HomeMy WebLinkAboutresolution.council.030-96 RESOLUTION NO.~..~__~ O Series of 1996
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONSTRUCTION AGREEMENT BETWEEN ASPEN EARTHMOVING, LLC,
AND THE CITY OF ASPEN, COLORADO, AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a construction agreement between
Aspen Earthmoving, LLC, and the City of Aspen, a true and accurate copy of which is attached
hereto as Exhibit ..... A,
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City Council of the City of Aspen hereby approves that service agreement between
Aspen Earthmoving, LLC, and the City of Aspen, a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said
agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
o~( dayof ~~ , 1996.
JohntS. Bennett, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado,
at a meeting held on the day hereinabove stated.
AGREEMENT
This AGREEMENT made and entered into as of the date hereinafter stated, between the
CITY OF ASPEN, Colorado, ("Owner") and Aspen Earthmoving, LLC, ("Contractor").
WHEREAS, the Owner has caused to be prepared, in accordance with the law,
specifications and other contract documents for the Work herein described, and has approved and
adopted said documents, and has caused to be published, in the manner and for the time required
by law, an advertisement, for the project titled: 1996 Hydrant Replacement Project; and,
WHEREAS, Contractor, in response to such advertisement, or in response to direct
invitation, has submitted to the Owner, in the manner and at the time specified, a sealed Bid in
accordance with the terms of said Invitation to Bid; and,
WHEREAS, the Owner, in the manner prescribed by law, has publicly opened, examined,
and canvassed the Bids submitted in response to the published Invitation to Bid therefore, and as
a result of such canvass has determined and declared the Contractor to be the lowest responsible
and responsive bidder for the said Work and has duly awarded to the Contractor an Agreement
therefore, for the sum or sums named in the Contractor's Bid;
NOW, THEREFORE, in consideration of the payments and Agreement hereinafter
mentioned:
1. The Contractor shall commence and complete the construction of the Work as fully
described in the Contract Documents.
2. The Contractor shall furnish all of the material, supplies, tools, equipment, labor and other
services necessary for the construction and completion of the Work described hereini
3. The Contractor shall commence the work required by the Contract Documents within
seven (7) calendar days after the date of the NOTICE TO PROCEED and will complete
the same by the date and time indicated in the Supplementary Conditions unless the time
is extended in accordance with appropriate provisions in the Contract Documents.
4. The Contractor agrees to perform all of the Work described in the Contract Documents
and comply with the terms therein for the sum of Sixty-Four Thousand Eight Hundred
Dollars ($64,800.00), for the first three Phases, not including additional specialized Work
costs inclu'~ting replacement b~ curb and gutter, sidewalks, other improvements, and
landscaping other than turf. grass. Additionally, Phase IV of the Hydrant Replacement
Project will be handled on a time and material basis or as shown on the BID schedule.
5. The term "Contract Docinnents" means and includes the documents listed in the
Supplementary Conditions. The Contract Documents are included herein by this reference
and made a part hereof as if fully set forth here.
6. The Owner shall pay to the Contractor in the manner and at such time as set forth in the
General Conditions such amounts as required by the Contract Documents.
7. This agreement shall be binding upon all parties hereto and their respective heirs,
executors, administrators, successors, and assigns. Notwithstanding anything to the
contrary contained herein or in the Contract Documents, this agreement shall notbe
binding upon the Owner unless duly executed by the Mayor of the City of Aspen (or a
duly authorized official in his absence) following a Resolution of the Council of the City
of Aspen authorizing the Mayor (or a duly authorized official in his. absence) to execute
the same.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their
duly authorized officials, this Agreement in three copies each of which shall be deemed an original
on the date hereinafter written.
OWNER:
ATTESTED BY: CITY OF ASPEN, COLORADO
~ ~~. By: ' ~-'~ /~~-
CONTRACTOR:
ATTESTED BY: I~-~ ~'a~44~vmraA~l~ Ct-C-
a~rmmnt b 6
THE CITY OF ASPEN
STANDARD GENERAL CONDITIONS
FOR CONSTRUCTION CONTRACTS
These Standard General Conditions have been prepared by the City of Aspen to be incorporated by reference into
- Agreements entered into between contractors and the City of Aspen, Colorado. The provisions herein are interrelated
wi. th other standard Contract Documents customarily used by the City of Aspen and a change in one may necessitate
a change in others.
ARTICLE 1 - DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents the following terms have the
meanings indicated Which are applicable to both the singular and plural thereof:
Addenda - Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the
bidding documents or the Contract Documents.
Agreement - The written agreement between Owner and Contractor covering the Work.to be performed; other Contract
Documents are attached to the Agreement and made a part thcraof as provided therein.
Application for Payment - The form accepted by Engineer which is to be used by Contractor in requesting progress
or final payments and which is to include such supporting documentation as is required by the Contract Documents.
Bid - The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be
performed.
Bonds - Bid, performance and payment bonds and other instruments of security.
Change Order - A document recommended by Engineer, which is signed by Contractor and Owner and authorizes
an addition, deletion or revision in the Work, or an adju[tment in the Contract Price or the Contract Time, issued on or
after the Effective Date of the Agreement. '
Contract Documents. The Invitation to Bid, Instructions to Bidders, Request for Proposals, Addenda, General
Conditions, Supplementary Conditions, Bid Forms, Bid Bond, Notice of Award, Agreement, Payment and Performance
Bonds, Drawings identified in the Request for Proposals or attached as part of the Bid, and Specifications identified in
the Request for Proposals or attached as part of the Bid.
Contract Price - The money's payable by Owner to Contractor under the Contract Documents as stated in the
Agreement (subject to the provisions of paragraph 11.9.1 in the case of Unit Price Work).
Contract Time - The number of days (computed*M provided in paragraph 17.2) or the date stated in. the Agreement
for the completion of the Work.
Contractor - The person, firm or corporation with whom Owner has entered into the Agreement.
Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient,
or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard,
test or approval referred to in the Conttact Documents, or has been damaged prior to Engineer's recommendation of final
payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in
accordance with paragraph 14.8 or 14.10)
Drawings - The drawings which show the character and scope of the Work to be performed and which have been
prepared or approved by Engineer are referred to in the Contract Documents.
Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such
date is indicated it means the date on which the Agreement is signed and delivered by the last of the two part/es to sign
and delive:I.
Engineer - The person, f'mn or corporation named as such in the Agreement. The Owner may appoint a City employee
to function as tho Engineer.
Field Order - A written order issued by Engineer which orders minor changes in the Work in accordance with
paragraph 9.5 but which does not involve a change in the Contract Price or the Contract Time.
General Requirements - Sections of Division I of the Specifications.
Laws and RegUlations; Laws or Regulations - Laws, rules regulations, ordinances, codes and/or orders.
Notice of Award - The written notice by Owner to the apparent successful bidder stating that upon compliance by the
apparent successful bidder with the conditions precedent enumerated therein, within the time specified, Owner will sign
and deliver the Agreement.
Notice to Proceed - A written notice given by Owner to Contractor (with a copy to Engineer) fixing the date on which
the Contract Time will commence to run and on which Contractor shall start to perform Contractor's obligations undar
the Conh'act Documents.
Owner - The City of Aspen.
Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related
purpose) before reaching Substantial Completion for all the Work.
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.
Resident Project Representative - The authorized rep, rasentative: of Engineer who is assigned to the site or any part
thereof.
Shop Drawings. All drawings, diagrams, illustrations, schedules and other data which are specifically prepared by or
for Contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance
charts, instructions, diagrams and other information prepared by a Supplier and submitted by Contractor to illustrate
material or equipment for some portion of the Work.
Specifications. Those portions of the Contract Documents consisting of written technical descriptions of materials,
equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details
applicable thereto.
Subcontractor - An individual, firm or corporation having a direct contract with Contractor or with any Other
Subcontractor for the performance of a part of the Work at the site.
Substantial Completion - The Work (or a specified part thereof) has progressed to the point where, in the opinion of
Engineer as evidencedby Eng'neers defin t've certificate of Substant a Completion, it is sufficiently complete, in
accordance with the Contract Documents, so that the Work (for specified part) can be utilized for the purposes for Which
it is intended; or if there be no such certificate issued, when final payment is d~¢ in accordance with paragraph 14.13.
The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial
Completion thereof.
Supplementary Conditions - The part of the Contract Documents which amends or supplements these General
Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor.
Underground Facilities - A~II pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such
facilities or attachments', and any encasements containing such facilities which have been installed underground to
furnish any of the ~ollowing services for materials; electricity, gases, steam, liquid petroleum products, telephone or
other communications, cable television, sewage and drainage removal, traffic or other control systems or water.
U~t Price Work - Work to be paid for on the basis of unit prices.
Work - The entire completed construction or the various separately identifiable parts thereof required to be furnished
under the Contract Documents. Work is the result of performing services, furnishing labor and furnishing and
incorporating materials and equipment into the construction, all as requi~'ed by the Contract Documents.
Work Directive Change - A written directive to Contractor, issued on or after the Effective Date of the Agreement and
signed by Owner and recommended by Engineer. Ordering an addition, deletion or revision in the Work, or responding
to differing or unforeseen physical conditions under which the Work is to be performed as provided in paragraph 4.2
or 4.3 or to emergencies under paragraph 6.22. A Work Directive Change may not change the Contract Price or the
Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Directive
Change will be incorporated in a subsequently issued Change Order following nego6ati~ns by the parties as to its effect,
if any, on the Contract Price or Cona'act Time as provided in paragraph 10.2.
Written Amendment- A written amendment of the Contract Documents, signed by Owner and Contractor on or after.
the Effective Date of the Agreement and normally dealing with the nonengineering or nontechnical rather than strictly. '
Work-related aspects of the Contract Documents.
ARTICLE 2 - PRELIMINARY MATTERS
Delivery of Bonds:
2.1 When Contractor delivers the executed Agreements to Owner, Contractor shall also deliver to Owner such
Bonds as Contractor may be required to furnish in accordance with paragraph 5.1.
Copies of Documents:
2.2 Owner shall furnish to Contractor up to three copies (unless otherwise specified in the Supplementary
Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work. Additional copies
will be furnished, upon request, at the cost of reproduction.
Commencement of Contract Time, Notice to Proceed:
2.3 ~ Prior to Owner issuing a Notice to Proceed, the City Council of the City of Aspen shall approve the Contract
Documents and authorize the Mayor, or in his absence the Mayor Prn-Tem or other official, to execute the same.
Notwithstanding any representations to the contrary made by Owner's employees, either directly, indirectly, or by
implication, no Agreement shall be in effect nor shall be binding upon Owner until such time as the Agreement is
executed by Owner pursuant to authority granted by the Owner's City Council. Owner shall issue a Notice to Proceed
after Owner's City Council has authorized the execution of the Agreement and Contractor has executed the Agreement
and other Contract Documents, and has delivered the specified bonds, Certificates of Insurance, if any are required, and
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any other documents required to be delivered by the Supplementary Conditions. The Contract Time will commence to
run on the thirtieth day after the Effective Date of the Agreement, or on the day indicated in the Notice to Proceed.
Starting the Project:
2.4 Contractor shall start to perform Ihe W~ork on the date when the Contract Time commences to mn, but no Work
shall be done at the site prior to the date off which the Contract Time commences to mn.
Before Starting the 'Project:
2.5 ' Before undertaking each part of the Work. Contractor shall carefully study and compare thc Contract
Documents and check and verify pertinent figures shown thereon and all applicable field measurements. Contractor
shall promptly report in writing to Engineer any conflict, error or discrepancy which Contractor may discover and shall
obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby:
2.6 Within ten days after the Effective Date of the Agreement (unless otherwise specified in the Supplementary
Conditions or General Requirements), Contractor shall submit to Engineer for review.
2.6.1 An estimated progress schedule indicating the starting and completion dates of the various stages of
the Work;
2.6.2 A preliminary schedule of Shop Drawing submissions: and -.
2.6.3 A preliminary schedule of values for all of the Work which will include quantities and prices of items
aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail
to serve as the basis for progress payments during construction. Such prices will include an
appropriate amount of overhead and profit applicable to each item of Work which will be confirmed
in writing by Contractor at the time of submission.
2.7. Before any Work at the site is started, Contractor shall deliver to Owner, with a copy to Engineer, ceitificates
and other evidence of insurance requested by Owner) which Contractor is required to purchase and maintain in
accordance with paragraphs 5.3 and 5.4.
Preconstruction Conference:
~,.
