TOWN OF CAVE CREEK CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT (“Contract”) entered into this _____ day of ________________ 2026, by and between the Town of Cave Creek, an Arizona municipal corporation, the (“Town”) and ______________________________.

("Contractor").

RECITALS

A. The Town Manager of the Town of Cave Creek, Arizona, is authorized and empowered by the provisions of the Town Code to execute contracts for construction and related services.

B. The Town intends to contract for construction and related services for the East-West Trail Connection, Request for Proposal No. 2027- 04, in accordance with the solicitation and the proposal submitted by the successful Contractor (Work).

C. The Contractor has represented to the Town the ability to provide or procure the required construction and related services and, based on this representation, the Town intends to engage the successful Contractor for these services.

D. The Town agrees to pay to the Contractor a fee (Contract Price) not to exceed $__________________.

E. All work will be completed (Contract Time) in accordance with the requirements and completion date established in Request for Proposal No. 2027-04 and the Contract Documents.

FOR AND IN CONSIDERATION of the mutual covenants and considerations contained in this Contract, it is agreed by the Town and the Contractor as follows:

ARTICLE 1 - CONTRACTOR'S SERVICES AND RESPONSIBILITIES.

1.1. GENERAL SERVICES

A. The Contractor will furnish any and all labor, materials, equipment, transportation, utilities, services, and facilities specified in the scope of work for the project (collectively, either referred to as the “Work”, “Contract Services” or the “Project”).

The Scope of Work is contained in Exhibit A.

B. The services and materials provided under this Contract (the

“Work”) will be performed in a good, workmanlike and substantial manner and to the satisfaction of the Town Engineer and under the direction and supervision of the Town Engineer, or his properly authorized agents, within the care and skill of a qualified contractor in Arizona.

1. All documents prepared by the Contractor are subject to review by the Town. Review by the Town is for the benefit of the Town only, is not intended to be for the benefit of any other person and does not relieve the Contractor from the professional liability associated with the documents they have prepared.

2. The Contractor's Representative, as defined in Article

1.5G and listed in Article 5.4, will be reasonably available to the Town and will have the necessary expertise and experience required to supervise the Contract Services, as listed in Exhibit A. A Contractor's Representative will be assigned to the Contract. The Contractor's Representative will communicate regularly with the Town and will be vested with the authority to act on behalf of the Contractor. ·

C. The Town is a member of $AVE cooperative purchasing group.

$AVE includes the State of Arizona, Maricopa County, many Phoenix metropolitan area municipalities, and many K-12 unified school districts. Under $AVE Cooperative Purchasing Agreement, and with the concurrence of successful respondents under this solicitation, a member of $AVE may access a contract resulting from this solicitation by the Town. By signing the Contract, the Contractor agrees to allow other $AVE members the ability to purchase their needs and "use" this contract.

1.2. GOVERNMENT APPROVALS AND PERMITS

A. Unless otherwise provided, the Contractor will obtain or assist the Town in obtaining all necessary permits, approvals and licenses required for the prosecution of the Work from any government or quasi-government entity having jurisdiction over the Project. The Contractor is responsible for obtaining and payment for the necessary environmental permits or file the necessary environmental notices·.

B. Copies of these permits and notices must be provided to the

Town's Representative before starting the permitted activity. This provision does not constitute an assumption by the Town of an obligation of any kind for violation of the permit or notice requirements.

C. The Town is responsible for the Town of Cave Creek review and permit(s) fees for building and demolition permits. The Town will pay Town review fees for grading and drainage, water, sewer storm water management, and landscaping.

The Town will also pay for Town utility design fees for permanent services.

D. The Contractor is responsible for and shall pay all costs for all other permits and review fees not specifically listed in Article 1.2(C) above.

E. The Contractor is responsible for the cost of construction-related water meter(s), water and sewer taps, fire lines and taps, and all water bills on the Project meters until Substantial Completion of the Project. Arrangements for construction water will be the Contractor's responsibility.

Construction water does not include "test water'' required to complete new water line pressure tests.

F. The M.A.G. Standard Specification 107.12 is modified to read as follows: "The Contractor, at his own expense, is responsible for the acquisition of any necessary temporary easements for construction purposes, storage, maintenance, and refuge haul-off as indicated upon the plans, which are required in addition to existing easements or rights-of-way secured by the Town."

1.3. PRE-CONSTRUCTION CONFERENCE

A. After execution of the Contract and before the commencement of any Work on the Contract, a pre-construction conference will be scheduled.

B. The purpose of this conference is to establish a working relationship between the Contractor, utility firms, and various Town departments. The agenda will include critical elements of the work schedule, submittal schedule, level of Record Drawings (per MAG Standard Specifications) required, cost breakdown of major lump sum items, payment application and processing, coordination with the involved utility firms, and emergency telephone numbers for all representatives involved in the course of construction.

