HomeMy WebLinkAboutC2021-001 - Visus Engineering Construction, Inc. Contract No. 2021-001
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
VISUS ENGINEERING CONSTRUCTION, INC.
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement")is entered into as
of August 24, 2020, between the Town of Fountain Hills, an Arizona municipal corporation (the
"Town") and Visus Engineering Construction, Inc., a(n) Arizona corporation (the"Vendor").
RECITALS
A. The Town issued an Invitation for Bids, IFB No. 2021-001 (the "IFB"), a copy of
which is on file with the Town and incorporated herein by reference, seeking proposals from
vendors interested in providing professional services related to Phase 2 of the Fountain Hills Blvd.
shoulder paving project (the "Services").
B. The Vendor responded to the IFB by submitting a bid, together with all addenda
(the "Bid"), attached hereto as Exhibit A and incorporated herein by reference.
C. The Town desires to enter into an Agreement with the Vendor to perform the
Services, as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Vendor hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and shall remain in full force and effect until August 23, 2021 (the "Term"), unless
terminated as otherwise provided in this Agreement.
2. Scope of Work. Vendor shall provide the Services as set forth in the Bid attached
hereto as Exhibit A.
3. Compensation. The Town shall pay the Vendor an aggregate amount not to exceed
$612,000.00, $50,000.00 of which shall be an owners' allowance, at the rates set forth in the Bid
attached hereto as Exhibit A.
4. Payments. The Town shall pay the Vendor monthly, based upon work performed
and completed to date, and upon submission and approval of invoices. All invoices shall document
and itemize all work completed to date. Each invoice statement shall include a record of time
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expended and work performed in sufficient detail to justify payment. This Agreement must be
referenced on all invoices.
5. Documents. All documents, including any intellectual property rights thereto,
prepared and submitted to the Town pursuant to this Agreement shall be the property of the Town.
6. Vendor Personnel. Vendor shall provide adequate, experienced personnel, capable
of and devoted to the successful performance of the Services under this Agreement. Vendor agrees
to assign specific individuals to key positions. If deemed qualified, the Vendor is encouraged to
hire Town residents to fill vacant positions at all levels. Vendor agrees that,upon commencement
of the Services to be performed under this Agreement, key personnel shall not be removed or
replaced without prior written notice to the Town. If key personnel are not available to perform
the Services for a continuous period exceeding 30 calendar days, or are expected to devote
substantially less effort to the Services than initially anticipated, Vendor shall immediately notify
the Town of same and shall, subject to the concurrence of the Town, replace such personnel with
personnel possessing substantially equal ability and qualifications.
7. Inspection; Acceptance. All work shall be subject to inspection and acceptance by
the Town at reasonable times during Vendor's performance. The Vendor shall provide and
maintain a self-inspection system that is acceptable to the Town.
8. Licenses; Materials. Vendor shall maintain in current status all federal, state and
local licenses and permits required for the operation of the business conducted by the Vendor. The
Town has no obligation to provide Vendor, its employees or subcontractors any business
registrations or licenses required to perform the specific services set forth in this Agreement. The
Town has no obligation to provide tools, equipment or material to Vendor.
9. Performance Warranty. Vendor warrants that the Services rendered will conform
to the requirements of this Agreement and with the care and skill ordinarily used by members of
the same profession practicing under similar circumstances at the same time and in the same
locality.
10. Indemnification. To the fullest extent permitted by law, the Vendor shall
indemnify, defend and hold harmless the Town and each council member, officer, employee or
agent thereof(the Town and any such person being herein called an "Indemnified Party"), for,
from and against any and all losses,claims,damages,liabilities,costs and expenses(including,but
not limited to, reasonable attorneys' fees, court costs and the costs of appellate proceedings) to
which any such Indemnified Party may become subject, under any theory of liability whatsoever
("Claims"), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are
caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or omissions,
breach of contract, in connection with the work or services of the Vendor, its officers, employees,
agents, or any tier of subcontractor in the performance of this Agreement. The amount and type
of insurance coverage requirements set forth below will in no way be construed as limiting the
scope of the indemnity in this Section.
11. Insurance.
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11.1 General.
A. Insurer Qualifications. Without limiting any obligations or
liabilities of Vendor, Vendor shall purchase and maintain, at its own expense, hereinafter
stipulated minimum insurance with insurance companies authorized to do business in the
State of Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with an AM Best,
Inc. rating of A- or above with policies and forms satisfactory to the Town. Failure to
maintain insurance as specified herein may result in termination of this Agreement at the
Town's option.
B. No Representation of Coverage Adequacy. By requiring insurance
herein, the Town does not represent that coverage and limits will be adequate to protect
Vendor. The Town reserves the right to review any and all of the insurance policies and/or
endorsements cited in this Agreement but has no obligation to do so. Failure to demand
such evidence of full compliance with the insurance requirements set forth in this
Agreement or failure to identify any insurance deficiency shall not relieve Vendor from,
nor be construed or deemed a waiver of, its obligation to maintain the required insurance
at all times during the performance of this Agreement.
C. Additional Insured. All insurance coverage, except Workers'
Compensation insurance and Professional Liability insurance, if applicable, shall name,to
the fullest extent permitted by law for claims arising out of the performance of this
Agreement, the Town, its agents, representatives, officers, directors, officials and
employees as Additional Insured as specified under the respective coverage sections of this
Agreement.
D. Coverage Term. All insurance required herein shall be maintained
in full force and effect until all work or services required to be performed under the terms
of this Agreement are satisfactorily performed, completed and formally accepted by the
Town, unless specified otherwise in this Agreement.
E. Primary Insurance. Vendor's insurance shall be primary insurance
with respect to performance of this Agreement and in the protection of the Town as an
Additional Insured.
F. Claims Made. In the event any insurance policies required by this
Agreement are written on a"claims made"basis, coverage shall extend, either by keeping
coverage in force or purchasing an extended reporting option, for three years past
completion and acceptance of the services. Such continuing coverage shall be evidenced
by submission of annual Certificates of Insurance citing applicable coverage is in force and
contains the provisions as required herein for the three-year period.
G. Waiver. All policies, except for Professional Liability, including
Workers' Compensation insurance, shall contain a waiver of rights of recovery
(subrogation) against the Town, its agents, representatives, officials, officers and
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employees for any claims arising out of the work or services of Vendor. Vendor shall
arrange to have such subrogation waivers incorporated into each policy via formal written
endorsement thereto.
H. Policy Deductibles and/or Self-Insured Retentions. The policies set
forth in these requirements may provide coverage that contains deductibles or self-insured
retention amounts. Such deductibles or self-insured retention shall not be applicable with
respect to the policy limits provided to the Town. Vendor shall be solely responsible for
any such deductible or self-insured retention amount.
I. Use of Subcontractors. If any work under this Agreement is
subcontracted in any way,Vendor shall execute written agreements with its subcontractors
containing the indemnification provisions set forth in this Agreement and insurance
requirements set forth herein protecting the Town and Vendor. Vendor shall be responsible
for executing any agreements with its subcontractors and obtaining certificates of insurance
verifying the insurance requirements.
J. Evidence of Insurance. Prior to commencing any work or services
under this Agreement, Vendor will provide the Town with suitable evidence of insurance
in the form of certificates of insurance and a copy of the declaration page(s)of the insurance
policies as required by this Agreement,issued by Vendor's insurance insurer(s)as evidence
that policies are placed with acceptable insurers as specified herein and provide the
required coverages, conditions and limits of coverage specified in this Agreement and that
such coverage and provisions are in full force and effect. Confidential information such as
the policy premium may be redacted from the declaration page(s)of each insurance policy,
provided that such redactions do not alter any of the information required by this
Agreement. The Town shall reasonably rely upon the certificates of insurance and
declaration page(s) of the insurance policies as evidence of coverage but such acceptance
and reliance shall not waive or alter in any way the insurance requirements or obligations
of this Agreement. If any of the policies required by this Agreement expire during the life
of this Agreement, it shall be Vendor's responsibility to forward renewal certificates and
declaration page(s) to the Town 30 days prior to the expiration date. All certificates of
insurance and declarations required by this Agreement shall be identified by referencing
the IFB number and title or this Agreement. A$25.00 administrative fee shall be assessed
for all certificates or declarations received without the appropriate IFB number and title or
a reference to this Agreement, as applicable. Additionally, certificates of insurance and
declaration page(s)of the insurance policies submitted without referencing the appropriate
IFB number and title or a reference to this Agreement, as applicable, will be subject to
rejection and may be returned or discarded. Certificates of insurance and declaration
page(s) shall specifically include the following provisions:
(1) The Town, its agents, representatives, officers, directors,
officials and employees are Additional Insureds as follows:
(a) Commercial General Liability — Under Insurance
Services Office, Inc., ("ISO")Form CG 20 10 03 97 or equivalent.
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(b) Auto Liability — Under ISO Form CA 20 48 or
equivalent.
(c) Excess Liability — Follow Form to underlying
insurance.
(2) Vendor's insurance shall be primary insurance with respect
to performance of this Agreement.
(3) All policies, except for Professional Liability, including
Workers' Compensation, waive rights of recovery(subrogation) against Town, its
agents,representatives, officers, officials and employees for any claims arising out
of work or services performed by Vendor under this Agreement.
(4) ACORD certificate of insurance form 25 (2014/01) is
preferred. If ACORD certificate of insurance form 25 (2001/08) is used, the
phrases in the cancellation provision "endeavor to" and "but failure to mail such
notice shall impose no obligation or liability of any kind upon the company, its
agents or representatives" shall be deleted. Certificate forms other than ACORD
form shall have similar restrictive language deleted.
11.2 Required Insurance Coverage.
A. Commercial General Liability. Vendor shall maintain"occurrence"
form Commercial General Liability insurance with an unimpaired limit of not less than
$1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual
Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability
arising from premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury. Coverage under the policy will be at
least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not
limited to, separation of insured's clause. To the fullest extent allowed by law, for claims
arising out of the performance of this Agreement, the Town, its agents, representatives,
officers, officials and employees shall be cited as an Additional Insured under ISO,
Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or
equivalent, which shall read "Who is an Insured (Section II) is amended to include as an
insured the person or organization shown in the Schedule,but only with respect to liability
arising out of"your work" for that insured by or for you." If any Excess insurance is
utilized to fulfill the requirements of this subsection, such Excess insurance shall be
"follow form" equal or broader in coverage scope than underlying insurance.
B. Vehicle Liability. Vendor shall maintain Business Automobile
Liability insurance with a limit of$1,000,000 each occurrence on Vendor's owned, hired
and non-owned vehicles assigned to or used in the performance of the Vendor's work or
services under this Agreement. Coverage will be at least as broad as ISO coverage code
"1" "any auto" policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent
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allowed by law, for claims arising out of the performance of this Agreement,the Town, its
agents, representatives, officers, directors, officials and employees shall be cited as an
Additional Insured under ISO Business Auto policy Designated Insured Endorsement form
CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of
this subsection, such Excess insurance shall be"follow form"equal or broader in coverage
scope than underlying insurance.
C. Professional Liability. If this Agreement is the subject of any
professional services or work, or if the Vendor engages in any professional services or
work in any way related to performing the work under this Agreement, the Vendor shall
maintain Professional Liability insurance covering negligent errors and omissions arising
out of the Services performed by the Vendor, or anyone employed by the Vendor, or
anyone for whose negligent acts, mistakes, errors and omissions the Vendor is legally
liable, with an unimpaired liability insurance limit of $2,000,000 each claim and
$2,000,000 annual aggregate.
D. Workers' Compensation Insurance. Vendor shall maintain
Workers' Compensation insurance to cover obligations imposed by federal and state
statutes having jurisdiction over Vendor's employees engaged in the performance of work
or services under this Agreement and shall also maintain Employers Liability Insurance of
not less than $500,000 for each accident, $500,000 disease for each employee and
$1,000,000 disease policy limit.
11.3 Cancellation and Expiration Notice. Insurance required herein shall not
expire,be canceled, or be materially changed without 30 days' prior written notice to the Town.
12. Termination; Cancellation.
12.1 For Town's Convenience. This Agreement is for the convenience of the
Town and, as such, may be terminated without cause after receipt by Vendor of written notice by
the Town. Upon termination for convenience, Vendor shall be paid for all undisputed services
performed to the termination date.
12.2 For Cause. If either party fails to perform any obligation pursuant to this
Agreement and such party fails to cure its nonperformance within 30 days after notice of
nonperformance is given by the non-defaulting party, such party will be in default. In the event of
such default, the non-defaulting party may terminate this Agreement immediately for cause and
will have all remedies that are available to it at law or in equity including, without limitation, the
remedy of specific performance. If the nature of the defaulting party's nonperformance is such
that it cannot reasonably be cured within 30 days, then the defaulting party will have such
additional periods of time as may be reasonably necessary under the circumstances, provided the
defaulting party immediately (A) provides written notice to the non-defaulting party and (B)
commences to cure its nonperformance and thereafter diligently continues to completion the cure
of its nonperformance. In no event shall anysuch cure period exceed 90 days. In the event of
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such termination for cause, payment shall be made bythe Town to the Vendor for the undisputed
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portion of its fee due as of the termination date.
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12.3 Due to Work Stoppage. This Agreement may be terminated by the Town
upon 30 days' written notice to Vendor in the event that the Services are permanently abandoned.
In the event of such termination due to work stoppage,payment shall be made by the Town to the
Vendor for the undisputed portion of its fee due as of the termination date.
12.4 Conflict of Interest. This Agreement is subject to the provisions of ARIz.
REV.STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations
by the Town or any of its departments or agencies if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its
departments or agencies is, at any time while this Agreement or any extension of this Agreement
is in effect, an employee of any other party to this Agreement in any capacity or a Vendor to any
other party of this Agreement with respect to the subject matter of this Agreement.
12.5 Gratuities. The Town may, by written notice to the Vendor, cancel this
Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future
employment, entertainment, gifts or otherwise, were offered or given by the Vendor or any agent
or representative of the Vendor to any officer, agent or employee of the Town for the purpose of
securing this Agreement. In the event this Agreement is canceled by the Town pursuant to this
provision, the Town shall be entitled, in addition to any other rights and remedies, to recover and
withhold from the Vendor an amount equal to 150%of the gratuity.
12.6 Agreement Subject to Appropriation. This Agreement is subject to the
provisions of ARIZ. CONST. ART. IX, § 5 and ARIz. REV. STAT. § 42-17106. The provisions of
this Agreement for payment of funds by the Town shall be effective when funds are appropriated
for purposes of this Agreement and are actually available for payment. The Town shall be the sole
judge and authority in determining the availability of funds under this Agreement and the Town
shall keep the Vendor fully informed as to the availability of funds for this Agreement. The
obligation of the Town to make any payment pursuant to this Agreement is a current expense of
the Town, payable exclusively from such annual appropriations, and is not a general obligation or
indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the
amounts as set forth in this Agreement during any immediately succeeding fiscal year, this
Agreement shall terminate at the end of then-current fiscal year and the Town and the Vendor shall
be relieved of any subsequent obligation under this Agreement.
13. Miscellaneous.
13.1 Independent Contractor. It is clearly understood that each party will act in
its individual capacity and not as an agent, employee, partner,joint venturer, or associate of the
other. An employee or agent of one party shall not be deemed or construed to be the employee or
agent of the other for any purpose whatsoever. The Vendor acknowledges and agrees that the
Services provided under this Agreement are being provided as an independent contractor, not as
an employee or agent of the Town. Vendor, its employees and subcontractors are not entitled to
workers' compensation benefits from the Town. The Town does not have the authority to
supervise or control the actual work of Vendor, its employees or subcontractors. The Vendor, and
not the Town, shall determine the time of its performance of the services provided under this
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Agreement so long as Vendor meets the requirements as agreed in Section 2 above and in Exhibit
A. Vendor is neither prohibited from entering into other contracts nor prohibited from practicing
its profession elsewhere. Town and Vendor do not intend to nor will they combine business
operations under this Agreement.
13.2 Applicable Law; Venue. This Agreement shall be governed by the laws of
the State of Arizona and suit pertaining to this Agreement may be brought only in courts in
Maricopa County, Arizona.
13.3 Laws and Regulations. Vendor shall keep fully informed and shall at all
times during the performance of its duties under this Agreement ensure that it and any person for
whom the Vendor is responsible abides by, and remains in compliance with, all rules, regulations,
ordinances, statutes or laws affecting the Services, including,but not limited to,the following: (A)
existing and future Town and County ordinances and regulations; (B) existing and future State and
Federal laws; and (C) existing and future Occupational Safety and Health Administration
standards.
13.4 Amendments. This Agreement may be modified only by a written
amendment signed by persons duly authorized to enter into contracts on behalf of the Town and
the Vendor.
13.5 Provisions Required by Law. Each and every provision of law and any
clause required by law to be in this Agreement will be read and enforced as though it were included
herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly
inserted, then upon the application of either party, this Agreement will promptly be physically
amended to make such insertion or correction.
13.6 Severability. The provisions of this Agreement are severable to the extent
that any provision or application held to be invalid by a Court of competent jurisdiction shall not
affect any other provision or application of this Agreement which may remain in effect without
the invalid provision or application.
13.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement
represents the entire agreement of the parties with respect to its subject matter, and all previous
agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and
superseded by this Agreement. No representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or in any other
contemporaneous written agreement executed for the purposes of carrying out the provisions of
this Agreement. This Agreement shall be construed and interpreted according to its plain meaning,
and no presumption shall be deemed to apply in favor of, or against the party drafting this
Agreement. The parties acknowledge and agree that each has had the opportunity to seek and
utilize legal counsel in the drafting of, review of, and entry into this Agreement.
13.8 Assignment; Delegation. No right or interest in this Agreement shall be
assigned or delegated by Vendor without prior, written permission of the Town, signed by the
Town Manager. Any attempted assignment or delegation by Vendor in violation of this provision
shall be a breach of this Agreement by Vendor.
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13.9 Subcontracts. No subcontract shall be entered into by the Vendor with any
other party to furnish any of the material or services specified herein without the prior written
approval of the Town. The Vendor is responsible for performance under this Agreement whether
or not subcontractors are used. Failure to pay subcontractors in a timely manner pursuant to any
subcontract shall be a material breach of this Agreement by Vendor.
13.10 Rights and Remedies. No provision in this Agreement shall be construed,
expressly or by implication, as waiver by the Town of any existing or future right and/or remedy
available by law in the event of any claim of default or breach of this Agreement. The failure of
the Town to insist upon the strict performance of any term or condition of this Agreement or to
exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the
Town's acceptance of and payment for services, shall not release the Vendor from any
responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a
waiver of any right of the Town to insist upon the strict performance of this Agreement.
13.11 Attorneys' Fees. In the event either party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys'
fees and reasonable costs and expenses, determined by the court sitting without a jury,which shall
be deemed to have accrued on the commencement of such action and shall be enforced whether or
not such action is prosecuted through judgment.
13.12 Liens. All materials or services shall be free of all liens and, if the Town
requests, a formal release of all liens shall be delivered to the Town.
13.13 Offset.
A. Offset for Damages. In addition to all other remedies at law or
equity,the Town may offset from any money due to the Vendor any amounts Vendor owes
to the Town for damages resulting from breach or deficiencies in performance or breach of
any obligation under this Agreement.
B. Offset for Delinquent Fees or Taxes. The Town may offset from
any money due to the Vendor any amounts Vendor owes to the Town for delinquent fees,
transaction privilege taxes and property taxes, including any interest or penalties.
13.14 Notices and Requests. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been
duly given if(A) delivered to the party at the address set forth below, (B) deposited in the U.S.
Mail,registered or certified,return receipt requested,to the address set forth below or(C)given to
a recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
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With copy to: Pierce Coleman PLLC
4711 East Falcon Drive, Suite 111
Mesa, Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Vendor: Visus Engineering Construction, Inc.
1831 North Rochester
Mesa, Arizona 85205
Attn: Jeff Kerr, CEO
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
13.15 Confidentiality of Records. The Vendor shall establish and maintain
procedures and controls that are acceptable to the Town for the purpose of ensuring that
information contained in its records or obtained from the Town or from others in carrying out its
obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or
employees, except as required to perform Vendor's duties under this Agreement. Persons
requesting such information should be referred to the Town. Vendor also agrees that any
information pertaining to individual persons shall not be divulged other than to employees or
officers of Vendor as needed for the performance of duties under this Agreement.
13.16 Records and Audit Rights. To ensure that the Vendor and its subcontractors
are complying with the warranty under subsection 13.17 below, Vendor's and its subcontractor's
books, records, correspondence, accounting procedures and practices, and any other supporting
evidence relating to this Agreement, including the papers of any Vendor and its subcontractors'
employees who perform any work or services pursuant to this Agreement (all of the foregoing
hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or
reproduction during normal working hours by the Town, to the extent necessary to adequately
permit(A) evaluation and verification of any invoices, payments or claims based on Vendor's and
its subcontractors' actual costs (including direct and indirect costs and overhead allocations)
incurred, or units expended directly in the performance of work under this Agreement and (B)
evaluation of the Vendor's and its subcontractors' compliance with the Arizona employer
sanctions laws referenced in subsection 13.17 below. To the extent necessary for the Town to
audit Records as set forth in this subsection,Vendor and its subcontractors hereby waive any rights
to keep such Records confidential. For the purpose of evaluating or verifying such actual or
claimed costs or units expended, the Town shall have access to said Records, even if located at its
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subcontractors' facilities, from the effective date of this Agreement for the duration of the work
and until three years after the date of final payment by the Town to Vendor pursuant to this
Agreement. Vendor and its subcontractors shall provide the Town with adequate and appropriate
workspace so that the Town can conduct audits in compliance with the provisions of this
subsection. The Town shall give Vendor or its subcontractors reasonable advance notice of
intended audits. Vendor shall require its subcontractors to comply with the provisions of this
subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
13.17 E-verify Requirements. To the extent applicable under ARIz. REV. STAT. §
41-4401, the Vendor and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIz.REV. STAT. § 23-214(A). Vendor's or its subcontractors' failure to comply with such
warranty shall be deemed a material breach of this Agreement and may result in the termination
of this Agreement by the Town.
