5.0_139 J, Gen Con, App A, B, C combined 06.2025.pdf

SUMMARY OF AND IMPLEMENTATION GUIDELINES FOR

§ 139-J OF THE STATE FINANCE LAW

* This summary is not intended to replace the need for persons to become familiar with the full requirements of the law. Please refer to the full text of the law to resolve any questions you may have with regard to your conduct under it.

Section 139-j of the State Finance Law imposes restrictions on the type of communications that a person may make to a governmental entity, such as the Office of

Parks, Recreation and Historic Preservation (hereafter, referred as “OPRHP”), concerning a governmental procurement during a period of time which the law terms the “restricted period.” These new requirements cover a wide range of government contracting transactions, including, the purchase of a commodity, service, technology, public work, construction and revenue contract, or the purchase, sale or lease of real property or the acquisition or the granting of other interests in real property (hereafter referred as

“governmental procurement or procurement contract.” Any person in the private sector

(hereinafter referred to as “person”) interested in contacting OPRHP concerning anyone of these types of transactions is covered under the provisions of the new law, which limits the way that such person can communicate with OPRHP during the “restricted period”, which is defined broadly as the period of time commencing from the earliest written notice announcing a government procurement all the way until the award is approved by the comptroller.

For each governmental procurement OPRHP will designate an employee or employees that may be contacted by persons concerning all aspects of the governmental procurement. The law requires that each person that contacts (in writing, orally, or via email) OPRHP concerning a governmental procurement may only make what the law terms “permissible contacts”, which means that the person: 1) shall contact only the designated person or persons identified by OPRHP in the governmental procurement documents and 2) shall not attempt to influence the procurement in a manner that would result in violation of §73(5) of the Public Officers Law (Ethical Prohibitions on Gifts to

Public Officers and Employees) or in a manner that would result in violation of §74 of the Public Officers Law (The Code of Ethics).

The law specifically permits certain types of contacts by persons to OPRHP concerning the governmental procurement. These are:

the submission of written proposals in response to a request for proposal, invitation for bids or any other method for soliciting a response from interested parties;

the submission of written questions to a designated contact, when all written questions and responses are to be disseminated to all persons interested in such procurement;

participation in a conference where all interested parties are invited to attend;

06/2025 written complaints made to the General Counsel’s Office of OPRHP concerning the timely response to issues posed to the designated person, provided that such written complaints are made part of the procurement record;

communications where the contract award has been tentatively made and where such communications are necessary to negotiate the terms of the procurement contract;

requests made to the designated person or persons to review the procurement award;

written protests, appeals, or other review proceedings to either OPRHP or an outside agency.

All communications which are reasonably inferred by OPRHP to be intended to influence the governmental procurement process or the award of such procurement in violation of the law will be recorded and made a part of the procurement record, whether such communications are made to the designated employee/s or another employee of OPRHP.

Contacts made to persons other than the designated OPRHP employee shall also be deemed an impermissible contact.

Any contact which is alleged to be an impermissible contact under the law will be immediately referred to and investigated by OPRHP’s Ethics Officer. The Ethics Officer shall promptly investigate the allegation by interviewing all employees reasonably involved or who are believed to have information about the impermissible contact. If sufficient cause exists to believe that such allegation is true, the person being investigated shall be given notice that an investigation is ongoing and such person shall be afforded an opportunity to be heard in response to the allegation either by responding in writing or by providing a statement before the Ethics Officer, who shall record by appropriate means such statement for the record. The Ethics Officer shall keep a record of the investigation and shall make a written finding of the results of such investigation and report these findings to the Commissioner.

In addition, a finding by the Ethics Officer that a person has knowingly and willingly violated the law by making an impermissible contact shall result in a determination of non-responsibility and such person and all associated subsidiaries of such person shall not be awarded the procurement contract. The determination of non-responsibility shall also be forwarded to the Commissioner of the Office of General Services (or his or her designee), which by law is required to keep a list of such determinations for public inspection. Determinations of non-responsibility must be disclosed in all future responses to New York State procurements. With few exceptions, no procurement contract shall be awarded to any person who fails to disclose findings of non-responsibility within the previous four years.

NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

GENERAL CONDITIONS

Table of Articles

1. The Contract Documents

2. Defined Terms

3. Interpretation of the Contract Documents

4. Shop Drawings and Other Submittals

5. Schedule

6. Materials

7. Contractor’s Supervision

8. Use of Premises

9. Permits and Compliance

10. Inspection and Material Acceptance

11. Change Orders

12. Site Conditions

13. Suspension of Work

14. Time of Completion and Termination for Cause

15. Termination for Contractor’s Employment for the Convenience of the State of New York

16. Disputes

17. Statutory Requirements for the Utilization of Minority and Women Owned Business

Enterprises

18. Subcontracts

19. Coordination of Separate Contracts (WICKS Projects)

20. Responsibility for Damage and Indemnification

21. Insurance

22. Occupancy Prior to Completion and Acceptance; Substantial Completion

23. Payment

24. Audits and Records

25. Labor Law and Prevailing Wages Notifications Provisions

26. Statutory Requirements for Restrictions on Contracts during the Procurement Process and

Disclosure of Contacts and Responsibility of Offerors

27. Embodied Carbon Disclosures & Clean Concrete Requirements

28. Miscellaneous Provisions

29. Appendices

Appendices:

Appendix A - Standard Clauses for all New York State Contracts Appendix B Appendix C – Specific Insurance Coverages and Limits

ARTICLE 1 – THE CONTRACT DOCUMENTS

1.1 The Contract Documents are comprised of the following documents, all of which are hereby incorporated by reference and shall hereinafter be referenced as the “Contract.”

• Appendix A - Standard Clauses For New York State Contracts;

• Agreement;

• General Conditions;

• Supplemental Conditions;

• Appendix B;

• Appendix C – Specific Insurance Coverages and Limits;

• Specifications;

• Drawings;

• Instructions to Bidders;

• Performance and Payment Bond;

• Labor and Materials Bond;

• All Required Certificates of Insurance;

• All Addenda issued prior to the receipt of bids;

• An Approved MWBE Utilization Plan, if required;

1.2 The Contract Documents form the Contract. The Contract represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations and agreements, either written or oral, including Bidding Documents.

1.3 The Contract may not be modified except in accordance with the General Conditions.

ARTICLE 2 – DEFINED TERMS

2.1 The following terms shall have the meanings ascribed to them in this Article, wherever they appear in the Contract Documents.

2.2 The term “Bid” means the approved prepared bid form on which the Bidder is to submit or has submitted a bid for the Project contemplated.

2.3 The term “Bidder” means any individual, firm or corporation submitting a Bid for the

Project contemplated, acting directly or through a duly authorized representative.

2.4 The term “Bid Security” means the collateral in the form of a certified check, bank check or bid bond to be furnished by the Bidder as a guarantee of his or her ability to procure the minimum equipment and liquid assets specified and that Bidder shall enter into a Contract with the Office for the performance of the Work.

2.5 The term “Certificate of Acceptance” means the certificate prepared by the Director’s

Representative evidencing the Work is physically completed and setting forth the Physical Completion Date.

2.6 The term “Certificate of Substantial Completion” means the certificate prepared by the Director’s Representative evidencing that the Work is substantially completed and setting forth the date of Substantial Completion.

2.7 The term “Change Order” means a written order to the Contractor signed by the

Contractor, Director’s Representative, and NYS Office of State Comptroller, issued after the execution of the Contract, authorizing a Change in the Work or an adjustment in the Contract Sum or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order.

2.8 The term “Commissioner” means the Commissioner of Parks, Recreation and Historic

Preservation.

2.9 The term “Comptroller” means the Comptroller of the State of New York.

2.10 The term “Contractor” means the person, firm, partnership or corporation executing the

Contract or the successor or assignee of the Contractor approved in writing by the Commissioner.

2.11 The term “Days” shall mean calendar days.

2.12 The term “Designated Payment Office” shall be the regional office as identified on the cover of the Project Manual.

2.13 The term “Director” means the Director of Capital Programs or equivalent for the Office of Parks, Recreation and Historic Preservation, who will have general direction and supervision of the Work, except for Appendix B where the term “Director” means the Director of the Division on Minority and Women’s Business Development.

2.14 The “Director’s Representative” means an employee of the Office designated by the

Director as the Director’s authorized representative. Under the direction of the Director, the Representative shall have complete charge of the Work and shall exercise full supervision and direction of the Work. Except where noted, the Contract Documents specifically designate a person to perform a function or duty, it shall mean the Director’s Representative but only for the performance of that function or duty. Where the word “directed” appears in the Contract Documents, the words “by the Director’s Representative” shall be deemed inserted thereafter in each case except where it is obviously inappropriate in context.

2.15 The term “Environmental Product Declaration” or “EPD” is a standardized, third-party verified report that quantifies environmental information over the life cycle of a product to enable comparisons of environmental impact between products fulfilling the same function. An EPD is required for certain construction materials and concrete mixes under Article 27 of this Contract.

2.16 The term “Labor and Materials Bond” is a bond guaranteeing prompt payment of monies due to all persons furnishing labor or materials to the Contractor or any Subcontractor in the prosecution of the Work provided for as set forth in State Finance Law Section 137.

2.17 The term “Liquidated Damages” means the total amount of money to be assessed against the Contractor for delay in completion of the Contract. The total amount of such damages shall not exceed the amount per day stipulated in Article 14.10 times the numbers of Days completion is delayed, unless otherwise specified in the Notice to Bidders.

2.18 The term “Material” means any approved material acceptable to the Director’s

Representative and conforming to the requirements of the Specifications. All processes and materials shall at all times be open to inspection and testing by the Office and its authorized representatives.