C. At a minimum, attendees will include the Contractor

Representative, who is authorized to execute and· sign documents on behalf of the firm, the job superintendent, and the Contractor’s safety officer.

D. The Contract’s Notice to Proceed date will be established.

E. The Contractor will provide a Project schedule (the

“Baseline Project Schedule”) indicating duration, manpower and equipment resources required to complete all major work activities. The Town will review and comment on the Baseline Project Schedule. The Contractor will revise the Baseline Project Schedule to the satisfaction of the Town's Representative. No work will begin until the Town accepts the Baseline Project Schedule.

F. The Contractor will submit a Schedule of Values as defined in Article 4.1 based on the work and bids accepted from selected Subcontractors. These values will reflect the actual labor time, materials, profit and overhead for the Work or in accordance with the Contractor's listed unit values.

1.4. CONTROL OF THE WORK

The Contractor will properly guard and protect all partially finished Work and will be responsible for the Work until the entire Project is completed and accepted by the Town. Any payment for completed portions of the Work will not release the Contractor from this responsibility; however, he will turn over the entire Work in full compliance with the specifications as set forth in 1.3 B before final settlement is made. In case of suspension of the Work for any cause whatever, the Contractor is responsible for the Project and will take all precautions ·necessary to prevent damage to the Project and will erect any necessary temporary structures, signs, or other facilities at no cost to the Town.

A. After all Work under the Contract is completed, the

Contractor will remove all loose concrete, lumber, wire, reinforcing, debris, and other materials not incorporated in the Work from the site of the Work.

B. Unless the Contract states that it is the responsibility of the

Town or a separate contractor, the Contractor will provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities, other temporary facilities, temporary fencing, roll offs, and dust control to permit the Contractor to complete the Work.

C. The Contractor will perform all construction activities efficiently and with the requisite expertise, skill, and competence to satisfy the requirements of the Work. The Contractor will at all times exercise complete and exclusive control over the means, methods, sequences, and techniques of construction.

D. Survey stakes and marks required for the completion of the construction shown on the plans and described in the specifications will be furnished by the Contractor.

E. The Contractor, its designee or the Contractor's Superintendent will be present at the Work at all times that construction activities are taking place.

1. All elements of the Work, such as concrete work, pipe work, etc., will be under the direct supervision.

of a foreman or his designated representative the site of the Work (“Site”) who will have the authority to take actions required to properly carry out that particular element of the Work.

2. In the event of noncompliance with Article 5, the

Town may require the Contractor to stop or suspend the Work in whole or in part.

F. Where the Work specifications require that a particular product be installed or applied by an applicator approved by the manufacturer, it is the Contractor's responsibility to ensure the Subcontractor employed for the work is approved.

G. Before ordering materials or doing work, the Contractor and each Subcontractor will verify measurements at the Site and will be responsible for the correctness of these measurements. No extra charge or compensation will be allowed because of differences between actual dimensions and the dimensions indicated on the drawings; differences, which may be found, will be submitted to the Town for resolution before proceeding with the Work.

H. The Contractor will take field measurements and verify field conditions and carefully compare these field measurements, conditions and other information known to the Contractor before starting activities. Errors, inconsistencies, or omissions discovered will be immediately reported to the Town.

I. The Contractor will establish and maintain all building and construction grades, lines, levels, and benchmarks, and will .be responsible for the accuracy and protection of these items. This Work will be performed or supervised by an Arizona licensed civil engineer or surveyor.

J. Any person employed by the Contractor or any

Subcontractor who, in the opinion of the Town, does not perform his Work in a proper, skillful and safe manner or is intemperate or disorderly will, at the written request of the Town, be removed from the Work by the Contractor or Subcontractor employing this person, and will not be employed again in any portion of the Work without the written approval of the Town.

The Contractor or Subcontractor will hold the Town and its officers, officials, employees, and agents harmless from damages or claims, which may occur in the enforcement of this Article.

K. The Contractor assumes responsibility for the proper performance of the Work of Subcontractors and any acts and omissions in connection with this performance. Nothing in the Contract Documents, as defined in Section 9.1, is intended or considered to create any legal or contractual relationship between the Town and any Subcontractor or Sub Subcontractor, including but not limited to any third-party beneficiary rights.

L. The Contractor will coordinate the activities of all

Subcontractors. If the Town performs other work on the Project or at the Site with separate contractors under the Town's control, the Contractor agrees to reasonably cooperate and coordinate its activities with those of the separate contractors so that the Project can be completed

in. an orderly and coordinated manner without unreasonable disruption.