13.18 Israel. Vendor certifies that it is not currently engaged in, and agrees for
the duration of this Agreement that it will not engage in a "boycott," as that term is defined in
ARIz.REV. STAT. § 35-393, of Israel.
13.19 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity
among the terms of this Agreement, the Bid, any Town-approved invoices, and the IFB, the
documents shall govern in the order listed herein.
13.20 Non-Exclusive Contract. This Agreement is entered into with the
understanding and agreement that it is for the sole convenience of the Town. The Town reserves
the right to obtain like goods and services from another source when necessary.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
i5)
Lin VA4AA^•)
Grady E. Miller own anager
ATTEST:
ti
E izabeth :' :urke, Town C erk
APPRO Y ED AS TO FORM:
aron D. Arnson, Town Attorney
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On PI , 2020, before me personally appeared Grady E. Miller, the
Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, whose
identity was proven to me on the basis of satisfactory evidence to be the person who he claims to
be,and acknowledged that he signed the above document,on behalf of the Town of Fountain Hills.
J
otary P c
(Affix no A.BURKE
wr. % 8ffibofArizona
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[SIONA'1'URES CONTINUE ON FOLLOWING PAGE]
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"Vendor"
VISUS ENGINEERING CONSTRUCTION, INC.,
a(n)Arizona corporation
By:
Name:
Title:
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On , 2020, before me personally appeared
, the of VISUS ENGINEERING
CONSTRUCTION, INC., a(n)Arizona corporation,whose identity was proven to me on the basis
of satisfactory evidence to be the of the corporation.
Notary Public
(Affix notary seal here)
4844-6892-1287 v.1
13
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
VISUS ENGINEERING CONSTRUCTION, INC.
[Bid]
See following pages.
"Vendor"
VISUS ENGINEERING CONSTRUCTION, INC.,
a(n) Arizona corporation
By:
Name: %re /17.
Title: 1.1/44-//i-t$2-‘,1.4,, i—
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On , 2020, before me personally appeared
g° .1' t3= the 5ec.4.--,- e ✓-re- of VISUS ENGINEERING
CONSTRUCTION, INC., a(n) Arizona corporati Ton,whose identity was proven to me on the basis
• of satisfactory evidence to be the bC7`.l Le. V/' of the corporation.
tirMARICo `F( .K.OIe of• �(A,,(J(� Conmt,slon 0 660181 Expires August 1e,2022 Notary Public
(Affix notary seal here)
4814-1472-9150 v.1
13
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
VISUS ENGINEERING CONSTRUCTION, INC.
[Bid]
See following pages.
PRICE SHEET
Fountain Hills Blvd Shoulder paving phase II 2021-001
NOTE:All pricing blanks must be filled in. Empty or unfilled spaces in the Bid Price Sheet shall result in a determination that
a Bid is non-responsive.
*ALL BIDS ARE PRESUMED TO INCLUDE ALL APPLICABLE TAXES. CONTRACTOR IS RESPONSIBLE FOR
ENSURING THAT ALL MATERIALS CONTAINED IN THE PLANS FOR THE PROJECT ARE BID ON THE PRICE
SHEET.
Project:Fountain Hills Design(East Side Only)Shea Blvd to Crystal
Ridge Drive
Owner.Town of Fountain Hills
No Item Description- Quantity Unit Unit Cost TOTAL
Construction
Demolition
I Remove Existing Asphalt and Base Course 1,610 SY ZQ.(n) 32,ZCN
2 Removal and Installation of signs I LS 12t uuv \2.c'vo-
,t.s
Pavtng
3 Roadway Excavation 2,799 C'Y 2,Cj.((ij I 'j13--12,
4 4"ABC(Aggregate Base Course) 668 CY LeG.w L-13,4 pjcr
5 3"AC(Asphalt Concrete) 1,014 TONS r�i Cam•w c(., l !(,i
6 Adjust Existing Water Valve To Finished Grade Per Mag Std Detail 270 9 EA iSSU•(1V gGCJ
7 Adjust Existing Manhole Frame&Cover To Finished Grade Per Mag Sid Detail 422 4 EA I(X•w2,>rS W .
8 Relocate Existing Blow Off Valve To 10'Minimum Outside New Paved Shoulder Per Epcor Detail 390-I 2 EA 3.970.0) 1 flat!
9 Install D/50 15"RiVery HighSurvivability —__-
prap,T.l8"Over Nonwoven Geatcxitic Fabric 100 CY l 3CJ,(fl.) 13 r501)
10 Relocate Existing Water Meter Box And Adjust To Finished Grade Per Epcor Std Detail 342-2 1 EA 5(a).W sVi).w
11 Riprap And Rock Mulch,Gradation C 81 CY Lj,at; w 3r t a;.-
12 Construct Venice!Curb&Guner Per Mag Std Detail 220-1 6,671 IF 2.3.(J I S 3 +{33
13 Construct Foote:Curb Per Foutain Hills Std Detail Fh-553 27 IF WO-VI) 2,Z
14 Construct 5'Curb Transition Per Town Of Fountain Hills Sid Detail Fh.226 25 EA I Cy
•(l0 4 1-/Go
15 Traffic Control I LS I Lpt3( ) 1.1.41r 3{
16 Survey 1 LS in o n t0/0
17 Quality Control I LS
18 Obliterate Striping I LS to;vim
UL(/U)
I TAR)Z 14, GrU
19 SWPP LS
t
20 ADEQ/COUNTY Dust Permit I LS RIO s t o w
2
21 Mobilization I LS 1�� story -
2°( tilt) -Z.'1 intv
22 Owner's Allowance 10°.of Bid Total I LS CJ()t Cait) 5C.J1 G
TOTAL ^y tlIZ�OVi%
psdd hduwt 4y
..,. ,.,..,m bn L...:....uN 2,»..wa.w:wr.a urc b.=....,a.e...,....... .,,,. ....L»env....,.,Y.ww ax..u.Lwu.,.r u o-..ar..Jw.:+.wwG,„urw"..-° +.• hswk„NWwt✓vaa,..a nu++K�a.vv«.M.......umc...aa't,:.Er.'oa`w. .' 1•Whm.t.
��-�a41 N//i,
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144114
ADDENDUM #4
IFB 2021-001
TOWN OF FOUNTAIN HILLS
PUBLIC WORK DEPARTMENT
TO: All Respondents
CLOSING DATE: Tuesday August 04,2020 at 3:00 p.m.(UNCHANGED)
REF NO.: 2021-001 Fountain Hills Blvd Shoulder Paving Phase II
DATE: Thursday July 30, 2020
Addendum#4 replaces the bid tabulation sheet. Quantities have been updated.
Revised and corrected plans and documents will be provided using the following link:
https://www.fh.az.gov/Bids.aspx
END OF ADDENDUM#4
die- Al
7 3/. 34sa
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:war air !
ADDENDUM #3
IFB 2021-001
TOWN OF FOUNTAIN HILLS
PUBLIC WORK DEPARTMENT
TO: All Respondents
CLOSING DATE: Tuesday August 04, 2020 at 3:00 p.m.(UNCHANGED)
REF NO.: 2021-001 Fountain Hills Blvd Shoulder Paving Phase II
DATE: Thursday July 30, 2020
Below are questions and received during the prospective bidder's conference meeting that
took place on July 22nd. And received via email.
Also included find clarification on signs, post and sign base foundation.
Revised and corrected plans and documents will be provided using the following link:
https://www.fh.az.gov/Bids.aspx
"All signs shall utilize a HIP(High Intensity Prismatic)sheeting with the exceptions to Regulatory
Signs R1 "Stop"and R2"Speed Limit"signs which shall use a DG3(Diamond Grade Prismatic)
sheeting prior to installation"All sign base foundations shall be per ADOT Detail S-i,dated 05-03.
2"x 10' Perforated Square Tube Post 12 Gauge
2"x 12' Perforated Square Tube Post 12 Gauge
2'''A"x 30" Perforated Square Tube Anchor 12 Gauge
2 Y:"x 18" Perforated Square Tube Sleeve 12 Gauge
1. Will the bid deadline be pushed back? There is no plan to extend the bid deadline due to
tight timelines for project approval.
2. Will there be any DBE requirements? No
3. Is there a specific water source that will be used? No,coordination with EPCOR will be
required, numerous hydrants are available along the project.
4. The riprap&rock mulch item refers to gradation C in the specifications.The only
rc;.t once to this in the plans is in the Erosion Control plans E2 (34 of 34)in the check
darts The new Maas cross this tree out Therefore the comment is 1oneer needed
rock.This is correct,rip rap thickness is 1.5 times D50.
6. What is the thickness of the gradation C rock mulch?The only reference to this in the
plans is in the Erosion Control plans E2(34 of 34) in the check darns The new plans cross
this page out.Therefore the comment is longer needed.
7. Item 4 Construct 3"AC/4"ABC Shoulder Pavement.The quantity is normally stated in SY
rather than CY.The quantity of 7,650 CY for the item seems too high for just the one
side of the road.We are coming up with approximately 6,325 SY(1,223 CY). Can you
check the line item quantity?See revised Bid Tab.
8. What is the estimated construction budget?There's not one.
9. Are union bids required?
10. What additional details are you willing to provide,if any,beyond what is stated in bid
documents concerning how you will identify the winning bid?All available details are
included in the bid documents
11. Other than your own website,where was this bid posted? Fountain Hills Times,Arizona
Business Gazette.
12. Will our installation floater($5M limit)be acceptable in lieu of Builders Risk?
13. Addendum 1 item 3 states that no work on the west side of Fountain Hills Blvd is
included in this phase.However,the revised drawings call out items on the entire
street.Are these the correct drawings?If so,are we supposed to simply ignore
everything on the west side of the street? Yes, The west side was constructed in 2019.
14. The original bid schedule lists 1,095 TN of asphalt&712 CY of ABC,which is roughly
1,300 TN.The new bid schedule lists 7,650 CY for the 3"AC on 4"ABC section.I'm
assuming this volume Is the entire 7"section.How did the quantity increase so much
especially when the work is limited to the east side of the street?See revised Bid Tab.
END OF ADDENDUM#3
SUNRISE SUNRISE ENGINEERING,INC.
X145 S.Vincyani,Suite 101
Alcoa_Aruom 852in
IV:{4140)56:-5048
Planning Stage-Engineer's Opinion of Probable Cost*
Project:Fountain Hills Interim Design(East Side Quanuncs Oohs;
Shea Blvd to Crystal Ridge Dose
Owner.Town of Fountain Hills
Prepared By:jonattan Alarcon(Sunrise Intent)
No. I Item Description•Construction
Total Unit
Demolition
1 Remove Existing Asphalt halt and Base Course
____ 1,610 SY I
2 Removal of Signs — 1 1S
Paving
3 Roadway Excavation 2,799 CI I
4 4"ABC(ADeegatc Base Course) 668 C�' -- i- ._._-.. .._.__.
5 3"AC(Asphalt Concrete, 1,014 TONS
6 Adjust Existing Water Valve To Finished Grade Per Aiag Sid Detail 270 9 EA
7 Adjust Existing Manhole Frame&Cos cr To crushed Grade Pcr Mag Std Detail 422 4 EA
8 Relocate Existing Blow Off Valve To ICMinimum Outside New Paved Shoulder Per Epcor Decal 3901 ..._. 2 EA Ii `_._._..
9 Install D/50--15"Riprap,T=18"Over Nonwoven Very'High Sunivabihry Geotexole Fabric t00 CV j
10 Relocate Existing Water Meter Box And Adjust To Finished Grade Per Epcor Std Detail 342 2 1 I'.A
I I Riprap And Rock Mulch,Gradation C 81 CY
12 Construct Vertical Curb 8c Guner Pcr Nlag Std Detail'220 1 6,671 LT
13 Construct rooter Curb Per F'uueun Hills Std Detail 11,553 21' Ed'
14 Construct 5'Curb Transition Per Town Of Fountain Hills Std Detail Fh 226 I 25 LA
VIer s►
tiff,#,1h 0
4•e' ADDENDUM #2
IFB 2021-001
TOWN OF FOUNTAIN HILLS
PUBLIC WORK DEPARTMENT
TO: All Respondents
CLOSING DATE: Tuesday August 4, 2020 at 3:00 p.m.
REF NO.: 2021-001 Fountain Hills Blvd Shoulder Paving Phase II
DATE: Monday July 27, 2020
Addenda#2 had the wrong bid deadline date.
Bid deadline date, August 4,2020,3:00 p.m. local time, Phoenix,Arizona.
Bid Opening, August 4,3:15 p.m. local time Phoenix Arizona.
END OF ADDENDUM#1
'77 ZOZD
44,
i
i+.t H 04'**
ADDENDUM #1
IFB 2021-001
TOWN OF FOUNTAIN HILLS
PUBLIC WORK DEPARTMENT
TO: All Respondents
CLOSING DATE: Monday, August 3, 2020 at 3:15 p.m.
REF NO.: IFB 2021-001 Fountain Hills Blvd Shoulder Paving Phase II
DATE: Wednesday July 15, 2020
Below is information related to the plan set,bid Tabulation and Project limits listed as part of the
original IFB
Release on July 1, 2020. Additional clarifications regarding project aspects are also included.
A revised Plan set and bid Tabulation will be provided at the following link:
https://www.fh.az.gov/bids
1. Delete original plans set and replace with new.
2. Delete original bid Tabulation and replace with new.
3. Project clarification. Phase 2:STA 11+82.95 TO STA 86+49.62,and is located primarily right of
the centerline.No work on the west side is included in this phase.
END OF ADDENDUM#1
SUNRISE SUNRISE ENGINEERING,INC.
2045 5 y uieranl,Suite 101
\Icfi Arveon,85!I0
Tn1(480)562 5048
Planning Stage-Engineer's Opinion of Probable Cost*
Project:Fountain Hills Interim Design
Shea Blvd to Crystal Ridge Drise
Owner:Town of Fountain Hills
Prepared 8y:
No. I Item Description-Construction I Total I Unit I
Demolition
1 Remove Existing Asphalt and Base Course 1 G ti Sv
2 Remove and Replace Signs 1 LS
Paving
3 Roadway Excavation 22,-99 CT
4 Construct 3"AC On 4"ABC Shoulder Pavement 650 c•
5 Adjust Existing 1C arcr Valve To finished Grade Per Slag Std Detail 270 9 LA
6 Adjust Existing\ianhr;le Frank&Cover To Finished Grade Per Sag Std Detail 422 4 LA
7 Relocate Existing Blow Off Valve To 10'Mtn.mum Ouritde Nov Paved Sho.ldcr Per Epcor Detail 390 I 2 LA
8 Install D/50-15"Riptap,T=18"Over Nomwsen Very High Survivabibra Geotexale Fabric 100 Cy
9 Relocate Existing 'ater Meter Box And Adjust To Finished Grade Per[pear Std Detail 3422 1 EA
10 Riprap And Rock Mulch,Gradation C 81 CY
11 Construct Vemcal Curb&Gutter Per Slag Std Detail 220 I 6 67I LF
12 Construct Tooter Curb Per Fouta n Hills Std Dctvl eh 553 2 LF
13 Construct 5'Curb Tnnvu-ri Per Town Of Fountain Hills Std Detail Fh 226 25 EA
t
•
7.. . TOWN OF FOUNTAIN HILI
n m PUBLIC WORKS DEPARTMEI\
INVITATION FOR BIDS
Fountain Hills Blvd Shoulder Paving Phase II
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
SOLICITATION INFORMATION AND SCHEDULE
Solicitation Number: 2021-001
Release Date: July 1,2020
Advertisement Dates: July 1,2020 &July 8,2020-Fountain HIlls Times
July 2,2020 &July 9,2020-Arizona Business Gazette
MANDATORY
Prospective Bidder's Conference: July 22, 2020
10:00 a.m. (local time, Phoenix, Arizona)
Fountain Hills Town Hall
Council Chambers
16705 East Avenue of the Fountains
Fountain Hills,Arizona 85268
Final Date for Inquires July 27, 2020
3:00 p.m. (local time, Phoenix,Arizona)
Bid Deadline: August 4,2020
3:00 p.m. (local time, Phoenix,Arizona)
Bid Opening: August 4,2020
3:15 p.m. (local time, Phoenix,Arizona)
Target Town Council Award Date: August 24,2020
Town Representatives: Justin T.Weldy, Public Works Director
480-816-5133 iweldvath.az.gov
TOWN OF FOUNTAIN HILL
Public Works DEPARTMEN
In accordance with the Town of Fountain Hills Procurement Code, competitive sealed Bids for the
services specified herein will be received by the Town of Fountain Hills Procurement Officer at the
above-referenced location until the date and time referenced above (the "Bid Deadline"). Bids received
by the Bid Deadline shall be publicly opened and the Bid Price read. Bids shall be in the actual
possession of the Town of Fountain Hills Procurement Officer on, or prior to, the Bid Deadline date.
Late Bids shall not be considered except as provided in the Town Procurement Code. Bids shall be
submitted in a sealed envelope with the Solicitation Number and the Bidder's name and address clearly
indicated on the front of the envelope.
There is no charge for the Plans and Specifications.
Plans and Specifications may be obtained at the Town of Fountain Hills website:
https:/1 ww.fh.az.govBids.aspx
Due to concerns related to the COVID-19 pandemic, the Town of Fountain Hills reserves the right to
cancel or modify the MANDATORY Pre-Submittal Conference.
*The Town of Fountain Hills reserves the right to amend the solicitation schedule as necessary.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
OFFER
The undersigned(the"Bidder") hereby offers this Bid as an offer to contract with the Town under the terms and
conditions set forth below and certifies that Bidder has read, understands and agrees to fully comply with, and
be contractually bound by, all terms and conditions as set forth in this Invitation For Bids ("IFB"), the Contract
formed hereby(as defined below) and any amendments thereto, together with all Exhibits, Specifications, Plans
and other documents included as part of this Contract(the"Contract Documents").
Town of Fountain Hills For Clarification of this Bid contact:
Business License Number: 2 2-2.
Arizona Transaction(Sales) Privilege Name: 120 2 iVt cwi tiTh
Tax License Number: cl tfq t y,US
Telephone: Lt Vi—€ 3.3
Federal Employer Identification Number: Facsimile: 11'fjU - V,33- W,t`I
US-121ULit4
Email: IMlfiv1 qV15U Cvtc.COW1
V i S t s Evtq i to/fA l'vi co visty i vtt
J Contractor Mame 1 VIC. Authorizec(ignature for on
t�3t N 12UG Iit�L,t Ol92/Vt S Wt 01/1
Address Printed Name
M rrt Irz bG2OS Sr2/GYkitcvYtl /TYe u Sikyk, Y
City State Zip Code Title
ACCEPTANCE OF OFFER AND NOTICE OF AWARD
(FOR TOWN OF FOUNTAIN HILLS USE ONLY)
Effective Date: Contract No. Official File:
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
L-43
Grady E. Miller, 124 Manager
ATTEST: APPROVED AS TO FORM:
4)(1B7"''T°wnCi
erk Aaron Arnson,Town Attorney
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
ARTICLE I-DEFINITIONS
For purposes of this Invitation for Bids,the following definitions shall apply:
1.1 "Bid" or "Offer" means a responsive bid or quotation submitted by a Bidder in response to this
Invitation for Bids.
1.2 "Bid Deadline" means the date and time set forth on the cover of this IFB for the Procurement
Officer to be in actual possession of the sealed Bids.
1.3 "Bid Opening" means the date and time set forth on the cover of this Invitation for Bids for
opening of sealed Bids.
1.4 "Bidder"means any person or firm submitting a competitive Bid in response to this IFB.
1.5 "Confidential Information" means that portion of a Bid, proposal, Offer, Specification or protest
that contains information that the person submitting the information believes should be withheld,provided(i)such
person submits a written statement advising the Town of this fact at the time of the submission and (ii) the
information is so identified wherever it appears.
1.6 "Contract" means, collectively, the (i) Offer/Bid, (ii) this IFB, including all exhibits, (iii) the
Notice of Award, (iv) the Notice to Proceed or Purchase Order(s), (v) any approved Addendum, Change Order
or Amendment, (vi) the Contractor's Certificates of Insurance and a copy of the Declarations Page(s) of the
insurance policies, (vii) the Certificate of Completion and (viii) any Plans, Specifications or other documents
attached, appended or incorporated herein by reference. Alternate or optional bid items will become part of the
Contract only if they are accepted by the City in writing on the Price Sheet.
1.7 "Contractor" means the individual, partnership, corporation or limited liability company who has
submitted a Bid in response to this IFB and who, as a result of the competitive bidding process, is awarded a
contract for Materials or Services by the Town.
1.8 "Contract Time" means the time period during which the Contractor must complete all of the
Work related to the Project.
1.9 "Day(s)"means calendar day(s)unless otherwise specified.
1.10 "Engineer"means the Town Engineer or authorized designee.
1.11 "Final Completion" shall be defined as set forth in Section 3.16 and shall occur not later than 30
Days from the date of Substantial Completion unless otherwise designated by the Engineer and subject to
modification by changes in the Work as provided in Section 3.14 below.
