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Docusign Envelope ID: 01B5D1DC-0F46-4334-A9A8-5A97DC2D326A
iC ,
Glendale
ARIZONA
C25-0494
SUNLAND ASPHALT & CONSTRUCTION, LLC
JOB ORDER MASTER CONTRACT
CONTRACT NO.
Docusign Envelope ID: 01B5D1DC-0F46-4334-A9A8-5A97DC2D326A
Table of Contents
Article !. ©§ PARTICIPANTS AND JOB ORDER CONTRACTING AGREEMENT .........cscssessssessesesseeseeseseseeessesaees 4
Section 1.01 PARTIES... ecceecseneceseeseeseesseeseessecseseaeceeceseceessesesseecseseeecaseeseseceeeeseseseeeseeseeeeaeeeeseaeens 4
Section 1.02 OVERVIEW OF JOB ORDER CONTRACTING UNDER THIS CONTRACT ..........sseseesseeeeeeneees 4
Section 1.03 SCOPE OF WORK UNDER THIS JOC CONTRACT..
Article Il. CONTRACT DOCUMENTS .......ccccecsseesssessseseessessssessessssesssesesesesesssssesssesessscsssssesssesnseeseeeeseeneees 6
Section 2.01 CONTRACT DOCUMENTS 0.0... ceececseeesceneeeeeeeseseeesssesesscessesessseesseseenenseeeeseeeeeeneees 6
Section 2.02 DEFINITIONS... ccc ccceccecsesceceecsecscsecsecsseeseessessseessecsesecsessessseessessesesseseeseaseseessesssseseneegs 7
Section 2.03 JOB ORDER PROCESS... eensee cence seneeeeeseneesseseeseeseseesseseneeeteseeeeeseeenegs 7
Section 2.04 JOB ORDER PROPOSAL.......c.cscccsesssssesssesssceseseeeesssesssesssesssssessscscssseesssseessessseeeseeeeeeneees 7
Section 2.05 ISSUANCE OF JOB ORDER AGREEMENTS (“JOA”) .
Article Ill. PRE-CONSTRUCTION SERVICES 0.00... cc cseesesssseessseeseeesecseeesecseessesseseeeeeeseseeseseeessesesesesseseeesaeenee 8
Section 3.01 PRE-CONSTRUCTION SERVICES ........cceceecssseseeseeesesseessessesseeeaeeeeecseeaeeaeseessaeseseeesaeeeeseneees 8
Article IV. CONSTRUCTION SERVICES ..... eee eeseceeeceseeeseeesseeesaeeesseeesaeceseeseseessseeesseseseesesaessaeeesesenseeesaee 8
Section 4.01 GENERAL uu... cececccsscseseseesesssesesssesssssessscssssessesssesesesssssessscssssscesscssssseesssseessesseeeeseeeseesensets 9
Section 4.02 CONTRACTOR’S PRE-CONTRACT AND PRE-WORK DELIVERABLES.........cssessesssseseseseeees 9
Section 4.03 PRE-CONSTRUCTION CONFERENCE...
Article V. CITY RESPONSIBILITIES ....... ec ceeeee ee nee r eens ne rene eens seeneneteseneneseeecetessseceseseseeneseesaeeneneee 9
Article VI. CONTRACT TIME... cccscccessseccesesecssescescsessecscsecsscsceecsessecscsessscsseecsussaceseessecssesseesaseessaseasasees 10
Section 6.01 CONTRACT TERM .......ccccccssesssseescseseteescssseeescssseeecasscseescssseseescssseeeeesseseecesseieeesssieeneasaeits 10
Section 6.02 CONTRACT TIME FOR SPECIFIC JOB ORDERS ..........cssssescsssessesessseesessseseeesssseeeesssseeeeaseeees 10
Section 6.03 PROJECT SCHEDULE oo. eee renee renee cree nseneeeseeeeceseeeeteeeneeeneeets 10
Section 6.04 SUBSTANTIAL COMPLETION ....
Section 6.05 FINAL ACCEPTANCE........cccsccesesseseesseseesseeceeseeeeeseeseeeaeeaeseeseaecaeeeaeeeeeaeseeeaesaeeneeearenaeenes 10
Section 6.06 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES ONLY ........cccsessseseeseeeteeeseeseeeseees 11
Article VII. © CONTRACT PRICE... cccsceccsesescsesescseseessesssssesssescsssesssnsseesesesssessssseseessessesscesesseesenseenseseengs 11
Section 7.01 CONTRACT PRICE... iene erence reine cereneeecesenseeteseseeeseneeecesenieecesieneeeneeees 11
Section 7.02 COSTS ...cccccccccccccssccsscsecscsscsessecsssscsesssssseecesssssssecseseceessessseesecsesesseseessseesessseesseeeeseges 11
Article Vill. © PAYMENT.
