220083-CONTRACT PH2.PDF

DocuSign Envelope ID: CD542DD0-8919-4910-8549-C6527D346D8B

CONSTRUCTION MANAGEMENT AT RISK (CMR)

PHASE II

CONSTRUCTION SERVICES

Emergency Management Facility

FACILITIES MANAGEMENT DEPARTMENT
By and Through the OFFICE of PROCUREMENT SERVICES

Contract # 220083-CMR
Serial # 220083-CMR
C-73-

MARICOPA COUNTY, ARIZONA

Emergency Management Facility Serial # 220083-CMR
Contract between Maricopa County and Kitchell Contractors Inc., of Arizona Page # 1

DocuSign Envelope ID: CD542DD0-8919-4910-8549-C6527D346D8B

CONSTRUCTION MANAGEMENT AT RISK
PROFESSIONAL SERVICES AGREEMENT
PHASE II

CONSTRUCTION SERVICES

BETWEEN MARICOPA COUNTY, ARIZONA, OWNER, AND
Kitchell Contractors Inc., of Arizona, PROFESSIONAL CMR.
FOR CONSTRUCTION SERVICES FOR
Emergency Management Facility AT Maricopa County, AZ

Whereas, Maricopa County (hereinafter the “County” or “Owner”) desires to construct Emergency
Management Facility at Maricopa County, and

Whereas, it is in the best interests of the County to obtain professional construction management services
in order to insure quality, timely and valued construction from a pre-approved professional Construction
Manager at Risk (CMR), and

Whereas, the COUNTY has competitively selected the Construction Manager at Risk in accordance in
following the procedures in Section 34-603, Arizona Revised Statutes, and the Maricopa County
Procurement Code from several firms, and

Whereas the selected firm will provide professional CMR and construction management services for the
Emergency Management Facility Project as directed by the County.

Whereas the Facilities Management Department is a part of the Maricopa County Regional Development
Services constellation, the Assistant County Manager will, from time to time, participate or assist in the
timely execution of various aspects of the design, construction, and completion management on behalf of
the Maricopa County Manager.

This agreement made this 27th day of February, 2023, by and between Maricopa County (hereinafter
called the “Owner”) and Kitchell Contractors Inc. of Arizona, hereinafter called the “CMR” as Construction
Manager at Risk for Phase II Construction Services.

Witnesseth, that the Owner and the CMR, for the considerations herein set forth, agrees as follows:
Construction Agreement
Construction Management at Risk Phase II

The Scope of this Project is defined as follows:

The construction of Emergency Management Facility, and as further outlined in Exhibit A, attached
hereto and incorporated herein by reference as though fully set forth herein.

(22M

Emergency Management Facility Serial # 220083-CMR
Contract between Maricopa County and Kitchell Contractors Inc., of Arizona Page #2

DocuSign Envelope ID: CD542DD0-8919-4910-8549-C6527D346D8B

TABLE OF CONTENTS PAGE #
ARTICLE 1 - SCOPE OF WORK....sessssssssssssessssssssseessnsessnceesaneenesenssaessnntassaensnansnneennenss 5

CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP) «0.1... sess 5
ARTICLE 2 — DEFINITIONS ...scsssssssssssssssssesssseccssseersnseesaseeeaseeconeensseessseessaesssnnensnseenaneees 5
ARTICLE 3 - CMR’S SERVICES AND RESPONSIBILITIES. .......+-s:ssssesstesssessasesssessseess 9
ARTICLE 4 - PRIORITY OF PROVISIONS ..ssssssssssssssssssseesseeseseesseesssseensnnensneennansensaees 13
ARTICLE 5 - DESIGN PROFESSIONAL’S AUTHORITY. ....-.sssssssstssssssesssesssssensneesssees 14
ARTICLE 6 - TIME FOR PERFORMANCE ...sssssssessssssessesesteeeeneersesssnteesasensnsenssnsensnnens 14

ARTICLE 7 - CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS

deueeaeseateseueenecuaneesansaaeecueceeaueuacnscanseaessseseneaeauenaensausaeessneenuessensnsusanenseeaanenses 17
ARTICLE 8 - PAYMENTS AND COST OF THE WORK ......ccssccseseeentereeeesenntesenenenseeses 20
ARTICLE 9 - CONTINGENCY .....cccssseecessesseeeesenensneeencsaeenneneeseaneseeneenuseneantesseensaeeesages 25
ARTICLE 10 - DISCOUNTS, REBATES AND REFUNDS. ......sccsseeeeeeeereeetseeeenenesenses 26
ARTICLE 11 - SUBCONTRACTS AND PURCHASE ORDERS ......csesecseeeeesneesnseenses 26
ARTICLE 12 - INSURANCE ......ccsssesessseseensaensneeeesceeensneessanessuaeensneeeneenerseeunaperecnensags 26
ARTICLE 13 - INDEMNIFICATION AND INSURANCE .....cssseecsereeeneeneenernesseteenensnenss 30
ARTICLE 14 - PERFORMANCE / PAYMENT BOND AND QUALIFICATIONS OF

SURETY ..eccessccscssseeseeseeeeeeseenssneusensnesanenseessseessensaeessasseeasaensanesenseaenssesseees 30
ARTICLE 15 - INDEPENDENT CMR......c:ccsscreseeeeseneneseasneeneeesseeeenseeseaneenernnersesesseesenege 32

ARTICLE 16 - ACCESS TO AND RETENTION OF PROJECT RECORDS FOR THE

PURPOSE OF AUDIT AND/OR OTHER REVIEW. ......cccssceseeeserereerenes 32
ARTICLE 17 - AS BUILT RECORDS .......cceesessctcccnesecesenneeseeneeseeeeenseneeeeeneneenseneegsgnnenens 33
ARTICLE 18 - CMR’S RESPONSIBILITY FOR THE WORK. .......ccscccssreeserneeneeeetenenes 33
ARTICLE 19 - OCCUPATIONAL HEALTH AND SAFETY ......ccccssseesseesecneneseertereeeneras 34
ARTICLE 20 - PERMITS, LICENSES AND IMPACT FEES.......ccccsscssseteceeeeeernenneeees 35
ARTICLE 21 — PERSONNEL 1... cccececssestesecsssenenaseeneneneeaneseeseneenenenenseeasaareererscasanensesensenens 35
Contract between Maricopa County and Kitchell Contractors Inc., of Arizona Page #3

