General Terms and Conditions.pdf

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GENERAL CONDITIONS OF THE CONTRACT

TABLE OF CONTENTS

Article 1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

1.2 References

1.3 Intention of Terms

1.4 Computation of Time

1.5 Abbreviations

1.6 Interpretation

Article 2. PRELIMINARY MATTERS

2.1 Delivery of Bonds and Evidence of Insurance

2.2 Notice to Proceed

2.3 Authority of the City Manager

2.4 Plans and Specifications

2.5 Special Work

2.6 Pre-Construction Meeting

2.7 Contractor’s Understanding of Work

2.8 Contractor’s Representation

2.9 Other Work

2.10 Notices

2.11 Contractor’s Signs

2.12 Publicity and Advertising

Article 3. PAYMENTS

3.1 Measurement of Work Performed

3.2 Payments to Contractor and Completion

3.3 Appropriate of Funds

3.4 Payment for Increased or Decreased Quantities

3.5 Payment for Omitted Items

3.6 Extra and Force Account Work

3.7 Partial Payments

3.8 Taxes / Direct Purchase Option

3.9 Liens

3.10 Deductions

Article 4. COMPLETION, TIME and DELAYS IN CONSTRUCTION

4.1 Delays

4.2 Construction Schedule

4.3 Subcontracting or Assigning of Contract

4.4 Commencement of Work

4.5 Limitation of Operations

4.6 Progress Schedule

4.7 Character of Workman and Equipment

4.8 Suspension of Work

4.9 Suspension of Work for City’s Convenience

4.10 Suspension of Work Due to Order of City, County, State or Federal Court or Agency

4.11 Suspension of Work Resulting from Contractor’s Failure to Perform xi

4.12 Contract Time

4.13 Liquidated Damages

4.14 Adjustment for Suspended Work

4.15 Termination of Contract

4.16 Termination for Cause

4.17 Termination for Convenience of Owner

4.18 Cooperation with Other Contractors

4.19 Terminating of Contractor’s Responsibility

Article 5. PROJECT AND CONSTRUCTION MANAGEMENT

5.1 Authority of Project Engineer or Project Manager

5.2 Communications

5.3 Supervision

5.4 Contractor Performance

5.5 Work Performed Under Adverse Weather Conditions

5.6 Use of Materials Found on the Work Site

5.7 Final Cleaning Up

5.8 Surveys

5.9 Lines and Grades

5.10 Value Engineering

5.11 Sanitary Regulations

5.12 Staging and Storage

5.13 Salvage

5.14 Materials and Equipment Furnished by the Contractor

5.15 Substitution of Materials and Equipment

5.16 Cutting and Patching

5.17 Samples and Testing

5.18 Property Rights in Materials

Article 6. CHANGES IN THE WORK

6.1 Changes and Increased or Decreased Quantities of Work

6.2 Adjustments to Contract Price

6.3 Omitted Items

6.4 Work Not Specified But Included

6.5 Extra Work – Force Account

6.6 Unauthorized Work

Article 7. SUBCONTRCTORS, SUPPLIERS AND PERSONNEL

7.1 Subcontractors

7.2 Workforce

7.3 Compliance with Immigration Reform and Control Act of 1986

7.4 Personnel & Civil Rights

Article 8. INSPECTIONS; CORRECTION OF DEFECTS

8.1 Defective Work and Materials

8.2 Substituted Performance

8.3 Authority and Duties of Inspectors

8.4 Inspection

8.5 Removal of Defective and Unauthorized Work

8.6 Geotechnical and Other Design Professional Reports, Investigations & Tests

Article 9. PROTECTION OF PERSONS, PROPERTY AND ENVIRONMENT

9.1 Protection of Persons

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9.2 Protection of Property

9.3 Protection of Historical Sites

9.4 Responsibility to Repair

9.5 Traffic Control

9.6 Protection of Street Signs, Traffic Signs and Signals

9.7 Utilities

9.8 Coordination with Englewood Utilities

9.9 Notification of Affected Utility and Property Owners

9.10 Pollution Control

9.11 Public Convenience and Safety

9.12 Use of Explosives

9.13 Restoration of Property

Article 10. PERMITS AND LICENSES; COMPLIANCE WITH CURRENT LAWS

10.1 Compliance with Laws, Licenses and Permits

Article 11. BONDS

11.1 Bonds

Article 12. WARRANTY

12.1 Scope of Warranty

12.2 Owners Right to Correct

12.3 Non-Emergency Warranty Work

12.4 Performance During Warranty Period

Article 13. INSURANCE; RISK OF LOSS

13.1 General Requirements

13.2 Required Policies and Limits

13.3 Terms of Insurance

Article 14. INDEMNIFICATION

14.1 Contractor to Owner

14.2 Owner to Contractor

14.3 No Personal Liability of the Project Engineer or Project Manager

14.4 No Waiver of Legal Rights

Article 15. DEFAULTS, REMEDIES AND TERMINATION

15.1 Notice of Disputes and Objections

15.2 Negotiations of Disputes

15.3 Decision

15.4 Waiver

15.5 Contractor’s Remedies

15.6 Owner’s Remedies

15.7 Owner’s Special Remedy for Delay

15.8 Attorney’s Fees

Article 16. INDEPENDENT CONTRACTOR

Article 17. DISPOSAL; HAZARDOUS SUBSTANCES