Article IX. CHANGES TO THE CONTRACT ......ccsscsssssseeseesesscssescsessesseesessesecsesessessecessessecseeassesaesassasseeasees 12
Article X. SUSPENSION AND TERMINATION .......cccccceseeseese ees ceseesesecesscseeecesseecenessssesesesssseseseesaeenenes 12
Section 10.01 FOR CONVENIENCE ..... cei eeieneerenene erence rneneeetseseceseseesesenieeseseneeenieees 12
Section 10.02 FOR CAUSE uo... eicececccessccesesessecscsscseseeecessecsseecsecseeecesseseseessecsesesesseseseesessseeeeeaeeege 12
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Article XI. INSURANCE AND BONDS... .eeeseecceseesceeseeseeeeeeaeeeeeeaeeseeesecsaeeaeeseesaeeaeeeeeaeseaeeaeseaeeaeeeeteaees 13
Section 11.01 INSURANCE REQUIREMENTS ....... ccc ceseceeeceseeseeeeeseesseeessaseeeseeeceaeessesesseseseeeeaeees 13
Article XI. INDEMNIFICATION ou... ccccscecesesesesescsescsesessseseessescsssessscscsessssssssessseseseseseseassescssseesseenenanenenes 18
Article XIII. © DISPUTE RESOLUTION... .c.cececescseeseesesessseseessesesssesssescsssessesssssesssssesescseseacseseesseesacseenaneneees 18
Section 13.01 DISPUTES... cecccecce ccc ceesseceesecsecsseeseessessseessecsesecseseeseseessessssesesseseseessessseesseeseeeges 19
Section 13.02 = ARBITRATION ........eeeecesceeseeseeeeeeseeeeeeseeaeeeaeeseeeeesaeeeaeeaeseeeaecaeseaeeeeeaeseeeaesaeseeeeateeeenes 19
Section 13.03 = SERVICES TO CONTINUE PENDING DISPUTE .......c.cccecssssesssesesssesseessseesseseseseseseseseesseees 20
Section 13.04 — EXCEPTIONS .o...ceccccecsseesssesesssessscesssesseseseseseseseseecsessssseessssesssessssssseesssssessesseasesseasseee 20
Article XIV. © MISCELLANEOUS PROVISIONS .......c.csesssessseesssesesssesssescscsesssssssesssesesesesesesesescssseesseesenseeneeee 21
Section 14.01 MISCELLANEOUS PROVISIONS 0.00... cceeceeceesseseeeseeneeeseeseseeeseeseeeeeecaeeeeeeaeeeseeesseeseeseeeeeees 21
Section 14.02 PERFORMANCE MEASUREMENT ..........cccessesceseeseeeseeseeeseeseeeeeeaeeaeeeeeeaeenseeaeseeetaeseeeeaees 21
Section 14.03 COOPERATIVE USE OF CONTRACT...
Article XV. SIGNATURE PAGE... ccceccceceseseesescesesssesssssesrscsssssesssceseesssesesssesesssesesesescesseecesscessnssesseseangs 22
Article XVI. EXHIBITS .....cccccscscscessseseseesesesesescscscssscssscscessesssssessscsssssesessssssessessesescsesescscscssscesscesesaeeseegs 23
Section 16.01 STANDARD JOB ORDER AGREEMENT FORM..........eceeseseeseceseeneeseeeseteeeeeesaeeeeeeaseeeeaes 23
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JOB ORDER MASTER CONTRACT
This Job Order Master Contract (“Contract”) is entered into and effective between City of
Glendale, an Arizona municipal corporation ("City") and Sunland Asphalt & Construction, LLC,
an Arizona limited liability company, ("Contractor") as of the 10th day of June, 2025
(“Effective Date”).
CITY and CONTRACTOR agree as follows:
Article |. PARTICIPANTS AND JOB ORDER CONTRACTING AGREEMENT
Section 1.01 PARTIES
CITY: City of Glendale
Project Manager: John Murphey
Address: 5850 W. Glendale Ave., Glendale AZ 85301
Telephone: (623) 930-2659
E-mail: JMurphey@Glendaleaz.com
CONTRACTOR: Sunland Asphalt & Construction, LLC
Project Manager: Chance Cherry
Address: 1625 E. Northern Ave
Arizona ROC No.: 111922 & 095189
Telephone: (602) 323-2800
E-mail: ccherry@SunlandAsphalt.com
(Prior to execution of the Contract, Contractor must provide to City’s Engineering Department its
Contractor’s License Classification and current job appropriate insurance certificate.)
Section 1.02 OVERVIEW OF JOB ORDER CONTRACTING UNDER THIS CONTRACT
(a) This Contract establishes an indefinite delivery, indefinite quantity, Job Order Contract
for such Construction services within the scope of this Contract as City may request
from time to time by issuance of an individual Job Order for each Project. There will be a
separate Job Order for each Project that will describe the Work to be provided by
Contractor for that Project. There may be multiple Projects and therefore multiple Job
Orders under this Contract.
(b) The amount to be paid by the City for the Project under each Job Order is the Contract
Price for the Job Order. The Contract price includes the Contract price for the Work. The
Contract Price for any Job Order may be either a Fixed Price or a Guaranteed Maximum
Price (GMP), subject to the following.
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(c)
(d)
(e)
(f)
(g)
The Contract Price for each Job Order shall not exceed $2,500,000, including any Change
Orders.
