RFQ_260111_SAMPLE_CONTRACT.pdf

PROGRESSIVE DESIGN-BUILD

CONTRACT

CITY OF TUCSON

Progressive Design-Build Project

[Harrison Road, Pantano Wash Bridge PDB]

[Contract No. 260111]

Original Issue

[Issue Date]

[Harrison Road Bridge Project Name]

[Job Number/Other Details]

Contract i

Table of Contents

PROGRESSIVE DESIGN-BUILD

1 Contract Components; Interpretation of Contract 2 Progressive Design-Build Process 3 Obligations of the City and DB Contractor 4 Information Supplied to the DB Contractor; Disclaimer 5 Completion Requirements and Scheduling 6 Control of Work 7 Access to Site; Environmental Compliance 8 Equal Employment Opportunity; Subcontracts; Labor 9 Utility Work 10 Surety Bonds 11 Insurance 12 Risk of Loss 13 Payment 14 Relief & Compensation 15 Contract Modifications 16 Suspension of Work 17 Termination for Convenience 18 Default of Contract/Termination for Cause 19 Damages 20 Indemnification 21 Claims for Adjustment and Disputes 22 Acceptance of Project 23 Warranty and Maintenance 24 Documents and Records 25 Additional DB Contractor Obligations 26 Miscellaneous Provisions

Exhibit A – Acronyms and Definitions

Exhibit B – Phase 1 Services Scope and Fee 1 Introduction 2 Project Management 3 Phase 1 Services Management Plans 4 Phase 1 Services Schedule Management 5 Risk Management 6 Design Related Services 7 Fair Pricing Approach to Cost Estimating 8 Preconstruction Field Related Services 9 Technical Provisions 10 GMP Amendment 11 Construction Services Management Plans

Contract ii

Exhibit C – Design-Build Team

Exhibit D – Form of GMP Amendment Exhibit D-1: PROVISIONAL SUMS

Exhibit D-2: SCHEDULE OF VALUES

Exhibit D-3 PROJECT SCHEDULE:

Exhibit D-4: DESIGN DOCUMENTS UTILIZED TO DEVELOP GMP PROPOSAL

Exhibit D-5: ROW SERVICES TO BE PROVIDED BY THE DB CONTRACTOR

Exhibit D-6: PRECONSTRUCTION STUDIES, PLANS, ASSESSMENTS AND REPORTS

Exhibit D-7: LIQUIDATED DAMAGES

Exhibit E – Approved Subcontractors

Exhibit F – Contract Bond

Exhibit G – City of Tucson Requirements

Exhibit H – Key Personnel Requirements

Exhibit I – Affidavit of Authorizations and Representations

Exhibit J – DB Contractor’s Proposal

Contract iii

Recitals

This Progressive Design-Build Agreement (“Contract”) is entered into by and between the City of Tucson

(“the City”) and [________ ] (the “DB Contractor”) (collectively “Parties”), effective as of the last date set forth on the signature page hereto, with reference to the definitions contained in Exhibit A (Acronyms and Definitions) hereto and the following facts:

General Scope of Work

The City wishes to use a progressive design-build (“PDB”) delivery to design and construct the Harrison

Road Pantano Wash Bridge located in Pima County, Arizona. Currently the Pantano Wash crosses over Har-rison Road at-grade, and includes construction of a bridge to accommodate two travel lanes and the existing

Harrison Greenway multi-use path on Harrison Road over the Pantano Wash while maintaining access to

Escalante Road and existing driveways. The Pantano Wash is a part of the FEMA Regulatory Floodway and will require environmental permitting to be performed by the DB Contractor.

The Parties intend for the Contract to be a Progressive Design-Build contract obligating the DB Contractor to perform all work necessary to complete the Project by the deadlines specified herein, for the Contract

Price, subject only to certain specified limited exceptions as defined herein.

NOW, THEREFORE, in consideration of the sums to be paid to the DB Contractor by the City, the fore-going premises and the covenants and agreements set forth herein, the Parties hereto hereby agree as fol-lows.

Contract

1 Contract Components; Interpretation of Contract

Documents

1.1 Certain Definitions

Exhibit A (Acronyms and Definitions) hereto contains the meaning of various terms used in the Contract Doc-uments.

1.2 Contract Documents

The term “Contract Documents” shall mean the documents listed in Section 1.3 (Phases and Order of Prece-dence), including all exhibits thereto.

1.3 Phases and Order of Precedence

This Contract includes requirements for the Phase 1 Services and the Phase 2: Final Design and Construc-tion Services.

Preconstruction Work shall be performed in accordance with the requirements of this Contract including

Exhibit B (Phase 1 Services Requirements). During performance of Preconstruction Work, any provisions of the Contract Documents that pertain solely to Construction Work shall not apply to Preconstruction

Work.

The Parties anticipate that Exhibit B may need to be modified as the DB Contractor advances the Precon-struction Work. The City may, on its own initiative or at the request of the DB Contractor, determine that modification of Exhibit B is needed and notify the DB Contractor in writing of the modification. Upon notification by the City, and mutual agreement of the Parties, the modification shall be appended to the

Contract without further action.

