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CONSTRUCTION CONTRACT - STIPULATED SUM
(DESIGN-BID BUILD PROJECT)
Vulture Mountain Recreation Area Amenities
Office of Procurement Services
Serial# 240064-DBB
Contract# 240064-DBB
C-----------
Project# 240064-DBB
PARKS AND RECREATION
MARICOPA COUNTY, ARIZONA
CONTRACT AGREEMENT
THIS AGREEMENT, is made and entered into this 23 day of October, 2024, by and between
MARICOPA COUNTY, hereinafter called the COUNTY, acting by and through its BOARD OF
SUPERVISORS, and
TSG Constructors, LLC hereinafter referred to as CONTRACTOR.
The CONTRACTOR, for and in the consideration of the sum of
Twenty-six million, eight-hundred ninety-seven thousand dollars and 00/100 ($26,897,000.00)
Unit prices, if any, are as follows:
to be paid to him by the COUNTY, in the mam1er and at the times hereinafter provided, and in consideration
of the other covenants and agreements herein contained, hereby agrees for itself, its heirs, executors,
administrators, successors, and assigns as follows:
ARTICLE I - SCOPE OF WORK: CONTRACTOR shall construct, and complete in a workmanlike
manner and to the satisfaction of the Parks and Recreation Director, a project for the Maricopa County
Parks and Recreation, designated as Serial # 240064-DBB, Vulture Mountain Recreation Area
Amenities, and furnish at its own cost and expense all necessary machinery, equipment, tools, apparatus,
materials, and labor to complete the work in the most workmanlike manner according to the Plans and
Specifications on file with the Maricopa County Parks and Recreation Department, and listed herein,
together with modifications of the same and other directions that may be made by the Maricopa County
Parks and Recreation Department as provided herein.
ARTICLE II - CONTRACT DOCUMENTS: The Contract Documents (Invitation to Bid, Plans,
Construction Special Provisions , Addenda issued prior to the execution of this Agreement, if any, General
Conditions, General Requirements, Specifications, Maricopa Association of Governments (MAG) Standard
Specifications and Unifonn Standard Details, and the latest revisions thereto, Maricopa County Supplement
to M.A.G. Unifonn Standard Specifications for Public Works Construction, Bid, Affidavits, Perfonnance
Bond, Payment Bond, Certificates of Insurance, and Change Orders, if any,) are by this reference made a
part of this Contract and shall have the same effect as though all of the same were fully inserted herein.
This Contract, including the Contract Documents, represents the entire and integrated agreement between
the parties and supersedes any prior negotiations, representations, or agreements, either written or oral.
All amendments to this Contract shall be in writing and approved/signed by both parties.
ARTICLE III - TIME FOR COMPLETION: CONTRACTOR further covenants and agrees at its own
cost and expense, to do all work as aforesaid for the construction of said improvements and to completely
construct the same and install the material therein, as called for by this agreement free and clear of all
claims, liens, and charges whatsoever, in the manner and under the conditions specified and within the time,
or times, stated in the Bid pamphlet and this Contract. The date for the commencement of the work will be
set by a Notice to Proceed issued by the Ovmer. The time for completion will be measured from the date
of commencement.
ARTICLE IV - SUBSTANTIAL COMPLETION: The CONTRACTOR shall achieve Substantial
Completion of the work not later than 550 days from the date of commencement subject to adjustments to
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Serial # 240064-DBB
Pg. # 2
the Contract Time as provided for herein. Final Completion shall be achieved in 30 days after Substantial
Completion, subject to adjustments to the Contract Time as provided for herein.
ARTICLE V - PAYMENTS: For and in consideration of the satisfactory performance of the work as set
forth in the Contract Documents, which are a part hereof, and in accordance with the directions of the
COUNTY, through its Design Professional, the COUNTY agrees to pay the said CONTRACTOR the
amount earned, (and, if unit prices are applicable the sum due as computed from actual quantities of work
perfonned and accepted, or materials furnished at the w1it bid price on the Bid made a part hereof) and to
make such payment in accordance with the requirements of A.R.S. § 34-221, as amended.
CONTRACTOR agrees to discharge its obligations and to make payments to its subcontractors and
suppliers in accordance with A.R.S. § 32-1129, the Prompt Pay Act.
ARTICLE VI - LIQUIDATED DAMAGES: Liquidated damages are provided for in this Contract, as
explained in the General Conditions to this Contract.