The cumulative sum of the Job Orders performed by Contractor during the term of the
agreement shall not exceed_$8,000,000.
There is no limit nor minimum on the number of Job Orders that City may issue to
Contractor during any twelve (12) month term of this Contract or during the entire
period this Contract is in effect.
Contractor may refuse any Job Order under this Contract.
This Contract does not obligate or require City to offer any Job Order Agreement to
Contractor, no Contract in relation to any specific Work being entered into until a Job
Order Agreement therefore has been fully executed by City and Contractor which shall
enable work to begin.
Section 1.03 SCOPE OF WORK UNDER THIS JOC CONTRACT
This Contract is for a broad range of maintenance, repair and construction work on real property,
or within the public right-of-way. The scope of this Contract will be to provide construction
services for a broad range of City pavement management projects such as but not limited to the
following:
1. Constructing ADA accessible features including: ramps, warning features, way-making
features, and other improvements to meet ADA requirements.
2. Crack seal (all types)
3. Asphalt Patching (all types)
4. AC pavement Rejuvenators (polymer modified rejuvenating emulsion)
5. Sealcoats (PMM, LiquidRoad, Onyx, Guardtop etc.)
6. Slurry seals (all types)
7. FAST (all types e.g., high vol & low vol)
8. Thin Overlays (hot applied, all types)
9. Asphalt Milling
10. HMA (for overlays, new construction, etc.)
11. Obtain all necessary permits required to complete the job order, including but not
limited to; SWPPP, dust control, traffic control plans, etc.
12. Conduct project meetings as necessary to maintain the project budget and schedule, set
agendas, and prepare and distribute meeting minutes.
13. Subgrade preparation including compacting native soil, placing and compacting sub-
grade materials, and grading.
14. Coordinating with utility companies and/or the City to replace, relocate, remove, or
install street light systems, traffic signal poles, mast arms, control equipment, traffic
signal equipment, loop detectors and detection equipment.
15. Utility Locating (potholing) underground utilities and obstructions.
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16.
17.
18.
19.
20.
21.
22
23.
24
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
Micro seals (all types)
Scrub Seals (all types)
Fog seals (all types)
Misc. AC emulsions
Crack mastic (all types)
Thermally Bonded AC Joint
. Stress Absorbing Membrane Interlayer (SAMI) type materials
Hot in place AC recycling
. Cold in place AC recycling
Minor Bridge Repair and Maintenance
Placing/relocating conduit and boxes and be able to place vaults, hand holes and pull
boxes.
Installation and possible removal of concrete pavements including curb and gutter,
driveways, roadways, ramps, sidewalks, culverts, boxes, and hard-scape features, walls,
abutments, retaining walls, brick pavers and landscape features.
Drainage features including scuppers, gutters, valley gutters, drains, pipes, basins, lined
and unlined swales and channels, dry-wells, catch basins and culverts/headwalls.
Striping and signing including, design of plans and specifications, providing and installing
project signs, and installing striping, symbols, raised pavement markers and signage
Preparing traffic control plans, providing traffic set-up in accordance with the approved
traffic control plans and barricading work areas.
Earthwork: site rough and finish grading.
Stamped, painted and thermoplastic decorative asphalt.
Bikeways, multi-use paths: concrete, asphalt, granite, natural materials.
Minor wet and/or dry utility installation, relocation, and adjustments.
Minor landscaping, irrigation systems and controls.
Location and site survey.
Article Il. © CONTRACT DOCUMENTS
Sectio'
(a)
(
n2.01 CONTRACT DOCUMENTS
The Contract between City and Contractor shall consist of the following Contract
Documents:
(i) This Contract (including Exhibits thereto):
(ii) Supplemental General Conditions
Design and Construction Documents and Forms - City of Glendale (glendaleaz.com)
iii) For each individual Project, the Job Order therefore, including the Exhibits thereto:
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(b)
1) Standard Job Order Agreement Form
2) Scope of Work
3) Unique Insurance and/or Bond Requirements (if any);
4) Unique Government Provisions Compliance (if any).
Conflicts. In the event of conflicts in terms between a specific Job Order, this Contract
and/or the Supplemental General Conditions or appendix thereto, the specific Job Order
Agreement, and then this Contract shall control.
Section 2.02 DEFINITIONS
The definitions in Section 2 of the Supplemental General Conditions apply to all the Contract
Documents, including this Job Order Master Contract. Additional definitions or defined terms
applicable to all the Contract Documents for a specific Project, if any, will be included in each Job
Order Agreement.
Section 2.03 JOB ORDER PROCESS
(a)
(b)
(c)
(d)
(e)
When the City identifies the need for performance from a Job Order Contract, the City
will issue an individual Job Order proposal request to Contractor.
Within seven (7) business days of receipt of this request, the Contractor shall arrange to
visit the site with the City designated representatives and arrange with the City to further
scope the project.
Contractor shall respond within ten (10) business days of the Job Order proposal request
or site visit, whichever is later or as otherwise indicated on a case-by-case basis, by
submitting Contractor’s Job Order Proposal to the City representative.
