250038-CMR PHASE II GMP 3 KITCHELL CONTRACT 10-22-25.PDF
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Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 1
CONSTRUCTION MANAGEMENT AT RISK (CMR)
PHASE II, GMP 3
CONSTRUCTION SERVICES
CHAMBERS BUILDING REDESIGN - DEMO 10-01-25
Office Space Optimization Project
FACILITIES MANAGEMENT DEPARTMENT
By and Through the OFFICE of PROCUREMENT SERVICES
Contract # 250038-CMR
Serial # 250038-CMR
C-73-26-002-X-02
Project # 3303-25-00523
MARICOPA COUNTY, ARIZONA
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 2
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
Office Space Optimization Project AT Phoenix, Arizona
Whereas, Maricopa County (hereinafter the “County” or “Owner”) desires to construct Office Space
Optimization Project at Phoenix, Arizona, 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
Office Space Optimization 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 22nd day of October, 2025, 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 Office Space Optimization Project, and as further outlined in Exhibit A, attached
hereto and incorporated herein by reference as though fully set forth herein.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 3
TABLE OF CONTENTS
PAGE #
ARTICLE 1 - SCOPE OF WORK .................................................................................... 5
CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP) ..................... 5
ARTICLE 2 – DEFINITIONS .......................................................................................... 5
ARTICLE 3 - CMR’S SERVICES AND RESPONSIBILITIES ......................................... 9
ARTICLE 4 - PRIORITY OF PROVISIONS ................................................................. 14
ARTICLE 5 - DESIGN PROFESSIONAL’S AUTHORITY ............................................ 14
ARTICLE 6 - TIME FOR PERFORMANCE ................................................................. 15
ARTICLE 7 - CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
............................................................................................................... 17
ARTICLE 8 - PAYMENTS AND COST OF THE WORK .............................................. 20
ARTICLE 9 - CONTINGENCY ..................................................................................... 25
ARTICLE 10 - DISCOUNTS, REBATES AND REFUNDS ............................................. 26
ARTICLE 11 - SUBCONTRACTS AND PURCHASE ORDERS .................................... 26
ARTICLE 12 - INSURANCE ......................................................................................... 26
ARTICLE 13 - INDEMNIFICATION AND INSURANCE ............................................. 30
ARTICLE 14 – PERFORMANCE / PAYMENT BOND AND QUALIFICATIONS OF
SURETY ................................................................................................. 30
ARTICLE 15 - INDEPENDENT CMR ........................................................................... 31
ARTICLE 16 - ACCESS TO AND RETENTION OF PROJECT RECORDS FOR THE
PURPOSE OF AUDIT AND/OR OTHER REVIEW ................................ 32
ARTICLE 17 - AS BUILT RECORDS ........................................................................... 32
ARTICLE 18 - CMR’S RESPONSIBILITY FOR THE WORK ...................................... 33
ARTICLE 19 - OCCUPATIONAL HEALTH AND SAFETY ......................................... 33
ARTICLE 20 - PERMITS, LICENSES AND IMPACT FEES ......................................... 35
ARTICLE 21 – PERSONNEL ........................................................................................ 35
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 4
ARTICLE 22 - CMR'S WARRANTIES ......................................................................... 35
ARTICLE 23 - DEFECTIVE WORK ............................................................................. 36
ARTICLE 24 - CONSTRUCTION SIGNAGE ................................................................ 37
ARTICLE 25 - OWNERSHIP OF CONTRACT DOCUMENTS ..................................... 37
ARTICLE 26 - CMR'S REPRESENTATIVE ................................................................. 37
ARTICLE 27 - OWNER’S RIGHT TO TERMINATE CONTRACT .............................. 38
ARTICLE 28 - RESOLUTION OF DISPUTES .............................................................. 38
ARTICLE 29 – NOTICES .............................................................................................. 39
ARTICLE 30 - REQUIREMENTS FOR CONTRACTS WITH SBE GOALS ................. 40
ARTICLE 31 - OTHER TERMS & CONDITIONS ........................................................ 40
ATTACHMENT A ......................................................................................................... 46
EXHIBIT A - CONSTRUCTION DOCUMENTS ........................................................... 47
EXHIBIT B - GMP PROPOSAL .................................................................................... 48
EXHIBIT C - INSURANCE CERTIFICATE(S) ............................................................. 49
EXHIBIT D - PAYMENT BOND ................................................................................... 50
EXHIBIT E - PERFORMANCE BOND ......................................................................... 51
EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM . 52
EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION ............................................. 54
EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN ......................................... 58
EXHIBIT I - LEGAL WORKER CERTIFICATION ..................................................... 59
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 5
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.
1.1
The contract price elements are as follows:
CONTRACT PRICE WITH A GUARANTEED MAXIMUM PRICE (GMP)
****See 10/01/25 Chambers Building Redesign - Demolition Office Space Optimization
Project Total GMP (All Inclusive) for itemized costs – Kitchell - GMP 3, Phase II for
itemized costs***
TOTAL GMP (ALL INCLUSIVE)
$1,036,710
Contract Fee is included at 4.75%. This fee is comprised of Overhead and Profit at 2% and 2.75%
respectively. It is understood that all changes in contract value (additive or deductive) will have a
2.0% Overhead cost applied which is part of the 4.75% Fee included in GMP.
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 Office Space
Optimization Project, prepared by DLR Group, 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.
2.7
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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 6
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.
2.8
CONTRACT: This Construction Agreement.
2.9
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 Wednesday, October 01,
2025 and herein attached as Exhibit B (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.
2.10
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.
2.11
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.
2.12
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.
2.13
DAY: A Day is defined as a 24-hour period beginning at 12:01 a.m. and ending at Midnight,
Arizona standard time.
2.14
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.
2.15
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.
2.16
FEE: CMR Profit
2.17
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.
2.18
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.
2.19
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
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,
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 7
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.
2.20
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.
2.21
INSPECTOR: An employee of the Owner of Maricopa County, Arizona, assigned by the Director
to make observations of work performed by a CMR.
2.22
LOOK AHEAD SCHEDULE: A schedule for a period of 3 weeks ahead of the current date to be
delivered during regular Project meetings.
2.23
MATERIALS: Materials incorporated in this Project or used or consumed in the performance of
the Work.
2.24
NOTICE-TO-PROCEED: One or more written notices to CMR authorizing the commencement of
Work.
2.25
THE OFFICE OF PROCUREMENT SERVICES: The Maricopa County Department with
authority for all procurement activity within Maricopa County.
2.26
OWNER’S CONTINGENCY: The GMP will include an Owner Contingency for addressing
incomplete or revised design elements that arise during construction, to cover unforeseen
conditions, or additional scope requests made by the Owner and/or Owner’s Design Professional,
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
and include cost breakdowns and supporting documentation. CMR shall be entitled to utilize
Owner Contingency for additions or modifications required due to design development or
finalization of incomplete drawings/specifications, and or, 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
•
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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 8
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.
2.27
OVERHEAD: All CMR home office expenses.
2.28
PLANS AND/OR DRAWINGS: The official graphic representations of this construction Project
which are a part of the Contract Documents.
2.29
PRELIMINARY WORK: not applicable.
2.30
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.
2.31
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.
2.32
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.
2.33
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.
2.34
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.
2.35
RESIDENT PROJECT REPRESENTATIVE: An authorized representative of the Design
Professional on the Project.
2.36
SCHEDULE: The document setting for the timeline and milestones for this Project (see Exhibit B).
2.37
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.
2.38
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.
2.39
SUBMITTAL SCHEDULE: The schedule for initiation and completion of submittals.
2.40
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 at a
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).
2.41
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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 9
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.
2.42
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.
2.43
TARIFFS ALLOWANCE: Any increased costs associated with tariffs promulgated after the
Contract execution date are not included in the GMP. The Contractor will assist the Owner with
sourcing alternative materials not affected by the tariff, but in the event that the Owner chooses to
retain the originally selected material, or there is not another material option available that does not
affect the Contract Price, and/or Contract Time, then the CMR is entitled to request a Tariffs
Allowance and a Change Order for the additional cost and time associated with the enactment of
the applicable tariffs, provided that the CMR gives the Owner written notice and documentation of
the increased costs and time. The supporting documentation of the increased costs and time will be
inclusive of CMR’s subcontractors or suppliers’ manufacturers that describe the surcharge and
documentation showing the original cost vs. the updated cost with tariff impact. This notice and
documentation, along with any material price increases, will be submitted in a Tariffs Allowance
Authorization. The Owner may disallow a Tariffs Allowance request and deny a Change Order in
the absence of prior written notice or if the Owner determines that the documentation of the
increased costs and time is insufficient or not consistent with the tariff impact. The Owner receives
the savings for any amount under an Owner-approved Tariffs Allowance and is responsible for any
amount over that allowance.
2.44
WRITTEN NOTICE: As set forth in Article 29 herein.
ARTICLE 3 - CMR’S SERVICES AND RESPONSIBILITIES
3.1 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.
3.12 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.
3.13 SUPERINTENDENCE AND SUPERVISION:
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 10
3.13.1 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.
3.13.2 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
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.
3.13.3 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.
3.13.4 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.
3.14
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.
3.14.1 DIFFERING SITE CONDITIONS:
3.14.2 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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 11
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.
3.14.3 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.
3.14.4 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.
SUBMITTALS:
3.15.4 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.
3.15.5 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.
3.15.6 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.
3.15.7 After the approval of the submittal schedule, CMR shall promptly request submittals from
the various manufacturers, fabricators, and suppliers.
3.15.8 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.
3.15.9 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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 12
3.15.10 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.
3.15.11 The Design Professional shall have no duty to review partial or incomplete submittals
except as may be provided otherwise within the Contract Documents.
3.15.12 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
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.
3.15.13 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.
3.15.14 Additional information provided by the CMR on any Submittal shall be typewritten or
lettered in ink.
3.15.15 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.
3.15.16 CMR shall keep one set of Design Professional approved Submittals at the Project site at
all times.
3.16
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS:
3.16.1 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
pipelines,
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.
3.16.2 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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 13
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.
3.16.3 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.
3.16.4 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
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.
3.17 INSPECTION AND TESTING:
3.17.1
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.
3.17.1.1 Should 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.
3.17.1.2 If 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.
3.17.1.3 Should 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.
3.17.2 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.
3.17.3 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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 14
3.18
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
4.1
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.
4.2
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.
4.3
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).
4.4
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
5.1
Design Professional will provide overall technical and management services to assist the Owner in
maintaining schedules, establishing budgets, controlling costs, and achieving quality.
5.2
If at 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.
5.3
Design Professional shall monitor and report to the Owner the overall quality and progress of the
Work.
5.4
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.
5.5
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.
5.6
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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 15
In the event any such deviation is sought by Design Professional or CMR, prior written approval
from the Owner must be obtained.
5.7
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
6.1
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.
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.
6.1.2
Time is of the essence throughout this contract. The Project shall be substantially
completed within 74 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.
6.1.3
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 Five
Hundred Dollars ($500.00) 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 Five Hundred Dollars ($500.00) 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.
6.1.4
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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 16
6.1.5
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.
6.1.6
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.
6.1.7
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
of time and could not have been reasonably anticipated, and that weather conditions had
an adverse effect on the scheduled construction.
6.2
SUBSTANTIAL COMPLETION DATE:
6.2.1
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.
6.2.2
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.
6.3
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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 17
6.3.2
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.
