeding. Design-Builder further agrees to keep Owner informed of all developments in the
defense of such actions.
7.1.2 In the event that Owner is enjoined from the operation or use of the Work, or any part
thereof in connection with any infringed Proprietary Rights, Design-Builder shall at its sole
expense take reasonable steps to procure the right or license to operate or use the Work. If Design-
Builder cannot so procure the aforesaid right within a reasonable time, Design-Builder shall then,
promptly, at Design-Builder’s option and at Design-Builder’s expense (i) modify the Work so to
avoid infringement of any patents, or copyrights; or (ii) replace said Work with Work that does
not infringe or violate any such Proprietary Rights.
7.1.3 Articles 7.1.1 and 7.1.2 above shall not be applicable to any action or proceeding based on
infringement or violation of a proprietary rights, patent or copyright (i) relating solely to a
particular process or the product of a particular manufacturer specified by Owner and such
processes or products which are something other than that which has been offered or recommended
by Design-Builder to Owner; or (ii) arising from modifications to the Work by Owner or its agents
after acceptance of the Work.
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7.1.4 In addition to the other obligations of Design-Builder under this Article 7.1, Design-
Builder will be responsible for delays and for increases in the cost of the work associated with or
arising out of any claim of infringed Proprietary Rights.
7.2
Indemnification
7.2.1 Design-Builder shall indemnify, defend, save and hold harmless the City of Glendale,
Arizona and its officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”)
from and against any and all claims, actions, liabilities, damages, losses, or expenses (including
court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter
referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage
to property caused, or alleged to be caused, by the acts or omissions of Design-Builder or any of
its owners, officers, directors, agents, employees, or Sub-consultants, arising out of performance
of the Work or this Agreement, or in connection with the Project or defects in the Work, or any
materials supplied. This indemnity includes any claim or amount arising out of or recovered under
the Workers’ Compensation Law or arising out of the failure of such Design-Builder or contractor
to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It
is agreed that Design-Builder will be responsible for primary loss investigation, defense and
judgment costs where this indemnification is applicable. In consideration of the award of this
contract, the Design-Builder agrees to waive all rights of subrogation against the City of Glendale,
Arizona and its officers, officials, agents and employees for losses arising from the work
performed by the Design-Builder.
ARTICLE 8
TIME
8.1.1 Both the Design-Builder and Owner recognize that any time limits set forth in the Contract
Documents are of the essence of this Agreement. Design-Builder agrees that, consistent with the
times set forth in Article 5 of the Agreement, it will commence performance of the Work, achieve
Substantial and Final Completion of the entire Work and achieve, any interim milestones for
Substantial and Final Completion dates.
8.1.2 If Design-Builder is delayed in the performance of its Work based upon a Critical Path
analysis of the current Owner accepted Critical Path Method (CPM) Schedule due to unforeseeable
acts, omissions, conditions, events, or circumstances beyond its control or prevention and due to
no Legal fault of its own or those for whom Design-Builder is responsible under the terms of the
Contract Documents, the time for Substantial Completion of the Work, and to the extent
applicable, any interim milestones or Substantial Completion dates for portions of the work shall
be reasonably extended by written Change Order. By way of example only, such acts, omissions,
conditions, events, and circumstances which would entitle Design-Builder to an extension of the
Contract Time(s), include acts or omissions of Owner, or anyone under Owner’s control, including
separate contractors, changes ordered in the Work by Owner, uncontemplated project site
conditions, wars, floods, labor disputes, unusual delay in transportation, and unusually adverse
weather conditions.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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8.1.3 Design-Builder shall be entitled to an appropriate adjustment of its Guaranteed Maximum
Price for extended Construction General Conditions only for mutually determined delays as
defined in 8.1.2 directly caused by the actions or inactions of the Owner.
ARTICLE 9
CHANGES TO THE CONTRACT PRICE AND TIME
9.1
Change Order
9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by
Owner and Design-Builder, stating their agreement upon all of the following:
1. The scope of the change in the Work and the reason(s) therefor;
2. The amount of the adjustment to the Guaranteed Maximum Price; and
3. The extent of the adjustment, if any, to the Contract Time(s) of performance set forth
in the Contract Document.
9.1.2 All such changes in the Work authorized by applicable Change Order shall be performed
under the applicable conditions of the Contract Documents, and Owner and Design-Builder shall
negotiate in good faith and as expeditiously as possible the appropriate adjustments, as applicable.
No Guaranteed Maximum Price adjustment on account of a Change Order shall include the
Design-Builder’s or Subcontractor’s profit, fee, home office overhead or a formula allocation of
indirect costs unless otherwise specifically allowed hereunder except as allowed by Article 9.4.3
of these General Conditions.
9.2
Change Directives
9.2.1 A Change Directive is a written order prepared and signed by Owner, directing a change
in the Work prior to agreement on adjustment in the Guaranteed Maximum Price or the Contract
Time(s) of performance or both. Upon receipt of a Change Directive, the Design-Builder shall
promptly proceed with the change in the Work and advise the Owner of the Design-Builder’s
agreement or disagreement with the proposed method of adjustment for the Guaranteed Maximum
Price or the Schedule or both.
9.2.2 Owner and Design-Builder shall negotiate, in good faith and as expeditiously as possible,
the appropriate adjustments for the change in the Work and such agreement shall be effective
immediately and recorded by preparation and execution of an appropriate Change Order.
9.3
Minor Changes in The Work
9.3.1 Design-Builder may make minor changes in the Work consistent with the intent of the
Contract Documents providing (i) such changes do not involve an adjustment in the Guaranteed
Maximum Price or Contract Time(s) of performance; (ii) such changes do not materially and
adversely affect the Work, including the design, quality, aesthetics, performance and workmanship
required by the Contract Documents; and (iii) Design-Builder promptly informs Owner, in writing,
of any such changes, obtains Owner’s written concurrence (which shall not be withheld
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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unreasonably), and records such changes on the As-Built Documents maintained by Design-
Builder.
9.4
Price Adjustment
9.4.1 After this Agreement is signed, modifications in the Guaranteed Maximum Price, the
Contract Time(s) or scope of the Work may only be made by written Change Order or Change
Directive.
9.4.2 By written Change Directive at any time, and with the consent of the Design-Builder, the
Owner may make any changes within the general scope of the Contract or issue additional
instructions; require additional or modified Work or direct deletion of Work. The Design-Builder
shall not proceed with any change involving an increase or decrease in cost or time without prior
written authorization from the Owner and shall proceed in accordance with the procedures set forth
in this Article. The Owner’s right to make changes shall not invalidate this Contract or relieve the
Design-Builder of any liability. Any requirement of notice to the Surety shall be the responsibility
of the Design-Builder. If the Design-Builder proceeds with any change involving an increase or
decrease in cost or time without written authorization as required by this paragraph, the Design-
Builder hereby waives all rights or claims Design-Builder may have as a result of the change.
9.4.3 The cost of or credit to the Owner resulting from a change in the Work shall be determined
in one or more of the following ways:
a)
By unit prices stated in the Contract Documents;
b)
By cost, as defined below, and described in Attachment “2” to these General
Conditions, properly itemized and supported by sufficient data reduced to meaningful
unit prices for each assembled component of the Work in order to facilitate
evaluation. Such costs shall be itemized by crafts as defined within the Schedule of
Values, submitted in a format approved by the Owner, and limited to items directly
allocable to the change in the Work:
1)
Cost of materials, including delivery.
2)
Cost of labor, fully-burdened, including, but not limited to, payroll taxes,
social security, old age and unemployment insurance, vacation and fringe
benefits required by agreement or routinely paid by Design-Builder, and
worker’s
or
workman’s
compensation
insurance
but
excluding
Subcontractor’s labor.
3)
Rental value of equipment and machinery shall not exceed reasonable and
customary rates for the locale of the Work.
4)
As a guideline, on a not-to-exceed (“NTE”) percentage of Direct Construction
Cost only basis, the following overhead, general conditions and fee
percentages shall be utilized, and shall be fixed as a dollar amount, unless
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 36
otherwise established in the Agreement, or otherwise mutually agreed upon
and documented in the change order description:
Subcontractor Fee (Profit):
5%
Subcontractor General Conditions, NTE:
10%
Total Subcontractor Markups, NTE:
15%
Design-Builder fee (overhead & profit), approximately or as
per Design-Builder Agreement
5%
Design-Builder General Conditions,
NTE or as per Design-Builder Agreement:
5%
Total Design-Builder Markups, NTE:
10%
5)
The Agreement may involve situations where larger amounts of Overhead and
Construction General Conditions are needed to address extenuating site-
related circumstances.
6)
Subcontractor pricing to Design-Builder, specifically as regards, and in
support of Design-Builder Change Order with Owner, shall contain, at a
minimum, same level of detail as Design-Builder provides in items 1) through
4) above in this Article 9.4.3(b).
c)
Mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to facilitate evaluations; provided that such lump sum shall not
exceed that amount calculated under (b) above.
9.4.4 Any dispute regarding the pricing methodology or cost of a change shall not relieve the
Design-Builder from proceeding with the change as directed by the Owner. The cost or credit to
the Owner shall be determined by the Owner or its Representatives on the basis of the preceding
subsection.
9.4.5 An Owner approved written Change Order shall be full and final settlement of all claims
for direct, indirect, delay, disruption, inefficiency and any other consequential costs related to
items covered or affected, as well as time extensions. Any such claim not presented by the Design-
Builder for inclusion in the Change Order is irrevocably waived.
9.4.6 In the event that Owner and the Design-Builder disagree upon whether Design-Builder is
entitled to be paid for any services required by Owner, or in the event of any other disagreements
over the scope of Work or proposed changes to the Work, Owner and Design-Builder agree to
resolve the disagreement consistent with Article 10 of these General Conditions. As part of the
negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs
to perform the disputed services in accordance with Owner’s interpretations. If the parties are
unable to agree, and Owner expects Design-Builder to perform the services in accordance with
Owner’s interpretations, Design-Builder shall proceed to perform the disputed services,
conditioned upon Owner issuing a written order to Design-Builder directing Design-Builder to
proceed and specifying Owner’s interpretation of the services that are to be performed.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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9.5
Emergencies
9.5.1 In any emergency affecting the safety of persons or property, Design-Builder shall act, at
its discretion, to prevent threatened damage, injury or loss. Any change in the Guaranteed
Maximum Price or Contract Time(s) of performance or both on account of emergency work shall
be determined as provided in this Article.
ARTICLE 10
REQUESTS FOR CONTRACTUAL ADJUSTMENTS AND DISPUTE RESOLUTION
10.1
Requests for Contractual Adjustments and Relief. If either Design-Builder or Owner
believe that the Contract Documents afford contractual rights or relief from events arising during
performance of the Work, including Change Orders, adjustments and relief for the acts or
omissions of the other party, or any other party under the control of the other party, for injury or
damage to persons or property, or for events which affect the Guaranteed Maximum Price /or
Contract Time(s), or both, the party requesting the adjustment or relief shall provide the other party
written notice of its request, if possible, prior to incurring any loss, cost or expense, but in no event
later than the times, if any, required by the specific provision(s) of the Contract documents, which
form the basis of the party’s request. In the absence of said times, such request shall, if possible,
be made prior to incurring any loss, cost, or expense, but in no event later than ten (10) calendar
days after (i) the occurrence of the event or circumstance giving rise to the request; or (ii) the party
reasonably should have recognized the event or condition given rise to the request, which ever
time is sooner. Such request shall be in writing, and include sufficient information to advise the
other party of the circumstances or events giving rise to the request, the specific contractual
adjustment or relief requested, and the basis of such request. Any relief or adjustment afforded any
party shall be set forth in a written Change Order in accordance with Articles 8 and 9 herein.
