1 - Final Construction Services Contract - Aquatics Center
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CONSTRUCTION SERVICES CONTRACT
FOR CONSTRUCTION MANAGER AT RISK (CM@R) PROJECT
Project Name:
City of Tolleson Aquatics Center
Project No.:
ENG 24-02
Tolleson Aquatics Center
ENG 24-02
Form No. CM@R 03.05
i
Construction Services Contract for CM@R Project
January 3, 2023
TABLE OF CONTENTS
PAGE
1.
CM@R - Fiduciary Duty
1
2.
Construction Services
1
3.
City of Tolleson Project Manager
2
4.
Contract Time
2
5.
Liquidated and Special Damages
3
6.
Contract Price
3
7.
CM@R Representatives
4
8.
Contract Documents
5
9.
Miscellaneous
5
Signature Page
7
Tolleson Aquatics Center
ENG 24-02
Form No. CM@R 03.05
1
Construction Services Contract for CM@R Project
January 3, 2023
CONSTRUCTION SERVICES CONTRACT
FOR CONSTRUCTION MANAGER AT RISK (CM@R) PROJECT
THIS CONSTRUCTION SERVICES CONTRACT (this “Contract”) between the City of
Tolleson, a municipal corporation (“CITY”) and Chasse Building Team, Inc., an Arizona domestic for-
profit (business) corporation (“CM@R”), (collectively, “the Parties”), is hereby entered into and shall
be effective on the last signature date set forth below (the “Effective Date”).
CITY and CM@R, in consideration of the mutual covenants set forth herein, agree as follows:
1.0
CM@R - FIDUCIARY DUTY
1.1
This Contract is for complete construction services in accordance with the Construction
Manager at Risk method of delivery of construction services. CM@R has participated in the
design process and been an active member of the Project Team and is fully aware of the issues
and constraints involved in this construction Project.
1.2
CM@R is CITY’S fiduciary responsible for undertaking all necessary action contemplated
under the Contract Documents, as defined in Section 8.0 of this Contract, to construct the
Project and ensure timely and quality completion of the project at a cost within the Guaranteed
Maximum Price (GMP).
1.3
This Project is an “open book” project. CITY is entitled to attend any and all meetings, and
CITY shall have access to any and all records of CM@R or maintained by CM@R relating to the
Project.
2.0
CONSTRUCTION SERVICES
2.1
Unless otherwise specifically defined in this Contract, all capitalized terms used herein shall
have the meanings ascribed to them in the Contract Documents, which include, but are not
limited to, the Construction Manager at Risk Pre-Construction Services Contract, the General
Conditions, the Supplementary Conditions, and the Project Drawings and Specifications.
2.2
CM@R shall complete all work as specified or indicated in the Contract Documents. The work
is known as and is hereinafter referred to as the City of Tolleson Aquatics Center Project and is
generally described as follows: Complete construction of the City of Tolleson Aquatics Center
facility in accordance with the Contract Documents. The full scope of work is described in
detail in the Contract Documents.
2.3
CM@R shall complete, provide and perform, or cause to be performed, all work in a proper
and workmanlike manner, with appropriate consideration for public safety and convenience,
consistent with the highest standards of professional and construction practices and in full
compliance with, and as required by or pursuant to, this Contract, and with the greatest
economy, efficiency, and expediency consistent therewith all as more particularly described in
the Contract Documents.
Tolleson Aquatics Center
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Form No. CM@R 03.05
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Construction Services Contract for CM@R Project
January 3, 2023
3.0
CITY OF TOLLESON PROJECT MANAGER
CITY has appointed a Project Manager/Construction Manager (PM/CM) to manage this Project
and to represent CITY on the Project site. CITY’S PM/CM will assume all duties and
responsibilities and will have all rights and authority assigned to CITY PM/CM in the Contract
Documents in connection with completion of the Work in accordance with the Contract
Documents.
CITY’S PM/CM for this Project is Chris Hamilton.
4.0
CONTRACT TIME
4.1
CM@R shall submit to CITY, on or before the effective date of this Contract, a Critical Path
Method (CPM) Construction Progress Schedule in a format compatible with City Engineer
recommendations, resource and cost loaded, indicating the times for starting and completing
the various stages of the Work, including any Milestones specified in this Contract and as more
fully described in the General Conditions and other Contract Documents. Revisions/updates to
the CPM schedule shall be submitted to accurately reflect plans for completion of the work, but
no less frequently than monthly.