M. On a daily basis, the Contractor' will prepare a Contractor's a report (the “Daily Report”). The Town's Project Inspector or the Public Works Director will provide a sample report format to the Contactor. The report will detail the activities that took place during the course of the day, all equipment utilized, and the number of hours operated, and all personnel on the Project including Sub-contractors. Unless otherwise arranged, the Daily Reports will be submitted on a daily basis to the Town's Inspector or the Public Work's Project Coordinator. The Daily Reports will also be made available to the Town's Representative upon request. Failure to provide Daily Reports as arranged or requested above will result in the retention of monthly progress payments until the Reports are brought up to date.

N. In the· event of noncompliance with this Article 1.4, the

Town may require the Contractor to stop or suspend the construction, as defined in Exhibit A, in whole or in part. Any suspension due to the Contractor's noncompliance will not be considered a basis for an increase in the Contract Price or extension of the Contract Time.

1.5. CONTROL OF THE WORK SITE

A. Throughout all phases of construction, including suspension of the Work, the Contractor will keep the Site reasonably free from debris, trash and construction wastes to permit the Contractor to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial ·Completion of the Work, or a portion of the Work, the Contractor will remove all debris, trash, construction wastes; materials, equipment, machinery and tools arising from the Work or applicable portions of it to permit the Town to occupy the Project or a portion of the Project for its intended use

B. Dust Control. The Contractor will take whatever steps, procedures or means required to prevent abnormal dust conditions due to his construction operations in connection with this Contract. The dust control measures will be maintained at all times during construction of the Project(s) to the satisfaction of. the Town in accordance with the requirements of the Maricopa County Health Department Air Pollution Control Regulations and M.A.G. Standard Specifications together with applicable provisions of Federal and State Law.

C. Dust Control Coordinator. At any Town construction site of 5 acres or more of disturbed surface area, as defined in A.RS.

§49-474(8) (5), that is required to have a Dust Generation Permit, the Contractor must have at all times at the Site, at least 1 Dust Control Coordinator trained in accordance with the requirements of A.RS. §49-474.05 during primary dust generating operations that is related to the purposes for which the Dust Control Permit was issued. The Dust Control Coordinator must have full authority to ensure that dust control measures are implemented at the Site, including authority to conduct inspections, deploy dust suppression resources, and modify or shutdown activities as needed to control dust. The Dust Control Coordinator must be responsible for managing dust prevention and dust control on the Site, including the use of leaf blowers and street sweeping equipment..· The Dust Control Coordinator must have a valid Dust Training Certification Identification Card readily accessible on the Site while acting as the Dust Control Coordinator.

D. The requirements described in the above Article do not apply if all 3 of the following circumstances are present:

1. The area of disturbed surface area is less than 5 acres.

2. The previously disturbed areas are stabilized in accordance with the requirements of any applicable County rules.

3. The Contractor with the Dust Control Permit provides notice of the acreage stabilized to the County Control Officer.

On sites with greater than 1 acre of disturbed surface area, the Contractor holding a Dust Control permit issued by a County Control Officer, who is required to obtain a single permit for multiple noncontiguous sites that is required to control PM-10 emissions from dust generating operations must have at least 1 individual who is designated as a Dust Control Coordinator. The Dust Control Coordinator must have a valid Dust Training Certification Identification Card readily accessible on the Site while acting as the Dust Control Coordinator. The Dust Control Coordinator must be present on Site at all times during primary dust generating activities that are related to the purposes for which the permit was issued.

A Subcontractor who is engaged in dust generating operations at a Site that is subject to a Dust Control Permit issued by a County Control Officer and that requires the control of PM-10 emissions from dust generating operations must register with the County Control Officer. The Subcontractor must have its registration number readily accessible on the Site while conducting any dust generating operations.

E. Storage on Site. Only materials and equipment which are to be used directly in the Work, will be brought to and stored on the Site by the Contractor. When equipment is no longer required for the Work, it will be removed promptly from the Site. Protection of construction materials and equipment stored at the Site from weather, theft, damage, and all other adversity is solely the responsibility of the Contractor.

F. Waste Products. The Contractor is responsible for the cost to dispose of all waste products including excess earth material which will not be incorporated into the Work under this Contract. The waste product referred to will become the property of the Contractor. The Contractor will provide for the legal disposal at an appropriate off-site location for all waste products, debris, etc., and will make necessary arrangements for its disposal. Any disposal/dumping of waste products or unused materials will conform to applicable Federal, State and Local Regulations

G. The Contractor will supervise and direct the Work. He will be solely responsible for the means, methods, techniques, sequences, and procedures of construction. The Contractor will employ and maintain on the Project a qualified supervisor or superintendent who will have been designated in writing by the Contractor as the Contractor's Representative. The

Representative will have full authority to act on behalf of the Contractor and all communications given to the Representative will be as binding as if given to the Contractor. The Representative will be present on the Site at all times as required to perform adequate supervision and coordination of the Work. Where appropriate all Provisions of M.A.G., Section 105.5, will be applicable.

