C3 WC2608 General_Conditions_71-FA-8.2_Dec_2023 10.24.26..pdf

Contract for Construction 71-FA-8.2 General Conditions Contract No._WC2608 Page 1 of 35

STATE SYSTEM OF HIGHER EDUCATION

COMMONWEALTH OF PENNSYLVANIA

GENERAL CONDITIONS

FOR THE

CONSTRUCTION CONTRACT

TABLE OF CONTENTS

ARTICLE TITLE PAGE

ARTICLE 1 DEFINITIONS 2

ARTICLE 2 GENERAL PROVISIONS 3

ARTICLE 3 THE SYSTEM 3

ARTICLE 4 THE CONTRACTOR 5

ARTICLE 5 SUBCONTRACTORS 9

ARTICLE 6 CHANGES IN THE WORK 10

ARTICLE 7 TIME 11

ARTICLE 8 SUSPENSION OF THE WORK 12

ARTICLE 9 PAYMENTS 14

ARTICLE 10 COMPLETION AND ACCEPTANCE OF THE WORK 16

ARTICLE 11 PROTECTION OF PERSONS AND PROPERTY 18

ARTICLE 12 TERMINATION OF THE CONTRACT 19

ARTICLE 13 DISPUTES 20

ARTICLE 14 MISCELLANEOUS PROVISIONS AND LEGAL MATTERS 23

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ARTICLE 1 - DEFINITIONS

1.1 As used in these General Conditions, and in the Contract Documents, the following terms are defined herein, unless the context clearly dictates otherwise.

a. Contract means the Contract for construction, of which these General Conditions are made a part. The documents comprising the complete Contract Documents are defined in the Standard Form of Contract.

b. Contract Sum, or Contract Price, is the dollar amount stated in the Standard Form of Contract, including any changes authorized by fully-executed Change Orders, and is the total amount payable by the System to the Contractor for performance of the Work under the Contract.

c. Contract Time is the time allowed for substantial completion of the Work, including any changes authorized by fully-executed Change Orders.

d. Amendment is a written order to the Contractor, signed by the System and by all necessary Commonwealth officials as provided by law, and issued after the execution of the Contract, authorizing a change in the terms and conditions of the Standard Form of Contract and/or the General Conditions, and/or any other Contract Documents providing terms and conditions. The Contract terms and conditions may be changed only by Amendment.

e. Change Order is a written order to the Contractor, signed by the System, and issued after the execution of the Contract, authorizing a change in the Work or an adjustment in the Contract Sum and/or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order.

f. Contractor shall be the entity with whom the System has entered into this Contract to construct the Project in accordance with the Contract Documents.

g. Separate Prime Contractors are the entities with whom the System enters into contracts to construct the Project in accordance with the Contract Documents, in accordance with Act 104/Public Law 155 of 1913. "Separate Prime Contractors" is typically differentiated from "Contractor" to indicate contractors other than the specific Contractor with whom the System has entered into the Contract at hand.

h. Subcontractor is a person or entity who has contracted to furnish labor or materials, or has contracted to furnish labor, for a contractor or another subcontractor in connection with the Project.

i. Supplier is a person or entity who is providing materials or equipment, or construction equipment or machinery, but not labor, for a contractor or a subcontractor in connection with the Project.

j. System means the State System of Higher Education, Commonwealth of Pennsylvania; the Office of the Chancellor of the State System of Higher Education; University or Universities of the State System of Higher Education; or any authorized representative of any of them, entering into the Contract.

k. Substantial Completion is when the Work is sufficiently completed in accordance with the Contract Documents, changed as authorized by fully-executed Change Orders, and certified by the System, so that the Project can be used, occupied, and/or operated for its intended use.

In no event shall the project be certified as Substantially Complete until at least ninety percent (90%) of the Work on the Project is complete.

l. Project is the total effort of construction, renovation, improvement, addition to, and/or repair of a facility. The total effort is comprised of one or more construction contracts, one of which is the Contract, plus other necessary contracts, agreements, and purchases for design, management, and equipment, and possibly for furniture and furnishings.

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m. Work means all labor, materials, and equipment, along with the necessary supervision, required and incorporated to complete the construction, renovation, improvement, addition to, and/or repair of a facility specified in, and according to, the Contract Documents.

ARTICLE 2 - GENERAL PROVISIONS

2.1 CONTRACT DOCUMENTS

2.1.1 The Contract Documents are defined in the Standard Form of Contract.

2.1.2 The Contract can be changed by either: (1) an Amendment, or (2) a Change Order. The Contract may be changed only after the Contract has been properly executed by all necessary Commonwealth officials as provided by law. Changes within the scope of the Contract may be ordered by the System. Changes not within the general scope of the Contract must be agreed upon by both parties.