4.2
Time is of the Essence. All of the time limits for Milestones, if any, for Substantial
Completion and for Completion and readiness for final payments as stated in the Contract
Documents, are of the essence of the Contract.
4.3
The Work shall be substantially complete within _______ working days after the date when the
Contract Times commence to run as provided in the Notice to Proceed, and all Work shall be
finally completed and ready for final payment in accordance with the Notice to Proceed within
________ working days after the date when the Contract Times commences to run.
4.4
Failure of CM@R to perform any covenant or condition contained in the Contract Documents
within the time periods specified herein, shall constitute a material breach of this Contract
entitling CITY to terminate the Contract unless CM@R applies for and receives an extension of
time, in accordance with the procedures set forth in the Contract Documents.
4.5
Failure of CITY to insist upon the performance of any covenant or condition within the time
periods specified herein, shall not constitute a waiver of CM@R’s duty to perform every other
covenant or condition within the designated periods, unless a specific waiver is granted in
writing for each such covenant or condition.
4.6
CITY’S agreement to waive a specific time provision or to extend the time for performance
shall not constitute a waiver of any other time provisions contained in the Contract
Documents. Failure of CM@R to complete performance promptly within the additional time
authorized in the waiver or extension of time agreement shall constitute a material breach of
this Contract entitling CITY to all the remedies set forth herein or provided by law.
Tolleson Aquatics Center
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Form No. CM@R 03.05
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Construction Services Contract for CM@R Project
January 3, 2023
5.0
LIQUIDATED AND SPECIAL DAMAGES
5.1
It is hereby agreed that the amounts per day set forth herein in paragraph 5.1.1 are reasonable
estimates of such liquidated damages and that said amounts do in fact bear a reasonable
relationship to the damage that would be sustained by CITY, and CM@R agrees to pay such
liquidated damages as herein provided.
5.1.1 CITY and CM@R recognize that time is of the essence for this Contract and that CITY
will suffer financial loss, in addition to and apart from the costs described in Paragraph
5.2, if the Work and/or portions of the Work are not performed and completed within
the times specified in Section 4, plus any extensions thereof allowed in accordance
within the Contract Documents. CITY and CM@R also recognize the delays, expense,
and difficulties involved in proving, through legal or arbitration proceedings, the actual
loss suffered by CITY if the Work or portion of the Work is not completed on time.
Accordingly, instead of requiring any such proof, CITY and CM@R agree that as
liquidated damages for delay (but not as a penalty) CM@R shall pay CITY three
thousand five hundred dollars and no cents ($3,500.00) for each working day that
expires after the time specified in Section 4 for substantial completion, until the Work is
substantially complete. After Substantial Completion, if CM@R shall neglect, refuse or
fail to complete the remaining Work within the Contract Time or any proper extension
thereof granted by CITY, CM@R shall pay CITY one thousand five hundred dollars
and no cents ($1,500.00) for each working day that expires after the time specified in
Section 5 for final completion and readiness for final payment.
5.2
Special Damages: In addition to the amounts provided for liquidated damages, CM@R shall
pay CITY the actual costs reasonably incurred by CITY for CITY’S PM/CM, the Project
Engineer and for engineering and inspection forces employed on the Work for each working
day that expires after the time specified in Section 3 for Final Completion, including any
extensions thereof made in accordance with the Contract Documents, until the Work is finally
complete. The rate for inspection services for this contract is $130.00 per hour. The rate for
the work by the Project Engineer / CITY’s PM/CM for this Contract is $175.00 per hour. Each
of these hourly rates is calculated at time and one half for work required to be performed during
other than normal business hours.
5.3
CITY may withhold and deduct from any payment due to CM@R the amount of liquidated
damages, special damages, and other costs, such as CM@R’s failed testing costs or damages to
other CITY property, from any moneys due CM@R under the Contract.