In the event of any conflict among the Contract Documents applicable to Preconstruction Work, the order of precedence shall be as follows:

A. the Contract, as executed by the Parties or amended pursuant to Section 26.1.1 (General Contract

Amendments) and Contract Modifications pursuant to Section 15 (Contract Modifications);

B. Exhibit B (Phase 1 Services Scope and Fee) as modified;

All Construction Work shall be performed in accordance with the requirements of this Contract, excluding

Exhibit B, and including any additional requirements in the GMP Amendment.

In the event of any conflict among the Contract Documents applicable to Construction Work, the order of precedence shall be as follows:

A. Contract Modifications and amendments to this Contract, including the GMP Amendment;

B. the Contract, as executed by the Parties or amended pursuant to Section 26.1.1; and

Contract

C. Pima Association of Governments Standard Specifications for Public Improvements.

In the event of conflicting requirements involving any requirement established by reference contained in the Contract Documents, the City shall have the right to determine, in its sole discretion, which requirement applies. The DB Contractor shall request the City’s determination respecting the order of precedence among conflicting provisions promptly upon becoming aware of any such conflict.

1.4 Term

Without limiting Section 26.7 (Survival) and post-termination obligations under Section 17 (Termination for Convenience), this Contract shall take effect on the Effective Date and will remain in effect until the earlier of:

A. the City issues a Notice of Final Acceptance described in Section 22.2.2 (Inspection and Issuance of Notice of Final Acceptance).

B. Earlier termination in accordance with the terms of the Contract Documents.

1.5 Interpretations

In the Contract Documents, where appropriate: the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending, or replacing the statute or regulation referred to; the words “including,” “included,” “includes,” and “include” are deemed to be followed by the words “without limitation”; unless the context requires otherwise, in phrases involving performance by a Person, the word “shall” indicates a requirement imposed on the Person; unless otherwise indicated, references to sections, appendices and exhibits are to the document which contains such references; words such as “herein,” “hereof,” and “hereunder” refer to the entire document in which they are contained and not to any particular provision or section; words not otherwise defined that have well-known technical or construction industry meanings are used in accordance with such recognized meanings; references to Persons include their respective permitted successors and assigns and, in the case of Governmental Persons, Persons succeeding to their respective functions and capacities; and words of any gender used herein include each other gender where appropriate. Unless otherwise specified, lists con-tained in the Contract Documents defining the Project or the Work shall not be deemed all-inclusive. The

DB Contractor further acknowledges and agrees that it has independently reviewed the Contract Documents with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the Contract Documents. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the Contract Documents, the Contract Documents shall not be construed against the Person who prepared them, and instead other rules of interpretation shall be used. the

City's final answers to the questions posed during the proposal process for the Contract shall in no event be deemed part of the Contract Documents and shall not be relevant in interpreting the Contract Documents except as they may clarify provisions otherwise considered ambiguous.

1.6 Referenced Standards and Specifications

Except as otherwise specified in the Contract Documents or otherwise directed by the City, Work specified by the number, symbol or title of any standard established by reference to a described publication affecting any portion of the Project shall comply with the latest edition or revision thereof and amendments and supplements thereto in effect on the Effective Date of this Contract. The Contract shall be governed and

Contract construed according to the laws of the Tucson City Code and the State of Arizona.

1.7 Omission of Details; Clarification by the City

The DB Contractor shall not take advantage of any apparent Error in the Contract. Should it appear that the

Work to be done or any matter relative thereto is not sufficiently detailed or explained in the Contract

Documents, The DB Contractor shall apply to the City in writing for such further written explanations as may be necessary and shall conform to the explanation provided. The DB Contractor shall immediately upon discovery notify the City and will have limited availability to make claims if the City is not notified within 3 Business Days of discovery of all Errors which it may discover in the Contract Documents and shall obtain specific instructions in writing regarding any such Error before proceeding with the Work af-fected thereby. The fact that the Contract Documents omit or misdescribe any details of any Work which are necessary to carry out the intent of the Contract Documents, or which are customarily performed under similar circumstances, shall not relieve The DB Contractor from performing such omitted Work or misde-scribed details of the Work, and they shall be performed as if fully and correctly set forth and described in the Contract Documents, without entitlement to a Contract Modification hereunder.

1.8 Computation of Periods

“Business Days” contained in the Contract Documents shall be interpreted in accordance with Exhibit A

(Acronyms and Definitions). If the timeframe end date for the City’s response to a submittal or DB Con-tractor’s submittal date falls on a non-Business Day, the end date for a response will be 12:00 pm local time of the next Business Day.

1.9 Federal Requirements

If federal funding is utilized on the Project, all Federal Requirements will be incorporated into the GMP

Amendment as appropriate.

1.10 The City Approval; Review and Comment

1.10.1 Approval

When the DB Contractor is required to submit an item to the City for Approval, the DB Contractor shall obtain the City or their Authorized Representative written approval of such item and may not proceed to incorporate that item into the Work or the Project without the City’s written Approval. References to “the

City” on provisions related to submittal review shall also mean their Authorized Representative, as appli-cable.

If the City does not respond to such a submittal within any required timeframe set forth in the Contract

Documents, the DB Contractor shall send to the City a written notice reminding the City that it is awaiting

Approval as a condition precedent to submission of a Request for Contract Modification for a Relief Event.