6.3.3
All approved Change Orders will be considered full and final and inclusive of all claims
related thereto, both as to time and costs.
6.4
USE OF COMPLETED PORTIONS:
6.4.1
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.
6.4.2
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
CMR shall 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
7.1
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.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 18
7.1.3
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.
7.1.4
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
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.
7.2.2
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 2%. The
CMR’s fee for change order requests this project shall be 2.75%. The combined total of
overhead and fee for change order requests will not exceed 4.75%.
7.2.3
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%).
7.2.4
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.
7.2.5
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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 19
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.
7.3
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.
7.4
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.
7.5
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,
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 20
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
8.1
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.
8.2
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.
8.3
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
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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subcontract, the Cost of the Work shall be determined by application of unit
prices to the quantities of items involved.
8.3.1.2
Whenever a change in subcontractor work is to be based on mutual acceptance
of a lump sum, whether the amount is an addition, credit or no change-in-cost,
CMR shall submit an initial cost estimate obtained from the subcontractor and
acceptable to Owner subject to the Limitations set forth in Article 7.4. The
breakdown shall list the quantities and earlier agreed unit prices for materials,
labor, equipment and other items of cost. Whenever a change involves more
than one subcontractor and the change is an increase in the GMP, overhead and
profit percentage of each subcontractor and CMR, if applicable, shall be itemized
separately.
8.3.1.3
If the subcontract provides that the subcontractor is to be paid on the basis of
Cost of the Work plus a fee, the subcontractor’s Cost of the Work shall be
determined in the same manner as CMR’s Cost of the Work, subject to the
limitation on subcontractor’s fees set forth in Article 7.4.
8.3.1.4
If changes to subcontracted work affected the GMP, such changes shall be
accomplished in accordance with Article 7.4, Change Orders. The amount of
decrease in the GMP, for any change that results in a net decrease in cost, will
be the amount of the actual net decrease. When both additions and decreases are
involved in any one change, the combined effect shall be figured on the basis of
the net change in the GMP, if any.
8.3.2
CMR’S LABOR COSTS: Costs for employees in the direct employ of CMR in the
performance of the work described in the Contract Documents. In lieu of wages and a
labor burden, it is agreed that wages shall be reimbursed in accordance with Attachment A
– Billable Rate Schedule, which shall be mutually agreed upon for the duration of the
Project by Owner and CMR. Costs for employees not employed full time on the work
covered by the Contract shall be apportioned on the basis of the time the employees spent
on the work. In lieu of wages and a labor burden, it is agreed that wages shall be reimbursed
in accordance with Attachment “A” - Billable Rate Schedule. Rates included in
Attachment A – Billable Rate Schedule shall include salaries, social security contributions,
unemployment, excise and payroll taxes, working compensation, health insurance, sick
leave, pensions or 401k programs, vacation and holiday pay. A detailed accounting of time
spent on the Project must be provided at the request of the County within seven (7) business
days of the receipt by the CMR of written request therefor.
8.3.2.1 Stipulated Labor Rates: The rate sheet included with GMP2 will be the basis for
labor rates for new individuals to the project.
8.3.3
MATERIALS AND EQUIPMENT: Cost of all materials and equipment furnished and
incorporated in the work, including costs of transportation and storage thereof, and
manufacturers’ field services required in connection therewith, adjusted in accordance with
Article 10, pertaining to Discounts, Rebates and Refunds; rentals of all construction
equipment and machinery and the parts thereof whether rented from CMR of others in
accordance with rental agreements and the costs of transportation, loading, unloading,
installation, dismantling and removal thereof, all in accordance with the terms of said
agreements. The rental of any such equipment, machinery or parts shall cease when the use
thereof is no longer necessary for the work.
8.3.4
MISCELLANEOUS COSTS:
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Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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8.3.4.1
The cost, as documented by the CMR’s detailed receipts, of telephone,
telegrams, postage, photographs, blueprints, office supplies, first aid supplies
and related miscellaneous costs reasonably incurred in direct support of the work
at the Project location.
8.3.4.2
Premiums on bonds and insurance, including subcontractor bonds, if any that the
CMR secures and maintains under the terms of the CONTRACT DOCUMENTS
and such other insurance and bonds as may be required, All insurance and bonds
shall be provided by companies acceptable to the Owner ‘s Risk Manager.
8.3.4.3
Self-insurance by the CMR or insurance through any affiliates of CMR shall not
be permitted without the Owner’s prior written approval. Owner’s approval shall
not be required on a subcontractor bond, or subcontractor default insurance and
premiums thereof shall be considered a Cost of the Work.
8.3.4.4
The cost of obtaining and using any utility services required for the Work that
are not paid directly by Owner, including fuel and sanitary services at the Project
site.
8.3.4.5
The cost of removal of debris from the site. The Project site, lay-down locations,
and staging sites will be kept clear of all debris on a daily basis. All subcontracts
shall require subcontractors to remove all debris daily created by their activities,
and the CMR shall exercise reasonable efforts to enforce such requirements or
effect the removal of the debris of the subcontractors who fail in this regard.
Provided, however, the CMR shall not be required to remove debris created by
the Owner’s separate CMRs except pursuant to Change Order procedures set
forth herein.
8.3.4.6
The cost and expenses, actually sustained by the CMR in connection with the
work, of protecting and repairing adjoining property, if required, except to the
extent that any such cost or expense is:
8.3.4.6.1
the responsibility of the CMR under Article 13, reimbursable by
insurance or otherwise;
8.3.4.6.2
Due to the failure of the CMR to comply with the requirements of
the Contract Documents with respect to insurance; or
8.3.4.6.3
Due to the failure of any officer of the CMR or any of its
representatives having supervision or direction of the Work to
exercise good faith or the standard of care normally exercised in the
conduct of the business CMR experienced in the performance of
work of the magnitude, complexity and type encompassed by the
Contract Documents, in any of which events any such expenses shall
not be included in CMR’s costs.
8.3.4.7
Federal, state, municipal, sales, use and other taxes required by law, as applicable
to the Project, all with respect to service performed or materials furnished for the
work, it being understood that none of the foregoing includes, federal, state or
local income or franchise taxes.
8.3.4.8
All reasonable costs and expenditures necessary for the operation of the Project
job site office(s), including cost of field computer equipment and software.
8.3.4.9
The proportion of necessary transportation, travel and subsistence expenses of
CMR’s employees, excluding travel time, incurred in discharge of duties
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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connected with the work except for local travel to and from the site of the Work.
Out of state travel must be approved in advance in writing by the Owner.
8.3.4.10 Cost, including transportation and maintenance, of all materials, supplies,
equipment, machinery, appliances, office and temporary facilities at the site and
hand tools not owned by the workers, which are consumed in the performance
of the work, and cost less market value of such items used but not consumed
which remain the property of CMR.
8.3.4.11 Deposits lost for causes other than CMR’s negligence, royalty payments and fees
for permits and licenses.
8.3.4.12 Cost of premiums for additional bonds and insurance required because of
changes in the Work.
8.3.4.13 Cost of special Design Professionals, including, but not limited to, engineers,
architects, testing laboratories, surveyors employed for services specifically
related to the Work except for those required for deferred submittals.
8.3.4.14 Any other expenses or changes incurred, with the prior written approval of the
Owner, in the performance of the Work.
8.4
EXCLUSIONS TO COST OF THE WORK: Overhead is defined as any and all other costs, not
referenced in Article 8.3, of the CMR and its operation which are not in direct support of the Project.
The CMR agrees to furnish and perform, as a part of the CMR’s Fee and without reimbursement,
said overhead items. The term “Cost of the Work” shall not include any of the following:
8.4.1
Payroll costs and other compensation of CMR’s officers, executives, principals (of
partnership and sole proprietorship), general managers, estimators, purchasing and
contracting agents, clerks and other personnel employed by CMR whether or not approved
by the Owner whether at the site or in its principal or a branch office for general
administration that are not specifically included in the General Conditions are to be
considered administrative costs covered by CMR’s fee.
8.4.2
Other than those expenses authorized on Exhibit B, expenses of CMR’s principal and
branch offices.
8.4.3
Any part of CMR’s capital expenses, including interest on CMR’s capital employed for the
Work and charges against CMR for delinquent payments.
8.4.4
Other overhead, general expense costs or charges of any kind and the cost of any item not
specifically and expressly included in Article 8.3.
8.4.5
Costs in excess of the Guaranteed Maximum Price.
8.4.6
Entertainment and meal expenses, car allowances and charges of a personal nature.
8.4.7
Bonuses, pensions, profit sharing or other special labor charges not included in Article
8.3.2, above.
8.4.8
Any outside legal or accounting fees incurred without prior written approval from the
Owner, which approval is at the sole discretion of the Owner.
8.5
PROGRESS PAYMENTS:
8.5.1
CMR may make Application for Payment for Work completed during the Project utilizing
AIA form 702/703 or equivalent at intervals of not more than once a month. CMR shall
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 24
submit such applications to the Owner and Design Professional. CMR’s application shall
show a complete breakdown of the Project components, the percentages completed and the
fees and General Conditions amounts due in proportion to the percentages of the Work
completed. Each application shall be accompanied by such supporting evidence as may be
reasonably required by Owner and Design Professional, however each application shall, at
a minimum be accompanied by a conditional lien waiver, and in addition thereto, an
unconditional lien waiver for the preceding application for payment. CMR shall submit
with each Application for Payment, an updated progress construction schedule acceptable
to the Owner and Design Professional. Each Application for Payment shall be
accompanied by a completed SBE Program Participation Reporting form in the form
attached hereto as an Exhibit. Owner shall make payment to CMR, as required by A.R.S.
§ 34-609 and the Prompt Payment Act.
8.5.2
Ten percent (10%) of all monies earned by CMR shall be retained by Owner until Final
Completion and acceptance by Owner in accordance with Article 8.5.4 hereof.
8.5.3
After fifty percent (50%) of the Work has been completed, the Owner may reduce the total
retainage held to five percent (5%) of all monies previously earned and all monies earned
thereafter. Any reduction in retainage shall be in the sole discretion of the Owner, and
CMR shall have no entitlement to a reduction. Any interest earned on retainage shall
accrue solely to the benefit of Owner.
8.5.4
The CMR shall have the right, pursuant to Arizona Revised Statues, to submit securities in
lieu of retention. The CMR is required to request this option at least ten (10) business days
prior to submission of first Application for Payment to allow time for preparation of forms.
8.5.5
Owner may withhold, in whole or in part, any progress payment to CMR to such extent as
may be sufficient to pay the Expenses the Owner reasonably expects to incur to correct an
deficiency in the Work set forth in specific written findings by Design Professional or
Owner prepared for those items in the pay application of the estimate of the Work that are
not approved for payment in that pay application under Contract. If Owner in its good faith
judgment, determines that the portion of the GMP then remaining unpaid will not be
sufficient to complete the Work in accordance with Contract Documents as set forth in
written detail and provided to CMR pursuant to A.R.S. § 34-609, no additional payments
will be due to CMR hereunder unless and until CMR, at its sole cost, performs a sufficient
portion of the Work so that such portion of the GMP then remaining unpaid is determined
by Design Professional and the Owner to be sufficient to so complete the Work. It is the
intention of this Article 8.5 to provide Owner with the maximum protection afforded an
Owner under the Prompt Pay Provisions of A.R.S. § 34-609.