H. Abnormal Weather. In the event of abnormal weather conditions, such as windstorms, rainstorms, etc., the Contractor will immediately inspect the Work Site and take all necessary actions to ensure public access and safety are maintained.

I. Damage to Property at the Site. The Contractor will be responsible for any and all damage or loss to property at the Site, except to the extent caused by the acts or omissions of the Town or its representatives, employees or agents and not covered by insurance. The costs and expenses incurred by the Contractor under this Article will be paid as a Cost of the Work to the extent that these costs and expenses are in excess of or are not covered by required insurance, and to the extent of any deductibles, but they will not increase the Contract Price.

J. Damage to Property of Others. The Contractor will avoid damage, as a result of the Contractor's operations, to existing sidewalks, curbs, streets, alleys, pavements, utilities, adjacent property, the work of separate contractors and the property of the Town. The Contractor will repair any damage caused by the operations of the Contractor, and these costs will be paid as a Cost of the Work to the extent that the costs and expenses are in excess of or are not covered by required insurance, and to the extent of any deductible, but they will not increase the Contract Price.

K. Failure of Contractor to Repair Damage. After receiving and acknowledging 10 days written notice, if the Contractor fails to commence the repair of damage to property as provided in Articles 1.5(I) :and 1.5(J), and diligently pursue the repair, then the Town may elect to repair the damages with its own forces and to deduct from payments due or to become due to the Contractor, amounts paid or incurred by the Town in correcting the damage (provided the Contractor has not commenced such repair during this 10 day period).

1.6 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES

A. Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. The Contractor will review, approve, and verify that all submittals meet the intent of the Contract Documents.

B. Three (3) copies of each Shop Drawing, Product Data, Sample, and similar submittals required by the Contract Documents will be delivered to the Town in compliance with the approved schedule so as to cause no delay in the Work or in the activities of the Town or of separate contractors. Submittals made by the Contractor, which are not required by the Contract Documents, may be returned without action.

C. The Contractor will perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data Samples, or similar submittals (as defined by MAG Standard Specifications) until the respective submittal has been approved by the Town. All Work will be in compliance with approved submittals. The Contractor will not be relieved of responsibility for any errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Town's approval. Deviation from the original specifications will be specifically noted on the submittal to the Town and the Town will be allowed 7 days to approve or reject any deviations.

D. By approving, verifying and submitting Shop Drawings, Product

Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria, or will do so, and has checked and coordinated the information contained within the submittals with the requirements of the Work.

E. The Contractor will not be relieved of responsibility for deviations from requirements of the Work by the Town's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Town in writing of the deviation at the time of submittal and the Town has given written approval to the specific deviation. The Contractor will not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Town's approval.

F. The Contractor will direct specific attention, in writing or on resubmitted Shop Drawings. Product Data, Samples, or similar submittals, to revisions other than those requested by the Town on previous submittals.

G. Informational submittals upon which the Town is not expected to take responsive action may be so identified in the Contract

H. When professional certification of performance criteria of materials, systems or equipment is required by the Work, the Town will be entitled to rely upon the accuracy and completeness of the calculations and certifications.

1.7 QUALITY CONTROL, TESTING AND INSPECTION

A. Inspection. The Town's Inspectors may be stationed on the Work site to report to the Town's Representative or his Designee as to the progress of the Work. The Town's Representative or his Designee may also report as to the manner in which the Work is being performed and report whenever it appears that material furnished or Work performed by the Contractor fails to fulfill the requirements of the specifications of this Contract. The Inspector may direct the attention of the Contractor to any failure or infringement, but this inspection will not relieve the Contractor from any obligation to furnish acceptable materials or to provide completed construction that complies with the Contract in every way. The Inspector is for the purpose of assisting the Town's Representative and should not be confused with an Inspector with a Town regulatory agency or with an inspector from a laboratory under Article 1.8

B. In case of any dispute arising between the Inspector and the

Contractor as to material furnished or the manner of performing the Work, the Inspector will have the authority to reject materials or suspend the Work until the question and issue can be referred to and decided by the Town. Inspectors are not authorized to revoke, alter, enlarge, relax, or release any requirements of the specifications. Inspectors will in no case act as foremen or perform other duties for the Contractor or interfere with the management of the Work by the Contractor.

C. Inspection or supervision by the Town's Representative or

Designee will not be considered as direct control of the individual workman and his work. The direct control will be solely the responsibility of the Contractor.