The City and Contractor shall enter negotiations for scope and price. Should City and
Contractor fail to reach agreement during the negotiation period, the City will cancel the
negotiations and request a proposal from another Job Order Contractor or solicit
construction services via another means. The City agrees not to use the proposal as a
bargaining tool (i.e. “bid shop”) with other vendors.
Upon agreement, the City will draft a Job Order Agreement. Each Job Order shall be in the
form attached as Exhibit A hereto and shall not be effective or binding until fully executed
by all parties.
Section 2.04 JOB ORDER PROPOSAL
(a)
Contractor will not be reimbursed for any Pre-Job Order costs, including proposal
preparation, attendance during negotiations, or site visits.
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(b)
(c)
(d)
(e)
Unless otherwise required under the terms of the Job Order proposal request,
Contractor’s Job Order proposal shall include the following:
(i) Contractor’s Price Proposal in PDF and electronic format (as directed by the City);
(ii) A project schedule and schedule of values that reflects the costs of each work element
on the schedule. The schedule must show all milestones (e.g. permits, submittals,
ordering materials, demolition, work phases, closeout, and completion date, 2-year
warranty affirmation);
(iii) Necessary documentation will be required to indicate that adequate scoping, layout,
setup and planning to accomplish the work has been done.
The City may require either a unit cost proposal or a lump sum Job Order proposal. Should
the lump sum proposal methodology be accepted, the City and Contractor agree that the
schedule of values is provided to demonstrate proper understanding of the project and
that individual lines/items will not be added at the end of the Job Order.
Direct job costs shall be based upon firm price quotes for Subcontractors on Contractors
approved Subcontractor lists. To the extent possible, Contractor shall obtain firm price
quotes from three (3) subcontractors for each discipline applicable to the project. Should
the Contractor self-perform the work, quotes are not required.
The City may reject any Subcontractor without cause. Contractor shall use the City of
Glendale Subcontractor listing form.
Section 2.05 ISSUANCE OF JOB ORDER AGREEMENTS (“JOA”)
(a)
(b)
Upon award of a Job Order, a signed copy of the Job Order will be electronically forwarded
to Contractor. Failure by Contractor receive the electronic orders shall not relieve
Contractor from the obligation to complete the Work under the Job Order in accordance
with the Job Order.
The Project duration starts with the date on the Notice to Proceed.
Article Ill. © PRE-CONSTRUCTION SERVICES
Section 3.01 PRE-CONSTRUCTION SERVICES
(a)
Costs for Pre-Construction Services are included in Contractor’s overhead Job Orders
unless additional Pre-Construction Services are requested and contracted as a separate
Job Order for specific Work as requested and approved by the City.
Article IV. CONSTRUCTION SERVICES
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Section 4.01 GENERAL
(a)
(b)
(c)
Contractor agrees at its own cost and expense, to do all work necessary and required to
fully, timely and properly complete the construction of the Project in strict accordance
with the Contract Documents in a good and workmanlike manner, free and clear of all
claims, liens, and charges whatsoever, in the manner and under the conditions specified,
and within the Project Schedule.
Contractor shall provide quality control for all work under this contract. Quality control is
considered part of the required work in each job order and separate payment shall not
be made for this effort.
At all times relevant to this Contract and performance of the Work, Contractor shall fully
comply with all Laws, Regulations, or Legal Requirements applicable to City, the Project
and the Contract, including, without limitation, those set forth in the Exhibits to this
Contract and each Job Order Agreement.
Section 4.02 CONTRACTOR’S PRE-CONTRACT AND PRE-WORK DELIVERABLES
(a)
(b)
The Contractor will provide the Deliverables in accordance with the Supplemental
General Conditions.
Any additional items which Contractor must deliver to City prior to commencing the Work
in the Job Order, if any, shall be set forth in the Job Order Agreement.
Section 4.03 PRE-CONSTRUCTION CONFERENCE
(a)
(b)
Contractor shall attend the Pre-Construction Conference in accordance with Section 26
of the Supplemental General Conditions. Other Pre-Construction Conference
requirements for a specific Job Order shall be set forth in each Job Order Agreement.
The City shall issue a notice to proceed at the pre-construction conference, however, this
may be waived if determined to be in the City’s best interest.
Article V. CITY RESPONSIBILITIES
(a)
(b)
(c)
City shall have the responsibility, and provide, where possible, as-built documents of
existing facilities and site plan information.
Additional services to be provided or responsibilities assumed, by City, if any, shall be
listed in the Job Order Agreement.
Additional information to be provided by City, if any, shall be listed in the Job Order
Agreement.
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Article VI. CONTRACT TIME
Section 6.01 CONTRACT TERM
The Contract expiration date is September 30, 2028, with no renewal options.
Section 6.02 CONTRACT TIME FOR SPECIFIC JOB ORDERS
(a) The Contract Time for each Job Order shall start with date listed on the Notice to Proceed
and end with a Letter of Acceptance (LOA), as set forth in Section 6.5 below. The Notice
to Proceed will not be issued until prior approval and acceptance by City of the Job Order.