10.2
Dispute Avoidance and Resolution
10.2.1 The parties are fully committed to working with each other throughout the Project, and
agree to communicate regularly with each other at all times, including weekly on-site design and
construction status meetings, so as to avoid or minimize disputes or disagreements. Design-
Builder’s Representative along with the Design Consultant and Design-Builder’s Construction
Superintendent shall attend weekly status meetings with the Owner’s Representative. Design-
Build Representative shall take minutes outlining the issues discussed, action responsibility, due
dates and resolution and distribute them within 48 hours of each meeting. To the extent disputes
or disagreements arise during the Project, both Design-Builder and Owner commit to resolving
such disputes in an amicable, professional and expeditious manner so as to avoid unnecessary
losses, delays and disruptions to the Work. In the first instance, Design-Builder and Owner will
attempt to resolve disputes and disagreements at the field level through discussions between
Design-Builder’s Representative and Owner’s Representative.
10.2.2 In the event the dispute or disagreement cannot be resolved through Design-Builder’s
Representative and Owner’s Representative, the Design-Builder’s Senior Representative and
Owner’s Senior Representative shall meet within 48 hours to attempt to resolve the dispute or
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
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disagreement. The parties agree that prior to any meetings between the Senior Representatives,
they will exchange with each other any relevant information that will assist the parties in
resolving their dispute or disagreement. If the Senior Representatives after meeting in good faith
determine that the dispute or disagreement cannot be resolved on terms satisfactory to both
parties, the parties agree to submit the dispute or disagreement to modified mediation.
10.2.3 Judicial Process
10.2.4 Design-Builder and Owner agree that all other parties involved in any dispute or
disagreement can be made parties to the litigation, and to this end, both Design-Builder and
Owner will include appropriate provisions in all contracts they execute with other parties in
connection with this Project requiring attendance and participation in any such proceeding.
10.2.5 Subject to other provisions in the Contract Documents, Design-Builder shall continue to
perform the Work, and Owner shall continue to satisfy its payment obligations to Design-Builder
under the Contract Documents pending the final resolution of any dispute or disagreement
between Design-Builder and Owner.
10.3 RESERVED.
ARTICLE 11
STOP WORK AND TERMINATION FOR CAUSE
11.1
Owner’s Right To Stop Work
11.1.1 Owner may with cause, order Design-Builder in writing to stop and suspend its Work.
11.1.2 Design-Builder may seek an adjustment of the Guaranteed Maximum Price or Contract
Time(s) of performance or both under Article 9 of the General Conditions to the extent that its
Work has been adversely impacted by any suspension or stoppage of work by Owner, unless
actions or inactions of the Design-Builder are the cause of the Owner stopping the Work.
11.2
Owner’s Right To Perform And Terminate For Cause.
11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers; or
the materials required by the Contract Documents or both; (ii) comply with applicable Legal
Requirements; (iii) pay, without cause, its Design Consultants and Subcontractors; (iv) prosecute
the Work with promptness and diligence to ensure that the Work is completed by the Contract
Time(s) as may be adjusted; or (v) otherwise perform the Work and its obligations consistent with
the Contract Documents so as to deprive Owner of the benefits afforded under the Contract
Documents, Owner shall have the right, in addition to any other rights and remedies provided in
the Contract Documents or by law, after seven (7) days written notice to Design-Builder and
Design-Builder’s failure to commence to cure the default within said time, to (i) perform and
furnish through itself or through others any such labor, materials, or Work, and to deduct the cost
thereof from any monies due or to become due to Design-Builder under the Contract Documents;
or (ii) terminate the employment of Design-Builder for all or any portion of the Work, enter upon
the premises and take possession, for the purpose of completing the Work, of all materials,
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 39
equipment scaffolds, tools, appliances, and other items thereon, all of which Design-Builder
hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or
persons to complete the Work and provide all of the required labor, services, materials, equipment
and other items; or (iii) both. In the event of such termination, Design-Builder shall only be entitled
to be paid for all Work performed prior to its default.
11.2.2 Reserved.
11.2.3 The parties agree that if Design-Builder institutes or has instituted against it a case under
the United States Bankruptcy Code, such event may impair or frustrate Design-Builder’s
performance of its obligations under the Contract Documents. Accordingly, should such event
occur, Owner shall be entitled to request Design-Builder, its trustee or other successor, to provide
adequate assurance of future performance. If Design-Builder fails to comply with such request
within ten (10) days after receiving notice of the request, Owner, in addition to any other rights
and remedies provided by the Contract Documents or by law, shall be entitled to terminate the
Agreement. Owner shall be entitled to perform and furnish through itself or through others any
such labor, materials or equipment necessary for the completion of the Work and necessary to
maintain the Contract Time(s) of performance, and to deduct the costs from any monies due or to
become due Design-Builder under the Agreement pending receipt of adequate assurances of
performance and actual performance in accordance herewith. In the event of such bankruptcy
proceedings, the Contract Document shall terminate if Design-Builder rejects the Agreement or if
there has been a default under the Agreement, and Design-Builder is unable to give adequate
assurances that it will perform as provided in the Agreement or otherwise is unable to comply with
the requirements for assuming the Agreement under the applicable provisions of the Bankruptcy
Code.
11.3
Design-Builder’s Right to Stop Work and Terminate for Cause
11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract
Documents or by law, either stop work or terminate the Agreement for cause upon Owners failure
to pay an amount in excess of $100,000 dollars properly due under Design-Builders Application
for Payment in accordance with the Parties’ payment agreement.
11.3.2 Should the events set forth in Article 11.3.1 occur, Design-Builder shall provide Owner
with written notice indicating that such condition set forth in Article 11.3.1 has occurred, and it is
Design-Builder’s intention to stop work or terminate the Agreement if said event is not cured
within seven (7) days from Owner’s receipt of Design-Builder’s notice, unless the alleged cause
of termination is cured. In the event that Design-Builder elects to stop work, it may later indicate
its intention to terminate the Agreement by providing Owner with written notice that Design-
Builder will terminate the Agreement within seven (7) days from receipt of Design-Builder’s
notice; unless the alleged cause of termination is cured.
11.3.3 In the event Design-Builder elects to stop Work under Article 11.3.2, Design-Builder shall
be entitled to make a claim for adjustment to the Guaranteed Maximum Price and Contract Time(s)
of performance to the extent it has been adversely impacted by the stoppage of Work. Owner’s
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 40
right to use the Contract Documents in the event Design-Builder terminates the Agreement will be
governed by Article 4.2 of the Standard Form Agreement.
11.4
If the Contract is terminated for any reason, Design-Builder’s agreements with its Design
Consultants and Subcontractors shall, at Owner’s option and without further action by Design-
Builder, be assigned to Owner; provided, however, that Owner shall have no liability for any
preexisting acts, omissions or defaults by Design-Builder under such agreements and the sole
recourse of the Design Consultants and Subcontractors shall be against Design-Builder.
ARTICLE 12
MISCELLANEOUS
12.1
Assignment Prohibited. Neither Design-Builder nor Owner may, without the written
consent of the other, assign, transfer, or sublet any portion or part of the Work or the obligations
required by a Party under the Contract Documents.
12.2
Successorship. The provisions of these General Conditions and the other Contract
Documents shall be binding upon the Parties, their employees, agents, heirs, successors and
assigns.
12.3
Governing Law. Interpretation of the Contract Documents and any and all disputes arising
under or in connection with the Project, Work and Contract Documents shall be governed by
Arizona Law. Any lawsuit or action arising out of, relating to or pertaining to this Agreement shall
be brought in the Arizona Superior Court in the County in which the Owner is located, and only
after all contractual and administrative procedures have been exhausted. By submitting a proposal,
Design-Builder agrees to be bound by the City of Glendale’s Procurement Code, the provisions of
Title 34 of the Arizona Revised Statutes, dispute resolution procedures, and by execution of the
Agreement waives any objections to those procedures.
12.4
Severability. If any provision or any part of a provision of the Contract Documents, or any
legal authority mentioned herein, shall be finally determined to be superseded, invalid, illegal, or
otherwise unenforceable pursuant to applicable laws by any authority having jurisdiction, such
determination shall not impair or otherwise affect the validity, legality, or enforceability of the
remaining provision or parts of the provision of the Contract Documents, which shall remain in
full force and effect, to the fullest extent permitted by law, as if the unenforceable provision or part
were deleted.
12.5
No Waiver. Except as otherwise provided herein, the failure of either Design-Builder or
Owner to insist, in any one or more instances, on the performance or timely performance of any
of the obligations required by the Contract Documents shall not be construed as a waiver or
relinquishment of such obligation or right with respect to any other performance or obligation.
12.6
Headings. The headings used in the General Conditions or used in any other Contract
Document are for ease of reference only and shall not in any way be construed to limit or alter the
meaning of any provision.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 41
12.7
Notice. Whenever the Contract Documents require that notice be provided to the other
party, notice will be deemed to have been validly given (i) if delivered in person to the individual
intended to receive such notice; (ii) if delivered or sent by registered or certified mail, postage
prepaid to the address indicated in the Agreement; (iii) if transmitted by facsimile, by the time
stated in a machine generated confirmation that notice was received at the number of the intended
recipient.
12.8
Non-Appropriation; Non-Availability of Funds. If Owner’s performance under this
Agreement or funds available for this Project and/or Work are dependent upon (i) the appropriation
or allocation of funds by the City Council of the City of Glendale, or the Arizona Legislature, and
if the City Council or the Legislature fails to appropriate or allot funds necessary for performance
of the Project and/or Work, (ii) the sale of bonds or other similar instruments, and if such bonds
or other instruments are not sold or proceeds are not available, or (iii) third party gifts, donations
or grants, and if such gifts, donations or grants are not received in whole or in part by Owner; then
Owner may provide notice of this to the Design-Builder, and either a) cancel this Agreement
without further obligation of Owner except as set forth at the end of this paragraph, or b) delay the
Project and/or Work for a period of up to six (6) months (without cost to the Owner), after which
date if no such funds are legally available for performance of this Agreement, Owner may cancel
this Agreement without further obligation of Owner, except as set forth at the end of this paragraph.
If Owner cancels the Agreement pursuant to this Article 12.8, Owner shall reimburse Design-
Builder for all services authorized and rendered prior to Owner’s delivery to Design-Builder of
notice of lack of funds pursuant to this Article, in the manner set forth in Article 2.8.3.
12.9
Conflict Of Interest
12.9.1 This Agreement is subject to the provisions of Arizona Revised Statutes §38-511 and the
City of Glendale, Arizona may, within three years after its execution, cancel this Agreement
without penalty or further obligation if any person significantly involved in negotiating, drafting,
securing or obtaining this Agreement for or, on behalf of, the City of Glendale, Arizona becomes
an employee or agent in any capacity of any other party or a consultant to any other party with
reference to the subject matter of this Agreement while the Agreement or any extension hereof is
in effect.
12.10 Compliance And Legal Worker Requirements
12.10.1 The Parties shall comply with all applicable state and federal statutes and regulations
governing equal employment opportunity, non-discrimination, and immigration. The aforesaid
provisions shall include, but not be limited to, the following: employment, upgrading, demotion
or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms
of compensation, and selection for training, including apprenticeship. Design-Builder shall post
in conspicuous places, available for employees and applicants for employment, notices to be
provided by the Owner, setting forth the provisions of this nondiscrimination clause and shall insert
this provision in all subcontracts hereunder, except subcontracts for standard commercial supplies
or raw materials.