Upon failure of Contractor to substantially complete the Project within the specified period of time, plus
approved time extensions, Contractor shall pay to OWNER the maximum sum of Four thousand Dollars
($4,000.00) for each calendar dav after the time specified in Article IV above. The actual liquidated
damages cost, including back-up will be forwarded to th~ Contractor. In any case the actual liquidated
damages amount shall not exceed the maximum sum indicated above. After Substantial Completion, should
Contractor fail to complete the remaining work within the tin1e specified in Article IV above, plus approved
time extensions thereof, for completion and readiness for Final Completion, Contractor shall pay to
OWNER the maximum sum of Four thousand Dollars ($4,000.00) for each calendar m after the time
specified in Article IV above. The actual liquidated damages cost, including back-up will be forwarded to
the Contractor. In any case the actual liquidated damages amount shall not exceed the maximum sum
indicated above. These amounts are not penalties but are liquidated damages to OWNER for its inability
to obtain full beneficial occupancy of the Project.
ARTICLE VII - TERMINATION: The COUNTY hereby gives notice that pursuant to A.R.S. § 38-511
A, this contract may be canceled without penalty or further obligation within three years after execution if
any person significantly involved in initiation, negotiation, securing, drafting or creating the contract on
behalf of the COUNTY is, at any time while the contract or any extension of the contract is in effect, an
employee or agent of any other party to the contract in any capacity or a Contractor to any other party of
the contract with respect to the subject matter of the contract. Cancellation under this section shall be
effective when written notice from the COUNTY is received by all of the parties to the contract. In
addition, the COUNTY may recoup any fee or commission paid or due to any person significantly involved
in initiation, negotiation, securing, drafting or creating the contract on behalf of the COUNTY from any
other party to the contract arising as a result of the contract.
ARTICLE VIII - TERMINATION FOR DEFAULT: If the CONTRACTOR should be adjudged
bankrupt or should make a general assignment for the benefit of its creditors, or if a receiver should be
appointed on account of its insolvency, the COUNTY may tenninate the Contract. If the CONTRACTOR
should repeatedly refuse or should fail, except in cases for which extension of time is provided, to provide
enough properly skilled workers or proper materials, or repeatedly disregard laws and ordinances, or fail to
meet deadlines or not proceed with work, or otherwise be guilty of a material breach of any provision of
this Contract, then the COUNTY may terminate the Contract. Prior to termination of the Contract, the
COUNTY shall give the Contractor fourteen (14) calendar day's written notice. Upon receipt of such
termination notice, the Contractor shall be allowed fourteen (14) calendar days to cure such deficiencies.
In the event of termination wider this paragraph, all documents, data, and reports prepared by the
CONTRACTOR under this Contract shall become the property of and be delivered to the COUNTY upon
demand. Sums claimed due by the CONTRACTOR shall not be paid until the Work has been completed
and such payment shall only be made after deduction damages caused by the default. In the event a
termination for default is determined to be without cause, it shall be deemed to be a tennination for
convenience.
Vulture Mountain Recreation Area Amenities
Request.for Bids - Design Bid Build
Serial # 240064-DBB
Pg. # 3
ARTICLE IX-TERMINATION FOR CONVENIENCE: The COUNTY reserves the right to terminate
the Contract, in whole or in part at any time, when in the best interests of the COUNTY without penalty or
recourse. Upon receipt of the written notice, the CONTRACTOR shall immediately stop all work, as
directed in the notice, notify all subcontractors of the effective date of the tennination and minimize all
further costs to the COUNTY. In the event of tem1ination under this paragraph, all documents, data and
reports prepared by the CONTRACTOR under the Contract shall become the property of and be delivered
to the COUNTY upon demand. The CONTRACTOR shall be entitled to receive just and equitable
compensation for work in progress, work completed and materials accepted before the effective date of the
termination. No lost "future profits" will be paid to the CONTRACTOR
ARTICLE X - SUSPENSION OF WORK: The Owner may order the CONTRACTOR, in writing, to
suspend, delay, or interrupt all or any part of the work of this Contract for the period of time that the Owner
determines appropriate for the convenience of the COUNTY.
If the perfonnance of all or any part of the work is, for an unreasonable period of time, suspended, delayed,
or interrupted (1) by rut act of the Owner in the administration of this Contract, or (2) by the Owner's failure
to act within the time specified in this Contract ( or within a reasonable time if not specified), an adjustment
shall be made for any increase in the cost of perfonnance of the Contract (excluding profit) caused by the
unreasonable suspension, delay, or interruption, ru1d the contract will be modified in writing accordingly.