2.8 Within twenty days after the Effective Date of the Agreement, but before Contractor starts the Work at the ~ite,
a conference attended by Contractor, Engineer and others as appropriate will be held to discuss the schedules referred
to in paragraph 2.6, to discuss procedures for handling Shop Drawings and other submittals and for processing
Applications for Payment, and to establish a working understanding among the parties as to the Work.
Finalizing Schedules:
2.9. At least ten days before submission of the first Application for Payment a conference attended by Contractor,
Engineer and others as appropriate will be held to ~nalize the schedules submitted in accordance with paragraph 2.6.
The finalized progress schedule will be acceptable to Engineer as providing an orderly progression of the Work to
completion within the Contract Time, but such acceptance will neither impose on Engineer responsibility for the
progress or scheduling of the Work nor relieve Contractor from full responsibility therefor. The finalized schedule of
Shop Drawing submissions will be acceptable to Engineer as providing a workable arrangement for processing the
subnllssions. The finalized schedule of values will be acceptable to Engineer as to form and substance.
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
Intent:
3.1. The Contract Documents comprise the entire agreement between Owner and Contractor concerning the Work.
The Contract Documents are complementary; what is called for II,y one is as binding as if called for by all. The Contract
Documents will be construed in accordance with the law Of the State of Colorado.
3.2 It is the intent of the Contract Documents to describe a functionally'~omplete Project (or part thereof) to be
constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be
inferred from the Contract Documents as being required to produce the intended result will be supplied whether or not
specifically called for. When words which have a wall-known technical or trade meaning are used to describe Work,
materials or equipment such words shall be interpreted in accordance with that meaning. Reference to standard
specifications, manuals or codes of any technical society, organization a~ association, or to the Laws or Regulations of
any governmental authority, whether such reference be specific or by implication, shall mean the late~t standard
specification, manual, 6ode or Laws or Regulations in effect at the time of opening of Bids (or, on the Effective Date
of the Agreement if there were no Bids). except as may be otherwise specifically stated. However, no p~ovision of any
referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract
Documents) shall be effective to change the duties and responsibilities of Owner, Contractor or Engineer, or any of their
consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective to assign to
Engineer, or any of Engineer's consultants, agents or employees, any duty or authority to supervise or direct the
furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions
of paragraph 9.15 or 9.16. Clarifications and interpr~tatlons of the Contract Documents shall be issued by Engineer as
provided in paragraph 9.4.
3.3 If, during the performance of the Work, Contractor finds a conflict, error or discrepancy in the Contract
Documents, Contractor shall so report to Engineer and Owner in writing at once and before proceeding with the Work
affected thereby shall obtain a written interpretation or clarification from Engineer.
Amending and Supplementing Contract Documents:
3.4. The contract Documents may be amended to provide for additions, deletions and revisions in the Work or to
modify the terms and conditions thereof in one or more of the following ways:
3.4.1. A formal Written Amendment;
3.4.2. A Change Order (pursuant to paragraph 10.4); or,
3.4.3. A Work Directive Change (pursuant to paragraph 10.1).
As indicated in paragraphs 11.2 and 12.1. Contract Price and Contract Time may only be changed by a Change Order
or a Written Amendment.
3.5. In addition, the requirements of the Coniraet Documents may be supplemented, and minor variations and
deviations in the Work may be authorized, in one or more of the fullowing ways:
3.5.1. A Field Order (pursuant to paragraph 9.5).
3.5.2. Engineer's approval of a Shop Drawing or sample (pursuant to paragraphs 6.26 and 6.27); or,
3.5.3. Enginecr's written interpretation or clarification (pursuant to paragraph 9.4).
Reuse of Documents:
3.6. Neither Contractor nor any subcontractor or Supplier or other person or organization performing or furnishing
any~of the Work under a direct or indirect contract with Owner shall have or acquire any title to or ownership rights in
any of the Drawings.
Precedence of Con~. a~t Documents: ~
' 3.7 The Agreement governs over the Contract Documents. A Change Order governs over all other Contract
Documents. The Supplementary Conditions govern over the General Conditions.
ARTICLE 4 - AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS
Availability of Lands:
4.1. Owner shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be
performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of
Contractor. Contractor shall have full responsibility with respect to any conditions or prc~visions contained in applicable
easements relating to the lands upon which the Work is to be performed.
Physical Conditions:
4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Supplementary Conditions for identification
of those reports of explorations and tests of subsurface conditions at the site that have been utilized by Engineer in
preparation of the Contract Documents. Contractor may reasonably rely upon the accuracy of the technical data
contained in such reports, but not upon nontechnical data, interpretations or opinions contained therein or for the
completeness thereof for .Contractor's purposes. Except as indicated in the immediately preceding sentence and in
paragraph 4.2.6. Contractor shall have full responsibility with respect to subsurface conditions at the site. Contractor
shall not, by virtue of this paragraph, be relieved from exercising ordinary skill and competence with respect to reliance
upon the accuracy of the technical data contained in su? reports..
4.2.2. EXISTING STRUCTURES: Reference is made to the Supplementary Conditions for identification of those
drawings of physical conditions in or relating to existing surface and subsurface structures (except Underground
Facilities referred to in paragraph 4.3) which are at or contiguous to the site that have been utilized by Engineer in
preparation of the Contract Documents. Contractor may reasonably rely upon the accuracy of the technical data
contained in such drawings, but not for the completeness thereof for Contractor's purposes. Except as indicated in the
immediately preceding sentence and in paragraph 4.2.6 Contractor shall have full responsibility with respect to physical
conditions in or relating to such structures. Contractor shall not, by virtue ofthis paragraph, be relieved from exercising
ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such
drawings.
4.2.3. REPORT OF DIt~I~ERING CONDITIONS: IF Contractor believes that:
4.2.3.1. Any technical data on which Contractor is entitled to rely as provided in paragraphs 4.2.1 and 4i2.2
is inaccurate; or
4.2.3.2. Any physical condition uncovered or revealed at the site differs materially from that indi}:ated,
reflected or referred to in the Contract Documents.
Contractor shall promptly after becoming aware thereof and before performing any Work in connection therewith
(except in an emergency as permitted by paragraph 6.22 notify Owner and Engineer in writing about the inaccuracy or
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differe~ce~
4.2.4. ENGINEER'S REVIEW: Engineer will promptly review the pertinent conditions, determine the necessity of
obtaining additional explorations or tests with respect thereto and/~dvise Owner in writing (with a copy to Contractor)
of Engineer's findings and conclusions.
4.2.5. POSSIBLE DOCUMENT CHANGE: If Engineer concludes that there is a material error in the Con~'act
Documents or that because of newly diseovared conditions a change in the Contract Documents is required, a Work
Directive Change or a Change Order will be issued as provided in Article 10 to reflect and document thb consequences
of the inaccuracy or difference.
4.2.6. POSSI~LI~ PRICE AND TIME ADJUSTMENTS: In each such case, an increase or decrease in the Contract
· Price or an extension or shortening of the Contract Time, or any combination thereof, will be allowable to the extent
that they are attributable to any such inaccuracy or difference. If Owner and Contractor are unable to agree as to the
amount ~)r length thereof, a claim may be made therefor as provided in Axtieles 11 and 12.
Physical Conditions- Underground Facilities:
4.3.1. SHOWN OR INDICATED: The information and data shown or indicated in the Contract Documents with
respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to
Owner or Engineer by the owners of such Underground Facilities or by others. Unless it is otherwise expressly provided
in the Supplementary Conditions: .
4.3.1.1. Owner and Engineer shall not be responsible for the accuracy.or completeness of any :such
information or data; and, .
4.3.1.2. Contractor shall have full responsibility for determining the existence of all Underground Facilities,
for reviewing and checking all such information and data, for locating all Underground Facilities
shown or indicated in the Contract Documents, for coordination of the Work with the owners of such
Underground Facilities during construction, for the safety and protection thereof as provided in
paragraph 6.20 and repairing any damage thereto resulting from the Work, the cost of all of which
will be considered as having been included in the Contract Price.
4.3.2. NOT SHOWN OR ]ENDICATED. If an Underground Facility is uncovered or revealed at or contiguous to the
site which was not shown or indicated in the:Contract Doeumants and which Contractor could not reasonably have been
expected to be aware of, Contractor shill, promptly after b~coming aware thereof and before performing any Work
affected thereby (except in an emergency as permitted'by paragraph 6.22), identify the owner of such Underground
Facility and give written notice thereof to that owner and to Owner and Engineer. Engineer will promptly review the
Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and
document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended
or supplemented to the extent necessary. During such time, Contractor shall be responsible for the safety and protection
of such Underground Facility as provided in paragraph 6.20. Contractor shall be allowed an increase in the Contract
Price or an extension of the Contract Time, or both, to the extent that they are attributable to the existence of any
Underground Facility that was not shown or indicated in the Contract DoCuments and which Contractor could not
reasonably have been expected to be aware of. If the parties are unable to agree as to the amount or length thereof,
Contractor may make a claim therefor as provided in Articles 11 and 12.
Reference Points:
4.4. Owner shall provide engineering surveys tO establish reference points for construction which in Engineer's
judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out
the Work (unless otherwise specified in the General Requirements), shall protect and preserve the established reference
points and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report
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go Engineer whenever any referehce point is lost or destroyed or requires relocation because of necessary changes in
grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by
professionally qualified personnel.
Protection of Existing Vegetation:
4.5 Contractor shall preserve and protect existing vegetation such as trees, shrubs, and grass on or adjacent to the
work site which are not indicated to be removed and which do not unreasonably interfere with the cons~uction w, ork l
and he shall replace in kind the vegetation, shrubs and gmas'damaged by him at his own expense.
ARTICLE 5-BONDS AND INSURANCE
Performance and Other Bonds:
5.1. Contractor shall furnish performance and payment Bonds, each in an amount at least equal to the Contract Price
as security for the faithful performance and payment of all Contractor's obligations under the Contract Documents.
These Bonds shall remain in effect at least'until one year after the date when final payment becomes due, except as
otherwise provided by Law or Regulation or by the Contract Documents. Contractor shall also furnish such other Bonds
as are required by the Supplementary Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or
by the Contract Documents and be executed by such sureties as are named in the ct~rrent list of "Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as
published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All Bonds
signed by an agent must be accompanied by a certified copy of the authority to act.
5.2. If the surety on any Bond furnished by Contractor is declared a bankxupt or becomes insolvent or its right to
do business is terminated in any state or it ceases to meet the requirements of paragraph 5.1, Contractor shall within five
days thereafter substitute another Bond and Surety, both of which must be acceptable to Owner.
Contractor's Liability Insurance:
5.3. Contractor shall purchase and maintain such comprehensive general liability and other insurance as is
appropriate for the Work being performed ~nd fumish?d and as Will provide protection from claims set forth below
which may arise out of or result from Contractor's performance and furnishing of the Work and Contractor's Other
obligations under the Contract Documents, whether it is to be performed or furnished by Contractor, by any
Subcontractor by anyone directly or indirectly employed by any of them to perform or furnish any of the Work, or by
anyone for whose acts any of them may be liable:
5.3.1. Claims under workers' or workmen's compensation, disability benefits and other similar employee
benefit acts;
5.3.2. Claims for damages because of bodily injury, occupational sickness or disease, or death of
Contractor's employees; ~
5.3.3. Claims for damages because of bodily injury, sickness or disease, or death of any person other than
Contractor's employees;
5.3.4. Claims for damages insured by personal injury liability coverage which are sustained (a) by any
person as a result of an offense directly or indirectly related to the employment of such person by
Contractor, or (b) by any other person for any other reason;
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5.3.5. Claims for damages, other than to the Work itself, because of injury to or destruction of tangible
property wherever located, including loss of use resulting therefrom;
5.3.6.Claims arising out of operation of Laws or Regulations for damages because of bodily injury or death
of any person or for damage to property; and,
5.3.7. Claims for damages because of bodily injury or death of any person or property damage arising out
of ownership, maintenance or use of any motor vehicle.
The insurance required by this paragraph 5.3 shall include the specific coverages and be written for not less than the
limits of liability and coverages provided in the Supplementary Conditions, or required by law, whichever is g~ater.
