HomeMy WebLinkAboutFRONT RANGE VILLAGE - Filed DA-DEVELOPMENT AGREEMENT - 2009-01-22DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement"), is made and entered into this
day of f EBPA4,f 2007, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Front Range
Retail Company, LLC, a Delaware limited liability company, hereinafter referred to as the
"Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the County of
Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or
"Development") and legally described as follows, to wit:
Front Range Village, located in Section 32, Township 7 North,
Range 68 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property into a retail shopping center
(the "Development") and has submitted to the City all plats, plans (including utility plans),
reports and other documents pertaining to the on -site portion of the Property, (excluding
documents pertaining to certain improvements to Harmony Road, Ziegler Road and the
Horsetooth Road -Ziegler Road intersection ["Off -Site Improvements"] that are adjacent to, and
off -Site of the Property, and which have been submitted to the City for review and approval)
required for the approval of a final plan according to the City's development application
submittal requirements master list (the "Final Development Plan Documents"), copies of which
are on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property will
require increased municipal services from the City in order to serve such area and will further
require the installation of certain improvements primarily of benefit to the lands to be developed
and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents submitted by
the Developer subject to City approval of the Off -Site Improvements, and certain requirements
and conditions, which involve the installation of and construction of utilities and other municipal
improvements in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it
is agreed as follows:
I. General Conditions
A.
The terms
of this Agreement shall
govern all development activities of the
Developer
pertaining to
the Property. For the purposes of this Agreement, "development
activities"
shall include,
but not be limited to, the
following: (1) the actual construction of
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4. It is understood and agreed that future development(s) may connect the
public street system in the English Ranch neighborhood with this Development, and that such
connectivity has the potential to allow cut -through traffic and other perceived negative impacts
to the English Ranch neighborhood. In recognition of this potential and in response to comments
at public meetings preceding the Development's PDP approval, City staff and representatives of
the Developer considered a variety of traffic calming options for the neighborhood that can be
implemented in the future when the street connections are completed. In satisfying the
Developer's obligation to submit a "Neighborhood Traffic Calming Plan" as required in
Condition #2 of the Planning and Zoning Board's approval of the Development, the Developer
shall provide to the City a guarantee in the form of a bond or letter of credit in the amount of
$75,181 prior to the issuance of any building permits. Said bond or letter of credit shall have a
term of 7.5 years. The City shall have the right to call the bond or letter of credit only in the
event any future development to the north of the Property receives final approval with a public
street system that provides vehicular connectivity from English Ranch to the Property. The
Developer's posting and City acceptance of the guarantee releases the Developer from all
obligations pertaining to the design and implementation of traffic calming measures in the
English Ranch Neighborhood.
5. Notwithstanding any provision herein to the contrary, the Developer shall
be responsible for all costs for the initial installation of traffic signing and striping related to the
Developer's internal street operations as identified in the Final Development Plan Documents.
The Developer is responsible for all costs for the initial installation of traffic signing and striping
for this Development related to the Development's on -site local street operations.
6. The landscaping located in the medians within Corbett Drive internal to
this Development shall not be maintained by the City and it is agreed that all installation,
maintenance, operation, repair and reconstruction obligations relating to the landscaping and the
irrigation of said landscaping shall be those of the Developer or the Developer's successor(s) in
interest. To the extent that said landscaping and irrigation is located on public property, all
installation, maintenance, operation, repair and reconstruction shall be conducted in such a
manner that such public property shall not be damaged, or if damaged, shall be repaired in
accordance with then existing City standards.
7. The landscaping located in the medians within Corbett Drive adjacent to
this Development shall be "drip" and/or "micro -spray" irrigated. Standard "spray" type irrigation
is not permitted.
8. The Developer hereby indemnifies and holds the City harmless from any
damage caused to the roadway (concrete, asphalt, curb and gutter) when such damage is caused,
directly or indirectly, by the acts or omissions of the Developer in irrigating the landscaping
within the medians on Corbett Drive within the Development. Notwithstanding any provision in
this Agreement to the contrary, this indemnity may be assigned only to a bonafide business
association which has lawfully assumed the irrigation obligation from the Developer and only if
such assignment is in writing and duly and lawfully executed by such assignee and approved in
writing by the City.
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9. The City shall assume all maintenance and repair responsibilities (upon
the completion of the Developer's maintenance and repair guarantee period) for the enhanced
crosswalks located on each of the private drives intersecting the roundabout in the Development
as shown on the Final Development Plan Documents. However, the Developer is responsible for
the ongoing maintenance and repair of all other enhanced crosswalks across driveway accesses
within the public right-of-way. At the time of execution of this Agreement, a permit is not
required for the maintenance and repair of said enhanced crosswalks, however, if at some future
time a permit is required by the City for this work in the right-of-way, the Developer shall obtain
said permit prior to commencement of work.
10. Corbett Drive, is the only public street being constructed by the Developer
and shall be the only roadway internal to the Development for which the City shall assume all
maintenance and repair responsibilities upon completion of the Developer's maintenance and
repair guarantee period. All other roadways or drives, internal to the Development including
Council Tree Drive (a private drive connecting Corbett Drive to Ziegler Road) shall be owned
and maintained by the Developer.
11. Corbett Drive does not extend to the periphery of the Development and is
terminated as a cul-de-sac approximately 130 feet short from the northern platted boundary of
Tract A, as shown on the Final Development Plan Documents. Both parties agree that it would
be beneficial if construction of this road improvement is delayed until such time as future
development to the north of the Development needs the construction of such road to connect to
such property or properties. In satisfaction of Section 24-95 of the City Code, which sets forth
the Developer's obligation to construct such road, the Developer shall pay the City for the future
cost of said improvement. The amount of said payment shall be equal to the estimated cost to
construct said improvement (including the extension of sidewalk along the west side of Corbett
Drive and the removal of the cul-de-sac bulb) which estimate shall be prepared by the Developer
and approved by the City. This payment shall be in full satisfaction of the Developer's
obligation for such road. In the event the Developer constructs the improvements extending
Corbett Drive to the periphery of the Development and such improvement is completed by the
Developer and accepted by the City, the Developer shall be entitled to a prompt reimbursement
equal to the principal paid to the City for that portion or, in the event payment for such street
portion has not then been made, the Developer shall be relieved of its obligation to make
payment for such street portion.
12. Prior to the issuance of any building permits, the Developer agrees to
provide payment to the City for the future cost of extending the sidewalk along the east side of
Corbett Drive (from the northernmost drive aisle on the east side of Corbett Drive to the northern
boundary of the Property, which is approximately 120 feet) as shown on the Final Development
Plan Documents. The amount of said payment shall be equal to the estimated cost to construct
said sidewalk which estimate shall be prepared by the Developer and approved by the City. This
payment shall be in full satisfaction of the Developer's obligation for construction of said
sidewalk. In the event the Developer constructs the sidewalk extending to the periphery of the
Development and such improvement is completed by the Developer and accepted by the City,
the Developer shall be entitled to a prompt reimbursement equal to the principal paid to the City
for that portion or, in the event payment for such sidewalk has not then been made, the
Developer shall be relieved of its obligation to make payment for the sidewalk.
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13. Following completion of all Public Improvements, the Developer shall
continue to have responsibility for maintenance and repair of said improvements in accordance
with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City.
E. Natural Resources
1. Fueling facilities shall be located at least one hundred feet (100) from any
natural body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks
and fueling area must be, set in a containment area that will not allow a fuel spill to directly flow,
seep, run off, or be washed into a body of water, wetland or drainage way.
2. Prior to the commencement of any development activities within the
Development, the Developer shall relocate or eradicate any prairie dogs inhabiting any portions
of the site using City -approved methods as set forth in Chapter 4 of the City Code. If prairie
dogs are present, fumigation is best done between late April and early June and relocation shall
occur prior to March 1 or after May 31 of any given year.
F. Soil Amendment
1. All landscaping within the Development, in accordance with the Final
Development Plan Documents, which does not require a building permit, shall include loosening
and amending of soils by the Developer in accordance with Section 3.8.21 of the Land Use Code
prior to the issuance of any CO for the Development. Completion of soil amendments shall
include certification by the Developer that the work has been completed. This certification shall
be submitted to the City at least two (2) weeks prior to the date of any CO in this Development.
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself and its
successor(s) in interest who are owners of the Developer Parcel) hereby agrees to indemnify and
hold harmless the City against any damages or injuries sustained in the Developer Parcel as a
result of ground water seepage or flooding, structural damage, or other damage unless such
damages or injuries are proximately caused by the City's negligent operation or maintenance of
its storm drainage facilities in the Development. However, nothing herein shall be deemed a
waiver by the City of its immunities, defenses, and limitations to liability under the Colorado
Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law.
2. If the Development includes a subdrain system, any such subdrain system,
whether located within private property or within public property such as street rights -of -way or
utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by
the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction
obligations shall be those of the Developer or the Developer's successor(s) in interest who are
owners of the Developer Parcel. Such subdrain system is likely to be located both upon private
and public property and, to the extent that it is located on public property, all maintenance,
operation, repair or reconstruction shall be conducted in such a manner that such public property
shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in
accordance with then existing City standards. The City shall not be responsible for, and the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
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harmless the City against any damages or injuries sustained in the Development as the result of
groundwater seepage or flooding, structural damage or other damage resulting from failure of
any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest who are owners of the Developer Parcel,
hereby agrees to indemnify and hold harmless the City against any damages or injuries to water
rights caused, directly or indirectly by the construction, establishment, maintenance or operation
of the Development.
4. The City agrees to give notice to the Developer of any claim made against
it to which the foregoing indemnities and hold harmless agreements by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided the Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to the
Developer within ninety (90) days after the City first receives notice of such claim under the
Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and
hold harmless agreements by the Developer to not apply to such claim and such failure shall
constitute a release of the foregoing indemnities and hold harmless agreements as to such claim.
H. Development Construction Permit
1. The City agrees to issue a Development Construction Permit to the
Developer for the Development, excluding the Off -Site Improvements, upon the Developer's
fulfilment of the obligations' set forth in 2.6.3 of the Land Use Code pertaining to the on -site
portion of the Development. No CO for any building on the Development Parcel shall be issued
until both on -site and Off -Site Improvements required by the Final Development Plan
Documents have been completed and accepted by the City pursuant to Section 3.3.2(E) of the
Land Use Code.
I. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build -out
of this Development, the Developer shall provide and maintain at all times motor vehicle and
pedestrian access to said building or buildings within the Development in order to handle any
emergency vehicles or equipment, and the access shall be kept open during all phases of
construction. Such access shall be constructed to an unobstructed width of at least 20 feet with
4 inches of aggregate base course material compacted according to City standards and if an exit
is not provided at the end of the access, an 80 foot diameter turnaround at the building end of
said access. Prior to the construction of the access, a minimum of three sets of plans for the
access shall be submitted to and approved by the Poudre Fire Authority and City Engineer for
review and approval. If such access is at any time deemed inadequate by the Poudre Fire
Authority or City Engineer, the access shall be promptly brought into compliance and until such
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time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority
may issue a stop work order for all or part of the Development.
J. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit, upon the installation of
drainage and erosion control facilities, and an emergency access (fire lanes) for the Phase in
which the permit is being requested.
K. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee
("Maintenance Guarantee") and a five-year repair guarantee ("Repair Guarantee") covering all
errors or omissions in the design and/or construction of the public improvements required for this
Development, which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City as more specifically
described in Exhibit "C." Security for the Maintenance Guarantee and the Repair Guarantee
shall be in the form of a letter of credit deposited with the City. Notwithstanding the provisions
of Paragraphs III.H and I of this Agreement to the contrary, the obligations of the Developer
pursuant to this paragraph and Exhibit "C" may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
L. Public Library
1. Developer agrees to provide to the City by deed: (i) space within the
Development to be used by the City as a public library, consisting of a building area of
approximately 16,000 square feet on the second floor of the building labeled "Library" on the
attached site plan; (ii) the minimum ground floor space needed (approximately 1,300 square feet)
to provide a reasonable and adequate area for materials return bins, an entrance lobby, and
vertical transportation, including a staircase, a public elevator, and a freight elevator; and (iii) air
rights over the building (collectively, the "Library Space").
2. The Library Space shall be subject to a common ownership regime
pursuant to the Colorado Common Ownership Interest Act (CCIOA) established by Developer
prior to the conveyance of the Library Space.
3. The City will work with its own architect, at its expense, to develop the
conceptual design for the interior of the Library Space. The City will then give the completed
conceptual design to Developer to use in completing the final design and construction documents
for the building containing the Library Space. Developer shall be responsible for the design and
construction of the "shell" of the building containing the Library Space (the "Building Shell").
That portion of the Building Shell on the ground and second floors that contains the Library
Space is hereafter referred to as "The Library Shell". Developer shall be responsible for the
design and construction of the Library Shell at City expense, as described below. The City shall
be responsible for the design and construction of the interior finish of the Library Space at its
own expense, including expenses incurred by Developer's architect in coordinating design of the
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Library Space with the rest of the Building Shell. Developer agrees to grant the City, by separate
agreement, a license to enter on Developer's property sufficient to allow the City and its
contractor(s) access for the purpose of completing construction of the Library Space. Developer
acknowledges that the City's goal is for the Library Space to be US Green Building Council
(USGBC) certified as a "Gold LEED commercial interior" and for the Building Shell and core to
be LEED certified, and Developer agrees to follow the LEED process and undertake all
commercially reasonable efforts through the design process to achieve that goal, at City's
expense. Developer further agrees to review the City's Design Standards and apply such
Standards to the design and construction of the Library Shell. The City agrees that Developer
may install 18" square chases throughout the Library Space as needed, in locations agreed to by
the parties. Developer agrees to use commercially reasonable efforts to minimize the number of
chases needed.
4. Developer shall submit to the City for review and approval the design
plans, detailed cost estimate and proposed scope of work for the Building Shell prior to
beginning construction on such building. The cost estimate shall break out and itemize those
costs directly attributable to construction of the Library Shell, as well as incremental cost
increases for building structure and foundations compared to a similar building within the
Development. Following is a list of costs for which the City is responsible, either as a direct City
expense, or as a reimbursement to the Developer, as noted.
a. Design and construction of the second floor of the Building Shell
(reimbursement to Developer).
b. Final design and construction of the interior of the Library Space on both
the first and second floors (direct City expense).
C. Construction costs related to first floor space solely occupied by the
Library (reimbursement to Developer).
d. Incremental cost increases necessary for the foundation of the building as
compared to another comparable two-story building on Council Tree
Drive (reimbursement to Developer).
e. Incremental costs associated with achieving Gold level LEED certification
for the Library Space, over and above the base level certification which
Developer intends to pursue regardless of the Library (reimbursement to
Developer).
f. Cost of routing fiber optic cable from the building to and throughout the
Library Space (direct City expense).
Developer shall not commence construction of the Building Shell until the City has given its
approval of the plans and cost estimate for the Library Shell, which shall not be unreasonably
withheld. Further, the City agrees that all plans and specifications submitted for its review shall
be reviewed within 10 days. The City's failure to provide a response within 10 days may be
deemed approval by the Developer. The City will reimburse the Developer's documented costs
incurred in the design and construction of the Library Shell on a monthly, pay-as-you-go basis,
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upon receipt of sufficient and appropriate documentation of such costs. This reimbursement
obligation is contingent on appropriation of sufficient funds therefor by the Fort Collins City
Council ("Council"), in its discretion, and on Council approval of an exception to the City's
competitive purchasing processes. The City's form General Conditions of the Construction
Contract and Supplemental Conditions, attached hereto as Exhibit "D" and incorporated herein
by reference (the "General Conditions"), shall govern construction of the Building Shell, with
"Owner" defined to mean the City, and "Contractor" defined to mean the Developer. Nothing
contained in the General Conditions shall be construed as applying to any of Developer's other
obligations under this Development Agreement besides construction of the Building Shell, and
the General Conditions have no relationship to the time and manner in which Developer's other
obligations under the Development Agreement may be enforced. The Developer will, at its
expense, up to $50,000, provide installation of fiber optic service up to the Building Shell. The
City, at its expense, will route the fiber optic cable to and throughout the Library Space as part of
the tenant finish.
5. The use of the land underlying the Library Space and the other
infrastructure of the Development such as offsite infrastructure improvements and onfite
improvements including but not limited to parking areas, building pads, access roads, sidewalks,
and utilities shall be at no charge to the City except for the CAM charges described in
subparagraph 13.
6. The City shall also have the right to install a drive -up materials return,
which may or may not be mechanized, at a location agreed upon by the City and Developer in an
adjacent parking lot. Such right shall be conveyed to the City through a separate easement or
license agreement once the location has been agreed upon. The City shall also have the right to
use a greenbelt space designated by Developer for outdoor library programs without charge,
subject to the Developer's scheduling requirements, and such other reasonable restrictions and
regulations as Developer may impose on all occupants of the Development. The parties shall
negotiate and enter into a separate purchase and sale agreement governing the transfer of the real
property interests described in this subsection.
7. The City may assign and delegate its rights and obligations under this
section ILL. of the Agreement to the Fort Collins Regional Library District (the "District"), and
the City may grant the District an interest in the Library Space through lease, deed, or other
appropriate means, all without further consent of Developer.
8. The gift of the use of the land underlying the Library Space and the other
infrastructure of the Development is conditioned on the use of the Library Space for library
purposes, which may include related municipal and public uses consistent with the use of other
public library facilities. Should the City no longer wish to use the Library Space for library
purposes, or should the City abandon the Library Space by leaving the entire space unused for a
period of time longer than six months, Developer may, in its discretion, allow the City to convert
the Library Space to another agreed upon public use. Upon notification by the City of a
proposed different use, Developer may approve such use, or elect to purchase the Library Space
according to the process described in subparagraph 9, below.
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9. Should the Developer not wish the Library Space to remain unused or be
converted to another use, the Developer may elect to purchase the property for fair market value.
The Developer and the City shall each have the right to obtain an independent appraisal, at their
own expense, from the appraiser of their choice. If the Developer and City cannot agree on a
price based on these appraisals, the two appraisers shall select a third appraiser, whose
determination as to price shall be final. The fair market value of the Library Space shall be
based on the use of the Library Space for office, retail or commercial uses appropriate and
consistent with the use of other, similar spaces within the Development minus the cost of
conversion of the library space to such use. The City shall not be deemed to have abandoned the
Library Space if the City closes the library due to severe weather, an act of God, acts or
regulations of public authorities or labor unions, labor difficulties, strike, civil tumult, war,
epidemic, fire, interruption of transportation or any other proven cause beyond the parties'
control
10. The City agrees to execute whatever documentation is necessary to allow
the Developer to claim this gift as a charitable deduction under applicable state and federal law,
but the City shall not be obliged to verify the value of the donation.
11. The City agrees that parking for the library will be shared with the
remainder of the Development as currently designed and that Developer will not be required to
provide additional parking for the library.
12. Developer shall have the Library Shell completed and ready for the City to
begin construction of the interior of the Library Space no less than six (6) months prior to the
date the Developer intends to open the Development to the public, provided the City has met all
its deadlines as set forth in subparagraph 4 herein. The conveyance by the Developer to the City
of the deed described in subparagraph 1, above, and final payment by the City to Developer of
any remaining amounts as described in subparagraph 4 shall occur at a closing to be held at a
date, time and location agreed upon by the parties, following completion of the Library Space.
The City agrees to begin operating a library in the Library Space as soon as is practicable
following such closing and delivery of the completed Library Space to the City.
13. Beginning when the Developer opens the Development to the public, the
City shall pay to the Developer the pro rata amount attributable to the Library Space (based upon
the library square footage as it compares to the total square footage of the Development) of any
common area maintenance costs for any area owned by the City and used for library purposes.
The City contribution toward common area costs will not exceed $2.50/square foot annually for
years one through three. Following the third year of operation, this cap on common area costs
will increase by three percent annually. In no event will the City be responsible for more than its
pro rata share of common area maintenance costs. The City will cooperate with the Developer to
try to obtain from the Larimer County Assessor a reduction in taxes assessed against the
Developer Parcel by the amount attributable to the Library Space. To the extent such fees are
not waived by the City, the City will also pay or offset against the amount owed by Developer
the City's pro-rata share of water tap fees and sewer connection fees. The City will have no
obligation because of the ownership of the library to pay any other component of the Developer's
development costs.
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14. Developer shall take reasonable steps to minimize disruptions to the
Library Space, its mechanical systems, and library customers and staff by tenant spaces on the
floor below the Library Space being unfinished, under construction or unoccupied.
15. The Library Space is subject to any and all "exclusives" contained in the
leases with other tenants in the Development. Specifically, the City agrees the Library Space
will not be used for a coffee shop, coffee kiosk, or other food and/or beverage enterprise. If,
however, a retail coffee shop is not located within 300 feet of the Library Space, the City or its
concessionaire may operate a library coffee shop which is intended for the use of library patrons
and utilizes less than 200 square feet of the Library Space. In the event Developer subsequently
enters into any lease for the operation of a coffee shop within the Development and within three
hundred feet (300') of the Library Space, the City may continue to operate or contract for the
operation of a library coffee shop. The above notwithstanding, the parties agree that no
reasonable library uses or activities that are conducted in other libraries in Fort Collins or the
surrounding region shall be prohibited in the Library Space.
16. The parties agree that it is not their intent that any part of the Property be
considered a public forum for purposes of the First Amendment to the United States Constitution
solely by virtue of the City or the District's ownership or use of the Library Space or by virtue of
the permitted use of any portion of the Property. The Parties acknowledge, however, that the
portion of the Property being used as a library may be a public forum or "limited public forum"
for purposes of the First Amendment. Developer understands and agrees that the City shall
allow public use of the Library Space on the same basis as other City library facilities, and that
such use will be managed by the City in its sole discretion in accordance with federal, state and
local laws, the City's Administrative Policies and Procedures and other library policies as they
may now exist or be created or modified in the future.
17. Following completion of the building containing the Library Space, the
City shall be responsible for maintenance of the Library Space as defined in the instrument of
conveyance to the City, and the drive -up materials return and any systems associated therewith.
All other building maintenance shall be the responsibility of the Developer, at Developer's sole
expense (except for common area maintenance charges as described in subparagraph 13, above)
or as set forth in the purchase and sale agreement to be negotiated between the City and
Developer.
M. Pedestrian Trail
1. Developer agrees to construct an 8 foot temporary bicycle and
pedestrian trail connecting the shopping center to the English Ranch neighborhood. This trail
may be re-routed or modified by Developer or its successor as needed to facilitate future
development plans for the land located north of the shopping center, provided any rerouting or
modification to said trail is incorporated into a design reviewed and approved by the City. No
CO for the Developer shall be issued until said trail is fully constructed and accepted by the
City, provided that the City uses whatever means necessary to ensure that the Developer can
acquire the easements prior to March 1, 2008, so they can complete the pedestrian trail,
including that portion beyond the property line of this Project prior to May 16, 2008. Upon
acceptance by the City, the City expects the Developer's responsibility under the Maintenance
Guarantee to include snow removal, mowing and sweeping of the trail area. To the extent
permitted by law and without waiving provisions of the Colorado Governmental Immunity Act,
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the City agrees to indemnify the Developer for any damages or injuries arising out of the
construction, maintenance, or operation of the trail following acceptance by the City.
2. The design of said temporary bicycle and pedestrian trail as currently
shown on the Final Development Plan Documents is shown to end at the northern property
boundary owned by the Developer and the southern boundary of the English Ranch 3rd Filing.
The City will facilitate meetings with the English Ranch Home Owners Association to secure an
easement for the connection into English Ranch via the Kingsley Court cul-de-sac. The
Developer shall be responsible for all costs associated with the negotiation and acquisition of the
easement with the ROW funds as previously identified in Paragraph I(N)2 of this Agreement.
The construction costs for the trail into English Ranch shall be the responsibility of the
Developer and shall be completed prior to the issuance of any certificate of occupancy. Subject
to City Council approval, the City will use its power of eminent domain if necessary to acquire
the easement to construct said bicycle and pedestrian trail.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate barricades,
warning signs and similar safety devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance
with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices
until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer:
(i) shall, at all times, keep the public right-of-way free from accumulation of waste material,
rubbish, or building materials caused by the Developer's operation, or the activities of individual
builders and/or subcontractors of the Development; (ii) shall remove such rubbish as often as
necessary, but no less than daily; and (iii) upon the completion of the work, shall remove all such
waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from
the public right-of-way. The Developer further agrees to maintain the finished street surfaces
within the Development so that they are free from dirt caused by the Developer's operation or as
a result of building activity. Any excessive accumulation of dirt and/or construction materials
shall be considered sufficient cause for the City to withhold building permits and/or COs until
the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to
adequately clean such streets within two (2) days after receipt of written notice, the City may
have the streets cleaned at the Developer's expense and the Developer shall be responsible for
prompt payment of all such costs. The Developer also agrees to require all contractors within the
Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish,
and building materials.
C. The Developer hereby agrees that it will require its contractors and subcontractors
to cooperate with the City's construction inspectors by ceasing operations when winds are of
sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the
public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
9180\311018975.4 19
9180\311034460.1
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance
of the Property caused by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities,
streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the Final
Development Plan Documents and in full compliance with the standards and specifications of the
City on file in the office of the City Engineer at the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time limitation from the date of approval of the
site specific development plan. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of approval of the
site specific development plan, the Developer shall resubmit the utility plans to the City Engineer
for reexamination. The City may then require the Developer to comply with the approved
standards and specifications of the City on file in the office of the City Engineer at the time of
the resubmittal.
C. Building permits for the construction of any structure within the Development
shall be issued by the City following issuance of a Development Construction Permit and
completion of on -site preliminary site work that satisfies the following criteria:
1. Adequate all-weather access for emergency vehicles (ambulances, police
vehicles and fire trucks) must be constructed and maintained to and within the job site at all
times, and approved by Poudre Fire Authority.
2. Water lines and fire hydrants must be installed and in service before
combustible materials can be brought to the job site.
3. Adequate drainage and erosion control measures, as determined by the
City, must be installed and maintained so that the Development does not damage adjacent and
downstream property owners, or the public.
All infrastructure (utilities and transportation improvements) that is necessary to support the
Development within the Property must be completed and accepted before a Certificate of
Occupancy ("CO") is issued for the Development.
D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or
streets described on Exhibit "A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or
access to other areas of the City, those facilities shall be shown on the Final Development Plan
Documents and shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to install and
pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets.
curbs, gutters, sidewalks, bikeways and other public improvements required under this
Agreement as shown on the Final Development Plan Documents.
9180\3\1018975.4 2
9180\3\1034460.1
r
obligations may be shown on the Final Development Plan Documents, or any documents
executed in the future that are required by the City for the approval of an amendment to a
development plan, and the City may withhold (or to the extent permitted by law, revoke) such
building permits and certificates of occupancy as it deems necessary to ensure performance in
accordance with the terms of this Agreement. The processing and "routing for approval" of the
various development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Agreement, the plat, or
the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The
Developer hereby waives any right to object to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the
Developer agrees to comply with all requirements of the same to the extent they are consistent
with this Agreement.
F. In the event the City waives any breach of this Agreement, no such waiver shall
be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are payable
after the current fiscal year are contingent upon funds for that purpose being annually
appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its
discretion.
H. This Agreement shall run with the Developer Parcel and shall be binding upon
and inure to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant to this
Agreement touch and concern the Developer Parcel regardless of whether such improvements
are located on the Property. Assignment of interest within the meaning of this paragraph shall
specifically include, but not be limited to, a conveyance or assignment of any portion of the
Developer's legal or equitable interest in the Property, as well as any assignment of the
Developer's rights to develop the Property under the terms and conditions of this Agreement.
Notwithstanding the foregoing, in no event shall any obligations of the Developer hereunder be
binding upon any person or entity receiving only a leasehold interest in the Developer Parcel
unless otherwise specifically set forth in a written agreement between such party and the
Developer.
1. In the event the Developer transfers title to the Developer Parcel and is thereby
divested of all equitable and legal interest in the Developer Parcel, the Developer shall be
released from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest. In such
event, the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element
hereof. In the event that either party shall fail to perform according to the terms of this
Agreement, such party may be declared in default. In the event that a party has been declared in
default hereof, such defaulting party shall be given written notice specifying such default and
shall be allowed a period of thirty (30) days within which to cure said default unless a shorter
9180\3%1018975.4 20
91800%1034460.1
time is necessary for public health and safety or specified by City Code. In the event the default
remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and
seek damages; (b) treat the Agreement as continuing and require specific performance or;
(c) avail itself of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party which
shall require the party not in default to commence legal or equitable action against said
defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -
defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing
herein shall be construed to prevent or interfere with the City's rights and remedies specified in
Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party or parties, and no
third party or parties shall have any right of action hereunder for any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that this
Agreement shall be governed by and its terms construed under the laws of the State of Colorado
and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other party
relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt
requested, addressed to such other party at their respective addresses as set forth below; and such
notice or other communication shall be deemed given when so hand -delivered or three (3) days
after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Front Range Retail Company, LLC
c/o Bayer Properties, Incorporated
Attention: General Counsel
2222 Arlington Avenue
Birmingham, AL 35205
With a copy to: Brownstein Hyatt & Farber, P.C.
Attention: Carolynne C. White
410 Seventeenth Street
Twenty Second Floor
Denver, CO 80202
918019\I018975A 21
91800\1034460.1
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or
assigns, wishes to change the person, entity or address to which notices under this Agreement are
to be sent as provided above, such party shall do so by giving the other parties to this Agreement
written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall
refer to any gender; and words in the singular shall include the plural and vice versa. This
Agreement shall be construed according to its fair meaning, and as if prepared by all parties
hereto, and shall be deemed to be and contain the entire understanding and agreement between
the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed
to be no other terms, conditions, promises, understandings, statements, representations,
expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the
parties hereto. Further, paragraph headings used herein are for convenience of reference and
shall in no way define, limit, or prescribe the scope or intent of any provision under this
Agreement.
P. Neither party shall be considered in Default of its obligations under this
Agreement in the event of enforced delay due to causes beyond its control and without its faults
or negligence, including, without limitation, acts of nature, acts of the public enemy, acts of
federal, state, or local government, acts of the other party, acts of third parties (including the
effect of any petitions for initiative or referendum), acts or orders of courts, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes or unusually server weather or
delays of subcontractors or materialmen due to such causes. In the event of the occurrence of
any such enforced delay, the time or times for performance of the obligations of the party
claiming delay shall be extended for a period of the enforced delay; provided, that the party
seeking the benefit of the provisions of this Section, shall notify the other party of the specific
delay in writing and claim the right to an extension for the period of the enforced delay.