8.5.6
The Schedule of Values, prepared in accordance with Exhibit B, shall reflect the CSI
Divisions including the cost of materials, the cost of labor, the cost of equipment and the
cost of subcontractor Work. Each monthly Application for Payment shall be for a sum
equal to (i) that portion of the CMR’s Direct Construction Cost equal to the percentage of
the Work completed; plus (ii) an appropriate amount of the CMR ‘s General Conditions
Costs and Fees as related to the percentage of the Work completed. The calculation of the
percentage of the Work completed shall be in accordance with the approved Progress
Schedule; provided, however, prior to the date of the Final Request, and unless subject to
reduction under Article 8.5.2, the aggregate of the CMR’s Fee payments shall not exceed
Ninety (90%) percent of the CMR’s Fee as stated in Article 8.3.
8.5.7
The CMR’s Direct Construction Cost shall be segregated and detailed in a manner
satisfactory to the Design Professional and the Owner to evaluate the charges. The Request
for Payment shall indicate the percentage of completion of each portion of the Work, and
the total Work, as of the end of the period covered by the Application for Payment. The
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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Schedule of Values shall be used as one basis for reviewing the Request for Payment when
such amounts are approved.
8.6
The Design Professional and Owner shall review each such Request for Payment and may make
such exceptions, as the Design Professional and the Owner reasonably deem necessary or
appropriate under the state of circumstances then existing. Final determination resides with the
Owner. In no event shall the Owner be required to make payment for items of the CMR’s Cost to
which the Owner reasonably take(s) exception.
8.7
CMR shall remain solely liable for subcontractor’s Work and for any unpaid laborers, material
suppliers or subcontractors in the event it is later discovered that said Work is deficient or that any
of said laborers, material suppliers or subcontractors did not receive payments due them on the
Project.
8.8
Within 30 after Final Completion of the Work and acceptance thereof by the Owner, the CMR shall
submit a Final Request for Payment (Final Request) to the Owner, which shall set forth all amounts
due and remaining unpaid to the CMR (including the unpaid portion of the CMR’s Fee).
8.9
Except for the CMR’s Fee, the CMR shall use the sums paid to it pursuant to this Article 8 solely
for the purpose of performance of the Work and the construction, furnishing and equipping of the
Work in accordance with the Contract Documents and payments of bills incurred by the CMR in
performance of the Work.
8.10
The CMR shall promptly pay all bills for labor and material performed and furnished by its
subcontractors, suppliers and materials providers, in connection with the construction, furnishing
and equipping of the Work and the performance of the Work.
8.11
PROJECT CLOSEOUT: Prior to the Notice of Final Completion being issued, any remaining
monies in the Guaranteed Maximum Price shall be returned to the Owner through a final deductive
Change Order issued by the Owner, reducing the Guaranteed Maximum Price. Final Payment shall
only be made after full execution of the final deductive Change Order.
ARTICLE 9 - CONTINGENCY
9.1
OWNER’S CONTINGENCY: The GMP will include an Owner Contingency for addressing
incomplete or revised design elements that arise during construction, to cover unforeseen
conditions, or additional scope requests made by the Owner and/or Owner’s Design Professional,
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
and include cost breakdowns and supporting documentation. CMR shall be entitled to utilize Owner
Contingency for additions or modifications required due to design development or finalization of
incomplete drawings/specifications, and or , 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 or responsible at law
or under the Contract; or
•
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 issue
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 26
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.
ARTICLE 10 - DISCOUNTS, REBATES AND REFUNDS
10.1
All cash discounts obtained on payments made by the CMR shall accrue to the Owner irrespective
of whether or not the CMR actually advanced its own funds, prior to receipt of funds from Owner,
to make the payment giving rise to the discount.
ARTICLE 11 - SUBCONTRACTS AND PURCHASE ORDERS
11.1
All Work, including work to be specifically performed by the CMR, must be obtained via
competitive pricing and subcontract, in compliance with the requirements of this Article 11 and
A.R.S. Titles 34 and 41, for the balance of the CMR’s Direct Construction Cost required under this
Contract. All subcontracts and purchase orders shall be awarded according to the following
procedure:
11.2
The CMR shall prepare for Design Professional’s and Owner’s review and approval a list of pre-
qualified subcontractors and suppliers for each bid who meet the CMR’s schedule of minimum
requirements. The CMR shall obtain bids from a minimum of three (3) such subcontractors for
each subcontract, when available. If the CMR is unable to do so for any subcontract, it must request
and obtain the approval of the Owner. After receiving such bids, the CMR shall analyze them and
make recommendations to the Owner and Design Professional for awards in compliance with
A.R.S. Title 34. Unless the Design Professional and Owner determine any such subcontract to be
unacceptable, the CMR shall contract solely in its own name and behalf, and not in the name or
behalf of the Owner, with the specified subcontractor or supplier. The CMR’s subcontract form
shall provide: that the subcontractor shall perform its portion of the Work in accordance with all
applicable provisions of this Contract and the other Contract Documents; that subcontractor is
bound to the CMR to the same extent that the CMR is bound to the Owner; that the CMR and
Owner shall be named as additional insureds on subcontractor’s comprehensive general liability
insurance policy and provide an insurance certificate evidencing the same; for termination of the
subcontract by the CMR in the same manner and method as provided in Article 27 of this Contract,
or as otherwise provided in such subcontract, whichever is more protective of the Owner’s interest;
subcontractor shall comply with A.R.S. § 41-4401; and shall further provide that, in the event this
Contract is terminated for any reason, that the subcontract shall, at the Owner’s option, be assigned
to Owner and subcontractor shall perform its subcontract for the Owner, or for a CMR designated
by the Owner, without additional or increased cost, provided the subcontractor is paid in accordance
with its subcontract. The CMR shall sign, and shall cause each subcontractor to sign, an
Assignment of Rights under Construction Subcontract. Nothing contained herein shall impose on
the Owner an obligation to assume any subcontract or to make any payments to any subcontractor
to perform and nothing contained herein shall create any contractual relationship between the
Owner and any subcontractor. The subcontractor selection and management plan submitted by
CMR is incorporated herein by this reference as Exhibit H.
ARTICLE 12 - INSURANCE
12.1
The CMR, at the CMR’S own expense, shall purchase and maintain the herein stipulated minimum
insurance from a company or companies duly licensed by the State of Arizona and possessing a
current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the stipulated insurance
may be purchased from a company or companies, which are authorized to do business in the State
of Arizona, provided that said insurance companies meet the approval of COUNTY. The form of
any insurance policies and forms must be acceptable to COUNTY.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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12.1.1 All insurance required herein shall be maintained in full force and effect until all work or
service required to be performed under the terms of the Contract is satisfactorily completed
and formally accepted. Failure to do so may, at the sole discretion of COUNTY, constitute
a material breach of this Contract.
12.1.2 CMR’S insurance shall be primary insurance as respects COUNTY, and any insurance or
self-insurance maintained by COUNTY shall not contribute to it.
12.1.3 Any failure to comply with the claim reporting provisions of the insurance policies or any
breach of an insurance policy warranty shall not affect the COUNTY’S right to coverage
afforded under the insurance policies.
12.1.4 The insurance policies may provide coverage that contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with
respect to the coverage provided to COUNTY under such policies. CMR shall be solely
responsible for the deductible and/or self-insured retention and COUNTY, at its option,
may require the CMR to secure payment of such deductibles or self-insured retentions by
a surety bond or an irrevocable and unconditional letter of credit.
12.1.5 COUNTY reserves the right to request and to receive, within ten (10) working days,
certified copies of any or all of the herein required insurance policies and/or endorsements
and any amendments thereto. COUNTY shall not be obligated, however, to review such
policies and/or endorsements or to advise the CMR of any deficiencies in such policies and
endorsements, and such receipt shall not relieve the CMR from, or be deemed a waiver of
Maricopa COUNTY’S right to insist on strict fulfillment of the CMR’S obligations under
this Contract.
12.1.6 The insurance policies required by this Contract, except Workers’ Compensation, shall
name Maricopa County, its officers, elected officials, employees, agents and
representatives as Additional Insured’s.
12.1.7 The policies required hereunder, except Workers’ Compensation, shall contain a waiver of
transfer of rights of recovery (subrogation) against Maricopa County, its officers, elected
officials, employees, agents and representatives for any claims arising out of the CMR’S
work or service.
12.1.8 CMR is required to procure and maintain the following coverage’s:
12.1.8.1 Commercial General Liability. Commercial General Liability insurance and,
when necessary, Commercial Umbrella insurance with a limit of not less than
$2,000,000 for each occurrence, $2,000,000 Personal/Advertising Injury,
$4,000,000 Products/Completed Operations Aggregate, and $4,000,000 General
Aggregate Limit. The policy shall include coverage for bodily injury, broad
form property damage, and blanket contractual coverage, and shall not contain
any provision that would serve to limit third party action over claims. There
shall be no endorsement or modification of the CGL limiting the scope of
coverage for liability arising from explosion, collapse, or underground property
damage.
12.1.8.2 Automobile Liability. Commercial/Business Automobile Liability insurance
and, if necessary, Commercial Umbrella insurance with a combined single limit
for bodily injury and property damage of not less than $2,000,000 each
occurrence with respect to any of the CMR’S owned, hired, and non-owned
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 28
vehicles assigned to or used in performance of the CMR’s work or services under
this Contract.
12.1.8.3 Workers’ Compensation. Workers’ Compensation insurance to cover
obligations imposed by federal and state statutes having jurisdiction of the
CMR’s employees engaged in the performance of the work or services under this
Contract; and Employer’s Liability insurance of not less than $1,000,000 for
each accident, $1,000,000 disease for each employee, and $1,000,000 disease
policy limit.
12.1.8.4 CMR waives all rights against COUNTY and its agents, officers, directors and
employees for recovery of damages to the extent these damages are covered by
the Workers’ Compensation and Employer’s Liability or commercial umbrella
liability insurance obtained by CMR pursuant to this agreement.
12.1.8.5 Builder’s Risk (Property) Insurance. CMR shall purchase and maintain, on a
replacement cost basis, Builders’ Risk insurance and, if necessary, Commercial
Umbrella insurance in the amount of the initial Contract amount as well as
subsequent modifications thereto for the entire work at the site. Such Builders’
Risk insurance shall be maintained until final payment has been made or until
no person or entity other than COUNTY has an insurable interest in the property
required to be covered, whichever is earlier. This insurance shall include
interests of COUNTY, CMR, and all subcontractors and sub‐subcontractors in
the work during the life of the Contract and course of construction, and shall
continue until the work is completed and accepted by COUNTY. For new
construction Projects, CMR agrees to assume full responsibility for loss or
damage to the work being performed and to the structures under construction.
For renovation construction Projects, CMR agrees to assume responsibility for
loss or damage to the work being performed at least up to the full Contract
amount, unless otherwise required by the Contract documents or amendments
thereto. The Owner and CMR waive all rights against (1) each other and any of
their subcontractors, sub-subcontractors, agents, and employees, each of the
other; (2) against the Architect and Architect’s consultants; and (3) separate
contractors, if any, and any of their subcontractors, sub-subcontractors, agents,
and employees, for damages caused by fire, or other causes of loss, to the extent
those losses are covered by Builder’s Risk insurance required by the Contract,
except such rights as they have to proceeds of such insurance. The policy shall
provide such waiver of subrogation by endorsement or otherwise and shall be
effective even if an insured’s negligence causes a covered loss and regardless of
the extent of their insurable interest in the covered property. able interest in the
covered property.