2.1.3 The Contract Documents are complementary, and what is required by any one of the Contract Documents shall be binding as if required by all. Work not covered under any heading, section, branch, class, or trade of the specifications need not be supplied unless it is required elsewhere in the Contract Documents or is reasonably inferable therefrom as being necessary to produce the intended results. Work shown on the drawings is required even if not covered under a specification section. If there is a conflict between the drawings and the specifications, the specifications shall prevail. Words that have well-known technical or trade meaning are used herein in accordance with such recognized meanings. Where the Work is shown in complete detail on only half or a portion of a drawing or there is an indication of continuation, the remainder being shown in outline, the Work drawn out in detail shall be understood to apply to other like portions of the Project.

2.1.4 The intent of the Contract Documents is to describe a functionally complete Project composed of functionally completed systems. 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 of a completed system shall be furnished and performed whether or not specifically called for.

2.1.5 No additions to the Contract Sum will be approved for any labor, equipment, and/or materials to perform Work hereunder unless it can be clearly shown to be beyond the scope and intent of the drawings and specifications and to be absolutely essential to the proper execution of the Work.

2.1.6 All drawings, specifications, and copies thereof furnished by the System are and shall remain the property of the System. They are not to be used on any other project, without permission of the System, and, with the exception of one Contract set for each party to the Contract, are to be returned to the System upon request at the completion of the Work.

ARTICLE 3 - THE SYSTEM

3.1 RIGHT TO STOP THE WORK

If the Contractor fails to correct Work that is not in accordance with the requirements of the

Contract Documents, or repeatedly fails to carry out Work in accordance with the Contract Documents, the System may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the System to stop the Work shall not give rise to a duty on the part of the System to exercise this right for the benefit of the Contractor or any other person or entity.

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3.2 RIGHT TO CARRY OUT THE WORK

If the Contractor fails to satisfactorily carry out the Work in accordance with the Contract

Documents or fails to perform any provision of the Contract, the System may, after three (3) working days written notice to the Contractor, and without prejudice to any other remedy the System may have, make good such failures. In such case, an appropriate change order shall be issued deducting from the payments then or thereafter due the Contractor the cost of correcting such failures, including the cost for the additional services by the Professional or any of the other representatives of the System made necessary by such failure. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor and/or the Contractor's Surety shall pay the difference to the System.

3.3 RIGHT TO AWARD CONTRACTS

The System reserves the right to award other contracts in connection with other portions of the

Project under similar conditions of this Contract.

3.4 REPRESENTATIVES

3.4.1 Representatives designated by the System will have the authority to enforce the Contract, to include inspecting the Work and rejecting all Work not in accordance with the Contract Documents. The System's Representatives may be System staff, the Professional, a Construction Manager, and/or other individuals or parties retained for such purpose.

3.4.2 Only those representatives so designated have authority to change, modify, or alter the Work or incur or cause to be incurred additional obligations beyond the Contract provisions.

3.4.3 The System may retain and designate other representatives, to include but not limited to Inspection and Testing firms, Commissioning Agents, and special consultants, to act as representatives for the System in the administration of specific aspects of the Contract. They may perform functions as determined by their agreements with the System.

3.4.4 In the event the System retains and designates more than one representative, and that directions, instructions, or interpretations given by those representatives are in conflict, the Contractor shall, within three (3) days but before any Work addressed in the conflicting directions, instructions, or interpretations is performed, bring the conflict to the attention of those representatives for resolution. In the event those representatives do not resolve the conflict, the Contractor shall bring the conflict to the attention of the System for resolution.

3.5 THE PROFESSIONAL

3.5.1 If retained and so designated by the System, a Professional architect or engineer may act as representative for the System in the administration of the Contract and may perform any or all of the functions herein, as determined by the Professional’s agreement with the System.

3.5.2 The Professional has the authority to visit the Project site to review progress in accordance with the Contract drawings and specifications, attend job conferences, make progress reports to the System, review and accept/reject the Contractor's Schedule of Values, approve the Contractor's applications for payment, interpret technical aspects of the Contract Documents, reject Work which does not conform to the Contract Documents, review and approve submittals, review and provide an evaluation of the Contractor's Quality Control program, prepare drawings and specifications for change orders, review and accept the Contractor’s proposals for change orders, prepare punchlists, participate in punchlist and completion inspections, and review and approve operating and maintenance instructions, warranties, and related documents required by the Contract.

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3.5.3 The Professional may have additional authorities and perform additional functions as determined by the System necessary to protect the System's interest.

3.6 THE CONSTRUCTION MANAGER

3.6.1 If retained and so designated by the System, a Construction Manager may act as a representative for the System in the administration of the Contract and may perform any or all of the functions stated herein, as determined by the Construction Manager’s agreement with the System.

3.6.2 The Construction Manager may perform any of the same actions the Professional has the authority to perform, either independent of or in conjunction with the Professional.