2.19 The term “Offerer” shall mean the individual or entity, or any employee, agent of consultant or person acting on behalf of such individual or entity that contacts a governmental entity about a governmental procurement during the restricted period of such governmental procurement.

2.20 The term “Office” or “OPRHP” means the New York State Office of Parks, Recreation and Historic Preservation.

2.21 The term “Performance Bond” means a written guaranty from a third party guarantor provided to the Office by Contractor upon the award of the Contract to ensure the full performance of the Work and completion of the Project as set forth in the Contract Documents. The form of the Performance Bond is subject to the approval of the Office and the Attorney General.

2.22 The term “Physical Completion Date” means the date upon which Director’s

Representative deems that all deficiencies noted on the Punch List have been corrected or completed as evidenced by the issuance of the Certificate of Acceptance.

2.23 The term “Plan” or “Drawings” means an illustrated graphic that typically includes technical layout information, specification data, and details as required to facilitate the construction of an entire project or smaller unit of work.

2.24 The term “Premises” means all land, buildings, structures, or other items of any kind located around or adjacent to the Site and owned, occupied or otherwise used by the State.

2.25 The term “Project” means Work at the site carried out pursuant to one or more sets of

Contract Documents.

2.26 The term “Project Manual” means the combined Notice to Bidders, Instructions to

Bidders, Supplementary Conditions, the Summary of and Implementation Guidelines for § 139-J of the State Finance Law, Sample Forms, Bid Forms, General Conditions, All Referenced Appendices, Prevailing Wage Rates, the Drawings and Specifications; the Invitation for Bids and the Bid, issued prior to the receipt of bids.

2.27 The term “Provide” means to furnish and install, complete, in place and ready for operation and use.

2.28 The term “Punch List” means a document that is attached to the Certificate of

Substantial Completion prepared by the Director’s Representative or their designee listing work that does not conform to the Contract Documents that the Contractor must complete or correct after Substantial Completion, but before the Physical Completion Date and final payment.

2.29 The term “Samples” are physical examples submitted by the Contractor of materials, equipment or workmanship to establish a standard, which the Contractor is required to meet.

2.30 The term “Schedule of Values” means a breakdown of the Contract Sum in tabular form that lists the dollar value of individual work items. Schedule to be provided in accordance with specific Division 01 requirements and in enough detail to facilitate evaluation of the Payment Application by the Director’s Representative.

2.31 The term “Shop Drawings” are drawings, diagrams, illustrations, schedules, test data, performance charts, cuts, brochures and other data which are prepared by the Contractor or any Subcontractor, manufacturer, supplier or distributor, and submitted by the Contractor and which illustrate a portion of the Work.

2.32 The term “Site” means the area within the contract limit lines as identified in the drawings, or adjacent areas designated in writing by the Director’s Representative. Some contracts might involve separate and distinct sites.

2.33 The term “Specifications” means the body of directions and/or requirements contained in this document, together with all documents of any description, and agreements made (or to be made), pertaining to the methods (or manner), of performing the work and quality (as shown by test records) of accepted materials to be furnished under this Contract.

2.34 The term “State” means the State of New York.

2.35 The term “Subcontractor” means a person, firm, partnership or corporation executing a portion of the Work for the “Contractor,” who has the sole responsibility for his or her performance.

2.36 The term “Substantial Completion” means that the Work is sufficiently completed in the sole discretion of the Director’s Representative in accordance with the the Contract, so that OPRHP may occupy or use the Work for its intended purpose without unscheduled interruption caused by the needed completion of any remaining or unfinished work, as evidenced by the issuance of a Certificate of Substantial Completion. The terms “Substantially Complete” and “Substantially Completed” as applied to the work refer to Substantial Completion of the Work.

2.37 The term “Surety” means the entity which is bound with and for the Contractor, and which is engaged to be responsible for the Contractor’s acceptable performance of the Project for which he or she has contracted and for all Labor, Performance, and Material Bonds.

2.38 The term “Work” means the total sum of labor, supervision, materials and equipment necessary for the proper completion of the Contract as set forth in the Contract Documents.

ARTICLE 3 – INTERPRETATION OF CONTRACT DOCUMENTS

The Plans, Drawings and Specifications are complementary, and what is called for by one shall be as binding as if called for by all. It is not intended to include work not properly inferable from the Plans, Drawings and Specifications. In all cases, labelled dimensions shall take precedence over scaled dimensions, and the larger scale details take precedence over smaller scale drawings. In the case of difference between Drawings and Specifications, the Specifications shall govern.

3.1 Upon his or her own initiative or the Contractor's written request, the Director's

Representative may issue written interpretation or drawings necessary for the proper execution or progress of the work which interpretation shall be consistent with and reasonably inferable from the Contract Documents.

