Agreement - B&F Contracting

City of Chandler — Regular Meeting (2023-04-27)

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CITY OF CHANDLER, ARIZONA

CHANDLER BOULEVARD AND DOBSON
ROAD SEWER AND WATER
IMPROVEMENTS

CITY PROJECT NO. ww2005.403

CONSTRUCTION SERVICES AGREEMENT
(CONSTRUCTION MANAGER AT RISK)

Kimberly Moon, P.E.
CIP City Engineer

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page i
Project No.: WW2005.403
Rev 1/6/2023

CITY OF CHANDLER, ARIZONA

CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER
IMPROVEMENTS
CITY PROJECT NO.: WW2005.403

TABLE OF CONTENTS
ARTICLE 1 - PARTICIPANTS AND PROJECT . eee ee ooo
ARTICLE 2 - AGREEMENT DOCUMENTS ..............scsceeseee 3
ARTICLE 3 - PRE-CONSTRUCTION SERVICES 3
ARTICLE 4 - CONSTRUCTION SERVICES saceeseesesessseeceseaees 3
ARTICLE 5 - CITY RESPONSIBILITIEG..............ssscccsosssesssssssessssesssesesessessssssssscesesesesssessenscusoresese 5
ARTICLE 6 - AGREEMENT TIME eee oe 5
ARTICLE 7 - AGREEMENT PRICE one 8
ARTICLE 8 - FORCED LABOR OF ETHNCI UYCHURS PROHIBITED..............scccscsssssssssssssssscore 8
EXHIBIT A - PROJECT SPECIFIC SPECIAL PROVISIONG.................00008 - SP-1
EXHIBIT B - GENERAL CONDITIONS GC-1
EXHIBIT C - TECHNICAL SPECIFICATIONS eae TS-1
EXHIBIT D - ACCEPTED GMP/PRICE PROPOSAL GMP-1
EXHIBIT E - SUBCONTRACTOR’S LIST FORM...........cccscscsscscssssssessssssscssssererssesenesssssscores SUB-1
EXHIBIT F - GIS / GPS DATA DELIVERY REQUIREMENTS (IF APPLICABLE)...............-.000+ GIS-1
Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page ii

Project No.: WW2005.403
Rev 1/6/2023

CONSTRUCTION MANAGER AT RISK
CONSTRUCTION SERVICES AGREEMENT
PROJECT NO.: WW2005.403

This Agreement (the “AGREEMENT”) is made and entered into on the day of ,
2023, (“Effective Date") by and between City of Chandler, an Arizona municipal corporation,
hereinafter called “City’ and B&F Contracting, Inc. the “Construction Manager at Risk” or
“CM@Risk” designated below (City and CM@Risk may individually be referred to as “Party”
and collectively referred to as “Parties”.

City and CM@Risk agree as follows:

ARTICLE 1 - P. P. OJECT
CITY: CIP City Engineer: Kimberly Moon, P.E.

CITY:

CM@RISK:

Public Works & Utilities Department
P.O. Box 4008, Mail Stop 407 Chandler, AZ 85244-4008
Phone: 480-782-3349 Email: kimberly.moon@chandleraz.gov

Construction Project Manager: Scott Riter

Public Works & Utilities Department

P.O. Box 4008, Mail Stop 407 Chandler, AZ 85244-4008
Phone: 480-782-3328 Email: scott.riter@chandleraz.gov

Legal Company Name: B&F Contracting, Inc
Mailing Address: 11011 North 23 Avenue, Phoenix, AZ 85029

Physical Address:

Arizona Roc No.: 089744 / 111282

Federal Tax Id No.:

State Where Organized: Arizona

Business Organization: “C" corporation

Statutory Agent Name: Bruce Wayne Balls
1717 W. Mandalay Lane, Phoenix, AZ
Statutory Agent Mailing Address: 85023

Statutory Agent Physical Address:

CM@Risk’s Authorized Project Representative:

Name: Josh Onstott

Title: Executive Director
Phone: 602-300-7588

Email: _jonstott@bfcontracting.com

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 1
Project No.: WW2005.403

Rev. 1/6/2023

PROJECT DESCRIPTION:

Sewer improvements in the vicinity of the Dobson Road and Chandler Boulevard intersection and
water improvements on Chandler Boulevard from Dobson Road to Chippewa Place.