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ARTICLE 22 - CMR'S WARRANTIES. .....ccseceserenessnesseeesseeenenenessaesssneenssenessnenessenennenee 36
ARTICLE 23 - DEFECTIVE WORK. ......csscsssececsreenseneenereeseeseesteesacaueneneesreeesneenenneneneeees 36
ARTICLE 24 - CONSTRUCTION SIGNAGE .,.....cccccesceseeesersueestanerenessneneneenesseenserunsenen 37
ARTICLE 25 - OWNERSHIP OF CONTRACT DOCUMENTS ....csecestssteseetetenseessessenaes 38
ARTICLE 26 - CMR'S REPRESENTATIVE .....cccsssesseectesenesnenseeesneseeeseeeseenseensnesenentenans 38
ARTICLE 27 - OWNER’S RIGHT TO TERMINATE CONTRACT. ......cccsssssssesesesessees 38
ARTICLE 28 - RESOLUTION OF DISPUTES .......cssseeeceeeseeereeesesenereceneessesenseeenseenensees 39
ARTICLE 29 — NOTICES ......cccccseesesesseeessneessseaeessasenseeeeseasenueeesaeaunsnaessneseesenenseneessaaeenenes 39
ARTICLE 30 - REQUIREMENTS FOR CONTRACTS WITH SBE GOALS ......:s000 40
ARTICLE 31 - OTHER TERMS & CONDITIONS ....cccseccesseeeeseereeseneeesnensensseesenensenennens 40
ATTACHMENT A... ccccssccsseccseeeeseeesesenecneeenssansecoresseanenseeesaneasessuaaseaueannenessnnenseerenenanenened 46
EXHIBIT A - GMP PROPOSAL & SUPPORTING DOCUMENT S......:sssssssscerereteenesees 47
EXHIBIT B— CONTRACT SCHEDULE ......csccccssseeesenssseressenenesereentenseuseesnrensenensnananeres 48
EXHIBIT C - INSURANCE CERTIFICATE(S) ..ccsccescsseneeeesennstenernseeeseeesnensnssneesnenseeaes 49
EXHIBIT D - PAYMENT BOND .......ccccccscenssneneneneesneeseseeesnnrenesnuaensecennaeeensanenseeaeesansenens 50
EXHIBIT E - PERFORMANCE BOND ......cccscseseeeensennesneeneneneesecansnracenaeennenenseaensranensnes 51

EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM . 52

EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION ......cccsscssseesseeeesenenenersssneansaene 54
EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN .....cscceeseseeeeeseeteertenscnersses 58
EXHIBIT I - LEGAL WORKER CERTIFICATION .......ccceeseseecensseenenensneeesenunseneeenesenans 59
Emergency Management Facility Serial # 220083-CMR

Contract between Maricopa County and Kitchell Contractors Inc., of Arizona Page #4

DocuSign Envelope ID: CD542DD0-8919-4910-8549-C6527D346D8B

ARTICLE 1 - SCOPE OF WORK

The CMR shall furnish professional Construction Management at Risk Services for the Project described
in Exhibits A and B attached hereto and incorporated herein by this reference upon issuance of CMR’s

Notice-to-Proceed by the Owner or Owner’s representative.

The CMR shall furnish the following Services as specifically authorized by “CMR’s Notice to Proceed”
issued by the Facilities Management Department.

Ll

The contract price elements are as follows:

CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP)

a. Construction $17,161,915.00

b. General Conditions $1,396,553.00

c. Construction (Owner) Contingency $1,064,517.00

d. CMR’s Fee $447,208.00

e. CMR’s Overhead $435,808.00

f. Bonds $338,226.00

g. Builders Risk Insurance $51,904.00

h. General Liability Insurance $380,033.00

i. Taxes $1,078,702.00

j. Sub Default Insurance Included

k. Escalation Included
TOTAL GMP (ALL INCLUSIVE) $22,354,866.00

1.2 CMR hereby agrees to furnish all of the labor, materials, equipment services and incidentals
necessary to perform all of the work or reasonably inferable from the Contract Documents
including Drawings, Specifications and Addenda for the Project known as the Emergency
Management Facility, prepared by Dekker Perich and Sabatini, the Design Professional.

ARTICLE 2 — DEFINITIONS

2.1 AUTHORITY HAVING JURISDICTION: The Maricopa County Planning and Development
Department

2.2 BASELINE PROJECT SCHEDULE: The initial schedule attached hereto and incorporated into
Exhibit “B”.

2.3 BOARD OF SUPERVISORS: The Maricopa County Board of Supervisors, its successors and
assigns.

2.4 COUNTY OR OWNER: Maricopa County, Arizona, a political subdivision of the State of Arizona,
which is the party hereto for which this Contract is to be performed. In all respects hereunder,
COUNTY performance is pursuant to the COUNTY’s position as the Owner of a construction
Project. In the event COUNTY exercises its regulatory authority as a governmental body, the
exercises of such authority and the enforcement of any rules, regulations, laws and ordinances shall
be deemed to have occurred pursuant to the COUNTY’s authority as a governmental body and shall
not be attributable in any manner to COUNTY as a party to this contract.

2.5 CHANGE ORDER: A written document ordering a change in the Contract Price or Contract Time
or a material change in the Work as determined by the Owner.

2.6 CONDITIONAL NOTICE TO PROCEED: Not applicable herein.

CC

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CONSTRUCTION PROJECT MANAGER: An employee of Owner or agent of the Owner
assigned by the Director to monitor the construction and design services to be performed under this
Agreement and the construction of the Project as a direct representative of Owner. The Director
reserves the right, not to assign a Construction Project Manager to the project. In such case the
Owner’s Project Manager will assume all Owner responsibilities for the project.

CONTRACT: This Construction Agreement.

CONTRACT DOCUMENTS: The Project Manual (including this Agreement and its Exhibits,
Attachments and Forms including the General Conditions and General Requirements), drawings
and specifications, the Request For Qualifications and/or proposals, as applicable and CMR’s
response thereto titled “Guaranteed Maximum Price Proposal” dated Monday, February 13, 2023
and herein attached as Exhibit A (as negotiated and accepted by the Owner), any Addenda to the
Project Manual, the record of the contract award by the Board of Supervisors, the Contract, the
Performance Bond and Payment Bond, the Notice of Award, the Notice(s) to Proceed, the Purchase
Order(s) and all agreed upon modifications issued after execution of the Contract are the documents
which are collectively referred to as the Contract Documents as referenced herein.

CONTRACT PRICE: The amount established in the Contract as the Guaranteed Maximum Price
(GMP), as may be amended, if so warranted, by a Change Order issued in conformity with the
Contract Documents.

CONTRACT TIME: The time between the Project initiation date specified in the Notice to Proceed
for this phase and final completion, including any milestone dates thereof, established in the
contract, as may be amended by any change order.

CMR: An individual, partnership, corporation, association, joint venture, or any combination
thereof, which has entered into the contract with the Owner for construction of the Work. The
Construction Manager at Risk for this Project is Kitchell Contractors Inc., of Arizona.

DAY: A Day is defined as a 24-hour period beginning at 12:01 a.m. and ending at Midnight,
Arizona standard time.

DESIGN PROFESSIONAL: The individual, partnership, corporation, association, joint venture, or
any combination thereof, of properly registered professional architects and/or engineers, which has
entered into an agreement to provide professional services for this Project. For purposes of this
Contract Design Professional and A/E may be used interchangeably.

DIRECTOR OF FACILITIES MANAGEMENT DEPARTMENT: The Director of this
Department, of Maricopa County, Arizona, having the authority and responsibility for management
of the specific Projects authorized under this Agreement.

FEE: CMR Profit

FIELD ORDER or SUPPLEMENTAL INSTRUCTION: A written order which directs minor
changes or interpretations of the Contract Documents in accordance with Article 7, but which does
not involve a change in the Contract Price or Contract Time.