THE CITY OF FORT COLLINS,
a Municipal Corporation n
ATTEST: City Manager
��11))
City Clerk
APPROVED AS TO CONTENT:
City Engineer
91800A1018975.4 22
91801311034460.1
APPROVED S 0 FORM:
Deputy City Attorney
DEVELOPER:
FRONT RANGE �� RETAIL COMPANY, LLC, a
Delaware lim>Feq liability company
IN
David A. Silverstel
Managing Member
91909\1018975.4 23
9180\3\1034460.1
EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb returns,
handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or
handicap ramp prior to the installation of electrical lines in an area that interferes with the
installation of the electrical line installation, the Developer shall be responsible for the cost of
removal and replacement of those items and any associated street repairs.
Schedule of water lines to be installed out of sequence.
Not Applicable.
Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable.
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
9180\3\1018975.4 A-1
91 80\3\1 034460.1
EXHIBIT "B"
Not Applicable
9180\3\1018975.4 B-1
91893\1034460.1
A
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the
date of completion and first acceptance by the City of the public improvements warranted
hereunder, the full and complete maintenance and repair of the public improvements constructed
for this Development. This warranty and guarantee is made in accordance with the City of Fort
Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This
guarantee applies to the streets and all other appurtenant structures and amenities lying within the
rights -of -way, easements and other public properties, including, without limitation, all curbing,
sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping.
Any maintenance and/or repair required on utilities shall be coordinated with the owning utility
company or city department.
The Developer shall maintain said public improvements in a manner that will assure compliance
on a consistent basis with all construction standards, safety requirements and environmental
protection requirements of the City. The Developer shall also correct and repair, or cause to be
corrected and repaired, all damages to said public improvements resulting from development -
related or building -related activities. In the event the Developer fails to correct any damages
within thirty (30) days after written notice thereof, then said damages may be corrected by the
City and all costs and charges billed to and paid by the Developer. The City shall also have any
other remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination of said
period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year
period, commencing upon the date of completion and acceptance by the City of the public
improvements constructed for this Development, from any and all claims, damages, or demands
arising on account of the design and construction of public improvements of the Property shown
on the approved plans and documents for this Development; and the Owner furthermore commits
to make necessary repairs to said public improvements, to include, without limitation, the roads,
streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other public properties, resulting from failures caused by design
and/or construction defects. This agreement to hold the City harmless includes defects in
materials and workmanship, as well as defects caused by or consisting of settling trenches, fills
or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising engineering
techniques and due caution in the construction of cross drains, drives, structures or buildings, the
changing of courses of streams and rivers, flooding from natural creeks and rivers, and any other
matter whatsoever on private property. Any and all monetary liability occurring under this
paragraph shall be the liability of the Developer.
9180\311018915.4 C-1
9180\3\1034460.1
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair guarantee"
provisions set forth above may not be assigned or transferred to any other person or entity unless
the warranted improvements are completed by, and a letter of acceptance of the warranted
improvements is received from the City by, such other person or entity.
9180\311018975. 4C-2
91 SM 1034460.1
EXHIBIT "D"
SECTION 00700
GENERAL CONDITIONS
GENERAL CONDITIONS
OF THE
CONSTRUCTION CONTRACT
These GENERAL CONDITIONS have been developed by using the
STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION
CONTRACT prepared by the Engineers Joint Contract Documents
Committee, EJCDC No. 1910-8 (1990 Edition), as a base. Changes to
that document are shown by underlining text that has been added and
striking through text that has been deleted.
EJCDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
WITH CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit "D" Page 1 of 58
Article or Paragraph
Number & Title
DEFINITIONS
TABLE OF CONTENTS OF GENERAL CONDITIONS
Page Article or Paragraph Page
Number Number & Title Number
1.1
Addenda.............................................1
1.2
Agreement...........................................1
1.3
Application for Payment.......................1
1.4
Asbestos .................... .. ........................1
1.5
Bid .................... .................................!
1.6
Bidding Documents .............................1.
1.7
Bidding Requirements ................. I........
1.8
Bonds.................................................1
1.9
Change Order......................................I
1.10
Contract Documents ............................
�.
1.11
Contract Price......................................1
1.12
Contract Times....................................1
1.13
CONTRACTOR..................................I
1.14
defective.............................................1
1.15
Drawings............................................1
1.16
Effective Date of the Agreement ...........
1
1.17
ENGINEER........................................1
1.18
ENGINEER!s Consultant ......................1
1.19
Field Order.........................................1
1.20
General Requirements .........................2
1.21
Hazardous Waste.................................2
1.22.a
Laws and Regulations; Laws or
Regulations......................................2
1.22.b
Legal Holidays .....................................
1.23
Liens.................................................2
1.24
Milestone............................................2
1.25
Notice of Award .................................
2
1.26
Notice to Proceed.................................2
1.27
OWNER.............................................2
1.28
Partial Utilization ................................
1.29
PCBs............................................I.....7
1.30
Petroleum...........................................2
1.31
Project...........................................I....?
1.32.a
Radioactive Material ............................2
1.32.b
Regular Working Hours... 4...................2
1.33
Resident Project Representative............2
1.34
Samples.............................................2
1.35
Shop Drawings ....................................
1.36
Specifications.....................................2
1.37
Subcontractor.....................................2
1.38
Substantial Completion ........................
1.39
Supplementary Conditions ...................?
1.40
Supplier..........................................I...2
1.41
Underground Facilities ............ I ........
2-3
1.42
Unit Price Work..................................13
1.43
Work..................................................3
1.44
Work Change Directive ........................3
1.45
Written Amendment ...........................3
2. PRELIMINARY MATTERS ................................
3
2.1
Delivery of Bonds, ............................
3
2.2
Copies of Documents ........................3
2.3
Commencement of Contract
Times; Notice to Proceed, ..............
3
2.4
Starting the Work ...........................3
2.5-2.7
Before Starting Construction;
CONTRACTOR'S Responsibility
to Report; Preliminary Schedtles;
Delivery of Certificates of
Insurance ...................................
3-4
2.8
Preconstruction Conference .............
4
2.9
Initially Acceptable Schedules ...........
4
3. CONTRACT DOCUMENTS: INTENT,
AMENDING, REUSE..........................................4
3.1-3.2
Intent...................................I.........4
3.3
Reference to Standards and Speci-
fications of Technical Societies;
Reporting and Resolving Dis-
crepancies .................................
4-5
3.4
Intent of Certain Terms or
Adjectives .....................................
5
3.5
Amending Contract Documents .........
5
3.6
Supplementing Contract
Documents ...................................
5
3.7
Reuse of Documents .........................5
4. AVAILABILITY OF LANDS;
SUBSURFACE
AND PHYSICAL CONDITIONS;
REFERENCE POINTS................................I........5
4.1
Availability of Lands.....................5-6
4.2
Subsurface and Physical
Conditions ................... I................6
4.2.1
Reports and Drawings......................0
4.2.2
Limited Reliance by CONTRAC-
TOR Authorized; Technical
Data.............................................
4.2.3
Notice of Differing Subsurface
or Physical Conditions...................0
4.2.4
ENGINEER!s Review.......................0
4.2.5
Possible Contract Documents
Change.........................................6
4.2.6
Possible Price and Times
Adjustments................................6-7
4.3
Physical Conditions --Underground
Facilities .......................................
7
4.3.1
Shown or Indicated ..........................7
4.3.2
Not Shown or Indicated....................7
4A
Reference Points...............................7
EICDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit "D" Page 2 of 58
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water and
sewer) leading in and from the main to the individual lot line and all electrical lines.
G. The installation of all utilities shown on the Final Development Plan Documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such installations in
order to meet the requirements of the plans and/or specifications applicable to such installation.
In case of conflict, the Final Development Plan Documents shall supersede the standard
specifications, except that if the conflicts are a result of Federal or State mandated requirements,
then the Federal or State mandated requirements shall prevail.
H. Public easements shall be provided for access, utilities and drainage as required
by the design and location of such infrastructure and as reflected in the Final Development Plan
Documents. Alignment and grades on privately maintained streets and drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety officials and
equipment, as approved by the City Engineer.
I. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to adequately
serve the Property (and other lands as may be required, if any). The Developer shall meet or
exceed the minimum requirements for storm drainage facilities as have been established by the
City in its Drainage Master Plans and Design Criteria ("Criteria"). The Developer, for itself and
its successor(s) in interest who are owners of the Developer Parcel, does hereby indemnify and
hold harmless the City from any and all claims that might arise, directly or indirectly, as a result
of the discharge of injurious storm drainage or seepage waters from the Development in a
manner or quantity different from that which was historically discharged and caused by the
design or construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have been
accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's
master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives that
may be given to the Developer by the City. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based on
such claim and to settle any such claim provided Developer must obtain a complete discharge of
all City liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim under
the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold
harmless agreement by the Developer to not apply to such claim and such failure shall constitute
a release of this indemnity and hold harmless agreement as to such claim. Approval of and
acceptance by the City of any storm drainage facility design or construction shall in no manner
be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification.
The Developer shall engage a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be
intended for the benefit of the City, and subsequent purchasers of property in the Developer
Parcel.
9180%3\1018975.4 3
9180\3\1034460.1
Article or Paragraph
Number & Tide
Page Article or Paragraph
Number Number & Title
4.5 Asbestos, PCBs, Petroleum,
Hazardous Waste or
Radioactive Material....................7-8
5. BONDS AND INSURANCE .................................
8
5.1-5.2
Performance, Payment and Other
Bonds..............................................
8
5.3
Licensed Sureties and Insurers;
Certificates of Insurance ....................
$
5.4
CONTRACTOR's Liability
Insurance..........................................9
5.5
0", ER's Liability Insurance..............9
5.6
Property Insurance ..........................9-10
5.7
Boiler and Machinery or Addi-
tional Property Insurance..................10
5.8
Notice of Cancellation Prousion.........
10
5.9
CONTRACTOR's Responsibility
for Deductible Amounts...................10
5.10
Other Special Insurance .....................10
5.11
Waiver of Rights ................................
I ]
5.12-5.13
Receipt and Application of
Insurance Proceeds .....................10.11
5.14
Acceptance of Bonds and Insu-
ance; Option to Replace...................11
5.15
Partial Utilization --Property
Insurance........................................11
6. CONTRACTOR'S
RESPONSIBILITIES .......I.......11
6.1-6.2
Supervision and Superintendenc�.......
11
6.3-6.5
Labor, Materials and Equipment..,
I1-12
6.6
Progress Schedule..............................12
6.7
Substitutes and "Or -Equal" Items;
CONTRACTOR's Expense;
Substitute Construction
Methods or Procedures;
ENGINEER's Evaluation.............12-13
6.8-6.11
Concerning Subcontractors,
Suppliers and Others;
Waiver of Rights .........................J3-14
6.12
Patent Fees and Royalties...................14
6.13
Permits ........... :.................................
14
6.14
Laws and Regulations ........................J4
6.15
Taxes...........................................14-15
6.16
Use of Premises ................... ............
.. 15
6.17
Site Cleanliness ................................
15
6.18
Safe Structural Loading.....................15
6.19
Record Documents .............................15
6.20
Safety and Protection ....................15-16
6.21
Safety Representative .........................16
6.22
Hazard Communication Programs.,,...
16
6.23
Emergencies.....................................16
6.24
Shop Drawings and Samples..............16
Page
Number
6.25
Submittal Proceedures; CON-
TRACTOR's Review Prior
to Shop Drawing or Sample
Submittal... ' ' ...... * . .... ...
16
6.26
Shop Drawing Sae ub
tals Review by ENGINEER ...... 16-17
6.27
Responsibility for Variations
From Contract Documents ............
17
6.28
Related Work Performed Prior
to ENGINEER's Review and
Approval of Required
Submittals...................................17
6.29
Continuing the Work.....................17
6.30
CONTRACTOR's General
Warranty and Guarantee ..............
17
6.31.6.33
Indemnification .........................17-18
6.34
Survival of Obligations ...................18
7. OTHER WORK.................................................18
7.1-7.3
Related Work at Site........................18
7.4
Coordination..................................18
8. OWNER'S RESPONSIBILITIES .........................18
8.1
Communications to CON-
TRACTOR .................................
18
8.2
Replacement of ENGINEER ............
18
8.3
Furnish Data and Pay Promptly
When Due..................................18
8.4
Lands and Easements; Reports
and Tests...............................18-19
8.5
Insurance .......................................19
8.6
Change Orders............................
..19
8.7
Inspections, Tests and
Approvals...................................19
8.8
Stop or Suspend Work;
Terminate CONTRACTOR's
Services......................................19
8.9
Limitations on OWNER'S
Responsibilities . ...........................19
8.10
Asbestos, PCBs, Petroleum,
Hazardous Waste or
Radioactive Material....................J9
8.11
Evidence of Financal
Arrangements . .... . ........................19
9. ENGINEER'S STATUS DURING
CONSTRUCTION.............................................19
9.1 OWNER's Representative...............19
9.2 Visits to Site..................................19
9.3 Project Representative ................19-21
9,4 Clarifications and Interpre-
tations .........................................21
9.5 Authorized Variations in W6rk.......21
EJCDC GENERAL CONDITIONS 1910.8 (1990 EDITION)
wl CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 3 of 58
•
Page
Article or Paragraph
Page
Article or Paragraph
Number
Number & Title Number
Number & Title
9.6
Rejecting Defective Work ..rder..........?1
13.8-13.9 Uncovering Work at ENGI-
g,7_g,9
Shop Drawings, Change Orders
NEER'sRequest .....................2T28
13.10 OWNER May Stop the Work ...........
28
and Payments ..................................
Determinations for Unit Prices..,,..
21
21-22
13.11 Correction or Removal of
28
9.10
9.11.9.12
Decisions on Disputes; ENGI-
Defective Work ...................
Correction Period
NEER as Initial Interpretel..............22
13.12 .......... ...............
13.13 Acceptance of Defective Work .........
..28
28
9.13
Limitations on ENGINEER's
13.14 OWNER May Correct Defective
Authority and Responsibilities....
22-23
Work....................................
L8 29
CHANGES IN
THE WORK.....................................23
14. PAYMENTS TO CONTRACTOR AND
10.1
OWNER's Ordered Change................23
COMPLETION..............................................
`9
10.2
Claim for Adjustment........................
14.1 Schedule of Values .........................79
10.3
Work Not Required by Contract
14.2 Application for Progress
Documents.....................................23
Payment ....................................29
Y .
10.4
Change Orders..................................23
3
14.3 CONTRACTOR's Warranty of
10.5
Notification of Surety .........................2
Title ........................... ........ .....
..29
CHANGE OF
CONTRACT PRICE .............................23
14.4-14.7 Review of Applications for
11.1-11.3
Contract Price; Claim for
Progress Payments....,.............29-30
14.8-14.9 Substantial Completion.............3.......
3-31
Adjustment; Value of
23-24
Partial Utilization.
14.10 ..
0
11.4
the Work .................................
Cost of the Work
„
14.11 Final Inspection ...... .......................
31
31
...........................24-25
Exclusions to Cost of the Work .......
.... 5
14.12 Final Application for Payment ........
31
11.5
11.6
CONTRACTOR'S Fee........................25
14.13-14.14 Final Payment and Acceptance
.......
31-32
11.7
Cost Records ................................
25.26
14.15 Waiver of Claims ......................
11.8
Cash Allowances...............................26
15. SUSPENSION OF WORK AND
11.9
Unit Price Work................................26
TERMINATION...............................................
32
15.1 OWNER May Suspend Work ..........
32
CHANGE OF
CONTRACT TIMES .
15.2-15.4 OWNER May Terminate.,,.............
32
12.1
........................26
Claim for Adjustmentnt.....................26
15.5 CONTRACTOR May Stop
12.2
Time of the Essence ..... ......................26
Delays Beyond CONTRACTOR's
Work or Terminate.................32-33
12.3
Control ......................................
Delays Beyond OWNER'S and
26-27
16. DISPUTE RESOLUTION ..................................
33
12.4
CONTRACTOR's Control...............?7
17. MISCELLANEOUS .........................................
.33
TESTS AND
INSPECTIONS; CORRECTION,
17.1 Giving Notice ................................
17.2 Computation of Times....................33
33
REMOVAL OR ACCEPTANCE OF
17.3 Notice of Claim
33
DEFECTIVE
............27
WORK . ........... ..................
........ ......................
17.4 Cumulative Remedies,,..,,,..............
13.1
Notice of Defects...............................27
fessional ofessional Fees and Court
Pro
13.2
Access to the Work ............................27
Costs included .............................
33
13.3
Tests and Inspections;
27
17.6 Applicable State Laws ...............
33-34
CONTRACTOR's Cooperation,,,,.....
Intentionally left blank
13.4
OWNER'S Responsibilities;
.......................................35
Independent Testing Laboratory,,..,., 27
EXHIBIT (Optional)
13.5
CONTRACTOR's
7
Dispute Resolution Agreement .....................GC
p to Res
-Al
13.6-13.7
Responsibilities...............................2
Covering Work Prior to Inspec-
16.1-16.6 Arbitration ..............................G
QC -AI
GC-Al
tion, Testing or Approval.................27
16.7 ....................
Mediation,,...,,....
E1CDC GENERAL CONDITIONS 1910-5 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9199)
Exhibit T" Page 4 of 58
•{ J
INDEX TO GENERAL CONDITIONS
City of Fort Collins modifications to the General Conditions of the Construction Contract are not shown in this index
Article or Paragraph
Number
Acceptance of --
Bonds and Insurance........................................5.14
defective Work............................10.4.1,
13.5, 13.13
final payment.........................................9.12,
14.15
insurance.........................................................5.14
other Work, by CONTRACTOR ..........................7
3
Substitutes and "Or -Equal" Items
.....................6.7.1
Work by OWNER..............................7.5,
6.30, 6.34
Access to the --
Lands, OWNER and CONTRACTOR
responsibilities .............................................
4.1
site, related Work ..............................................
7.2
Work, .............13.2,
13.14, 14.9
Acts or Omissions--, Acts and Omissions--
CONTRACTOR..................................6.9.1,
9.13.3
ENGINEER ..........................................
6.20, 9.13.3
OWNER .............................I. .................
....4.20, 8.9
Addenda --definition of (also see
definition of Specifications) .......
(1.6, 1.10, 6.19), 1.1
Additional Property Insurances ................
.................5.7
Adjustments --
Contract Price or Contract
Times ...........................1.5,
3.5, 4.1, 4.3.2, 4.5.2,
9.4, 9.5,
10.2-10.4,
.............................4.5.3,
11,12,14.8,15.1
...............................
progress schedule ..............................................
6.6
Agreement --
definition of
.......................................................1.2
"All -Risk" Insurance, policy form .......................
..... 5:
Allowances, Cash....................................................11.8
Amending Contract Documents ................................
3.5
Amendment, Written --
in general................1.10, 1.45, 3.5, 5.10,
5.12, 6.6.2
8.2, 6.19, 10.1,
10.4, 11.2
12.1, 13.12.2,
14.7.2
............................
Appeal, OWNER or CONTRACTOR
intent to ..........................9.10, 9.11, 10.4,
16.2, 16.5
Application for Payment --
definition of......................................................1.3
ENGINEER's Responsibility ......................
I ......... 9.9
final payment.................9,13.4, 9.13.5, 14.12-14.15
in general .......................... 7.8, 2.9, 5.6.4,
9.10, 15.5
progress payment . ......................................
14.1-14.7
review of ......... ..... ...............................
:l 4.4-14.7
...
Arbitration ...............16.1-16.6
......................................
Asbestos --
claims pursuant thereto.., ........................
4.5.2, 4.5.3
CONTRACTOR authorized to stop Work .........
14.5.2
definition of.......................................................1..4
v
Article or Paragraph
Number
OWNER responsibility for .............................
4.5.1, 8.10
possible price and times change .......................
4.5.2
Authorized Variations in Work ......... 3.6,
6.25, 6.27, 9.5
Availability of Lands .........................................
4.1, 8.4
Award. Notice of --defined ......................................
1.25
Before Starting Construction ......................
.........2.5-2.8
Bid --definition of........................1.5 (l.l,
1.10, 2.3, 3.3,
.......................4.2.6.4, 6.13,
11.4.3, 11.9.1)
Bidding Documents --definition
1.6(6.8.2)
Bidding Requirements --definition
of..........................................1.7
(1.1, 4.2.6.2)
Bonds --
acceptance of...................................................5.14
additional bonds..................................10.5,
11.4.5.9
Cost of the Work.............................................1
1.5.4
definition of.......................................................1.8
delivery of ......................
2.11 5.1
..... ..........14.12-14.14
final Application for Payment .................
general 1.10,
.......................................
5.1-5.3, 5.13,
9.13, 10.5, 14.7.6
Performance, Payment and Other...................5
-5.2
Bonds and Insurance --in general„ ..............................5
Builder's risk "all-risk" policy form .........................5.62
Cancellation Provisions, Insurance ........
5.4.11, 5.8, 5.15
Cash Allowances....................................................11.8
Certificate of Substantial Completion.......,1.38,
6.30.2.3,
14.8, 14.10
..............................................
Certificates of Inspection ...................9.13.4,
13.5, 14.12
Certificates of Insurance .......... I ... 2.7,
5.3, 5.4.11, 5.4.13,
......................5.6.5, 5.8,
5.14, 9.13.4, 14.12
Change in Contract Price --
Cash Allowances..............................................11.8
claim for price
adjustment,,,,..,.,,.. 4.1, 4.2.6,
4.5, 5.15, 6.8.2, 9.4
9.5, 9.11, 10.2,
10.5, 11.2, 13.9,
......... I .........
13.13, 13.14,
14.7, 15.1, 15.5
CONTRACTOR's fee.........................................11.6
Cost of the Work
general ...............................................
11.4-11.7
Exclusions to ..............................................
11.5
Cost Records.....................................................11.7
in general.............1.19, 1.44, 9.11,
10.4.2, 10.4.3, 11
Lump Sum Pricing
11.3.2
Notification of Surety ...............................
10.5
Scope of ......................... .... ..........
.............. 10.3-10.4
Testing and Inspection,
Uncovering the Work ..................................
13.9
EICDC GENERAL CONDITIONS 19104 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit "D" Page 5 of 58
Unit Price Work .......................................... 11.9
Article or Paragraph
Number
Value of Work..................................................11.3
Change in Contract Times --
Claim for times adjustment ........4.1,
4.2.6, 4.5, 5.15,
6.8.2, 9.4, 9.5, 9.11,
10.2, 10.5, 12.1,
............
.. 13.9, 13.13, 13.14,
14.7, 15.1, 15.5
Contractual time limits.....................................12.2
Delays beyond CONTRACTOR's
control........................................................12
3
Delays beyond OWNER's and
CONTRACTOR'S control............................1.2.4
Notification of surety.........................................10.5
Scope of change ................... .....................
10.3-10.4
Change Orders --
Acceptance of Defective Work ..........................13.13
Amending Contract Documents ..........................3.5
Cash Allowances ..............................................
i 1.8
Change of Contract Pricq.....................................I
I
Change of Contract Times...................................12
Changes in the Work ............. I .........
I ................... 10
CONTRACTOR's fee........................................11.6
Cost of the Work ...................... .................
11.4-11.7
Cost Records....................................................11.7
definition of...............................I.......................1.9
emergencies.....................................................0.23
ENGINEER's responsibility ....... 9.8, 10.4, 11.2, 12.1
execution of.....................................................10.4
Indemnifiction .........................6 12,
6.16, 6.31-6.33
Insurance, Bonds and.......................5.10,
5.13, 10.5
OWNER may terminate . .............................
1.5.2-15.4
OWNER's Responsibility .............................
$ 6, 10.4
Physical Conditions --
Subsurface and..............................................4.2
Underground Facilities-.............................4.3.2
Record Documents ...................................
.6.19
Scope of Change .......................................
10.3-10.4
Substitutes.............................................6.7.3,
6.8.2
Unit Price Work...............................................11.9
value of Work, covered by.. ..........................
I I.3
Changes in the Work.................................................10
Notification of surety ........................................
10.5
OWNER's and CONTRACTOR'S
responsibilities............................................10.4
Right to an adjustment......................................10.2
Scope of change ............................
.......... ..10.3-10.4
Claims --
against CONTRACTOR....................................6.16
against ENGINEER.........................................6.32
against OWNER...............................................0.32
Change of Contract Price ...........................9.4,
11.2
Change of Contract Times ...........................9.4,
12.1
CONTRACTOR's.............4, 7.1,
9.4, 9.5, 9.11, 10.2,
11.2, 11.9,
12.1, 13.9, 14.8,
15.1, 15.5, 17.3
CONTRACTOR'S Fee...........................I...........11.6
Article or Paragraph
Number
CONTRACTOR's liability ........... 5.4, 6.12, 6.16, 6.31
Cost of the Work.......................................11.4,
11.5
Decisions on Disputes .............. I ..........
I ..... 9.11, 9.12
Dispute Resolution............................................16.1
Dispute Resolution Agreement ....................16.1-16.6
ENGINEER as initial interpretor .......................9.�11
Lump Sum Pricing.........................................11.3.2
Noticeof
..........................................................1.7.3
OWNER's....................9 4, 9.5, 9.11,
10.2, 11.2, 11.9
„....,,,.„12.1, 13.9, 13.13,
13.14, 17.3
OWNER's liability...............................................5.5
OWNER may refuse to make payment.................14.7
Professional Fees and Court Costs
Included......................................................17.5
request for formal decision on............................9.11
Substitute Items.............................................0.7.1.2
Time Extension.................................................12.1
Time requirements ...................................
9.11, 12.1
Unit Price Work.............................................11.9.3
Valueof ..... ....... ...........
....... 1,1.3
.............................
Waiver of --on Final Payment.................14.14,
14.15
Work Change Directive ....................................
10.2
written notice required......................9
11, 11.2, 12.1
Clarifications and Interpretations ............
3.6.3, 9.4, 9.11
Clean Site ............................................
...I.......6: l7
Codes of Technical Society, Organization
or Association ...............
3.3.3
Commencement of Contract Times ... ....................2
3
Communications--
6.9.2, 8.1
general..............................................0.2,
Hazard Communication Programs .....................6.22
Completion --
Final Application for Payment ..........................14.12
Final Inspection...............................................14.11
Final Payment and Acceptance ..... ..........J4.13-14.14
Partial Utilization............................................14.10
Substantial Completion ......................1
38, 14.8-14.9
Waiver of Claims............................................14.15
Computation of Times ..........................
I .... 17.2.1-17.2.2
Concerning Subcontractors, Suppliers
and Others..................................................6.8-6.11
Conferences --
2.9
initially acceptable schedules ..............................
preconstructi on...................................................2.8
Conflict, Error, Ambiguity, Discrepancy --
CONTRACTOR to Report ..........................2
5, 3.3.2
Construction, before starting by
CONTRACTOR ...........................................
2.5-2.7
Construction Machinery, Equipment, etc ................. A
Continuing the Work.....................................6.29,
10.4
Contract Documents--
Amending..........................................................3.5
5.1
Bonds
..............
E1CDC GENERAL CONDITIONS 1910.8 (1990 EDITION)
Hd CITY OF FORT COLLINS MODIFICATIONS (REV 9.!99)
Exhibit "D" Page 6 of 58
Cash Allowances..............................................11.8
Article or Paragraph
Number
Change of Contract Price..................................1.
11
Change of Contract Times ...................................
12
Changes in the Work................................10.4-10.5
check and verify................................................2.5
Clarifications and
Interpretations ..........................3.2, 3.6,
9.4, 9.11
definition of.....................................................1.10
ENGINEER as initial interpreter of..................9.11
ENGINEER as OWNER's representative ........
I ..... 9.1
general3
Insurance ...........................................................5.3
Intent.................................. ..... .......... ......
.3.1-3.4
minor variations in the Work..............................3.6
OWNER's responsibility to furnish dat9..............
8.3
OWNER'S responsibility to make
prompt payment .......................... $ 3, 14.4, 14.13
precedence................................................3.1,
3.3.3
Record Documents............................................0.19
Reference to Standards and Specifications
of Technical Societies...................................3.3
Related Work.....................................................7.2
Reporting and Resolving Discrepancies ........
2.5, 3.3
Reuseof. ...................... ........................ ...
........ 3.7
Supplementing..................................................3.6
Termination of ENGINEER's Employment
.......... 8.2
Unit Price Work...............................................11.9
variations..........................................3.6,
6.23, 6.27
Visits to Site, ENGINEER's ...............................
9.2
Contract Price --
adjustment of ............... 3.5, 4.1, 9.4, 10.3,
11.2-11.3
Changeof .......................................... ......
..... ..... ) I
Decision on Disputes........................................9.11
definition of......................................................1.11
Contract Times --
adjustment of ..........................3.5, 4.1, 9.4,
10.3, 12
Change of................................................12.1-12.4
Commencement of ........................................
.... 2.3
definition of.....................................................1.12
CONTRACTOR --
Acceptance of Insurance...................................5.14
Communications.......................................6.2,
6.9.2
Continue Work....................................I...6.29,
10.4
coordination and scheduling............................6.9.2
definition of.....................................................1.13
Limited Reliance on Technical
Data Authorized.........................................4.2.2
May Stop Work or Terminate.............................1.5.5
provide site access to others....................
...7.2, 13.2
Safety and Protection ...................4.3.1.2,
6.16, 6.18,
6.21.6.23, 7.2, 13.2
Shop Drawing and Sample Review
Prior to Submittal........................................0.25
vd
Stop Work requirements ................ I.................4.5.2
CONTRACTOR's—
Article or Paragraph
Number
Compensation ....................... ......... ............
11.1-1 1.2
Continuing Obligation.....................................14.15
Defective Work...............................9.6, 13.10-13.14
Duty to correct defective Work ..........................13.11
Duty to Report --
Changes in the Work caused by
Emergency ...........................................
6.23
Defects in Work of Others.............................7.3
Differing conditions,.. ................................4.2.3
Discrepancy in Documents........2.5, 3.3.2, 6.14.2
Underground Facilities not indicated,...,.....
