HomeMy WebLinkAbout2020 Resolution No. 0181
RESOLUTION NO. 18
SERIES OF 2020
A RESOLUTION AWARDING AN OPTIMAL SOURCE CONTRACT TO
PRECISION CONCRETE CUTTING FOR THE 2020 SIDEWALK TRIP
HAZARD ELIMINATION PROGRAM
WHEREAS, Section 116(b) of the Englewood Home Rule Charter and Section 4-1-3-1
of the Englewood Municipal Code 2000, allow contracts for public works or improvements to be
negotiated, provided that contracts for which no competitive bids have been requested, to be
approved by resolution declaring the reason for the exception to the competitive bidding
requirement;
WHEREAS, the City of Englewood, Public Works Department each year repairs
sidewalks to remove trip hazards from ½” to 1” in height, and to bring the sidewalks into
compliance with the Americans with Disabilities Act;
WHEREAS, it is important for the City of Englewood to facilitate these repairs to
protect the public who use the sidewalks;
WHEREAS, Precision Concrete Cutting uses a proprietary method to remove trip
hazards that is not comparable to other companies. This method also avoids the more expensive
process of removing and replacing individual concrete panels;
WHEREAS, using this proprietary method will significantly reduce the cost of the work;
and,
WHEREAS, funds for this purchase would come from the Concrete Utility budget.
.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The Englewood City Council hereby authorizes the negotiated contract from
Precision Concrete Cutting for the repair of sidewalks in Pavement Maintenance Zone 2 of the
City, in lieu of the competitive bid process as allowed by Section 116(b) of the Englewood Home
Rule Charter in the amount not to exceed of $200,000, as set forth in the Contract, attached hereto
as Exhibit A.
ADOPTED AND APPROVED this 18th day of May, 2020.
Linda Olson, Mayor
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ATTEST:
__________________________________
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the
above is a true copy of Resolution No. 18, Series of 2020.
Stephanie Carlile, City Clerk
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CONSTRUCTION CONTRACT AGREEMENT
CONTRACT # CFC/ 20-30
$200,000.00
THIS CONSTRUCTION CONTRACT AGREEMENT (“Agreement”) is made and
entered into effective this day of 20 ,
(“Effective Date”), by and between the CITY OF ENGLEWOOD, a Colorado home rule
municipality whose address is 1000 Englewood Parkway, Englewood, Colorado 80110, (“City”),
and Precision Concrete Cutting (“Contractor”) whose principal address is 745 Vallejo Street,
Denver, CO 80204.
WHEREAS, the City desires to retain the services of Contractor, and Contractor desires
to provide the services to the City.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
I. PROJECT.
A. Project. Contractor shall commence and complete the 2020 Concrete Trip Hazard
Mitigation, PW 20-19 (“Project”), in accordance with the Contract Documents, as defined below.
Project Name Project-Number
Contractor shall, at its own expense, do all Work in a professional and workmanlike manner and
furnish all labor, materials, tools, supplies, machinery, utilities, permits, licenses, and other
equipment and documents that may be necessary for the completion of the Project.
B. Commencement and Completion of the Project. Contractor understands and agrees
that all Work required under this Agreement shall be fully completed, as set forth in the Contract
Documents, within 150 calendar days of the date of the Notice to Proceed. Contractor
acknowledges and understands that it is an essential term of this Agreement that Contractor
maintain a rate of progress in the Work that will result in the completion of the Project in
accordance with the Contract Documents, and to that end, Contractor agrees to proceed with all
due diligence to complete the Work in a timely manner in accordance with the Contract
Documents.
C. Contract Documents; Priority. The term “Contract Documents” includes the
following documents, set forth below, and incorporated herein. In resolving inconsistencies among
the two or more of the Contract Documents, precedence will be given in the same order as
enumerated here.
1. Construction Contract Agreement;
2. Special Construction Requirements
3. General Conditions;
4. Notice to Proceed;
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5. Change Orders (by date);
6. The Following Drawings; as contained in the Invitation to Bid:
N/A_______________________________________________
Number Title Date
7. Contractor’s Bid Proposal and any Acknowledged Addenda.
II. COMPENSATION.
A. Contract Price. As compensation for performance of the Work described in the Contract
Documents and any other obligations under this Agreement, the City will pay Contractor, for work
actually performed, a sum not to exceed Two Hundred Thousand and 00/100 Dollars
($200,000.00), subject to Change Orders, executed in accordance with the Contract Documents.
III. NOTICES.
Except for routine communications and as provided in the General Conditions, written
notices required under this Agreement and all other correspondence between the parties will be
directed to the following and will be deemed received when hand-delivered or three (3) days after
being deposited in the United States Mail, first class, postage pre-paid unless the parties agree to
electronic delivery of correspondence:
If to the City: If to the Contractor:
City Contact/Title Wayne Hobbs, Colorado Manager
Department Precision Concrete Cutting
1000 Englewood Parkway 745 Vallejo Street
Englewood, Colorado 80110 Denver, CO 80204
E-Mail Address waynehobbs@safesidewalks.com
IV. MISCELLANEOUS CONDITIONS.
A. Authority. The parties represent and warrant that they have taken all actions
necessary to legally authorize the undersigned signatories to execute this Agreement for the parties
and to bind the parties to its terms. The signatories represent and warrant that each has legal
authority to execute this Agreement for the party he or she represents and to bind that party to its
terms.
B. Counterparts. This Agreement may be executed in any number of counterparts,
each deemed to be an original, and, taken together will constitute one and same instrument.
C. Entire Agreement. By signing this Agreement the Contractor acknowledges,
accepts and is hereby bound by the Agreement, its attachments and/or exhibits, including those
listed in I (C) above, and that this is the entire understanding of the parties relating to the subject
matter of this Agreement. All prior and contemporaneous agreements and understandings, whether
oral or written, are superseded by this Agreement and are without effect nor do they vary
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or alter any terms or conditions of this
Agreement. Any alterations or amendments
to the Special Conditions or General
Conditions shall have no force or effect unless
agreed to in writing by the Parties.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the Effective
Date, first above written.
CITY OF ENGLEWOOD, COLORADO G DocuSigned by:
By : -,,~ ,LI~
;_ 6BC6D88E200D408 ... f Pubt· w k 1v,,. .. ,. I • "' ..... ..,,. I •11c:ctor O IC or s
By :[?'i"C--
. 80DEF296415549C ... Man ~nawn Lewis, city ager
Date: -----------
l,DocuSigned by:
By :~IA,ek {9-ts61A,
r o4A6462AAA834cs ... 'Or of Englewood .l..,a.&&U.16 ""'•a.11va.•, .&.\l".&W.J
Attest ·
By : ~~~: C,v{jl,,
S-FCD655898234480 ... ')erk tepname car111e, city c
CONTRACTOR NAME
By: Date:_ ...... L/:--=-·:z;._7 ,_z_o ___ z{)=-----
(Print ame and Title)
Prec,;sr,n fen.,trle cyHf"'J
Company Name
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SPECIAL CONSTRUCTION REQUIREMENTS – CFC/20-19
1.0 Specification Basis. Engineering specifications for this Project shall be the latest editions
of the following except as modified by the Contract Documents for this project and all other local,
state, and federal requirements:
• Design and Construction Standards and Specifications for the City of Englewood,
Colorado, as amended
• City of Englewood Colorado Storm Drainage Criteria Manual, as amended
• Colorado Department of Transportation Standard Specifications for Road and
Bridge Construction, sections 200-700, as amended
• Colorado Department of Transportation M&S Standard Plans, as amended
• Manual on Uniform Traffic Control Devices for Streets and Highways, and the
latest revision of the Colorado Supplement, thereto, as amended
The presence of a conflicting provision in any article, paragraph or subparagraph shall not have
any effect on any provisions of the same article, paragraph, or subparagraph which do not conflict
and such other provisions shall remain in full force and effect. The more restrictive provisions
shall govern.
2.0 Detailed Plans and Specifications. The detailed plans and specifications designated
_Precision Concrete Cutting Bid #: CO37756WH and addendum(s) included herein, shall govern
the materials to be furnished, and the work to be performed in the execution of the contract.
3.0 Right to Reduce Scope of Contract. The City of Englewood reserves the right to delete
portions of the work if the bid exceeds available funding.
4.0 Estimated Quantities. The Contractor agrees, accepts, and acknowledges that the quantities
set forth on the Bid Schedule are only approximate and that during the progress of the work, the
City may find it advisable and shall have the right to omit portions of the work and to increase or
decrease the quantities and reserves the right to add to or take from any items as may be deemed
necessary or desirable. Under no circumstances or conditions will the Contractor be paid on
account of anticipated profits upon the work or any portion thereof covered by the Contract which
is not actually performed.
5.0 Construction Permits. All construction permits necessary for this project shall be the
responsibility of the Contractor to acquire from the City of Englewood, 1000 Englewood Parkway,
Englewood, Colorado 80110, at no cost, or from the Colorado Department of Transportation for
projects within the right-of-way of Belleview Avenue, Federal Boulevard, or South Santa Fe Drive.
6.0 Substitutions. Substitution of specified materials shall be submitted for review and approval
prior to bid opening.
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7.0 Traffic Control. All traffic control plans are to be submitted by the Contractor and
approved by the City of Englewood Traffic Engineer prior to the start of construction.
TCS shall be present of site or be available at all times during the duration of the project.
All high profile traffic areas that are identified as critical routes or streets may require alternate
traffic control approvals from other City departments or entities, as well as abnormal or adjusted
work hours. The Project Engineer and City of Englewood Traffic Division have identified these
areas as follows:
• _N/A
•
•
•
8.0 Closing of Streets. No street or alley shall be closed to the public by the Contractor except as
authorized by the Project Engineer and in accordance with procedures outlined herein. Whenever,
in the prosecution of the work, the Contractor finds it necessary to close a street to traffic, he/she
shall advise the Police and Fire Departments forty-eight (48) hours in advance of the time when
the street will require closing. The forty-eight (48) hour notice will be required in all cases
involving the normal prosecution of the work and convenience of the Contractor. At least twenty-
four (24) hours prior to commencement of the work, the Contractor shall furnish and install
approved “No Parking” signs, giving the day of the week; i.e. “No Parking in this block on
Thursday.” At time of posting verbal notice of intent shall be given to occupants of premises
involved. In cases of emergency, involving conditions over which the Contractor has no control,
the street may be closed. In these cases, the Contractor is required to immediately notify the Police
and Fire Departments and the Project Engineer.
9.0 Detours. Wherever streets or alleys are closed as provided herein, it will be the sole
responsibility of the Contractor to adequately mark and light the detours as determined by the
Contractor and the Project Engineer after consultation with the Police and Fire Departments,
Traffic Engineer, and in accordance with standard details indicated on plans for the project.
10.0 Street and Traffic Signs. In the event that any stop signs or traffic direction signs are required
to be removed during the progress of construction and traffic is permitted across the intersection
so affected, the Contractor shall furnish such portable signs or other protections as may be
necessary for the proper handling of traffic, including the furnishing of flagmen at particularly
dangerous intersections. No separate payment will be made to the Contractor for this protection.
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11.0 School Zones. Work at these locations will require additional coordination with the City
of Englewood. Contractor may be limited to certain working hours in these areas. This additional
coordination and scheduling efforts will not be paid separately, but shall be included in the total
value of the contract. The following locations have been identified as school zones for on this
project:
• N/A
•
•
•
•
12.0 Staging. The use of City of Englewood rights-of-way for staging is strictly forbidden. Staging
is defined as the storage of material, equipment, or vehicles outside of the normal working area
allowed per the permit.
The Contractor shall provide for full containment of all labor, material and equipment within the
work zone limits, and shall protect adjacent traffic and/or obtain traffic control if required.
13.0 Floodplain Areas. All work located in an identified floodplain area will require the
Contractor to apply for a Floodplain Development Permit from the City of Englewood. Costs
associated with the permit will be covered by the City of Englewood. Identified Floodplain areas
for this project are as follows:
• N/A
•
•
14.0 Supervision of Work. The Contractor shall provide and continually maintain on the work
site during the project’s progress, adequate and competent supervision of all operations for and in
connection with the work being performed under this Contract, either personally or by a duly
authorized superintendent or other representative. The superintendent or other representative of
the Contractor on the work shall be fully authorized to act for the Contractor and receive direction
given by the Project Engineer.
15.0 Relations with Other Contractors. The Contractor shall cooperate with all other contractors,
including construction personnel from the City Public Works and Utilities Departments, as well as
other public utility personnel, who may be performing other work at or in the vicinity of the project
subject to this contract. Any conflict which may arise between the Contractor and such other
contractors or personnel in regard to their work shall be adjusted as determined by the Project
Engineer. If the work of the Contractor is delayed because of any acts or omissions of other
contractors or personnel, the Contractor shall have no claim against the City other than for an
extension of time to complete the project. When work under more than one contractor is being
executed at the same time in such a manner that work on one contract may interfere with the
performance of another contract, the Project Engineer shall decide which contractor shall continue
work and which shall cease work, or whether the work on both contracts
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shall progress simultaneously and in what manner. The privilege of access for the transport of
personnel, equipment or materials from one project area to another project area may be granted by
the Project Engineer, to the extent, manner and time which may be necessary.
16.0 Accident Prevention. The Contractor shall to the Project Engineer full information in
advance as their plans for carrying out any part of the work. If at any time before the beginning or
during the progress of the work, any part of the Contractor’s plan or equipment or any of their
methods of executing the work appear to the Project Engineer to be unsafe, inefficient, or
inadequate to insure the required quality, rate of progress or safety of the work, the Project
Engineer may order the Contractor to increase or improve his facilities or methods, and the
Contractor shall promptly comply with such orders; but neither compliance with such orders nor
failure of the Project Engineer to issue such orders shall relieve the Contractor from their
obligations to secure the degree of safety, the quality of work, and the rate of progress required by
the Contract. The approval of the Project Engineer of any plan or method of work proposed by the
Contractor shall not be considered as an assumption by the City, or any officer, agent or employee
thereof, of a risk or liability, and the Contractor shall have no claim under this Contract for the
failure or inefficiency of any plan or method so approved. Such approval shall be considered and
shall mean that the Project Engineer has no objection to the Contractor’s use or adoption, at his
own risk and responsibility, of the plan or method so proposed by the Contractor.
17.0 Suggestions to Contractor. Any plan or method of work suggested by the Project Engineer,
or his representative, to the Contractor, shall be used at the risk and responsibility of the Contractor;
and the Project Engineer and the City will assume no responsibility therefore.
18.0 Preconstruction Meeting. A preconstruction meeting shall be held by the Contractor with
the City of Englewood, the Project Engineer, and any other project staff to outline and identify the
following:
• Project Schedule including working hours during the day/week
• Traffic control plan
• Permit requirements
• Coordination and communication protocol
• Contractor’s Superintending including 24/7 contact information
• Submittal requirements
• Erosion control plan
• Final inspection and Project Closeout
Contractor shall contact any customers of planned service outages or access restrictions at least
forty-eight (48) hours prior to any planned service outage. Contractor shall also distribute City
provided door hangers to each of the impacted residences or businesses. The City shall review and
approve all notice material prior to distribution.
19.0 Project Signage. The Contractor shall be responsible for the manufacture and placement of
project signs with the assistance of the Project Engineer. The signs may be moved from time to
time as the project progresses and care shall be taken in their handling to assure their continued
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good appearance. Damaged or defaced signs shall be replaced at the Contractor’s expense. No
payment shall be made for the rental, manufacture, placement, moving, or replacing these signs.
20.0 Monuments, Benchmarks, Stakes. The Contractor shall be held responsible for the
proper preservation of all monuments, bench marks, reference points, and stakes. The City of
Englewood Project Engineer will identify these if possible. In the event that the location is not
identified in the scope of work, the Contractor shall notify the City of Englewood Project Engineer
immediately to record and approve the removal. Known locations of monuments, benchmarks, and
stakes for this project are as follows:
• N/A
•
The Contractor shall provide the following services on an ongoing basis throughout the duration
of the project:
(a) A contact person for the project shall be designated by the Contractor at the
preconstruction conference. This individual shall be primarily responsible for
maintaining communications with the City’s designated representative and
impacted residents/businesses; provide information on a regular basis to private
individuals, local organizations interested in the project and the affected agencies.
(b) The following agencies shall be coordinated with on an ongoing basis:
• City of Englewood
• Denver Fire Department
• Englewood Police Department
• Adjacent Businesses and Residences
• Adjacent schools and educations institutions
• RTD
• Union Pacific Railroad – If necessary
• Colorado Department of Transportation – If necessary
All costs incidental to the foregoing requirements will not be measured and paid for separately,
but shall be included in the total value of the contract.
21.0 Lowering Water Services. When directed by the Project Engineer, water services
encroaching on the construction site shall be lowered to conform to requirements of the cross-
section and other constructions details. This work shall be performed by the City of Englewood
Utilities Department.
Any work involving the cutting or tapping of water mains in connection with this project or with
other items in the Contract shall be done by the City of Englewood Utilities Department.
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22.0 Relocation of Curb Stops and Water Meters. Should either of these items be encountered
during the course of construction, proper notice shall be given to the Project Engineer. Upon receipt
of notice, the City of Englewood Utilities Department will take immediate steps to remove,
relocate or adjust the obstacle.
23.0 Relocation of Fire Hydrants. Fire hydrants which interfere with construction will be
relocated by the City of Englewood Utilities Department.
24.0 Utility Adjustments. The Contractor shall adjust all manholes, cleanouts and valve boxes to
finish grade.
25.0 Holidays recognized by the City of Englewood.
• New Year’s Day
• Martin Luther King Day
• President’s Day
• Memorial Day
• Independence Day
• Labor Day
• Veteran’s Day
• Thanksgiving Day
• Day after Thanksgiving
• Christmas Day
When New Year’s Day, Independence Day, or Christmas Day falls on a Sunday, the following
Monday shall be considered a holiday. When one of these days falls on a Saturday, the preceding
Friday shall be considered the holiday.
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GENERAL CONDITIONS OF THE CONTRACT
TABLE OF CONTENTS
Article 1. DEFINITIONS AND INTERPRETATION .............................................................................. 1
1.1 Definitions .............................................................................................................................. 1
1.2 References ............................................................................................................................. 4
1.3 Intention of Terms ................................................................................................................. 4
1.4 Computation of Time ............................................................................................................. 4
1.5 Abbreviations ......................................................................................................................... 4
1.6 Interpretation ......................................................................................................................... 5
Article 2. PRELIMINARY MATTERS ................................................................................................ 6
2.1 Delivery of Bonds and Evidence of Insurance ........................................................................ 6
2.2 Notice to Proceed .................................................................................................................. 6
2.3 Authority of the City Manager ............................................................................................... 6
2.4 Plans and Specifications ......................................................................................................... 6
2.5 Special Work .......................................................................................................................... 6
2.6 Pre-Construction Meeting ...................................................................................................... 6
2.7 Contractor’s Understanding of Work ..................................................................................... 7
2.8 Contractor’s Representation .................................................................................................. 7
2.9 Other Work ............................................................................................................................ 7
2.10 Notices ................................................................................................................................... 7
2.11 Contractor’s Signs .................................................................................................................. 7
2.12 Publicity and Advertising ........................................................................................................ 7
Article 3. PAYMENTS ................................................................................................................... 7
3.1 Measurement of Work Performed ........................................................................................ 7
3.2 Payments to Contractor and Completion .............................................................................. 7
3.3 Appropriate of Funds ........................................................................................................... 12
3.4 Payment for Increased or Decreased Quantities ................................................................. 12
3.5 Payment for Omitted Items ................................................................................................. 12
3.6 Extra and Force Account Work ............................................................................................ 12
3.7 Partial Payments .................................................................................................................. 13
3.8 Taxes / Direct Purchase Option ............................................................................................ 13
3.9 Liens ..................................................................................................................................... 14
3.10 Deductions ........................................................................................................................... 15
Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION .................................................... 15
4.1 Delays ................................................................................................................................... 15
4.2 Construction Schedule ......................................................................................................... 15
4.3 Subcontracting or Assigning of Contract .............................................................................. 16
4.4 Commencement of Work ..................................................................................................... 16
4.5 Limitation of Operations ...................................................................................................... 16
4.6 Progress Schedule ................................................................................................................ 16
4.7 Character of Workman and Equipment ............................................................................... 17
4.8 Suspension of Work ............................................................................................................. 17
4.9 Suspension of Work for City’s Convenience ........................................................................ 18
4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency ........ 18
4.11 Suspension of Work Resulting from Contractor’s Failure to Perform ................................. 18
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4.12 Contract Time ....................................................................................................................... 18
4.13 Liquidated Damages ............................................................................................................. 19
4.14 Adjustment for Suspended Work ......................................................................................... 20
4.15 Termination of Contract ....................................................................................................... 20
4.16 Termination for Cause.......................................................................................................... 20
4.17 Termination for Convenience of Owner .............................................................................. 21
4.18 Cooperation with Other Contractors ................................................................................... 23
4.19 Terminating of Contractor’s Responsibility ......................................................................... 24
Article 5. PROJECT AND CONSTRUCTION MANAGEMENT ............................................................ 24
5.1 Authority of Project Engineer or Project Manager .............................................................. 24
5.2 Communications .................................................................................................................. 24
5.3 Supervision ........................................................................................................................... 24
5.4 Contractor Performance ...................................................................................................... 2 5
5.5 Work Performed Under Adverse Weather Conditions ........................................................ 25
5.6 Use of Materials Found on the Work Site ............................................................................ 25
5.7 Final Cleaning Up .................................................................................................................. 25
5.8 Surveys ................................................................................................................................. 25
5.9 Lines and Grades .................................................................................................................. 26
5.10 Value Engineering ................................................................................................................ 26
5.11 Sanitary Regulations............................................................................................................. 26
5.12 Staging and Storage ............................................................................................................. 26
5.13 Salvage ................................................................................................................................. 27
5.14 Materials and Equipment Furnished by the Contractor ...................................................... 27
5.15 Substitution of Materials and Equipment ............................................................................ 27
5.16 Cutting and Patching ............................................................................................................ 28
5.17 Samples and Testing ............................................................................................................ 28
5.18 Property Rights in Materials ................................................................................................ 29
Article 6. CHANGES IN THE WORK .............................................................................................. 29
6.1 Changes and Increased or Decreased Quantities of Work .................................................. 29
6.2 Adjustments to Contract Price ............................................................................................. 35
6.3 Omitted Items ...................................................................................................................... 37
6.4 Work Not Specified But Included ......................................................................................... 37
6.5 Extra Work – Force Account................................................................................................. 37
6.6 Unauthorized Work .............................................................................................................. 37
Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL ........................................................... 37
7.1 Subcontractors ..................................................................................................................... 37
7.2 Workforce ............................................................................................................................ 38
7.3 Illegal Aliens as Laborers ...................................................................................................... 38
7.4 Personnel & Civil Rights ....................................................................................................... 39
Article 8. INSPECTIONS; CORRECTION OF DEFECTS ...................................................................... 40
8.1 Defective Work and Materials ............................................................................................. 40
8.2 Substituted Performance ..................................................................................................... 4 1
8.3 Authority and Duties of Inspectors ...................................................................................... 41
8.4 Inspection ............................................................................................................................. 41
8.5 Removal of Defective and Unauthorized Work ................................................................... 42
8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests .................... 43
Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT ......................................... 43
9.1 Protection of Persons ........................................................................................................... 43
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9.2 Protection of Property ......................................................................................................... 44
9.3 Protection of Historical Sites ................................................................................................ 44
9.4 Responsibility to Repair ....................................................................................................... 44
9.5 Traffic Control ...................................................................................................................... 44
9.6 Protection of Street Signs, Traffic Signs and Signals ............................................................ 46
9.7 Utilities ................................................................................................................................. 46
9.8 Coordination with Englewood Utilities ................................................................................ 46
9.9 Notification of Affected Utility and Property Owners ......................................................... 46
9.10 Pollution Control .................................................................................................................. 46
9.11 Public Convenience and Safety ............................................................................................ 47
9.12 Use of Explosives .................................................................................................................. 47
9.13 Restoration of Property ....................................................................................................... 47
Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS ...................................... 47
10.1 Compliance with Laws, Licenses and Permits ...................................................................... 48
Article 11. BONDS ....................................................................................................................... 49
11.1 Bonds.................................................................................................................................... 49
Article 12. WARRANTY ................................................................................................................ 49
12.1 Scope of Warranty ............................................................................................................... 49
12.2 Owners Right to Correct ....................................................................................................... 50
12.3 Non-Emergency Warranty Work .......................................................................................... 50
12.4 Performance During Warranty Period ................................................................................. 50
Article 13. INSURANCE; RISK OF LOSS ........................................................................................... 50
13.1 General Requirements ......................................................................................................... 50
13.2 Required Policies and Limits ................................................................................................ 5 1
13.3 Terms of Insurance ............................................................................................................... 52
Article 14. INDEMNIFICATION ...................................................................................................... 53
14.1 Contractor to Owner ............................................................................................................ 53
14.2 Owner to Contractor ............................................................................................................ 53
14.3 No Personal Liability of the Project Engineer or Project Manager ...................................... 54
14.4 No Waiver of Legal Rights .................................................................................................... 54
Article 15. DEFAULTS, REMEDIES AND TERMINATION ................................................................... 54
15.1 Notice of Disputes and Objections ....................................................................................... 54
15.2 Negotiations of Disputes ...................................................................................................... 55
15.3 Decision ................................................................................................................................ 55
15.4 Waiver .................................................................................................................................. 55
15.5 Contractor’s Remedies ......................................................................................................... 55
15.6 Owner’s Remedies ............................................................................................................... 56
15.7 Owner’s Special Remedy for Delay ...................................................................................... 56
15.8 Attorney’s Fees .................................................................................................................... 56
Article 16. INDEPENDENT CONTRACTOR ...................................................................................... 56
Article 17. DISPOSAL; HAZARDOUS SUBSTANCES.......................................................................... 57
17.1 Removal and Disposal of Structures and Obstructions ........................................................ 57
17.2 Cleaning Up and Restorations .............................................................................................. 57
17.3 Removal of Condemned Materials and Work ...................................................................... 57
17.4 Pests & Vector Control ......................................................................................................... 57
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17.5 Hazardous Substances ......................................................................................................... 57
17.6 Existing Facilities – Hazardous Substances May Exist .......................................................... 57
17.7 No Introduction of Hazardous Substances .......................................................................... 57
17.8 Suspected Hazardous Substances ........................................................................................ 57
17.9 Ordinary Course Materials ................................................................................................... 5 8
Article 18. ROYALTIES AND PATENTS ............................................................................................ 58
18.1 Patents and Copyrights ........................................................................................................ 58
Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS ..................................................................... 58
19.1 Drawings and Specifications ................................................................................................ 58
19.2 Copies of Drawings and Specifications Furnished ................................................................ 59
19.3 Utilities ................................................................................................................................. 59
19.4 Requests for Clarification and Information .......................................................................... 59
19.5 Dimensions ........................................................................................................................... 60
19.6 Shop Drawings ..................................................................................................................... 60
19.7 Record Documents ............................................................................................................... 61
19.8 Operating Manuals and Parks Lists ...................................................................................... 61
19.9 Conformity With Plans and Allowable Deviations ............................................................... 61
19.10 Coordination of Specifications, Plans and Special Provisions .............................................. 61
19.11 Ownership to Work Product ................................................................................................ 61
Article 20. RIGHT-OF-WAY ........................................................................................................... 61
20.1 Acquisition of Right-of-Way ................................................................................................. 6 1
20.2 Access to Right-of-Way ........................................................................................................ 62
20.3 Rights-of-Way ....................................................................................................................... 62
Article 21. SUBMITTALS ............................................................................................................... 62
21.1 Schedule of Submittals ......................................................................................................... 62
21.2 Scope of Engineer’s Reviews ................................................................................................ 62
21.3 Review Process ..................................................................................................................... 62
Article 22. NOTICES ..................................................................................................................... 62
Article 23. OWNER’S GENERAL RESPONSIBILITIES ......................................................................... 62
23.1 Owner Performance ............................................................................................................. 62
23.2 Project Engineer or Project Manager ................................................................................... 63
23.3 Right to Bar Persons From the Work or Site ........................................................................ 63
23.4 Access to Work ..................................................................................................................... 63
23.5 Inspection ............................................................................................................................. 63
Article 24. CONCEALED CONDITIONS ............................................................................................ 64
24.1 Discovery of Concealed Physical Conditions ........................................................................ 64
24.2 Inspection and Drawing Update .......................................................................................... 64
24.3 Delays ................................................................................................................................... 64
24.4 Change Order ....................................................................................................................... 64
24.5 Costs ..................................................................................................................................... 64
Article 25. WAIVER ...................................................................................................................... 64
25.1 Waiver .................................................................................................................................. 64
25.2 No Waiver ............................................................................................................................ 64
Article 26. OTHER CONDITIONS .................................................................................................... 64
xiv
26.1 Binding Contract................................................................................................................... 64
26.2 Legislative of Judicial Decisions ............................................................................................ 65
26.3 Superseding .......................................................................................................................... 65
26.4 Professional Standards ......................................................................................................... 65
26.5 Notification in Writing .......................................................................................................... 65
26.6 Headings for Reference Only ............................................................................................... 65
26.7 One Instrument .................................................................................................................... 65
26.8 Third Party Claims ................................................................................................................ 65
26.9 Calendar Days....................................................................................................................... 65
26.10 Written Consent ................................................................................................................... 65
26.11 Reallocation of Resources .................................................................................................... 65
26.12 Disclosure of Confidential Information ................................................................................ 66
26.13 Audit ..................................................................................................................................... 66
26.14 Federal Aid Provisions .......................................................................................................... 66
26.15 Duties & Remedies ............................................................................................................... 66
26.16 Survival ................................................................................................................................. 66
26.17 Government Immunity ......................................................................................................... 6 6
26.18 Construction ......................................................................................................................... 66
26.19 No Implied Representations ................................................................................................ 66
26.20 Financial Obligations of the City .......................................................................................... 66
26.21 Assignment/Transference .................................................................................................... 66
26.22 Amendments ........................................................................................................................ 66
26.23 No Third-Party Beneficiaries ................................................................................................ 6 6
26.24 Independent Contract – No Partnership or Agency ............................................................. 66
26.25 Governing Law, Jurisdiction, Venue ..................................................................................... 66
26.26 Attorney’s Fees and Costs .................................................................................................... 67
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Article 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract
Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract
Documents, and not defined within this Article, shall have the meaning given them in the Document where defined.
1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify,
correct, or change the Contract or change the date set for the Opening of Bids.
2) AMENDMENT: A change to the original contract which sets forth additional work which is new,
and is outside the scope of the original contract and/or proposal. Such Amendment may require
additional funding and bonding, and will require approval in accordance with the Owner’s
purchasing policy.
3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices
for the Work to be performed.
4) BIDDER: The individual or entity who submits a Bid directly to Owner.
5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid
by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as
required if the work be awarded to such Bidder.
6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments
of security furnished by the Contractor and its Surety to the Owner according to the Contract.
7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of
Owner, ordering a change that has been found necessary in the Work from that originally shown
in the Plans and Specifications but which is still within the general scope of the Contract. If the
Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be
executed. A change order set forth upon a change order form generated by Owner, and signed
by both Owner and Contractor, authorizes modifications to the existing contract documents.
8) COMPLETION DATE: The date the Contract specifies the Work is to be completed.
9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the
Contract Documents.
10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner
and the successful Bidder (“Contractor”), covering the performance of the Work and the
furnishing of labor and materials, which binds the Contractor to perform the Work and furnish
the labor and materials and by which the Owner is obligated to provide compensation at a
mutually established and accepted rate or price. The Contract shall include Contract Agreement,
Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material
Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final
Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions,
Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or
Change Orders, and any and all Supplemental Agreements which may be subsequently entered
into to complete the Work in an acceptable manner in accordance with the Plans and
Specifications.
11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of
the Contract.
12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project
from the date of the Notice to Proceed through and including the date of Final Acceptance. The
Contract Documents may require completion on or before a certain specified date.
13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation,
who executes the Contract, acting directly or through lawful agents or employees, primarily liable
for the acceptable performance of the Work for which contracted, and for the payment of all legal
debts pertaining to the Work.
14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any
tasks on the critical path experience delays, the overall project schedule must be extended.
15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a
Construction Contract unless otherwise specified.
16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified
herein.
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17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer
which graphically shows the scope, extent, and character of the Work to be performed by
Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations,
schedules, and details which show locations, character, dimensions, and details of the Work. Shop
drawings and other Contractor submittals are not Drawings as so defined.
18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An
internet based system operated by the Department of Homeland Security (DHS) in partnership
with the Social Security Administration (SSA) that allows participating employers to electronically
verify the employment eligibility of their newly hired employees.
19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to
the Project. The Project Engineer may have day-to-day responsibility for managing the Contract,
or may designate in writing a Project Manager to provide day-to-day responsibility for managing
the Contract.
20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance,
and all tools and apparatus necessary for the proper construction and acceptable completion of
the Work.
21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the
satisfactory completion of the Contract, within its intended scope.
22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in
the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the
Contractor during construction.
23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in
Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed
according to the Contract requirements with all parts of the Work in good condition and in
working order, including completion of all punch list items, cleanup work, and delivery of all
required guarantees, warranties, licenses, releases, and other deliverables.
24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the
Contract Documents.
25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by
a Change Order.
26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all
necessary inspection of the Work performed or being performed, or of the materials furnished or
being furnished by the Contractor.
27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be
designated by the Project Engineer.
28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted
and that, in accordance with the terms of the notice to Contractors and the Specifications, such
Bidder is required to execute the Contract and furnish satisfactory Bonds.
29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final
Acceptance.
30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which
the Contract Times will commence to run and on which Contractor shall start to perform the Work
under the Contract Documents.
31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner,
of Substantial Completion.
32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under
the Contract on the date and to the extent specified in the Notice of Termination.
33) OWNER (“City”): The City of Englewood, Colorado.
34) PARTIES: The Owner and the Contractor.
35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s
surety as a guarantee to pay in full all bills and accounts for materials and labor used in the
construction of the Work, as provided by law.
36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the
Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to
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execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu
of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond
may be supplied by the Contractor.
37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor
and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in
the Work and to execute the Work in accordance with the Contract.