3.6.3 If given the responsibility by the System, the Construction Manager may perform any of the functions of System staff, except those functions expressed reserved for the Contracting Officer.

3.6.4 If given the responsibility by the System, the Construction Manager may assist in coordination of the activities of the various Separate Prime Contractors, as well as any other contractors, all of whom shall cooperate with him/her. Such coordination may include participation in the development, review, revision, and/or maintenance and updating of the Project construction schedule. Unless expressly provided for in Specification Section 013200, Construction Progress Documentation, the Construction Manager will not have control over or be responsible for the Project construction schedule itself, nor for the execution of the Work in accordance with the approved Project construction schedule, nor over construction means and methods.

ARTICLE 4 - THE CONTRACTOR

4.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS

4.1.1 The Contractor shall perform the Work according to good quality industry standards, practices, and procedures, and in accordance with the Contract Documents and approved submittals.

4.1.2 The Contractor shall accept all conditions as found upon examination of the site, and take field measurements and verify field conditions and compare carefully such measurements and conditions with the Contract Documents before commencing activities. If the Contractor, in the course of construction, finds any conflict, error, or discrepancy on or among the Contract Documents, such conflict, error, or discrepancy shall be immediately referred to the System in writing.

4.1.3 On all Work of a remodeling nature or installation within existing facilities, the actual situation at the site controls any information given which may affect the quantity, size, and quality of materials required for a satisfactorily completed Contract, whether or not such information is indicated on the drawings or within the specifications.

4.1.4 If subsurface exploration, drilling, and/or testing was performed at the Project site, and if information resulting from that exploration, drilling, and/or testing was available to the Contractor by its inclusion in the Technical Plans and Specifications, then the following applies.

Notwithstanding anything to the contrary contained in the Contract Documents, and notwithstanding anything to the contrary contained in the subsurface exploration, drilling, and/or testing reports themselves, such subsurface exploration, drilling, and/or testing reports provided are for informational purposes only, and nothing contained in them shall be deemed to be a representation or warranty with respect to the condition of the Project site and/or any Work required to be performed in connection with the excavation thereof.

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4.2 SUPERINTENDENCE AND MANAGEMENT

4.2.1 Unless Specification Section 011000, Summary, of this Contract contains other requirements for superintendence and/or management, the Contractor shall comply with the provisions below.

4.2.2 Superintendence. At all times during performance of the Work at the Project site, and until the Work is completed and accepted, the Contractor shall have on site a duly authorized and competent superintendent who shall directly supervise the Work. Direct supervision shall be required any time that the Contractor or any of its subcontractors are carrying out Work on the site. Communications given by the System at the Project site to the superintendent shall be as binding as if given to the Contractor. If the Contractor has more than one Separate Prime Contract, the Contractor shall provide a separate superintendent for each Separate Prime Contract. The superintendent shall be acceptable to the System. The System may require the submission of a resume or statement of qualifications for the proposed superintendent. The Contractor shall not change the assigned superintendent without approval of the System. Such approval shall not be unreasonably withheld.

4.2.3 Management. For the duration of the Contract, and until all Contract requirements are completed and final payment is made, the Contractor shall have a duly authorized and qualified project manager for the Contract. The project manager shall be the primary point of contact between the Contractor and the System, and between the Contractor and the design Professional. The project manager shall have the full authority to make decisions and approve Contract changes for the Contractor. If the Contractor has more than one Separate Prime Contract, the Contractor shall provide a separate project manager for each Separate Prime Contract. The project manager shall be acceptable to the System. The System may require the submission of a resume or statement of qualifications for the proposed project manager. The Contractor shall not change the assigned project manager without the approval of the System.

Such approval shall not be unreasonably withheld.

4.3 SUPERVISION AND CONSTRUCTION PROCEDURES

4.3.1 The Contractor shall supervise and direct the Work using the Contractor's best skill and attention to complete the Work in an acceptable manner and in accordance with the Project Schedule (see Article 4.7 Project Schedule). The Contractor shall be solely responsible for the Work performed and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work, unless the Contract Documents give other instructions.

4.3.2 The Contractor shall be responsible for the acts and omissions of all of its employees, all subcontractors and their agents and employees, and all other persons performing portions of the Work under an agreement with the Contractor.

4.4 LABOR AND MATERIALS

4.4.1 The Contractor shall enforce strict discipline and good order and conduct among its employees and other persons carrying out the Work. Every employee shall be fit and skilled in the performance of tasks assigned to them. The Contractor shall comply with reasonable directives given by the System, or by its representatives, concerning interaction with System employees and students, and with the general public.

4.4.2 This Contract may be subject to the provisions, duties, obligations, remedies, and penalties of the Pennsylvania Prevailing Wage Act (43 P.S. § 165-1, et seq.), as amended, which is incorporated herein by reference as if fully set forth herein.