17.1 Removal and Disposal of Structures and Obstructions

17.2 Cleaning Up and Restorations

17.3 Removal of Condemned Materials and Work

17.4 Pests & Vector Control

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17.5 Hazardous Substances

17.6 Existing Facilities – Hazardous Substances May Exist

17.7 No Introduction of Hazardous Substances

17.8 Suspected Hazardous Substances

17.9 Ordinary Course Materials

Article 18. ROYALTIES AND PATENTS

18.1 Patents and Copyrights

Article 19. DRAWINGS, DETAIL AND INSTRUCTIONS

19.1 Drawings and Specifications

19.2 Copies of Drawings and Specifications Furnished

19.3 Utilities

19.4 Requests for Clarification and Information

19.5 Dimensions

19.6 Shop Drawings

19.7 Record Documents

19.8 Operating Manuals and Parks Lists

19.9 Conformity With Plans and Allowable Deviations

19.10 Coordination of Specifications, Plans and Special Provisions

19.11 Ownership to Work Product

Article 20. RIGHT-OF-WAY

20.1 Acquisition of Right-of-Way

20.2 Access to Right-of-Way

20.3 Rights-of-Way

Article 21. SUBMITTALS

21.1 Schedule of Submittals

21.2 Scope of Engineer’s Reviews

21.3 Review Process

Article 22. NOTICES

Article 23. OWNER’S GENERAL RESPONSIBILITIES

23.1 Owner Performance

23.2 Project Engineer or Project Manager

23.3 Right to Bar Persons From the Work or Site

23.4 Access to Work

23.5 Inspection

Article 24. CONCEALED CONDITIONS

24.1 Discovery of Concealed Physical Conditions

24.2 Inspection and Drawing Update

24.3 Delays

24.4 Change Order

24.5 Costs

Article 25. WAIVER

25.1 Waiver

25.2 No Waiver

Article 26. OTHER CONDITIONS xiv

26.1 Binding Contract

26.2 Legislative of Judicial Decisions

26.3 Superseding

26.4 Professional Standards

26.5 Notification in Writing

26.6 Headings for Reference Only

26.7 One Instrument

26.8 Third Party Claims

26.9 Calendar Days

26.10 Written Consent

26.11 Reallocation of Resources

26.12 Disclosure of Confidential Information

26.13 Audit

26.14 Federal Aid Provisions

26.15 Duties & Remedies

26.16 Survival

26.17 Government Immunity

26.18 Construction

26.19 No Implied Representations

26.20 Financial Obligations of the City

26.21 Assignment/Transference

26.22 Amendments

26.23 No Third-Party Beneficiaries

26.24 Independent Contract – No Partnership or Agency

26.25 Governing Law, Jurisdiction, Venue

26.26 Attorney’s Fees and Costs

Article 1. DEFINITIONS AND INTERPRETATION

1.1 DEFINITIONS: Whenever the following terms or pronouns are used in the Specifications and Contract Documents, the intent and meaning shall be as follows Terms defined in the Agreement or other Contract Documents, and not defined within this Article, shall have the meaning given them in the Document where defined.

1) ADDENDA: Written changes to the Bid Documents issued before the opening of Bids that clarify, correct, or change the Contract or change the date set for the Opening of Bids.

2) AMENDMENT: A change to the original contract which sets forth additional work which is new, and is outside the scope of the original contract and/or proposal. Such Amendment may require additional funding and bonding and will require approval in accordance with the Owner’s purchasing policy.

3) BID: The offer or proposal of the Bidder submitted on the prescribed forms setting forth the prices for the Work to be performed.

4) BIDDER: The individual or entity who submits a Bid directly to Owner.

5) BID SECURITY: The security, as designated in the “Instructions to Bidders” furnished with the Bid by the Bidder as a guarantee that the Bidder will enter into the Contract and Furnish Bond(s) as required if the work be awarded to such Bidder.

6) BONDS: Bid, performance, payment and material bonds, any warranty bond, or other instruments of security furnished by the Contractor and its Surety to the Owner according to the Contract.

7) CHANGE ORDER: A written order to the Contractor, signed by the Project Engineer, on behalf of Owner, ordering a change that has been found necessary in the Work from that originally shown in the Plans and Specifications but which is still within the general scope of the Contract. If the Work is of a nature involving an adjustment of unit prices, a Supplemental Agreement shall be executed. A change order set forth upon a change order form generated by Owner, and signed by both Owner and Contractor, authorizes modifications to the existing contract documents.

8) COMPLETION DATE: The date the Contract specifies the Work is to be completed.

9) CONSTRUCTION SCHEDULE: The schedule of Work approved by Owner in accordance with the Contract Documents.