38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions
thereof, approved by the Project Engineer which show the locations, character, dimensions, and
details of the Work to be done and which are to be considered part of the Contract,
supplementary to these Specifications.
39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical
path or other format acceptable to the Engineer which includes the start and completion dates
of all salient features of the Work as specified in Paragraph 41 hereof.
40) PROJECT: The total construction of which the Work to be provided under the Contract Documents
may be the whole or a part as indicated elsewhere in the Contract Documents, and may include
construction by other contractors.
41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project
Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project
through day-to-day responsibility for managing the Contract.
42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form,
to perform the contemplated Work and furnish the necessary materials in accordance with the
provisions of the Plans and Specifications.
43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept
the Work under the terms set forth within the Bid Documents and Bid Response if the Work is
awarded to such Bidder.
44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work
contemplated within the Bid Documents...
45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path
activities cannot be performed in any month, within contract weather or temperature limitations,
or due to weather related conditions.
46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data
which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor,
which illustrate how specific portions of the Work shall be fabricated or installed.
47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the
Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical
Specifications.
48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of
materials, equipment, construction systems, standards, and workmanship. The directions,
provisions, and requirements contained therein, and which may be supplemented by Special
Provisions, pertaining to the method and manner of performing the Work, or to the quantities or
the qualities of materials to be furnished under the Contract.
49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls,
buildings, valve vaults and other features which may be encountered or included in the Work and
not otherwise classified herein.
50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any
Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform
work at the Work site, including the provision of labor, materials, equipment, supplies, tools,
services, or any combination of these. This definition shall not limit the Contractor’s obligations,
or alter any Subcontractor’s rights, under any law or contract.
51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the
Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and
the Work complies with all applicable codes and regulations, including, if required, issuance of a
certificate of occupancy, or certificate of suitability for use from the appropriate governmental
agencies, as determined by the Owner in its sole discretion
52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work
at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager
-
4
and capable of supervising the Work efficiently.
53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments,
executed by the Contractor and by the Owner, with increased bonding from the surety if such
agreement results in an increase in the total contract amount, covering Work not included in the
Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion
of the Project. A supplemental agreement includes addendums to the original agreement,
amendments to the original agreement, or change orders if such change order modifies a cost or
price agreed to within the original agreement.
54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work,
including that fabricated to a special design, but who does not perform labor at the site. This
definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law
or contract.
55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond
and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the
Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the
Contract and for the payment of all debts incurred in fulfilling the Contract.
56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials
or services as described in the Contract. Unit Prices are intended to cover all items of work to be
done and materials to be furnished to fully complete the Work in accordance with the Contract
Documents (including without limitation the cost of appurtenant items of work, labor, materials,
fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs
(including without limitation sales and use tax, insurance, licenses, permits, profit, and other
overhead) not listed separately, not shown on the Plans and Specifications, or not specified but
necessary to complete the Work in accordance with the Contract Documents).
57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be
performed within contract weather or temperature limitations or due to weather related soil
conditions, and where work on critical activities cannot be performed for more than fifty percent
(50%) of the work day, including any day immediately following a Weather Day on which
subsequent day Work was scheduled in the Construction Schedule but cannot be performed on
scheduled critical path activities due to weather related site or soil conditions for more than fifty
percent (50%) of the day (drying days).
58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials,
equipment, and other incidentals necessary or convenient to the successful completion of the
Project and the carrying out of all the duties and obligations imposed by the Contract.
1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an
industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as
recognized by engineers, architects, and the trades. All references to standard specifications, methods of
testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of
the Request for Bids unless a specific edition or revision is referenced.
1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the
general provision of the section or sections and paragraph pertinent thereto.
1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as
consecutive calendar days.
1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows:
AASHTO American Association of State Highway and Transportation Officials
ACI American Concrete Institute
ACPA American Concrete Pipe Association
AGC Associated General Contractors of America, Inc.
AIA American Institute of Architects
AIEE American Institute of Electrical Engineers
AISC American Institute of Steel Construction
ANSI American National Standards Institute
APHA American Public Health Association
APWA American Public Works Association
ASA American Standards Association
ASCE American Society of Civil Engineers
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
5
AWS American Welding Society
AWSC American Welding Society Code
AWWA American Water Works Association
CDOT Colorado Department of Transportation
CPM Critical Path Method
COE City of Englewood
DHS U.S. Department of Homeland Security
EPA U.S. Environmental Protection Agency
EWD Englewood Water Department
GESC Grading, Erosion and Sediment Control
IEEE Institute of Electrical and Electronic Engineers
MUTCD Manual on Uniform Traffic Control Devices
NBS National Bureau of Standards
NCPI National Clay Pipe Institute
NEC National Electric Code
NEMA National Electrical Manufacturer’s Association
OSHA Occupational Safety & Health Administration
RCRA Resource Conservation and Recovery Act
SAME Society of American Military Engineers
SPWRP South Platte Water Renewal Partners
SAVE Systematic Alien Verification or Entitlement program
WW-P Federal Specifications Prefix
1.6 INTERPRETATION
1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the
words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of
like import, are used, it shall be understood that the direction, requirement, permission, order,
designation, or prescription of the Engineer or Project Manager is intended; and similarly, the
words "approved," "acceptable," "satisfactory," or words of like import shall mean approved
by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise
expressly stated, subject in each case to the final determination of the Owner.
1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limitedto.
1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be
construed to refer to the Agreement in its entirety and the General Conditions of the Contract,
subject to the provisions of the Agreement relating to resolution of differences between terms
of different Contract Documents.
1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural
shall include the singular.
1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the
Contract are primarily for the convenience of the reader but may be used as aids in interpreting
any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto
or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the
provisions of the Agreement shall control.
1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in
any Contract Documents or any communications between Owner and Contractor to “business
days” refer to days when Owner’s administrative offices are open for the regular conduct of
business.
1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services,
materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is
implied.
1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known
technical or construction industry or trade meaning are used in the Contract Documents in
accordance with such recognized meaning.
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Article 2. PRELIMINARY MATTERS
2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of
the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. Before
any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional
insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or
any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and
maintain in accordance with Article 13 below.
2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after
execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to
Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by
the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial
Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the
Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract
Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished
on or before that milestone in accordance with the Contract Documents.
2.3 AUTHORITY OF THE PUBLIC WORKS DIRECTOR: The Project Engineer shall be the representative of the
Owner in all matters concerning the Contract and the work to be performed thereunder, except the Public Works
Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Public
Works Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a
dispute between the Contractor and the Project Engineer occur.
2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments,
drawings and documents which are attached or incorporated by reference constitute and shall be referred to either
as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as
a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they
were set out verbatim and in full:
x Invitation to Bid and Supporting Documents
x Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications. x All Proposal Response Documents
x Certificate of Insurance
The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and
Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in
accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or
Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary
to perform and complete the Work.
The Contractor shall be responsible for taking all steps reasonably necessary to ascertain the nature and location of the
Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor
to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner.
The Owner will not be responsible for any understanding or representations concerning conditions, unless such
understanding or representations are expressly stated in the Contract.
2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by
the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be
prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though
contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern.
2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project
Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding
among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work,
procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining
required records. The Contractor may be asked to provide specific information as to labor, tools, supplies,
equipment, materials and everything necessary for and required to do, perform and complete all the work described,
drawn, set forth, shown and included in said Contract Documents.
At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its
representative with respect to the services and responsibilities under the Contract. Such individuals shall have the
authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act
on behalf of each respective party.
7
2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is
satisfied as to the nature and location of the Work, the conformation of the ground, the character, quality, and
quantity of the materials to be encountered, the character of equipment and facilities needed before beginning and
for the Work, the general and local conditions, and all other matters, which can in any way affect the Work under
the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the
execution of the Contract shall affect or change any of the terms or obligations contained in the Contract.
2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge,
ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents.
The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability
to complete the Work by the Completion Date.
2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or
other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of
work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or
utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the
introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs.
If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable
pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner.
2.10 NOTICES: Except for routine communications, written notices required under this Contract and all other
correspondence between the Parties will be deemed received when hand-delivered or three (3) days after being
sent by certified mail, return receipt requested (unless the Parties consent to electronic delivery). The address in the
Proposal will be the Contractor’s address for the delivery of notices, unless modified by the Contractor by written
notice at least three (3) business days prior to the change. Notices to the Owner shall be delivered to the Project
Engineer, except as provided in the Contract Documents.
2.11 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be
placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such
placement, by the City.
2.12 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any
reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without
first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply
that the Owner endorses the Contractor or its services or product.
The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the
Work at any time and to use such materials for any purpose.
Article 3. PAYMENTS
3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed
under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made
by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These
measurements will be taken according to the United States standard measure. All surface and linear measurements
will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat
lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include
noting a percentage completed or referencing the project schedule by milestone.
3.2 PAYMENTS TO CONTRACTOR AND COMPLETION
3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal
include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees,
taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to
complete the Project in accordance with the Contract Documents. Items not shown on the Contract
Documents that are necessary to construct the Project will be considered a part of the Project whether
specified or not and no separate payment will be made for these items.
3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or
her designee shall verify determinations of amounts and quantities of Work performed. The method of
measurement of pay items subject to Unit Prices will be as specified in the Special Conditions.
3.2.3 Monthly Estimates & Progress Payments
a) Before Work commences, Owner and Contractor shall designate a day of the month by which
8
Invoices for Payment shall be due. On or before such day of each month after the Construction
Work has commenced (but not earlier than the first day of such month), Owner shall submit
to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and
such other materials and information as may be required by the Agreement. No “Periodic
Estimate for Partial Payment” except the Application for Final Payment shall be made for an
amount less than $1,000.00.
b) The Contractor shall submit signed estimates for progress payments on a monthly basis based
on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be
prepared by the Owner no later than ten (10) days after the end of the month for Work subject
to the application. Estimates shall be produced in a format reflecting the line items for which
payment is requested according to the Unit Price Form in the Proposal and any applicable
Change Order, shall be dated as of the actual date of submittal (or revised submittal, as
applicable), and shall reflect the Work completed and the date to which Work has been
completed. The Contractor will provide support documentation for all estimates, as
requested.
c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of
Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the
amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after
payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount
remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the
Work performed to date is in accordance with that contemplated by the Milestone Schedule
(or specifying the portions thereof that are not), Contractor has no claims hereunder and has
no request for changes in the Milestone Schedule or the Contract Sum not provided for in the
Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further
constitute the representation and warranty of Contractor (whether or not specifically stated)
that the percentage of the Work represented to have been done in each category provided on
the Schedule of Values has, in fact, been completed as of the last day of the period for which
such Periodic Estimate for Partial Payment has been submitted. The period covered by a
Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due
date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree
otherwise in writing.
d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes,
Change Directives, and Change Orders.
e) Contractor shall promptly submit such additional information and documents as Owner or
Project Professionals may reasonably request in support of the Periodic Estimate for Partial
Payment.
f) The signature on each application is a representation by the Contractor to the Owner that the
Work has progressed to the point indicated, that the Work covered by the application is in
accordance with the Contract Documents, that the money received as a result of the
application will be used to discharge the Contractor’s obligations under the Contract, and that
the Contractor is entitled to payment in the amount requested.
g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to
the Work covered by the estimate of Work completed will pass to the Owner by incorporation
into the completed Work; (ii) the Work covered by previous estimates of Work completed is
free and clear of liens, claims, security interests or encumbrances, except for any interest
created by retainage; and (iii) no Work covered by the estimate of Work completed is subject
to an agreement under which an interest therein or an encumbrance thereon is retained by
the seller or otherwise imposed by the Contractor or any other person or entity.
h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the
Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include
in its Periodic Estimate for Partial Payment any billing for defective Work or for work
performed by Subcontractors or Suppliers if it does not intend to pay the Subcontractors or
Suppliers for such work.
i) Applications may include the value of acceptable materials required in the construction which
have been delivered on the site of the Work or to adjacent railway siding and for which
acceptable provisions have been made for preservation and storage, providing the Contractor
submits with its monthly estimate paid invoices in duplicate for the material for which
payment is being requested. Material paid for by the Owner becomes the property of the
Owner and, in the event of the default on the part of the Contractor, the Owner may use or
cause to be used such materials in construction of the Work provided for in the Contract.
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j) The authorized Owner representative(s) must approve the applications and estimates before
progress payments will be made. The Owner will make payments within thirty (30) days after
the receipt of a signed monthly estimate in proper form containing all required and requested
information. Progress payments are payments on accounts and shall not be construed as
acceptance by the Owner of any part of the Work.
k) All progress payments, except for the Final Payment, shall be subject to correction on
subsequent applications after the discovery of any error. Approval of an application for
payment of Work completed or actual payment by the Owner shall not foreclose the right of
the Owner to examine the books and records of the Contractor to determine the correctness
and accuracy of any item.
l) The Contractor shall make partial payments of the amount due and payable to each of its
Subcontractors and Suppliers in the same manner as the Owner is required to pay the
Contractor under this article. This provision shall not create any privity of contract between
the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third-
party beneficiary of this Contract.
3.2.4 Retainage & Withheld Amounts
a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders,
as indicated in each approved application until Final Payment. Securities are not acceptable to
the Owner in lieu of retainage.
b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and
work is more than 80% complete, it may, upon written request by the Contractor, authorize
payment from the withheld percentage. Before such payment is made, the Owner shall
determine that satisfactory and substantial reasons exist for the payment and shall require
written approval from any Surety furnishing the Payment Bond or Performance Bond.
c) The Owner may withhold, in addition to retained percentages from Contractor payments, such
an amount or amounts from any progress payment or Final Payment as may be necessary to
cover: x Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable
evidence indicating probable filing of such claims; x Failure of Contractor to carry out the Work in accordance with the Contract Documents x Failure of the Contractor to make proper payment to Subcontractors or Suppliers; x A reasonable doubt that the Contract can be completed for the balance then unpaid;
x Evidence of damage to another contractor, utility, or private property;
x Claims filed in connection with the Work or reasonable evidence indicating probable filing
of claims. x Uncorrected defective Work or guarantees that have not been met;
x Failure of the Contractor to submit cost breakdowns, schedules, reports and other
information required under the Contract; x Persistent failure to carry out the Work according to the Contract; x Failure to keep a superintendent on the Site during Construction Work.
x Reasonable evidence that the Work will not be completed within the Contract Time and
that the unpaid balance would not be adequate to cover actual or liquidated damages for
the anticipated delay;
x Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor
owed to the Owner; x Any request that the Owner pay additional compensation to another contractor as a
result of delays in the performance of that contractor’s work caused by the Contractor’s
acts or omissions; and
x Any other amounts that the Owner is authorized to withhold under the Contract
Documents.
If the reason for withholding is removed, the Owner will make payment of the withheld sums
with the next regular progress payment unless another basis for withholding exists
d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to
claim any right of payment of interest upon any funds retained or withheld by the Owner
pursuant to these General Conditions or C.R.S. § 38-26-107.
3.2.5 Substantial Completion
a) When the Contractor considers the entire work ready for its intended use, the Contractor shall
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notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially
complete, except for minor items specifically listed by Contractor as incomplete (the
Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a
Notice of Substantial Completion.
b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project
Manager and any other appropriate Owner representatives shall inspect the Work to
determine the status of completion and the Contractor’s punch list.
x If the Project Engineer, or Project Manager, does not consider the Work substantially
complete, the inspection will cease and the Project Engineer, or Project Manager, will
notify the Contractor in writing giving the reasons for denial of the Notice of Substantial
Completion and the Contractor will proceed with the Work. All costs associated with such
premature inspection, including any compensation for additional design services and the
Owner’s additional costs, shall be deducted from any payment due to the Contractor.
x If the Project Engineer, or Project Manager, considers the Work substantially complete,
the Project Engineer, or Project Manager, will prepare and deliver to the contractor a
Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach
to the notice a punch list of items to be completed or corrected before Final Acceptance.
Failure to include any items on the punch list shall not alter the responsibility of the
Contractor to complete all Work in accordance with the Contract Documents.
3.2.6 Right of Early Occupancy or Use
a) The Owner shall have the right to take early possession of and to use any completed or
partially completed portions of the Work, even if Substantial Completion of the Work has not
occurred and even if the Work has not been fully accepted. Such possession and early
occupancy shall not constitute Substantial Completion of such portions of the Work nor affect
the Owner’s right to assess liquidated damages.
b) If the Owner elects to take possession of and to use any completed or partially completed
portions of the Work prior to Substantial Completion, an inspection shall be made by the
Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the
Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed,
and shall provide the Contractor with such list. However, the absence of an item from the list
shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas
so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of
Certificate of Occupancy, if required.
c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner
and the Contractor for security, maintenance, heat, utilities, property insurance premiums,
and damage to the Work. These negotiations are subject to the final approval of the Owner.
d) If the Contractor believes there will be an additional cost or delay associated with completion
of the Work while the Owner occupies the Work in whole or in part under this section, the
Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change
Request of all such costs and delays at or before the time of such inspection. If the Contractor
fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the
Contractor Change Request procedure, the Contractor shall be deemed to have waived any
and all rights to assert any claim for such additional cost or delay.
3.2.7 Final Acceptance
a) When the Work specified in the Contract (including all punch list items) is completed and the
final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project
Manager, that all Work under the Contract has been completed and the Project Engineer, or
Project Manager, shall, within seven (7) days after such notice, make the final inspection.
b) If the Project Engineer, or Project Manager, finds that the Project has been completed
according to the Contract requirements and that all parts of the Work are in good condition
and in working order, the Owner, upon the recommendation of the Project Engineer, or
Project Manager, shall issue a written Notice of Final Acceptance. Any Notice of Final
Acceptance issued orally or without proper Owner authorization is void.
c) If the Project Engineer, or Project Manager, finds that the Project has not been completed
according to the Contract requirements and that not all parts of the Work are in good
condition and in working order, the Project Engineer, or Project Manager, shall compile a
punch list of corrective or replacement Work to be completed by the Contractor and Contract
obligations yet to be satisfied that the Contractor shall complete or fulfill to the Project
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Engineer, or Project Manager’s satisfaction, at the Contractor’s expense, as a condition
precedent to the issuance of a Notice of Final Acceptance.
3.2.8 Final Settlement & Final Payment
a) After Final Acceptance, the Project Engineer, Contractor, or other person designated by the
Owner, as appropriate, will prepare a final estimate of the total value of all Work performed
under the Contract. This will include all extra Work properly authorized and performed. All
prior estimates and payments shall be subject to correction in the final estimate and payment.
In the absence of error or fraud, all estimates, when approved by the Owner, shall be
conclusive evidence of the Work performed and materials furnished.
b) The Owner shall not authorize final payment until all items on the punch list have been
completed, a Notice of Final Acceptance is issued, and the Notice of Final Settlement has been
published. If the Work is substantially completed, but Final Acceptance is prevented by the
unavailability of materials, or other causes beyond the control of the Contractor, and if
consistent with any applicable bond, the Owner, in its sole discretion, may release to the
Contractor all amounts due except for a retainage of two (2) times the cost of completing the
unfinished Work as estimated by the Owner.
c) Before the Owner will advertise final settlement, the Contractor shall demonstrate to the
operating personnel of the Owner the proper operation and maintenance of all equipment
and systems, and deliver to the Project Engineer, or Project Manager: x All guarantees and warranties;
x Bound sets of required operations and maintenance manuals and instructions as required
by the Contract Documents; x Record Documents required by the Contract Documents;
x Satisfactory evidence that all payroll, material bills, taxes, and other indebtedness
connected with the Work have been paid or otherwise satisfied; x A complete and final, unconditional waiver or release of any and all lien and claim rights
from each Subcontractor, materialman, Supplier, manufacturer, and dealer for all labor,
equipment and material used or furnished by each on the Work; x Consent of the Surety to final payment; x All submittals required by the Contract Documents; and
x Any other documents required to be furnished by the Contract Documents
d) The Work shall be advertised (Notice of Contractor’s Settlement) in accordance with C.R.S. §
38-26-107. This statute governs the maintenance and enforcement of claims for payment
against the Project by Subcontractors, Suppliers and certain others. Final payment and
settlement shall be made only after the Contractor has completed the foregoing
requirements, and the Owner is satisfied that no claims by Subcontractors or Suppliers have
been filed or remain pending.
e) If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed
prior to the date set for final settlement, the Owner shall withhold from payments to the
Contractor sufficient funds to ensure the payment of such claim, until the same shall have
been paid or withdrawn. Such payment or withdrawal shall be evidenced by filing with the
Project Engineer, or Project Manager, an unconditional receipt in full or an order for
withdrawal signed by the claimant or its duly authorized agent or assignee. The Owner will
withhold from payment any funds it may be required by law to withhold or that it may in the
determination of the Owner be entitled to withhold, and final payment will not be made until,
in the sole determination of the Owner, all conditions of the Contract and of law have been
met.
f) If there are outstanding claims against the Contractor or its Subcontractors or for any other
reason the Contractor is not able to fulfill one or more of the requirements of this section, the
Owner may, at its sole discretion, waive the requirement, provided the Surety agrees to the
Owner making final settlement without in any way lessening or modifying the Surety’s liability
under such Bonds.
g) If any overpayment was made by the Owner at any time, the Contractor shall immediately
return all overpaid amounts.
h) At the time of settlement, there shall be deducted from the final estimate (i) all previous
payments made to the Contractor under the Contract, (ii) all amounts chargeable to the
Contractor, (iii) all liquidated damages due the Owner; (iv) all unpaid taxes due and payable
to the Owner; and (v) all damages and all other costs, expenses and charges properly
chargeable to the Contractor under the terms of the Contract.
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i) Subject to delays allowed by Colorado law and these General Conditions, the Owner shall
make Final Payment after Final Acceptance, including the release of all retainage and withheld
amounts, except as authorized by the Contract Documents. Final Payment shall constitute
complete payment for all Work, labor, materials, equipment, and miscellaneous items in the
Project.
j) At the time of delivery to the Contractor of the final payment, the Contractor shall execute
and give to the Owner a final receipt for the same.
k) The acceptance of final payment shall constitute a waiver of all Claims by the Contractor
except those previously made in accordance with these General Conditions which have been
separately identified by the Contractor as unsettled in the final payment application, and
which the Owner agrees in writing may be set over for resolution after final payment.
l) All provisions of these Contract Documents, including without limitation those establishing
obligations and procedures, shall remain in full force and effect notwithstanding the making
or acceptance of final payment.
3.3 APPROPRIATION OF FUNDS: At present, the amount set forth in the Contract has been appropriated for
the project. Notwithstanding anything contained in this Agreement to the contrary, the parties understand and
acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The parties do not
intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and
agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the
meaning of TABOR and, notwithstanding anything in the Contract to the contrary, all payment obligations of the
Owner are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the
Owner’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Owner
payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and
otherwise made available in accordance with the rules, regulations, and resolutions of the Owner and applicable
law. Upon the failure to appropriate such funds, the Contract shall be deemed terminated. The Owner shall
immediately notify the Contractor or its assignee of such occurrence in the event of such termination.
3.4 PAYMENT FOR INCREASED OR DECREASED QUANTITIES: When alterations in the Plans or quantities of
Work not requiring Supplemental Agreements, as provided for above, are ordered and performed, the Contractor
shall accept payment in full at the Contract unit price for the actual quantities of Work done. No allowance will be
made for lost profits. Increased or decreased Work involving Supplemental Agreements will be paid for as stipulated
in such agreements.
3.5 PAYMENT FOR OMITTED ITEMS: For any item omitted from the work under the provisions of Section 1.5,
the Owner will pay the Contractor a fair and equitable amount for costs incurred directly related to such item prior
to the date of the Owner's order to omit the item. No allowance will be made for lost profits in reimbursements to
the Contractor for omitted items of Work. Acceptable materials ordered by the Contractor or delivered to the Work
site prior to the date of cancellation, alteration, or suspension of the Work by order of the Project Engineer, or
Project Manager, will be paid for at the actual cost to the Contractor and shall thereupon become the property of
the Owner.
The Contractor shall immediately submit certified statements covering all money expended in preparation for any
omitted item, and he shall be reimbursed for any money expended in preparation for Work on any omitted item
when such preparation has no value to the remaining items of the Contract, or for a proportionate amount based
on the total Contract price over which such preparation would ordinarily be distributed when other items are
included in such preparation.
3.6 EXTRA AND FORCE ACCOUNT WORK: Extra Work, for which no price is provided in the Proposal, shall be
covered by a Supplemental Agreement which could be an addendum (additional work requested), amendment
(change the terms of the agreement, or change order (change the specifications of original work) to be signed by
both parties before such Work is commenced. Extra Work will be paid for either at a lump sum, or unit prices agreed
upon, or on a Force Account basis. For all labor, teams, and foremen in direct charge of the specific operations
accomplished on a Force Account basis, the Contractor shall receive the current local rate of wage, to be agreed
upon before starting the Work, to which shall be added fifteen (15) percent of the sum thereof to cover cost of
supervision, the rental of small tools and ordinary equipment, additional Bond, Unemployment Insurance, all
overhead and any other costs not specifically stated. In addition, the Contractor shall be paid a sum equal to the
Worker's Compensation insurance premium, the actual costs of Social Security taxes computed on the base rate for
the class of Work involved for the actual amount of the payroll, and the public liability and property damage
insurance premium; provided, however, that nothing in this Section will change the legal status of the relationship
between the Parties to this Agreement. For all materials furnished and used by the Contractor on a Force Account
basis, he shall receive the actual cost of such materials, including transportation charges as shown by original
receipted bills, to which shall be added fifteen (15) percent of said actual cost.
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For machine power tools or equipment, including fuel and lubricant, used on Force Account Work, payment for the same
will be made on a rental basis at the rate agreed upon between the Contractor and the Project Engineer, or Project
Manager, to which no rate or percentage shall be added.
The compensation as herein provided shall be received by the Contractor as payment for Extra Work done on a Force
Account basis. The Contractor shall make no claim for Force Account Work, unless performed on written order and in
accordance therewith. The Contractor's representative and the Inspector shall compare records of Extra Work done on a
Force Account basis at the end of eachday. Copies of these records shall be made upon suitable forms provided for this
purpose, and signed by both the Inspector and the Contractor's representative, one copy being forwarded to the
Project Engineer, or Project Manager, and one copy to the Contractor. All claims for Extra Work done on a Force
Account basis shall be submitted each month to the Project Engineer, or Project Manager, by the Contractor upon
certified statements, or upon forms furnished by the Owner. Work performed prior to a written order by the Project
Engineer, or Project Manager, will not be paid for.
3.7 PARTIAL PAYMENTS: The Project Engineer, or Project Manager, will make an estimate once each month,
as the Work progresses, of the value of the Work performed and materials completed and in-place or delivered to
the site in accordance with the Contract. On request of the Project Engineer, or Project Manager, the Contractor
shall furnish a detailed estimate of the total Contract price showing the amount included therein for each category
of Work, to provide a basis for determining the amount of progress payments. The market value of materials and
equipment delivered to the construction site but not yet incorporated in the Work may, at the discretion of the
Owner, be included with a progress payment. However, payment by the Owner for such materials and equipment
shall not relieve the Contractor of the responsibility for the care of such materials and equipment because the Owner
shall not be deemed to have assumed ownership of the materials or equipment until these are incorporated into
the completed and accepted Work. Such increases to progress payments, if authorized, are intended only to reduce
the cost of doing business with the Owner. The Owner, when awarding a contract exceeding one hundred fifty
thousand dollars ($150,000) for the construction, alteration, or repair of any highway, public building, public work,
or public improvement, structure, or system, including real property as defined in section 24-30-1301 (15), shall
authorize partial payments of the amount due under such contract at the end of each calendar month, or as soon
thereafter as practicable, to the contractor, if the contractor is satisfactorily performing the contract. The Owner
shall pay at least ninety-five percent of the calculated value of completed work. The withheld percentage of the
contract price of any contracted work, improvement, or construction may be retained until the contract is completed
satisfactorily and finally accepted by the Owner. Where the Contract price does not exceed such amount, from the
total of the estimate so ascertained will be deducted an amount equivalent to five (5) percent of the whole, to be
retained by the Owner until acceptance of the entire Contract, and the balance of the sum equivalent to ninety (90)
percent of the whole shall be certified by the Project Engineer, or Project Manager, for payment. In addition, Owner
shall retain from all progress payments an amount equal to all statutory claims filed against Contractor. No partial
payments except final payment will be made for a sum less than $l,000.00. The estimates will be approximate only,
and all partial or monthly estimates and payments shall be subject to correction in the estimate and payment
rendered following discovery of an error in any previous estimates or payments. Should any defective Work or
material be discovered, or should a reasonable doubt arise as to the integrity of any part of the Work completed
previous to the final acceptance and payment, there will be deducted from the first payment rendered after the
discovery of such Work an amount equal in value to the defective or questioned Work, and this Work will not be
included in a subsequent estimate or payment until the defects have been remedied or the causes for doubt
removed.
3.8 TAXES / DIRECT PURCHASE OPTION
3.8.1 Sales and Use Tax - Contractor shall only include sales and use tax levied by the City of Englewood
and Arapahoe County on materials in its Schedules of Values, and Subcontractors and Suppliers shall only
include such amounts in their Bids. The Owner will furnish to Contractor, on request by the Contractor, the
necessary exemption certificates to aid the Contractor in the recovery or avoidance of any such taxes paid
or otherwise due to be paid by Contractor for materials and equipment built into the Project, or to support
the Contractor's failure to pay such taxes, as the case may be.
3.8.2 Tax Exemption - In accordance with Colorado Revised Statutes Sections 39-26-114 and 39-26-203,
and the related regulation of the Department of Revenue, State of Colorado, the Contractor shall apply to
the Department of Revenue, and secure prior to commencing the Project an exemption certificate, which
when issued by the Department of Revenue will enable the Contractor to purchase for the Project all
materials free of State Sales and Use Taxes and Regional Transportation District (RTD) Tax, provided that
any building permit fee shall be included in any Proposal with respect to the Project. Further, if awarded
the Project, no Englewood sales and/or use tax shall be included in any billing with respect to the Project.
This provision shall apply to all contractors, subcontractors and material suppliers. When Englewood sales
tax is paid to licensed Englewood vendors for materials, which become part of the Project by a Contractor,
the City of Englewood will refund that tax to the Contractor upon receipt of an application from the
Contractor at the conclusion of the Project. Accompanying the application must be the material receipt(s)
displaying a description of the items(s) purchased, date of purchase, amount of purchase, tax paid and any
14
other documentation and information which may be required by the Owner to substantiate the payment
and help validate a refund.
3.8.3 Direct Purchase Option - At Owner’s option, Contractor and Owner shall cooperate with one
another so that Owner may purchase or contract directly for such items or Contractor and Owner shall
make other appropriate arrangements as necessary to avoid incurring taxes, fees, and other costs. In such
circumstances, Contractor shall act as agent for Owner in effecting such purchasing and contracting,
Contractor shall have all the responsibilities as to such portions of the Work as Contractor otherwise has
with respect to the Work. Contractor shall be responsible to expedite, arrange for and receive delivery of
all such purchases, regardless of whether made by Contractor or Owner, and shall promptly examine
deliveries to ascertain whether or not they comply with the requirements of the Contract Documents.
Contractor shall promptly notify the Owner and Architect of any delay in the delivery of such purchases,
any failure to receive such purchases as needed and any failure of such purchases to comply with the
Contract Documents
3.8.4 Direct Supplier Payment - To the extent that Owner makes any payments directly to Suppliers, such
payments shall be credited against the payments due from Owner to Contractor hereunder and shown, as
incurred, on all Applications for Payment. Owner shall promptly notify Contractor and Architect, on serially
numbered forms, of any amount paid directly for materials, any discounts obtained by Owner, and the
amount of the credit due to Owner.
3.8.5 Tax Payment - The Contractor shall pay all sales and use taxes required to be paid, shall maintain
such records in respect to his Work, which shall be separate and distinct from all other records maintained
by the Contractor and shall be available for inspection by the Owner at any and all reasonable times, and
shall furnish the Owner with such data, as may be necessary to enable the Owner to obtain any refunds of
such taxes which may be available to the Owner under the laws, ordinances, rules or regulations applicable
to such taxes. The Contractor shall require each of his Subcontractors to pay all sales and use taxes required
to be paid and to maintain such records and furnish the Contractor with such data as may be necessary to
enable the Owner to obtain a refund of the taxes paid by such subcontractors.
The Contractors or Subcontractors who purchase materials, which become part of the Project, from
governmental entities, which do not honor the exemption and thereby pay sales tax will not be reimbursed
for that tax payment by the City of Englewood. The Contractor shall bear the risk of any added or increased
taxes occurring during the performance of the Work. A change in taxes shall under no circumstances entitle
the Contractor to an adjustment under the Contract.
3.8.6 Discounts - All discounts for prompt payment obtained by Contractor shall accrue to Owner to the
extent they apply to Costs of Work payable by Owner (whether paid directly or reimbursed to Contractor).
To the extent that such discounts apply to costs paid by Contractor without reimbursement, such discounts
shall accrue to Contractor. All trade discounts, rebates and refunds, and all returns from sale of surplus or
salvage materials and equipment, shall accrue to the benefit of Owner, and the Contractor’s agreements
with others shall provide for such credits to be applied either through credits from Subcontractors and
Suppliers passed through to Owner by Contractor or by payment directly to Owner.
3.8.7 Adjustments - The Contract Sum may be adjusted by Agreed Change. Contractor is obligated to
pay out of its own funds any overruns of the Contract Sum not approved by Agreed Change as provided in
Article 6.
3.9 LIENS
3.9.1 Title - Nothing in this contract shall be construed as vesting in Contractor any right of property in
any equipment, materials, supplies, and other items provided under this contract after they have been
installed in, incorporated into, attached to, or affixed to, the work or the work site. All such equipment,
materials, supplies, and other items shall, upon being so installed, incorporated, attached or affixed, become
the property of Owner, but such title shall not release Contractor from its duty to insure and protect the Work
in accordance with the requirements of thiscontract.
3.9.2 Waivers of Lien - Contractor shall, from time to time at Owner's request and in any event prior to
final payment, furnish to Owner such receipts, releases, affidavits, certificates, and other evidence as may
be necessary to establish, to the reasonable satisfaction of Owner, that no lien against the work or the public
funds held by Owner exists in favor of any person whatsoever for or by reason of any equipment, material,
supplies, or other item furnished, labor performed, or other thing done in connection with the work or this
contract ("Lien") and that no right to file any Lien exists in favor of any person whatsoever.