Any time that the City does not Approve a submittal, it shall provide comments explaining the denial to the DB Contractor. Unless the Approval is expressly described in the GMP Amendment, GMP Amendment, as being in the City’s sole discretion, the denial shall be based on the requirements of the Contract Docu-ments. The DB Contractor shall address the comments in revisions or shall explain why it believes it cannot or should not address the comments. Once all comments have been fully resolved to the reasonable satis-faction of the City, any revised submittal shall then be resubmitted to the City for Approval.

The City may, in its discretion, conditionally Approve a submittal, allowing the DB Contractor to proceed with the Work related to the submittal, provided that the DB Contractor addresses minor clarifications or

Contract edits identified in such conditional Approval. The DB Contractor shall seek full approval, without any conditions prior to starting any Construction Work.

1.10.2 Review and Comment

When the DB Contractor is required to submit an item to the City for review and comment, the City shall have an opportunity to provide comments. If the City does not provide any comments within the required timeframe set forth in the Contract Documents, or within [10] Business Days if the Contract Documents do not provide a timeframe, then the DB Contractor shall notify the City that it has not received comments and may proceed to advance the Work without the City review and comment. Upon receipt of notice by the

DB Contractor, the City shall provide comments or notify the DB Contractor in writing that the City has no comments within two Business Days or other timeframe agreed to by the Parties.

Contract

2 Progressive Design-Build Process

The City will deliver the Project using the PDB delivery method, which consists of the following two phases:

A. Phase 1: Design and Preconstruction Services

During Phase 1, the DB Contractor will provide design and preconstruction services (collectively the

“Phase 1 Services”) for the Project. The Phase 1 design services include:

i. The initial design services include preparation of conceptual designs and selection of a design alternative. The DB Contractor will work in coordination with the City’s Design

Staff to review feasibility of different design alternatives, with a minimum of two alterna-tive, and select a design alternative which provides maximum value to the City. The DB

Contractor will develop initial conceptual plans for the design alternative selected includ-ing at a minimum an access plan showing relocation of driveways and Escalante Road for impacted properties in the vicinity.

ii. The DB Contractor will conduct environmental and permitting activities to obtain permit approval as described in Section 3.2.2 The DB Contractor shall also prepare base plans for the design alternative selected which includes plans, studies, concepts and reports that cap-ture all major items, elements, and portions of the Work specific to the selected design alternative. The base plans will be submitted to the City at approximately 30-40% design completion stage.

iii. The DB Contractor shall perform preliminary engineering and design activities and pro-gress the design to a level necessary to submit a price for Construction Work in Phase 1.

The preliminary plans will be submitted to the City at approximately 60-75% design com-pletion stage.

The preconstruction services during Phase 1 include, but are not limited to, construction cost estimating and submission of Opinion of Probable Cost of Construction (“OPCC”) packages, Project schedule devel-opment, constructability reviews, sequence of construction, construction approach planning, risk manage-ment, filed investigation activities, third party coordination, development of Guaranteed Maximum Price

(GMP) proposal, subcontracting related services and administrative services including development of pro-ject management plans. The Phase 1 Services have been identified in detail in Exhibit B (Phase 1 Scope of

Services and Fee)

At intervals specified in Exhibit B, Section 6.1 (Design Submittals and Milestones), the DB Contractor will submit design packages along with OPCC packages, which include the Project construction cost and a

Project Baseline Schedule for completion of the Work. The OPCC is a non-binding estimate that will aid the City and the DB Contractor to evaluate design parameters and as needed, to clarify the final scope of construction. The City and the DB Contractor, on an open book basis, will participate in construction price negotiations consisting of workshops to reconcile price differences with the goal of negotiating a construc-tion price. As part of the construction price negotiations, DB Contractor may perform further design or other activities and update its construction price estimate.

To facilitate reconciliation, the DB Contractor shall provide all cost estimates to perform the Phase 2 Ser-vices on an open book basis, which entails providing all assumptions and substantiation to build the

Contract construction cost estimates. The DB Contractor shall work collaboratively with the City to reconcile price differences and to ensure that the City is receiving a fair and reasonable price for the Construction Work.

The details regarding fair pricing approach have been provided in Exhibit B, Section 7 (Fair Pricing Ap-proach to Cost Estimating). As part of the OPCC package submissions and construction cost reconciliation, The City will evaluate whether the construction schedule submitted by the DB Contractor aligns with the construction price and will result in on-time completion of the Work.

At a design completion stage specified in Exhibit B, Section 6.1 (Design Submittals and Milestones), the

DB Contractor will submit a GMP (the “GMP Proposal”) for the Construction Work for City’s review.

Upon successful review and negotiations between the City and DB Contractor, an amendment (the “GMP

Amendment”) will be executed to Contract which will allow the DB Contractor to perform Phase 2 services.