PROJECT LOCATION:

Chandler Boulevard and Dobson Road

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 2
Project No.: WW2005.403
Rev. 1/6/2023

ARTICLE 2 - AGREEMENT DOCUMENTS

21 AGREEMENT DOCUMENTS
The Agreement between City and CM@Risk will consist of the following Agreement
Documents:

1. This Construction Services Agreement and all of its Exhibits, including Project
Plans and Technical Specifications.

2. General Conditions and General Conditions Appendices, incorporated by
reference.

3. Project Specific Special Provisions as set forth in Exhibit A, incorporated by
reference.

4. Accepted GMP/Price Proposal as set forth in Exhibit D, incorporated by reference.

2.2 In the event of any inconsistency, conflict, or ambiguity between or among the
Agreement Documents, the Agreement Documents will take precedence as described in
Section 14.1.4 of the General Conditions.

2.3 DEFINITIONS
The definitions in Sections 2 and 15 of the General Conditions apply to all the
Agreement Documents, including this Agreement.

ARTICLE 3 - PRE-CONSTRUCTION SERVICES

Although CM@Risk has performed Pre-Construction Services pursuant to a separate
Agreement between City and CM@Risk, the completion, quality and accuracy of those services
and the deliverables provided by City thereunder directly impact CM@Risk’s performance of
its obligations under this Agreement. Therefore, all of CM@Risk’s obligations, duties, and
warranties in relation to Pre-Construction Services and deliverables survive completion of the
Pre-Construction Services Agreement and are incorporated herein. Any breach of any of
CM@Risk’s duties, obligations, or warranties under the Pre-Construction Services Agreement
will likewise be considered a breach of this Agreement.

ARTICLE 4 - CONSTRUCTION SERVICES

41 GENERAL

4.1.1. CM@Risk 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 Agreement 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 schedule, stated in attached Exhibit A.

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 3
Project No.: WW2005.403
Rev. 1/6/2023

4.1.2

4.1.3

4.1.5

4.1.7

4.1.9

CM@Risk must provide all of the labor and materials, and perform the Work in
accordance with Section 4 of the General Conditions. Some, but not all, of the major
components of the Construction Services and the corresponding subsections of Section
4 of the General Conditions are set forth below.

This is an Agreement for complete construction services in accordance with the
Construction Manager at Risk method of delivery of construction services. CM@RISK has
participated in the design process and been an active member of the Project Design
Team and is fully aware of any issues and constraints involved in this Construction
Project.

CM@RISK is the CITY's fiduciary responsible for undertaking all necessary action
contemplated under the Agreement documents to construct the Project and ensure
timely and quality completion of the Project at a cost within the Guaranteed Maximum
Price (GMP).

At all times relevant to this Agreement and performance of the Work, the CM@Risk must
fully comply with all Laws, Regulations, or Legal Requirements applicable to City, the
Project and the Agreement, including, without limitation, those set forth on attached
Exhibit A.

CM@Risk must perform the Work under this Agreement using only those firms, team
members and individuals designated by CM@Risk consistent with the Statement of
Qualifications dated November 2, 2021, the GMP Proposal, or otherwise approved by City
pursuant to the General Conditions. No other entities or individuals may be used without
prior approval of the Project Manager

CM@Risk will comply with all terms and conditions of the General Conditions.

In the event of a conflict between this Agreement and the General Conditions or an exhibit
hereto or appendix thereto, the terms of this Agreement will control.

Ownership of Work Product. Notwithstanding anything to the contrary in this

Agreement, all Work Product prepared or otherwise created in connection with the
performance of this Agreement, including the Work, are to be and remain the property
of City. For purposes of this provision, “Work Product” will include all designs, drawings,
plans, specifications, ideas, renderings and other information or matter, in whatever form
created (e.g., electronic or printed) and in all media now known or hereinafter created.
All Work Product will be considered Work Made for Hire as defined in the United States
Copyright Act 17 U.S.C. 8 101 (Copyright Act). If for any reason, any such Work is found
not to be a Work Made for Hire, CM@Risk hereby transfers and assigns ownership of the
copyright in such Work to City. The rights in this Section are exclusive to City in perpetuity.