FINAL COMPLETION: The date certified by the Design Professional and Owner in the Final
Certificate of Payment in which all conditions and requirements of any permits and regulatory
agencies have been satisfied; and the documents (if any) required to be provided by CMR have
been received by the Owner; and to the best of Design Professional’s knowledge and belief the
Project has been fully completed in accordance with the terms and conditions of the Contract
Documents.

GENERAL CONDITION ITEMS: Includes, but is not limited to the following types of costs for
the CMR during the construction phase: payroll costs for Project Manager or Construction Manager

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but not both for Work conducted at the site, payroll costs for the superintendent and full-time
general foremen, payroll costs for management personnel resident and working on the site, workers
not included as direct labor costs engaged in support (e.g. loading/unloading, clean-up, etc.),
administrative office personnel, costs of offices and temporary facilities including office materials,
office supplies, office equipment, minor expenses, utilities, fuel, sanitary facilities and telephone
services at the site, costs of liability insurance premiums not included in labor burdens for direct
labor costs, costs of bond premiums, costs of consultants not in the direct employ of the CMR or
Subcontractors, fees for permits and licenses. Certain limitations and exclusions are described in
the General Conditions.

GUARANTEED MAXIMUM PRICE CONSTRUCTION CONTRACT: The method of
construction contracting whereby the CMR provides design phase consulting services (pre-
construction services) and management responsibility for the Project (general conditions). The
CMR’s fee is a percentage of the direct costs. All subcontracts are generally awarded by the CMR
based on competitive bids received in response to invitations to bid issued by the CMR to those
entities on an Owner pre-approved, pre-qualified list of subcontractors. The total price paid to the
CMR is either (a) the cost plus the fee or (b) the Guaranteed Maximum Price (GMP), whichever is
less. This contract utilizes the Guaranteed Maximum Price as the method of compensation. The
fee is for all the CMR’s services, including construction management services, and is calculated as
a percentage of the actual costs. Thus, if the actual costs of the Project plus the percentage of cost
fee are less than the GMP, the fee will reduce accordingly.

INSPECTOR: An employee of the Owner of Maricopa County, Arizona, assigned by the Director
to make observations of work performed by a CMR.

LOOK AHEAD SCHEDULE: A schedule for a period of 3 weeks ahead of the current date to be
delivered during regular Project meetings.

MATERIALS: Materials incorporated in this Project, or used or consumed in the performance of
the Work.

NOTICE-TO-PROCEED: One or more written notices to CMR authorizing the commencement of
Work.

THE OFFICE OF PROCUREMENT SERVICES: The Maricopa County Department with
authority for all procurement activity within Maricopa County.

OWNER’S CONTINGENCY: The GMP may include an Owner Contingency in an amount
agreed to between the Owner and the CMR. Subject to the terms of the Contract Documents and
with prior written Owner approval through a “Contingency Use Approval” form, CMR shall be
entitled to utilize Owner Contingency for increases in the scope of the work that could not have
been reasonably anticipated. The Owner may disallow such Owner Contingency use and deny
reimbursement in the absence of prior written notice or if the Owner determines that the use was
not consistent with the Contract Documents or the scope of the work should have been
reasonably anticipated. CMR may not apply, use, or allocate any amounts from the Owner
Contingency for any of the following:

a material breach or material failure to perform by the CMR;

© to pay any subcontractor, vendor, or any party that is liable for or responsible at law or
under the Contract; or

e for any non-allowable costs of the work

The Owner Contingency may also be used at the discretion of the Owner to cover any increases
in Project costs that resulted from Owner directed changes. The OWNER reserves the right to

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issue a deductive Change Order at any point during the Project, as agreed to by the CMR,
deducting any or all remaining Owner Contingency from the GMP. Upon Substantial
Completion the Owner shall issue a deductive Change Order for the remaining Owner
Contingency balance.

OVERHEAD: All CMR home office expenses.

PLANS AND/OR DRAWINGS: The official graphic representations of this construction Project
which are a part of the Contract Documents.

PRELIMINARY WORK: not applicable.

PRICING DOCUMENTS: The set of documents and specifications upon which the GMP contract
is negotiated is comprised of the following: (i) the Owner approved Contract Documents, (ii) the
Estimated and Actual Selected Qualified Bids CMR’s Direct Construction Cost (including unit
prices, quantities and explanatory notes), (iii) the CMR’s General Condition Items, (iv) schedules
developed by the CMR and approved by the Owner, and any other documents or exhibits utilized
to derive the GMP.

PROJECT: The construction, alteration or repair, and all services and incidents thereto, of a
Maricopa County facility as contemplated and budgeted by the Owner as described in the Contract
Documents, including the work described therein.

PROJECT INITIATION DATE: the date of actual deployment onto the site of Work for the Project
which may be equal to or after the date of Notice to Proceed.

PROJECT MANAGER: An employee of the Owner or agent of the Owner assigned by the Director
of the Department of Facilities Management to monitor the work to be performed under this
Agreement and the construction of a Project as a direct representative of the Owner and who is the
representative of the Director concerning the Contract Documents.

PROJECT MANUAL: The official documents setting forth information and requirements; contract
forms, bonds, and certificates; general and supplementary conditions of the Contract Documents;
the specifications; and the plans and drawings of the Project.

RESIDENT PROJECT REPRESENTATIVE: An authorized representative of the Design
Professional on the Project.

SCHEDULE: The document setting for the timeline and milestones for this Project (see Exhibit B).

SCHEDULE OF VALUES: A schedule showing the portion of the Work to be used to make
payment of the allotted funds for the Project based upon the GMP and Project schedule.

SUBCONTRACTOR: A person, firm or corporation having a direct contract with CMR including
one who furnishes material worked to a special design according to the Project Manual for this
work, but does not include those who merely furnish material not so worked.

SUBMITTAL SCHEDULE: The schedule for initiation and completion of submittals.

SUBSTANTIAL COMPLETION: That date on which, as certified in writing by Design
Professional, the Work, or a portion thereof designated by the Owner in its sole discretion, is ata
level of completion in substantial compliance with the Contract Documents such that all conditions
of permits and regulatory agencies have been satisfied and the Owner or its designee can enjoy
beneficial use or occupancy and can use or operate it in all respects for its intended purpose(s).

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SURETY: The surety company or individual which is bound by the performance bond and payment
bond with and for CMR who is primarily liable, and which surety company or individual is
responsible for CMR’s acceptable and timely performance of the work under the contract and for
the payment of all debts pertaining thereto in accordance with Arizona Revised Statutes. All surety
companies or individuals shall be authorized to conduct suretyship business under Arizona Law
and have an Arizona Resident Agent.

WORK: The totality of the obligations, including construction and other services required by the
Contract Documents, whether completed or partially completed, including all labor, materials,
equipment and service provided or to be provided by CMR to fulfill CMR’s obligations. The work
may constitute the whole or a part of the Project.

WRITTEN NOTICE: As set forth in Article 29 herein.