6.0
CONTRACT PRICE
CITY shall pay CM@R for completion of the Work in accordance with the Contract
Documents, an amount in current funds not to exceed the Total Project Cost of $36,900,000 as
more specifically set forth in Exhibit A – Guaranteed Maximum Price (GMP) Proposal
(including Cost Model Form CM@R 04.04) and incorporated herein by reference.
7.0
CM@R REPRESENTATIONS
Tolleson Aquatics Center
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Construction Services Contract for CM@R Project
January 3, 2023
As part of the inducement for CITY to enter into this Contract, CM@R makes the following
representations:
7.1
CM@R was a member of the Project Team for this Project and participated in and provided
recommendations concerning the Contract Documents and Project Design.
7.2
CM@R has examined and carefully studied the Contract Documents (including any Addenda)
and other related data, including “technical data” and all federal, state and local laws,
ordinances, standards, rules and regulations that in any manner may affect cost, progress,
performance or furnishing of the Work.
7.3
CM@R has obtained and carefully studied (or assumes responsibility for having done so) the
reports of investigations, explorations, tests, studies and data concerning conditions (surface,
subsurface and Underground Facilities) and the drawings of physical conditions in or relating
to existing surface or subsurface structures, at or contiguous to the site or otherwise which may
affect costs, progress, performance or furnishing all the Work or which relate to any aspect of
the means, methods, techniques, sequences and procedures of construction to be employed by
CM@R and safety precautions and programs incident thereto. CM@R acknowledges that such
reports and drawings are not Contract Documents and may not be complete for CM@R’s
purposes. CM@R acknowledges that CITY and CITY’S PM/CM do not assume responsibility
for the accuracy or completeness of information and data shown or indicated therein within
respect to Underground Facilities at or contiguous to the site. CM@R acknowledges full
responsibility for locating and resolving any conflicts with any Underground Facilities.
7.4
CM@R has visited the site and become familiar with and is satisfied as to the general, local and
site conditions that may affect cost, progress, performance or furnishing of the Work.
7.5
CM@R has made or caused to be made examinations, investigations, tests, studies and related
data as it deems necessary, and CM@R does not consider that any additional examinations,
investigations, explorations, tests, studies, or data are necessary for the performance and
furnishing of the Work at the Contract Price, within the Contract Times and in accordance with
the other terms and conditions of the Contract Documents.
7.6
CM@R has correlated the information known to CM@R, information and observations
obtained from visits to the site, reports and drawings identified in the Contract Documents and
all additional examinations, investigations, explorations, tests, studies, reports, and data, with
the terms and conditions of the Contract Documents.
7.7
CM@R has given CITY’S PM/CM written notice of all conflicts, errors, or discrepancies that
CM@R has discovered in the Contract Documents, and the written resolution thereof by CITY
is acceptable to CM@R, and the Contract Documents are sufficient to indicate and convey
understanding of all terms and conditions for performance and furnishing of the Work. CM@R
assumes full responsibility and liability for any conflicts, errors or discrepancies in the Contract
Documents, including, but not limited to, the specifications, design and engineering for the
project, for which written notice has not been provided and which a reasonable CM@R,
participating in the design process as the Construction Manager at Risk would have discovered.
Tolleson Aquatics Center
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Form No. CM@R 03.05
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Construction Services Contract for CM@R Project
January 3, 2023
8.0
CONTRACT DOCUMENTS
“Contract Documents,” as used throughout this Agreement, includes the following documents,
which are hereby incorporated by reference and made a material part of this Contract:
8.1
This Contract and any exhibits, amendments, or addenda thereto.
8.3
The Project Specifications dated ____________ entitled _____________ Project.
8.4
The Project Drawings comprised of a set entitled ______________ and dated ____________.
8.5
Performance Bond and Payment Bond.
8.6
The approved CPM Construction Schedule dated ____________________.
8.7
The Project General Conditions.
8.8
The Project Supplementary Conditions.
8.9
Notice to Proceed dated ___________________________.
8.10
CM@R’s Guaranteed Maximum Price (GMP) dated __________________.
8.11
CM@R’s List of Subcontractors.
8.12
CM@R’s Schedule of Manufacturers and Suppliers of Major Equipment and Material Items.
8.13
The CM@R Pre-Construction Services Contract.
8.14
The CITY’S Request for Qualifications (RFQ) and associated documents.