4.4.3 The System anticipates the Contractor will provide products (i.e., products, materials, and equipment as defined in Specification Section 016100, Common Product Requirements) to be incorporated into the Work. Products shall meet or exceed the quality specified in the Contract

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Documents, and shall be new, undamaged, and unused at the time of installation, unless otherwise indicated in the Contract Documents or authorized by the System as a substitution after the Effective Date on this Contract. The Contractor shall produce, upon request, evidence supporting the source of materials used in the Work. The burden of proof of quality for all products provided rests with the Contractor. The costs incurred for substantiating quality shall be borne by the Contractor. If the System accepts substituted products of a lesser quality than specified, the System shall be entitled to a credit equal to the difference in cost of the products specified and the products provided, to include any difference in the cost of delivery, storage, handling, and installation. For any substituted products, the Contractor shall fully warrant and guarantee for the benefit of the System the effectiveness, fitness for the purpose intended, quality, and merchantability of the substituted product. Specification Section 016200, Product Options, provides requirements for requests for substitutions.

4.5 TAXES

Contractor shall pay all sales, consumer, use, and other similar taxes as required by law. Since the System is an instrumentality of the Commonwealth of Pennsylvania, the sale at retail to or use by a construction contractor of certain building machinery and equipment and services thereto that are transferred to the System may possibly be excluded from some or all of such taxes. Forms and directions on the manner of obtaining exclusions from sales taxes may be obtained from the Pennsylvania Department of Revenue.

4.6 UNIFORM CONSTRUCTION CODE; PERMITS, FEES, AND NOTICES

4.6.1 Under the Pennsylvania Uniform Construction Code (UCC), all System facilities fall under the jurisdiction of only the Pennsylvania Department of Labor and Industry (L&I) for plan review and inspection. Local authorities have no jurisdiction for building permits on System facilities.

The System through its Professional is responsible for obtaining the Building Permit. A copy of the Building Permit, which includes a list of the required inspections, is available from the System or its Professional.

4.6.2 The Contractor shall become familiar, and is responsible for complying, with all aspects of the UCC. For purposes of UCC inspections, the Contractor shall be deemed the “owner” as described in the UCC. Each Separate Prime Contractor shall include in the Project Schedule the UCC inspections applicable to their Work. Each Contractor shall be responsible to contact L&I to schedule the required inspections in accordance with the inspection procedures outlined in the Building Permit. Each Contractor shall notify the System of all scheduled inspections and shall inform the System in writing of the results of all inspections.

4.6.3 The Contractor shall complete in a timely manner all Contract requirements necessary for the Project to receive a Certificate of Occupancy.

4.6.4 Unless otherwise called for by the Contract, the System will obtain any required zoning or land use permits from the local municipality having jurisdiction.

4.6.5 Unless otherwise called for by the Contract, the System will obtain any required storm water or other environmental permits from the governmental agency having jurisdiction. The Contractor shall comply with any and all requirements of those permits. The Contractor also may be required to be a Transferee/Co-Permittee on the NPDES permit.

4.6.6 The Contractor shall obtain and pay for all other permits, licenses, and certificates required by Law and/or any public authority for the proper execution and completion of its Work. The Contractor shall furnish proof of payment for all such permits, licenses, and certificates, or proof that no permits, licenses, or certificates are required.

4.6.7 The Contractor shall give all notices and comply with all applicable Laws, ordinances, regulations, rules, and orders of any public authority bearing on the performance of the Work.

If the Contractor observes that any of the Contract Documents is at variance therewith in any

Contract No._WC2608 Page 8 of 35 respect, it shall promptly notify the System in writing. If the Contractor performs any Work knowing it to be contrary to such applicable laws, ordinances, regulations, rules, or orders, and without such written notice to the System, the Contractor assumes full responsibility therefor and shall bear all costs attributable thereto.

4.6.8 The Contractor shall pay all royalties and license fees. It shall defend all suits or claims for infringement of any patent rights and shall save the System harmless from loss on account thereof. The System shall be responsible for all such loss when a particular design, process, or the product of a particular manufacturer or manufacturers is specified. However, if the Contractor has reason to believe that the design, process, or product specified is an infringement on a patent, it shall be responsible for such loss unless it promptly gives such information to the System.

4.7 PROJECT SCHEDULE

4.7.1 The Contractor shall comply with the Project Schedule requirements specified in Specification

Section 013200, Construction Progress Documentation. If a Section 013200 is not provided, the Contractor shall comply with the provisions below.

4.7.2 Within seven (7) days following receipt of Notice to Proceed, the Lead Prime Contractor (see Specification Section 011000, Summary) shall furnish to the System and to any and all other Separate Prime Contractors a practicable schedule of the proposed prosecution of the Work, and the planned dates on which salient features of the Work will start and complete. The Project Schedule shall be coordinated with and accepted and signed by any and all other Separate Prime Contractors, and submitted to the System for review and approval not later than fourteen

(14) days after Notice to Proceed.