If City and the DB Contractor cannot agree on a GMP or City otherwise decides in its sole discretion not to execute a GMP Amendment with the DB Contractor, the City may take action in accordance with Section

2.2.2 (City’s Rights)

B. Phase 2: Final Design and Construction Services

Upon successful GMP negotiations and further execution of GMP Amendment to the Contract, the DB

Contractor will perform final design and construction services (“Phase 2 Services”). During Phase 2, the

DB Contractor will complete the Released for Construction Plans (“RFC”), achieve Final Acceptance, and perform all design, construction, and other obligations required under the Contract. For the avoidance of doubt, the DB Contractor’s performance of the Phase 2 Services is expressly contingent upon City and the

DB Contractor agreeing upon and executing a GMP Amendment.

The DB Contractor and Principal Participants shall self-perform 40% of Construction Work with its own employees and forces which is not subject to competitive bidding requirements. All Construction Work not self-performed by the DB Contractor will be subject to competitive bidding requirements included in Sec-tion 8.2 (Subcontracting Requirements).

2.1 Phase 1 Services

Phase 1 Services shall begin upon the execution of this Contract and issuance of NTP1. The scope of the

Preconstruction Work and Phase 1 Services Fee is set forth in Exhibit B (Phase 1 Services Scope and Fee).

Phase 1 Services Fee shall be in accordance with Section 13.1 (Phase 1 Services Compensation) and shall be a not to exceed amount.

The Phase 1 Services shall continue until either:

A. The GMP Amendment is awarded to the DB Contractor and executed by the City; or

B. the City exercises its right to terminate under Section 17 (Termination for Convenience).

2.2 Construction Services

2.2.1 GMP Amendment

2.2.1.1 Development of the GMP Proposal

As described in Exhibit B Section 7 (Fair Pricing Approach to Cost Estimating), throughout the Precon-struction Phase, the City, ICE, and the DB Contractor shall work together to develop iterative versions of a budget for the Construction Work and opinions of probable construction cost at various milestones. Based on such iterative process, at a mutually agreed design completion stage, the DB Contractor shall prepare

Contract and submit a proposed GMP Amendment (the “GMP Proposal”) in a form agreed to by the Parties (using

Exhibit D (Form of GMP Amendment) as the base) and in accordance with the requirements of this Section

2.2.1.1.

The City shall review the GMP Proposal and provide any feedback or direction it elects in its discretion, including direction to the DB Contractor to continue to participate in value engineering exercises so that the DB Contractor can reduce the cost of the GMP Proposal. At the City’s request, the DB Contractor shall meet with the City to review and discuss the GMP Proposal and make adjustments in response to comments from the City.

2.2.1.2 Calculation of the GMP

The guaranteed maximum price (“GMP”) for the GMP Amendment shall be computed as the sum of the following and any other components agreed by the City and the DB Contractor:

A. The DB Contractor’s Provisional Sums (including unit prices and hourly rates, if applicable), which shall be used as detailed on Exhibit D-1 (Provisional Sums);

B. The DB Contractor’s Cost of the Construction Work as shown in the Exhibit D-2 (Schedule of

Values);

The backup support for the calculation of the GMP shall be provided to the City in a manner and in the format developed pursuant to the protocols in Exhibit B, Section 7 (Fair Pricing Approach to Cost Esti-mating) and Exhibit D (Form of GMP Amendment).

2.2.1.3 Schedule of Values

The GMP Proposal shall include a schedule of items (the “Schedule of Values”) shown in Exhibit D-2

(Schedule of Values) allocating the GMP among the various portions of the Construction Work. The Sched-ule of Values shall be in the format developed pursuant to the protocols in Exhibit B, Section 7 (Fair

Pricing Approach to Cost Estimating).

2.2.1.4 Final GMP Amendment

If the City and the DB Contractor agree upon a GMP and other items comprising the GMP Proposal, then they shall execute the GMP Amendment, which shall set forth each of the items described in Exhibit B, Section 10 (GMP Amendment).

The DB Contractor shall only be entitled to compensation for Construction Work to the extent such Con-struction Work has been authorized pursuant to the executed GMP Amendment. Except as set forth in the

Contract Documents, the DB Contractor shall not be entitled to compensation in excess of the price in-cluded in the GMP Amendment.

2.2.2 City’s Rights

By entering into this Contract, the City is not obligating itself to authorize the DB Contractor to perform the Construction Work. If the parties are unable or unwilling to agree upon the GMP Amendment, then the

City may, at its election, take one or more of the following actions:

A. Enter into discussions with the Design-Build Firm to reconcile basis of costs differences

B. Direct the DB Contractor only to complete production of the Professional Services Work Product for all or any portion of the Project through a Contract Modification mutually agreed upon by the

Parties. The Phase 1 Services Fee amount shall in in accordance with Section 13.1 of the Contract;

Contract

C. contract separately with the Lead Designer to complete the in-process design;

D. Solicit bids for the balance of the Work from other contractors in accordance with applicable law and using any procurement method available under applicable law and determine that the DB Con-tractor shall not be permitted to submit a bid due to competitive advantage. At the option of the

City, direct the DB Contractor to continue to perform all or some of the Phase 1 Services under the then-current compensation arrangement.

E. Direct the DB Contractor to deliver to the City copies and other tangible embodiments of the Pro-fessional Services Work Product and all related Intellectual Property Rights; or

F. Direct the DB Contractor to continue to participate in value engineering exercises so that the Con-tractor can submit another GMP Amendment Proposal at a reduced cost

G. Terminate this Contract pursuant to Section 17 (Termination for Convenience).

If the City terminates the DB Contractor’s services without execution of a GMP Amendment, neither the

DB Contractor nor any Principal Participant thereof may bid or propose in any subsequent procurement for the Construction Work for this Project.