3.9.3 Removal of Liens - If at any time any notice of any Lien is filed, then Contractor shall, promptly and
without charge, discharge, remove, or otherwise dispose of such Lien. Until such discharge, removal, or
15
disposition, Owner shall have the right to retain from any money payable hereunder an amount that Owner,
in its sole judgment, deems necessary to satisfy such Lien and to pay the costs and expenses, including
attorneys' fees and administrative expenses, of any actions brought in connection therewith or by reason
thereof.
3.9.4 Protection of Owner Only - This section shall not operate to relieve Contractor's surety or sureties
from any of their obligations under the Bonds, nor shall it be deemed to vest any right, interest, or
entitlement in any subcontractor or supplier. Owner's retention of funds pursuant to this section shall be
deemed solely for the protection of its own interests pending removal of such Liens by Contractor, and Owner
shall have no obligation to apply such funds to such removal but may, nevertheless, do so where Owner's
interests would thereby be served.
3.10 DEDUCTIONS
3.10.1 Owner's Right to Withhold - Notwithstanding any other provision of this contract and without
prejudice to any of Owner's other rights or remedies, Owner shall have the right at any time or times, whether
before or after approval of any Pay Request, to deduct and withhold from any Progress or final payment
that may be or become due under this contract such amount as may reasonably appear necessary to
compensate Owner for any actual or prospective loss due to:
a) Work that is defective, damaged, flawed, unsuitable, nonconforming, or incomplete;
b) Damage for which Contractor is liable under this contract;
c) State or local sales, use, or excise taxes from which Owner is exempt;
d) Liens or claims of Lien regardless of merit;
e) Claims of subcontractors, suppliers, or other persons regardless of merit;
f) Delay in the progress or completion of the work;
g) Inability of Contractor to complete the work;
h) Failure of Contractor to properly complete or document any Pay Request;
i) Any other failure of Contractor to perform any of its obligations under this contract; or
j) The cost to Owner, including attorneys' fees and administrative costs, of correcting any of the
aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 3.2 of
this contract.
3.10.2 Use of Withheld Funds - Owner shall be entitled to retain any and all amounts withheld pursuant
to subsection 7.12 above until Contractor shall have either performed the obligations in question or
furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money
withheld or any other money due Contractor under this contract to reimburse itself for any and all costs,
expenses, losses, damages, liabilities, suits, judgments, awards, attorneys' fees and administrative expenses
incurred, suffered, or sustained by Owner and chargeable to Contractor under this contract.
Article 4. COMPLETION, TIME AND DELAYS IN CONSTRUCTION
4.1 DELAYS: No payment, compensation, damages, or adjustment of any kind, other than extension of the
contract time if received in writing by Owner shall be made to, or claimed by, Contractor because of hindrances or
delays from any cause in the commencement, prosecution, or completion of the work, whether caused by Owner or
any other party and whether avoidable or unavoidable other than as set forth in a change order described fully
above.
4.2 CONSTRUCTION SCHEDULE: Within the time specified in the Request for Bids, the Contractor shall submit
to the Owner a proposed Construction Schedule using Primavera, MS Project or other comparable Critical Path
Method (CPM) scheduling software.
The Construction Schedule must include all Work activities to be performed under the Contract including any work
to be performed by Subcontractors and must account for all Reasonably Predictable Weather Delays. All activities
should be logically tied with a critical path clearly identified. The schedule must have sufficient detail to adequately
plan and manage the Work. Contractual and key milestones are to be identified.
The Construction Schedule must include a brief narrative including:
a) A description of the schedule critical path (series of tasks that define the overall project schedule);
b) Identification of non-work days such as weekends or holidays;
c) A table showing calculated Reasonably Predictable Weather Days (including drying days for each
month); and
d) List of assumptions used while developing the Construction Schedule.
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It will be presumed that the Contractor, at the time of Bid, took into account the number of days which might be
unavailable for Work as a result of Reasonably Predictable Weather Delays during the Contract Time.
The Contractor shall calculate the average number of lost weather days for each month of the Construction Schedule
as defined in section 4.12.4 below.
On a monthly basis with each pay application and as requested by the Project Engineer, or Project Manager, the
Contractor shall update the Construction Schedule and provide a summary report of progress on the various parts
of the Work, including the status, rate of progress, estimated completion date, and cause of delay, if any. This report
shall not constitute a request or approval for any change in the Contract Time.
Work shall normally not be done on Saturdays, Sundays, Owner observed holidays, or outside of the daytime working
hours (7:00 a.m. to 7:00 p.m.), except for such work as may be necessary for proper care, maintenance, and
protection of Work already done, or in cases when the Work would be endangered or when hazard to life or property
would result.
No work shall be done on Sundays, holidays, or at night outside of usual daytime working hours, except in
emergencies beyond the Contractor’s control, whereby the work would be endangered, or hazards to life or property
would result. If the Contractor believes it may be necessary to work on Saturdays, Sundays, holidays, or at night, the
Contractor shall make prior arrangements with the Project Engineer, or Project Manager, and receive written
approval at least forty-eight (48) hours before such work period so that proper inspection and engineering services
can be provided. Such approval may be revoked by the Project Engineer, or Project Manager, if the Contractor fails
to maintain adequate equipment and lighting at night for the proper prosecution, control and inspection of the
Work. If Work is done outside of approved working hours, and the Project Engineer, or Project Manager, has not
assigned Inspectors to the Work, the Work performed during those periods of time may be declared defective solely
on the grounds that it was not properly inspected.
4.3 SUBCONTRACTING OR ASSIGNING OF CONTRACT: No Contractual relationship will be recognized
under the Contract other than the Contractual relationship between the Owner and Contractor.
Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any
person or entity without the prior written consent of the Owner specifically including, but without limitation, moneys
that may become due and moneys that are due may not be assigned without such consent (except to the extent that
the effect of this restriction may be limited by law). Any attempted assignment which is not in compliance with the
terms hereof shall be null and void. Unless specifically stated to the contrary in any written consent to an Assignment,
no Assignment will release or discharge the Assignor from any duty or responsibility under the Contract Documents.
4.4 COMMENCEMENT OF WORK: The Contractor agrees to undertake the performance of the work under this
Contract within ten (10) days from being notified to commence work by the Director of Public Works, and agrees to
fully complete said work within the schedule designated in the contract plus such extension or extensions of time as
may be granted by the Director of Public Works in accordance with the provisions of the Contract Documents and
Specifications.
The Contractor shall notify the Project Engineer, or Project Manager, at least 48 hours in advance of the time
he intends to begin Work. The Contractor shall conduct Work in such a manner and with sufficient materials,
equipment, and labor as is considered necessary to insure its completion within the time limit set forth in the
Contract. Should the prosecution of Work for any reason be discontinued by the Contractor, with the consent
of the Project Engineer, or Project Manager, he shall notify the Project Engineer, or Project Manager, at least
48 hours in advance of resuming operations.
4.5 LIMITATION OF OPERATIONS: Each item of Work shall be performed to completion without delay and in
no instance will the Contractor be permitted to transfer his force from uncompleted Work to new Work without the
permission of the Project Engineer, or Project Manager. The Contractor shall not open up Work to the prejudice of Work
already started.
4.6 PROGRESS SCHEDULE: The Contractor shall prepare and submit to the Project Engineer, or Project Manager,
for approval five (5) calendar days prior to the Preconstruction Conference, a practicable schedule, showing the
order in which the Contractor proposes to carry on the Work, the date on which he will start the several salient
features (including procurement of materials and equipment) and the contemplated dates for completing the same.
The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of
Work scheduled for completion at any time. The Contractor shall enter on the chart the actual progress at such
intervals as directed by the Engineer or Project Manager, and shall immediately deliver three copies thereof. If the
Contractor fails to submit a progress schedule within the time herein prescribed, the Project Engineer, or Project
Manager, may withhold approval of progress payment estimates until such time as the Contractor submits the required
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progress schedule.
The Contractor shall perform the Work in accordance with the latest approved progress Schedule. In the event that the
progress of items along the critical path in the project schedule is delayed, the Contractor shall revise his planning to
include additional forces, equipment, shifts or hours as necessary to meet the time or times of completion specified
in this Contract. Additional costs resulting therefrom will be borne by the Contractor. The Contractor shall make such
changes when his progress at any check period does not meet at least one of the following two tests:
a. The percentage of dollar value of completed Work with respect to the total amount of the Contract is
within ten percentage points of the percentage of the Contract time elapsed,or;
b. The percentage of dollar value of completed Work is within ten percentage points of the dollar value
which should have been performed according to the Contractors own network analysis previously
approved by the Project Engineer, or Project Manager.
Failure of the Contractor to comply with the requirements under this Section will be grounds for determination that
the Contractor is not performing the Work with such diligence as will ensure completion within the time of
completion specified in this Contract. Upon such determin ation, the Owner may terminate the Contractor's right to
proceed with the Work, or any separate part thereof, in accordance with the provisions contained herein. The Owner
may extend the time periods reflected by subparagraphs (a) and (b) above, if those subparagraphs do not reasonably
reflect upon the Contractor’s prosecution of the Work.
4.7 CHARACTER OF WORKMEN AND EQUIPMENT: The Contractor shall employ such superintendents, foremen,
and workmen as are careful and competent, and the Project Engineer, or Project Manager, may demand the dismissal
of any person or persons employed by the Contractor in, about, or upon the Work who shall engage in acts of
misconduct (as defined in the Federal Contractor Misconduct Database) or be incompetent or negligent in the proper
performance of his or her duties, or neglects or refuses to comply with the directions given, and such person or
persons shall not be employed again thereon without the written consent of the Project Engineer, or Project
Manager. Should the Contractor continue to employ, or again employ such person or persons, the Project Engineer,
or Project Manager, may withhold all payments which are or may become due, or the Project Engineer, or Project
Manager, may suspend the Work until such orders are complied with.
In the employment of labor, preference shall be given, other conditions being equal, to residents of the area wherein
the Work is being done, but no other preference or discrimination among citizens of the United States shall be made,
except as may be required by special labor provisions. The Contractor shall furnish such equipment as is considered
necessary for the prosecution of the Work in an acceptable manner and at a satisfactory rate of progress. All
equipment, tools, and machinery used for handling materials and executing any part of the Work shall be maintained
in a satisfactory working condition. Equipment used on any portion of the Work shall be such that no injury to the
workers, roadways, adjacent property, or other objects will result from its use. The Contract may be terminated if
the Contractor fails to provide adequate equipment for the Work.
4.8 SUSPENSION OF WORK: The Owner may suspend all or any part of the Work by written order signed by the
Project Engineer, or Project Manager, without invalidating the Contract, for such period or periods as it may deem
necessary due to:
a) Any reason for the convenience of the Owner, with or without cause, including but not limited to the
availability of funding for the Project;
b) An order from a state or federal court or administrative agency; or
c) The Contractor’s failure to perform any provision of the Contract Documents.
Upon receipt from the Project Engineer, or Project Manager, of an order to suspend the Work, the Contractor shall,
within three (3) days, submit a suspension plan to the Project Engineer, or Project Manager, for acceptance. The
plan shall describe how the Contractor will store all materials in a manner so that the materials will not become an
obstruction or become damaged in any way, what cost effective methods it will employ to prevent damage to or
deterioration of the Work and otherwise protect the Work, how suitable drainage will be provided, what temporary
structures will be necessary, and how the Contractor will prepare for resuming the Work for the least possible
remobilization cost. After the plan is accepted, the Contractor shall implement it in accordance with instructions
received from the Project Engineer, or Project Manager.
Under no circumstance shall a suspension absolve the Contractor or the Contractor’s sureties of the duties and
responsibilities guaranteed under the Bonds.
The Contractor shall again proceed with the Work when it is ordered to do so in writing by the Project Engineer, or
Project Manager.
Upon the resumption of the Work for all suspensions not involving the Contractor’s failure to perform in accord with
the Contract Documents, adjustment of Contract Time, if appropriate, will be made in accordance with these General
Conditions. Adjustment of the Contract Price, if any, will be within the Owner’s sole discretion and shall not in any
event, exceed the cost of the extra work resulting from such suspension. Such cost, if any, shall be determined in
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accordance with these General Conditions.
4.9 SUSPENSION OF WORK FOR OWNER’S CONVENIENCE: Upon decision to suspend the Work or any part of
the Work for the Owner’s convenience, the order of suspension will extend the Contract Time for the number of
days of such suspension if all Work is suspended. If the suspension applies to only a part of the Work, a time extension
will not be authorized until the partial suspension has run and its effect on the entire Contract can be evaluated. In
all cases of suspension for the Owner’s convenience, the costs to the Contractor will be determined in accordance
with these General Conditions.
Upon order of such suspension, the Contractor shall immediately begin to perform in a manner designed to minimize
the costs of protecting the Work and maintaining it in a condition which will permit its resumption for the least
possible remobilization cost.
4.10 SUSPENSION OF WORK DUE TO ORDER OF CITY, COUNTY, STATE or FEDERAL COURT OR AGENCY: If the
suspension of work is due to an order from a City, County, State or Federal court, the order of suspension will identify
the court or agency order which caused the suspension and will extend the Contract by the amount of time specified
by the court or agency order. If the order causes suspension for an indefinite period of time and as a result a time
extension cannot be established, the order of suspension will also be for an indefinite period of time. If the order is
issued because of acts or omissions of the Contractor, the Contractor shall not be entitled to a time extension or
payment for any additional costs it incurs.
4.11 SUSPENSION OF WORK RESULTING FROM CONTRACTOR’S FAILURE TO PERFORM: If a suspension order
results from the Contractor’s failure to satisfactorily perform any of the provisions of the Contract, including but not
limited to faulty workmanship, safety concerns, improper or inadequate manpower, equipment, supplies or
supervision, or failure to perform the Work in a timely manner, the order will identify the reason, or reasons, for the
order. In this circumstance, no time extension will be authorized for the Contractor and any costs to the Contractor
resulting from such suspension order will not be reimbursed by the Owner. A suspension order issued under these
circumstances will remain in effect until the Contractor has removed or corrected the grounds for the suspension, if
applicable, or the order requiring such suspension expires by its terms.
4.12 CONTRACT TIME: Work shall be fully completed in a satisfactory and acceptable manner by the Completion
Date as modified by Change Orders that may extend the project schedule due to excusable delays.
4.12.1 Delays - Delay claims fall into three categories: non-excusable; excusable/non-compensable; and
excusable/compensable. Any payment for compensable delays or the granting of time extensions for
excusable delays requires a properly executed Change Order. The Contractor agrees that time extensions
shall constitute full compensation for any excusable/non-compensable delay, and the Contractor shall make
no claim for monetary damages relating to any non-excusable delay or any excusable/non- compensable
delay.
4.12.2 Non-Excusable Delay - Non-excusable delay is caused by factors within the Contractor’s reasonable
control or by the Contractor’s fault. No additional time or additional compensation is allowed for non-
excusable delays. Typical non-excusable delays, without limitation, include:
a) Late submittal of Shop Drawings;
b) Late procurement of materials or equipment;
c) Insufficient personnel;
d) Unqualified personnel;
e) Inadequate coordination of Subcontractors or other contractors;
f) Subcontractor delays;
g) Late response to Owner, Project Engineer, or Project Manager, or Inspector inquiries;
h) Failure to comply with the requirements of the Contract Documents;
i) Construction not conforming to contract requirements making repeated re-working necessary;
j) Delays resulting from the Contractor’s failure to take reasonable actions to mitigate or prevent
further delays relating to any excusable delay;
k) Failure to continue performance during the determination of any Contractor Change Request or
claim; and
l) Weather delays exceeding the Reasonably Predictable Weather Days identified on the approved
Construction Schedule, unless approved as unusually severe weather days.
4.12.3 Excusable Delay
a. Excusable/Non-compensable delay is caused by factors beyond the Contractor’s reasonable
control, but is not the result of the Owner’s actions or omissions. An excusable/non-compensable delay
entitles the Contractor to an extension of time but no additional compensation for the cost of the delay.
Typical excusable/non-compensable delays, without limitation, include strikes, lockouts, natural fires not
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caused by Contractor’s acts or omissions, unusual delay in transportation, unavoidable casualties, legal or
administrative proceedings affecting the Work or the Project, and other causes beyond the Contractor’s
control.
b. Excusable/Compensable delay is caused by the Owner’s failure to meet an obligation within its
control stated or implied in the Contract, but shall not include any action, omission, or exercise of any right
under the Contract. If the Project Engineer, or Project Manager, considers a delay as compensable, the
Owner will grant a time extension or reimburse the Contractor for the increased total cost of performance
caused by the delay, or both, as appropriate. Typical excusable/compensable delays, without limitation,
include:
1) Late approval of Shop Drawings and samples;
2) Delays in answers to field inquiries made by the Contractor;
3) Interference with the Contractor during construction:
4) Owner-caused schedule changes;
5) Design changes; or
6) Interference by another contractor’s or the Owner’s personnel.
4.12.4 Weather Delay - In order for a Weather Delay to occur, the total lost weather days must exceed
the total number of such days included in the contract time as specified in the Special Provisions for the
project. The Weather Delay, if any, shall be the number of days of such excess; provided that no Weather
Delay shall have occurred except to the extent that Work which needs to be performed during the period
of time affected by adverse weather is actually delayed in a manner that delays the critical path to
completion of the Work.
As used herein, a “lost weather day” shall mean a day during which actual adverse weather prevents work
on activities that need to be performed on that day in accordance with the Project Schedule for fifty percent
(50%) or more of Contractor’s scheduled Work for such day.
Contractor shall report to Owner no later than 10:30 a.m. Mountain Time on each day Contractor claims to
be a lost weather day or (ii) if Work on the Project has commenced for such day, within one hour of
Contractor’s decision to suspend Work because of such adverse weather. Such report shall state that
Contractor considers that a lost weather day is occurring and shall describe the weather conditions
experienced and how the weather conditions have affected the Scheduled Work for such day. Unless
Contractor gives such timely notice as to any day when work is adversely affected by adverse weather,
Contractor shall not be entitled to claim such day as a lost weather day.
4.12.5 Time Adjustments for Weather Delays - The Project Engineer, or Project Manager, in his or her
discretion, may deem weather-related delays as excusable/non-compensable if the net number of lost
weather days in any month exceeds the number of Reasonably Predictable Weather Days for that month
shown on the approved Construction Schedule. The Contractor must submit a weather time impact analysis
supporting any request for time extensions due to unusually severe weather. If Contractor is delayed in the
performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God,
acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and
beyond the control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment
in Contract Times, if such adjustment is essential to Contractor’s ability to complete the Work within the
Contract Time. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays described
in this Paragraph.
4.13 LIQUIDATED DAMAGES: The Owner may permit the Contractor to proceed if the Contractor fails to advance
the Work sufficiently to obtain a Notice of Substantial Completion on or before the Completion Date, as modified by
Change Orders providing for additional time due to excusable delays. In such case, the Contractor will pay the sum
of liquidated damages stipulated in the Special Conditions for each day that the Work remains uncompleted. This
sum shall not be a penalty but is liquidated damages.
The Parties agree that time is of the essence in the performance of this Contract and that actual damages for delay
are incapable of calculation. The Parties agree that, under all of the circumstances, the daily basis and the amount
set forth as liquidated damages is reasonable and equitable. The Owner expends additional personnel effort in
administrating the Contract or portions of it that are not completed on time, and such efforts and the costs thereof
are impossible to accurately compute. In addition, some, if not all, citizens of the City of Englewood incur personal
inconvenience and lose confidence in their government as a result of public projects or parts of them not being
completed on time, and the impact and damages, certainly serious in monetary as well as other terms, are impossible
to measure. Permitting the Contractor to continue and finish the Work, or any part of it, after the Completion Date
shall not operate as a waiver on the part of the Owner of liquidated damages or any of its rights under the Contract.
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The Owner may deduct liquidated damages or any portion thereof due under this article from Final Payment and
may sue for and recover such damages from the Contractor and the Surety. The Owner and Contractor agree that
as liquidated damages for delay, but not as a penalty, Contractor shall pay the Owner the amount specified in the
table below for each day that expires after the time specified for substantial completion until the Work is complete,
and for each day that expires after the time specified for final completion until the Work is finally complete.
Original Contract Amount Amount of Liquidated Damages Per Day
Less than $150,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500.00
$150,000 and less than $500,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00
$500,000 and less than $1,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,600.00
$1,000,000 and less than $2,000,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,300.00
$2,000,000 and less than $4,000,000 .............................................................................................................. $4,100.00
$4,000,000 and over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,800.00
In addition to liquidated damages, inspections required after the Contractual "Time of Completion" shall be charged
to the Contractor at the rate of $50.00 per hour.
The Owner shall recover said inspection charges and liquidated damages by deducting the amount thereof out of
any moneys which may be due or may become due to the Contractor, and/or by an action at law against the
Contractor or his Surety. It is understood and agreed that aside from any other penalty or damage, all costs of the
Project Engineer, or Project Manager, and inspection on behalf of the Owner may be charged to the Contractor and
be deducted from any estimate or payment otherwise due and payable to him
4.14 ADJUSTMENT FOR SUSPENDED WORK: In the event the Contractor is ordered by the Owner, in writing, to
suspend Work for some unforeseen cause not provided for in the Contract, and over which the Contractor has no
control, the Contractor may be reimbursed for actual money expended on the job during the period of shutdown. No
allowance will be made for lost profits. The period of shutdown shall be computed from the date set out in the written
order for Work to cease until the date of the order for Work to resume. Claims for such compensation shall be filed
with the Owner within 10 days after date of order to resume Work or such claims will not be considered. The Contractor
shall submit with his claim, substantiating papers covering the entire amount shown on the claim. The Owner shall
take the claim under consideration, and may make such investigations as are deemed necessary, and shall be the sole
judge as to the equitability of such claim and such decision shall be final.
Notwithstanding any provisions of this Contract to the contrary, no provision of this section shall be construed as
entitling the Contractor to compensation for delays due to inclement weather, delays due to failure of Surety, for
suspensions made at the request of the Contractor, or for any other delay provided for in the Contract Documents,
Specifications, Special Provisions, Proposal, Contract, Change Order, Field Order or Supplemental Agreement.
4.15 TERMINATION OF CONTRACT: The Contract may be terminated by theOwner for cause or convenience.
Notwithstanding the below, the Contractor shall not be relieved of the liability to the Owner for damages sustained
by the Owner by virtue of breach of the award by the Contractor and the Owner may withhold any payments to the
Contractor for the purpose of set off until such time as the exact amount of damages due the Owner from the
Contractor is determined.
Owner reserves the right to take possession of any machinery, implements, tools, or materials of any description
that shall be found upon the Work, to account for said equipment and materials, and to use the same to complete
the Project. When the Work is thus finally completed, the total cost of the same will be computed. If the total cost is
more than the Contract price, the difference shall be paid to the Owner either by the Contractor or his Surety. If the
total cost is less than the Contract price, the difference will be paid by theOwner to the Contractor or his Surety. In
case of termination all expenses incident to ascertaining and collecting losses under the bond, including Project
Engineer, or Project Manager, and legal services, shall be assessed against the bond.
4.16 TERMINATION FOR CAUSE: The Owner may terminate the Contract for cause due to the actions or inactions
of the Contractor. Cause includes, without limitation:
a) If the Work to be performed under the Contract is assigned by the Contractor without written
permission of the Owner;
b) Contractor's disregard of Laws or Regulations of any public body having jurisdiction;
c) Contractor's repeated disregard of the authority of the Project Engineer;
;
d) If a general assignment of the Contractor’s assets is to be made for the benefit of its creditors;
e) If a receiver is appointed for the Contractor or any of its property;
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f) Substantial evidence of collusion for the purpose of illegally procuring a Contract or perpetrating fraud
on the Owner in the construction of the Work under the Contract;
g) If the Contractor has materially breached any of the conditions, provisions or covenants of the
Contract;
h) Failure of the Contractor to promptly repair, replace or remove any defects in materials or Work or any
defects in materials or Work of any other nature, the correction of which has been directed in writing by
the Project Engineer, or Project Manager;
i) If, at any time, the performance of the Work under the Contract is being unnecessarily delayed or if the
Contractor is willfully or deliberately violating any of the conditions, provisions, or covenants of the
Contract Documents, or if the Contractor is executing the same in bad faith or otherwise not in
accordance with terms of the Contract;
j) Evidence that the progress being made by the Contractor is insufficient to complete the Work within the
specified time;
k) Failure of the Contractor to start the Work on the date given in the Notice to Proceed;
l) If the Work or any part of the Work is not fully completed within the time or times named for its
completion or within the time to which such completion date or dates have been extended;
m) If the Contractor abandons the Work by failing to be at work site for two consecutive days, and
performing work, on days upon which the schedule anticipates work to be performed;
n) If the Contractor fails to maintain the required Bonds, licenses, permits, or insurance;
o) Bankruptcy or insolvency of the Contractor, or if the Contractor shall allow any final judgment to stand
against him unsatisfied for a period of ten (10) days or shall make an assignment for the benefit of
creditors.
p) If the Contractor or any of its officers or employees are convicted, plead nolo contendere, enter into a
formal agreement in which they admit guilt, enter a plea of guilty, or otherwise admit culpability to
criminal offenses of bribery, kickbacks, collusive proposing, bid-rigging, antitrust, fraud, undue
influence, theft, racketeering, extortion or any offense of a similar nature, in connection with
Contractor’s business; or
q) If other just cause exists.
4.16.1 Written Notice - The Owner will send written notice to the Contractor and the Surety of the
Owner’s intent to terminate for cause and will give the Contractor and Surety ten (10) days from the date
the notice was sent to cure the default, if such default is subject to cure, or provide to the Owner in writing,
a detailed plan of how it will remove the causes for termination, except that, if the Completion Date is less
than ten (10) days away, the notice may specify less than ten (10) days. If the Contractor or Surety does not
submit such plan within the time established, or if, in the judgment of the Owner, such plan will not ensure
the satisfactory performance of the Work, the Owner may declare the Contract terminated on the effective
date specified in the notice or any other date thereafter.
4.16.2 Discontinue Work - In the event of termination for cause, the Owner shall notify the Contractor to
discontinue all Work under the Contract and the Contractor shall immediately respect such notice, stop all
Work and cease to have any right to possession of the Work site.
4.16.3 Contract Forfeiture - In addition, the Contractor shall forfeit its Contract as of the specified
effective date of termination.
4.16.4 Possession of Materials and Equipment - Upon such termination for cause, the Owner may take
possession of all materials, equipment, tools, and temporary material manufacturing plants as may be on
the site of the Work or necessary for completion of the Work and take over the Work and prosecute the
same to completion, by Contract or otherwise, for the account and at the expense of the Contractor.
4.16.5 Cost Liability - If Owner proceeds as provided in Paragraph 4.16, Contractor shall not be entitled to
receive any further payment until the Work is completed. If the unpaid balance of the Contract Price
exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs)
sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor.
If such claims, costs, losses, and damages exceed such unpaid balance, Contractor (and/or its surety) shall
pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed
by the Project Engineer as to their reasonableness and, when so approved by the Project Engineer,
incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall
not be required to obtain the lowest price for the Work performed.
4.17 TERMINATION FOR CONVENIENCE OF THE OWNER: The performance of Work under the Contract in whole
or in part may be terminated without cause by the Owner whenever the Owner, in its sole discretion, shall determine
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that such termination is in the best interest and convenience of the Owner or whenever the Owner is prohibited
from completing the Work for any reason. Such termination shall be effected by giving not less than three (3) days’
written notice to the Contractor specifying the extent to which performance of the Work is terminated and the date
upon which such termination becomes effective.
4.17.1 Contractor Responsibilities - Upon receipt of such notice of termination, the Contractor shall:
a) Stop work under the Contract on the date and to the extent specified in the Notice of
Termination;
b) Place no further orders or subcontracts for materials, services or facilities, except as may be
necessary for completion of such portion of the Work under the Contract as is not terminated;
c) Terminate all orders and subcontracts except as necessary to complete Work which is not
terminated;
d) If directed in writing by the Owner to do so, assign all right, title, and interest in subcontracts
and materials in progress, in which case the Owner will have the right, in its discretion, to
settle or pay any or all Claims arising out of the termination of such subcontracts;
e) Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any
directed by it, (a) the fabricated or un-fabricated parts, Work in process, completed Work,
supplies and other material procured as a part of, or acquired in connection with the
performance of, the Work terminated by the Notice of Termination, and (b) the completed or
partially completed Plans, drawings, information, and other property, which, if the Contract
had been completed, would have been required to be furnished to the Owner;
f) Settle outstanding liabilities and claims with the approval of the Owner;
g) Complete performance of such part of the Work not terminated; and
h) Take such other actions as may be necessary, or as may be directed by the Owner, for the
protection and preservation of the property related to the Contract.
4.17.2 Payment for Work Performed - With respect to Contract Work performed prior to the effective date
of the Notice of Termination, the total (without duplication of any items) of:
a) The cost of such Work;
b) The cost of settling and paying claims arising out of the termination of Work under
subcontracts or orders as provided in subparagraph (d) above, exclusive of the amounts paid
or payable on account of supplies or materials delivered or services furnished by the
Subcontractor prior to the effective date of the Notice of Termination of Work under the
Contract, which amounts shall be included in the cost on account of which payment is made
under (a) above;
c) A sum, as profit on the cost of such Work, determined by the Owner to be fair and reasonable;
provided, however, that if it appears that the Contractor would have sustained a loss on the
entire Contract had it been completed, no profit shall be included or allowed under this
subparagraph and an appropriate adjustment shall be made by reducing the amount of the
settlement to reflect the indicated rate of loss;
d) The reasonable cost of the preservation and protection of property incurred pursuant to
subparagraph (h) and any other reasonable cost incidental to termination of Work under this
Contract, including expense incidental to the determination of the amount due to the
Contractor as the result of the termination of Work under this Contract.
4.17.3 Remaining Inventory - Except as provided herein, any inventory paid for by the Owner but
remaining upon the termination of the Contract may, with written approval of the Owner, be sold or
acquired by the Contractor under the conditions prescribed by and at prices approved by the Owner.
4.17.4 Request for Final Payment - Upon receipt of notice of such termination, the Contractor shall submit
to the Project Engineer, or Project Manager, a request for final payment, in a form and with certification
prescribed by the Owner. Such request shall be submitted promptly but in no event later than sixty (60)
days from the effective date of termination, unless extended in writing by the Project Engineer, or Project
Manager, upon the written request of the Contractor within such sixty (60) day period, or such earlier date
as is provided by law.
4.17.5 Profit - Subject to the provisions contained herein, the Contractor and the Owner may agree upon
the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or
partial termination of Work pursuant to this Section, which amount or amounts may include an allowance
for profit on Work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall
not exceed the total Contract price as reduced by the amount of payments otherwise made and as further
reduced by the Contract price of Work terminated. The Contract will be amended accordingly, and the
Contractor will be paid the agreed amount.
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4.17.6 Calculation of Final Payment - The final payment to the Contractor after a termination for
convenience shall be calculated as follows:
a) From the Contract Price, subtract the following:
1) The total amount paid to the Contractor to date;
2) The value of the Work completed since the last approved pay application;
3) The total amount of retainage withheld by the Owner to date;
4) The agreed price for, or the proceeds of sale of, any materials, supplies, or other things
acquired or sold by the Contractor or sold pursuant to these General Conditions and not
otherwise recovered by or credited to the Owner;
5) The total of all claims the Owner may have against the Contractor; and
6) Any outstanding claims pursuant to C.R.S. § 38-26-107, as amended or superseded.
b) Multiply the number resulting by 0.05. The number resulting is the full and complete
compensation for anticipated profits
c) Add the following to the total resulting from the prior step:
1) Any actual costs incurred by the Contractor for restocking charges;
2) The agreed upon price of protecting the Work in the manner, if any, directed by the
Owner;
3) The amount of retainage withheld by the Owner to date; and
4) The value of the Work completed since the last approved pay application.
The sum calculated under this article, when paid to the Contractor, shall constitute full and final settlement
of the Contract Price.
4.17.7 Defective Work - The settlement for the Work performed shall not relieve the Contractor, or its
surety, from responsibility for defective Work and/or materials on the completed portion of the Work nor
for labor and materials or any other items as guaranteed by the Bonds.
4.17.8 Owner Access - Unless otherwise provided for in this Contract, or by applicable statute, the
Contractor, from the effective date of termination and for a period of three years after final settlement
under this Contract, shall preserve and make available to the Owner at all reasonable times at the office of
the Contractor, but without direct charge to the Owner, all books, records, documents and other evidence
bearing on the costs and expenses of the Contractor under this Contract and related to the expenses of the
Contractor under this Contract and related to the Work terminated hereunder, or to the extent approved
by the Owner, photographs, micro-photographs, or other authentic reproductions thereof.
4.17.9 Right to File Claim - If the Parties fail to agree in whole or in part on the amount or amounts to be
paid to the Contractor in connection with the termination of work pursuant to this article, the Contractor
may submit a claim as provided in these General Conditions, except that, if the Contractor has failed to
submit its request for payment within the time provided above and has failed to request an extension of
such time, it shall have no such right.
4.17.10 Total Sum to be Paid - The total sum to be paid to the Contractor under subparagraph (a) above
will not exceed the total Contract price as reduced by the amount of payments otherwise made and as
further reduced by the Contract price of Work terminated.
4.17.11 Deduction for Claims - In arriving at the amount due the Contractor under this Section, there will
be deducted (i) any claim which the Owner may have against the Contractor in connection with this
Contract, (ii) the agreed price for, or the proceeds of sale, of materials, supplies or other things acquired by
the Contractor or sold, pursuant to the provisions of this Section and not otherwise recovered by or credited
to the Owner and (iii) the full amount of any statutory or other claim against the Contractor filed with the
Owner.
4.17.12 Subcontractors - The Contractor shall insert in all subcontracts that the Subcontractor shall stop
Work on the date of and to the extent specified in a Notice of Termination from the Owner and shall require
that any tier subcontractors insert the same provision in any tier subcontracts.
4.18 COOPERATION WITH OTHER CONTRACTORS: In connection with the improvements under this Contract,
the right is reserved by the Owner to award any Work not included in the Contract to another Contractor for
performance during the progress of the Work, or to perform such Work with the Owner's forces, and the Contractor
under this Contract shall cooperate and so conduct his operation as to minimize the interference therewith, as
directed by the Project Engineer, or Project Manager.