However, no adjustment shall be made under this provision for any suspension, delay, or interruption to the
extent that perfonnance would have been so suspended, delayed, or interrupted by any other cause,
including the fault of negligence of the Contractor, or for which an equitable adjustment is provided (or
excluded) under any other term or condition of this Contract.
A claim under this provision shall not be allowed:
For any costs incurred more thru1 14 days before the CONTRACTOR has notified the Owner in writing of
the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a
suspension order); and unless the claim, in an amount stated, is made in writing as soon as practicable after
the termination of the suspension, delay, or interruption, but not later than the date of final payment under
the Contract.
ARTICLE XI - NEGOTIATION CLAUSE: Recovery of damages related to expenses incurred by
CONTRACTOR for a delay for which the COUNTY is responsible, which is unreasonable under the
circumstances and which was not within the contemplation of the parties to the contract, shall be negotiated
between CONTRACTOR and the COUNTY. This provision shall be construed so as to give full effect
to any provision in the contract which requires notice of delays, provides for neutral evaluation and
arbitration or other procedure for settlement, or provides for liquidated damages.
ARTICLE XII - COMPLIANCE WITH LAWS: CONTRACTOR is required to comply with all
Federal, State and local ordinances and regulations. CONTRACTOR'S signature on this contract certifies
compliance with the provisions of the I-9 requirements of the Immigration Reform Control Act of 1986 for
all personnel that CONTRACTOR and any subcontractors employ to complete this project.
The
COUNTY will perfonn in accordance with the provisions of the Maricopa County Procurement Code.
The CONTRACTOR warrants that it is in compliance with A.R.S. §41-4401 (regarding immigration) and
further acknowledges:
(1)
(2)
The CONTRACTOR and its sub-contractors, if any, warrant their compliance with all
federal immigration laws and regulations that relate to their employees and their
compliance with A.R.S. §23-214, subsection A; (one-verification, etc.). After December
31, 2007, every employer, after hiring an employee, shall verify the employment eligibility
of the employee through the e-verify program and shall keep a record of the verification
for the duration of the employee's employment or at least three years, whichever is longer.
A breach of a warrantv under subsection 1 above. shall be deemed a material breach of the
contract that is subject to penalties up to and incl~ding tenuination of the Contract;
Vulture Mountain Recreation Area Amenities
Request for B;ds - Design B;d Build
Serial # 240064-DBB
Pg. # 4
(3)
The COUNTY retains the legal right to inspect the papers of any CONTRACTOR or sub-
contractor employee who works on the contract to ensure that the CONTRACTOR or sub-
contractor is complying with the warranty provided under subsection 1 above and that the
CONTRACTOR agrees to make all papers and employment records of said employee(s)
available during normal ,vorking hours in order to facilitate such m1 inspection.
(4)
Nothing herein shall make any CONTRACTOR or sub-contractor an agent or employee
of the COUNTY.
ARTICLE XIII - SBE PROGRAM: It is Maricopa County's policy to endeavor to ensure in every way
possible that small business participation finns shall have the opportunity to provide professional services,
materials, and contractual services to the County in a nondiscrin1inatory maimer.
ARTICLE XIV - SBE PARTICIPATION PAY FORM: This form (copy attached) is to be submitted
with each pay application or invoice. Any pay application or invoice without this fonn attached is subject
to rejection as not being a completed pay application or invoice pursuant to the terms of the contract.
ARTICLE XV - ANTI-DISCRIMINATION PROVISION:
CONTRACTOR agrees not to
discriminate against any employee or applicant for employment because of race, age, color, religion, sex,
disability, or national origin, and further agrees not to engage in a11y unlawful employment practices.
CONTRACTOR further agrees to insert the foregoing provision in all subcontracts hereunder.
CONTRACTOR agrees to comply with all provisions and requirements of Arizona Executive Order 2009-
09 including flow down of all provisions and requirements to any subcontractors. Executive Order 2009-
09 supersedes Executive order 99-4 m1d muends Executive order 75-5 a11d may be viewed and do,vnloaded
at
the
Governor
of
the
State
of
Arizona's
website
http://www.azgovernor.gov/dms/upload/EO 2009 09.pdf which is hereby incorporated into this contract
as if set forth in full herein. During the perfonnance of this contract, CONTRACTOR shall not discriminate
against any employee, client or any or any other individual in any way because of that person's age, race,
creed, color, religion, sex, disability or national origin.