3.2 The language of the Contract Documents is directed at the Contractor unless specifically stated otherwise.

3.3 The organization of the Specifications into divisions, sections and articles, and the arrangement of Drawings shall not control the Contractor in dividing the Work among subcontractors or in establishing the extent of Work to be performed by any trade.

3.4 In the event of conflicting provisions in the Contract Documents, the Specifications shall take precedence over the Drawings.

3.5 If during the performance of the Work, the Contractor identifies a conflict in the Contract

Documents, or a variation from any applicable statute, rule or regulation, the Contractor shall promptly notify the Director’s Representative in writing of the conflict. The Director’s Representative shall promptly acknowledge the notification in writing and advise the Contractor, pursuant to Paragraph 3.2 of these General Conditions, as to the interpretation to be followed in the performance of the Work.

ARTICLE 4 – SHOP DRAWINGS AND OTHER SUBMITTALS

4.1 Shop Drawings (see Article 2.28)

4.2 Product data are manufacturer's catalog sheets, brochures, standard diagrams, illustrations, schedules, performance charts, test data, standard schematic drawings, specifications and installation instructions.

4.3 Samples are physical examples submitted by the Contractor of materials, equipment or workmanship to establish a standard that the Contractor is required to meet.

4.4 The Contractor and the Director’s Representative shall adhere to the submittal and scheduling requirements for Shop Drawings, product data and Samples set out in the Specifications.

4.5 By approving and submitting Shop Drawings and samples, the Contractor represents that the Contractor has determined and verified all field measurements, field construction criteria, materials, catalog numbers and similar data and that he or she has checked and coordinated each Shop Drawing and Sample with the requirements of the Contract Documents.

4.6 The Director’s Representative’s approval of Shop Drawings, product data and Samples shall not relieve the Contractor of responsibility for any deviation from the requirements of the Contract Documents unless the Contractor has previously informed the Director’s Representative of the deviation in a separate writing at the time of submission and received written approval for the specific deviations. The Director's Representative’s approval shall not relieve the Contractor from responsibility for errors or omissions in the shop drawings, product data or samples.

4.7 No portion of the Work requiring Shop Drawings, product data or Sample submission shall be commenced until the appropriate submission has been approved by the Director’s Representative.

4.8 Any portions of the Work requiring Shop Drawings, product data and Samples shall be installed in accordance with the approved Shop Drawings, product data and Samples.

ARTICLE 5 – SCHEDULE

5.1 Each Contractor shall deliver to the Director’s Representative and receive approval prior to commencing work, a detailed schedule concerning his or her operations upon the Project on a form acceptable to the Office, which shall indicate completion within the specified time frame, to the satisfaction of the Director’s Representative.

5.2 During the term of this Agreement, the Director’s Representative may require any

Contractor to modify any schedules which he or she has submitted either before or after they are approved so that:

(a) The Work or the Project may be properly progressed.

(b) Changes in the Work or the Work of other Contractors are properly reflected in these schedules.

ARTICLE 6 - MATERIALS

6.1 All materials, equipment and articles used permanently in the Work that become the property of the State shall be new unless specifically stated otherwise in the Contract.

6.2 Except where specifically provided otherwise, whenever any product is specified by the name, trade name, make, model or catalog number of any manufacturer or supplier, the intent is not to limit competition, but to establish a standard of quality that the Director’s Representative has determined is necessary. The words "or equal" shall be deemed inserted in each instance. The Contractor may use any product equal to that named in the Contract Documents that is approved by the Director’s Representative and which meets the requirements of the Contract Documents provided the Contractor gives timely notice of his or her intent in accordance with the submittal and scheduling requirements.

6.3 The Contractor shall have the burden of proving at the Contractor's own cost and expense to the satisfaction of the Director’s Representative that the proposed product is equal to the named product. The Director’s Representative may establish criteria for product approval.

The Director’s Representative shall determine in his or her absolute discretion whether a proposed product is to be approved.

6.4 If the Contractor fails to comply with the provisions of this Article, or if the Director’s

Representative determines that the proposed product is not equal to that named, the Contractor shall supply the product named.

6.5 The Contractor shall have and make no claim for the extension of time or for damages because the Director’s Representative requires a reasonable period of time to consider a product proposed by the Contractor or because the Director’s Representative disapproves such a product.

6.6 Where optional materials or methods are specified, or where “or equal” submissions are approved, the Contractor shall make all adjustments to contingent work, whether the contingent work be the Work of its contract or the Work of another Contract, necessary to accommodate the option or “or equal” product it selects without extra or additional cost.

6.7 The Contractor shall within 48 hours remove from the Premises all materials rejected by the Director’s Representative as failing to conform to the Contract, whether incorporated in the Work or not, and the Contractor shall promptly substitute satisfactory materials in accordance with the Contract and without expense to the Office. In addition, the Contractor shall bear the expense of making good all work of other contractors destroyed or damaged by such removal or replacement.