12.1.8.5.1 Builders’ Risk insurance shall be on a special form and shall also
cover false work and temporary buildings and shall insure against
risk of direct physical loss or damage from external causes including
debris removal, demolition occasioned by enforcement of any
applicable legal requirements, and shall cover reasonable
compensation for architect’s service and expenses required as a
result of such insured loss and other “soft costs” as required by the
Contract.
12.1.8.5.2 Builders’ Risk insurance must provide coverage from the time any
covered property comes under CMR’S control and/or responsibility,
and continue without interruption during construction, renovation,
or installation, including any time during which the covered
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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property is being transported to the construction installation site, and
while on the construction or installation site awaiting installation.
The policy will provide coverage while the covered premises or any
part thereof are occupied. Builders’ Risk insurance shall be primary
and any insurance or self‐insurance maintained by the County is not
contributory.
12.1.8.5.3 Environmental Liability Coverage Insurance. Contractor shall
maintain in force for the full period of this contract insurance
covering losses caused by pollution conditions that arise from the
operations of the contractor described under the scope of services of
this contract.
12.1.8.5.4 This insurance shall apply to bodily injury; property damage,
including loss of use of damaged property or of property that has not
been physically injured; cleanup costs; and defense, including costs
and expenses incurred in the investigation, defense, or settlement of
claims. The policy of insurance affording these required coverages
shall be written in an amount of at least $2,000,000 per loss, with an
annual aggregate of at least $4,000,000.
12.1.8.5.5 The policy of insurance shall be endorsed to include as an insured
Maricopa County, its officers, elected officials, and employees.
12.1.8.5.6 If the Contract requires testing of equipment or other similar
operations, at the option of COUNTY, CMR will be responsible for
providing property insurance for these exposures under a Boiler
Machinery insurance policy or the Builders’ Risk Insurance policy.
12.1.8.6 COVERAGES
Commercial General
Liability
$2,000,000
Each Occurrence
$2,000,000
Personal & Advertising Injury
$4,000,000
General Aggregate
$4,000,000
Products/Completed Operations
Automotive Liability
$2,000,000
Each Occurrence
Workers’ Compensation
$1,000,000
Each Accident
$1,000,000
Disease for Each Employee
$1,000,000
Disease Policy Limit
Builders’ Risk
Replacement Cost
Environmental Liability
$2,000,000
Per Loss
$4,000,000
Annual Aggregate
12.2
CERTIFICATES OF INSURANCE: Prior to commencing work or services under this Contract,
the CMR shall furnish County with Certificates of Insurance and Policy Endorsements in a form
acceptable to COUNTY, or formal endorsements as required by the Contract in the form provided
by the County, issued by the CMR’s insurer(s), as evidence that policies providing the required
coverage’s, conditions, and limits required by this Contract are in full force and effect. Such
certificates shall identify this contract number and contract title.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 30
12.2.1 In the event any insurance policy (ies) required by this contract is (are) written on a “claims
made” basis, coverage shall extend for one (1) year past completion and acceptance of the
CMR’s work or services and as evidenced by annual Certificates of Insurance.
12.2.2 If a policy does expire during the life of the Contract, a renewal certificate must be sent to
COUNTY not later than fifteen (15) days prior to the expiration date.
12.3
CANCELLATION AND EXPIRATION NOTICE: Insurance required herein shall not expire, be
canceled, or materially changed without thirty (30) days prior written notice to COUNTY.
12.4
Stipulated Subcontract Default Insurance Rate: Subcontractor Default Insurance (SDI) has been
included in the GMP (see Section 1.1) It is acknowledged, that Subguard insurance is not being
requested as the SDI provider.
ARTICLE 13 - INDEMNIFICATION AND INSURANCE
13.1
CMR’s Duty to Indemnify and Defend. To the fullest extent permitted by law, the CMR shall
defend, indemnify and hold harmless Maricopa County, its officers, elected officials, employees
agents and representatives from and against all claims, damages losses, and expenses, including
but not limited to attorney fees, court costs, expert witness fees, and the cost of appellate
proceedings, relating to, arising out of, or alleged to have resulted from the negligent, reckless, or
intentionally wrongful acts, errors, omissions or mistakes of the CMR, its agents, representatives,
employees, or subcontractors relating to the performance of this Contract. CMR’s duty to defend,
indemnify and hold harmless the Owner, its agents, representatives, officers, directors, officials,
and employees shall arise in connection with any claim, damage loss or expense that is attributable
to bodily injury, sickness, disease, death or injury to, impairment, or destruction of property,
including loss of use resulting therefrom, caused by the referenced acts, errors, omissions or
mistakes in the performance of this Contract, including those made by any person for whose acts,
errors, omissions or mistakes, the CMR may be legally liable.
13.2 Pre-Existing Hazardous Materials. To the fullest extent permitted by law, the Owner shall
indemnify, defend and hold harmless the CMR, Subcontractors, Architect, Architect’s
consultants, insurers and agents and employees of any of them from and against claims, damages,
losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from
performance of the Work in the affected area if in fact the material or substance presents the risk
of property damage or bodily injury or death and has not been rendered harmless, provided that
such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or
to injury to or destruction of tangible property (other than the Work itself), except to the extent
that such damage, loss, or expense is due solely to the fault or negligence of the party seeking
indemnity.”
13.3 The amount and type of insurance coverage requirements set forth herein will in no way be
construed as limiting the scope of the indemnity in this paragraph.
ARTICLE 14 – PERFORMANCE / PAYMENT BOND AND QUALIFICATIONS OF
SURETY
14.1
Within ten (10) calendar days of being notified of the award, CMR shall furnish a Performance
Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment
Bond attached hereto. All bonds regardless of form, will be on the form required and set forth in
A.R.S. § 34-222(I).
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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14.1.1 Each Bond shall be in the amount of one hundred percent (100%) of the GMP guaranteeing
to Owner the completion and performance of the Work covered in such Contract as well
as full payment concerning all suppliers, material providers, laborers, or subcontractors
employed pursuant to this Project. Each Bond shall be with a surety company which is
qualified pursuant to Article 14.2.
14.1.2 Each Bond shall continue in effect for one year after substantial completion and acceptance
of the Work with liability equal to one hundred percent (100%) of the Contract sum, or an
additional bond shall be conditioned that CMR will, upon notification by Owner, correct
any defective or faulty Work or materials which appear within one year after substantial
completion of the Contract.
14.2
QUALIFICATIONS OF SURETY:
14.2.1 Each bond must be executed by a surety company in recognized standing, authorized to do
business in the State of Arizona as surety, having a resident agent in the State of Arizona
and having been in business with a record of successful continuous operation for at least
five years.
14.2.2 The Surety Company shall hold a current certificate of authority as acceptable surety on
federal bonds in accordance with United States Department of Treasury Circular 570,
Current Revisions. If the amount of the Bond exceeds the underwriting limitation set forth
in the circular, in order to qualify, the net retention of the surety company shall not exceed
the underwriting limitation in the circular, and the excess risks must be protected by
coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297,
revised September 1, 1973 (31 DFR Section 223.10, Section 223.111). Further, the Surety
Company shall provide Owner with evidence satisfactory to Owner that such excess risk
has been protected against in an acceptable manner.
14.2.3 The Owner will accept a surety bond from a company with a rating of B+ or better for
bonds up to $2 million, provided, however, that if any surety company appears on the watch
list that is published quarterly by Intercom of the Office of the Arizona Insurance
Commissioner, the Owner shall review and either accept or reject the surety company
based on the financial information available to the Owner. A surety company that is
rejected by the Owner may be substituted by the bidder or proposer with a surety company
acceptable to the Owner, only if the bid amount does not increase. The ratings of Surety
shall correspond to the amount of bonds as follows:
Policy
Holder’s
Financial Size
Amount of Bond
Ratings
Category
500,001 to 1,000,000
B+
Class I
1,000,001 to 2,000,000
B+
Class II
2,000,001 to 5,000,000
A
Class III
5,000,001 to 10,000,000
A
Class IV
10,000,001 to 25,000,000
A
Class V
25,000,001 to 50,000,000
A
Class VI
50,000,001 or More
A
Class VII
ARTICLE 15 - INDEPENDENT CMR
15.1
In performing, the CMR shall be deemed an independent CMR and not an agent or employee of
the Owner. The CMR shall be solely responsible for and have control over construction means,
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 32
methods, techniques, sequences and procedures and for coordinating all portions of the Work under
this Contract, unless the Contract Documents give other specific instructions concerning these
matters.
ARTICLE 16 - ACCESS TO AND RETENTION OF PROJECT RECORDS FOR
THE PURPOSE OF AUDIT AND/OR OTHER REVIEW
16.1
Owner or its designee shall have the right to audit, inspect and copy the books and records and
accounts of CMR and all major subcontractors including but not limited to books, records,
correspondence, instructions, drawings, receipts, payment records, vouchers, and memoranda
which relate in any way to the Project, and to any claim for additional compensation made by CMR
which relate to the Project and to any claim for additional compensation made by CMR. CMR
shall preserve and make available to Owner all financial records, supporting documents, statistical
records and any other documents which relate to the Project and to any claim for a period of eight
(8) years, plus one (1) year warranty following final completion of the Project. During the Project
and for the appropriate record retention period, CMR shall provide Owner access to its books and
records at CMR’s usual place of business upon seventy-two (72) hours written notice. If any audit
has been initiated and audit findings have not been resolved at the end of the end of the retention
period or within Five (5) years, whichever is longer, the books, records and accounts shall be
retained until resolution of the audit findings.
16.2
If the Arizona Public Records Act (A.R.S. §39-121.01 et seq.) is determined by Owner to be
applicable to CMR’s records, CMR shall comply with all requirements thereof. Any incomplete
or incorrect entry in such books, records and accounts shall be a basis for Owner’s disallowance
and recovery of any payment upon such entry.
16.2.1 CMR’s records shall include, but not be limited to accounting records (hard copy, as well
as computer readable data), written policies and procedures; subcontractor files (including
proposals of successful and unsuccessful bidders and bid recaps), surety files and bond
company files, original estimates, estimating work sheets, correspondence, change order
files (including, but not limited to, documentation covering negotiated settlements), back
charge logs and supporting documentation, general ledger entries detailing cash and trade
discounts earned, insurance rebates and dividends and any other supporting evidence
deemed necessary by the Owner to substantiate charges related to this Contract (all of the
foregoing hereinafter referred to as records).
16.2.2 CMR shall require all subcontractors, insurance agents and material suppliers (payees) to
keep and maintain comparable records for the same time period and to permit the Owner
to review, inspect, and audit such records. CMR shall include such requirements in all
written subcontracts and purchase orders issued.
16.3
The Owner reserves the right to audit the CMR records at any time during the life of this contract
whether or not the Project has been completed. If an audit inspection or other examination by the
Owner or the Owner’s representatives in accordance with this Article, disclose overcharges (of any
nature) by the CMR to the Owner, the cost of the Owner’s audit (whether performed by the Owner
or outside auditors) shall be reimbursed or paid to the Owner by the CMR. Any adjustments and/or
records of overcharges shall be made within a reasonable amount of time (not to exceed thirty (30)
days) from presentation of the Owner findings to the CMR.