10) CONTRACT OR CONTRACT DOCUMENTS: The written Agreement executed between the Owner and the successful Bidder (“Contractor”), covering the performance of the Work and the furnishing of labor and materials, which binds the Contractor to perform the Work and furnish the labor and materials and by which the Owner is obligated to provide compensation at a mutually established and accepted rate or price. The Contract shall include Contract Agreement, Request for Bid, Bidder’s response (“Bid”), Bid Bond, Performance Bond, Payment Bond, Material Bond, Notice of Award and Notice to Proceed, Final Acceptance and Warranty Initiation, Final Receipt, Notice of End of Basic Warranty Period, Special Provisions, General Provisions, Statements of Work, Technical Specifications, Plans, Specifications, Drawings and Addenda or Change Orders, and any and all Supplemental Agreements which may be subsequently entered into to complete the Work in an acceptable manner in accordance with the Plans and Specifications.

11) CONTRACT PRICE: The total monies payable to the Contractor under the terms and conditions of the Contract.

12) CONTRACT TIME: The number of days provided in the Contract for the completion of the Project from the date of the Notice to Proceed through and including the date of Final Acceptance. The Contract Documents may require completion on or before a certain specified date.

13) CONTRACTOR: The successful bidder, who may be an individual, partnership, firm, or corporation, who executes the Contract, acting directly or through lawful agents or employees, primarily liable for the acceptable performance of the Work for which contracted, and for the payment of all legal debts pertaining to the Work.

14) CRITICAL PATH: a sequence of project tasks that add up to the longest project duration. If any tasks on the critical path experience delays, the overall project schedule must be extended.

15) DATE OF CONTRACT (“Effective Date of Contract”): The execution date in the Agreement for a Construction Contract unless otherwise specified.

16) DAY: A calendar day of twenty-four hours, from midnight to midnight, unless otherwise specified herein.

17) DRAWINGS: The part of the Contract Documents prepared or approved by the Project Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor, including plans, profiles, typical cross-sections, general cross-sections, elevations, schedules, and details which show locations, character, dimensions, and details of the Work. Shop drawings and other Contractor submittals are not Drawings as so defined.

18) E-VERIFY: (formerly known as the Basic Pilot/Employment Eligibility Verification Program) An internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

19) ENGINEER (“Project Engineer”): The Owner’s designated, authorized representative assigned to the Project. The Project Engineer may have day-to-day responsibility for managing the Contract, or may designate in writing a Project Manager to provide day-to-day responsibility for managing the Contract.

20) EQUIPMENT: All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper construction and acceptable completion of the Work.

21) EXTRA WORK: Work not provided for in the Contract as awarded but found to be essential to the satisfactory completion of the Contract, within its intended scope.

22) FIELD ORDER: A written order effecting minor change in the Work not involving an adjustment in the Contract Price or an extension of the Contract Time, issued by the Project Engineer to the Contractor during construction.

23) FINAL ACCEPTANCE: An acknowledgment made by the Owner that all Work, as defined in Paragraph 59 herein, has been completed. The Owner’s final acceptance of the Work completed according to the Contract requirements with all parts of the Work in good condition and in working order, including completion of all punch list items, cleanup work, and delivery of all required guarantees, warranties, licenses, releases, and other deliverables.

24) FINAL PAYMENT: The final and complete payment to the Contractor in accordance with the Contract Documents.

25) FORCE ACCOUNT: A method of payment, other than lump sum or unit price, for Work ordered by a Change Order.

26) INSPECTOR: An authorized designee of the Engineer or Project Manager, assigned to make all necessary inspection of the Work performed or being performed, or of the materials furnished or being furnished by the Contractor.

27) LABORATORY: The official testing laboratories of the Owner or such other laboratories as may be designated by the Project Engineer.

28) NOTICE OF AWARD: A written notice to the successful Bidder stating their Bid has been accepted and that, in accordance with the terms of the notice to Contractors and the Specifications, such Bidder is required to execute the Contract and furnish satisfactory Bonds.

29) NOTICE OF FINAL ACCEPTANCE: The written notice of the date, as certified by the Owner, of Final Acceptance.

30) NOTICE TO PROCEED: A written notice given by Owner to Contractor fixing the date upon which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents.

31) NOTICE OF SUBSTANTIAL COMPLETION: The written notice of the date, as certified by the Owner, of Substantial Completion.

32) NOTICE OF TERMINATION: Written notice from the Owner to the Contractor to stop Work under the Contract on the date and to the extent specified in the Notice of Termination.

33) OWNER (“City”): The City of Englewood, Colorado.

34) PARTIES: The Owner and the Contractor.

35) PAYMENT BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee to pay in full all bills and accounts for materials and labor used in the construction of the Work, as provided by law.

36) PERFORMANCE BOND: The approved form of security furnished by the Contractor and the Contractor’s surety as a guarantee of good faith and ability on the part of the Contractor to execute the Work in accordance with the terms of the Plans, Specifications, and Contract. In lieu of a separate Performance Bond, a combination Performance, Labor and Material Payment Bond may be supplied by the Contractor.