D. The furnishing of these services for the Town will not make the Town responsible for or give the Town control over construction means, methods, techniques, sequenced procedures or for safety precautions or programs or responsibility for the Contractor's failure to perform the Work in compliance with the Contract Documents.

1.8 MATERIALS TESTING

All materials used in the Work will be new and unused, unless otherwise noted, and will meet all quality requirements.

A. All construction materials to be used on the Work or incorporated into the Work, equipment, plant, tools, appliances, or methods to be used in the Work may be subject to the inspection and approval or rejection of the Town. Any materials rejected by the Town· will be removed immediately and replaced in a manner acceptable to the Town at no further cost to the Town.

B. The procedures and methods used to sample, and test material will be determined by the Town. Unless otherwise specified, samples and test will be made in compliance with the following: The standard methods of AASHTO or ASTM, DSPM and MAG Standard Specifications.

C. All testing will be by a qualified Independent Testing Laboratory paid for by the Contractor per the Bid Item “Material Testing”.

1. When the first and subsequent tests indicate noncompliance with the Work Specifications, the cost associated with that noncompliance will be paid for by the Contractor.

2. When the first and subsequent tests indicate noncompliance with the Contract, all retesting will be performed by the same testing agency.

3. The Contractor will cooperate with the selected testing laboratory and all others responsible for the testing and inspecting of the Work and will provide them access to the Work at all times. ·

D. At the option· of the Town, materials may be approved at the source of supply before delivery is started.

E. Code compliance testing and inspections required by codes or ordinances, or by a plan approval authority, and which are made by a legally constituted authority, will be the responsibility of and will be paid by the Contractor, unless otherwise provided.

F. The Contractor's convenience and quality control testing and inspections will be the sole responsibility of the Contractor and paid by the Contractor.

G. All soils and materials testing will be performed and paid for by the Contractor. The Contractor will order tests and distribute test results for all construction areas. The Contractor will be responsible for ordering testing and will distribute test results to the City within one (1) business day after receipt of the test results.

1.9 PROJECT RECORD DOCUMENT/AS BUILTS

A. During the construction period, the Contractor will maintain at the jobsite a set of blueline or blackline prints of the Construction Document drawings and Shop Drawings for Project Record Document purposes.

B. The Contractor will mark these drawings to indicate the actual installation where the installation varies appreciably from the original Construction Documents.

The Contractor will give particular attention to information on concealed elements, which would be difficult to identify or measure and record later. Items required to be marked include but are not limited to:

a. Dimensional changes to the drawings.

b. Revisions to details shown on drawings.

c. Depths of foundations below first floor.

d. Locations and depths of underground utilities.

e. Revisions to routing of piping and conduits.

f. Revisions to electrical circuitry.

g. Actual equipment locations.

h. Duct size and routing.

i. Locations of concealed internal utilities.

j. Changes made by Change Order.

k. Details not on original Contract Drawings.

C. The Contractor will mark completely and accurately Record Documents, prints of Construction Documents or Shop Drawings; whichever is the most capable of indicating the actual physical condition. Where Shop Drawings are marked, show cross-reference on the Construction Documents location.

1. The Contractor. will mark Project Record Drawings sets with red erasable colored pencil,

2. The Contractor will note Request for Information (RFI) Numbers, American Standards Institute (ASI) Numbers and Adjustment Numbers, etc., as required to identify the source of the change to the Construction Documents.

3. The Contractor will at the time of Substantial Completion, submit Record Documents prints and Shop Drawings to the Town or its representative.

D. Immediately upon receipt of the reviewed Record Documents from the Town, the Contractor will correct any deficiencies or omissions to the drawings and prepare as-builts for submission to the Town.

1.10 WARRANTY

A. The provisions of M.A.G., Section 108.8 will apply.

Should the Contractor fail to begin repairs or corrective work within 14 calendar days after receipt of written notice from the Town, the Town may perform the necessary work and the Contractor agrees to reimburse the Town for the actual cost.

The warranty period on any part of the Work repaired or replaced will be extended for a period of 1 year from the date of the repair or replacement.

This warranty will not apply to damage caused by normal wear and tear or by acts beyond the Contractor's control.

B. The Contractor's· warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work by persons other than the Contractor.

C. The Contractor's warranty obligation will be for 1 year.

D. Nothing in this warranty is intended to limit any manufacturer's warranty which provides the Town with greater warranty rights than those found in this Article or the Contract Documents/ MAG Specifications. The Contractor will provide the Town with all manufacturers' warranties upon Substantial Completion.