12.10.2 Design-Builder warrants that it is in compliance with all federal immigration laws and
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 42
regulations that relate to its employees. Pursuant to Arizona Revised Statutes § 41-4401, the
Design-Builder warrants that it is in compliance with the state law requirement that employers in
Arizona verify the employment eligibility of employees, hired after December 31, 2007, through
the federal E-verify program or any successor program. Design-Builder shall be responsible for
all costs associated with compliance with such programs. The warranty requirements of this Article
shall apply to all Subcontractors, and the Design-Builder shall require each Subcontractor to
warrant compliance with the provisions of this Article. This Article is not applicable where the
Design-Builder is a governmental entity nor is the Design-Builder required to pass this provision
through to Subcontractors and sub-subcontractors who are governmental entities.
12.10.3 A breach of any of the warranties required under this Article shall be deemed a material
breach of this Agreement subject to penalties, including termination for cause.
12.10.4 In addition to other audit provisions contained in this Agreement, the Owner retains the
right to audit and inspect such documents of any Design-Builder or Subcontractor’s employees
who perform Work to ensure that the Design-Builder or Subcontractor is complying with the
warranty requirements of this Article.
12.10.5 Design-Builder shall make a good faith effort to ensure that not less than 15% of the Work
performed under this Agreement is performed by a small business as defined in A.R.S. §41-1001.
The Design-Builder shall report to the Owner the dollar value of the Work performed under this
provision. Upon Owner’s request, documentation evidencing Design-Builder’s compliance with
this provision shall be furnished in a form acceptable to Owner as a condition precedent to final
payment.
12.11 Assignment Of Overcharge Claims. The Owner and Design-Builder recognize that in
actual economic practice overcharges resulting from antitrust violations are in face borne by
Owner. Therefore, the Design-Builder hereby assigns to Owner any and all claims for such
overcharges that may vest in Design-Builder during performance of the Project and for three (3)
years after final acceptance. The Design-Builder in all subcontracts shall require all Subcontractors
to likewise assign all claims for overcharges to the Owner.
12.12 Equality. The Design-Builder and all Subcontractors shall abide by the requirements of 41
CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against
qualified individuals based on their status as protected veterans or individuals with disabilities,
and prohibit discrimination against all individuals based on their race, color, religion, sex, or
national origin. Moreover, these regulations require that covered prime contractors and
subcontractors take affirmative action to employ and advance in employment individuals without
regard to race, color, religion, sex, national origin, protected veteran status or disability.
12.13 Sexual Harassment. The Design-Builder shall comply with the Owner’s current policy
regarding sexual harassment. The Owner prohibits sexual harassment by any person on Owner’s
premises or at any Owner-affiliated functions or facilities.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 43
12.14 Modification Of Agreement. The Design-Builder shall comply with the Owner’s current
policy regarding sexual harassment. The Owner prohibits sexual harassment by any person on
Owner’s premises or at any Owner-affiliated functions or facilities.
12.15 Veteran's Preference. Design-Builder agrees to provide preference in initial
employment for U.S. veterans by:
Adding points to the raw score of a numerically scored screening instrument, or
Hiring a veteran if, at the conclusion of the search process, a veteran is one of a number
of comparably qualified candidates.
For purposes of this certification, “veteran” means: an honorably separated person (honorable or
general discharge) who served on active duty (not active duty for training) in the Armed Forces:
During any war declared by Congress;
During the period April 28, 1952 through July 1, 1955;
For more than one hundred eighty (180) consecutive calendar days, any part of which
occurred after January 31, 1955, and before October 15, 1976;
During the Gulf War period beginning August 2, 1990, and ending January 2, 1992; or
For more than one hundred eighty (180) consecutive calendar days, any part of which
occurred during the period beginning September 11, 2001, and ending on the date
prescribed by Presidential proclamation or by law as the last day of Operation Iraqi
Freedom; or
In a campaign or expedition for which a campaign medal has been authorized, such as
El Salvador, Lebanon, Granada, Panama, Southwest Asia, Somalia, and Haiti.
Medal holders and Gulf War veterans who originally enlisted after September 7, 1980, or entered
on active duty on or after October 14, 1982, without having previously completed 24 months of
continuous active duty, must have served continuously for 24 months or the full period called or
ordered to active duty. Effective on October 1, 1980, military retirees at or above the rank of major
or equivalent, are not entitled to preference unless they qualify as disabled veterans.
12.16 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.
12.17 Uyghur Forced Labor Prevention Act (UFLPA). Contractor certifies that it does not
currently, and during the term of this Agreement, will not use:
a) 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.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 44
12.18 Complete Agreement. This Agreement constitutes the complete and integrated agreement
between the Owner and the Design-Builder, and it supersedes all prior negotiations,
representations or agreements, either written or oral.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 45
ATTACHMENT 1
Performance And Payment Bond Forms
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 46
T H I S P A G E I S B L A N K
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 47
PERFORMANCE BOND
(Penalty of this bond must be 100% of the Contract Amount)
KNOW ALL MEN BY THESE PRESENTS:
That,
(hereinafter called the Principal), as Principal, and
a corporation organized and existing under the laws of the State of
, with
its principal office in the City of
(hereinafter called the Surety), as
Surety, are held and firmly bound unto the City of Glendale, (hereinafter called the Obligee),
in the amount of
Dollars
($
), for the payment whereof, the said Principal and Surety
bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract with the Obligee,
dated the
day of
, 20 , to construct and complete a certain
work described as
which contract is hereby referred to and made a part hereof as fully and to the
same extent as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
Principal shall faithfully perform and fulfill all the undertakings, covenants, terms, conditions
and agreements of said contract during the original term of said contract and any extension
thereof, with or without notice to the Surety and during the life of any guaranty required under
the contract, and shall also perform and fulfill all the undertakings, covenants, terms,
conditions, and agreements of any and all duly authorized modifications of said contract that
may hereafter be made, notice of which modifications to the Surety being hereby waived; then
the above obligation shall be void, otherwise to remain in full force and effect and Surety shall
be obligated to perform if Principal fails to perform.
The prevailing party in a suit on this bond, including any appeal thereof, shall recover as a
part of his judgment such reasonable attorneys' fees as may be fixed by a judge of the Court.
Witness our hands this
day of
, 20
.
PRINCIPAL
SEAL
SURETY
SEAL
By:
BY:
Bond Number
Agent Name & Telephone
Bonding Company & Telephone
Agent Address
Bonding Company Address
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 48
T H I S P A G E I S B L A N K
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 49
PAYMENT BOND
(Penalty of this bond must be 100% of the Contract Amount)
KNOW ALL MEN BY THESE PRESENTS:
That,
(hereinafter called the Principal), as Principal, and
a
corporation organized and existing under the laws of the State of
, with its
principal office in the City of
(hereinafter called the Surety), as Surety,
are held and firmly bound unto the City of Glendale, (hereinafter called the Obligee), in the
amount of
Dollars
($
), for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated
the
day of
, 20 , to construct and complete a
certain work described as
which contract is hereby referred to and made a part hereof as fully and to the same extent as if
copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
Principal shall promptly pay all monies due to all persons supplying labor or materials to him/her or
his/her subcontractors in the prosecution of the work provided for in said contract, then this
obligation shall be void, otherwise to remain in full force and effect.
The prevailing party in a suit on this bond, including any appeal thereof, shall recover as a part of his
judgment such reasonable attorneys' fees as may be fixed by a judge of the Court.
Witness our hands this
day of
, 20
.
PRINCIPAL
SEAL
SURETY
SEAL
By:
BY:
Bond Number
Agent Name & Telephone
Bonding Company & Telephone
Agent Address
Bonding Company Address
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 50
T H I S P A G E I S B L A N K
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 51
ATTACHMENT 2
Change Order Pricing Format
This is a SAMPLE DOCUMENT for illustrative purposes
Work By
Work By
Subcontractor
Design-Builder
a.
Cost of Materials
$ 2,000.00
$ 4,000.00***
b. Cost of Labor
$ 1,000.00
$ 2,000.00***
c.
Rental Value of Equipment
$
250.00
$
500.00
d. Subcontracted Work (from line k)
$ 3,828.83
e.
Subtotal
$ 3,250.00
$10,328.83
f. Construction General Conditions
(Subcontractor – assume 10% of line e &
Design-Builder assume 5.5% of line e)*
$ 325.00
$ 516.44
g. Subtotal
$ 3,575.00
h. Subcontractor Fee (assumes 5% of line g)
$
178.75
i. Subtotal
$ 3,753.75
j. Subcontractor Insurance (and bond, if
applicable, assumes 2% of line i)**
$
75.07
k. Subtotal - Subcontracted Work
$ 3,828.83
l. Direct Construction Cost
$10,845.27
m. Design-Builder (assumes 5.5% of Direct
Construction
Cost
per
Design-Builder
General Conditions’ Article 1.2.8)
$542.26
n. Contractor Bonds and Insurance (assumes
2% of Direct Construction Cost)**
$216.91
o. Subtotal
$11,604.44
p. Tax (assumes 6% of line o)
$696.27
q. Total Cost of Change Order Work
$12,300.70
*
Construction General Conditions cannot exceed 10% of the total of material, labor, and
equipment for Subcontractor work, and cannot exceed 5.5% to Design-Builder for the total of
self-performed and Subcontractor work.
** Cannot exceed 2% without documentation of additional cost.
*** Design-Builder’s self-performed work, if applicable.
Required Assumptions:
(1)
Not all Amendments or Change Orders will have work involving both Subcontractors
and the Design-Builder. In each case, only the appropriate categories of costs and
percentages will be utilized.
(2)
Deductive Amendments or Change Orders utilize the same format and method of
cost/credit determination including application of all deductive fees and markups.
Exhibit A - Design-Build Agreement General Conditions (January 15, 2023 Edition)
Page 52
Where a change involves both, added costs and credits, the net addition or credit amount
shall be determined independently for each Subcontractor and the Design-Builder prior
to the application of Fee, Bond and Insurance costs, and Tax.
(3)
Payment for Bonds will be for the Design-Builder only, as required by the Contract
Documents, unless the Owner has required bonding of Subcontractor(s) in accordance
with the General Conditions. Unless otherwise indicated in the Contract Documents,
Subcontractor liability insurance is required and such costs are allowable.
(4)
The final Change Order amounts shall be fixed dollar amounts (not percentages) and
shall be rounded to the nearest whole dollar.
(5)
Entries for lines a., b., and c. shall be supported by and developed from documentation
provided with the Amendment or Change Order cost proposal.
(6)
Entries for lines j., m., n. and p. shall be actual percentages based on and supported by
records of the applicable Subcontractor and/or Design-Builder. The percentages shown
above for these lines are assumed for purposes of illustration only.
(7)
Note that all percentages used in the sample calculation are for illustration purposes
only. Actual percentages may vary per contract requirements.
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 20
EXHIBIT B
Design-Build Scope of Services
dated
( pages)
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 21
T H I S P A G E I S B L A N K
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 1
CITY OF GLENDALE, ARIZONA
EXHIBIT B
DESIGN-BUILD AGREEMENT SCOPE OF SERVICES
January 15, 2023 Edition
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 2
Project Description
This project will involve the design and construction of a 4059 space parking structure to be located
on the southwest corner of the city property known as the Black Lot. The strucure will meet all
applicable city codes and design guidelines. The project will be located on the southwest cornerr
of the Black Lot, near Montbello and 95th Ave. The first floor of the structure will allow for a a
minimum of 720 spaces.