37) PERFORMANCE, LABOR AND MATERIAL PAYMENT BOND: Security furnished by the Contractor and his surety as a guarantee to pay in full all bills and accounts for materials and labor used in the Work and to execute the Work in accordance with the Contract.

38) PLANS: The official Plans, working drawings, or supplemental drawings or exact reproductions thereof, approved by the Project Engineer which show the locations, character, dimensions, and details of the Work to be done and which are to be considered part of the Contract, supplementary to these Specifications.

39) PROGRESS SCHEDULE: A construction schedule prepared by the Contractor in a bar- chart, critical path or other format acceptable to the Engineer which includes the start and completion dates of all salient features of the Work as specified in Paragraph 41 hereof.

40) PROJECT: The total construction of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents, and may include construction by other contractors.

41) PROJECT MANAGER: A representative of Owner authorized in writing by the Project Engineer/Engineer, and reporting to the Project Engineer/Engineer, to oversee the Project through day-to-day responsibility for managing the Contract.

42) PROPOSAL: The written offer of the Proposer, when submitted on the approved Proposal form, to perform the contemplated Work and furnish the necessary materials in accordance with the provisions of the Plans and Specifications.

43) BID BOND: The security, as designated in the Request for Bids to guarantee the Bidder will accept the Work under the terms set forth within the Bid Documents and Bid Response if the Work is awarded to such Bidder.

44) BIDDER: Any individual, firm, or corporation, submitting a Proposal or Bid for the Work contemplated within the Bid Documents...

45) REASONABLY PREDICTABLE WEATHER DELAYS: Estimated Weather Day(s) where critical path activities cannot be performed in any month, within contract weather or temperature limitations, or due to weather related conditions.

46) SHOP DRAWINGS: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a subcontractor, manufacturer, supplier, or distributor, which illustrate how specific portions of the Work shall be fabricated or installed.

47) SPECIAL PROVISIONS: Specific clauses setting forth conditions or requirements particular to the Project as set forth in the Proposal, which are not stipulated in the General Provisions or Technical Specifications.

48) SPECIFICATIONS: A part of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship. The directions, provisions, and requirements contained therein, and which may be supplemented by Special Provisions, pertaining to the method and manner of performing the Work, or to the quantities or the qualities of materials to be furnished under the Contract.

49) STRUCTURES: Bridges, culverts, sewers, catch basins, retaining walls, manholes, headwalls, buildings, valve vaults and other features which may be encountered or included in the Work and not otherwise classified herein.

50) SUBCONTRACTOR: Any person or entity having a subcontract with the Contractor (or any Subcontractor, of any tier, whether or not authorized by the Contractor) to furnish and perform work at the Work site, including the provision of labor, materials, equipment, supplies, tools, services, or any combination of these. This definition shall not limit the Contractor’s obligations, or alter any Subcontractor’s rights, under any law or contract.

51) SUBSTANTIAL COMPLETION: The date on which the Work has progressed to the point that the Owner can beneficially occupy or utilize the Work for the purpose for which it is intended, and the Work complies with all applicable codes and regulations, including, if required, issuance of a certificate of occupancy, or certificate of suitability for use from the appropriate governmental agencies, as determined by the Owner in its sole discretion

52) SUPERINTENDENT: The executive representative for the Contractor who is present on the Work at all times, authorized to receive and fulfill instructions from the Engineer or Project Manager and capable of supervising the Work efficiently.

53) SUPPLEMENTAL AGREEMENT: A written Proposal and Agreement, including Amendments, executed by the Contractor and by the Owner, with increased bonding from the surety if such agreement results in an increase in the total contract amount, covering Work not included in the Plans and Proposal or as specified in Section 1.3 which is necessary to for the proper completion of the Project. A supplemental agreement includes addendums to the original agreement, amendments to the original agreement, or change orders if such change order modifies a cost or price agreed to within the original agreement.

54) SUPPLIER: Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site. This definition shall not limit the Contractor’s obligations, or alter any Supplier’s rights, under any law or contract.

55) SURETY: The corporate body or individuals who are bound by the Bid Bond, Performance Bond and the Payment Bond or the Performance, Labor and Material Payment Bond, with and for the Contractor and which engage to be responsible for the entire and satisfactory fulfillment of the Contract and for the payment of all debts incurred in fulfilling the Contract.

56) UNIT PRICE: An amount stated in the Proposal as a price per unit of measurement for materials or services as described in the Contract. Unit Prices are intended to cover all items of work to be done and materials to be furnished to fully complete the Work in accordance with the Contract Documents (including without limitation the cost of appurtenant items of work, labor, materials, fees, bond costs, supplies, utilities, royalties, tools, forms and equipment, and all other costs (including without limitation sales and use tax, insurance, licenses, permits, profit, and other overhead) not listed separately, not shown on the Plans and Specifications, or not specified but necessary to complete the Work in accordance with the Contract Documents).

57) WEATHER DAY: Any day on which Work is scheduled in the Construction Schedule but cannot be performed within contract weather or temperature limitations or due to weather-related soil conditions, and where work on critical activities cannot be performed for more than fifty percent (50%) of the work day, including any day immediately following a Weather Day on which subsequent day Work was scheduled in the Construction Schedule but cannot be performed on scheduled critical path activities due to weather related site or soil conditions for more than fifty percent (50%) of the day (drying days).