1.11 CORRECTION OF DEFECTIVE WORK

A. The Contractor agrees to correct any Work that is found to not be in conformance with the Contract Documents within a period of 1 year from the date of Substantial Completion of the Work or any portion of the Work, or within any longer period to the extent required by the Contract Documents. All removal/replacement work, as directed by the Town to the Contractor, in compliance with this Contract, MAG standards and Town codes will have cost determinations by the Town and be issued as a deduct or change order to the Project as determined by the Town. A Progress Payment, or partial or entire use or occupancy of the Project by the Town will not constitute acceptance of Work not in accordance with the Contract Documents.

B. During the Work, the Contractor will take meaningful steps to begin correction of any nonconforming Work as notified by the Town. This includes the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If the Contractor fails to begin the necessary steps during the Work, the Town, in addition to any other remedies provided under the Contract Documents, may provide the Contractor with written notice that the Town will commence correction of any nonconforming Work with its own forces at Contractor’s cost.

C. The Contractor will take meaningful steps to begin correction of nonconforming Work. These measures include but are not limited to timely correction of the Work. If the Contractor fails to initiate necessary measures for this Work within 7 days of receipt of written notice from the Town, the Town, in addition to any other remedies provided under the Contract Documents, may provide the Contractor with written notice that the Town will begin correction of the nonconforming Work with its own forces at Contractor’s cost.

D. If the Town does perform this corrective Work, the Contractor will be responsible for all reasonable costs incurred by the Town in performing the correction.

E. The Contractor will immediately respond to any nonconforming

Work that creates an emergency.

F. The 1-year period referenced in Article 1.10 above applies only to Contractor's obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies the Town may have regarding the Contractor's other obligations under the Contract Documents.

ARTICLE 2 - TOWN'S SERVICES AND RESPONSIBILITIES

2.1 DUTY TO COOPERATE

The Town will, throughout the performance of the Contract Services, cooperate with the Contractor and perform its responsibilities, obligations and services in a timely manner consistent with Town priorities to facilitate the Contractor's timely and efficient performance of the Contract Services and so as not to delay or interfere with the Contractor's performance of its obligations under the Contract Documents.

2.2 INFORMATION AND SERVICES

A. The Town will furnish the Contractor, at no cost to the Contractor, the following information or services for this Project, as applicable and available.

1. One copy of data pertinent to the Work. However, the

Contractor will be responsible for searching the records and requesting information required for the Project.

2. All available data and information relative to policies, standards, criteria, studies, etc.

3. Project funding and budget allocations and any changes affecting the funding or budget allocations.

2.3 TOWN'S REPRESENTATIVE

A. The Town's Representative will be responsible for providing

Town-supplied information and approvals in a timely manner to permit the Contractor to fulfill its obligations under the Contract

B. The Town's Representative will also provide the Contractor with prompt notice if it observes any failure on the part of the Contractor to fulfill its contractual obligations, including any default or defect in the Project or non-conformance with the drawings and specifications.

ARTICLE 3 - CHANGES TO THE CONTRACT PRICE AND TIME

3.1 DELAYS TO THE WORK

A. Delays may be compensable, concurrent, excusable, or non-excusable as permitted by Article 3.1. For the purposes of this Contract the term “Contract Time” means the period commencing with the initiation of Work and ending when all of the Work in is completed in conformance with the Contract

B. If the' Contractor is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom the Contractor is responsible; the Contract Times for performance may be reasonably extended by the Town subject to its sole discretion.

C. The Contractor will request an increase in Contract Time by written notice including an estimate of the probable effect of delay on progress of the Work. In the case of a continuing delay only one request is necessary.

D. Written notice must be received within 5 days of the commencement of the cause of the delay.

1. If written notice is received more than 5 days after commencement of the cause of the delay, the period of delay will not commence until the date of notice.

E. By way of example and subject to Article 9.7, events that may entitle Contractor to an extension of the Contract Time include acts or omissions of the Town or anyone under the Town's control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, unusual delay in transportation, and adverse weather conditions not reasonably anticipated.

F. If adverse weather conditions are the basis for a request for additional Contract Time, the requests will 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.

G. It is understood, however, that permitting the Contractor to proceed to complete any Work, or any part of the Work, after the date to which the time of completion may have been extended, will in no way act as a waiver on the part of the Town of any of its legal rights.

H. In the event that the Contractor sustains damages as a result of expenses incurred by a delay for which the Town is responsible, the Contractor and the Town will negotiate to determine the amount of any damages. This provision is made in accordance with Arizona Revised Statutes Section 34-221 and is effective only if the delay caused by the Town is unreasonable under the circumstances and was not within the contemplation of the parties. This provision will not be construed to void any provision of this Contract pertaining to notice of delays, arbitration, or other settlement provisions applicable to disputes, or provisions relating to liquidated damages.