8.15
The following which may be delivered or issued after the Effective Date of this Contract and
are not attached hereto:
A.
Written Attachments
B.
Work Change Directives
C.
Change Order(s)
9.0
MISCELLANEOUS
9.1
The failure of any party to enforce against another party any provision of this Contract shall not
constitute a waiver of that party’s right to enforce such a provision at a later time and shall not
serve to vary the terms of this Contract.
9.2
CITY and CM@R each binds itself, its partners, successors, assigns and legal representatives to
the other party hereto, its partners, successors, assigns, and legal representatives in respect to all
covenants, agreements, and obligations contained in these Contract Documents.
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Construction Services Contract for CM@R Project
January 3, 2023
9.3
Immigration Law Compliance Warranty:
9.3.1
As required by A.R.S. § 41-4401, CM@R hereby warrants its compliance with all
federal immigration laws and regulations that relate to its employees and A.R.S. § 23-
214(A). CM@R further warrants that after hiring an employee, CM@R verifies the
employment eligibility of the employee through the E-Verify program.
9.3.2
If CM@R uses any subcontractors in performance of the Work, subcontractors shall
warrant their compliance with all federal immigration laws and regulations that relate
to its employees and A.R.S. § 23-214(A), and subcontractors shall further warrant that
after hiring an employee, such subcontractor verifies the employment eligibility of the
employee through the E-Verify program.
9.3.3
A breach of this warranty shall be deemed a material breach of the Contract that is
subject to penalties up to and including termination of the Contract. CM@R is
subject to a penalty of $100 per day for the first violation, $500 per day for the second
violation, and $1,000 per day for the third violation. CITY at its option may terminate
the Contract after the third violation. CM@R shall not be deemed in material breach
of this Contract if the CM@R and/or subcontractors establish compliance with the
employment verification provisions of Sections 274A and 274B of the Federal
Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. §
23-214(A).
9.3.4
CITY retains the legal right to inspect the papers of any CM@R or subcontractor
employee who works on the Contract to ensure that the CM@R or subcontractor is
complying with the warranty. Any inspection will be conducted after reasonable
notice and at reasonable times.
9.3.5
If state law is amended, the parties may modify this paragraph consistent with state
law.
9.4
Equal Treatment of Workers: CM@R shall keep fully informed of all federal and state laws,
county and local ordinances, regulations, codes and all orders and decrees of bodies or tribunals
having any jurisdiction or authority, which in any way affect the conduct of the Work. CM@R
shall at all times observe and comply with all such laws, ordinances, regulations, codes, orders
and decrees; this includes, but is not limited to laws and regulations ensuring equal treatment
for all employees and against unfair employment practices, including the Occupational Safety
and Health Administration (“OSHA”) and the Fair Labor Standards Act (“FLSA”). CM@R
shall protect and indemnify City and its representatives against any claim or liability arising
form or based on the violation of such, whether by CM@R or its employees.
9.5
Israel. To the extent A.R.S. § 35-393 through § 35-393.03 is applicable, Contractor certifies
that it is not currently engaged in, and agrees for the duration of this Agreement that it will not engage
in, a boycott of goods and services from Israel, as that term is defined in A.R.S. § 35-393.
9.6
China. Pursuant to and in compliance with A.R.S. § 35-394, Contractor hereby agrees and
certifies that it does not currently, and agrees for the duration of this Agreement that Contractor will
not, use: (i) the forced labor of ethnic Uyghurs in the People’s Republic of China; (ii) any goods or
services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (iii) any
contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by
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Construction Services Contract for CM@R Project
January 3, 2023
the forced labor of ethnic Uyghurs in the People’s Republic of China. Contractor also hereby agrees to
indemnify and hold harmless the City, its officials, employees, and agents from any claims or causes of
action relating to the City’s action based upon reliance upon this representation, including the payment
of all costs and attorney fees incurred by the City in defending such as action.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day and year
first written above.
CITY OF TOLLESON
By: _________________________________
Its: Mayor
ATTEST:
______________________________
Crystal Zamora, City Clerk
APPROVED AS TO FORM:
_______________________________
Justin Pierce, City Attorney
CONSTRUCTION MANAGER AT RISK
_________________________________
By: ______________________________
Title: _____________________________