4.3.2
Emergencies.....................................................6.23
Equipment and Machinery Rental, Cost
of the Work...........................................11.4.5.3
Fee --Cost Plus...........................11.4.5.6, 11.5.1,
11.6
General Warranty and Guarantee .......................0.30
Hazard Communication Programs ......................0.22
Indemnification .........................6.12, 6.16,
6.31-6.33
Inspection of the Work...............................7.3,
13.4
Labor, Materials and Equipment ....................0.3-6.5
Laws and Regulations, Compliance by .............
6.14.1
Liability Insurance..............................................5.4
Notice of Intent to Appeal ..........................9
10, 10.4
obligation to perform and complete
theWork....................................................6.30
Patent Fees and Royalties, paid for by ................
6.12
Performance and Other Bonds..............................S-I
Permits, obtained and paid for by.......................6.13
Progress Schedule ...........................2 6, 2.8,
2.9, 6.6,
........................................6.29, 10.4,
15.2.1
Request for formal decisionon disputes..............9.11
Responsibilities --
Changes in the Work ..................................
10.1
Concerning Subcontractors, Suppliers
and Others......................................6.8-6.11
Continuing the Work ..........................6.29,
10.4
CONTRACTOR's expense ...........................6
7.1
CONTRACTOR's General Warranty
and Guarantee.......................................6.30
CONTRACTOR's review prior to Shop
Drawing or Sample submittal.................6.25
Coordination of Work................................6.9.2
Emergencies ...............................................
6.23
ENGINEER's evaluation, Substitutes
or "Or -Equal" Items..............................6.7.3
For Acts and Omissions
of Others.............................6.9.1-6.9.2,
9.13
for deductible amounts, insurance...................5.9
general........................................6, 7.2, 7.3, 8.9
Hazardous Communication Programs,.....,...
6.22
Indemnification ...................................6.31-6.33
E1CDC GENERAL CONDITIONS 19104 (1990 EDITION)
uJ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 7 of 58
Labor, Materials and Equipment..............0.3.6.5
Laws and Regulations..................................6.14
Liability Insurance........................................5.4
Article or Paragraph
Number
Notice of variation from Contract
Documents ...........................................
6.27
Patent Fees and Royalties.............................6.12
Permits.......................................................6.13
Progress Schedule.........................................6.6
Record Documents ......................................
6.19
related Work performed prior to
ENGINEER's approval of required
submittals.............................................6.28
safe structural loading.................................6.18
Safety and Protection ....................6.20, 7.2, 13.2
Safety Representative..................................6.21
Scheduling the Work..................................6.9.2
Shop Drawings and Samples ........................6.24
Shop Drawings and Samples Review
by ENGINEER .....................................
6.26
Site Cleanliness ............... I.............I............6.17
Submittal Procedures...................................6.25
Substitute Construction Methods
and Procedures ....................................
6.7.2
Substitutes and "Or -Equal" Items................0.7.1
Superintendence ...........................................
6.2
Supervision...................................................0.1
Survival of Obligations................................6.34
Taxes ................. ......6.15
Tests and Inspections ........... ... ................. ....13.5
ToReport ......................... I............................7.5
Use of Premises ..................... 6.16-6.18, 6.30.2.4
Review Prior to Shop Drawing or
Sample Submittal ........................................
6.25
Right to adjustment for changes in the Work .....
10.2
right to claim ........... 4, 7.1, 9.4, 9.5, 9.11, 10.2,11.2,
12.1, 13.9, 14.8, 15.1, 15.5,
17.3
„....,,,,11.9,
Safety and Protection ..................6.20-6.22, 7.2,
13.2
Safety Representative ................................... .....
6.21
Shop Drawings and Samples Submittals..... 6.24-6.28
Special Consultants_ ......................................
11.4.4
Substitute Construction Methods and Procedure$„6.7
Substitutes and "Or -Equal" Items,
Expense .......................................... 6.7.1,
6.7.2
Subcontractors, Suppliers and Others .......... 6.8-6.11
Supervision and Superintendence ......... 6.1, 6.2,
6.21
Taxes, Payment by............................................6.15
Use of Premises ........................................ 6.16-6.18
Warranties and guarantees ..........................6.5,
6.30
Warranty of Title. ............... I ............... .............
J 4.3
Written Notice Required --
CONTRACTOR stop Work or terminate, .......
15.5
Reports of Differing Subsurface
and Physical Conditions .......................4.2.3
Substantial Completion................................14.8
viii
CONTRACTORS --other .............................................. 7
Contractual Liability Insurance.....................I........5..4.10
Contractual Time Limits ........................... I ............. J12
Article or Paragraph
Number
Coordination -
-
CONTRACTOR's responsibility ........................6
9.2
Copies of Documents ..............................................
2.2
Correction Period..................................................13.12
Correction, Removal or Acceptance
of Defective Work--
in general...................................10.4.1,
13.10-13.14
Acceptance of Defective Work ..........................13.13
Correction or Removal of
Defective Work.................................6.30,
13.11
Correction Period.......................................I....13.12
OWNER May Correct Defective Work..............13.14
OWNER May Stop Work.................................13.10
Cost --
of Tests and Inspections ....................................
13.4
Records l 1.7
Cost of the Work --
Bonds and insurance, additional ...................11.4.5.9
Cash Discounts . .......................................
...... .J 1.4.2
CONTRACTORSs Fee .......................................
11.6
Employee Expenses......................................11.4.5.1
Exclusions to.....................................................11.5
General11.4-11.5
Home office and overhead expenses ....................11.5
Losses and damages.....................................11.4.5.6
Materials and equipment.................................11.4.2
Minor expenses...........................................11.4.5.8
Payroll costs on changes..................................11.4.1
performed by Subcontractors...........................J.1.4.3
Recordsll.7
Rentals of construction equipment
and machinery ......................................
11.4.5.3
Royalty payments, permits and
license fees ...............
11.4.5.5
Site office and temporary facilities.,, ..............
11.4.5.2
Special Consultants, CONTRACTOR's............
11.4.4
Supplemental .................................................11.4.5
Taxes related to the Work............................J.1.4.5.4
Tests and Inspection..........................................J3.4
Trade Discounts.............................................J
1.4.2
Utilities, fuel and sanitary facilities ...............11.4.5.7
Work after regular hours.................................11.4.1
Covering Work...............................................13.6-13.7
Cumulative Remedies .....................................
17.4-17.5
Cutting, fitting and patching....................................7.2
Data, to be furnished by OWNED ..............................$
3
Day --definition of................................................17.2.2
Decisions on Disputes..........................I.........
9.11, 9.12
defective --definition of...........................................1.14
defective Work --
Acceptance of....................................10.4.1,
13.13
EICDC GENERAL CONDITIONS
1910-8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS
(REV 9199)
Exhibit "D" Page 8 of 58
Correction or Removal of.....................10.4.1, 13.11
Correction Period............................................13.12
in general.........................................13, 14.7, 14.11
Article or Paragraph
Number
Observation by ENGINEER ................................
9.2
OWNER May Stop Work ..................... ............
13.10
Prompt Notice of Defects...................................13.1
Rejecting...........................................................9.6
Uncovering the Work .......................................
113.8
Definitions................................ ....... ................
......... I
Delays ..................................... 4.1, 6.29,
12.3-12.4
Delivery of Bonds.....................................................2.1
Delivery of certificates of insurance.... I.......................7.7
Determinations for Unit Prices................................9.10
Differing Subsurface or Physical Conditions --
Noticeof........................................................4.2.3
ENGINEER's Review......................................4.2.4
Possible Contract Documents Change ........
I ...... .2.5
Possible Price and Times Adjustments.............4.2.6
Discrepancies -Reporting
and Resolving................................2.5, 3.3.2,
6.14.2
Dispute Resolution—
Agreement .................................. ..............
16.1-16.6
Arbitration................................................16.1-16.5
generall6
Mediation... .....................................................
).6.6
Dispute Resolution Agreement.........................1.6.1-16.6
Disputes, Decisions by ENGINEER ...................9.11-9.12
Documents --
Copiesof...........................................................2.2
Record 6.19
Reuseof.............................................................3.7
Drawings --definition of..........................................J-15
Easements.............................................................4.1
Effective date of Agreement -- definition cif ..............1.16
Emergencies ...................................... ....... .........
.....4: 23
ENGINEER --
as initial interpreter on disputes .................9.11-9.12
definition of.....................................................1.17
Limitations on authority and responsibilitie;j
..... 9.13
Replacement of ..................................................
8.2
Resident Project Representative ...........................93
ENGINEER's Consultant -- definition of..................1.18
ENGINEER's--
authority and responsibility, limitations on ........ 9.13
Authorized Variations in the Work.....................9.5
Change Orders, responsibility for...... 9.7, 10, 11, 12
Clarifications and Interpretations ...............3.6.3,
9.4
Decisions on Disputes ..............................
9.11-9.12
defective Work, notice of..................................13.1
Evaluation of Substitute Items ..........................0..73
Liability...................................................6.32,
9.12
Notice Work is Acceptable. ..............................
J4.13
Observations...........................................6.30.2,
9.2
ix
OWNER'S Representative ................................... 9.1
Payments to the CONTRACTOR,
Responsibility for.....................................9.9, 14
Recommendation of Payment ....................14.4, 14.13
Article or Paragraph
Number
Responsibilities --Limitations on.................9.11-9.13
Review of Reports on Differing Subsurface
and Physical Conditions.............................4.2.4
Shop Drawings and Samples, review
responsibility ..............................................
6.26
Status During Cmstruction--
authorized variations in the Work..................9.5
Clarifications and Interpretations ..................9.4
Decisions on Disputes..........................9.11-9.12
Determinations on Unit Price .......................9.10
ENGINEER as Initial Interpreter..,,...., ..........
ENGINEER's Responsibilities ................9.1-9.12
Limitations on ENGINEER's Authority
and Responsibilities..............................9.13
OWNER's Representative..............................9.1
Project Representative..........................I........9.3
Rejecting Defective Work..............................9.6
Shop Drawings, Change Orders
and Payments ...................... ..............
9.7-9.9
Visits to Site.................................................9.2
Unit Price determinations.................................9.10
Visits to Site.......................................................9.2
Written consent required.... I.........................7.2,
9.1
Equipment, Labor, Materials and .............. ...........
03-6.5
Equipment rental, Cost of the Work..................11.4.5.3
Equivalent Materials and Equipment .........................4.7
error or omissions..................................................6.33
Evidence of Financial Arrangements .......................
$-I I
Explorations of physical conditions .......................
4.2.1
Fee, CONTRACTOR's--Costs Plus ...........................11.6
Field Order --
definition of............................I........................1.19
issued by ENGINEER................................3.6.1,
9.5
Final Application for Payment ..............................
14.12
Final Inspection...................................................14.11
Final Payment --
and Acceptance......................................14.13-14.14
Prior to, for cash allowances..............................11.8
General Provisions..........................................17.3.17.4
General Requirements --
definition of.....................................................1.20
principal references tq..............7.6, 6.4,
6.6-6.7, 6.24
Giving Notice....................................................I....17.1
Guarantee of Work --by CONTRACTOR ........
6.30, 14.12
Hazard Communication Programs ...........................4.22
Hazardous Waste --
definition of.....................................................1.21
general.............................................................
4.5
OWNER's responsibility for...............................8.10
E1CDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
wi CITY OF FORT COLLINS MODIFICATIONS (REV 9199)
Exhibit T" Page 9 of 58
J
Indemnification ..............................4 12, 6.16, 6.31-6.33
Initially Acceptable Schedules...................................2.9
Inspection --
Certificates of ..............................9 13.4, 13.5, 14.12
Final............................14.11
Article or Paragraph
Number
Special, required by ENGINEER .........................9.6
Tests and Approval.............................3.7,
13.3-13.4
Insurance --
Acceptance of, by OWNER...............................5.14
Additional, required by changes
in the Work............................................11.4.5.9
Before starting the Work ........... ..... ....................2.7
Bonds and --in genera(..........................................5
Cancellation Provisions. .....................................
5.8
Certificates of...................7.7, 5, 5.3, 5.4.11,
5.4.13,
5.8, 5.14, 9.13.4,
14.12
.......................5.6.5,
completed operations......................................5.4.13
CONTRACTOR's Liability..................................5.4
CONTRACTOR's objection to coverage.............5.14
Contractual Liability......................................5.4.10
deductible amounts, CONTRACTOR's
responsibility ................................................5.9
Final Application for Payment ..........................14.12
Licensed Insurers...............................................5.3
Notice requirements, material changes.,.,...
5.8, 10.5
Option to Replace.............................................5.14
other special insurances ................................
.5.10
OWNER as fiduciary for insureds..............5,12-5.13
OWNER's Liability......................................I.....5.5
OWNER's Responsibility ..................................
.. 8.5
Partial Utilization, Property Insurance...............5.15
Property............. ......... ...............................5.6-5.10
Receipt and Application of Insurance
Proceeds ..............................................
5.12-5.13
Special Insurance.............................................5.10
Waiver of Rights..............................................5.11
Intent of Contract Documents,............................3.1-3.4
Interpretations and Clarifications .....................3.6.3,
9.4
Investigations of physical conditions ..........................4.2
Labor, Materials and Equipment...........................0.3-6.5
Lands --
and Easements...................................................8A
Availability of.............................................4.1,
8.4
Reports and Tests...............................................8.4
Laws and Regulations --Laws or Regulations --
Bonds..................................................
...... 5.1-5.2
Changes in the Work .......................................
10.4
Contract Documents...........................................3.1
CONTRACTOR's Responsibilities .....................6.14
Correction Period, defective Work....................13.12
Cost of the Work, taxes...............................11.4.5.4
definition of.....................................................1.22
general6.14
Indemnification ........................................
6.31-6.33
x
Insurance...........................................................5.3
Precedence................................................3.1, 3.3.3
Reference to....................................................3 3.1
Safety and Protection ............... 6.20, 13.2
Subcontractors, Suppliers and Others ........... 6.8-6.11
Article or Paragraph
Number
Tests and Inspections...................................13.5
Use of Premises.................................................6.16
Visits to Site.......................................................9.2
Liability Insurance--
CONTRACTOR's................................................
A
OWNER's...........................................................5.5
Licensed Sureties and Insurers .................................
5.3
Liens --
Application for Progress Payment .......................14.2
CONTRACTOR's Warranty of Title....................14
3
Final Application for Payment .........................1.4.12
definition of......................................................1.23
Waiver of Claims............................................)4.15
Limitations on ENGINEER's authority and
responsibilities .....................................- ...........
.13
Limited Reliance by CONTRACTOR
Authorized,,.,,,...... ........4.2.2
..................................
Maintenance and Operating Manuals --
Final Application for Payment ................I........14.12
Manuals (of others) --
Precedence ....................................................3.3.3.1
Reference to in Contract Documents..................3
3.1
Materials and equipment --
furnished by CONTRACTOR...............................6
3
not incorporated in Work.........................I.........14.2
Materials or equipment --equivalent ...........................0.7
Mediation (Optional)..............................................16.7
Milestones --definition of........................................1.24
Miscellaneous --
Computation of Times.......................................17.2
Cumulative Remedies ....................... I................17.4
Giving Notice....................................................17.1
Notice of Claim.................................................17.3
Professional Fees and Court Costs Included..,.....
17.5
Multi -prime contracts., .........................................
...7
Not Shown or Indicated.........................................4.3.2
Notice of --
Acceptability of Project.....................................14.13
Award, definition of.........................................1.25
Claim............................................................1.7.3
Defects, 13.1
Differing Subsurface or Physical Conditions ......
4-2.3
Giving............................... .............................1.7.1
Tests and Inspections........................................13.3
Variation, Shop Drawing and Sampl�.................0.27
Notice to Proceed --
definition of......................................................1.26
givingof ........................................................... 2.3
EJCDC GENERAL CONDITIONS 1910.8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit "D" Page 10 of 58
Notification to Surety..............................................10.5
Observations, by ENGINEER ............................630,
9.2
Occupancy of the Work ...................
5.15, 6.30.2.4, 14.10
Omissions or acts by CONTRACTOR................6.9, 9.13
Open Peril policy form, Insurance ..........................5.6.2
Option to Replace .............................
...................5.14
Article or Paragraph
Number
"Or Equal" Items......................................................0.7
Other work 7
Overtime Work --prohibition of.................................6.3
OWNER --
Acceptance ofdefective Work...........................13.13
appoint an ENGINEER......................................8.2
as fiduciary...............................................5.12-5.13
Availability of Lands, responsibility ....................4.1
definition of ................................ .....................
1,.27
data, furnish......................................................8.3
May Correct Defective Work...........................13.14
May refuse to make payment.............................1.4.7
May Stop the Work.........................................13.10
May Suspend Work,
Terminate . ........................... $.8, 13,10,
15.1-15.4
Payment, make prompt.....................$.3, 14.4,
14.13
performance of other work ..................................
7.1
permits and licenses, requirement*.....................6.13
purchased insurance requirements ..............
5.6-5.10
OWNER's--
Acceptance of the Work..............................6.30.2.5
Change Orders, obligation to execute ..........
8.6, 10.4
Communications................................................
8.1
Coordination of the Work...................................7.4
Disputes, request for decisiorl ............................9
11
Inspections, tests and approval;..................$.7,
13.4
Liability Insurance .............................................
5.5
Notice of Defects..............................................13.1
Representative --During Construction,
ENGINEER's Status......................................9.1
Responsibilities --
Asbestos, PCBs, Petroleum, Hazardous
Waste or Radioactive Material ................$
10
Change Orders .............................................
8.6
Changes in the Work ..................................
10.1
communications............................................8.1
CONTRACTOR's responsibilities .................8
9
evidence of financial arrangementS...........
..$.I 1
inspections, tests and approval$.....................8.7
insurance......................................................
8.5
lands and easements......................................8.4
prompt payment by........................................8.3
replacement of ENGINEER ...........................$•2
reports and tests............................................8.4
stop or suspend Work..................8.8,
13.10, 15.1
terminate CONTRACTOR's
services..........................................8.8,
15.2
separate representative at site..............................9.3
X1
testing, independent.,,,,.......
use or occupancy
of the Work ....................
written consent or approval
required ........................
..........................
13.4
„5.15, 6.30.2.4, 14.10
.................9.1, 6.3, 11.4
EJCDC GENERAL CONDITIONS 19104 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9199)
Exhibit "D" Page 11 of 58
Article or Paragraph
Number
written notice required ........................7.1,
9.4, 9.11,
11.2,
11.9, 14.7, 15.4
PCBs --
definition of.....................................................1.29
general..............................................................4.5
OWNER's responsibility for ..............
.................$.10
Partial Utilization --
definition of......................................................1.28
general 6.30.2.4, 14.10
Property Insurance ............................................
5.15
Patent Fees and Royalties.......................................6.12
Payment Bonds ...................................................
5.1-5.2
Payments, Recommendation of..............14.4-14.7,
14.13
Payments to CONTRACTOR and Completion
--
Application for ProgressPayments ......................)4.2
CONTRACTOR'S Warranty of Title ...................
J 4.3
Final Application for Payment ..........................14.12
Final Inspection..............................................14.11
Final Payment and Acceptantq ...............14.13-14.14
general.................................................
........ $.3, 14
Partial Utilization ...........................................
14.10
Retai n ag e..........................................................14.2
Review of Applications for
Progress Payments ...............................
14.4-14.7
prompt payment, .................................................
fl.3
Schedule of Values............................................14.1
Substantial Completion...............................14.8-14.9
Waiver of Claims ............................................
14.15
when payments due. ................................
14.4, 14.13
withholding payment.........................................14.7
Performance Bonds ......... ...................................
5.1-5.2
Permits.............................................I..............6.13
Petroleum --
definition of .................................
........... ......... i.3C
general..............................................................4
. `
OWNER's responsibility for...............................$.10
Physical Conditions --
Drawings of, in or relating tq........................4.2.
1.2
ENGINEER's review.................................4......
4.2.4
existing structures...........................................4.2.2
.
general4.2.1.2.........................................................
Notice of Differing Subsurface or.............4.......4.2.3
Possible Contract Documents Change, .... 4
......... 4.2.5
Possible Price and Times Adjustment5..............4.2.6
Reports and Drawings .............. ........................
4.2.1
Subsurface and,....... ............ 4..........................4...
4.2
Subsurface Conditions...................................4.2.1.1
Technical Data, Limited Reliance by
CONTRACTOR Authorized .......................4.2
2
Underground Facilities—
general.........................................................4.3
Not Shown or Indicded..............................43.2
Protection of ........................................
4.3, 6.20
xii
Article or Paragraph
Number
Shown or Indicated................................................4.3.1
Technical Data ...............................................
4.2.2
Preconstruction Conferencq.......................................2.8
Preliminary Matters.....................................................2
Preliminary Schedules..............................................2.6
Premises, Use of .............................................
6.16-6.18
Price, Change of Contract...........................................I
I
Price, Contract --definition of..................................1.11
Progress Payment, Applications for .....................
I .... J4.2
Progress Payment--retainage...................................
14.2
Progress schedule, CONTRACTOR's............
2.6, 2.8, 2.9,
............................ 6.6, 6.29, 10.4, 15.2.1
Project --definition of .........I.......1.31
..............................
Project Representative—
ENGINEER's Status During Construction,,,,,..,..,, 9.3
Project Representative, Resident --definition
of ......... 1.33
prompt payment by OWNER.....................................8.3
Property Insurance --
Additional .........................................................5.7
general5.6-5.10
Partial Utilization................................5.15,
14.10.2
receipt and application of proceeds,,..........5.12-5.13
Protection, Safety and..............................6. 20-6.21, 13.2
Punch list..........................................................1.4.11
Radioactive Material--
defintion of.....................................................1.32
general4.5
OWNER's responsibility for ...............................$
10
Recommendation of Payment................14.4,
14.5, 14.13
Record Documents........................................6.19,
14.12
Records, procedures for maintaining .........................2.8
Reference Points.......................................................4.4
Reference to Standards and Specifications
of Technical Societies.........................................3.3
Regulations, Laws and(or).....................I................6.14
Rejecting Defective Work..........................................9.6
Related Work --
atSite ..................................................
...... 7.1-7.3
Performed prior to Shop Drawings
and Samples submittals review....................6.28
Remedies, cumulative.....................................17.4,
17.5
Removal or Correction ofDefective Work................J3.11
rental agreements, OWNER approval required
..... 11.4.5.3
replacement of ENGINEER, by OWNER....................$.2
Reporting and Resolving
Discrepancies................................2.5,
3.3.2, 6.14.2
Reports --
and Drawings.................................................4.2.1
and Tests, OWNER's responsibility ......................$A
Resident and Project Representative --
definition of....................................................1.33
provisionfor.............................................................9.3
EICDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 12 of 58
J. The Developer shall pay the applicable "stormwater plant investment fee" in
accordance with Chapter 26, Article VII of the City Code. This fee is included with building
permit fees and shall be paid prior to the issuance of each building permit.
K. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase of the
construction. Utilities will not be initially accepted prior to as -built drawings being submitted to
and approved by the City of Fort Collins.
L. The Developer specifically represents that to the best of its knowledge all
property owned by Developer and dedicated (both in fee simple and as easements) to the City
associated with this Development (whether on or off -site) is in compliance with all
environmental protection and anti -pollution laws, rules, regulations, orders or requirements,
including solid waste requirements, as defined by the U. S. Environmental Protection Agency
Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City by the
Developer pursuant to this Development Agreement, is in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated property of any hazardous
substances, pollutants or contaminants, as defined by the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest who are owners of the
Developer Parcel, does hereby indemnify and hold harmless the City from any liability
whatsoever that may be imposed upon the City by any governmental authority or any third party,
pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous
substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature
whatsoever on, of, or related to any property dedicated by deed or plat to the City in connection
with this Development, provided that such damages or liability are not caused by circumstances
arising entirely after the date of acceptance by the City of the public improvements constructed
on the dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or other
liability arising as a result of any hazardous substance, pollutant or contaminant generated or
deposited by the City, its agents or representatives, upon the property dedicated to the City by the
Developer in connection with this Development. The City agrees to give notice to the Developer
of any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based on
such claim and to settle any such claim provided the Developer must obtain a complete discharge
of all City liability through such settlement. Failure of the City to give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such claim under
the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold
harmless agreement by the Developer to not apply to such claim and such failure shall constitute
a release of this indemnity and hold harmless agreement as to such claim.
M. The Developer acknowledges and agrees that the City, as the owner of any
adjacent property (the "City Property") on which off -site improvements may be constructed, or
that may be damaged by the Developer's activities hereunder, expressly retains (and does not by
this Agreement waive) its rights as property owner. The City's rights as owner may include
without limitation those rights associated with the protection of the City Property from damage,
9180\3\1018975.4 4
9180\3\1034460.1
Article or Paragraph
Number
Resident Superintendent, CONTRACTOR's............... 6.2
Responsibilities—
CONTRACTOR's-in general .................................. 6
ENGINEER's-in general.........................................1)
Limitations on.............................................9.13
OWNER's-in general.................................I...........8
Retainage ...................................................
. ........ J.4.2
Reuse of Documents..................................................3.7
Review by CONTRACTOR: Shop Drawings
and Samples Prior to Submittal ..........................G.25
Review of Applications for
Progress Payments ....................................
14.4-14.7
Right to an adjustment............................................J0.2
Rightsof Way..........................................................4.1
Royalties, Patent Fees and.......................................6.12
Safe Structural Loading..........................................6.18
Safety --
and Protection................................4.3.2,
6.16, 6.18,
...6.20-6.21, 7.2, 13.2
general .................
4.20-6.23
Representative, CONTRACTOR's.......................6.21
Samples --
definition of......................................................1.34
general......................................................0.24-6.28
Review by CONTRACTOR ...............................
6.25
Review by ENGINEER ........... ...................k•26,
6.27
related Work.....................................................6.28
submittal of....................................................6.24.2
submittal procedures.........................................0.25
Schedule of progress.............................2.6,
2.8-2.9, 6.6,
..............I.............6.29,
10.4, 15.2.1
Schedule of Shop Drawing and Sample
Submittals ..............................2 6,
2.8-2.9, 6.24-6.28
Schedule of Values..............................2.6,
2.8.2.9, 14.1
Schedules --
Adherence to..................................................15.2.1
Adjusting.......................................................I...6.6
Change of Contract Times.................................10.4
Initially Acceptable ......................................
2.8, 2.9
Preliminary........................................................2.6
Scope of Changes ......................................
10.3-10.4
Subsurface Conditions........................................4.2.1.1
Shop Drawings --
and Samples, general ................................
6.24-6.28
Change Orders & Applications for
Payments, and.........................................9.7-9.9
definition of........................... ..............
............. 1.35
ENGINEER's approval of ................................
3.6.2
ENGINEER's responsibility
for review .....................................
9.7, 6.24-6.28
related Work.....................................................6.28
review procedures................................2.8,
6.24.6.28
Article or Paragraph
Number
submittal required...............................................6.24.1
Submittal Procedures ........................................
6 25
use to approve substitutions..............................6.7.3
Shown or Indicated...............................................4.3.1
Site Access......................................................7.2,
13.2
Site Cleanliness......................................................6.17
Site, Visits to --
by ENGINEER ..........................................
9.2, 13.2
byothers..........................................................13.2
"special causes of loss" policy form,
insurance........................................................5.6.2
definition of.....................................................J.36
Specifications—
defination of....................................................J.36
of Technical Societies, reference tp...................3.3.1
precedence......................................................3.3.3
Standards and Specifications
of Technical Societies........................................3.3
Starting Construction, Before..............................2.5-2.8
Starting the Work......................................................2.4
Stop or Suspend Work --
by CONTRACTOR.......................................I...15.5
by OWNER .....................................
8.8, 13.10, 15.1
Storage of materials and equipment .....................4.1,
7.2
Structural Loading, Safety.......................................6.18
Subcontractor—
Concerning ................................................
6.8-6.11
definition of. ..................................
..... .. ........ j.37
delays.......................... ...................................12.3
waiver of rights................................................6.11
Subcontractors --in general.................................6.8-6.11
Subcontracts --required provision5.........
5.11, 6.1 I, 11.4.3
Submittals --
Applications for Paymen(.................................14.2
Maintenance and Operation Manuals,,,,,,,,,,,,,,
14.12
Procedures.......................................................6.25
Progress Schedules.......................................2.6,
2.9
Samples...................................................0.24.6.28
Schedule of Values.....................................2.6,
14.1
Schedule ofShop Drawings and Samples
Submissions.......................................2.6,
2.8-2.9
Shop Drawings ........................................
6.24.6.28
Substantial Completion --
certification of............................6.30.2.3,
14.8-14.9
definition of.....................................................J.38
Substitute Construction Methods or Procedures,,,...,
6.7.2
Substitutes and "Or Equal" Items...............................6.7
CONTRACTOR's Expense ............................0
7 1.3
ENGINEER's Evaluation.................................6.7.3
"Or-Equal"...................................................0.7.1.1
Substitute Construction Methods
E1CDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 13 of 58
Article or Paragraph
Number
or Procedures.............................................0.7.2
Substitute Items ........................... ..... ........."
6.7.1.2
Subsurface and Physical Conditions--
Drawings of, in or relathg to ........................4.2.1.2
ENGINEER's Review ......................................
4.2.4
general.............................................................
4.2
Limited Reliance by CONTRACTOR
Authorized. .....................................
.......... 4.2.2
Notice of Differing Subsurface or
Physical Conditions.........................................4.2.3
Physical Conditions ......................................
4.2.1.2
Possible Contract Documents Change...............4.2.5
Possible Price and Times Adjustments...............4.2.6
Reports and Drawings ......................................
4.2.1
Subsurface and ...................................................
4.2
Subsurface Conditions at the Site...................4.2.1.1
Technical Data ......................... I.......................4.2.2
Supervision—
CONTRACTOR's responsibility ...........................6.1
OWNER shall not supervise................................8.9
ENGINEER shall not supervise................9.2,
9.13.2
Superintendence. ..................................... .........
I ...... 6.2
Superintendent, CONTRACTOR's resident...............0.2
Supplemental costs ..............................................
11.4.5
Supplementary Conditions --
definition of ............ m........................................1.39
principal references to.................1.10, 1.18,
2.2, 2.7,
........................4.2, 4.3, 5.1, 5.3,
5.4, 5.6-5.9,
„._...,.,,..5.11, 6.8, 6.13, 7.4, 8.11,
9.3, 9.10
Supplementing Contract Document$ .........................