ARTICLE XVI-INFLUENCE: As prescribed in MCl-1203 of the Maricopa County Procurement Code,
any effort to influence an employee or agent to breach the Maricopa County Ethical Code of Conduct, or
any unethical conduct, may be grounds for Disbannent or Suspension under MCl-902.
An attempt to influence includes, but is not limited to:
(1)
A Person offering or providing a gratuity, gift, tip, present, donation, money, entertainment
or educational passes or tickets, or any type valuable contribution or subsidy;
(2)
That is offered or given with the intent to influence a decision, obtain a contract, gamer
favorable treatment, or gain favorable consideration of any kind.
If a Person attempts to influence any employee or agent of Maricopa County, the Chief Procurement
Officer, or his designee, reserves the right to seek any remedy provided by the Maricopa County
Procurement Code, any remedy in equity or in the law, or any remedy provided by this contract.
ARTICLE XVII - AMENDMENTS:
All amendments to this Contract shall be in writing and
approved/signed by both parties. Maricopa County Office of Procurement Services shall be responsible for
approving all mnendments for Maricopa County.
ARTICLE XVIII - ALTERNATIVE DISPUTE RESOLUTION
See Exhibit A for Alternative Dispute Resolution.
j
ARTICLE XIX -- UNIFORM ADMINISTRATIVE REQUIREMENTS:
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Serial # 240064-DBB
Pg. # 5
When applicable and by entering into this Contract the Contractor agrees to comply with all applicable
provisions of Title 2, Subtitle A, Chapter II,
PART 200-UNIFORM ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AW ARDS
contained in Title 2 C.F.R. § 200 et seq.
ARTICLE XX -- FORCED LABOR
By submitting a bid for this solicitation and/or entering into a contract as a result of this solicitation, contractor
agrees to comply with all applicable portions of Arizona Revised Statutes Section 35-394. Contracting;
procurement; prohibition; written certification; remedy; tem1ination; exception; definitions.
Contractor certifies that it does not currently, and agrees for the duration of the contract, that it will not use:
The forced labor of ethnic Uyghurs in the People's Republic of China.
Any goods or services produced by the forced labor of ethnic Uyghurs in the People's Republic of China.
Any contractors, subcontractors or suppliers that use the forced labor or any good or services produced by the
forced labor of ethnic Uyghurs in the People's Republic of China.
If contractor becomes a·ware during the tenn of the agreement that contractor is not in compliance with this
paragraph, the contractor shall notify the County witl1in five business days after becoming aware of the
noncompliance. If the contractor fails to provide a written certification to the County that the contractor has
remedied the noncompliance within 180 days after notifying the County of its noncompliance, then the
agreement terminates, except that if the agreement termination date occurs before the end the 180 day period,
the agreement terminates on the agreement tem1ination date.
ARTICLE XXI -- WRITTEN CERTIFICATION PURSUANT TO A.R.S. § 35-393.01
If vendor engages in for-profit activity and has 10 or more employees, and if this agreement has a value of
$100,000 or more, vendor certifies it is not currently engaged in, and agrees for the duration of this
agreement to not engage in, a boycott of goods or services from Israel. This certification does not apply to
a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.
ARTICLE XXII - UNIQUE ENTITY IDENTIFIER (UEI) AND SYSTEM FOR A WARD
MANAGEMENT REGISTRATION
All contractors that receive funding must have a UEI number through https://san1.gov/content/entity-
registration. Contractor must also remain current with the System for Award Management www.sam.gov
throughout the tenn of the contract.
ARTICLE XXIII - UNIFORM ADMINISTRATIVE REQUIREMENTS
By entering into a contract, the contractor agrees to comply with all applicable provisions of Title 2, Subtitle
A, Chapter II, Part 200-UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES,
AND AUDIT REQUIREMENTS FOR FEDERAL A WARDS contained in Title 2 C.F.R. § 200 et seq.
ARTICLE XXIV - RELIGIOUS ACTIVITIES
The contractor agrees that costs, planned or claimed, including costs incurred, shall not include any expense
for any religious activity.
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Serial # 240064-DBB
Pg.# 6
ARTICLE XXV - POLITICAL ACTIVITY PROHIBITED
None of the funds, materials, property, or services contributed by the County or the contractor under the
agreement shall be used in the perfonnance of this agreement for any partisan political activity, or to further
the election or defeat of any candidate for public office.
