CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES

CONSTRUCTION MANAGER AT RISK
DESIGN PHASE SERVICES AGREEMENT
(OPERATING MANUAL FORM)
(SINGLE PROJECT FORM)
Date (type in) Issued:
Request for Qualifications Number
OWNER
ARIZONA BOARD OF REGENTS
for and on behalf of
ARIZONA STATE UNIVERSITY
CMAR
DESIGN PROFESSIONAL
CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES AGREEMENT (SINGLE PROJECT
FORM) © NOVEMBER 2008 EDITION
Buyer’s Name
Arizona State University
Rev 11/08 Single
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Design Phase Services Agreement
TABLE OF CONTENTS
Page
APPENDIX A
SPECIFIC TERMS AND PROVISIONS OF THE DESIGN PHASE
SERVICES AGREEMENT
ARTICLE 1.
GENERAL
3
ARTICLE 2.
DESIGN PHASE SERVICES
4
ARTICLE 3.
OWNERSHIP OF DOCUMENTS
4
ARTICLE 4.
CONTRACT TIME
5
ARTICLE 5.
CMAR DESIGN PHASE SERVICES FEE
5
ARTICLE 6.
PROCEDURE FOR PAYMENT
5
ARTICLE 7.
TERMINATION OR SUSPENSION OF THE CMAR DESIGN PHASE SERVICES
CONTRACT DOCUMENTS
6
ARTICLE 8.
REPRESENTATIVES OF THE PARTIES
6
ARTICLE 9.
INSURANCE AND BONDING
7
ARTICLE 10.
OTHER PROVISIONS
7
ARTICLE 11.
ADDITIONAL APPROVALS OF ARIZONA BOARD OF REGENTS AND OTHERS
7
EXHIBIT A
EXHIBIT B
OPERATING MANUAL FOR CONSTRUCTION MANAGER AT RISK PROJECTS
GENERAL CONDITIONS
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APPENDIX A
to
Design Phase Services Agreement Between Owner and Construction Manager at Risk
Specific Terms and Provisions of the Design Phase Services Agreement
1.
Heading: Project name, location and general description:
2.
Section 4.1.1:
Substantial Completion date.
[NOTE TO USERS OF THIS DOCUMENT: Insert the substantial completion date in the blank. Please
insert the date that is at least 30 days before Owner’s deadline for the Project. This allows 30 days
between Substantial Completion and Final Completion]
,2
3.
Section 4.1.2: Interim milestones.
[NOTE TO USERS OF THIS DOCUMENT: If there are interim milestones, fill in the information below as to
each milestone. If there are no interim milestones, insert “None”.]
4.
Section 4.1.3: Per Calendar Day liquidated damages.
Dollars ($
).
[NOTE TO USERS OF THIS DOCUMENT: If liquidated damages are to be applicable to any interim
milestone dates set forth in Section 4.1.2, Section 4.1.3 in the Agreement and in this Appendix A must be
modified accordingly.]
5.
Section 4.2: Division of Project into Work Packages or not and applicability of provisions on Work
Packages or not.
[NOTE TO USERS OF THIS DOCUMENT: Insert the applicable version of Section 4.2 and delete the other
version.]
4.2
The Owner has determined that the design and construction of the Project will not be divided into Work
Packages. Accordingly, the provisions in the Contract Documents relating to Work Packages do not apply.
[OR]
4.2
The Owner has determined that the design and construction of the Project will be divided into Work
Packages. The provisions on “Work Packages” in Section 2.12 of the Operating Manual apply.
6.
Section 5.1: CMAR Design Phase Services Fee.
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Design Phase Services Agreement
Dollars ($
)
7. Section 6.1: Progress payments.
Design Development Subphase
Allocated Portion of Design Phase Services Fee
Program Development
Schematic Design
Design Development
Construction Documents
$
$
$
$
8.
Article 8 : Representatives of the Parties.
8.1
Owner’s Representatives.
8.1.1
Owner designates
(Name, address and title)
as its Senior Representative (“Owner’s Senior Representative”), which individual has the authority and
responsibility for avoiding and resolving disputes under Section 6.2 of the General Conditions.