�.6
Supplier --
definition of.....................................................1.40
principal references to ........... 3.7, 6.5, 6.8-6.11,
6.20,
.........................0.24, 9.13, 14.12
Waiver of Rights...............................................0.11
Surety --
consent to final payment .......................14.12,
14.14
ENGINEER has no duty to................I................9.13
Notification of..................................10.1, 10.5, 15.2
qualification of ........................... ..................
5.1-5.3
Survival of Obligations...........................................6.34
Suspend Work, OWNER May .......................13.10,
15.1
Suspension of Work and Termination-- ......................15
CONTRACTOR May Stop Work
or Terminate...............................................15.5
OWNER May Suspend Work..............................15.1
OWNER May Terminate . ....... .....................
15.2-15.4
Taxes --Payment by CONTRACTOR .........................6.15
Technical Data --
Limited Reliance by CONTRACTOR .................4.2.2
Possible Price and Times Adjustment,� ..............4.2.(
Reports of Differing Subsurface and
Physical Conditions....................................4.2.1
xiv
Temporary construction facilities..............................4.1
Article or Paragraph
Number
Termination -
-
by CONTRACTOR...........................................15.5
by OWNER........................................8.8,
15.1-15.4
of ENGINEER's employment...............................8.2
Suspension of Work-in general .............................15
Terms and Adjectives..............................................3A
Tests and Inspections --
Access to the Work, by others............................13.2
CONTRACTOR's responsibilities .......
I..............13.5
cost of 13.4
covering Work prior tq..............................13.6-13.7
Laws and Regulations(or)......................
I......... 13.5
Notice of Defects...............................................13.1
OWNER May Stop Work.................................13.10
OWNER's independent testing ..........................13.4
special, required by ENGINEER. .........................9.6
timely notice required.......................................13.4
Uncovering the Work, at ENGINEER's
request.................................................13.8-13.9
Times --
Adjusting...........................................................6.6
Change of Contract.............................................12
Computation of................................I...............17.2
Contract Times --definition of ...........................J.12
day................................... ....................17.2.2
Milestones ..........................................................12
Requirements--
appeals.................................................9.10,
16
clarifications,
claims and disputes... ...............
9 11, 11.2, 12
Commencement of Contract Time$................2.3
Preconstruction Conference ...........................2.8
schedules.........................................2.6,
2.9, 6.6
Starting the Work .........................................
2.4
Title, Warranty of. ...................................................
14.3
Uncovering Work.............................................13.8-13.9
Underground Facilities, Physical Conditions
--
definition of .....................................
I .... I .......... 1.41
Not Shown or Indicated .............
I ....... I ............. 4.3.2
protection of .............................................
4.3, 6.20
Shown or Indicated..........................................4.3.1
Unit Price Work--
claims.........................................................1.1.9.3
definition of....................................................1.42
generall l.9, 14.1, 14.5
Unit Prices--
general11.3.1
Determination for ............................................
9.10
Use of Premises, ' ... * ... * .... * .. ... .. ...
6.16, 6.18, 6.30.2.4
Utility owners........ I................13,
6,20, 7.1.7.3, 13.2
Utilization, Partial...................1.28,
5.15, 6.30.2.4, 14.10
Value of the Work ...................................................
11.3
Values, Schedule of ..............................2
6, 2.8-2.9, 14.1
EJCDC GENERAL CONDITIONS
1910-5 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 14 of 58
Variations in Work --Minor
Authorized ........................................ 6.25, 6.27, 9.5
Article or Paragraph
Number
Visits to Site --by ENGINEER....................................9.2
Waiver of Claims --on Final Payment ......................14.15
Waiver of Rights by insured partiq..................5.11,
6.11
Warranty and Guarantee, General --by
CONTRACTOR................................................0.30
Warranty of Title, CONTRACTOR's........................14.3
Work --
Accessto..........................................................13.2
byothers...............................................................
7
Changes in the,., ..................................................
10
Continuing the..................................................6.29
CONTRACTOR May Stop Work
or Terminate...............................................15.5
Coordination of..................................................7.4
Cost of the.................................................11.4-11.5
definition of......................................................1.43
neglected by CONTRACTOR...........................13.14
otherWork............................................................7
OWNER May Stop Work.................................13.10
OWNER May Suspend Work...................13.10,
15.1
Related, Work at Site....................................7.1-7.3
Starting the........................................................2.4
Stopping by CONTRACTOR.............................1.5.5
Stopping by OWNER.................................15.1-15.4
Variation and deviation authorized,
minor ........... �.6
Work Change Directive --
claims pursuant to.............................................10.2
definition of......................................................1.44
principal references to......................3.5.3,
10.1-10.2
Written Amendment --
definition of......................................................1.45
principal references to...............1.10,
3.5, 5.10,15.12,
..........................6.6.2, 6.8.2, 6.19, 10.1, 10.4,
11.2, 12.1,
13.12.2, 14.7.2
Written Clarifications and
Interpretations...................................3.6.3,
9.4, 9.11
Written Notice Required --
by CONTRACTOR............................7,.1,
9.10-9.11,
10.4, 11.2, 12.1
by OWNER ....................9.10-9.11,
10.4, 11.2, 13.14
xV
EICDC GENERAL CONDITIONS 1910-8 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 15 of 58
(This page left blank intentionally)
xvi EJCDC GENERAL CONDITIONS 1910-6 (1990 EDITION)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
Exhibit T" Page 16 of 58
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 which clarify, correct or
change the Bidding Requirements or the Contract
Documents.
1.2. Agreement --The written contract between OWNER
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 form accepted by
ENGINEER which 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 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
ENGINEER, which is signed by CONTRACTOR and
OWNER 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. Contract Documents --The Agreement, Addenda
(which 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
EICDC GENERAL CONDITIONS 1910-9 (1990 Edition)
wJ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
same are more specifically identified in the Agreement,
together with all Written Amendments, Change Orders,
Work Change Directives, Field Orders and ENGINEER's
written interpretations and clarifications issued pursuant to
paragraphs 3.5, 3.6.1 and 3.6.3 on or after the Effective
Date of the Agreement. Shop Drawing submittals
approved pursuant to paragraphs 6.26 and 6.27 and the
reports and drawings referred to in paragraphs 4.2.1 and
4.2.2 are not Contract Documents.
1.11. Contract Price --The moneys payable by
OWNER to CONTRACTOR for completion of the Work
in accordance with the Contract Documents as stated in
the Agreement (subject to the provisions of
paragraph 1 1.9.1 in the case of Unit Price Work).
1.12. 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 ENGINEER's
written recommendation of final payment in accordance
with paragraph 14.13.
1.13. CONTRACTOR --The person, firm or corporation
with whom OWNER has entered into the Agreement.
1.14. defective --An adjective which when modifying
the word Work refers to Work that is unsatisfactory, faulty
or deficient in that it does not conform to the Contract
Documents, or does not meet the requirements of any
inspection, reference standard, test or approval referred to
in the Contract Documents, or has been damaged prior to
ENGINEER's recommendation of final payment (unless
responsibility for the protection thereof has been assumed
by OWNER at Substantial Completion in accordance with
paragraph 14.8 or 14.10).
1.15. Drawings —The drawings which show the scope,
extent and character of the Work to be furnished and
performed by CONTRACTOR and which have been
prepared or approved by ENGINEER and are referred to
in the Contract Documents. Shop drawings are not
Drawings as so defined.
1.16. 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.
1.17. ENGINEER —The person, firm or corporation
named as such in the Agreement.
1.18. ENGINEER's Consultant --A person, firm or
corporation having a contract with ENGINEER to fumish
services as ENGINEER's independent professional
associate or consultant with respect to the Project and who
is identified as such in the Supplementary Conditions.
1.19. Field Orderv-A written order issued by
ENGINEER which orders minor changes in the Work in
accordance with paragraph 9.5 but which does not involve
a change in the Contract Price or the Contract Times.
Exhibit "D" Page 17 of 58
1.20. General Requirements --Sections of Division 1 of
the Specifications.
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.a. 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 22 b Legal Holidays --shall be those holidays observed
by the City of Fort Collins.
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 --A written notice by OWNER to
the apparent successful bidder stating that upon compliance
by the apparent successful bidder with the conditions
precedent enumerated therein, within the time specified,
OWNER will sign and deliver the Agreement.
1.26. Notice to Proceed --A written notice given by
OWNER to CONTRACTOR (with a copy to ENGINEER)
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. OWNER --The public body or authority,
corporation, association, firm or person with whom
CONTRACTOR has entered into the Agreement and for
whom the Work is to be provided.
1.28, Partial Utilization --Use by OWNER 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.a. Radioactive Material --Source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
1954 (42 USC Section 2011 et seq.) as amended from
time to time.
1 32 b Regular Working Hours -Regular working hours
are defined as 7:00am to 6�OO1)m unless otherwise
specified in the General Requirements.
1.33. Resident Project Representative --The authorized
representative of ENGINEER who may be assigned to the
site or any part thereof.
1.34, Samples --Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
1.35. Shop Drawings --All drawings, diagrams,
illustrations, schedules and other data or information
which are specifically prepared or assembled by or for
CONTRACTOR and submitted by CONTRACTOR to
illustrate some portion of the Work.
1.36. 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.
1.37. Subcontractor --An individual, fine 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.
1.38. Substantial Completion --The Work (or a
specified part thereof) has progressed to the point where,
in the opinion of ENGINEER as evidenced by
ENGINEER'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 ENGINEER's written recommendation of
final payment in accordance with paragraph 14.13. The
terms "substantially complete" and "substantially
completed" as applied to all or part of the Work refer to
Substantial Completion thereof.
1.39. Supplementary Conditions --The part of the
Contract Documents which amends or supplements these
General Conditions.
1.40. 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.
1.41. Underground Facilities —All pipelines, conduits,
ducts, cables, wires, manholes, vaults, tanks, tunnels or
other such facilities or attachments, and any encasements
containing such facilities which have been installed
underground to furnish any of the following services or
Exhibit "D" Page 18 of 58
materials: electricity, gases, steam, liquid petroleum
products, telephone or other communications, cable
television, sewage and drainage removal, traffic or other
control systems or water.
1.42. Unit Price Work --Work to be paid for on the basis
of unit prices.
1.43. Work --The entire completed construction or the
various separately identifiable 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,
1.44. Work Change Directive --A written directive to
CONTRACTOR, issued on or after the Effective Date of
the Agreement and signed by OWNER and recommended
by ENGINEER, ordering an addition, deletion or revision
in the Work, or responding to differing or unforeseen
physical conditions under which the Work is to be
performed as provided in paragraph 4.2 or 4.3 or to
emergencies under paragraph 6.23. 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 10.2.
1.45. Written Amendment --A written amendment of the
Contract Documents, signed by OWNER and
CONTRACTOR on or after the Effective Date of the
Agreement and normally dealing with the nonengineering
or nontechnical rather than strictly construction -related
aspects of the Contract Documents.
ARTICLE 2—PRELIMINARY MATTERS
Delivery of Bonds:
2.1. When CONTRACTOR delivers the executed
Agreements to OWNER, CONTRACTOR shall also
deliver to OWNER such Bonds as CONTRACTOR may
be required to furnish in accordance with paragraph 5.1.
Copies of Documents:
2.2. OWNER shall fumish 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.
Commencement of Contract Times; Notice to Proceed.,
2.3. The Contract Times will commence to run on the
thirtieth day after the Effective Date of the Agreement, or,
E]CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
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 `•e_"_M T-4nes
iAIP'F than h ,.tt w.,. _w__ .r.e a,.
of the Agreemem, whieheveiz date is eadieF.
Starting the Work:
2.4. 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 Contend Times commence to run.
Before Starting Construction:
2.5. 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 ENGINEER any conflict, error, ambiguity or
discrepancy which CONTRACTOR may discover and
shall obtain a written interpretation or clarification from
ENGINEER before proceeding with any Work affected
thereby; however, CONTRACTOR shall not be liable to
OWNER or ENGINEER for failure to report any conflict,
error, ambiguity or discrepancy in the Contract
Documents, unless CONTRACTOR knew or reasonably
should have known thereof.
2.6. Within ten days after the Effective Date of the
Agreement (unless otherwise specified in the General
Requirements), CONTRACTOR shall submit to
ENGINEER for review:
2.6.1. 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;
2.6.2. a preliminary schedule of Shop Drawing and
Sample submittals which will list each required
submittal and the times for submitting, reviewing and
processing such submittal;
2.6.2.1. In no case will a schedule be
acceptable which allows less than 21 calendar
days for each review by Engineer.
2.6.3. A preliminary schedule of values for all of
the Work which will include quantities and prices of
items aggregating the Contract Price and will
subdivide the Work into component parts in sufficient
detail to serve as the basis for progress payments
during construction. Such prices will include an
appropriate amount of overhead and profit applicable
to each item of Work.
2.7. Before any Work at the site is started,
CONTRACTOR and ^a a 0ANEshall eeeh deliver to the
ether OWNER, with copies to
Wentified in the ENGINEER.
Exhibit T" Page 19 of 58
certificates of insurance (and other evidence of insurance
rea_q�eest requested by OWNER) which
CONTRACTOR "� o m` ° r ' "'' " is required
to purchase and maintain in accordance with
paragraphs 5 ", `� 5..6 anj 5 -
preconstruction Conference:
2.8. Within twenty days after the Contract Times start to
run, but before any Work at the site is started, a conference
attended by CONTRACTOR, ENGINEER 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 2.6,
procedures for handling Shop Drawings and other
submittals processing Applications for Payment and
maintaining required records.
Initially Acceptable Schedules:
2.9. Unless otherwise provided in the Contract
Documents,
fky1-fim44ywwnt before any work at the site beeins
a conference attended by CONTRACTOR, ENGINEER
and others as apprepm4e designated by OWNER, will be
held to review for acceptability to ENGINEER as provided
below the schedules submitted in accordance with
paragraph 2.6. and Division I - General Requirements.
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 ENGINEER as provided below. The
progress schedule will be acceptable to ENGINEER 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
ENGINEER 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 ENGINEER as providing a workable arrangement for
reviewing and processing the required submittals
CONTRACTOR's schedule of values will be acceptable to
ENGINEER as to form and substance.
ARTICLE 3—CONTRACT DOCUMENTS: INTENT,
AMENDING, REUSE
Intent:
3.1. The Contract Documents comprise the entire
agreement between OWNER and CONTRACTOR
concerning the Work. The Contract Documents are
complementary; what is called for by one is as binding as if
called for by all. The Contract Documents will be
construed in accordance with the law of the place of the
Project.
3.2. It is the intent of the Contract Documents to
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
,I CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
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 which 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 ENGINEER as provided in
paragraph 9.4.
3.3. Reference to Standards and Specifications of
Technical Societies; Reporting and Resolving
Discrepancies:
3.3.1. 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,
3.3.2. 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 6.5,
CONTRACTOR shall report it to ENGINEER in
writing at once, and, CONTRACTOR shall not
proceed with the Work affected thereby (except in an
emergency as authorized by paragraph 6.23) until an
amendment or supplement to the Contract Documents
has been issued by one of the methods indicated in
paragraph 3.5 or 3.6; provided, however, that
CONTRACTOR shall not be liable to OWNER or
ENGINEER for failure to report any such conflict,
error, ambiguity or discrepancy unless
CONTRACTOR knew or reasonably should have
known thereof.
3.3.3. 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 3.5 or 3.6, 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:
3.3.3.1. the provisions of any such standard,
specification, manual, code or instruction (whether
or not specifically incorporated by reference in the
Contract Documents); or
Exhibit T" Page 20 of 58
3.3.3.2. 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 OWNER, CONTRACTOR or
ENGINEER, 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 OWNER,
ENGINEER or any of ENGINEER's Consultants, agents or
employees any duty or authority to supervise or direct the
furnishing or performance of the Work or any duty or
authority to undertake responsibility inconsistent with the
provisions of paragraph 9.13 or any other provision of the
Contract Documents.
3.4. 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 ENGINEER 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
ENGINEER any duty or authority to supervise or direct the
furnishing or performance of the Work or any duty or
authority to undertake responsibility contrary to the
provisions of paragraph 9.13 or any other provision of the
Contract Documents.
Amending and Supplementing Contract Documents:
3.5. 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:
3.5.1. a formal Written Amendment,
3.5.2. a Change Order (pursuant to paragraph 10A),
or
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 42000)
3.5.3. a Work Change Directive (pursuant to
paragraph 10.1).
3.6. 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:
3.6.1. A Field Order (pursuant to paragraph 9.5),
3.6.2. ENGINEER's approval of a Shop Drawing or
Sample (pursuant to paragraphs 6.26 and 6.27), or
3.6.3. ENGINEER's written interpretation or
clarification (pursuant to paragraph 9.4).
Reuse of Documents:
3.7. 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 OWNER (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 ENGINEER or
ENGINEER'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 OWNER and ENGINEER and specific
written verification or adaptation by ENGINEER.
ARTICLE 4—AVAILABILITY OF LANDS;
SUBSURFACE AND PHYSICAL CONDITIONS;
REFERENCE POINTS
Availability of Lands:
4.1. OWNER shall furnish, as indicated in the Contract
Documents, the lands upon which the Work is to be
performed, rights -of -way and easements for access
thereto, and such other lands which are designated for the
use of CONTRACTOR.
statement of Feeerd legal tifle and legal desefioeH of th
lands upon Abieh the Wadi as to be peffemtied an
iflfi• of of ling ..ehan Ws ten against .eh lands
eteeardanee with uyp. i..uv... Laws and ReguleAmem
OWNER 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 OWNER, unless
otherwise provided in the Contract Documents. If
CONTRACTOR and OWNER 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 OWNER's furnishing these lands, rights -of -
way or easements, CONTRACTOR may make a claim
therefor as provided in Articles I I and 12.
Exhibit "D" Page 21 of 58
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.Z 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
ENGINEER 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 ENGINEER 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 OWNER, ENGINEER or any of
ENGINEER'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
EICDC GENERAL CONDITIONS 19I0-8(1990 Edition)
w/CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
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, prempt4y immediately 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 paragraph6.23), notify OWNER and
ENGINEER 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. ENGINEER's Review: ENGINEER will
promptly review the pertinent conditions, determine the
necessity of OWNER's obtaining additional exploration or
tests with respect thereto and advise OWNER in writing
(with a copy to CONTRACTOR) of ENGINEER's
findings and conclusions.
4.2.5. Possible Contract Documents Change: If
ENGINEER 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 9.10 and 11.9; and
4.2.6.4. CONTRACTOR shall not be entitled
to any adjustment in the Contract Price or Times
i f;
4.2.6.4.1. CONTRACTOR knew of
the existence of such conditions at the
time CONTRACTOR made a final
commitment to OWNER in respect of
Contract Price and Contract Times by the
Exhibit "D" Page 22 of 58
r
and/or the enforcement of restrictions, limitations and requirements associated with activities on
the City Property by the Developer as an easement recipient.
N. Off -site Easements and Rights -of -way
1. The Developer is responsible for all costs in acquiring easements and
right-of-way pertaining to both the on -site portion of the Property and the Off -site Improvements
as required by the Final Development Plan Documents. The Developer agrees to use its best
commercially reasonable efforts to acquire all easements and rights -of -way necessary to
complete the Off -Site Improvements as required by the Final Development Documents with the
exception of the properties owned by the following entities, which shall be the City's
responsibility, provided the Developer satisfies the provisions of paragraph 2 below:
i. William J. Warren Trust
ii. James R & Elinor J Chinn
iii. Stoneridge 4`s
iv. Cottonwood Lane & Farms, Ltd.
V. Poudre Valley Health Care, Inc.
vi. "Intel" (comprised of Lucent Technologies, Inc, Raymond Leasing
Corporation, Storage Technology Corporation, and Intel Corporation)
2. It is agreed that the Developer will pay a $172,500.00 cash deposit
("ROW Acquisition Funds") to the City within 30 days from the date of this Agreement to be
used by the City to pay for all costs associated with the negotiation and acquisition of the
easements and right-of-way necessary from the above listed properties to complete the
construction of Harmony Road and Ziegler Road. If at such time that the easements and rights -
of -way to be acquired by the funds deposited by the Developer have been obtained, and ROW
Acquisition Funds remain, the Developer shall be entitled to a prompt reimbursement of said
remaining funds. In addition, the Developer shall provide to the City any legal descriptions it
has available for easements/rights-of-way on the above mentioned parcels within 5 days from the
execution of this Agreement.
0. Off -Site Improvements
1. a. The City shall be responsible for, subject to appropriation therefor
by the City Council, the completion of the final designs and construction of the Off -Site
Improvements provided that the Developer contributes $2,700,000.00 toward the completion of
the Off -Site Improvements. The parties stipulate that the cost to complete design and
construction of the Off -Site Improvements is $5,500,000. If the actual cost to complete design
and construction of the Off -Site Improvements exceeds this amount, the City shall be responsible
for any additional costs; if the actual cost is less, Developer shall not be entitled to any refund.
Of the $2,700,000.00 amount to be contributed by the Developer, $2,000,000.00 is derived from
the financial incentive package agreement between the City and the Developer (Section 4 of the
9180\3\ 10 18975.4 5
9180V11034460.1
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 OWNER 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 I I and 12. However, OWNER, ENGINEER and
ENGINEER'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 OWNER or ENGINEER by the owners of
such Underground Facilities or by others. Unless it is
otherwise expressly provided in the Supplementary
Conditions:
4.3.1.1. OWNER and ENGINEER shall not be
responsible for the accuracy or completeness of any
such information or data; and
4.3.1.2. 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 6.20 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 which was not shown or indicated in the
Contract Documents, CONTRACTOR shall, prempHy
immediately 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 6.23),
identify the owner of such Underground Facility and
E1CDC GENERAL CONDITIONS 1910,8811990 Edition)
wl CITY OF FORT COLLINS MODIFICATIONS (REV 42000)
give written notice to that owner and to OWNER and
ENGINEER. ENGINEER w ll 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
ENGINEER 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 6.20.
CONTRACTOR shah may 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 0 WNER 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 I I and 12, However,
OWNER, ENGINEER and ENGINEER'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.
Reference Points:
4.4. OWNER shall provide engineering surveys to
establish reference points for construction which in
ENGINEER's judgment are necessary to enable
CONTRACTOR to proceed with the Work.
CONTRACTOR shall be responsible for laying out the
Work, shall protect and preserve the established reference
points and shall make no changes or relocations without
the prior written approval of OWNER. CONTRACTOR
shall report to ENGINEER 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, Petroleun4 Hazardous Waste or
Radioactive Material:
4.5.1. OWNER shall be responsible for any
Asbestos, PCBs, Petroleum, Hazardous Waste or
Radioactive Material uncovered or revealed at the site
which was not shown or indicated in Drawings or
Specifications or identified in the Contract
Documents to be within the scope of the Work and
which may present a substantial danger to persons or
property exposed thereto in connection with the Work
at the site. OWNER shall not be responsible for any
such materials brought to the site by
CONTRACTOR, Subcontractors, Suppliers or
anyone else for whom CONTRACTOR is
responsible.
Exhibit T" Page 23 of 58
AYliifif(".fA�lli
.. .
NOW 21
A__
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
ARTICLE 5—BONDS AND INSURANCE
Performance, Payment and Other Bonds:
5.1. CONTRACTOR shall furnish Performance and
Payment Bonds, each in an amount at least equal to the
Contract Price as security for the faithful performance and
payment of all CONTRACTOR's obligations under the
Contract Documents. These Bonds shall remain in effect
at least until one year after the date when final payment
becomes due, except as 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.
5.2. 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 OWNER.
5.3. Licensed Sureties and Insurers; Certificates of
Insurance:
5.3.1. All Bonds and insurance required by the
Contract Documents to be purchased and maintained
by OWNER or 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.
5.3.2. CONTRACTOR shall deliver to OWNER,
with copies to each additional insured identified in the
Supplementary Conditions, certificates of insurance
(and other evidence of insurance requested by
OWNER or any other additional insured) which
CONTRACTOR is required to purchase and maintain
..1
in accordance �.,Laactor ante with paragraph 5.4. e-..,-.n.„
del per to GONTRACT-OR, with eepies to __L
add ♦ nal insu ed u:a'1Aed in the C _ ^ Gendw: ns rtifie.tes ofinsuranee (and _the
Exhibit T" Page 24 of 58
CONTRACTOR's Liability Insurance:
5.4. CONTRACTOR shall purchase and maintain such
liability and other insurance as is appropriate for the Work
being performed and furnished and as will provide
protection from claims set forth below which may arise out
of or result from CONTRACTOR's performance and
furnishing of the Work and CONTRACTOR's other
obligations under the Contract Documents, whether it is to
be performed or furnished by CONTRACTOR, 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:
5.4.1. claims under workers' compensation, disability
benefits and other similar employee benefit acts;
5.4.2. claims for damages because of bodily injury,
occupational sickness or disease, or death of
CONTRACTOR's employees;
5.4.3. claims for damages because of bodily injury,
sickness or disease, or death of any person other than
CONTRACTOR's employees;
5.4.5. claims for damages, other than to the Work
itself, because of injury to or destruction of tangible
property wherever located, including loss of use
resulting therefrom; and
5.4.6, claims for damages because of bodily injury or
death of any person or property damage arising out of
the ownership, maintenance or use of any motor
vehicle.
The policies of insurance so required by this paragraph 5.4
to be purchased and maintained shall:
5.4.7. with respect to insurance required by
paragraphs 5.4.3 through 5.4.6 inclusive and 5A 0'
include as additional insureds (subject to any
customary exclusion in respect of professional
liability), OWNER, ENGINEER, ENGINEER's
Consultants and any other persons or entities identified
in the Supplementary Conditions, all of whom shall be
listed as additional insureds, and include coverage for
the respective officers and employees of all such
additional insureds;
5.4.8. include the specific coverages and be written
for not less than the limits of liability provided in the
Supplementary Conditions or required by Laws or
Regulations, whichever is greater;
5.4.9. include completed operations insurance;
EICDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 412000)
5.4.10. include contractual liability insurance
covering CONTRACTOR's indemnity obligations
under paragraphs 6.12, 6.16 and 6.31 through 6.33;
5.4.11, contain a provision or endorsement that the
coverage afforded will not be cancelled, materially
changed or renewal refused until at least thirty days'
prior written notice has been given to OWNER and
CONTRACTOR and to each other additional insured
identified in the Supplementary Conditions to whom
a certificate of insurance has been issued (and the
certificates of insurance furnished by the
CONTRACTOR pursuant to paragraph 5.3.2 will so
provide);
5.4.12. remain in effect at least until final payment
and at all times thereafter when CONTRACTOR may
be correcting, removing or replacing defective Work
in accordance with paragraph 13.12; and
5.4.13. with respect to completed operations
insurance, and any insurance coverage written on a
claims -made basis, remain in effect for at least two
years after final payment (and CONTRACTOR shall
furnish OWNER and each other additional insured
identified in the Supplementary Conditions to whom
a certificate of insurance has been issued evidence
satisfactory to OWNER and any such additional
insured of continuation of such insurance at final
payment and one year thereafter).
OWNER's Liability Insurance:
5.5. In addition to insurance required to be provided
by CONTRACTOR under paragraph 5.4, OWNER, at
OWNER's option, may purchase and maintain at
OWNER's expense OWNER's own liability insurance as
will protect OWNER against claims which may arise from
operations under the Contract Documents.
Property Insurance:
Exhibit T" Page 25 of 58
5.9. OWNER shall not be responsible for purchasing
and maintaining any property insurance to protect the
interests of CONTRACTOR, Subcontractors or others in
identified in the Supplementm tid;arts. The Fisk eless within sueh 6dentified deduetoble amount, will be beme
EICDC GENERAL CONDITIONS 1910-8 (1990 Edition)
10 w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
Exhibit T" Page 26 of 58
Receipt and Application of Insurance Proceeds:
5.12. Any insured loss under the policies of insurance
required by paragraphs 5.6 and 5.7 will be adjusted with
OWNER and made payable to OWNER as fiduciary for the
insureds, as their interests may appear, subject to the
requirements of any applicable mortgage clause and of
paragraph 5.13. OWNER shall deposit in a separate
account any money so received, and shall distribute it in
accordance with such agreement as the parties in interest
may reach. If no other special agreement is reached the
damaged Work shall be repaired or replaced, the moneys so
received applied on account thereof and the Work and the
cost thereof covered by an appropriate Change Order or
Written Amendment.
5.13. OWNER as fiduciary shall have power to adjust
and settle any loss with the insurers unless one of the
parties in interest shall object in writing within fifteen days
after the occurrence of loss to OWNER'S exercise of this
power. If such objection be made, OWNER as fiduciary
shall make settlement with the insurers in accordance with
such agreement as the parties in interest may reach. If no
such agreement among the parties in interest is reached,
OWNER as fiduciary shall adjust and settle the loss with
the insurers and if -e^ i^^a '^ Witing by
04g0E as fiduedwy shall give bond feF th.
Acceptance of Bonds and Insurance, Option to Replace:
5.14. If eu'h^_ pany (nun.mn __ rani. To ACTOR)
OWNER has any objection to the coverage afforded by or
other provisions of the Bendsr insurance required to be
purchased and maintained by the etheF--parry
CONTRACTOR in accordance with Article 5 on the basis
of non-conformance with the Contract Documents, the
bjeefing pany shall ..o aetifS, the eth is paFty OWNER will
notifv CONTRACTOR in writing within ten fifteen days
after rceeipt delivery of the certificates (o- eir evident
requested-) to OWNER as required by paragraph 2.7.
she ...he. FRayAlpo. . ..L...i
nd a Change OF&F shall be issued
iee ..rdifl..1..
Partial Utilization —Property Insurance:
5.15. If OWNER finds it necessary to occupy or use a
portion or portions of the Work prior to Substantial
EJCDC GENERAL CONDITIONS 1910.8 (1990 Edition)
wl CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
Completion of all the Work, such use or occupancy may
be accomplished in accordance with paragraph 14.10;
provided that no such use or occupancy shall commence
before the insurers providing the property insurance have
acknowledged notice thereof and in writing effected any
changes in coverage necessitated thereby. The insurers
providing the property insurance shall consent by
endorsement on the policy or policies, but the property
insurance shall not be cancelled or permitted to lapse on
account of any such partial use or occupancy.
ARTICLE 6--CONTRACTOR'S
RESPONSIBILITIES
Supervision and Superintendence:
6.1. CONTRACTOR shall supervise, inspect and
direct the Work competently and efficiently, devoting
such attention thereto and applying such skills and
expertise as may be necessary to perform the Work in
accordance with the Contract Documents.