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4.19 TERMINATING OF CONTRACTOR'S RESPONSIBILITY: This Contract will be considered complete when all
Work and final cleanup has been finished, the Work accepted by the Owner, and all claims for payment of labor,
materials, or services of any kind used in connection with the Work have been settled for by the Contractor or his
Surety. The Contractor will then be released from further obligation except as set forth in the Surety Bond and for
his responsibility for injury to persons or property arising from his duties and obligations under Section 7. The Surety
Bond executed for performance of this Contract shall be in full effect for a period of one year following acceptance
of the Work, except that with regard to the representation regarding copyright infringement found in Article 18, the
Surety shall remain in effect for three years and with regard to the representation regarding patent infringement
found in Article 18, the Surety shall remain in effect for six years. Neither the final payment nor any provision in the
Contract documents shall relieve the Contractor of the responsibility for negligence or faulty materials or
workmanship. The Contractor shall warrant his work to be free from faulty materials or workmanship for the period
of one year after final payment and upon written notice he shall remove any defect due thereto and pay for any
damage due to other Work resulting there from which shall appear within the one-year period. Remedied Work shall
carry the same warranty as the original Work starting with the date of acceptance of the replacement or repair.
Payment to the Contractor will not relieve him of any obligation under this Contract.
Article 5. PROJECT AND CONSTRUCTION MANAGEMENT
5.1 AUTHORITY OF PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager,
shall decide any and all questions which may arise as to the quality and acceptability of the materials furnished, the
Work performed, the manner of performance and the rate of progress of the Work. He/She shall decide all questions
which may arise as to the interpretation of the Plans and Specifications, all questions as to acceptable fulfillment of
the Contract, all disputes and mutual rights by the Contractors if there is more than one Contractor on the Work,
and all questions as to compensation. The decision of the Project Engineer, or Project Manager, shall be final. He/She
shall have executive authority to make effective such decisions and to enforce the Contractor to carry out all orders
promptly.
The Project Engineer, or Project Manager, shall be the primary interpreter of the meaning and intent of the
Construction Documents and shall be, in the first instance, the judge of the performance of the Contract. The Project
Engineer, or Project Manager, will visit the site at appropriate intervals to become familiar with its progress and
quality and to determine in general if the Work is being performed in such a manner that it will, when fully
completed, be in accordance with the Contract Documents.
The Project Engineer, or Project Manager, shall, in a timely manner, evaluate and issue written determinations
resolving any claims or disputes submitted to the Project Engineer, or Project Manager, for review under the
Contract. Interpretations and decisions of the Project Engineer, or Project Manager, will be consistent with the intent
of, and reasonably inferable from, the Contract Documents. The Project Engineer, or Project Manager’s decisions on
matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents.
In exercising its authority to make such determinations, the Project Engineer, or Project Manager, shall exercise
independent professional judgment based on the Contract Documents and shall not favor Contractor or Owner. All
such determinations shall be subject to judicial review, provided, however, that any matters designated as Disputes
under the Contract shall be submitted to Dispute Resolution in accordance with the Contract before being made the
subject of litigation unless the Contract specifically provides otherwise.
5.2 COMMUNICATIONS: Contractor shall furnish both Owner and Project Engineer copies of all notices
Contractor gives to either the Project Engineer, Project Manager, or Owner under the Contract relating to
Applications for Payment, Change Directives, Proposed Changes, Change Orders, Progress Payments, or claims for
adjustment in the Contract Sum, Required Substantial Completion Date or Required Final Completion Date. Such
duplicate notice shall also be given as to other matters requested in writing by Owner or Project Engineer, or Project
Manager.
5.3 SUPERVISION: The Contractor shall supervise and direct the Work competently and efficiently, devoting
such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance
with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques,
sequences, and procedures of construction. The Contractor shall be responsible to see that the completed work
complies with the Contract Documents.
The Contractor shall designate and keep on the Work at all times during its progress a competent Superintendent
who shall not be replaced without prior written notice to the Owner and Project Engineer. The Superintendent will
be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All
communications given to the Superintendent shall be as binding as if given to the Contractor. During periods when
the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be
required.
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Whenever the Superintendent is not present on any particular part of the Work where the Project Engineer, or
Project Manager, may desire to inform the Contractor relative to interpretation of the Plans and Specifications or to
disapproval or rejection of materials or Work performed, the Project Engineer, or Project Manager, may so inform
the foreman or other worker in charge of the particular part of the Work in reference to which the information is
given. Information so given shall be as binding as if given to the Superintendent.
The Contractor will be supplied with four (4) copies of the Plans, and three (3) copies of the Specifications and Special
Provisions. He shall have available at the job site, at all times, one copy each of said Plans, Specifications and Special
Provisions, exclusive of the set designated for As-Built Drawings. Additional copies of Plans, Specifications and Special
Provisions can be obtained by the Contractor for the cost of reproduction.
5.4 CONTRACTOR PERFORMANCE: The Contractor will perform the Work or cause the Work to be performed
in a manner that is in compliance with the requirements of the Contract Documents. The Contractor shall perform
the Work exactly as specified by the Contract Documents.
Unless otherwise provided in the Contract Documents, for the Unit Prices, the Contractor shall provide and pay for
all labor, materials, equipment, tools, supplies, construction equipment and machinery, water, heat, electricity,
energy, utilities, transportation, any temporary construction easements not provided by the Owner, apparatus,
permits, superintendence, maintenance, dismantling, removal, and other facilities and services, necessary for the
proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated
or to be incorporated into the Work.
The Contractor shall be solely responsible for all construction means, methods, safety, techniques, sequences and
procedures unless otherwise specified in the Contract Documents.
There is a need for 24-hour access to the Contractor’s Superintendent in case of emergency. The contractor shall
supply the Project Engineer, or Project Manager, with a contact telephone number through which the
Superintendent may be reached at any time.
When the work includes adjusting valve boxes, meter pits, manholes, pavement markings and/or striping, etc., the
Contractor shall complete this work within ten (10) days of placing the final lift of asphalt.
5.5 WORK PERFORMED UNDER ADVERSE WEATHER CONDITIONS: Adverse weather conditions are those that
can, depending on the Work to be performed, cause defective Work. Examples include: high or low temperatures,
excessive moisture, unusual drying conditions, or high winds.
Construction methods and practices that have been or may be developed for Work performed under such
circumstances may only be used after the Project Engineer, or Project Manager, has approved the concept of such
method or practice.
If the Contractor does attempt Work during periods of adverse weather conditions without the Project Engineer’s,
or Project Manager’s, approval, that Work shall be at the Contractor’s sole risk.
5.6 USE OF MATERIALS FOUND ON THE WORK SITE: The Contractor, with the approval of the Project
Engineer, or Project Manager, may use in the proposed construction, any stone, sand, or gravel found on the
site. The Contractor will not be paid for such excavation unless specifically stated in the Proposal, and he shall
replace with other suitable material, without compensation, all of that portion of the material so removed. If it was
intended that any or all of the material so excavated and used was to have been wasted, then the Contractor will not
be required to replace it.
The Contractor shall not excavate any material from the site which is not within the excavation as indicated by the
slope and grade lines, without being authorized in writing by the Project Engineer, or Project Manager.
5.7 FINAL CLEANING UP: During the Project's final cleanup, the Contractor shall remove from the site all
machinery, equipment, surplus and discarded materials, rubbish, temporary structures, and stumps or portions of
trees. The streets and adjacent properties in the Project shall be repaired to as good or better condition than existed
prior to construction. This shall include removal of all dirt or mud from streets and lawns. No extra payment shall be
made for these items. The Contractor shall leave the Project in a neat and presentable condition. (See Article 17,
below).
5.8 SURVEYS: The Contractor shall develop and arrange for all engineering surveys necessary, in the Owner’s
judgment, to establish reference points for the construction of the Work. The Contractor assumes full responsibility
for construction according to the established lines and grades. If the Contractor proceeds with the Work without
having lines and grades set, the Contractor will not be relieved of strict compliance with the Contract Documents.
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The Contractor shall carefully protect all monuments and property markers from disturbance or damage. The
Contractor, at its expense, will replace any monuments or benchmarks destroyed by the Contractor using a
professional land surveyor licensed in the State of Colorado.
Unless otherwise stated in the Specifications or the Special Conditions, the Owner will provide all reference points
shown on the Contract Drawings by coordinates and/or elevation. The Contractor must accurately transfer the
survey control information to the points of application to ensure that all elements of the Work are correctly located.
Requests by the Contractor to relocate survey reference points must be made ninety-six (96) hours prior to the time
when the point will be disturbed in order to permit the Owner to accomplish such surveys on normal working days.
Any Work that the Contractor begins before confirming the reference points provided may be rejected.
Should the original reference points that the Owner provided be obliterated or dislodged by operations that the
Contractor controls, the Owner will replace them and charge the Contractor for the resurvey.
5.9 LINES AND GRADES: Contractor shall survey and stake and shall be responsible for laying out the work. The
Contractor shall preserve all stakes, bench marks, and any other survey points and shall pay for the replacement, in
accordance with state law, of any stakes, benchmarks, or other survey points destroyed by the Contractor or any
Subcontractor.
5.10 VALUE ENGINEERING: Value engineering is the independent review of a project during the planning and
design phases to reduce costs, save time, improve operations, reduce environmental and other impacts, improve
safety, and improve value and quality. Proposed changes in materials or methods used must be approved by the
Project Engineer, or Project Manager, and any agency having jurisdiction over the affected work before such work is
attempted. The Contractor shall be paid fifty percent (50%) of all identifiable cost savings resulting from said value
engineering approved and accepted. A Change Order must be issued to effect such a value engineering task.
5.11 SANITARY REGULATIONS: The Contractor is responsible for providing proper health and sanitation facilities
for its employees, in compliance with any rules and regulations of the Colorado Department of Public Health and
Environment or any other agencies having jurisdiction. The Contractor shall provide and maintain in a neat, sanitary
condition, such accommodations for the use of employees as may be necessary to comply with the requirements and
regulations of the State Department of Health and the Occupational Safety and Health Administration (OSHA). As
stated in OSHA Construction Standard 1926.51 C, the Contractor shall supply temporary sanitary facilities as per the
following table:
Number of Employees Minimum Toilet Facilities
20 or less 1 Toilet
21 to 50 1 Toilet and 1 Urinal
51 or more 1 Toilet and 1 Urinal for each 50 Employees
This requirement to provide sanitary facilities will not be measured and paid for separately but shall be considered
incidental to and included in the cost of the Work.
At convenient places, the Contractor shall provide fly-proof outside toilets which are to be maintained in a sanitary
condition. Toilets shall not be permitted in any reservoir area and shall not be permitted where they may pollute a
water supply.
The Contractor shall always provide an abundant supply of safe drinking water for Contractor’s employees and shall
give orders against the drinking of any water known to be unsafe in the vicinity of the Project.
The Contractor shall provide and empty daily a thirty (30) gallon or larger trash can near each toilet.
5.12 STAGING AND STORAGE: With the approval of the Project Engineer, or Project Manager, the Contractor
may obtain sites of his/her choosing for equipment storage and/or materials stockpiling. The Contractor shall not
occupy storage sites without prior written approval by the Project Engineer, or Project Manager. A list of such sites
showing the proposed truck route for ingress and egress for each site shall be submitted to the Project Engineer, or
Project Manager, for approval at least five (5) days prior to intended use.
For all sites approved and used, Contractor shall be responsible for the following:
a) Obtaining prior written permission of the owner. A copy of this permission shall be provided to the
Owner;
b) Keeping stockpiles and equipment confined within the approved area and in accordance with
applicable erosion control requirements;
c) Providing security for materials and equipment at the site;
d) Providing for public safety at the site;
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e) Keeping access roads clean and in good condition and in accordance to the Owner’s Erosion Control
requirements; and
f) At Contractor’s sole cost expense, restoring the site to its original or better condition at the completion
of the Work.
5.13 SALVAGE: Items removed by Contractor shall become the property of Contractor unless other disposition
or repositioning is required by the Contract Documents or needed for the Work. The Contractor may reuse such
items elsewhere, sell such items with proceeds of said sale becoming the property of Contractor or otherwise dispose
of such items from the site. Items removed by the Contractor that do not have any salvage value are to be disposed
of by Contractor at an approved waste disposal site at the Contractor’s expense, except for any items that the Owner
will take for recycling.
5.14 MATERIALS AND EQUIPMENT FURNISHED BY THE CONTRACTOR: Unless otherwise provided for in the
Specifications, all workmanship, equipment, materials, and articles incorporated in the Project are to be new,
suitable for the purpose used, of good quality, free from faults and defects and in conformance with the Contract
Documents.
The Contractor further warrants that it has full title to all parts, materials, components, equipment, and other items
conveyed to the Owner under the terms of the Contract, that its transfer of such title to the Owner is rightful and
that all such parts, materials, components, equipment, and other items shall be transferred free and clear from all
security interests, liens, claims, or encumbrances whatsoever. Materials, supplies, and equipment to be incorporated
into the Project shall not be purchased by the Contractor or any Subcontractor subject to chattel mortgage or under
a conditional sales contract or other agreement by which an interest is retained by the seller. The Contractor agrees
to warrant and defend such title against all persons claiming the whole or any part thereof, at no cost to the Owner.
The Contractor shall furnish the Owner, for the Project Engineer, or Project Manager’s approval, the name of the
manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in the
Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other information as
may be required by the Project Engineer, or Project Manager. All items shall be labeled to indicate the Contract and
Project name, Contractor, source of supply, and manufacturer and shall be submitted in sufficient time to permit
proper consideration by the Project Engineer, or Project Manager, without impacting the Construction Schedule.
The Contractor shall have available for use when needed all necessary construction machinery and equipment. Such
machinery and equipment shall comply with all applicable federal, state and local safety requirements and be in
good working condition, adequate for the task, and in the numbers needed to maintain a rate of progress sufficient
to complete the Work within the Contract Time and milestones. Whenever an operation is undertaken which must
be accomplished without any slowdown or stoppage, or to avoid an inferior product, the Contractor shall provide
standby equipment capability so that an equipment breakdown does not disrupt that activity.
The Contractor shall give the Project Engineer, or Project Manager, three (3) copies of all shop manuals, operating
manuals, parts lists, classifications, catalog cuts, specifications, warranties and guarantees for all equipment and
machinery installed.
Consideration of a product as an “equal” or “superior” by the Project Engineer, or Project Manager, may require that
the manufacturer of such product furnish guarantees that extend beyond the usual product warranty time. The
refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product.
The Contractor shall not incorporate any materials into the Project or cover any part of the Work until it has been
inspected and approved according to the Contract Documents. Machinery, equipment, materials, and articles
installed or used without the Project Engineer, or Project Manager’s approval are at the risk of subsequent rejection.
The Contractor shall be responsible for materials delivered and Work performed until completion and final
acceptance of the entire construction thereof.
The Contractor shall bear the risk of injury, loss or damage to any and all parts of the Work for whatever cause,
whether arising from the execution or from the non-execution of Work. The Contractor shall rebuild, repair or
restore Work and materials which have been damaged or destroyed from any causes before completion and
acceptance of the Work and shall bear the expense thereof. The Contractor shall provide security and drainage and
erect temporary structures as necessary to protect the Work and materials from damage.
The Contractor shall be responsible for materials not delivered to the site for which any progress payment has been
made to the same extent as if the materials were so delivered.
5.15 SUBSTITUTION OF MATERIALS AND EQUIPMENT: After the award of the Contract, the Contractor may ask
for substitution of specified material or equipment with equal or equivalent, or superior items only under the
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following circumstances: (i) The Contractor provides evidence to the Project Engineer, or Project Manager, that, in
the Project Engineer, or Project Manager’s sole opinion, establishes that an item of specified material is not available;
(ii) the Contractor provides evidence to the Project Engineer, or Project Manager, that, in the Project Engineer, or
Project Manager’s sole opinion, establishes that the specified item will have an unreasonable delivery time due to
no fault of the Contractor; or (iii) acceptance of such substitution would result in a significant saving to the Owner
without materially impairing the quality or performance of the Work. If any of these circumstances exist, the
Contractor shall request approval for a substitution at least thirty (30) days before the material or equipment must
be ordered.
All requests for substitutions shall be made in writing as part of a submittal. The request shall describe all features
of the requested substitution including any tie-in with other elements of the Work, including utilities and controls
along with the size and capacity of substitute materials or equipment. The request must be submitted on a form
provided by or otherwise acceptable to the Project Engineer, or Project Manager, and shall list all differences from
the product described in the Specifications, include the price of the specified item and the requested substitution,
and describe any advantages or disadvantages of the proposed substitution. The Contractor shall be responsible for
any effect upon related Work in the Project of any substitution and shall pay any additional cost resulting from or
relating to any substitution.
If the “equal or equivalent” material or equipment costs less than that specified, the Contractor shall so state in its
request for substitution and, if the Owner accepts the proposed substitution, it may issue a Change Order to reduce
the Contract Price by the amount of the direct cost savings without markup to the Contractor.
If the equal or equivalent material or equipment is accepted for unavailability or unreasonable delivery time due to
no fault of the Contractor, the Owner may, if appropriate, issue a Change Order to increase the Contract Price by the
resulting actual, direct cost increase, if any, to the Contractor, without markup.
5.16 CUTTING AND PATCHING: The Contractor shall be responsible for all cutting, fitting, or patching that may
be required to complete the Work, to make its several parts fit together properly or to tie the Work into other work
that is shown in the Contract Documents.
The Contractor shall organize and plan the Work to reduce to a minimum the need for cutting or otherwise modifying
or removing load-bearing structural elements to accommodate the installation of other elements of the Work. If two
or more contractors are doing work in the same place, the Contractor shall be responsible for the coordination effort
needed to avoid or to reduce the amount of cutting, modifying or removing of structural elements to accomplish
such work. However, if modification or removal of structural elements is required because the Work could not be
organized and planned to avoid that need, the Contractor shall inform the Project Engineer, or Project Manager, of
the need so that the consequences of such modification or removal of structural elements can be assessed. No
structural element shall be cut, drilled, bored or otherwise modified unless cutting, drilling, boring or other
modification is indicated in the Contract Documents.
If the Contractor needs to modify a structural element from its original design, the Contractor must submit to the
Project Engineer, or Project Manager, a request to make the modification. The request must provide complete
details including all necessary calculations performed by a professional engineer licensed in the State of Colorado to
show that the structural elements can still function as originally designed. The request must be accepted by the
Project Engineer, or Project Manager, before any modification is made.
The Contractor shall be responsible for all repair, replacement, and patching that is necessary to restore the Work,
other property, or work of others damaged by the Contractor or Subcontractor.
5.17 SAMPLES AND TESTING: All materials and equipment used in the Project will be subject to sampling and
testing by an independent testing company acceptable to the Owner according to generally accepted standards and
as required in the Contract Documents. In the absence of direct references, the sampling and testing of materials
will be done according to current specifications of the ASTM or the AWWA.
The Contractor shall furnish all samples without charge. The Contractor will cooperate with the Project Engineer, or
Project Manager, in collecting, handling, storing, and forwarding required samples including the furnishing of
manpower and equipment when necessary.
The Contractor will pay the cost of the initial test except when the Contract states otherwise. The Contractor will
pay the costs for repeated tests due to failure of the initial test. The costs of any testing and retesting may be
deducted from any payment due to the Contractor under the Contract.
The Contractor will provide the Project Engineer, or Project Manager, at least twenty-four (24) hours prior notice for
any inspection involving testing or sampling.
The Contractor shall be responsible for testing of concrete and soils and, unless otherwise specified, the Contractor
shall perform testing of all other materials and equipment. The Contractor shall provide the Project Engineer, or
29
Project Manager, with satisfactory proof of compliance with the requirements of the Contract Documents of any
materials or equipment tested. Satisfactory proof of compliance shall be submitted in one or more of the following
ways:
a) Manufacturer’s Certificate of Compliance. For standard labeled stock products of standard
manufacture that have a record of satisfactory performance in similar work over a period of not less
than two (2) years, the Project Engineer, or Project Manager, may accept a notarized statement from
the manufacturer certifying that the product conforms to the applicable specifications.
b) Mill Certificates. For materials where such practice is the usual standard, the Project Engineer, or
Project Manager, may accept the manufacturer’s certified mill and laboratory certificate.
c) Testing Laboratory Certificates. The Project Engineer, or Project Manager, may accept a certificate from
an independent commercial testing laboratory satisfactory certifying that the product has been tested
within a period acceptable to the Project Engineer, or Project Manager, and that it conforms to the
requirements of the Plans and Specifications.
d) Report of Actual Laboratory Test. The Project Engineer, or Project Manager, may require that
Contractor make actual tests of any product and submit a report of the specified test. Such test shall
be made by a commercial testing laboratory satisfactory to the Project Engineer, or Project Manager,
at the Contractor’s sole expense.
5.18 PROPERTY RIGHTS IN MATERIALS: The Contractor shall have no property right in materials after they have
been attached, affixed or incorporated in the Work or the soil, or after payment has been made by the Owner to the
Contractor for materials delivered to the site of the Work or stored subject to or under the control of Owner.
Article 6. CHANGES IN THE WORK
6.1 CHANGES AND INCREASED OR DECREASED QUANTITIES OF WORK
6.1.1 General - The Contractor shall perform the Work, as changed by any Change Order, as if originally
specified. All changes shall be accomplished by either a written Change Order or a written Field Order issued
in accordance with these General Conditions. If a Field Order is used, a Change Order will be executed when
the terms of the change are agreed upon.
Changes to the Contract Price and Contract Time are authorized only by Change Orders approved in
conformance with the Owner’s adopted purchasing policies.
Without invalidating the Contract, the Project Engineer, or Project Manager, and/or Owner reserves and shall
have the right, without notice to any Sureties, by written Change Order, to make any changes, from time to
time, to the character and quantity of the Work, including but not limited to, the Drawings, Specifications,
Plans or Addenda, as may be considered necessary or desirable to complete fullyand acceptably the proposed
Contract in a satisfactory manner. Such Change Order shall set forth with specificity the changed Work to be
done and shall set forth any changes or extensions to the time of completion.
The total of all such Change Orders associated with a project shall not, whether for additional work or items
for use upon/within the project, increase the total cost of the Contract, based on the original estimate of
quantities and unit prices contained in the Proposal, by more than 10%. Contractor shall be entitled to the
cost of said increased units at the original Proposal price, but not to an adjustment of unit price.
In the event the total cost of all such Change Orders associated with a project increases the total cost of the
Contract by more than 10%, an equitable adjustment will be made and the Contract modified accordingly by a
written Supplemental Agreement, provided, however, that except for claims based on errors in the Contract,
no claim for change hereunder will be allowed for costs incurred more than 20 days before the Contractor
gives written notice as herein required; and in the case of errors in the Contract for which the Owner is
responsible, the adjustment will be increased costs, reasonably incurred by the Contractor in attempting to
comply with such errors in the Contract
Any plan of action, method of work, or construction procedure suggested orally or in writing to the
Contractor by any employee, agent or representative of the Owner, which is not set out in approved Change
Orders or Field Orders issued in accordance with the Contract Documents, if adopted or followed by the
Contractor in whole or in part, shall be performed at the Contractor’s sole risk and responsibility.
No change order, or other form of order or directive by the Owner’s representative which requires
additional compensable work to be performed, and which work causes the aggregate amount payable under
this contract to exceed the amount appropriated for the original contract, shall be executed, or shall work be
performed by the contractor, unless the Owner first gives written notice to the Contractor that lawful
appropriations to cover the costs of such additional work have been made or unless such work is covered
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under a remedy-granting provision of this contract.Forpurposesof thisparagraph,"remedy-granting provision"
shall be defined as set forth in 24-91-103.6(4), C.R.S.
The Contractor shall not start Work on any alteration requiring a Supplemental Agreement until the Agreement
setting forth the adjusted prices has been executed by the Owner and the Contractor. All changes or approvals
for increasing the Work as required and authorized herein, shall be in written form and approved and signed by
the Project Engineer, or Project Manager, prior to the Work being done. All such writings and approvals shall be
specific as to the nature of the Work and the quantities involved. Any Work performed without prior written
approval of the Project Engineer, or Project Manager, shall not be binding on the Owner.
The Contractor may not treat any order, statement or conduct of the Project Engineer, or Project Manager,
as a change under this article nor become entitled to an equitable adjustment in the Contract Price or
Contract Time except as provided in this article.
Claims for changes in the Contract Price or Contract Time of Performance will not be considered after the
Final Payment has been made.
Change Orders involving an increase in the Contract Price must be authorized in accordance with the City’s
adopted purchasing policy, a copy of which is available upon request. Such purchasing policy provides that
the total of all such Change Orders associated with a project that increases the total cost of the Contract by
more than 10% must be approved by a supplemental agreement.
6.1.2 Owner Change Request - The Owner may, without notification to any Surety, require the
Contractor to perform additive or deductive changes to the Work within the general scope of the Project
without invalidating the Contract or any Bond.
When the Owner desires to initiate a change, the Project Engineer, or Project Manager, will issue a change
request informing the Contractor of the proposed change in the Work, and requesting the Contractor’s
detailed price proposal for such change. The Contractor, at no expense to the Owner and within the time
period specified in the Change Request, shall provide the Project Engineer, or Project Manager, with a
complete and itemized proposal for the change in the Work, which shall include the estimated increase or
decrease in the Contract Price or Contract Time. Such increase or decrease shall be based on the criteria
and methods described in these General Conditions. The Contractor shall be responsible for any delays in
the Work and any additional costs to the Owner caused by the Contractor’s failure to submit a complete
price proposal within the time provided. The Contractor shall participate with the Owner in prompt joint
analysis and negotiations to finalize a Change Order. The issuance of a Change Request by the Owner is not
a prerequisite to the issuance of a Field Order.
6.1.3 Field Orders - The Project Engineer, or Project Manager, may make changes in the details of the
Project at any time, by issuing a Field Order. Upon receipt of a Field Order, the Contractor shall promptly
sign the Field Order and return it to the Project Engineer, or Project Manager, and shall promptly proceed
with performing the change in the Work. The Field Order shall not involve an increase or decrease in the
Contract amount and not involve a change in the time for completion.
A Field Order may be used when:
a) The Owner determines that the Contractor must proceed immediately to perform a change in
the Work in order to avoid an adverse impact on the schedule or other work, or to avoid or
correct a situation where the health or safety of persons may be affected, and sufficient time
is not available to negotiate a Change Order; or
b) The Owner and Contractor have not completed their negotiation and reached agreement on
all of the terms of a Change Order, but the Owner requires the Contractor to proceed without
such agreement.
If the Contractor believes that such Field Order entitles it to a change in Contract Price or Contract Time, or
both, the Contractor shall give the Project Engineer, or Project Manager, written notice within five (5) days
after the receipt of the Field Order. Within twenty (20) days after receiving the Field Order, the Contractor
shall provide the Project Engineer, or Project Manager, with a complete and itemized proposal that includes
the estimated increase or decrease in the Contract Price or Contract Time, or both, attributable to the
changes based on the criteria and methods described in these General Conditions. The Contractor shall be
responsible for delays to the Work and any additional costs incurred by the Owner caused by its failure to
submit complete pricing information within the time provided above.
a) If the maximum cost of the change in the Work to be performed under a Field Order has not
been agreed upon and reduced to writing in the actual Field Order, or if such change is not
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fully described under a Unit Price set forth in the Contract Documents or the Field Order, the
Contractor shall proceed with such Work on a time and materials basis.
b) Whenever Work is performed on a time and materials basis, the Contractor shall fully
document all costs associated with such Work. Beginning with the first day such Work is
performed and on a daily basis thereafter, the Contractor shall submit to the Project Engineer,
or Project Manager, a daily itemization of all such costs in such form as the Project Engineer,
or Project Manager, may require.
c) The final Contract adjustment for Field Order changes in the Work performed on a time and
materials basis shall be calculated in accordance with these General Conditions.
When the Owner and the Contractor reach agreement on an adjustment to the Contract Price or Contract
Time, or both as appropriate, such agreement shall be promptly executed as a Change Order. If the Owner
requires Contractor to perform additional compensable work under a Field Order prior to executing a
Change Order, the Contractor shall submit its costs to perform the work as periodically completed in its
monthly application for payment, and Owner shall reimburse such costs, subject to retainage and any
applicable withholding. In no instance shall the Owner be required to periodically reimburse Contractor for
such additional compensable work prior to Contractor submitting to Owner an estimate of the cost of the
additional compensable work to be performed.
6.1.4 Contractor Change Requests - If the Contractor: (i) receives any instructions, interpretations or
directives which it believes are at variance with the Contract Documents or would require the Contractor
to accelerate or decelerate the Work; or (ii) identifies what it believes are errors or omissions of any kind,
including design errors or omissions, in the Drawings or Specifications; or (iii) encounters a differing site
condition; or (iv) is delayed in performing the Work; or (v) becomes aware of any other matter or
circumstance that the Contractor believes might require a change in the Contract Documents, Contract
Time, or Contract Price, the Contractor shall give the Project Engineer, or Project Manager, prompt written
notice of such matter and request a Change Order in a document identified as a “Contractor Change
Request.”
Following submission of a Contractor Change Request, the Contractor shall diligently continue performance
of the Contract to the maximum extent possible.
All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or
event that the Contractor believes may require the issuance of a Change Order. The Contractor shall also
provide a description of possible Contractor actions or solutions to minimize the cost of the Contractor
Change Request and, when possible, provide an estimate of the adjustment in the Contract Time and
Contract Price which the Contractor believes is appropriate.
a) With respect to orders, instructions, directives, interpretations, determinations, or the
discovery of any errors or omissions in the Contract Documents, a Contractor Change Request
shall be submitted before the Contractor acts on them, but in no event more than five (5) days
after they have been, or reasonably should have been, received or discovered.
b) With respect to any differing site conditions, a Contractor Change Request shall be submitted
before the conditions are disturbed, but in no event more than five (5) days after the
conditions are first discovered or reasonably should have first been discovered.
c) With respect to delays, as set out in these General Conditions, a Contractor Change Request
shall be submitted as soon as the Contractor becomes aware, or reasonably should have
become aware, of the delay, but in no event more than five (5) days therefrom.
d) With respect to any other matter or circumstance that the Contractor believes would require
a change, a Contractor Change Request shall be submitted as soon as the Contractor
reasonably has knowledge of the matter or circumstance, but in no event more than five (5)
days after the Contractor becomes aware, or reasonably should have become aware, of such
circumstance or matter.
6.1.5 Submittal Requirements and Waiver of Claims
a) If the Contractor does not submit a Contractor Change Request within the time required by
these General Conditions, any action by the Contractor related to such order, direction,
instruction, interpretation, determination, design error or omission, or other matter, including
delays or differing site conditions, will not be considered by the Owner as a change to the
Work and the Contractor waives any claim for an adjustment on the Contract Price or the
Contract Time.
b) The Contractor shall, within ten (10) days after submitting a Contractor Change Request,
provide the Project Engineer, or Project Manager, with a complete and itemized proposal that
sets out as specifically as practicable the requested adjustments to Contract Price, Contract
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Time, or other Contract provisions, and contains the other information described in these
General Conditions.
c) The proposal shall also contain a detailed explanation, citing all applicable provisions in the
Contract Documents that support the Contractor Change Request. If the Contractor does not
submit its itemized proposal for a Change Order within the time described above or within
such extension that the Project Engineer, or Project Manager, in his or her discretion may have
granted in writing, the Contractor waives any claim for an adjustment in the Contract Price or
Contract Time arising out of the act or event giving rise to or necessitating a Contractor Change
Request.
d) The Contractor shall furnish, upon request, all additional information and data that the Project
Engineer, or Project Manager, determines is needed to assist the Owner in evaluating and
resolving the Contractor Change Request through negotiation. The Contractor shall give the
Owner access to its books, correspondence, records, electronic data bases and files, and other
materials relating to the work described in the Contractor Change Request, shall require its
Subcontractors and Suppliers to provide the Owner with such access, and shall make its
personnel and that of its Subcontractors and Suppliers available to discuss and answer cost,
schedule, and other questions related to such request. Clear and legible copies of all necessary
supporting records shall be provided to the Owner at no cost. Failure to submit requested
information may be a basis for denial of the request.
e) In the event the Contractor is ordered to perform Work under this Section for which payments
are not determined hereunder, which in the opinion of the Owner it is impracticable to have
performed by the Contractor's own employees, the Contractor will, subject to the approval of
the Owner, be paid the actual cost to him of such Work and, in addition thereto, an amount
of ten (10) percent of the actual costs to cover the Contractor’s superintendence,
administration and other overhead expenses. The terms and conditions of any subcontract
which the Contractor may propose to enter into in connection with Work under the provisions
of this Section, shall be subject to the written approval of the Owner before such subcontract
is made.
f) In cases other than those described above, the Owner and the Contractor (on his own behalf
and on behalf of their Subcontractors) shall endeavor to negotiate a reasonable Contract price
and line adjustment in a Change Order on terms appropriate to the changed Work. The
Contractor will be required to submit a sufficiently detailed price proposal supported with
sufficient documentation so that the Owner can determine that (1) the proposal reflects all
impacts on the Contract from Work additions, deletions and modifications shown in the
change order being priced, and (2) the proposed prices are set out in such a way that their
reasonableness can be evaluated against prices based on adequate price competition,
Proposal unit prices, established catalog or market prices of commercial items sold in
substantial quantities to the general public, prices set by law or regulation, recognized
published price lists and indices, independently developed cost estimate and other
appropriate price comparisons and (3) Contract provisions relating to Contract changes
costing over $100,000.00 are complied with. If any prices or other aspects are conditional,
such as on firm orders being made by a certain date or the occurrence or non-occurrence of
an event, the Contractor shall identify these aspects in his Proposal. A negotiated Change
Order shall set out prices, scheduling requirements, time extensions and all costs of any nature
arising out of the issuance of a Change Order except for those cost and time aspects explicitly
reserved on the face of the Change Order.
g) In the event the Contractor and the Owner are unable to agree upon the Contractor's
entitlement to an equitable adjustment or upon the amount thereof, or in the event that it is
in the best interest of the Owner to have the Work proceed pending negotiation of amount of
an equitable adjustment, the Owner may direct the Contractor to perform the Work in
accordance with the Change Order, direction, instruction, interpretation, or determination,
with any Contract price adjustments and progress payments for the Work to be determined
on a Force Account basis in accordance with Section 1.5. The Contractor shall continue
diligently to perform the Contract in accordance with the Owner's order, direction, instruction,
interpretation, or determination during negotiations with respect to the Contractor's
entitlement to an equitable adjustment hereunder or to the amount of any Contract price
adjustment hereunder or to the amount or any Contract price adjustment or time extension.
