APPENDIX A 2-2021 Construction Contract - GENERAL CONDITIONS (TOC corrected Dec 2022).docx

Project:

Contractor:

Total Cost: ___________ Term:

Acct. or P.O. #

CONSTRUCTION CONTRACT

General Conditions

Acknowledged by:

CONTRACTOR

[INSERT CONTRACTOR NAME]

By:

Printed Name:

Title:

Attest:

By:

Printed Name:

Title:

Project:____________________ Contractor:_________________ Design Professional:__________ Total Cost:_________________ Term:_____________________ Acct. or P.O. #_____________

CONSTRUCTION CONTRACT – GENERAL CONDITIONS

City of Lafayette, 1290 South Public Road, Lafayette, CO 80026; Phone: 303-665-5588 Form Approved by City Attorney October 2021 i

CONSTRUCTION CONTRACT – GENERAL CONDITIONS

City of Lafayette, 1290 South Public Road, Lafayette, CO 80026; Phone: 303-665-5588 Form Approved by City Attorney October 2021 (reviewed Dec. 2022)

TABLE OF CONTENTS OF GENERAL CONDITIONS

ARTICLE 1

ARTICLE 2

ARTICLE 3

ARTICLE 4

ARTICLE 5

ARTICLE 6

ARTICLE 7

ARTICLE 8

CITY’S RESPONSIBILITIES 34

ARTICLE 9

ARTICLE 10

CHANGES IN THE WORK 39

ARTICLE 11

ARTICLE 12

CHANGE OF CONTRACT TIMES 47

ARTICLE 13

ARTICLE 14

ARTICLE 15

ARTICLE 16

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CONSTRUCTION CONTRACT – GENERAL CONDITIONS

City of Lafayette, 1290 South Public Road, Lafayette, CO 80026; Phone: 303-665-5588 iv Form Approved by City Attorney October 2021 (reviewed Dec. 2022)

GENERAL CONDITIONS

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:

1.1. Addenda —Written or graphic instruments issued prior to the opening of Bids that clarify, correct or change the Bidding Requirements or the Contract Documents.

1.2. Agreement —The written contract between CITY and CONTRACTOR covering the Work to be performed; other Contract Documents are attached to the Agreement and made a part thereof as provided therein.

1.3. Application for Payment —The CITY approved form accepted by DESIGN PROFESSIONAL that is to be used by CONTRACTOR in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

1.4. Asbestos —Any material that contains more than one percent (1%) asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration.

1.5. Bid —The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed.

1.6. Bidding Documents —The advertisement or invitation to Bid, instructions to bidders, the Bid form, and the proposed Contract Documents (including all Addenda issued prior to receipt of Bids).

1.7. Bidding Requirements —The advertisement or invitation to Bid, instructions to bidders, and the Bid form.

1.8. Bonds —Performance and Payment bonds and other instruments of security.

1.9. Change Order —A document recommended by DESIGN PROFESSIONAL, that is signed by CONTRACTOR and CITY and authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement.

1.10. CITY —The City of Lafayette.

1.11. Contract Documents —The Agreement, Addenda (that pertain to the Contract Documents), CONTRACTOR's Bid (including documentation accompanying the Bid and any post Bid documentation submitted prior to the Notice of Award) when attached as an exhibit to the Agreement, the Notice to Proceed, the Bonds, these General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders and DESIGN PROFESSIONAL's written interpretations and clarifications issued pursuant to paragraphs 3.4., 3.5.1., and 3.5.3. on or after the Effective Date of the Agreement. Shop Drawing submittals approved pursuant to paragraphs 6.17.4. and 6.17.5. and the reports and drawings referred to in paragraphs 4.2.1.1. and 4.2.1.2. are not Contract Documents.

1.12. Contract Price —The moneys payable by CITY to CONTRACTOR for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of paragraph 11.9.1. in the case of Unit Price Work).

1.13. Contract Times —The numbers of days or the dates stated in the Agreement: (i) to achieve Substantial Completion, and (ii) to complete the Work so that it is ready for final payment as evidenced by DESIGN PROFESSIONAL's written recommendation of final payment in accordance with paragraph 14.9.1.