CONTRACTOR shall be solely responsible for the means,
methods, techniques, sequences and procedures of
construction, but CONTRACTOR shall not be responsible
for the negligence of others in the design or specification
of a specific means, method, technique, sequence or
procedure of construction which is shown or indicated in
and expressly required by the Contract Documents.
CONTRACTOR shall be responsible to see that the
completed Work complies accurately with the Contract
Documents.
6.2. CONTRACTOR shall keep on the Work at all
times during its progress a competent resident
superintendent, who shall not be replaced without written
notice to OWNER and ENGINEER except under
extraordinary circumstances. The superintendent will be
CONTRACTOR's representative at the site and shall have
authority to act on behalf of CONTRACTOR. All
communications to the superintendent shall be as binding
as if given to CONTRACTOR.
Labor, Materials and Equipment:
6.3. CONTRACTOR shall provide competent,
suitably qualified personnel to survey, lay out and
construct the Work as required by the Contract
Documents. CONTRACTOR shall at all times maintain
good discipline and order at the site. Except as otherwise
required for the safety or protection of persons or the
Work or property at the site or adjacent thereto, and
except as otherwise indicated in the Contract Documents,
all Work at the site shall be performed during regular
working hours and CONTRACTOR will not permit
overtime work or the performance of Work on Saturday,
Sunday or any legal holiday without OWNER's written
consent given after prior written notice to ENGINEER.
CONTRACTOR shall submit requests to the ENGINEER
no less than 48 hours in advance of any Work to be
performed on Saturday. Sunday. Holidays or outside the
Regular Working Hours.
Exhibit T" Page 27 of 58
6.4. Unless otherwise specified in the General
Requirements, CONTRACTOR shall furnish and assume
full responsibility for all materials, equipment, labor,
transportation, construction equipment and machinery,
tools, appliances, fuel, power, light, heat, telephone, water,
sanitary facilities, temporary facilities and all other
facilities and incidentals necessary for the furnishing,
performance, testing, start-up and completion of the Work.
6.4.1. Purchasing Restrictions: CONTRACTOR
must comply with the City's purchasing restrictions. A
copy of the resolutions are available for review in the
offices of the Purchasing and Risk Management
Division or the City Clerk's office.
6.4.2. Cement Restrictions: City of Fort Collins
Resolution 91-121 requires that suppliers and producers
of cement or products containing cement to certify that
the cement was not made in cement kilns that bum
hazardous waste as a fuel.
6.5. All materials and equipment shall be of good
quality and new, except as otherwise provided in the
Contract Documents. All warranties and guarantees
specifically called for by the Specifications shall expressly
run to the benefit of OWNER. If required by ENGINEER,
CONTRACTOR shall furnish satisfactory evidence
(including reports of required tests) as to the kind and
quality of materials and equipment. All materials and
equipment shall be applied, installed, connected, erected,
used, cleaned and conditioned in accordance with
instructions of the applicable Supplier, except as otherwise
provided in the Contract Documents.
Progress Schedule:
6.6. CONTRACTOR shall adhere to the progress
schedule established in accordance with paragraph 2.9 as it
may be adjusted from time to time as provided below:
6.6.1. CONTRACTOR shall submit to ENGINEER
for acceptance (to the extent indicated in
paragraph 2,9) proposed adjustments in the progress
schedule that will not change the Contract Times (or
Milestones). Such adjustments will conform generally
to the progress schedule then in effect and additionally
will comply with any provisions of the General
Requirements applicable thereto.
6.6.2. Proposed adjustments in the progress schedule
that will change the Contract Times (or Milestones)
shall be submitted in accordance with the requirements
of paragraph 12.1. Such adjustments may only be
made by a Change Order or Written Amendment in
accordance with Article 12.
6.7. Substitutes and VO Equal" Items:
6.7.1. Whenever an item of material or equipment is
specified or described in the Contract Documents by
using the name of a proprietary item or the name of a
particular Supplier, the specification or description is
intended to establish the type, function and quality
required. Unless the specification or description
12 EICDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 412000)
contains or is followed by words reading that no like,
equivalent or "or -equal" item or no substitution is
permitted, other items of material or equipment or
material or equipment of other Suppliers may be
accepted by ENGINEER under the following
circumstances:
6.7.1.1. "Or -Equal": If in ENGINEER's sole
discretion an item of material or equipment
proposed by CONTRACTOR is functionally
equal to that named and sufficiently similar so that
no change in related Work will be required, it may
be considered by ENGINEER as an "or -equal"
item, in which case review and approval of the
proposed item may, in ENGINEER's sole
discretion, be accomplished without compliance
with some or all of the requirements for
acceptance of proposed substitute items.
6.7.1.2. Substitute Items: If in ENGINEER's sole
discretion an item of material or equipment
proposed by CONTRACTOR does not qualify as
an "or -equal" item under subparagraph 6.7.1.1, it
will be considered a proposed substitute item.
CONTRACTOR shall submit sufficient
information as provided below to allow
ENGINEER to determine that the item of material
or equipment proposed is essentially equivalent to
that named and an acceptable substitute therefor.
The procedure for review by the ENGINEER will
include the following as supplemented in the
General Requirements and as ENGINEER may
decide is appropriate under the circumstances.
Requests for review of proposed substitute items
of material or equipment will not be accepted by
ENGINEER from anyone other than
CONTRACTOR. If CONTRACTOR wishes to
furnish or use a substitute item of material or
equipment, CONTRACTOR shall first make
written application to ENGINEER for acceptance
thereof, certifying that the proposed substitute will
perform adequately the functions and achieve the
results called for by the general design, be similar
in substance to that specified and be suited to the
same use as that specified. The application will
state the extent, if any, to which the evaluation
and acceptance of the proposed substitute will
prejudice CONTRACTOR's achievement of
Substantial Completion on time, whether or not
acceptance of the substitute for use in the Work
will require a change in any of the Contract
Documents (or in the provisions of any other
direct contract with OWNER for work on the
Project) to adapt the design to the proposed
substitute and whether or not incorporation or use
of the substitute in connection with the Work is
subject to payment of any license fee or royalty.
All variations of the proposed substitute from that
specified will be identified in the application and
available maintenance, repair and replacement
service will be indicated. The application will
also contain an itemized estimate of all costs or
credits that will result directly or indirectly from
acceptance of such substitute, including costs of
redesign and claims of other contractors affected
Exhibit T" Page 28 of 58
by the resulting change, all of which will be
considered by ENGINEER in evaluating the
proposed substitute. ENGINEER may require
CONTRACTOR to furnish additional data about
the proposed substitute.
6.7.1.3. CONTRACTORS Expense: All data to be
provided by CONTRACTOR in support of any
proposed "or -equal" or substitute item will be at
CONTRACTOR's expense.
6.7.2. Substitute Construction Methods or
Procedures. If a specific means, method, technique,
sequence or procedure of construction is shown or
indicated in and expressly required by the Contract
Documents, CONTRACTOR may furnish or utilize a
substitute means, method, technique, sequence or
procedure of construction acceptable to ENGINEER.
CONTRACTOR shall submit sufficient information to
allow ENGINEER, in ENGINEER's sole discretion, to
determine that the substitute proposed is equivalent to
that expressly called for by the Contract Documents.
The procedure for review by ENGINEER will be
similar to that provided in subparagraph 6.7.1.2.
6.7.3. Engineer's Evaluation: ENGINEER will be
allowed a reasonable time within which to evaluate
each proposal or submittal made pursuant to
paragraphs 6.7.1.2 and 6.7.2. ENGINEER will be the
sole judge of acceptability. No "or -equal" or
substitute will be ordered, installed or utilized without
ENGINEER's prior written acceptance which will be
evidenced by either a Change Order or an approved
Shop Drawing. OWNER may require
CONTRACTOR to furnish at CONTRACTOR'
expense a special performance guarantee or other
surety with respect to any "or -equal" or substitute.
ENGINEER will record time required by
ENGINEER and ENGINEER's Consultants in
evaluating substitutes proposed or submitted by
CONTRACTOR pursuant to paragraphs 6.7.1.2 and
6.7.2 and in making changes in the Contract
Documents (or in the provisions of any other direct
contract with OWNER for work on the Project)
occasioned thereby. Whether or not ENGINEER
accepts a substitute item so proposed or submitted by
CONTRACTOR, CONTRACTOR shall reimburse
OWNER for the charges of ENGINEER and
ENGINEER's Consultants for evaluating each such
proposed substitute item.
6_8. Concerning Subcontractors, Suppliers and
Others:
6.8.1. CONTRACTOR shall not employ any
Subcontractor, Supplier or other person or organization
(including those acceptable to OWNER and
ENGINEER as indicated in paragraph 6.8.2), whether
initially or as a substitute, against whom OWNER or
ENGINEER may have reasonable objection.
CONTRACTOR shall not be required to employ any
Subcontractor, Supplier or other person or organization
to furnish or perform any of the Work against whom
CONTRACTOR has reasonable objection.
E1CDC GENERAL CONDITIONS 1910-5 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
6_9.
CONTRACTOR shall perform not less than 20
percent of the Work with its own forces (that is,
without subcontracting). The 20 percent requirement
shall be understood to refer to the Work the value of
which totals not less than 20 percent of the Contract
Price.
6.8.2. if the Supplementafy Genditiens Biddin
Documents require the identity of certain
Subcontractors, Suppliers or other persons or
organizations (including those who are to furnish the
principal items of materials or equipment) to be
submitted to OWNER in _d..____ of the ,_e.oa..d
date prior to the Effective Date of the Agreement for
acceptance by OWNER and ENGINEER;�if
CONTD 4-PTOR L.... .... L._.:wedA. list .h.A ffl C
APPAFdARAP dth the Suppleme..t., Ge_d:t:......^
OWNER's or ENGINEER's acceptance (either in
writing or by failing to make written objection thereto
by the date indicated for acceptance or objection in
the bidding documents or the Contract Documents) e€
in .. L:..L Amp CO/ I T➢ A CTPR shall guhm-4 An
t..L a ....L..t •., the C-Bst_ of PAPP, ..All he
adjusted by the d:IT Fe_eean the aestoeeasioned-by
:rll�he-i sued�v_:»eeaAmendment signed,will
constitute a condition of the Contract requiring the
use of the named subcontractors, suppliers or other
persons or organization on the Work unless prior
written approval is obtained from OWNER and
ENGINEER. No acceptance by OWNER or
ENGINEER of any such Subcontractor, Supplier or
other person or organization shall constitute a waiver
of any right of OWNER or ENGINEER to reject
defective Work.
6.9.1. CONTRACTOR shall be fully responsible to
OWNER and ENGINEER for all acts and omissions
of the Subcontractors, Suppliers and other persons
and organizations performing or furnishing any of the
Work under a direct or indirect contract with
CONTRACTOR just as CONTRACTOR is
responsible for CONTRACTOR's own acts and
omissions. Nothing in the Contract Documents shall
create for the benefit of any such Subcontractor,
Supplier or other person or organization any
contractual relationship between OWNER or
ENGINEER and any such Subcontractor, Supplier or
other person or organization, nor shall it create any
obligation on the part of OWNER or ENGINEER to
pay or to see to the payment of any moneys due any
such Subcontractor, Supplier or other person or
organization except as may otherwise be required by
Laws and Regulations. OWNER or ENGINEER may
furnish to any subcontractor, supplier or other person
or organization evidence of amounts paid to
CONTRACTOR in accordance with
CONTRACTOR'S "Applications for Payment".
13
Exhibit T" Page 29 of 58
6.9.2. CONTRACTOR shall be solely responsible
for scheduling and coordinating the Work of
Subcontractors, Suppliers and other persons and
organizations performing or furnishing any of the
Work under a direct or indirect contract with
CONTRACTOR. CONTRACTOR shall require all
Subcontractors, Suppliers and such other persons and
organizations performing or furnishing any of the
Work to communicate with the ENGINEER through
CONTRACTOR.
6.10. The divisions and sections of the Specifications and
the identifications of any Drawings shall not control
CONTRACTOR in dividing the Work among
Subcontractors or Suppliers or delineating the Work to be
performed by any specific trade.
6.11. All Work performed for CONTRACTOR by a
Subcontractor or Supplier will be pursuant to an
appropriate agreement between CONTRACTOR and the
Subcontractor or Supplier which specifically binds the
Subcontractor or Supplier to the applicable terms and
conditions of the Contract Documents for the benefit of
OWNER and ENGINEER.
with a o. Leentfaetaf of Saplief whe is Geed As
, dd' fed o the p pfe.'.Jed 'tin
CONTRACTOR and the Subeef.tfaetaf of Supplif..ml
L. ➢ :e a and any etu„f _fe_eFim ^..11 e ppliee to
a if the insurers any.el. pal' i
Patent Fees and Royalties:
6.12. CONTRACTOR shall pay all license fees and
royalties and assume all costs incident to the use in the
performance of the Work or the incorporation in the Work
of any invention, design, process, product or device which
is the subject of patent rights or copyrights held by others.
If a particular invention, design, process, product or device
is specified in the Contract Documents for use in the
performance of the Work and if to the actual knowledge of
OWNER or ENGINEER its use is subject to patent rights
or copyrights calling for the payment of any license fee or
royalty to others, the existence of such rights shall be
disclosed by OWNER in the Contract Documents. To the
fullest extent permitted by Laws and Regulations,
CONTRACTOR shall indemnify and hold harmless
OWNER, ENGINEER, ENGINEER's Consultants and the
officers, directors, employees, agents and other consultants
of each and any of them from and against all claims, costs,
losses and damages arising out of or resulting from any
infringement of patent rights or copyrights incident to the
use in the performance of the Work or resulting from the
incorporation in the Work of any invention, design,
process, product or device not specified in the Contract
Documents.
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
14 w/CITY OF FORT COLLINS MODIFICATIONS(REV 4/2000)
Permits:
6.13. Unless otherwise provided in the Supplementary
Conditions, CONTRACTOR shall obtain and pay for all
construction permits and licenses. OWNER shall assist
CONTRACTOR, when necessary, in obtaining such
permits and licenses. CONTRACTOR shall pay all
governmental charges and inspection fees necessary for
the prosecution of the Work, which are applicable at the
time of opening of Bids, or, if there are no Bids, on the
Effective Date of the Agreement. CONTRACTOR shall
pay all charges of utility owners for connections to the
Work, and OWNER shall pay all charges of such utility
owners for capital costs related thereto such as plant
investment fees.
6.14. Laws and Regulations:
6.14.1. CONTRACTOR shall give all notices and
comply with all Laws and Regulations applicable to
furnishing and performance of the Work. Except
where otherwise expressly required by applicable
Laws and Regulations, neither OWNER nor
ENGINEER shall be responsible for monitoring
CONTRACTOR's compliance with any Laws or
Regulations.
6.14.2. If CONTRACTOR performs any Work
knowing or having reason to know that it is contrary
to Laws or Regulations, CONTRACTOR shall bear
all claims, costs, losses and damages caused by,
arising out of or resulting therefrom; however, it shall
not be CONTRACTOR's primary responsibility to
make certain that the Specifications and Drawings are
in accordance with Laws and Regulations, but this
shall not relieve CONTRACTOR of
CONTRACTOR's obligations under paragraph 3.3.2.
Taxes:
6.15. CONTRACTOR shall pay all sales, consumer,
use and other similar taxes required to be paid by
CONTRACTOR in accordance with the Laws and
Regulations of the place of the Project which are
applicable during the performance of the Work.
6.15.1. OWNER is exempt from Colorado State and
local sales and use taxes on materials to he
permanently incorporated into the proiect. Said taxes
shall not be included in the Contract Price.
Address:
Colorado Department of Revenue
State Capital Annex
Exhibit T" Page 30 of 58
1375 Sherman Street
Denver, Colorado, 80261
Sales and Use Taxes for the State of Colorado.
Regional Transportation District (RTD) and certain
Colorado counties are collected by the State of
Colorado and are included in the Certification of
Exemption.
All applicable Sales and Use Taxes (including State
collected taxes), on any items other than construction
and building materials physically incorporated into the
proiect are to be paid by CONTRACTOR and are to
be included in appropriate bid items.
Use ofPrenthes:
6.16. CONTRACTOR shall confine construction
equipment, the storage of materials and equipment and the
operations of workers to the site and land and areas
identified in and permitted by the Contract Documents and
other land and areas permitted by Laws and Regulations,
rights -of -way, permits and easements, and shall not
unreasonably encumber the premises with construction
equipment or other materials or equipment.
CONTRACTOR shall assume full responsibility for any
damage to any such land or area, or to the owner or
occupant thereof or of any adjacent land or areas, resulting
from the performance of the Work. Should any claim be
made by any such owner or occupant because of the
performance of the Work, CONTRACTOR shall promptly
settle with such other party by negotiation or otherwise
resolve the claim by arbitration or other dispute resolution
proceeding or at law. CONTRACTOR shall, to the fullest
extent permitted by Laws and Regulations, indemnify and
hold harmless OWNER, ENGINEER, ENGINEER's
Consultant and anyone directly or indirectly employed by
any of them from and against all claims, costs, losses and
damages arising out of or resulting from any claim or
action, legal or equitable, brought by any such owner or
occupant against OWNER, ENGINEER or any other party
indemnified hereunder to the extent caused by or based
upon CONTRACTOR's performance of the Work.
6.17. During the progress of the Work, CONTRACTOR
shall keep the premises free from accumulations of waste
materials, rubbish and other debris resulting from the
Work. At the completion of the Work CONTRACTOR
shall remove all waste materials, rubbish and debris from
and about the premises as well as all tools, appliances,
construction equipment and machinery and surplus
materials. CONTRACTOR shall leave the site clean and
ready for occupancy by OWNER at Substantial
Completion of the Work. CONTRACTOR shall restore to
original condition all property not designated for alteration
by the Contract Documents.
6.18. CONTRACTOR shall not load nor permit any part
of any structure to be loaded in any manner that will
endanger the structure, nor shall CONTRACTOR subject
any part of the Work or adjacent property to stresses or
pressures that will endanger it.
Record Documents:
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
6.19. CONTRACTOR shall maintain in a safe place at
the site one record copy of all Drawings, Specifications,
Addenda, Written Amendments, Change Orders, Work
Change Directives, Field Orders and written
interpretations and clarifications (issued pursuant to
paragraph 9.4) in good order and annotated to show all
changes made during construction. These record
documents together with all approved Samples and a
counterpart of all approved Shop Drawings will be
available to ENGINEER for reference. Upon completion
of the Work, and prior to release of final payment, these
record documents, Samples and Shop Drawings will be
delivered to ENGINEER for OWNER.
Safety and Protection:
6.20. CONTRACTOR shall be responsible for
initiating, maintaining and supervising all safety
precautions and programs in connection with the Work.
CONTRACTOR shall take all necessary precautions for
the safety of, and shall provide the necessary protection to
prevent damage, injury or loss to:
6.20.1. all persons on the Work site or who may be
affected by the Work;
6.20.2. all the Work and materials and equipment to
be incorporated therein, whether in storage on or off
the site; and
6.20.3. other property at the site or adjacent thereto,
including trees, shrubs, lawns, walks, pavements,
roadways, structures, utilities and Underground
Facilities not designated for removal, relocation or
replacement in the course of construction.
CONTRACTOR shall comply with all applicable Laws
and Regulations of any public body having jurisdiction for
safety of persons or property or to protect them from
damage, injury or loss; and shall erect and maintain all
necessary safeguards for such safety and protection.
CONTRACTOR shall notify owners of adjacent property
and of Underground Facilities and utility owners when
prosecution of the Work may affect them, and shall
cooperate with them in the protection, removal, relocation
and replacement of their property. All damage, injury or
loss to any property referred to in paragraphs 6.20.2 or
6.20.3 caused, directly or indirectly, in whole or in part, by
CONTRACTOR, any Subcontractor, Supplier or any
other person or organization directly or indirectly
employed by any of them to perform or furnish any of the
Work or anyone for whose ads any of them may be liable,
shall be remedied by CONTRACTOR (except damage or
loss attributable to the fault of Drawings or Specifications
or to the acts or omissions of OWNER or ENGINEER or
ENGINEER's Consultant or anyone employed by any of
them or anyone for whose acts any of them may be liable,
and not attributable, directly or indirectly, in whole or in
part, to the fault or negligence of CONTRACTOR or any
Subcontractor, Supplier or other person or organization
directly or indirectly employed by any of them).
CONTRACTOR's duties and responsibilities for the safety
and protection of the Work shall continue until such time
as all the Work is completed and ENGINEER has issued a
15
Exhibit T" Page 31 of 58
notice to OWNER and CONTRACTOR in accordance
with paragraph 14.13 that the Work is acceptable (except as
otherwise expressly provided in connection with
Substantial Completion).
6.21. Safety Representative:
CONTRACTOR shall designate a qualified and
experienced safety representative at the site whose duties
and responsibilities shall be the prevention of accidents and
the maintaining and supervising of safety precautions and
programs.
Hazard Communication Programs:
6.22. CONTRACTOR shall be responsible for
coordinating any exchange of material safety data sheets or
other hazard communication information required to be
made available to or exchanged between or among
employers at the site in accordance with Laws or
Regulations.
Emergencies:
6.23. In emergencies affecting the safety or protection of
persons or the Work or property at the site or adjacent
thereto, CONTRACTOR, without special instruction or
authorization from OWNER or ENGINEER, is obligated to
act to prevent threatened damage, injury or loss.
CONTRACTOR shall give ENGINEER prompt written
notice if CONTRACTOR believes that any significant
changes in the Work or variations from the Contract
Documents have been caused thereby. If ENGINEER
determines that a change in the Contract Documents is
required because of the action taken by CONTRACTOR in
response to such an emergency, a Work Change Directive
or Change Order will be issued to document the
consequences of such action.
6.24. Shop Drawings and Samples:
6.24.1. CONTRACTOR shall submit Shop Drawings
to ENGINEER for review and approval in accordance
with the accepted schedule of Shop Drawings and
Sample submittals (see paragraph 2.9). All submittals
will be identified as ENGINEER may require and in
the number of copies specified in the General
Requirements. The data shown on the Shop Drawings
will be complete with respect to quantities,
dimensions, specified performance and design criteria,
materials and similar data to show ENGINEER the
materials and equipment CONTRACTOR proposes to
provide and to enable ENGINEER to review the
information for the limited purposes required by
paragraph 6.26.
6.24.2, CONTRACTOR shall also submit Samples to
ENGINEER for review and approval in accordance
with said accepted schedule of Shop Drawings and
Sample submittals. Each Sample will be identified
clearly as to material, Supplier, pertinent data such as
catalog numbers and the use for which intended and
otherwise as ENGINEER may require to enable
ENGINEER to review the submittal for the limited
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
16 w/ CITY OF FORT COLLINS MODIFICATIONS(REV 412000)
purposes required by paragraph 6.26. The numbers
of each Sample to be submitted will be as specified in
the Specifications.
6.25. Submittal Procedures:
6.25.1. Before submitting each Shop Drawing or
Sample, CONTRACTOR shall have determined and
verified:
6.25.1.1. all field measurements, quantities,
dimensions, specified performance criteria,
installation requirements, materials, catalog
numbers and similar information with respect
thereto,
6.25.1.2. all materials with respect to intended
use, fabrication, shipping, handling, storage,
assembly and installation pertaining to the
performance of the Work, and
6.25.1.3. all information relative to
CONTRACTOR's sole responsibilities in respect
of means, methods, techniques, sequences and
procedures of construction and safety precautions
and programs incident thereto.
CONTRACTOR shall also have reviewed and
coordinated each Shop Drawing or Sample with other
Shop Drawings and Samples and with the
requirements of the Work and the Contract
Documents.
6.25.2. Each submittal will bear a stamp or specific
written indication that CONTRACTOR has satisfied
CONTRACTOR's obligations under the Contract
Documents with respect to CONTRACTOR's review
and approval of that submittal.
6.25.3. At the time of each submission,
CONTRACTOR shall give ENGINEER specific
written notice of such variations, if any, that the Shop
Drawing or Sample submitted may have from the
requirements of the Contract Documents, such notice
to be in a written communication separate from the
submittal; and, in addition, shall cause a specific
notation to be made on each Shop Drawing and
Sample submitted to ENGINEER for review and
approval of each such variation.
6,26. ENGINEER will review and approve Shop
Drawings and Samples in accordance with the schedule of
Shop Drawings and Sample submittals accepted by
ENGINEER as required by paragraph 2.9. ENGINEER's
review and approval will be only to determine if the items
covered by the submittals will, after installation or
incorporation in the Work, conform to the information
given in the Contract Documents and be compatible with
the design concept of the completed Project as a
functioning whole as indicated by the Contract
Documents. ENGINEER's review and approval will not
extend to means, methods, techniques, sequences or
procedures of construction (except where a particular
means, method, technique, sequence or procedure of
Exhibit "D" Page 32 of 58
"Financial Assistance Agreement Pertaining to the Development of the Front Range Village
Agreement"), and represents the $2,000,000 originally pledged to the Developer as a
reimbursement for Developer's construction of Off -Site Improvements. This amount will now
be used by the City for the design and construction of the Off -site Improvements. Accordingly,
the Developer hereby waives its rights to reimbursement as specified in Section 4 of the
"Financial Assistance Agreement Pertaining to the Development of the Front Range Village
Agreement". In addition, the City agrees to reimburse the Developer $60,000 for costs already
incurred in the design of the Off -Site Improvements.
b. The Developer shall provide a cash deposit for the remaining
$700,000 of its obligation with the City by April 15, 2007 in order for the City to solicit bids for
the Offsite Improvements. The City agrees, at a minimum, to substantially complete those Off -
Site Improvements needed for the development to operate at the entrances to the Development
from both the Harmony Road and Corbett Drive intersection and the Ziegler Road and Council
Tree Drive intersection by May 16`h 2008. If the Developer fails to provide the $700,000 amount
by the April 15, 2007 deadline, the City is under no obligation to achieve substantial completion
of the Offsite Improvements by May 16`h 2008. So long as the Developer's obligation regarding
Off -site Improvements as set forth in this Paragraph is met, Certificates of Occupancy for the
Project will not be withheld due to the City's failure to substantially complete the Off -Site
Improvements, or any part thereof, on or before May 16, 2008.
c. Any reimbursements which would otherwise be due from
properties other than this Development which benefit from the Off -Site Improvements shall be
paid directly to the City, because the City is assuming the responsibility for construction of the
Off -Site Improvements.
II. Special Conditions
A. Water Lines
1. Prior to the issuance of any building permits for this Development, the
Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City for the
Developer's portion of the 24-inch water main in Ziegler Road. This reimbursement is based
upon the front footage along the water main (1,096.90 feet) which is adjacent to the
Development. The reimbursement plus inflation is currently $29,675.12; however, the inflation
will be adjusted at the time of payment in accordance with the Construction Cost Index for
Denver as published in the Engineering News Record of April 13, 1989.
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements, as shown on the
Final Development Plan Documents, shall be completed by the Developer (or by the City if the
improvements are part of the off -site obligations of the City under Paragraph I(0) of this
Agreement) in accordance with the Final Development Plan Documents prior to the issuance of
any COs for the Development. Completion of storm drainage improvements shall include the
9180A3V1018975.4 6
9180A3V1034460.1
construction is specifically and expressly called for by the
Contract Documents) or to safety precautions or programs
incident thereto. The review and approval of a separate
item as such will not indicate approval of the assembly in
which the item functions. CONTRACTOR shall make
corrections required by ENGINEER, and shall return the
required number of corrected copies of Shop Drawings and
submit as required new Samples for review and approval.
CONTRACTOR shall direct specific attention in writing to
revisions other than the corrections called for by
ENGINEER on previous submittals.
6.27. ENGINEER's review and approval of Shop
Drawings or Samples shall not relieve CONTRACTOR
from responsibility for any variation from the requirements
of the Contract Documents unless CONTRACTOR has in
writing called ENGINEER's attention to each such
variation at the time of submission as required by
paragraph 6.25.3 and ENGINEER has given written
approval of each such variation by a specific written
notation thereof incorporated in or accompanying the Shop
Drawing or Sample approval; nor will any approval by
ENGINEER relieve CONTRACTOR from responsibility
for complying with the requirements of paragraph 6.25.1.
6,28. Where a Shop Drawing or Sample is required by
the Contract Documents or the schedule of Shop Drawing
and Sample submissions accepted by ENGINEER as
required by paragraph 2.9, any related Work performed
prior to ENGINEER's review and approval of the pertinent
submittal will be at the sole expense and responsibility of
CONTRACTOR.
Continuing the Work:
6.29. CONTRACTOR shall carry on the Work and
adhere to the progress schedule during all disputes or
disagreements with OWNER No Work shall be delayed or
postponed pending resolution of any disputes or
disagreements, except as permitted by paragraph 15.5 or as
OWNER and CONTRACTOR may otherwise agree in
writing.
6.30. CONTRACTOR's General Warranty and
Guarantee:
6.30.1. CONTRACTOR warrants and guarantees to
OWNER, ENGINEER and ENGINEER's Consultants
that all Work will be in accordance with the Contract
Documents and will not be defective.
CONTRACTOR's warranty and guarantee hereunder
excludes defects or damage caused by:
6.30.1.1. abuse, modification or improper
maintenance or operation by persons other than
CONTRACTOR, Subcontractors or Suppliers; or
6.30.1.2. normal wear and tear under normal
usage.
6.30.2. CONTRACTOR's obligation to perform and
complete the Work in accordance with the Contract
Documents shall be absolute. None of the following
will constitute an acceptance of Work that is not in
FJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
accordance with the Contract Documents or a release
of CONTRACTOR's obligation to perform the Work
in accordance with the Contract Documents:
6.30.2.1. observations by ENGINEER;
6.30.2.2. recommendation of any progress or
final payment by ENGINEER;
6.30.2.3. the issuance of a certificate of
Substantial Completion or any payment by
OWNER to CONTRACTOR under the Contract
Documents;
6.30.2.4. use or occupancy of the Work or any
part thereof by OWNER;
6.30.2.5. any acceptance by OWNER or any
failure to do so;
6.30.2.6. any review and approval of a Shop
Drawing or Sample submittal or the issuance of a
notice of acceptability by ENGINEER pursuant
to paragraph 14.13;
6,30.2.7. any inspection, test or approval by
others; or
6.30.2.8. any correction of defective Work by
OWNER.
