Parker Excavating, Inc. v. City of Denver, through its Board of Water Commissioners, 2012COA185 (October 25, 2012)

Always prepare for the unexpected, especially in construction contracts. In this case, a company that contracted with Denver Water to build a dam and reservoir encountered unanticipated wet muck that substantially increased the costs of excavation. Fortunately, the parties anticipated unexpected conditions and included an “equitable adjustment” provision in their contract. The issue was the amount of the adjustment. The trial court did not award the contractor legal damages or the full amount of the additional costs. Rather, it awarded an equitable amount based on a division of responsibility for the increased costs. The court of appeals, after finding the appeal was timely filed, agreed. It held that the contract itself provided for an equitable remedy. Thus, the trial court did not clearly err by awarding an additional but reduced amount to the contractor.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0785-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8712&courtid=1

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Filed under Appellate Review Challenged, Contracts, Government

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