ARTICLE 3 - CMR’S SERVICES AND RESPONSIBILITIES

INTENTION OF OWNER: It is the intent of Owner to describe in the Contract Documents a functionally
complete Project (or part thereof as applicable) to be constructed in accordance with the Contract
Documents. Any work, materials or equipment that may reasonably be inferred from the Contract
Documents as being required to produce the intended result shall be supplied by CMR. When words,
which have a well-known technical or trade meaning, are used to describe work, materials or equipment,
such words shall be interpreted in accordance with that meaning. Reference to standard specifications,
manuals, or codes of any technical society, organization or association, or to the laws or regulations of
any governmental authority, whether such reference be specific or by implication, shall mean the latest
standard specification, manual, code or laws or regulations in effect at the time of permit issuance. Owner
shall have no duties other than those duties and obligations set forth within the Contract Documents.

THE CMR: Shall promptly order and expedite all materials and other parts of the Work to be readily
available as and when required or needed for or in connection with the construction, furnishing and
equipping of the improvements. No excess materials are to be purchased, and the Owner shall not be
charged for any materials acquired but not used in the Project, and any materials remaining at the end of
the Project are to be removed at CMR’s expense. Shall plan, record, and update, the construction schedule
of the Project. The Schedule shall indicate the dates for the commencement and completion of the various
stages of construction and shall be revised as required by the Contract Documents and the condition of
the Work. The Progress Schedule shall encompass all of the work of all trades necessary for the
construction of the Project and shall be sufficiently complete and comprehensive to enable progress to be
monitored on a weekly basis. This schedule is in addition to the look ahead schedule as discussed in
Article 2.2.3.

SUPERINTENDENCE AND SUPERVISION:

2.46.1 The orders of Owner are to be given through the Owner or Owner’s Representative, which
instructions are to be strictly and promptly followed in every case. CMR shall keep on the Project
site during its progress, a competent, full time, English speaking SUPERINTENDENT or
PROJECT MANAGER (hereinafter referred to as SUPERINTENDENT) and any necessary
assistants, all satisfactory to the Owner. The SUPERINTENDENT shall not be changed except
with the written consent of Owner, unless the SUPERINTENDENT proves to be unsatisfactory
to CMR and ceases to be in its employ. CMR shall give efficient supervision to the work, using
its diligent skill and attention.

2.46.2 Daily, CMR’s SUPERINTENDENT shall record, at a minimum, the following information in a
bound log: the day; date; weather conditions and how any weather conditions affected the
progress of the work; time of commencement of work for the day; the work being performed;
materials, labor, personnel, equipment and subcontractors at the Project site; visitors to the
Project site including representatives of Owner, Design Professional, and regulatory authorities;
any special or unusual conditions or occurrences encountered; and the time of termination of

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work for the day. All information shall be recorded in the daily log. The daily log shall be kept
on the Project site and shall be available at all times for inspection and copying by the Owner
and Design Professional.

The CMR, Design Professional and Owner shall meet at least every week or as otherwise
determined by the Owner and/or Design Professional during the course of the work to review and
agree upon the work performed to date and to establish the controlling items of work for the next
three weeks. The CMR shall publish, keep, and distribute minutes and any comments thereto of
each such meeting.

CMR shall supervise and direct the work competently and efficiently, devoting such attention
thereto and applying such skills and expertise as may be necessary to perform the Work in
accordance with the Contract Documents. CMR shall be solely responsible for the means,
methods, techniques, sequences and procedures of construction.

CMR TO CHECK DRAWINGS, SPECIFICATIONS AND DATA: CMR shall use reasonable effort to

verify all dimensions, quantities and details shown on the drawings, specifications or other data received
from Design Professional, and shall notify Owner and Design Professional of all errors, omissions and
discrepancies found therein within three (3) calendar days of discovery. CMR will not be allowed to take
advantage of any error, omission or discrepancy. CMR shall not be liable for damages resulting from
errors, omissions or discrepancies in the Contract Documents unless CMR recognized or should have
reasonably inferred such error, omission or discrepancy and failed to report it to Design Professional.

DIFFERING SITE CONDITIONS:

2.48.1

2.48.2

2.48.3

In the event that during the course of the work, CMR encounters an underground utility
that was not shown on the Contract Documents; or subsurface or concealed conditions at
the Project site which differ materially from those shown on the Contract Documents or
from those ordinarily encountered and generally recognized as inherent in work of the
character called for in the Contract Documents; or unknown physical conditions of the
Project site, of an unusual nature, which differ materially from that ordinarily encountered
and generally recognized as inherent in work of the character called for in the Contract
Documents, CMR, without disturbing the conditions and before performing any work
affected by such conditions, shall, no later than close of next business day after their
discovery, notify the Owner and Design Professional in writing of the existence of the
aforesaid conditions. Design Professional shall, within one (1) business day after receipt
of CMR’s written notice, investigate the site conditions identified by the CMR. If, in the
opinion of Owner and Design Professional, the conditions do materially so differ and cause
an increase or decrease in CMR’s cost of, or the time required for, the performance of any
part of the work, whether or not charged as a result of the conditions, Design Professional
shall recommend an equitable adjustment to the contract price, or the Contract Time, or
both, which is subject to written approval by the Owner. If Design Professional, Owner,
and CMR cannot agree on an adjustment in the contract price or Contract Time, the
adjustment shall be determined by the Owner in accordance with Article 28 below.

No request by CMR for an equitable adjustment or change to the contract price or Contract
Time under this provision shall be allowed unless the CMR has given written notice
detailing the facts for such request in a reasonable time (not exceeding thirty (30) days
from when the CMR knew or should have reasonably inferred of such conditions) in
accordance with the provisions of this Section.

No request for an equitable adjustment or change to the contract price or Contract Time for
different site conditions shall be allowed if made after the date certified by Design
Professional as the date of Substantial Completion.

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SUBMITTALS:

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2.49.7

2.49.8

2.49.9

The Design Professional has identified the basis of design for various equipment
throughout the technical specifications. Should the CMR elect to offer alternative
equipment which has the desired essential characteristics and which is listed as an equal in
the technical specifications, the CMR shall be responsible for any and all necessary
redesign, reengineering, remedial construction, permitting, as-builts and all related costs.
The CMR may be required to provide a deferred submittal if the alternative equipment has
any design deviations from the equipment identified as the basis of design.

CMR shall submit submittals (including but not limited to shop drawings, product samples,
product data, warranties, closeout submittals, reports and photographs) as required by the
General Conditions (Section 00700), General Requirements, and specifications. The
submittals serve as the CMR’s coordination documents and demonstrate the suitability,
efficiency, technique of manufacture, installation requirements, detailing and coordination
of specified products, components, assemblies and systems, and shall evidence compliance
or noncompliance with the Contract Documents. The CMR’s submittals are not part of the
Contract Documents but are documents prepared and utilized by the CMR to coordinate
the work.

Within ten (10) calendar days after the date of the Notice to Proceed, CMR shall submit to
Design Professional and Owner a list of all submittals to be required. Within twenty (20)
calendar days of the date of the Notice to Proceed, CMR shall submit to Design
Professional and Owner a comprehensive list of items for which submittals are to be
submitted and shall identify the critical items, stating the dates for submittals and approval
of submittals. Approval of this list (the Submittal Schedule) by Design Professional shall
in no way relieve CMR from submitting complete and timely submittals as required by the
Contract Documents and providing services, products, materials, equipment, systems and
assemblies, fully in accordance with the Contract Documents.