58) WORK: The term "Work" shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract.

1.2 REFERENCES: Words describing materials or Work having a well-known technical or trade meaning in an industry, unless otherwise specifically defined, shall be construed in according to well-known meanings as recognized by engineers, architects, and the trades. All references to standard specifications, methods of testing materials, codes, practices, and requirements refer to the edition of each in effect on the date of the Request for Bids unless a specific edition or revision is referenced.

1.3 INTENTION OF TERMS: Any reference to a paragraph or subparagraph within a section shall include the general provision of the section or sections and paragraph pertinent thereto.

1.4 COMPUTATION OF TIME: Any period of time referred to in the Contract Documents will be computed as consecutive calendar days.

1.5 ABBREVIATIONS: When the following abbreviations appear in the documents, they are defined as follows:

AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute ACPA American Concrete Pipe Association AGC Associated General Contractors of America, Inc.

AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction ANSI American National Standards Institute APHA American Public Health Association APWA American Public Works Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials

AWS American Welding Society AWSC American Welding Society Code AWWA American Water Works Association CDOT Colorado Department of Transportation CPM Critical Path Method COE City of Englewood DHS U.S. Department of Homeland Security EPA U.S. Environmental Protection Agency EWD Englewood Water Department GESC Grading, Erosion and Sediment Control IEEE Institute of Electrical and Electronic Engineers MUTCD Manual on Uniform Traffic Control Devices NBS National Bureau of Standards NCPI National Clay Pipe Institute NEC National Electric Code NEMA National Electrical Manufacturer’s Association OSHA Occupational Safety & Health Administration RCRA Resource Conservation and Recovery Act SAME Society of American Military Engineers SPWRP South Platte Water Renewal Partners SAVE Systematic Alien Verification or Entitlement program WW-P Federal Specifications Prefix

1.6 INTERPRETATION

1.6.1 Whenever, in these Specifications, or upon the Plans, or within the Contract Documents the words "directed," "required," "permitted," "ordered," "designated," "prescribed," or words of like import, are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer or Project Manager is intended; and similarly, the words "approved," "acceptable," "satisfactory," or words of like import shall mean approved by, or acceptable to or satisfactory to the Engineer or Project Manager, unless otherwise expressly stated, subject in each case to the final determination of the Owner.

1.6.2 “Including” shall, unless otherwise specifically stated, mean including, but not limitedto.

1.6.3 Words such as “hereby,” “herein,” and “hereunder” and words of similar import shall be construed to refer to the Agreement in its entirety and the General Conditions of the Contract, subject to the provisions of the Agreement relating to resolution of differences between terms of different Contract Documents.

1.6.4 Where otherwise consistent with the context, the singular shall include the plural and the plural shall include the singular.

1.6.5 The titles of articles and sections used in the Agreement and these General Conditions of the Contract are primarily for the convenience of the reader but may be used as aids in interpreting any provision herein. If any of the provisions of the exhibits attached to the Agreement hereto or of any of the Contract Documents are inconsistent with the provisions of the Agreement, the provisions of the Agreement shall control.

1.6.6 Any references to “days” in any Contract Documents refer to calendar days. Any references in any Contract Documents or any communications between Owner and Contractor to “business days” refer to days when Owner’s administrative offices are open for the regular conduct of business.

1.6.7 When “furnish,” “install,” “perform,” or “provide” is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, “provide” is implied.

1.6.8 Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

Article 2. PRELIMINARY MATTERS

2.1 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE. When Contractor delivers the executed counterparts of the Contract to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish.

Before any Work at the Site is started, Contractor and Owners shall each deliver to the other, with copies to each additional insured identified in the Article 13 below, certificates of insurance (and other evidence of insurance with either of them or any additional insured may reasonably request) which Contract and Owner respectively are required to purchase and maintain in accordance with Article 13 below.

2.2 NOTICE TO PROCEED: Owner will give the Contractor written Notice to Proceed with the Work after execution of the Contract by the Owner. The Contractor shall begin the Work by the date stated in the Notice to Proceed and diligently pursue the Work regularly and without interruption (unless otherwise directed in writing by the Engineer or Project Manager) with the work force necessary to complete the Work and achieve Substantial Completion within the Contract Time. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Contract if no Notice to Proceed is provided. If any milestones are described in the Contract Documents or the approved Construction Schedule, the Work described by each milestone shall be accomplished on or before that milestone in accordance with the Contract Documents.

2.3 AUTHORITY OF THE DEPARTMENT DIRECTOR: The Project Engineer shall be the representative of the Owner in all matters concerning the Contract and the work to be performed thereunder, except the Department Director of the Owner shall have the authority to terminate the Contract as elsewhere herein provided. The Department Director shall make the final decision on all questions as to acceptable fulfillment of the Contract should a dispute between the Contractor and the Project Engineer occur.