1.12 "Invitation for Bids"or"IFB"means this request by the Town for participation in the competitive
bidding process according to all documents, including those attached or incorporated herein by reference, utilized
for soliciting Bids for the Materials and/or Services in compliance with the Town's Procurement Code.
1.13 "Materials" means any personal property, including equipment, materials, replacements and
supplies provided by the Contractor in conjunction with the Contract and shall include, in addition to Materials
incorporated in the Project,equipment and other material used and/or consumed in the performance of the Work.
1.14 "Multiple Award" means an award of an indefinite quantity contract for one or more similar
products,commodities or Services to more than one Bidder.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
1.15 "Price" means the total expenditure for the defined Project, inclusive of all Materials,
commodities or Services.
1.16 "Procurement Administrator"means a Town employee, as designated on the cover of this IFB,
who has specifically been designated to act as a contact person to the Bidders and/or Contractor relating to their
IFB.
1.17 "Procurement Agent"means the Town Manager or authorized designee.
1.18 "Procurement Code"means the Town's Procurement Code,as amended from time to time.
1.19 "Project" means the purpose and Work described as set forth in Section 2.1, in the
"Purpose/Scope of Work"of the IFB.
1.20 "Punch List" means that list of items provided by Town to Contractor at the time of Substantial
Completion indicating items to be completed or corrected, including the time for completion or correction by
Contractor after Substantial Completion.
1.21 "Services"means the furnishing of labor,time or effort by a Contractor,not involving the delivery
of a specific end product other than reports which are merely incidental to the required performance and as further
defined in the Contract. This term does not include "professional and technical services" as defined in the
Procurement Code.
1.22 "Specification"means any description of the physical characteristics, functional characteristics,or
the nature of a commodity,product, supply or Services. The term may include a description of any requirements
for inspecting,testing,or preparing a supply or service item for delivery.
1.23 "Subcontractor" means those persons or groups of persons having a direct contract with the
Contractor to perform a portion of the Work and those who furnish Materials according to the plans and/or
Specifications required by this Contract.
1.24 "Substantial Completion" shall be defined as set forth in Section 3.15 below and shall occur not
later than the date set forth in the Schedule,subject to modification by changes in the Work as provided in Section
3.14 below.
1.25 "Town"means the Town of Fountain Hills,an Arizona municipal corporation.
1.26 "Town Representative" means the Town employee who has specifically been designated to act
as a contact person to the Town's Procurement Administrator, and who is responsible for monitoring and
overseeing the Contractor's performance under the Contract and for providing information regarding details
pertaining to the Work.
1.27 "Vendor" means any firms, entities or individuals desiring to prepare a responsive Bid in response
to this IFB.
1.28 "Work"means all labor, Materials and equipment incorporated or to be incorporated in the Project
that are necessary to accomplish the construction required by this Contract.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
ARTICLE II— BID PROCESS;BID AWARD
2.1 Purpose/Scope of Work. The work included in this project consists of improvements at the
intersection of Avenue of the Fountains and La Montana Drive.
The Town is issuing this IFB is to secure a qualified General Contractor to perform the Work and provide
Materials as more particularly described in the Specifications attached hereto as Exhibit A,and incorporated herein
by reference. Bidders must submit Bids encompassing the entire Project, inclusive of the related Plans and/or
Construction Drawings. Failure to do so may result in a determination that the Bid is non-responsive.
2.2 Amendment of IFB. Except as set forth in Section 3.54 below,no alteration may be made to this
IFB or the resultant Contract without the express, written approval of the Town in the form of an official IFB
addendum or Contract amendment. Any attempt to alter this IFB,Contract without such approval is a violation
of this IF13 Contract and the Town Procurement Code. Any such action is subject to the legal and contractual
remedies available to the Town including, but not limited to, Contract cancellation and suspension and/or
debarment of the Bidder or Contractor.
2.3 Preparation/Submission of Bid. Bidders are invited to participate in the competitive bidding
process for the Project specified in this IFB. Bidders shall review their Bid submissions to ensure the following
requirements are met.
A. Irregular/Non-responsive Bids. The Town will consider as "irregular" or "non-
responsive" and shall reject any Bid not prepared and submitted in accordance with the IFB and Specifications,or
any Bid lacking sufficient information to enable the Town to make a reasonable determination of compliance with
the Specifications. Unauthorized or unreasonable exceptions, conditions, limitations, or provisions shall be cause
for rejection. Bids may be deemed non-responsive at any time during the evaluation process if,in the sole opinion
of the Procurement Agent,any of the following are true:
I. Bidder does not meet the minimum required skill, experience or requirements to
perform the Work or provide the Materials.
2. Bidder has a past record of failing to fully perform or fulfill contractual
obligations.
3. Bidder cannot demonstrate financial stability.
4. Bid submission contains false, inaccurate or misleading statements that, in the
opinion of the Procurement Agent,are intended to mislead the Town in its evaluation of the Bid.
B. Specification Minimums. Bidders are reminded that the Specifications in this IFB are the
minimum levels required and that Bids submitted must be for products that meet or exceed the minimum level of
all features specifically listed in this IFB. Bids offering less than the minimums specified will be deemed not
responsive. It shall be the Bidder's responsibility to carefully examine each item listed in the Specifications.
C. Req_uired Submittal. Bidders shall provide all of the following documents to be
considered a responsive Bid:
I. Complete, fully executed original of this IFB, with the Offer signed in ink by a
person authorized to bind the Bidder.
2. Price Sheet.
3. Bid Bond.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
4. Licenses;/DBE &MBE Status.
5. References.
6. Federal Requirements,if applicable.
7. Acknowledgment for each Addendum received, if any.
D. Bidder Responsibilities. All Bidders shall (1) examine the entire Bid package, (2) seek
clarification of any item or requirement that may not be clear, (3) check all responses for accuracy before
submitting a Bid and (4) submit the entire, completed Bid package by the official Bid Deadline. Late Bids shall
not be considered. Bids not submitted with an original, signed Offer page by a person authorized to bind the
Bidder shall be considered non-responsive. Negligence in preparing a Bid shall not be good cause for withdrawal
after the Bid Deadline.
E. Sealed Bids. All Bids shall be sealed and clearly marked with the IFB title and number
on the lower left hand corner of the mailing envelope. A return address must also appear on the outside of the
sealed Bid.
F. Address. All bids shall be directed to the following address: Procurement Officer, 16705
East Avenue of the Fountains, Fountain Hills,Arizona 85268,or hand-delivered to the Town Hall Reception desk
by the Due Date and Time indicated on the cover page of this IFB.
G. Bid Forms. All Bids shall be on the forms provided in this IFB. It is permissible to copy
these forms if required. Telegraphic(facsimile),electronic(email)or mailgram Bids will not be considered.
H. Modifications. Erasures, interlineations, or other modifications in the Bid shall be
initialed in original ink by the authorized person signing the Bid.
I. Withdrawal. At any time prior to the specified Bid Opening, a Bidder (or designated
representative) may amend or withdraw its Bid. Facsimile, electronic (email) or mailgram Bid amendments or
withdrawals will not be considered. No Bid shall be altered, amended or withdrawn after the specified Bid
Deadline,unless otherwise permitted pursuant to the Town Procurement Code.
2.4 Inquiries; Interpretation of Plans, Specifications and Drawings.
A. Inquiries. Any question related to the IFB, including any part of the Plans,Specifications,
Scope of Work or other Contract Documents, shall be directed to the Town Representative and Procurement
Administrator whose names appear on the cover page of this IFB. Questions shall be submitted in writing by the
date indicated on the cover page of this IFB; the Town will not respond to any inquiries submitted later than the
Final Date for Inquiries. The Vendor submitting such inquiry will be responsible for its prompt delivery to the
Town. Any correspondence related to the IFB shall refer to the title and number, page and paragraph. However,
the Bidder shall not place the IFB number and title on the outside of any envelope containing questions, because
such an envelope may be identified as a sealed Bid and may not be opened until the Bid Opening. Any
interpretations or corrections of the proposed Contract Documents will be made only by addenda duly approved
and issued by the Town. The Town will not be responsible for any other explanations or interpretations of the
Contract Documents.
B. Addenda. It shall be the Bidder's responsibility to check for addenda issued to this IFB.
Any addendum issued by the Town with respect to this IFB will be available at:
Town of Fountain Hills Town Hall,
16705 East Avenue of the Fountains, Fountain Hills,Arizona 85268
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
Town of Fountain Hills website at: https:/.'www.fh.az.QovBids.aspx
C. Approval of Substitutions. The Materials, products, and equipment described in this
IFB establish a standard or required function, dimension, appearance and quality to be met by any proposed
substitution. No substitute will be considered unless written Substitution/Equal Request in the form attached
hereto as Exhibit B, has been received by the Town Representative at least 10 Days prior to the Bid Deadline.
Each such request shall include the name of the Material or equipment for which it is to be substituted and a
complete description of the proposed substitute, including any drawings, performance and test data and any
other information necessary for evaluation of the substitute. If a substitute is approved, the approval shall be by
written addendum to the IFB. Bidder shall not rely upon approvals made in any other manner.
D. Use of Equals. When the Specifications for materials, articles,products and equipment
include the phrase "or equal," Bidder may bid upon and use materials, articles, products and equipment that
will perform equally the requirements imposed by the general design. The Engineer will have the final approval
of all materials, articles, products and equipment proposed to be used as an "equal." No such "equal" shall be
purchased or installed without prior, written approval from the Engineer. No"equal" will be considered unless
a written Substitution/Equal Request, in the form attached hereto as Exhibit B, has been received by the Town
Representative at least 10 Days prior to the Bid Deadline. The request shall include the name of the material or
equipment for which the item is sought to be considered an equal and a complete description of the proposed
equal including any drawings, cuts, performance and test data and any other information necessary for
evaluation of the equal. All approval of equals shall be issued in the form of written addendum or amendment,
as applicable,to this IFB or the Contract.
E. Bid Quantities. It is expressly understood and agreed by the parties hereto that the
quantities of the various classes of Services and/or Materials to be furnished under this Contract, which have
been estimated as stated in the Bidders' Offer, are only approximate and are to be used solely for the purpose of
comparing, on a consistent basis, the Bidders' Offers presented for the Work under this Contract. The selected
Contractor agrees that the Town shall not be held responsible if any of the quantities shall be found to be
incorrect and the Contractor will not make any claim for damages or for loss of profits because of a difference
between the quantities of the various classes of Services and/or Materials as estimated and the Services and/or
Materials actually provided. Contractor is responsible for ensuring that all Materials contained in the Plans for
the project are bid on the Price Sheet. Contractor shall bring any potential discrepancy between the Plans and
the Price Sheet to the Town's attention, either at the Prospective Bidders' Conference or by written inquiry, as
set forth in Subsection 2.4(A) above. If any error, omission or misstatement is found to occur, the same shall
not(1) invalidate the Contract or the whole or any part of the Scope of Work,(2) excuse Contractor from any of
the obligations or liabilities hereunder or(3)entitle Contractor to any damage or compensation except as may be
provided in this Contract.
2.5 Prospective Bidders' Conference. A Prospective Bidders' Conference may be held. If
scheduled, the date and time of the Prospective Bidders' Conference will be indicated on the cover page of this
IFB. The Prospective Bidders' Conference may be designated as mandatory or non-mandatory on the cover of
this IFB. Bids shall not be accepted from Bidders who do not attend a mandatory Prospective Bidders'
Conference. Bidders are strongly encouraged to attend those Prospective Bidder's Conferences designated as
non-mandatory. The purpose of the Prospective Bidders' Conference will be to clarify the contents of the IFB
in order to prevent any misunderstanding of the Town's requirements. Any doubt as to the requirements of this
IFB or any apparent omission or discrepancy should be presented to the Town at the Prospective Bidders'
Conference. The Town will then determine if any action is necessary and may issue a written amendment or
addendum to the IFB. Oral statements or instructions will not constitute an amendment or addendum to the IFB.
2.6 New Materials. All Materials to be provided by the Contractor and included in the Bid shall be
new,unless otherwise stated in the Specifications.
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2.7 Prices. Work shall be performed at the unit prices as set forth in the Price Sheet attached hereto
as Exhibit C and incorporated herein by reference. Bid prices shall be submitted on a per unit basis by line item,
when applicable and include all applicable sales tax. In the event of a disparity between the unit price and
extended price, the unit price shall prevail. NOTE: All pricing blanks must be filled in. Empty or unfilled
spaces in the Bid Price Sheet shall result in a determination that a Bid is non-responsive.
2.8 Allowances. Allowances, if any, shall be clearly set forth on the Price Sheet. Allowances shall
cover the cost to the Contractor (less any applicable trade discount) of the Materials including equipment
required by the Allowance, delivered at the site, and all applicable taxes, overhead, profit handling and other
general conditions costs, unless unit rates are available in the Price Sheet. Unit rates from the Price Sheet shall
be used to determine the cost of a change to be paid from an Allowance, when applicable. Any remaining
Allowance amount shall be returned to the Town at the end of the Project by deductive change order.
2.9 Payment; Discounts. Any Bid that requires payment in less than 30 Days shall not be considered.
Payment discounts of 30 Days or less will not be deducted from the Bid Price in determining the low Bid. The
Town shall be entitled to take advantage of any payment discount offered, provided payment is made within the
discount period. Payment discounts shall be indicated on Price Sheet.
2.10 Taxes. The Town is exempt from Federal Excise Tax, including the Federal Transportation
Tax. Transaction privilege tax, if any, shall be included in the unit price for each line item. It shall not be
considered a lump sum payment item. It is the sole responsibility of the Bidder to determine any applicable
State tax rates and calculate the tax accordingly. When calculating the tax on the Bid, the Bidder should not
include tax on any allowances. Failure to accurately tabulate any applicable taxes may result in a determination
that a Bid is non-responsive. The Bidder shall not rely on, and shall independently verify, any tax information
provided by the Town.
2.11 Federal Funding. It is the responsibility of the Bidder to verify and comply with federal
requirements that may apply to the Work(the"Federal Requirements"). It is also the responsibility of the Bidder
to incorporate any necessary amounts in the Bid to accommodate for required federal record-keeping, necessary
pay structures or other matters related to the Federal Requirements. Federal Requirements,if any,shall be attached
hereto as Exhibit D. In addition to any applicable Federal Requirements, this procurement is subject to a number
of state and Town regulations. In general,where these rules conflict,the more stringent law or rule applies.
2.12 Cost of Bid/Proposal Preparation. Bids submitted for consideration should be prepared simply
and economically, providing adequate information in a straightforward and concise manner. The Town does not
reimburse the cost of developing, presenting or providing any response to this solicitation; the Bidder is
responsible for all costs incurred in responding to this IFB. All materials and documents submitted in response to
this IFB become the property of the Town and will not be returned.
2.13 Public Record. All Bids shall become the property of the Town. After Contract award,Bids shall
become public records and shall be available for public inspection in accordance with the Town's Procurement
Code, except that any portion of a Bid that was designated as confidential pursuant to Section 2.14 below shall
remain confidential from and after the time of Bid opening to the extent permitted by Arizona law.
2.14 Confidential Information. If a Vendor/Bidder believes that a Bid, Specification, or protest
contains information that should be withheld from the public record, a statement advising the Procurement Agent
of this fact shall accompany the submission and the information shall be clearly identified. The information
identified by the Vendor or Bidder as confidential shall not be disclosed until the Procurement Agent makes a
written determination. The Procurement Agent shall review the statement and information with the Town
Attorney and shall determine in writing whether the information shall be withheld. If the Town Attorney
determines that it is proper to disclose the information, the Procurement Agent shall inform the Vendor or Bidder
in writing of such determination.
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2.15 Vendor Licensing and Registration. Prior to the award of the Contract,the successful Bidder shall
be registered with the Arizona Corporation Commission and authorized to do business in Arizona. Bidders shall
provide license and certification information with the Bid, attached as Exhibit E and incorporated herein by
reference. Upon the Town's request, corporations, limited liability companies, partnerships or other entities
shall provide Certificates of Good Standing from the Arizona Corporation Commission. A Town of Fountain
Hills business license is also required.
2.16 Bidder Qualifications.
A. Experience and References. Bidder must demonstrate successful completion of at least
three similar projects within the past 60 months, one of which must have a dollar value of at least 75% of the
total bid for this Project as set forth in the Price Sheet, attached as Exhibit C. Total bid price does not include
any Town allowances identified. For the purpose of this Solicitation, "successful completion" means
completion of a project within the established schedule and budget and "similar projects" resemble this Project
in size, nature and scope. References for these three projects shall be listed on the sheet attached hereto as
Exhibit F and incorporated herein by reference. These references will be checked, and it is Bidder's
responsibility to ensure that all information is accurate and current. Bidder authorizes the Town's representative
to verify all information from these references and releases all those concerned from any liability in connection
with the information they provide.
B. Investigation. The Town's representative may conduct any investigation deemed
necessary to determine the Bidder's ability to perform the Work in accordance with the Contract Documents.
The three lowest Bidders may be requested to submit additional documentation within 72 hours(or as specified)
to assist the Town in its evaluation.
2.17 Certification. By submitting a Bid,the Bidder certifies:
A. No Collusion. The submission of the Bid did not involve collusion or other anti-
competitive practices.
B. No Discrimination. It shall not discriminate against any employee or applicant for
employment in violation of Federal Executive Order 11246.
C. No Gratuity. It has not given, offered to give, nor intends to give at any time hereafter,
any economic opportunity, future employment, gift, loan, gratuity,special discount,trip favor or service to a Town
employee, officer, agent or elected official in connection with the submitted Bid or a resultant Contract. In the
event that the resultant Contract is canceled pursuant to this provision, the Town shall be entitled, in addition to
any other rights and remedies, to recover and withhold from the Contractor an amount equal to 150% of the
gratuity.
D. Financial Stability. It is financially stable,solvent and has adequate cash reserves to meet
all financial obligations including any potential costs resulting from an award of the Contract.
E. No Signature/False Statement. The signature on the Bid and the Vendor Information
Form is genuine. Failure to sign the Bid or the Vendor Information Form,or signing either with a false statement,
shall void the submitted Bid and any resulting Contract, and the Bidder may be debarred from further bidding in
the Town.
2.18 Bid Bond. All Vendors desiring to prepare a responsive Bid shall submit a non-revocable bid
security payable to the Town in the amount of ten percent(10°o)of the total Bid Price. This security shall be in the
form of a bid bond,certified check or cashier's check and must be in the possession of the Town Representative by
the Bid Deadline. All bid security from Contractor(s)who have been issued a Notice of Award shall be held until
the successful execution of all required Contract Documents and bonds. If the Contractor fails to execute the
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PUBLIC WORKS DEPARTMENT
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required contractual documents and bonds within the time specified,or 10 Days after Notice of Award if no period
is specified, the Contractor may be found to be in default and the Contract terminated by the Town. In case of
default, the Town reserves all rights inclusive of, but not limited to, the right to purchase material and/or to
complete the Work and to recover any actual excess costs associated with such completion from the Contractor.
All bid bonds shall be executed in the form attached hereto as Exhibit G,duly executed by the Bidder as Principal
and having as Surety thereon a Surety company holding a Certificate of Authority from the Arizona Department of
Insurance to transact surety business in the State of Arizona. Individual sureties are unacceptable. All insurers and
sureties shall have,at the time of submission of the proposal,an A.M.Best's Key Rating Guide of"A-"or better as
currently listed in the most recent Best Key Guide, published by the A.M. Best Company. As soon as is
practicable after the completion of the evaluation, the Town will (A) issue a Notice of Award for those Offers
accepted by the Town and (B) return all checks or bonds to those Bidders who have not been issued a Notice of
Award.
2.19 Award of Contract.
A. Multiple Award. The Town may, at its sole discretion, accept Bidder's Offer as part of a
Multiple Award.
B. Evaluation. The evaluation of this Bid will be based on,but not limited to, the following:
(1) compliance with Specifications, (2) Price, including alternates selected by the Town, if any, and taxes, but
excluding"as-needed"services requested by the Town and(3) Bidder qualifications to perform the Work.
C. Waiver, Rejection, Reissuance. Notwithstanding any other provision of this IFB, the
Town expressly reserves the right to: (1) waive any immaterial defect or informality,(2) reject any or all Bids or
portions thereof and(3)cancel or reissue an IFB.
D. Offer. A Bid is a binding offer to contract with the Town based upon the terms,
conditions and Specifications contained in this IFB and the Bidder's responsive Bid, unless any of the terms,
conditions, or Specifications are modified by a written addendum or Contract amendment. Bids become binding
Contracts when the Acceptance of Offer and Notice of Award is executed in writing by the Town. Bidder Offers
shall be valid and irrevocable for 90 Days after the Bid Opening.
E. Protests. Any Bidder may protest this IFB, the proposed award of a Contract, or the
actual award of a Contract. All protests will be considered in accordance with the process set forth by the Town
Manager or qualified designee.
ARTICLE III GENERAL TERMS AND CONDITIONS
PART A GENERAL
Reference Standards.
3.1The work embraced herein shall be performed in accordance with the requirements of the following separate
documents: Arizona Department of Transportation, Standard Specifications for Road and Bridge Construction,
Edition of 2008(Pub.#31-066),
Arizona Department of Transportation, Roadway Engineering Group, Construction Standard Drawings,
listed in the project plans,and available on the Department's website,
Arizona Department of Transportation, Traffic Group, Manual of Approved Signs, available on the Department's
website,
Arizona Department of Transportation, Traffic Group, Traffic Control Design Guidelines, Edition of 2010,
available on the Department's website,
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Manual on Uniform Traffic Control Devices for Streets and Highways, 2009 edition and Arizona Supplement to
the 2009 edition,dated January,2012,
3.2 Plans and Specifications to Successful Contractor. The successful Contractor shall print their own
Plans and Specifications for this Project from the Town's website: https:;,www.fh.az.gov/Bids.aspx
3.3 Contract Time. The Contract Time for this Project shall be 90 Calendar Days from the Notice to
Proceed. All Work on the Project shall be completed on or before the expiration of the Contract Time.