(b) The Contract Time is identified in the Job Order as the Contract Duration in terms of
calendar days. Contractor agrees that it will commence performance of the Work after
receiving an official NTP letter and complete the Project through Final Acceptance (Letter
of Acceptance) within the Contract Time.
(c) Time is of the Essence of this Contract, and each Job Order issued hereunder, for each
Project.
(d) Failure to the part of Contractor to adhere to the approved Project Schedule will be
considered for cause to receive no additional Job Orders and / or any contract extensions.
Section 6.03 PROJECT SCHEDULE
The Project Schedule shall be updated and maintained throughout Contractor’s performance
under a Job Order in accordance with Section 28 of the Supplemental General Conditions.
(a) For job orders in excess of forty-five (45) days in duration, Contractor shall submit a
Critical Path Method (CPM) schedule using Microsoft Project or equivalent software
acceptable to the City.
Section 6.04 SUBSTANTIAL COMPLETION
Substantial Completion shall be achieved no later than the Substantial Completion Date set forth
in the Project Schedule. Substantial Completion shall be determined in accordance with
Paragraph 31.3 of the Supplemental General Conditions.
(a) Failure to complete Job Orders within the Job Order time may result in the City issuing no
additional requests for Job Order proposals.
(b) Paragraphs 31.1 and 31.2 of the Supplemental General Conditions regarding liquidated
damages do not apply to Job Order Agreements.
Section 6.05 FINAL ACCEPTANCE
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(a)
(b)
Final Acceptance will be obtained within the time period set forth in the Project Schedule.
Final Acceptance will be issued pursuant to Paragraphs 31.4 and 32 of the Supplemental
General Conditions.
Section 6.06 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES ONLY
(a)
(b)
(c)
Contractor and City waive claims against each other for consequential damages arising
out of or relating to this Contract. This mutual waiver includes:
(i) Damages incurred by City for rental expenses, for losses of use, income, profit,
financing, business and reputation, and for loss of management or employee
productivity or of the services of such persons; and
(ii) Damages incurred by Contractor for principal office expenses including the
compensation of personnel stationed there, for losses of financing, business and
reputation, and for loss of profit except anticipated profit arising directly from the
Work.
This mutual waiver is applicable, without limitation, to all consequential damages due to
either party’s termination of this Contract.
Nothing herein shall be deemed to constitute a waiver of any other remedy available to
City in the event of Contractor’s default under this Contact prior to full performance of
the Work including, as applicable, specific performance or completion of the Work on
behalf of Contractor, the cost and expense of which shall be offset against any monies
then or thereafter due to Contractor (if any) and otherwise immediately reimbursed to
City by Contractor.
Article Vil. CONTRACT PRICE
Section 7.01 CONTRACT PRICE
(a)
(b)
In exchange for Contractor’s full, timely, and acceptable performance and construction of
the Work under a specific Job Order, and subject to all the terms of this Contract, City will
pay Contractor the Contract price, agreed to in each Job Order.
The Contract Price for each Job Order is all inclusive and specifically includes all fees, costs,
overhead, profit, insurance and bond premiums, and taxes of any type necessary to fully,
properly and timely perform and construct the Work.
Section 7.02 COSTS
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(a)
For any portion of the Work which, either through this Contract, specific Job Order,
Change Order or otherwise, is performed and paid for on a cost, or time and materials
basis, the costs which may be reimbursed to Contractor and/or chargeable against the
Contract price shall be determined as set forth in Section 32 of the Supplemental General
Conditions.
Article Vill. PAYMENT
(a)
(b)
If the Work under a specific Job Order is to be completed in less than forty-five (45),
Contractor shall submit a single invoice, and payment thereon shall be made in a single
lump sum payment, to the extent payment is actually and currently owed, in accordance
with. A.R.S. § 34-609.
If the Work under a specific Job Order is to be completed in forty-five (45) days or more,
payments shall be made to Contractor monthly and in accordance with Section 32 of the
Supplemental General Conditions.
Article IX. ©.CHANGES TO THE CONTRACT
Changes to the Contract and/or Job Orders may be made in mutual agreement by the Contractor
and the City.
Article X. © SUSPENSION AND TERMINATION
Section 10.01 FOR CONVENIENCE
(a)
(b)
(c)
City may terminate this Contract for convenience, without cause, by delivering a written
termination notice stating the effective termination date, which may not be less than
fifteen (15) days following the date of delivery.
Contractor will be equitably compensated any services and materials furnished prior to
receipt of the termination notice and for reasonable costs incurred.
Contractor will also be similarly compensated for any approved effort expended and
approved costs incurred that are directly associated with Project closeout and delivery of
the required items to the City.
Section 10.02 FOR CAUSE
(a)
City may terminate this Contract for cause if Contractor fails to cure any breach of this
Agreement within seven days after receipt of written notice specifying the breach.
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(b)
(c)
Contractor will not be entitled to further payment until after City has determined its
damages. If City's damages resulting from the breach, as determined by City, are less than
the equitable amount due but not paid Contractor for Service and Repair furnished, City
will pay the amount due to Contractor, less City's damages.