1.14. CONTRACTOR —The person, firm or corporation with whom CITY has entered into the Agreement.

1.15. Defective —An adjective that when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient; Work that does not conform to the Contract Documents; Work that does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents; or Work that has been damaged prior to DESIGN PROFESSIONAL's recommendation of final payment (unless responsibility for the protection thereof has been assumed by CITY at Substantial Completion in accordance with paragraph 14.5. or 14.6.).

1.16. DESIGN PROFESSIONAL —The person, firm or corporation named as such in the Agreement.

1.17. DESIGN PROFESSIONAL's Consultant —A person, firm or corporation having a contract with DESIGN PROFESSIONAL to furnish services as DESIGN PROFESSIONAL's independent professional associate or consultant with respect to the Project and who is identified as such in the Supplementary Conditions.

1.18. Drawings —The drawings that show the scope, extent and character of the Work to be furnished and performed by CONTRACTOR and that have been prepared or approved by DESIGN PROFESSIONAL and are referred to in the Contract Documents. Shop drawings are not Drawings as so defined.

1.19. 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 parties to sign and deliver.

1.20. Field Order —A written order issued by DESIGN PROFESSIONAL that orders minor changes in the Work in accordance with paragraph 9.5. but that does not involve a change in the Contract Price or the Contract Times.

1.21. Hazardous Waste —The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time.

1.22. Laws and Regulations; Laws or Regulations —Any and all applicable laws, rules, regulations, ordinances, codes and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.

1.23. Liens —Liens, charges, security interests or encumbrances upon real property or personal property.

1.24. Milestone —A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work.

1.25. Notice of Award —The written notice by CITY to the apparent successful bidder stating that upon compliance by the apparent successful bidder with the conditions precedent enumerated therein, within the time specified, CITY will sign and deliver the Agreement.

1.26. Notice to Proceed —A written notice given by CITY to CONTRACTOR (with a copy to DESIGN PROFESSIONAL) fixing the date on which the Contract Times will commence to run and on which CONTRACTOR shall start to perform CONTRACTOR's obligations under the Contract Documents.

1.27. Official Holidays —The following days are CITY’s designated official holidays: New Year’s Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day and Christmas Day.

1.28. Partial Utilization —Use by CITY of a substantially completed part of the Work for the purpose for which it is intended (or a related purpose) prior to Substantial Completion of all the Work.

1.29. PCBs —Polychlorinated biphenyls.

1.30. Petroleum —Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Wastes and crude oils.

1.31. 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.

1.32. Radioactive Material —Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time.

1.33. Regular Working Hours —CITY’s regular working hours are from 7:00 A.M. to sunset.

1.34. Resident Project Representative —The authorized representative of DESIGN PROFESSIONAL who may be assigned to the site or any part thereof.

1.35. Samples —Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and that establish the standards by which such portion of the Work will be judged.

1.36. Shop Drawings —All drawings, diagrams, illustrations, schedules and other data or information that are specifically prepared or assembled by or for CONTRACTOR and submitted by CONTRACTOR to illustrate some portion of the Work.

1.37. 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.

1.38. 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.

1.39. Substantial Completion —The Work (or a specified part thereof) has progressed to the point where, in the opinion of DESIGN PROFESSIONAL as evidenced by DESIGN PROFESSIONAL's definitive certificate of Substantial Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the Work (or specified part) can be utilized for the purposes for which it is intended; or if no such certificate is issued, when the Work is complete and ready for final payment as evidenced by DESIGN PROFESSIONAL's written recommendation of final payment in accordance with paragraph 14.9.1. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof.

1.40. Supplementary Conditions —The part of the Contract Documents that amends or supplements these General Conditions.

1.41. Supplier —A manufacturer, fabricator, supplier, distributor, materialman or vendor having a direct contract with CONTRACTOR or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by CONTRACTOR or any Subcontractor.

1.42. Underground Facilities —All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities that have been installed underground to furnish any of the following services or materials: electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, sewage and drainage removal, traffic or other control systems or water.

1.43. Unit Price Work —Work to be paid for on the basis of unit prices.

1.44. Work —The entire completed construction or the various separately unidentifiable parts thereof required to be furnished under the Contract Documents. Work includes and is the result of performing or furnishing labor and furnishing and incorporating materials and equipment into the construction, and performing or furnishing services and furnishing documents, all as required by the Contract Documents.