The comprehensive general liability insurance shall include completed operations insurance. All of the policies of
insurance, so required to be purchased and maintained (or the certificates or other evidence thereof) shall contain a
provision or endorsement that (a) the insurance meets the requiremefits of this paragraph and the Supplementary
Conditions, and (b) the coverage afforded will not be canceled, materially changed or renewal refused until ~it least thirty
days' prior wrltlen notice has been given to Owner and Engineer by certified mall. All such insurance shall remain in
effect until final payment and at all times thereafter when Contractor may be correcting, removing or replacing Defective
Work in accordance with paragraph 13.12. !n addition, Contractor shall maintain such completed operations insurance
for at least two years after final payment and furnish Owner with evidence of continuation of such insurance at final
payment and one year thereafter. The'insurance required by this paragraph 5.3 sha!l include the City of Aspen as an
additional or co-insured.
Contractual Liability Insurance:
5.4. The comprehensive general liability insurance required by paragraph 5.3 will include contractual liability
insurance applicable to Contractor's obligations under paragraphs 6.30 and 6.31. The insurance required by this
paragraph 5.4 shall include general public liability insurance against all direct or contingent loss or reliability for
property damage, personal injury or death occasioned by reasons of the Work to be performed, of not less than those
specified by Section 24-10-114, C.R.S., as may be amended from time to time, naming the Owner as additional or co-
insured.
Owner's Liability Insurance:
5.5. The parties hereto understand that the Owner is a member of the Colorado Intergovernmental Risk Sharing
Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and
manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal
business hours. Owner makes no representations whatsoever with respect to specific coverages offered by CIRSA.
Owner shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA.
Property Insurance:
5.6 Unless otherwise provided in the Supplem'~ntal Conditions, Contractor shall purchase and maintain property
insurance upon the Work at the site to the full insurable value thereof (subject to such deductible amounts as
may be provided in the Supplementary Conditions or required by law). This insurance shall include the
interests of Owner, Contractor and Subcontractors in the Work, shall insure against the perils of fire and
~ extended coverage, shall include "all risk" insurance for physical loss and damage including theft, vandalism
and malicious mischief, collapse and water damage, and such other perils as may be provided in the
Supplementary Conditions, and shall include damages, Josses and expenses arising out of or resulting from any
insured loss or incurred in the repair or replacement of any insured property (including fees and charges of
engineers, architects, attorneys and other professionals). If not covered under "all risk" insurance or otherwise
provided in the Supplementary Conditions, Contractor shall purchase and maintain similar property insurance
on portions of the Work to be included in an Application for PAyment. Such coverage shall be provided until
9
the issuance of a certificate of substantial completion. The policies of insurance required to be purchased and
maintained by Contractor in accordance with paragraphs 5.6 and 5.7 shall contain a provision that the coverage
afforded will not be canceled or materially changed until at least thirty (30) days prior written notice has been
given to Owner.
ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES
Supervision and Superintendence:
6.1. 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.
Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of consh'uction.
Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents.
6.2. Contractor shall keep on the Work at all times during its progres~ a competent resident superintendenti who
shall not be replaced without written notice to Owner and Engineer except under extraordinary circumstances. The
superintendent will be Contractor's representative at the site and shall have authority to act on behalf of Contractor~ All
communications given to the superintendent shall be as binding as if given to Contractor.
Labor, Materials and Equipment:
6.3.. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform
coyistmction as required by the Contract Documents. Contractor shall at all times maintain good discipline and Order
at the site. Except in connection with the safety or protection of persons or the work or property at the site or adjacent
thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during
regular working hours, and Contractor will not permit overtime work or the performance of Work on Saturday, Sunday
or any legal holiday without Owner's written consent given after prior written notice to Engineer.
6.4. Unless otherwise specified in the General Requirements, Contractor shall furnish and assume full responsibility
for all materials, equipment, labor, transportation, construction equipment and machinery, too s, appliances, fuel, power,
light, heat, telephone, water, sanitary facilities, temporar~ facilities and all other facilities and incidentals necessary for
the furnishing, performance, testing, start-up and completion of the Work.
6.5. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract
Documents. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests)
as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed,
connected, erected, used, cleaned and conditioned in accordance with the inslmctions of the applicable Supplier except
as otherwise provided in the Cona'act Documents; but no provision of any such instructions will be effective to assign
to Engineer, or any of Engineer's consultants, agents or employees, any duty or authority to supervise or direct the
fumishlng or performance of the Work or any duty~r authority to undertake responsibility contrary to the provisions
of paragraph 9.15 or 9.16.
10
Adjusting Progress Schedule:
6.6. Contractor shall submit to Engineer for acceptance (to the extent indicated in paragraph 2.9) adjustments in
the progress schedule to reflect the impact thereon of new developments; these will conform generally to the prQgrass
schedule then in effect and additionally will comply with any provisions of the General Requirements applicable thereto.
Substitutes of "or-e. qual" Items:
6.7.1. Whenever materials or equipment are specified or described in the Contract Documents by using the name of
a proprietary item or the name of a particular Supplier the naming of the item is intended to establish the type, function
and quality required. Unless the name ls followed by words indicating that no substitution is permitted, materials or
equipment of other Suppliers may be accepted by Engineer if sufficlen't information is submitted by Contractor to allow
Engineer to determine that the material or equipment proposed is equivalent or equal to that named. The procedure for
review by Engineer will include the foflowing as supplemented in the General Requirements. Requests for review of
substitute items of material and equipment will not be accepted by Engineer from anyone other than ContractOr. If
Contractor wishes to furnish or use a substitute item of material or equipment, Contractor shall make written application
to Engineer for acceptance thereof, certifying that the proposed substitute will perform adequately the functions and
achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to
the same use as that specified. The application will state that the evaluation and acceptance of the proposed substitute
will not prejudice Contractor's achievement of Substantial Completion on time, whether or not acceptance Of the
substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any Other
direct contract with Owner for work on the Project) to adapt the design to the proposed substitute and whether Or not
incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty.
All variations of the proposed substitute form that specified will be identified in the application and available
maintenance, repa!r and replacement service will be indicated. The application will also contain an itemized estimate
of all costs that Will result directly or indirectly from acceptance of such substitute, including costs of redesign and
claims of other contractors affected by the resulting change, all of which shall be considered by Engineer in evaluating
the proposed substitute. Engineer may require Contractor to furnish at Contractor's expense additional data about the
proposed substitute.
6.7.2. If a specific means, method, technique, sequence or procedure of construction is indicated in or required by
the Contract Documents, Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure
of construction acceptable to Engineer. The procedure for review by Engineer will be similar to that provided in
paragraph 6.7.1 as applied by Engineer and as may be ~upplemented in the General Requirements.
6.7.3. Engineer will be allowed a reasonable time within which to evaluate each proposed substitute. Engineer wiil be
the sole judge of acceptability, and no substitute will be ordered, installed for utilized without Engineer's prior written
acceptance which will be evidenced by either a Change Order or an approved Shop Drawing. Owner may .require
Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any
substitute. Engineer will record time required by Engineer and Engineer's consultants in evaluating substitutions
proposed by Contractor and in making changes in the Contract Documents occasioned thereby. Whether or not
Engineer accepts a proposed substitute, Contractor shall reimburse Owner for the charges of Engineer and Engineer's
consultants for evaluating each proposed substitute.
Concerning Subcontractors, Suppliers and Others:
6.8.11 Contractor shall not employ any Subcontractor, Supplier or other person or organization (including those
acceptable to Owner and Engineer as indicated in paragraph 6.8.2), whether initially or as a substitute, against whom
Owner or Engineer may have reasonable objection.
6.8.2. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers or other persons or
organizations including those who are to furnish the principal items of materials and equipment to be submitted to
Owner in advance of the specified date prior to the Effective Date of the Agreement for acceptance by Owner and
11
Engineer and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner's or
Engineer's acceptance (either in writing or by failing to make written objection thereto by the date indicated for
acceptance or objection in the bidding documents or the Contract Documents) of any such Subcontractor, Supplier or
other person or organization so identified may be revoked on the basis of reasonable objection after due investigation,
in which case Contractor shall submit an acceptable substitute, the Contract Price will be increased by the difference
in the cost occasioned by such substitution and an appropriate Change Order will be issued or Written Amendment
signed. No acceptance by Owner or Engineer of any such Subcontractor, Supplier or other person or organization shall
constitute a waiver ~f any right of Owner or Engineer to reject Defective Wor. l~.
.6.9. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors,
Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect
eotitraet with Contractor just as Contractor is responsible for Contractor's own acts and Omissions. Nothing in the
Contract Documents shall create any contractual relationship between Owner or Engineer and any such Subcontractor,
Supplier or uther person or organization, nor shall it create any obligati6n on the part of Owner or Engineer to pay or
to see to the payment of any moneys due any such Subcontractor, Supplier or other person or organization except as
may otherwise be required by Laws and Regulations.
6.10. The divisions and sections of the Specifications and the identifications of any Drawings shall not control
Contractor in dividing the Work among Subcontra,lturs or Suppliers or delineating the Work to be performed by any
speeifio trade.
6.11. All Work performed for Contractor by a Subcontractor will be pursuant to an appropriate agreement between
Contractor and the Subcontractor which specifically binds the Subcontractor to the Applicable terms and conditions of .
the Contract Documents for the benefit of Owner and Engineer and contains waiver provisions as required by paragraph
5.11. Contractor shall pay each Subcontractor a just share of any insurance moneys received ,by Contractor on account
of losses.
Patent Fees and Royalties:
6.12. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance
of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject
of patent rights or copyrights held by others~ Contractor shall indemnify and hold harmless Owner and Engineer and
anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses
(including attorney's fees and court costs) arising out of ~lny infringement of patent 'rights or copyrights incident to the
use in the performance of the Work or resulting from the product or device not specified in the Contract Documents,
and shall defend all such claims in connection with any alleged infringement of such rights.
Permits:
6.13. Unless otherwise provided in the Supplementary Conditions, Contractor shall obtain and pay for all
construction permits and licenses. Owner shall assist Contractor, when necessary, in obtaining such permits and
licenses. Contractor shall pay all governmental charges and inspection fees necessary for the I~rosecution of the Work
which are applicable at the t'me of opening of BldJ on the Effective Date of the Agreement: Contractor shall pay all
charges of utility owners for connections to the Work, and Owner shall pay all charges of such utility owners for caPital
costs related thereto such as plant investment fees.
Laws and Regulations:
6.14.1. Contractor shall give all notices and comply with all Laws and Regulations applicable to furnishing and
performance of the Work, Except where otherwise expressly required by applicable Laws and Regulations, neither
Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations.
12
6.14.2. If Contractor observes that the Specifications or Drawings are at variance with any Laws or Regulations,
Contractor shall give Engineer prompt written notice thereo[, and any necessary changes will be authorized by one of
the methods indicated in paragraph 3.4. If Contractor performs any Work knowing or having reason to know that it is
contrary to Laws or Regulations, and without such notice to Engineer, Contractor shall bear all costs arising therefrom.
6.15. Contractoi shall pay all sales, consumer, use and other similar taxes required to be paid by Contractor in
. accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of
the Work.
Use of Premises:
6.16. Contractor shall confine construction equipment, the storage of materials and equipment and the operations
of workers to the Project site and land and areas identified in and permitted by the Contract Documents and other land
and areas permitted by Laws and Regulations, rights-of-way, permits and easements, and shall not unreasonably
encumber the premises with construction equipment or other materials or equipment. Contractor shall assume full
responsibility for any damage to any such land or area, or to the owner or occupant thereof er of any land or ~eas
contiguous thereto, resulting from the performance of the Work. Should any claim be made against Owner or Engineer
by any such owner or occupant because of the performance of the Work, Contractor shal~ promptly attempt to settle with
such other party by agreement or otherwise resolve the claim by arbitration or at law. Contractor shall, to the fullest
extent permitted by Laws and Regulations, indemnify and hold Owner and Engineer harmless from and against all
claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other
professionals and court and arbitration costs) arising directly, indirectly or consequentially out of any action, legal or
equitable, brought by any such other party against Owner or Engineer to the extent based on a claim arising out of
Contractor's performance of the Work.
6.17. During the progress of the Work, Contractor shall keep the premises free from accumulations of waste
materials, rubbish and other debris resulting from the Work. At the completion of the Work Contractor shall remove
all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction
equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by Owner.
Contractor shall restore to original condition all prope~y not designated for alteration by the Contract Documents.
6.18. Contractor shall not load or permit any part of any structure'to be loaded in any manner that will endanger the
structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will
endanger it.
Record Documents:
6.19. Contractor shall maintain in a safe place at the site one record copy of all Drawings, Specifications, Addenda,
Written Amendments, Change Orders, Work Directive Changes, Field Orders and written interpretations and
clarifications (issued pursuant to paragraph 9.4f'in good order and annotated to show all changes made during
construction. These record documents together with all approved samples and a counterpart of all approved Shop
Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, samples
and Shop Drawings will be delivered to Engineer for Owner.