Facilities Program
A Facilities Program will be developed by the D-B Team as part of this scope of work. In general,
the programming process by the D-B team will provide an overview of the initial facility
programming process, as well as room-by-room descriptions of the spaces required, their critical
features, and their desired adjacencies.
Site Description
The site for the project is the area commonly referred to as the "Black Lot", the location of the
project is generally the southwest portion of the Black Lot
Guidance for the project will be provided by The City of Glendale Engineering Department.
Project-specific site development guidelines will be developed by the Owner and provided to D-
B for implementation.
Project Budget - Construction
As may be applicable, the current proposed construction budget for this project represents the
complete construction cost as expected in the form of a Guaranteed Maximum Price GMP) from
D-B, and will include a “bidding contingency” commensurate with the level of completion of the
documents and with the current nature of the local market at the time the GMP is prepared. The
construction budget reflects the complete construction cost including sub-trade costs, contractor’s
general conditions and general requirements, bidding contingency, bonds, insurance, taxes, and
construction phase fee.
The Owner has endeavored to include in the construction budget sufficient allowance to
compensate for the difficult and restricted construction site and staging areas.
In general, the construction budget (GMP) includes, but is not limited to, the following
categories:
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 3
New Construction: All demolition and new construction.
Renovation: All demolition and renovation of the existing building(s) required to facilitate
the relationship and interconnection with new construction.
Site Improvements: All typical hardscape development & site furniture, landscape &
irrigation, exterior lighting and site signage, loading and delivery, security and gated
entries, etc.
Special Fixed Equipment: Exterior building signage, infrastructure and raceways for
electronic security and access controls, fixed graphics & fixed casework displays,
audio/visual fixed equipment, fume hoods, food preparation and cooking equipment,
environmental control rooms, cage washing equipment, etc.
Site Utilities Extensions: Utility trenching and conduit, utility connections, stormwater,
sanitary sewer, relocation of any and all existing utilities, etc.
Telecommunications Infrastructure: Incoming services and building distribution
raceways and pathways (voice, data, fiber, cable), etc. Excludes handsets and portable user
devices.
Audio/Visual Infrastructure (Security): Internal distribution raceways and pathways,
and termination devices.
Specifically not included in the construction budget are the following items:
Owner’s budget management contingency
Moveable Furnishings, Fixtures, and Equipment, including but not limited to furniture and
room signage
Telecommunications “Moveable” Equipment, including but not limited to activation
charges, cabling, telephone instruments, control electronics, personal computers, etc.
Audio/Visual Systems equipment and cabling
Construction Phase Quality Assurance Testing
Commissioning Services
Moving Costs
Financing Cost
Owner’s Project Management Costs
Plan review and inspection
City of Glendale Facilities Management support
Project Schedule
[]
Schedule
Begin Design Process
N/A
Begin Construction - Phase One
XX/XX/ 2024
Substantial Completion - Phase One
XX/XX/2024
Begin Construction - Phase Two
N/A
Substantial Completion - Phase Two date
N/A
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 4
Professional Services Requirements
Investigation of Existing Conditions
D-B shall review any and all available record documents/as-built drawings at City of Glendale
offices relative to the existing site, building and adjacent utility infrastructure. Copies of pertinent
drawings, if available, will be provided by the Owner for the use of and when requested by D-B.
D-B shall review any and all available record documents/as-built drawings at the City, County,
other municipalities, utility companies, and other similar agencies relative to existing site
conditions.
D-B shall perform site visits to verify adequacy of record documents/as-built drawings for use in
site demolition and design documentation.
Site Survey (If Required)
D-B will provide professional surveying services to support design and construction phase
activities, and to meet the requirements outlined below. Provide the survey as part of the
Deliverables Packages, and as a stand-alone AutoCAD file.
1)
The City of Glendale’s goal is to allow conventional ground surveys to proceed in a way
that does not confuse the resulting measurements with State Plane values, while at the
same time allowing an easy method for drawings/surveys to be translated back into their
state plane position.
2)
Prior to the execution of any survey, the surveyor should contact the City’s Mapping
Department and all relevant State of Arizona boundary markers and existing surreys for
information on available control benchmarks, and other information that may be
necessary regarding the site.
3)
The surveyor’s drawing layer containing survey monuments should be maintained as a
layer within the architectural site plan (or whichever drawing is used as the common base
plan to which all other design drawings are referenced).
4)
The “0,0” point of any plan view plan view drawing should not be altered from that
provided in the surveyor’s map.
5)
Wherever possible, design consultants are encouraged to maintain the drawing units
provided in the surveyor’s drawing as opposed to converting into “architectural units”.
Geotechnical Report
D-B will provide professional engineering services to support design and construction phase
activities, including professional recommendations regarding local conditions, accompanied by
test borings or test pits, soil bearing values, percolation tests, air and water pollution tests, ground
corrosion and resistivity tests including necessary operations for determining subsoil, air and water
conditions, and chemical, mechanical, laboratory or other tests.
Other Design and Construction Phase Testing Services
D-B will provide all other tests required by mutual agreement between the Owner and D-B.
Meetings and Communication
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 5
D-B shall be responsible for including adequate time and travel in their fee proposal to address the
meeting requirements described in D-B Agreement for this project. This is an important project
for City of Glendale and will require an adequate amount of meetings for D-B to gain input, and
for all stakeholders to share information and maintain a clear understanding of project and the
process. The D-B team will attend the meetings with the following during the design phase:
1)
Owner’s Project Manager and User Group Representatives to determine specific
requirements, to review project progress, and to engage in an exchange of ideas for the
purpose of developing the project design.
2)
Owner’s Project Manager and User Group Representatives for coordination meetings
during all project phases, design through construction. Meetings will be held weekly
unless waived in writing by the Owner.
3)
Owner’s Project Manager and any Other City of Glendale Representatives All
communications on the project shall be via the Owner’s designated Project Manager.
Any meetings or communication with other Owner Representatives shall be coordinated
through the Owner’s Project Manager. In the event that the Owner’s Project Manager is
not able to attend a meeting between D-B and other Owner Representatives, D-B shall
provide in writing to the Owner’s Project Manager minutes of the items discussed,
actions required, or any other documents reasonably requested by the Owner, to keep the
Owner’s Project Manager informed of any discussions held.
At a minimum, the following meetings shall have D-B involvement. Responsibility to lead the
meeting or issue meeting minutes is noted. Additional meetings may be required by the Owner, or
required as a normal course of business, and shall not be additionally compensated by the Owner
to D-B unless agreed to in advance in writing by the Owner, and unless the scope of such meetings
could not have reasonably been expected given the scope of the project.
Meeting
Lead
Frequency
Issue Minutes
Kickoff
Owner
weekly
D-B
OAC - Design Phase
TBD
D-B
Design Review (PADRAC)
TBD
TBD
Community Review (CPAC)
TBD
TBD
Presentation of Phase
Deliverables to User Groups TBD
TBD
Plan Review
TBD
TBD
Commissioning
TBD
TBD
GMP-Setting
Owner
D-B
Pre-Construction
D-B
D-B
OAC - Construction Phase
TBD
TBD
Pre-Installation
TBD
TBD
Design-Related Subject
D-B
D-B
Closeout
Owner
D-B
Others as required by Owner
TBD
Coordination with Commissioning Agent
If applicable, D-B shall cooperate and coordinate with the Owner’s Project Manager throughout
the project design and construction phases.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 6
Design Responsibilities
The physical design of this Project should create an appropriate identity for the City of Glendale,
Arizona.
D-B shall consult with the Owner on all aspects of the design through the Owner’s Project
Manager, and with other Owner Stakeholders.
Design Standards
D-B shall be responsible for design conforming to the applicable current Federal, State, and City
Codes and shall Coordinate final product specifications with the Owner’s Project Manager. Note
that this includes compliance with DSS Tab B-Procedures and DSS Tab C-Design Criteria, as
well as material specifications.
Sustainability
D-B is responsible for sustainable and environmentally responsible design as follows:
1) Design shall be responsive to the climate and environment in a way that minimizes energy
consumption, yet creates a comfortable environment for elected officials, staff and visitors.
2) Design shall demonstrate an understanding of the setting, both environmentally and as part
of the community fabric.
3) Facility shall be an exhibit of sustainability achievement in this climate.
a) See DSS Tab C-13for Campus Sustainability goals.
b) Minimum USGBC LEED Silver certification.
i) D-B shall provide LEED application processing through USGBC. The Owner
shall be listed as the “Applicant” under the USGBC website application, and
shall have access to the entire submittal form to ensure ownership and access to
documentation at all times (including archived documentation).
Accessibility
Incorporate accessible design principles to ensure that the completed facility provides full, equal,
and unrestricted access to all users. See DSS Tab C-12 as well as the requirements in the Codes
enumerated below.
Governing Jurisdictions
D-B shall prepare and provide all documents in a form necessary for Owner to obtain any and all
approvals required for approval of design and completed construction by all governmental
authorities having jurisdiction over the Project and/or designated by the Owner
D-B shall be responsible for coordination with the governing jurisdiction as follows:
1) The relevant project utilities.
2) The Owner will provide design review and construction inspection.
3) Local zoning and ordinances will apply. The Owner will provide site development
guidelines specific to this project.
4) Interface and permitting by D-B with the servicing utilities and will be limited to street
acquisition, right-of-way permits, and utility easements with these entities, if these
improvements are not owned by the City of Glendale.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 7
Codes
D-B shall design the project in such a manner that the completion of project is in compliance with
the following codes. When reference is made to "this code" it shall mean all the codes listed below.
1. 2018 International Fire Code, as amended by the City of Glendale, Arizona
2. 2018 International Building Code, as amended by the City of Glendale, Arizona
3. 2018 International Existing Building Code, as amended by the City of Glendale, Arizona
4. 2018 International Mechanical Code, as amended by the City of Glendale, Arizona
5. 2018 International Plumbing Code, as amended by the City of Glendale, Arizona
6. 2018 International Fuel Gas Code, as amended by the City of Glendale, Arizona
7. 2017 National Electrical Code (NFPA 70), as amended by the City of Glendale, Arizona
8. Accessibility Guidelines: In addition to any requirements in the codes enumerated above,
incorporate the guidelines listed below:
Governing Regulation: Department of Justice Regulations for Title II (28 CFR 35) and
Title III (28 CFR 36) of the Americans with Disabilities Act of 1990, and the
Americans with Disabilities Act Amendments of 2008
Governing Regulation: Arizona Civil Rights Act, ARS Title 41, Article 41-1401 et. seq.
Americans with Disabilities Act Standards for Accessible Design (ADASAD), dated
September 15, 2010
If a conflict arises between these code and regulation references and the Project Design,
Owner will make a determination in consultation with the Project Team.
9. Occupational Safety Guidelines: In addition to any requirements in the codes enumerated
above, incorporate the guidelines listed below:
Occupational Safety and Health Administration (OSHA) Regulations 29 CFR 1910
(General Industry Regulations) and 29 CFR 1926 (Construction Regulations)
Cost Estimating
D-B shall coordinate the format to be used for each Phase estimating effort by D-B and the
Owner’s Cost Consultant to ensure differences between the two estimates are reconcilable.
Differences between the estimates must be reconcilable to the lowest level of detail of the estimate.