1.45. Work Change Directive —A written directive to CONTRACTOR, issued on or after the Effective Date of the Agreement and signed by CITY and recommended by DESIGN PROFESSIONAL, 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 6.15. A Work Change Directive will not change the Contract Price or the Contract Times, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times as provided in paragraph 10.5.

1.46. Written Amendment —A written amendment of the Contract Documents, signed by CITY and CONTRACTOR on or after the Effective Date of the Agreement and normally dealing with the non-engineering or non-technical rather than strictly construction-related aspects of the Contract Documents.

ARTICLE 2

PRELIMINARY MATTERS

2.1. Delivery of Bonds : When CONTRACTOR delivers the executed Agreements to CITY and before any Work at the site is started, CONTRACTOR shall also deliver to CITY such Bonds as CONTRACTOR may be required to furnish in accordance with paragraph 5.1.

2.2. Copies of Documents : CITY shall furnish to CONTRACTOR up to ten 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.

2.3. Commencement of Contract Times; Notice to Proceed : The Contract Times will commence to run on the thirtieth day after the Effective Date of the Agreement, or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within thirty days after the Effective Date of the Agreement. In no event will the Contract Times commence to run later than the sixtieth day after the day of Bid opening or the thirtieth day after the Effective Date of the Agreement, whichever date is earlier.

2.4. Starting the Work : CONTRACTOR shall start to perform the Work on the date when the Contract Times commence to run, but no Work shall be done at the site prior to the date on which the Contract Times commence to run.

2.5. Before Starting Construction or Work:

2.5.1. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. CONTRACTOR shall promptly report in writing to DESIGN PROFESSIONAL any conflict, error, ambiguity or discrepancy which CONTRACTOR may discover and shall obtain a written interpretation or clarification from DESIGN PROFESSIONAL before proceeding with any Work affected thereby; however, CONTRACTOR shall not be liable to CITY or DESIGN PROFESSIONAL for failure to report any conflict, error, ambiguity or discrepancy in the Contract Documents, unless CONTRACTOR knew or reasonably should have known thereof.

2.5.2. Within ten days after the Effective Date of the Agreement (unless otherwise specified in the Contract Documents), CONTRACTOR shall submit to DESIGN PROFESSIONAL for review:

2.5.2.1. a preliminary progress schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents;

2.5.2.2. a preliminary schedule of Shop Drawing and Sample submittals that will list each required submittal and the times for submitting, reviewing and processing such submittal;

2.5.2.3. a preliminary schedule of values for all of the Work that 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;

2.5.2.4 a cash flow distribution schedule to be approved by CITY and DESIGN PROFESSIONAL.

2.5.3. Before any Work at the site is started, CONTRACTOR shall deliver to CITY, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance that CONTRACTOR is required to purchase and maintain in accordance with paragraph 5.3.

2.6. Preconstruction Conference : Within twenty days after the Contract Times start to run, but before any Work at the site is started, a conference attended by CONTRACTOR, DESIGN PROFESSIONAL and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in paragraph 2.5.2., procedures for handling Shop Drawings and other submittals, processing Applications for Payment and maintaining required records.

2.7. Initially Acceptable Schedules : Unless otherwise provided in the Contract Documents, at least ten days before submission of the first Application for Payment a conference attended by CONTRACTOR, DESIGN PROFESSIONAL and others as appropriate will be held to review for acceptability to DESIGN PROFESSIONAL as provided below the schedules submitted in accordance with paragraph 2.5.2. CONTRACTOR shall have an additional ten days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to CONTRACTOR until the schedules are submitted to and acceptable to DESIGN PROFESSIONAL as provided below. The progress schedule will be acceptable to DESIGN PROFESSIONAL as providing an orderly progression of the Work to completion within any specified Milestones and the Contract Times, but such acceptance will neither impose on DESIGN PROFESSIONAL responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve CONTRACTOR from CONTRACTOR's full responsibility therefor. CONTRACTOR's schedule of Shop Drawing and Sample submissions will be acceptable to DESIGN PROFESSIONAL as providing a workable arrangement for reviewing and processing the required submittals. CONTRACTOR's schedule of values will be acceptable to DESIGN PROFESSIONAL as to form and substance.