ARTICLE XXVI - EQUAL EMPLOYMENT OPPORTUNITY
.1
The contractor shall not discriminate against any employee or applicant for employment because
of race, age, disability, color, religion, sex, or national origin. The contractor shall take affirmative action
to ensure applicants are employed and that employees are treated during employment without regard to
their race, age, disability, color, religion, sex, or national origin. Such action shall include but is not limited
to the following: employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, lay-
off or tennination, rates of pay or other fonns of compensation, and selection for training, including
apprenticeship .
. 2
Contractor shall comply with the following provisions:
.2.1
Title VI and VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000a, et
seq.);
.2.2
The Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et seq.);
.2.3
The Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. §§ 621, et
seq.);
.2.4
The Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et seq.); and Arizona
Executive Order 2009-09, as amended, et seq. which mandates that all persons shall have equal
access to employment opportunities .
. 2.5
Contractor understands that the United States has the right to seek judicial enforcement of
this assurance.
ARTICLE XXVII - CERTIFICATION REGARDING LOBBYING
.1
Contractor certifies, to the best of their knowledge and belief, that:
. 1. l
No federal appropriated funds have been paid or will be paid, by or on behalf of the
contractor, to any person for influencing or attempting to influence an officer or employee of any
agency. This applies to a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of any federal contract, the
making of any federal grant. Including the making of any federal, loan the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or modification of
any federal contract, grant, loan, or cooperative agreement.
.2
If any funds other than federal appropriated funds, have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, member of Congress, an officer
or employee of Congress, or an employee of a member of Congress in connection with this federal contract,
grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL,
"Disclosure Fonn to Report Lobbying," in accordance with its instructions .
.3
Contractor shall include Lobbying Certification language in the award documents for all
subcontractors (including sub-grants, and contract under grants, loans, and cooperative agreements) and
that all sub-recipients shall certify and disclose accordingly .
. 3 .1
The Lobbying Certification is a material representation of fact upon which reliance was
placed when this transaction is made or entered into. Submission of this certification is
prerequisite for making or entering into this transaction imposed by section 1352, Title 31, U.S.
Code. Any successful proposer(s) who fail to file the required certification shall be subject to a
civil penalty of not less than $10,000.00 and not more than $100,000.00 for each such failure.
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Serial # 240064-DBB
Pg. # 7
ARTICLE XXVIII - CLEAN AIR ACT & CLEAN WATER ACT
Contractor must comply with all applicable standards, orders, or requirements issued under section 306 of
the Clean Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368) Executive
Order 11738, and Environmental Protection Agency regulations ( 40 CFR part 15).
ARTICLE XXIX - ENERGY POLICY AND CONSERVATION ACT
Contractor must adhere to the standards and policies relating to energy efficiency, which are contained in
the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub.
L. 94-163, 89 Stat.871).
ARTICLE XXX - REPORTING STANDARDS
Contracts must comply with the Reporting standards as presented by the US. Treasury Final Rule and work
with Maricopa County to provide compliance infomiation regarding labor certification documentation and
keep records of employees funded through American Rescue Plan Act Funds private, separate, and discrete.
A Quarterly Reporting Calendar will be provided to the recipient
Programmatic Compliance and Reporting monitoring process is required with the American
Rescue Plan Act funding.
Reporting dates and programmatic Quarterly Report deadlines follow the calendar year quarterly
cycle. The Quarterly report will be due according to the date provides in the ARP A Reporting
Calendar.
Coronavirus State and Local Fiscal Recovery Funds- Final Rule (31 CFR Part 35)
https://www.ecfr.gov/current/title-3 l/subtitle-Npart-35
Coronavirus State and Local Fiscal Recovery Funds Guidance on Recipient Compliance and
Reporting Responsibilities (General Guidance)
ARTICLE XX.XI-ALLOWANCE
The project includes an Add Alternate Allowance in an amount assigned by the County in the bid docU111ents,
which shall be listed by respondents in their final bid. Subject to the terms of the Contract Documents and with
prior ,vritten Owner approval through an "Allowance Use Approval" or Change Order fonn, the Contractor
shall be entitled to utilize Allowance for increases in the scope of the work that could not have been reasonably
anticipated. The Owner may disallow such Allowance use and deny reimbursement in the absence of prior
written notice or if the Owner determines that the use was not consistent with the Contract Documents or the
scope of the work should have been reasonably anticipated. Contractor may not apply, use, or allocate any
amounts from the Allowance for any of the following:
'
•
a material breach or material failure to perfonn by the Contactor;
•
to pay any subcontractor, vendor, or any party that is liable for or responsible at law or under the
Contract; or
•
for any non-allowable costs of the work.