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS. Page 4
Project No.: WW2005.403
Rev. 1/6/2023

4.2

4.2.1

4.3

4.4

4.5

46

47

48

49

CM@RISK’S PRE-AGREEMENT AND PRE-WORK DELIVERABLES

The CM@Risk must provide the Deliverables in accordance with Section 4.2 of the
General Conditions.

PRE-CONSTRUCTION CONFERENCE
Refer to Section 4.3 of the General Conditions.

PERFORMANCE OF THE WORK (INCLUDING FIELD MEASUREMENTS,
SUBCONTRACTORS, AND SUPPLIERS)
Refer to Section 4.4 of the General Conditions.

CONTROL OF THE PROJECT SITE
Refer to Section 4.5 of the General Conditions.

PROJECT SAFETY
Refer to Section 4.6 of the General Conditions.

MATERIALS QUALITY, SUBSTITUTIONS AND SHOP DRAWINGS
Refer to Section 4.7 of the General Conditions.

PROJECT RECORD DOCUMENTS
Refer to Section 4.8 of the General Conditions.

WARRANTY AND CORRECTION OF DEFECTIVE WORK
Refer to Section 4.9 of the General Conditions.

ARTICLE 5 - CITY RESPONSIBILITIES

5.1

City will have the responsibilities, and provide the information specified in, and subject
to the conditions set forth in, Section 5 of the General Conditions.

ARTICLE 6 - AGREEMENT TIME

6.1 GENERAL

6.1.1 The Agreement Duration is 315 Calendar Days.

6.1.2 The Agreement Time will start with the Notice to Proceed (NTP) and end with Final
Acceptance, as set forth in Article 6.4 below. The Notice to Proceed cannot be issued until
approval and acceptance by City of the GMP or Fixed Price.

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 5

Project No.: WW2005.403
Rev. 1/6/2023

The Agreement Time will be as set forth in the Project Schedule. CM@Risk agrees that
it will commence performance of the Work and complete the Project through Final
Acceptance within the Agreement Time.

Time is of the essence of this Agreement for the Project, and for each phase and
designated Milestone thereof.

6.2 PROJECTSCHEDULE

6.2.1 The Project Schedule approved as part of the GMP Proposal and incorporated herein as
part ofthe attached Exhibit D must be updated and maintained throughout CM@Risk’s
performance under this Agreement in accordance with Section 6.2 of the General
Conditions.

6.2.2 Failure on the part of CM@Risk to adhere to the approved Project Schedule will be
deemed a material breach and sufficient grounds for termination of this Agreement by
City.

6.2.3. Work must be completed to meet the following milestones after the Notice to Proceed:

Milestone Time Liquidated damages for delay
wooo within co idays $0 per calendar day

6.3 SUBSTANTIALCOMPLETION
Substantial Completion must be achieved no later than the Substantial Completion Date
set forth in the Project Schedule. Substantial Completion will be determined in
accordance with Section 6.3 of the General Conditions.

6.4 FINAL ACCEPTANCE

6.4.1 Final Acceptance will be obtained within the time period set forth in the Project Schedule.

6.4.2 Final Acceptance will be issued pursuant to Section 6.5 of the General Conditions.

6.5 LIQUIDATED DAMAGES

6.5.1 Substantial Completion Liquidated Damages. CM@Risk acknowledges and agrees that
if CM@Risk fails to obtain Substantial Completion of the Work within the Agreement
Time, City will sustain extensive damages and serious loss as a result of such failure. The
exact amount of such damages will be extremely difficult to ascertain. Therefore, City
and CM@Risk agree that if CM@Risk fails to achieve Substantial Completion of the Work
within the Agreement Time, City will be entitled to retain or recover from CM@Risk, as

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 6

Project No.: WW2005.403
Rev. 1/6/2023

6.5.2

6.5.3

6.5.4

6.6

6.6.1

6.6.1.1

6.6.1.2

6.6.2

6.6.3

liquidated damages and not as a penalty, the sum per calendar day as indicated in MAG
§ 108.9.