ARTICLE 3

CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

3.1. Intent:

3.1.1. The Contract Documents comprise the entire agreement between CITY and CONTRACTOR concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the laws of the State of Colorado.

3.1.2. It is the intent of the Contract Documents to describe a functionally complete 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 or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for. When words or phrases that have a well-known technical or construction industry or trade meaning are used to describe Work, materials or equipment, such words or phrases shall be interpreted in accordance with that meaning. Clarifications and interpretations of the Contract Documents shall be issued by DESIGN PROFESSIONAL as provided in paragraph 9.4.

3.2. Reference to Standards and Specifications of Technical Societies; Reporting and Resolving Discrepancies:

3.2.1. Reference to standards, specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard, specification, manual, code or Laws or Regulations in effect at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.

3.2.2. If, during the performance of the Work, CONTRACTOR discovers any conflict, error, ambiguity or discrepancy within the Contract Documents or between the Contract Documents and any provision of any such Law or Regulation applicable to the performance of the Work or of any such standard, specification, manual or code or of any instruction of any Supplier referred to in paragraph 6.2.3., CONTRACTOR shall report it to DESIGN PROFESSIONAL in writing at once, and, CONTRACTOR shall not proceed with the Work affected thereby (except in an emergency as authorized by paragraph 6.15.) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in paragraph 3.4. or 3.5.; provided, however, that CONTRACTOR shall not be liable to CITY or DESIGN PROFESSIONAL for failure to report any such conflict, error, ambiguity or discrepancy unless CONTRACTOR knew or reasonably should have known thereof.

3.2.3. The provisions of the Construction Contract shall supersede any conflicting provisions of any other Contract Document. The provisions of the Specifications and Drawings, if any, shall supersede any conflicting provisions of any other Contract Document except the Construction Contract. The provisions of the Supplementary Conditions shall supersede any conflicting provisions of any other Contract Document, except the provisions of the Construction Contract or the Specifications and Drawings.

3.2.4. Except as otherwise specifically stated in the Contract Documents or as may be provided by amendment or supplement thereto issued by one of the methods indicated in paragraph 3.4. or 3.5. the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity or discrepancy between the provisions of the Contract Documents and:

3.2.4.1. the provisions of any such standard, specification, manual, code or instruction (whether or not specifically incorporated by reference in the Contract Documents); or

3.2.4.2. the provisions of any such Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).

No provision of any such standard, specification, manual, code or instruction shall be effective to change the duties and responsibilities of CITY, CONTRACTOR or DESIGN PROFESSIONAL, or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents, nor shall it be effective to assign to CITY, DESIGN PROFESSIONAL or any of DESIGN PROFESSIONAL'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 inconsistent with the provisions of paragraph 9.10 or any other provision of the Contract Documents.

3.3. Review or Judgment of DESIGN PROFESSIONAL: 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 judgment of DESIGN PROFESSIONAL as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate, in general, the completed Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated in 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 DESIGN PROFESSIONAL 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 9.10 or any other provision of the Contract Documents.

3.4. Amending Contract Documents : 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 10.5), or

3.4.3. a Work Change Directive (pursuant to paragraph 10.2).

3.5. Supplementing Contract Documents : In addition, the requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the following ways:

3.5.1. a Field Order (pursuant to paragraph 9.5),

3.5.2. DESIGN PROFESSIONAL's approval of a Shop Drawing or Sample (pursuant to paragraphs 6.17.4. and 6.17.5.), or

3.5.3. DESIGN PROFESSIONAL's written interpretation or clarification (pursuant to paragraph 9.4).

3.6. Reuse of Documents : CONTRACTOR, and any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with CITY (i) shall not have or acquire any title to or Ownership rights in any of the Drawings, Specifications or other documents (or copies of any thereof) prepared by or bearing the seal of DESIGN PROFESSIONAL or DESIGN PROFESSIONAL's Consultant, and (ii) shall not reuse any of such Drawings, Specifications, other documents or copies on extensions of the Project or any other project without written consent of CITY and DESIGN PROFESSIONAL and specific written verification or adaption by DESIGN PROFESSIONAL.