6.8 Royalties and patents: The Contractor shall pay all royalties and license fees. The

Contractor shall defend all suits or claims for infringement of any patent rights and shall defend, indemnify and save the State harmless from loss on account thereof, except that the State shall be responsible for all such loss when a particular design, process or the product of a particular manufacturer or manufacturers is specified.

6.9 Asbestos Free Materials: All materials used for construction shall be free of asbestos containing materials. If asbestos is found in installed products not previously approved by the State, then it will be the responsibility of the contractor to abate the asbestos containing material and replace the work with new asbestos free materials at no cost to the State.

6.10 The contractor agrees that if the value of this contract exceeds $100,000 all structural steel, reinforcing steel and other major steel items to be incorporate in the Work of this Contract shall be produced and made in whole or substantial part in the United States, its territories or possessions.

ARTICLE 7 – CONTRACTOR'S SUPERVISION

7.1 The Contractor shall designate a competent supervisor for the Work to represent the Contractor at the site at all times with authority to act for the Contractor (“Contractor’s Representative”). The Contractor shall notify the Director’s Representative in writing of the identity of the Contractor’s Representative prior to the commencement of the Work. All directions given the Contractor's Representative shall be as binding as if given to the Contractor.

7.2 Should the Director’s Representative deem any employee of the Contractor incompetent or negligent or for any cause unfit for his or her duty, the Contractor shall dismiss such employee and he or she shall not again be employed on the Work.

7.3 The Contractor’s use of any Subcontractor shall not diminish the Contractor’s obligations to complete the Work in accordance with the Contract. The Contractor shall control and coordinate the Work of its Subcontractors.

7.4 The Contractor shall be responsible for informing its Subcontractors and suppliers of all the terms, conditions and requirements of the Contract Documents including, but not limited to the General Conditions, Supplemental Conditions, the Drawings and Specifications, Appendix A, and changes made by Addenda.

ARTICLE 8 – USE OF PREMISES

8.1 If the Premises are occupied, the Contractor, the Contractor's Subcontractors and their employees shall comply with the regulations governing access to, operation of, and conduct while in or on the Premises and shall perform the Work in such a manner as not to unreasonably interrupt or interfere with the conduct of business.

8.2 The Contractor, the Contractor's Subcontractors and their employees shall not have access to or be admitted into any area of the Premises outside the Site except with the written permission of the Director's Representative.

ARTICLE 9 – PERMITS AND COMPLIANCE WITH APPLICABLE LAWS

9.1 The Contractor shall obtain, maintain and pay for all permits and licenses legally required and shall give all notices, pay all fees, and comply with all laws, rules and regulations applicable to the Work at no additional cost.

9.2 Contractor shall comply with all federal and state laws, codes and regulations applicable to the conduct of the activities authorized by this Contract.

9.3 If, in carrying out this Work, a harmful dust hazard is created for which appliances or methods for the elimination of harmful dust have been approved by the Industrial Board of

Appeals, then the Contractor shall install, maintain and effectively operate such appliances and methods during the life of this Contract; and in case of Contractor’s failure to comply, as provided by Section 222-a of the Labor Law, the Contract shall be void.

9.4 In accordance with Worker’s Compensation Law (WCL) §141-b (Suspension and

Debarment), any person subject to a final assessment of civil fines or penalties or a stop-work order, or that has been convicted of a misdemeanor for a violation of WCL §§ 26 (Enforcement of Payment in Default), 52 (Effect of Failure to Secure Compensation) or 131 (Payroll Records), and any substantially-owned affiliated entity of such person, shall be ineligible to submit a bid on or be awarded any such public work contract or subcontract with the State, any municipal corporation or public body for a period of one (1) year from the final determination or conviction. Any person convicted of a felony under Article 8 (Administration) of the WCL, or a misdemeanor under WCL §§125 (Job Description Prohibited Based on Prior Receipt of Benefits) and 125-a (Civil Enforcement) shall be ineligible to submit a bid or be awarded any public work contract or subcontract with the State, any municipal corporation or public body for a period of five (5) years from such conviction.

9.5 The Contractor certifies and warrants that all heavy-duty vehicles, as defined in New York

State Environmental Conservation Law (ECL) section 19-0323, to be used under this Contract will comply with the specifications and provisions of ECL section 19-0323, as well as any regulations promulgated pursuant thereto, including NYCRR Part 248; which, requires the use of Best Available Retrofit Technology (BART) and Ultra-Low Sulfur Diesel (ULSD) fuel.

9.6 During the term of this Contract, the Contractor agrees to report any observed or suspected illegal activity of its employees, agents or other third parties, to the assigned Director’s Representative, OPRHP Director of Capital Programs, OPRHP Counsel’s Office, the State Inspector General or other law enforcement agency. Failure to report criminal conduct associated with a contract awarded by the Office, shall be considered a material breach of this Contract and may provide grounds for disqualification of the subject Contractor or Subcontractor for award of future contracts. The Contractor shall include the provisions of this section in every subcontract, in such a manner that the provisions will be binding upon each Subcontractor as to work performed in connection with this Contract.

