Agreement with Entellus Inc

CITY OF GLENDALE, ARIZONA
STANDARD FORM AGREEMENT BETWEEN OWNER AND
DESIGN PROFESSIONAL
(CONSTRUCTION MANAGER AT RISK)

May 15, 2023 Edition

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TABLE OF CONTENTS

ARTICLES
ARTICLE 1
PROJECT

ARTICLE 2
DP’S SERVICES AND RESPONSIBILITIES

ARTICLE 3
ADDITIONAL SERVICES

ARTICLE 4
REIMBURSABLE EXPENSES

ARTICLE 5
OWNER'S RESPONSIBILITIES

ARTICLE 6
COMPENSATION FOR THE DP’S SERVICES

ARTICLE 7
INTENTIONALLY OMITTED

ARTICLE 8
DP’S ACCOUNTING RECORDS

ARTICLE 9
INSURANCE AND INDEMNITY

ARTICLE 10
OWNERSHIP OF DOCUMENTS

ARTICLE 11
NO ASSIGNMENTS

ARTICLE 12
REQUESTS FOR CONTRACTUAL ADJUSTMENTS AND DISPUTE RESOLUTION

ARTICLE 13
TERMINATION OR SUSPENSION

ARTICLE 14
EXTENT OF AGREEMENT

ARTICLE 15
INTENTIONALLY OMITTED

ARTICLE 16
PROJECT-SPECIFIC PROVISIONS

ARTICLE 17
COMPLIANCE AND LEGAL WORKER REQUIREMENTS

ARTICLE 18
MISCELLANEOUS

City of Glendale Standard Form Agreement Between Owner and Design Professional (May 15, 2023)

Page | 3

TABLE OF CONTENTS (continued)

EXHIBITS
EXHIBIT A - Scope of Services for Design Professional
EXHIBIT B - Schedule of Payments
EXHIBIT C - Design Professional Proposal Dated Feburary, 26", 2024
EXHIBIT D - Dispute Resolution Procedures

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STANDARD FORM AGREEMENT BETWEEN OWNER
AND
DESIGN PROFESSIONAL
(CONSTRUCTION MANAGER AT RISK EDITION)

This Agreement “DP Agreement” is made day of in the year 2024, by and
between CITY OF GLENDALE, ARIZONA, an Arizona municipal corporation (“OWNER”),
located at 5850 West Glendale Avenue, Glendale, Arizona, 85301 and ENTELLUS, INC.
(“Design Professional” or “DP”), located at 3033 N. 44" St., Ste. 250, Pheonix, AZ 85018, for
services in connection with the Project listed in Article 1 below.

In consideration for the mutual covenants and obligations contained herein, Owner and

DP agree as follows:

Article 1 Project.
1.1 Project Title. Waterline Improvements 59 Avenue
1.2 Project Number. 232404

1.3 Project Location. 59" Avenue - Glendale Ave. to Northern Ave.

1.4 Scope of Service. Defined and described in “Exhibit A — Scope of Services for DP”,
attached.

1.5 Schedule. Defined and described in “Exhibit A — Scope of Services for DP”, attached.
1.6 For Basic Services, the DP's basic compensation shall be computed on the following basis:
The Basic Services fee for all subphases is three hundred sixty-four thousand, one hundred sixty-
four dollars and 18/100 ($364,164.18). Reimbursable expenses, as defined herein, shall not
exceed fifty-three thousand, eight hundred and fifty-five dollars ($53,855.00). Fee is further
defined and described in “Exhibit B — Schedule of Payments”.

1.7. Representatives of the Parties, Authority.

1.7.1 Owner’s Representatives.

1.7.1.1 Owner designates Martin A. Soma PE, Senior Civil Engineer, City of Glendale
Engineering Department, 5850 W. Glendale Ave, Glendale Az 85301 as the “Owner’s Senior
Representative”, who has the authority and responsibility set forth in this DP Agreement, including
the authority and responsibility for avoiding and resolving disputes under Article 12.

1.7.1.2 Owner designates Martin A. Soma PE, Senior Civil Engineer, City of Glendale
Engineering Department, 5850 W. Glendale Ave, Glendale Az 85301 as the “Design Phase

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“Representative”, who has the authority and responsibility set forth in this DP Agreement.

1.7.1.3 Owner designates Martin A. Soma PE, Senior Civil Engineer, City of Glendale
Engineering Department, 5850 W. Glendale Ave, Glendale Az 85301 as the “Construction Phase
Representative”, who has the authority and responsibility set forth in this DP Agreement.

1.7.2 DP’s Representatives.

1.7.2.1 DP designates William Linck, President, Entellus, Inc., 3033 N. 44" St., Ste. 250,
Phoenix, AZ 85018 as the “DP’s Senior Representative” , who has the authority and responsibility
set forth in this DP Agreement, including the authority and responsibility for avoiding and resolving
disputes under Article 12.

1.7.2.2 DP designates Martin Weeden, Project Manager, Entellus, Inc., 3033 N. 44th St.,
Ste. 250, Phoenix, AZ 85018 as the “Project Management “Representative,” who has the authority
and responsibility set forth in this DP Agreement.

1.7.2.3 DP’s Representatives, as approved by the Owner, shall not be replaced without
the Owner’s prior written approval.