Indemnification:
6.31. To the fullest extent permitted by Laws and
Regulations, CONTRACTOR shall indemnify and hold
harmless OWNER, ENGINEER, ENGINEER's
Consultants and the officers, directors, employees, agents
and other consultants of each and any of them from and
against all claims, costs, losses and damages (including,
but not limited to, all fees and charges of engineers,
architects, attorneys and other professionals and all court
or arbitration or other dispute resolution costs) caused by,
arising out of or resulting from the performance of the
Work, provided that any such claim, cost, loss or damage:
(i) 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) is caused in whole or in part
by any negligent act or omission of CONTRACTOR, any
Subcontractor, any Supplier, any person or organization
directly or indirectly employed by any of them to perform
or furnish any of the Work or anyone for whose acts any
of them may be liable, regardless of whether or not caused
in part by any negligence or omission of a person or entity
indemnified hereunder or whether liability is imposed
upon such indemnified party by Laws and Regulations
regardless of the negligence of any such person or entity.
6.32. In any and all claims against OWNER or
ENGINEER or any of their respective consultants, agents,
officers, directors or employees by any employee (or the
survivor or personal representative of such employee) of
CONTRACTOR, any Subcontractor, any Supplier, any
person or organization directly or indirectly employed by
17
Exhibit T" Page 33 of 58
any of them to perform or furnish any of the Work or
anyone for whose acts any of them may be liable, the
indemnification obligation under paragraph 6.31 shall not
be limited in any way by any limitation on the amount or
type of damages, compensation or benefits payable by or
for CONTRACTOR or any such Subcontractor, Supplier or
other person or organization under workers' compensation
acts, disability benefit acts or other employee benefit acts.
6.33. The indemnification obligations of
CONTRACTOR under paragraph 6.31 shall not extend to
the liability of ENGINEER and ENGINEER's Consultants,
officers, directors, employees or agents caused by the
professional negligence, errors or omissions of any of them.
Survival of Obligations:
6.34. All representations, indemnifications, warranties
and guarantees made in, required by or given in accordance
with the Contract Documents, as well as all continuing
obligations indicated in the Contract Documents, will
survive final payment, completion and acceptance of the
Work and termination or completion of the Agreement.
ARTICLE 7—OTHER WORK
Related Work at Site:
7.1. OWNER may perform other work related to the
Project at the site by OWNER's own forces, or let other
direct contracts therefor which shall contain General
Conditions similar to these, or have other work performed
by utility owners. If the fact that such other work is to be
performed was not noted in the Contract Documents, then:
(i) written notice thereof will be given to CONTRACTOR
prior to starting any such other work and
(ii) CONTRACTOR may make a claim therefor as
provided in Articles I I and 12 if CONTRACTOR believes
that such performance will involve additional expense to
CONTRACTOR or requires additional time and the parties
are unable to agree as to the amount or extent thereof.
7.2. CONTRACTOR shall afford each other contractor
who is a party to such a direct contract and each utility
owner (and OWNER, if OWNER is performing the
additional work with OWNER's employees) proper and
safe access to the site and a reasonable opportunity for the
introduction and storage of materials and equipment and
the execution of such other work and shall properly connect
and coordinate the Work with theirs. Unless otherwise
provided in the Contract Documents, CONTRACTOR
shall do all cutting, fitting and patching of the Work that
may be required to make its several parts come together
properly and integrate with such other work.
CONTRACTOR shall not endanger any work of others by
cutting, excavating or otherwise altering their work and
will only cut or alter their work with the written consent of
ENGINEER and the others whose work will be affected.
The duties and responsibilities of CONTRACTOR under
this paragraph are for the benefit of such utility owners and
other contractors to the extent that there are comparable
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
18 w/ CITY OF FORT COLLINS MODIFICATIONS (REV 412000)
provisions for the benefit of CONTRACTOR in said
direct contracts between OWNER and such utility owners
and other contractors.
7.3. If the proper execution or results of any part of
CONTRACTOR's Work depends upon work performed
by others under this Article 7, CONTRACTOR shall
inspect such other work and promptly report to
ENGINEER in writing any delays, defects or deficiencies
in such other work that render it unavailable or unsuitable
for the proper execution and results of CONTRACTOR's
Work. CONTRACTOR's failure so to report will
constitute an acceptance of such other work as fit and
proper for integration with CONTRACTOR's Work
except for latent or nonapparent defects and deficiencies
in such other work.
Coordination:
7.4. If OWNER contracts with others for the
performance of other work on the Project at the site, the
following will be set forth in Supplementary Conditions:
7.4.1. the person, firm or corporation who will have
authority and responsibility for coordination of the
activities among the various prime contractors will be
identified;
7.4.2, the specific matters to be covered by such
authority and responsibility will be itemized; and
7.4.3. the extent of such authority and
responsibilities will be provided.
Unless otherwise provided in the Supplementary
Conditions, OWNER shall have sole authority and
responsibility in respect of such coordination.
ARTICLE 8--OWNER'S RESPONSIBILITIES
8.1. Except as otherwise provided in these General
Conditions, OWNER shall issue all communications to
CONTRACTOR through ENGINEER.
8.2. In case of termination of the employment of
ENGINEER, OWNER shall appoint an engineer against
whose status under the Contract Documents shall be that
of the former ENGINEER.
8.3. OWNER shall furnish the data required of
OWNER under the Contract Documents promptly and
shall make payments to CONTRACTOR promptly when
they are due as provided in paragraphs 14.4 and 14.13.
8.4. OWNER's duties in respect of providing lands
and easements and providing engineering surveys to
establish reference points are set forth in paragraphs 4.1
and 4.4. Paragraph4.2 refers to OWNER's identifying
and making available to CONTRACTOR copies of
reports of explorations and tests of subsurface conditions
at the site and drawings of physical conditions in existing
Exhibit T" Page 34 of 58
structures at or contiguous to the site that have been utilized
by ENGINEER in preparing the Contract Documents.
8.5. OyAgi ER's ..abilities in a est Of PHFF6ani Rg
8.6. OWNER is obligated to execute Change Orders as
indicated in paragraph 10.4.
8.7. OWNER's responsibility in respect of certain
inspections, tests and approvals is set forth in
paragraph 13.4.
8.8. In connection with OWNER's right to stop Work or
suspend Work, see paragraphs 13.10 and 15.1.
Paragraph 15.2 deals with OWNER's right to terminate
services of CONTRACTOR under certain circumstances.
8.9. The OWNER shall not supervise, direct or have
control or authority over, nor be responsible for,
CONTRACTOR's means, methods, techniques, sequences
or procedures of construction or the safety precautions and
programs incident thereto, or for any failure of
CONTRACTOR to comply with Laws and Regulations
applicable to the furnishing or performance of the Work.
OWNER will not be responsible for CONTRACTOR's
failure to perform or furnish the Work in accordance with
the Contract Documents.
"owl ilp
NZO; IN
ARTICLE 9—ENGINEER'S STATUS DURING
CONSTRUCTION
OWNER's Representative:
9.1. ENGINEER will be OWNER'S representative
during the construction period. The duties and
responsibilities and the limitations of authority of
ENGINEER as OWNER's representative during
construction are set forth in the Contract Documents and
shall not be extended without written consent of OWNER
and ENGINEER.
vssits to Site:
9.2. ENGINEER will make visits to the site at intervals
appropriate to the various stages of construction as
ENGINEER deems necessary in order to observe as an
experienced and qualified design professional the progress
EJCDC GENERAL CONDITIONS 1910-9 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
that has been made and the quality of the various aspects
of CONTRACTOR's executed Work. Based on
information obtained during such visits and observations,
ENGINEER will endeavor for the benefit of OWNER to
determine, in general, if the Work is proceeding in
accordance with the Contract Documents. ENGINEER
will not be required to make exhaustive or continuous on -
site inspections to check the quality or quantity of the
Work. ENGINEERS efforts will be directed toward
providing for OWNER a greater degree of confidence that
the completed Work will conform generally to the
Contract Documents. On the basis of such visits and on -
site observations, ENGINEER will keep OWNER
informed of the progress of the Work and will endeavor to
guard OWNER against defective Work. ENGINEER's
visits and on -site observations are subject to all the
limitations on ENGINEERSs authority and responsibility
set forth in paragraph 9.13, and particularly, but without
limitation, during or as a result of ENGINEERSs on -site
visits or observations of CONTRACTOR's Work
ENGINEER will not supervise, direct, control or have
authority over or be responsible for CONTRACTOR's
means, methods, techniques, sequences or procedures of
construction, or the safety precautions and programs
incident thereto, or for any failure of CONTRACTOR to
comply with Laws and Regulations applicable to the
furnishing or performance of the Work.
Project Representative:
9.3. If OWNER and ENGINEER agree, ENGINEER
will furnish a Resident Project Representative to assist
ENGINEER in providing more continuous observation of
the Work. The responsibilities and authority and
limitations thereon of any such Resident Project
Representative and assistants will be as provided in
paragraphs 9.3 and 9.13 and iH the gupplementaFy
Cenditiens of these General Conditions. If OWNER
designates another representative or agent to represent
OWNER at the site who is not ENGINEER's Consultant,
agent or employee, the responsibilities and authority and
limitations thereon of such other person will be as
provided in the SupplementaFy "a-dition oarapyaph 9.3
9 3 2 Duties and Responsibilities. Representative
will:
9.3 2 1 Schedules Review the progress
19
Exhibit T" Page 35 of 58
20
schedule and other schedules prepared by the
CONTRACTOR and consult with the
ENGINEER concerning acceptability.
9.3.2.2. Conferences and Meetine - Attend
meeting with the CONTRACTOR such as
preconstruction conferences, progress meetings
and other job conferences and prepare and
circulate copies of minutes of meetings.
9.3.2.3. Liaison
9.3.2.3.1. Serve as ENGINEER'S liaison
with CONTRACTOR, working princiw
through CONTRACTOR'S superintendent to
assist the CONTRACTOR in understanding
the Contract Documents.
93.2.3.2. Assist in obtaining from OWNER
additional details or information, when
required, for proper execution of the Work.
9.3.2.3.3. Advise the ENGINEER and
CONTRACTOR of the commencement of
any Work requiring a Shop Drawing or
sample submission if the submission has not
been approved by the ENGINEER.
93.2.4.Review of Work, Rejection of Defective
Work, Inspections and Tests -
9.3.2.4.1. Conduct on -site observations of
the Work in progress to assist the ENGINEER
in determining that the Work is proceeding in
accordance with the Contract Documents,
9.3.2.4.3. Accompany visiting inspectors
representing public or other agencies having
jurisdiction over the Project, record the results
of these inspections and report to the
ENGINEER.
9.3.2.5. Interpretation of Contract
Documents. Report to ENGINEER when
clarifications and interpretations of the Contract
Documents are needed and transmit to
CONTRACTOR clarification and interpretation
of the Contract Documents as issued by the
ENGINEER
9.3.2.6. Modifications. Consider and
evaluate CONTRACTOR'S suggestions for
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
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modification in Drawings or Specifications and
report these recommendations to ENGINEER.
Accurately transmit to CONTRACTOR
decisions issued by the ENGINEER.
9.3.2.7. Records.
observing test procedures; send copies to the
ENGINEER.
9.3.2.7.3. Record names
addresses and telephone numbers of all
CONTRACTORS, subcontractors and
major suppliers of equipment and materials.
9.3.2.8. Reports.
9.3.2.8.1. Furnish ENGINEER oeriodic
reports, as required, of the progress of the
Work and of the CONTRACTOR'S
compliance with the progress schedule and
schedule of shoo Drawing and samole
submittals
9.3.2.8.2. Consult with ENGINEER in
advance of scheduling major tests.
inspections or start of important phases of the
Work.
9.3.2.8.3. Draft or000sed Change Orders
and Work Directive Changes, obtaining
backup material from the CONTRACTOR
and recommend to ENGINEER Change
Orders. Work Directive Changes and field
orders
9.3.2.8.4. Report immediately to
ENGINEER and OWNER the occurrence of
anv accident.
9.3.2.9. Pavment Requests. Review applications
for payment with CONTRACTOR for compliance
with the established procedure for their
submission and forward with recommendation to
Exhibit T" Page 36 of 58
ENGINEER noting particularly the relationship of
the payment requested to the schedule of values.
work completed and materials and equipment
delivered at the site but not incorporated in the
Work.
9.3.2.10. Completion.
9.3.2.10.1. Before ENGINEER issues a
Certificate of Substantial Completion, submit
to CONTRACTOR a list of observed items
requiring correction or completion.
9 3.2 10 2 Conduct final inspection in the
companv of the ENGINEER, OWNER and
CONTRACTOR and prepare a final list of
items to be corrected or completed.
9.3.2.10.3. Observe that all items on the
final list have been corrected or completed and
make recommendations to ENGINEER
concerning acceptance.
9 3 3 Limitation of Authority The Representative shall
not
9 3 3 1 Authorize any deviations from the
Contract Documents or accept any substitute
materials or equipment, unless authorized by the
ENGINEER.
9.3.3.2. Exceed limitations of ENGINEER'S
authority as set forth in the Contract Documents.
9.3.3.3. Undertake any of the responsibilities
of the CONTRACTOR. Subcontractors, or
CONTRACTOR'S superintendent.
9 3 3 4 Advise on, or issue directions relative
to or assume control over any aspect of the
means methods, techniques, sequences or
procedures for construction unless such is
specifically called for in the Contract Documents.
9.3.3.5. Advise on or issue directions
regarding or assume control over saferi
precautions and programs in connections with the
Work.
9 3 3 6 Accept Shop Drawings or sample
submittals from anyone other than the
CONTRACTOR.
9 3 3 7 Authorize OWNER to occupy the
Work in whole or in part.
9 3 3 8 Participate in specialized field or
laboratory tests or inspections conducted by others
except as specifically authorized by the
ENGINEER.
Clarifications and Interpretations:
9.4. ENGINEER will issue with reasonable promptness
such written clarifications or interpretations of the
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 42000)
requirements of the Contract Documents (in the form of
Drawings or otherwise) as ENGINEER may determine
necessary, which shall be consistent with the intent of and
reasonably inferable from the Contract Documents. Such
written clarifications and interpretations will be binding on
OWNER and CONTRACTOR. If OWNER or
CONTRACTOR believes that a written clarification or
interpretation justifies an adjustment in the Contract Price
or the Contract Times and the parties are unable to agree
to the amount or extent thereof, if any, OWNER or
CONTRACTOR may make a written claim therefor as
provided in Article I 1 or Article 12.
Authorized Variations in Work:
9.5. ENGINEER may authorize minor variations in
the Work from the requirements of the Contract
Documents which do not involve an adjustment in the
Contract Price or the Contract Times and are compatible
with the design concept of the completed Project as a
functioning whole as indicated by the Contract
Documents. These may be accomplished by a Field Order
and will be binding on OWNER and also on
CONTRACTOR who shall perform the Work involved
promptly. If OWNER or CONTRACTOR believes that a
Field Order justifies an adjustment in the Contract Price or
the Contract Times and the parties are unable to agree as
to the amount or extent thereof, OWNER or
CONTRACTOR may make a written claim therefor as
provided in Article 11 or 12.
Rejecting Defective Work:
9.6. ENGINEER will have authority to disapprove or
reject Work which ENGINEER believes to be defective,
or that ENGINEER believes will not produce a completed
Project that conforms to the Contract Documents or that
will prejudice the integrity of the design concept of the
completed Project as a functioning whole as indicated by
the Contract Documents. ENGINEER will also have
authority to require special inspection or testing of the
Work as provided in paragraph 13.9, whether or not the
Work is fabricated, installed or completed.
Shop Drawings, Change Orders and Payments:
9.7. In connection with ENGINEER's authority as to
Shop Drawings and Samples, see paragraphs 6.24 through
6.28 inclusive.
9.8. In connection with ENGINEER's authority as to
Change Orders, see Articles 10, 11, and 12.
9.9. In connection with ENGINEER's authority as to
Applications for Payment, see Article 14.
Determinations for Unit Prices:
9.10. ENGINEER will determine the actual quantities
and classifications of Unit Price Work performed by
CONTRACTOR. ENGINEER will review with
CONTRACTOR the ENGINEER's preliminary
determinations on such matters before rendering a written
decision thereon (by recommendation of an Application
21
Exhibit T" Page 37 of 58
for Payment or otherwise). ENGINEER's written decision
thereon will be final and binding upon OWNER and
CONTRACTOR, unless, within ten days after the date of
any such decision, either OWNER or CONTRACTOR
delivers to the other and to ENGINEER written notice of
intention to appeal from ENGINEER's decision and: (i) an
appeal from ENGINEER's decision is taken within the time
limits and in accordance with the procedures set forth in
Exhibit GC -A, "Dispute Resolution Agreement", entered
into between OWNER and CONTRACTOR pursuant to
Article 16, or (ii) if no such Dispute Resolution Agreement
has been entered into, a formal proceeding is instituted by
the appealing party in a forum of competent jurisdiction to
exercise such rights or remedies as the appealing party may
have with respect to ENGINEER's decision, unless
otherwise agreed in writing by OWNER and
CONTRACTOR. Such appeal will not be subject to the
procedures of paragraph 9.11.
Decisions on Disputes:
9.11. ENGINEER will be the initial interpreter of the
requirements of the Contract Documents and judge of the
acceptability of the Work thereunder. Claims, disputes and
other matters relating to the acceptability of the Work or
the interpretation of the requirements of the Contract
Documents pertaining to the performance and furnishing of
the Work and claims under Articles I 1 and 12 in respect of
changes in the Contract Price or Contract Times will be
referred initially to ENGINEER in writing with a request
for a formal decision in accordance with this paragraph.
Written notice of each such claim, dispute or other matter
will be delivered by the claimant to ENGINEER and the
other party to the Agreement promptly (but in no event
later than thirty days) after the start of the occurrence or
event giving rise thereto, and written supporting data will
be submitted to ENGINEER and the other party within
sixty days after the start of such occurrence or event unless
ENGINEER allows an additional period of time for the
submission of additional or more accurate data in support
of such claim, dispute or other matter. The opposing party
shall submit any response to ENGINEER and the claimant
within thirty days after receipt of the claimant's last
submittal (unless ENGINEER allows additional time).
ENGINEER will render a formal decision in writing within
thirty days after receipt of the opposing party's submittal, if
any, in accordance with this paragraph. ENGINEEWs
written decision on such claim, dispute or other matter will
be final and binding upon OWNER and CONTRACTOR
unless: (i) an appeal from ENGINEER's decision is taken
within the time limits and in accordance with the
procedures set forth in EXHIBIT GC -A, "Dispute
Resolution Agreement", entered into between OWNER and
CONTRACTOR pursuant to Article 16, or (ii) if no such
Dispute Resolution Agreement has been entered into, a
written notice of intention to appeal from ENGINEER's
written decision is delivered by OWNER or
CONTRACTOR to the other and to ENGINEER within
thirty days after the date of such decision and a formal
proceeding is instituted by the appealing party in a forum of
competent jurisdiction to exercise such rights or remedies
as the appealing party may have with respect to such claim,
dispute or other matter in accordance with applicable Laws
and Regulations within sixty days of the date of such
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
22 w/CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
decision, unless otherwise agreed in writing by OWNER
and CONTRACTOR.
9.12. When functioning as interpreter and judge under
paragraphs 9.10 and 9.11, ENGINEER will not show
partiality to OWNER or CONTRACTOR and will not be
liable in connection with any interpretation or decision
rendered in good faith in such capacity. The rendering of
a decision by ENGINEER pursuant to paragraphs 9.10 or
9.11 with respect to any such claim, dispute or other
matter (except any which have been waived by the making
or acceptance of final payment as provided in
paragraph 14.15) will be a condition precedent to any
exercise by OWNER or CONTRACTOR of such rights or
remedies as either may otherwise have under the Contract
Documents or by Laws or Regulations in respect of any
such claim, dispute or other matter-parsum44e- ie o.
9.13. Limitations on ENGINEER's Authority and
Responsibilities:
9.13.1. Neither ENGINEER's authority or
responsibility under this Article 9 or under any other
provision of the Contract Documents nor any decision
made by ENGINEER in good faith either to exercise
or not exercise such authority or responsibility or the
undertaking, exercise or performance of any authority
or responsibility by ENGINEER shall create, impose
or give rise to any duty owed by ENGINEER to
CONTRACTOR, any Subcontractor, any Supplier,
any other person or organization, or to any surety for
or employee or agent of any of them.
9.13.2. ENGINEER will not supervise, direct,
control or have authority over or be responsible for
CONTRACTOR's means, methods, techniques,
sequences or procedures of construction, or the safety
precautions and programs incident thereto, or for any
failure of CONTRACTOR to comply with Laws and
Regulations applicable to the furnishing or
performance of the Work. ENGINEER will not be
responsible for CONTRACTOR's failure to perform
or furnish the Work in accordance with the Contract
Documents.
9,13.3. ENGINEER will not be responsible for the
acts or omissions of CONTRACTOR or of any
Subcontractor, any Supplier, or of any other person or
organization performing or furnishing any of the
Work.
9.13.4. ENGINEER's review of the final Application
for Payment and accompanying documentation and
all maintenance and operating instructions, schedules,
guarantees, Bonds and certificates of inspection, tests
and approvals and other documentation required to be
delivered by paragraph 14.12 will only be to
determine generally that their content complies with
the requirements of, and in the case of certificates of
inspections, tests and approvals that the results
certified indicate compliance with, the Contract
Documents.
9.13.5. The limitations upon authority and
Exhibit "Y Page 38 of 58
responsibility set forth in this paragraph 9.13 shall also
apply to ENGINEER's Consultants, Resident Project
Representative and assistants.
ARTICLE 10—CHANGES IN THE WORK
10.1. Without invalidating the Agreement and without
notice to any surety, OWNER may, at any time or from
time to time, order additions, deletions or revisions in the
Work. Such additions, deletions or revisions will be
authorized by a Written Amendment, a Change Order, or a
Work Change Directive. Upon receipt of any such
document, CONTRACTOR shall promptly proceed with
the Work involved which will be performed under the
applicable conditions of the Contract Documents (except as
otherwise specifically provided).
10.2. If OWNER and CONTRACTOR are unable to
agree as to the extent, if any, of an adjustment in the
Contract Price or an adjustment of the Contract Times that
should be allowed as a result of a Work Change Directive,
a claim may be made therefor as provided in Article I 1 or
Article 12.
10.3. CONTRACTOR shall not be entitled to an increase
in the Contract Price or an extension of the Contract Times
with respect to any Work performed that is not required by
the Contract Documents as amended, modified and
supplemented as provided in paragraphs 3.5 and 3.6, except
in the case of an emergency as provided in paragraph 6.23
or in the case of uncovering Work as provided in
paragraph 13.9.
10.4. OWNER and CONTRACTOR shall execute
appropriate Change Orders recommended by ENGINEER
(or Written Amendments) covering:
10.4.1. changes in the Work which are (i) ordered
by OWNER pursuant to paragraph 10.1, (ii) required
because of acceptance of defective Work under
paragraph 13.13 or correcting defective Work under
paragraph 13.14, or (iii) agreed to by the parties;
10.4.2. changes in the Contract Price or Contract
Times which are agreed to by the parties; and
10.4.3. changes in the Contract Price or Contract
Times which embody the substance of any written
decision rendered by ENGINEER pursuant to
paragraph 9.11;
provided that, in lieu of executing any such Change Order,
an appeal may be taken from any such decision in
accordance with the provisions of the Contract Documents
and applicable Laws and Regulations, but during any such
appeal, CONTRACTOR shall carry on the Work and
adhere to the progress schedule as provided in
paragraph 6.29.
10.5, If notice of any change affecting the general scope
of the Work or the provisions of the Contract Documents
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
(including, but not limited to, Contract Price or Contract
Times) is required by the provisions of any Bond to be
given to a surety, the giving of any such notice will be
CONTRACTOR's responsibility, and the amount of each
applicable Bond will be adjusted accordingly.
Written Agreement are not valid.
ARTICLE II —CHANGE OF CONTRACT PRICE
11.1. The Contract Price constitutes the total
compensation (subject to authorized adjustments) payable
to CONTRACTOR for performing the Work. All duties,
responsibilities and obligations assigned to or undertaken
by CONTRACTOR shall be at CONTRACTOR's expense
without change in the Contract Price.
11.2. The Contract Price may only be changed by a
Change Order or by a Written Amendment. Any claim
for an adjustment in the Contract Price shall be based on
written notice delivered by the party making the claim to
the other party and to ENGINEER promptly (but in no
event later than thirty days) after the start of the
occurrence or event giving rise to the claim and stating the
general nature of the claim. Notice of the amount of the
claim with supporting data shall be delivered within sixty
days after the start of such occurrence or event (unless
ENGINEER allows additional time for claimant to submit
additional or more accurate data in support of the claim)
and shall be accompanied by claimant's written statement
that the adjustment claimed covers all known amounts to
which the claimant is entitled as a result of said
occurrence or event. All claims for adjustment in the
Contract Price shall be determined by ENGINEER in
accordance with paragraph9.11 if OWNER and
CONTRACTOR cannot otherwise agree on the amount
involved. No claim for an adjustment in the Contract
Price will be valid if not submitted in accordance with this
paragraph 11.2.
11.3. The value of any Work covered by a Change
Order or of any claim for an adjustment in the Contract
Price will be determined as follows:
11.3.1. where the Work involved is covered by unit
prices contained in the Contract Documents, by
application of such unit prices to the quantities of the
items involved (subject to the provisions of
23
Exhibit " D" Page 39 of 58
paragraphs 11.9.1 through 11.9.3, inclusive);
11.3.2. where the Work involved is not covered by
unit prices contained in the Contract Documents, by a
mutually agreed payment basis, including lump sum
(which may include an allowance for overhead and
profit not necessarily in accordance with
paragraph 11.6.2);
11.3.3. where the Work involved is not covered by unit
prices contained in the Contract Documents and
agreement to a lump sum is not reached under
paragraph 11.3.2, on the basis of the Cost of the Work
(determined as provided in paragraphs 11.4 and 11.5)
plus a CONTRACTOR's fee for overhead and profit
(determined as provided in paragraph 11.6).
Cost of the Work:
11.4. The term Cost of the Work means the sum of all
costs necessarily incurred and paid by CONTRACTOR in
the proper performance of the Work. Except as otherwise
may be agreed to in writing by OWNER, such costs shall
be in amounts no higher than those prevailing in the
locality of the Project, shall include only the following
items and shall not include any of the costs itemized in
paragraph 11.5:
11.4.].Payroll costs for employees in the direct
employ of CONTRACTOR in the performance of the
Work under schedules of job classifications agreed
upon by OWNER and CONTRACTOR. Such
employees shall include without limitation
superintendents, foremen and other personnel
employed full-time at the site. Payroll costs for
employees not employed full-time on the Work shall
be apportioned on the basis of their time spent on the
Work. Payroll costs shall inelude;- but -fie t be limited to
salaries and wages plus the cost of fringe benefits
which shall include social security contributions,
unemployment, excise and payroll taxes, workers'
compensation, health and FetiremenE benefits benuses;
siek leave, vaeatien --a helid__ _ay applicable thereto.
The expenses of performing Work after regular
working hours, on Saturday, Sunday or legal holidays,
shall be included in the above to the extent authorized
by OWNER.
11.4.2. Cost of all materials and equipment furnished
and incorporated in the Work, including costs of
transportation and storage thereof, and Suppliers' field
services required in connection therewith. All cash
discounts shall accrue to CONTRACTOR unless
OWNER deposits funds with CONTRACTOR with
which to make payments, in which case the cash
discounts shall accrue to OWNER. All trade
discounts, rebates and refunds and returns from sale of
surplus materials and equipment shall accrue to
OWNER, and CONTRACTOR shall make provisions
so that they may be obtained.
11.4.3. Payments made by CONTRACTOR to the
Subcontractors for Work performed or furnished by
Subcontractors. If required by OWNER,
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
24 w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
CONTRACTOR shall obtain competitive bids from
Subcontractors acceptable to OWNER and
CONTRACTOR and shall deliver such bids to
OWNER who will then determine, with the advice of
ENGINEER, which bids, if any, will be accepted. If
any subcontract provides that the Subcontractor is to
be paid on the basis of Cost of the Work plus a fee,
the Subcontractor's Cost of the Work and fee shall be
determined in the same manner as CONTRACTOR's
Cost of the Work and fee as provided in
paragraphs 11.4, 11.5, 11.6 and 11.7. All
subcontracts shall be subject to the other provisions of
the Contract Documents insofar as applicable.
11.4.4. Costs of special consultants (including but
not limited to engineers, architects, testing
laboratories, surveyors, attorneys and accountants)
employed for services specifically related to the
Work.
1 1.4.5. Supplemental costs including the following:
11.4.5.1. The proportion of necessary
transportation, travel and subsistence expenses of
CONTRACTOR's employees incurred in
discharge of duties connected with the Work.
11.4.5.2. Cost, including transportation and
maintenance, of all materials, supplies,
equipment, machinery, appliances, office and
temporary facilities at the site and hand tools not
owned by the workers, which are consumed in the
performance of the Work, and cost less market
value of such items used but not consumed which
remain the property of CONTRACTOR.
11.4.5.3. Rentals of all construction
equipment and machinery and the parts thereof
whether rented from CONTRACTOR or others in
accordance with rental agreements approved by
OWNER with the advice of ENGINEER, and the
costs of transportation, loading, unloading,
installation, dismantling and removal thereof --all
in accordance with terms of said rental
agreements. The rental of any such equipment,
machinery or parts shall cease when the use
thereof is no longer necessary for the Work.
11.4.5.4. Sales, consumer, use or similar taxes
related to the Work, and for which
CONTRACTOR is liable, imposed by Laws and
Regulations.
11.4.5.5. Deposits lost for causes other than
negligence of CONTRACTOR, any
Subcontractor or anyone directly or indirectly
employed by any of them or for whose acts any
of them may be liable, and royalty payments and
fees for permits and licenses.
11.4.5.6. Losses and damages (and related
expenses) caused by damage to the Work, not
compensated by insurance or otherwise, sustained
by CONTRACTOR in connection with the
Exhibit T" Page 40 of 58
performance and furnishing of the Work (except
losses and damages within the deductible amounts
of property insurance established by OWNER in
accordance with paragraph 5.9), provided they
have resulted from causes other than the
negligence of CONTRACTOR, any
Subcontractor, or anyone directly or indirectly
employed by any of them or for whose acts any of
them may be liable. Such losses shall include
settlements made with the written consent and
approval of OWNER. No such losses, damages
and expenses shall be included in the Cost of the
Work for the purpose of determining
CONTRACTOR's fee. If, however, any such loss
or damage requires reconstruction and
CONTRACTOR is placed in charge thereof,
CONTRACTOR shall be paid for services a fee
proportionate to that stated in paragraph 11.6.2.