ARTICLE 10 – INSPECTION AND MATERIAL ACCEPTANCE

10.1 The Director's Representative will inspect and test the Work at reasonable times at the Site, unless the Director’s Representative determines to make an inspection or test at the place of production, manufacture or shipment. Such inspection or test shall be conclusive as to whether the material and workmanship inspected or tested conforms to the requirements of the Contract. Such inspection or test shall not relieve the Contractor of responsibility for damage to or loss of the material prior to acceptance. Conducting inspections or tests shall not diminish the Director’s Representative the right to reject the completed Work.

10.2 The Contractor shall, without charge, promptly correct any Work the Director’s Representative determines does not conform to the Contract Documents unless in the public interest the Director’s Representative consents to accept such Work with an appropriate adjustment in the Contract price. The Contractor shall promptly remove rejected material from the Premises.

10.3 If the Contractor does not promptly correct rejected Work including the Work of another contractor or Subcontractor destroyed or damaged by removal, replacement, or correction, the Director’s Representative may (1) correct such Work and charge the cost thereof to the Contractor; or (2) terminate the Contract in accordance with Article 15 of General Conditions.

10.4 The Contractor shall furnish promptly, without additional charge, all facilities, labor, material and equipment reasonably needed to perform in a safe and convenient manner such inspections and tests, as the Director’s Representative requires.

10.5 The Contractor shall keep the Director’s Representative informed of the progress of the

Work and particularly when the Contractor intends to cover Work not yet inspected or tested. All inspection and tests by the Director’s Representative shall be performed in such manner as not to unreasonably delay the Work. The Contractor shall be charged with any additional cost of inspection when the Work is not ready at the time specified by the Director’s Representative for inspection.

10.6 Should the Director’s Representative determine at any time before acceptance of the entire

Work to examine Work already completed by removing, uncovering or testing the same, the Contractor shall, on request, promptly furnish all necessary facilities, labor, materials and equipment to conduct such inspection, examination or test. If such Work is found to be defective or nonconforming in any material respect, the Contractor shall defray all the expenses of such examination and satisfactory reconstruction. If the Work is found to meet the requirements of the Contract Documents, the Director’s Representative shall compensate the Contractor for additional services involved in such examination and reconstruction. If completion of the Work has been delayed, the contractor may request a suitable extension of time.

10.7 No previous inspection or certificates of payment shall relieve the Contractor from the obligation to perform the Work in accordance with the Contract Documents.

10.8 The Contractor shall remedy all defects and pay for the cost of any damage to other Work resulting therefrom, notice of which shall have been provided within a period of one year from the Physical Completion Date in accordance with the General Conditions.

ARTICLE 11 – CHANGE ORDERS

11.1 The Office may make changes by altering, adding to or deducting from the Work, and adjusting the Contract price accordingly. All changes Work shall be executed in conformity with the terms and conditions of the Contract Documents unless otherwise provided in the Order on Contract. Any change in the Contract sum or time for completion shall be adjusted prior to issuing the Order on Contract.

11.2 No written or oral instructions shall be construed as directing a change in the Work unless in the form of an Order of Contract signed by the Office and the Contractor and signed by the NYS Office of State Comptroller. The Order of Contract shall describe or enumerate the Work to be performed and state the price to be added to or deducted from the Contract sum. If the extent or cost of the Work is not determinable until after the changed Work is performed, the Order on Contact shall specify the method for determining the cost and extent of the changed Work when completed. If the Contractor disagrees as to any element of the Order on Contract, the Contractor shall indicate the disagreement in writing on the face of the Order on Contract and promptly proceed in accordance with the Order on Contract.

11.3 If the Contractor is directed to perform Work for which the Contractor believes he or she is entitled to an Order of Contract, the Contractor shall give the Director prompt written notice and await instructions before proceeding to execute such Work. The Director may order the Contractor to execute the Work and proceed under the Disputes Clause.

11.4 The value of any Order of Contract shall be determined by one or more of the following methods:

(a) By acceptance of prices negotiated or established based on estimated cost plus overhead and profit as applicable.

(b) By Prices specifically named in the Specifications or Bid Form.

(c) By acceptance of agreed unit prices based on estimated cost plus overhead and profit as applicable.

(d) By estimate of the actual cost of labor and materials plus overhead and profit, cost to be determined as the work progresses.

(e) By actual cost of labor and materials plus overhead and profit, cost to be determined as the work progresses.

(f) By estimate of the value as deducible from the approved detailed estimate.

11.5 Overhead shall be defined as an allowance to compensate for all costs, charges and expenses, direct or indirect, except for the actual cost of labor and materials as defined by paragraph 11.6. Overhead shall be considered to include, but not limited to insurance (other than as mentioned in paragraph 11.6) bond or bonds, field and office supervisors and assistants above the level of foreman, use of small tools and minor equipment, incidental job burdens, general office expenses, etc.