3.4 Pre-Construction Conference. Within 10 Days of the issuance of the Notice of Award, the
Contractor shall attend a pre-construction conference. The Town will contact the Contractor to schedule a specific
date, time and location for the pre-construction conference. The purpose of this conference is to outline specific
items and procedures and to address items that require special attention on the part of the Contractor. The
Contractor may also present proposed variations in procedures that the Contractor believes may (A) improve the
Project,(B)reduce cost or(C)reduce inconvenience to the public. Any necessary coordination and procedures for
construction inspection and staking will be addressed during the pre-construction conference. The Contractor will
be required to provide the following items at,or prior to, the pre-construction conference, each of which is subject
to review and approval by the Engineer:
A. Key Personnel; Subcontractors. A list of the names and emergency telephone numbers of
all proposed Key Personnel, Subcontractors and suppliers that the Contractor intends to utilize on the Project, in
the form attached hereto as Exhibit H and incorporated herein by reference. The term "Key Personnel" means
individuals who will be directly assigned to this Project and includes,but is not limited to,the owner,principals,
project manager, project superintendent, scheduler, construction engineer and supervisory personnel. At least
two of the Bidder's Key Personnel must have a minimum of three years' experience in similar projects (defined
above) and the scheduler must have experience in employing scheduling techniques appropriate for this Project.
Resumes of Key Personnel shall be submitted upon request by the Town's representative. Proposed
Subcontractors shall be qualified and have the requisite professional or technical licenses and be licensed to do
business in the State of Arizona. The list shall include such information on the professional background of each
of the assigned key individuals as may be requested by the Town Representative. Such key personnel and
Subcontractors shall be satisfactory to the Engineer and shall not be changed except with the consent of the
Engineer. Additionally, the Engineer shall have the right to request that the Contractor personnel and
Subcontractors be removed from the Project if, in the Engineer's sole discretion, such personnel or
Subcontractor(s)are detrimental to the Project delivery process. Upon receipt of such request,the Contractor shall
remove such personnel or Subcontractor(s) unless the Contractor can provide the Town with sufficient
documentation to prove it is commercially impractical to replace the personnel or Subcontractors) with substitute
personnel possessing similar qualifications. The Engineer's approval of substituted personnel or Subcontractor(s)
shall not be unreasonably withheld.
B. Progress Schedule. A construction progress schedule showing the estimated time for start
and completion of the major items of Work.
C. Payment Schedule. A payment schedule showing the estimated dollar volume of Work
for each calendar month during the life of the Project.
D. Site Security. A written proposal outlining the intended plans to secure the Project site
for public safety and security.
E. Drawings, Materials & Equipment. An itemized list of all required shop drawings,
material and equipment submittals and a schedule indicating the dates each of these items will be transmitted to the
Town for review.
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3.5 Notice to Proceed. Within 7 Days of the issuance of the Notice of Award the Town may issue a
written Notice to Proceed. The Notice to proceed shall stipulate the actual Contract start date, the Contract Time
and the dates of Substantial Completion and Final Completion. The time required for the Contractor to obtain
permits, licenses and easements shall be included in the Contract Time and shall not be justification for a delay
claim by the Contractor. The time required for the Contractor to prepare, transmit and obtain approval of
applicable submittals shall be included in the Contract Time and shall not be justification for a delay claim by the
Contractor. No Work shall be started until after all required permits, licenses, and easements have been obtained.
The Contractor shall notify the Engineer, in writing,at least 72 hours before the following events:
A. Commencement. The start of construction.
B. Services Shut Down. Shutdown of water,sewer,drainage, irrigation and/or traffic control
facilities,including the anticipated length of time for each shut down.
3.6 Laws and Regulations. The Contractor shall keep fully informed of all rules, regulations,
ordinances, statutes or laws affecting the Work herein specified, including existing and future (A) Town and
County ordinances and regulations, (B) State and Federal laws and (C) Occupational Safety and Health
Administration("OSHA")standards.
3.7 Rights-of-Way. The Contractor shall obtain a Encroachment permit for the Work. The
Contractor will be responsible for any required Maricopa County permits or other agency permits. The Town will
provide any necessary easements for Work specified under this Contract, and the Contractor shall not enter or
occupy with workers, tools, equipment or materials any private ground outside the property of the Town without
the written consent of the owner thereof. The Contractor, at its own expense, is responsible for the acquisition of
any additional easements or rights-of-way.
3.8 Inspection. Safety and Compliance. Each Contractor must inform itself fully of the conditions
relating to the construction of the Project and the employment of labor thereon. Failure to do so will not relieve the
Contractor of its obligation to furnish all material and labor necessary to carry out the provisions of this Contract.
Insofar as possible in carrying out its work, the Contractor must employ such methods or means as will not cause
any interruption of or interference with the Work of any other contractor. Contractor affirms that it has inspected
the jobsite and has thoroughly reviewed the Contract including, without Iimitation, the Specifications listed on
Exhibit A,as the same may be revised by the Town,and is not relying on any opinions or representations of Town.
Contractor agrees to perform and complete such Work in strict accordance with the Contract and under the general
direction of the Town. Contractor agrees that any exclusions of any Work must be approved in writing by the
Town prior to acceptance of this Contract or same shall not be excluded hereunder. Contractor is responsible for
all safety precautions and programs and shall provide all protection and necessary supervision to implement said
precautions and programs. Contractor shall take all reasonable precautions for the safety of and provide reasonable
protection to prevent damage, injury or loss to: (A) Town personnel and members of the public, (B) employees or
others on the Project, (C) the Work and materials and (D) other property at the Project or adjacent thereto.
Contractor shall designate a responsible person on the Project whose duty shall be prevention of accidents.
Contractor shall provide all competent supervision necessary to execute all Work and any Work incidental thereto
in a thorough, first-class,workmanlike manner. It is Contractor's responsibility that all of the Work and any Work
incidental thereto conforms to, and is performed in accordance with, all applicable Federal, State, County and
Town laws, codes, ordinances, regulations (including National Pollutant Discharge Elimination System and air
pollution standards)and orders of public authorities bearing on performance of the Work.
Contractor shall conform to the standard design generally accepted for such purposes and payment
for all such services and materials shall be considered as included in the other pay items of the Contract.
D. Adjacent Property Access. The Contractor shall maintain access to all businesses,schools
and residences along the Project alignment at all times.
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3.10 Indemnification. To the fullest extent permitted by law,the Contractor shall indemnify and hold
harmless the Town and each council member,officer,employee or agent thereof(the Town and any such person
being herein called an "Indemnified Party"), for, from and against any and all losses, claims, damages,
liabilities,costs and expenses (including, but not limited to, reasonable attorneys' fees, court costs and the costs
of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of
liability whatsoever ("Claims") to the extent that such Claims (or actions in respect thereof) arc caused by the
negligent acts, recklessness or intentional misconduct of the Contractor, its officers, employees, agents, or any
tier of subcontractor in connection with Contractor's work or services in the performance of this Agreement.
The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting
the scope of the indemnity in this Section.
3.11 Insurance.
A. General.
1. Insurer Qualifications. Without limiting any obligations or liabilities of
Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum
insurance with insurance companies authorized to do business in the State of Arizona pursuant to ARIZ.
REV. STAT. § 20-206, as amended, with an AM Best, Inc. rating of A-or above with policies and forms
satisfactory to the Town. Failure to maintain insurance as specified herein may result in termination of
this Contract at the Town's option.
2. No Representation of Coverage Adequacy. By requiring insurance herein, the
Town does not represent that coverage and limits will be adequate to protect Contractor. The Town
reserves the right to review any and all of the insurance policies and/or endorsements cited in this Contract
but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance
requirements set forth in this Contract or failure to identify any insurance deficiency shall not relieve
Contractor from,nor be construed or deemed a waiver of, its obligation to maintain the required insurance
at all times during the performance of this Contract.
3. Additional Insured. All insurance coverage, except Workers' Compensation
insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by
law for claims arising out of the performance of this Contract, the Town, its agents, representatives,
officers, directors, officials and employees as Additional Insured as specified under the respective
coverage sections of this Contract.
4. Coverage Term. All insurance required herein shall be maintained in full force
and effect until all Work or Services required to be performed under the terms of this Contract are
satisfactorily performed,completed and formally accepted by the Town, unless specified otherwise in this
Contract.
5. Primary Insurance. Contractor's insurance shall be primary insurance with
respect to performance of this Contract and in the protection of the Town as an Additional Insured.
6. Claims Made. In the event any insurance policies required by this Agreement
are written on a "claims made" basis, coverage shall extend, either by keeping coverage in force or
purchasing an extended reporting option, for three years past completion and acceptance of the services.
Such continuing coverage shall be evidenced by submission of annual Certificates of Insurance citing
applicable coverage is in force and contains the provisions as required herein for the three-year period.
7. Waiver. All policies, except for Professional Liability, including Workers'
Compensation insurance, shall contain a waiver of rights of recovery(subrogation) against the Town, its
agents,representatives,officials,officers and employees for any claims arising out of the Work or Services
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from defective design, negligent workmanship or defective material. The Contractor shall increase the
coverage limits as necessary to reflect changes in the estimated replacement cost.
C. Cancellation and Expiration Notice. Insurance required herein shall not expire, be
canceled,or be materially changed without 30 Days' prior written notice to the Town.
3.12 Performance Bond. The Contractor shall be required to furnish non-revocable security binding
the Contractor to provide faithful performance of this Contract in the amount of one hundred percent(100%)of the
total Contract Price payable to the Town. Performance security shall be in the form of a performance bond,
certified check, cashier's check or irrevocable letter of credit. This security must be in the possession of the
Engineer within seven Days after execution of this Agreement by the Town. If the Contractor fails to execute and
deliver the security instrument as required, the Contractor may be found in default and the Contract terminated by
the Town. In case of default the Town reserves all rights. All performance bonds shall be executed in the form
attached hereto as Exhibit I, duly executed by the Contractor as Principal and having as Surety thereon a Surety
company approved by the Town and holding a Certificate of Authority to transact surety business in the State of
Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties
shall have, at the time of submission of the performance bond,an A.M.Best's Key Rating Guide of"A-"or better
as currently listed in the most recent Best Key Guide,published by the A.M. Best Company.
3.13 Payment Bond. The Contractor shall be required to furnish non-revocable security for the
protection of all persons supplying labor and material to the Contractor or any Subcontractor for the performance
of any Work related to this Contract. Payment security shall be in the amount of one hundred percent (100%)of
the total Contract Price and be payable to the Town. Payment security shall be in the form of a payment bond,
certified check, cashier's check or irrevocable letter of credit. This security must be in the possession of the
Engineer within seven Days after execution of this Agreement by the Town. If the Contractor fails to execute and
deliver the security instrument as required, the Contractor may be found in default and the Contract terminated by
the Town. In case of default the Town reserves all rights. All payment bonds shall be executed in the form
attached hereto as Exhibit J, duly executed by the Contractor as Principal and having as Surety thereon a Surety
company approved by the Town and holding a Certificate of Authority to transact surety business in the State of
Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties
shall have, at the time of submission of the payment bond, an A.M. Best's Key Rating Guide of"A-" or better as
currently listed in the most recent Best Key Guide,published by the A.M.Best Company.
3.14 Changes in the Work. The Town may, without invalidating this Contract, order changes in the
Work consisting of additions, deletions or other revisions to the Contract and the Contract Price and the Contract
Time shall be adjusted as provided below. The Contract Price and/or the Contract Time may only be changed by
the Town's written approval authorizing said change, and said changes shall be performed under the applicable
conditions of the Contract. The Contract Price shall be adjusted as a result of a change in the Work as follows:
A. Additions. When the Town increases the scope of the Work,Contractor will perform the
increased work pursuant to Contractor's unit prices set forth on the Price Sheet.
B. Deletions. When the Town decreases the Work resulting in a decrease in Contractor's
quantity of the Work,the Town shall be allowed a decrease in the Contract Price amounting to the quantity of the
deleted Work multiplied by the Contractor's unit prices.
C. Estimating. Whenever the Town is considering a change to the Work, Contractor shall
promptly,and in any event within five business days, estimate the price of the contemplated additional or deleted
Work in good faith and as accurately as is then-feasible. The estimate shall show quantities of labor, material and
equipment and shall be pursuant to the rates set forth in the Contractor's Bid.
3.15 Substantial Completion. When the Contractor considers that the Work is Substantially Complete,
the Engineer shall prepare and submit to the Contractor a comprehensive list of Punch List items, which the
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Contractor may edit and supplement. The Contractor shall proceed promptly to complete and correct Punch List
items. Failure to include an item on the Punch List does not alter the responsibility of the Contractor to complete
all Work in accordance with the Contract Documents. The Town shall determine when the Project and the
Contractor's Work is substantially complete. "Substantial Completion"means construction has been completed in
accordance with the Contract Documents to the extent that the Town can use or occupy the entire Project,or the
designated portion of the Project, for the use intended without any outstanding, concurrent construction at the site,
except as may be required to complete or correct Punch List items. A prerequisite for Substantial Completion,
over and above the extent of construction completion required, is receipt by the Town of acceptable documentation
that Contractor has successfully tested and demonstrated all systems for their intended use. The date of Substantial
Completion shall be confirmed by a Certificate of Substantial Completion signed by the Town and Contractor.
The Certificate of Substantial Completion signed by the Town and Contractor shall state the respective
responsibilities of the Town and the Contractor for security, maintenance, utilities, damage to the Work and
insurance. The Certificate of Substantial Completion shall also include the Punch List as created by the Contractor
and modified by the Town and establish the time for completion and correction of'all Punch List items. If the
Town and the Contractor cannot agree as to the appropriate date of Substantial Completion, such issue shall be
submitted for dispute resolution in accordance with the procedures set forth in Article III, Part B below.
Notwithstanding such disagreement, the Contractor shall diligently proceed with completion of the Punch List
items.
3.16 Final Completion. The Town shall determine when the Project and the Contractor's Work is
finally completed. "Final Completion" means completion of the Project by the Contractor in accordance with the
Contract Documents, certified to the Town by the Contractor. Final Completion shall be achieved only upon the
Town's written acceptance of(A) the construction, (B) all testing, (C) demonstration by Contractor that the Work
functions as required by the Contract Documents and meets all Contract requirements, (D) resolution of all
outstanding system deficiencies and Punch List items, if any,(E)delivery of all as-built documentation,drawings,
completed record documents (with revisions made after Substantial Completion), annotated submittals and design
document deliverables, (F)submittal, acceptance,and delivery of the one hundred percent(100%)complete O&M
manuals, (G) delivery of warranties, inspection certificates, bonds and all other required documents, (H) all pre-
requisites for final payment and (I) submittal of Contractor's request for final payment and acceptance enclosing
all required documentation. Upon Final Completion the Engineer shall issue a Certificate of Final Completion to
the Contractor on behalf of the Town. Following receipt of payment from the Town,the Contractor shall make all
payments due to the Subcontractors.
3.17 Payments to Contractor. Compensation for all Work necessary for the completion of the Project
shall be included by the Bidder in the price bid for the items shown in the Bid. Only those items listed in the
Bid are pay items. Payment shall be conditioned upon Contractor's compliance with the payment terms and
conditions set forth below. Contractor expressly acknowledges and agrees that (A) the Contract Price is an
estimated amount based upon an engineer's estimate of the quantities of the Materials deemed necessary to
perform the Work and(B)the amount of any payment to be made pursuant to this Contract shall be determined by
the field-measured quantities of Materials actually installed by Contractor. Material or equipment delivered to the
Project by or on behalf of Contractor shall not constitute material or equipment furnished in the performance of the
Work until same has been incorporated into the improvements constituting the Project. Payment shall not
constitute acceptance by the Town or evidence thereof of any Work performed.
A. Prowess Payments.
1. On or before the 15th day of each month after construction has commenced, the
Contractor shall submit to the Town an application for payment consisting of the cost of the Work
performed up to the end of the prior month, including the cost of material stored on the site or at other
locations approved by the Town. The application shall be deemed approved and certified for payment
seven Days after it is submitted unless before that time the Town prepares and issues a specific written
finding setting forth those items in detail that are not approved for payment under the Contract. Prior to
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provision"endeavor to"and"but failure to mail such notice shall impose no obligation or liability
of any kind upon the company, its agents or representatives" shall be deleted. Certificate forms
other than ACORD form shall have similar restrictive language deleted.
B. Required Insurance Coverage.
1. Commercial General Liability. Contractor shall maintain "occurrence" form
Commercial General Liability insurance with an unimpaired limit of not less than $1,000,000 for each
occurrence, $2,000,000 Products and Completed Operations Annual Aggregate and a $2,000,000 General
Aggregate Limit. The policy shall cover liability arising from premises, operations, independent
contractors, products-completed operations, personal injury and advertising injury. Coverage under the
policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not
limited to, separation of insured's clause. To the fullest extent allowed by law, for claims arising out of
the performance of this Contract, the Town, its agents, representatives, officers, officials and employees
shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured
Endorsement form CG 20 10 03 97, or equivalent, which shall read "Who is an Insured (Section II) is
amended to include as an insured the person or organization shown in the Schedule,but only with respect
to liability arising out of"your work" for that insured by or for you." If any Excess insurance is utilized to
fulfill the requirements of this subsection, such Excess insurance shall be"follow form" equal or broader
in coverage scope than underlying insurance.
2. Vehicle Liability. Contractor shall maintain Business Automobile Liability
insurance with a limit of $1,000,000 each occurrence on Contractor's owned, hired and non-owned
vehicles assigned to or used in the performance of the Contractor's Work or Services under this Contract.
Coverage will be at least as broad as ISO coverage code "I" "any auto" policy form CA 00 01 12 93 or
equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this
Contract,the Town, its agents, representatives,officers,directors,officials and employees shall be cited as
an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48
or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection,such Excess
insurance shall be"follow form"equal or broader in coverage scope than underlying insurance.
3. Professional Liability. If this Contract is the subject of any professional Services
or Work, or if the Contractor engages in any professional Services or Work in any way related to
performing the Work under this Contract, the Contractor shall maintain Professional Liability insurance
covering negligent errors and omissions arising out of the Services performed by the Contractor,or anyone
employed by the Contractor, or anyone for whose negligent acts, mistakes, errors and omissions the
Contractor is legally liable, with an unimpaired liability insurance limit of$2,000,000 each claim and
$2,000,000 annual aggregate.
4. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation insurance to cover obligations imposed by Federal and State statutes having jurisdiction
over Contractor's employees engaged in the performance of Work or Services under this Contract and
shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000
disease for each employee and$1,000,000 disease policy limit.
5. Builder's Risk Insurance. Unless expressly waived by the Town Manager in a
written addendum or amendment to this Contract, the Contractor shall be responsible for purchasing and
maintaining insurance to protect the Project from perils of physical loss. The insurance shall provide for
the full cost of replacement for the entire Project at the time of any loss. The insurance shall include as
named insureds the Town, the Contractor, the Contractor's Subcontractors and sub-subcontractors and
shall insure against loss from the perils of fire and all-risk coverage for physical loss or damage due to
theft, vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, resulting loss arising
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of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via
formal written endorsement thereto.
8. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these
requirements may provide coverage that contains deductibles or self-insured retention amounts. Such
deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the
Town. Contractor shall be solely responsible for any such deductible or self-insured retention amount.
9. Use of Subcontractors. If any Work under this Contract is subcontracted in any
way, Contractor shall execute written agreement with its Subcontractors containing the indemnification
provisions set forth in this Section and insurance requirements set forth herein protecting the Town and
Contractor. Contractor shall be responsible for executing any agreements with its Subcontractor and
obtaining certificates of insurance verifying the insurance requirements.
10. Evidence of Insurance. Prior to commencing any Work or Services under this
Contract, Contractor will provide the Town with suitable evidence of insurance in the form of certificates
of insurance and a copy of the declaration page(s) of the insurance policies as required by this Contract,
issued by Contractor's insurance insurer(s) as evidence that policies are placed with acceptable insurers as
specified herein and provide the required coverages, conditions and limits of coverage specified in this
Contract and that such coverage and provisions are in full force and effect. Confidential information such
as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided
that such redactions do not alter any of the information required by this Contract. The Town shall
reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as
evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance
requirements or obligations of this Contract. If any of the policies required by this Contract expire during
the life of this Contract, it shall be Contractor's responsibility to forward renewal certificates and
declaration page(s) to the Town 30 Days prior to the expiration date. All certificates of insurance and
declarations required by this Contract shall be identified by referencing this Contract. A $25.00
administrative fee shall be assessed for all certificates or declarations received without a reference to this
Contract. Additionally, certificates of insurance and declaration page(s) of the insurance policies
submitted without referencing this Contract will be subject to rejection and may be returned or discarded.
Certificates of insurance and declaration page(s)shall specifically include the following provisions:
a. The Town, its agents, representatives, officers, directors, officials and
employees are Additional Insureds as follows:
(i) Commercial General Liability - Under Insurance Services
Office,Inc.,("ISO") Form CG 20 10 03 97 or equivalent.
(ii) Auto Liability-Under ISO Form CA 20 48 or equivalent.