11A.5.7. The cost of utilities, fuel and sanitary
facilities at the site.
11.4.5.8. Minor expenses such as telegrams,
long distance telephone calls, telephone service at
the site, expressage and similar petty cash items in
connection with the Work.
11.4.5.9. Cost of premiums for additional Bonds
and insurance required because of changes in the
Work.
11.5. The term Cost of the Work shall not include any of
the following:
11.5.1. Payroll costs and other compensation of
CONTRACTOR' officers, executives, principals (of
partnership and sole proprietorships), general managers,
engineers, architects, estimators, attorneys, auditors,
accountants, purchasing and contracting agents,
expediters, timekeepers, clerks and other personnel
employed by CONTRACTOR whether at the site or in
CONTRACTOR's principal or a branch office for
general administration of the Work and not specifically
included in the agreed upon schedule of job
classifications referred to in paragraph 11.4.1 or
specifically covered by paragraph 11.4.4—all of which
are to be considered administrative costs covered by the
CONTRACTOR' fee.
11.5.2. Expenses of CONTRACTORS principal and
branch offices other than CONTRACTOR' office at
the site.
11.5.3. Any part of CONTRACTOR' capital
expenses, including interest on CONTRACTOR'S
capital employed for the Work and charges against
CONTRACTOR for delinquent payments.
11.5.4. Cost of premiums for all Bonds and for all
insurance whether or not CONTRACTOR is required
by the Contract Documents to purchase and maintain
the same (except for the cost of premiums covered by
subparagraph 11.4.5.9 above).
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 42000)
11.5.5. Costs due to the negligence of
CONTRACTOR, any Subcontractor, or anyone
directly or indirectly employed by any of them or for
whose acts any of them may be liable, including but
not limited to, the correction of defective Work,
disposal of materials or equipment wrongly supplied
and making good any damage to property.
11.5.6. Other overhead or general expense costs of
any kind and the costs of any item not specifically and
expressly included in paragraph 11.4.
11.6. The CONTRACTOR's fee allowed to
CONTRACTOR for overhead and profit shall be
determined as follows:
11.6.1. a mutually acceptable fixed fee; or
11.6.2. if a fixed fee is not agreed upon, then a fee
based on the following percentages of the various
portions of the Cost of the Work:
11.6.2.1. for costs incurred under
paragraphs 11.4.1 and 11.4.2, the
CONTRACTORS fee shall be fifteen percent;
11.6.2.2. for costs incurred under
paragraph 11.4.3, the CONTRACTOR's fee shall
be five percent;
11.6.2.3. where one or more tiers of
subcontracts are on the basis of Cost of the Work
plus a fee and no fixed fee is agreed upon, the
intent of paragraphs 11.4.1, 11.4.2, 11.4.3 and
11.6.2 is that the Subcontractor who actually
performs or furnishes the Work, at whatever tier,
will be paid a fee of fifteen percent of the costs
incurred by such Subcontractor under paragraphs
11.4.1 and 11.4.2 and that any higher tier
Subcontractor and CONTRACTOR will each be
paid a fee of fi a ____.._. of the amouRt paid to
the nega lewef fief o, leeentFaet__, to be negotiated
in good faith with the OWNER but not to exceed
five percent of the amount paid to the next lower
tier Subcontractor.
11.6.2.4. no fee shall be payable on the basis
of costs itemized under paragraphs 11.4.4, 11.4.5
and 11.5;
11.6.2.5. the amount of credit to be allowed
by CONTRACTOR to OWNER for any change
which results in a net decrease in cost will be the
amount of the actual net decrease in cost plus a
deduction in CONTRACTOR's fee by an amount
equal to five percent of such net decrease; and
11.6.2.6. when both additions and credits are
involved in any one change, the adjustment in
CONTRACTOR's fee shall be computed on the
basis of the net change in accordance with
paragraphs 11.6.2.1 through 11.6.2.5,inclusive.
11.7. Whenever the cost of any Work is to be
25
Exhibit "D" Page 41 of 58
determined pursuant to paragraphs 11.4 and 11.5,
CONTRACTOR will establish and maintain records
thereof in accordance with generally accepted accounting
practices and submit in form acceptable to ENGINEER an
itemized cost breakdown together with supporting data.
Cash Allowances:
11.8. It is understood that CONTRACTOR has included
in the Contract Price all allowances so named in the
Contract Documents and shall cause the Work so covered
to be furnished and performed for such sums as may be
acceptable to OWNER and ENGINEER. CONTRACTOR
agrees that:
11.8.1. the allowances include the cost to
CONTRACTOR (less any applicable trade discounts)
of materials and equipment required by the allowances
to be delivered at the site, and all applicable taxes; and
11.8.2. CONTRACTOR's costs for unloading and
handling on the site, labor, installation costs, overhead,
profit and other expenses contemplated for the
allowances have been included in the Contract Price
and not in the allowances and no demand for
additional payment on account of any of the foregoing
will be valid.
Prior to final payment, an appropriate Change Order will be
issued as recommended by ENGINEER to reflect actual
amounts due CONTRACTOR on account of Work covered
by allowances, and the Contract Price shall be
correspondingly adjusted.
11.9. Unit Price Work:
11.9.1. Where the Contract Documents provide that all
or part of the Work is to be Unit Price Work, initially
the Contract Price will be deemed to include for all
Unit Price Work an amount equal to the sum of the
established unit prices for each separately identified
item of Unit Price Work times the estimated quantity
of each item as indicated in the Agreement. The
estimated quantities of items of Unit Price Work are
not guaranteed and are solely for the purpose of
comparison of Bids and determining an initial Contract
Price. Determinations of the actual quantities and
classifications of Unit Price Work performed by
CONTRACTOR will be made by ENGINEER in
accordance with paragraph 9.10.
11.9.2. Each unit price will be deemed to include an
amount considered by CONTRACTOR to be adequate
to cover CONTRACTOR's overhead and profit for
each separately identified item.
11.9.3.OWNER or CONTRACTOR may make a
claim for an adjustment in the Contract Price in
accordance with Article 1 I if:
11.9.3.1. the quantity of any item of Unit Price
Work performed by CONTRACTOR differs
materially and significantly from the estimated
quantity of such item indicated in the Agreement;
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
26 wl CITY OF FORT COLLINS MODIFICATIONS(REV 4/2000)
and
11.9.3.2. there is no corresponding adjustment
with respect to any other item of Work; and
11.9.3.3. if CONTRACTOR believes that
CONTRACTOR is entitled to an increase in
Contract Price as a result of having incurred
additional expense or OWNER believes that
OWNER is entitled to a decrease in Contract Price
and the parties are unable to agree as to the
amount of any such increase or decrease.
I 1 9.3 4 CONTRACTOR acknowledges that
the OWNER has the right to add or delete items in
the Bid or change quantities at OWNER'S sole
discretion without affecting the Contract Price of
any remaining item so long as the deletion or
addition does not exceed twenty-five percent of
the original total Contract Price.
ARTICLE 12—CHANGE OF CONTRACT TIMES
12.1. The Contract Times (or Milestones) may only be
changed by a Change Order or a Written Amendment.
Any claim for an adjustment of the Contract Times (or
Milestones) shall be based on written notice delivered by
the party making the claim to the other party and to
ENGINEER promptly (but in no event later than thirty
days) after the occurrence of the event giving rise to the
claim and stating the general nature of the claim. Notice
of the extent of the claim with supporting data shall be
delivered within sixty days after such occurrence (unless
ENGINEER allows additional time to ascertain more
accurate data in support of the claim) and shall be
accompanied by the claimant's written statement that the
adjustment claimed is the entire adjustment to which the
claimant has reason to believe it is entitled as a result of
the occurrence of said event. All claims for adjustment in
the Contract Times (or Milestones) shall be determined by
ENGINEER in accordance with paragraph 9.11 if
OWNER and CONTRACTOR cannot otherwise agree.
No claim for an adjustment in the Contract Times (or
Milestones) will be valid if not submitted in accordance
with the requirements of this paragraph 12.1.
12.2. .All time limits stated in the Contract Documents
are of the essence of the Agreement.
12.3. Where CONTRACTOR is prevented from
completing any part of the Work within the Contract
Times (or Milestones) due to delay beyond the control of
CONTRACTOR, the Contract Times (or Milestones) will
be extended in an amount equal to time lost due to such
delay if a claim is made therefor as provided in
paragraph 12.1. Delays beyond the control of
CONTRACTOR shall include, but not be limited to, acts
or neglect by OWNER, acts or neglect of utility owners or
other contractors performing other work as contemplated
by Article 7, fires, floods, epidemics, abnormal weather
conditions or acts of God. Delays attributable to and
Exhibit T" Page 42 of 58
certification by a professional engineer licensed in Colorado that such improvements have been
constructed in conformance with the Final Development Plan Documents ("Storm
Certification"). The City shall have at least two weeks to review said Storm Certification prior to
the issuance of any CO for the Development.
2. The Developer shall be responsible for maintaining the structural integrity
and operational functions of all drainage facilities throughout the build -out of the Development.
If, at any time following approval of the Storm Certification of said drainage facilities and during
the construction of structures and/or lots within the Development, the City deems that said
drainage facilities no longer comply with the Final Development Plan Documents, the Developer
shall bring such facilities back up to the standards and specifications as shown on the Final
Development Plan Documents. Failure to maintain the structural integrity and operational
function of said drainage facilities following issuance of the Storm Certification shall result in
the withholding of the issuance of additional building permits and/ or COs for the Development
until such drainage facilities are repaired to standards set forth in the Final Development Plan
Documents.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the approved Final Development Plan Documents to stabilize all
over -lot grading in and adjacent to this Development. The Developer shall also be required to
post a letter of credit in the amount of $235,907.00 ("Security Deposit") prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control measures
shown on the approved Final Development Plan Documents. The Security Deposit shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and
Construction Standards ("Criteria"). The City shall return that portion of the Security Deposit,
on a proportionate basis, upon the Issuance of a CO for any portion of the Development. The
amount released for the Security Deposit shall be calculated based on the relationship of the
square footage for that portion of the Development subject to the issued CO to the entire
Development. If, at any time, the Developer fails to abide by the provisions of the approved
Final Development Plan Documents or the Criteria, notwithstanding any provisions contained in
paragraph III(J) to the contrary, after notice and an opportunity to cure as provided in paragraph
III(J), the City may enter upon the Development for the purpose of making such improvements
and undertaking such activities as may be necessary to ensure that the provisions of the Final
Development Plan Documents and the Criteria are properly enforced. The City may apply such
portion of the Security Deposit as may be necessary to pay all costs incurred by the City in
undertaking the administration, construction, and/or installation of the erosion control measures
required by the Final Development Plan Documents and the Criteria. In addition, the City shall
have the option to withhold building permits and COs, as stated in Paragraph III.D of this
Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the
erosion control measures throughout the build -out of this Development.
4. The Development shall be graded to drain in the configuration shown on
the Final Development Plan Documents. To ensure performance, the following additional
requirements shall be followed for development of the Development:
a. Prior to the issuance of a CO for any building on the Development,
the Developer shall provide the City with an individual grading
918013V1019975.4 7
9180\3\1034460.1
within the control of a Subcontractor or Supplier shall be
deemed to be delays within the control of CONTRACTOR.
12.4. Where CONTRACTOR is prevented from
completing any part of the Work within the Contract Times
(or Milestones) due to delay beyond the control of both
OWNER and CONTRACTOR, an extension of the
Contract Times (or Milestones) in an amount equal to the
time lost due to such delay shall be CONTRACTOR's sole
and exclusive remedy for such delay. In no event shall
OWNER be liable to CONTRACTOR, any Subcontractor,
any Supplier, any other person or organization, or to any
surety for or employee or agent of any of them, for
damages arising out of or resulting from (i) delays caused
by or within the control of the CONTRACTOR, or
(ii) delays beyond the control of both parties including, but
not limited to, fires, floods, epidemics, abnormal weather
conditions, acts of God or acts or neglect by utility owners
or other contractors performing other work as contemplated
by Article 7.
ARTICLE 13—TESTS AND INSPECTIONS;
CORRECTION, REMOVAL OR ACCEPTANCE OF
DEFECTIVE WORK
13.1. Notice of Defects:
Prompt notice of all defective Work of which OWNER or
ENGINEER have actual knowledge will be given to
CONTRACTOR All defective Work may be rejected,
corrected or accepted as provided in this Article 13.
Access to Work:
13.2. OWNER, ENGINEER, ENGINEER's Consultants,
other representatives and personnel of OWNER,
independent testing laboratories and governmental agencies
with jurisdictional interests will have access to the Work at
-,�,�,e times •' ^s for their observation, inspecting and
testing. CONTRACTOR shall provide them proper and
safe conditions for such access and advise them of
CONTRACTOR's site safety procedures and programs so
that they may comply therewith as applicable.
Tests and Inspections:
13.3. CONTRACTOR shall give ENGINEER timely
notice of readiness of the Work for all required inspections,
tests or approvals, and shall cooperate with inspection and
testing personnel to facilitate required inspections or tests.
13.4. OWNER shall employ and pay for the services of
an independent testing laboratory to perform all
inspections, tests, or approvals required by the Contract
Documents except:
13.4.1. for inspections, tests or approvals covered
by paragraph 13.5 below;
13.4.2. that costs incurred in connection with tests
or inspections conducted pursuant to paragraph 13.9
EICDC GENERAL CONDITIONS 1910-5 (1990 Edition)
col CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
below shall be paid as provided in said
paragraph 13.9; and
13.4.3. as otherwise specifically provided in the
Contract Documents.
13.5. If Laws or Regulations of any public body having
jurisdiction require any Work (or part thereof) specifically
to be inspected, tested or approved by an employee or
other representative of such public body, CONTRACTOR
shall assume full responsibility for arranging and
obtaining such inspections, tests or approvals, pay all costs
in connection therewith, and furnish ENGINEER the
required certificates of inspection, or approval.
CONTRACTOR shall also be responsible for arranging
and obtaining and shall pay all costs in connection with
any inspections, tests or approvals required for OWNER's
and ENGINEER's acceptance of materials or equipment to
be incorporated in the Work, or of materials, mix designs,
or equipment submitted for approval prior to
CONTRACTOR's purchase thereof for incorporation in
the Work.
13.6. If any Work (or the work of others) that is to be
inspected, tested or approved is covered by
CONTRACTOR without written concurrence of
ENGINEER, it must, if requested by ENGINEER, be
uncovered for observation.
13.7. Uncovering Work as provided in paragraph 13.6
shall be at CONTRACTOR's expense unless
CONTRACTOR has given ENGINEER timely notice of
CONTRACTOR's intention to cover the same and
ENGINEER has not acted with reasonable promptness in
response to such notice.
Uncovering Work:
13.8. If any Work is covered contrary to the written
request of ENGINEER, it must, if requested by
ENGINEER, be uncovered for ENGINEER's observation
and replaced at CONTRACTOR's expense.
13.9. If ENGINEER considers it necessary or advisable
that covered Work be observed by ENGINEER or
inspected or tested by others, CONTRACTOR, at
ENGINEER's request, shall uncover, expose or otherwise
make available for observation, inspection or testing as
ENGINEER may require, that portion of the Work in
question, furnishing all necessary labor, material and
equipment. If it is found that such Work is defective,
CONTRACTOR shall pay all claims, costs, losses and
damages caused by, arising out of or resulting from such
uncovering, exposure, observation, inspection and testing
and of satisfactory replacement or reconstruction,
(including but not limited to all costs of repair or
replacement of work of others); and OWNER shall be
entitled to an appropriate decrease in the Contract Price,
and, if the parties are unable to agree as to the amount
thereof, may make a claim therefor as provided in
Article 11. If, however, such Work is not found to be
defective, CONTRACTOR shall be allowed an increase in
the Contract Price or an extension of the Contract Times
(or Milestones), or both, directly attributable to such
27
Exhibit "El" Page 43 of 58
uncovering, exposure, observation, inspection, testing,
replacement and reconstruction; and, if the parties are
unable to agree as to the amount or extent thereof,
CONTRACTOR may make a claim therefor as provided in
Articles 11 and 12.
OWNER May Stop the Work:
13.10. If the Work is defective, or CONTRACTOR fails
to supply sufficient skilled workers or suitable materials or
equipment, or fails to furnish or perform the Work in such a
way that the completed Work will conform to the Contract
Documents, OWNER may order CONTRACTOR to stop
the Work, or any portion thereof, until the cause for such
order has been eliminated; however, this right of OWNER
to stop the Work shall not give rise to any duty an the part
of OWNER to exercise this right for the benefit of
CONTRACTOR or any surety or other party.
Correction or Removal of Defective Work:
13.11. if required by ENGINEER, CONTRACTOR shall
promptly, as directed, either correct all defective Work,
whether or not fabricated, installed or completed, or, if the
Work has been rejected by ENGINEER, remove it from the
site and replace it with Work that is not defective.
CONTRACTOR shall pay all claims, costs, losses and
damages caused by or resulting from such correction or
removal (including but not limited to all costs of repair or
replacement of work of others).
13.12. Correction Period.,
13.12.1. If within efie year two year after the date of
Substantial Completion or such longer period of time as
may be prescribed by Laws or Regulations or by the
terms of any applicable special guarantee required by
the Contract Documents or by any specific provision of
the Contract Documents, any Work is found to be
defective, CONTRACTOR shall promptly, without cost
to OWNER and in accordance with OWNER's written
instructions: (i) correct such defective Work, or, if it has
been rejected by OWNER, remove it from the site and
replace it with Work that is not defective, and (ii)
satisfactorily correct or remove and replace any damage
to other Work or the work of others resulting therefrom.
If CONTRACTOR does not promptly comply with the
terms of such instructions, or in an emergency where
delay would cause serious risk of loss or damage,
OWNER may have the defective Work corrected or the
rejected Work removed and replaced, and all claims,
costs, losses and damages caused by or resulting from
such removal and replacement (including but not
limited to all costs of repair or replacement of work of
others) will be paid by CONTRACTOR.
13.12.2.In special circumstances where a particular
item of equipment is placed in continuous service
before Substantial Completion of all the Work, the
correction period for that item may start to run from an
earlier date if so provided in the Specifications or by
Written Amendment.
13.12.3. Where defective Work (and damage to other
E.1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
28 w/ CITY OF FORT COLLINS MODIFICATIONS(REV 4/2000)
Work resulting therefrom) has been corrected,
removed or replaced under this paragraph 13.12, the
correction period hereunder with respect to such Work
will be extended for an additional period of one-year
two year after such correction or removal and
replacement has been satisfactorily completed.
Acceptance of Defective Work:
13.13. If, instead of requiring correction or removal and
replacement of defective Work, OWNER (and, prior to
ENGINEER's recommendation of final payment, also
ENGINEER) prefers to accept it, OWNER may do so.
CONTRACTOR shall pay all claims, costs, losses and
damages attributable to OWNER's evaluation of and
determination to accept such defective Work (such costs to
be approved by ENGINEER as to reasonableness). If any
such acceptance occurs prior to ENGINEER's
recommendation of final payment, a Change Order will be
issued incorporating the necessary revisions in the
Contract Documents with respect to the Work; and
OWNER shall be entitled to an appropriate decrease in the
Contract Price, and, if the parties are unable to agree as to
the amount thereof, OWNER may make a claim therefor
as provided in Article 11. If the acceptance occurs after
such recommendation, an appropriate amount will be paid
by CONTRACTOR to OWNER.
OWNER May Correct Defective Work:
13.14. If CONTRACTOR fails within a reasonable time
after written notice from ENGINEER to correct defective
Work or to remove and replace rejected Work as required
by ENGINEER in accordance with paragraph 13.11, or if
CONTRACTOR fails to perform the Work in accordance
with the Contract Documents, or if CONTRACTOR fails
to comply with any other provision of the Contract
Documents, OWNER may, after seven days' written
notice to CONTRACTOR, correct and remedy any such
deficiency. In exercising the rights and remedies under
this paragraph OWNER shall proceed expeditiously. In
connection with such corrective and remedial action,
OWNER may exclude CONTRACTOR from all or part of
the site, take possession of all or part of the Work, and
suspend CONTRACTOR's services related thereto, take
possession of CONTRACTOR's tools, appliances,
construction equipment and machinery at the site and
incorporate in the Work all materials and equipment
stored at the site or for which OWNER has paid
CONTRACTOR but which are stored elsewhere.
CONTRACTOR shall allow OWNER OWNER's
representatives, agents and employees, OWNER's other
contractors and ENGINEER and ENGINEER's
Consultants access to the site to enable OWNER to
exercise the rights and remedies under this paragraph. All
claims, costs, losses and damages incurred or sustained by
OWNER in exercising such rights and remedies will be
charged against CONTRACTOR and a Change Order will
be issued incorporating the necessary revisions in the
Contract Documents with respect to the Work; and
OWNER shall be entitled to an appropriate decrease in the
Contract Price, and, if the parties are unable to agree as to
the amount thereof, OWNER may make a claim therefor
as provided in Article 11. Such claims, costs, losses and
Exhibit T" Page 44 of 58
damages will include but not be limited to all costs of
repair or replacement of work of others destroyed or
damaged by correction, removal or replacement of
CONTRACTOR's defective Work. CONTRACTOR shall
not be allowed an extension of the Contract Times (or
Milestones) because of any delay in performance of the
Work attributable to the exercise by OWNER of OWNER's
rights and remedies hereunder.
ARTICLE 14—PAYMENTS TO CONTRACTOR AND
COMPLETION
Schedule of Values:
14.1. The schedule of values established as provided in
paragraph 2.9 will serve as the basis for progress payments
and will be incorporated into a form of Application for
Payment acceptable to ENGINEER. Progress payments on
account of Unit Price Work will be based on the number of
units completed.
Application for Progress Payment:
14.2. At least twenty days before the date established for
each progress payment (but not more often than once a
month), CONTRACTOR shall submit to ENGINEER for
review an Application for Payment filled out and signed by
CONTRACTOR covering the Work completed as of the
date of the Application and accompanied by such
supporting documentation as is required by the Contract
Documents. If payment is requested on the basis of
materials and equipment not incorporated in the Work but
delivered and suitably stored at the site or at another
location agreed to in writing, the Application for Payment
shall also be accompanied by a bill of sale, invoice or other
documentation warranting that OWNER has received the
materials and equipment free and clear of all Liens and
evidence that the materials and equipment are covered by
appropriate property insurance and other arrangements to
protect OWNER's interest therein, all of which will be
satisfactory to OWNER. The amount of retainage with
respect to progress payments will be as stipulated in the
Agreement. Any funds that are withheld by the OWNER
shall not be subiect to substitution by the CONTRACTOR
with securities or anv arrangements involving an escrow or
custodianship. By executing the application for payment
form the CONTRACTOR expressly waives his right to the
benefits of Colorado Revised Statutes, Section 24-91-101
et sea.
CONTRACTOR's Warranty of Title:
14.3. CONTRACTOR warrants and guarantees that title
to all Work, materials and equipment covered by any
Application for Payment, whether incorporated in the
Project or not, will pass to OWNER no later than the time
of payment free and clear of all Liens.
Review of Applicationsfor Progress Payment.,
14.4. ENGINEER will, within ten days after receipt of
each Application for Payment, either indicate in writing a
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
recommendation of payment and present the Application
to OWNER, or return the Application to CONTRACTOR
indicating in writing ENGINEER's reasons for refusing to
recommend payment. In the latter case, CONTRACTOR
may make the necessary corrections and resubmit the
Application. Ten days after presentation of the
Application for Payment to OWNER with ENGINEER's
recommendation, the amount recommended will (subject
to the provisions of the last sentence of paragraph 14.7)
become due and when due will he paid by OWNER to
CONTRACTOR.
14.5. ENGINEER's recommendation of any payment
requested in an Application for Payment will constitute a
representation by ENGINEER to OWNER, based on
ENGINEER's on -site observations of the executed Work
as an experienced and qualified design professional and on
ENGINEER's review of the Application for Payment and
the accompanying data and schedules, that to the best of
ENGINEER's knowledge, information and belief
14.5.1. the Work has progressed to the point
indicated,
14.5.2. the quality of the Work is generally in
accordance with the Contract Documents (subject to
an evaluation of the Work as a functioning whole
prior to or upon Substantial Completion, to the results
of any subsequent tests called for in the Contract
Documents, to a final determination of quantities and
classifications for Unit Price Work under
paragraph 9.10, and to any other qualifications stated
in the recommendation), and
14.5.3. the conditions precedent to
CONTRACTOR's being entitled to such payment
appear to have been fulfilled insofar as it is
ENGINEER's responsibility to observe the Work.
However, by recommending any such payment
ENGINEER will not thereby be deemed to have
represented that: (i) exhaustive or continuous on -site
inspections have been made to check the quality or the
quantity of the Work beyond the responsibilities
specifically assigned to ENGINEER in the Contract
Documents or (ii) that there may not be other matters or
issues between the parties that might entitle
CONTRACTOR to be paid additionally by OWNER or
entitle OWNER to withhold payment to CONTRACTOR.
14.6. ENGINEER's recommendation of any payment,
including final payment, shall not mean that ENGINEER
is responsible for CONTRACTOR's means, methods,
techniques, sequences or procedures of construction, or
the safety precautions and programs incident thereto, or
for any failure of CONTRACTOR to comply with Laws
and Regulations applicable to the furnishing or
performance of Work, or for any failure of
CONTRACTOR to perform or furnish Work in
accordance with the Contract Documents.
14.7. ENGINEER may refuse to recommend the whole
or any part of any payment if, in ENGINEER's opinion, it
would be incorrect to make the representations to
29
Exhibit T" Page 45 of 58
OWNER referred to in paragraph 14.5. ENGINEER may
also refuse to recommend any such payment, or, because of
subsequently discovered evidence or the results of
subsequent inspections or tests, nullify any such payment
previously recommended, to such extent as may be
necessary in ENGINEER's opinion to protect OWNER
from loss because:
14.7.1. the Work is defective, or completed Work has
been damaged requiring correction or replacement,
14.7.2. the Contract Price has been reduced by
Written Amendment or Change Order,
14.7.3. OWNER has been required to correct
defective Work or complete Work in accordance with
paragraph 13.14, or
14.7.4. ENGINEER has actual knowledge of the
occurrence of any of the events enumerated in
paragraphs 15.2.1 through 15.2.4 inclusive.
OWNER may refuse to make payment of the full amount
recommended by ENGINEER because:
14.7.5. claims have been made against OWNER on
account of CONTRACTOR's performance or furnishing
of the Work,
14.7.6. Liens have been filed in connection with the
Work, except where CONTRACTOR has delivered a
specific Bond satisfactory to OWNER to secure the
satisfaction and discharge of such Liens,
14.7.7. there are other items entitling OWNER to a set-
off against the amount recommended, or
14.7.8. OWNER has actual knowledge of the
occurrence of any of the events enumerated in
paragraphs 14.7.1 through 14.7.3 or paragraphs 15.2.1
through 15.2.4 inclusive;
but OWNER must give CONTRACTOR immediate
written notice (with a copy to ENGINEER) stating the
reasons for such action and promptly pay CONTRACTOR
the amount so withheld, or any adjustment thereto agreed
to by OWNER and CONTRACTOR, when
CONTRACTOR corrects to OWNER's satisfaction the
reasons for such action.
Substantial Completion:
14.8. When CONTRACTOR considers the entire Work
ready for its intended use CONTRACTOR shall notify
OWNER and ENGINEER in writing that the entire Work
is substantially complete (except for items specifically
listed by CONTRACTOR as incomplete) and request that
ENGINEER issue a certificate of Substantial Completion.
Within a reasonable time thereafter, OWNER,
CONTRACTOR and ENGINEER shall make an inspection
of the Work to determine the status of completion. If
ENGINEER does not consider the Work substantially
complete, ENGINEER will notify CONTRACTOR in
writing giving the reasons therefor. If ENGINEER
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
30 w/ CITY OF FORT COLLINS MODIFICATIONS(REV 4/2000)
considers the Work substantially complete, ENGINEER
will prepare and deliver to OWNER a tentative certificate
of Substantial Completion which shall fix the date of
Substantial Completion. There shall be attached to the
certificate a tentative list of items to be completed or
corrected before final payment. OWNER shall have seven
days after receipt of the tentative certificate during which
to make written objection to ENGINEER as to any
provisions of the certificate or attached list. If, after
considering such objections, ENGINEER concludes that
the Work is not substantially complete, ENGINEER will
within fourteen days after submission of the tentative
certificate to OWNER notify CONTRACTOR in writing,
stating the reasons therefor. If, after consideration of
OWNER's objections, ENGINEER considers the Work
substantially complete, ENGINEER will within said
fourteen days execute and deliver to OWNER and
CONTRACTOR a definitive certificate of Substantial
Completion (with a revised tentative list of items to be
completed or corrected) reflecting such changes from the
tentative certificate as ENGINEER believes justified after
consideration of any objections from OWNER. At the
time of delivery of the tentative certificate of Substantial
Completion ENGINEER will deliver to OWNER and
CONTRACTOR a written recommendation as to division
of responsibilities pending final payment between
OWNER and CONTRACTOR with respect to security,
operation, safety, maintenance, heat, utilities, insurance
and warranties and guarantees. Unless OWNER and
CONTRACTOR agree otherwise in writing and so inform
ENGINEER in writing prior to ENGINEER's issuing the
definitive certificate of Substantial Completion,
ENGINEER's aforesaid recommendation will be binding
on OWNER and CONTRACTOR until final payment.
14.9. OWNER shall have the right to exclude
CONTRACTOR from the Work after the date of
Substantial Completion, but OWNER shall allow
CONTRACTOR reasonable access to complete or correct
items on the tentative list.