2.4 PLANS AND SPECIFICATIONS: It is agreed by the parties hereto that the following list of instruments, drawings and documents which are attached or incorporated by reference constitute and shall be referred to either as the Contract Documents or the Contract and all of said instruments, drawings, and documents taken together as a whole constitute the Contract between the parties hereto and they are as fully a part of this agreement as if they were set out verbatim and in full:

• Invitation to Bid and Supporting Documents

• Contract (this instrument), including all Exhibits, Schedules, Attachments, and Specifications.

• All Proposal Response Documents

• Certificate of Insurance

The Contractor shall perform all items of Work covered and stipulated in the Specifications, Proposal, Contract and Special Provisions, together with any authorized alterations, Extra Work and Supplemental Agreements, all in accordance with the Plans. The Contractor shall furnish, unless otherwise provided in the Specifications and/or Special Provisions, all materials, implements, machinery, equipment, tools, supplies, transportation and labor necessary to perform and complete the Work.

The Contractor shall be responsible for taking all steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost of the work. Failure by the Contractor to do so will not relieve it from responsibility for successfully performing Work without additional expense to Owner. The Owner will not be responsible for any understanding or representations concerning conditions, unless such understanding or representations are expressly stated in the Contract.

2.5 SPECIAL WORK: Should any construction or conditions which are not thoroughly stipulated or set forth by the plans and specifications be anticipated on any proposed Project, Special Provisions for such Work may be prepared and attached hereto as Exhibit C, and shall be considered as part of the Specifications, the same as though contained fully therein. Should any Special Provision conflict with the Specifications, the Special Provision will govern.

2.6 PRE-CONSTRUCTION MEETING: Before any Work at the Site is started, a conference attended by the Project Engineer, Project Manager, Contractor, and others as appropriate, will be held to establish a working understanding among the parties as to the Work and to discuss the schedules for progress, milestones, and completion of Work, procedures for handling Shop Drawings, and other submittals, processing Applications for Payment, and maintaining required records. The Contractor may be asked to provide specific information as to labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents.

At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.

2.7 CONTRACTOR’S UNDERSTANDING OF WORK The Contractor agrees that by careful examination it is satisfied as to the nature and location of the Work, the conformation of the ground, the character, quality, and quantity of the materials to be encountered, the character of equipment and facilities needed before beginning and for the Work, the general and local conditions, and all other matters, which can in any way affect the Work under the Contract. No oral agreement with any officer, agent, or employee of the Owner either before or after the execution of the Contract shall affect or change any of the terms or obligations contained in the Contract.

2.8 CONTRACTOR’S REPRESENTATION: The Contractor represents and warrants that it has the knowledge, ability, experience, and expertise to perform the Work competently in accordance with the Contract Documents.

The Contractor represents and warrants the capacity of the Contractor's construction plant, personnel, and its ability to complete the Work by the Completion Date.

2.9 OTHER WORK: The Owner reserves the right to award other contracts in connection with the Project or other activities. The Contractor must be prepared to accept the presence, on or adjacent to the construction site, of work forces of other contractors, subcontractors, tenants, government agencies and municipal, public service or utility personnel. The Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their Work, and shall coordinate its Work with theirs.

If it becomes impossible to proceed with the Work in a manner that permits all activities to progress at a reasonable pace, the Project Engineer, or Project Manager, will select the course of action that appears to best serve the Owner.

2.10 CONTRACTOR’S SIGNS: No signs with Contractor’s name, logo, telephone number, address or, (etc.), shall be placed on any pole, road, structure or other surface, unless approved in writing, and in advance of such placement, by the City.

2.11 PUBLICITY AND ADVERTISING: Neither the Contractor nor its Subcontractors or Suppliers shall include any reference to the Contract nor to Work performed hereunder in any advertising or public relations materials without first obtaining the written approval of the Project Engineer. All information shall be factual, and shall in no way imply that the Owner endorses the Contractor or its services or product.

The Owner shall have the right to photograph, videotape, film or in any other manner record the progress of the Work at any time and to use such materials for any purpose.

Article 3. PAYMENTS

3.1 MEASUREMENT OF WORK PERFORMED: The determination of the amount of Work acceptably completed under the terms of the Contract, or as directed by the Project Engineer, or Project Manager, in writing, will be made by the Project Engineer, or Project Manager, based on measurements taken by him or his agents. These measurements will be taken according to the United States standard measure. All surface and linear measurements will be taken horizontally unless otherwise shown on Plans or specified. Structures shall be measured to the neat lines as shown on the Plans, or as ordered in writing by the Project Manager. Other acceptable methods could include noting a percentage completed or referencing the project schedule by milestone.

3.2 PAYMENTS TO CONTRACTOR AND COMPLETION

3.2.1 General - Unless expressly provided otherwise, the Unit Prices shown in the Contractor’s Proposal include the cost of all labor, materials, supplies, equipment, tools, forms, services, utilities, royalties, fees, taxes, profit, overhead, and any other thing or expense, whether temporary or permanent, necessary to complete the Project in accordance with the Contract Documents. Items not shown on the Contract Documents that are necessary to construct the Project will be considered a part of the Project whether specified or not and no separate payment will be made for these items.