ARTICLE 4

AVAILABILITY OF LANDS;

SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS

4.1. Availability of Lands : CITY 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 that are designated for the use of CONTRACTOR. CITY shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which CONTRACTOR will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by CITY, unless otherwise provided in the Contract Documents. If CONTRACTOR and CITY are unable to agree on entitlement to or the amount or extent of any adjustments in the Contract Price or the Contract Times as a result of any delay in CITY's furnishing these lands, rights-of-way or easements, CONTRACTOR may make a claim therefor as provided in Articles 11 and 12. CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.

4.2. Subsurface and Physical Conditions:

4.2.1. Reports and Drawings: Reference is made to the Supplementary Conditions for identification of:

4.2.1.1. Subsurface Conditions: Those reports of explorations and tests of subsurface conditions at or contiguous to the site that have been utilized by DESIGN PROFESSIONAL in preparing the Contract Documents; and

4.2.1.2. Physical Conditions: Those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) that have been utilized by DESIGN PROFESSIONAL in preparing the Contract Documents.

4.2.2. Limited Reliance by CONTRACTOR Authorized; Technical Data: CONTRACTOR may rely upon the general accuracy of the “technical data” contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such “technical data” is identified in the Supplementary Conditions. Except for such reliance on such “technical data,” CONTRACTOR may not rely upon or make any claim against CITY, DESIGN PROFESSIONAL or any of DESIGN PROFESSIONAL's Consultants with respect to:

4.2.2.1. the completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and safety precautions and programs incident thereto, or

4.2.2.2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings, or

4.2.2.3. any CONTRACTOR interpretation of or conclusion drawn from any "technical data" or any such data, interpretations, opinions or information.

4.2.3. Notice of Differing Subsurface or Physical Conditions: If CONTRACTOR believes that any subsurface or physical condition at or contiguous to the site that is uncovered or revealed either:

4.2.3.1. is of such a nature as to establish that any “technical data” on which CONTRACTOR is entitled to rely as provided in paragraphs 4.2.1. and 4.2.2. is materially inaccurate, or

4.2.3.2. is of such a nature as to require a change in the Contract Documents, or

4.2.3.3. differs materially from that shown or indicated in the Contract Documents, or

4.2.3.4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents, then

CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as permitted by paragraph 6.15.), notify CITY and DESIGN PROFESSIONAL in writing about such condition. CONTRACTOR shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so.

4.2.4. DESIGN PROFESSIONAL's Review: DESIGN PROFESSIONAL will promptly review the pertinent conditions, determine the necessity of CITY's obtaining additional exploration or tests with respect thereto and advise CITY in writing (with a copy to CONTRACTOR) of DESIGN PROFESSIONAL's findings and conclusions.

4.2.5. Possible Contract Documents Change: If DESIGN PROFESSIONAL concludes that a change in the Contract Documents is required as a result of a condition that meets one or more of the categories in paragraph 4.2.3, a Work Change Directive or a Change Order will be issued as provided in Article 10 to reflect and document the consequences of such change.

4.2.6. Possible Price and Times Adjustments: An equitable adjustment in the Contract Price or in the Contract Times, or both, will be allowed to the extent that the existence of such uncovered or revealed condition causes an increase or decrease in CONTRACTOR's cost of, or time required for performance of, the Work; subject, however, to the following:

4.2.6.1. such condition must meet any one or more of the categories described in paragraphs 4.2.3.1. through 4.2.3.4., inclusive;

4.2.6.2. a change in the Contract Documents pursuant to paragraph 4.2.5 will not be an automatic authorization of nor a condition precedent to entitlement to any such adjustment;

4.2.6.3. with respect to Work that is paid for on a Unit Price Basis, any adjustment in Contract Price will be subject to the provisions of paragraphs 9.8. and 11.9.; and

4.2.6.4. CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Times if;

4.2.6.4.1. CONTRACTOR knew of the existence of such conditions at the time CONTRACTOR made a final commitment to CITY in respect of Contract Price and Contract Times by the submission of a bid or becoming bound under a negotiated contract; or

4.2.6.4.2. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test or study of the site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to CONTRACTOR's making such final commitment; or

4.2.6.4.3. CONTRACTOR failed to give the written notice within the time and as required by paragraph 4.2.3.

If CITY and CONTRACTOR are unable to agree on entitlement to or as to the amount or length of any such equitable adjustment in the Contract Price or Contract Times, a claim may be made therefor as provided in Articles 11 and 12. However, CITY, DESIGN PROFESSIONAL and DESIGN PROFESSIONAL'S Consultants shall not be liable to CONTRACTOR for any claims, costs, losses or damages sustained by CONTRACTOR on or in connection with any other project or anticipated project.