4.7.3 The Contractor shall complete portions of the Work in such order of time as may be stated in the Contract Documents or as required in the approved Project Schedule. If the Contractor fails to process the Work according to the approved Project Schedule, the System may require the Contractor to take necessary steps to recover and maintain the Project Schedule, at no additional cost to the System. Necessary steps may include, but are not limited to, additional resources, additional shifts, or overtime operations. If the Contractor refuses or fails to proceed as directed by the System, the System has the right to carry out the Work, and may find the Contractor in breach of its Contract and/or declare the Contractor in default.

4.8 SUBMITTALS

4.8.1 The Contractor shall prepare and process, in accordance with Specification Section 013300, Submittal Procedures, submittals, consisting of the necessary shop drawings, coordination drawings, product data, samples, and other information required to identify the proposed equipment and materials, to support the proposed installation methods, and to establish standards by which the Work will be judged. The preparation and processing of submittals shall not delay the Project or require a time extension to the Contract Time, unless agreed to by the System.

4.8.2 The System's review and approval of a submittal is for conformance with the information given in the Contract Documents and with the design concept of the Project. Approval does not relieve the Contractor of the responsibility for compliance with Contract requirements or with statutory or regulatory requirements. Moreover, the Contractor is responsible for dimensions, quantities, details and connections, fabrication, construction methods, and coordination of trades required for satisfactory construction of all Work.

4.8.3 No portion of the Work requiring a submittal shall be commenced until the submittal has been approved by the System. Any Work commenced by the Contractor prior to approval of the submittal is performed by the Contractor at its own risk.

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4.9 JOB CONDITIONS

4.9.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits, and the Contract Documents, and shall not unreasonably encumber the site with any materials or equipment, unless otherwise permitted by the System. The Contractor shall at all times keep the work site free from accumulation of waste materials or rubbish created by its operations.

4.9.2 The site of the Work is defined by the Limit of Contract line shown on the drawings. The Contractor may only extend its Work beyond this line as may be necessary to satisfy requirements of all permits and to make utility and service connections. Before starting any Work beyond the Limit of Contract, the Contractor shall submit to the System a description of the proposed Work for their review and approval.

4.9.3 The Contractor shall cooperate in the arrangements of the Work, as necessary, to least affect the administration or operation of any present facility. Existing utility services roads and access ways shall not be interrupted without prior approval by the System. The Contractor shall comply with the System's prescribed times for acceptable outage periods.

4.9.4 The Contractor shall at all times afford other contractors reasonable access to the site and material storage areas, and shall perform its Work so as not to interfere with the work of other contractors.

4.9.5 The Contractor shall be responsible for providing temporary heat, light, and water as necessary to execute and protect the Work, and shall maintain adequate ventilation of the work site to ensure proper air quality for human breathing and safe equipment operations. Specific requirements may be provided elsewhere in the Contract Documents, including, but not limited to, Specification Section 015000, Temporary Facilities and Controls.

4.9.6 The Contractor shall protect the Work and stored materials. Specific requirements may be provided elsewhere throughout the Contract Documents.

4.10 CONTRACTOR EVALUATIONS

The Contractor, by entering the Contract, consents to the evaluation of its performance by the

System, or its representatives, and the Contractor understands that any such evaluation may be used in future procurements to determine the Contractor’s responsibility. The System, or its representatives, shall provide the Contractor with notice of any unsatisfactory evaluations and the reasons therefore. In such cases, the Contractor shall be entitled to submit a reply.

ARTICLE 5 - SUBCONTRACTORS

5.1 SUBCONTRACTS

5.1.1 Subcontractors employed by the Contractor are solely responsible to the Contractor, and shall have no contractual relationship with the System.

5.1.2 All Work performed for the Contractor by a subcontractor shall be pursuant to an appropriate agreement between the Contractor and the subcontractor. All agreements between Contractors and subcontractors shall contain provisions requiring all of the following rights and responsibilities:

a. Preserving and protecting the rights of the System under the Contract with respect to the Work to be performed under the subcontract, so that the subcontracting thereof will not prejudice such rights.

b. Requiring that the Work be performed in accordance with the terms, conditions, and requirements of the Contract Documents.

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c. Requiring that all claims for additional costs, extensions of time, or otherwise, with respect to subcontracted portions of the Work, be submitted to the Contractor in the manner provided in the Contract Documents for like claims by the Contractor upon the System.

d. Requiring that each subcontractor and/or supplier fully warrant and guarantee for the benefit of the System as purchaser the effectiveness, quality, and merchantability of any item provided and/or installed by such subcontractor.

e. Requiring that the subcontractor is without privity of Contract to the System and that it agrees by signing the subcontract that it neither acquires nor intends to acquire any rights against the System on a third party beneficiary theory or any others.