1.7.2.4 DP warrants and shall ensure that only representatives who are authorized to legally
bind DP will sign documents associated with this DP Agreement.

Article 2 DP’s Services and Responsibilities.
2.1 General.

2.1.1 Intent. In accordance with the City of Glendale Charter, Owner intends to enter into a
contract for services by a qualified design professional for the architectural and engineering
services and construction administration services set forth in “Exhibit A — Scope of Services for
DP” (hereinafter the “Scope of Services”), including the Basic Services and the Additional
Services (as defined below) (collectively “Professional Services”). The DP shall render the
Professional Services in the phases and subphases described in the Scope of Services and shall be
coordinated with the services of the Construction Manager at Risk (“CM@Risk”) as described
herein and in the “CM@Risk Standard Form Agreement Between Owner CM@Risk” (“CM@Risk
Agreement”) which is incorporated by reference. The phases and subphases are to be performed
in the sequence set forth in the Scope of Services, and DP shall not proceed with the next phase or
subphase in the Scope of Services without prior written authorization from the Owner.

2.1.1.1 Essential Conditions. Due in part to the nature of the work DP is to perform, it is
understood that the times for commencing and completing the DP’s Professional Services as
specified herein are ESSENTIAL CONDITIONS of this DP Agreement. It is mutually understood
and agreed that the Professional Services by DP set forth in this DP Agreement shall be promptly
commenced on a date to be specified in a notice to proceed, and in no event later than the day after
the execution of this DP Agreement, whichever first occurs. Consistent with the Standard of Care
set forth in this DP Agreement, all Professional Services shall be prosecuted regularly, diligently,

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and uninterruptedly at such rate of progress as will assist the CM@Risk to complete the Project
within the time set forth in the Scope of Services and pursuant to the “Exhibit B — Schedule of
Payments”(“Schedule of Payments’’).

2.1.1.2 DP Agreement Documents. The “DP Agreement” is comprised of the following in
order of precedence:

2.1.1.2.1 This DP Agreement including Exhibits, as subsequently modified
by Amendments, Addenda, or Supplemental Authorizations. Within the Agreement and its
Exhibits the following Order of Precedence applies:

(i) This Agreement

(ii) Exhibit A — Scope of DP Services (Scope of Services)

(iii) Exhibit B— Schedule of Payments (Schedule of Payments)
(iv) Exhibit C— DP Proposal

(v) Exhibit D — Dispute Resolution Procedures

2.1.1.2.2 Owner’s Request for Qualifications (RFQ) including all Exhibits,
Addenda and Clarifications.

2.1.1.2.3 The DP’s qualifications submission as required by the RFQ,
including any clarifications and revisions of the submission.

2.1.1.2.4 The following other documents, if any, forming part of the
Agreement: N/A.

2.1.1.3 Changes.

2.1.1.3.1 The Owner may at any time, by written notice to DP, make changes
within the general scope of this DP Agreement including, without limitation, to any one or more
of the following: (i) the Scope of Services, including required drawings, designs, or specifications;
(ii) method of delivery; (iii) Schedule of Milestones; and (iv) the time for completion.

2.1.1.3.2 If any such change causes an increase or decrease in the cost of, or
the time required for, performance of any part of this DP Agreement, whether or not identified in
the notice, the Owner shall make equitable adjustments to the DP’s Basic Compensation, as
defined below, the Milestone Schedule, or the time for completion, or shall otherwise modify this
DP Agreement as appropriate.

2.1.1.3.3 The DP must assert its right to an equitable adjustment under this
clause within thirty (30) days from the date of receipt of the written notice from the Owner. Owner
may, in its sole and absolute discretion, consider and/or deny requests for equitable adjustment

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that are made more than thirty (30) days from receipt of the written notice, but in any event before
final payment under this DP Agreement.

2.1.2 Definitions. Unless otherwise specified, capitalized terms in this DP Agreement have the
same meaning as set forth in the General Conditions to the CM@Risk Agreement for the Project,
a copy of which has been provided to DP and is incorporated herein by reference. In addition, the
following definitions shall apply:

2.1.2.1 “CM@Risk” means the CM@Risk defined in the CM@Risk Agreement and all
persons and entities identified as members of the CM@Risk Team in the CM@Risk’s response to
the Owner’s RFQ which led to the CM@Risk Agreement with all amendments, and any substitutes
permitted under the terms of the CM@Risk Agreement. The CM@Risk participates in the Pre-
Construction Phase as set forth in the CM@Risk Agreement by, among other things, doing value
engineering, evaluating costs and constructability, preparing schedules, and evaluating
implications of alternate designs and systems and materials during and after design of the Project.
During construction, the CM@Risk assumes all risk for price and schedule under the CM@Risk
Agreement and its GMP.

2.1.2.2 “CM@Risk Agreement” means the contract (Standard Form of Agreement
Between Owner and CM@Risk, including its Exhibit A—CM@Risk General Conditions) between
Owner and the CM@Risk or any replacement CM@Risk or, if the Owner terminates the contract
with the CM@Risk and elects to proceed using a different contractor it means the contract and
general conditions between the Owner and the final contractor. The CM@Risk Agreement and
General Conditions are sometimes referred to individually as the “Construction Contract” and its
“General Conditions,” respectively.