The Contractor and the Owner may agree on certain aspects of an equitable adjustment and
take those aspects out of operation of Force Account provisions.
h) For Change Orders, the Owner, or its representative shall have the audit and inspection rights
as described below:
x Where the agreed payment method for any Contract changes is to be by cost
reimbursement, time and material, labor, hours, or any combination thereof, the
Contractor shall maintain and the Owner or its representatives shall have the right to
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examine books, records, documents and other evidence and accounting principles and
practices sufficient to reflect properly all direct and indirect costs of whatever nature
claimed to have been incurred and anticipated to be incurred for the performance of the
Contract changes under this Subsection. x Contract changes exceeding $100,000.00 in costs: For submitted cost and pricing data in
connection with pricing a Contract modification referred to in this Subsection, unless such
pricing is based on Proposal unit prices, adequate price competition, established catalog
or market prices of commercial items sold in substantial quantities to the public, or prices
set by law or regulation, the Owner or his representatives shall have the right to examine
all books, records, documents and other data of the Contractor related to the negotiation
of or performance under the Contract Change Orders for the purpose of evaluating the
accuracy, completeness and currency of the cost or pricing data submitted. The right of
examination shall extend to all documents necessary to permit adequate evaluation of
the cost or pricing data submitted, along with the computations and projections used
therein. x Contract changes exceeding $10,000.00 but not $100,000.00 in costs: The Owner or his
representatives prior to the execution of any Contract Change order in this Subsection or
for a period of twelve months after execution shall, unless such pricing is based on
Proposal unit prices, adequate price competition, established catalog of market prices of
commercial items sold in substantial quantities to the public, or prices set by law or
regulation, have the right to examine all books, records, documents, and other data of
the Contractor relating to the negotiation and Contract Change Order for the purpose of
evaluating the accuracy, completeness, and currency of the data submitted upon which
negotiation is or has been based. To the extent the examination reveals inaccurate,
incomplete or non-current data, the Contracting Officer may renegotiate the Contract
Change Order price based on such data. x Contract changes of less than $10,000.00 in costs: The Owner may require from the
Contractor appropriate documentation to support the prices being negotiated for
Contract changes under this Subsection, and may refuse to complete negotiation until
satisfactory documentation is submitted.
i) For the purpose of this Section, costs shall include fines which would be assessed if
extension(s) of time were not granted by Contract Change Order.
j) The requirements of this audits and records section are in addition to other audit, inspection
and record keeping provisions elsewhere in the Contract documents.
k) Changes involving aggregate increases and decreases in excess of $100,000.00 shall be subject
to the following:
x A change involves aggregate increases and decreases in excess of $100,000.00 if the total
value of Work affected, without regard to any increases or decreases, exceeds this
amount; for example, a Change Order adding Work in the amount of $75,000.00 and
deleting Work in the amount of $50,000.00 will be considered to involve aggregate
increases and decreases of $125,000.00. x The Contractor shall submit in support of all items not based upon unit prices or lump
sum prices contained in the Contract or upon the established prices at which commercial
items are sold in substantial quantities to the public, statements by his vendors that the
prices charged the Contractor are not greater than the prices charged by the respective
vendors to their most favored customers for the same items in similar quantities. x Price reductions for defective cost or pricing data--price adjustments: If any price,
including profit and fee, negotiated in connection with any price adjustment was
increased by any significant sums because:
(1) The Contractor furnished cost or pricing data which were not complete, accurate, and
current as certified in the contractor's certificate of current cost or pricing data; or
(2) Adjustments or any subcontract provisions therein required, furnished costs or pricing
data which were not complete, accurate, and current as certified in the
Subcontractor's certificate of current cost or pricing data; or
(3) The Subcontractor or his prospective subcontractor furnished cost or pricing data
which were required to be complete, accurate, and current and to be submitted to
support a subcontract cost estimate furnished by the Contractor but which were not
complete, accurate and current; or
(4) The Contractor or a Subcontractor or his prospective subcontractor furnished any
data, which were not complete, accurate, and current as submitted;
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(5) Then the price shall be reduced accordingly and the Contract shall be modified in
writing accordingly to reflect such reduction. Any reduction in the Contract price
due to defective subcontract data of prospective subcontractor, when the subcontract
was not subsequentlyawarded to such subcontractor, will be limited to the amount
(plus applicable overhead and profit markup) by which the actual subcontract, was
less than the prospective subcontract cost estimate submitted by the Contractor,
provided the actual subcontract price was not affected by defective cost or pricing
data; or
(6) The Contractor shall require Subcontractors to certify to the best of their knowledge
and belief that the cost and pricing data submitted are accurate, complete, and
current as of the date of execution, which date shall be as close as possible to the date
of agreement on the negotiatedprice of the Contract Change Order.
l) In case a satisfactory adjustment in price cannot be reached for any item requiring a
Supplemental Agreement, the Owner reserves the right to terminate the Contract as to said
item as it applies to the terms in question and make such arrangements as may be deemed
necessary to complete the Work. Should any of the changes, not requiring Supplemental
Agreements, be made as provided herein, the Contractor shall perform the Work as altered,
increased or decreased at the Contract unit price or prices.
6.1.6 Claims for Concealed or Unknown Conditions - If conditions are encountered at the site which are
(1) subsurface or otherwise concealed physical conditions which differ materially from those
indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature,
which differ materially from those ordinarily found to exist and generally recognized as inherent
in construction activities of the character provided for in the Contract Documents, then notice by
the observing party shall be given to the other party promptly before conditions are disturbed and
in no event later than seven (7) days after first observance of the conditions. Site conditions which
an experienced and prudent contractor could have anticipated by visiting the site, familiarizing
himself with the local conditions under which the work is to be performed and correlating his
observations with the requirements of the Contract Documents shall not be considered as claims
for concealed or unknown conditions, nor shall the locations of utilities which differ from locations
provided by the utility companies. The Project Engineer, or Project Manager, will promptly
investigate such conditions and, if they differ materially and cause an increase or decrease in the
Contractor’s cost of, or the required time for, performance of any part of the Work, will
recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Project
Engineer, or Project Manager, determines that the conditions at the site are not materially
different from those indicated in the Contract Documents and that no change in the terms of the
Contract is justified, the Project Engineer, or Project Manager, shall so notify the Owner and
Contractor in writing, stating the reasons. Claims by either party in opposition to such
determination must be made within twenty-one (21) days after the Project Engineer, or Project
Manager, has given notice of the decision. If the Owner and Contractor cannot agree on an
adjustment in the Contract Sum or Contract Time, the adjustment shall be subject to further
proceedings pursuant to Section 1.3.8 and Section 1.3.10. Such sections shall apply to claims by
either party, notwithstanding language in said sections that they apply only to claims brought by
the Contractor.
6.1.7 Specific Provisions for Delay-Based Contractor Change Requests - If the Contractor Change Request
is based in whole or in part on a delay of any kind or nature, the complete itemized proposal shall
include the following information in addition to all other required information:
a) The date, nature, and circumstances of each event regarded as a cause of the delay;
b) The names of all individuals acting on behalf of the Owner who are known or believed by the
Contractor to have direct knowledge of the delay;
c) If the Contractor claims acceleration costs of scheduled performance or delivery, the basis
upon which acceleration arose;
d) The identification of any documents and the substance of any oral communications known to
the Contractor which substantiate, refute, or concern such delay;
e) A Critical Path Method (CPM) schedule corrected to reflect actual performance, showing delay
impacts as separate tasks and Contractor’s mitigation of such impacts; and
f) The specific elements of Contract performance for which the Contractor may seek an
equitable adjustment, including:
1) Identification of each Contract or schedule line item that has been or may be affected by
such delay;
2) To the extent practicable, identification of the delay and disruption in the manner and
sequence of performance, and the effect on continued performance, that have been or
35
may be caused by such delay;
3) Identification of labor, materials, or both, or other cost items including overhead and
Subcontractor costs, that have been or may be added, deleted, or wasted by such delay;
4) A statement that the Contractor is maintaining records by some generally accepted
accounting procedure that allows the separately identifiable direct costs due to the delay,
and those not incurred as a result of the delay, to be readily identified and segregated;
5) Estimates of the necessary adjustments to Contract Price, Contract Time and any other
Contract provisions affected by the delay.
6.1.8 Determination by Project Engineer, or Project Manager.
a) The Project Engineer, or Project Manager, shall respond in writing to any timely Contractor
Change Request within ten (10) days of receipt of the complete and itemized proposal in
support of the request. Failure of the Project Engineer, or Project Manager, to respond within
such time period shall be deemed a denial of the Contractor Change Request unless the
Project Engineer, or Project Manager, notifies the Contractor that additional time is necessary
to review the Contractor Change Request.
b) If a Contractor Change Request is denied by the Project Engineer, or Project Manager, in whole
or in part, any claim for an increase in the Contract Price or Contract Time arising out of the
act or event described in the Contractor Change Request is waived unless the Contractor
timely submits a protest or dispute in accordance with these General Conditions.
6.2 ADJUSTMENT TO CONTRACT PRICE
6.2.1 Contract Price Adjustments - All adjustments to the Contract Price shall be determined by using
one or more of the following methods in descending order:
a) Unit Prices (as stated in the Contract Documents or subsequently agreed upon) multiplied by
final verified quantities of work performed and subject to the requirements of paragraph 10.7
below.
b) A negotiated lump sum. If requested by the Owner, the Contractor shall promptly provide
itemized and sufficient substantiating data, including calculations, measurements, cost
records, production rates, equipment types and capacity, labor costs by craft and other
information that the Owner may reasonably require the Contractor to produce in order to
permit the Owner to evaluate any lump sum Contractor Change Request. In pricing such Bids,
the Contractor shall include estimates of the type of costs described in this article.
c) Costs as determined in a manner previously agreed upon by the Parties, which include
markups that do not exceed those described in this article.
d) Time and Material costs as determined in the manner described in this article. These amounts
may be reduced where necessary to take into account the cost of base Work, Work included
in approved Change Orders, Work described in other Field Orders, idle time for workers and/or
equipment when Work could have been performed in other locations or when the number of
workers or amount of equipment provided exceeded the number or amount required to
perform the Work, unsatisfactory Work, or Work that may be or was performed concurrently
with the changed Work and which cannot be easily segregated from the changed Work.
6.2.2 Calculation of the Contract Adjustment - In no event shall the charge or credit to the Owner
associated with any change exceed the sum of the following:
a) Direct Labor. The actual net, direct increase or decrease in the cost of the Contractor’s labor.
Such cost shall include only the cost associated with the workers who actually perform the
changed Work. The cost of supervision, management and field or office overhead shall not be
included or calculated as a direct labor cost. For shop work, the direct labor cost shall include
only those workers who work directly on the item being manufactured or the actual operators
of the equipment being used to handle the items being manufactured.
b) Labor Burden. Contractor’s actual costs for worker’s compensation and liability insurance,
payroll taxes, social security and employees’ fringe benefits (including employer paid health
insurance) imposed on the basis of payrolls, and any other benefits provided to employees
(including under any applicable collective bargaining agreement). This burden must reflect the
variability of some burdens, i.e., social security. The burden shall be itemized and include all
small tools and miscellaneous supplies. The total labor burden for such small tools shall not
exceed two percent (2%) of the Direct Labor cost.
c) Direct Material, Supplies, Installed Equipment. The actual net, direct cost of materials, supplies
and equipment incorporated into or consumed by the Work. If actual costs are not available,
this cost shall be the lowest commercially available price including all discounts, rebates,
shipping and restocking charges, and applicable taxes. Such cost shall be based on buying the
36
material, supplies and equipment in the largest practical quantity to receive quantity
discounts.
d) Equipment Costs. Without markup or operator, the lesser of (i) the actual net cost to the
Contractor of owned or rented equipment, other than small tools; or (ii) the rental rate for
such equipment as determined by using the following method(s):
x Equipment rental rates listed in the appropriate rental rate book currently in use by CDOT.
If an item of equipment does not appear in the rental rate book currently in use by CDOT,
the rental rates published by the Associated Equipment Dealers may be used as a basis
for negotiating a rental rate for a particular piece of equipment. The Contractor shall
provide all information necessary to determine the appropriate rental rate at the time the
equipment is brought on the job. x Rental equipment costs shall be determined using actual invoiced rates, less all discounts
for basic equipment rental. x Mobilization/demobilization costs will be paid if the equipment is mobilized for Work
described in a Change Order and is not otherwise to be mobilized or demobilized for the
Work at the time. If the equipment is also used on Base Contract Work, no mobilization
or demobilization cost will be paid. Mobilization/demobilization costs will be based on
using the least expensive means to mobilize or demobilize. Equipment shall be obtained
from the nearest available source. When the least expensive methods are used, the costs
shown in the actual invoice will be the basis for pricing.
e) Mark Up for Overhead and Profit. The Contractor or Subcontractor of any tier who actually
performs the Work shall be entitled to a reasonable markup of no more than ten percent
(10%) on the actual costs for Direct Labor, Labor Burden, Direct Material, Supplies, Installed
Equipment, and Equipment Costs, as described in this article. Bonds and insurance are
compensated at direct cost without markup.
f) Bonds, Insurance, Permits and Taxes. The actual increases or decreases in the cost of
premiums for bonds and insurance, permit fees, and sales, use or similar taxes related to the
Work.
6.2.3 Totals as Equitable Adjustment - The Contractor agrees that the total of the above items constitute
an equitable adjustment for any and all costs or damages resulting from a change.
6.2.4 No Equitable Adjustment for Obstruction by Contractor - No equitable adjustment shall be made
as a result of costs resulting from any act, hindrance, obstacle, obstruction, interference, or
omission of the Contractor, its Subcontractors, Suppliers, or Surety, or any other entity or
individual acting on behalf of the Contractor, or any Subcontractor, Supplier, or Surety.
6.2.5 Calculation of Certain Equitable Adjustments - in case of delay in completion of the entire Contract
due to drawings, designs or specifications that are defective and for which the Owner is
responsible, the equitable adjustment for delays or costs incurred prior to notification to the
Owner of such defect shall only include the extra cost and time reasonably incurred by the
Contractor in attempting to comply with the defective drawings, designs or specifications before
the Contractor identified, or reasonably should have identified, such defect.
An equitable adjustment shall not include increased costs for delay resulting from the Contractor’s
failure to continue performance during determination of any Contractor Change Request or claim.
6.2.6 Price Reductions for Defective Cost or Pricing Data - If it is later determined that pricing
adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the
Contractor or any Subcontractor or Supplier or that lower prices were reasonably available, the
price shall be reduced accordingly and the Contract Price modified by an appropriate Change
Order.
6.2.7 Variations in Estimated Quantities - The Contractor shall understand that the quantities set forth
on the Statement of Work, the Proposal or other Contract documents are only approximate and
that during the progress of the work, the Owner may find it advisable and shall have the right to
omit portions of the work and to increase or decrease the quantities and reserves the right to add
to or take from any items as may be deemed necessary or desirable. Under no circumstances or
conditions will the Contractor be paid anything on account of anticipated profits upon the work or
any portion thereof covered by the Contract which is not actually performed.
Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and where
the actual quantity of such pay item varies more than 25% below the estimated quantity stated in
the Contract, the Contractor shall make an equitable adjustment in the Contract Price, upon
37
demand of the Owner. The Contract Price adjustment will be based upon any decrease in costs
due solely to the variation below 75% of the estimated quantity.
Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and the actual
quantity of such pay item is more than 25% above the estimated quantity in the Contract, the
Owner may elect to terminate the Contract for convenience or issue a Change Order to adjust the
Contract Price. The Contract Price adjustment will be based upon any increase in costs due solely
to the variation above 125% of the estimated quantity.
If the quantity variation is such as to cause an increase in the time necessary for completing the
Work, the Contractor may request, in writing, an extension of time in accordance with these
General Conditions.
6.2.8 Disposition of Excess or Obsolete Property - When the cost of materials, supplies, equipment or
other personal property made obsolete or excess as a result of a delay is included in the equitable
adjustment, the Project Engineer, or Project Manager, shall have the right to prescribe the manner
of disposition of such property.
6.3 OMITTED ITEMS: The Project Engineer, or Project Manager, may, in writing, order omitted from the Work
any item other than Major Items, which are found by the Project Engineer, or Project Manager, or Owner to be
unnecessary to the Project and such omission shall not be a waiver of any condition of the Contract nor invalidate
any of the provisions thereof. Major Items may be omitted by Supplemental Agreements. The Contractor will be
paid for all Work done toward the completion of the item prior to such omission as provided in Section 7-5.
6.4 WORK NOT SPECIFIED BUT INCLUDED: Any work not specifically set forth in the Plans and Specifications
but which may be fairly implied as included in the opinion of the Project Engineer, or Project Manager, shall be done
by the Contractor without extra charge.
6.5 EXTRA WORK--FORCE ACCOUNT: When Work is necessary for the proper completion of the Project for
which no quantities or prices were given in the Proposal or Contract, the same shall be called Extra Work and shall
be performed by the Contractor when so directed in writing by the Project Engineer, or Project Manager. Extra Work
shall be performed by the Contractor in accordance with these Specifications in a skillful and workmanlike manner
and as may be directed by the Project Engineer, or Project Manager. Prices for Extra Work shall be itemized and
covered by a Supplemental Agreement in accordance with paragraph 3.6 above. Any supplemental agreement must
be approved by the Owner prior to the actual starting of such Work. Should the parties be unable to agree on unit
prices for the Extra Work or if this method of pricing is impractical, the Project Engineer, or Project Manager, may
instruct the Contractor to proceed with the Work by day labor or Force Account as hereinafter provided in Section
7-6. Claims for Extra Work not authorized in writing by the Project Engineer, or Project Manager, prior to the Work
being done will be rejected and shall not be compensated for.
Extra Work shall not include materials, labor or equipment which is incidental or appurtenant to the Work indicated
on the Drawings and in the Specifications. Such Work shall be completed and paid for as part of the Work to which
it is appurtenant.
6.6 UNAUTHORIZED WORK: Work performed beyond the lines and grades shown on the Contract Drawings,
approved Work and Shop Drawings and Extra Work done without written authorization will be considered
unauthorized Work and the Contractor will receive no compensation therefore. If required by the Owner,
unauthorized Work shall be remedied, removed or replaced by the Contractor at Contractor's expense. Upon failure
of the Contractor to remedy, remove or replace unauthorized Work, the Owner may take action as provided in
Section 2.9 Inspection.
Article 7. SUBCONTRACTORS, SUPPLIERS AND PERSONNEL
7.1 SUBCONTRACTORS: The Contractor may use the services of specialty Subcontractors on those parts of the
Work which, under normal contracting practices, are performed by specialty Subcontractors.
7.1.1 No Subcontracting - The Contractor shall not sublet or subcontract any portion of the Work to be
done under the Contract to any Subcontractor or Supplier not identified in the Proposal until approval of
such action has been obtained from the Owner. The Owner may disapprove of a Subcontractor for any
reason deemed appropriate by the Project Engineer, or Project Manager, including without limitation:
a) Default on a contract within the last five (5) years;
b) Default on a contract that required that a surety complete the contract under payment or
performance bonds issued by the surety;
c) Debarment within the last five (5) years by a public entity or any organization that has formal
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debarment proceedings;
d) Significant or repeated violations of Federal Safety Regulations (OSHA);
e) Failure to have the specific qualifications listed in the Contract Documents for the work that
the Subcontractor will perform;
f) Failure to have the required Owner or Colorado licenses to perform the work described in the
subcontract;
g) Failure to pay workers the proper wage and benefits or to pay suppliers or subcontractors with
reasonable promptness within the last five (5) years;
h) Conviction, plea of nolo contendere, entry into a formal agreement admitting guilt or entry of
a plea of guilty or otherwise admitting culpability to criminal offenses of bribery, kickbacks,
collusive proposing, bid-rigging, anti-trust, fraud, undue influence, theft, racketeering,
extortion or any offense of a similar nature in connection with Subcontractor’s business, on
the part of Subcontractor’s principal owners, officers, or employees, within the last five (5)
years;
i) Failure to pay taxes or fees;
j) Evidence that the Subcontractor was selected by the Contractor through the process of
Proposal shopping, dishonesty or buyout.
7.1.2 Rejection of Subcontractor - Rejection or acceptance of any Subcontractor shall not create in that
Subcontractor a right to any subcontract or the right to perform any portion of the Work, nor shall
acceptance or rejection relieve the Contractor of its responsibilities for the work of any Subcontractor.
7.1.3 Contractor Supervision - The Contractor shall also supervise, direct and be responsible for all work
performed by its Subcontractors, their agents and employees and other persons performing any of the
Work under a contract with the Contractor, Subcontractors of any tier, or Suppliers of any tier. The
Contractor is fully responsible to the Owner for the acts and omissions of its Subcontractors, and of persons
either directly or indirectly employed by them.
7.1.4 Contractor Obligations - The action or omission of any Subcontractor in violation of this Contract
or any subcontract will not relieve the Contractor from any obligation under this Contract or at law.
7.1.5 Contractual Relationship - Nothing contained in the Contract or any exercise of rights under this
Contract creates any contractual relationship or privity of contract tween any Subcontractor and the Owner.
7.1.6 Binding to Terms of Contract - The Contractor shall put appropriate provisions (including the
indemnity and insurance provisions) in all Subcontracts relative to the Work to bind Subcontractors to the
terms of the Contract insofar as applicable to the work of Subcontractors (even if not specifically required
here), and to give the Contractor the same power to terminate any Subcontractor that the Owner may
exercise over the Contractor.
7.1.7 Guarantees - The Contractor shall specifically stipulate in all Subcontractor or Supplier contracts
and purchase order forms for all materials and systems that the guarantee period begins with the date of
Substantial Completion. The Contractor shall, during the course of the Work, specifically instruct
Subcontractors and Suppliers that all written guarantees, that are due to be submitted to the Owner, shall
indicate the initiation of the guarantee period as being the date of Substantial Completion.
7.1.8 Availability of Contract Documents - The Contractor shall make available to each proposed
Subcontractor, before the execution of the subcontract, complete and accurate copies of the Contract
Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor,
identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be
at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions
of such documents available to their respective proposed Subcontractors.
7.2 WORKFORCE: The Contractor shall assign an adequate number of qualified, competent workers to each
task to complete the Work on schedule and in accordance with the Contract Documents.
7.2.1 Corrective Action Plan - If the Owner believes that the Work is not proceeding satisfactorily or may
not be satisfactorily completed by the Completion Date, the Project Engineer, or Project Manager, may, by
letter to the Contractor, require the Contractor to submit a corrective action plan identifying steps to be
taken, at no additional cost to the Owner, to raise the rate of progress to an acceptable level.
7.2.2 Competent Personnel - Competent personnel with experience and skills adequate for the assigned
tasks are an absolute necessity for job safety and for the performance of quality work. The Contractor and
any Subcontractor shall employ only foremen and workers skilled in the Work requiring special
qualifications. The Contractor shall reassign or remove from the Project all personnel who are requested to
be reassigned or removed by the Project Engineer, or Project Manager, or who are incompetent,
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uncooperative, refuse to comply with safety requirements, or are otherwise unfit to perform the assigned
task. No increase in Contract Time or Contract Price is authorized as a result of the Owner’s exercise of this
section.
7.3 ILLEGAL ALIENS AS LABORERS: The Contractor shall not knowingly employ or contract with an illegal alien
to perform work under this contract nor enter into a contract with a subcontractor that fails to certify to the contractor
that thesubcontractor shall not knowinglyemploy or contract with an illegal alien to perform work under this contract.
7.3.1 Confirmation of Eligibility - The Contractor shall confirm or attempt to confirm the employment
eligibility of all employees who are newly hired for employment in the United States through participation
in the E-Verify Program. If the Contractor is not accepted into the E-Verify Program prior to executing this
contract for services, the Contractor shall apply to participate in the E-Verify Program every three months
until the contractor is accepted or this contract has been completed, whichever occurs first. This paragraph
shall not be effective if the E-Verify Program is discontinued.
7.3.2 Certification - The Contractor certifies that, as of the Effective Date, it does not knowingly employ
or contract with an illegal alien who will perform work under this Contract and that the Contractor will
participate in the E-verify Program or Department Program as defined in C.R.S. § 8-17.5-37 in order to
confirm the eligibility of all employees who are newly hired to perform work under this Contract.
7.3.3 Notification of Owner and Subcontractor - If the Contractor obtains actual knowledge that a
Subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien,
the Contractor will:
x Notify the Subcontractor and the Owner within three (3) days that the Contractor has actual
knowledge that the subcontractor is employing or contracting with an illegal alien; and x Terminate the subcontract with the Subcontractor if within three (3) days of receiving the
notice required pursuant to this subparagraph d the Subcontractor does not stop employing
or contracting with the illegal alien; provided, however, that the Contractor will not terminate
the contract with the Subcontractor if during such three (3) days the Subcontractor provides
information to establish that the Subcontractor has not knowingly employed or contracted
with an illegal alien.
7.3.4 Complying With Investigation - The contractor must comply with any reasonable request by the
Colorado Department of Labor and Employment made in the course of an investigation that the department
is undertaking pursuant to C.R.S. 8-17.5-102(2).
7.3.5 Violation. If the Contractor violates this Section, the Owner may terminate this Contract for breach
of contract and the Contractor will be liable for actual and consequential damages to the Owner.
7.3.6 Verification of Lawful Presence (C.R.S. § 24-76.5-103).
(a) If the Contractor is a natural person, including a sole proprietor with or without employees
(i.e., not a corporation, limited liability company, partnership or similar entity), and is 18 years
of age or older, the Contractor must: (a) complete an affidavit containing the information
required by C.R.S. § 24-76.5-103(4)(b); and (b) attach a photocopy of the front and back of a
valid form of identification as required by C.R.S. § 24-76.5-103(4)(a).
(b) If the Contractor executes the affidavit stating that he/she is an alien lawfully present in the
United States, the Owner will verify his/her lawful presence through the federal systematic
alien verification or entitlement program, known as the “SAVE Program,” operated by the U.S.
Department of Homeland Security (“DHS”) or a successor program designated by DHS. If the
Owner determines through the verification process that the Contractor is an alien not lawfully
present in the United States, the Owner will terminate this Agreement without further
obligation to Contractor.
7.4 PERSONNEL & CIVIL RIGHTS
7.4.1 Colorado Labor (C.R.S. § 8-17-101) - At least eighty percent (80%) of each type or class of labor
employed by the Contractor and any Subcontractors to perform the Work shall be persons who, at time of
employment, are residents of the State of Colorado, without discrimination as to race, color, creed, gender
or sex, age, religion, national origin, veteran’s status or religion, except when minimum age is a bona fide
occupational qualification. The Project Engineer, or Project Manager, if requested in writing by the
Contractor and approved by the Project Engineer, or Project Manager, in writing, may waive this
requirement in accordance with C.R.S. § 8-17-101.
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7.4.2 Anti-Discrimination - While engaged in the performance of the Work, Contractor shall maintain
employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through §
24-34-804, as amended. The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex or national origin. The Contractor will take affirmative
action to ensure applicants are employed, and employees are treated during employment without regard
to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the
following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
7.4.3 Civil Rights - In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s
Executive Order dated July 6, 1972, Contractor, for itself and its assignees and successors in interest, agree
as follows:
(a) When applicable, the Contractor shall comply with the Regulations of the Department of
Transportation relative to nondiscrimination in Federally assisted programs of the Department
of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the
“Regulations”), which are herein incorporated by reference and made a part of this Contract.
Contractor shall not participate either directly or indirectly in discrimination prohibited by
Section 21.5 of the Regulations including employment practices when the Contract covers a
program set forth in Appendix “C” of the Regulations.
(b) The Contractor, with regard to the Work performed by it after award and prior to completion
of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age,
religion, veteran status, national origin or ancestry in the selection and retention of
Subcontractors, including procurements of materials and leases of equipment.
(c) In all solicitations either by competitive Bid or negotiation made by Contractor for work to be
performed under a subcontract, including procurements of materials or equipment, each
potential Subcontractor or Supplier shall be notified by Contractor of Contractor’s obligations
under this Contract and the regulations related to nondiscrimination on the grounds of race,
creed, color, gender or sex, age, religion, veteran status, national origin or ancestry.
(d) The Contractor shall take all affirmative actions necessary and appropriate to implement, not
only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the
Constitution and the laws of the State of Colorado and as construed by the courts to prevent
discrimination because of race, creed, color, gender or sex, age, religion, handicap, veterans
status, national origin or ancestry.
(e) The Contractor shall include the provisions of these subsections 1 through 5 in every
subcontract, including procurements of materials and leases of equipment, unless exempt by
the Regulations, orders or instructions issued pursuant thereto. The Contractor shall take such
action with respect to any subcontract or procurement as the Owner may direct as a means
of enforcing such provisions; provided, however, that in the event the Contractor becomes
involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such
direction, the Contractor may request the Owner to enter into such litigation to protect the
interest(s) of the Owner.
7.4.4 Americans with Disabilities Act - The Owner makes every attempt to comply with the Americans
with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the
Project Engineer, or Project Manager, any requests or complaints based upon the Americans with
Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled,
or as someone with whom they associate as disabled, and who require a special accommodation.
Article 8. INSPECTIONS; CORRECTIONS OF DEFECTS
8.1 DEFECTIVE WORK AND MATERIALS: Material and workmanship not conforming to the requirements of the
Contract are deemed defective. The Contractor shall bear all costs of investigating and correcting such defective
Work and materials, which includes design efforts necessary to correct such Work.
8.1.1 Determination of Defects - Whether or not the Work is defective will be determined by comparing
it to the Contract Drawings, Specifications, accepted Shop Drawings and manufacturer’s literature and
further measuring it against the standard of quality implied by the Contractor’s warranty. Also, should the
appearance and performance of any element of the Work fail to conform to standards of the trade for such
Work, that Work may be declared defective.
8.1.2 Repair and Removal of Defects - Defects discovered by any inspection process or testing, or
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otherwise made apparent during the Work, shall be repaired, removed, or replaced by the Contractor, at
no cost to the Owner, as identified. The Owner shall have the right to charge the Contractor for its costs of
re-inspecting the Work after the defective Work is corrected and any costs of verifying or determining the
existence of latent defects
8.1.3 Failure to Repair or Remove Defects - If the Contractor fails to replace rejected materials or Work
within ten (10) days after receipt of written notice, the Owner may replace or correct them and charge the
cost to the Contractor and may terminate the right of the Contractor to proceed.
8.1.4 Failure to Detect Defects - Failure to detect previously installed defective materials or
workmanship shall not impair the Owner’s right to receive the completed Work, which is free of defects
and meets all of the requirements of the Contract Documents. Nothing in this section shall limit the Owner’s
right to seek recovery for latent defects that are not observable until after any warranty or guaranty periods
have run.
8.2 SUBSTITUTED PERFORMANCE: If the Contractor’s failure of exact performance does not appear to the
Owner to be deliberate or willful and if the Owner concludes that less than exact performance in some minor part
of the Work will not result in a decrease in quality in the entire Work, the Owner may, at its sole option, accept
substituted performance.
Should the Owner accept substituted performance, the cost of the Work shall be reduced by the sum of money that
the Owner determines to be a reasonable consideration for less than exact performance and the Owner may, at its
discretion, require separate warranties for any substituted performance.
8.3 AUTHORITY AND DUTIES OF INSPECTORS: All Work shall be subject to inspection and testing by the Project
Engineer, or Project Manager, Owner or their agent at all reasonable times and at all places prior to acceptance.
Inspectors, employed by the Owner, are authorized to inspect all Work done and all material furnished. Such
inspection may extend to all of any part of the Work and to the preparation, fabrication, or manufacture of the
materials to be used. The Inspector is not authorized to revoke, alter, or waive any requirements of the Plans and
Specifications. The Inspector is authorized to call to the attention of the Contractor any failure of the Work or
materials to conform to the Specifications and Contract Documents.
8.3.1 Inspector Authority - The Inspector shall have the authority to reject materials or suspend the Work
until any question at issue can be referred to and decided by the Project Engineer, or Project Manager. If
the Contractor refuses to suspend operations on verbal order, the Inspector shall issue a written order
giving the reason for shutting down the Work. After placing the order in the hands of the manager in charge,
the Inspector shall immediately leave the job. Work done during the absence of the Inspector will not be
accepted nor paid for.
8.3.2 Contractor Obligations - Inspections by the Project Engineer, or Project Manager, or the Owner, or
any of their representatives, or others shall not relieve the Contractor from his obligations to perform the
Work in accordance with the requirements of the Contract Documents and to also inspect his own Work.
8.3.3 Limitations of Inspector - The Inspector shall in no case act as foreman or perform other duties for
the Contractor nor interfere with the management of the Work by the latter. Any advice which the Inspector
may give the Contractor shall in no way be construed as binding to the Project Engineer, or Project Manager,
in any way, or releasing the Contractor from fulfilling any of the terms of the Contract.
8.4 INSPECTION: Drawings and specifications defining the Work were prepared on the basis of interpretation
by design professionals of information derived from investigations of the Work site. Such information and data are
subject to sampling errors, and the interpretation of the information and data depends to a degree on the judgment
of the design professional. Information about the degree of difficulty of the Work to be done cannot totally be
derived from either the Drawings or Specifications or from the Project Engineer, or Project Manager. The Contractor
shall not be entitled to an adjustment to the Contract Time or Contract Price for any condition that was or would
have been evident at the time of a pre-Proposal site inspection. By executing the Contract, the Contractor represents
that they have visited the site if and to the extent it believed necessary, familiarized itself with the location and
conditions under which the Work is to be performed, and correlated its observations with the requirements of the
Contract Documents.
8.4.1 Duties of Contractor - Contractor shall promptly, before such conditions are further disturbed,
notify the Project Engineer, or Project Manager, in writing of:
• Subsurface or latent physical conditions at the Work site differing materially from those indicated
in the Contract; or
• Unknown physical conditions at the Work site, of an unusual nature, differing materially from
those ordinarily encountered and generally recognized as inherent in work of the character
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provided for in the Contract.