After the approval of the submittal schedule, CMR shall promptly request submittals from
the various manufacturers, fabricators, and suppliers.

CMR shall thoroughly review and check the submittals and timely submit them to the
Design Professional in accordance with the requirements for such submittals specified in
Division 1 of the specifications. Each submittal and required copy thereof shall indicate
the CMR’s review of that submittal in the form required by the Contract Documents.

The CMR shall maintain a Submittal Log which shall include, at a minimum, the date of
each submittal, the date of any resubmittal, the date of any approval or rejection, and the
reason for any approval or rejection.

If the submittals indicate deviations or departures from the requirements of the Contract
Documents, CMR shall make specific mention thereof in its letter of transmittal. Failure
to point out such deviations or departures shall not relieve CMR from its responsibility to
comply with the Contract Documents.

The Design Professional shall have no duty to review partial or incomplete submittals
except as may be provided otherwise within the Contract Documents.

Provided such Submittals conform to the approved Submittal schedule, CMR shall allow
the Design Professional up to fourteen (14) calendar days from the date received by the
Design Professional for review and approval of the submittals, unless said Submittals are
rejected by Design Professional for material reasons or the Submittals are of substantial
building systems which require more time for thorough review. Design Professional’s
approval of Submittals will be general and shall not relieve CMR of responsibility for the

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accuracy of such drawings, nor for the proper fitting and construction of the work, nor for
the furnishing of materials or work required by the Contract Documents. No work for
which submittals are required shall be performed until said Submittals have been approved
by Design Professional. Approval shall not relieve CMR from responsibility for errors or
omissions on the Submittals or for compliance with the requirements of the Contract
Documents.

2.49.10 No review or approval will be given to partial Submittals for items, which interconnect
and/or are interdependent where necessary to properly evaluate the Submittal. It is CMR’s
responsibility to assemble the Submittals for all such interconnecting and/or interdependent
items, check them and then make one Submittal to Design Professional along with its
comments as to compliance, noncompliance, or features requiring special attention.

2.49.11 Additional information provided by the CMR on any Submittal shall be typewritten or
lettered in ink.

2.49.12 CMR shall submit the number of copies required by the Contract Documents plus the
number required by jurisdictional authorities (when submittals are to be made to such
authorities). Resubmissions of Submittals shall be made in the same quantity until final
approval is obtained from Design Professional.

2.49.13 CMR shall keep one set of Design Professional approved Submittals at the Project site at
all times.

FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS:

2.50.1 The entire responsibility for establishing and maintaining line and grade in the field lies with
CMR. CMR shall maintain an accurate and precise record of the location and elevation of
all pipe lines, conduits, structures, manholes, handholds, fittings and other
accessories/features and shall prepare a complete site survey sealed by an Arizona registered
Professional Surveyor which shall be submitted as a Project record document at the time of
requesting final payment. Final surveys shall be submitted in hardcopy and as an electronic
media submittal prepared in accordance with requirements for electronic media submittals
as specified elsewhere in the Project Manual. The cost of all such field layout and recording
work is included in the Contract Price for the Project.

2.50.2 CMR shall maintain in a safe place at the Project site, one record copy of all drawings, plans,
specifications, addenda, written amendments, change orders, field orders, submittals and
written interpretations and clarifications in good order and annotated to show all changes
made during construction. Each of these documents shall be clearly marked by CMR as
“Project Record Documents”. These Project Record Documents together with all approved
samples and a counterpart of all approved Submittals shall be available at all times to Design
Professional for reference. Upon final completion of the Project and prior to Final Payment,
these Project Record Documents, including Submittals and other Project Record Documents
required elsewhere in the Project Manual and specifications shall be delivered to the Owner
in an electronic media as required by the Owner.

2.50.3. Prior to, and as a condition precedent to Final Payment, the CMR shall submit to Owner,
CMR’s record drawings or as-built drawings acceptable to Design Professional. Record
drawings/as-builts will be delivered on electronic media, CD preferred, in AutoCAD format
with all external references bound and PDF format.

2.50.4 Prior to, and as a condition for substantial completion, the CMR shall deliver to Design
Professional and have approved by the Design Professional and delivery of the same to the
Owner an air balance report, all equipment data, along with its recommended spare parts
list, manufacturer’s warranties (separately) and operations and maintenance manuals as may
be required within the Project Manual for the Owner’s employees and agents to maintain

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4.1

4.2

and operate any equipment provided as part of the work. Submission of the above
documents shall include: (1) one electronic copy of the manuals, tabbed, bookmarked and
searchable in one complete document, in PDF format.

INSPECTION AND TESTING:

2.51.1 Design Professional and Owner shall have reasonable access to the work, and CMR shall
provide the Design Professional and Owner with the facilities described in the
specifications, drawings, and solicitation for such access and for inspecting, measuring and
testing.

2.51.1.1Should the Contract Documents, Design Professional’s instructions, any laws,
ordinances, or public authority require any of the Work to be specially tested or
approved, CMR, shall update and provide weekly for the Owner and Design
Professional a three (3) week Look-Ahead Schedule denoting all activities to be
performed and highlighting those that need testing and approval. If the testing or
approval is to be made by an authority other than Owner, timely notice shall be
given of the date fixed for such testing. Testing shall be made promptly, and where
practicable, at the source of supply.

2.51.1.2If any of the Work which requires approval is covered up without approval or
consent of Authority Having Jurisdiction, it must, if required by the Authority
Having Jurisdiction, be uncovered at CMR’s cost for examination and properly
restored to the satisfaction of the Design Professional and Owner.

2.51.1.3Should reexamination of any of the Work be ordered by Design Professional or
Owner for any reason other than that specified in 3.8.1.2, the Work must be
uncovered by the CMR. If such work is found to be in accordance with the
Contract Documents, Owner shall pay the cost of reexamination and replacement
by means of a Change Order. If such work is not in accordance with the Contract
Documents, CMR shall pay such cost to be deducted from the CMR’s fee at no
additional cost to Owner and no extension of time will be granted.

2.51.2 No inspector, employee or agent of the Owner shall have the authority to permit deviations
from, nor to modify any of the provisions of the Contract Documents nor to delay the
contract by failure to inspect the materials and work with reasonable promptness without
written permission and instruction by the Owner.

2.51.3 The payment of any compensation, whatever may be its character or form, or the giving of
any gratuity or the granting of any favor by CMR to any inspector, directly or indirectly,
is strictly prohibited, and any such act on the part of the CMR will constitute a breach of
this contract.

TAXES: CMR shall pay all applicable sales, consumer, use and other taxes required by law. CMR
is responsible for reviewing the pertinent state statutes and regulations involving state taxes and
complying with all requirements.

ARTICLE 4 - PRIORITY OF PROVISIONS

The Contract Documents shall be interpreted so as to eliminate inconsistencies or conflicts, but in
the event of any conflict, requirements for greater quantity and/or more expensive work indicated
shall govern such interpretation.