2.3 No Liability for Partial Design

If the City elects to terminate the Contract prior to completion of Released for Construction Professional

Services Work Product, the DB Contractor shall be released from all liability (under contract, tort, or any other legal theory) that may arise in relation to any City use of Professional Services Work Product pro-duced by the DB Contractor.

2.4 Risk Register

The Parties shall develop a Risk Register with respect to the entire Project in accordance with the guidelines and principles described in Exhibit B (Phase 1 Services Requirements).

The City, or one of its designees, shall be responsible for maintaining and updating the Risk Register. The

Risk Register will identify potential risk threats and opportunities related to Construction Work (each, a

Risk Register Event). All Risk Register Events shall be categorized as either a City Risk, Provisional Risk, or a DB Contractor Risk. The DB Contractor shall provide support for development of the Risk Register and Provisional Sums. This may include development of cost estimates for all identified risks, support for risk meetings and review of risk reports and analysis of project risks as further described in Exhibit B, Section 5 (Risk Management)

The Risk Register shall also define response and mitigation strategies to be used with respect to Risk Reg-ister Events and identify any probable cost and/or time impacts to the Project.

2.4.1 City Risks

All Risk Register Events that are categorized as City Risks shall describe the types and extent of any relief that the DB Contractor shall be entitled to seek upon occurrence of the Risk Register Event. Risk Register

Events that are City Risks may also include requirements for cost sharing, determination of time impacts, payment requirements, and other terms.

If a Risk Register Event occurs while performing Construction Work, and the Risk Register Event is a City

Risk, then the DB Contractor shall be entitled to seek a Contract Modification in accordance with Section

15 (Contract Modifications).

Contract

2.4.2 Provisional Risks

All Risk Register Events that are Provisional Risks shall specify:

A. the amount of any Provisional Sum;

B. whether the Provisional Sum is a Shared Provisional Sum;

C. whether the Provisional Sum is capped or uncapped;

D. a description of how the Risk Register Event is triggered;

E. payment requirements for Provisional Sums; and

F. any required mitigation efforts to be taken by the DB Contractor.

When a Provisional Risk Register Event occurs, the DB Contractor shall coordinate with the City and obtain

City Approval of all Provisional Sum payment amounts and applicable relief.

2.4.2.1 Provisional Risks with Capped Provisional Sums

If a Risk Register Event occurs while performing Construction Work, and the Risk Register Event is a

Provisional Risk with a capped Provisional Sum, then the DB Contractor shall not be entitled to seek any additional costs or schedule relief for occurrence of the Risk Register Event beyond that identified in the

Risk Register.

2.4.2.2 Provisional Risks with Uncapped Provisional Sums

If a Risk Register Event occurs while performing Construction Work, and the Risk Register Event is a

Provisional Risk with an uncapped Provisional Sum, and the Provisional Sum or other relief provided in the Risk Register is exhausted, then the DB Contractor shall be entitled to seek relief in accordance with

Section 14 (Relief & Compensation) and Section 15 (Contract Modifications).

2.4.2.3 Shared Provisional Sums

For all Risk Register Events that identify a Shared Provisional Sum, upon achievement of Final Acceptance, or such other date determined by the City in its sole discretion, any unused Shared Provisional Sums across the Project shall be allocated to the City or the DB Contractor as described in the Risk Register, and the DB

Contractor's share shall be included as a separate line item on the Application for Final Payment in accord-ance with Section 13.5 (Application for Final Payment).

2.4.3 The DB Contractor Risks

To facilitate transparent pricing, the Risk Register may also include the DB Contractor Risks and identify the DB Contractor Risk Contingency Sums for the DB Contractor Risks. The DB Contractor Risk Contin-gency Sums identified in the Risk Register are not shared and are retained by the DB Contractor whether or not they are used. For avoidance of doubt, any risk not identified in the Risk Register shall also be considered a DB Contractor Risk notwithstanding it not being included in the Risk Register. Additionally, any Relief Event identified in Section 14.1.1 (Relief Event Defined) shall not be considered a DB Contractor

Risk.

The DB Contractor shall receive no additional compensation for the DB Contractor Risks beyond any DB

Contractor Risk Contingency identified in the Risk Register.

Contract

3 Obligations of the City and DB Contractor

3.1 Performance Requirements

3.1.1 Performance of Work

All labor, equipment, materials, services and efforts necessary to achieve Substantial Completion and Final

Acceptance on or before the applicable Completion Deadline shall be The DB Contractor’s sole responsi-bility, except as otherwise specifically provided in the Contract Documents. Subject to the terms of Section

15 (Contract Modifications), the costs of all such materials, services and efforts are included in the Contract

Price.

3.1.2 Performance Standards

The DB Contractor shall furnish the design of the Project and shall construct the Project as designed, in accordance with all professional engineering principles and construction practices generally accepted as standards of the industry in the State (but at least meeting the requirements of the Contract Documents), in a good and workmanlike manner, free from defects.