The Allowance may also be used at the discretion of the Owner to cover any increases in Project costs
that resulted from Owner directed changes. The OWNER reserves the right to issue a w1ilateral deductive
Change Order at any point during the Project, deducting any or all remaining Allowance from the final
project costs. Upon Substantial Completion the Owner shall issue a deductive Change Order for the
remaining unauthorized Allowance balance.
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Serial # 240064-DBB
Pg.# 8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date first
above written, in counterparts, each of which shall, without proof or accounting for the other
counterparts, be deemed an original contract.
Vulture Mountain Recreation Area Amenities
240064-DBB
.~
Stanlev Showalter
Printed Name
Manager
Title
Vendor Terms
..
October 3, 2024
Date
90-0275459
Federal Tax Identification Number
204144 291064
Arizona Contractor's License Number
988-63
NIGP Commodity Code (Advantage)
RECOMMENDED BY:
COUNTY OF MARICOPA, ARIZONA
ACCEPTED AND APPROVED:
Department Head
Date
LEGAL REVIEW
Approved as to fonn and within the powers and
authority granted under the laws of the State of
Arizona to Maricopa County.
By:
Deputy County Attorney
Date
Vulture Mountain Recreation Area Amenities
Request for Bids - Design Bid Build
Chai1man, Board of Supervisors
Date
ATTEST:
Clerk of the Board
Date
Serial # 240064-DBB
Pg. # 9
EXHIBIT A - ALTERNATIVE DISPUTE RESOLUTION
1.1
Scope.
Notwithstanding anything to the contrary provided elsewhere in the Contract, the
alternative dispute resolution ("ADR") process provided herein shall be the exclusive means for
resolution of claims or disputes arising under or related to the Contract, the interpretation thereof
or the performance or breach by any party thereto, including but not limited to original claims or
disputes asserted as cross claims, counterclaims, third party claims or claims for indemnity or
subrogation, in any threatened or ongoing litigation or arbitration with third parties, if such disputes
involve parties to contracts containing this ADR provision. No changes can be made to this process
without the mutual assent of the County and the claimant. The parties have structured this
procedure with the goal of providing for the prompt, efficient and final resolution of all disputes
falling within the purview of this ADR process.
1.2
Meeting of Principals. When a claim is made or a dispute (hereafter "dispute") as described in
Paragraph 1.2 arises, senior representatives of the County and the claimant will meet personally
within ten (10) business days to discuss the dispute and attempt to resolve it. If, after good faith
efforts, resolution is not achieved, the dispute will proceed to mediation.
1.3
Qualifications of Mediator and Arbitrators. Any person selected as mediator or arbitrator, either
as single arbitrator as a member or Chair of the arbitration panel, shall be a member of the State
Bar of Arizona and have experience in construction law.
1.4
Mediation. If the parties have been unable to resolve the dispute after a meeting of principals, the
parties may enter into mediation. The parties shall jointly select a mediator. The parties may
mutually agree to waive mediation and proceed directly to arbitration. If the mediation process is
requested by either party, the mediation period shall be informal and shall not exceed sixty (60)
calendar days from the selection of the mediator. During the mediation process either party may
terminate mediation on written notice to the other party and the mediator.
1.5
Binding Arbitration Procedure. The following binding arbitration procedure shall serve as the
exclusive method to resolve a dispute if mediation is unsuccessful, if mediation has been waived
by the parties, or if a party requests arbitration during tl1e mediation process. Except as provided
in Section 1.7.5 and 1.7.9, the decision of the arbitrator or arbitrator panel is final and binding on
the parties and not subject to further judicial review.
1.5.1
A party requesting binding arbitration shall notify the other party of their demand for
arbitration in writing within seven (7) calendar days of (1) the failure of mediation; (2)
waiver of mediation; or (3) of the party's demand to tem1inate mediation.
1.5.2
If the Contractor requests arbitration it shall post a cash bond with the arbitrator in an
an1ount agreed upon by the parties or, in the event of no agreement, the arbitrator shall
establish the amount of the cash bond to defray the cost of the arbitration and the proceeds
from the bond shall be allocated in accordance with paragraph 1. 7. 7. The bond must be in
the full amount agreed upon or as established by the Arbitrator to pay the potential cost of
the full arbitration proceeding. The bond must be posted with and received by the arbitrator
within five (5) calendar days after tl1e demand for arbitration.