5.1.3 The Contractor shall not sublet any part of this Contract without written approval of the System.

Within thirty (30) days after contract award, or within seven (7) days after Notice to Proceed, whichever is sooner, the Contractor shall furnish to the System, for approval, a list of all subcontractors and suppliers it proposes to use under the Contract.

5.1.4 A Contractor may not, except with the consent of the System, have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this Project.

Failure to disclose the names of such subcontractors and/or suppliers shall be sufficient grounds for termination of this Contract. Such failure may also be grounds for the initiation of civil or criminal proceedings.

5.1.5 The System has the right to direct the Contractor to replace any subcontractor to which the System objects for any of the following reasons:

a. The subcontractor has failed to work in accordance with the Contract provisions, rules, and regulations regarding Contractor performance, Contract Compliance, or good order and conduct of its employees.

b. The subcontractor has defaulted or failed to perform on previous System projects.

c. The subcontractor has been suspended or debarred from doing business with the Commonwealth.

ARTICLE 6 - CHANGES IN THE WORK

6.1 CHANGE ORDERS

6.1.1 The System, without invalidating the Contract, and without notice to the Sureties, may, by written order, order changes in the Work within the general scope of the Contract, consisting of additions, deletions, or other revisions. All such changes shall be implemented by a Change Order.

6.1.2 Change Orders shall adjust the Contract Sum and Contract Time accordingly, as they relate to the cost of the Work and the cost of any impacts to the Work, and to the impact on timely completion of the Work. Costs and impacts shall include any and all costs associated with acceleration, stacking, and re-sequencing of the Work required to maintain the Project Schedule. If it is not possible to complete the Work in accordance with the Project Schedule and/or the Contract Time by the acceleration, stacking, or re-sequencing, the Contractor may request an extension of time. Adequate information and proper submission must be provided to validate such a request.

6.1.3 The Contractor agrees that payment under any method noted within this Contract shall be the exclusive compensation for such addition, deletion, or other revision to the original Contract, and that by signing a Change Order, the Contractor agrees to release and waive any and all claims related to that Change Order or the Work contained therein.

6.1.4 When the System and the Contractor are not in total agreement on the terms of a Change Order, or when the amount or extent of the Work related to the Change Order is not known, Contract No._WC2608 Page 11 of 35 the System may issue a unilateral change order, or a Construction Change Directive, directing the Contractor to proceed with a change in the Work. In such cases, the Contractor must proceed with the Work but shall have the right to request an adjustment to the Contract Sum and Contract Time. In such cases, requests for adjustment to the Contract Sum and/or Contract Time must be accompanied by supporting documentation of incurred costs/time.

6.1.5 Minor changes in the Work not affecting the Contract Sum or Contract Time, consistent with the intent of the Contract Documents, may be directed by the System without additional compensation or time extension.

6.2 REQUESTS FOR ADDITIONAL COST OR TIME

6.2.1 If the Contractor desires an increase in the Contract Sum, written notice shall be given to the

System before proceeding to execute any Work which is the subject of the desired increase.

Such request shall be in accordance with Specification Section 012600, Contract Modification Procedures, or other similar formal System procedures.

6.2.2 If the Contractor desires an increase in Contract Time, written notice shall be given to the System, including an estimate of the probable impact on the timely completion of the Work and of any cost associated with that impact.

6.3 CONCEALED OR UNKNOWN CONDITIONS

6.3.1 If conditions are encountered which are: (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents, or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in work of the character provided for in the Contract Documents, then the Contractor shall give written notice to the System promptly, and before conditions are disturbed, and in no event later than seven (7) days after first observance of the conditions.

6.3.2 The System will promptly investigate such conditions. If conditions differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, the System will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the conditions at the site are not materially different from those indicated in the Contract Documents, no change in the terms of the Contract is justified. No adjustment shall be made to the Contract Sum and/or Contract Time, however, for concealed conditions encountered during cutting and patching of Work.

ARTICLE 7 - TIME

7.1 CONTRACT TIME

7.1.1 Time is of the essence. The Contractor shall prosecute the Work diligently and substantially complete the Work in accordance with the Contract Time specified in the Standard Form of Contract.

7.1.2 No on-site Work may take place until Notice to Proceed is issued by the System.

7.1.3 If the System issues a Binding Letter of Intent to Contract prior to Notice to Proceed, the Contractor may rely on the letter to prepare to start Work to the extent authorized by the letter and incur costs in preparation for performance of the Contract.

7.1.4 The Contract Time anticipates inclement and/or adverse weather, and the Contractor shall plan accordingly. Inclement or adverse weather, including but not limited to cold or freezing weather, shall not be considered an excuse for non-performance of Work under this Contract. The

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Contractor shall use such methods of protection as may be necessary to continue to work throughout the period of inclement or adverse weather.