Final Acceptance Liquidated Damages. For the same reasons set forth in Article 6.5.1
above, City and CM@Risk further agree that if CM@Risk fails to achieve Final Acceptance

of the Work within the Agreement Time, City will be entitled to retain or recover from
CM@Risk, as liquidated damages and not as a penalty, the sum per calendar day as
indicated in MAG § 108.9 commencing from the actual date of Substantial Completion or
Final Acceptance as required under the Agreement.

MAG Liquidated Damages. If no liquidated damages are specified in Articles 6.5.1 or 6.5.2
above, then the liquidated damages provisions in MAG § 108.9 will apply.

City may deduct liquidated damages described in this Article 6.5 from any unpaid
amounts then or thereafter due CM@Risk under this Agreement. Any liquidated damages
not so deducted from any unpaid amounts due CM@Risk will be payable to City at the
demand of City, together with interest from the date of the demand at the highest lawful
rate of interest payable by CM@Risk.

MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES ONLY

CM@Risk and City waive claims against each other for consequential damages arising
out of or relating to this Agreement. This mutual waiver includes:

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

Damages incurred by CM@Risk 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 Agreement. Nothing contained in this Article 6.6
will be deemed to preclude an award of liquidated damages, when applicable, in
accordance with Article 6.5 above.

Nothing herein will be deemed to constitute a waiver of any other remedy available to
City inthe event of CM@Risk’s default under this Agreement prior to full performance of
the Work including, as applicable, specific performance or completion of the Work on
behalf of CM@Risk, the cost and expense of which will be offset against any monies
then or thereafter due to CM@Risk (if any) and otherwise immediately reimbursed to
City by CM@Risk.

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 7
Project No.: WW2005.403
Rev. 1/6/2023

7.1

7.1.1

7.2

8.1

ARTICLE 7 - AGREEMENT PRICE

AGREEMENT PRICE

In exchange for CM@Risk’s full, timely, and acceptable performances and construction of
the Work under this Agreement, and subject to all of the terms of this Agreement, City
will pay CM@Risk the “Agreement Price,” which:

The sum of the CM@Risk’s Fee and reimbursable Cost of the Work, as defined in Section
15 of the General Conditions, which the CM@Risk guarantees will not exceed the GMP
set forth in Exhibit D in the amount of $_7.689,563.73. Costs which would cause the
GMP to be exceeded must be paid by CM@Risk without reimbursement from City.

The Agreement Price is all-inclusive and specifically includes all fees, cost, insurance and
bond premiums, allowances, construction contingency, owner's contingency, and taxes
of any type necessary to fully, properly and timely perform and construct Work.

CHANGES TO AGREEMENT PRICE
Shall be determined under Section 9 of the General Conditions.

ARTICLE 8 - FORCED LABOR OF ETHNIC UYGHURS PROHIBITED

FORCED LABOR OF ETHNIC UYGHURS PROHIBITED. By entering into this
Agreement, Contractor certifies and agrees Contractor does not currently use and
will not use for the term of this Agreement: (i) the forced labor of ethnic Uyghurs in
the People's Republic of China; or (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 the forced labor of ethnic Uyghurs in the People's Republic of China.

SIGNATURE PAGE TO FOLLOW

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 8
Project No.: WW2005.403
Rev. 1/6/2023

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement through their duly authorized
representatives and bind their respective entitles as of the effective date.

“CITY” CITY OF CHANDLER

“CM@Risk”
_~ B&F Contracting, Inc.

7

MM Le 4 sffes

MAYOR

RECOMMENDED BY:

RMN og

Signature Date

Print Name Bruce W. Balls

Kimberly Moon, P.E.
CIP City Engineer

APPROVED AS TO FORM:

Title CEO

BruceB@bfcontracting.com

Signer Email Address

City Attorney

ATTEST:

"?

City Clerk

Seal

Project Name: CHANDLER BOULEVARD AND DOBSON ROAD SEWER AND WATER IMPROVEMENTS Page 9

Project No.: WW2005.403
Rev. 1/6/2023