If at any time D-B’s Estimate of Construction Costs and/or proposed GMP (after attempted
reconciliation between D-B’s Estimate of Construction Costs and the Owner’s Cost Consultant
Estimate) exceeds the amount within Owner’s then-current Project Budget available for the Cost
of the Work, D-B shall promptly and at no cost to the Owner:
1) Revise all or any part of the Project drawings, specifications or both as the Owner may
deem advisable for the purpose of reducing the Cost of the Work to be within the
allocated line items within the Project Budget.
2) Perform any or all of the services as described in the Agreement as may be necessary
to obtain an estimate of Construction Costs and/or GMP not exceeding the amount
within Owner’s then-current Project Budget available for costs of the Work.
D-B shall provide a complete project construction cost estimate at each Design Phase Submittal,
and with each GMP Proposal, to evaluate the status of Owner’s budget capacity to complete
project scope in future GMPs and Phases.
Owner Reviews
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 8
There will be a two-to-three week Owner review period at each Design Phase Submittal. The
Owner will prepare written Review Comments and provide to D-B. D-B shall prepare written
responses to these comments. To ensure that all issues are fully understood and resolved, responses
shall be submitted to the Owner as soon as possible after receipt of Comments by D-B. D-B will
not be authorized to proceed into the next Phase of the project until all comment responses have
been reviewed and accepted by the Owner
Also included in the review process are Roundtable Review Meetings to provide an opportunity
for discussion of written comments and responses, and other related design topics.
In addition to the requirements of the Agreement, D-B shall provide submittals for the following
project Phases for review by the Owner:
1) Program Submittal - N/A
2) Conceptual Design Submittal
3) Schematic Design Submittal
4) Design Development Submittal - N/A
5) 50% Construction Documents - N/A
6) 100% Construction Documents / GMP Setting Submittal
a. Multiple Construction Document packages, such as foundation, core and shell, and
interiors packages, as required for schedule compliance.
7) Models, renderings, sketches, product samples, and other materials as needed at all phases
of project development to fully explain the design to all User Group Representatives, in
addition to, Facilities Management, Planning Design & Construction, Risk Management
Services, and any other relevant departments.
8) Life Cycle Cost Analysis:
(If Requested)
a. Base and alternate design building envelope systems.
b. Base and alternate design Mechanical, Plumbing, and Electrical systems.
c. Total Cost of Ownership based on Statement of Probable Construction Cost and Life
Cycle Cost Analyses.
d. Provide Life Cycle Cost Analysis with Program, Conceptual Design, Schematic Design,
and Design Development Phase submittals.
9) Energy Model:
(If Requested)
a. One as required for LEED certification.
b. Additional energy model that demonstrates anticipated performance in energy unit
measures, and as compared to DSS system requirements.
c. Provide Energy Model with Program, Schematic Design, and Design Development
Phase submittals.
10) Refer to Submittal Requirements by Phase, below, and “Attachment 1 – Project
Deliverables by Phase”, for detailed requirements.
Submittal Requirements by Phase
1) Program Phase
a. identified units of facility need
b. projected enrollment or activity
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 9
c. references to relevant standards appropriate to comparable institutions
d. discussion of locational determinants
e. utilization for any classrooms or teaching laboratories
f. estimated net-to-gross ratios
g. special physical requirements affecting cost
h. Required size, use, occupancy, and furnishings/equipment requirements of all spaces.
i. Required relationships of spaces to other spaces.
j. Required utility services for all spaces and investigations into available utilities.
k. Environmental requirements of all spaces.
l. Traffic/circulation requirements within and without the building. Building service
requirements.
m. Tabulation of all net assignable areas.
n. Explanation of probable non-assignable required areas.
o. Calculation of probable gross buildings area(s).
p. Code analysis. Describe all area separations, occupancy separations, compartmentation,
fire-rated construction requirements, hazard classifications, exiting requirements, general
code provisions, and project-specific provisions. Include diagrams describing these issues
as applied to the specific project design.
q. Site analysis, including utilities, circulation, service, orientation, adjacent structures, etc.
r. Energy Models.
s. Hydrology Report, Storm Water Management Analysis and Plan.
t. Proposed LEED Score card for the Design (LEED Silver minimum requirement).
u. Life Cycle Cost Analysis and Total Cost of Ownership Analysis.
v. Statement of Probable Construction Cost
w. Project Schedule
x. Budget estimates of FF&E, Audio Visual Systems, and Branding and Graphics Audio
2) Conceptual Design Phase, As Applicable
1. A minimum of three distinctly different concepts shall be presented to the Owner before
proceeding with final schematic documents. These concepts are to communicate site,
functional and massing relationships. The concepts may be presented in diagrammatic
form.
2. Include with each concept the approximate net assignable to gross area efficiency factors.
3. Include with each concept a code analysis. Describe all area separations, occupancy
separations,
compartmentation,
fire-rated
construction
requirements,
hazard
classifications, exiting requirements, general code provisions, and project-specific
provisions. Include diagrams describing these issues as applied to the specific project
design.
4. Include with each concept a Statement of Probable Construction Cost.
5. Include with each concept a Life Cycle Cost Analysis and Total Cost of Ownership
Analysis.
3) Schematic Design Phase
As may be applicable, review the Project Program and the approved Conceptual Design with the
Owner to solicit and receive comments and recommendations, confirm the Owner's understanding
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 10
of the subject matter, determine any additional, modified or alternative requirements, and obtain
the Owner's approval.
As may be applicable, provide the Owner with a preliminary evaluation of the requirements of the
Project based on the Owner's budget.
As may be applicable, review with the Owner alternate methods and approaches to the design and
construction of the Project and recommend the approach and jointly decide with the method best
suited to the Owner's requirements and the Project.
As may be applicable, based upon the Project Program, the approved Conceptual Design, the
discussions with the Owner, the amount within the Owner’s Budget available for costs of the
construction Work, the surveys, and the soils reports, prepare Schematic Design Documents which
will consist of drawings and other documents depicting the scale and relationship of Project
components, for review with the Owner, and for the Owner’s approval.
The D-B shall review with the Owner alternate methods and approaches to the design and
construction of the Project, including infrastructure systems for structure, mechanical systems and
other relevant systems.
The Schematic Design Documents shall consist of at least the following, as may be applicable:
a) Preliminary site plan showing walks, parking drives, landscaped areas, drainage, retention
and detention areas.
b) Site survey.
c) Soil boring data & consultant's foundation recommendations.
d) Schematic floor plans, 1/4" = 1'-0".
1) New work, all floor levels including walls, doors, windows, equipment, furniture, location
of plumbing fixtures, and structural grid.
2) Remodeled areas of existing buildings, if any, including demolition.
3) Existing building drawings for remodeled areas.
e) Reflected ceiling plan (if any special or unique features).
f) Exterior elevations, showing mechanical equipment.
g) Diagrammatic building sections, each direction through building with structure indicated.
h) Typical wall sections to show materials, relationships, and construction intent, including
structure.
i) Room materials list and equipment outline.
j) Narrative of design rationale, code analysis, design load assumptions, and proposed structural
systems together with justification of selected system.
k) Narrative of design rationale and demand assumptions, and descriptions of proposed
mechanical system(s), electrical system(s), landscape irrigation system(s), and special
system(s).
l)
Preliminary mechanical equipment room layouts (major equipment).
m) Preliminary one-line HVAC duct layouts and/or preliminary mechanical piping diagram
including preliminary size and location of connection to utility supply.
n) Plumbing water and sewer main sizing with point of connection to public systems.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 11
o) Fire protection hazard classification of system and preliminary size of supply main and
identification of source location.
p) Preliminary one-line electrical distribution diagrams with preliminary load and service
sources identified.
q) Preliminary Draft of Project Manual including outline specifications.
r)
Code analysis. Describe all area separations, occupancy separations, compartmentation, fire-
rated construction requirements, hazard classifications, exiting requirements, general code
provisions, and project-specific provisions. Include diagrams describing these issues as
applied to the specific project design.
s)
Structural, mechanical, electrical, and other calculations used by the Design Professional as a
basis for design, appropriate to the Schematic Design level.
t)
Net assignable and gross area calculations, in conformance with Owner definitions for each
category and functional group of space.
u) Schematic presentation shall include a preliminary model, and sketch perspectives of both the
exterior and major interior features that will fully communicate the design intent to User
Group Representatives.
v) Communications and data transmission system infrastructure.
w) Energy Models.
x) Hydrology Report, Storm Water Management Analysis and Plan.
y) Proposed LEED Score Card for the Design (LEED Silver minimum requirement); include
checklist and strategy.
z)
Life Cycle Cost Analysis and Total Cost of Ownership.
aa) Statement of Probable Construction Cost.
bb) Budget estimates of FF&E and AV.
cc) Geotechnical Investigation Report.
dd) Project Survey.
4) Design Development Phase
If applicable, based on the Schematic Design Documents and any amendments approved by the
Owner in the Program or the Project Budget, prepare Design Development Documents for review
with the Owner and for the Owner's approval, consisting of drawings and other documents to
delineate, and define the general design of the entire Project, including size and character as to
architectural, structural, mechanical and electrical systems, materials, and any other Project
elements as may be appropriate.
The Design Development Document shall consist of at least the following, as may be applicable:
a)
Site survey and annotated site survey showing items for demolition, removal or relocation.
b)
Site Plan:
1) Contours/grading
2) Paving, sidewalk, curb, fence, parking, and other site improvements (showing location
and overall dimensions)
3) Retaining walls
4) Demolition of any existing improvements
5) Underground utilities
6) Notation of existing memorial trees, plaques and any other marked items
7) Phasing plan
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 12
8) Construction access and staging plan
c)
Landscape plan:
1) Planting plan
2) lant materials schedule
3) Point of connection for power and water, and demand for each
4) Irrigation plan
d)
Seismic Analysis based on IBC Code Requirements.
e)
Foundation plans:
1) Footing and foundation sizes, reinforcing, elevations
2) Below grade concrete walls, thickness and reinforcing
3) Waterproofing, dampproofing, and drainage; standard detail types
f)
Structural framing plans:
1) Horizontal and vertical member size, sample reinforcing
2) H and V sample reinforcing
3) Typical floor and roof details, thickness
4) Typical exterior wall sections
5) Typical exterior wall supports, bracing, ties, reinforcing
6) Lateral bracing methods, location
7) Fireproofing - NFPA designation
8) Vibration isolation or other special details
9) Design live and dead loads tabulated for all floors, areas, roofs
g)
Exterior wall elevations, all planes.
h)
Building sections.
i)
Typical wall sections.
j)
Typical roofing and flashing details.
k)
Floor plans, all levels and roofs:
1) Partition type identification
2) Smoke and fire compartmentation
3) Built-ins and fixed equipment shown and noted
4) 1/4" scale furniture and movable equipment layouts, for ALL spaces
5) Phasing information
l)
Reflected ceiling plan:
1) Lights, diffusers, grilles, sprinkler heads and unusual conditions
m)
Stair and elevator details and types.
n)
Room finish and door schedules for all areas/spaces.
o)
Miscellaneous specialties and equipment schedules.
p)
Fixed equipment schedule, locations, and service requirements.
q)
Plumbing systems:
1) Fixture schedule, locations
2) Equipment schedule, locations
3) Water piping, locations (sizes for pipes larger than 1")
4) Waste piping, locations (sizes for pipes larger than 4")
r)
Roof drainage system, locations, and key sizes.
s)
Fire protection systems:
1) Location of check valves, building entrance, riser and drain
2) Provide system performance design criteria
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 13
t)
Mechanical systems:
1) Equipment schedule, locations, sizes, types
2) Chilled, condenser, hot water, steam, and condensate piping systems, locations, riser
diagrams
3) Supply, return, and exhaust duct layout
4) HVAC piping, locations, and sizes for pipes larger than 1"
5) Equipment connections and supports; standard details
6) Load calculations
7) HVAC controls and schematics
u)
Power distribution diagram:
1) Power distribution layout
2) Equipment schedule, locations
3) Feeder sizes
4) Emergency generator size, location
5) Uninterruptible power supply equipment size and location, if required
6) Grounding, standard details
7) Load calculations
v)
Interior electrical plans:
1) Fixture and switch locations with identification
2) Typical receptacle and power outlet locations
3) Special requirements noted
4) Coordination of and pathways for keyless access and security.
w)
Motor control schedule with starter and circuit sizing.
x)
Communication, data transmission and audio-visual systems (security system).
y)
Basis of Design for Commissioning Agent, including Engineering calculations and load
data; System selection; System rejection reasoning; Equipment selection; Equipment
rejection reasoning; Failure modes; and Critical sequence of operations.
z)
Current update of Project Manual including Project Specifications.
aa)
Code
analysis.