Safety and Protection:
6.20. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs
in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
13
6.29.1. all employeeg on the Work and other persons and organizations who may be affected thereby;
6.20.2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the
site; and
6.20.3. other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, road-
ways, sh'uetoras, utilities and Underground Facilities not designated for removal, relocation or
replacement in the coume of construction.
· Contractor shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety
of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protecfi6n. Contractor shall notify owners of adjacent prOPerty and of Underground
Facilities and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the
protection, removal, relocation and replacement of their property. All ~mnage, injury or 10ss to any property referred
to in paragraph 6.20.2 or 6.20.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor,
Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any
of the Work or anyone: for whose acts any of them may be liable, shall be remedied by Contractor. Contractor's duties
and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed
and Engineer has issued a notice to Owner and Contractor in accordance with paragraph 14.13 that the Work is
acceptable (except as otherwise expressly provided in connection with Substantial .Completion).
6.21. Contractor shall designate a responsible representative at the site whose duty shall be the prevention of
accidents. This person shall be Contractor's superintendent unless otherwise designated in writing by Contractor to
Owner.
Emergencies:
6.22. In emergencies affecting the safety or protection of persons or the Work or property at the 'site or adjacent
thereto, Contractor, without special instruction or authorization from Engineer or Owner, is obligated to act to prevent
threatened damage, injury or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any
significant changes in the Work or variations from the Contract Documents have been caused thereby. If Engineer
determines that a change in the Contract Documents is required because of the action taken in response to an emergency,
a Work Directive Change or Change Order will be issued to document the consequences of the changes or variations.
Shop Drawings and Samples:
6.23. After checking and verifying all field measurements and after complying with applicable procedures specified
in the General Requirements, Contractor shall submit to Engineer for review and approval in accordance with the
accepted schedule of Shop Drawing submissions (see paragraph 2.9), Or for other appropriate action if so indicated in
the Supplementary Conditions, five copies (unless otherwise specified in the General Requirements) of all Shop
Drawings, which will bear a stamp or specific written indication that Contractor has satisfied Contractor's responsibilities
under the Contract Documents with respect to th~ review of the submission. All submissions will be identified as
Engineer may require. The data shown on the Shop Drawings will be complete with respect to quantities, dimensions,
specified performance and design criteria, materials and similar data to enable Engineer to review the information as
required.
6.24. Contractor shall also submit to Engineer for review and approval with such promptness as to cause no delay
in Work, all samples required by the Contract Documents. All samples will have been checked by and accompanied
by a specific written indication that Contractor has satisfied Contractor's responsibilities under the Contract Documents
with respect to the review of the submission and will be identified clearly as to material, Supplier, pertinent data such
as catalog numbers and the Use for which intended.
14
6.25.1 Before submission of each Shop Drawing or sample, Contractor shall have determined and verified all
quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar
data with respect thereto and reviewed or coordinated each Shop Dra~ving or sample with other Shop Drawings and
samples and with the requirements of the Work and the Contract Documents.
6.25.2 At the time of each submission, Contractor shall give Engineer specific written notice of each variation that
the Sho~ Drawings or samples may have from the requirements of the Contract Documents, and, in addition, shall cause
a spec~ifie notation to be made on each Shop Drawing submitted to Enginee~;.for review and approval of each such
variation.
6.26~ Engineer will review and approve with reasonable promptness Shop Drawings and samples, but Engineer's
review and approval will be only for conformance with the design concept of the Project and for compliance with the
information given in the Contract Documents and shall not extend to means, methods, techniques, sequences or
procedures of construotion (except where a specific means, method, technique, sequanee or procedure of construction
is indicated in or required by the Contract Documents) or'to safety precaniions or programs incident thereto. The review
and approval of a separate item as such will not indicate approval of the assembly in which the item functions.
Contractor shall make corrections required by Engineer, and shall return the required number of corrected cop!es of
Shop Drawings and submit as required new samples for review and approval. Contractor shall direct specific attention
in writing to revisions other than the corrections called for by Engineer on previous submittals.
6.27. Engineer's review and approval of Shop Drawings or samples shall not relieve Contractor from responsibility
for any variation from the requirements of the Contract Documents unless Contractor has in writing called Engineer's
attention to each such variation at the time of submlssion as required by paragraph 6.25.2 and Engineer has given written
approval of each such variation by a specific written notation thereof incorporated in or accompanying the Shop
Drawing or sample approval; nor will any approval by Engineer relive Contractor from responsibil)ty for errors or
omissions in the Shop Drawings or from responsibility for having complied with the provisions of paragraph 6.25.1.
6.28. Where a Shop Drawing or sample is required by the Specifications, any related Work performed prior to
Engineer's review and approval of the pertinent submission will be the sole expense and responsibility of Contractor.
Continuing the Work:
6.29. Contractor shall cany on the Work and adhere,to the progress schedule during all disputes or disagreements
with Owner. No Work shall be delayed or postponed p~nding resolution of any disputes or disagreements, except as
permitted herein or as Contractor and Owner may otherwise agree in writing.
'~ Indemnification:
6.30. To the fullest extent permitted by Laws and Regulations Contractor shall indemnify and hold harmless Dwner
and Engineer and their officers, consultants, agents and employees from and against all claims, damages, losses and
expenses, direct, indirect or consequential (including but not limited to fees and charges of engineers, architects,
attorneys and other professionals and court and arbitration costs) arising out of or resulting from the performance of the
Work provided that any such claim, damage, loss ~6r expense (a) is attributable to bodily injury, sickness, disease or
death, or to injury to or dastrucfion of tangible property (other than the Work itself) including the loss of use resulting
therefrom and (b) is caused in whole or in part by any act or omission of Contractor, any Subcontractor, any person or
organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose
acts. any of them may be iable, regardless of whether or not it is caused in part by a party indemnified hereunder or
arises by or s imposed by Law and Regulations regardless of the negligence of any such party.
6.31. In any and all claims against Owner or Engineer or any of their officers, consultants, agents or employees by
any employee of Contractor, any Subcontractor, any person or organization directly or indirectly employed by any of
them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, the indemnification
obligation under paragraph 6.30 shall not be limited in any way by any limitation on the amount or type of damages,
15
compensation or benefits payable by or for Contractor or any such Subcontractor or other person or organization Under
workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
ARTICLE 7 - OTHER ~ORK
Related Work at Site:
7.1. Owner may perform other work related to the Project at the site by Owner's own forces, have other work
performed by utility owners or let other direct contracts therefor which shall contain General Conditions similar to these.
ff Contractor believes that such performance will involve additional expense to Contractor or requires additional time
and the parties are unable to agree as to the extent thereof, Contractor niay make a claim therefor as provided herein.
7.2 Contractor shall afford each utility owner and other contractor who is a party to such a direct contract (or
Owner if Owner is performing the additional work with Owner's employees) proper and safe access to the site and a
reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work, and
shall properly connect and coordinate the Work with theirs. Contractor shall do all cutting, fitting and patehlng Of th~
Work that may be required to make its several parts Come together properiy and integrate with such other work.
Contractor shall not endanger any work of others by cutting, excavating or otherwise altering thei? work and will only
cut or alter their work with the written consent of Engineer and the others whose work will be affected. The duties and
responsibilities of Contractor under this paragraph me for the benefit of such utility owners and other conn'aetors to the
extent that there are comparable provisions for the benefit of Contractor in said direct ~ontraets between Owner and such
utility owners and other contractors.
7.3. If any part of Contractor's Work depends for proper execution or results upon the work of any such other
contractor or utility owner (or Owner), Contractor shall inspect and promptly report to Engineer in writing any delays,
defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results.
Contractor's failure so to report will constitute an acceptance of the other work as fit and proper for integration with
Contractor's Work except for latent or nonapparent defects and deficiencies in the other work.
Coordination: :
7.4. If Owner contracts with others for the performance of other work on the Project at the site, the person or
organization of the activities among the various prime contractors may be identified in the Supplementary Conditions,
and the specific matters to be covered by such authority and responsibility may be itemized, and the extent of such
authority and responsibilities may be provided, in the Supplementary Conditions. Unless otherwise provided in the
Supplementary Conditions, neither Owner nor Engineer shall have any authority or responsibility in respect of such
coordination.
ARTICLE 8 - OWNER'S RESPONSIBILITIES' -
8.1. Owner shall issue all communications to Contractor through Engineer.
8.2. ~ In case of termination of the employment of Engineer, Owner shall appoint an engineer whose status under
the Contract Documents shall be that of the former Engineer.
8.3. Owner shall furnish the data required of Owner under the Contract Documents promptly and shall make
payments to Contractor promptly after they are due as provided herein.
16
ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION
Owner's Representative:
9.1. Engineer will be Owner's representative during the construction period. The duties and responsibilities and
the limitations of authority of Engineer as Owner's representative during construction are set forth in the COntract
Documents and shall not be extended without written consent of Owner and Engineer.
/
Visits to Site:
9.2. Engineer will make visits to the site at intervals appropriate to the various stages of construction to observe the
progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with
the Contract Documents. Engineer will not be required to make exhaustive or continuous on-site inspections to check
the quality or quantity of the Work. Engineer's efforts will be directed toward providing for Owner a greater degree of
confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on-site
observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against
defects and deficiencies in the Work.
Project Representation:
9.3. If Owner and Engineer agree, Engineer will furnish a Resident Project Representative to assist Engineer in
observing the performance of the Work. The duties, responsibilities and limitations of authority of any such Resident
Project Representative and assistants will be as provided in the Supplementary Conditi~i~s. If Owner designates another
agent to represent Owner at the site who is not Engineer's agent or employee, the duties, responsibilities and limitations
of authority of such other person will be as provided in the Supplementary Condi~ions~
Clarification and Interpretations:
9.4. Engineer will issue with reasonable promptness such written clarifications or interpretations of the
requirements of the Contract Documents (in the form of Drawings or otherwise) as Engineer may determine necessary,
which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. IF Contractor
belleves that a written clarification or inte.rpretation justifies an increase in the Contract Price or an extension of the
Contract Time and the parties are unable to agree to the amount or ~xtent thereof. Contractor may make a claim therefor
as provided herein. ~
Authorized Variations in Work:
9.5. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which
do not involve an adjus~meat in the Contract Price or the Contract Time and are consistent with the overall intent of the
Contract Documents. These may be accomplished by a Field Order and will be binding on Owner, and also on
Contractor who shall perform the Work involved promptly. If Contractor believes that a Field Order justifies an increase
in the Contract Price or an 9xtension of the Contra?t Time and the parties are unable to agree as to the amount or extent
thereof, Contractor may make a claim therefor ag~revided herein.
Rejecting Defective Work:
9.6. Engineer will have authority to disapprove or reject Work which Engineer believes to be Defective, and will
also have authority to require spe~:ial inspection or testing of the Work as provided hereinbelow, whether or not the
Woi'k is fabricated, installed or completed.
17
Shop Drawings, Change Orders and Payments:
9.7. In connection with Engineer's responsibility for Shop Drawings and samples, see paragraphs 6.23 through 6.29
inclusive.
9.8. In connection with Engineer's responsibilities as to change orders, see Articles 10, 11 and 12.
9.9. In connection with Engineer's responsibilities in respecl: of Applications for Payment, etc., see Article 14.
Determinations fop Unit Prices:
9.10. Engineer will determine the actual quantifies and classifications of Unit Price Work performed by Contractor,
Engineer will review with Contractor preliminary determinations on such matters before ~endaring a written decision
thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decisions thereon will
be final and binding upon Contractor, unless, within ten days after the'date of any such decision, Contractor delivers
to Owner and to Engineer written notice of intention to appeal from such a decision. .~
Decisions on Disputes:
9.11. Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the
acceptability of the Work thereunder. Claims, disputes and other matters raised by Contractor relating to the
acceptability of the Work or the interpretation of the requirements of the Contra~;[ Documents pertaining to the
performance and furnishing of the Work and claims under Articles 11 and 12 in respect of changes in the Contrant Price
or Contract Time shall be referred initially to Engineer in writing with a request for a formal decision in accordance with
this paragraph, which Engineer will render in writing within a reasonable time. Written notice of each such claim,
dispute and other matter by Contractor will be delivered to Engineer and Owner promptly (but in no event later than
thirty days) after the occurrence of the event giving rise thereto, and written supporting data will be submitted to
Engineer and Owner within sixty days after such occurrence unless Engineer allows an additional period of time to
ascertain more accurate data in support of the claim.