If City's direct damages exceed amounts otherwise due to Contractor, Contractor must
pay the difference to City immediately upon demand; however, Contractor will not be
subject to consequential damages more than $2,000,000 or the amount of this Contract,
whichever is greater.
Article Xl. INSURANCE AND BONDS
(a)
(b)
(c)
Contractor shall provide insurance as provided on the Exhibits attached hereto, and such
additional insurance as may be applicable under each Job Order Agreement. Contractor
shall provide proof of such insurance and all required endorsements in forms acceptable
to City prior to commencing any Work under this Contract.
Contractor shall provide performance and payment bonds to City, in accordance with
A.R.S. § 34.610(A), to cover Job Orders issued under this Contract, for the full amount of
each Job Order Agreement, however, this may be waived if determined to be in the City’s
best interest.
Failure to provide proof of insurance and the required endorsements (including a current
insurance Certificate of Liability, Section 11.01), or the required bonds, in forms
acceptable to City will be a material breach and grounds for termination for cause of this
specific Job Order and/or this Contract.
Section 11.01 INSURANCE REQUIREMENTS
The City only accepts the most recent version of ACORD® Certificate of Liability Insurance form
with additional insured endorsements. The Builder’s Risk policy (if required) and the Owners and
Contractors Protective Liability (OCP) policy shall remain in effect during construction through
the date of project Final Acceptance. The remainder of the insurance policies shall remain in
effect during construction and through the one-year warranty period that follows project Final
Acceptance, unless otherwise specified in contract documents. Proof of all required coverage(s)
shall be provided by the Contractor.
Commercial General Liability Policy forms must include:
(a)
Premises and Operations coverage with no explosion, collapse or underground damage
(XCU) exclusions;
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(b)
(c)
(d)
(e)
(f)
(g)
(h)
Products and Completed Operations coverage. Contractor agrees to maintain this
coverage for a minimum of ten (10) years following completion of the Contractor Work
and to continue to name City as an Additional Insured for the entire 10-year period;
Blanket contractual coverage for the indemnity/hold harmless agreements assumed in
this Subcontract and in the Prime Contract. Any Employee Exclusion will be deleted;
Broad Form Property Damage coverage, including completed operations or its equivalent;
An endorsement in a form acceptable to the City, naming City, any other party required
to be named as an additional insured under the Contract Documents, and any other
parties in interest as Additional Insured(s) under the coverage specified under
Commercial General Liability. Any form that does not grant additional insured status for
both the ongoing operations and products/completed operations coverages IS NOT
ACCEPTABLE;
An endorsement in a form acceptable to the City, stating: "Such coverage as is afforded
by this policy for the benefit of the additional insured(s) is primary and noncontributory
except for any builder’s risk property insurance coverage that may be purchased and
maintained by City in connection with the Project, any other coverage maintained by such
additional insured(s) shall be non-contributing with the coverage provided under this
policy;”
Coverage SHALL BE on an "Occurrence" form. "Claims Made" and "Modified Occurrence"
forms are not acceptable;
Coverage to include general aggregate limits on a "per project" basis;
1) Workers’ Compensation (required for both Contractors):
a) Coverage A. Statutory Benefits Coverage B. Employer’s Liability
b) Bodily Injury by accident: $2,000,000 each accident
c) Bodily Injury by disease: $2,000,000 policy limit
d) Bodily Injury by disease: $2,000,000 each employee
2) Commercial Auto Coverage (required for Contractors):
a) Auto Liability limits of not less than $2,000,000 Combined Single Limit (Each
Accident), combined Bodily Injury and Property Damage Liability insurance.
Certificate to reflect coverage for "Any Auto, All Owned, Scheduled, Hired, or
Non-Owned."
3) Commercial General Liability (required for both Contractors):
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Each Occurrence Limit: $2,000,000
Personal Injury/Advertising Injury Limit: $2,000,000
Products/Completed Operations Aggregate Limit: $4,000,000
General Aggregate Limit: $2,000,000
(other than Products/Completed Operations)
4) Excess Liability:
Umbrella or Excess Liability may be used to satisfy the above Auto and General
Liability coverage requirements and limits to reach a total combined limit of:
Auto: Amount sufficient to cover difference in limits when
compared to minimum coverage required.
Each Occurrence: Amount sufficient to cover difference in limits when
compared to minimum coverage required.
Aggregate: Amount sufficient to cover difference in limits when
compared to minimum coverage required.
5) Builders Risk (if required, will be required for Contractors only):
a)
b)
c)
Contractor shall include in its Cost Proposal the cost to obtain builders risk or
“all risk” or equivalent policy form coverage in the amount of the initial
Construction Costs (Hard Costs). This required insurance coverage is required
on projects that are typically outside the public rights-of-way whereby the City
is constructing or modifying a public building.
The City may, at the City’s sole option, purchase and maintain, in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Project is located, property insurance written on a builders risk "all-risk" or
equivalent policy form in the amount of the initial Construction Costs (Hard
Costs), plus value of subsequent contract modifications and cost of materials
supplied or installed by others, comprising total value for the entire Project at
the site on a replacement cost basis.