7.2 ADJUSTMENTS TO THE CONTRACT TIME

7.2.1 A time extension for an ordered change in the Work will depend upon the extent, if any, by which the change causes delay in completion of the various elements of construction. Normally a time extension will be granted if the changed Work impacts a Work item on the critical path of the Project Schedule and the scheduled completion date is impacted. For an ordered change in the Work that can reasonably be done concurrent with other Contract Work, without significant addition of labor or equipment, no time extension will be granted.

7.2.2 A change order granting a time extension may provide that the Contract Time will be extended only for those specific elements related to the changed Work and that the remaining Contract Time for all other portions of the Work will not be changed.

7.3 NO-FAULT TIME EXTENSIONS

7.3.1 If delays in completing the Work arise from unforeseen causes beyond the control and without the fault or negligence of either the Contractor or the System, the System may, in its sole discretion, grant a time extension for any such delays by extending the time for completion of the Work, which extension shall constitute the exclusive remedy between the parties. Examples of such causes include, but are not limited to, acts of God, acts of or protection against a public enemy, acts of the Commonwealth in its sovereign capacity, changes in any controlling law or policy of any governmental entity, acts of another contractor in its performance of an agreement with the System, strikes, embargoes, and unusually severe weather. Any such time extension must meet the criteria under Article 7.2.

7.3.2 If unusually severe weather is the basis for Contractor's request for additional time, such request shall be documented by data from a recognized weather authority substantiating that weather conditions were abnormal for the period and could not have been reasonably anticipated. The Contractor shall also substantiate that the unusually severe conditions had an adverse impact on the scheduled completion date.

ARTICLE 8 - SUSPENSION OF THE WORK

8.1 SUSPENSION OF THE WORK

8.1.1 The System may order the Contractor in writing to suspend, delay, or interrupt all or any part of the Work for such period of time as it may determine to be appropriate for the convenience of the System.

8.1.2 If the performance of all or any part of the Work is, for an unreasonable period of time, suspended, delayed, or interrupted:

a. by an act of the System in the administration of this Contract, or

b. by the System's failure to act within the time specified in this Contract, or within a reasonable time if not specified, an adjustment shall be made for any increase in the cost of performance of this Contract (excluding profit) necessarily caused by such unreasonable suspension. The Contract shall be modified in writing accordingly. No adjustment shall be made under this clause for any suspension to the extent that performance would have been so suspended by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other provision of this Contract.

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8.1.3 No claim under this clause shall be allowed unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of such suspension. The claim may not be asserted later than the date of final payment.

8.1.4 The provisions of this Article 8.1 do not apply under conditions enumerated in Article 8.2 or Article 8.3.

8.2 SUSPENSION OF THE WORK DUE TO UNFAVORABLE CONDITIONS

8.2.1 If, in the judgment of the System, the Contractor is taking undue risk of damage to any part of a structure or installation by proceeding with the Work during unfavorable weather or other conditions, then the System may suspend the Work temporarily, either wholly or in part for such periods as are necessary. In case of such suspension, the System may, in its sole discretion, grant a time extension for any such delays by extending the time for completion of the Work, which extension shall constitute the exclusive remedy between the parties. The failure of the System to suspend the Work does not relieve the Contractor of its responsibility to perform the Work in accordance with the Contract Documents.

8.2.2 The System may require a suspension of the Work if, in its opinion, unforeseen conditions warrant such stoppage. When the System directs resumption of the Work, the Contractor shall resume full operations within a period of seven (7) days after the date of written notice to do

so. The System is not liable for any damages, lost overhead, or anticipated profits on account of the Work being suspended.

8.2.3 Any Work done by the Contractor during the period of suspension is its own responsibility. The Contractor shall receive no payment for the Work unless the Work is subsequently resumed and Work done during the suspension can be utilized in the resumed Work.

8.2.4 Suspensions of Work as outlined above shall not in themselves operate to extend the Contract date of completion. Requests for extensions of time shall be submitted in writing by the Contractor, setting forth its reasons for the extension.

8.3 SUSPENSION OF THE WORK FOR FAULT OF THE CONTRACTOR

Should the Contractor fail to comply with the orders of the System relative to any particular parts of the Work, the System may suspend Work on any or all parts of the Work until its orders respecting the particular parts are complied with. In case of such suspension, which shall be considered due to the fault of the Contractor, no extension of time shall be given and no allowance will be made for the expenses incurred by the Contractor during the suspension period.

8.4 SUSPENSION OF THE WORK FOR FAULT OF OTHER SEPARATE PRIME

CONTRACTORS

If the performance of all or any part of the Work is, for an unreasonable period of time, suspended, delayed, or interrupted by an act of another Separate Prime Contractor, or by another Separate Prime Contractor's failure to act within the time specified in this Contract, or within a reasonable time if not specified, the System may, in its sole discretion, grant a time extension for any such delays by extending the time for completion of the Work, which extension shall constitute the exclusive remedy between the parties. Otherwise, Disputes with other Separate Prime Contractors is addressed in Article 13.5.