3.1.3 Performance as Directed

At all times during the term hereof, including during the course of, and notwithstanding the existence of any dispute, the DB Contractor shall perform as directed by the City in a diligent manner and without delay, shall abide by the City’s decision or order, and shall comply with all applicable provisions of the Contract

Documents. If a dispute arises regarding such performance or direction, the dispute shall be resolved in accordance with Section 21 (Claims for Adjustment and Disputes).

3.2 General Obligations of the City and DB Contractor

3.2.1 City Scope and Responsibilities

The City has established the need for a replacement bridge over the Patano Wash and the scope includes construction of a bridge to accommodate two travel lanes and the existing multi-use path on Harrison Road over the Pantano Wash. The Pantano Wash is a part of the FEMA Regulatory Floodway and will require environmental permitting to be performed by the DB Contractor. DB Contractor Scope and Responsibilities

The DB Contractor, in addition to performing all other requirements of the Contract Documents, shall:

A. Furnish all design and other services, provide all equipment, materials and labor and undertake all efforts necessary or appropriate (excluding only those services, materials and efforts which the

Contract Documents specify will be undertaken by other Persons):

i. to construct the Project and maintain it during construction in accordance with the require-ments of the Contract Documents, all Governmental Rules, all Governmental Approvals, and all other applicable safety, environmental, licensing and other requirements, taking into ac-count the existing right-of-way and other constraints affecting the Project, so as to achieve, Substantial Completion and Final Acceptance by the applicable Completion Deadlines; and

ii. otherwise to do everything required by and in accordance with the Contract Documents.

B. Accept the payment terms in accordance with Section 13 (Payment).

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C. At all times, provide The DB Contractor’s Project Manager, who will

i. have full responsibility for the prosecution of the Work,

ii. act as agent and be a single point of contact in all matters on behalf of the DB Contractor,

iii. be present (or their designee will be present) at the Site at all times that Work is performed, and

iv. have authority to bind the DB Contractor on all matters relating to the Project.

D. Obtain all Governmental Approvals (other than the New Environmental Approvals in accordance with Section 7.2.2.1 (Approvals to be Obtained by the City).

E. Comply with all conditions imposed by and undertake all actions required by and all actions nec-essary to maintain in full force and effect, all Governmental Approvals, including implementation of all environmental mitigation measures required by the Contract Documents, except to the extent that such responsibility is expressly assigned in the Contract Documents to another Person.

F. Provide such assistance as is reasonably requested by the City in dealing with any Person and/or in prosecuting and defending lawsuits in any and all matters relating to the Project, which may include providing information and reports regarding the Project, executing declarations and attending meet-ings and hearings, but which shall in no event be deemed to require the DB Contractor to provide legal services.

G. Comply with all requirements of all Governmental Rules, Federal and State laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority.

H. Cooperate with the City and Governmental Persons with jurisdiction over the Project in the review and oversight of the Project and other matters relating to the Work;

I. Supervise and be responsible to the City for acts and omissions of all The DB Contractor-Related

Entities, as though all such Persons were directly employed by The DB Contractor;

J. Mitigate delay to the Project and mitigate damages due to delay to the extent possible, including by resequencing, reallocating or redeploying the DB Contractor’s forces to other work, as appropriate.

K. Pay all applicable federal, State and local sales, consumer, use and similar taxes, property taxes and any other taxes, fees, charges or levies imposed by a Governmental Person, whether direct or indirect, relating to, or incurred in connection with, the performance of the Work.

L. The DB Contractor shall include, and will be deemed to have included, all applicable Arizona Sales and Use Taxes which have been enacted into law as of the date the bid is submitted.

The City will have the right to reject the DB Contractor’s Project Manager prior to or anytime during their participation in the Project. Rejection may occur in accordance with employee performance requirements as described in Section 8.3 (Employee Performance Requirements). Any replacement of the DB Contrac-tor’s Project Manager will be subject to the City’s Approval. Such Approval will be based on the qualifi-cation requirements set forth in the Request for Qualifications (RFQ) and elsewhere in the Contract Docu-ments.

3.3 Representations, Warranties and Covenants

Contract

The DB Contractor represents, warrants and covenants for the benefit of the City as follows:

3.3.1 Maintenance of Professional Qualifications; Performance by Qualified Personnel

The DB Contractor and its design Subcontractor(s) have maintained, and throughout the term of the Con-tract and its design Subcontract(s) shall maintain, all required authority, license status, professional ability, skills and capacity to perform the Work.

All design and engineering Work furnished by the DB Contractor shall be performed by or under the su-pervision of Persons licensed to practice architecture, engineering or surveying (as applicable) in the State of Arizona, and by personnel who are careful, skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Contract Doc-uments, and who shall assume professional responsibility for the accuracy and completeness of the Profes-sional Services Work Product and Construction Documents prepared or checked by them.

The DB Contractor acknowledges and agrees that the award of this Contract by the City to the DB Con-tractor was based, in part, on the qualifications and experience of the personnel listed in the Proposal, and the DB Contractor’s commitment that such individuals would be available to undertake and perform the

Work. In addition to ratifying the representations, warranties, and covenants set forth in the Key Personnel

Commitments attached to Exhibit C (Design-Build Team), the DB Contractor represents, warrants, and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Work. Key Personnel shall commit the amount of time to their applicable roles as set forth in the Exhibit H (DB Contractor Key Personnel Requirements).