2.1.2.3 “Construction Costs” (or “Cost of the Work”) consists of those items of Work which
are paid for by the Owner to the CM@Risk, and consists of those categories of Direct Construction
Costs and Indirect Construction Costs set forth as allowable in Exhibit C to the CM@Risk
Agreement. It does not include any design or consulting fees, the CM@Risk’s fees for Design
(Preconstruction) Phase services, survey and testing costs, or readily movable
furnishings/equipment, unless agreed to in advance in writing by the Owner.

2.1.2.4 “Construction Documents” are the plans and specifications prepared by the DP for
the Project, approved by the Owner, and incorporated into the CM@Risk Agreement by reference
after such approval, to be used to construct the Project. All amendments and modifications to the
Construction Documents must be approved by the Owner prior to incorporation into the CM@Risk
Agreement.

2.1.2.5 “Construction Phase” is defined as including the following subphases: construction
administration, closeout, and warranty, and may include some activities that occur after Final
Completion.

2.1.2.6 “Consultant” is an entity or person, other than the CM@Risk or the DP, who
performs any design or engineering services directly on behalf of the Owner, and shall include all
employees, agents and authorized representatives of such entities or persons.

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2.1.2.7 “Contract Time” shall mean the time period for DP’s performance of the Scope of
Services and completion of the Project as set forth in the Scope of Services.

2.1.2.8 “Day” refers to the calendar day unless otherwise denoted.

2.1.2.9 “Design Phase” is defined as including but not limited to the following subphases:
Program Development, Conceptual Design, Schematic Design, Design Development, 50%
Construction Documents / GMP-Setting, and creation of 100% Construction Documents.

2.1.2.10 “Design Professional” or “DP” refers to the entity set forth in the preamble of
this DP Agreement and is a representative of the Owner for the Project as provided in the DP
Agreement Documents, whose Agreement is with the Owner, and a) who is a qualified
professional properly licensed in the State of Arizona to furnish applicable design and construction
administration services, and b) is not the representative of the Owner except for the approval and
certification of CM@Risk progress payment applications, and Substantial Completion, if so
designated.

2.1.2.11 “Design Professional Basic Services” or “Basic Services” is defined as all
services described in the Scope of Services and this DP Agreement.

2.1.2.12 “Design Professional Additional Services” or “Additional Services” is defined as
all services not described in the Scope of Services and this DP Agreement, but that are otherwise
requested and authorized by Owner, in writing.

2.1.2.13 “Design Submission Documents” or “Design Documents” consist of the
Drawings and Specifications prepared at specific phases of the design effort by the DP including
Programming, Conceptual Design, Schematic Design, Design Development, 50% Construction
Documents / GMP Setting, and 100% Construction Documents, as well as cost estimates and other
documents prepared by the CM@Risk that are submitted for Owner’s approval for each subphase
of the Project design services.

2.1.2.14 “Final Completion” is defined as 100% completion of all Work by the
CM@Risk described by or reasonably inferred from the Project Criteria and Contract Documents,
including but not limited to all a) punch lists, b) Close-Out Documents, c) Owner training/start up
activities, and d) third party commissioning (if any).

2.1.2.15 “Partnering” or “Teaming” is a mutual effort by all parties involved in the
Project, principally the Owner, the DP and the CM@Risk, to cooperate and coordinate efforts to
achieve the final result intended by the Project Criteria. All involved use their expertise for the
benefit of all. Partnering requires flexibility and appreciation of the positions of other parties and
willingness to make compromises for the benefit of all. Owner has the exclusive right to decide
whether or not to use Partnering on the Project and will indicate its decision on this during the Pre-
Construction Phase.

2.1.2.16 “Probable Construction Cost” is the estimate of the Construction Costs that is to

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be prepared by the DP for presentation to the Owner.

2.1.2.17 “Project Budget” is the total cost to the Owner for the Project, including the
payments to DP, CM@Risk’s Pre-Construction Phase Fee, the GMP, other Consultants, furniture,
fixtures, and equipment, site acquisition, permit fees, management fees, owner-supplied labor,
materials and equipment, and other incidentals required to achieve Final Completion of the
Project.

2.1.2.18 “Project Criteria” are developed by or for Owner to describe Owner’s program,
requirements and objectives for the Project, including use, space, price, time, site, utility, parking,
and expandability requirements, as well as all submittal requirements and other requirements
affecting CM@Risk’s performance of its Work. The Project Criteria may include conceptual
documents, design criteria, performance requirements, and other Project specific technical
materials and requirements prepared by or for Owner.

2.1.2.19 “Punch List” are those minor items of Work identified and listed by DP and
agreed to by Owner to be completed by CM@Risk after Substantial Completion and prior to Final
Completion, which do not prevent the Project from being fully used for the purpose for which it is
intended and which will not prevent the issuance of a certificate of occupancy.

2.1.2.20 “Standard of Care” is the performance standard under which DP shall provide
its Professional Services and is defined as: the skill, care and competence exercised by members
of the applicable professional discipline currently practicing under similar circumstances. The DP
shall perform the Professional Services as expeditiously as is consistent with the Standard of Care
and the orderly and timely progress of the Project and Project Schedule.