9.12. The rendering of a decision by Engineer pursuant to paragraphs 9.10 and 9.11 with respect to any such claim,
dispute or other matter shall be a eondltion precedent to any exercise by Contractor of such rights or remedies as
Contractor may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such claim,
dispute or other matter. Owner shall not be bound by any initial interpretation by Engineer of the requirements of the
.Contract Documents, judgment on the a~:ceptability of the Work thereunder, or formal decision made by the Eng!neer
tn accordance with paragraph 9.10 or 9.11. Any dispute not resolved by the initial decision of the Engineer shall be
decided by Owner, who shall reduce the decision in writing and furnish a copy thereof to Contractor and Engineer The
decision of the Owner shall be final subject to review by the Pitkin County District Court in Pitkin County, Colorado.
Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the Work
and in accordance with the Engineer's interpretation.
Limitations on Engineer's Responsibilities:
9.13. Neither Engineer's authority to act under t~lis Article 9 or elsewhere in the Contract Documents nor any decision
mad,e by Engineer in good faith either to exercise or not exercise such authority shall give rise to any duty or
responsibility of Engineer to Contractor, any Subcontractor, any Supplier, or any other person or organization
performing any of the Work, or to any surety for any of them.
9.14. Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed'!, "as
approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper"
or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgement
18
of Engineer as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate
the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise) The
use of any such term or adjective shall not be effective to assign to Engineer any duty or authority to supervise or direct
the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the Contract
Documents.
ARTICLE 10 - CI;IANGES IN TItlg WORK
10.1. Without invalidating thc Agreement and without notice to any surety, Owner may, at any time or from time
to time, order additions, deletions or revisions in the Work; these will be anthofized by a Written Amendment, a Change
Order, or a Work Directive Change. Upon receipt of any Such document, Conh'actor shall promptly proceed with the
Work involved which will be performed under the applicable eondiOoas of the Contract Documents (except as otherwise
specifically provided).
10.2. If Owner and Contractor are unable to agree as to the extent, if any, of an increase or decrease in the Contract
Price or an extension or shortening of the Contract Time that should be allowed as a result of a Work Directive Change,
a claim may be made therefor as provided in Article 11 or Article 12.
10.3. Contractor shall not be entided to an increase in the Contract Price or an extension of the Contract Time with
respect to any Work performed that is not required by the Contract Documents as amended, modified and supplemented
as prOvided in paragraphs 3.4 and 3.5. except in the case of an emergency as provided in paragraph 6.22 and except in
the case of uncovering Work as provided in paragraph 13.9.
10.4. Owner and Contractor shall execute appropriate Change Orders (or Written Amendments) covering:
10.4.1. Changes in the Work which are ordered by Owner pursuant to paragraph 10.1. are required because
of acceptance of Defective Work under paragraph 13.13 or correcting Defective Work under
paragraph 13.14 or are agreed to by the parties:
10.4.2. Changes in the Contract Price or Contract Time which are agreed to by the parties: and
10.4.3. Changes in the Contract Price or Contract Time which embody the substance of any written decision
rendered by Engineer pursuant to paragraph 9.11.
provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance
with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal,
Contractor shall cany on the Work and adhere to the progress schedule as provided in paragraph 6.29.
10.5. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents
(including, but not limited to, Contract Price or Contract Time) is required by the provisions of any Bond to be given
to a surety, the giving of any such notice will be Contractor's responsibility, and the amount of each applicable Bond
will be adjusted accordingly.
19
ARTICLE 11 - CHANGE OF CONTRACT PRICE
11.1. The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to Contractor
for performing the Work. All duties, responsibilities and obligations assigned to or undertaken by Contractor shall be
at his expense without change in the Contract Price.
11.2. The Con~act Pri~e may only be changed by a Change Order or by a Written Amendn~ent, Any claim for an
increase or decrease in the Contract Price shall be based on written notice dali~vered by the l~arty making the claim to
· the other party and (o Engineer promptly (but in no event later, than thirty days) afrer the occurrence of the event giving
- rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with supporting data shall
be delivered within sixty days after such occurrence (unless Engineer allows an additiona! period of time to ascertain
mom accurate data in support of the claim) and shall be accompanied by claimant's written statement that the amount
claimed covers all known amounts (direct, indirect and consequential). ~o which the claimant is entitled as a result of
the occurrence of said event. All claims for adjustment in the Contract Price shall be determined by Engineer in
accordance with paragraph 9.11 if Owner and Contractor cannot otherwise agree on the amount involved. No claim
for an adjustment in the Contract Price will be valid if not submitted in accordance with this paragraph 11.2.
11.3, The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract
Price shall be determined in one of the following ways:
11.3.1. Where the Work involved is covered by unit prices c0ntaincd in the Contract Documents, by
application of unit prices to the quantities of the items involved. (subject to the provisions of
paragraphs 11.9.1. through 11.9.3. inclusive).
11.3.2. By mutaal acceptance of a lump sum (which may include an allowance for overhead and profit not
necessarily in accordance with paragraph 11.6.2.1),
I 1.3.3. On the basis of the Cost of the Work (determined as provided in paragraphs 11.4 and 11.$) plus a
Contractor's fee for overhead and profit (determined as provided in paragraphs 11.6 and 11.7)
Cost of the Work:
11.4. The term Cost of the Work means the sum of all costs nec6ssarily incurred and paid by Contractor in the proper
performance of the Work. Except as otherwise may be 'agreed to in writing by Owner, such costs shall-be in amounts
no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include
any of the costs itemized in paragraph 11.5:
11.4.1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules
of job classifications agreed upon by Owner and Contractor. Payroll costs for employees not employed full time on the
Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited
to, salaries and wages plus the cost of fringe benefits which shall include social security con~butions, unemployment,
excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick leave,
vacation and holiday pay applicable thereto. Such employees shall include superintendents and foremen at the site. The
expenses of performing Work after regular working'hours, on Saturday, Sunday or legal holidays, shall be included in
the above to the extent prior written authorization was obtained from Owner.
11.4.2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation
and s, torage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to
Contractor unless Owner deposits funds with Contractor with which to make paymants, in which case the cash discounts
shall accrue to Owner. All trade discounts, rebates and refunds and all returns from sale of surplus materials and
equipment shall accrue to Owner and Contractor shall make provisions so that they may be obtained.
11.4.3. Payments made bY Contractor to the Subcontractors for Work performed by Subcontractors. If required by
Owner, Contractor shall obtain competitive bids from Subcontractors acceptable to Contractor and shall deliver such
2o
bids to Owner who will then determine, with the advice of Engineer, which bids will be accepted. If a subconiract
provides that the Subcontractor is to be paid on the basis of Cost of the Work Plus a Fee, the Subcontractor's C6st of
the Work shall be determined in the same manner as Contractor's cost of the Work. All sabcontracts shall be subject
to the other provisions of the Contract Documents insofar as applicable.
11.4.4. Costs of special consultants (including but not limited to enginears, architects, testing laboratories, surve,yors!
attorneys and accountants) employed for services specifically related to the Work.
11.4.5. Supplemefital costs including the following:
11.4.5.1. The proportion of necessary transportation, travel and subsistence 6xpenses of Contractor's
employees irieurred in dis~:harge of duties connected with the Work.
11.4.5.2. Cost, including transportation and maintenance, of all materials, supplies, equipment,
machinery, appliances, office and temporary facilities at the site and hand tools not owned
by the workers, which are consumed in the performance of the Work, and cost less market
value of such items used but not consumed which remain the property of Contractor.
11.4.5.3. Rentals of all construction equipment and machine~ and the parts thereof whether rented
fi.om Contractor or others in aiecordance with rental agreements approved by Owner with the
advice of Engineer, and the costs of transportation, loading, unloading, installation,
dismantling and removal thereof-all in accordance with terms of said rental agreements. The
rental of any such equipment, machinery or parts shall cease when the use thereof is no
longer necessary for the Work.
11.4.5.4. Sales, consumer, use or similar taxes related to the Work, and for which Contractor is liable,
imposed by Laws and Regulations.
11.4.5.5. Deposits lost for causes other than negligence of Contractor, any Subcontractor or anyone
directly or indirectly employed by any of them or for whose acts any of them may be liable,
and royalty payments and fees for permits and licenses.
11.4.5.6. The cost of utilities, fuel and sanitary facilities at the site.
11.4.5.7. Minor expenses such as tele~grams, long distance telephone calls, telephone service at the
site, expressage and similar petty cash items in connection with the Work.
11.4.5.8. Cost of premiums for additional bonds and insurance required because of changes in the
Work and premiums for property insurance coverage within the limits of the deductible
amounts established by Owner in accordance with paragraph 5.9.
1 1.5. The term Cost of the Work shall not include any of the following:
11.5.1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnership
and sole proprietorships), gener~il managers, engineers, architects, estimators, attorneys, auditors,
accountants, pumhasing and contracting agents, expediters, timekeepers, clerks and other personnel
employed by Contractor whether at the site or in Contractor's principal or a branch office for general
administration of the Work and not specifically included in the agreed upon schedule of job
classifications referred to in paragraph. 11.4.1 or specifically covered by paragraph 11.4.4-all of which
are to be considered administrative costs covered by the Contractor's fee.
11.5.2. Expenses of Contractor's principal and branch offices other than Contractor's office at the site.
11.5.3. Any part of Contractor's capital expenses, including interest on Contractor,s capital employed for the
Work and charges against Contractor for delinquent payments.
21
11.5.4. Cost of premiums for all Bonds and for all insurance whether or not Contractor is required by the
Contract Documents to purchase and maintain the same (except for the cost of premiums covered by
subparagraph 11.4.5.8 above).
11.5.5. Costs due to the negligence of Contractor, a Subcontractor, or anyone directly or indirectly employed
by any of them or for whose acts any of them may be liable, including but not limited to, the
correction of Defective Work, disposal of materials or equipment wrongly supplied and making good
any damage to property.
11.5.6. Other overhead or general expense costs of any kind and costs of any item not specifically and
expressly included in paragraph 11.4.
Contractor's Fei:
11.6. The Contractor's fee allowed to Contractor for overhead and profit shall be determined as follows:
11.6.1. A mutually acceptable fixed fee, or if none can.be agreed upon,
11.6.2. A fee based on the following percantages of the various portions.of the Cost of the Work:
11.6.2.1. For costs incurred under paragraphs 11.4.1 and 1.!.4.2, the Contractor's Fee shall
be fifteen percent:
11.6.2.2. For costs incurred under paragraph 11.4.3. the Contractor's Fee shall be five
percent; and if a subcontract is on the basis of Cost of the Work Plus a Fee, the
maximum allowable to Contractor 9n account of overhead and profit of all
Subcontractors shall be fifteen percent;
11.6.2.3. No fee shall be payable on the basis of costs itemized under paragraphs 11.4.4.,
11.4.5 and 11.5;
11.6.2.4. The amount of credit to be allowed by Contractor to Owner for any such change
which results in a net decrease.in cost will be the amount of the actual net decrease
plus a deduction iff'Contractor's Fee by an amount equal to ten percent of the net
decrease; and
11.6.2.5. When both additions and credits are involved in any one change, the adjustment in
Contractor's Fee shall be computed on the basis of the net change in accordance
with paragraphs 11.6.2.1 through 11.6.2.4. inclusive.
11.7. Whenever the cost of any Work is to be determined pursuant to paragraph 11.4 or 11.5. Contractor will submit
in form acceptable to Engineer an itemized cost breakdown together with supporting data.
t:
Cash Allowances:
11.8. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract
Docu, ments and shall cause the Work so covered to be done by such Subcontractors or Suppliers and for such sums
within the limit of the allowances as may be acceptable to Engineer. Contractor agree~ that:
11.8.1. The allowances include the cost to Contractor (less any applicable trade discounts) of materials and
equipment required by the allowances to be delivered at the site, and all applicable taxes; and,
11.8.2. Contractor's costs for unloading and handling on the site, labor, installation costs, overhead, profit and
22
other expenses contemplated for the allowances have been included in the Contract Price and not in
the allowances. No demand for add!tional payment on account of any thereof will be valid.
Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual
amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly
adjusted.