8.4.2 Duties of the Owner - Upon receipt of written notification from the Contractor of alleged differing
site conditions, the Owner shall promptly investigate the conditions. If the Owner finds that the conditions
materially differ and could not have been discovered, or reasonably inferred, from the Contract Documents
or a thorough inspection of the Work site by the Contractor, and such conditions cause an increase or
decrease in the Contractor’s cost of or the time required for performance of any related part of the Work
under the Contract, an adjustment to the Contract Time or Contract Price, or both, may be made through
a Change Order.
8.4.3 All Work Subject to Inspection - Until final payment, all parts of the work may be subject to
inspection and testing by Owner or its designated representatives. Contractor may furnish, at its own
expense, all reasonable access, assistance, and facilities required by Owner for such inspection and testing.
The Contractor may furnish the Project Engineer, or Project Manager, with every reasonable facility for
ascertaining whether or not the Work performed and materials used are in accordance with the
requirements and intent of the Specifications and Contract. In the event of night Work, the Contractor may
furnish proper lighting to adequately perform and inspect the Work being performed. If the Project
Engineer, or Project Manager, requests it, the Contractor may, at any time before acceptance of the Work,
remove or uncover such portion of the finished Work as may be directed. After examination, the Contractor
may restore said portions of the Work to the standard required by the Specifications. Should the Work thus
exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the coverage or
making good of the parts removed, may be paid for as Extra Work; but should the Work so exposed or
examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making
good of the parts removed, shall be at the Contractor's expense. Any Work done or materials used by the
Contractor without suitable supervision or inspection by the Project Engineer, or Project Manager, or his
authorized representative may be ordered removed and replaced at the Contractor's expense.
8.4.4 Prompt Remedy - If Contractor does not promptly replace rejected material or correct rejected
workmanship the Owner may: (a) by separate Contract or otherwise, replace such material or correct such
workmanship and charge the cost thereof to the Contractor, or (b) terminate the Contractor's right to
proceed in accordance with this Agreement pursuant to Section 6.9. Such inspection and test is for the sole
benefit of Owner and may not relieve Contractor of the responsibility of providing quality control measures
to assure that the Work strictly complies with the Contract. No inspection or test by the Owner, Project
Engineer, or Project Manager, or their agent may be construed as constituting or implying acceptance.
Inspection or test may not relieve Contractor of responsibility for damage to or loss of the material prior to
acceptance, nor in any way affect the continuing rights of the Owner after acceptance of the completed
Work.
8.4.5 Work Outside Normal Work Day - Any Work outside the normal five (5) day, forty (40) hour week
may require the Project Engineer, or Project Manager, or Inspector on the job. All inspection so required
shall be done at the Contractor's expense and the cost thereof may be deducted from the final payment.
Overtime inspection may be done by the Owner at the Contractor's expense at $50.00 per hour. The
payment by the Contractor of overtime inspection fees may not relieve the Contractor from the liquidated
damages provisions as specified in Section 6-8 herein.
8.4.6 Change Order - If the Contractor has not fully complied with the notice and submittal requirements
of this section or any part of the General Conditions pertaining to Change Orders, with particular attention
to not disturbing the site prior to allowing the Owner to investigate the conditions, the Contractor shall be
deemed to have waived its right to assert a claim for differing site conditions.
8.4.7 No Claim After Final Payment - No claim will be allowed under this section if Final Payment has
been made.
8.5 REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK: All Work which has been rejected or condemned
by Owner or Project Engineer, or Project Manager, shall be repaired, or if it cannot be satisfactorily repaired, be
removed and replaced at the Contractor's expense. Work done without lines and grades having been given, Work
done beyond the lines and grades shown on the Plans, or as given, except as herein provided, Work done without giving
timelynotice to the Project Engineer, or Project Manager, so the Project Engineer, or Project Manager, may, if he/she
wishes, be present to observe theWork in progress, or anyExtraor unclassified Work done without written authority and
prior Agreement in writing as to prices,will be done at the Contractor's risk and will be considered unauthorized and at
the option of the Project Engineer, or Project Manager, may not be measured and paid for and may be ordered
removed and replaced at the Contractor's expense.
Upon the failure of the Contractor to satisfactorily repair or to remove and replace, if so directed, rejected,
unauthorized, or condemned Work immediately after receiving formal notice from the Project Engineer, or Project
Manager, the Owner may, at its sole option, recover for such defective Work on the Contractor's bond or by action
43
in a court having proper jurisdiction over such matters, or may employ labor and equipment and satisfactorily repair or
remove and replace such Work and charge the cost of the same to the Contractor, which cost will be deducted from
any money due him/her.
8.6 GEOTECHNICAL AND OTHER DESIGN PROFESSIONAL REPORTS, INVESTIGATIONS & TESTS: The Contractor
acknowledges that certain soils reports, borings, and other geotechnical data, more particularly described or
referenced in the Specifications of the Contract, have been made available for inspection and review. The borings
were made for the use of the Owner in the design of the Project and are not intended to be interpreted for use in
temporary construction facilities designed by the Contractor.
The Owner in no way warrants the accuracy or reliability of said borings and other geotechnical data or of the data,
information or interpretations contained in said soils reports, and is not responsible for any deduction,
interpretation, or conclusion drawn therefrom by the Contractor. Said soil reports may contain interpretations by
design professionals of borings and geotechnical data obtained at the Work site. Such borings and geotechnical data
are subject to sampling errors, and any interpretations or conclusions based on such borings and data depend to a
degree on the judgment of the design professionals.
The Contractor agrees that it will make no claims against the Owner if, in performing the Work, it finds that the
actual conditions encountered do not conform to those indicated by said soil reports, borings and other geotechnical
data, or those reasonably inferred therefrom or reasonably discoverable by a thorough inspection of the site by the
Contractor.
Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT
9.1 PROTECTION OF PERSONS: The Contractor is responsible for the health and safety of all persons on or at
the Work site and shall take all necessary and reasonable precautions and actions to protect all such persons from
injury, death, or loss.
9.1.1 Safety Working Conditions - The Contractor and any Subcontractor shall not require any laborer,
mechanic or other person employed in performance of the Work to work in surroundings or under working
conditions which are unsanitary, hazardous or dangerous to health or safety. The Contractor and all
Subcontractors shall comply with all applicable safety rules and regulations adopted by the United States
Department of Labor Occupational Safety and Health Administration (OSHA), the Industrial Commission of
the State of Colorado or the City of Englewood, whichever is most restrictive. The Owner assumes no duty
to ensure that the Contractor follows the safety regulations issued by OSHA or the State of Colorado.
9.1.2 Protective Devices and Precautions - The Contractor shall provide all necessary protective devices
and safety precautions. Such devices and precautions may include but are not limited to: posting of danger
signs and warnings against hazards such as, but not limited to, hoists, well holes, elevator hatchways,
scaffolding, openings, stairways, trip and fall hazards and falling materials; placement of warning flares;
equipment back-up alarms; installation of barricades; promulgation and application of safety regulations
and employment of safety personnel and guards. Signs will not be considered to be an adequate substitute
for physical protective barriers. The costs of all protective devices and the planning and implementing of
safety precautions are considered to be included in the Unit Prices, even if not specified.
If, in the opinion of the Project Engineer, or Project Manager, the Contractor has not supplied necessary
and adequate barricades, warnings, or other safety devices, then the Owner may order additional devices
and deduct the cost from the Contractor's payment. By taking such action, the Owner assumes no liability
for the adequacy of such barricades, warnings or other safety devices.
9.1.3 Underground Work - For operations involving trenching, excavation or any other underground
construction, the Contractor’s attention is specifically directed to and its work shall conform to the latest
revision of the Construction Safety and Health Regulations, Part P Subparagraph 1926.6013-6016 by OSHA,
as amended.
9.1.4 Protection of the Public - The Contractor and all Subcontractors shall always, whether or not so
specifically directed by the Project Engineer, or Project Manager, take necessary precautions to ensure the
protection of the public. The Contractor shall furnish, erect, and maintain at its own expense all necessary
precautions for the protection of the Work and safety of the public through and around its construction
operations.
9.1.5 Subcontractor - The Contractor shall make the provisions of this section a condition of each
contract with any Subcontractor.
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9.2 PROTECTION OF PROPERTY: The Contractor shall continuously take all reasonable precautions to protect
from damage, injury or loss, all or any part of the Work and all or any part of materials or equipment to be
incorporated in the Work, whether in storage on or off the Work site, under the care, custody, control of the
Contractor or any Subcontractor or Supplier. The Contractor shall repair or replace at its expense any such damage,
injury or loss, except such as may be directly due to error in the Contract or caused by agents or employees of the
Owner.
The Contractor shall provide and maintain at its expense all passageways, barricades, guard fences, lights, and other
protection facilities required by any regulatory agency or public authority or local conditions.
The Contractor is responsible for protection of all public and private property on and adjacent to any site of the
Work. The Contractor shall use every precaution necessary to prevent damage to curbs, sidewalks, driveways, trees,
shrubs, sod, mailboxes, fences, and other private and public improvements. The Contractor shall protect carefully
from disturbance or damage all land monuments and property markers until an authorized agent has witnessed or
otherwise referenced their locations, and shall not remove them until directed.
9.3 PROTECTION OF HISTORICAL SITES: When the Contractor’s operations encounter remains of prehistoric
peoples, dwelling sites or artifacts of historical, archeological, or paleo-logical significance, the Contractor shall
temporarily discontinue such operations and immediately advise the Project Engineer, or Project Manager. The
Project Engineer, or Project Manager, will contact archeological authorities to determine the disposition of the items
in question. When directed, the Contractor shall excavate the site in such a manner as to preserve the artifacts
encountered and remove them for delivery to the custody of the proper authorities. Such excavation is considered,
and paid for, as extra Work.
9.4 RESPONSIBILITY TO REPAIR: When any direct or indirect damage or injury is done to any public or private
property or utility by or on account of any act, omission, neglect or misconduct in the execution of the Work, the
Contractor shall restore the damaged property at its own expense to a condition equal to or better than that existing
before such damage or injury.
If any existing property is damaged in the Work as a result of Contractor’s non-performance, the Contractor shall
immediately notify the property owner. The Contractor shall not attempt to make repairs unless authorized in
writing by the property owner or directed by the Project Engineer, or Project Manager. Written authorization from
the owner to make repairs must be so worded as to save the Owner harmless from any responsibility whatsoever
relative to the sufficiency of the repairs. The Contractor shall give the Project Engineer, or Project Manager, a copy
of the written authorization to make repairs.
The Contractor shall replace any materials and equipment lost, stolen, damaged or otherwise rendered useless
during the performance of Work on the Project.
At the Contractor’s cost, the Owner may undertake any such repair or replacement required by this section when
the Contractor fails to do so within a reasonable time. The Owner may deduct any such cost from any payment due
the Contract or may recover such costs from the Contractor or the Surety.
9.5 TRAFFIC CONTROL: Unless the Contract specifically provides for the closing to traffic of any local road or
highway while construction is in progress, such road or highway shall be kept open to all traffic by the Contractor.
The Contractor shall also provide and maintain in a safe condition temporary approaches, crossings or intersections
with roads and highways. The Contractor shall bear all expense of maintaining traffic over the section of road
affected by the Work to be done under this Contract, and of constructing and maintaining such approaches,
crossings, intersections and any accessory features without direct compensation, except as otherwise provided.
The Contractor shall arrange Work to disrupt traffic as little as possible. All traffic Control Devices used shall conform
to the latest edition of the Manual of Uniform Traffic Control Devices (MUTCD). Except as otherwise permitted, two
way traffic shall be maintained at all times in public roadways. The Contractor shall provide, erect and maintain all
necessary barricades, signs, danger signals and lights for the protection of the Work and the safety of the public. All
barricades, signs and obstructions erected by the Contractor shall be illuminated at night and all devices for this purpose
shall be kept illuminated from sunset to sunrise.
The Contractor shall be held responsible for all damage to the Work due to failure of barricades, signs, lights and
watchman to protect it, and whenever evidence of such damage is found prior to acceptance, the Project Engineer,
or Project Manager, mayorder the damaged portion immediatelyremoved and replaced by the Contractor without cost
to the Owner if, in the opinion of the Project Engineer, or Project Manager, such action is justified. The Contractor's
responsibility for the maintenance of barricades, signs and lights shall not cease until the Project has been accepted.
9.5.1 Closure of Street or Alley - No street or alley shall be closed to the public by the Contractor except
as authorized by the City Traffic Engineer and in accordance with procedures outlined herein. Whenever, in
the prosecution of the work, the Contractor finds it necessary to close a street to traffic, he/she shall
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advise the Police and Fire Departments forty-eight (48) hours in advance of the time when the street will
require closing. The forty-eight (48) hour notice will be required in all cases involving the normal prosecution
of the work and convenience of the Contractor. Twenty-four (24) hours prior to commencement of work,
the Contractor shall furnish and install approved “No Parking” signs, giving day of the week; i.e. “No Parking
in this block on Thursday.” At time of posting verbal notice of intent shall be given to occupants of premises
involved. In cases of emergency, involving conditions over which the Contractor has no control, the street
may be closed. In these cases, the Contractor is required to immediately notify the Police and Fire
Departments and the City Traffic Engineer.
9.5.2 Detours - Wherever streets or alleys are closed as provide herein, it will be the sole responsibility
of the Contractor to adequately mark and light the detours as determined by the Contractor and the City
Traffic Engineer after consultation with the Police and Fire Departments, City Traffic Engineer, and in
accordance with standard details indicated on plans for this project. The Contractor, at its cost, shall furnish
and maintain all necessary signs, barricades, lights, and flaggers necessary to control traffic and provide for
safety of the public, all in compliance with the MUTCD with subsequent revisions and additions, and to the
satisfaction of the Public Works Director. No constructions signs shall be placed on sidewalks unless
construction is actually taking place on the sidewalk. During evening hours and when not in use, all signs
shall be turned away from traffic and moved at least eight (8) feet away from the edge of the nearest
traveled way.
9.5.3 Permission for Detours - Wherever detours are required over areas other than on established City
streets, it shall be the responsibility of the Contractor to secure all necessary permission from the property
owners involved, prior to establishing such detours. Traffic shall not be routed over such detour until it has
been bladed and shaped in such a way as to provide a reasonably safe and convenient roadway to the
traveling public. Full provision shall be made to the Contractor for minimizing inconvenience from dust.
9.5.4 Safe and Convenient Roadway - Where traffic is maintained along the street or alley under
construction, particular care shall be used to shape and maintain the roadbed so that a safe and convenient
roadway is available to the traveling public. Ramps from undisturbed streets into excavated areas shall be
maintained for traffic on gradual grades and in no case shall a ramp be steeper than a 6:1 slope. The
Contractor shall make full provisions for minimizing inconvenience from dust. Marking and lighting the
route shall be in accordance with standard details indicated on the plans for the district. During periods
when actual construction is not in progress, streets shall be properly maintained and dust control measures
shall be employed.
9.5.5 Traffic Control Plan - At least seven (7) days before starting any Work in the City right-of-way, the
Contractor shall submit a detailed traffic control plan for review by the City of Englewood Public Works
Department, with a copy to the Police Department. The approval shall establish the requirements for
closures related to the number of lanes and time of day lanes or streets may be closed in accordance with
the MUTCD and other applicable criteria or regulations. The Traffic Control Plan (TC Plan) shall include the
name of the Contractor, the name and phone number of the person responsible for the traffic control, the
date for beginning and ending construction activity and hours of operation expected. The TC Plan should
show the widths of streets involved, traffic lanes, the size and location of the Work area with distances from
the curb, distance to the nearest intersection, detours, parking areas, access to private property, and the
type and location of traffic control devices. No changes to the TC Plan shall be permitted without prior,
written approval by the Public Works Director.
The Contractor shall create its Traffic Control plans in concurrence with any Traffic Control requirements
that may be specifically stated in the Special Conditions.
9.5.6 Need for Police Officer - Whenever a police officer is necessary for traffic control, the Contractor
shall hire and pay a uniformed off-duty police officer with authority in the City to direct traffic. The police
department will determine the rate of pay for the officers.
9.5.7 Incidents - The Owner may impose a price reduction charge for any recurrence of an incident under
the TC Plan, after notification by the Project Engineer, or Project Manager, according to the following
schedule. The price reduction charge will not be considered a penalty, but will be a price reduction for
failure to perform traffic control in compliance with the Contract. For purposes of this section, an “incident”
is any violation of the TC Plan lasting up to thirty (30) minutes; each successive or cumulative 30-minute
period in violation of the TC Plan will be deemed a separate incident, as determined by the Project Engineer,
or Project Manager.
Incident Price Reduction Charge
First None – Notice from Project Engineer, or Project Manager
Second $150.00
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Third $300.00
Fourth $600.00
Subsequent $1,200.00
9.6 PROTECTION OF STREET SIGNS, TRAFFIC SIGNS and SIGNALS: Street signs, traffic signs, signals and other
traffic control devices erected by the City for information and to safeguard traffic must be protected by the
Contractor. Where it is necessary to disturb or remove any of these items, the Contractor shall secure approval of
the Traffic Engineer prior to any such work, this approval to be based on concurrence and requirements from the
Traffic Engineer.
9.7 UTILITIES: The Contractor's attention is directed to the importance of protecting all public utilities
encountered on all projects. Such utilities may include, but are not limited to: telephone, telegraph and power lines,
water lines, sewer lines, gas lines, railroad tracks, and other overhead and underground utilities, cable television
lines and facilities. Before any excavation is begun in the vicinity of water lines, railroad tracks or structures, sewer
lines, cable television lines, gas lines or telephone conduits, each utility company concerned must be notified in
advance of such excavation, and such excavation shall not be made until an authorized representative of the utility
company concerned is on the ground and has designated the location of their facilities.
The Contractor shall support, and protect from injury, until completion of the Work any existing power lines,
telephone lines, water mains, gas mains, sewers, storm sewers, cables, conduits, ditches, curbs, walks, pavements,
driveways, and other structures in the vicinity of the Work that are not authorized to be removed.
9.7.1 Utility Coordination - The Contractor shall schedule and coordinate all Work with any utilities. The
Contractor shall cooperate with utility owners (including electrical, gas, communication, water, sewer and
railroad) to mitigate damage (including relocation or removal) whenever the Contractor’s work affects their
utilities. The Contractor shall seek to expedite the progress of such work and minimize duplication of work
and disruption of services.
9.7.2 Minimize Disruption - The Contractor shall conduct its operations in such a manner as to minimize
the inconvenience to the public due to disconnected utilities. The Contractor shall not disconnect any utility
without prior approval of the affected utility and the Project Engineer, or Project Manager. Such utility shall
then not be disconnected before 9:00 A.M. and service shall be restored by 4:00 P.M. of the same day. If
the Contractor’s operations require or cause utility service to be disconnected beyond the time limits stated
above, the Contractor shall make arrangements suitable to the Project Engineer, or Project Manager, to
provide temporary utility service. Such temporary service shall be at Contractor’s expense. The Contractor
shall notify all affected properties regarding any utility disconnection, forty-eight (48) hours prior to the
disconnection.
9.7.3 Delays - The Owner will not be responsible or liable for any delay or other impact to the Work
caused by the acts or omissions of any utility or related agency.
9.8 COORDINATION WITH ENGLEWOOD UTILITIES: The Contractor shall always coordinate its Work with the
South Platte Water Renewal Partners (SPWRP) and the Englewood Utilities Department (EUD). If it becomes
necessary to close portions of any water or sewer system due to construction operations, the Contractor will provide
at least seventy-two (72) hours prior notice to SPWRP and EUD. SPWRP and EUD shall have authority to dictate
requirements of the closure. It is the Contractor’s responsibility to ensure continuity of the utilities.
9.9 NOTIFICATION OF AFFECTED UTILITY AND PROPERTY OWNERS: The Contractor shall not excavate without
first notifying all owners, operators, or association of owners and operators having underground facilities in the area
of such excavation. Notice may be given in person, by telephone or in writing. Notice to an association is notice to
each member of the association.
The Contractor shall contact the Utility Notification Center of Colorado before the start of any excavating. The
Contractor shall give such notice of the commencement, extent, and duration of the excavation work at least forty-
eight (48) hours before beginning Work affecting the area.
If the Project affects fences, landscaping, mailboxes, driveways or other improvements, the Contractor shall notify
the affected property owners or occupants IN WRITING at least forty-eight (48) hours before beginning Work. The
Contractor shall cooperate with the owners or occupants to reduce inconvenience where reasonably possible.
9.10 POLLUTION CONTROL: The Contractor shall comply with all applicable Federal, State and City ordinances,
laws, orders, and regulations concerning the control, prevention, and abatement of water pollution and air pollution
in all operations pertaining to the Contract whether on right-of-way provided by the City or elsewhere. (See Article
17, below).
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9.10.1 Pollution Prevention - The Contractor shall use construction methods that prevent release,
entrance or accidental spillage of solid matter, contaminants, debris, and other objectionable pollutants
and wastes including, but not restricted to refuse, garbage, cement, concrete, sewage effluent, industrial
waste, radioactive substances, oil and other petroleum products, aggregate processing tailings, mineral
salts, and thermal pollution. Non-regulated solid wastes shall be disposed of by methods approved under
applicable laws and regulations, including, the Resource Conservation and Recovery Act (RCRA), Subtitle D,
as administered by Colorado and local Health Departments and the EPA.
9.10.2 Contaminated and Hazardous Materials - Contaminated and hazardous materials are regulated by
RCRA, Subtitles C and D. The Contractor shall notify the Colorado Department of Public Health and
Environment, local health departments, and local fire departments, and the Owner if suspect materials are
encountered.
9.10.3 Prevention of Atmospheric Discharges - The Contractor shall utilize methods and devices that are
reasonably available to control, prevent, and otherwise minimize atmospheric emissions or discharges of
air contaminants including dust in its construction activities and operation of equipment.
9.10.4 Prevention of Dust Emission - The Contractor shall not emit dust into the atmosphere during any
operations, including but not limited to: grading; excavating; manufacturing, handling or storing of
aggregates; trenching; or cement or pozzolans. The Contractor shall use the necessary methods and
equipment to collect, deposit, and prevent dust from its operations from damaging crops, orchards, fields
or dwellings or causing a nuisance to persons. The Contractor is liable for any damage resulting from dust.
9.10.5 Excessive Exhaust Gases - The Contractor may not operate equipment and vehicles with excessive
emission of exhaust gases due to improper mechanical adjustments, or other inefficient operating
conditions, until repairs or adjustments are made.
9.10.6 Burning - Burning trash, rubbish, trees, brush or other combustible construction materials is not
permitted unless the Contractor has obtained a valid burning permit issued by the Tri-County District Health
Department or successor agency, and the local fire department. Any such burning shall be conducted in
accordance with permit requirements.
9.10.7 De-Watering - De-watering for structure foundations or earthwork operations adjacent to or
encroaching on lakes, streams or watercourses shall be done in a manner which prevents muddy water and
eroded materials from entering the lakes, streams or watercourses, by construction of intercepting ditches,
bypass channels, barriers, settling ponds or by other approved means. Excavated materials may not be
deposited or stored in or alongside lakes or watercourses where they can be washed away by high water
or storm runoff.
9.10.8 Wastewater Runoff - The Contractor will not allow wastewater from aggregate processing,
concrete batching or other construction operations to enter lakes, streams, watercourses or other surface
waters without turbidity control methods such as settling ponds, gravel-filter entrapment dikes, approved
flocculation processes that are not harmful to fish, recirculation systems for washing of aggregates or other
approved methods. Any wastewaters discharged into surface waters shall conform to applicable discharge
standards of any agency having jurisdiction over the discharge, including the Colorado Department of Public
Health and Environment and any federal agency.
9.11 PUBLIC CONVENIENCE AND SAFETY: The Contractor shall fully comply with all applicable Federal, State and
local laws governing safety. He shall provide all safeguards, safety devices and protective equipment and take any
other needed actions on his own responsibility reasonably necessary to protect the life and health of employees on
the job and the safety of the public and to protect property in connection with the performance of the Work.
Materials stored upon the site shall be so placed and the Work shall, at all times, be so conducted as to cause no
greater obstruction to traffic than is considered necessary by the Project Engineer, or Project Manager.
The Contractor shall give to the Project Engineer, or Project Manager, full information in advance as to his plans for
carrying out any part of the work. If at any time before the beginning or during the progress of the work, any part of
the Contractor’s plant or equipment or any of his methods of executing the work appear to the Project Engineer, or
Project Manager, to be unsafe, inefficient, or inadequate to insure the required quality, rate of progress or safety of
the work, he may order the Contractor to increase or improve his facilities or methods, and the Contractor shall
promptly comply with such orders; but neither compliance with such orders nor failure of the Project Engineer, or
Project Manager, to issue such orders shall relieve the Contractor from his obligation to secure the degree of safety,
the quality or work, and the rate of progress required by this Contract. The approval by the Project Engineer, or
Project Manager, of any plan or method of work proposed by the Contractor shall not be considered as an
assumption by the City, or any officer, agent or employee thereof, of a risk or liability, and the Contractor shall have
no claim under this Contract for the failure or inefficiency of any plan or method so approved. Such approval shall
be considered and shall mean that the Project Engineer, or Project Manager, has no objection to the Contractor’s
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use or adoption, at his own risk and responsibility, of the plan or method so proposed by the Contractor.
9.12 USE OF EXPLOSIVES: When the use of explosives is necessary for the prosecution of the Work, the Contractor
shall use the utmost care so as not to endanger life or property, and whenever directed by the Project Engineer, or
Project Manager, the number and size of the charges shall be reduced. The Contractor shall notify the proper
representatives of any public services corporation, the Owner, any company, or any individual at least ten (10) working
days in advance of any blasting which may damage his or their property on, along, or adjacent to the site. The
Contractor shall comply with the requirements of Title 9, Article 7 of the Colorado Revised Statutes, as amended, titled
"Explosive Permits". The Contractor shall also be required, at a minimum, to notifythe Denver Fire Department and the
Englewood Police Department, the City and the surrounding properties.
All explosives shall be stored in a secure manner and all storage places shall be marked clearly "DANGEROUS
EXPLOSIVES," and shall be in care of competent watchmen at all times.
9.13 RESTORATION OF PROPERTY: The Contractor shall not enter upon private property for any purpose without
first obtaining permission, and he shall be responsible for the preservation of all public and private property, sod, trees,
fences, monuments, underground structures, etc., on and adjacent to the site and shall use every precaution
necessary to prevent damage or injury thereto. He shall protect carefully, from disturbance or damage, all land
monuments and property markers until an authorized agent has witnessed or otherwise referenced their location, and
shall not remove them until directed.
9.13.1 Responsibility for Damage - Contractor shall be responsible for all damage or injury to public or
private property of any character resulting from any act, omission, neglect or misconduct in his manner, or
method of executing said Work, or due to his non- execution of said Work, or at any time due to defective
Work or materials, and said responsibility shall not be released until the Work shall have been completed
and accepted.
9.13.2 Property Restoration - When or where any direct or indirect damage or injury is done to public or
private property by or on account of any act, omission, neglect or misconduct in the execution of the Work,
or in consequence of the non-execution thereof on the part of the Contractor, he shall restore, at his own
expense, such property to a condition similar or equal to that existing before such damage or injury was
done by repairing, rebuilding, or otherwise restoring, as may be directed, or he shall make good such
damage or injury in an acceptable manner. In case of the failure on the part of the Contractor to restore
such property or to have started action to make good such damage or injury, the Owner may upon forty-
eight (48) hours of notice, proceed to repair, rebuild or otherwise restore such property as may be deemed
necessary and the cost thereof will be deducted from any moneys due or which may become due the
Contractor under the Contract or prosecuted as a claim against the Contractor's Surety Bond.
9.13.3 Insurance - The cost of insurance for damages due to Contractor's operation or cost of protecting
utilities where required to permit construction under this Contract shall be included in the original Contract
prices for the Project.
Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS
10.1 COMPLIANCE WITH LAWS, LICENSES AND PERMITS: The Contractor, shall at all times, observe and comply
with all Federal, State and local laws, codes, ordinances, and regulations, which pertain to and affect the conduct of
the Work, and the Contractor and his Surety shall indemnify and save harmless the Owner and all its officers, agents,
employees, or any of their heirs, successors or assigns against any claim, judgment, demand, costs, liability or expenses,
including, but not limited to, attorney's fees and costs of suit arising from or based on the violation of any such law,
ordinance, regulations, order, or decree, whether such claim, judgment, demand, costs, liability or expenses arises
from actions by himself, his employees, or agents or subcontractors..
10.1.1 Adherence to City Policies - The Contractor and its employees, agents and Subcontractors, while
performing the Work or while on City property for any reason during the Term, shall adhere to the City’s
policies applicable to City employees regarding drugs, alcohol and workplace violence.
10.1.2 Licenses and Permits - The Contractor will obtain, at its cost, all licenses and permits required to
do the Work by the City, county, state, federal, or other applicable law or regulation. Any costs incurred for
these permits and licenses must be included in the unit costs set forth in the Proposal for the Work. A
Subcontractor shall also have the proper permits applicable to the Work to be performed by the
Subcontractor.
10.1.3 Contract Law - This Contract shall be governed by, construed and enforced under the laws of the
State of Colorado, excluding statutes related to conflict of laws between different jurisdictions.
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10.1.4 Contractor Liability - Nothing contained herein shall be deemed to create liability for the contractor
for any design defects not managed by the Contractor.
10.1.5 Colorado State Statute: If this project is for a public works project or public project, as defined in Section
8-49-102(2) C.R.S. the contractor shall comply with 8-17-101 C.R.S. which requires the contractor to use at least
eighty percent (80%) Colorado labor for any public works project financed in a whole or in part by State, counties,
school districts, or municipal monies.
Article 11. BONDS
11.1 BONDS: The Contractor shall, within the time specified in the Request for Bids, and before the
commencement of any Work, provide the Owner with a separate:
a) Performance bond in an amount equal to 100% of the amount of the Contract Price as a guarantee of
the Contractor’s faithful performance and completion of all undertakings, covenants, terms,
conditions, warranties, and agreements of the Contract; and
b) Payment bond in an amount equal to 100% of the amount of the Contract Price, which bond shall
conform to the requirements of C.R.S. § 38-26-101, et seq., as amended, as a guarantee of the
Contractor’s prompt payment to all persons supplying labor and materials in the prosecution of the
Work provided by the Contract.
11.1.1 The Contractor shall use the Bond forms included with the Request for Bids. Other forms may be
used if approved by the City Attorney before the submission of the Proposal.
11.1.2 The Contractor bears the expense of all Bonds.
11.1.3 The Contractor shall secure an increase in the bonds in an amount equal to the cost of any
additional work authorized pursuant to a duly executed Change Order or Contract Amendment that
increases the Contract Price by ten percent (10%) or more, unless waived in writing by the Project Engineer,
or Project Manager.
11.1.4 The Contractor and a Surety shall execute the Bonds. The Surety shall be corporate bonding
company acceptable to the Owner, licensed to transact such business in the State of Colorado, and listed in
the U.S. Department of the Treasury Circular 570 in effect on the date of the Request for Bids. Evidence of
authority of an attorney-in-fact acting for the Surety shall be provided in the form of a certificate as to its
power of attorney and to the effect that it is not terminated and remains in full force and effect on the rate
of the Bonds.
11.1.5 If at any time a Surety on any Bond becomes irresponsible, is disqualified from doing business in
the State of Colorado, or becomes insolvent or otherwise impaired, the Contractor shall furnish Bond(s)
from an alternate Surety acceptable to the Owner.
11.1.6 The Bonds shall remain in effect until Final Acceptance.
Article 12. WARRANTY
12.1 SCOPE OF WARRANTY: Contractor shall guarantee and warranty that the work and all of its components
shall remain in good order and repair, be free from defects and flaws in design, workmanship, and materials; shall
strictlyconform to the requirements of this contract; and shall be fit, sufficient and suitable for the purposes expressed
in, or reasonably inferred from, this contract, for a period of two (2) years from all causes arising from defective
workmanship and materials, and to make all repairs arising from said causes during such period without further
compensation. The warranty herein expressed shall be in addition to any other warranties expressed or implied by
law, which are hereby reserved unto Owner. In all emergencies the Contractor shall immediately remedy, repair, or
replace, without cost to the Owner and to the entire satisfaction of the Owner, defects, damages or imperfections due
to faulty materials or workmanship appearing in said Work within said period of not less than one year. Remedied
Work shall carry the same warranty as the original Work starting with the date of acceptance of the replacement or
repair. Payment to the Contractor will not relieve him of any obligation underthis Contract.
12.1.1 Damage Remedies - The Contractor, at no additional expense to the Owner, shall also remedy
damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or
defect in the Work, and restore any Work damaged in fulfilling the requirements of the Contract. Should the
Contractor fail to remedy any such failure or defect within a reasonable time after receipt of notice thereof,
the Owner will have the right to replace, repair, or otherwise remedy such failure or defect at the
Contractor's expense. The determination of the necessity for the repair or replacement of said project, and
associated incidentals or any portion thereof, shall rest entirely with the Director of Public Works whose
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decision upon the matter shall be final and obligatory upon the Contractor.
12.1.2 Subcontractors, Manufacturers and Suppliers - Subcontractors', manufacturers', and suppliers'
warranties and guarantees, expressed or implied, respecting any part of the Work and any material used
therein shall be deemed obtained and shall be enforced by the Contractor for the benefit of the Owner
without the necessity of separate transfer or assignment thereof.
12.1.3 Waiver - The rights and remedies of the Owner provided in this Section are in addition to and do not
limit any rights and remedies afforded by the Contract or by law. The Contractor specifically waives all the
provisions of Chapter 8 of Article 20 of Title 13, Colorado Revised Statutes regardingdefects in the Work under
the Contract.
12.2 OWNER'S RIGHT TO CORRECT: If, within five (5) business days after Owner gives Contractor notice of any
defect, damage, flaw, unsuitability, nonconformity, or failure to meet a warranty subject to correction by Contractor
pursuant to Section 3.1 or Section 3.2 of this contract, or the Contractor neglects to make, or undertake with due
diligence to make, the necessary corrections, then Owner shall be entitled to make, either with its own forces or
with contract forces, the corrections and to recover from Contractor all resulting costs, expenses, losses, or damages,
including attorneys' fees and administrative expenses.