4.3. 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 CITY or DESIGN PROFESSIONAL by the owners of such Underground Facilities or by others. Unless it is otherwise expressly provided in the Supplementary Conditions:

4.3.1.1. CITY and DESIGN PROFESSIONAL shall not be responsible for the accuracy or completeness of any such information or data; and

4.3.1.2. The cost of all of the following will be included in the Contract Price and CONTRACTOR shall have full responsibility for: (i) reviewing and checking all such information and data, (ii) locating all Underground Facilities shown or indicated in the Contract Documents, (iii) coordination of the Work with the owners of such Underground Facilities during construction, and (iv) the safety and protection of all such Underground Facilities as provided in paragraph 6.12. and repairing any damage thereto resulting from the Work.

4.3.2. Not Shown or Indicated: If an Underground Facility is uncovered or revealed at or contiguous to the site that was not shown or indicated in the Contract Documents, CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by paragraph 6.15.), identify the owner of such Underground Facility and give written notice to that owner and to CITY and DESIGN PROFESSIONAL. DESIGN PROFESSIONAL will promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document the consequences of the existence of the Underground Facility. If DESIGN PROFESSIONAL concludes that a change in the Contract Documents is required, a Work Change Directive or a Change Order will be issued as provided in Article 10 to reflect and document such consequences. During such time, CONTRACTOR shall be responsible for the safety and protection of such Underground Facility as provided in paragraph 6.12. CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Times, 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 that CONTRACTOR did not know of and could not reasonably have been expected to be aware of or to have anticipated. If CITY and CONTRACTOR are unable to agree on entitlement to or the amount or length of any such adjustment in Contract Price or Contract Times, CONTRACTOR may make a claim therefor as provided in Articles 11 and 12. However, CITY, DESIGN PROFESSIONAL and DESIGN PROFESSIONAL's Consultants shall not be liable to CONTRACTOR for any claims, costs, losses or damages incurred or sustained by CONTRACTOR on or in connection with any other project or anticipated project.

4.4. Reference Points : CITY shall provide engineering surveys to establish reference points for construction which in DESIGN PROFESSIONAL's judgment are necessary to enable CONTRACTOR to proceed with the Work. CONTRACTOR shall be responsible for laying out the Work, shall protect and preserve the established reference points and shall make no changes or relocations without the prior written approval of CITY. CONTRACTOR shall report to DESIGN PROFESSIONAL whenever any reference 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.

4.5. Asbestos, PCBs, Petroleum, Hazardous Waste or Radioactive Material :

4.5.1. CITY shall be responsible for any Asbestos, PCBs, Petroleum, Hazardous Waste or Radioactive Material uncovered or revealed at the site that was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work and that may present a substantial danger to persons or property exposed thereto in connection with the Work at the site. CITY shall not be responsible for any such materials brought to the site by CONTRACTOR, Subcontractor, Suppliers or anyone else for whom CONTRACTOR is responsible.

4.5.2. CONTRACTOR shall immediately: (i) stop all Work in connection with such hazardous condition and in any area affected thereby (except in an emergency as required by paragraph 6.15.), and (ii) notify CITY and DESIGN PROFESSIONAL (and thereafter confirm such notice in writing). CITY shall promptly consult with DESIGN PROFESSIONAL concerning the necessity for CITY to retain a qualified expert to evaluate such hazardous condition or take corrective action, if any. CONTRACTOR shall not be required to resume Work in connection with such hazardous condition or in any such affected area until after CITY has obtained any required permits related thereto and delivered to CONTRACTOR special written notice: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work, or (ii) specifying any special conditions under which such Work may be resumed safely. If CITY and CONTRACTOR cannot agree as to entitlement to or the amount or extent of an adjustment, if any, in Contract Price or Contract Times as a result of such Work stoppage or such special conditions under which Work is agreed by CONTRACTOR to be resumed, either party may make a claim therefor as provided in Articles 11 and 12.