8.1.2
Owner designates
(Name, address and title)
as its representative (“Owner’s Representative” or “OR”), which individual has the authority and
responsibility set forth in the CMAR Design Phase Services Contract Documents.
8.2
CMAR’s Representatives.
8.2.1
CMAR designates
(Name, address and title)
as its Senior Representative (“CMAR’s Senior Representative”), which individual has the authority and
responsibility for avoiding and resolving disputes under Section 6.2 of the General Conditions.
8.2.2
CMAR designates
(Name, address and title)
as its representative (“CMAR’s Representative”) which individual has the authority and responsibility set
forth in the CMAR Design Phase Services Contract Documents.
8.2.3
CMAR designates
(Name, address and title)
as its construction superintendent (“Construction Superintendent”), which individual has the authority
and responsibility set forth in the CMAR Design Phase Services Contract Documents and which
individual will participate in the Design Phase as agreed by CMAR and Owner.
8.2.4 CMAR’s representatives and Construction Superintendent, as approved by the Owner, shall not
be replaced without the Owner’s prior written approval.
CMAR
OWNER:
ARIZONA BOARD OF REGENTS
For and on behalf of
ARIZONA STATE UNIVERSITY
(Signature)
Arizona State University
Rev 11/08 Single
(Signature)
Page 4 of 12
Construction Manager at Risk
Design Phase Services Agreement
(Printed Name)
(Printed Name)
(Title)
(Title)
Date:
Date:
OWNER PROJECT MANAGER
Approval by Owner’s Facilities Capital Program Management Group project manager:
(Signature)
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Design Phase Services Agreement
CONSTRUCTION MANAGER AT RISK
DESIGN PHASE SERVICES AGREEMENT
NOTE: The information or contract provisions that go in the numbered blank spaces in this contract are
in the respective numbered paragraph in Appendix A attached hereto.
Agreement made this
day of
OWNER:
in the year
, by and between
, whose mailing address for notices is
and whose facsimile number for receipt of notices is (
and CMAR:
)
, whose mailing address for notices is
,
and whose facsimile number for receipt of notices is (
for services in connection with the following Project:
)
(1)
(name, location, general description)
In consideration for the mutual covenants and obligations contained herein, Owner and CMAR agree as
set forth herein.
ARTICLE 1
General
1.1
The Operating Manual for Construction Manager at Risk Projects (“Operating Manual”) and the General
Conditions are attached hereto as Exhibits A and B.
1.2
All terms defined in the Operating Manual or in any of the other CMAR Design Phase Services Contract
Documents will have the same meanings when used herein. If not specifically defined, terms, words, phrases
and abbreviations in the CMAR Design Phase Services Contract Documents will have their ordinary and common
meaning consistent with construction and design industry standards and technical and trade meanings.
1.3
This agreement is the CMAR Design Phase Services Contract as defined in the Operating Manual.
1.4
The CMAR Design Phase Services Contract Documents are listed in the Operating Manual.
1.5
The CMAR Design Phase Services Contract Documents are complementary and must be interpreted in
harmony so as to avoid conflict. In the event of any inconsistency, conflict, or ambiguity, the CMAR Design Phase
Services Contract Documents shall take precedence in the order in which they are listed in the definition of that
term in the Operating Manual.
1.6
The CMAR Design Phase Services Contract Documents form the entire agreement between Owner and
CMAR relating to the Design Phase of the Project. The CMAR Design Phase Services Contract Documents are
hereby incorporated by reference and are as fully binding on the parties as if repeated herein. The CMAR Design
Phase Services Contract Documents supersede all prior discussions and negotiations. The CMAR Design Phase
Services Contract Documents may be amended or modified only in writing executed by Owner and CMAR.
ARTICLE 2
Design Phase Services
2.1
The CMAR agrees to perform the CMAR Design Phase Services and to perform its obligations and to
comply with the other terms and conditions applicable to CMAR under the CMAR Design Phase Services
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Contract Documents. The Owner agrees to perform its obligations and to comply with the applicable terms and
conditions of the CMAR Design Phase Services Contract Documents.