I. In addition to the Contractor's right to a time extension for those events stated in this Article 3.1, the Contractor may also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price will not be adjusted for those events stated in this Article that are beyond the control of both the Contractor and the Town, including the events of war, acts of terrorism, floods, labor disputes (but not including the Contractor's own work force and those of its subcontractors), earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God.

3.2 DIFFERING SITE CONDITIONS

If the Contractor encounters a Differing Site Condition(s), the Contractor may be entitled to an adjustment in the Work Unit Cost, as included in Exhibit A, or Contract Time(s) to the extent the Contractor's cost or time of performance is the· direct result of a Differing Site Condition(s) as provided by M.A.G. Standard Specifications Subsection 102.4.

3.3 ERRORS, DISCREPANCIES AND OMISSIONS

A If the Contractor observes errors, discrepancies··or omissions in the Contract Documents, it will promptly notify the Town and request clarification. The Contractor will provide a copy of this notice to the Town's Representative.

B. If the Contractor proceeds with the Work affected by the errors, discrepancies, or omissions, without receiving any clarifications, it does so at its own risk. Adjustments involving these circumstances made by the Contractor before clarification by the Design Professional will be at the Contractor's risk.

3.4 TOWN REQUESTED CHANGE IN WORK

A. The Town reserves the right to make, at any time during the progress of the Work, any alterations as may be found necessary or desirable.

B. These alterations and changes will not invalidate this Contract nor release the surety and the Contractor agrees to perform the Work as altered, the same as if it had been a part of the original Contract Documents.

C. The Town will request a proposal for a change in Work from the

Contractor, and an adjustment in the Contract Price or Contract Times will be made based on a mutual agreed upon cost and time.

3.5 LEGAL REQUIREMENTS

Contract Price and Contract Time will be adjusted to compensate the Contractor for the effects of any changes in the Legal Requirements enacted after the date of the Contract affecting the performance of the Work.

3.6 FIELD ORDERS

A. The Town has authority to initiate Field Orders that do not materially and adversely affect the Work, including the design, quality, performance, and workmanship required by the Contract Documents. A Field Order is defined as written instructions for making a minor change in a contract not involving an adjustment to the contract amount or any change in the completion time.

Field Orders will be made by written order and will be binding on the Town and the Contractor. The Contractor will carry out any written orders promptly.

B. The Contractor may make minor changes in the Work, provided, however that the Contractor will promptly inform the Town, in writing, of any changes and record the changes, if appropriate, on the Project Record Documents maintained by the Contractor.

If the Town disagrees with the minor change, the disagreement shall be resolved in accordance with Article 5.

C. If unit prices are stated in the Contract Documents or are later agreed to by the parties, but application of the unit prices will cause substantial inequity to the Town or the Contractor because of differences in the character or quantity of the unit items as originally contemplated, the unit prices will be equitably adjusted.

D. If the Town and the Contractor disagree upon whether the

Contractor is entitled to be paid for any services required by the Town, or if there are any other disagreements over the Scope of Work or proposed changes to the Work, the Town and the Contractor will resolve the disagreements in accordance with Article 5.

ARTICLE 4- PROCEDURE FOR PAYMENT

4.1 PAYMENT REQUEST

A. At the pre-construction conference prescribed in Article 1.3, the Contractor will submit for the Town's review and approval a Schedule of Values. The Schedule of Values will include values for all items comprising the Contract Price and will serve as the basis for monthly progress payments made to the Contractor throughout the Work.

B. At least 5 working days before the date established for a progress payment, the Contractor will meet with the Town's Representative to review the progress of the Work, as it will be reflected on the request for a progress payment (a “Payment Request”).

C. The Payment Request will constitute the Contractor's representation that the Work has been performed consistent with the Contract Documents, has progressed to the point indicated in the Payment Request, and that title to all Work will pass to Town free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project.

4.2 PARTIAL PAYMENTS

A. Requests for partial payment will be allowed if the Project completion time will exceed 30 Days pursuant to Section 4.3.

B. The Payment Request may request payment for equipment and materials not yet incorporated into the ·Project if construction progress is in reasonable conformance with the approved schedule. Payment for equipment and materials not yet incorporated into the Project is subject to the approval of the Town.

C. For equipment and materials suitably stored at the location of the Project (the “Site”), the equipment and materials will be protected by suitable insurance provided by the Contractor and the Town will receive the equipment and materials free and clear of all liens and encumbrances.

D. For materials and equipment stored off the Site, the Town must approve the storage. The material and equipment must be stored within Maricopa County and be accessible for the Town's inspection. Title to the materials and equipment will include applicable insurance, bonding, storage, and transportation to the Site.