3.2.2 Determination of Amounts and Quantities – The Project Engineer, or Project Manager, or his or her designee shall verify determinations of amounts and quantities of Work performed. The method of measurement of pay items subject to Unit Prices will be as specified in the Special Conditions.

3.2.3 Monthly Estimates & Progress Payments

a) Before Work commences, Owner and Contractor shall designate a day of the month by which

Invoices for Payment shall be due. On or before such day of each month after the Construction Work has commenced (but not earlier than the first day of such month), Owner shall submit to Contractor a “Periodic Estimate for Partial Payment” based on the Schedule of Values, and such other materials and information as may be required by the Agreement. No “Periodic Estimate for Partial Payment” except the Application for Final Payment shall be made for an amount less than $1,000.00.

b) The Contractor shall submit signed estimates for progress payments on a monthly basis based on “Periodic Estimate for Partial Payment” for all Work completed to date. Estimates shall be prepared by the Owner no later than ten (10) days after the end of the month for Work subject to the application. Estimates shall be produced in a format reflecting the line items for which payment is requested according to the Unit Price Form in the Proposal and any applicable Change Order, shall be dated as of the actual date of submittal (or revised submittal, as applicable), and shall reflect the Work completed and the date to which Work has been completed. The Contractor will provide support documentation for all estimates, as requested.

c) Each Periodic Estimate for Partial Payment shall constitute a representation and warranty of Contractor (whether or not specifically stated) that Contractor is not in default hereunder, the amounts requested in the Periodic Estimate for Partial Payment are due hereunder, after payment of the amounts requested in the Periodic Estimate for Partial Payment, the amount remaining to be paid under the Contract is sufficient to pay for the balance of the Work, the Work performed to date is in accordance with that contemplated by the Milestone Schedule (or specifying the portions thereof that are not), Contractor has no claims hereunder and has no request for changes in the Milestone Schedule or the Contract Sum not provided for in the Periodic Estimate for Partial Payment. Each Periodic Estimate for Partial Payment shall further constitute the representation and warranty of Contractor (whether or not specifically stated) that the percentage of the Work represented to have been done in each category provided on the Schedule of Values has, in fact, been completed as of the last day of the period for which such Periodic Estimate for Partial Payment has been submitted. The period covered by a Periodic Estimate for Partial Payment shall end not earlier than ten (10) days before the due date for the Periodic Estimate for Partial Payment, unless Contractor and Owner agree otherwise in writing.

d) Each Periodic Estimate for Partial Payment shall set forth the status of all Proposed Changes, Change Directives, and Change Orders.

e) Contractor shall promptly submit such additional information and documents as Owner or Project Professionals may reasonably request in support of the Periodic Estimate for Partial Payment.

f) The signature on each application is a representation by the Contractor to the Owner that the Work has progressed to the point indicated, that the Work covered by the application is in accordance with the Contract Documents, that the money received as a result of the application will be used to discharge the Contractor’s obligations under the Contract, and that the Contractor is entitled to payment in the amount requested.

g) By signing a Periodic Estimate for Partial Payment, the Contractor warrants that: (i) the title to the Work covered by the estimate of Work completed will pass to the Owner by incorporation into the completed Work; (ii) the Work covered by previous estimates of Work completed is free and clear of liens, claims, security interests or encumbrances, except for any interest created by retainage; and (iii) no Work covered by the estimate of Work completed is subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person or entity.

h) The Contractor shall provide notice and reason, to the subcontractor or supplier and the Owner, why the subcontractor or supplier is not being paid. The Contractor shall not include in its Periodic Estimate for Partial Payment any billing for defective Work or for work performed by Subcontractors or Suppliers if it does not intend to pay the Subcontractors or Suppliers for such work.

i) Applications may include the value of acceptable materials required in the construction which have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions have been made for preservation and storage, providing the Contractor submits with its monthly estimate paid invoices in duplicate for the material for which payment is being requested. Material paid for by the Owner becomes the property of the Owner and, in the event of the default on the part of the Contractor, the Owner may use or cause to be used such materials in construction of the Work provided for in the Contract.

j) The authorized Owner representative(s) must approve the applications and estimates before progress payments will be made. The Owner will make payments within thirty (30) days after the receipt of a signed monthly estimate in proper form containing all required and requested information. Progress payments are payments on accounts and shall not be construed as acceptance by the Owner of any part of the Work.

k) All progress payments, except for the Final Payment, shall be subject to correction on subsequent applications after the discovery of any error. Approval of an application for payment of Work completed or actual payment by the Owner shall not foreclose the right of the Owner to examine the books and records of the Contractor to determine the correctness and accuracy of any item.

l) The Contractor shall make partial payments of the amount due and payable to each of its Subcontractors and Suppliers in the same manner as the Owner is required to pay the Contractor under this article. This provision shall not create any privity of contract between the Owner and any Subcontractor or Supplier, or make any Subcontractor or Supplier a third-party beneficiary of this Contract.

