Chapter 13 - EXHIBIT 13B • CONSTRUCTION CONTRACT CLAUSES

• Jurisdiction: Colorado

EXHIBIT 13B • CONSTRUCTION CONTRACT CLAUSES

1. Hazardous Materials

There are two major sources of standardized construction contracts for non-public projects: those published by the American Institute of Architects (AIA), and those published by the Engineer's Joint Contract Document Committee (EJCDC) of the National Society for Professional Engineers (NSPE) for the Associated General Contractors of America (AGC).

a. AIA Clauses

The General Conditions of the Contract for Construction in AIA Document A-201 are reasonably comprehensive. Section 10.3 of the 2017 edition of A-201 provides language regarding the apportionment of duties and liabilities between contractors and owners handling hazardous materials, including clauses outlining duties of the contractor and the owner upon discovery of a hazardous material not addressed in the contract documents, responsibilities of the owner for the contractor, apportionment of the cost of remediation, and indemnification. See AIA Doc. A201-2017, §§ 10.3.1 through 10.3.6.

b. EJCDC Clauses

The EJCDC provisions for hazardous substances in Form EJCDC No. 1910-8 (1990 ed.) are much more complete than other standard form contracts. The 1990 edition is out of print. See Appendix C, ASCE Form EJCDC C-700, ¶ 5.06 (2018 ed.).

These contract provisions allocate responsibility to the owner for hazardous substances or wastes not shown in the plans or specifications, or otherwise communicated, and they provide specific procedures for the parties to follow, including modifications to the schedule and contract price. The clauses are also comprehensive as to indemnity, requiring that the owner indemnify the contractor except where the problem arises out of the contractor's own negligence.

c. Differing Site Conditions

Most comprehensive construction contracts include a "differing site conditions" clause to allocate risks arising out of unknown or concealed conditions that are discovered during construction. If the contract does not specifically address hazardous materials, it is likely that this provision will come into play. Various contract forms deal with differing site conditions differently.

i. AIA Clause

The AIA differing site conditions clause in the AIA Document A201-2017, General Conditions of the Contract for Construction, recognizes two kinds of conditions: a Category I condition is one that is at variance with the conditions indicated in the contract documents; a Category II condition is the unusual and unknown condition...