Anything shown on the drawings and not mentioned in the specifications or mentioned in the
specifications and not shown on the drawings shall have the same effect as if shown or mentioned
respectively in both. In the event of a conflict among the Contract Documents, the most stringent
requirements applicable to the CMR shall control.

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5.2

5.3

5.4

5.5

5.6

5.7

6.1

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In case of conflicts between the provisions of this Contract, any ancillary documents executed
contemporaneously herewith or prior hereto, or any other of the Contract Documents, the
provisions of this Contract (including all Exhibits) shall prevail in the order of preference stated in
the General Conditions (See § 1.1.7).

The organization of the Specifications into divisions and sections and the arrangement of drawings
shall not control CMR in dividing the Work among subcontractors or in establishing the extent of
the work to be performed by any trade. The organization of the Specifications and the arrangement
of the Drawings are for the convenience of the CMR and is not intended to relieve the CMR from
its obligation to conduct a complete study of the Drawings, Specifications and Addenda for the
purpose of directing and coordinating the various subcontractors and suppliers as to their respective
responsibilities.

ARTICLE 5 - DESIGN PROFESSIONAL’S AUTHORITY

Design Professional will provide overall technical and management services to assist the Owner in
maintaining schedules, establishing budgets, controlling costs, and achieving quality.

Ifat any time the Design Professional observes or becomes aware of any fault or defect in the Work
or of any nonconformance with the Contract Documents, Design Professional will promptly notify
the Owner and CMR in writing and will recommend reasonable steps be taken to correct such fault,
defect or nonconformance. The Owner shall have the authority to reject work that does not, in its
opinion, conform to the Contract Documents.

Design Professional shall monitor and report to the Owner the overall quality and progress of the
Work.

Design Professional shall not have control over construction means, method, techniques, sequences
and procedures employed by CMR in the performance of the work, but shall be responsible for
using its best efforts to review and, if unacceptable, disapprove such and shall recommend a course
of action to the Owner if requirements of the Contract Documents are not being met by CMR.

The Owner will be assisted by Design Professional in the areas of on-site review of work in
progress, review of pay requests submitted by the CMR, assisting in the interpretation of the intent
of the Contract Documents for the proper execution of the work, and such other assistance as the
Owner may request.

The Design Professional shall have no authority to order or approve any deviation from the Contract
Documents, if such deviation affects the Cost of the Work, or the date of Substantial Completion.
In the event any such deviation is sought by Design Professional or CMR, prior written approval
from the Owner must be obtained.

Any responsibility not specifically delegated to the Design Professional in the contract between the

Owner and the Design Professional and not identified as responsibility of the Owner in the Contract
shall be deemed a question of means and methods and shall be the responsibility of the CMR.

ARTICLE 6 - TIME FOR PERFORMANCE

CONTRACT TIME:

6.1.1 CMR shall be instructed to commence the work by written Notice-to-Proceed issued by
the Owner. The Notice-to-Proceed will not be issued until CMR’s submission to Owner
of all required documents and after execution of the CONTRACT by both parties.

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Preliminary work, including submission of a Baseline Project Schedule, Schedule of
Values, Submittal Schedule, completed security clearance documents for all personnel and
a subcontractor list, performance of work that does not require permits, shall be submitted
within ten (10) calendar days after the date of the Notice-to-Proceed. Receipt of all
permits, the Guaranteed Maximum Price, insurance documents, payment bond and
performance bond documents and the signed contract are all conditions precedent to the
issuance of a Notice-to-Proceed for all other Work. The Work to be performed pursuant
to the Notice-to-Proceed shall commence within ten (10) calendar days of the Project
Initiation Date specified in the Notice-to-Proceed.

Time is of the essence throughout this contract. The Project shall be substantially
completed within 540 calendar days from the date of the Notice to Proceed. The total
Project shall be completed and ready for final payment in accordance with Article 8 within
30 calendar days from the date certified by Design Professional as the date of Substantial
Completion.

Upon failure of CMR to substantially complete the Project within the specified period of
time, plus approved time extensions, CMR shall pay to Owner the maximum sum of One
Thousand Seven Hundred Seventy-Six Dollars ($1,776.00) for each calendar day after the
time specified in Article 6.1.2 above. The actual liquidated damages cost, including back-
up will be forwarded to the CMR. In any case the actual liquidated damages amount shall
not exceed the maximum sum indicated above. After Substantial Completion, should CMR
fail to complete the remaining work within the time specified in Article 6.1.2 above, plus
approved time extensions thereof, for completion and readiness for Final Completion,
CMR shall pay to Owner the maximum sum of One Thousand Seven Hundred Seventy-
Six Dollars ($1,776.00) for each calendar day after the time specified in Article 6.1.2
above. The actual liquidated damages cost, including back-up will be forwarded to the
CMR. In any case the actual liquidated damages amount shall not exceed the maximum
sum indicated above. These amounts are not penalties but are liquidated damages to Owner
for its inability to obtain full beneficial occupancy of the Project.

Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the
impossibility or difficulty of precisely ascertaining the amount of damages that will be
sustained by Owner as a consequence of such delay, and both parties desiring to obviate
any questions of dispute concerning the amount of said damages and the cost and effect of
the failure of CMR to complete the Contract on time. The above-stated liquidated damages
shall apply separately to Substantial Completion and Final Completion.

The Owner is authorized to deduct liquidated damages from monies due to CMR for the
work under this contract or as much thereof as Owner may, at its option, deem just and
reasonable.

CMR shall be responsible for reimbursing Owner, in addition to liquidated damages, for
all costs incurred by Design Professional in administering the construction of the Project
beyond the completion dates specified above or beyond an approved extension of time
granted to CMR, whichever date is later. Such costs shall be deducted from the monies
due CMR for performance of work under this contract by means of unilateral deductive
change orders by Owner.

Extensions to the Contract Time for delays caused by the effects of adverse weather shall
be submitted as a request for change in Contract Time pursuant to Article 6.3. If adverse
weather conditions are the basis for a Claim for additional time, such Claim shall be
documented by data substantiating that weather conditions were abnormal for the period

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6.4

of time and could not have been reasonably anticipated, and that weather conditions had
an adverse effect on the scheduled construction.

MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES

6.2.2

6.2.1. CMR and Owner waive claims against each other for consequential damages
arising out of or relating to the Contract. This mutual waiver includes:.

1 Damages incurred by Owner for rental expenses, for losses of use, income,
profit, financing, business and reputation, and for loss of management or
employee productivity or of the services of such persons; and.

2 Damages incurred by CMR for principal office expenses including the
compensation of personnel stationed there, for losses of financing, business and
reputation, and for loss of profit except anticipated profit arising directly from
the Work.

This mutual waiver is applicable, without limitation, to all consequential damages due to

either party’s termination of this Contract. Nothing contained in this Article 6.2 shall be deemed to
preclude an award of liquidated damages, when applicable, in accordance with Article 6.1.

SUBSTANTIAL COMPLETION DATE:

6.3.1

6.3.2

When CMR considers that the Work, or portion thereof designated by Owner pursuant to
Article 6.4 hereof, has reached Substantial Completion, CMR shall notify the Owner and
Design Professional in writing. If in agreement the Design Professional and the Owner
shall then promptly inspect the work.