This insurance shall include interests of the City, Contractor and its
subcontractors in the Project, and shall include, without limitation, insurance
against the perils of fire and physical loss or damage including, without
duplication of coverage, theft, vandalism, malicious mischief, collapse,
earthquake, flood, windstorm, falsework, testing and startup, temporary
buildings and debris removal, including demolition occasioned by enforcement
of any applicable legal requirements.
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qd)
City shall bear the responsibility for the deductible for such coverage when a
loss affects the Work, provided, however, to the extent such loss is attributable
to the negligent or wrongful acts or omissions of Contractor or someone for
whom Contractor is responsible, Contractor shall bear the responsibility of the
deductible. Such property insurance will not cover any tools or equipment
owned or rented by Contractor that will not be incorporated into the Project,
including trailers, excavators, scaffoldings, or forms. Contractor is responsible
for providing insurance coverage for such items.
6) Owners and Contractors Liability Policy (OCP) (required for Contractors only):
a)
Owners and Contractors Liability Policy: Prior to the execution of the Contract
the Contractor shall provide a separate policy of insurance in the amount of
$2,000,000, per occurrence, at its sole cost and expense, naming the City of
Glendale, a Municipal Corporation and all its agents, representatives, officers,
directors, officials and employees as the insured. The Policy shall be primary
and not contributory to any insurance or self-insurance maintained by the City
of Glendale and shall remain in effect through date of Final Acceptance.
7) Other Requirements:
a)
b)
If the Contractor maintains broader coverage and/or higher limits than the
minimums shown above, the City requires and shall be entitled to the broader
coverage and/or the higher limits maintained by the contractor. Any available
insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City.
All policies must be written by insurance companies whose rating, in the most
recent AM Best’s Rating Guide, is not less than A-VII. All coverage forms must
be acceptable to City.
ACORD® Certificate of Liability Insurance form with the required endorsements
evidencing the required coverages must be PROVIDED to the City prior to
commencement of any Work. Failure of City to demand such certificate or
other evidence of full compliance with these insurance requirements or failure
of City to identify a deficiency from evidence that is provided shall not be
construed as a waiver of Contractor’s obligation to maintain such insurance.
City shall have the right, but not the obligation, to prohibit Contractor or any of
its subcontractors from entering the Project site until such certificates or other
evidence that insurance has been placed in complete compliance with these
requirements is received and approved by City.
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d)
f)
8)
h)
i)
k)
The policies shall provide waivers of subrogation by endorsement or otherwise
in favor of the City. A waiver of subrogation shall be effective as to a person or
entity even though that person or entity would otherwise have a duty of
indemnification, contractual or otherwise, did not pay for the insurance
premium directly or indirectly, and whether or not the person or entity had an
insurable interest in the property damaged.
The following policies shall include Waiver of Subrogation endorsements:
i) Workers’ Compensation
The following policies shall include Additional Insured endorsements:
i) Commercial Auto Coverage
ii) Commercial General Liability
iii) Excess Liability
iv) Builders Risk, and as loss payee
Contractor shall be responsible for satisfying any deductible or self-insured
retention with respect to any of the coverages required by the Contract
Documents to be provided by Contractor.
City reserves the right, in its sole discretion, to require higher limits of liability
coverage if, in City’s opinion, operations by or on behalf of Contractor create
higher than normal hazards and, to require Contractor to name additional
parties in interest to be Additional Insureds.
In the event that rental of equipment is undertaken by Contractor or any
Subcontractor to complete and/or perform the Work, Contractor agrees that
it shall be solely responsible for such rental equipment. Such responsibility
shall include, but not be limited to protection against theft, fire, vandalism and
use by unauthorized persons.
In the event that materials or any other type of personal property ("personal
property") is acquired for the Project or delivered to the Project site,
Contractor agrees that it shall be solely responsible for such property until it
becomes a fixture on the Project, or otherwise is installed and incorporated as
a final part of the Project. Such responsibility shall include, but not be limited
to protection against theft, fire, vandalism and use by unauthorized persons.
If City elects to utilize an Owner Controlled Insurance Program ("OCIP") which
provides coverage for the Work, the Contractor shall comply with all
provisions of any such OCIP.
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l) Any additional provisions specific to the Project are attached. In the event of
any conflict between the attached terms and the terms of this Exhibit,
Contractor shall comply with the more stringent provisions.
m) If a policy does expire, a renewal certificate of the required coverage shall be
sent to the City of Glendale not less than five (5) days prior to the expiration
date or, if a policy is to be cancelled, changed or not renewed, a proper notice
of such action shall be sent to the City not less than ten (10) days prior to any
such action by the insurance company.