Describe
all
area
separations,
occupancy
separations,
compartmentalization, fire-rated construction requirements, hazard classifications, exiting
requirements, general code provisions, and project-specific provisions. Include diagrams
describing these issues as applied to the specific project design.
bb)
Structural, mechanical, electrical, lighting (on a per point method computer analysis), and
other calculations used by the Design Professional as a basis for design, appropriate to the
Design Development level.
cc)
Net assignable and gross area calculations, in conformance with Owner definitions for each
category and functional group of space.
dd)
Materials and color boards, exterior and interior.
ee)
Update presentation graphics to accurately reflect current design.
ff)
Cut sheets of all plumbing, mechanical, electrical, and other special fixtures and
equipment.
gg)
Energy Models.
hh)
Hydrology Report, Storm Water Management Analysis and Plan.
ii)
Proposed LEED Score Card for the Design (LEED Silver minimum requirement); include
checklist and strategy.
jj)
Life Cycle Cost Analysis and Total Cost of Ownership Analysis.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 14
kk)
Preliminary SWPPP, regardless of site size.
ll)
Statement of Probable Construction Cost.
mm)
Budget estimates of A/V (Security).
5) 100% Construction Documents / GMP Setting Phase
Based upon the approved Design Development Documents (DDs) and any further amendments of
any kind approved by the Owner, prepare detailed Construction Documents (CDs) setting forth
the requirements for the construction of the entire Project, including complete Bid Documents,
Drawings, Specifications.
D-B shall provide fully updated versions of the deliverable documents listed in the Design
Development list, reflecting 100% complete drawings, checked and coordinated with all Sub-
Consultants and Owner Consultants, and with all necessary and required details and information
for the successful pricing, construction, and completion of the project.
If the Work is intended to be done in Phases with Multiple Bid Packages and some Phases are
intended to start after the GMP is established but before all of the Construction Documents are
complete, the Design Professional’s seal and signature shall be affixed to the documents for those
initial Phases of the Work only after Owner review and incorporation of all final comments.
The Construction Documents are subject to review and approval by the Owner.
D-B is responsible for production of complete Drawings and Specifications, and assembly of the
Project Manual, including a cover for each. Document covers shall include the Owner project name
and number and date.
The Construction Documents shall consist of at least the following, as applicable:
a) Drawings for all design disciplines.
b) Specifications.
1) All sections complete and edited project specific.
2) Written descriptions of all options (alternates), allowances, unit prices, and special
construction scheduling requirements.
3) Table of contents for technical sections.
4) Schedule of drawings.
5) Specifications shall be prepared by the D-B using CSI format, with the Project Number
on all pages.
6) Standard Owner "boilerplate" (bidding and contract provisions, and Division 1
sections) will be "red-marked" by Owner and provided to D-B for information and
coordination with their Drawings and Specifications. Owner will provide final word
processing of boilerplate documents, and deliver completed version to D-B for
inclusion in the Project Manual.
c) Final
code
analysis.
Describe
all
area
separations,
occupancy
separations,
compartmentalization, fire-rated construction requirements, hazard classifications, exiting
requirements, general code provisions, and project-specific provisions. Include diagrams
describing these issues as applied to the specific project design.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 15
d) Final structural, mechanical, electrical, acoustical, vibration, lighting (on a per point method
computer analysis) and other calculations used by the Consultant as a basis for design.
e) Cut sheets for final selection of all plumbing, mechanical electrical and other special fixtures
and equipment.
f) Updated Basis of Design for Commissioning Agent.
g) Final material and color boards; interior and exterior.
h) Net assignable and gross area calculations, in conformance with Owner definitions for each
category and functional group of space.
i) Final Hydrology Report, Storm Water Management Analysis and Plan.
j) Final Life Cycle Cost Analysis and Total Cost of Ownership Analysis.
k) All bidding documents, ready for reproduction, with all final comments from the Construction
Documents submittal resolved.
l) Design Professional’s seal and signature shall be affixed to documents only after Owner review
of the Construction Documents submittal and incorporation of all final comments.
m) Master plan/expansion information to inform future project planning teams.
n) A Statement of Probable Construction Cost; ASPE “Level Five”.
Furniture, Fixtures and Equipment
D-B shall provide the following services as part of the project scope of work:
1) Interior Design
2) Furniture selection and installation coordination
3) Branding and Graphics
4) Audio Visual system design and construction administration
Submit design updates for each category of FF&E commensurate with the development of the
project design at each phase of the project for Owner review and approval.
Unless otherwise indicated, FF&E will be procured and installed under separate contracts
independent of the contract for construction. The Owner’s Project Manager, in conjunction with
the City’s Procurement Department, will write and issue all Purchase Orders. D-B will be
responsible for coordinating the orders with the vendors and the City.
Audio Visual Systems, As Applicable
D-B will be responsible for the complete AV design and documentation.
D-B will produce complete documentation for infrastructure and raceways as part of the building
contract documents for installation under D-B scope of work.
D-B will design and prepare complete documentation for the AV systems for bidding and
procurement of an outside vendor.
As applicable, at each Design Phase, D-B shall, in collaboration with Owner’s Project Manager
and User Group Representatives, coordinate with the City’s Audio/Visual Systems management
staff. D-B will prepare floor plans reflecting decisions reached with the Owner on AV systems, as
well as a narrative for the systems and spread sheets describing the system components for each
type of space. D-B shall provide a conceptual AV Cost Estimate inclusive of all items required to
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 16
provide AV for the project and allow it to be functional and meet the Owner’s budget goals. Cost
Estimates shall include freight, delivery, installation, and taxes.
D-B shall ensure that AV systems are fully coordinated with architectural, structural, mechanical,
telecommunication, fire alarm, and electrical design, to assure the compatibility of the AV system.
During the 100% Construction Documents Phase, D-B shall confirm with vendors the A/V
equipment selections, availability and pricing. D-B shall prepare final AV documentation for
Owner review and approval, as follows:
1) AV plans graphically showing:
a. Scaled relationship of all AV for all rooms
b. Room numbers
c. Individual component item reference numbers
2) Provide separate spreadsheets sorting AV Items list organized by Room Type.
Spreadsheet shall reference:
a. Room Names and Numbers where system occurs
b. Item Reference Numbers
c. Item Descriptions and Model Numbers
d. Vendors
e. Quantities
f. Vendor
g. Special Notes
3) System narrative for each type of space.
Branding and Graphics, As Applicable
The Scope of Branding and Graphics Systems will be finalized after completion of the Schematic
Design Phase. The scope will generally include major wayfinding components.
Construction Phase Services
Successful construction of the project will necessarily involve the full, open, and transparent
participation of the entire Project Team, including the Design-Builder, the Design Professional,
and the Owner. The Owner requires that the review and evaluation of the Design Professional be
included with the information being provided to the Owner. At a minimum, this will include the
following:
Evaluate the progress of the Work for compliance with the design intent of the Project, and for
conformance with the requirements of the Construction Documents. Interpret the requirements of
the Construction Documents. The interpretations shall be consistent with the intent of and
reasonably inferable from the Construction Documents.
Attend progress meetings, to address and resolve such matters as procedures, scheduling, work
deficiencies, Submittals, Requests For Information (RFIs), and any other matters relating to the
completion of the Project.
Perform weekly site visits to be knowledgeable about the progress and quality of the Work, and
prepare weekly field reports.
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 17
Review and respond to Requests for Information (RFIs).
Review and approve Submittals, Shop Drawings, Product Data, Samples, and other required
Materials Submissions, for conformance with the design concept of the Project, and compliance
with the Construction Documents.
Identify Work which does not conform to the design intent or Construction Documents, including
applicable codes, statutes, or local or national standards.
Participate in site visits and meetings to identify the dates of Substantial and Final Completion of
the Work, or designated portions of the Work. Participate in the preparation of Punch Lists
identifying a comprehensive list of items of the Work to be completed or corrected.
Review and evaluate Closeout Materials including As-Built Drawings, Operation and
Maintenance Manuals, Record Submittals, Test and Balance Reports, Commissioning Reports,
Training Materials, and Progress Photographs.
Prepare Closeout Materials including Record Drawings, (DWGs and PDFs), BIM Model,
GeoDatabase Drawings, and Key Plan Drawings, as applicable.
Participate in Warranty Site Visits ten (10) months and twenty-two (22) months after the Date of
Substantial Completion. Assist in resolving Warranty issues as they develop.
Fee Proposal
Staff
Clearly identify all key staff for the D-B Firm and for all Sub-Consultants, and their roles in the
Project Team. Any Sub-Consultants not originally identified in the Statement of Qualifications
resulting from the Owner’s Request for Qualifications shall be submitted to the Owner for review,
and will be included in the Project Team only upon written approval of the Owner.
Reimbursable Expenses
Include all Reimbursable Expenses such as travel costs, meals, printing for internal review,
deliverables, etc., as part of D-B’s basic services fee.
Categories of allowable reimbursable expenses include:
1) Reproduction, mailing, and electronic media, which are in addition to those required for
normal project deliverables
2) Agency permit and submittal costs
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 18
ATTACHMENT 1
Project Deliverables by Phase - 8 Pages
[INSTRUCTIONS TO DRAFTER: EDIT THE LIST BELOW TO INCLUDE ONLY THE
DOCUMENTS APPLICABLE TO THIS PARTICULAR PROJECT, AND DELETE THE
OTHERS. DISCUSS WITH PERTINENT PDC PERSONNEL AS APPROPRIATE.]
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 19
T H I S P A G E I S B L A N K
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 20
Design Phases Deliverables
Program Phase
Report - PDF
Conceptual Design Phase
Drawings - PDF
Schematic Design Phase
Drawings - PDF
Specifications - PDF
Security Design - AutoCAD
Geotechnical Investigation Report - PDF
Project Survey – AutoCAD
Design Development Phase
Drawings - PDF
Specifications - PDF
Site Plan - AutoCAD
Room Numbering - PDF
Security Design - AutoCAD
Wi-Fi Design – AutoCAD
100% Construction Documents / GMP Setting Phase
Drawings - PDF
Specifications - PDF
GeoDatabase - AutoCAD
Key Plans - AutoCAD
TeleCom Bid - PDF
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 21
Project Closeout Phase Deliverables, As Applicable
Facilities Documentation Package - PDFs
As-Built Drawings
Operation and Maintenance (O&M) Manuals, per CSI Division
Final Record Submittals, per CSI Division
Balance Reports
Commissioning Report
Final LEED Submittal
Training Materials (including sign-in sheets, notes, handout materials, videos, etc.)
Progress Photos, per CSI Division/Section, Time Period, Etc.