Unit Price Work:
11.9.1. Where the Contract Documents provide that all or part of the Work..is to be Unit Price Work, initially the
Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the established unit
prices for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in
the Agreement. The estimated quantifies of items of Unit Price Work are not guaranteed and are solely for the purpose
of'comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and
classifications of Unit Price Work performed by Contractor will be mae by Engineer in accordance with Paragraph 9.10.
11.9.2. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover
Contractor's overhead and profit for each separately identified item.
11.9.3. Where the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly
from the estimated quantity of such item indicated in the Agreement and there is no corresponding adjustment with
respect to any other item of Work and if Contractor believes that Contractor has inct~tred additiongl expense as a result
thereof, Contractor may make a claim for an increase in the Contract Price in accordance with Article 11 if the parties
are unable to agree as to the amount of any such increase.
ARTICLE. 12 - CHANGE OF CONTRACT TIME
12.1. The Contract Time may only be changed by a Change Order or a Written Amendment. Any claim by
Contractor for an extension or shortening of the Contract Time shall be based on written notice delivered by Contractor
to the Owner and to Engineer promptly (but in no event later than thirty days) after the occurrence of the event gi~ing
rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data shall
be delivered within sixty days after such occurrence (unless Engineer allows an additional period of time to ascertain
more accurate data in support of the claim) and shall be accompanied by Contractor's written statement that the
adjustment claimed is the entire adjustment tO which the Contractor has reason to believe it is entitled as a result of the
occurrence of said event. All claims for adjustment in th6 Contract Time shall be determined by Engineer in accordance
with paragraph 9.11 if Owner and Contractor cannot otherwise agree. No claim for an adjustment in the Contract Time
will be valid if not submitted in accordance with the requirements of this paragraph 12.1.
12.2. The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of
Contractor if a claim is made therefor as provided in paragraph 12.1. Such delays shall include, but not be limited to,
acts or neglect by Owner or others performing additional work as contemplated by Article 7, or to fires, floods;
abnormal weather conditions (for the Aspen, Colorado, area) or acts of God.
12.3. All time limits stated in the Contract docu~ments are of the essence of the Agreement. The provisions of this
Article 12 shall not exclude recovery by Owner for §amages (including but not limited to fees and charges of engineers,
archi!ects, attorneys and other professionals and court and arbitration costs) for delay by Contractor.
ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL
OR ACCEPTANCE OF DEFECTIVE WORK
13.1.1. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents
and will not be Defective. All Defective Work, whether or not in place, may be rejected, corrected or accepted as
provided in this Article 13. Work shall be performed in a skillful and workmanlike manner. Except where longer periods
o~' warranty are indicated for certain items, Contractor warrants Work to be free from faulty materials and workmanship
for a period of not less than one year from date of Final Acceptance, which one year period shall be covered by the
Parformanee Bond grid Payment Bond as specified in the Contract Documents.
13.1.2. Contractor, at no additional expense to Owner, shall 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 Agreement.
Access to Work:
13.2. Engineer and Engineer's representatives, other representatives of Owner, testing agencies and governmental
agencies with jurisdictional interests will have access to the Work at reasonable times for their observation, inspecting
and testing. Contractor shall provide proper and safe conditions for such access.
Tests and Inspections:
13.3. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests or
approvals.
13.4. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically
be inspected, tested or approved, Contractor shall assume full responsibility therefor, pay all costs in connection
therewith and furnish Engineer the required' certificates of inspection; testing or approval; Contractor shall also be
responsible for and shall pay all costs in connection with any inspection or testing required in connection with Owners
or Engineer's acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of
materials or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. The
cost of all inspections, tests and approvals in addition to the above which are required by the Contract Documents Shall
be paid by Contractor (unless otherwise specified), a
13.5. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having
jurisdiction shall be performed by organizations acceptable to Owner (or by Engineer if so sIOecified).
13.6 If any Work (including the work of others) that is to be inspected, tested or approved is covered without written
concurrence of Engineer, it must, if requested by Engineer, be uncovered for observation. Such uncovering shall be
at Contractor's expense unless Contractor has given Engineer timely notice of Contractor's intention to cover the same
and Engineer has not anted with reasonable promptness in response to such notice.
13.7. Neither observations by Engineer nor ingpections, tests or'approvals by others shall relieve Contractor from
Contractor's obligations to perform tho Work in accordance with the Contract Documents.
Uncovering Work:
13.8. If any Work is covered contrary to the written request of Engineer it must, if requested by Engineer, be
uncovered for Engineer's observation and replaced at Contractor's expense.
13.9. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or
tested by others, Contractor, at Engineer's request, shall uncover, expose or otherwise make available for observation,
inspection or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor,
24
material and equipments. If it is found that such Work is Defective, Contractor shall bear all direct; indirect and
consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction,
(including but not limited to fees and charges of engineers, architects, attorneys and other professionals), and OWner
shall be entitled to an appropriate decrease in the Contract Price.
Owner May Stop The Work:
13.10. If the work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or
equipment, or falls to furnish or perform the Work in such a way that the completed Work will conform to the Contract
Dorumants, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has
been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to
exercise this right for the benefit of Contractor or any other party.
Correction or Removal of Defective Work:
13.11. If required I~y Engineer or Owner, Contractor shall promptly, as directed, either correct all Defective Work,
whether or not fabricated, installed or completed, or, if the Work has been rejected by Engineer or Owner, remove it
from the site and replace it with nondefective Work. Contractor shall bear all dire~t, indirect and consequential costs
of such correction or removal (including but not limited to fees and charges of engineers, architects, attorneys and other
professionals) made necessary thereby.
One Year Correction Period:
13.12. If within one year after the date of Stibstanfial Completion or such longer period of time as may be prescribed
by Laws or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by
any specific provision of the Contract Documents, any Work is found to be Defective, Contractor shall promptly without
cost to Owner and in accordance with Owner's written instructions, either correct such Defective Work, or, if it has been
rejected by Owner, remove it from the site and replace it with nondefeetive Work. If Contractor does not promptly
comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage,
Owner may have the Defective Work corrrcted or the rejected WORK removed and replaced, and all direct, indirect
and consequential costs of such removal and replacement (including but not limited to fees and charges of engineers,
architects, attorneys and other professionals) will be paid by Contractor. In special circumstances where a particular
item of equipment is placed in continuous service before Substantial Completion of alt the Work, the correction period
for that item may start to run from an earlier date if so provided in the Specifications or by Written Amendment.
Acceptance of Defective Work:
13.13. If, instead of requiting correction or removal and replacement of Defective Work, Owner prefers to accept it,
Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to Owner's evaluation
of and determination to accept such Defective Work. If any such acceptance occurs prior to Engineer's recommendation
of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with
respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the acceptance
occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner.
Owner May Correct Defective Work:
13.14 If Contractor fails within a reasonable time after written notice of Engineer or Owner to proceed to correct and
to correct Defective Work or to remove and replace rejected Work as required by Engineer or Owner in accordance with
paragraph 13.11, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor
fails to comply with any other provision of the Contract Documents, Owner may, after seven days' written notice to
25
Conh'actor, correct and remedy any such deficiency. In exercising the rights and remedies under this paragraph Owner
shall proceed expeditiously. To the.extent necessary to complete con'ective and remedial action. Owner may exclude
Contractor from all or part of the site, take possession of all or part of the Work, and suspend Contractor's services
related thereto, take possession of Contracior's tools, appliances, construction equipment and machinery at the site and
incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which
are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees such access to the
site as may be necessary to enable Owner to exercise the rights and remedies under this paragraph. All direct, indirect
and consequential costs of Owner in exercising such rights and remedies will be charged against Contractor, and a
Change Order will be issued incorporating the necessary revisions in the Contract Price. Such direct, indirect and
consequential costs will include but not be limited to fees and charges of engineers, architects, attorneys and other
professionals, all court and arbitration costs and all costs of repair and replacement of work of others destroyed or
damaged by correction, removal or replacement of Contractor's Defective Work. Contractor shall not be allot, ed an
extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by OWner
of Owner's rights and remedies hereunder.
Unauthorized Work:
13.15. Work performed beyond the lines and grades on the Drawings or approved Shop Drawings and extra work done
without written authorization, will be considered as unauthorized work, and the Conffactor will receive no compensation
therefor. If required by Owner, unauthorized work will be remedied, removed, or replaced by the Contractor at the
Contractor's expense.
ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION
Schedule of Values:
14.1. The schedule of values established as provided in paragraph 2.9 will serve as the basis for progress payments
and will be incorporated into a form of Application for Payment acceptable to Enginecr. Progress payments on account
of Unit Price Work will be based on the number of units completed.
,,
Application for Progress Payment:
14.2. At least twenty days before each progress payment is scheduled (but not more often than once a month),
Contractor shall submit to Engineer for review an Application for Payment filled out and signed by Contractor covering
the Work completed as of the date of the Application and accompanied by such supporting documentation as is required
by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the
Work but delivered and suitably stored at the site or at another location agreed to in writing, the Application for Payment
shall also be accompanied by a bill of sale, invoice or other documentation warranting that Owner has received the
materials and equipment free and clear of all !,iens, ~charges, security interests and encumbrances (which are hereinafter
in these General Conditions referred to as 'Liens!') and evidence that the materials and equipment are covered by
appropriate property insuiance and other arrangements to protect Owner's interest therein, all of which will he
satisfactory to Owner. The amount of retainage with respect to progress payments will be as stipulated in the
Supplementary Conditions.
Contractor's Warranty of Title:
14.3. Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application
for Payment, whether incorporated in the Project or not, will pass to Owner no late~' than the time of payment free and
clear of all Liens.
Review of Applications-rio Progress Payment:
14.4. Engineer will, within ten days after receipt of each Application for Payment, either indicate in writing a
recommendation of payment and present the Application to Owner, or retum the Application to Contractor indicating
in writing Engineer's reasons for refusing to recommend payment. In the latter case, Contractor may make the
necessary corrections and ~esubmit the Application. Ten days after presentation of the Application for Payment with
Enginee['s recommendation, the amount recommended will (subject to thc pro~.sions of the last sentence of paragraph
14.7) become due and when due will be paid by Owner to Contractor.
· 14.5. Engineer's recommendation of any payment requested in an Application for Payment will constitute a
representation by Engineer to Owner, based on Engineer's on-site observations of the Work in progress and on
Engineer's review of the Application for Payment and the accompanying data and schedules that the Work has
progressed to the point indicated; that to the best of Engineer'~ knowledge, information and belief, the quality Of the
Work is in accordance with the Contragt Documents (subject to an evaluation of the Work as a functioning whole prior
to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final
determination of quantities and classifications for Unit Price Work under paragraph 9.10, and to any other qualifications
stated in the recommendation); and that Contractor is entitled to payment of the amount recommended. However, by
recommending any such payment Engineer will not thereby be deemed to have represented that exhaustive or
continuous on-site inspections have been made to check the quality or the quantity of the Work beyond the
responsibilities specifically assigned to Engineer in the Contract Documents or that there may not be other matters or
issues between the parties that might entitle Contractor to be paid additionally by Owner or Owner to withhold payment
to Contractor.
14.6. Engineer's recommendation of final payment will constitute an additional representation by Engineer to Owner
that the conditions precedent to Contractor's being entitled to final payment as set forth in paragraph 14.13 have been
fulfilled.
14.7. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer's opinion,-it would
be incorrect to make such representations to Owner. Engineer may also refuse to recommend any such payment, or,
because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment
previously recommended, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because:
14.7.1. The Work is Defective, or completed Work has been damaged requiring correction or replacement;
;.
14.7.2. The Contract Price has been reduced by Written Amendment or Change Order;
14.7.3. Owner has been required to correct Defective Work or complete Work in accordance with paragraph
13.14; or,
14.7.4. Of Engineer's actual knowledge of the occurrence of any of the events enumerated in Article 15.
Owner may refuse to make payment of the full amount recommended by Engineer because claims have been made
against Owner on account of Contractor's performance or furnishing of the Work or Liens have been filed in connection
with the Work or there are other items entitling O~her to a set-off against the amount recommended, but Owner must
give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action.
Substantial Completion:
14.8. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and
Engineer in writing that the entire Work is substantially complete (except for items specifically listed by Contractor as
incomplete) and request that Engineer issue a certificate of Substantial Completion. Within a reasonable time thereafter.