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ARTICLE 9 - PAYMENTS

9.1 PAYMENTS

9.1.1 Performance by the Contractor in accordance with the requirements of the Contract Documents shall entitle the Contractor to payment by the System. Normally, payment for the Work will be made upon substantial completion and acceptance of the Work. However, when a contract exceeds $25,000 and upon written request, partial payments may, at the discretion of the System, be made after completion of portions of the Work.

9.1.2 The System shall pay the Contractor according to the provisions of this Article for all items that appear on the application for payment and have been satisfactorily completed. Applications for payment will not be considered to be acceptable unless they meet all the requirements specified in Specification Section 012900, Payment Procedures, and as outlined elsewhere in the Contract Documents.

9.1.3 Before any application for payment can be submitted and/or approved, the Contractor shall submit to the System for its approval a detailed breakdown of the costs indicating a schedule of quantities and values for the items of Work included in the Contract, as required in Specification Section 012900, Payment Procedures.

9.1.4 The Contractor warrants and guarantees that title to all Work, materials, and equipment covered by an application for payment, whether incorporated in the Project or not, will pass to the System upon the receipt of such payment, free and clear of all terms, claims, security interests, or encumbrances. Such warrant and guarantee shall not relieve the Contractor from the sole responsibility for all material and Work upon which payments have been made, or the restoration of damaged Work, or waive the right of the System to require the fulfillment of the terms of the Contract.

9.1.5 The System may decline to approve any application for payment, or portion thereof, because of subsequently discovered evidence or subsequent inspections which may nullify the whole or part of any application for payment previously issued, to such extent as may be necessary to protect the System from loss because of:

(1) defective Work not remedied,

(2) failure of the Contractor to make payments properly to subcontractors or for labor, materials, and equipment,

(3) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum,

(4) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay, or

(5) unsatisfactory execution of the Work by the Contractor.

9.2 RETAINAGE

9.2.1 To ensure proper performance of the Contract, the System may retain from all partial payments an amount not to exceed ten percent (10%) of the amount due the Contractor until fifty percent (50%) of the Contract is completed. When the Contract is fifty percent (50%) completed, one half of the amount retained by the System shall be returned to the Contractor. However, the System or their representative must approve the reduction in retainage. The Contractor must be making satisfactory progress, and there must be no specific cause for greater withholding.

The sum to be withheld from the Contractor after the Contract is fifty percent (50%) completed shall not exceed five percent (5%) of the value of the completed Work based on monthly progress payment requests. All money retained by the System may be withheld from the

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Contractor until substantial completion.

9.2.2 In the event a dispute arises between the System and any Separate Prime Contractor, which dispute is based upon increased costs claimed by one Separate Prime Contractor occasioned by delays or other actions of another Separate Prime Contractor, additional retainage in the sum of one and one-half times the amount of any possible liability may be withheld until such time as a final resolution is agreed to by all parties directly or indirectly involved, unless the Contractor causing the additional claim furnishes a bond satisfactory to the System to indemnify the System against the claim.

9.2.3 In absence of sufficient reason, within 20 days of receipt of payment of retainage, the Contractor shall pay all subcontractors with which it has contracted their earned share of the retainage payment the Contractor received.

9.3 WITHHOLDING OF PAYMENTS FOR DEFICIENCY ITEMS

9.3.1 A deficiency item is Work performed but which the System, one of the System's representatives, the Contractor, or another authorized inspector will not certify as being completed according to the Contract Documents.

9.3.2 The System may withhold from any and all partial payments, in addition to retainage identified in Article 9.2, a reasonable amount for a deficiency item. If the System withholds money for a deficiency item, the System shall notify the Contractor of the deficiency item within the timeframe specified in the Contract or 15 calendar days of the date that the application for payment is received.

9.3.3 The Contractor may similarly withhold money from any subcontractor who is responsible for any deficiency item, and must similarly notify the subcontractor, and the System, of the reason within 15 calendar days after receipt of the notice of the deficiency item from the System.

9.4 PROMPT PAYMENT

9.4.1 The System shall make payment, less any applicable retainage and withholdings, to the

Contractor within 45 days of receipt of a proper application for payment. If payment is not made within 45 days, the System shall pay to the Contractor interest on the amount due in accordance with Chapter 39 of the Commonwealth Procurement Code.

9.4.2 For the purposes of this Article, a contract between the Contractor and a subcontractor is presumed to incorporate the terms of the Contract between the Contractor and the System.

When a subcontractor has performed in accordance with the provisions of the Contract, a Contractor shall pay to the subcontractor, and each subcontractor shall in turn pay to its subcontractors, the full or proportioned amount received for each such subcontractor’s work and…