ARTICLE 17 - AS BUILT RECORDS
17.1
As required by the General Conditions, General Requirements, and the technical specifications or,
in absence of technical specification requirements, prior to the issuance of Final Completion and
the CMR’s Request for Final Payment, the CMR shall furnish As Builts to the Design Professional
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 33
for review and approval. Submittals shall include (1) one electronic copy. Upon approval and
completion of any other Final Completion Requirements the CMR may request Final Payment. As
Builts shall indicate the exact locations of all structures and underground site utilities installed by
CMR, including all water, sewer, gas, fuel, telephone, security and electric lines and main, and
locations of all easements for such utilities. Such surveys shall be prepared by a licensed Arizona
surveyor who shall certify that the Work is installed and erected entirely upon the Project Site and
within the building restriction lines, if any, and does not overcharge or encroach upon any easement
or right-of-way of others. As Builts shall also include project specifications with markings
identifying installed product and materials.
ARTICLE 18 - CMR’S RESPONSIBILITY FOR THE WORK
18.1
CMR shall bear full responsibility for the Work against all loss or damage of whatsoever nature
sustained until final acceptance by Owner, and shall promptly repair any damage done from any
cause whatsoever, unless caused by the Owner or its Agents.
18.2
CMR shall be responsible for all materials, equipment and supplies pertaining to the Project. In
the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior
to final acceptance by Owner; CMR shall replace it without cost to Owner. CMR shall be
responsible to protect all materials, equipment and supplies, keeping them free from deterioration,
weathering, rusting or other action detrimental to the materials.
18.3
Owner reserves the right to award other contracts in connection with this Project. CMR shall afford
other persons or contractors reasonable opportunity for the introduction and storage of materials
and the execution of Work under such separate contracts. CMR shall properly connect this Work
with the Work of any other persons or contractors that might contract separately with Owner.
18.4
If any part of CMR’s Work depends on proper execution or results upon the Work of any other
persons, CMR shall inspect and promptly report to Owner any defects in such Work that render it
unsuitable for such proper execution and results. CMR’s failure to so inspect and report shall
constitute an acceptance of the other person’s work as fit and proper for the reception of CMR’s
Work, except as to defects which may develop in other work after the execution of CMR’s Work.
18.5
CMR shall conduct its operations and take all reasonable steps to coordinate the prosecution of the
Work so as to create no interference or impact on any other contractor on the site. Should such
interference or impact occur, and the CMR did not take reasonable steps, the CMR shall be liable
to the affected contractor for the cost of such interference or impact.
18.6
To ensure the proper execution of subsequent Work, CMR shall inspect the Work already in place
and shall at once report to Owner any discrepancy between the executed Work and the requirements
of the Contract Documents.
ARTICLE 19 - OCCUPATIONAL HEALTH AND SAFETY
19.1
CMR’S DUTY TO PROTECT: The CMR shall take all necessary precautions for safety of, and
shall provide protection to prevent damage, injury or loss to:
19.1.1
Employees on the Work and other persons who may be affected thereby;
19.1.2
The Work and materials and equipment to be incorporated therein, whether in storage on
or off the Site, under care, custody or control of the CMR or the CMR’s subcontractors;
19.1.3
The Work and materials and equipment to be incorporated therein, if the Project Site is
within a floodplain;
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 34
19.1.4
Other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal, relocation or
replacement in the course of construction; and
19.1.5
Construction or operations by the Owner or other contractors.
19.2
COMPLIANCE WITH SAFETY NOTICES AND LAWS: The CMR shall comply with all local,
state and federal applicable laws, ordinances, rules, regulations and lawful orders of public
authorities bearing on safety of persons or property or their protection from damage, injury or loss.
19.3
SAFETY PRECAUTIONS: The CMR shall erect and maintain, as required by existing conditions
and performance of the Contract safeguards for safety and protection, including posting danger
signs and other warnings against hazards, promulgating safety regulations and notifying Owner’s
and users of adjacent sites and utilities. The CMR shall also be responsible, at the CMR’s sole cost
and expense, for all measures necessary to protect any property adjacent to the Site and
improvements thereon. Any damage to such property or improvements shall be promptly repaired
by the CMR. Without limiting the indemnity provisions elsewhere in the Contract, the CMR shall
indemnify, defend and hold harmless the Indemnitees from and against any and all liabilities,
claims or demands (including attorney's fees and costs) arising out of or resulting from damage to
such property or improvements.
19.4
USE OF EXPLOSIVES OR HAZARDOUS MATERIALS: When use or storage of explosives or
other hazardous materials or equipment or unusual methods is necessary for execution of the Work,
the CMR shall exercise reasonable care and carry on such activities under supervision of properly
qualified personnel. When use or storage of explosives, other hazardous materials or equipment or
unusual methods are necessary, the CMR shall secure the Owner’s approval prior to their storage
or use.
19.5
CMR LIABILITY: The CMR shall promptly remedy damage and loss to any property caused in
whole or in part by the CMR or subcontractor or anyone or by anyone for whose acts they may be
liable.
19.6
SAFETY REPRESENTATIVE: The CMR shall designate a responsible member of the CMR’s
organization at the Site whose duty shall be the prevention of injuries/accidents and administration
of the CMR’s written Safety Program. The Safety Representative, if required by Owner, shall be
onsite full-time and shall have a minimum of a 30-Hour Occupational Safety and Health Training
Course within the past (2) years and must maintain that competency. This person shall attend all
Project safety meetings and shall conduct regular safety meetings for employees of the CMR and
Subcontractors engaged in construction activities at the Site, recording the dates and topics covered
during the safety meetings.
19.7
ACCIDENT/INJURY REPORTS: The CMR shall report in writing within one (1) working day of
the CMR’s knowledge, to the Owner, all accidents or injuries arising out of or in connection with
the Work which cause personal injury or property damage, giving full details and statements of any
witnesses. In addition, if death or serious personal injuries requiring admitted hospital stay or
serious damages are caused, the incident shall be reported immediately by telephone or messenger
to the Owner.
19.8
SAFETY COOPERATION: The CMR and its subcontractors shall cooperate fully with the Owner
and all interested parties on accident/injury prevention and claim handling procedures.
19.9
RISK OF LOSS: The CMR shall be fully responsible for, and shall bear the full risk of loss of, all
the CMR’s tools, equipment, materials, and other property.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 35
19.10 EMERGENCIES:
19.10.1
In an emergency affecting safety of persons or property, the CMR shall act, at the CMR’s
discretion, to prevent damage, injury or loss. Additional compensation or extension of
time claimed by the CMR on account of an emergency shall be determined as provided
in Article 7.
ARTICLE 20 - PERMITS, LICENSES AND IMPACT FEES
20.1
CMR LICENSE REQUIREMENT:
20.1.1 The CMR shall procure all permits, insurance, licenses for, and pay the charges and fees
necessary and incidental to, the lawful conduct of his/her business, and as necessary
complete any required certification requirements, required by any and all governmental or
non-governmental entities as mandated to maintain compliance with and in good standing
for all permits and/or licenses. The CMR shall keep fully informed of existing and future
trade or industry requirements, Federal, State and Local laws, ordinances, and regulations
which in any manner affect the fulfillment of a Contract and shall comply with the same.
CMR shall immediately notify both Office of Procurement Services and the using agency
of any and all changes concerning permits, insurance or licenses.
20.1.2 CMR and its Subcontractors furnishing finished products, materials or articles of
merchandise that will require installation or attachment as part of the Contract, shall
possess any licenses required. A CMR and its Subcontractors are not relieved of its
obligation to possess the required licenses by a subcontracting of the labor portion of the
Contract.
ARTICLE 21 – PERSONNEL
21.1
All personnel used or employed by the CMR in the performance of the Work shall be qualified by
training and experience to perform their assigned tasks. At the request of the Owner, the CMR
shall not use in the performance of the Work any personnel deemed by the Owner to be
incompetent, careless, or unqualified to perform the work assigned to that person him, or otherwise
unsatisfactory to the Owner.
21.2
The CMR agrees that in the performance of the Work called for by this Contract, it will employ
only such labor, and engage subcontractors that employ only such labor, as will not delay or
interfere with the speedy and lawful progress of the Project, and as will be acceptable to and work
in harmony with all other workers employed on the Project site or on any other building, structure,
or other improvement which the CMR or any other contractor may then be erecting or alerting on
behalf of the Owner.
21.3
CMR shall furnish the Owner on request, resumes of CMR's key personnel involved in the day-to-
day Work on the Project.
ARTICLE 22 - CMR'S WARRANTIES
22.1
CMR warrants to Owner that all materials and equipment under this Contract will be new unless
otherwise specified and that all of the Work will be of good quality free from faults and defects and
in conformance with the Contract Documents. All Work not conforming to these requirements,
including substitutions not properly approved and authorized by the Owner and Design
Professional may be considered defective and shall be repaired or replaced in accordance with the
requirements of this Contract. If required by Design Professional, CMR shall furnish satisfactory
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 36
evidence as to the kind and quality of materials and equipment. This warranty is not limited by the
provisions of Article 23 herein.
22.2
The CMR further represents and warrants:
22.2.1 That it is financially solvent, able to pay its debts as they mature, and is possessed of
sufficient working capital to perform this Contract; that is able to furnish the Materials, and
Services; that is experienced in and competent to perform the Work contemplated by this
Contract; and it is qualified to do the Work herein and is authorized to do business in the
State of Arizona.
22.2.2 That the CMR holds a license, permit or other special license to perform the services
included in this Contract, as required by law, or employs or works under the general
supervision of the holder of such license, permit or special license.
22.2.3 The CMR agrees that the Work shall be performed in a good and professional manner, free
from defects in materials and execution, and that all Materials shall be new and approved
by or acceptable to the Design Professional and Owner, except as otherwise expressly
provided for in the Contract Documents.
22.2.4 That CMR warrants that they will be in compliance with A.R.S. § 23-214(A) and 41-4401.
ARTICLE 23 - DEFECTIVE WORK
23.1
The Owner shall have the authority to reject or disapprove work which the Design Professional
finds to be defective. If required by Owner, CMR shall promptly either correct all defective work
or remove such defective work and replace it with non-defective work. CMR shall pay all direct,
indirect and consequential costs of such removal or corrections including cost of testing laboratories
and personnel.
23.2
Should CMR fail or refuse to remove or correct any defective work or to make any necessary repairs
in accordance with the requirements of the Contract Documents within the time indicated in writing
by the Owner, Owner shall have the authority to cause the defective work to be removed or
corrected, or make such repairs as may be necessary at CMR's expense. Any expense incurred by
Owner in making such removals, corrections or repairs shall be paid for out of any monies due or
which may become due to CMR and deducted from the GMP, or may be charged against the
Performance Bond. In the event of failure of CMR to make all necessary repairs promptly and
fully, Owner may declare a default.
23.3
If, within one (1) year after the date of Substantial Completion or such longer period of time as
may be prescribed by the terms of any applicable special warranty required by the Contract
Documents, any of the work is found to be defective or not in accordance with the Contract
Documents, CMR, after receipt of written notice from Owner, shall promptly correct such defective
or nonconforming work within the specified by Owner without cost to Owner, to do so. The CMR
shall be the point of contact and responsible for all administration and coordination associated with
correcting/resolving all subcontractor warranty claims for the duration of the specific warranty
period indicated by the specifications. In some instances this period may be longer than the one
(1) year general warranty period. Nothing contained herein shall be construed to establish a period
of limitation with respect to any other obligation, which CMR might have under the Contract
Documents.