Partial Utilization:
14.10. Use by OWNER at OWNER's option of any
substantially completed part of the Work, which: (i) has
specifically been identified in the Contract Documents, or
(ii) OWNER, ENGINEER and CONTRACTOR agree
constitutes a separately functioning and usable part of the
Work that can be used by OWNER for its intended
purpose without significant interference with
CONTRACTOR's performance of the remainder of the
Work, may be accomplished prior to Substantial
Completion of all the Work subject to the following:
14.10.1.OWNER at any time may request
CONTRACTOR in writing to permit OWNER to use
any such part of the Work which OWNER believes to
be ready for its intended use and substantially
complete. If CONTRACTOR agrees that such part of
the Work is substantially complete, CONTRACTOR
will certify to OWNER and ENGINEER that such
part of the Work is substantially complete and request
ENGINEER to issue a certificate of Substantial
Completion for that part of the Work.
Exhibit " D" Page 46 of 58
CONTRACTOR at any time may notify OWNER and
ENGINEER in writing that CONTRACTOR considers
any such part of the Work ready for its intended use
and substantially complete and request ENGINEER to
issue a certificate of Substantial Completion for that
part of the Work. Within a reasonable time after either
such request, OWNER, CONTRACTOR and
ENGINEER shall make an inspection of that part of
the Work to determine its status of completion. If
ENGINEER does not consider that part of the Work to
be substantially complete, ENGINEER will notify
OWNER and CONTRACTOR in writing giving the
reasons therefor. If ENGINEER considers that part of
the Work to be substantially complete, the provisions
of paragraphs 14.8 and 14.9 will apply with respect to
certification of Substantial Completion of that part of
the Work and the division of responsibility in respect
thereof and access thereto.
14.10.2. No occupancy or separate operation of part
of the Work will be accomplished prior to compliance
with the requirements of paragraph 5.15 in respect of
property insurance.
Final Inspection:
14.11. Upon written notice from CONTRACTOR that the
entire Work or an agreed portion thereof is complete,
ENGINEER will make a final inspection with OWNER
and CONTRACTOR and will notify CONTRACTOR in
writing of all particulars in which this inspection reveals
that the Work is incomplete or defective. CONTRACTOR
shall immediately take such measures as are necessary to
complete such work or remedy such deficiencies.
Final Application for Payment:
14.12. After CONTRACTOR has completed all such
corrections to the satisfaction of ENGINEER and delivered
in accordance with the Contract Documents all
maintenance and operating instructions, schedules,
guarantees, Bonds, certificates or other evidence of
insurance required by paragraph 5.4, certificates of
inspection, marked -up record documents (as provided in
paragraph 6.19) and other documents, CONTRACTOR
may make application for final payment following the
procedure for progress payments. The final Application for
Payment shall be accompanied (except as previously
delivered) by: (i) all documentation called for in the
Contract Documents, including but not limited to the
evidence of insurance required by subparagraph 5.4.13,
(ii) consent of the surety, if any, to final payment, and
(iii) complete and legally effective releases or waivers
(satisfactory to OWNER) of all Liens arising out of or filed
in connection with the Work. In lieu of such releases or
waivers of Liens and as approved by OWNER,
CONTRACTOR may famish receipts or releases in full
and affidavit of CONTRACTOR that: (i) the releases and
receipts include all labor, services, material and equipment
for which a Lien could be filed, and (ii) all payrolls,
material and equipment bills, and other indebtedness
connected with the Work for which OWNER or OWNER's
property might in any way be responsible have been paid or
otherwise satisfied. If any Subcontractor or Supplier fails
EJCDC GENERAL CONDITIONS 1910-8 11990 Edition)
w/CITY OF FORT COLLINS MODIFICATIONS (REV 412000)
to furnish such a release or receipt in full,
CONTRACTOR may furnish a Bond or other collateral
satisfactory to OWNER to indemnify OWNER against
any Lien. Releases or waivers of liens and the consent of
the surety to finalize payment are to be submitted on
forms conforming to the format of the OWNER'S standard
forms bound in the Project manual.
Final Payment and Acceptance:
14.13. If, on the basis of ENGINEER's observation of
the Work during construction and final inspection, and
ENGINEER's review of the final Application for Payment
and accompanying documentation as required by the
Contract Documents, ENGINEER is satisfied that the
Work has been completed and CONTRACTOR's other
obligations under the Contract Documents have been
fulfilled, ENGINEER will, within ten days after receipt of
the final Application for Payment, indicate in writing
ENGINEER's recommendation of payment and present
the Application to OWNER for payment. At the same
time ENGINEER will also give written notice to OWNER
and CONTRACTOR that the Work is acceptable subject
to the provisions of paragraph 14.15. Otherwise,
ENGINEER will return the Application to
CONTRACTOR, indicating in writing the reasons for
refusing to recommend final payment, in which case
CONTRACTOR shall make the necessary corrections and
resubmit the Application. Thirty days after presentation to
OWNER of the Application and accompanying
documentation, in appropriate form and substance and
with ENGINEER's recommendation and notice of
acceptability, the amount recommended by ENGINEER
will become due and will be paid by OWNER to
CONTRACTOR subject to paragraph 17.6.2 of these
General Conditions.
14.14. If, through no fault of CONTRACTOR, final
completion of the Work is significantly delayed and if
ENGINEER so confirms, OWNER shall, upon receipt of
CONTRACTOR's final Application for Payment and
recommendation of ENGINEER, and without terminating
the Agreement, make payment of the balance due for that
portion of the Work fully completed and accepted. If the
remaining balance to be held by OWNER for Work not
fully completed or corrected is less than the retainage
stipulated in the Agreement, and if Bonds have been
furnished as required in paragraph 5.1, the written consent
of the surety to the payment of the balance due for that
portion of the Work fully completed and accepted shall be
submitted by CONTRACTOR to ENGINEER with the
Application for such payment. Such payment shall be
made under the terms and conditions governing final
payment, except that it shall not constitute a waiver of
claims.
Waiver of Claims:
14,15. The making and acceptance of final payment will
constitute:
14.15.1.a waiver of all claims by OWNER against
CONTRACTOR, except claims arising from
unsettled Liens, from defective Work appearing after
31
Exhibit "T Page 47 of 58
final inspection pursuant to paragraph 14.11, from
failure to comply with the Contract Documents or the
terms of any special guarantees specified therein, or
from CONTRACTOR's continuing obligations under
the Contract Documents; and
14.15.2. A waiver of all claims by CONTRACTOR
against OWNER other than those previously made in
writing and still unsettled.
ARTICLE 15—SUSPENSION OF WORK AND
TERMINATION
OWNER May Suspend Work:
15.1. At any time and without cause, OWNER may
suspend the Work or any portion thereof for a period of not
more than ninety days by notice in writing to
CONTRACTOR and ENGINEER which will fix the date
on which Work will be resumed. CONTRACTOR shall
resume the Work on the date so fixed. CONTRACTOR
shall be allowed an adjustment in the Contract Price or an
extension of the Contract Times, or both, directly
attributable to any such suspension if CONTRACTOR
makes an approved claim therefor as provided in
Articles 11 and 12.
OWNER May Terminate:
15.2. Upon the occurrence of any one or more of the
following events:
15.2.1. if CONTRACTOR persistently fails to perform
the Work in accordance with the Contract Documents
(including, but not limited to, failure to supply sufficient
skilled workers or suitable materials or equipment or
failure to adhere to the progress schedule established
under paragraph 2.9 as adjusted from time to time
pursuant to paragraph 6.6);
15.2.2. if CONTRACTOR disregards Laws or
Regulations of any public body having jurisdiction;
15.2.3. if CONTRACTOR disregards the authority of
ENGINEER; or
15.2.4. if CONTRACTOR otherwise violates in any
substantial way any provisions of the Contract
Documents;
OWNER may, after giving CONTRACTOR (and the
surety, if any) seven days written notice and to the extent
permitted by Laws and Regulations, terminate the services
of CONTRACTOR, exclude CONTRACTOR from the site
and take possession of the Work and of all
CONTRACTOR's tools, appliances, construction
equipment and machinery at the site and use the same to
the full extent they could be used by CONTRACTOR
(without liability to CONTRACTOR for trespass or
conversion), incorporate in the Work at] materials and
equipment stored at the site or for which OWNER has paid
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
32 w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
CONTRACTOR but which are stored elsewhere, and
finish the Work as OWNER may deem expedient. In such
case CONTRACTOR shall not be entitled to receive any
further payment until the Work is finished. If the unpaid
balance of the Contract Price exceeds all claims, costs,
losses and damages sustained by OWNER arising out of
or resulting from completing the Work such excess will be
paid to CONTRACTOR. If such claims, costs, losses and
damages exceed such unpaid balance, CONTRACTOR
shall pay the difference to OWNER. Such claims, costs,
losses and damages incurred by OWNER wilt be reviewed
by ENGINEER as to their reasonableness and when so
approved by ENGINEER incorporated in a Change Order,
provided that when exercising any rights or remedies
under this paragraph OWNER shall not be required to
obtain the lowest price for the Work performed.
15.3. Where CONTRACTOR's services have been so
terminated by OWNER, the termination will not affect
any rights or remedies of OWNER against
CONTRACTOR then existing or which may thereafter
accrue. Any retention or payment of moneys due
CONTRACTOR by OWNER will not release
CONTRACTOR from liability.
15.4. Upon seven days' written notice to
CONTRACTOR and ENGINEER, OWNER may,
without cause and without prejudice to any other right or
remedy of OWNER, elect to terminate the Agreement. In
such case, CONTRACTOR shall be paid (without
duplication of any items):
15.4.1. for completed and acceptable Work executed
in accordance with the Contract Documents prior to
the effective date of termination, including fair and
reasonable sums for overhead and profit on such
Work;
15.4.2. for expenses sustained prior to the effective
date of termination in performing services and
furnishing labor, materials or equipment as required
by the Contract Documents in connection with
uncompleted Work, plus fair and reasonable sums for
overhead and profit on such expenses;
15.4.3. for all claims, costs, losses and damages
incurred in settlement of terminated contracts with
Subcontractors, Suppliers and others; and
15.4.4. for reasonable expenses directly attributable
to termination.
CONTRACTOR shall not be paid on account of loss of
anticipated profits or revenue or other economic loss
arising out of or resulting from such termination.
CONTRACTOR May Stop Work or Terminate:
15.5. If, through no act or fault of CONTRACTOR, the
Work is suspended for a period of more than ninety days
by OWNER or under an order of court or other public
authority, or ENGINEER fails to act on any Application
for Payment within thirty days after it is submitted or
OWNER fails for thirty days to pay CONTRACTOR any
Exhibit "M Page 48 of 58
sum finally determined to be due, then CONTRACTOR
may, upon seven days' written notice to OWNER and
ENGINEER, and provided OWNER or ENGINEER do not
remedy such suspension or failure within that time,
terminate the Agreement and recover from OWNER
payment on the same terms as provided in paragraph 15.4.
In lieu of terminating the Agreement and without prejudice
to any other right or remedy, if ENGINEER has failed to
act on an Application for Payment within thirty days after it
is submitted, or OWNER has failed for thirty days to pay
CONTRACTOR any sum finally determined to be due,
CONTRACTOR may upon seven days' written notice to
OWNER and ENGINEER stop the Work until payment of
all such amounts due CONTRACTOR, including interest
thereon. The provisions of this paragraph 15.5 are not
intended to preclude CONTRACTOR from making claim
under Articles 11 and 12 for an increase in Contract Price
or Contract Times or otherwise for expenses or damage
directly attributable to CONTRACTOR's stopping Work as
permitted by this paragraph.
ARTICLE 16—DISPUTE RESOLUTION
If and to the extent that OWNER and CONTRACTOR
have agreed on the method and procedure for resolving
disputes between them that may arise under this
Agreement, such dispute resolution method and procedure,
if any, shall be as set forth in Exhibit GC -A, "Dispute
Resolution Agreement", to be attached hereto and made a
part hereof. If no such agreement on the method and
procedure for resolving such disputes has been reached,
and subject to the provisions of paragraphs 9.10, 9.11 and
9.12, OWNER and CONTRACTOR may exercise such
rights or remedies as either may otherwise have under the
Contract Documents or by Laws or Regulations in respect
of any dispute.
ARTICLE 17—MISCELLANEOUS
Giving Notice.
17.1. Whenever any provision of the Contract
Documents requires the giving of written notice, it will be
deemed to have been validly given if delivered in person to
the individual or to a member of the firm, or to an officer of
the corporation for whom it is intended, or if delivered at or
sent by registered or certified mail, postage prepaid, to the
last business address known to the giver of the notice.
17.2. Computation of Time:
17.2.1. When any period of time is refered to in the
Contract Documents by days, it will be computed to
exclude the first and include the last day of such
period. If the last day of any such period falls on a
Saturday or Sunday or on a day made a legal holiday
by the law of the applicable jurisdiction, such day will
be omitted from the computation.
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
17.2.2. A calendar day of twenty-four hours measured
from midnight to the next midnight will constitute a
day.
Notice of Claim:
17.3. Should OWNER or CONTRACTOR suffer injury
or damage to person or property because of any error,
omission or act of the other party or of any of the other
parry's employees or agents or others for whose acts the
other party is legally liable, claim will be made in writing
to the other party within a reasonable time of the first
observance of such injury or damage. The provisions of
this paragraph 17.3 shall not be construed as a substitute
for or a waiver of the provisions of any applicable statute
of limitations or repose.Cumulative Remedies:
17.4. The duties and obligations imposed by these
General Conditions and the rights and remedies available
hereunder to the parties hereto, and, in particular but
without limitation, the warranties, guarantees and
obligations imposed upon CONTRACTOR by
paragraphs 6.12, 6.16, 6.30, 6.31, 6.32, 13.1, 13.12, 13.14,
14.3 and 15.2 and all of the rights and remedies available
to OWNER and ENGINEER thereunder, are in addition
to, and are not to be construed in any way as a limitation
of, any rights and remedies available to any or all of them
which are otherwise imposed or available by Laws or
Regulations by special warranty or guarantee or by other
provisions of the Contract Documents, and the provisions
of this paragraph will be as effective as if repeated
specifically in the Contract Documents in connection with
each particular duty, obligation, right and remedy to which
they apply.
Professional Fees and Court Costs Included:
17.5. Whenever reference is made to "claims, costs,
losses and damages", it shall include in each case, but not
be limited to, all fees and charges of engineers, architects,
attorneys and other professionals and all court or
arbitration or other dispute resolution costs.
17.6. The laws of the State of Colorado apply to this
Agreement Reference to two pertinent Colorado statutes
are as follows;
1762 If a claim is filed, OWNER is required by
law (CRS 38 26-107) to withhold from all payments to
CONTRACTOR sufficient funds to insure the
payment of all claims for labor, materials, team hire,
sustenance provisions, provender, or other supplies
used or consumed by CONTRACTOR or his
33
Exhibit "D" Page 49 of 58
E1CDC GENERAL CONDITIONS 1910-9 (1990 Edition)
34 w/ CITY OF FORT COLLINS MODIFICATIONS (REV 412000)
Exhibit T" Page 50 of 58
(This page left blank intentionally.)
EICDC GENERAL CONDITIONS 1910-8 (1990 Edition)
A,/CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
35
Exhibit "D" Page 51 of 58
EJCDC GENERAL CONDITIONS 1910-8 (1990 Edition)
36 wl CITY OF FORT COLLINS MODIFICATIONS (REV 4/2000)
Exhibit T" Page 52 of 58
certification ("Grading Certificate"). The Grading Certificate shall
verify that the finished floor elevation of the building subject to the
requested CO and all adjacent grades to that building have been
graded in the configuration shown on the Final Development Plan
Documents - including the grading of any minor swales, when
applicable. The Grading Certification shall also certify that the
minimum -floor elevation (when applicable) for the building
constructed has been completed in accordance with the Final
Development Plan Documents. The Grading Certification shall be
completed by a Colorado licensed professional engineer and the
City shall have at least two weeks to review the Grading
Certification prior to the issuance of the desired CO.
5. The Developer shall obtain the City's prior approval of any changes from
the Final Development Plan Documents in grade elevations and/or storm drainage facility
configuration that occur as a result of the construction of structures on the Development. The
City reserves the right to withhold the issuance of building permits and/or COs for improvements
constructed on the Development until the City has approved such changes as being acceptable
for the safe and efficient delivery of storm drainage water.
6. The Developer shall maintain all onsite storm drainage facilities except for
those facilities shown on Sheet C-220 of the utility plans (part of the Final Development Plan
Documents) which shall be owned and maintained by the City.
7. The Developer shall limit the construction of the storm drainage
improvements to those improvements identified on the Final Development Plan Documents. The
contractor shall re -seed and restore all areas that are disturbed during construction of the storm
drainage improvements in accordance with the Final Development Plan Documents promptly
following construction. The Developer shall ensure that no negative impact occurs to the
neighboring areas during the construction of infrastructure lines associated with this
Development.
8. The Developer shall obtain all necessary drainage easements from the
appropriate property owners before commencing construction of any of the off -site storm
drainage improvements as shown on the Final Development Plan Documents.
D. Streets
1. To the extent on -site improvements constructed by Developer are
comparable to those improvements for which the City has received funds from any property
owner adjacent to the Development, the City shall reimburse Developer for the cost of such
improvements until such received funds are depleted. Subject to the conditions of this
Paragraph D, the City agrees to reimburse the Developer for oversizing public street
improvements along Corbett Drive north of Harmony Road, for the portion of said street to be
constructed to the ultimate design as shown on the Final Development Plan Documents.
Because the City is constructing the Off -Site Improvements, the Developer is no longer entitled
to any repayment of Off -Site Improvement costs as outlined in Section 4 of the "Financial
9180\3\1018975.4 8
9180\3\1034460.1
EXHIBIT GC -A to General Conditions
of the Construction Contract Between
OWNER and CONTRACTOR
DISPUTE RESOLUTION AGREEMENT
OWNER and CONTRACTOR hereby agree that
Article 16 of the General Conditions of the Construction
Contract between OWNER and CONTRACTOR is
amended to include the following agreement of the parties:
16.1. All claims, disputes and other matters in
question between OWNER and CONTRACTOR arising
out of or relating to the Contract Documents or the breach
thereof (except for claims which have been waived by the
making or acceptance of final payment as provided by
paragraph 14.15) will be decided by arbitration in
accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association then
obtaining, subject to the limitations of the Article 16. This
agreement so to arbitrate and any other agreement or
consent to arbitrate entered into in accordance herewith as
provided in this Article 16 will be specifically enforceable
under the prevailing law of any court having jurisdiction.
16.2. No demand for arbitration of any claim, dispute
or other matter that is required to bereferred to
ENGINEER initially for decision in accordance with
paragraph 9.11 will be made until the earlier of (a) the date
on which ENGINEER has rendered a written decision or
(b) the thirty-first day after the parties have presented their
evidence to ENGINEER if a written decision has not been
rendered by ENGINEER before that date. No demand for
arbitration of any such claim, dispute or other matter will
be made later than thirty days after the date on which
ENGINEER has rendered a written decision in respect
thereof in accordance with paragraph 9.11; and the failure
to demand arbitration within said thirty days' period will
result in ENGINEER's decision being final and binding
upon OWNER and CONTRACTOR. If ENGINEER
renders a decision after arbitration proceedings have been
initiated, such decision may be entered as evidence but will
not supersede the arbitration proceedings, except where the
decision is acceptable to the parties concerned. No demand
for arbitration of any written decision of ENGINEER
rendered in accordance with paragraph 9.10 will be made
later than ten days after the party making such demand has
delivered written notice of intention to appeal as provided
in paragraph 9.10.
16.3. Notice of the demand for arbitration will be
filed in writing with the other party to the Agreement and
with the American Arbitration Association, and a copy will
be sent to ENGINEER for information. The demand for
arbitration will be made within the thirty -day or ten-day
period specified in paragraph 16.2 as applicable, and in all
other cases within a reasonable time after the claim, dispute
or other matter in question has arisen, and in no event shall
any such demand be made after the date when institution of
legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the
applicable statute of limitations.
E1CDC GENERAL CONDITIONS I91 D-B (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/99)
16.4. Except as provided in paragraph 16.5 below,
no arbitration arising out of or relating to the Contract
Documents shall include by consolidation, joinder or in any
other manner any other person or entity (including
ENGINEER, ENGINEER's Consultant and the officers,
directors, agents, employees or consultants of any of them)
who is not a party to this contract unless:
16.4.1. the inclusion of such other person or entity is
necessary if complete relief is to be afforded among
those who are already parties to the arbitration, and
16.4.2. such other person or entity is substantially
involved in a question of law or fact which is common
to those who are already parties to the arbitration and
which will arise in such proceedings, and
16.4.3. the written consent of the other person or
entity sought to be included and of OWNER and
CONTRACTOR has been obtained for such inclusion,
which consent shall make specific reference to this
paragraph; but no such consent shall constitute consent
to arbitration of any dispute not specifically described
in such consent or to arbitration with any party not
specifically identified in such consent.
16.5. Notwithstanding paragraph 16.4, if a claim,
dispute or other matter in question between OWNER and
CONTRACTOR involves the Work of a Subcontractor,
either OWNER or CONTRACTOR may join such
Subcontractor as a party to the arbitration between OWNER
and CONTRACTOR hereunder. CONTRACTOR shall
include in all subcontracts required by paragraph 6.11 a
specific provision whereby the Subcontractor consents to
being joined in an arbitration between OWNER and
CONTRACTOR involving the Work of such
Subcontractor. Nothing in this paragraph 16.5 nor in the
provision of such subcontract consenting to joinder shall
create any claim, right or cause of action in favor of
Subcontractor and against OWNER, ENGINEER or
ENGINEER's Consultants that does not otherwise exist.
16.6. The award rendered by the arbitrators will be
final, judgment may be entered upon it in any court having
jurisdiction thereof, and it will not be subject to
modification or appeal.
16.7. OWNER and CONTRACTOR agree that they
shall first submit any and all unsettled claims,
counterclaims, disputes and other matters in question
between them arising out of or relating to the Contract
Documents or the breach thereof ("disputes"), to mediation
by the American Arbitration Association under the
Construction Industry Mediation Rules of the American
Arbitration Association prior to either of them initiating
against the other a demand for arbitration pursuant to
paragraphs 16.1 through 16.6, unless delay in initiating
arbitration would irrevocably prejudice one of the parties.
The respective thirty and ten day time limits within which
to file a demand for arbitration as provided in paragraphs
16.2 and 16.3 above shall be suspended with respect to a
dispute submitted to mediation within those same
applicable time limits and shall remain suspended until ten
days after the termination of the mediation. The mediator
of any dispute submitted to mediation under this Agreement
shall not serve as arbitrator of such dispute unless otherwise
agreed.
GC -AI
Exhibit "D" Page 53 of 58
E1CDC GENERAL CONDITIONS 1910-8 (1990 Edition)
w/ CITY OF FORT COLLINS MODIFICATIONS (REV 9/94)
GC -Al
Exhibit T" Page 54 of 58
SECTION 00800
SUPPLEMENTARY CONDITIONS
Exhibit T" Page 55 of 58
SECTION 00800
SUPPLEMENTARY CONDITIONS
Conditions of the Contract
These Supplementary Conditions amend or supplement the General
Conditions of the Construction Contract (ESCDC General Conditions
1910-8, 1990 edition with City of Fort Collins modifications) and
other provisions of the Contract Documents as indicated below.
SC-4.2 Subsurface and Physical Conditions:
A. Add the following language to paragraph 4.2.1 of the
General Conditions.
4.2.1.1.1 The following report(s) of exploration and tests
of subsurface conditions at the site of the Work:
Contractor may rely upon the accuracy of the technical data
contained in the geotechnical documents, but not upon
nontechnical data, interpretations or opinions contained
therein or upon the completeness of any information in the
report.
B. 4.2.1.2.1 No drawing of physical conditions in or relating
to existing surface or subsurface structures (except
Underground Facilities referred to in Paragraph 4.3) which
are at or contiguous to the site have been utilized by the
Engineer in preparation of the Contract Documents, except
the following:
SC-5.4.8 Limits of Liability
A. Add the following language at the end of paragraph 5.4.8.
The limits of liability for the insurance required by the
paragraph numbers of the General Conditions listed below are as
follows:
5.4.1 and 5.4.2
Coverage A - Statutory Limits
Coverage B - $100,000/$100,000/$500,000
5.4.3 and 5.4.5 Commercial General Liability policy will have limits of
$1,000,000 combined single limits (CSL). This policy will include
coverage for Explosion, Collapse, and Underground coverage unless waived
by the Owner.
5.4.6The Comprehensive Automobile Liability Insurance policy will have
7/96 Section 00800 Page 1
Exhibit T" Page 56 of 58
t' r
limits of $1,000,000 combined single limits (CSL).
5.9.9This policy will include completed operations coverage/product
liability coverage with limits of $1,000,000 combined single limits.
(CSL).
SC-8.10 OWNER's Project Manager
A. Add the following language to ARTICLE 8:
8.10. The OWNER will provide a Project Manager. The CONTRACTOR shall
direct all questions concerning Contract interpretation, Change
Orders, and other requests for clarification or instruction to
the Project Manager.
8.10.1 Authority: The Project Manager will be the OWNER's
representative during the construction of the project. The
Project Manager shall have the authority set forth in the
OWNER's Capital Project Procedures Manual. The Project Manager
shall have the authority to reject work and materials whenever
such rejection may be necessary to ensure the proper
performance of the Work in accordance with the Contract
Documents.
8.10.2 Duties and Responsibilities: The Project Manager will make
periodic visits to the project site to observe the progress and
quality of the Work and to determine, in general, if the Work
is proceeding in accordance with the Contract Documents. The
Project Manager shall not be required to make comprehensive or
continuous inspections to check the progress or quality of the
Work. The Project Manager shall not be responsible for
construction means, methods, techniques, sequences, or
procedures, or for safety precautions or programs in connection
with the Work, or for any failure of the Contractor to comply
with laws and regulation applicable to the performance or
furnishing of the Work. Visits and observations made by the
Project Manager shall not relieve the CONTRACTOR of his
obligation to conduct comprehensive inspections of the Work, to
furnish materials and perform acceptable Work, and to provide
adequate safety precautions in conformance with the Contract
Documents. The Project Manager shall at all times have access
to the Work. The CONTRACTOR shall provide facilities for such
access so the Project Manager may perform his or her functions
under the Contract Documents.
8.10.3 One or more Resident Construction Inspector(s) (RCI) may be
assigned to assist the Project Manager in providing observation
of the Work, to determine whether or not the Work is proceeding
according to the construction documents. CONTRACTOR will
Exhibit "D" Page 57 of 58
receive written notification from the OWNER of any RCI
assignments. The RCI shall not supervise, direct or have
control or authority over, nor be responsible fcr, CONTRACTOR's
means, methods, techniques, sequences or procedures of
construction or the safety precautions and programs incident
thereto, or for any failure of CONTRACTOR to comply with Laws
and Regulations applicable to the furnishing or performance of
the Work. The RCI will not be responsible for CON'TRACTOR's
failure to perform or furnish the Work in accordance with the
Contract Documents. The RCI's dealings in matters pertaining
to the on -site work will be to keep the Project Manager
properly apprised about such matters.
8.10.4 Communications: All instructions, approvals, and decisions of
the Project Manager shall be in writing. The CONTRACTOR may
not rely on -instructions, approvals, or decisions of the
Project Manager until the same are reduced to writing.
SC-12.3 Add the following language to the end of paragraph 12.3.
Contractor will include in the project schedule days lost due to
abnormal weather conditions. Must be documented and approved by City's
Project Representative.
SC-13.12 Correction Period:
13.12.1If within one year after the date of Substantial Completion or
such longer period of time as may be prescribed by Laws or
Regulations or by the terms of any applicable special guarantee
required by the Contract Documents or by any specific provision
of the Contract Documents, an Work is found to be defective,
CONTRACTOR shall promptly, without cost to OWNER and in
accordance with OWNER's written instructions . . .
00800-3
Exhibit "T Page 58 of 58
Assistance Agreement Pertaining to the Development of the Front Range Village Agreement"
and the Developer waives any right thereto. Reimbursement for Corbett Drive improvements
shall be for oversizing the street from local access standards to collector standards. No
reimbursement shall be due the Developer for oversizing Corbett Drive above collector
standards, and, in accordance with Section 24-112(2) of the City Code, all additional expense
incurred in the design and construction of Corbett Drive solely attributable to the addition of the
Developer -requested street medians shall not be reimbursable. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in accordance
with Section 24-112 of the Code of the City. The Developer agrees and understands that the City
shall have no obligation to make reimbursement payments for street oversizing improvements
unless funds for such payments shall first have been budgeted and appropriated from the Street
Oversizing Fund by the City Council, and the parties agree that to the extent that funds are not
available for such reimbursement, the City shall not require the construction, at the Developer's
expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts
of the Development, unless the Developer so agrees. The Developer further agrees to accept
payment in accordance with Section 24-112(d) of the Code of the City as full and final
settlement and complete accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that
the City's reimbursement, in accordance with Section 24-112(d), would not be less than fifty
percent (50%) of the Developer's actual expenses incurred for the oversized street portion and
will be calculated in accordance with the formula as set forth in Section 24-112(d).
2. It is understood that the improvements that are to be constructed in the
public right-of-way as described in this Paragraph II.D are "City Improvements" (as defined
below) and, as such, any contract for the construction of the same must be executed in writing.
If the cost of any City Improvement exceeds the sum of Thirty Thousand Dollars ($30,000), the
contract for the construction of the same must be submitted to a competitive bidding process
resulting in an award to the lowest responsible bidder; and evidence must be submitted to the
City prior to the commencement of the work showing that the award was given to the lowest
responsible bidder. If the cost of any City Improvements exceeds Fifty Thousand Dollars
($50,000), the contract for the construction of the City Improvements must be insured by a
performance bond or other equivalent security. For purposes of this paragraph, the term "City
Improvements" shall mean either (1) existing improvements owned by the City that are to be
modified or reconstructed pursuant to terms of this Agreement, or (2) any improvements funded
in whole or in part by the City pursuant to the terms of this Agreement.
3. Section 7.5-19 of the City Code requires payment of street oversizing
funds at the time of building permit. The City Manager has agreed that the City will front the
street oversizing fee for the Target (Lot 11) and the Lowe's (Lot 15) pad sites from another City
fund prior to building permits for the respective pad sites, which will then be reimbursed by the
Developer prior to the issuance of a certificate of occupancy, or August 1" 2008, whichever
occurs first, for each pad site. Accordingly, the street oversizing fees for those pad sites will not
be due until the time of issuance of the certificate of occupancy for each respective site. All
other uses in the Development shall pay their respective street oversizing fees prior to the
issuance of each building permit as required by Code.
91801311018975 4 9
91 ROT 1034460.1