E. All bonds and insurance required, or stored materials will be in the

Town's name.

4.3 PAYMENT OF CONTRACT PRICE

A. Payments should be provided on the Town format for a Pay Application which is based on the agreed upon "Schedule of Values." The Town will make payment in accordance with A.RS.

A.R.S.§ E-221.

B. The Town will pay the Contractor all amounts properly due. If the

Town determines that the Contractor is not entitled to all or part of a Contractor Payment Request, it will notify the Contractor in writing within 7 days after the date the Contractor Payment Request is received by the Town. The notice will indicate the specific amounts the Town intends to withhold, the reasons and contractual basis for the withholding, and the specific measures the Contractor must take to rectify the Town's concerns. The Contractor and the Town will attempt to resolve the Town's concerns. If the parties cannot resolve the concerns, the Contractor may pursue its rights under the Contract Documents.

4.4 RETENTION ON PAYMENTS

Retention on Contract Payments shall comply with A.R.S. § 34-221 and/or MAG Standard Specification 109, whichever is more restrictive.

4.5 FINAL PAYMENT

A. After receipt of a final Contractor Payment Request, the Town will make final payment as required by this Article, provided that the Contractor has completed all of the Work in conformance with the Contract Documents and a Final Acceptance Letter has been issued by the Town.

B. At the time of submission of its final Contractor Payment Request, the Contractor will provide the following information:

1. An affidavit that there are no claims, obligations, or liens outstanding or unsatisfied for labor, services, material, equipment, taxes, or other items performed, furnished or ·incurred for or in connection with the Work which will in any way affect the Town's interests.

2. A general release executed by the Contractor waiving, upon receipt of final payment by the Contractor, all claims, including claims of subcontractors, except those claims previously made in writing to the Town and remaining unsettled at the time of final payment.

ARTICLE 5- CLAIMS AND DISPUTES

5.1 REQUESTS FOR CONTRACT ADJUSTMENTS AND RELIEF

A. If either the Contractor or the Town believes that it is entitled to relief against the other for any event arising out of or related to Contract Services, that party will provide written notice to the other party of the basis for its claim for relief.

B. This notice will, if possible, be made before incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of the Contract.

C. In the absence of any specific notice requirement, written notice will be given within a reasonable time, not to exceed 10 days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later.

D. This notice will include sufficient information to advise the other party of. the circumstances giving rise to the claim for relief, the specific contractual adjustment. or relief requested and the basis of the request.

5.2 DISPUTE AVOIDANCE AND RESOLUTION

A. The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, the Contractor and the Town each commit to resolving the disputes or disagreements in an amicable, professional, and expeditious manner so as to avoid unnecessary losses, delays, and disruptions to the Work.

B. The Contractor and the Town will first attempt to resolve disputes or disagreements at the field level through discussions between the Contractor's Representative and the Town's Representative.

C. If a dispute or disagreement cannot be resolved through the

Contractor's Representative and the Town's Representative, the Contractor's Senior Representative and the Town's Senior Representative, upon the request of either party, will meet as. soon as conveniently possible, but in no case later than 30 days after the request is made, to attempt to resolve the dispute or disagreement. Before any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. ·

D. The Town and the Contractor agree to negotiate in good faith in accordance with this Contract's procedure for the recovery of damages related to expenses incurred by the either party for a delay for which the other party i is responsible, that is unreasonable under the circumstances, and that was· not within the contemplation of the parties to the Contract.

5.3 DUTY TO CONTINUE PERFORMANCE

Unless provided to the contrary in the Contract Documents, the Contractor will continue to perform the Work and the Town will continue to satisfy its payment obligations to the Contractor, until final resolution of any dispute or disagreement between the Contractor and the Town.

5.4 REPRESENTATIVES OF THE PARTIES

A Town's Representatives

1. The Town designates the individual listed below as the

Town's Senior Representative. This individual has the authority and responsibility for avoiding and resolving disputes under Article 7.2(C):

Luke Kautzman Development Services Director / Zoning Administrator 37622 N. Cave Creek Road Cave Creek, Arizona 85331 480-488-6633 Office

B. Contractor's Representatives

1. The Contractor will designate an individual for this Contract as the Contractor's Representative.

ARTICLE 6 - SUSPENSION, TERMINATION AND CANCELLATION

6.1 TOWN'S RIGHT TO STOP CONSTRUCTION SERVICES

A. The Town may, at its discretion and without cause, order the Contractor in writing to stop and suspend this Contract.

Immediately after receiving this notice, the Contractor will discontinue advancing the Work. The suspension will not exceed 180 consecutive days. If the Town suspends the work for 181 consecutive Days or more, the suspension will be considered a termination for convenience.

· The Contractor may…