23.4
Failure to reject any defective work or material shall not in any way prevent later rejection when
such defect is discovered, or obligate Owner to final acceptance.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 37
23.5
The CMR shall (I) replace any part of the work that fails to conform with the requirements of this
Contract that appear during progress of the work on the Project; (II) remedy any defects in the
Work due to faulty materials or workmanship which appear within a period of one (1) year from
the time of Substantial Completion of the Work or portions thereof hereunder or within such longer
period of time as may be set forth in the Contract Documents or as may be required by law; and
(III) replace, repair or restore any parts of the Project or furniture, fixtures, equipment or other
items placed therein (whether by the Owner or any other part) that are injured or damaged by any
such parts of the Work that do not conform to the requirements of this Contract or are due to defects
in the Work. The provisions of this Article 23 shall not apply to corrective work attributable solely
to the acts or omissions of any separate CMR or subcontractor of the Owner unless the CMR is
acting in such capacity or capacities. The cost of the CMR of performing any of its obligations
under this Article 23 shall be within the Guaranteed Maximum Price. The CMR's responsibility to
make repairs and redo work under this Article 23 is in addition to the CMR's responsibility to the
Owner for any other damages of any kind for which the CMR would be legally responsible.
23.6
If the Owner and the CMR deem it inexpedient to require the correction of work damaged or not
performed in accordance with the Contract Documents, an equitable deduction from the Contract
Price and the Guaranteed Maximum Price shall be made by agreement between the CMR and the
Owner. Until such settlement, the Owner may withhold such sums as the Owner deems just and
reasonable from monies, if any, due the CMR. If no monies are held by the Owner, reimbursement
shall be made to the Owner within thirty (30) days by the CMR.
23.7
The CMR's express warranty herein shall be in addition to, and not in lieu of, any other warranties
or remedies the Owner may have under this Contract, at law, or in equity for defective Work and
warranty periods will commence at Substantial Completion date.
ARTICLE 24 - CONSTRUCTION SIGNAGE
24.1
Any requirements for a Project sign shall be as set forth within the Technical Specifications section.
24.2
All construction signage located at the Project location shall be subject to the prior written approval
of the Owner. The CMR recognizes that all signage may be disallowed, in the Owner’s sole
discretion, and that existing signage or advertising on construction field offices, trailers,
construction fences, and other construction elements or aids, may be required to be masked or
deleted at no cost or expense to the Owner. Such signage will be considered an overhead expense
pursuant to Article 8.4 and if allowed shall not be included within the Cost of the Work.
ARTICLE 25 - OWNERSHIP OF CONTRACT DOCUMENTS
25.1
Drawing, specifications, designs, models, photographs, reports, surveys, and other data created for
and submitted by the CMR provided in connection with this Agreement are and shall remain the
property of the Owner whether the Project for which they are made is completed or not. All finished
or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports
prepared by CMR shall become the property of Owner and shall be delivered by CMR to Owner
within seven (7) days of termination of the Contract Documents by either party. Any compensation
due to CMR shall be withheld until all documents are received as provided herein.
ARTICLE 26 - CMR'S REPRESENTATIVE
26.1
CMR shall advise, the Owner, in writing of any limitations on the authority of CMR's representative;
otherwise, CMR's representative shall be considered to have full authority to execute any and all
instruments requiring the CMR's signature and to act on behalf of the CMR with respect to all
matters arising out of this Agreement.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 38
ARTICLE 27 - OWNER’S RIGHT TO TERMINATE CONTRACT
27.1
If CMR fails to begin the Work within the (10) calendar days after the Project initiation Date, or
fails to perform the Work with sufficient workers and equipment or with sufficient materials to
insure the prompt completion of the Work, or performs the Work unsuitably, or causes it to be
rejected as defective and unsuitable, or delays or discontinues the prosecution of the Work pursuant
to the accepted schedule or if CMR shall fail to perform any material term set forth in the Contract
Documents, including non-payment of subcontractors or materials providers, or if CMR shall
become insolvent or be declared bankrupt, or commit any act of bankruptcy or insolvency, or shall
make an assignment for the benefit of creditors, or from any other cause whatsoever shall not carry
on the Work in an acceptable manner, Owner may give notice in writing to CMR and its Surety of
such delay, neglect or default, specifying the same.
27.2
If CMR, within a period of ten (10) calendar days after such notice, does not proceed in accordance
therewith, then Owner may terminate the services of CMR, exclude CMR from the Project site and
take the prosecution of the Work out of the hands of CMR, and appropriate or use any or all materials
and equipment that are an integral part of the Work on the Project site as may be suitable and
acceptable. In such case, CMR shall not be entitled to receive any further payment until the Project
is completed.
27.3
In addition Owner, may enter into an agreement for the completion of the Project according to the
terms and provisions of the Contract Documents, or use such other methods as in Owner’s sole
opinion shall be required for the completion of the Project according to the terms and provisions of
the Contract Documents, or use such other methods as in Owner’s sole opinion shall be required for
the completion of the Project in an acceptable manner. All damages, costs and charges incurred by
Owner, together with the costs of completing the Project, shall be deducted from any monies due or
which may become due to CMR. In case the damages and expenses so incurred by Owner shall
exceed the unpaid balance, then CMR shall be liable and shall pay to Owner the amount of said
excess.
27.4
If after notice of termination of CMR's right to proceed, it is determined for any reason that CMR
was not in default, the rights and obligations of Owner and CMR shall be the same as if the notice
of termination had been issued pursuant to the Termination for Convenience clause as set forth in
Article 27.5 below.
27.5
This Contract may be terminated for convenience in writing by Owner upon ten- (10) day’s written
notice to CMR (delivered by certified mail, return receipt requested) of intent to terminate and the
date on which such termination becomes effective. In such case, CMR shall be paid for all work
executed and expenses incurred prior to termination in addition to termination settlement costs
reasonably incurred by CMR relating to commitments which had become firm prior to the
termination. Payment shall include reasonable profit for work and/or services performed. No
payment shall be made for profit for work and/or services that have not been performed.
27.6
Upon receipt of Notice of Termination pursuant to Article 27 or 27.3 above, CMR shall promptly
discontinue all affected work unless the Notice of Termination directs otherwise and deliver or
otherwise make available the Owner all data, drawings, specifications, reports, estimates, summaries
and such other information as may have been required by the Contract Documents whether
completed or in process.
ARTICLE 28 - RESOLUTION OF DISPUTES
28.1
To prevent all disputes and litigation, it is agreed by the parties hereto that Owner shall decide all
questions, claims, difficulties and disputes of whatever nature which may arise relative to the
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 39
technical interpretation of the Contract Documents and fulfillment of this Contract as to the
character, quality amount value of any work done and materials furnished, or proposed to be done
or furnished under or by reason of, the Contract Documents and Owner's estimates and decisions
upon all claims, questions, difficulties and disputes shall be final and binding. Any claim, question,
difficulty or dispute which cannot be resolved by mutual agreement of Owner and CMR shall be
submitted to the Alternative Dispute Resolution process as outlined in Exhibit G.
28.2
This Agreement shall be interpreted and construed in accordance with and governed by the laws of
the State of Arizona. Any controversies or legal problems arising out of this Agreement and any
action involving the enforcement or interpretation of any rights hereunder which might be eligible
for judicial resolution shall be submitted to the jurisdiction of the Superior Court of the State of
Arizona in and for Maricopa County, and shall be governed by the laws of the State of Arizona.
By entering into this Contract, CMR and Owner hereby expressly waive any rights either party may
have to trial by jury of any civil litigation related to, or arising out of the Project. CMR, pursuant
to Article 11 of this Agreement, shall specifically bind all subcontractors to the provisions of this
Contract.
28.3
Pending resolution of any dispute arising under this Contract, other than termination hereof, the
CMR shall proceed diligently with performance of this Contract and the Owner shall continue to
make payments in accordance with the Contract Documents.
ARTICLE 29 – NOTICES
29.1
Notices: All notices to be given hereunder shall be in writing, and may be given by depositing the
same in the United States Mail addressed to the party to be notified, postpaid, return receipt
requested or by delivering the same in person to such party with written receipt of
acknowledgement of delivery by a person at the address (s) set forth below. All notices to be given
to the parties hereto shall be sent to or made to the addresses shown below. The place for giving
notice shall remain the same as set forth herein unless changed in the manner provided in this
Article.
29.2
Whenever either party desires to give notice to the other, such notice must be in writing, sent by
certified United States mail, postage prepaid, return receipt requested, or by hand-delivery with a
request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is
intended at the place last specified. The place for giving notice shall remain the same as set forth
herein until changed in writing in the manner provided in this section. For the present, the parties
designate the following:
29.3
FOR MARICOPA COUNTY:
Charles Jones, Director
Facilities Management
Maricopa County
401 W. Jefferson Street
Phoenix, AZ 85003
AND
Kevin Tyne, Chief Procurement Officer
Office of Procurement Services
Maricopa County
301 W. Jefferson Street, Suite 700
Phoenix, Arizona 85003
29.4
FOR CMR:
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 40
Phil Glenn, Vice President of Operations
Kitchell Contractors, Inc of Arizona
1707 E. Highland Avenue
Phoenix, AZ 85016
And to DESIGN PROFESSIONAL:
Larry Smith, Architect/Principal
DLR Group, Inc.
6255 N. 24th Street, Ste 250
Phoenix, AZ 85016
ARTICLE 30 - REQUIREMENTS FOR CONTRACTS WITH SBE GOALS
30.1
It is Maricopa County’s policy to provide Small Business Enterprises (SBE) with the opportunity to
participate in the County’s solicitation process and to be considered to fulfill the requirements for various
commodities and services. This contract has no requirement for utilization of SBE’s; however, it does
require that utilization of SBE firms by CMR be reported for tracking by the County. A full description of
the County’s SBE program and the contractual requirements are attached hereto and incorporated herein by
reference in Exhibit F.
ARTICLE 31 - OTHER TERMS & CONDITIONS
31.1
THIRD PARTY BENEFICIARIES: Neither CMR nor Owner intends to directly or substantially benefit a
third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this
Contract and that no third party shall be entitled to asset a claim against either of them based upon this
Contract.
31.2
CONFLICTS:
31.2.1 Neither CMR nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible with
CMR’s loyal and conscientious exercise of judgment related to its performance under this
Agreement.
31.2.2 CMR agrees that none of its officers or employees shall, during the term of this Agreement, serve
as an expert witness against COUNTY in any legal or administrative proceeding in which he or she
is not a party, unless compelled by court process. Further, CMR agrees that such persons shall not
give sworn testimony or issue a report or writing, as an expression of his or her expert opinion,
which is adverse or prejudicial to the interests of COUNTY in connection with any such pending or
threatened legal or administrative proceeding. The limitations of this section shall not preclude
CMR or any other persons from representing themselves in any action or in any administrative or
legal proceeding.
31.2.3 In the event CMR is permitted to utilize subcontractor to perform any services required by this
Agreement, CMR agrees to prohibit such subcontractor, by written contract, from having any
conflicts within the meaning of this section.
31.3
CANCELLATION: The Owner hereby gives notice that pursuant to A.R.S. § 38-511 (A) this contract may
be canceled without penalty or further obligation within three (3) years after execution if any person
significantly involved in initiating, negotiating, securing, drafting, or creating a contract on behalf of the
Owner is, at any time while the contract or an extension of the contract is in effect, an employee or agent of
any other part 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. Cancellation under this section shall be effective when written notice
from the Owner is received by all parties to the contract. In addition, the Owner may recoup any fee or
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 41
commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting or
creating the contract on behalf of the Owner from any other party to the contract arising as a result of the
contract.