2.2
This is a contract for CMAR Design Phase Services only. CMAR agrees to perform all CMAR Design
Phase Services. This includes all services by CMAR under the CMAR Design Phase Services Contract
Documents to be performed during the Design Phase (consisting of the traditional Program Development
subphase, Schematic Design subphase, Design Development subphase and Construction Documents subphase
of design development).
2.3
There will be a contract for construction services and the for CMAR to complete the construction work
only after Owner and CMAR agree to a Guaranteed Maximum Price and certain other matters concerning the
Construction Phase; execute the CMAR Construction Contract, which must be in the form of Attachment 2 to the
Operating Manual and must contain all the required attachments; and the other conditions described in the
second bullet of Section 1.1 of the Operating Manual are all satisfied. Until then, Owner has no obligation to
obtain the Construction Work from the CMAR, and the CMAR has no obligation to perform the Construction
Work.
ARTICLE 3
Ownership of Documents
3.1
The Owner, through its separate agreement with the Design Professional, shall own all drawings,
specifications, and other documents and electronic data furnished by Design Professional. CMAR shall have
no right or interest in such documents, except for the right to use them in rendering services during the Design
Phase and the Construction Phase.
3.2
The Owner shall own any and all Construction Cost Estimates, and all other estimates, schedules, value
engineering submissions or other work product furnished by CMAR or Design Professional to Owner.
ARTICLE 4
Contract Time
4.1
This CMAR Design Phase Services Contract applies only to the Design Phase. However, Owner desires
to obtain CMAR’s understanding and agreement to certain matters relating to Contract Time that will apply if and
when Owner engages CMAR to perform the Construction Work and the CMAR Construction Contract is executed
by Owner and CMAR. This is because Contract Time is of the essence for Owner. Therefore, CMAR
understands and agrees that if Owner engages CMAR to perform the Construction Work, then the provisions on
Contract Time in the CMAR Construction Contract attached to the Operating Manual will be completed as follows:
4.1.1
The date for Substantial Completion of the entire Construction Work will be
.
4.1.2
The interim milestones will be:
Part of the Work
Interim Milestone Date
(3)
(3)
4.1.3
The amount of liquidated damages for each Calendar Day will be
Dollars ($
(4)
).
4.2
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(5
(4)
)
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ARTICLE 5
CMAR Design Phase Services Fee
5.1
Owner shall pay CMAR a fee for CMAR Design Phase Services. The CMAR fee for CMAR Design
Dollars ($
(6)
)
(“Design
Phase
Phase Services will be (6)
Services Fee”).
5.2
CMAR’s Pre-construction Phase Services Fee is all inclusive of all amounts to be paid by Owner
for the CMAR Design Phase Services and includes, without limitation, all sales, franchise privilege, use,
consumer, income and other taxes, all fees, all insurance premiums, and all costs of complying with applicable
Legal Requirements, all of which will be paid by CMAR without reimbursement by Owner.
ARTICLE 6
Procedure for Payment
6.1
Progress Payments. For CMAR Design Phase Services, CMAR shall submit to Owner on the last
business day of each month CMAR’s application for payment based on the percentage completed for each
Design Phase subphase as agreed to by the Owner. The CMAR’s Design Phase Services Fee is broken down
among the Design Phases subphases as follows:
6.2
Design Development Subphase
Allocated Portion of Design Phase Services Fee
Program Development
Schematic Design
Design Development
Construction Documents
$
$
$
$
(7)
(7)
(7)
(7)
Interest. Payments due and unpaid by Owner to CMAR shall bear interest as provided by law.
6.3
Record Keeping and Financial Controls. For all Design Phase Services performed by CMAR and
Subcontractors, CMAR and Subcontractors shall keep full and detailed accounts and exercise such controls
as may be necessary for proper financial management, using accounting and control systems approved by the
Owner. During performance of the Design Phase Services and for five (5) years after final payment for the
Design Phase Services, the CMAR and all Subcontractors shall retain for review and/or audit by the Owner all
correspondence, meeting minutes, memoranda, electronic media, books, accounts, reports, files, time cards,
material invoices, payrolls, and any other evidence concerning all communications, direct and indirect costs and
all other matter related to the Design Phase Services. Upon request by the Owner, at any time during or after the
Design Phase Services, a legible copy or the original of any or all such records shall be timely produced by the
CMAR. Upon request by the Owner, the CMAR shall timely submit to Owner all payrolls, reports, estimates,
records and any other data concerning Design Phase Services performed or to be performed. The requirements
of this Section 6.3 shall be included in all contracts between the CMAR and its Subcontractors.