3.2.4 Retainage & Withheld Amounts

a) The Owner will retain five percent (5%) of the total amount earned, including Change Orders, as indicated in each approved application until Final Payment. Securities are not acceptable to the Owner in lieu of retainage.

b) If the Owner finds that satisfactory progress is being made in all phases of the Contract and work is more than 80% complete, it may, upon written request by the Contractor, authorize payment from the withheld percentage. Before such payment is made, the Owner shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any Surety furnishing the Payment Bond or Performance Bond.

c) The Owner may withhold, in addition to retained percentages from Contractor payments, such an amount or amounts from any progress payment or Final Payment as may be necessary to cover:

• Claims for labor or materials furnished the Contractor or any Subcontractor or reasonable evidence indicating probable filing of such claims;

• Failure of Contractor to carry out the Work in accordance with the Contract Documents

• Failure of the Contractor to make proper payment to Subcontractors or Suppliers;

• A reasonable doubt that the Contract can be completed for the balance then unpaid;

• Evidence of damage to another contractor, utility, or private property;

• Claims filed in connection with the Work or reasonable evidence indicating probable filing of claims.

• Uncorrected defective Work or guarantees that have not been met;

• Failure of the Contractor to submit cost breakdowns, schedules, reports and other information required under the Contract;

• Persistent failure to carry out the Work according to the Contract;

• Failure to keep a superintendent on the Site during Construction Work.

• Reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;

• Any tax delinquency, unpaid fee, or other unpaid financial obligation of the Contractor owed to the Owner;

• Any request that the Owner pay additional compensation to another contractor as a result of delays in the performance of that contractor’s work caused by the Contractor’s acts or omissions; and

• Any other amounts that the Owner is authorized to withhold under the Contract Documents.

If the reason for withholding is removed, the Owner will make payment of the withheld sums with the next regular progress payment unless another basis for withholding exists

d) Execution of the Contract by the Contractor shall constitute a waiver by the Contractor to claim any right of payment of interest upon any funds retained or withheld by the Owner pursuant to these General Conditions or C.R.S. § 38-26-107.

3.2.5 Substantial Completion

a) When the Contractor considers the entire work ready for its intended use, the Contractor shall notify the Project Engineer, or Project Manager, in writing that the entire Work is substantially complete, except for minor items specifically listed by Contractor as incomplete (the Contractor’s punch list), and request that the Project Engineer, or Project Manager, issue a Notice of Substantial Completion.

b) Within seven (7) days after the receipt of such notice, the Contractor, Engineer, or Project Manager and any other appropriate Owner representatives shall inspect the Work to determine the status of completion and the Contractor’s punch list.

• If the Project Engineer, or Project Manager, does not consider the Work substantially complete, the inspection will cease and the Project Engineer, or Project Manager, will notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion and the Contractor will proceed with the Work. All costs associated with such premature inspection, including any compensation for additional design services and the Owner’s additional costs, shall be deducted from any payment due to the Contractor.

• If the Project Engineer, or Project Manager, considers the Work substantially complete, the Project Engineer, or Project Manager, will prepare and deliver to the contractor a Notice of Substantial Completion. The Project Engineer, or Project Manager, shall attach to the notice a punch list of items to be completed or corrected before Final Acceptance.

Failure to include any items on the punch list shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents.

3.2.6 Right of Early Occupancy or Use

a) The Owner shall have the right to take early possession of and to use any completed or partially completed portions of the Work, even if Substantial Completion of the Work has not occurred and even if the Work has not been fully accepted. Such possession and early occupancy shall not constitute Substantial Completion of such portions of the Work nor affect the Owner’s right to assess liquidated damages.

b) If the Owner elects to take possession of and to use any completed or partially completed portions of the Work prior to Substantial Completion, an inspection shall be made by the Contractor and the Project Engineer, or Project Manager. Based upon such inspection, the Project Engineer, or Project Manager, will attempt to list all incomplete Work items observed, and shall provide the Contractor with such list. However, the absence of an item from the list shall not relieve the Contractor of responsibility to perform all of the Work. Any and all areas so occupied will be subject to a final inspection prior to Final Acceptance and the issuance of Certificate of Occupancy, if required.

c) At the time of such inspection, the Parties shall also negotiate the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. These negotiations are subject to the final approval of the Owner.

d) If the Contractor believes there will be an additional cost or delay associated with completion of the Work while the Owner occupies the Work in whole or in part under this section, the Contractor shall advise the Project Engineer, or Project Manager, by Contractor Change Request of all such costs and delays at or before the time of such inspection. If the Contractor fails or refuses to furnish such cost or delay information, or fails or refuses to comply with the Contractor Change Request procedure, the Contractor shall be deemed to have waived any and all rights to assert any claim for such additional cost or delay.

3.2.7 Final Acceptance

a) When the Work specified in the Contract (including all punch list items) is completed and the final cleanup has been performed, the Contractor shall notify the Project Engineer, or Project Manager, that all Work under the Contract has been completed and the Project Engineer, or Project Manager, shall, within seven…