3.3.2 Governmental Approvals

The DB Contractor has no reason to believe that any Governmental Approval required to be obtained by the DB Contractor will not be granted in due course and thereafter remain in effect so as to enable the Work to proceed in accordance with the Contract Documents. If any Governmental Approvals required to be obtained by the DB Contractor must formally be issued in the name of the City, the DB Contractor shall undertake all efforts to obtain such approvals, subject to the City’s reasonable cooperation with the DB

Contractor, including execution and delivery of appropriate applications and other documentation in a form

Approved by the City’s Project Manager. The DB Contractor shall assist the City in obtaining any Govern-mental Approvals that the City may be obligated to obtain, including providing information requested by the City and participating in meetings regarding such approvals.

3.3.3 Authorization

The execution, delivery and performance of this Contract have been duly authorized by all necessary actions of The DB Contractor, and, if applicable, The DB Contractor’s members, and will not result in a breach or a default under the organizational documents of any such Person or any indenture, loan, credit agreement, or other material agreement or instrument to which any such Person or any Guarantor is a party or by which their properties and assets may be bound or affected.

3.3.4 Legal, Valid and Binding Obligation

This Contract constitutes the legal, valid and binding obligation of the DB Contractor and, if applicable, of each member of the DB Contractor, enforceable in accordance with its terms. If applicable, each Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms.

3.3.5 False or Fraudulent Statements and Claims

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The DB Contractor recognizes that the requirements of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and the USDOT regulations, “Program Fraud Civil Remedies,”49 C.F.R.

Part 31, apply to its actions hereunder. Accordingly, by signing this Contract, The DB Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, or it may make pertaining to this Contract. In addition to other penalties that may be applicable, DB Contractor also acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification, the federal government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, on The DB Contractor to the extent the federal government deems appropriate.

3.3.6 GMP Amendment Representations, Warranties, and Covenants

The DB Contractor understands and agrees that the representations, warranties, and covenants listed in this

Section 3.3.6 shall apply and be included in the GMP Amendment in addition to the representations, war-ranties, and covenants listed in Section 3.3 (Representations, Warranties and Covenants).

3.3.6.1 Evaluation of Constraints

The DB Contractor has evaluated the constraints affecting delivery of the Project, including the Right-of-

Way Work Map, as well as the conditions of Environmental Approvals and has reasonable grounds for believing and does believe that the Project can be constructed within such constraints.

3.3.6.2 Feasibility of Performance

The DB Contractor has evaluated the feasibility of performing the Work within the time specified herein, and has reasonable grounds for believing and does believe that such performance (including achievement of Substantial Completion and Final Acceptance by the applicable Completion Deadlines, for the Contract

Price) is feasible and practicable.

3.3.6.3 Progression of Work

The DB Contractor shall at all times schedule and direct its Work to provide an orderly progression of the

Work to achieve Substantial Completion and Final Acceptance by the applicable Completion Deadlines and in accordance with the schedule, including furnishing such employees, materials, facilities and equip-ment and working such hours (including extra shifts and overtime operations) as may be necessary to achieve such goals, all at the DB Contractor’s own expense, except as otherwise specifically provided in the Risk Register and Section 15 (Contract Modifications).

3.3.6.4 Review of Site Information

The DB Contractor has, conducted a reasonable investigation and otherwise examined the Site as well as surrounding locations, and as a result of such review, inspection, examination, and other activities the DB

Contractor is familiar with, and has satisfied itself as to, the character of the Site, and accepts the physical requirements of the Work, subject only to the DB Contractor's express rights and bases to seek relief under this Contract. Based on its review, inspection, examination and other activities, DB Contractor is familiar with and accepts the physical requirements of the Work. Before commencing any Work on a particular aspect of the Project, The DB Contractor shall verify all governing dimensions and conditions at the Site and shall examine all adjoining work which may have an impact on such Work. The DB Contractor shall be responsible for ensuring that the Professional Services Work Product and Construction Documents ac-curately depict all governing and adjoining dimensions and conditions.

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4 Information Supplied to the DB Contractor; Disclaimer

4.1 Information Supplied

The City has made available and will make available during Phase 1 Services information which is de-scribed in the Contract Documents and certain Reference Information Documents (RID) regarding the Pro-ject. RIDs have been provided to Proposers in Exhibit B to the ITP. The RIDs are for informational purposes only and are subject to revision, correction, or alteration. The RIDs provided may only be relied upon by a

Proposer at its own risk and will not be considered contractual or binding in nature

4.2 Reliance on Specified RID Information

4.2.1 No Other Liability Regarding RID

The DB Contractor understands and agrees that the City shall not be responsible or liable in any respect for any loss, damage, injury, liability, cost or cause of action whatsoever suffered by any DB Contractor-Re-lated Entity by reason of any use of any information contained in the RID or any action or forbearance in reliance thereon. The DB Contractor further acknowledges and agrees that:

A. If and to the extent the DB Contractor or anyone on the DB Contractor’s behalf uses any of said information in any way, such use is made on the basis that the DB Contractor, not the City, has approved and is responsible for said information, and

B. The DB Contractor is capable of conducting and obligated hereunder to conduct any and all studies, analyses and investigations as it deems advisable to verify or supplement said information, and that any use of said information is entirely at The DB Contractor’s own risk and at its own discretion.