(iii) Excess Liability-Follow Form to underlying insurance.
b. Contractor's insurance shall be primary insurance with respect to
performance of the Contract.
c. All policies, except for Professional Liability, including Workers'
Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives,
officers, officials and employees for any claims arising out of Work or Services performed by
Contractor under this Contract.
d. ACORD certificate of insurance form 25 (2014/01) is preferred.
If ACORD certificate of insurance form 25 (2001108) is used, the phrases in the cancellation
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submission of the next application for payment, the Contractor shall make available at the request of the
Town a statement accounting for the disbursement of funds received under the previous application for
purposes of audit. The extent of such statement shall be as agreed upon between the Town and Contractor.
2. Within 14 Days after approval of each monthly application for payment, the
Town shall pay directly to the Contractor the appropriate amount for which application for payment is
made, less amounts (a) previously paid by the Town, (b) sufficient to pay expenses the Town reasonably
expects to incur in correcting deficiencies which are set forth in writing and provided to the Contractor and
(c)any retainage as set forth in subsection 3.17(B)below.
3. The Town's progress payment,occupancy or use of the Project,whether in whole
or in part, shall not be deemed as acceptance of any Work not conforming to the requirements of this
Contract.
4. Upon Substantial Completion of the Work,the Town shall pay the Contractor the
unpaid balance of the cost of the Work, less a sum equal to the Contractor's estimated cost of completing
any unfmished items as agreed to between the Town and the Contractor as to extent and time for Final
Completion. The Town thereafter shall pay the Contractor monthly the amount retained for unfinished
items as each item is completed.
B. Retainage. With respect to the Work, the Town shall retain ten percent (10%) of the
amount of each estimate until Final Completion and acceptance of all Material, equipment and Work covered by
this Contract.
1. Any securities submitted by Contractor in lieu of retainage as may be allowed by
law, shall be deposited in an escrow account by the Town. The Town shall be listed as payee or multiple
payees with Contractor on all such securities.
2. When the Work is fifty percent(50%)completed,one-half of the amount retained
including any securities substituted pursuant to subsection 3.17(B)(1)shall be paid to the Contractor upon
the Contractor's request, provided the Contractor is making satisfactory progress on the Work and there is
no specific cause or claim requiring a greater amount to be retained. After the construction Work is fifty
percent (50%) completed, no more than five percent (5%) of the amount of any subsequent progress
payments made under this Contract may be retained, provided the Contractor is making satisfactory
progress on the Project. If, at any time, the Town determines satisfactory progress is not being made, ten
percent (10%) retention shall be reinstated for all progress payments made under this Contract after the
determination.
C. Payment for On-site and Off-site Stored Materials. Payment shall be made on account of
Materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.
Payment may similarly be made for Materials and equipment suitably stored off the site, conditioned upon the
Contractor furnishing evidence to the Town that (1) title to the Materials and equipment will pass to the Town
upon payment therefore,(2)the Materials and equipment are adequately safeguarded and insured, including during
transit from the off-site location to the Project site and(3) such other matters as the Town may reasonably request
in order to protect its interests. With the prior, written approval of the Town, Contractor may advance order the
bulk delivery of Materials to be incorporated into the Work over the course of this Contract. Upon delivery and
receipt of supplier invoice, the Town shall pay for the bulk delivery, either directly to the Contractor or to the
vendor or by joint check to Contractor and vendor,and shall receive a full release for the amount paid from vendor
and Contractor. Contractor agrees to assume full responsibility for the safekeeping of all such Materials and shall
guarantee to the Town that such Materials shall remain safe from theft or damage from any and all causes(unless
caused by the sole negligence of the Town). Contractor shall immediately replace, repair or restore said Materials
to their original condition so as to not cause any delay in the Work, and Contractor shall indemnify and hold
harmless the Town for, from and against any and all loss, cost, liability or expense resulting from any loss or
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damage to any of the Materials described herein from any cause unless due to the Town's sole negligence. Should
the Town have reason to believe Contractor is not properly safeguarding any of the Materials,the Town shall have
the right, but not the affirmative duty, to immediately take such steps as it deems necessary to do so, including
removing Contractor from the job, replacing any Materials or expending any sums to properly carry out
Contractor's responsibility hereunder, and any amounts so expended shall be billed back to Contractor or deducted
from any sums then or thereafter due to Contractor. Contractor shall fully insure all Materials stored on site as
required by the Town, and if such insurance is not obtained due to a lack of insurable interest,the Town shall have
the right to obtain such insurance and charge the amount thereof back to Contractor or deduct said amount from
any funds then or thereafter due to Contractor.
D. Title to Construction Work. The Contractor warrants that title to all Work covered by an
application for payment shall pass to the Town no later than the time of payment. The Contractor further warrants
that upon submittal of an application for payment, all Work for which applications for payment have been
previously issued and payments received from the Town shall be free and clear of liens,claims, security interests
or encumbrances in favor of the Contractor, Subcontractors, material suppliers,or other persons or entities making
a claim by reason of having provided labor, Materials and equipment relating to the Work.
E. Final Payment.
1. Final payment,consisting of the unpaid balance of the cost of the Work shall be
due and payable at Final Completion and acceptance by the Town. Before issuance of final payment, the
Town may request satisfactory evidence that all payrolls, Materials bills and other indebtedness connected
with the Work have been paid or otherwise satisfied.
2. Simultaneously with Contractor's request for final payment, Contractor shall
submit the following items to the Town Representative:
a. Red-line construction record drawings.
b. Warranties.
c. Two sets of documentation completely covering the operation and
maintenance of the mechanical and electrical installation and all other equipment. The
documentation shall include charts, diagrams, performance curves, catalog information,
lubrication manuals, and details pertaining to the functioning of various items of equipment.
The documentation shall be divided logically into "systems" on the basis of operation, without
respect to trades, subcontractors or arbitrary specifications sections. The relationship of the
"systems"shall be clearly and concisely detailed.
d. Affidavit Regarding Settlement of Claims.
e. Other items reasonably required by the Town Representative.
3. In making final payment the Town waives all claims except for:
a. Outstanding liens.
b. Improper workmanship or defective Materials.
c. Work not in conformance with this Contract or Work not completed.
d. Terms of any special warranties required by this Contract.
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e. Delivery to Town of all warranties,operation and maintenance manuals,
"AS-BUILT"record drawings and other documents as required by this Contract.
f. Right to audit Contractor records for a period of three years.
g. Claims previously made in writing and which remain unsettled.
4. Acceptance of final payment by the Contractor shall constitute a waiver of
affirmative claims by the Contractor,except those previously made in writing and identified as unsettled at
the time of final payment.
F. Warranty. Contractor or its assignee shall give to the Town a one-year warranty against
deficiencies in material and workmanship for all Work on the Project or other such warranty as required by the
Town Engineer, which warranty shall begin on the date that the Town accepts the Work as provided in this
Section. Any material deficiencies in material or workmanship identified by Town staff during the one-year
warranty period shall be brought to the attention of the Contractor or its assignee that provided the warranty,
which shall promptly remedy or cause to be remedied such deficiencies to the reasonable satisfaction of the
Town Engineer. Continuing material deficiencies in a particular portion of the Work shall be sufficient grounds
for the Town to require (1) an extension of the warranty for an additional one-year period and (2) the proper
repair of or the removal and reinstallation of, that portion of the Work that is subject to such continuing
deficiencies. Regardless of whether the applicable warranty period has expired, the Contractor agrees to repair
any damage to the Work caused by Contractor's construction activities on the Property. Nothing contained
herein shall prevent the Town or Contractor from seeking recourse against any other third party for damage to
the Work caused by such third party.
3.18 Offset.
A. Offset for Damages. In addition to all other remedies at law or equity, the Town may
offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting
from breach or deficiencies in performance or breach of any obligation under this Contract.
B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the
Contractor any amounts Contractor owes to the Town for delinquent fees,transaction privilege taxes and property
taxes,including any interest or penalties.
PART B-PERFORMANCE OF THE WORK
3.19 Project Videotape. The Contractor shall produce and provide a project videotape to the Engineer
as required.. All costs associated with the Project videotape produced in accordance with this Section shall be
deemed incidental.
3.21 Work Scheduling. Time is of the essence for this Contract. Contractor shall provide the Engineer
with any requested scheduling information and a proposed schedule for performance of the Work within the
Contract Time in a form acceptable to the Engineer and approved by the Engineer, in his sole and absolute
discretion, providing for commencement and completion of the Work (the "Schedule"). The Schedule shall
include the date for Substantial Completion of the Work. The Engineer may revise the Schedule during the course
of the Work. Contractor,to induce the Town to enter into this Contract,has and does hereby agree to fully perform
and complete the Work for the Contract Price within the Schedule.
3.22 Contractor's Representative. The Contractor or his authorized representative shall be present at
the Work site at all times during working hours.
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3.23 Prosecution of the Work. The Contractor shall prosecute the Work so that the portion of the Work
completed at any point in time shall be not less than as required by the Schedule. If the delay is an Inexcusable
Delay,as defined below, the Contractor shall prepare a recovery schedule for the Engineer's review and approval,
showing how the Contractor will compensate for the delays and achieve Substantial Completion by the date(s)
shown on the Schedule. If the Contractor is unable to demonstrate how it will overcome Inexcusable Delays, the
Engineer may order the Contractor to employ such extraordinary measures as are necessary to bring the Work into
conformity with the Substantial Completion date(s)set forth therein, the costs of which shall be included as part of
the Cost of the Work. If the delay is an Excusable Delay,as defined below,the Engineer shall either(A)authorize
an equitable extension in the Schedule to account for such delay, and equitably adjust the contract sum on account
of such delay or (B) request that the Contractor prepare a recovery schedule showing how (if possible) the
Contractor can achieve Substantial Completion by the applicable date shown on the Schedule, and equitably adjust
the Contract Price in accordance with the provisions of this Contract on account of any extraordinary activities
required of the Contractor on account of such recovery schedule.
3.24 Extensions of Time.
A. Allowable Extensions. An extension in the scheduled date of Substantial Completion will
only be granted in the event of Excusable Delays affecting the Schedule for the Work. The Contractor shall be
entitled to general condition costs and extra costs related to the Excusable Delay for idle labor, equipment
inefficiency and lost productivity of the performance of the Work. The Contractor must submit evidence
reasonably satisfactory to the Town substantiating such costs. Such adjustment to the Price and Substantial
Completion date shall be issued in a Change Order or Contract amendment,as applicable.
B. Excusable Delay. To the extent any of the following events results in an actual delay in
the Work, such shall constitute an"Excusable Delay"(to the extent not set forth below, a delay will be considered
an"Inexcusable Delay"):
1. Delays resulting from Force Majeure.
2. Differing, unusual or concealed site conditions that could not reasonably have
been anticipated by the Contractor in preparing the Schedule, including,without limitation, archaeological
finds and unusual soil conditions (including rock or other geological conditions), underground
foundations,abandoned utility lines and water conditions.
3. Delays resulting from the existence or discovery of Hazardous Materials on the
Site not brought to the Site by the Contractor.
4. Delays resulting from changes in Applicable Laws occurring after the date of
execution of this Contract.
5. Delays occurring due to the acts or omissions of the Town and those within the
control of the Town.
6. Delays occurring due to the acts or omissions of a utility, so long as Contractor
has coordinated with the utility causing the delay and the delay occurs despite reasonable steps taken by
Contractor to avoid the delay.
7. Delays resulting from weather conditions that make it unreasonable to perform
the Work in accordance with the Schedule;provided,however,that Contractor's Schedule shall be deemed
to include 14 Days for weather delays (the "Expected Delay Days"), regardless of whether such weather
delays are specifically set forth in the Schedule. Contractor shall notify the Town within 24 hours in
writing of a weather related delay. If Contractor fails to give the required 24-hour notice,no such weather
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delay will be subtracted from the Expected Delay Days. Weather delays shall not be deemed"Excusable"
unless all of the Expected Delay Days have been exhausted.
8. Delays resulting from Additional Work(defined below)that cannot be performed
concurrently with the Work on the Schedule.
C. Required Notice. In order to obtain an extension of time due to an Excusable Delay, the
Contractor shall comply with the following requirements. The Contractor shall notify the Engineer in writing of
the Excusable Delay as soon as practicable, but in no event more than seven Days after the Contractor becomes
aware of the occurrence of the Excusable Delay. Such notice shall describe the Excusable Delay and shall state the
approximate number of Days the Contractor expects to be delayed. After the cessation of the Excusable Delay,the
Contractor shall notify the Engineer of the number of Days the Contractor believes that its activities were in fact
delayed by the Excusable Delay. In the event that the delay arises as a result of a Change Order request by the
Town, the request for an extension of time contained in the resulting Change Order proposal shall be deemed
sufficient for purposes of this subsection.
D. Determination. Within 10 Days after cessation of an event giving rise to either an
Excusable Delay or Inexcusable Delay, the parties will use good faith efforts to agree on the extent to which the
Work has been delayed and whether the delay is an Excusable Delay or an Inexcusable Delay. In the absence of
agreement between the parties as to the then-current status of Excusable Delays and Inexcusable Delays, the
Engineer will provide the Contractor with written notice of Engineer's determination of the respective number of
Days of Excusable Delay and/or Inexcusable Delay. The Engineer's determination may be issued at such time as
the Engineer deems reasonable,but not later than I0 Days after receipt by the Engineer of the Contractor's written
request for such determination. The Contractor shall not, however, deem an issuance by the Engineer of such a
determination to be a concurrence of the matters set forth in the Contractor's request. The Contractor may invoke
the dispute resolution procedures set forth in Part D below with respect to such determination.
E. Concurrent Delay. To the extent the Contractor is entitled to an extension of time due to
an Excusable Delay, but the performance of the Work would have been suspended, delayed or interrupted by the
fault or neglect of the Contractor or by an Inexcusable Delay, the Contractor shall not be entitled to any additional
costs for the period of such concurrency.
3.25 Liquidated Damages. For each calendar day or working day, as specified,that the contractor shall
fail to achieve substantial completion after the contract time or calendar date specified for the completion of the
work provided for in the contract, the sum shown in the schedule of liquidated damages specified below will be
deducted from any monies due the contractor,not as a penalty,but as liquidated damages;provided,however,that
due account will be taken of any adjustment of the contract time for the completion of the work allowed under the
provisions of Subsection 108.08.
A. Prior to Termination. If the Contract is not terminated, the Contractor shall continue
performance and be liable to the Town for the liquidated damages until the Work is complete.
B. After Termination. In the event the Town exercises its right of termination, the
Contractor shall be liable to the Town for any excess costs and, in addition,for liquidated damages until such time
as the Town may reasonably obtain delivery or performance of similar Services.
3.26 Suspension by the Town for Convenience.
A. Town Determination. The Town may order the Contractor in writing to suspend,delay or
interrupt all or any part of the Work without cause for such period of time as the Town may determine to be
appropriate for its convenience.
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B. Contract Adjustments. Adjustments caused by suspension, delay or interruption shall be
made for increases in the applicable contract sum and/or the date(s) of Substantial Completion. No adjustment
shall be made if the Contractor is or otherwise would have been responsible for the suspension, delay or
interruption of the Work,or if another provision of this Contract is applied to render an equitable adjustment.
3.27 Termination by the Town for Convenience. The Town may, upon 30 Days' written notice to the
Contractor, terminate this Contract, in whole or in part, for the convenience of the Town without prejudice to any
right or remedy otherwise available to the Town. Upon receipt of such notice, the Contractor shall immediately
discontinue all Services affected unless such notice directs otherwise. In the event of a termination for
convenience of the Town, the Contractor's sole and exclusive right and remedy shall be payment for all Work
performed through the date of termination. The Contractor shall not be entitled to be paid any amount as profit for
unperformed Services or consideration for the Town's termination by convenience.
3.28 Termination by the Town for Cause.
A. Default;Cure. If the Contractor refuses or fails to supply sufficient properly skilled staff
or proper Materials,or disregards laws,ordinances,rules,regulations,or orders of any public authority jurisdiction,
or otherwise substantially violates or materially breaches any term or provision of this Contract, and such
nonperformance or violation continues without cure for 15 Days after the Contractor receives written notice of
such nonperformance or violation from the Town, then the Town may, without prejudice to any right or remedy
otherwise available to the Town,terminate this Contract.
B. Substitute Performance. Upon termination of this Contract by the Town,the Town shall
be entitled to furnish or have furnished the Services to be performed hereunder by the Contractor by whatever
method the Town may deem expedient. Also, in such case, the Contractor shall not be entitled to receive any
further payment until completion of the Work, and the total compensation to the Contractor under this Contract
shall be the amount that is equitable under the circumstances. If the Town and the Contractor are unable to agree
on the amount to be paid under the foregoing sentence, the Town shall fix an amount, if any, that it deems
appropriate in consideration of all of the circumstances surrounding such termination, and shall make payment
accordingly. The Contractor may dispute the Town's assessment of the termination amount pursuant to the dispute
resolution process set forth in in Part D of this Contract.
C. Contractor Insolvency. Upon the appointment of a receiver for the Contractor, or if the
Contractor makes a general assignment for the benefit of creditors,the Town may terminate this Contract, without
prejudice to any right or remedy otherwise available to the Town, upon giving three business days' written notice
to the Contractor. If an order for relief is entered under the bankruptcy code with respect to the Contractor, the
Town may terminate this Contract by giving three business days' written notice to the Contractor unless the
Contractor or the trustee completes all of the following:
1. Promptly cures all breaches within such three-day period.
2. Provides adequate assurances of future performance.
3. Compensates the Town for actual pecuniary loss resulting from such breaches.
4. Assumes the obligations of the Contractor within the established time limits.
3.29 Contract Subject to Appropriation. The Town is obligated only to pay its obligations set
forth in this Agreement as may lawfully be made from funds appropriated and budgeted for that purpose during
the Town's then current fiscal year. The Town's obligations under this Agreement are current expenses subject
to the "budget law" and the unfettered legislative discretion of the Town concerning budgeted purposes and
appropriation of funds. Should the Town elect not to appropriate and budget funds to pay its Agreement
obligations, this Agreement shall be deemed terminated at the end of the then-current fiscal year term for which
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such funds were appropriated and budgeted for such purpose and the Town shall be relieved of any subsequent
obligation under this Agreement. The parties agree that the Town has no obligation or duty of good faith to
budget or appropriate the payment of the Town's obligations set forth in this Agreement in any budget in any
fiscal year other than the fiscal year in which this Agreement is executed and delivered. The Town shall be the
sole judge and authority in determining the availability of funds for its obligations under this Agreement. The
Town shall keep Contractor informed as to the availability of funds for this Agreement. The obligation of the
Town to make any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town.
Contractor hereby waives any and all rights to bring any claim against the Town from or relating in any way to
the Town's termination of this Agreement pursuant to this section.
3.30 Additional Work, Materials and/or Overtime. Contractor expressly agrees that if overtime or
additional workers or materials are necessary to meet the Schedule, that such overtime will be performed or
additional workers or materials will be procured by the Contractor, and the additional expense thereof shall be
borne by Contractor unless the delay requiring overtime was directly caused by the Town, in which event
Contractor shall be entitled to compensation for such overtime Work. If the Town requests Contractor to perform
additional Work in connection with the Project ("Additional Work"), Contractor shall charge the Town a
negotiated fixed amount for the Additional Work. In the event a fixed amount cannot be negotiated, Contractor
shall invoice the Town on a time and materials basis for the Additional Work at the unit prices set forth in the price
sheet.
3.31 No Damage for Delay or Additional Work by the Town. Contractor shall adjust its operations to
conform to any progress schedule changes and hereby waives and releases the Town from any liability for
damages or expenses that may be caused to or sustained by Contractor by reason of such changes or by reason of
delays in the Work, whether caused in whole or in part by conduct on the part of the Town, including without
limitation, any breach of this Contract or delays by other contractors or Subcontractors. Contractor's exclusive
remedy in event of delay or Additional Work by the Town shall be an extension of time hereunder to complete the
Work.
3.32 Risk of Loss. Contractor shall assume the risk of loss occasioned by fire,theft or other damage to
Materials,machinery, apparatus, tools and equipment relating to the Work prior to actual installation in final place
on the Project and acceptance by the Town. Contractor shall be responsible for damage to the Materials,
machinery, apparatus, tools, equipment and property of the Town and other contractors resulting from the acts or
omissions of its Subcontractors, employees, agents, representatives Subcontractors, and for payment of the full
costs of repair or replacement of any said damage.
3.33 Protection of Finished or Partially Finished Work. The Contractor shall properly guard and
protect all finished or partially finished Work and shall be responsible for the same until the entire Contract is
completed and accepted by the Engineer. The Contractor shall turn over the entire Work in full accordance with
this Contract before final settlement shall be made.
3.34 Character and Status of Workers. Only skilled foremen and workers shall be employed on
portions of the Work requiring special qualifications. When required by the Engineer, the Contractor shall
discharge any person who is, in the opinion of the Engineer, disorderly, dangerous, insubordinate, incompetent or
otherwise objectionable. The Contractor shall indemnify and hold harmless the Town from and against damages
or claims for compensation that may occur in the enforcement of this Section. The Contractor shall be responsible
for ensuring the legal working status of its employees and its Subcontractor's employees. The Contractor agrees
that once assigned to Work under this Contract, key personnel shall not be removed or replaced without written
notice to the Town. If key personnel are not available for Work under this Contract for a continuous period
exceeding 30 Days, or are expected to devote substantially less effort to the Work than initially anticipated, the
Contractor shall immediately notify the Town and shall, subject to the concurrence of the Town, replace such
personnel with personnel of substantially equal ability and qualifications.
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TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
3.35 Work Methods. The methods, equipment and appliances used on the Work shall be such as will
produce a satisfactory quality of Work, and shall be adequate to complete the Contract within the Contract Time.