When Owner, on the basis of such an inspection and approved submissions, determines
that the work or designated portion thereof is substantially complete, Design Professional
will then prepare a Certificate of Substantial Completion by utilizing form No. AIA G704
or a comparable form, which shall establish the Date of Substantial Completion; shall state
the responsibilities of Owner and CMR for security, operation, safety, maintenance,
utilities, damage to the work, insurance, and warranties; shall list all work yet to be
completed (Punch List) to satisfy the requirements of the Contract Documents for Final
Completion. The failure to include any items of corrective work on such list does not alter
the responsibility of CMR to complete all of the work in accordance with the Contract
Documents. The Certificate of Substantial Completion shall be submitted to the Owner,
after execution by CMR, and Design Professional, indicating their written acceptance of
such certificate.

NOTIFICATION OF CHANGE OF CONTRACT TIME OR CONTRACT PRICE:

6.3.1

Any claim for a change in the Contract Time or Contract Price shall be made by written notice
and delivered by CMR to the Owner within five (5) calendar days of the commencement of
the event giving rise to the claim and stating the general nature of the claim. Notice of the
nature and elements of the claim shall be delivered within twenty (20) calendar days after the
date of such written notice. Thereafter, within ten (10) calendar days of the termination of the
event giving rise to the claim, notice of the extent of the claim with supporting data shall be
delivered unless the Owner allows an additional period of time to ascertain more accurate data
in support of the claim and shall be accompanied by CMR’s written statement and explanation
how the adjustment claimed is justified as a result of the occurrence of said event. All claims
for adjustment in the Contract Time or contract price shall ultimately be determined by Owner
in accordance with Article 28 hereof, if Owner and CMR cannot otherwise agree. NO CLAIM
FOR AN ADJUSTMENT IN THE CONTRACT TIME OR CONTRACT PRICE WILL BE
VALID IF NOT SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS
OF THIS SECTION AND ARTICLE 28 HEREOF.

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6.3.3

The Contract Time will be extended in an amount equal to time lost due to delays beyond
the control of and through no fault or negligence of CMR if a claim is made therefore as
provided in Articles 6.3.1 and 7.7. Such delays shall include, but not be limited to, acts or
neglect by any separate independent contractors employed by Owner, fires, floods, labor
disputes, epidemics, abnormal weather conditions or acts of God.

All approved Change Orders will be considered full and final and inclusive of all claims
related thereto, both as to time and costs.

6.5 USE OF COMPLETED PORTIONS:

6.4.1

6.4.2

Owner shall have the right, at its sole option, to take possession of and use of any completed
or partially completed portions of the Project. Such possession and use shall not be deemed
an acceptance of any of the Work not completed in accordance with the Contract
Documents. If such possession and use increases the cost of or delays of the work, CMR
shall be entitled to reasonable extra compensation, or reasonable extension of time or both,
by appropriate adjustment pursuant to Articles 7.4 and 7.6 hereof.

In the event Owner takes possession of any completed or partially completed portions of
the Project, the following shall occur:

6.4.2.1 Owner shall give notice to CMR in writing at least fifteen (15) calendar days
prior to Owner’s intended occupancy of a designated area.

6.4.2.2 CMRshall complete to the point of Substantial Completion the designated area.
Additionally, CMR shall submit a request for an inspection and issuance of a
Certificate of Substantial Completion (AIA - Form G704 or equivalent) for the
designated area. The CMR’s open punch list for that area shall be attached to
the request for Substantial Completion.

6.4.2.2.1 Upon Design Professional’s issuance of a Certificate of Substantial
Completion, Owner will assume full responsibility for
maintenance, utilities, subsequent damages of the area by the
Owner and the public, adjustment of insurance coverage and start
of warranty for the occupied area.

6.4.2.3 If the Owner finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use shall not
commence prior to a time mutually agreed upon by Owner and CMR and to
which the insurance company or companies providing the property insurance
have consented by endorsement to the policy or policies. Insurance on the
unoccupied or unused portion or portions shall not be canceled or lapsed on
account of such partial occupancy or use. Consent of CMR and of the insurance
company or companies to such occupancy or use shall not be unreasonably
withheld.

ARTICLE 7 - CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS

TA CHANGE ORDER - AMENDMENTS:

7.1.1 Any changes to the terms of the Contract Documents must be contained in a written
document, executed by the parties hereto, with the same formality and of equal dignity
prior to the initiation of any work reflecting such change. This section shall not prohibit
the issuance of Change Orders executed only by Owner as hereinafter provided.

7.1.2 All amendments to this Contract shall be in writing and approved/signed by both parties.

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EXTRA WORK: Without invalidating the Contract and without notice to the surety, the
Owner reserves and shall have the right to make such increases, decreases or other changes
in the character, timing, or quantity of the work as may be considered necessary or desirable
to complete fully and acceptably the proposed construction in a satisfactory manner. Any
extra or additional work within the scope of this Project must be accomplished by means
of an appropriate Change Order in accordance with the requirements of the Contract
Documents.

EXPEDITING THE WORK: The Owner may direct the CMR to expedite the work by
whatever means the CMR may choose, including, without limitation, increasing staffing or
working overtime to bring the work back within the progress schedule. If the expediting
of Work is required due to reasons outside the control or responsibility of the CMR, then
the additional costs incurred shall be the subject of an appropriate adjustment issued
pursuant to Articles 7.4 and Article 7.6, below, as applicable.

7.2 CHANGE ORDER PROCEDURES:

7.2.1

7.2.2

7.2.3

7.24

7.2.5

Changes in the quantity or character of the work within the scope of the Project including
ones which are the subject of Field Orders or Supplemental Instructions, and including all
changes resulting in changes in the contract price, or the Contract Time, shall be authorized
only by written change orders approved and issued in advance of the work and in accordance
with the provisions of the Contract Documents and Article 5 of the Maricopa County
Procurement Code which is deemed to be incorporated by reference herein as though set
forth in full.

The CMR’s overhead and fee on such changes which exceeds GMP shall be determined by
a mutually acceptable agreement between the Owner and CMR prior to execution of this
Contract. The CMR’s overhead for change order requests for this project shall be 1.95%.
The CMR’s fee for change order requests this project shall be 2.00%. The combined total
of overhead and fee for change order requests will not exceed 3.95%.

Subcontractor’s percentage markup on change orders for overhead and profit shall be
reasonable, but in no event shall the aggregate of the subcontractor’s overhead and profit
markups exceed fifteen percent (15%). In the event subcontractor is affiliated with the CMR
by common ownership or management, or is effectively controlled by the CMR, no fee will
be allowed on the subcontractor costs. In the event there is more than one level of
subcontractor, such as second and third tier subcontractors, the sum of all of the
subcontractor’s percentage markups for overhead and profit shall not in the aggregate exceed
twenty percent (20%).

CMR shall not start work on any changes requiring an increase in the contract price or the
Contract Time until a Change Order setting forth adjustments is approved and issued by the
Owner. If the CMR commences work pertaining to a Change Order prior to receiving written
authorization through the Owner it does so at its own risk and assumes all associated
responsibility and costs. Upon receipt of a Change Order, CMR shall promptly proceed with
the work set forth within the document.