31.4
COMPLIANCE WITH LAWS: CMR shall comply with all federal state, and local laws, codes, ordinances,
rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement.
31.5
SEVERANCE: In the event a portion of this Agreement is found by a court of competent jurisdiction to be
invalid, the remaining provisions shall continue to be effective unless COUNTY or CMR elects to terminate
this Agreement. An election to terminate this Agreement based upon this provision shall be made within
seven (7) days after the finding by the court becomes final.
31.6
JOINT PREPARATION: Preparation of this Contract has been a joint effort of Owner and CMR and the
resulting document shall not, solely as a matter of judicial construction, be construed more severely against
one of the parties than any other.
31.7
DRUG FREE WORKPLACE: It is a requirement of Owner that it enter into contracts only with firms that
certify the establishment of a drug-free workplace. Execution of this Contract by CMR shall also serve, as
CMR's required certification that it either has or that it will establish a drug-free workplace.
31.8
ASSIGNMENT: The CMR shall not assign this Contract or subcontract it as a whole without the written
consent of the Owner by and through the Chief Procurement Officer for Maricopa County; nor shall the
CMR assign any monies due or to become due to it hereunder, without the previous written consent of the
Owner.
31.8.1
No consent or waiver, express or implied, by either party to this Contract to or of any breach or
default by the other in the performance of any obligations hereunder shall be deemed or construed
to be a consent or waiver to or of any other of future breach or default by such party hereunder,
nor deemed to be a modification of this Contract.
31.8.2
Failure on the part of any party hereto to complain of any act or failure to act of the other party or
to declare the other party in default hereunder, irrespective of how long such failure continues,
shall not constitute a waiver of the rights of such party hereunder, provided however this section
shall not alter or amend the notice provisions set forth in the Construction Documents including
but not limited to, in Article 6. Inspection by, payment by or tentative approval or acceptance by
the Owner, or the failure of the Owner to perform any inspection hereunder shall not constitute a
final acceptance of the Work or any part thereof and shall not release the CMR from any of its
obligations hereunder.
31.9
CONSTRUCTION OF TERMS: Unless the context clearly intends to the contrary, words singular or plural
in number shall be deemed to include the other and pronouns having masculine or feminine gender shall be
deemed to include the other. The term "person" shall be deemed to include an individual, corporation,
unincorporated organization, partnership, trust, government and governmental agency or subdivision, as the
context shall require.
31.10 CAPTIONS: The captions used for the Articles of this Contract are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of the intent of this Contract or any Article
hereof.
31.11 ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS: These Contract Documents incorporate and
include all prior negotiations, correspondence, conversations, agreements, and understandings applicable to
the matters contained herein and the parties agree that there are no commitments, agreements or
understanding concerning the subject matter of this Contract that are not contained in the Contract
Documents. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon
any prior representations or agreements, whether oral or written. It is further agreed that no modification,
amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 42
written document in accordance with Article 7. In the event any provision of the Contract Documents shall
be found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the remainder of this
Contract shall not be affected thereby and each remaining provision, term, covenant or condition of the
Contract Documents shall continue to be effective.
31.12 PRIOR AGREEMENTS: This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained herein and the parties
agree that there are no commitments, agreements or understandings concerning the subject matter of this
Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein
shall be effective unless set forth in writing in accordance with Article 7 of this document.
31.13 INCORPORATION BY REFERENCE: The truth and accuracy of each “Whereas” clause set forth herein
is acknowledged by the parties. The attached Exhibits are incorporated into and made a part of this
Agreement.
31.14 LEGAL WORKER REQUIREMENTS: As required by Arizona Revised Statutes §41-4401, the County is
prohibited after September 30, 2008 from awarding a contract to any service or construction CMR who fails,
or whose subcontractors fail, to comply with Arizona Revised Statutes § 23-214-A. The CMR warrants that
it complies fully with all federal immigration laws and regulations that relate to its employees, that it shall
verify, through the employment verification pilot program as jointly administered by the U.S. Department
of Homeland Security and the Social Security Administration or any of its successor programs, the
employment eligibility of each employee hired after December 31, 2007, and that it shall require its
subcontractors and sub-subcontractors to provide the same warranties to the CMR. The CMR acknowledges
that a breach of this warranty by CMR or by any subcontractor or sub-subcontractor under this Contract shall
be deemed a material breach of this Contract, and is grounds for penalties, including termination of this
Contract, by Maricopa County. Maricopa County retains the right to inspect the records of any CMR,
subcontractor and sub-subcontractor employee who performs work under this Contract, and to conduct
random verification of the employment records of the CMR and any subcontractor and sub-subcontractor
who works on this Contract, to ensure that the CMR and each subcontractor and sub-subcontractors
complying with the warranties set forth above. CMR shall be responsible for all costs associated with
compliance with this requirement.
31.15 CERTIFICATION REGARDING DEBARMENT AND SUSPENSION:
31.15.1 The undersigned (authorized official signing for the contractor/bidder) certifies to the best of his
or her knowledge and belief, that the contractor/bidder, and its principals:
31.15.1.1
Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from covered transactions by any Federal
Department or agency
31.15.1.2
Have not within 3-year period preceding this solicitation/contract been
convicted of or had a civil judgment rendered against them for commission of
fraud or a criminal offense in connection with obtaining, attempting to obtain,
or performing a public (Federal, State or local) transaction or contract under a
public transaction; violation of Federal or State antitrust statues or commission
of embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property;
31.15.1.3
Are not presently indicted or otherwise criminally or civilly charged by a
government entity (Federal, State or local) with commission of any of the
offenses enumerated in this paragraph of this certification; and
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 43
31.15.1.4
Have not within a 3-year period preceding this Contract had one or more public
transaction (Federal, State or local) terminated for cause of default.
31.15.2 Should the contractor/bidder not be able to provide this certification, a comprehensive explanation
as to why should be attached to its contract.
31.15.3 The contractor agrees to include, without modification, this clause in all lower tier covered
transactions (i.e. transactions with subcontractors) and in all solicitations for lower tier covered
transactions related to this contract.
31.16 INFLUENCE:
31.16.1 As prescribed in Article 12 of the Maricopa County Procurement Code, any effort to
influence an employee, or agent, to breach the Maricopa County Ethical Code of Conduct
or any ethical conduct, may be grounds for Debarment or Suspension under Article 9. An
attempt to influence includes, but is not limited to:
31.16.2 A Person offering or providing a gratuity, gift, tip, present, donation, money,
entertainment or educational passes or tickets, or any type valuable contribution or
subsidy,
31.16.3 That is offered or given with the intent to influence a decision, obtain a contract, garner
favorable treatment, or gain favorable consideration of any kind.
31.16.4 If a Person attempts to influence any employee or agent of Maricopa County, the Chief
Procurement Officer, or his designee, reserves the right to seek any remedy provided by
the Maricopa County Procurement Code, any remedy in equity or in the law, or any
remedy provided by this contract
31.17 AMENDMENTS: All amendments to this Contract shall be in writing and approved/signed by both parties.
Maricopa County Office of Procurement Services shall be responsible for approving all amendments for
Maricopa County.
31.18 UNIFORM ADMINISTRATIVE REQUIREMENTS
When applicable and by entering into this Contract the Contractor agrees to comply with all applicable
provisions of Title 2, Subtitle A, Chapter II, PART 200—UNIFORM ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS
contained in Title 2 C.F.R. § 200 et seq.
31.19 FORCED LABOR
By submitting a bid for this solicitation and/or entering into a contract as a result of this solicitation,
contractor agrees to comply with all applicable portions of Arizona Revised Statutes Section 35-394.
Contracting; procurement; prohibition; written certification; remedy; termination; exception; definitions.
Contractor certifies that it does not currently, and agrees for the duration of the contract, that it will not
use:
The forced labor of ethnic Uyghurs in the People’s Republic of China.
Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 44
Any contractors, subcontractors or suppliers that use the forced labor or any good or services produced by
the forced labor of ethnic Uyghurs in the People’s Republic of China.
If contractor becomes aware during the term of the agreement that contractor is not in compliance with
this paragraph, the contractor shall notify the County within five business days after becoming aware of
the noncompliance. If the contractor fails to provide a written certification to the County that the contractor
has remedied the noncompliance within 180 days after notifying the County of its noncompliance, then
the agreement terminates, except that if the agreement termination date occurs before the end the 180 day
period, the agreement terminates on the agreement termination date.
31.20 WRITTEN CERTIFICATION PURSUANT TO A.R.S. § 35-393.01
If vendor engages in for-profit activity and has 10 or more employees, and if this agreement has a
value of $100,000 or more, vendor certifies it is not currently engaged in, and agrees for the duration
of this agreement to not engage in, a boycott of goods or services from Israel. This certification
does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50
U.S.C. § 4842.
[SIGNATURES ON FOLLOWING PAGE]
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 45
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
date first above written, in counterparts, each of which shall, without proof or accounting for the
other counterparts, be deemed an original contract.
250038-CMR
Office Space Optimization Project
Principal (Signature)
Date
Printed Name
Federal Tax Identification Number
Title
Arizona Contractor’s License Number
Net 14
909-24
Vendor Terms
NIGP Commodity Code (Advantage)
COUNTY OF MARICOPA, ARIZONA
RECOMMENDED BY:
ACCEPTED AND APPROVED:
Department Head
Date
Chairman
Date
Board of Supervisors
ATTEST:
Clerk of the Board
Date
LEGAL REVIEW
Approved as to form and within the powers and
authority granted under the laws of the State of
Arizona to Maricopa County.
By:
Deputy County Attorney
Date:
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
10/3/2025
Phil Glenn
86-0542011
Vice President of Operations
067969
October 6, 2025
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 46
ATTACHMENT A
[General Condition Costs, Key Personnel and Labor Rates per Section 8.3.2.]
See Kitchell Office Space Optimization Projects, Chambers Building Redesign, Guaranteed Maximum
Price #3, October 1, 2025
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 47
EXHIBIT A - CONSTRUCTION DOCUMENTS
a. Drawings & Plans dated: August 11, 2025
b. Specifications dated: August 11, 2025
These documents are voluminous and maintained separately from the contract documents but are
incorporated into the contract as though fully set forth and attached.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 48
EXHIBIT B - GMP PROPOSAL
(GMP Summary Document follows – full proposal is found in the Project file and is incorporated into the
contract as though fully set forth and attached)
See Kitchell Office Space Optimization Projects, Chambers Building Redesign, Guaranteed
Maximum Price #3, October 1, 2025
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 49
EXHIBIT C - INSURANCE CERTIFICATE(S)
The Insurance Certificate document(s) follow this cover page and are incorporated into the contract as
though fully set forth therein.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
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Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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EXHIBIT D - PAYMENT BOND
(Document follows and is incorporated into the contract as though fully set forth therein.)
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
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Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
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EXHIBIT E - PERFORMANCE BOND
(Document follows and is incorporated into the contract as though fully set forth therein.)
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 52
EXHIBIT F - MARICOPA COUNTY SMALL BUSINESS ENTERPRISE PROGRAM
CMR CONTRACTING REQUIREMENTS
PART 1:
PURPOSE
1.1
It is Maricopa County’s policy to provide Small Business Enterprises (SBE) with the
opportunity to participate in the County’s solicitation process and to be considered to fulfill the
requirements for various commodities and services. This contract has no requirement for
utilization of SBEs, however it does require that utilization of SBE firms by CMR be reported
for tracking by the County.