Except as is otherwise specified in this Contract, the Contractor's procedure and methods of construction may, in
general, be of its own choosing,provided such methods(A) follow best general practice and(B) are calculated to
secure results which will satisfy the requirements of this Contract. The Work covered by this Contract shall be
carefully laid out in advance and performed in a manner to minimize interference with normal operation and
utilization of the Town's right-of-way. The Contractor shall exercise caution during the course of this Work to
avoid damage to all known existing or possible unknown existing underground utilities. It shall conduct its
operations in such a manner as to avoid injury to its personnel and to avoid damage to all utilities. Any damage
done will be repaired without delay and at the expense of the Contractor.
3.36 Safety Fencing Requirement for Trenches and Excavations. The Contractor shall provide safety
construction fencing around all open trenches and excavations during all non-working hours. In addition, the
Contractor shall provide safety fencing around the Project site during working hours in order to ensure public
safety. The Contractor shall provide for the safety and welfare of the general public by adequately fencing all
excavations and trenches that are permitted by the Engineer to remain open when construction is not in progress.
Fencing shall be securely anchored to approved steel posts located not less than six feet on center, having a
minimum height of six feet, and shall consist of wire mesh fabric of sufficient weight and rigidity to adequately
span a maximum supporting post separation of six feet. The fencing, when installed about the periphery of
excavations and trenches, shall form an effective barrier against intrusion by the general public into areas of
construction. The Contractor,at all times when construction is not in progress,shall be responsible for maintaining
the fencing in good repair, and upon notification by the Engineer, shall take immediate action to rectify any
deficiency. Prior to the start of any excavation or trenching required for the execution of the proposed Work, the
Contractor shall submit to the Engineer for approval, detailed plans showing types of materials and methods of
fabrication for the protective fencing. There will be no separate measurement or payment for furnishing,installing,
or maintaining protective fencing. The cost shall be considered incidental to the cost of any other structures for
which trenching is necessary.
3.37 Utilities.
A. Utilities Shown on the Plans.
1. Regardless of what utilities are shown on the plans, it shall be Contractor's
responsibility to verify these locations and any additional lines which may exist through consulting with
the Town,utility companies and"Blue Stake."
2. Existing utilities are indicated on Project plans in accordance with the best
information available. Contractor shall notify all owners of utilities when its Work is in progress and
shall make such arrangements as are necessary to make any emergency repair to any utility, in a manner
satisfactory to the Town of a damaged utility line, including individual or house service utility lines.
3. No extra compensation will be made for the repair of any individual or house
service utility or utility lines damaged by Contractor's labor forces or equipment, nor for any damage
incurred through neglect or failure to provide protective barriers, lights and other devices or means
required to protect such existing utilities.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
4. Contractor shall expose all sanitary and storm sewers, water, gas, electric,
telephone utility lines, and other underground structures that might interfere with the Work, in order to
permit survey location prior to construction.
5. Contractor shall assume full responsibility for damages to any underground
facility/utility properly shown on the Plans or properly located by the Utility owner, as a result of failing
to obtain information as to its location, failing to excavate in a careful and prudent manner or failing to
take measures for protection of the facilities/utilities. The Contractor is liable to the owner of the
underground facility/utility for the total cost of the repair.
B. Utilities Not Shown on the Plans.
1. If utility lines are encountered that are not shown on the plans, and not located,
or incorrectly located by the utility owner, other than individual or house service utility lines, and these
lines are damaged or work is required to clear same ARIZ.REV. STAT. §40-360.21 et seq. shall apply.
2. The work necessary for the raising, lowering, or relocating of any such utility
shall be at the utility owner's expense. The necessary Work may be done by the utility owner or by
Contractor, or as a collaborative effort, at the option of the utility owner. All Work shall be in
accordance with the standards of the Town and the utility owner.
3. In most cases, individual or house service utility lines are not shown on the
Plans. It shall be Contractor's responsibility to locate and protect these individual or house services. If,
due to Contractor's operations, any of these lines are damaged, it shall repair or replace these lines in a
manner satisfactory to the owner of the utility at no extra cost to the Town. In addition, the cost of
location,protection, and working around these individual or house service utility lines shall be included
in Contractor's bid for the Work under this Contract.
3.38 Outdoor Construction Time Restrictions. Unless otherwise permitted by the Engineer,
construction will be restricted as listed in the following table:
May 15—September 15 September 16—May 14
5:30 a.m.to 6:30 p.m. 6:00 a.m.to 6:30 p.m.
Construction Work shall not begin Work prior to 7:00 a.m. and shall stop by 5:00 p.m. on Saturdays. There shall
be no Construction Work on Sundays and all Town,State and Federal holidays.
3.39 Stockpile of Materials.
A. Engineer Approval. The Contractor may, if approved by the Engineer,place or stockpile
Materials in the public right-of-way provided such Materials do not prevent access to adjacent properties or
prevent compliance with traffic regulations. An encroachment permit shall be required. Any applicable cost shall
be paid by the Contractor and shall be presumed to be part of the Contractor's bid.
B. No Traffic Interference. Traffic shall not be required to travel over stockpiled Materials
and proper dust control shall be maintained.
3.40 Excess Materials. When excavations are made, resultant loose earth shall be (A) utilized for
filling by compacting in place or(B)disposed of off-site. Excess or unsuitable material,broken asphaltic concrete
and broken portland cement concrete excavated from the right-of-way shall be removed from the Project Site and
disposed of by the Contractor. Waste material shall not be placed on private property without express permission
of the property owner. The Contractor shall, at all times, keep the premises free from accumulation of waste
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
materials or rubbish caused by its operations. At the completion of the Work, Contractor shall remove all
equipment, tools and surplus materials, and shall completely clean the premises, removing and disposing of all
debris and rubbish and cleaning all stains,spots,marks,dirt, smears or other blemishes. When the Work premises
are turned over to the Town, they shall be thoroughly clean and ready for immediate use. Clean-up shall include
removal of all excess pointing mortar materials within pipes and removal of oversized rocks and boulders left after
finish grading. The Contractor shall provide for the legal disposal of all waste products and debris and shall make
necessary arrangements for such disposal.
3.41 Storm Water. Contractor shall obtain all local,county,state and federal storm water permits.
3.42 Temporary Sanitary Facilities. The Contractor shall provide ample toilet facilities with proper
enclosures for the use of workers employed on the Work site. Toilet facilities shall be installed and maintained in
conformity with all applicable State and Iocal laws,codes, regulations and ordinances and shall be properly lit and
ventilated,and kept clean at all times. Adequate and satisfactory drinking water shall be provided at all times and
under no circumstances and under no conditions will the use of common cups be permitted. The Contractor must
supply sanitary drinking cups for the benefit of all employees.
3.43 Electric Power, Water and Telephone. Unless otherwise specified, the Contractor shall make its
own arrangements for electric power, water and telephone as needed. Subject to the convenience of the utility, it
may be permitted to connect to existing facilities where available, but Contractor shall meter and bear the cost of
such power or water,and installation and disconnect of such power,water and telephone services.
3.44 Energized Aerial Electrical Power Lines. Utility companies may maintain energized aerial
electrical power lines in the immediate vicinity of this Project. Contractor shall not presume any such lines to be
insulated. Construction personnel working in proximity to these lines may be exposed to an extreme hazard from
electrical shock. Contractor shall ensure that its employees and all other construction personnel working on this
Project are warned of the danger and instructed to take adequate protective measures, including maintaining a
minimum ten feet of clearance between the lines and all construction equipment and personnel. (see: OSHA Std.
1926.550 (a) 15, as amended). As an additional safety precaution, Contractor shall call the affected utility
companies to arrange, if possible, to have these lines de-energized or relocated when the Work reaches their
immediate vicinity. The cost of such temporary arrangements shall be borne by the Contractor. Contractor shall
account for the time necessary to cause such utility disconnection in the preparation of its Bid. Electrical utility
companies may maintain energized underground electrical power lines in the immediate vicinity of this Project.
These power lines represent an extreme hazard of electrical shock to any construction personnel or equipment
coming in contact with them. Arizona law requires all parties planning excavations in public rights-of-way to
contact all utility firms for locations of their underground facilities. Contractor shall ensure that its employees and
all other personnel working near any underground power lines must be warned to take adequate protective
measure. (see:OSHA Std. 1926-651 (A),as amended).
3.45 Site Clean Up. Contractor shall at all times, but not less than daily unless otherwise agreed by
Town Representative,keep the premises on which the Work is being performed clean and free from accumulation
of any waste materials, trash, debris and excess dirt, and at all times shall remove Contractor's implements,
machinery, tools, apparatus and equipment from the jobsite when not needed on the jobsite. Should the Town
Representative find it necessary in his/her opinion to employ help to clean up,remove or store any of the foregoing
due to failure of Contractor to do so, the expense thereof shall be charged to Contractor. Verbal notice from the
Town Representative on clean-up or removal is considered adequate notice hereunder, and failure to conform with
his/her request within 24 hours thereof will be construed as a breach of this Contract by the Contractor and such
charges will be made against Contractor's account as are necessary to accomplish the clean-up or removal. The
cost of cleanup, removal or storage by the Town, if not deducted by the Town from monies due Contractor, shall
be paid by Contractor within five business days of written demand by the Town.
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
3.46 Use of the Site. Contractor shall at all times comply fully with all Iaws, orders, citations, rules,
regulations, standards and statutes with respect to occupational health and safety, the handling and storage of
hazardous materials, accident prevention and safety equipment and practices, including any accident prevention
and safety program of the Town; provided, however, that the Town shall not be required to impose any safety
requirements or administer any such programs and the review or requirement of any safety plan by the Town shall
not be deemed to release Contractor or in any way diminish its liability, by way of indemnity or otherwise, as
assumed by it under this Contract. Contractor shall conduct inspections regularly to determine that safe working
conditions and equipment exist and accepts sole responsibility for providing a safe place to Work for its employees
and employees of its Subcontractors, laborers, suppliers of material and equipment and any other person visiting
the Site, for adequacy of and required use of all safety equipment and for compliance herewith. When so ordered,
Contractor shall stop any part of the Work that the Town deems unsafe until corrective measures satisfactory to the
Town have been taken. Should Contractor neglect to adopt such corrective measures, the Town may do so and
deduct the cost from payments due Contractor. Contractor shall timely submit copies of all accident or injury
reports to the Town.
3.47 Public Information and Notification. The Contractor shall submit a public information and
notification plan for this Project(the"Notification Plan") to the Town Representative at the first pre-construction
meeting held prior to start of construction. The Notification Plan shall include,at a minimum,the items set forth in
this Section 3.53;provided, however, that the Engineer may waive any portion of the requirements of this Section
upon a written determination that the Project scope does not warrant such notification. Contractor shall provide
Project information to affected residents and homeowners' associations prior to and throughout the Project's
duration. The Contractor shall use the Notification Plan to inform the local citizens,businesses and Town officials,
not less than five business days in advance, of(A) necessary operations that create high noise levels, (B) street
closures, (C)detour locations, (D) haul routes and material delivery routes and (E) disruption of bus routes, mail
routes and other delivery'pick-up routes.
A. Neighborhood Notification. Prior to the start of any Work on the Project, the Contractor
shall distribute a preliminary"Dear Neighbor" letter(8-1'2" x 11"), as submitted to and subject to the approval of
the Engineer, to all businesses,property owners and residents within 600 feet of any portion of this Project. This
"Dear Neighbor" letter shall include,at a minimum,the following information:
1. Contractor's name, business telephone number and the 24-hour "Hot Line"
telephone number for this Project.
2. Name of Contractor's Project Manager.
3. Name of Contractor's Project Superintendent.
4. Brief description of the Project.
5. Construction schedule, including anticipated Work hours.
6. Anticipated lane restrictions, including the expected duration thereof.
7. Name of Town's Project Manager.
8. Name of the Engineer.
The Town Manager or authorized designee shall provide the Contractor with a distribution list for this "Dear
Neighbor" letter. Contractor shall (1)ensure that the letter is distributed to all persons and businesses indicated on
the list provided by the Town Manager or authorized designee and (2) provide the Town Manager or authorized
designee with a copy of the letter sent and sufficient proof of mailing. Subsequent to delivery of the "Dear
Neighbor" letter, the Contractor shall distribute bi-monthly construction progress updates, including construction
schedule and any additional information the Engineer deems important as a result of construction activities, to all
persons and businesses included on the aforementioned distribution list. At the request of the Town Manager or
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TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
authorized designee, Contractor may be required to distribute additional public notifications. At the end of
construction a final"Dear Neighbor"letter shall be distributed to the persons and businesses on the aforementioned
distribution list highlighting the Contractor's and the Town's appreciation for their patience during construction of
the Project.
B. 24-Hour Project Hotline. The Contractor shall be required to furnish a private 24-hour
telephone line to be used solely for receiving incoming calls from local citizens or businesses with questions or
complaints concerning Project construction operations or procedures(the"Hotline"). The Contractor shall include
this Hotline telephone number on all public information distributed throughout the duration of the Project.
Contractor shall ensure that Contractor personnel man the Hotline during all hours that there is any Work being
performed on this Project; the Hotline shall be answered by a live answering service during all other hours. The
Contractor shall maintain a log of incoming calls, responses and action taken that shall be submitted to the
Engineer weekly and upon request.
C. Public Meetings. The Contractor shall attend such public meetings as deemed necessary
by the Town Manager or authorized designee.
D. Press Releases. The Contractor shall, at the request of the Engineer, prepare press
releases regarding the Project.
E. Payment for Public Notification. The Town will pay, based on time and materials
invoices, an amount not to exceed the amount designated in the Price Sheet and entitled COMMUNITY
RELATIONS, for Work performed in accordance with the Notification Plan. Work that is eligible for
reimbursement includes: the "Dear Neighbor" letters; bi-monthly progress reports; meetings with impacted
businesses, residents, schools,churches or other groups; scheduling newsletter when necessary(at least monthly);
temporary signs for local access; and maintaining the Hotline. No payment will be made under this item for any
Day during which there are substantial deficiencies in compliance,as determined by the Engineer. The Contractor
shall submit a final report/evaluation of its Notification Plan process performed for this Project. The report shall be
submitted before the Contractor receives final payment.
PART C-MISCELLANEOUS
3.48 Applicable Law;Venue. This Contract shall be governed by the laws of the State of Arizona and
suit pertaining to this Contract may be brought only in courts in Maricopa County,Arizona.
3.49 Conflict of Interest. This Contract is subject to the provisions of ARIZ. REV. STAT. § 38-511.The
Town may cancel this Contract without penalty or further obligations by the Town or any of its departments or
agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Contract
on behalf of the Town or any of its departments or agencies is,at any time while the Contract or any extension of
the Contract is in effect,an employee of any other party to the Contract in any capacity or a consultant to any other
party of the Contract with respect to the subject matter of the Contract.
3.50 Contract Amendments. This Contract may be modified only by a written amendment signed by
persons duly authorized to enter into contracts on behalf of the Town and the Contractor, provided, however, that
Change Orders may be issued and approved administratively by the Town when such changes do not alter the
Contract Price.
3.51 Provisions Required by Law. Each and every provision of law and any clause required by law to
be in the Contract will be read and enforced as though it were included herein and,if through mistake or otherwise
any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the
Contract will promptly be physically amended to make such insertion or correction.
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TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-flat
3.52 Severability. The provisions of this Contract are severable to the extent that any provision or
application held to be invalid by a Court of competent jurisdiction shall not affect any other provision or
application of the Contract which may remain in effect without the invalid provision or application.
3.53 Independent Contractor. It is clearly understood that each party will act in its individual
capacity and not as an agent, employee, partner,joint venturer, or associate of the other. An employee or agent
of one party shall not be deemed or construed to be the employee or agent of the other for any purpose
whatsoever. The Contractor acknowledges and agrees that the Services provided under this Agreement are
being provided as an independent contractor, not as an employee or agent of the Town. Contractor, its
employees and subcontractors are not entitled to workers' compensation benefits from the Town. The Town
does not have the authority to supervise or control the actual work of Contractor, its employees or
subcontractors. The Contractor, and not the Town, shall determine the time of its performance of the services
provided under this Agreement so long as Contractor meets the requirements of its agreed scope of work and the
specifications, plans/construction drawings as set forth in Section 2.1 above and Exhibit A. Contractor is neither
prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and
Contractor do not intend to nor will they combine business operations under this Agreement.
3.54 Entire Agreement; Interpretation-Parol Evidence. This Contract represents the entire agreement
of the parties with respect to its subject matter, and all previous agreements, whether oral or written, entered into
prior to this Contract are hereby revoked and superseded by this Contract. No representations, warranties,
inducements or oral agreements have been made by any of the parties except as expressly set forth herein,or in any
other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Contract.
This Contract shall be construed and interpreted according to its plain meaning, and no presumption shall be
deemed to apply in favor of, or against the party drafting the Contract. The parties acknowledge and agree that
each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this
Contract.
3.55 Assignment; Delegation. No right or interest in this Contract shall be assigned or delegated by
Contractor without prior, written permission of the Town, signed by the Town Manager. Any attempted
assignment or delegation by Contractor in violation of this provision shall be a breach of this Contract by
Contractor.
3.56 Subcontracts. No subcontract shall be entered into by the Contractor with any other party to
furnish any of the Materials, Services or construction specified herein without the prior, written approval of the
Town.The Contractor is responsible for performance under this Contract whether or not Subcontractors are used.
3.57 Rights and Remedies. No provision in this Contract shall be construed, expressly or by
implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of
any claim of default or breach of this Contract. The failure of the Town to insist upon the strict performance of any
term or condition of this Contract or to exercise or delay the exercise of any right or remedy provided in this
Contract, or by law, or the Town's acceptance of and payment for Materials or Services, shall not release the
Contractor from any responsibilities or obligations imposed by this Contract or by law, and shall not be deemed a
waiver of any right of the Town to insist upon the strict performance of this Contract.
3.58 Attorneys' Fees. In the event either party brings any action for any relief, declaratory or
otherwise,arising out of this Contract or on account of any breach or default hereof,the prevailing party shall be
entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, determined
by the court sitting without a jury,which shall be deemed to have accrued on the commencement of such action
and shall be enforced whether or not such action is prosecuted through judgment.
3.59 Notices and Requests. Any notice or other communication required or permitted to be given
under this Contract shall be in writing and shall be deemed to have been duly given if(A)delivered to the party at
the address set forth below, (B)deposited in the U.S. Mail, registered or certified, return receipt requested, to the
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
address set forth below or (C) given to a recognized and reputable overnight delivery service, to the address set
forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller,Town Manager
With copy to: Pierce Coleman PLLC
4711 E Falcon Drive, Suite 111
Mesa,Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Contractor
Attn:
or at such other address, and to the attention of such other person or officer, as any party may designate in writing
by notice duly given pursuant to this Section. Notices shall be deemed received (A) when delivered to the party,
(B) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage or(C)the
following business day after being given to a recognized overnight delivery service, with the person giving the
notice paying all required charges and instructing the delivery service to deliver on the following business day. If a
copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on
which a notice is deemed to have been received by a party shall mean and refer to the date on which the party,and
not its counsel or other recipient to which a copy of the notice may be sent,is deemed to have received the notice.
3.60 Overcharges by Antitrust Violations. The Town maintains that, in practice,overcharges resulting
from antitrust violations are borne by the purchaser. Therefore, to the extent permitted by law, the Contractor
hereby assigns to the Town any and all claims for such overcharges as to the goods and services used to fulfill the
Contract.
3.61 Force Maieure. Except for payment for sums due, neither party shall be liable to the other nor
deemed in default under this Contract if and to the extent that such party's performance of this Contract is
prevented by reason of force majeure. The term 'force majeure"means an occurrence that is beyond the control
of the party affected and occurs without its fault or negligence. Without limiting the foregoing, force majeure
includes acts of God; acts of the public enemy; war;riots;strikes;mobilization;labor disputes;civil disorders; fire;
floods; lockouts, injunctions-intervention-acts, or failures or refusals to act by government authority; and other
similar occurrences beyond the control of the party declaring force majeure which such party is unable to prevent
by exercising reasonable diligence. The force majeure shall be deemed to commence when the party declaring
force majeure notifies the other party, in accordance with Section 3.65, of the existence of the force majeure and
shall be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming
performance in accordance with this Contract. Force majeure shall not include the following occurrences:
A. Late Delivery. Late delivery of equipment or materials caused by congestion at a
manufacturer's plant or elsewhere,an oversold condition of the market, inefficiencies or similar occurrences.
B. Late Performance. Late performance by a Subcontractor unless the delay arises out of a
force majeure occurrence in accordance with this Section 3.67. Any delay or failure in performance by either party
hereto shall not constitute default hereunder or give rise to any claim for damages or loss of anticipated profits if,
and to the extent that such delay or failure is caused by force majeure. If either party is delayed at any time in the
progress of the Work by force majeure, then the delayed party shall notify the other party in accordance with
Section 3.65 and shall make a specific reference to this Section,thereby invoking its provisions. The delayed party
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
shall cause such delay to cease as soon as practicable and shall notify the other party in writing. The time of
Substantial Completion or Final Completion shall be extended by written Contract amendment for a period of time
equal to the time that the results or effects of such delay prevent the delayed party from performing in accordance
with this Contract.
3.62 Confidentiality of Records. The Contractor shall establish and maintain procedures and
controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or
obtained from the Town or from others in carrying out its obligations under this Contract shall not be used or
disclosed by it, its agents, officers, or employees, except as required to perform Contractor's duties under this
Contract. Persons requesting such information should be referred to the Town. Contractor also agrees that any
information pertaining to individual persons shall not be divulged other than to employees or officers of
Contractor as needed for the performance of duties under this Contract.