NOTICES SHALL BE SENT TO:
City of Glendale
Engineering Department
5850 W. Glendale Avenue
Glendale, AZ 85301
Article XII. INDEMNIFICATION
(a)
(b)
(c)
To the fullest extent permitted by law, Contractor must defend, indemnify, and hold
harmless City and its elected officials, officers, employees and agents (each, an
"Indemnified Party," collectively, the "Indemnified Parties"), for, from, and against any
and all claims, demands, actions, damages, judgments, settlements, personal injury
(including sickness, disease, death, and bodily harm), property damage (including loss of
use), infringement, governmental action and all other losses and expenses, including
attorneys' fees and litigation expenses (each, a "Demand or Expense"; collectively,
"Demands or Expenses") asserted by a third-party (i.e. a person or entity other than City
or Contractor) and that arises out of or results from the breach of this Agreement by the
Contractor or the Contractor’s negligent actions, errors or omissions (including any
Subcontractor or other person or firm employed by Contractor), whether sustained
before or after completion of the Project.
This indemnity and hold harmless provision applies even if a Demand or Expense is in part
due to the Indemnified Party's negligence or breach of a responsibility under this
Agreement, but in that event, Contractor shall be liable only to the extent the Demand or
Expense results from the negligence or breach of a responsibility of Contractor or of any
person or entity for whom Contractor is responsible.
Contractor is not required to indemnify any Indemnified Parties for, from, or against any
Demand or Expense resulting from the Indemnified Party's sole negligence or other fault
solely attributable to the Indemnified Party.
Article XIII. DISPUTE RESOLUTION
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Section 13.01 DISPUTES
(a)
(b)
(c)
(d)
Commitment. The parties commit to resolving all disputes promptly, equitably, and in a
good-faith, cost effective manner.
Application. The provisions of this Exhibit will be used by the parties to resolve all
controversies, claims, or disputes ("Dispute") arising out of or related to this Agreement-
including Disputes regarding any alleged breaches of this Agreement.
Initiation. A party may initiate a Dispute by delivery of written notice of the Dispute,
including the specifics of the Dispute, to the Representative of the other party as required
in this Agreement.
Informal Resolution. When a Dispute notice is given, the parties will designate a member
of their senior management who will be authorized to expeditiously resolve the Dispute.
(i) The parties will provide each other with reasonable access during normal business
hours to any and all non-privileged records, information and data pertaining to any
Dispute in order to assist in resolving the Dispute as expeditiously and cost effectively
as possible;
(ii) The parties' senior managers will meet within ten (10) business days to discuss and
attempt to resolve the Dispute promptly, equitably, and in a good faith manner, and
(iii) The Senior Managers will agree to subsequent meetings if both parties agree that
further meetings are necessary to reach a resolution of the Dispute.
Section 13.02 ARBITRATION
(a)
Rules. If the parties are unable to resolve the Dispute by negotiation within thirty ( 30)
days from the Dispute notice, and unless otherwise informal discussions are extended by
the mutual agreement, the Dispute will be decided by binding arbitration in accordance
with Construction Industry Rules of the AAA, as amended herein. Although the arbitration
will be conducted in accordance with AAA Rules, it will not be administered by the AAA,
but will be heard independently.
(i) The parties will exercise best efforts to select an arbitrator within five (5) business
days after agreement for arbitration. The parties will equally share the fees and costs
incurred in the selection of the arbitrator.
(ii) The arbitrator selected must be an attorney with at least fifteen (15) 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 10 years.
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(b)
(c)
(d)
(e)
(f)
Discovery. The extent and the time set for discovery will be as determined by the
arbitrator. Each Party must, however, within ten (10) days of selection of an arbitrator
deliver to the other Party copies of all documents in the delivering party's possession that
are relevant to the dispute.
Hearing. The arbitration hearing will be held within ninety (90) days of the appointment
of the arbitrator. The arbitration hearing, all proceedings, and all discovery will be
conducted in Glendale, Arizona unless otherwise agreed by the parties or required as a
result of witness location. Telephonic hearings and other reasonable arrangements may
be used to minimize costs.
Award. At the arbitration hearing, each Party will submit its position to the arbitrator,
evidence to support that position, and the exact award sought in this matter with
specificity. The arbitrator must select the award sought by one of the parties as the final
judgment and may not independently alter or modify the awards sought by the parties,
fashion any remedy, or make any equitable order. The arbitrator has no authority to
consider or award punitive damages.
Final Decision. The Arbitrator's decision should be rendered within fifteen (15) days after
the arbitration hearing is concluded. This decision will be final and binding on the Parties.
Costs. The prevailing party may enter the arbitration in any court having jurisdiction in
order to convert it to a judgment. The non-prevailing party shall pay all of the prevailing
party's arbitration costs and expenses, including reasonable attorney's fees and costs.
Section 13.03 SERVICES TO CONTINUE PENDING DISPUTE
(a)
Unless otherwise agreed to in writing, Contractor must continue to perform and maintain
progress of required services during any Dispute resolution or arbitration proceedings,
and City will continue to make payment to Contractor in accordance with this Agreement.
Section 13.04 EXCEPTIONS
(a)
(b)
Third Party Claims. City and Contractor are not required to arbitrate any third-party claim,
crossclaim, counter claim, or other claim or defense of a third-party who is not obligated
by contract to arbitrate disputes with City and Contractor.
Liens. City or Contractor 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.
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