PART 2:
REPORTING APPLICABLE TO USE OF SBEs.
2.1
SBE CMR: An SBE CMR may indicate the SBE participation for that portion of the contract
that they themselves perform, plus those portions subcontracted to other SBE firms.
2.2
SBE Subcontractor: The SBE amount will be based on that portion (dollar value) of the contract
that the SBE Subcontractor performs.
2.3
SBE – Non-SBE Joint Venture: A joint venture consisting of SBE participation and non-SBE
participation, functioning as a CMR, may list the SBE participation on the basis of the
percentage of profit accruing to the SBE firm.
2.4
Lower Tier Non-SBE Participation: SBE Subcontractors proposing to further subcontract to
non-SBE CMRs shall not have that portion of subcontracting activity considered when
determining SBE participation.
2.5
SBE Suppliers: Any SBE Supplier that manufactures or substantially alters the material or
product it supplies will have that portion of activity considered when determining SBE
participation.
2.6
SBE Trucking: trucking by SBEs will be the amount to be paid when the SBE trucker has
performed the trucking with his/her trucks, tractors, and employees or when an SBE trucking
broker has signed agreements with SBE truckers.
PART 3:
REQUESTS FOR PAY
3.1
Each Request for Payment, including the final Request for Payment must be accompanied by
a Maricopa County SBE Program Participation Report in the form as provided in Attachment
1 to this Section.
PART 4:
ATTACHMENTS
4.1
Attachment 1: SBE Participation Reporting Form (1 page).
END OF SECTION
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 53
Maricopa County Small Business Enterprise Program
Participation Reporting Form
This form is to be submitted with each pay application or invoice. Any pay application or invoice without
this form attached is subject to rejection as not being a completed pay application or invoice pursuant to
the terms of the contract.
_____________________________
___________________________________
Name of Prime Consultant/CMR
Contract No.
_____________________________
___________________________________
Contact Person
Project No.
_____________________________
$__________________________________
Street Address
Amount of this Pay Application/Invoice
_____________________________
City, State ZIP
Complete below with information on the SBE firms utilized as Subconsultants/Subcontractors for this pay
application/invoice. If work was self-performed and your firm, as the prime, is an SBE firm pursuant to
A.R.S. § 41-1001, et seq., then you may list your firm as the SBE firm.
SBE Firm Name
SBE Firm Address
Type of Work
Performed
$ Pd to SBE this
App/Inv
$
$
$
$
$
$
$
$
$
$
☐ A mark in this box certifies that no SBE firms were utilized as the prime, Subconsultant or
Subcontractors with respect to this pay application/invoice.
Signature
Date
Printed Name
Phone No.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 54
EXHIBIT G - ALTERNATIVE DISPUTE RESOLUTION
1.1
Scope. Notwithstanding anything to the contrary provided elsewhere in the Contract, the alternative
dispute resolution (“ADR”) process provided herein shall be the exclusive means for resolution of
claims or disputes arising under or related to 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. No changes can be made to this process without the
mutual assent of the County and the claimant. 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.
1.2
Meeting of Principals. When a claim is made or a dispute (hereafter “dispute”) as described in
Paragraph 1.1 arises, senior representatives of the County and the claimant will meet personally
within ten (10) business days to discuss the dispute and attempt to resolve it. If, after good faith
efforts, resolution is not achieved, the dispute will proceed to mediation.
1.3
Qualifications of Mediator and Arbitrators. Any person selected as mediator or arbitrator, either as
single arbitrator as a member or Chair of the arbitration panel, shall be a member of the State Bar of
Arizona and have experience in construction law.
1.4
Mediation. If the parties have been unable to resolve the dispute after a meeting of principals, the
parties may enter into mediation. The parties shall jointly select a mediator. The parties may
mutually agree to waive mediation and proceed directly to arbitration. If the mediation process is
requested by either party, the mediation period shall be informal and shall not exceed sixty (60)
calendar days from the selection of the mediator. During the mediation process either party may
terminate mediation on written notice to the other party and the mediator.
1.5
Binding Arbitration Procedure. The following binding arbitration procedure shall serve as the
exclusive method to resolve a dispute if mediation is unsuccessful, if mediation has been waived by
the parties, or if a party requests arbitration during the mediation process. Except as provided in
Section 1.7.5 and 1.7.9, the decision of the arbitrator or arbitrator panel is final and binding on the
parties and not subject to further judicial review.
1.5.1
A party requesting binding arbitration shall notify the other party of their demand for
arbitration in writing within seven (7) calendar days of (1) the failure of mediation; (2) waiver
of mediation; or (3) of the party’s demand to terminate mediation.
1.5.2
If the CMR requests arbitration it shall post a cash bond with the arbitrator in an amount
agreed upon by the parties or, in the event of no agreement, the arbitrator shall establish the
amount of the cash bond to defray the cost of the arbitration and the proceeds from the bond
shall be allocated in accordance with paragraph 1.7.7. The bond must be in the full amount
agreed upon or as established by the Arbitrator to pay the potential cost of the full arbitration
proceeding. The bond must be posted with and received by the arbitrator within five (5)
calendar days after the demand for arbitration.
1.5.3
Disputes involving less than $200,000 shall be heard by one single arbitrator chosen by
agreement of the parties. If the parties cannot agree on the single arbitrator, then the parties
shall each submit two names to a Judge designated by Maricopa County who shall select the
single arbitrator.
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 55
1.5.4
For disputes in excess of $200,000, the arbitration panel shall consist of three arbitrators: the
County's appointed arbitrator, the CMR's appointed arbitrator and a third arbitrator who shall
be selected by the parties' arbitrators and serve as the Chair of the arbitration panel.
1.5.5
The arbitration is to be convened and administered under the Revised Uniform Arbitration
Act (“RUAA”) (A.R.S. § 12-3001 et seq.) and the American Arbitration Association
Construction Rules shall serve as a guideline for proceedings, thus as a supplement to the
RUAA.
1.6
Expedited Hearing. Any party can request the single arbitrator or the Chair of the arbitration panel
to set an expedited hearing. If the single arbitrator or the Chair of the arbitration panel determines
that the circumstances justify it, the single arbitrator or the Chair of the arbitration panel will 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 thirty (30) calendar days
after notification of request for arbitration having been received. This deadline can be extended only
with the consent of all the parties to the dispute, or by decision of the single arbitrator or the Chair of
the arbitration panel upon a showing of good cause.
1.7
Procedure. The single arbitrator or the arbitration panel 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 single arbitrator or 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
single arbitrator or the Chair of the arbitration panel 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
single arbitrator or the Chair 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 or enforce such orders of
the Chair.
1.7.1
Hearing Days. In order to effectuate parties’ goals, the hearing once commenced, will
proceed from working day to working day until concluded, absent a showing of good cause.
1.7.2
Award. The single arbitrator shall within ten (10) calendar days of the conclusion of a
hearing issue an award. The arbitration panel shall, within ten (10) calendar 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 1.7.7 herein. The award is to be in accordance with
the Contract and the law of the State of Arizona.
1.7.3
Scope of Award. Regardless of the provisions of the RUAA, the arbitration panel shall be
without authority to award punitive damages, and any such punitive damage award shall be
void. If an award is made against any party in excess of one hundred thousand dollars
($100,000), exclusive of interest, arbitration fees, costs and attorneys’ fees, it shall be
supported by written findings of fact, conclusions of law and a statement as to how damages
were calculated.
1.7.4
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 over the claim as regards its amount upon application of any party at
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 56
the earliest convenient time, but not later than the commencement of the arbitration hearing.
If the dispute is determined to involve less than $200,000, the arbitration shall continue
before the Neutral Arbitrator as a single arbitrator, with the party appointed arbitrators being
excused.
1.7.5
Entry of Judgment. As provided in the RUAA, any party can make application to the
Maricopa County Superior Court for confirmation of an award, and for entry of judgment on
it.
1.7.6
Severance and Joinder. To reduce the possibility of inconsistent adjudications, the Mediator
or the single arbitrator or arbitration panel, may: (i) at the request of any party, join and/or
sever parties, and/or claims arising under other contracts containing this ADR provision, and
(ii) the Mediator, on his own authority, or the single arbitrator or arbitration panel may, on
its own authority, join or sever parties and/or claims subject to this ADR process as deemed
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 A/E, Owner and Project
Professionals shall not be joined as a party to any claim made by a CMR. Nothing herein
shall create the right by any party to assert claims against another party not arising under or
related to the Contract or not recognized under the substantive law as applicable to the
dispute. Neither the Mediator nor the single arbitrator or arbitration panel is authorized to
join to the proceeding parties not in privity with the County. The CMR cannot be joined to
any pending arbitration proceeding, without CMR’s express written consent and unless CMR
is given the opportunity to participate in the selection of the single arbitrator or non-County
appointed arbitrator.
1.7.7
Fees and Costs. Each party shall bear its own fees and costs in connection with any informal
hearing before the mediation. All fees and costs associated with any arbitration before the
single panel or arbitration panel, including without limitation the arbitrator fees, 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 the event that CMR is the non-
prevailing party, all fees and costs as noted above shall first be paid out of the bond posted
with the arbitrator. In no event shall the CMR’s obligation to pay fees and costs be limited
to the amount of the bond posted herein. In no event shall any arbitrator’s hourly fees be
awarded in an amount in excess of $250 per hour and (i) costs shall not include any travel
expenses in excess of mileage at the rate paid by Maricopa County, not to exceed a one way
trip of 150 miles, and (ii) all travel expenses, including meals, shall be reimbursed pursuant
to the travel policy of Maricopa County 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 single arbitrator or arbitration panel.
1.7.8
Confidentiality. Any proceeding initiated under this ADR provision shall be deemed
confidential to the maximum extent allowed by Arizona law and, except for disclosures to a
party’s attorneys or accountants, no party shall 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. This provision does not affect the County’s right to inform the County
Supervisors of the dispute.
1.7.9
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 may become
necessary to preserve the status quo and prevent immediate and irreparable harm to a party
or to the Project pending resolution of a dispute pursuant to ADR provided herein. No court
may order any permanent injunctive relief except as may be necessary to enforce an order
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 57
entered by the arbitration panel. The fees and costs incurred in connection with any such
equitable proceeding shall be determined and assessed in ADR.
1.7.10 Change Order. Any award in favor of the CMR against the County or in favor of the County
against the CMR shall be reduced to a Change Order and executed by the parties in
accordance with the award and the provisions of the Contract or a settlement agreement as
appropriate.
1.7.11 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.
1.8
Inclusion in Other Contracts. The CMR shall cooperate with the County in efforts to include this
ADR provision in all other Project contracts.
END OF EXHIBIT
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD
Office Space Optimization Project
Serial # 250038-CMR
Contract between Maricopa County and Kitchell Contractors, Inc. of Arizona
Page # 58
EXHIBIT H - SUBCONTRACTOR MANAGEMENT PLAN
(The Subcontractor Management Plan is incorporated into the CMR’s Statement of Qualification
submitted during the procurement process. This Plan is incorporated herein by reference as though fully
set forth in the contract documents.)
Docusign Envelope ID: 847B479C-2716-47DB-BD39-D07A5C76FAFD