1.5.3
Disputes involving less tlian $200,000 shall be heard by one single arbitrator chosen by
agreement of the parties. If the parties cannot agree on the single arbitrator, then the parties
Vulture Mounta;n Recreation Area Amenities
Request.for Bids - Design B;d Build
Serial # 240064-DBB
Pg. # 10
shall each submit two names to a Judge designated by Maricopa County who shall select
the single arbitrator.
1.5.4
For disputes in excess of $200,000, the arbitration panel shall consist of three arbitrators:
the County's appointed arbitrator, the Contractor's appointed arbitrator and a third arbitrator
who shall be selected by the parties' arbitrators and serve as the Chair of the arbitration
panel.
1.5.5
The arbitration is to be convened and administered under the Revised Uniform Arbitration
Act ("RUAA'') (A.RS. § 12-3001 et seq.) and the American Arbitration Association
Construction Rules shall serve as a guideline for proceedings, thus as a supplement to the
RUAA.
1.6
Expedited Hearing. Any party can request the single arbitrator or the Chair of the arbitration panel
to set an expedited hearing. If the single arbitrator or the Chair of the arbitration panel detem1ines
that the circumstances justify it, the single arbitrator or the Chair of the arbitration panel will
arrange for scheduling of the arbitration at the earliest possible date. In any event, the hearing of
any dispute not expedited will commence as soon as practical but in no event later than thirty (30)
calendar days after notification of request for arbitration having been received. This deadline can
be extended only with the consent of all the parties to the dispute, or by decision of the single
arbitrator or the Chair of the arbitration panel upon a showing of good cause.
1. 7
Procedure. The single arbitrator or the arbitration panel will conduct the hearing in such a manner
that will resolve disputes in a prompt, cost efficient manner giving regard to the rights of all parties.
Each party shall supply to the single arbitrator or arbitration panel a written pre-hearing statement
which shall contain a brief statement of the nature of the claim or defense, a list of witnesses and
exhibits, a brief description of the subject matter of the testimony of each witness who will be called
to testify, and an estiniate as to the length ohime that will be required for the arbitration hearing.
The single arbitrator or the Chair of the arbitration panel shall detem1ine the nature and scope of
discovery, if any, and the maimer of presentation of relevant evidence consistent with deadlines
provided herein, and the parties' objective that disputes be resolved in a prompt and efficient
manner. No discovery may be had of any materials or infonnation for which a privilege is
recognized by Arizona law. The single arbitrator or the Chair upon proper application shall issue
such orders as may be necessary and pem1issible under law to protect confidential, proprietary or
sensitive materials or information from public disclosure or other misuse. Any party may make
application to the Maricopa County Superior Court to have a protective order entered as may be
appropriate to confim1 or enforce such orders of the Chair.
1.7.l
Hearing Days. In order to effectuate parties' goals, the hearing once commenced, will
proceed from working day to working day w1til concluded, absent a showing of good cause.
1. 7.2
Award. The single arbitrator shall within ten (10) calendar days of the conclusion of a
hearing issue m1 award. The arbitration panel shall, within ten (10) calendar days from the
conclusion of any hearing, by majority vote, issue its award. The award shall include an
allocation of fees and costs pursuant to 1.7.7 herein. The award is to be in accordance with
the Contract and the law of the State of Arizona.
1. 7.3
Scope of Award. Regardless of the provisions of the RUAA, the arbitration panel shall be
without authority to award punitive dmnages, and any such punitive damage award shall
be void. If an award is made against any party in excess of one hundred thousand dollars
($100,000), exclusive of interest, arbitration fees, costs and attorneys ' fees, it shall be
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supported by written findings off act, conclusions oflaw and a statement as to how damages
were calculated.
1. 7.4
Jurisdiction. The arbitration panel shall not be bound for jurisdictional purposes by the
amow1t asserted in any party's claim, but shall conduct a preliminary hearing into the
question of jurisdiction over the claim as regards its amount upon application of any party
at the earliest convenient time, but not later than the commencement of the arbitration
hearing. If the dispute is detennined to involve less than $200,000, the arbitratio11 shall
continue before the Neutral Arbitrator as a single arbitrator, with the party appointed
arbitrators being excused.