2.1.2.21 “Subconsultant” is an entity or person who performs any services directly on
behalf of the DP, and shall include all employees, agents and authorized representatives of such
entities or persons.

2.1.2.22 “Subcontractor” (of any tier) is any entity or person who performs a portion of
the Work, on or off site, directly on behalf of the CM@Risk, including any materials, workers and
suppliers, and shall include all employees, agents and authorized representatives of such entities
or persons.

2.1.2.23 “Substantial Completion” is the date on which CM@Risk’s Work, or an agreed
upon portion of the Work, is sufficiently complete, as determined by the DP or Owner’s issuance
of a Certificate of Substantial Completion, so that Owner can fully occupy and utilize the Project,
or a portion thereof, for the purposes for which it is intended. In order to achieve Substantial
Completion, all Work must be complete except for items included on the approved punch list. As
part of Substantial Completion all required inspections, State Fire Marshal and State Elevator
certificates, Boiler inspection, ACC inspection for natural gas lines, and preliminary test and
balance of the mechanical system must be obtained or completed. (Note — The Owner retains the
right to require inspections of the Work past those inspections required for Substantial Completion,
and such inspections may be required through the date of Final Completion.)

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2.1.3 Cooperation,

2.1.3.1 Pursuant to the Standard of Care, Owner and DP will cooperate with each other and with
the CM@Risk and others involved in the Project to the maximum extent possible and to proceed
on the basis of trust, confidence, and good faith to permit each party to this DP Agreement and
the CM@R to realize the goals sought and benefits afforded under this DP Agreement. Those
goals and benefits include the satisfactory and timely completion of the Project and the
performance of all obligations described by this DP Agreement.

2.1.3.2 The Owner, DP, and CM@Risk will hold a mandatory Kick-Off Meeting after execution
of both this DP Agreement and the CM@Risk Agreement to discuss issues affecting the
administration of the Project and to implement procedures to permit the Owner, the DP, and the
CM@Risk to promptly and efficiently perform their respective obligations under this DP
Agreement and the CM@Risk Agreement. At this meeting, the DP, the Owner and the CM@Risk
will establish required meetings to discuss ongoing project issues. Written meeting minutes shall
be distributed to all attendees in accordance with the “Meetings and Communication” Section of the
Scope of Services within two (2) business days after each meeting. Among other matters to be
covered at this meeting, the Owner, the DP and the CM@Risk will work out and agree upon
procedures for efficient interaction among them during the Design Phase of the Work so that the
DP, the CM@Risk and the Owner can thereafter perform efficiently and in a cooperative and
mutually supportive manner the activities, functions and obligations contemplated by this DP
Agreement and the CM@Risk Agreement. Among other subjects to be covered are:

(i) Agreeing to a comprehensive and all-inclusive list of goods, materials or
equipment that have other than short lead time and arranging to have such
items placed on order for timely delivery;

(ii) | Arrangements for collaboration between the DP and the CM@Risk in
preparing Design Submission Documents for the Program Development (to
the extent needed), Conceptual Design, Schematic Design, Design
Development, 50% Construction Documents / GMP-Setting, and 100%
Construction Documents subphases and in submitting each set of Design
Submission Documents to the Owner for its review and comments. Also to
be agreed upon are arrangements for group discussions by DP, CM@Risk
and Owner of the Design Submission Documents, the Program
Development documents, the Conceptual Design documents, the Schematic
Design documents, the Design Development documents, the 50%
Construction Documents / GMP-Setting documents, and the 100%
Construction Documents;

(iii) | Arrangements that encourage frequent informal interaction among the DP,
the Owner and the CM@Risk during the Design Phase, especially between
submissions of Design Submission Documents under item (ii), including
among other activities, the DP resolving constructability or other questions
with the CM@Risk and otherwise obtaining the benefit of the CM@Risk’s
construction knowledge and experience and the DP using that information

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in its design work on the Project;

(iv) | Aschedule for all activities of the CM@Risk, the Owner and the DP to be
performed during the Pre-Construction Phase; and

(v) A prompt review of key contract provisions, schedule goals and
coordination concerns, procedures for paperwork processes, and any other
items of importance based on the Project’s specific attributes.

At the Kick-Off meeting, the Owner and the CM@Risk (with assistance from the DP) will also
develop the procedures for pre-qualification of Subcontractors to bid on the bid packages under
Article 2.2.4.6.2 of the General Conditions.

2.1.3.3 The DP shall cooperate with the Owner and the CM@Risk in the design and construction
of the Project and must keep the Project within the Owner’s Project Budget and the schedule
requirements. The CM@Risk, the Owner, and the DP, called the “Project Team”, shall
cooperatively work together during all phases of the Project in which they are involved to achieve
expedited completion of the Project in accordance with Owner’s Project Budget and time
constraints. While the CM@Risk shall provide leadership to the Project Team during the Design
Phase for all cost, schedule, or constructability review and choice of building systems issues and
on all matters relating to construction, the DP is to assist and cooperate on these items to the
maximum extent possible.

2.1.3.4 The DP shall promptly and reasonably cooperate with the CM@Risk in the CM@Risk’s
development of its estimates of Construction Costs and Guaranteed Maximum Price (““GMP”).