Notwithstanding the preceding paragraph, during Phase 1 Services the City and the DB Contractor may determine that reliance on certain information included in the RIDs is appropriate. This reliance shall be documented in the GMP Amendment, and specifically identified information documented within the ap-plicable amendment shall not be considered RID.

4.2.2 No Representation or Warranty Regarding Basic Configuration and RID

The City does not represent or warrant that the information contained in the RID is either complete or ac-curate or that such information conforms with the requirements of the Contract Documents.

4.3 Professional Licensing Laws

The City does not intend to contract for, pay for, or receive any design services which are in violation of any professional licensing laws, and by execution of this Contract, the DB Contractor acknowledges that the City has no such intent. It is the intent of the Parties that The DB Contractor is fully responsible for furnishing the design of the Project, although the fully licensed design firm(s) or individuals designated herein will perform the design services required by the Contract Documents. Any references in the Contract

Documents to The DB Contractor’s responsibilities or obligations to “perform” the design portions of the

Work shall be deemed to mean that The DB Contractor shall “furnish” the design for the Project.

4.4 Prerequisites for the Start of Design of the Project

The DB Contractor shall not start design of the Project until all the following events have been fully satisfied and remain so:

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A. Issuance of NTP1 as described in Section 5.2 (Notice to Proceed)

B. the Phase 1 Services Quality Management Plan has been Approved;

C. the Phase 1 Services Schedule Management Plan has been Approved;

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5 Completion Requirements and Scheduling

5.1 Time of Essence

Time is of the essence for this Contract and the GMP Amendment.

5.2 Notice to Proceed

Notice to Proceed for Phase 1 Services shall be provided upon execution of this Contract, at that time, issuance of NTP1 will occur. Notice to Proceed for Construction Services shall be provided through issu-ance of NTP2 upon the execution of the GMP Amendment.

The following must occur prior to issuance of NTP1:

A. all insurance policies and bonds, as applicable, that are required to be delivered to the City hereun-der have been submitted to the City in compliance with the requirements of the Contract Documents and remain in full force and effect;

B. the DB Contractor has made available all Key Personnel and other personnel required to be made available;

C. the DB Contractor is not in breach of this Contract; and

D. all representations, warranties, and covenants of the DB Contractor remain true and correct in all material respects.

5.3 Completion Deadlines

The GMP Amendment shall specify a date for Substantial Completion. Said deadline for Substantial Com-pletion is referred to herein as the “Substantial Completion Deadline”. The DB Contractor shall achieve

Substantial Completion by the Substantial Completion Deadline.

The GMP Amendment shall specify a date for Final Acceptance. Said deadline for Final Acceptance is referred to herein as the “Final Acceptance Deadline”. The DB Contractor shall achieve Final Acceptance by the Final Acceptance Deadline.

5.4 No Time Extensions

Except as otherwise specifically provided in Section 14 (Relief & Compensation) and Section 15 (Contract

Modifications), the City shall have no obligation to extend any Completion Deadline and the DB Contractor shall not be relieved of its obligation to perform the Construction Work in accordance with each Project

Baseline Schedule, and to achieve the Completion Deadlines for any reason.

5.5 Float

All Float contained in each Project Baseline Schedule shall be considered a jointly owned and shared re-source by the DB Contractor and the City, available to the Project, and shall not be considered as time for the exclusive use or benefit of either the City or the DB Contractor (subject to the restriction set forth in the definition of the City-Caused Delay).

All Float shall be shown as such in each Project Baseline Schedule on each affected schedule path. The DB

Contractor shall monitor and account for Float in accordance with the Critical Path Method.

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5.6 Monthly Schedule Updates

The DB Contractor shall prepare and deliver each Monthly Schedule Update with every Monthly Progress

Payment Request. For avoidance of doubt, Monthly Schedule Updates do not serve to revise or amend, nor shall be deemed to revise or amend, a Project Baseline Schedule.

5.7 Estoppel for Acceptance of Schedule Submittals

The DB Contractor's obligations under this Section 5.7, and, with respect to any claim for additional time or costs in performance of the Construction Work, any acceptance by the City of a Project Baseline Sched-ule, any Revised Project Baseline Schedule thereafter, or Monthly Schedule Update shall not, and shall not be construed to bind the City to any improper logic, improper activity durations, or errors in the expression of the Critical Path or otherwise be used as a defense by or on behalf of the DB Contractor in any dispute hereunder.

Without limiting the DB Contractor's other obligations under the Contract Documents, the DB Contractor shall correct any improper logic, improper activity durations, or errors in the Project Baseline Schedule, any

Revised Project Baseline Schedule, or succeeding Monthly Schedule Update, as applicable.

5.8 Use of Schedule in Relief Event Process

For avoidance of doubt, Project Baseline Schedules only (not any Monthly Schedule Update) are relevant to measuring the duration of any delay hereunder; provided, however, that…