1. 7.5
Entry of Judgment. As provided in the RUAA, any party can make application to the
Maricopa County Superior Court for confinnation of an award, and for entry of judgment
011 it.
1. 7.6
Severance and Joinder.
To reduce the possibility of inconsistent adjudications, the
Mediator or the single arbitrator or arbitration panel, may: (i) at the request of any party,
join and/or sever parties, and/or claims arising under other contracts containing this ADR
provision, and (ii) the Mediator, on his own authority, or the single arbitrator or arbitration
panel may, on its own authority, join or sever parties and/or claims subject to this ADR
process as deemed necessary for a just resolution of the dispute, consistent with the parties'
goal of the prompt and efficient resolution of disputes, provided; however, that the A/E,
Owner and Project Professionals shall not be joined as a party to any claim made by a
Contractor. Nothing herein shall create the right by any party to assert claims against
another party not arising under or related to the Contract or not recognized wider the
substantive law as applicable to the dispute. Neither the Mediator nor the single arbitrator
or arbitration panel is authorized to join to the proceeding parties not in privity with the
County. The CONTRACTOR cannot be joined to any pending arbitration proceeding,
without CONTRACTOR's express written consent and unless CONTRACTOR is given
the opportunity to participate in the selection of the single arbitrator or non-County
appointed arbitrator.
1.7.7
Fees and Costs. Each party shall bear its own fees and costs in connection with any
informal hearing before the mediation. All fees and costs associated with any arbitration
before the single panel or arbitration panel, including without limitation the arbitrator fees,
and the prevailing party's reasonable attorneys' fees, expert witness fees and costs, will be
paid by the non-prevailing party, except as provided for herein.
In the event that
CONTRACTOR is the non-prevailing party, all fees and costs as noted above shall first be
paid out of the bond posted with the arbitrator. In no event shall the CONTRACTOR's
obligation to pay fees and costs be limited to the amount of the bond posted herein. In no
event shall any arbitrator's hourly fees be awarded in an amount in excess of$250 per hour
and (i) costs shall not include any travel expenses in excess of mileage at the rate paid by
Maricopa County, not to exceed a one way trip of 150 miles, and (ii) all travel expenses,
including meals, shall be reimbursed pursuant to the travel policy of Maricopa County in
effect at the tin1e of the hearing. The determination of prevailing and non-prevailing
parties, and the appropriate allocation of fees and costs, will be included in the award by
the single arbitrator or arbitration panel.
1. 7.8
Confidentiality. Any proceeding initiated under this ADR provision shall be deemed
confidential to the maximum extent allowed by Ariwna law and, except for disclosures to
a party's attorneys or accountants, no party shall make any disclosure related to the
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disputed matter or to the outcome of any proceeding except to the extent required by law,
or to seek interim equitable relief, or to enforce an agreement reached by the parties or an
award made hereunder. This provision does not affect the County's right to infonn the
County Supervisors of the dispute.
1. 7.9
Equitable Litigation. Notwithstanding any other provision of ADR to the contrary, any
party can petition the Maricopa County Superior Court for interim equitable relief as may
become necessary to preserve the status quo and prevent immediate and irreparable harm
to a party or to the Project pending resolution of a dispute pursuant to ADR provided herein.
No court may order any pennanent injunctive relief except as may be necessary to enforce
an order entered by the arbitration panel. The fees and costs incurred in connection with
any such equitable proceeding shall be determined and assessed in ADR.
1. 7 .10 Change Order. Any award in favor of the CONTRACTOR against the County or in favor
of the County against the CONTRACTOR shall be reduced to a Change Order and
executed by the parties in accordance with the award and the provisions of the Contract or
a settlement agreement as appropriate.
1. 7.11 Merger and Bar. Any claim asserted pursuant to this ADR process shall be deemed to
include all claims, demands, and requests for compensation for costs and losses or other
relief, including the extension of the Contract perfonnance period which reasonably should
or could have been brought against any party that was or could have been brought into this
ADR process, with respect to the subject claim. The arbitration panel shall apply legal
. principles commonly known as merger and bar to deny any claim or claims against any
party regarding which claim or claims recovery has been sought or should have been sought
in a previously adjudicated claim for an alleged cost, loss, breach, error, or omission.
1.8
Inclusion in Other Contracts. The CONTRACTOR shall cooperate with the County in efforts to
include this ADR provision in all other Project contracts.
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