2.1.3.5 The DP shall evaluate the Owner’s preliminary Project Budget with the assistance of the
CM@Risk. The Owner shall furnish the DP with the dollar amount within the Owner’s Project
Budget available for the Work. The DP’s estimates of probable Construction Costs shall not exceed
this amount. The amount within the Owner’s Project Budget available for Work may be revised
only by an Owner-approved written modification of this DP Agreement.

2.1.4 Personnel. A listing of key employees assigned directly to this Project on a day- to-day basis
as well as alternates (replacements) has been furnished to and approved by the Owner prior to
execution of this DP Agreement, and is attached as a part of “Exhibit C — DP Proposal”. Any
substitutions of assigned personnel shall have prior, written approval by the Owner and shall be
proposed from the list of acceptable alternates. Any changes of personnel within the DP firm or
any listed Subconsultant firms assigned to the project will require advance written approval of the
Owner so long as approved personnel remain employees of the DP firm and/or the listed
Subconsultant firm and are capable of performing the required services.

2.1.5 Partnering. [OPTIONAL] [NOT USED]

2.1.5.1 The Owner, DP, and CM@Risk will meet promptly after execution of the
Construction Contract to discuss issues affecting the administration of the Work and the
Professional Services, and to implement the necessary procedures, including submittals and Owner
site activity schedules, to permit the Owner, DP, and CM@Risk to perform their respective

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obligations under the Contract Documents. These tasks may be implemented by the utilization of
a formal “Partnering” or “Teaming” process developed during an initial workshop that will include
the CM@Risk, Owner, DP, and their key personnel assigned to the project. Follow up sessions
will occur every three months or as otherwise mutually agreed to ensure that all commitments are
updated and being followed by all parties. The cost of this “Partnering” or “Teaming” effort, if
invoked by Owner, will be an allowable Project Cost.

2.2 Design Phase. During the Design Phase, DP will provide the services set forth in the Scope
of Services for the following subphases of the Design Phase: Program Development, Conceptual
Design, Schematic Design, Design Development, 50% Construction Documents / GMP-Setting,
and 100% Construction Documents.

2.3 Construction Phase. During the Construction Phase, DP will provide the Services set forth
in the Scope of Services for the following subphases of the Construction Phase: Construction

Administration, Closeout, and Warranty.

2.4 DP’s Professional Responsibilities.

2.4.1. DP represents that it and the professional staff and Subconsultants it will assign to the
project (registrants with the Arizona Board of Technical Registration and others), are fully
qualified by education, technical training, and experience as professionals to perform the
Professional Services and contract administration called for by this DP Agreement.

2.4.2 DP agrees that in performing the Professional Services it will exercise the Standard of Care
and cause its Subconsultants to exercise the same. DP will also cause all Subconsultants it employs
to meet this same Standard of Care.

2.4.3 Notwithstanding the contractual and indemnity remedies provided to Owner under the DP
Agreement and notwithstanding any applicable law barring recover for any economic loss caused
by DP, DP acknowledges that a violation of the Standard of Care causing injury or damage to Owner
is actionable and DP agrees that Owner may pursue as a remedy, in addition to any contractual or
indemnity remedy, a tort claim for professional negligence against DP.

2.4.4 Although the Owner has the right to make claims in tort for professional negligence against
DP, as the lead registrant of the design team for the negligence, recklessness, or intentional wrongful
conduct or errors or omissions of DP or any of its Subconsultants, DP agrees it shall also be
responsible for and shall indemnify and hold Owner, City of Glendale, Arizona, harmless from any
and all losses, expenses, damages, costs and injuries arising from or resulting from any negligence,
recklessness, or intentional wrongful conduct or errors or omissions in the Design Documents
prepared by DP or DP’s Subconsultants for Owner by the DP or DP’s Subconsultants or in the
construction administration during the Construction Phase.

2.4.5 Notwithstanding Articles 2.4.1 through 2.4.4, Owner may hold DP responsible or liable for
any costs associated with DP’s failure to meet the Standard of Care, only to the extent such costs
exceed two percent (2%) of the GMP in effect at the time of Final Completion. It is understood
and agreed that this 2% share shall apply to the aggregate amount of costs for the failure to meet

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the Standard of Care and not to each failure individually. This 2% share shall not apply to claims
for property damage, personal injury, or death, whether incurred by Owner, or third parties,
including without limitation the indemnity obligations in Article 9.14.

Owner shall deliver to DP a list of errors or omissions amounts that Owner has determined it has
absorbed or will absorb in whole or in part.

2.4.6 At all times during this DP Agreement, DP shall comply with, and shall ensure its
Professional Services comply with, all applicable laws, statutes, ordinances, regulations, rules or
codes.

2.4.7 Owner acceptance of the Design Documents provided to it by the DP and the DP’s estimates
of Probable Construction Cost shall not relieve the DP from any responsibility for errors or
omissions in those regards, nor from any other obligation of the DP under this DP Agreement or
applicable laws, statutes, ordinances, building codes, rules and regulations, or operation of law.