3.63 Records and Audit Rights. To ensure that the Contractor and its Subcontractors are complying
with the warranty under Section 3.70 below, Contractor's and its Subcontractors' books, records,
correspondence, accounting procedures and practices, and any other supporting evidence relating to this
Contract, including the papers of any Contractor and its Subcontractors' employees who perform any Work or
Services pursuant to this Contract (all of the foregoing hereinafter referred to as "Records"), shall be open to
inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent
necessary to adequately permit (1) evaluation and verification of any invoices, payments or claims based on
Contractor's and its Subcontractors' actual costs (including direct and indirect costs and overhead allocations)
incurred, or units expended directly in the performance of Work under this Contract and (2) evaluation of the
Contractor's and its Subcontractors' compliance with the Arizona employer sanctions laws referenced in Section
3.70 below. To the extent necessary for the Town to audit Records as set forth in this Section,Contractor and its
Subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or
verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if
located at its Subcontractors' facilities, from the effective date of this Contract for the duration of the Work and
until three years after the date of final payment by the Town to Contractor pursuant to this Contract. Contractor
and its Subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can
conduct audits in compliance with the provisions of this Section. The Town shall give Contractor or its
Subcontractors reasonable advance notice of intended audits. Contractor shall require its Subcontractors to
comply with the provisions of this Section by insertion of the requirements hereof in any subcontract pursuant to
this Contract.
3.64 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the
Contractor and its Subcontractors warrant compliance with all Federal immigration laws and regulations that relate
to their employees and their compliance with the E-verify requirements under ARIZ. REV. STAT.§ 23-214(A).
Contractor's or its Subcontractors' failure to comply with such warranty shall be deemed a material breach of this
Contract and may result in the termination of this Contract by the Town.
3.65 Israel. 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,"as that term is defined in ARIZ.REV.STAT. §35-393,of Israel.
3.66 Right to Inspect Plant. The Town may, at reasonable times, inspect the part of the plant or place
of business of the Contractor or Subcontractor that is related to the performance of this Contract.
3.67 Warranties. Contractor warrants to the Town that all Materials and equipment furnished shall be
new unless otherwise specified and agreed by the Town and that all Work shall be of first class quality, free from
faults and defects and in conformance with the Contract. If at any time within one year following the date of Final
Completion and acceptance of the entire Project (or such longer period as may be provided under warranties for
equipment or Materials): (A) any part of the Materials furnished in connection with the Work shall be or become
defective due to defects in either labor or Materials,or both, or(B)Contractor's Work or Materials,or both,are or
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
were not in conformance with original or amended Plans and Specifications,or supplementary shop drawings, then
the Contractor shall upon written notice from the Town immediately replace or repair such defective or non-
conforming Material or workmanship at no cost to the Town. Contractor further agrees to execute any special
guarantees as provided by the Contract or required by law. Contractor shall require similar guarantees from all
vendors and from all its Subcontractors. Contractor further agrees, upon written demand of the Town and during
the course of construction, to immediately re-execute, repair or replace any Work that fails to conform to the
requirements of the Contract,whether caused by faulty Materials or workmanship,or both. In the event Contractor
shall fail or refuse to make such change upon the Town's written demand, the Town shall have the right to have
such Work re-executed, repaired or replaced, to withhold from or back charge to Contractor all costs incurred
thereby.
3.68 Inspection. All Materials and/or Services are subject to final inspection and acceptance by the
Town. Materials and/or Services failing to conform to the Specifications of this Contract will be held at
Contractor's risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the
Contractor. Upon discovery of non-conforming Materials or Services, the Town may elect to do any or all of the
following by written notice to the Contractor: (A)waive the non-conformance; (B) stop the Work immediately; or
(C) bring material or service into compliance and withhold the cost of same from any payments due to the
Contractor.
3.69 No Replacement of Defective Tender. Every tender of Materials shall fully comply with all
provisions of the Contract. If a tender is made which does not fully conform, this shall constitute a breach of the
Contract as a whole.
3.70 Shipment Under Reservation Prohibited. Contractor is not authorized to ship Materials under
reservation and no tender of a bill of lading will operate as a tender of the Materials.
3.71 Liens. All Materials, Service or construction shall be free of all liens and,if the Town requests, a
formal release of all liens shall be delivered to the Town.
3.72 Licenses. Contractor shall maintain in current status all Federal, State and Local licenses and
permits required for the operation of the business conducted by the Contractor as applicable to this Contract.
3.73 Patents and Copyrights. All Services, information,computer program elements, reports and other
deliverables, which may be patented or copyrighted and created under this Contract are the property of the Town
and shall not be used or released by the Contractor or any other person except with the prior written permission of
the Town.
3.74 Preparation of Specifications by Persons other than Town Personnel. All Specifications shall seek
to promote overall economy for the purposes intended and encourage competition and not be unduly restrictive in
satisfying the Town's needs. No person preparing Specifications shall receive any direct or indirect benefit from
the utilization of Specifications,other than fees paid for the preparation of Specifications.
3.75 Advertising. Contractor shall not advertise or publish information concerning this Contract
without prior,written consent of the Town.
3.76 Conflicting Terms. In the event of any inconsistency,conflict or ambiguity among the terms of
the Contract, the IFB, the Scope of Work, any Town-approved Purchase Order, the Price Sheet, any Town-
approved Work Orders, invoices and the Contractor's response to the IFB, the documents shall govern in the
order listed herein.
PART D-ALTERNATIVE DISPUTE RESOLUTION
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
3.77 Scope. Notwithstanding anything to the contrary provided elsewhere in the Contract Documents,
except for subsection 3.86(G) below, the alternative dispute resolution("ADR")process provided for herein shall
be the exclusive means for resolution of claims or disputes arising under, relating to or touching upon 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.
3.78 Neutral Evaluator, Arbitrators. The Town will select a Neutral Evaluator to serve as set forth in
this ADR process, subject to the Contractor's approval,which approval shall not be unreasonably withheld. In the
event that the Town and the Contractor are unable to agree upon a Neutral Evaluator, the neutral evaluation
process shall be eliminated and the parties shall proceed with the binding arbitration process set forth in Section
3.86 below. The Town and Contractor shall each select an arbitrator to serve as set forth in this ADR process.
Each arbitrator selected shall be a member of the State Bar of the State of Arizona and shall have experience in the
field of construction law. None of the arbitrators nor any of the arbitrator's firms shall have presently, or in the
past,represented any party to the arbitration.
3.79 Neutral Evaluation Process. If the parties have been unable to resolve the disputes after
discussions and partnering, but the parties have agreed to a Neutral Evaluator, the following neutral evaluation
process shall be used to resolve any such dispute.
A. Notification of Dispute. The Town through its Engineer shall notify the Neutral
Evaluator in writing of the existence of a dispute within 10 Days of the Town or the Contractor declaring need to
commence the neutral evaluation process.
B. Non-Binding Informal Hearing. The Neutral Evaluator shall schedule a non-binding
informal hearing of the matter to be held within seven Days from receipt of notification of the existence of a
dispute. The Neutral Evaluator may conduct the hearing in such manner as he deems appropriate and shall notify
each party of the hearing and of its opportunity to present evidence it believes will resolve the dispute. Each party
to the dispute shall be notified by the Neutral Evaluator that it shall submit a written outline of the issues and
evidence intended to be introduced at the hearing and the proposed resolution of the dispute to the Neutral
Evaluator before the hearing commences. Arbitrators shall not participate in such informal hearing or proceedings
process. The Neutral Evaluator is not bound by the rules of evidence when admitting evidence in the hearing and
may limit the length of the hearing, the number of witnesses or any evidence introduced to the extent deemed
relevant and efficient.
C. Non-Binding Decision. The Neutral Evaluator shall render a non-binding written
decision as soon as possible,but not later than five Days after the hearing.
3.80 Binding Arbitration Procedure. The following binding arbitration procedure, except as provided
in subsection 3.86(G)below,shall serve as the exclusive method to resolve a dispute if(A)the parties cannot agree
to a Neutral Evaluator as set forth in Section 3.84 above or(B) any party chooses not to accept the decision of the
Neutral Evaluator. The party requesting binding arbitration shall notify the Neutral Evaluator of a request for
arbitration in writing within three business days' of receipt of the Neutral Evaluator's decision. If the Contractor
requests arbitration or if Contractor rejects the Town's selection of a Neutral Evaluator, it shall post a cash bond
with the Neutral Evaluator in an amount agreed upon by the parties or, in the event of no agreement, the Neutral
Evaluator shall establish the amount of the cash bond to defray the cost of the arbitration as set forth in subsection
3.86(M) and the proceeds from the bond shall be allocated in accordance with subsection 3.86(M) by the
Arbitration Panel.
A. Arbitration Panel. The Arbitration Panel shall consist of three arbitrators: the Town's
appointed arbitrator,the Contractor's appointed arbitrator and a third arbitrator(or"Neutral Arbitrator") who shall
be selected by the parties' arbitrators as set forth in subsection 3.86(B)If more than one consultant or contractor is
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
involved in a dispute, the consultants and/or contractors shall agree on an appointee to serve as arbitrator. The
Neutral Evaluator shall not participate in the proceedings.
B. Selection of Neutral Arbitrator. The parties' arbitrators shall choose the Neutral
Arbitrator within five business days of receipt of notification of a dispute from the Neutral Evaluator. The Neutral
Arbitrator shall have the same qualifications as those of the arbitrators set forth in subsection 3.84. In the event
that the selected arbitrators cannot agree on the Neutral Arbitrator as set forth above,the Neutral Arbitrator shall be
the"Default Neutral Arbitrator," a person or entity jointly selected by the Town and the Contractor. If the Town
and the Contractor cannot agree on a Default Neutral Arbitrator, the Town and the Contractor shall each submit
two names to an appropriate judge who shall select one person to serve as the Default Neutral Arbitrator.
C. Expedited Hearing. 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. To that
end, any party can petition the Neutral Evaluator to set an expedited hearing. If the Neutral Evaluator determines
that the circumstances justify it, the Neutral Evaluator shall contact the selected Arbitration Panel and 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 20 Days after notification of request for arbitration
having been submitted. This deadline can be extended only with the consent of all the parties to the dispute,or by
decision of the Arbitration Panel upon a showing of emergency circumstances.
D. Procedure. The Arbitration Panel will select a Chairman and 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 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 estimate as to the length of time that
will be required for the arbitration hearing. The Arbitration Panel shall review and consider the Neutral Evaluator
decision, if any. The Chairman shall determine the nature and scope of discovery, if any, and the manner 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 information for which
a privilege is recognized by Arizona law. The Chairman upon proper application shall issue such orders as may be
necessary and permissible 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 confirm such orders of the Chairman.
E. Hearing Days. In order to effectuate parties' goals, the hearing once commenced, will
proceed from business day to business day until concluded,absent a showing of emergency circumstances.
F. Award. The Arbitration Panel shall, within 10 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 subsection
3.86(M)herein. The award is to be rendered in accordance with this Contract and the laws of the State of Arizona.
G. Scope of Award. The Arbitration Panel shall be without authority to award punitive
damages,and any such punitive damage award shall be void. The Arbitration Panel shall be without any authority
to issue an award against any individual party in excess of twenty percent(20%)of the original Contract amount,
but in no event shall any award exceed$2,000,000,exclusive of interest, arbitration fees,costs and attorneys' fees.
If an award is made against any individual party in excess of$100,000,exclusive of interest,arbitration fees,costs
and attorneys' fees, it must be supported by written findings of fact, conclusions of law and a statement as to how
damages were calculated. Any claim in excess of twenty percent (20%) of the original Contract amount or in
excess $2,000,000 shall be subject to the jurisdiction of the Superior Court of Arizona, Maricopa County. Any
party can contest the validity of the amount claimed if an action is filed in the Superior Court.
H. Jurisdiction. The Arbitration Panel shall not be bound for jurisdictional purposes by the
amount asserted in any party's claim,but shall conduct a preliminary hearing into the question of jurisdiction upon
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
application of any party at the earliest convenient time, but not later than the commencement of the arbitration
hearing.
I. Entry of Judgment. Any party can make application to the Maricopa County Superior
Court for confirmation of an award,and for entry of judgment on it.
J. Severance and Joinder. To reduce the possibility of inconsistent adjudications: (1) the
Neutral Evaluator or the Arbitration Panel may,at the request of any party,join and/or sever parties, and/or claims
arising under other contracts containing this ADR provision, and(2) the Neutral Evaluator, on his own authority,
or the Arbitration Panel may,on its own authority,join or sever parties and/or claims subject to this ADR process
as they deem 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 Contractor, Architect/Engineer 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 germane to the Contract or not recognized under the
substantive law applicable to the dispute. Neither the Neutral Evaluator nor the Arbitration Panel are authorized to
join to the proceeding parties not in privity with the Town. Contractor cannot be joined to any pending arbitration
proceeding, without Contractor's express written consent,unless Contractor is given the opportunity to participate
in the selection of the non-Town appointed arbitrator.
K. Appeal. Any party may appeal (1) errors of law by the Arbitration Panel if, but only if,
the errors arise in an award in excess of$100,000, (2) the exercise by the Chairman or Arbitration Panel of any
powers contrary to or inconsistent with the Contract or(3) on the basis of any of the grounds provided in ARIz.
REV. STAT. § 12-1512, as amended. Appeals shall be to the Maricopa County Superior Court within 15 Days of
entry of the award. The standard of review in such cases shall be that applicable to the consideration of a motion
for judgment notwithstanding the verdict, and the Maricopa County Superior Court shall have the authority to
confirm, vacate, modify or remand an award appealed under this Section, but not to conduct a trial, entertain the
introduction of new evidence or conduct a hearing de novo.
L. Uniform Arbitration Act. Except as otherwise provided herein, binding arbitration
pursued under this provision shall be governed by the Uniform Arbitration Act as codified in Arizona in ARIz.
REV.STAT. § 12-1501,et seq.
M. Fees and Costs. Each party shall bear its own fees and costs in connection with any
informal hearing before the Neutral Evaluator. All fees and costs associated with any arbitration before the
Arbitration Panel, including without limitation the Arbitration Panelists' fee, 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 no event shall any Arbitrator's hourly fees be awarded in an amount in excess of$200 per hour and(1)
costs shall not include any travel expenses in excess of mileage at the rate paid by the Town, not to exceed a one
way trip of 150 miles,and(2)all travel expenses,including meals,shall be reimbursed pursuant to the travel policy
of the Town in effect at the time 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 Arbitration Panel. Fees for the
Neutral Evaluator shall be divided evenly between the Town and the Contractor.
N. Confidentiality. Any proceeding initiated under ADR shall be deemed confidential to the
maximum extent allowed by Arizona law and no party shall, except for disclosures to a party's attorneys or
accountants, make any disclosure related to the 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.
O. 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 necessary to preserve the
status quo and prevent immediate and irreparable harm to a party or to the Program pending resolution of a dispute
pursuant to ADR provided herein. No court may order any permanent injunctive relief except as may be necessary
TOWN OF FOUNTAIN HILLS
PUBLIC WORKS DEPARTMENT
2021-001
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.
P. Change Order. Any award in favor of the Contractor against the Town or in favor of the
Town against the Contractor shall be reduced to a Change Order and executed by the parties in accordance with the
award and the provisions of this Contract.
Q. 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 performance 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.
R. Inclusion in Other Contracts. The Contractor shall cooperate with the Town in efforts to
include this ADR provision in all other Project contracts. Subject to Contractor's reasonable agreement, the
Contractor agrees that any modification to this ADR provision that is included in the construction or other
contracts shall also apply to the Contractor. It is the intent of the parties that any changes to this ADR provision in
later contracts will be evolutionary and designed to incorporate the terms of this ADR provision without material
changes to the substance or procedure of this ADR provision.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXHIBIT A
TO
INVITATION FOR BIDS NO.2021-001
Fountain Hills Blvd Shoulder Paving Phase II
Provided at https: www.lh.az.govBids.aspx.
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EXHIBIT B
TO
INVITATION FOR BIDS NO.2021-001
[Substitution/Equal Request Form]
See following pages.
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SUBSTITUTION/EQUAL REQUEST FORM
Fountain Hills Blvd Shoulder Paving Phase II
202 I-001
Bidder hereby submits for Town's consideration the following product, instead of the
specified item, for the above Project.
Section Page Paragraph/Line Specified Item
Proposed Substitution:
(NOTE: See Article II -- Bid Process; Bid Award, Section 2.4(C), Approval of Substitutions, or Section 2.4(D),
Use of Equals, as applicable, for additional criteria concerning prior approval for substitutions or use equals of
material and equipment.)
Attach complete product description, drawings, photographs, performance and test data, and other information
necessary for evaluation, indicating by highlighting all comparable data between specified item and proposed
substitution or equal. Identify specific model numbers, finishes,options,etc.
A. Will changes be required to Project design (architecturally, structurally, mechanically or
electrically) in order to properly install proposed substitution? Yes No If Yes,explain:
B. Will the undersigned pay for changes to the Project design, including engineering and drawing
costs,caused by requested substitution? Yes No
C. List differences between proposed substitution and specified item.
Specified Item Proposed Substitution
D. Does substitution affect Drawing dimensions? Yes No If Yes,explain:
E. What effect does substitution have on other trades?
F. Does manufacturer's warranty of proposed substitution differ from that specified?
Yes No If Yes,explain:
G. Will substitution affect progress schedule? Yes No If Yes,explain:
H. Will substitution require more license fees or royalties than specified product?
Yes No If Yes,explain:
I. Will maintenance and service parts be locally available for substitution?
Yes No If Yes,explain:
J. Will substitution be compatible with all adjacent material and/or applications to or on the
proposed substitution? Yes No If no, explain what material substitutions will be required to make
your proposed substitution compatible:
List materials that will be required to provide compatibility:
The undersigned hereby assumes all responsibility for all provisions indicated herein and agrees that, if
adequate comparable information is not provided as required by Section 2.4(C), Approval of Substitutions, or
Section 2.4(D), Use of Equals, as applicable, and this Form, the proposed substitution or equal shall be subject to
rejection.
The undersigned understands and agrees that the substitution requested,including all supporting data,must
be submitted to and be in the possession of the Town 10 full Days prior to the Bid Deadline, to be considered,
including all supporting data for the substitution. Telegraphic (facsimile) or electronic (email)copies will not be
considered.
Submitted by: For Town's Use Only:
Accepted:
Signature
Accepted:
Print Name By: Date:
Remarks:
Title
Company Name
Address
City,State,Zip Code
Date Telephone No.
EXHIBIT C
TO
INVITATION FOR BIDS NO.2021-001
[Price Sheet]
See following pages.
PRICE SHEET
Fountain Hills Blvd Shoulder ravine phase II
2021-001
NOTE: All pricing blanks must be filled in. Empty or unfilled spaces in the Bid Price
Sheet shall result in a determination that a Bid is non-responsive.
*ALL BIDS ARE PRESUMED TO INCLUDE ALL APPLICABLE TAXES. CONTRACTOR
IS RESPONSIBLE FOR ENSURING THAT ALL MATERIALS CONTAINED IN THE PLANS
FOR THE PROJECT ARE BID ON THE PRICE SHEET.
BID ITEM ITEM DESCRIPTION UNIT QUANTITY UNIT COST TOTAL
NUMBER
1 Roadway Excavation CY 2915
2 Aggregate Base CY 712
3 Asphaltic Concrete TN 1095
4 Install C/G Mag 220 Type A(Machine) LF 5708
5 Install C/G Mag 220 Type A (Hand ST) LF 1378
6 Concrete Spillway Incl Turndown SF 1106
7 Manhole Adjustments EA 4
8 Water Valve Adjustments EA 14
9 Signs LS 1
10 Rip Rap Dumped D50= 15" CY 54
11 Traffic Control LS 1
12 Survey LS 1
13 Quality Control LS 1
14 Oblite&Striping LS 1
15 SWPP LS 1 •
16 ADEQ Dust Permit LS 1
17 Mobilization ' LS 1
SUB-
TOTAL
MISCELLANEOUS:
f CONSTRUCTION ENGINEERING LS S
I ENGINEERING CONTINGENCY LS S -
TOTAL S -
ACCEPTANCE OF OPTIONAL ITEMS
No. 2 Yes No Authorized By
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No. 3 Yes No Authorized By:
No. 4 Yes No Authorized By:
---
1
EXHIBIT D
TO
INVITATION FOR BIDS NO.2021-001
[Federal Requirements]
See following page.
Not applicable to this Project.
EXHIBIT E
TO
INVITATION FOR BIDS NO.2021-001
[Licenses;DBE/WBE Status]
See following page.
LICENSES;DBE/WBE STATUS
Fountain Hills Blvd shoulder paving phase II
2021-001
ErAttach a copy of your Contractor's License to your bid submittal.
ErAttach a copy of your Town of Fountain Hills Business License to your bid submittal.
ErAttach a copy of your Arizona Transaction Privilege Tax License
Has your firm been certified by any jurisdiction in Arizona as a minority or woman owned business
enterprise? Yes , No )(
If yes,please provide details and documentation of the certification.
EXHIBIT F
TO
Fountain Hills Blvd Shoulder paving phase II
INVITATION FOR BIDS NO.2021-001
[References]
See following page(s).
IMPORTANT NOTICE
YOU MUST: THIS IS YOUR IDENTIFICATION CARE
1.) REPORT DISASSOCIATION OF QUALIFYING PARTY JN WRITING WITHIN 15 DAYS.(SEE A.R.S. DO NOT DESTROY
§32.1154(A)(18)J
2.) REPORT A CHANGE OF ADDRESS IN WRITING,WITHIN 30 DAYS.(SEE A.R.S.§32.1 I22(6)(1)J
3,)REPORT ANY TRANSFER OF OWNERSHIP OF 50%OR MORE IMMEDIATELY(SEE A.R.S.