12.3 NONEMERGENCY WARRANTY WORK: In cases of warranty work which is not an emergency, all necessary
repairs shall be made within a reasonable time not to exceed twenty (20) days after notice of the required repair is
received by the contractor. For those items of warranty work which cannot be completed within said twenty (20) day
period, the parties shall negotiate a reasonable period of time.
12.4 PERFORMANCE DURING WARRANTY PERIOD: The Project Engineer, or Project Manager, will notify the
Contractor of defective Work that is found to be defective and fails to satisfy the warranties and guarantees
described in this article, or elsewhere in the Contract Documents, and the Contractor shall, within ten (10) days or
such longer time as may be requested and set forth in the notice, commence the repair, replacement, or correction
of the defective Work. If the Contractor fails to complete such Work within a reasonable period, the Owner may
make the repairs or replacements at the expense of the Contractor. If the Owner determines that immediate action
to make repairs, replacements or other corrections is necessary because of emergency conditions or to prevent
further loss or damage, the Owner may proceed without notice to the Contractor, but at the expense of the
Contractor.
12.4.1 Failure to Correct - If the Contractor does not proceed with the correction of such defective Work
within the time fixed by written notice from the Project Engineer, or Project Manager, or if an emergency
condition exists, the Owner may remove and store any defective materials or equipment at the expense of
the Contractor. If the Contractor does not pay the cost of the removal and storage within ten (10) days
thereafter, the Owner may, upon ten (10) additional days’ written notice, sell the stored Work at auction.
If the proceeds of sale do not cover all costs that the Owner has incurred and which the Contractor should
have borne, the difference shall be charged to the Contractor and the Contractor and its surety shall be
liable for and pay such difference to the Owner.
12.4.2 Disputes - If the Contractor does not agree that the Work is defective or the defective Work is its
responsibility and if no emergency condition exists, the Contractor may request review, in writing, of the
Project Engineer, or Project Manager’s decision by the Director of Public Works, in accordance with these
General Conditions. If such review is not requested within ten (10) days of the notification of defective
Work, the Contractor shall have waived the right to contest its responsibility for the correction of the
defective Work. Under emergency conditions, the Contractor shall immediately correct the alleged
defective Work, and the question of responsibility for the expense shall be determined by the Project
Engineer, or Project Manager, subject to the right of the Contractor to seek review within ten (10) days of
the Owner’s notice allocating responsibility for the expense.
12.4.3 Extension of Warranty Period - Should the Owner claim by written communication sent or mailed
before the warranty or guarantee period expires that certain defective Work exists and that it requires
repair or replacement, the warranty and guarantee period shall be automatically extended for as long as
the defective Work exists.
Article 13. INSURANCE; RISK OF LOSS
13.1 GENERAL REQUIREMENTS
13.1.1 Insurance Requirement - The Contractor, at its own cost, shall procure and maintain, and shall
cause each Subcontractor to procure and maintain, policies containing the minimum insurance coverage
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listed in this article for the duration of the Work. Such coverage shall be procured and maintained with
forms and insurers acceptable to the Owner. All coverage shall be continuously maintained from the date
of commencement of Work. In the case of any claims-made policy, the necessary retroactive dates and
extended reporting periods shall be procured to maintain such continuous coverage.
The Contractor shall not commence work under this Agreement until it has obtained all insurance required
by the contract documents and such insurance has been approved by Owner. The Contractor shall not allow
any subcontractor to commence work on this project until all similar insurance required of the subcontractor
has been obtained and approved.
13.1.2 No Modification of Liability - The Contractor shall not be relieved of any liability, claims, demands
or other obligations assumed pursuant to the Contract Documents by reason of its failure to procure or
maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts,
durations, or types. The insurance requirements contained in the Contract shall not limit or redefine the
obligations of the Contractor as provided elsewhere in the Contract. The limits of any insurance required
by this Agreement will not limit Contractor’s liability.
13.1.3 Evidence of Coverage - Before commencing Work, the Contractor will provide certificates of
insurance policies and all necessary endorsements evidencing insurance coverage required by the Contract
Documents and identifying the Project. The Owner will not be obligated under the Contract until Contractor
provides acceptable such certificates of insurance and endorsements. If the Term extends beyond the
period of coverage for any required insurance, the Contractor will, at least ten (10) days before the
expiration of any such insurance coverage, provide the Owner with new certificates of insurance and
endorsements evidencing either new or continuing coverage.
13.1.4 Breach - Failure on the part of the Contractor to procure or maintain policies providing the required
coverage, conditions, and minimum limits shall constitute a material breach of contract upon which the
Owner at its discretion may procure or renew any such policy or any extended connection therewith, and
all monies so paid by the Owner shall be repaid by Contractor to the Owner upon demand, or the Owner
may offset the cost of the premiums against any monies due to Contractor from the Owner.
13.2 REQUIRED POLICIES AND LIMITS: The Contractor agrees to procure and maintain, at its own cost, the
following policy or policies of insurance. The Contractor shall not be relieved of any liability, claims, demands, or
other obligations assumed pursuant to the contract documents by reason of its failure to procure or maintain
insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types.
Contractor shall procure and maintain, and shall cause each Subcontractor of the Contractor to procure and maintain
(or shall insure the activity of Contractor's Subcontractors in Contractor's own policy with respect to), the minimum
insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers
acceptable to the Owner. All coverages shall be continuously maintained from the date of commencement of the
Work. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
13.2.1 Workers' Compensation Insurance - This will cover obligations imposed by the Workers' Compensation
Act of Colorado and any other applicable laws for any employee engaged in the performance of Work under this
contract, and Employers' Liability insurance with minimum limits of Five Hundred Thousand Dollars ($500,000)
each accident, Five Hundred Thousand Dollars ($500,000) disease - policy limit, and Five Hundred Thousand
Dollars ($500,000) disease - each employee.
13.2.2 Commercial General Liability Insurance - Comprehensive general liability insurance insuring against
any liability for personal injury, bodily injury or death arising out of the performance of the Work with at
least Three Million Dollars ($3,000,000) each occurrence and Three Million Dollars ($3,000,000) general
aggregate, including the following coverages: broad form property damage; operations premises liability;
personal and advertising injury liability, independent contractors coverage, contractual liability, completed
operations/products liability; coverage for construction, means, and methods; and explosion, collapse, and
underground liability (if the Work requires blasting, explosive conditions, collapse hazards or underground
operations, this coverage shall contain no exclusion relative to property in the care, custody, or control of
the insured).
13.2.3 Products and Completed Operations Insurance - Products and completed operations insurance
insuring against any liability for bodily injury or property damage caused by the completed Work, with a
combined single limit of at least One Million Dollars ($1,000,000) and Two Million Dollars ($2,000,000)
general aggregate.
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13.2.4 Builder’s Risk - Builder's Risk insurance with minimum limits of not less than the insurable value of the
work to be performed under this contract at completion less the value of the materials and equipment insured
under installation floater insurance. The policy shall be written in completed value form and shall protect the
Contractor and the Owner against risks of damage to buildings, structures, and materials and equipment not
otherwise covered under Installation Floater insurance, from the perils of fire and lightning, the perils included
in the standard coverage endorsement, and the perils of vandalism and malicious mischief. Equipment such as
pumps, engine-generators, compressors, motors, switch-gear, transformers, panel boards, control equipment,
and other similar equipment shall be insured under Installation Floater insurance when the aggregate value of
the equipment exceeds $10,000. The policy shall provide for losses to be payable to the Contractor and the
Owner as their interests may appear. The policy shall contain a provision that in the event of payment for any
loss under the coverage provided, the insurance company shall have no rights of recovery against the Contractor
or the Owner.
13.2.5 Comprehensive Automobile Liability Insurance - Comprehensive automobile liability insurance
insuring against any liability for personal injury, bodily injury or death arising out of the use of motor vehicles
and covering operations on or off the site of all motor vehicles controlled by Contractor that are used in
connection with performance of the Work, whether the motor vehicles are owned, non-owned, hired,
leased, or borrowed, with a combined single limit of at least Two Million Dollars ($2,000,000) each
occurrence, Two Million Dollars aggregate and personal injury protection per Colorado law.
13.2.6 Installation Floater – Floater with minimum limits of not less than the insurable value of the work
to be performed under this contract at completion, less the value of the materials and equipment insured
under Builder's Risk insurance. The value shall include the aggregate value of any City furnished equipment
and materials to be erected or installed by the Contractor not otherwise insured under Builder's Risk
insurance. The policy shall protect the Contractor and the Owner from all insurable risks of physical loss or
damage to materials and equipment not otherwise covered under Builder's Risk insurance, while in
warehouses or storage areas, during installation, during testing, and after the work under this contract is
completed. The policy shall be of the "all risks" type, with coverages designed for the circumstances which
may occur in the particular work to be performed under this contract. The policy shall provide for losses to
be payable to the Contractor and the Owner as their interests may appear. The policy shall contain a
provision that in the event of payment for any loss under the coverage provided, the insurance company
shall have no rights of recovery against the Contractor or the Owner.
13.2.7 Other Insurance - Any other insurance required by applicable law.
13.3 TERMS OF INSURANCE
13.3.1 Additional Insured - Except for the workers’ compensation policy, all required insurance policies
shall name the Owner, its officers and employees and any additional person or entity identified by the
Owner as an additional insured and will provide that the Owner or other additional insured, although named
as an additional insured, will nevertheless be entitled to recovery under said policies for any loss occasioned
to the City or its officers, employees or agents or other additional insured by reason of the negligence of
Contractor or its officers, employees, agents, subcontractors or business invitees. The insurance policies will
be for the mutual and joint benefit and protection of the Contractor and the City and other additional
insured, if any. Such policies will be written as primary policies not contributing to and not in excess of
coverages the City or other additional insured may carry.
Every policy required above shall be primary insurance, and any insurance carried by the Owner, its officers,
or its employees, shall be excess and not contributory insurance to that provided by Contractor. The
additional insured endorsement for the Comprehensive General Liability insurance required above shall not
contain any exclusion for bodily injury or property damage arising from completed operations. The
Contractor shall be solely responsible for any deductible losses under each of the policies required above.
13.3.2 Certificates of Insurance - Certificates shall be completed by the Contractor's insurance agent as
evidence that policies providing the required coverages, conditions, and minimum limits are in full force
and effect, and shall be subject to review and approval by the Owner. Each certificate shall identify the
Project. If the words "endeavor to" appear in the portion of the certificate addressing cancellation, those
words shall be stricken from the certificate by the agent(s) completing the certificate. The Owner reserves
the right to request and receive a certified copy of any policy and any endorsement thereto.
13.3.3 Qualification; Deductible - Insurance required by this Section will be with companies qualified to
do business in the State of Colorado and having an AM Best Rating of not less than B+ and/or VII. Insurance
may provide for deductible amounts as the Contractor deems reasonable for the Services, but in no event
greater than Twenty Thousand Dollars ($20,000.00) (unless waived by the Owner), and the Contractor will
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be responsible for the payment of any such deductible.
13.3.4 Cancellation - The coverages afforded under the policies shall not be cancelled, terminated or
materially changed until at least 30 days prior written notice has been given to the Owner. Failure on the
part of the Contractor to procure or maintain policies providing the required coverages, conditions, and
minimum limits shall constitute a material breach of contract upon which the Owner may immediately
terminate the contract, or at its discretion may procure or renew any such policy or any extended reporting
period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the
Owner shall be repaid by Contractor to the Owner upon demand, or the Owner may offset the cost of the
premiums against any monies due to Contractor from the Owner.
13.3.5 Coverage Type - Contractor will identify whether the type of coverage is “occurrence” or “claims
made.” If the type of coverage is “claims made,” which at renewal Contractor changes to “occurrence,” the
Contractor will carry a twelve (12) month tail. The Contractor will not do or permit to be done anything that
will invalidate the policies.
13.3.6 No “Pollution Exclusion.” - The required insurance will cover any and all damages, claims or suits
arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape
of pollutants, and will not exclude from coverage any liability or expense arising out of or related to any
form of pollution, whether intentional or otherwise. If the Contractor is unable to procure a policy of
insurance in compliance with these provisions, the Contractor will secure and maintain either a rider or a
separate policy insuring against liability for pollution related damages, claims or suits, as described in
subsection ii(a), with at least Two Million Dollars ($2,000,000) each occurrence, subject to approval by the
Owner.
13.3.7 The parties hereto understand and agree that the Owner is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities,
and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq., as from
time to time amended, or otherwise available to the Owner, its officers, or its employees.
Article 14. INDEMNIFICATION
14.1 CONTRACTOR TO OWNER: The Contractor shall, only to the extent and for an amount represented by the
degree or percentage of negligence or fault attributable to the Contractor, indemnify, save harmless, and defend
the City, its officers and employees, from and in all suits, actions or claims of any character brought because of: any
injuries or damage received or sustained by any person, persons or property because of operations for the City under
the Contract; the Contractor’s failure to comply with the provisions of the Contract; the Contractor’s neglect of
materials while constructing the Work; because of any act or omission, neglect or misconduct of the Contractor;
because of any claims or amounts recovered from any infringements of patent, trademark, or copyright, unless the
design, device, materials or process involved are specifically required by Contract; from any claims or amount arising
or recovered under the “Workers’ Compensation Act,” by reason of the Contractor’s failure to comply with the act;
pollution or environmental liability; or any failure of the Contractor to comply with any other law, ordinance, order
or decree. Nothing in this article requires the Contractor to defend, indemnify, or hold harmless the City from the
City’s own negligence.
14.1.1 The Contractor will include this article in all Subcontracts.
14.1.2 The City may retain so much of the money due the Contractor under the Contract as the City
considers necessary to offset any damages for which Contractor may be liable under this paragraph. If no
money is due, the Contractor’s Surety may be held until such suits, actions, claims for injuries or damages
have been settled. Money due the Contractor will not be withheld when the Contractor produces
satisfactory evidence that it and the City are adequately protected by public liability and property damage
insurance.
14.1.3 The Contractor will pay the City all expenses incurred to enforce this article. If the insurer of the
Contractor fails to provide or pay for the defense of the City of Englewood, its officers and employees, as
additional insured, the Contractor agrees to pay for the cost of that defense.
14.1.4 This article will survive Final Acceptance and the termination of this Contract.
14.2 OWNER TO CONTRACTOR: The City cannot, under Article XI, Section 1 of the Colorado Constitution, and by
this Agreement/Contract does not agree to indemnify, hold harmless, exonerate or assume the defense of the
Contractor or any other person or entity, for any purpose The Contractor and his Surety shall indemnify and save
harmless the Owner, its officers, agents, employees, successors and assigns from all suits, demands, actions, or
claims of any nature whatsoever brought or made against the Owner, its officers, agents, employees, successors or
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assigns from any injuries or damages sustained by any person, firm or corporation or property or resulting from or
arising out of any neglect in safeguarding the Work, or through the use of unacceptable materials in the construction
of the improvement, or as a result of any act or omission by the said Contractor, or from the use, misuse, storage or
handling of explosives or on account of any claims or amounts recovered for any infringement of patent, trade- mark,
or copyright, or from any claims or amounts arising or recovered under the Workmen's Compensation Laws, or any
other law, by-law, ordinance, order or decree, and so much of the money due the said Contractor under and by
virtue of his Contract, as shall be considered necessary by the Owner, may be retained or, in case no money is due,
his surety shall be held until such suit or suits, action or actions, claim or claims, for injuries or damages as aforesaid,
shall have been settled and satisfactory evidence to that effect furnished to the Owner.
14.3 NO PERSONAL LIABILITY OF THE PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or
Project Manager, is an agent of Owner and the Project Engineer, or Project Manager, his agents, heirs, successors
and assigns shall have no liability to any third party as a result of his performance of under this Contract.
14.4 NO WAIVER OF LEGAL RIGHTS: Inspection by the Project Engineer, or Project Manager, or by any of his duly
authorized representatives, of any order, measurement, or certificate by the Project Engineer, or Project Manager;
of any order by the Owner for the payment of money; of any payment for or acceptance of any Work or any extension
of time; or of any possession taken by the Owner, shall not operate as a waiver of any provision of the Contract, or
any power therein provided. A waiver of any breach or term of the Contract shall not be deemed to be a waiver of
any other or subsequent breach. The Owner reserves the right to correct any error that may be discovered in any
estimate that may have been paid, and to adjust the same to meet the requirements of the Contract and
Specifications. The Owner reserves the right to claim and recover, by process of law, sums as may be sufficient to
correct any error or make good any deficit in the Work resulting from such error, dishonesty, or collusion upon proof
of collusion or dishonesty between the Contractor or his agents and the Project Engineer, or Project Manager, or his
assistants, discovered in the Work after the final payment has been made.
Article 15. DEFAULTS, REMEDIES AND TERMINATION
15.1 NOTICE OF DISPUTES AND OBJECTIONS: If Contractor disputes or objects to any requirement, direction,
instruction, interpretation, determination, or decision of Owner, Contractor may notify Owner in writing of its
dispute or objection and of the amount of any equitable adjustment to the contract price or contract time to which
Contractor claims it will be entitled as a result thereof; provided, however, that Contractor shall, nevertheless,
proceed without delay to perform the work as required, directed, instructed, interpreted, determined, or decided
by Owner, without regard to such dispute or objection. Unless Contractor so notifies Owner within two business
days after receipt of such requirement, direction, instruction, interpretation, determination, or decision, Contractor
shall be conclusively deemed to have waived all such disputes or objections and all claims based thereon.
15.1.1 Notice of Intent - The Contractor shall submit a “Notice of Intent to Claim” for any claim, dispute,
or protest (“Claim”) of any decision or event arising out of or related to this Contract (other than those for
which a specific procedure is set forth elsewhere in these General Conditions) in writing within ten (10) days
of the later of the Contractor’s receipt of the Project Engineer, or Project Manager’s written instruction or
decision (if applicable), deemed denial, or any other event giving rise to the claim, dispute, or other matter
and shall include the basis for the Claim. The Notice of Intent to Claim shall be clearly titled as such, dated
as of the actual date of submission, and numbered sequentially, and shall contain at a minimum:
a) Project title and number;
b) Date of the event giving rise to the claim, dispute, or protest;
c) A description of the Claim and the events giving rise to the Claim, including any original request
and the Project Engineer, or Project Manager’s decision or denial; and
d) The reasons why the Contractor believes additional compensation or time is due or charges were
wrongly assessed;
e) An accounting or estimate of all additional costs associated with the Claim;
f) The Contractor’s plan for mitigating costs or delays associated with the Claim.
15.1.2 Claim - Within twenty (20) days after submitting the Notice of Intent to Claim, the Contractor shall
submit to the Project Engineer, or Project Manager, a complete and itemized Claim that includes any
claimed increase in Contract Time or Contract Price, or both. The Contractor may request an extension of
time to submit the Claim, which extension may be granted by the Project Engineer, or Project Manager,
provided that good cause is shown. The Claim must be described in sufficient detail to allow the Owner to
evaluate the basis of and costs associated with the Claim.
a) A Claim for an increase in Contract Price shall be submitted based on actual costs whenever
possible, rather than an estimate or opinion, shall be supported by invoices, time cards, and other
business records commonly accepted in the industry, and shall comply with the requirements of
these General Conditions concerning changes to the Contract Price.
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b) Any Claim for changes to the Contract Time shall include the information required by these General
Conditions concerning changes to the Contract Time. The Claim shall be accompanied by copies of
all Contract provisions or other documents supporting the Claim and a summary of the legal and
factual theories supporting the Claim. A Claim for time extension must be accompanied by a
revised Construction Schedule reflecting the effects of the delay on the completion of critical
activities and showing actions that the Contractor has taken or proposes to take to minimize the
effects of the delay.
c) The Claim shall also identify any measures the Owner can take to minimize the Claim.
d) The Contractor shall submit with its Claim a notarized certificate, executed under penalties of
perjury, that:
x The Claim is made in good faith;
x All supporting data are accurate and complete to the best of the Contractor’s knowledge and
belief; x The amount requested accurately reflects that Contract adjustment for which the Contractor
believes the City is liable; and x The prices stated for material and equipment are the lowest reasonably available to the
Contractor and include all available discounts.
e) If the Contractor is an individual, the certification shall be executed by that individual; if the
Contractor is not an individual, the certification shall be executed by an officer or general partner
of the Contractor or other person having written authority to sign the Claim.
f) The Contractor shall furnish, upon request, all additional information and data that the Owner
determines is needed to aid in resolving the Claim through negotiation or is required to complete
an evaluation of the Claim. The Contractor shall give the City access to its books, correspondence,
records, electronic files and data bases, and any other materials relating to the Claim, shall require
its Subcontractors and Suppliers to provide the City with such access, and shall make its Personnel
and that of its Subcontractors and Suppliers available to discuss and answer cost, schedule and
other questions relating to the Claim. Clear copies of all necessary supporting records shall be
provided to the City at no cost. Failure to submit requested information may be a basis for denial
of the Claim.
15.2 NEGOTIATION OF DISPUTES: To avoid and settle without litigation any such dispute or objection,
Owner and Contractor agree to engage in good faith negotiations.
15.3 DECISION: The Owner shall investigate, review, and evaluate the Claim and make a determination in
writing within sixty (60) days of receipt of a completed and fully documented claim, unless special
circumstances exist or the Claim is unusually complex, in which case the Contractor will be notified of any longer
review period. If no determination is made within sixty (60) days, or by the end of any announced extended period
of time, the claim is automatically denied.
The Contractor shall proceed diligently with performance of the Contract, pending final resolution of any Claim made
under this article. Failure to proceed with the Work shall be grounds for suspension or termination of the Contract.
If the Contractor agrees with any determination or resolution by the City, such determination or resolution shall be
processed as a Change Order
15.4 WAIVER: Failure to strictly meet any of the requirements of this article in a timely and complete manner
shall constitute a waiver by the Contractor of any and all right to adjustments of Contract Time or Contract Price,
either by administrative review or by any other action at law or equity.
Strict compliance with all provisions of this article shall be a condition precedent to the Contractor’s ability to file
any lawsuit in law or equity, or recover any damages, in connection any Claim.
15.5 CONTRACTOR'S REMEDIES: If Owner fails or refuses to satisfy a final demand made by Contractor
pursuant to Section 9.3 of this contract, or to otherwise resolve the dispute which is the subject of such demand
to the satisfaction of Contractor, within ten days following receipt of such demand, then Contractor shall be
entitled to pursue such remedies, not inconsistent with the provisions of this contract, as it may have in law or
equity.
If the Contractor disagrees with the City’s determination of the Claim, the Parties shall first submit the dispute to
non-binding mediation before seeking any remedy in any other forum. The mediator shall be a trained mediator
having experience related to municipal construction projects. The Parties shall jointly select the mediator from a list
of mediators proposed by the Parties. If the Parties are unable to agree on a mediator, the Parties shall submit three
mediator names each and the mediator shall be selected by random drawing at which the Project Engineer, or
Project Manager, and the Contractor are present. No discussions or statements of the mediator may be admitted
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as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The cost of the
mediator shall be shared equally by the Parties.
Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any Claim.
15.6 OWNER'S REMEDIES: If it should appear at any time prior to final payment that Contractor has failed
or refused to prosecute, or has delayed in the prosecution of, the work with diligence at a rate that assures
completion of the work in full compliance with the requirements of this contract on or before the completion
date, or has attempted to assign this contract or Contractor's rights under this contract, either in whole or in
part, or has falsely made any representation or warranty in this contract, or has otherwise failed, refused, or
delayed to perform or satisfy any other requirement of this contract or has failed to pay its debts as they come
due ("Event of Default"), and has failed to cure any such Event of Default within five business days after
Contractor's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and
without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following
remedies:
a) Owner may require Contractor, within such reasonable time as may be fixed by Owner, to complete
or correct all or any part of the work that is defective, damaged, flawed, unsuitable,
nonconforming, or incomplete; to remove from the work site any such work; to accelerate all or any
part of the work; and to take any or all other action necessary to bring Contractor and the work into
strict compliance with this contract.
b) Owner may perform or have performed all work necessary for the accomplishment of the results
stated in Paragraph a above and withhold or recover from Contractor all the cost and expense,
including attorneys' fees and administrative costs, incurred by Owner in connection therewith.
c) Owner may accept the defective, damaged, flawed, unsuitable, nonconforming, incomplete, or
dilatory Work or part thereof and make an equitable reduction in the contract price.
d) Owner may terminate this contract without liability for further payment of amounts due or to
become due under this contract.
e) Owner may, without terminating this contract, terminate Contractor's rights under this contract
and, for the purpose of completing or correcting the work, evict Contractor and take possession of
all equipment, materials, supplies, tools, appliances, plans, specifications, schedules, manuals,
drawings, and other papers relating to the work, whether at the work site or elsewhere, and either
complete or correct the work with its own forces or contracted forces, all at Contractor's expense.
f) Upon any termination of this contract or of Contractor's rights under this contract, and at Owner's
option exercised in writing, any or all subcontracts and supplier contracts of Contractor shall be
deemed to be assigned to Owner without any further action being required, but Owner shall not
thereby assume any obligation for payments due under such subcontracts and supplier contracts
for any Work provided or performed prior to such assignment.
g) Owner may withhold from any Progress Payment or final payment, whether or not previously
approved, or may recover from Contractor, any and all costs, including attorneys' fees and
administrative expenses, incurred by Owner as the result of any Event of Default or as a result of
actions taken by Owner in response to any Event of Default.
h) Owner may recover any damages suffered by Owner.
15.7 OWNER'S SPECIAL REMEDY FOR DELAY: If the work is not completed by Contractor, in full compliance with,
and as required by or pursuant to, this contract, within the contract time as such time may be extended by a Change
Order, then Owner may invoke its remedies under Section 9.6 of this contract or may, in the exercise of its sole and
absolute discretion, permit Contractor to complete the work but charge to Contractor, and deduct from any Progress
or Final Payments, whether or not previously approved, administrative expenses and costs for each day completion
of the work is delayed beyond the Completion Date, computed on the basis of the "Per Diem Administrative Charge"
set forth in Section 4.8, as well as any additional damages caused by such delay.
15.8 ATTORNEY FEES: In the event there is any dispute between the Contractor or the Surety and the
Owner, its officers, agents or employees, and the Owner, its officers, agents or employees prevail, the Owner,
its officers, agents or employees shall be granted all of its costs, including but not limited to attorney's fees,
court costs and expert witness fees.
Article 16. INDEPENDENT CONTRACTOR
The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this
Contract to have entered into any partnership, joint venture, employer/employee or other relationship with the
Owner other than as a contracting party and independent contractor.
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Article 17. DISPOSAL; HAZARDOUS SUBSTANCES
17.1 REMOVAL AND DISPOSAL OF STRUCTURES AND OBSTRUCTIONS: All structures or obstructions found on
the site and shown on the Plans which are not to remain in place or which are not to be used in the new construction
shall be removed as directed by the Project Engineer, or Project Manager. Unless specified in the Proposal, this Work
will not be paid for separately but will be included in the price Proposal for that portion of the Work requiring the
removal of the obstruction. All material found on the site or removed therefrom shall become the property of the
Contractor unless otherwise indicated. Materials determined by the Project Engineer, or Project Manager, to be
unsuitable for backfill shall be disposed of off the site at the Contractor's expense.
17.2 CLEANING UP AND RESTORATIONS: The Contractor shall clean up and lawfully dispose of all refuse or scrap
materials so the site presents a neat, orderly, and workmanlike appearance at all times. The Contractor shall follow
all direction from the Project Engineer, or Project Manager, as to the appearance of the site at all times.
The Contractor shall remove all mud or other materials tracked or otherwise deposited on any roadway daily or as
directed by the Project Engineer, or Project Manager.
Upon completion of the Work, and before Final Inspection, the Contractor shall remove from the construction site
and any occupied adjoining property all plants, buildings, refuse, unused materials, forming lumber, sanitary
facilities, and any other materials and equipment that belong to the Contractor or any Subcontractors. The
Contractor shall clean and replace any broken or scratched windows, clean and repair all surfaces, and clean and
adjust all units of equipment that are part of the Work. Final Payment will not be made until all cleanup is done to
the Project Engineer, or Project Manager’s, satisfaction.
At the Contractor’s cost, the Owner may clean up and restore the construction site satisfactorily when the Contractor
fails to do so within two (2) days of the Project Engineer, or Project Manager’s, direction. The Owner may deduct
any such cost from any payment due the Contract or may recover such costs from the Contractor or the Surety.
17.3 REMOVAL OF CONDEMNED MATERIALS AND WORK: The Contractor shall remove from the site of work
without delay all rejected and condemned materials and work. Upon failure of the Contractor to remove and
properly dispose of the rejected material or work immediately after receiving formal notice to do so, the Engineer
may have such material or work removed and charge the cost of same to the Contractor.
17.4 PEST & VECTOR CONTROL: The Contractor will be responsible for pest control and vector control at the
Work site until Substantial Completion. All pest and vector control activities shall be conducted in compliance with
applicable laws, including ordinances, statutes and regulations governing the handling, storage and application of
pesticides or other hazardous materials and substances.
17.5 HAZARDOUS SUBSTANCES: “Hazardous Substances” include any substance identified as a hazardous
substance pursuant to any federal, state or local law or regulation regulating substances by reason of threats posed
to public health and safety, including the Comprehensive Environmental Response, Compensation and Liability Act,
the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act of 1986,
the Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act,
the Toxic Substances Control Act, the Safe Drinking Water Act, the Occupational Safety and Health Act, and the
Asbestos Hazard Emergency Response Act, all as amended.
17.6 EXISTING FACILITIES – HAZARDOUS SUBSTANCES MAY EXIST: Contractor acknowledges that most existing
structures owned or operated by Owner may contain asbestos-containing materials, and the Site may also contain
other Hazardous Substances.
17.7 NO INTRODUCTION OF HAZARDOUS SUBSTANCES: Contractor, its contractors, its Subcontractors, its Sub-
subcontractors, its Suppliers, and their respective agents, representatives and employees shall not introduce or
cause the introduction of Hazardous Substances to the Project. Except as provided below as to Ordinary Course
Materials, in the event that Contractor, its contractors, its Subcontractors, its Suppliers, or their respective agents,
representatives and employees introduce or cause the introduction of Hazardous Substances to the Project,
Contractor shall pay for removal of all such substances and shall indemnify Owner and its successors as owners of
the Property for all liability resulting from the introduction of such Hazardous Substances to the Project.
17.8 SUSPECTED HAZARDOUS SUBSTANCES: Contractor acknowledges that other Hazardous Substances may
exist in building materials, soils, or equipment used on the Site. Contractor shall not be primarily responsible to
identify Hazardous Substances existing on the Site; provided that Contractor shall be responsible to comply with all
recommendations and requirements of environmental consultants furnished to Contractor in writing. Except as
provided above and except for Ordinary Course Materials, if Contractor encounters what Contractor reasonably
believes may be Hazardous Substances, Contractor shall immediately stop Work in the area affected and
immediately report the condition to Project Engineer, or Project Manager, and Owner in writing. If, in fact, the
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materials are Hazardous Substances, the Work in the affected area shall not thereafter be resumed, except by
written agreement of Owner and Contractor, until the Hazardous Substances have been removed or rendered safe
by Owner in accordance with all applicable laws at Owner’s expense, and Owner has provided reasonable evidence
thereof to Contractor. The Work in the affected area shall be resumed in the absence of Hazardous Substances,
when any Hazardous Substances have been rendered harmless, or when the conditions in the preceding sentence
have been satisfied. Unless such materials were introduced to the Project by Contractor, Subcontractors, Sub-
subcontractors, Suppliers, or their respective agents, representatives and employees, Owner shall be responsible for
all reasonable costs related to any testing, removal, encapsulation, or remediation of any such substances or
materials, and any additional cost of the Work arising out of any delay in the Work caused thereby. Except as to such
materials introduced to the Project by Contractor, Subcontractors, Sub- subcontractors, Suppliers, or their respective
agents, representatives and employees, any delays arising out of such testing, removal, encapsulation, or
remediation shall be an Owner Delay, but only to the extent that the same causes actual delay in the Work that
satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1; provided, however, that if the
Agreement is a GMGC Agreement, any increases in the Cost of Work (and any associated Construction Fee and
General Conditions fee, if applicable) in connection with any such Owner Delay shall be charged to the Contingency,
and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only to the extent that such amounts
exceed the balance of the Contingency.
17.9 ORDINARY COURSE MATERIALS: Nothing contained herein shall be deemed to preclude Contractor from
using and bringing onto the Property materials and substances (which are otherwise Hazardous Substances) used in
the ordinary course of commercial construction in quantities typically and safely used for such purposes (“Ordinary
Course Materials”). Contractor shall use all Ordinary Course Materials in accordance with all Current Laws and shall
make sure that none of the Ordinary Course Materials are released or otherwise permitted to contaminate the
Property or render the Property contaminated. Contractor shall defend and indemnify Owner against any claim, cost,
loss, or damage resulting from the use of the Ordinary Course Materials in connection with the Project or resulting
from the introduction of Hazardous Substances onto the Property in a manner not specifically permitted hereby. In
the event Contractor recognizes any improper handling or storage of Hazardous Substances on the Site, including
Ordinary Course Materials, or observes circumstances which contractor actually knows may result in the release or
discharge of Hazardous Substances, whether or not by someone for whose acts Contractor is responsible, Contractor
shall immediately notify Owner thereof.
Article 18. ROYALTIES AND PATENTS
18.1 PATENTS AND COPYRIGHTS: The Contractor’s Proposal price shall be considered to include a sufficient sum to
cover all fees, royalties and claims for any material, artist rights, process, patent rights, machine, appliance,
copyright, trademark, or any arrangement that may be used upon or in any manner connected with or appurtenant
to the Work.
The Contractor shall provide a suitable legal agreement giving the Contractor the right to use any design, device,
material, or process covered by letters patent or copyright, in the construction of the Project when the use has not
been specified or required by the Drawings and Specifications. The Contractor shall file a copy of this agreement
with the Owner, if requested. The Contractor and the Surety shall indemnify, defend and save harmless the Owner
from all claims for infringements on patented design, devices, material, process or any trademark or copyright during
the prosecution or after the completion of the Project.