The DP acknowledges and agrees that approval by the Owner and the CM@Risk and involvement
of the CM@Risk and the Owner during the Design Phase (including, without limitation,
recommendations by the CM@Risk or Owner as to the design), in no way relieves the DP of
responsibility for the Design Documents. The DP, CM@Risk, and the Owner will cooperate in
the resolution of such matters so as to minimize any detrimental impact upon the Project.
However, such cooperation shall not be deemed a waiver of any rights the Owner may have
relating to the DP.

2.4.8 The DP hereby agrees, subject to the Standard of Care, that it shall have the same legal
responsibility to the Owner as the Owner has, or may have, to others arising out of, or resulting
from, any errors or omissions of the DP.

2.4.9 All Drawings and Specifications shall bear the signature and seal of the DP or the DP’s
Subconsultants, or both as appropriate. The DP as lead professional shall be fully responsible for all
design and administration provided under this DP Agreement.

2.4.10 The DP shall prepare and provide all documents in a form necessary for Owner to obtain
any and all approvals required for approval of design and completed construction by all
governmental authorities having jurisdiction over the Project and/or designated by the Owner. The
Owner will sign applications and pay applicable fees for such governmental approvals.

2.4.11 The DP shall advise and consult with the Owner, if requested by the Owner, on selection
of the CM@Risk. Further, the DP shall actively participate in discussions between the Owner and
the CM@Risk regarding negotiations about the GMP and its acceptance by Owner. The DP shall
review all GMP deliverables and advise Owner of any deficiencies in any GMP documents or
proposals submitted by CM@Risk to Owner.

2.4.12. The DP shall advise the Owner on the acceptability of Subcontractors and material suppliers
proposed by the CM@Risk. Among other things, DP shall assist the CM@Risk in the pre-
qualification of Subcontractors and in the preparation of drawings, specifications and information
for the purpose of preparing the Subcontractor bid packages. The DP shall not be responsible for

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the performance of the CM@Risk, the Construction Contract(s), or for any defects, deficiencies or
effects resulting solely from any contractor, subcontractor, manufacturer, supplier, and fabricator
retained by the Owner, CM@Risk, or any other third party. Nothing in this DP Agreement shall
be construed as giving the DP the responsibility for or the authority to control, direct or supervise
construction means or methods.

2.4.13 The DP shall prepare complete and useable plans and specifications for the CM@Risk’s
use for each portion of the Work to be bid separately and, if the Work is done in phases, complete
plans and specifications for each phase.

2.4.14 If and to the extent Owner has given its prior approval, DP shall provide written
interpretations and clarifications of the Construction Documents requested by the CM@Risk or
any potential bidder.

2.4.15 Provide such other reasonable assistance to the CM@Risk as the CM@Risk and Owner
request.

2.4.16 All of the above notwithstanding, award of the CM@Risk Contract and approval of the
GMP will be made solely by the Owner. Award of the CM@Risk subcontracts will be made solely
by the CM@Risk.

2.4.17 Ifat any time the CM@Risk’s estimate of Construction Costs or proposed GMP or the DP’s
estimate of Probable Construction Costs (after attempted reconciliation between the CM@Risk’s
Estimate of Construction Costs and the DP’s Estimate of Probable Construction Cost, and with the
amount within the Owner’s Project Budget available for the Cost of the Work) exceeds the amount
within Owner’s then current Project Budget available for the Cost of the Work, the DP shall
promptly and at no cost to the Owner:

2.4.17.1 Revise all or any part of the Project drawings, specifications or both
as the Owner may deem advisable for the purpose of reducing the Cost of the Work to be within
the allocated line items within the Project Budget.

2.4.17.2 Perform any or all of the services described above as may be
necessary to obtain a CM@Risk estimate of Construction Costs and GMP not exceeding the
amount within Owner’s current Project Budget available for costs of the Work.

2.4.17.3 If at any time the Owner terminates the CM@Risk Contract for
convenience or for other reason, the Owner will have the right to continue the Project with
whatever project delivery method it selects and the DP will continue to perform the Professional
Services under this DP Agreement with the Owner and any substitute contractor for the
construction. Owner will make appropriate changes to the DP Agreement if required.

Article 3 Additional Services.

3.1 The following additional services shall be provided by DP only when authorized in writing
by Owner before they are performed, and shall be paid for by the Owner in accordance with the

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terms of this DP Agreement in addition to the DP’s compensation for Basic Services:

(i) Providing financial feasibility or other special studies.

(ii) Providing services relative to future facilities, systems, and equipment, which
are not intended to be constructed during the Construction Administration
subphase.

(iii) Providing interior design and all other similar services required for or in
connection with the selection, procurement or installation of movable
furniture, furnishings, and related equipment if not expressly stated in this DP
Agreement.

(iv) _ Providing consultation concerning replacement of any work damaged by fire,
natural causes or forces majeure during the course of construction.

(v) Retaining services of a competent surveyor or registered engineer or to provide
any special inspections or tests, as required by code or prudent practice, during
the Construction Administration subphase.

(vi) Providing additional services arising from the default of the CM@Risk or the
default of any of its Subcontractors.

(vii) Providing assistance required by the Owner in any judicial, quasi-judicial,
administrative, or legislative hearings or proceedings relating to the Project.