Owner, Contractor and Engineer shall make an inspection of the work to determine the status of completion. If Owner
does not consider the Work satisfactorily complete, Engineer or Owner shall notify Contractor in writing giving the
reasons therefor. If Owner considers the Work substantially complete, Engineer will prepare and deliver to Contractor
27
a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be
attached to the cartifieate a tentative list of items to be completed or corrected before final payment. At the time of
delivery of the tentative certificate of Substantial Completion Engineer will deliver to Owner and Contractor a written
recommendation as to division of responsibilities pending final payment between Owner and Contractor with respect
to security, operation, safety, maintenance heat utilities insurance and warranties. Unless Owner and Contractor agree
otherwise, In writing and so inform Engineer prior to Eng neers ~ssumg the defimt~ve certificate of Substanual
Compl,~ti'on. Engineer's afore-said recommendation will be binding on Owner and Contractor until final payment.
14.9. Owner shall have the fight to exclude Contractor fi.om the Work after the date of Substantial Completion, but
Owner shall allow Contractor.reasonable access to complete or correct items on the tentative list.
Partial U~illzation: .
14.10. Use by Owner of any finished part of thc W~rk, which has specifica!ly been identified in the Contract
Documents, or which Owner, Engineer and Contractor agree constitutes a separately functioning and Useable part of
the Work that can be used by Owner without significant interference with Contractor's performance of thc remainder
of the Work, may be accomplished prior to Substantial Completion of all the Work subject to the following:
14.10.1 Owner at any time may request Contractor in writing to permit Owner to use any such part ~f the
Work which Owner believes to be ready for its intended use and substantially complete. If Contractor
agrees, Contractor will certify to Owner and Engineer that said part of the WORK is substantially
complete and request Engineer to issue a certificate of Substantial Completion for that part of thc
Work. Contractor at any time may notify Owner and Engineer in writing that Contractor considers
any such part of the Work ready for its intended use and substantially complete and request Engineer
to issue a certificate of Substantial Completion for that part of the Work. Contractor and Engineer
shall make an inspection of that part of the Work to determine its status of completlon: 'If Engineer
does not consider that part of the Work to be substantially complete, Engineer will notify Owner and
Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be
substantially complete, the provisions of paragraphs 14.8 and 14.9 will apply with respect to
certification of Substantial Completion of that part of the Work and the division of responsibility in
raspeet thereof and access thereto.
1.4.10.2 Owner may at any time request Contractor in wdting to permit Owner to take over operation of any
such part of thu Work although it is not substantially complete. A copy of such request will be sent
to Engineer and within a reasonable time thereafter Owner, Contractor and Engineer shall make an
inspection of that part of the Work to determine its status of completion and will prepare a list of the
items remaining to be completed or corrected thereon before final payment. If Contractor does not
object in writing to Owner and Engineer that such part of the Work is not ready for separate operation
by Owner. Engineer will finalize the list of items to be completed for corrected and will deliver such
list to Owner and Contractor together with a written recommendations to the division of
responsibilities pending final payment between Owner and Contractor with respect to security,
operation, safety, maintenance, utilities, insurance, warranties and guarantees for that part of the Work
which will become binding upon Owner and Contractor at the time when Owner takes over such
operation(unless they shall have otherwise agreed in writing and so informed Engineer). During such
operation.and prior to Substantial Completion of such part of the Work. Owner shall allow Contractor
reasonable access to complete or correct items on said list and to complete other related Work.
~ 14.10.3. No occupancy or separate operation of part of the Work will be accomplished prior to compliance
with the requirements of paragraph 5.15 in respect of property iasuranee.
Final Inspection:
14.11. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Owner will
28
make a final inspection with Engineer and Contractor and will notify Contractor in writing of all particulars in Which
this inspection reveals that the Work is incomplete or Defective. Contractor shall immediately take such measUres as
are necessary to remedy such deficiencies.
Final Application for payment:
14.12. ' After Contractor has completed all such corrections to the satisfaction ~f Owner and delivered all maintenance
and operating instructions, schedules, guarantees, Bonds, certificates of inspection, marked-up record documents (as
provided in paragraph 6.19) and other documents - all as required by the Contract Documents, and after Owner has
indicated that the Work is acceptable, Contractor may make application for final payment following the procedure for
progress payments. The final Application for Payment shall be accompanied by all documentation called for in the
Contract Documents, together with complete and legally effective releases or waivers (satisfactory to Owner) of all
Liens arising out of or filed in connection with the Work. In lieu thereof and as approved by Owner, Contractor may
furnish receipts Or releases in full; an affidavit of Contractor that the releases and receipts include all labor, services,
material and equipment for which a Lien could be filed, and that all payrolls, material and equipment bills, and other
indebtedness connected with the Work for which Owner's property might in any way be responsible, have been paid
or otherwise satisfied; and consent of the surety, if any, to final payment. If any Subcontractor or Sul~plier fails to
furnish a release or receipt in full, Contractor may furnish a Bond or other collateral satisfactory to Owner to indemnify
Owner against any Lien.
Final Payment and Acceptance:
14.13. If, on the basis of Engineer's observation of lhe Work during construction and final inspection, and Engineer's.
review of the final Application for Payment and accompanying documentation - all as required by the ContraCt
Documents, Engineer represents to Owner that the Work has been completed.and Owner is satisfied that the Work has
been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Engineer will,
within ten days after receipt of the final Application for Payment, indicate in writing Engineer's recommendation of
payment and present the Application to Owner for payment. Thereupon Engineer will give written notice to Owner and
Contractor that the Work is acceptable. Otherwise Engineer will return the Application to Contractor, indicating in
writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary
corrections and resubmit the Application. Sixty days after presentation to Owner of the Application and accompanying
documentation, in appropriate form and substance, an~ with Engineer's recommendation and notice of acceptability,
the amount recommended by Engineer will become du6 and will be paid by Owner to Contractor.
14.14. If, through no fault of Contractor, final completion of the Work is significantly delayed and if Engineer so
confirms, Owner shall, upon receipt of Contractor's final Application for Payment and recommendation of Engineer,
and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed
and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the
retainage stipulated in the Supplementary Conditions, and if Bonds have been furnished as required in paragraph 5.1.,
the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and
accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment shall be
made under the terms and conditions governing ft~al payment, except that it shall not constitute a waiver of claims.
Contractor's Continuing Obligation:
14.16. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall
be absolute. Neither recommendation of any progress or final payment by Engineer, nor the issuance of a certificate
of Substantial Completion, nor any payment by Owner to Contractor under the Contract Documents, nor any act of
acceptance by Owner nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission,
nor the issuance of a notice of acceptability by Engineer pursuant to paragraph 14.13, nor any correction of Defective
Work by Owner will constitute an acceptance of Work not in accordance with the Contract Documents or a release of
Contractor's obligation to perform the Work in accordance With the Contract Documents.
29
ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION
Owner May Suspend Work:
15.1. Owner may, at any time and without e,ause,Isuspend the Work or any portion thereof for a pedod of not more
than ninety days by notice in vaifing to Con,actor and Engineer which will fix the date on which/work will be reSumed.
Contractor shall re~ume the Work on the d:~lte so fixed. Contractor shall be allowed an increase iht eh Contract Pdee
or an extension of the Contract Time, or both, directly attributable to any suspension if Cona'actor makes an apl)roved
claim therefor as provided in Articles II and 12.
Owner May Terminate:
15.2. Upon the occurrence of any one or more of the following events:
15.2.1. If Contractor commences'fa voluntary case under any chapter of the Bankruptcy Code (Title II,
United States Code), as now or hereafter in effect, or if Contractor takes any equivalent or similar
action by filing a petition or otherwise under any other federal or state law in effect at such time
relating to the bankruptcy or insolvency; ..
15.2.2. If a petition is filed against Contractor under any chapter of the Bankruptcy Code as now or hereafter
in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief
against Contractor under any other federal or state law in effect at the time relating to bankruptcy or
insolvency;
15.2.3. If Contractor makes a general assignmant for the benefit of creditors;
15.2.4. if a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under
cona'act, whose appointment or authority to take charge of property of Contractor is for the purpose
of enforcing a Lien against such property or for the purpose of general administration of such
property for the benefit of Contractor's creditors;
15.2.5. If Contractor admits in writing an inobility to pay its debts generally as they become due;
15.2.6. If Contractor persistently fails to perform the Work in accordance with the Contract Documents
(including but not limited to, failure to supply sufficient skilled workers or suitable materials or
equipment or failure to adhere to the progress schedule established under paragraph 2.9 as revised
from time to time);
15.2.7. If Contractor disregards Laws or Regulations of any public body having jurisdiction;
15.2.8. If Contractor disregards the authority of Engineer; or,
15.2.9. If Contractor otherwise violate~'in any substantial way any provision} of the Contract Documents:
Owner may, after giving Contractor (and the surety, if there be one) seven days written notice and to the extent
permitted by Laws and Regtilations, terminate the services of Contractor, exclude Contractor from the site and take
possession of the Work and of all Contractor's tools, appliances, construction equipment and machinery at the site and
use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or
conversion), incorporate in the Work all materials and equipments stored at the site or for which Owner has paid
Contractor but which are stored elsewhere, and finish the Work as Owner may deem expedient. In such case Contractor
30
shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract
Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited to fees and
charges of engineers, architects, attorneys and other professionals and eoart and arbitration costs) such excess will be
paid to Contractor. If such costs exceed such unPaid balance, Contractor shall pay the difference to Owner. Such Costs
incurred by Owner will be approved as to reasonableness by Engineer and incorporated in a Change Order, but When
exercising any rights or remedies under this paragraph Owner shall not be required to obtain the lowest price for the
Work performed.
15.3. Where Contractor's services have been so terminated by Qwner, the termination will not affect any rights or
remedies ~f Owner against Contractor then existing or which ~ay thereafter accrue. Any retention or payment of
moneys due Contra:ctor by Owner will not release Contractor frtm liability...
15.4. Upon seven days' written notice to Contractor, Owner may, without cause and without prejudice to any other
right or remedy, elect to abandon the Wgrk and terminate the Agreement. In such case Contractor shall be paid for all
Work executed and any expense sustained plus reasonable termination expenses.
Contractor May Stop Work or Terminate:
15.5. If, through no act or fault of Contractor, the Work is suspended for a period of more than ninety days by O~ner
Or under an order of court or other public authority, then Contractor may, upon seven days written notice to Owner and
Engineer, terminate the Agreement and recover from Owner payment for all Work executed and any expense sustained
plus reasonable termination expenses. The provisions Of this paragraph shall not relive Contractor of the obligations
under paragraph 6.29 to carry on the Work in accordance with the progress schedule and without delay during disputes
and disagreements with Owner.
ARTICLE 16 - MISCELLANEOUS
Giving Notice:
16.1. Whenever any provision of the Contract Documents requires the givlng of written notice, it will be deemed
to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the
corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last
business address known to the giver of the notice.
Computation of Time:
16.2. I. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the
first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day
made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation.
16.2.2. A calendar day of twenty-four hours measured from midnight to the next midnight shall constitute a day.
General: .
16.3. Should Owner or Contractor suffer injury or damage to person or property because of any error, omission or
act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally
liable, claim will be made in writing to the other party within a reasonable time of the first observance of such injury
or damage. The provisions of this paragraph 16.3 shall not be construed as a substitute for or a Waiver of the provisions
of any applicable statute of limitations or repose.
31
16.4. The duties and obligations imposed by these General Conditions and the rights and remedies available
hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations
imposed upon Contractor by paragraphs 6.30, 13.1, 13.12, 13.14, 14.3, and 15.2, and all of the rights and remedies
available to Owner thereunder, are in addition to, and are not to be anns~xued in any way as a limitation of, any rights
and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by
special warranty or guarantee or by other provisions of the Contract Documents, and the provisicins of this paragraph
will be as effective as if repeated specifically in the Contract Documents in eoanection ~dith each particular duty,
obligation, right and remedy to whi¢h they apply. All representations, warrantie, s and guar~tees made in the contract
Documents will survive final payment and termination or completion .of the Agreement.
In'dependent Contractor Status:
16.4. It is expressly acknowledged and understood by the parties thai nothing in this agreement shall result in, or be
construed as establishing an employment relationship. Contractor shall be, and shall perform as, an independent
contractor who agrees to use his best efforts to provide the Work on behalf of the Owner. No agent, employee, or servant
of Contractor shall be, or shall be deemed to be, the employee, agent or servant of the Owner. Owner is interested only
in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole
control of Contractor. None of the benefits provided by Owner to its employees including, but not limited to, worker's
compensation insurance and unemployment insurance, are available from Owner to the employees agents or servants
of Contractor. Contractor shall be solely and entirely responsible for its acts and for for the acts of Contractor's agents,
employees, servants and subcontractors during the performance of the Agreement.