11.6 Actual cost of labor and material shall be defined as the amount paid for the following costs, to the extent determined reasonable and necessary:

(a) Cost of materials delivered to the job site for incorporation into the Contract

Work. The value of any material removed and disposed of by the Contractor shall be a credit to the Office.

(b) Wages paid to workers and foreman and wage supplements paid to labor organizations in accordance with current labor agreements.

(c) Premiums or taxes paid by the Contractor for Worker’s compensation insurance, unemployment insurance, FICA tax and other payroll taxes as required by law, net of actual and anticipated refunds and rebates.

(d) Sales taxes paid as required by law.

(e) Allowance for use of construction equipment (exclusive of hand tools and minor equipment), as approved for use by the Director’s Representative.

i. Rented equipment will be paid for at the actual rental cost.

ii. Gasoline, oil and grease required for operation and maintenance will be paid for at the actual cost.

iii. When, in the opinion of the Contractor, and as approved by the

Director’s Representative, suitable equipment is not available on the site, the moving of said equipment to and from the site will be paid for at actual cost.

iv. Self-owned equipment, including equipment rented from controlled or affiliated companies. The rate on self-owned equipment used for periods of under five days will be an hourly rate established by taking any published rate which is mutually acceptable to the Contractor and the Director’s Representative and determining an hourly rate on the basis of 22 days per month and eight hours per day. Equipment used for periods of five days or more will be billed at a rate equal to 45% of the monthly rate. In the alternative, the Director’s Representative may approve for reimbursement a rate representing the allocable costs of ownership.

11.7 Regardless of the method used to determine the value of any Order of Contract, the

Contractor will be required to submit evidence satisfactory to the Director to substantiate each and every item that constitutes his or her proposal of the value of the change. The amounts allowed for overhead and profit shall not exceed the applicable percentages as established in the two following paragraphs.

11.8 If the work is done directly by the Contractor, overhead in an amount of 10% may be added if method (a), (c), (d) or (e) is used, and to the cost of the labor and materials plus overhead there may be added 10% for profit. The percentages for overhead and profit may vary accordingly to the nature, extent and complexity of the Work involved, but in no case shall exceed the percentages set forth in this paragraph and in paragraph 11.9. No percentages for overhead and profit will be allowed on payroll taxes or on the premium portion of overhead pay.

11.9 If the Work is done by a subcontractor, subcontractor’s overhead in the amount of 5% may be added to the cost of labor and materials if method (a), (c), (d), and (e) is used and to the cost of labor and materials plus overhead there may be added 10% for the subcontractor’s profit. No percentage for overhead and profit will be allowed on payroll taxes or on the premium portion of overtime pay. However, to the extent that the aggregate dollar value of Orders on Contract exceeds $75,000, the 10% overhead applied to total costs of labor and materials incurred by the prime Contractor shall be reduced to 5%. In addition, on all individual Orders of Contract in excess of $75,000, the overhead shall be no more than 5% of the total actual cost of labor and materials incurred by the Contractor, and the combined Contractor’s overhead and profit allowance applied to subcontract billings shall be no more than 5%.

11.10 The Director shall determine by which of the foregoing methods of value of any changes shall be computed.

11.11 In computing the value of an Order on Contract which involved additions and deductions of Work and the added Work exceeds the omitted Work, overhead and profit shall be computed on the amount by which the cost of additional labor material exceeds the cost of the omitted labor and material, except no additional overhead and profit shall be allowed on value of work determined by method (b) or (f).

11.12 In computing the value of an Order of Contract which involves deductions and additions of

Work and the omitted work exceeds the added Work, the Contractor will be allowed to retain the overhead and profit on the amount by which the omitted Work exceeds the added Work, except that no overhead and profit shall be retained on value of Work determined by method (b) or (f).

11.13 The Contractor may retain overhead and profit on an Order of Contract which involved deductions only, except that no overhead and profit shall be considered on value of Work determined by method (b) or (f).

ARTICLE 12 – SITE CONDITIONS

12.1 If the Contractor encounters subsurface or other latent physical conditions at the Site which differ substantially from those shown, described or indicated in such information provided in the Contract Documents or from any information which is a public record and which subsurface or other latent physical condition could not have been reasonably anticipated from that information or from the Contractor’s own inspection and examination of the Site, the Contractor shall give immediate written notice to the Director’s Representative before any such condition is disturbed. The Director’s Representative shall promptly investigate and, if it is determined that the conditions substantially differ from those that should have been reasonably anticipated, shall make such changes in the Contract Documents as may be required. If necessary, the Contract sum and completion date shall be adjusted by Change Order, to reflect any increase or decrease in the cost of, or time required for, performance of the Contract.