Construction Administration Package - PDFs
Warranties (General Contractor and Subcontractors)
Subcontractor Directory
All Applicable Permits
Signed-Off PDC Green Inspection Cards
Any Other Reports or Certifications Required by the Contract
Meeting Minutes, Monthly Reports, Etc.
RFIs, ASIs, PRs, CORs, Etc.
Change Orders
Payment Applications
Testing and Inspection Reports
Project Documentation Logs
Any Other Construction Administration Materials
Project Closeout Package - PDFs
Affidavit of Payment
Consent of Surety
Copy of Small Business Utilization Report
Receipts for Returned Keys
Final Attic Stock and Extra Materials Transfer Log
Receipts for Deliveries of Attic Stock and Extra Materials
Final Net Asset Log (Equipment, Tools, and Unused Materials)
Receipts for Deliveries of Project-Owned Assets (Equipment, Tools, and Unused Materials)
Final Rent vs Buy Analysis & Fair Market Comparison
Completed Contractor’s Project Closeout Checklist
Design Professional Materials
Record Drawings - PDFs
Record Drawings - Bound AutoCAD
GeoDatabase Drawings - AutoCAD
Key Plan Drawings - AutoCAD
BIM Model
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 22
Detailed Deliverables Criteria, As Applicable
Package Requirements
•
Total Path Name of Folders, Sub-Folders, and Documents, is limited to 130 characters
Drawings / Specifications / Other Documents - PDFs
Printed/Plotted PDFs are preferred
•
files must contain searchable text
•
secure approval from the Project Manager for scanned PDFs
Combine all individual Documents contained in each submittal into a single PDF, in order
•
PDF file size is not a consideration
•
files should be consistent with printed submittals
• for example: if a drawing set is two volumes, the PDFs should be two files
•
name each item as the original item is titled
• include date issued in the file name (YYYY/MM/DD)
•
bookmark each individual item
• bookmark drawings with Sheet Number and Title
• bookmark specifications with CSI Division and Section
• bookmark reports with Chapters and Sections
•
create expanded bookmarks to simplify finding a specific item
• for example: Architectural / Structural / Etc.
Division 02 / Division 03 / Etc.
Chapter 1 / Chapter 2 / Etc.
•
combine multiple PDFs into a single ZIP folder
Photos, Videos, Etc.
•
group similar photos / videos into folders and sub-folders
•
group by date, topic, etc.
•
combine all folders into a single ZIP Folder
ZIP Folders
•
contain multiple PDFs, Folders, etc.
Room Numbering PDFs
Provide Floor Plans only
Printed/Plotted or Scanned PDFs are acceptable
Combine all individual Floor Plans into a single PDF, in order
•
number and name each Floor Plan as the original Sheet is titled
•
bookmark each individual Floor Plan
TeleCom Bid PDFs
Provide all TeleCom Sheets and all Electrical Sheets, only
Printed/Plotted or Scanned PDFs are acceptable
Combine all Drawings into a single PDF, in order
•
number and name each Drawing as the original Sheet is titled
•
bookmark each individual Sheet
•
create expanded bookmarks to simplify finding a specific sheet
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 23
•
for example: TeleCom / Electrical
•
Lighting Plans / Power Plans / Etc.
Bound AutoCAD Drawings
Deliver Project Record Drawings to the Owner electronically.
1. The intent of these guidelines is to enable the Owner to collect, archive, and use at a later
date digital copies of Record Drawings for any construction project. These projects include
(but are not limited to) new construction, renovations, additions, utility work, and interiors
work. The Owner considers it important to maintain accurate records of new work for several
reasons:
• Accurate information (e.g. underground utilities and tunnels) for future projects.
• Accurate base drawings for future projects, enabling consultants to modify existing
drawings instead of creating new drawings from field measurements.
• Accurate data for the Enterprise Geographic Information System (EGIS).
2. The D-B is responsible for verifying the accuracy of all drawings. Appropriate notation
should be attached (Record Drawings) or detached (official seals and signatures) from each
drawing. There should be an overall consistency in the format of the Record Drawings as
further described below.
3. The Transmittal for the Record Drawings Submittal should contain the following
information:
• City of Glendale Building Number and Address, Project Number, and Project Name, in the
following format:
• ZZZZ.XX-XXXX-ABCDEF, where ZZZZ is the building number, XX-XXXX is the City
of Glendale Project Number, and ABCDEF is the City of Glendale’s Project Name
• Firm name and contact information
• Discipline (Architectural, Mechanical, Landscape, etc.)
• RECORD DRAWINGS
• Date of the Record Drawings Submittal
Format:
Drawings: All drawings shall be submitted in an AutoCAD .dwg format
Graphics: Preferred formats for graphics (photos, sketches, renderings, etc.) include: .jpg and
.pdf
Content of Record Drawings Digital Submittal:
Submit a digital copy of each sheet in the set, and a list of each sheet by page number with
the contents of the sheet and the name of any raster images that are attached.
Record Drawings Label:
• Revision dates should be updated for each submission in the title block (with the last date
being the date of the Record Drawings submission).
• Record Drawings should be clearly seen in bold letters along the bottom of the sheet or
near the title block on the right side of the sheet.
Digital Record Drawings:
• The electronic copies of the Record Drawings should be usable in AutoCAD Release 2013,
however the drawings themselves don’t need to be drawn in this release. Usable is defined
as being able to easily identify the file needed, open it, select the appropriate layout tab
(representing one sheet from the hardcopy set), and send it to the plotter without have to
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 24
assign proxy graphics, reconnect (and find) External References (referred to as xrefs from
here forward) and raster images, or find a missing .ctb or .stb (plot style tables) file.
• Each .dwg file should be named using the following format: Sheet Number-xyz where xyz
is a project number or project name or other further identifying label as determined by the
DP. For example: Sheet A1.00 should not be in a file called A1, but it should be in a file
called A1.00-xyz.dwg
• If more than one sheet is contained in one file, then the file should be composed to only
have one sheet per file and then naming each accordingly.
• Each sheet should be set up on a layout tab of its own in paper space. Each layout tab
should be renamed with the sheet number represented on it. Any unused layout tabs should
be deleted.
• All xrefs should be bound. Any xrefs no longer needed in a drawing should be “detached”
and not just “unloaded”.
• In order to prevent missing raster images, before transferring the digital files, place all
raster images in the same folder as the file into which they are referenced.
• When the transferred files are opened, individual files should be available either in the root
folder or in the first sub-folder. In other words, one shouldn’t have to open 2 or more sub-
folders to find a file.
• The file with pen weights (.ctb or .stb file) should be included in the transfer, along with
any other non-standard font or shape files.
• Each layout should be set up for either 24”x36” or 30”x42” according to the following
settings:
Plotter: None
Plot Area: Layout
Pen Assignment: As per D-B’s own .ctb or .stb file
Scale: 1:1
Viewports: Should be zoomed to appropriate scale and locked
Paper size: ArchD (24”x36”) or E1 (30”x42”) that matches the plotted drawing set
GeoDatabase AutoCAD Drawings
Provide the following composite drawings:
1. Composite Drawing Elements: The composite drawing(s) should include at a minimum the
following plan view elements separated into distinct layers by feature types (e.g. survey
monuments and monument labels on different layers, trees on one layer and shrubs on a
different layer, etc.). Name each layer within categories as noted below (e.g. Hardscape,
Irrigation, Building Footprint, etc.) name beginning with a standard prefix for that category
(e.g. Plant_xyz.dwg, Irrig_xyz.dwg, etc.). Name layers in a way which legibly communicates
the subject layer. This could be in one or several drawings, although all layers must spatially
register with each other properly.
Site Information
Existing survey control monuments referenced in the project, and new ones added
Planting plan
Hardscape plan (walks, streets, curbs, parking, parking lot striping, etc.)
Irrigation lines and components
Building footprint
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 25
Underground site utilities and/or building connection points
Site work / grading
Drainage
Other site structures proposed by the project
Building Information
Survey control monuments
Building footprint and roof outline
Architectural plans for each floor
Interior layout plans for each floor
Structural plans for each floor
Plumbing plans for each floor
Mechanical Piping and HVAC Ductwork plans for each floor
Electrical Power and Lighting plans for each floor
Telecommunications (voice, data, audio/visual, etc.) plans for each floor
2. Transform this composite drawing(s) into the original state plane coordinates (see Survey
Requirements defining units, scaling and other transformation parameters in this “Exhibit B
- Scope of Services”). Do not include imbedded blocks or x-refs (i.e., explode all
elements/layers so that they permanently reside in the drawing and its transformed
coordinates).
3. Provide an Index in Word or Excel, for each composite drawing, listing and describing
drawing category prefixes, which are used to group the layers by features and by subject.
Also list the names for each category and briefly describe contents.
4. Provide the Drawings at two times:
with the 100% Construction Documents
with the Project Record Drawings
Project Survey AutoCAD Drawings
Save files in AutoCAD release 2013
Site Plan AutoCAD Drawings
Provide Overall Site Plan only:
• survey monuments
• buildings
• hardscape (walks, streets, curbs, parking, parking lot striping, etc.)
• other site structures proposed by the project
Save files in AutoCAD Release 2013
No coordinate shift or other modifications required in this drawing; just the Site Plan current at
that phase, in project coordinates
Key Plans AutoCAD Drawings
Provide separate DWG file for each floor
Save files in AutoCAD Release 2013
Formatting of AutoCAD Floor Plan Files
• include Room Numbers and Room Names
• depict each wall as two lines only (representing the finished surface on each side of the
wall)
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 26
• include only lines for each floor on that Floor Plan
• remove intermediate lines, hatching, and symbols from within the walls
• include the project’s original site survey monuments on a separate layer, on the Floor Plan
which includes the building’s Main Entrance
• additional construction-phase monuments may be added as well
• include separate hardscape layers on the Floor Plan which includes the building’s Mai
Entrance
• existing hardscape layers (pre-construction streets, curbs, walks, site walls) from the
project’s site survey
• sidewalk and pedestrian hardscape layers created for the project
• include doors and windows
• include major pieces of fixed equipment, casework, lab benches, etc.
• remove dimensions
• remove notes and keynotes
• remove structural grid
• remove symbols
• set up layer and block properties to facilitate black-on-white printing on a variety of plotters
• avoid nested blocks and hard-set colors
Security Design AutoCAD Drawings
Provide Floor Plans, Reflected Ceiling Plans, and Sections only
• save files in the AutoCAD Release 2013
Formatting of AutoCAD Files
• include Room Numbers and Room Names
• include doors and windows
• include major pieces of fixed equipment, casework, lab benches, etc.
• remove dimensions
• remove notes and keynotes
• remove structural grid
• remove symbols
• set up layer and block properties to facilitate black-on-white printing on a variety of plotters
• avoid nested blocks and hard-set colors
Wi-Fi Design AutoCAD Drawings
Provide Site Plans, Floor Plans, and Reflected Ceiling Plans only
• save files in the AutoCAD Release 2013
Provide BIM Model
• (see detailed requirements below)
Formatting of AutoCAD Files
• include Room Numbers and Room Names
• include doors and windows
• include major pieces of fixed equipment, casework, lab benches, etc.
• remove dimensions
• remove notes and keynotes
• remove structural grid
• remove symbols
Exhibit B - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 27
• set up layer and block properties to facilitate black-on-white printing on a variety of plotters
• avoid nested blocks and hard-set colors
BIM Model, As Applicable
A complete BIM Model, including all design disciplines, in the Latest Release of Revit.