4.5.3. If after receipt of such special written notice CONTRACTOR does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then CITY may order such portion of the Work that is in connection with such hazardous condition or in such affected area to be deleted from the Work. If CITY and CONTRACTOR cannot agree as to entitlement to or the amount or extent of an adjustment, if any, in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may make a claim therefor as provided in Articles 11 and 12. CITY may have such deleted portion of the Work performed by CITY's own forces or others in accordance with Article 7.

4.5.4. To the extent permitted by Colorado law, CITY shall indemnify and hold harmless CONTRACTOR, Subcontractors, DESIGN PROFESSIONAL, DESIGN PROFESSIONAL's Consultants and the officers, directors, employees, agents, other consultants and subcontractors of each and any of them from and against all claims, costs, losses and damages arising out of or resulting from such hazardous condition, provided that: (i) any such claim, cost, loss or damage is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (ii) such claim, cost, loss or damage is caused in whole or in part, or is claimed to be caused in whole or in part by the negligence or willful misconduct of CITY, its officers or employees. Nothing contained in the Contract Documents shall constitute any waiver by CITY of any rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to CITY, its officers, or its employees.

4.5.5. The provisions of paragraphs 4.2. and 4.3. are not intended to apply to Asbestos, PCBs, Petroleum, Hazardous Waste or Radioactive Material uncovered or revealed at the site.

ARTICLE 5

BONDS AND INSURANCE

5.1. Performance, Payment and Other Bonds :

5.1.1 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 until at least three (3) years after the date when final payment becomes due or until completion of the correction period specified in Article 13, whichever is later, except as provided otherwise by Laws or Regulations 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 form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the current 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 Government Financial Operations, U.S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act.

5.1.2 CONTRACTOR shall maintain the Performance Bond required under paragraph 5.1.1 in an amount equal to one-hundred percent (100%) of the Contract Price for the first year after final completion and acceptance, and in an amount equal to at least ten percent (10%) of the Contract Price for the second and third years after final completion and acceptance.

5.1.3. If the surety on any Bond furnished by CONTRACTOR is declared a bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirements of paragraph 5.1, CONTRACTOR shall within ten days thereafter substitute another Bond and surety, both of which must be acceptable to CITY.

5.2. Licensed Sureties and Insurers; Certificates of Insurance :

5.2.1. All Bonds and insurance required by the Contract Documents to be purchased and maintained by CONTRACTOR shall be obtained from surety or insurance companies that are duly licensed or authorized in the jurisdiction in which the Project is located to issue Bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions.

5.2.2. CONTRACTOR shall deliver to CITY, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by CITY or any other additional insured) which CONTRACTOR is required to purchase and maintain in accordance with paragraph 5.3.

5.3. CONTRACTOR's Liability Insurance :

5.3.1. CONTRACTOR shall at its own expense purchase and maintain, and shall cause any Subcontractor of the CONTRACTOR to procure and maintain, such liability and other insurance policies as set forth below that will provide protection from and insure against claims that 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, any Subcontractor or Supplier, or 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:

5.3.1.1. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) for each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations related to the Work. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, completed operations, explosion, collapse, and underground hazards. The policy shall also contain a severability of interests provision and a waiver of subrogation.

5.3.1.2. Worker’s Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of Work under this Agreement, and Employer’s Liability insurance with minimum limits of ONE MILLION DOLLARS ($1,000,000) each accident, ONE MILLION DOLLARS ($1,000,000) disease policy limit, and ONE MILLION DOLLARS ($1,000,000) disease each employee.

5.3.1.3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION DOLLARS ($1,000,000) aggregate with respect to each of CONTRACTOR’s owned, hired and nonowned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the CONTRACTOR has no owned automobiles, the requirements of this Paragraph shall be met by each employee of the CONTRACTOR providing services to the OWNER under this Agreement.

5.3.1.4. Builder’s Risk Insurance: Builder’s Risk “all risk” insurance providing property insurance upon the Work at the Site in accordance with…