(viii) Providing staff, professional and otherwise, when directed in writing by
Owner, to perform tasks and duties assigned as necessary to prevent slippage
in progress schedule and/or timely completion of the construction Work.

(ix) Providing other reasonable services.

3.2 If the Owner and the DP agree at the pre-construction meeting on more extensive
representation at the site during the Construction Administration phase than is described in Article
2, the DP shall provide one or more full-time Project Representatives. Such full-time Project
Representatives shall be selected, employed and directed by the DP, and the DP shall be
compensated for such services as mutually agreed in writing between the Owner and the DP.

3.3. Any full-time Project Representatives or replacements shall be subject to prior approval by
the Owner. The Owner reserves the absolute right to reject or require replacement of any Project
Representatives.

3.4 The DP shall not engage, contract with or use the services of any Subconsultants, without
obtaining the prior written approval of the Owner. The DP shall submit to the Owner for approval
a report of the scope of services to be provided by each such special Subconsultant, with the

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Owner’s acknowledgment thereof. No provision of this DP Agreement and no approval by the
Owner of the scope of services to be provided by the Subconsultants shall be construed as an
agreement between the Owner and any Subconsultant of the DP or in any way affect the
responsibilities of the DP hereunder, and, unless otherwise agreed to in writing by the Owner, the
fees of any Subconsultants retained by the DP shall be deemed covered by the Basic Compensation
to be paid by the Owner to the DP.

Article 4 Reimbursable Expenses.

4.1 The Price for Basic Services includes all expenses that the DP may incur for services,
supplies and travel, and as such expenses are not separately reimbursable. DP may request Owner
to reimburse DP for any additional expenses for supplies and travel, provided that expenses
associated with such additional travel (mileage, lodging and meals) is subject to Owner’s current
travel policies applicable to Owner’s employees, unless Owner specifically authorizes a different
reimbursement rate in writing in advance of the incurrence of such expenses by DP. No markups
are allowable on Owner-approved reimbursable expenses. All Owner-approved reimbursable
expenses shall be invoiced at and paid at actual cost.

In the event the DP is entitled to reimbursement of expenses under this DP Agreement, DP shall
submit all receipts and any other reasonably required backup documentation to Owner within sixty
(60) days after such expense is incurred. Owner shall not be required to reimburse DP for expenses
received by Owner after that time.

Article 5 Owner’s Responsibilities.

5.1 The Owner will provide all preliminary information available to Owner regarding the
requirements for the Project including budget information and, unless otherwise agreed to in
writing, Project Criteria, by the date of the Kick-Off meeting described in Section 2.1.3.2 above.
The DP shall notify the Owner in writing if the DP requires additional information and of any
information provided by the Owner which the DP believes to be unclear or insufficient for the
successful completion of the Project.

5.2 The Owner will designate a representative, as set forth in Section 1.7.1, to act on its behalf
with respect to the Project at all relevant times until Final Acceptance. Upon request, the Owner
will provide the DP with a copy of the executed CM@Risk Agreement. Upon request, the Owner
will provide the CM@Risk with an executed copy of this DP Agreement.

5.3. If the Owner should observe or otherwise become aware of any error or omission in the
design of the work or any non-conformity with the Design Documents, Owner will give prompt
written notice thereof to the DP and the CM@Risk.

5.4 If required in the Scope of Services or requested in writing by the Owner, Owner will
reimburse the DP for the DP's reasonable actual cost for retaining surveyors, engineers, or other
Subconsultants in connection with the following items, provided such information is specifically
requested by the DP or the Owner and the necessity and cost is approved by the Owner in writing
before it is incurred:

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5.4.1 Survey of Existing Site Conditions. A complete and accurate survey of the building
site and existing improvements including but not limited to the grades and lines of streets,
pavements, and adjoining properties, contours of the building site, and full information as to sewer,
water, gas, electrical service, telephone lines, or other utilities.

5.4.2. Report on Subsurface Investigations. Professional recommendations regarding
local conditions accompanied by test borings, or test pits, soil bearing values, percolation tests, air
and water pollution tests, ground corrosion and resistivity tests including necessary operations for
determining subsoil, air and water conditions, and chemical, mechanical, laboratory or other tests.

5.4.3 All other tests required by mutual agreement between the Owner and DP. The
surveys, reports, tests, and any other information described under this Article shall be obtained by
the DP, unless otherwise specified by written amendment to this DP Agreement. In the event such
information is furnished by the Owner, the DP, consistent with the Standard of Care and unless
otherwise specifically provided herein, shall carefully examine them and advise the Owner of any
inadequacies or deficiencies.

5.4.4 Unless otherwise required by the Standard of Care or this DP Agreement, DP shall
have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure
to persons of hazardous materials in any form, at the Project Site.

Article 6 Compensation for the DP’s Services.

6.1 Payment for Basic Services and Reimbursable Expenses.

6.1.1 Payments for Basic Services and Reimbursable Expenses shall be pursuant to the
Schedule of Payments, attached hereto, and incorporated herein. Payments to DP by Owner shall
be made monthly to DP, within thirty (30) days after the Owner receives the DP's properly itemized
Statement for Basic Services and Reimbursable Expenses in such form and accompanied by such
supporting documentation as Owner may direct. If the Owner determines that any amounts
requested by the DP are not due or are not sufficiently documented, the Owner will furnish the DP
with notice of the reasons for withholding payment along with the Owner's payment on account of
the balance of the statement. Amounts withheld will be paid upon proper resubmission.