Submitting the BIM Model does not exempt the D-B from submitting Record and As-Built
Drawing AutoCAD and PDF files, as described in this document.
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 22
EXHIBIT C
Design-Build Firm Name
Design and Pre-Construction Services Hourly Rates Summary
Dated month - day - year
(TBD pages)
[INSTRUCTION TO DRAFTER - ATTACH FINAL D-B LIST OF HOURLY RATES, AT
TIME OF AGREEMENT.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 23
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 24
EXHIBIT D
Form of Pre-Construction Services Amendment
(TEMPLATE)
(1 page)
[INSTRUCTION TO DRAFTER - ATTACH TEMPLATE FORM OF PRE-CONSTRUCTION
SERVICES AMENDMENT AT TIME OF AGREEMENT.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 25
T H I S P A G E I S B L A N K
Exhibit D - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 1
AMENDMENT No.
Amendment to the Agreement dated _____________ [DRAFTER DELETE THE FOLLOWING PHRASE FOR
AMENDMENTS NUMBER 1; RETAIN THE PHRASE FOR AMENDMENTS NUMBER 2 AND FOLLOWING.]
(and as amended by subsequent Amendments) by and between the City of Glendale, Arizona and Design-Builder
Company Name (D-B) for services, deliverables and work related to Project No.**-****, Project Name. This
Amendment give brief description of the amendment.
1. The Fixed Fee for Pre-Construction Services is [DRAFTER CHOOSE ONE OF THE FOLLOWING OPTIONS,
AND DELETE THE OTHER.] increased to compensate D-B for give a description of services added or decreased
for give a description of services deleted.
[DRAFTER RETAIN ITEM 2 BELOW ONLY IF THERE IS A CHANGE TO THE TERM OF THE AGREEMENT.]
2. The term of the Agreement is increased by ** months to a total of ** months.
[DRAFTER RETAIN ITEM 3 BELOW ONLY IF THERE IS A CHANGE IN REIMBURSABLE EXPENSES.]
3. Reimbursable Expenses are increased by $*****
4. The total fee compensation under this Agreement as amended by this Amendment shall be:
Pre-Construction Phase
Construction Phase
Total
Original Agreement:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Previous Amendments:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Previous Change Orders
Fees
$
$
$
Reimbursable Expenses
$
$
$
This Amendment:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Total Including This Amendment):
Fees
$
$
$
Reimbursable Expenses
$
$
$
All other provisions, terms and conditions of the Agreement shall remain unchanged and in full effect.
(Signature on following page.)
Exhibit D - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 2
OWNER
DESIGN-BUILDER
City of Glendale, Arizona
D-B Name
By: Its Authorized Representative:
By Its Authorized Representative:
Signature
Signature
Printed Name
Printed Name
Title
Title
Date
Date
ATTEST:
___________________________
Julie K. Bower
(SEAL)
City Clerk
APPROVED AS TO FORM:
___________________________
Michael D. Bailey
City Attorney
Exhibit D - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 3
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 26
EXHIBIT E
Form of GMP Amendment
(TEMPLATE)
(2 pages)
[INSTRUCTION TO DRAFTER - ATTACH TEMPLATE FORM OF GMP AMENDMENT
AT THE TIME OF THE AGREEMENT.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 27
T H I S P A G E I S B L A N K
Exhibit E - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 1
AMENDMENT No.
Amendment to the Agreement dated _______________ [DRAFTER DELETE THE FOLLOWING PHRASE FOR
AMENDMENTS NUMBER 1; RETAIN THE PHRASE FOR AMENDMENTS NUMBER 2 AND FOLLOWING.]
(and as amended by subsequent Amendments) by and between the City of Glendale, Arizona and Design-Builder
Company Name (D-B) for services, deliverables and work related to Project No.**-****, Project Name. This
Amendment give brief description of the amendment.
5. This Amendment establishes a Guaranteed Maximum Price (“GMP”), Construction Phase Fee for Construction
Services, and Construction General Conditions, and incorporates such terms into the Agreement, making the
Agreement effective for Construction Phase Services.
a.
The total Fee for Construction Phase Services, which is included in the Guaranteed Maximum Price (“GMP”)
as defined under the Agreement, shall be fixed at $____________________ Dollars ($__________).
[DRAFTER INSERT ADDITIONAL LANGUAGE HERE IF PHASED AGREEMENT.]
b. The total Fee for Construction General Conditions, which is included in the Guaranteed Maximum Price
(“GMP”) as defined under the Agreement, shall be fixed at $____________________ Dollars
($__________). [DRAFTER INSERT ADDITIONAL LANGUAGE HERE IF PHASED AGREEMENT.]
c.
The Guaranteed Maximum Price (“GMP”) for Construction Services, as defined under the Agreement, shall
be $____________________ Dollars ($__________). [DRAFTER INSERT ADDITIONAL LANGUAGE
HERE IF PHASED AGREEMENT.]
d. DELETE the blank template Exhibit F - Cost of the Work TEMPLATE from the Agreement, and ADD Exhibit
F - D-B Company Name Cost of the Work dated month, day, year, x Pages, attached hereto.
e.
ADD Exhibit G - D-B Company Name List of Construction Documents necessary to define Scope of Work
and deliverables for the Construction Phase Services, including plans, designs, drawings, specifications and
other required Contract Documents dated month, day, year, x Pages, attached hereto.
f.
ADD Exhibit H - D-B Company Name Statement of All Clarifications and Assumptions dated month, day,
year, x Pages, attached hereto.
g. ADD Exhibit J - D-B Company Name Schedule of Major Milestones dated month, day, year, x Pages, attached
hereto.
6. The total compensation under the Agreement, as amended by this Amendment, shall be:
Pre-Construction Phase
Construction Phase
Total
Original Agreement:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Previous Amendments:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Previous Change Orders
Fees
$
$
$
Reimbursable Expenses
$
$
$
This Amendment:
Fees
$
$
$
Reimbursable Expenses
$
$
$
Total Including This Amendment):
Fees
$
$
$
Reimbursable Expenses
$
$
$
All other provisions, terms and conditions of the Agreement shall remain unchanged and in full effect.
(Signature on following page.)
Exhibit E - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 2
OWNER
DESIGN-BUILDER
City of Glendale, Arizona
D-B Name
By: Its Authorized Representative:
By Its Authorized Representative:
Signature
Signature
Printed Name
Printed Name
Title
Title
Date
Date
ATTEST:
___________________________
Julie K. Bower
(SEAL)
City Clerk
APPROVED AS TO FORM:
___________________________
Michael D. Bailey
City Attorney
Exhibit E - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 3
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 28
EXHIBIT F
Cost of the Work
TEMPLATE
Design-Builder to provide a specific Cost of the Work
for each GMP Amendment
dated
(1 page) - (template)
(TBD pages) - (final document to be included with GMP Amendment)
[INSTRUCTION TO DRAFTER - ATTACH BLANK TEMPLATE EXHIBIT F HERE. DO NOT
INSERT ANY INFORMATION IN THE TEMPLATE DOCUMENT AT TIME OF AGREEMENT.]
INCLUDE THE ACTUAL COST OF THE WORK DOCUMENT, INCLUDING THE D-B’s
DETAILED GMP BREAKDOWN, WITH THE GMP AMENDMENT AT TIME OF GMP.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 29
T H I S P A G E I S B L A N K
Exhibit F - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 1
D-B Company Name
DESIGN-BUILD AGREEMENT - Exhibit F - Cost of the Work
Project Name - Project Number - Date
DIRECT CONSTRUCTION COST
Cost Code
Item of Work
GMP No. 1
GMP No. 2
GMP No. 3
GMP No. 4
Total GMP
#####
General Conditions - Personnel Staffing
$
-
$
-
$
-
$
-
$
-
#####
General Conditions - Site Operations
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Item of Work
$
-
$
-
$
-
$
-
$
-
#####
Allowances (if any)
$
-
$
-
$
-
$
-
$
-
#####
Bidding Contingency, Equal to ###% of DCC
$
-
$
-
$
-
$
-
$
-
SUBTOTAL DIRECT CONSTRUCTION COST (DCC)
$
-
$
-
$
-
$
-
$
-
CONSTRUCTION PHASE FEE
FEE
Fixed Fee, Equal to ###% of DCC
$
-
$
-
$
-
$
-
$
-
SUBTOTAL CONSTRUCTION PHASE FEE
$
-
$
-
$
-
$
-
$
-
INDIRECT CONSTRUCTION COSTS (ICC)
BONDS
D-B Performance and Payment Bonds - Actual Cost, not-to-Exceed
###% of DCC
$
-
$
-
$
-
$
-
$
-
D-B-managed Sub-Contractor Bond Program - Actual Cost not-to-
exceed ###% of DCC of covered Sub-Contractors (if applicable)
$
-
$
-
$
-
$
-
$
-
INSURANCE
D-B Insurances (Worker's Comp, General Liability, Auto Liability,
Umbrella) - Actual Cost, not-to-exceed ###% of DCC
$
-
$
-
$
-
$
-
$
-
Builder's Risk - Actual Cost not-to-exceed ###% of DCC
$
-
$
-
$
-
$
-
$
-
D-B-managed Sub-Contractor Insurance Program - Actual Cost
not-to-exceed ###% of DCC of covered Sub-Contractors (if
applicable)
$
-
$
-
$
-
$
-
$
-
TAXES
Actual Cost, Equal to ###% of DCC + Fee + Bond + Insurance
$
-
$
-
$
-
$
-
$
-
SUBTOTAL INDIRECT CONSTRUCTION COST (ICC)
$
-
$
-
$
-
$
-
$
-
TOTAL GMP = DCC + FEE + ICC
$
-
$
-
$
-
$
-
$
-
Exhibit F - Design-Build Agreement Scope of Services (January 15, 2023 Edition)
Page 2
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 30
EXHIBIT G
LIST OF CONSTRUCTION DOCUMENTS
Construction Documents necessary to define Scope of Work and Deliverables for the
Construction Phase Services, including plans, designs, drawings, specifications and other
required Contract Documents
dated
(tbd pages) - (final document - to be included with GMP Amendment)
[INSTRUCTION TO DRAFTER - THIS EXHIBIT COVER PAGE IS FOR REFERENCE
ONLY AT TIME OF AGREEMENT.
THE ACTUAL DOCUMENT WILL BE INCLUDED WITH THE GMP AMENDMENT AT
TIME OF GMP.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 31
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 32
EXHIBIT H
STATEMENT OF ALL CLARIFICATIONS AND ASSUMPTIONS
dated
(tbd pages) - (final document - to be included with GMP Amendment)
[INSTRUCTION TO DRAFTER - THIS EXHIBIT COVER PAGE IS FOR REFERENCE
ONLY AT TIME OF AGREEMENT.
THE ACTUAL DOCUMENT WILL BE INCLUDED WITH THE GMP AMENDMENT AT
TIME OF GMP.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 33
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 34
EXHIBIT J
SCHEDULE OF MAJOR MILESTONES
dated
(tbd pages) - (final document - to be included with GMP Amendment)
[INSTRUCTION TO DRAFTER - THIS EXHIBIT COVER PAGE IS FOR REFERENCE
ONLY AT TIME OF AGREEMENT.
THE ACTUAL DOCUMENT WILL BE INCLUDED WITH THE GMP AMENDMENT AT
TIME OF GMP.]
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 35
T H I S P A G E I S B L A N K
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 36
EXHIBIT K
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
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 37
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.
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 38
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
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 39
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.
Standard Form Agreement Between Owner and Design-Builder (January 15, 2023 Edition)
Page 40
T H I S P A G E I S B L A N K