Equal Opportunity:
16.5.1. Contractor and all Subcontractors shall not discriminate against any employee or applicant for employment~
because of race, religion, color, creed, sex, affectional or sexual orientation, family responsibility, ancestry, handicap,
or national origin. Contractor shall take all affirmatige action steps necessary to insure that applicants are employed,
and that employees are treated during employment without regard to their race, religion, color, creed, sex, affec6onal
or sexual orientation, family responsibility, aneest~, handicap, 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.
Contractor agrees to post in conspicuous places, notices setting forth the policies of non-discrimination.
16.5.2. Contractor and all Subeantracturs shall, in all solialtations or advertisements for employees placed by them or
on their behalf, state that qualified applicants will receive consideration for employment without regard to race, religion,
color, creed, sex, affectional or sexual orientation, family responsibility, ancestry, handicap or national origin.
Prohibited Interest:
16.6. No member, officer, or employee of the City of Aspen shall have any interest, direct or indirect, in this
Agreement or the proceeds thereof.
Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest:
16.7~ Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this
Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting
bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor fro the
purpose of securing business.
16.8. Contractor agrees not to give any employee or former employee of Owner a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a
32
program requirement or a purchase request, influencing the content of any specification or procurement standard,
rendering of advice, invasfigafion, auditing, or in any other advisory capacity in any pr°eeeding or application, requast
for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement or to any
solicitation or proposal therefor.
16.9. It shall be a material breach of the Agreement for any payment, gratuity, or offer of employment to be,made
by or on behalf of a SuTbeontraetor under a eonWact to the prime Contractor or higher tier Subcontractor or a.3' 'person
associated therewith.,, as an inducement for the award of a Subcontract or order. Contractor is prohibited from inducing,
by any means, any person employed under this Agreement to give up any part of the compensation to which he/she is
· otherwise entitled. Conu'aetor shall comply with all applicable local, state and federal "anti-kickback" statutes or
regulations.
Exemption From Sales and Use Taxes:
16.10. All purchases of construction or building materials for any agreement shall not include Federal Excise Taxes
or Colorado State or 16cai sales or usc taxes. Owner is exempt fxom such taxes under applicable federal, state and local
laws. Owner's State of Colorado tax identification number is 98-04557. Owner's Federal Tax Identification Number is
g4-6000563.
Payments Subject to Annual Appropriations:
16.11. If the contract awarded as a result of a Bid extends beyond the calendar year, nothing herein shall be construed
as an obligation by the Owner beyond any amounts that may be, fxom time to time, appropriated by the Owner On an
annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said
governing body and that before providing services, the Contractor, if he so requests, will be advised as to the status of
funds appropriated for services or materials and shall n~t be obligated to provide services or materials for which funds
have not been appropriated.
Contractor Acceptance:
16.12.1. The acceptance by Contractor of any paymen~ made on the final certificate under these General Conditions,
or of any final payment due on termination, shall constitute a full and complete release of the Owner from any and all
claims, demands and causes of action whatsoever which the Contractor, has or may have against Owner under the
provisions of these Contract Documents.
16.12.2. No action shall be maintained by Con,ratter, its successors or assigns, against Owner or Engineer on any claims
based upon or arising out of this Agreement or out of anything done in connection with this Agreement unless such
action shall be commenced within 180 days after the date of filing of the final application for payment hereunder, or
within 180 days of the termination of this Agreement.
Successors and Assigns: ~'
16.13. Contractor binds itself, its partners, successors, assigns and legal representatives to the Owner with respect to
all covenants of this Agreement. Contractor shall not transfer, assign, or subcontract any interest in this Agreement.
Severability Clause:
16.14. If any provision of the Agreemen~ is subsequently declared by legislative ur judicial authority to be unlawful,
unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America or
the State of Colorado, all other provisions of the Agreement shall remain in full force and effect.
33'
SUPPLEMENTAL
CITY OF ASPEN
STANDARD GENERAL CONDITIONS
FOR CONSTRUCTION CONTRACTS
Engineer - The City Engineer or a designee of the City Engineer's office.
Owner's Representative - The field person assigned to work with contractor 0n a daily basis during installation of
hydrants under this contract.
Physical Conditions - Underground Facih'~es:
4.3.1. SHOWN OR INDICATED: The information to be obtained with respect to existing Underground Facilities
at or contiguous to the site is based on information and data furnished to Owner or Engineer by the owners of such
Underground Facilities or by others at the time of a requested field locate. Unless it is otherwise expressly provided
in the Supplementary Conditions:
4.3.1.1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such
information or data; and,
4.3.1.2. Contractor shall have full responsibility for determining the existence of all Underground Facilities,
for reviewing and checking all such information and data, for locating all Underground Facilities
shown or indicated in the Contract Documents, for coordination of the Work with the owners of such
Underground Facilities during cons?uction, for the safety and protection thereof as provided in
paragraph 6.20 and repairing any damage thereto resulting from the Work, the cost of all of which
will be considered as having been included in the Contract Price.
4.3.2. NOT SHOWN OR E~-DICATED. ff an Underground Facility is uncovered or revealed at or contiguous to the
site which was not shown or indicated during the field locate process, and which Contractor could not reasonably have
been expected to be aware of, Contractor shall, promptly after becoming aware thereof and before performing any Work
affected thereby (except in an emergency as permitted by paragraph 6.22), identify the owner of such UndergrOund
Facility and give written notice thereof to that owner and to Owner and Engineer. Engineer will promptly review the
Underground Facility to d~termine the extent to which the Contract Documents should be modified to reflect and
document the consequences of the existence of the,Underground Facility, and the Contract Documents will be amended
or supplemented to the extent necessary. During such time, Contractor shall be responsible for the safety and protection
of such Underground Facility as provided in paragraph 6.20. Contractor shall be allowed an increase in the Contract ·
Price or an extension of the Contract Time, or both, to the extent that they are attributable to the existence of any
Underground Facility that was not found as the result of a field locate and which Contractor could not reasonably have
been expected to be aware of. If the parties are unable to agree as to the amount or length thereof, Contractor may make
a claim therefor as provided in Articles 11 and 12.
Coordination:
7.4. If Owner contracts with others for the performance of other work on the Project at the site, the person or
organization of the activities among the various prime contractors may be identified in the Supplementary ConditiOns,
and the specific matters to be covered by such authority and responsibility may be itemized, and the extent of sUch
authority and responsibilities may be provided, in the Supplementary Conditions. Unless otherwise provided inthe
Supplementary Conditions, neither Owner nor Owner's representative shall have any authority or responsibility in
respect of such coordination.
ARTICLE 8 - OW~.ER'S RESPONSIBILITIES
8.1. Owner shall issue all communications to Contractor through Owner's representative.
8.2. In case of termination of the employment of Owner's representative, Owner shall appoint an representative
whose status under the Contract Documents shall be that of the former representativel
ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION
Owner's Representative:
9.1. Owner will designate a representative during the construction period. The duties and responsibilities and the
limitations of authority of Owner's representative during construction are set forth in the Contract Documents and shall
not be extended without written consent of Owner and Engineer.
Visit~ to Site:
9.2. Owner's representative will make visits to the site at intervals appropriate to the various stages of construction
to observe the progress and quality of the executed Work and to determine, in general, if the Work is proceeding in
accordance with the Contract Documents. On the basis of such visits and on-site observations, Owner's representative
will be informed of the progress of the Work and will endeavor to guard Owner against defects and deficiencies in the
Work.
Authorized Variations in Work:
9.5. Owner's representative may authorize minor variations in the Work from the requirements of the Contract
Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the
overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on Owner,
and also on Contractor who shall perform the Work involved promptly. If Contractor believes that a Field Order
justifies an increase in the Contract Ptice or an extension of the Contract Time and the parties are unable to agree as to
the amount or extent thereof, Contractor may make a claim therefor as provided herein.
Rejecting Defective Work:
9.6. Owner's representative will have authority to disapprove or reject Work which he believes to be Defective,
and wall also have authority to require special inspection or testing of the Work as provided hereinbelow, whether or
not the Work is fabricated, installed or completed.
Determinations for Unit Prices:
9.10. Owner's representative will determine the actual quantities and classifications of Unit Price Work performed
by Contractor, Engineer will review with Contractor preliminary determinations on such matters before rendering a
written decision thereon (by recommendation of an Application for Payment or otherwise). Owner's representative's
written decisions thereon will be final and binding upon Contractor, unless, within ten days after the date of any such
decision, Contractor delivers to Owner and to Engineer written notice of intention to appeal from such a decision.
Decisions on Disputes:
9.11. Owner's representative will be the initial interpreter of the requirements of the Contract Documents and judge
of the acceptability of the Work thereunder. Claims, disputes and other mattors raised by Contractor relating to the
acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to the
· performance and furnishing of the Work and claims under Articles 11 and 12 in respect of changes in the Contract Price
or Contract Time shall be referred initially to Engineer in writing with a request for a formal decision in accordance with
this paragraph, which Engineer will render in writing within a reasonable time. Written notice of each such claim,
dispute and other matter by Contractor will be delivered to Owner promptly (but in no event later than thirty days) after
the occurrence of the event giving rise thereto, and written supporting data will be submitted to Engineer and Owner '
within sixty days after such occurrence unless Owner's representative allows an additional period of time to ascertain
more accurate data in support of the claim.
9.12. The rendering of a decision by Owner's representative pursuant to paragraphs 9.10 and 9.11 with respect to
any such claim, dispute or other matter shall be a condition precedent to any exercise by Contractor of such rights or
remedies as Contractor may otherwise have under the Contract Documents or by Laws or Regulations in respect of any
such claim, dispute or other matter. Owner shall not be bound by any initial interpretation by Engineer of the
requirements of tho Contract Documents, judgment on the acceptability of the Work .thereunder, or formal decision
made by the Engineer in accordance with paragraph 9.10 or 9.11. Any dispute not resolved by the initial decision of
the Engineer shall be decided by Owner, who shall reduce the decision in writing and furnish a copy thereof to
Contractor and Engineer. The decision of the Owner shall be final subject to review by the Pitldn County District Court
in Pitldn County, Colorado. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with
the performance 6f the Work and in accordance with the Engineer's interpretation.
Limitations on Engineer's Responsibilities:
9.13. Neither Owner's representative's authority to act under this Article 9 or elsewhere in the Contract Documents
nor any decision made by Owner's representative in good faith either to exercise or not exercise such authority shall
give rise to any duty or responsibility of Owner's repres,entafive to Contractor, any Subcontractor, any Supplier, or any
other person or organization performing any of the Woi'k, or to any surety for any of them.
11.2. The Contract Price may only be changed by a Change Order or by a Written Amendment. Any claim for an
increase or decrease in the Conlract Price shall be based on written notice delivered by the party making the claim to
the other party and to Owner's representative promptly (but in no event later than thirty days) after the occurrence of
the event giving rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with
supporting data shall be delivered within sixty days after such occurrence (unless Engineer allows an additional period
of time to ascertain more accumta data in support of the claim) and shall be accompanied by claimant's written statement
that the amount claimed covers all known amounts (direct, indirect and consequential) to which the claimant is entitled
as a result of the occurrence of said.event. All ~!aims for adjustment in the Contract Price shall be determined by
Engineer in accordance with paragraph 9.11 if Owner and Contractor cannot otherwise agree on the amount involved.
No claim for an adjustment in the Contract Price will be valid if not submitted in accordance with this paragraph 11.2.
11.8. ' It is understood that Contractor has included in the Contract Price all allowances so named in the Contract
Documents and shall cause the Work so covered to be done by such Subcontractors or Suppliers and for such sums
within the limit of the allowances as may be acceptable to Owner's representative. Contractor agrees that:
l 1.8.2. Contractor's costs for unloading and handling on the site, labor, installation costs, overhead, profit and otber
expenses contemplated for the allowances have been included in the Contract Price and not in the allowances.
No demand for additional payment on account of any thereof will be valid.
Prior to final payment, an appropfiata Change Order will be issued as recommended by Owner's representative to reflect
actual mounts due Con'tractor on account of Work covered by allowances, and the Contract Price shall be
correspondingly adjusted.
Unit Price Work:
11.9.1. Where the Contract Documents provide that all or part of the Work !s to be Unit Price Work, initially the
Contract Price will I~e deemed to include for all Unit Price Work an amount equal to the sum of the established unit
prices for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in
the. Agreement. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose
of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and
classifications of Unit Price Work performed by Contractor will be made by Owner's representative in accordance with
Paragraph 9.10.