ARTICLE 7
Termination or Suspension of the CMAR Design Phase Services Contract Documents
The rights of Owner and the CMAR to terminate or suspend this CMAR Design Phase Services Contract are in
Article 7 of the General Conditions. Among other rights, the Owner has the right to terminate or suspend this
Agreement for convenience.
ARTICLE 8
Representatives of the Parties
(8)
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Design Phase Services Agreement
ARTICLE 9
Insurance and Bonding
9.1
Insurance. CMAR shall procure the insurance coverages required by Article 4 of the General Conditions.
Insurance certificates shall be submitted to Owner at the times specified in Section 4.5 of the General
Conditions.
9.2
Bonding. As of the date of this CMAR Design Phase Services Contract, CMAR represents and warrants
to Owner that it has the financial capacity needed to obtain and deliver the Payment Bond and the Performance
Bond that would be required if and when Owner and CMAR execute and deliver the CMAR Construction
Contract Documents, assuming for this purpose only that the Guaranteed Maximum Price would be equal to the
portion of Owner’s Project Budget available for payment of the Construction Work. CMAR agrees that it will
maintain this bonding capacity continuously until such time as Owner determines whether to enter into the CMAR
Construction Contract with CMAR. CMAR shall continuously monitor its bonding capacity to assure that it
complies with this provision. If at any time CMAR becomes aware that it does not have this bonding capacity,
CMAR shall promptly notify Owner in writing addressed to the Owner Representative.
ARTICLE 10
Other Provisions
10.1
Any Subcontractors submitted and approved as pre-qualified by Owner and any Early Selected
Subcontractors shall not be replaced without the Owner’s prior written approval.
10.2
CMAR represents that it has the necessary financial resources to fulfill its obligations under the CMAR
Design Phase Contract Documents. If Owner agrees to execute and deliver the CMAR Construction Contract,
CMAR represents it has the necessary financial resources to fulfill its obligations under the CMAR Construction
Contract Documents (including, without limitation, the financial capacity to obtain and delivery the required
Payment Bond and Performance Bond). Further, CMAR represents it has the necessary corporate approvals to
execute the CMAR Design Phase Services Contract Documents and perform the CMAR Design Phase Services.
ARTICLE 11
Additional Approvals of Arizona Board of Regents and Others
The Project has been given an initial approval by the Arizona Board of Regents (“ABOR”). This approval permits
the Owner to proceed through a portion of the design phase of the Project. A second ABOR approval will be
required to authorize completion of the design phase. A third ABOR approval is required before Owner may
legally obligate itself to construct and pay for the construction of the Project. In addition to the ABOR approvals,
approvals by legislative bodies or others may also be required. Notwithstanding anything in the CMAR Design
Phase Services Contract Documents to the contrary, any obligation of Owner under the CMAR Design Phase
Services Contract Documents to complete the Design Phase and to construct and pay for construction of the
Project is subject to Owner obtaining the above-described approvals.
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Rev 11/08 Single
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CMAR
OWNER:
ARIZONA BOARD OF REGENTS
For and on behalf of
ARIZONA STATE UNIVERSITY
(Signature)
(Printed Name)
(Title)
Date:
Arizona State University
Rev 11/08 Single
(Signature)
(Printed Name)
(Title)
Date:
Page 10 of 12
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Design Phase Services Agreement
APPLIES TO EACH PROJECT
EXHIBIT A
TO
CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES AGREEMENT
OPERATING MANUAL FOR CONSTRUCTION MANAGER AT RISK PROJECTS
Arizona State University
Rev 11/08 Single
Page 11 of 12
Construction Manager at Risk
Design Phase Services Agreement
APPLIES TO EACH PROJECT
EXHIBIT B
TO
CONSTRUCTION MANAGER AT RISK DESIGN PHASE SERVICES AGREEMENT
GENERAL CONDITIONS
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