12.2 The Contractor shall protect trees, shrubbery and other natural features or structures within the Premises from being cut, trimmed, or injured, unless directed by the Director’s Representative for preparing the Site for the Work. The Contractor shall prevent employees from tramping in the shrubbery and vehicles from being driven through wooded lands. When necessary, the Contractor shall protect trees adjacent to the premises in a matter satisfactory to the Director’s Representative.

12.3 The Contractor shall provide and replant at its own expense trees, shrubbery, and other natural features destroyed or damaged. The Contractor shall conduct its operations within the Premises as directed by the Director’s Representative.

ARTICLE 13 – SUSPENSION OF WORK

13.1 Suspension of Work: The Director may order the Contractor in writing to suspend, delay, or interrupt performance of all or any part of the Work for a reasonable period of time as the Director, in his or her sole discretion, may determine (“Suspension Order”). The order shall contain the reason or reasons for issuance that may include but shall not be limited to the following: latent field conditions, substantial program revisions, civil unrest, acts of God.

(a) Upon receipt of a Suspension Order, the Contractor shall, as soon as practicable, cease performance of the Work as ordered and take immediate affirmative measures to protect such Work from loss or damage.

(b) The Contractor specifically agrees that a suspension, interruption or delay of the performance of the Work pursuant to this Article shall not increase the cost of performance of the Work of this Contract.

(c) A Suspension Order issued by the Director pursuant to this Article shall have duration not to exceed 30 days. If the Contractor is not directed to resume performance of the Work affected by said Suspension Order prior to the expiration of 30 days, the Contract may be terminated for the convenience of the State and the Contractor shall be reimbursed as provided by Article 15.

13.2 Stop Work Orders: 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, the Director’s Representative may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the Director’s Representative to stop the Work shall not give rise to any duty on the part of the Director’s Representative to exercise this right for the benefit of Contractor or any other party.

(a) Contractor shall bear all direct, indirect and consequential costs of such order to

Contractor to stop Work including but not limited to fees and charges of engineers, architects, attorneys and other professionals, any additional expenses incurred by the Office due to delays to others performing work under a separate contract with the Director’s Representative, and other contractual obligations, and Contractor shall further bear the responsibility for maintaining schedule and shall not be entitled to any extension of contract time or recovery of any delay damages due to the order to stop Work.

(b) In the event that Contractor fails to pay such costs within thirty days after receipt of an invoice from Office, a Change Order or proposed Change Order may be issued incorporating the unpaid amount as an appropriate reduction in the Contract Price. If the parties are unable to agree as to the amount thereof, the Contractor may make a claim therefore as provided in Article 11 of the General Conditions.

ARTICLE 14 – TIME OF COMPLETION AND TERMINATION FOR CAUSE

14.1 All time limits set forth in this Contract are of the Essence. Failure by the Contractor to meet with the Contract deadlines shall be cause for the Office to assess Liquidated Damages.

14.2 Termination for Cause. In addition to all other rights of termination provided by law and in this Contract, if any one or more of the following events shall occur, that is to say.

(a) If Contractor commences a voluntary case under any chapter of the Bankruptcy

Code, as now or hereafter in effect, or if Contractor takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating to the bankruptcy or insolvency;

(b) If a petition is filed against Contractor under any chapter of the Bankruptcy Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against Contractor under any other federal or state law in effect at the time relating to bankruptcy or insolvency;

(c) If Contractor makes a general assignment for the benefit of creditors;

(d) If a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under contract, whose appointment or authority to take charge of property of Contractor is for the purpose of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of Contractor’s creditors;

(e) If Contractor admits in writing an inability to pay its debts generally as they become due;

(f) If Contractor 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 scheduled established under Article 5.1, as revised from time to time, or failure to submit an updated schedule as required by Article 5.2;

(g) If Contractor disregards the authority of the Director’s Representative;

(h) If Contractor filed certification in accordance with New York State Finance Law §

139-k and such certification was intentionally false or intentionally incomplete.

14.3 If in the judgment of the Director, the Contractor fails or refuses to prosecute the Work in accordance with the Contract, or fails to complete the Work within the time provided by the Contract, the Director may terminate the Contract by written notice to the Contractor in the manner set forth in Article 28.2 herein and to the Surety in the manner set forth in the Performance Bond. In such event, the Director shall direct the Surety to complete the Work. If the Surety fails or refuses to complete the Work, the Director may take over the Work and prosecute it to completion by contract publicly let or otherwise and may take possession of and utilize in completing the Work, such of the Contractor's materials, equipment and plant as may be on the Site of the Work. Whether or not the right to terminate is exercised, the Contractor and the Surety shall be liable for any damage to the State resulting from the Contractor's failure or refusal to complete the Work in accordance with the Contract or his or her failure to complete the Work within the time provided by the Contract.

14.4 If the Director terminates the Contract for failure to prosecute the Work, in addition to any damages provided for by law, the delay shall occasion the payment of damages by Contractor which shall consist of Liquidated Damages until the Work is physically completed, plus any increased costs the Office incurs in completing…