If any design, device, material, process or product of a particular manufacturer covered by letters patent or copyright
is specified for use by the Drawings and Specifications, the Owner is responsible for any claims for infringement by
reason of the use of such design, device, material, process or product of a particular manufacturer; but the
Contractor shall pay any royalties or license fees required.
No reports, graphics or other material produced specifically for the Owner under this Contract shall be the subject
of an application for copyright or trademark by or on behalf of Contractor.
Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS
19.1 DRAWINGS AND SPECIFICATIONS: This Section 2.2 shall be included in all subcontracts hereunder at all
times.
(a) In the Drawings and Specifications, the Owner intends that the Contractor furnish all superintendence,
labor, materials, tools, equipment, supplies, machinery and transportation necessary for the proper
execution of the Work unless specifically noted otherwise. The Contractor shall do all the Work shown
on the Drawings and described in the Specifications and all incidental Work reasonably necessary to
complete the Project in a substantial and acceptable manner, and to complete fully the Work, ready
for use, by the Owner. The Contractor shall complete all Work according to the Specifications and
Drawings.
(b) The Contract Documents are intended to be complementary, and Work called for on any Drawing and
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not mentioned in the Specifications, or Work described in the Specifications and not shown on any
Drawing, is included under the Contract as if set forth in both the Specifications and Drawings.
(c) Material and workmanship specified by the number, symbol, or title of a referenced standard shall
comply with the latest edition or revision thereof and any amendments or supplements thereto in
effect on the date the Proposal is received except where a particular issue or edition of a publication
is indicated. In case of a conflict between the Drawings, Specifications and the referenced standard,
the more stringent shall govern, as determined by the Project Engineer, or Project Manager.
(d) If labor, materials or equipment, although not described by the Drawings or Specifications, is required
to successfully complete the Work and can reasonably be inferred by competent contractors by virtue
of common knowledge or customary practice in the construction industry from the Contract
Documents as being necessary to produce the intended result, the Contractor shall perform that work
or provide the materials or equipment as if they were specified.
(e) Contractor shall carefully study the Contract Documents and, if Contractor identifies any discrepancies
found between the Drawings and Specifications and site conditions and any adjacent work on which
the Work is dependent and any errors or omissions in the Drawings or Specifications, shall promptly
notify the Project Engineer, or Project Manager, of such discrepancies, errors, or omissions in writing,
and any necessary changes shall be accomplished by issuance of an appropriate Change Order or Field
Order. Any Work done by the Contractor after discovery of such discrepancies, errors or omissions
prior to the issuance of a Change Order or Field Order is done at the Contractor's risk. In all cases, the
Project Engineer, or Project Manager, shall decide the intent of the Drawings and Specifications. In
the event such discrepancies exist and the Project Engineer, or Project Manager, is not so notified, the
Project Engineer, or Project Manager, shall reserve the right to exercise sole arbitration authority. It is
mutually agreed that all authorized alterations affecting the requirements and information given on
the Approved Plans shall be in writing and approved by the Project Engineer, or Project Manager.
(f) If the Contractor or any of its Subcontractors or Suppliers, knows or reasonably should know by virtue
of common knowledge or customary practice in the construction industry that any of the Contract
Documents are at variance with applicable laws, statutes, ordinances, building codes, or rules or
regulations, in any respect, the Contractor shall promptly notify the Project Engineer, or Project
Manager, in writing, and any necessary changes shall be accomplished by issuance of an appropriate
Change Order or Field Order. The Contractor shall assume full responsibility for, and shall bear all costs
attributable to work performed by the Contractor or any Subcontractor prior to the issuance of a
Change Order or Field Order when any of them know or reasonably should know that it is contrary to
such laws, statutes, ordinances, building codes, rules or regulations.
(g) The Contractor, before commencing work, shall verify all governing dimensions, and shall examine, to
the extent reasonable, all adjoining work on which its Work is in any way dependent. No disclaimer of
responsibility for defective or non-conforming adjoining work will be considered unless written notice
of the same has been filed by the Contractor and agreed to in writing by the Project Engineer, or
Project Manager, before the Contractor begins any part of the affected Work.
(h) The Contractor shall perform no portion of the Work at any time without Contract Documents or,
where required, approved Drawings, Specifications, instructions, Shop Drawings, product data, or
samples for such portion of the Work.
19.2 COPIES OF DRAWINGS AND SPECIFICATIONS FURNISHED: The Project Engineer, or Project Manager, will
furnish to the Contractor copies of Drawings and Specifications of the Work at reproduction costs (including labor)
or electronic copies of Drawings and Specifications in electronic form at no charge.
19.3 UTILITIES: Delays relating to relocation of utilities should be anticipated for Work on or involving City rights-
of-way.
It is the Contractor’s responsibility to verify all locations of existing structures and utilities shown on the Drawings
and to ascertain whether any other structures and utilities exist. The Drawings show available information on the
location of existing underground, surface and overhead structures and utilities. However, the Owner does not
guarantee the results of the investigations are accurate or complete.
19.4 REQUESTS FOR CLARIFICATION AND INFORMATION: The Contractor shall submit any requests for
information or clarification of Drawings and Specifications to the Project Engineer, or Project Manager, or to the
person who has been designated by the Project Engineer, or Project Manager, to receive such requests. When the
City responds to such requests for information or clarification, it will issue a response which can consist of a written
explanation with or without drawings or other information in the City’s sole discretion. Such requests and responses
to such requests shall neither authorize nor constitute changes in the Contract Time or Contract Price. If the
Contractor believes that the response to any request for information or clarification requires a change in Contract
Time or Contract Price, it shall submit a Contractor Change Request in accordance with the Contract Documents.
The Contractor shall review and attempt to answer requests for information or clarification from its Subcontractors
and Suppliers. Such requests shall be encompassed within the Contractor’s request for information or clarification
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by the Contractor to the Project Engineer, or Project Manager, if the Contractor is unable to answer such requests.
19.5 DIMENSIONS: Figured dimensions shall govern over scaled dimensions.
19.6 SHOP DRAWINGS
(a) The Plans will be supplemented by Shop Drawings as necessary to adequately control the Work or as
specified. Shop Drawings are not part of the Contract documents. Shop Drawings may consist of
drawings, diagrams, illustrations, schedules, calculations, and other data prepared by the Contractor,
Subcontractor, manufacturer, supplier, or distributor, which will illustrate how specific portions of the
Work shall be fabricated and/or installed in accordance with the Plan details and Specifications. The
Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may be
necessary for the prosecution of the Work in the shop and in the field as required by the Drawings,
Specifications or Project Engineer, or Project Manager’s instructions.
(b) Any Work done prior to the Owner's approval of Shop Drawings will be at the Contractor's risk.
(c) The Project Engineer, or Project Manager, may request additional details and require the Contractor to
make changes in the design which are necessary to conform to the provisions and intent of these
Specifications without additional cost to the Owner.
(d) The Contractor shall submit for approval three (3) hard copies and one electronic copy of all Shop
Drawings and descriptive data as applicable showing all features not fully detailed on the Specifications
but essential for a completely coordinated installation. After checking, one set will be returned to the
Contractor. The Contractor will correct errors in Shop Drawings as directed by the Owner.
(e) The Owner’s approval of Shop Drawings indicates only that the type and kind of equipment and general
method of construction or detailing are satisfactory and in general compliance with the Contract
Documents and design concept of the Project. The Contractor has the responsibility for incorporating
into the Work satisfactory materials and equipment meeting the requirements of the Contract
Documents, the proper dimensions, and the detailing of connections. Approval of the Shop Drawings
by the Project Engineer, or Project Manager, shall not be construed as a complete check and verification,
but will indicate that general conformance with the design concept and general compliance with the
information given in the Contract has been achieved. Anyinformation or action to be taken as set forth in
the Shop Drawings is subject to the requirements of the Plans and Specifications. The Project Engineer,
or Project Manager, shall be notified in writing of any information in the Shop Drawings that deviates
from the requirements of the Contract documents. Appropriate action will then be taken by the Project
Engineer, or Project Manager.
(f) The Contractor may not construe such approval as a complete check and approval does not indicate
the waiver of any Contract requirement. Changes in the Work are authorized only by separate written
Change Order.
(g) Shop Drawings being returned will be stamped to indicate the following:
• Shop Drawings approved for use in construction will have one of the following statements checked:
Approved, No Exception Taken, or Approved as Noted.
• Shop Drawings to be corrected or redrawn and resubmitted for approval will have one of the
following statements checked: Revise as Noted, Resubmit; orRejected.
(h) If Shop Drawings are returned for correction, corrections shall be made and the corrected drawings
shall be resubmitted by the Contractor in the same manner as the first submittal.
(i) The time required for approval of each submittal will not exceed four (4) weeks after Shop Drawings
are received by the Project Engineer, or Project Manager.
(j) It is the intent of these Specifications that no more than two submittals will be required. If, however,
additional submittals are required by actions of the Contractor, the additional time for Shop Drawing
approval will be borne by the Contractor. If additional submittals are required, or if Shop Drawing
approval is delayed by actions of the Project Engineer, or Project Manager, and if the Contractor's
controlling operations are delayed or interfered with by reason of the delay in Shop Drawing reviews,
an extension of time commensurate with the delay in completion of the Work thus caused will be
granted as provided in Subsection 6.7, Determination and Extension of Contract Time for completion
(k) All Shop Drawings shall be 36 inches long and 22 inches wide overall. There shall be a two inch margin
on the left side of the sheet and one-half inch margin on the other three sides. A blank space, six inches
by three inches, shall be left near the lower right-hand corner for an approval stamp.
(l) Where design notes or catalogue cuts are required, they may be submitted on 8-1/2 in. x 11 in. sheets
in lieu of the size mentioned above.
(m) There shall be a title block in the lower right-hand corner of each sheet. The title block shall show the
Owner's name, structure number, the location of the structure, and the contents of the sheet.
(n) The Contract price will include the cost of furnishing all Shop Drawings. Shop drawings and working
drawings submitted to the Project Engineer, or Project Manager, by the Contractor, Subcontractor or
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any lower tier Subcontractor pursuant to the Work, may be duplicated by the Owner and the Owner
may use and disclose, in any manner and for any purpose such Shop Drawings and Working Drawings
delivered under this Contract.
19.7 RECORD DOCUMENTS:
(a) The Contractor shall keep one complete set of all current Drawings and Specifications at the work site
and available to the Owner and its representatives at all times. The Contractor shall also keep a set of
“shop” drawings on-site that contain all changes or deviations from the original drawings neatly marked
thereon in brightly contrasting color. This shall be a separate set of drawings, not used for construction
purposes, which shall be kept up to date as the job progresses and shall be made available for
inspection by the Project Engineer, or Project Manager, at all times. Upon completion of the Contract,
this set of drawings shall be delivered to the Project Engineer, or Project Manager.
(b) The Contractor shall keep one record copy of all Amendments, Change Orders, Drawings, Field Orders,
Shop Drawings and Specifications in good order.
(c) The Contractor shall record any changes made during construction and any discrepancies between the
Contract Documents and Work actually performed on the record copies (however minor or seemingly
insignificant). The Contractor shall make a set of “Record Drawings” by marking this set of prints with
all changes from the original Drawings as Proposal, including all Change Orders, alignment changes,
depth changes of underground pipes and utilities, utility locations, and all other items that are not the
same as originally drawn. The Contractor shall keep the Record Drawings up to date as the Project
progresses. The Project Engineer, or Project Manager, may require, as a condition of the approval of
any progress payment, periodic inspection of the Record Drawings. The Contractor will deliver the
Record Drawings to the Project Engineer, or Project Manager, upon completion of the Project before
Final Payment.
(d) All Contract Documents are the property of the Owner and shall not be used by the Contractor for any
purpose other than the Work to be performed under the Contract. At Final Acceptance, all Shop
Drawings and Record Drawings, including all material in electronic format shall become the property
of the Owner. The Contractor will be permitted to maintain a copy of the Drawings, Specifications and
Shop Drawings as necessary to maintain a Contract record file.
(e) The Contractor shall prepare and keep current a schedule of submittals that shall note all required
submittals, submittal dates, required approval dates, and all required delivery dates.
19.8 OPERATING MANUALS AND PARTS LISTS: The Contractor shall submit four (4) complete operating manuals
and parts lists to the Project Engineer, or Project Manager, for all items of mechanical and electrical equipment
incorporated into the Work.
19.9 CONFORMITY WITH PLANS AND ALLOWABLE DEVIATIONS: Finished surfaces shall conform with lines,
grades, cross sections and dimensions shown on the Approved Plans. Any deviation from the Plans and working
drawings, as may be required by the demands of construction, will in all cases be determined by the Project Engineer,
or Project Manager, and authorized in writing.
19.10 COORDINATION OF SPECIFICATIONS, PLANS AND SPECIAL PROVISIONS: The Specifications, the Plans,
Special Provisions, and all supplementary Plans and documents are essential parts of the Contract, and a
requirement occurring in one is as binding as though occurring in all. They are intended to be cooperative to describe
and provide for a complete Work. In case of discrepancy, figured dimensions, unless obviously incorrect, shall govern
over scaled dimensions. Plans shall govern over Specifications and Special Provisions shall govern over both Plans
and Specifications. The Contractor shall not use to his advantage any apparent error or omission in the Plans or
Specifications. In the event the Contractor discovers any apparent error or discrepancy, he shall immediately call
upon the Project Engineer, or Project Manager, for his interpretation and decision and such decision shall be final.
In the event contradiction and/or conflicts occur in the Specifications not otherwise covered by Special Provisions,
the Specifications deemed by the Project Engineer, or Project Manager, to be most restrictive shall govern.
19.11 OWNERSHIP OF WORK PRODUCT: Contractor acknowledges that the Work Product and the copyright
interest therein are owned by Owner. Contractor shall not be entitled to use the Work Product in connection with
any construction other than the Project, and upon the completion of the Work or the termination of the Contract,
Contractor shall return to Architect, at its request, all copies of the Work Product except one (1) signed record set of
Construction Documents. Any technical models and/or computer files shall be the property of the Owner.
Article 20. RIGHT-OF-WAY
20.1 ACQUISITION OF RIGHT-OF-WAY: Before issuance of Notice to Proceed, the Owner shall obtain all land and
right-of-way necessary for carrying out and completion of the Work to be performed pursuant to the Contract, unless
otherwise mutually agreed. The Owner shall provide to the Contractor information that delineates and describes the
lands owned and rights-of-way acquired, when necessary. The Contractor shall confine its operations within the areas
designated by the Project Engineer, or Project Manager.
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20.2 ACCESS TO RIGHT-OF-WAY: The Owner will make best efforts to provide right of access to all places
necessary for the performance of the Work in a timely manner. The Owner will not be liable to Contractor for any
delay in providing access for reasons outside the Owner’s control. Nothing contained in the Contract shall give the
Contractor exclusive occupancy of the area provided by the Owner. The Owner, other contractors of the Owner and
utility companies may enter upon or occupy portions of the land furnished by the Owner for any purpose, but
without unreasonably interfering with the completion of the Project. Joint occupancy or use of the territory shall not
be the basis of any claim for delay or damages.
If any part of the Project requires Work within the right-of-way of a roadway under the jurisdiction of the Colorado
Department of Transportation (CDOT) the Contractor shall obtain the necessary permits from CDOT to perform such
Work. The Contractor shall conform to all the requirements and restrictions indicated on the permit. The Contractor
shall restore the area to its original condition, including reseeding if necessary, at the completion of the Project. The
Contractor’s equipment shall not be stored on any traveled highway.
20.3 RIGHTS-OF-WAY: The Owner shall furnish all lands and rights-of-way required for completion of this
Contract. In acquiring rights-of-way, the Owner will proceed as expeditiously as possible, but in the event all rights-
of-way or easements are not acquired prior to the beginning of construction, the Contractor shall begin Work on
such lands and rights-of-way as have been acquired. No claim for damage will be allowed or shall be made by reason
of the Owner's delay in obtaining lands, easements or rights-of-way. In the event of litigation or other delays in
acquiring rights-of-way, the time allowed herein for completion will be extended to compensate for the time actually
lost by such delay.
Article 21. SUBMITTALS
21.1 SCHEDULE OF SUBMITTALS: Within thirty (30) days after the date of this Contract, Contractor and Engineer
shall jointly prepare a schedule for submittals of shop drawings, samples, schedules and other submittals to be made
by the Contractor, the review thereof by Engineer, and responses and resubmittals by Contractor based on the
Engineer’s review. Contractor shall incorporate such schedule into the Project Schedule.
21.2 SCOPE OF ENGINEER’S REVIEW: Engineer shall review Contractor’s submittals of shop drawings, samples,
schedules and other documents related to items to be incorporated in the Work for aesthetic effect. Contractor shall
be responsible to ensure that such submittals conform to the Contract Documents, and the approval of such
submittals by Engineer shall not relieve the Contractor from responsibility for any deviation of such submittals from
the Contract Documents unless the Contractor gives the Engineer specific written notice of such deviation together
with such submittal, nor shall it relieve the Contractor from responsibility for errors and omissions contained in such
submittals.
21.3 REVIEW PROCESS: The review of Contractor’s submittals shall be conducted in accordance with the
provisions of the specifications contained in the Construction Documents. Such specifications will be based on the
Standards
Article 22. NOTICES
Notices required in this Contract shall be deemed to have been delivered five (5) business days after actual date of
Notice of Award after having been placed in the U.S. mails, sent by certified mail, return receipt requested, addressed
as set forth in the Contract Award page hereof, or to such other addresses as the parties may mutually designate in
writing. All such notices shall be delivered to the parties at the addresses provided in the Agreement or at such other
address as Contractor, Owner or Architect may determine for itself by notice given to the other parties. Each notice
shall be deemed effective when actually delivered to the address for the party or delivery at such address is tendered
and refused or, if the party has multiple addresses, when either actually delivered to, or delivery is tendered and
refused at, each of the addresses for the party. Notwithstanding anything to the contrary herein, meeting notes and
minutes prepared by Contractor shall not constitute notice of any fact regarding which notice is permitted or
required to be given under the Contract, regardless of how such notes and minutes are delivered.
Article 23. OWNER’S GENERAL RESPONSIBILITIES
23.1 OWNER PERFORMANCE: The Owner will furnish the data, perform acts, and make payments as required
by the Contract Documents.
The Owner shall not supervise, direct, or have authority or control over, nor be responsible for, the Contractor’s
means, methods, techniques, sequences, or procedures of construction or safety precautions, or any failure of the
Contractor to comply with any laws or regulations applicable to the Work. The Owner will not be responsible for the
Contractor’s failure to perform or furnish the Work in accordance with the Contract Documents.
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The Owner’s promise to pay for the Work that the Contractor promises to perform is limited by the Owner’s Charter
and its ordinances. A payment obligation of the Owner under this Contract, whether direct or contingent, shall
extend only to funds appropriated by the Owner Council for the purpose of the Contract, encumbered for the
purpose of the Contract and paid into the Owner or otherwise lawfully made available by the Owner. Unless
authorized by law, (i) the Owner does not by this Contract irrevocably pledge present cash reserves for payments in
future fiscal years, and (ii) this Contract is not intended to create a multiple-fiscal year direct or indirect debt or
financial obligation of the Owner. Other limitations are found in the law that the Contractor is presumed to know.
Three such limitations on payment are listed below:
a) Under no circumstances will the Owner be liable for any extra Work that has not been authorized by a
properly executed Change Order or Field Order.
b) No Change Order, Field Order, or other form of directive to the Contractor shall be issued, and no such
order or directive shall be binding if issued, if: (i) it would directly cause the aggregate amount payable
under the Contract to exceed the amount appropriated or otherwise lawfully made available for the
Contract, or (ii) it would require the Contractor to perform additional compensable work which would
cause the aggregate amount payable to exceed such appropriated or provided amount.
c) It shall be the Contractor’s responsibility to verify that the amounts already appropriated or otherwise
made available for the Contract are sufficient to cover the entire costs of the Work. Any work
undertaken or performed in excess of the amount appropriated or otherwise made available is
undertaken or performed in violation of the terms of the Contract, without the proper authorization,
and at the Contractor’s own risk.
Any limitations on the sources of funding for payments made under the Contract are stated in the Contract
Documents.
23.2 PROJECT ENGINEER, OR PROJECT MANAGER: The Project Engineer, or Project Manager, is designated by
the Owner to exercise all authority on its behalf under the Contract and to see that the Project is completed
according to the Contract Documents. The Project Engineer, or Project Manager, may be changed by written notice
to the Contractor.
The Project Engineer, or Project Manager, may assume exclusive control of the performance of the Contractor in the
case of non-performance or if there is an imminent threat to life or safety of persons or property.
The Project Engineer, or Project Manager, will furnish all explanations, directions, stakes or markers, and inspections
necessary to carry out and complete the Project. No inspection, explanation or direction by the Project Engineer, or
Project Manager, shall be deemed authority for Contractor to deviate from the requirement that the Work be
performed in accord with the Contract Documents.
23.3 RIGHT TO BAR PERSONS FROM THE WORK OR SITE: The Owner reserves the right to bar any person,
including employees of the Contractor and Subcontractors, from the Work site by order of the Project Engineer, or
Project Manager. This shall not be treated as a request for the employee’s termination but a request that the
employee not be assigned to work on the Owner Work site. No increase in contract time or price is authorized as a
result of the Owner’s exercise of this section.
23.4 ACCESS TO WORK: The Owner, its representatives, and participating federal or state agencies and other
public authorities having jurisdiction established by law shall have access to the Project and Work site at any time
for any purposes, including without limitation inspection, sampling, and testing. The Contractor shall provide proper
facilities for access to the Project.
Access means wherever and whenever the Work is in manufacture, preparation or progress and includes access to
payrolls, records of personnel not protected from disclosure by law, invoices of materials, terms and conditions of
sale of materials and equipment to be incorporated in the Project, files, records, books, correspondence,
instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and any other relevant data
and records relating to the Contract.
The Owner may, at reasonable times, inspect the part of the plant, place of business or worksite of the Contractor
or Subcontractor at any tier that is pertinent to the performance of the Contract.
23.5 INSPECTION: The Owner shall appoint Inspectors to inspect the Project. Inspection may extend to all or any
part of the Work. Inspectors are not authorized to alter any Contract Documents or to delay the fulfillment of the
Contract by failure to inspect materials and Work with reasonable promptness. Inspectors are not authorized to act
as foreman for the Contractor.
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Article 24. CONCEALED CONDITIONS
24.1 DISCOVERY OF CONCEALED PHYSICAL CONDITIONS: In the event Contractor encounters subsurface or
otherwise concealed physical conditions that differ materially from those conditions reasonably inferable from
observations of the exposed surfaces of the Site and reports, surveys, assessments, record drawings and other
information furnished by Owner or obtained by Contractor, Contractor shall provide Engineer and Owner notice
thereof within two (2) business days after first discovering the same and shall suspend those portions of the Work
that conflict with such conditions until receipt of further directions from Owner.
24.2 INSPECTION AND DRAWING UPDATE: Contractor and Owner shall inspect and evaluate such conditions,
and Owner shall cause the Project Engineer, or Project Manager, if necessary, to prepare appropriate supplemental
drawings or instructions to address or accommodate the conditions discovered.
24.3 DELAYS: Delay resulting from the suspension of Work pending the investigation of unforeseen concealed
conditions shall be an Owner Delay, but only to the extent that the same causes actual delay in the critical path to
complete the Work that satisfies all the requirements necessary to be an Owner Delay under Section 3.4.1 and all
the requirements of Section 15.1.5 below.
24.4 CHANGE ORDER: If the actions necessary to address such conditions of the Site increase the Cost of Work
or adversely impact the critical path to completion of the Work, Contractor may request that an Agreed Change or
Change Directive be issued for changes in the Work reflected in the supplemental drawings or instructions prepared
to address such conditions, subject to the provisions of Section 15.1.5 below.
24.5 COSTS
24.5.1 Reasonable Inference - Notwithstanding anything to the contrary provided herein, Contractor
shall not be entitled to any increase in the Contract Sum or extension of the Milestone Schedule,
nor shall any Owner Delay be deemed to have occurred,on account of any condition of the Site
that was indicated in or reasonably inferable from (i) observations of the exposed surfaces of the
Site and reports, surveys, assessments, record drawings and other information furnished by
Owner or obtained by Contractor, (ii) a thorough inspection of the Site prior to the
commencement of the Work (regardless of whether such thorough inspection was actually
conducted), or (iii) other information and documents furnished to Contractor by Owner or
others.
24.5.2 GMGC Agreement - If the Agreement is a GMGC Agreement, increases in the Cost of Work (and
any associated Construction Fee and General Conditions fee, if applicable) in connection with
any Agreed Change or Change Directive under Section 15.1.4 shall be charged to the
Contingency, and an increase in the Guaranteed Maximum Price shall be allowed, if at all, only
to the extent that such costs exceed the balance of the Contingency.
24.5.3 Disputes - Any dispute as to whether Contractor is entitled to receive an increase in the Contract
Sum or extension of the Milestone Schedule on account of concealed conditions ofthe Site shall
be a Dispute and shall, at the request of either Contractor or Owner, be submitted to Dispute
Resolution.
Article 25. WAIVER
25.1 WAIVER: The waiver of any breach of a term, provision or requirement of this Contract, including the failure
to insist on strict compliance or to enforce any right or remedy, shall not be construed or deemed as a waiver of: any
subsequent breach of such term, provision or requirement or of any other term, provision or requirement; any right
to insist on strict compliance with any term, provision or requirement; or any right to enforce any right or remedy
with respect to that breach or any other prior, contemporaneous, or subsequent breach.
25.2 NO WAIVER: No inspection by the Project Engineer, or Project Manager, any other person acting on the
Owner's behalf, nor any order, measurement, estimate or certificate by the Architect, nor any order by the Owner
for the payment of money, nor any payment for or acceptance of any Work, nor any extension of time, nor any
possession taken by the Owner, shall operate as a waiver of any right of Owner arising out of or related to the
Contract. No waiver of any breach of the Contract shall be construed as a waiver of any other or subsequent breach
thereof.
Article 26. OTHER CONDITIONS
26.1 BINDING CONTRACT: The Contractor binds itself, its partners, successors, assigns and legal representatives
to the other party to this Contract and to the partners, successors, assigns and legal representatives of such other
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party with respect to all covenants of this Contract. The Contractor shall not transfer, assign, or subcontract any
interest in this Contract. It is agreed that this Contract shall be binding on and inure to the benefit of the parties
hereto, their heirs, executors, administrators, assigns, and successors.
26.2 LEGISLATIVE OR JUDICIAL DECISIONS: If any provision of this Contract is subsequently declared by
legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes,
and regulations of the United States of America and the State of Colorado, all other provisions of this Contract shall
remain in full force and effect.
26.3 SUPERSEDING: This Contract represents the entire and integrated Agreement between the Owner and the
Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This
agreement may be amended only by written instrument signed by both Owner and Contractor.
26.4 PROFESSIONAL STANDARDS: Services and Work performed by Contractor under this Contract shall
conform to reasonable and normal professional standards and the Contractor shall conduct himself at all times in a
manner consistent with industry standards.
26.5 NOTIFICATION IN WRITING: No assignment of any claim or proceeds under this Contract shall be binding
upon the Owner unless it shall be first notified thereof in writing.
26.6 HEADINGS FOR REFERENCE ONLY: The headings of the article, clauses, and paragraphs of this Contract are
inserted for reference purposes only and are not restrictive as to content.
26.7 ONE INSTRUMENT: This Contract and any subsequent amendment shall be deemed an original having
identical legal effect, and all of which together constitute one and the same instrument.
26.8 THIRD PARTY CLAIMS: Nothing contained herein shall be deemed to give any third party any claim or right
of action against the Owner which does not otherwise exist without regard to this Contract.
26.9 CALENDAR DAYS: Wherever a number of days is specified in this Contract it shall mean calendar days unless
otherwise specified.
26.10 WRITTEN CONSENT: This Contract shall not be assigned, in whole or in part, without the written consent of
the Owner and Contractor.
26.11 REALLOCATION OF RESOURCES: When a delay on any aspect of the Work occurs, the Contractor, to the
maximum extent possible, shall utilize his resources elsewhere on the project. If the Contractor, after complying the
maximum extent possible by the reassignment of his labor force, equipment and materials, alleges to have suffered
damages due to delay, and the delay is caused in whole or in part by acts or omissions within the control of the
Owner or persons acting on its behalf, then such a claim shall be treated as a change order request and shall be
processed in accordance with the change order, audit and inspection requirements specified in the General
Provisions or it shall be deemed forever waived. Nothing herein contained shall be interpreted so as to allow the
Contractor to recover delay damages from the Owner for delays caused by acts of God, the acts or omissions of the
Contractor, its subcontractors, employees or agents, or persons over which the Owner has no control.
26.12 DISCLOSURE OF CONFIDENTIAL INFORMATION: The Owner is a municipality organized within the State of
Colorado, and as such is subject to the Colorado Open Records Act, C.R.S. 24-72-201 et. seq (CORA). All Contract
Documents, and any documents or reports produced pursuant to this Contract, may be subject to public disclosure.
In the event that a party to this Contract receives an Open Records request, they shall notify the other party to this
Contract. Contractor may act to protect and defend any of Contractor’s information disclosed to the City and labeled
with a recognized privilege against disclosure.
26.13 AUDIT
27.1.1 Records and Reports - The Contractor shall keep and maintain and shall cause its Subcontractors,
Suppliers and outside consultants to keep and maintain books, records, accounts and other documents
(“records”) that are sufficient to accurately and completely reflect all costs incurred pursuant to the
Contract that may be the basis of a Contractor Change Request or a claim by the Contractor. Such records
may include the Proposal estimate, receipts, memoranda, vouchers, and accounts of every kind and nature
pertaining to the performance of the Work including but not limited to job cost ledgers, invoices from and
payments to Subcontractors, Suppliers and materialmen, and records of home and field office overhead, as
well as complete summaries and reports setting forth all reimbursable man hours expended and payroll
records.
All such records shall be maintained for a period of three (3) years from the date of Final Payment under
the Contract in which the Work is completed. All Subcontractors shall keep and preserve such records
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accounts for a period of three (3) years from the date of Final Payment under the subcontract.
27.1.2 Access - The Contractor shall permit the Owner and the its auditors to have access to such records
and any information or areas as provided in these General Conditions for the purpose of making such
financial audits, or verifications as the Owner deems necessary or appropriate concerning the Contractor’s
performance under the Contract. Access will be provided at the Contractor’s regular place of business in
Colorado at reasonable times and upon reasonable notice.
26.14 FEDERAL AID PROVISIONS: When the United States of America, acting through any of its duly constituted
departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract,
the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the
department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a
part of the terms and conditions of the Contract and shall be observed by the Contractor. When the United States
of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or
inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However,
such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of
either the Owner or the Contractor.
26.15 DUTIES & REMEDIES: The duties and obligations imposed by, and rights and remedies available under, the
Contract Documents shall be in addition to, and shall not be in any way construed to be a limitation of, any duties,
obligations, rights, and remedies imposed by or available by law or contract.
26.16 SURVIVAL: All representations, warranties, and guarantees made in the Contract Documents shall survive
Final Payment, Final Acceptance, and termination of the Contract for any reason.
26.17 GOVERNMENT IMMUNITY: The City is relying on, and does not waive or intend to waive by any provision
of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, §24-10-101, et seq., 10 C.R.S., as from time to time amended, or otherwise available
to City, its officers, or its employees.
26.18 CONSTRUCTION: The provisions of the Contract shall be construed as to the ordinary meaning of the words
used so as to fairly accomplish the purposes and intentions of all Parties, and not for or against any party based upon
any attributes to such party of the source of the language in question. No term of this Agreement will be construed
or resolved in favor of or against the Owner or Contractor on the basis of which party drafted the uncertain or
ambiguous language. Where appropriate, the singular includes the plural and neutral words and words of any gender
will include the neutral and other gender. All headings, captions and titles are for convenience and reference only
and of no meaning in the interpretation or effect of the Contract.
26.19 NO IMPLIED REPRESENTATIONS: No representations, agreements, covenant, warranties, or certifications,
express or implied, exist as between the Parties, except as specifically set forth in the Contract.
26.20 FINANCIAL OBLIGATIONS OF OWNER: All financial obligations of the City under the Contract are contingent
upon appropriation, budgeting, and availability of specific funds to discharge such obligations. Nothing in the
Contract shall be deemed a pledge of the City's credit, or a payment guarantee by the City to the Contractor.
26.21 ASSIGNMENT / TRANSFERENCE: The Contractor may not assign or transfer any interest in the Contract,
including any money due or to become due, without the express prior written consent of the City.
26.22 AMENDMENTS: The Parties shall only amend the Contract in writing with the proper official signatures and,
if required elsewhere in this Contract, on the proper forms.
26.23 NO THIRD-PARTY BENEFICIARIES: The enforcement of the terms and conditions of the Contract and all
rights of action relating to such enforcement shall be strictly reserved to the Parties. The Parties expressly intend
that any person other than the Owner and the Contractor shall be deemed to be only an incidental beneficiary under
this Agreement.
26.24 INDEPENDENT CONTRACT – NO PARTNERSHIP OR AGENCY: Notwithstanding any language in the Contract
Documents or any representation or warranty to the contrary, the relationship between the Contractor and the
Owner shall be as independent contractors, and neither the Owner nor the Contractor shall be deemed or constitute
an employee, servant, agent, partner or joint venture of the other. The Contractor is obligated to pay federal and
state income tax on any money earned pursuant to this Contract, and neither the Contractor nor its employees,
agents, or representatives are entitled to workers’ compensation benefits unemployment compensation benefits,
sick and annual leave benefits, medical insurance, life insurance, or pension or retirement benefits from the Owner.
26.25 GOVERNING LAW, JURISDICTION, VENUE: This Contract, and any amendments hereto are governed and to
be construed according to the laws of the State of Colorado without regard to its conflicts of laws provisions. For all
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claims arising out of or related to this Contract, the Contractor consents to the jurisdiction of and exclusive venue in
the state courts in the County of Arapahoe, State of Colorado. Contractor waives any exception to jurisdiction
because of residence, including any right of removal based on diversity of citizenship.
26.26 ATTORNEY’S FEES AND COSTS: The prevailing party in any litigation to resolve a dispute between the Parties
arising from this Contract will be entitled to recover court costs and reasonable attorney fees from the non-prevailing
party.