§32.1151.011
t,)REPORT ANY CHANGE IN LEGAL ENTITY SUCH AS ANY CHANGE OF THE OWNERSHIP IN A SOLE
PROPRIETORSHIP OR CHANGE OF A PARTNER IN A PARTNERSHIP OR THE CREATION OF A NEW
CORPORATE ENTITY(SEE A.R.S.§32-1124(9)(F)§RULE R-4 9.110) 1 113 020 2 0
LICENSE EFFECTIVE THROUGH
STATE OF ARIZONA ej�
Registrar of Contractors CERTIFIES THAT 1.
s"
Visus Engineering Construction Inc
Engineering Construction Inc
1831 NI Rochester ROC 250596 KA
Mesa,AZ 85205.6402 CONTRACTORS UCENSE NO CLASS
General Dual
Dual Engineering
THIS CARD MUST SE
PRESENTED UPON DEMAND
i JEFF FLETHAM,DIRECTOR
IMPORTANT NOTICE
YOU MUST: THIS IS YOUR IDENTIFICATION CARE
I.)REPORT DISASSOCIATION OF QUALIFYING PARTY IN WRITING WITHIN 15 DAYS.(SEE A.R.S. DO NOT DESTROY
§32-1154(A)(18))
?.)REPORT A CHANGE OF ADDRESS IN WRITING WITHIN 30 DAYS.(SEE A.R.S.§32.1122(6)(1)J
1
),)REPORT ANY TRANSFER OF OWNERSHIP OF 50%OR MORE IMMEDIATELY(SEE A.R.S.
§32-1151,01)
I.)REPORT ANY CHANGE IN LEGAL ENTITY SUCH AS ANY CHANGE OF THE OWNERSHIP IN A SOLE
PROPRIETORSHIP OR CHANGE OF A PARTNER IN A PARTNERSHIP OR THE CREATION OF A NEW
CORPORATE ENTITY.[SEE A.R.S.§32.1124(6)(F)§RULE R-4-9.110] 12/31/2019
LICENSE EFFECTIVE THROUGH
STATE OF ARIZONA
Registrar of Contractors CERTIFIES THAT � P
Visus Engineering Construction Inc Visus Engineering Construction Inc
1831 N Rochester KB-1
CONTRACTORS UCENSE NO. 191221 cuss
Mesa,AZ 85205 6402 Dual Building Contractor
THIS CARD MUST SE
PRESENTED UPON DEMAND �-
JEFFFL£ETHAM DIRECTOR
Town of Fountain Hills
POST IN A 16705 East Avenue of the Fountains Account ID:413
CONSPICUOUS Fountain Hills,AZ 85268
PLACE (480)816-5100 License Number
BUSINESS LICENSE 2822
THIS LICENSE EXPIRES 03/31/2021
Business Name: VISUS ENGINEERING CONSTRUCTION INC
Mailing Address: 1831 N ROCHESTER
MESA AZ 85205
Italy
Physical Address: 1831 NORTH ROCHESTER cP
MESA AZ 85205 o ai; rz
z n ,
Nature of Business: NEW HOME CONSTRUCTION SWIM 02
that is At‘I'
Date Issued March 26, 2020
Total Paid: 50.00
Finance Director
In accordance with Town of Fountain Hills,Arizona Town Code, Chapter 8 as added or amended, the person or firm is hereby
authorized to conduct business in the Town of Fountain Hill. This License is NON-Transferable
The portion below Is for your records. Detach and file.
COPY ONLY
Town of Fountain Hills
RECEIPT 16705 East Avenue of the Fountains Account ID:413
Fountain Hills,AZ 85268
Please retain for (480)816-5100
License Number
your records BUSINESS LICENSE 2822
THIS LICENSE EXPIRES 03/31/2021
Business Name: VISUS ENGINEERING CONSTRUCTION INC
Mailing Address: 1831 N ROCHESTER
MESA AZ 85205
Physical Address: 1831 NORTH ROCHESTER
MESA AZ 85205 T AIN
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Nature of Business: NEW HOME CONSTRUCTION It ,/
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Ml . Sty ;
Date Issued: March 26, 2020 l-that is
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Finance D retor Total Paid. 50.00
In accordance with Town of Fountain Hills,Arizona Town Code,Chapter 8 as added or amended, the person or firm is hereby
authorized to conduct business in the Town of Fountain Hill This License is NON-Transferable
ARIZONA DEPARTMENT OF REVENUE
ATTN Customer Care and Outreach ,011E STq.7,
PO BOX 29032 y L�p�
nycla
Phoenix,AZ 85038-9032
ARIZONA DEPARTMENT OF REVENUE EIftf
.f .
TRANSACTION PRIVILEGE TAX LICENSE <9 *44
NOT TRANSFERABLE 101z
The licensee fisted be'ow Is Icensed to conduct bus ness upon the condition that taxes aR pad to
Arizona Department of Revenue as required under provisions of A-R S Tltte 42,Chapter 5,Article 1
2020
ISSUED TO: VISUS ENGINEERING CONSTRUCTION INC ALL communications and 11.0►LICENSE: 07691805
1831 N ROCHESTER reports MUST REFER to START DATE: 12/01/2003
MESA AZ 85205 this LICENSE NO.
ISSUED: 12/06/2019
EXPIRES: 12/31/2020
LOCATION: CODE 001
VISUS ENGINEERING CONSTRUCTION INC
1831 N ROCHESTER
MESA,AZ 85205
1900057464084
IIIIIINL't'LTt1III1]U1atfi111
BUSINESS CODE REGION JURISDICTION
015-CONTRACTING-PRIME MAO-SALT RIVER PIMA- RESERVATION
MARICOPA(MARICOPA)
015-CONTRACTING- PRIME GLA-GILA COUNTY
015-CONTRACTING- PRIME GRA- GRAHAM COUNTY
015-CONTRACTING- PRIME MAR-MARICOPA COUNTY
015-CONTRACTING- PRIME MOH -MOHAVE COUNTY
015-CONTRACTING- PRIME PMA- PIMA COUNTY
015-CONTRACTING- PRIME PNL- PINAL COUNTY
015-CONTRACTING-PRIME AJ- APACHE JUNCTION CITY
015-CONTRACTING- PRIME AV-AVONDALE CITY
015-CONTRACTING- PRIME BE-BUCKEYE CITY
015-CONTRACTING PRIME CH-CHANDLER CITY
015-CONTRACTING- PRIME EM-EL MIRAGE CITY
015-CONTRACTING- PRIME FH-FOUNTAIN HILLS CITY
015-CONTRACTING- PRIME FL-FLORENCE CITY
015-CONTRACTING- PRIME GB-GILBERT CITY
015-CONTRACTING- PRIME GE-GLENDALE CITY
015-CONTRACTING- PRIME GL-GLOBE CITY
015-CONTRACTING- PRIME GU-GUADALUPE CITY
015-CONTRACTING- PRIME GY-GOODYEAR CITY
015-CONTRACTING- PRIME LP-LITCHFIELD PARK CITY
015-CONTRACTING- PRIME ME-MESA CITY
Th s License is Issued to the business named above for the address shown. licenses,by law cannot be transferred from one person to another,nor can they be
transferred from one location to another Arizona law requres I censees to notify the Department of Revenue If there is a change in business name,trade name,
local on,mailing address,or ownersn p In addition,when the business ceases to operate or the business location changes and a new license is issued,this license
must be returned to the Arizona Department of Revenue According to R15 5 2201,license must be disp eyed in a conspicuous place.
REFERENCES
Provide the following information for three clients for whom Bidder has successfully completed similar projects as
set forth in Section 2.16 within the past 60 months. Failure to provide three accurate and suitable references will
result in disqualification. Bidder may also attach another sheet with additional references.
1. Company: Tcivv Vt at T UWVii-otil vi N-i-111 S
Address t kill Q 5 (LSc LCi PcV(vtvx, cif- -1-Vte, Fo v A/t+C4 A&
City/State/Zip Code FCM, 1 t Vl 141 Mr K1 `,S 2,te t
Contact: JtiikilVt VYVidy
Telephone Number: 14 /- ' its?- 5(33
Date of Contract Initiation: 1.}' 2fl(°(
Date of Contract Expiration: b 2,0(41
Final Project Cost: 4 Sf361 '1Z1
Project Description: GYA(i 1 h9 t Fa V l Vl l ut` ]1 r( I V LQ t Yip yap,
cM i , iY ut1 , c M/Y(s'<, k 1I wu 1
2. Company: j W 1JUVrC1 N/10(/t/riVV1R/V1t (if TYu Vt S p(l r t'Citl"}C/Vt
Address (krj( VvE'r 3CA(1 SVVt skYVR/i*
City/State/Zip Code Ono A/V%-(X In ' JS C!U 1
Contact: (1 Yi k(S4IY
Telephone Number: (.9O 2- 11 Z' 3'1'O
Date of Contract Initiation: (U LZv 1 S
Date of Contract Expiration: '2- ZU VI
Final Project Cost: it 1 g 1 r ict 3
Project Description: Y(,td l•Vt9 1 (�O t:, M 1 vz v ti , YI• Yap, 1 w t d 9{f
3. Company: Ciftt4 Cif C7(f/14dCA 1 Qi
Address 5 5u W XSi' CG tR/Vtdat w PrVVIAIA
City/State/Zip Code Cf 1 viAdC4 tZ 1 Krl es 3 v t
Contact: Dm C7AYYtltiYcl
Telephone Number: ([Qj— t i7 J - 2"l40
Date of Contract Initiation: 3 juJ'2.O
Date of Contract Expiration: 1 I'LC/Z /
Final Project Cost: 42,141jO t TVv
Project Description: tt4iVG &. YRrt4CI. ' toadvvutj S.(.c-huv1, GAGVtntivtfi
trg,a+aed buSre,, cm.4 b lI. rivtt �eArt cidtwu�K,
q
EXHIBIT G
TO
Fountain Hills Blvd Shoulder paving phase II
INVITATION FOR BIDS NO.2021-001
[Bid Bond]
See following page.
BID BOND
Fountain Hills Blvd Shoulder paving phase II
2021-001
KNOW ALL PERSONS BY THESE PRESENTS:
THAT, Visus Engineering Construction,Inc. (hereinafter
called Principal), as Principal, and Merchants Bonding Company(Mutual) , a corporation
organized and existing under the laws of the State of Iowa
with its principal office in the City of West Dest Moines , (hereinafter called the Surety), as Surety,
are held and firmly bound unto the Town of Fountain Hills, (hereinafter called the Obligee) in the penal sum of
Ten Percent(10%)of Bid Amount, Ten Percent of the Bid Amount (Dollars) (S 10°0 of Bid Amount ) lawful
money of the United States of America, to be paid to the order of the Town of Fountain Hills, for the payment
whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and
assigns,jointly and severally,firmly by these presents and in conformance with A.R.S.Section 34-201.
WHEREAS,the Principal has submitted a bid/proposal for: Fountain Hills Blvd Shoulder paving phase 11 .
#2021-001
NOW, THEREFORE, if the Obligee accepts the proposal of the Principal and the Principal enters into a
Contract with the Obligee in accordance with the terms of the proposal and gives the Bonds and Certificates of
Insurance as specified in the Standard Specifications with good and sufficient surety for the faithful performance of
the Contract and for the prompt payment of labor and materials furnished in the prosecution of the Contract,or in
the event of the failure of the Principal to enter into the Contract and give the Bonds and Certificates of Insurance,
if the Principal pays to the Obligee the difference not to exceed the penalty of the Bond between the amount
specified in the proposal and such larger amount for which the Obligee may in good faith contract with another
party to perform the Work covered by the proposal then this obligation is void. Otherwise it remains in full force
and effect provided, however, that this Bond is executed pursuant to the provisions of Section 34-201, Arizona
Revised Statutes, and all liabilities on this Bond shall be determined in accordance with the provisions of the
section to the extent as if it were copied at length herein.
The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees
that may be fixed by a judge of the Court.
Witness our hands this 30th day of July 20 20
Virus Engineering Construction.Inc.
Principal Seal
By: '
Merchants Bonding Company(Mutual)
Surety Seal
By:
n Lynn Thompson,Attorney-in-Fact
Crest Insurance Group
7272 E.Indian School Road#375,Scottsdale,AZ 85251
Agency of Record
MERCHANT`5I►
BONDING COMPANY,.
POWER OF ATTORNEY
Know All Persons By These Presents,that MERCHANTS BONDING COMPANY(MUTUAL)and MERCHANTS NATIONAL BONDING,INC.,
both being corporations of the State of Iowa(herein collectively called the"Companies')do hereby make,constitute and appoint,individually,
Filiberto J Islas;Heather J Perrin;Jeri Lynn Thompson;Margie Wager;Maria R Lucero;Michael J Mesenbrink;Thomas R Turner
their true and lawful Attomey(s)-In-Fact,to s gn its name as surety(ies) and to execute, seal and acknowledge any and all bonds, undertakings,
contracts and other written instruments in the nature thereof, on beha f of the Companies in their business of guaranteeing the fidelity
of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any
actions o'proceedings allowed by law
This Power-of-Attorney is granted and is signed and sealed by facsimile under and by authority of the following By-Laws adopted by the Board
of Directors of Merchants Bonding Company(Mutual)on April 23, 2011 and amended August 14,2015 and adopted by the Board of Directors
of Merchants National Bonding,Inc.,on October 16,2015.
"The President,Secretary,Treasurer,or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority
to appoint Attorneys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the seal of the Company thereto,bonds and
undertakings recognizances,contracts of indemnity and other writings obi galory in the nature thereof."
"The signature of any authorized officer and the seat of the Company may be affixed by facsimile or electronic transmission to any Power of Attorney
or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the
Company,and such signature and seal when so used shall have the same force and effect as though manual y fixed.'
In connection with obligations in favor of the Florida Department of Transportation only,it is agreed that the power and aut hority hereby given to the
Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction
contracts required by the State of Florida Department of Transportation. It Is fully understood that consenting to the State of Florida Department
of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of
its obligations under its bond.
In connection with obligations in favor of the Kentucky Department of Highways only,it is agreed that the power and authority hereby given
to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner-
Department of Highways of the Commonwealth of Kentucky at least thirty(30)days prior to the modification or revocation
In Witness Whereof,the Companies have caused this Instrument to be signed and sealed this 11th day of February 2020
•
(4.:cs:�'Z: :"�' iiiQ099 0..C. MERCHANTMERCHANTS BONDING NATIONAL ONDING Y INC.(MUTUAL)
1ZE :It. : 7,‘,-,
•••�•'. ..:e''� •.• ; �1.• President
STATE OF IOWA "•..."'
COUNTY OF DALLAS ss.
On this 11th day of February 2020 before me appeared Larry Taylor,to me personally known, who being by me duly sworn
did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL?and MERCHANTS NATIONAL BONDING, INC., and that the
seals affixed to the foregoing instrument are the Corporate Seals of the Companies.and that the said instrument was signed and seated in behalf
of the Companies by authority of their respective Boards of Directors.
el s POLLY MASON
0 �— c Commission Number 750576 cq ,
• „i; My Commission Expires
/oy- January 07,2023
Notary Public
(Expiration of notary's commission
does not Invalidate this instrument)
I,William Warner,Jr.,Secretary of MERCHANTS BONDING COMPANY(MUTUAL}and MERCHANTS NATIONAL BONDING,INC.,do hereby
certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said Companies,which is still in full
force and effect and has not been amended or revoked
In Witness Whereof,I have hereunto set my hand and affixed the seal of the Companies on this 30th day of July ,2020
•
.•,�p,•.10NA�'e 0. . Co• .*
AMA.
oco:or, sr .0• :m�-QRPQq' f.
p` 2003 :,0; •y 1933 'c; Secretary
POA 0018(1/20) ••••••
BID BOND
Fountain Hills Blvd Shoulder paving phase II
2021-001
KNOW ALL PERSONS BY THESE PRESENTS:
THAT, (hereinafter
called Principal), as Principal, and , a corporation
organized and existing under the laws of the State of
with its principal office in the City of (hereinafter called the Surety), as Surety,
are held and firmly bound unto the Town of Fountain Hills, (hereinafter called the Obligee) in the penal sum of
Ten Percent (10°0) of Bid Amount, (Dollars) (S ) lawful
money of the United States of America, to be paid to the order of the Town of Fountain Hills, for the payment
whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and
assigns,jointly and severally,firmly by these presents and in conformance with A.R.S.Section 34-201.
WHEREAS,the Principal has submitted a bid/proposal for:
NOW, THEREFORE, if the Obligee accepts the proposal of the Principal and the Principal enters into a
Contract with the Obligee in accordance with the terms of the proposal and gives the Bonds and Certificates of
Insurance as specified in the Standard Specifications with good and sufficient surety for the faithful performance of
the Contract and for the prompt payment of labor and materials furnished in the prosecution of the Contract, or in
the event of the failure of the Principal to enter into the Contract and give the Bonds and Certificates of Insurance,
if the Principal pays to the Obligee the difference not to exceed the penalty of the Bond between the amount
specified in the proposal and such larger amount for which the Obligee may in good faith contract with another
party to perform the Work covered by the proposal then this obligation is void. Otherwise it remains in full force
and effect provided, however, that this Bond is executed pursuant to the provisions of Section 34-201, Arizona
Revised Statutes, and all liabilities on this Bond shall be determined in accordance with the provisions of the
section to the extent as if it were copied at length herein.
The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees
that may be fixed by a judge of the Court.
Witness our hands this day of 20
Principal Seal
By:
Surety Seal
By:
Agency of Record
EXHIBIT H
TO
Fountain Hills Blvd Shoulder paving phase II
INVITATION FOR BIDS NO.2021-001
[Key Personnel/Subcontractor Listing]
See following page.
KEY PERSONNEUSUBCONTRACTOR LISTING
Fountain Hills Blvd Shoulder Paving Phase II
2021-001
Key Personnel and Subcontractors listed herein shall be utilized on this Project.
Category: Personnel/Subcontractor Name,Contact Information:
CQte r4TG VIvIGGVt
fiyq f fiG cwttry I NIP-fa
survity1'1(19 ?_
StYi�t'vlc� 17It' Ftctvlkl i vt
EXHIBIT I
TO
Fountain Hills Blvd Shoulder Paving Phase II
INVITATION FOR BIDS NO.2021-001
[Performance Bond]
See following page.
PERFORMANCE BOND
ountain Hills Blvd Shoulder Paving Phase II
2021-001
KNOW ALL PERSONS BY THESE PRESENTS:
THAT, _ (hereinafter called
Principal), as Principal, and , a corporation organized and
existing under the laws of the State of , with its principal office in the City of
(hereinafter called the Surety), as Surety, are held and firmly bound unto the Town
of Fountain Hills (hereinafter called the Obligee) in the amount of (Dollars)
($ ), for the payment whereof, the said Principal and Surety bind themselves, and their
heirs,administrators,executors,successors and assigns,jointly and severally,firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the
day of 20 , for the material, service or construction described as
is hereby referred to and
made a part hereof as fully and to the same extent as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal
faithfully performs and fulfills all of the undertakings,covenants,terms,conditions and agreements of the Contract
during the original term of the Contract and any extension of the Contract, with or without notice to the Surety,
and during the life of any guaranty required under the Contract, and also performs and fulfills all of the
undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the Contract
that may hereafter be made, notice of which modifications to the surety being hereby waived,the above obligation
is void. Otherwise it remains in full force and effect.
PROVIDED,however,that this bond is executed pursuant to the provisions of Title 34,Chapter 2,Article
2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions
of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the extent as if it were copied at length in this
agreement.
The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees
that may be fixed by a judge of the Court.
Witness our hands this day of 20_�
Principal Seal
By:
Surety Seal
By:
Agency of Record
EXHIBIT J
TO
Fountain Hills Blvd Shoulder Paving Phase II
INVITATION FOR BIDS NO.2021-001
[Payment Bond]
See following page.
PAYMENT BOND
Fountain Hills Blvd Shoulder Paving Phase II
2021-001
KNOW ALL PERSONS BY THESE PRESENTS:
THAT, (hereinafter called Principal), as Principal,
and , a corporation organized and existing under the laws of the State of
, with its principal office in the City of (hereinafter
called the Surety), as Surety, are held and firmly bound unto the Town of Fountain Hills (hereinafter called the
Obligee) in the amount of (Dollars) (S ), for
the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors,
successors and assigns,jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the
day of 20 , for the material, service or construction described as
which Contract is hereby referred to and made a part hereof as
fully and to the same extent as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal
promptly pays all monies due to all persons supplying labor or materials to the Principal or the Principal's
Subcontractors in the prosecution of the Work provided for in the Contract, this obligation is void. Otherwise it
remains in full force and effect.
PROVIDED,however,that this bond is executed pursuant to the provisions of Title 34,Chapter 2,Article
2,Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions,
conditions and limitations of Title 34, Chapter 2,Article 2,Arizona Revised Statutes,to the same extent as if they
were copied at length in this agreement.
The prevailing party in a suit on this bond shall recover as a part of the judgment reasonable attorney fees
that maybe fixed by a judge of the Court.
Witness our hands this day of ,20W
Principal Seal
By:
Surety Seal
By:
Agency of Record
a
EXHIBIT K
TO
Fountain Hills Blvd Shoulder Paving Phase II
INVITATION FOR BIDS NO.2021-001
[Acknowledgments of Addenda received]
See following page(s).