6.1.2 For Basic Services, the DP's basic compensation shall be as set forth in Article 1.6,
Fee.

6.1.3. When DP's basic compensation is based on a stipulated sum, the payments for Basic
Services shall be allocated to each phase or subphase in accordance with Contract Time, and the
Schedule of Payments.

6.1.4 When any part of the Project is deleted or otherwise not constructed, compensation
for such portions of the Project shall be payable to the extent services are performed on such
portions in accordance with the schedule set forth in the Schedule of Payments.

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6.1.5 If and to the extent that the time initially established for completion of the
Construction Administration Subphase of the Project is exceeded or extended beyond the
established completion date through no fault of the DP as determined by the Owner, compensation
for Basic Services required for such extended period of administration of the CM@Risk
Agreement shall be computed and paid as set forth in Article 6.2 “Payment for Additional
Services”.

6.1.6 DP shall pay to each of its Subconsultants within thirty (30) days of receipt of its
monthly payment from Owner, that amount properly due and payable to said Subconsultant for
services performed within the payment period. DP shall, by an appropriate agreement with each
of its Subconsultants, require each such Subconsultant to make payments to its sub-subconsultants
in a similar manner. Upon request of the Owner, DP shall furnish documentary evidence of
compliance with these payment provisions.

6.2 Payment for Additional Services.

6.2.1 Payments for Additional Services shall be made monthly, within thirty (30) days
after the Owner receives the DP's properly itemized statement for additional services in such form
and accompanied by such supporting documentation as Owner may direct and at such rates as have
been previously agreed upon. If the Owner determines that any amounts requested by the DP are
not due or are not sufficiently documented, the Owner will furnish the DP with notice of the
reasons for withholding payment along with the Owner's payment on account of the balance of the
statement. Amounts not paid may be resubmitted with proper documentation.

6.2.2 For such Additional Services as are in the nature of project undertakings beyond
that specified for Basic Services, as approved in writing by the Owner, the DP's compensation
shall be as follows: As per the hourly rates as listed in “Exhibit C —- DP Proposal”.

6.2.3 Reserved.

6.2.4 For all Additional Services, as approved in writing by the Owner, the DP’s
compensation will be computed using one or more of the following:

(i) Mutually agreed upon adjustments to the Stipulated Sum computed using the
hourly rates as listed in “Exhibit C - DP Proposal”;

(ii) A negotiated Fixed Fee amount; or

(iii) | Other mutually agreed upon basis.

Article 7 Reserved.
Article 8 DP’s Accounting Records.
8.1. The DP's records pertaining to its the Professional Services shall be kept on a generally

recognized accounting basis and shall be available to the Owner or his authorized representative
upon request for a period of five years from the date of Final Payment to the CM@Risk.

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8.2 The DP shall retain and require its Subconsultants to retain, for inspection and audit by the
Owner, all books, accounts, reports, files and other records relating to the negotiation and
performance of this DP Agreement for a period of five years from the date of Final Payment to the
CM@Risk.

8.3. Upon request by the Owner, the original or a legible copy of the originals of all such
accounting records shall be produced by the DP or Subconsultants at the address designated by the
Owner.

Article 9 Insurance and Indemnity against Liability.

The DP shall not commence any of the Professional Services until it obtains all required insurance
and delivers to the Owner the certificates of insurance or other proof required by this DP
Agreement. The DP shall not permit Subconsultants to commence Work until Subconsultants have
complied with all applicable insurance requirements.

Insurance coverage as required by this DP Agreement shall be maintained until Final Completion
of the Project, for the period(s) specified herein, and any longer specific periods set forth in the
Contract Documents or available by law.

91 Minimum Scope and Limits of Insurance. Without limiting any liabilities or any other
obligations of the DP, the DP shall provide and maintain, and cause its Subconsultants to provide
and maintain, insurance coverage in such types and amounts as requested by Owner and with duly
licensed or approved non-admitted insurers in the state of Arizona and rated at least A-VII in the
current A.M. Best Company ratings. DP shall provide Owner with certificates of insurance
showing Subconsultant’s insurance if requested by Owner. The Owner in no way warrants that the
above-required minimum insurer rating is sufficient to protect the DP or any Subconsultant from
potential insurer insolvency.

9.2 Worker's Compensation Insurance. DP shall procure and maintain worker's compensation
insurance to cover obligations imposed by federal and state statutes having jurisdiction over the
DP, its employees, or both, engaged in the performance of services under this DP Agreement. DP
shall maintain coverage through Final Completion for all employees engaged in the performance
of services under this DP Agreement.

Worker’s Compensation Statutory
Employer’s Liability
Each Accident $ 1,000,000
Disease — Each Employee $ 1,000,000
Disease — Policy Limit $ 1,000,000

The policy shall be endorsed to contain a waiver of subrogation against the City of Glendale,
Arizona, and its officers, officials, agents, and employees for losses arising from the Professional
Services performed by or on behalf of the DP.

This requirement shall not apply to: Separately, each Consultant, Contractor, Subcontractor or

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