In the event satisfactory adjustment cannot be reached for any item requiring a change in the
Contract Price or Contract Time, and a Change Order has not been issued, Owner reserves
the right at its sole option to either issue a Construction Directive, terminate the Contract as
it applies to the items in question and make such arrangements as may be deemed necessary
to complete the disputed work; or submit the matter in dispute to ADR as set forth in the
attached Exhibit, incorporated herein. During the pendency of the dispute, and upon receipt
of a Construction Directive or Change Order, CMR shall promptly proceed with the change
in the work involved and advise the Owner in writing within seven (7) calendar days of

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CMR’s agreement or disagreement with the method, if any, provided in the Change Order
for determining the proposed adjustment in the Contract Price or Contract Time.

7.2.6 On approval of any Contract change increasing the contract price, CMR shall ensure that
the Performance Bond and Payment Bond are increased so that each reflects the total
contract price as increased.

7.2.7 To avoid delays to the Project and to mitigate damages to the parties, Change Orders may
be issued unilaterally by Owner in accordance Article 5 of the Maricopa County
Procurement Code and the Article 5 Procedures Manual.

7.2.8 All approved Change Orders will be deemed final and inclusive of all claims related
thereto, including costs and time.

FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS:

7.3.1 The Design Professional shall have the right to approve and issue changes setting forth
written interpretations of the intent of the Contract Documents and ordering minor changes
in work execution, providing the Field Order involves no change in the Contract Price or
Contract Time.

7.3.2 Design Professional shall have the right to approve and issue Supplemental Instructions
setting forth written orders, instruction, or interpretations concerning the Contract
Documents, provided such supplemental instructions involve no change in the contract
price or Contract Time.

NO DAMAGES FOR DELAY: No claim for damages, or any claim other than for an extension of
time, shall be made or asserted against Owner by reason of any delays unless such delay is one for
which the Owner is responsible, which is unreasonable under the circumstances and which was not
one within the contemplation of the parties at the time of contracting. Otherwise CMR shall not be
entitled to an increase in the Contract Price or payment or compensation of any kind from Owner
for direct, indirect, consequential, impact or other costs, expenses or damages, including, but not
limited to, costs of acceleration or inefficiency, arising because of delay, disruption, Eichleay
Formula Costs, interference or hindrance from any cause whatsoever, whether such delay,
disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable,
or avoidable or unavoidable; provided further, however, that this provision shall not preclude
recovery of damages by CMR for hindrance or delays due solely to fraud, bad faith or active
interference on the part of Owner or its agents. Otherwise, CMR shall be entitled only to extensions
of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with
and to the extent specifically provided above.

EXCUSABLE DELAY: COMPENSABLE & NON-COMPENSABLE:

7.5.1 Excusable Delay: Delay which extends the completion of the work which is caused by
circumstances beyond the control of CMR or its subcontractors, materials persons, suppliers,
or vendors is Excusable Delay. CMR is entitled to a time extension of the Contract Time for
each day the work is delayed due to excusable delay. CMR shall document its claim for any
time extensions as provided in Article 6.3 hereof.

7.5.1.1 Failure of CMR to timely comply with Article 6.3 hereof as to any particular event
of delay shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any and all claims resulting from that particular event of delay.

7.5.2 Excusable Delay may be compensable or non-compensable.

7.5.2.1 Compensable Excusable Delay. Excusable Delay is only compensable when: (i) the
delay extends the Contract Time, and (ii) is one for which the Owner is responsible,

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8.3

which is unreasonable under the circumstances and one not within the contemplation
of the parties at the time of contracting or is due solely to fraud, bad faith or active
interference on the part of Owner or its Design Professional. In no event shall CMR
be compensated for interim or non-critical delays, which do not extend the Contract
Time. CMR shall be entitled to direct and indirect costs for Compensable Excusable
Delay. Direct costs recoverable by CMR shall be limited to actual additional costs
allowed pursuant to Article 8.3 hereof. All indirect costs shall be compensated
through the overhead percentage previously agreed to for revisions.

7.5.2.2 Non-Compensable Excusable Delay. When Excusable Delay is (i) caused by
circumstances beyond the control of CMR, its subcontractors, material persons,
suppliers and vendors, or is also caused by circumstances beyond the control of the
Owner or (ii) is caused jointly or concurrently by CMR or its subcontractors,
materials persons, suppliers or vendors and by the Owner or Design Professional,
then CMR shall be entitled only to a time extension and no further compensation for
the delay.

ARTICLE 8 - PAYMENTS AND COST OF THE WORK

In full consideration of the full and complete performance of the Work and all other obligations of
the CMR hereunder, the Owner shall pay to the CMR a sum of money not to exceed the contract
price which is defined to be the total of: (i) the CMR’s Direct Construction Cost, (ii) so much of
the CMR’s General Conditions and General Requirements as may have been expended, (iii) so
much of the approved amount of the Owner Contingency as may have been expended, and (iv) the
CMR’s Overhead and Fee percentage, which amount shall be determined based upon the total cost
of the items above. The contract price shall not exceed the sum shown in Article 1.0 as the
Guaranteed Maximum Price, adjusted to take into account any approved Change Orders, and shall
mean those costs necessarily incurred and paid by the CMR in connection with the performance of
all the work.

After completion and acceptance of the work, in the event that the Cost of the Work plus the CMR’s
“percentage of cost” fee are less than the Guaranteed Maximum Price after giving effect to
adjustments to the GMP made in accordance with this Contract then the difference between the
Cost of the Work plus the CMR’s “percentage of cost” fee on the one hand and the GMP on the
other hand is the “savings”. The savings shall accrue to the Owner as stated in Article 8.1. The
Owner reserves the right to issue a deductive Change Order at any point during the Project, reducing
the Owner Contingency. The Owner also reserves the right to issue a deductive Change Order at
any point during the Project, as agreed to by the CMR, deducting Owner Contingency or calculated
savings from the Guaranteed Maximum Price. In the event that the CMR’s total approved
expenditures for the Project shall exceed the Guaranteed Maximum Price, the CMR shall pay such
excess from its own funds, and the Owner shall not be required to pay any amount that exceeds the
GMP; and the CMR shall have no claim against the Owner on account thereof.

The term “Cost of the Work” shall mean the sum of all direct costs necessarily and reasonably
incurred and paid by the CMR in the performance of the Work. Such costs shall be at rates not
higher than those customarily paid in the locality of the Project except with the prior written consent
of Owner. The Cost of the Work shall include only those items set forth in this Article 8.3 and
shall not include any items listed in Article 8.4. Cost of the Work shall be determined as follows:

8.3.1 SUBCONTRACTOR COSTS:

8.3.1.1 The CMR’s Direct Construction Cost, for the work as generally described in
Exhibit A, attached hereto, to be performed by the CMR or performed by
subcontractor selected in accordance with Article 11, below. Where the work is
covered by unit prices contained in the Contract Documents or an applicable

Emergency Management Facility Serial # 220083-CMR
Contract between Maricopa County and Kitchell Contractors Inc., of Arizona Page #20