GEN Ts & Cs Small Contracts Rev 08 2025 - Final.pdf

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PART II

GENERAL TERMS AND CONDITIONS

OF CONTRACT

(PUR 050 (10/14)

REVISED – AUGUST 2025

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General Terms and Conditions

Section Title Page

1. Contractor's Performance

2. Indemnification

3. Execution of Contract

4. Notice to Proceed

5. Failure to Execute Contract

6. Performance and Payment Bonds

7. Contract Documents

8. Certification Required by Law

9. General Conditions Controlling

10. Conditions Affecting the Work

11. Approved Equals

12. Compliance With Laws

13. Patented Devices, Materials and Processes

14. Insurance-Construction Contracts

15. Conflict of Interest

16. No Waiver of Legal Rights

17. Covenant Against Contingency Fees

18. Site Investigation

19. Differing Site Conditions

20. Changes

21. Modification of Contract Price

22. Variations in Estimated Quantities

23. Suspension of Work

24. Disputes

25. Termination for Convenience

26. Termination for Default iii

27. Liquidated Damages

28. Guarantees

29. Century Compliance Warranty

30. Sales Tax

31. Payments

32. Nondiscrimination in Employment

33. Drug and Alcohol Free Workplace

34. Sexual Harassment

35. Non-Hiring of Officials and Employees

36. Financial Disclosure

37. Political Contribution Disclosure

38. Registration

39. EPA Compliance

40. Occupational Safety and Health Act

41. Retention of Records

42. Multi-Year Contracts Contingent Upon Appropriations

43. Definitions

44. Parking

45. Contractor Reporting of Suspected Child Abuse and Neglect

(November 2024)

PUR 050 (10/14)

REV: (08/25)

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GENERAL TERMS AND CONDITIONS

1. CONTRACTOR'S PERFORMANCE

A. The Contractor shall supervise, direct and be solely responsible for the work, using best skills and proper attention.

B. The Contractor shall be responsible to the University for the acts and omissions of his employees, subcontractors and their agents and employees, and other persons performing any of the work under a contract with the Contractor.

C. 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.

D. The Contractor shall perform all work in a workmanlike manner and in accordance with the requirements of the contract documents, including the furnishing of all materials, services, implements, machinery, equipment, tools, supplies, transportation, labor, and all other items necessary for the satisfactory prosecution and completion of the project in full compliance with the requirements of the contract documents.

E. Upon completion of the project, the Contractor shall promptly remove all implements, surplus property and debris from the project site.

2. INDEMNIFICATION

To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the University and the State of Maryland, their agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the work.

3. EXECUTION OF CONTRACT

After a Notice of Award has been issued, or simultaneously with such notice, the University's Department of Procurement and Business Services shall forward the formal contract form to the Contractor for execution. The Contractor shall

- 5 -execute the contract form and return it, to the Department of Procurement and Business Services within ten (10) days after receipt of same. After receipt of the properly executed contract form, and Payment and Performance bonds if required, the Department of Procurement and Business Services will execute the contract and forward the Contractor a copy. The Contract is not final until executed by the University.

4. NOTICE TO PROCEED

After the contract has been executed, the University will issue to the Contractor a "Notice to Proceed" and this notice will stipulate the date on or before which the Contractor is expected to begin work. The specified contract time shall begin on the day work (other than the erection of the inspector's office, construction stakeout, and mobilization) actually starts or on the day stipulated in the "Notice to Proceed", whichever is earlier. Any preliminary work started or materials ordered before receipt of the "Notice to Proceed", shall be at the risk of the Contractor.

5. FAILURE TO EXECUTE CONTRACT

Failure of the Contractor to execute the contract and file acceptable bonds within the time provided in Section 3 shall be just cause for the payment of liquidated damage guaranteed by the bid bond or other securities at an amount equal to the increased contract price paid by the University as a result of the failure to execute the contract.

In the event that the damages sustained by the University exceed the amount of the bid security, the University reserves the right to proceed against the Contractor for the balance of its damages.

6. PERFORMANCE AND PAYMENT BONDS (Required when initial contract exceeds $100,000.00)

Prior to the award of the contract, the University will provide to the Contractor for execution copies of the Performance Bond and Payment Bond. The bonds must be executed and returned to the University. The premium for the bonds shall be paid by the Contractor. The bonds shall be in the full amount of the contract price.

7. CONTRACT DOCUMENTS

The contract documents include the bid or proposal, contract forms and bonds, general conditions, specifications, amendments, plans and any supplemental written agreements pertaining to the furnishing and installation work hereunder.

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The contract documents collectively form the contract.

8. CERTIFICATIONS REQUIRED BY LAW

A. Contingent Fee Prohibition: At the time the Contractor executes the contract, if not sooner, the Contractor shall truthfully execute a certificate on a form provided to the Contractor by the University which provides that the Contractor has not employed or paid any person consideration which is contingent upon the making of the agreement.

B. Corporate Registration and Tax Payment Certification: At the time the

Contractor executes the contract, if not sooner, the Contractor, if it is a corporation, shall truthfully execute a certificate on a form provided to it by the University which provides that it is a properly registered corporation and that it has and will pay all appropriate taxes prior to final settlement.

9. GENERAL CONDITIONS CONTROLLING

In the event of a conflict between these General Conditions and any other provision of the contract documents, these General Conditions shall prevail unless such other provision expressly provides to the contrary.

10. CONDITIONS AFFECTING THE WORK

The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve the Contractor from responsibility for successfully performing the work without additional expense to the University.

11. APPROVED EQUALS

The terms "Or Equal", "Equal", "Approved Equal" are used as synonyms throughout the specifications. They are implied in reference to all named manufacturers in the specifications unless otherwise stated. Only materials fully equal in all details will be considered. The University's Department of Procurement and Business Services is the final judge as to equality.

12. COMPLIANCE WITH LAWS

The Contractor hereby represents and warrants that:

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A. It is qualified to do business in the State of Maryland and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;

B. It is not in arrears with respect to the payment of any moneys due and owing the State of Maryland, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;

C. It shall comply with all federal, State, and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract; and

D. The contract is governed in all respects by the laws of the State of Maryland without reference to its conflicts of laws principles.

E. It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Contract.

13. PATENTED DEVICES, MATERIALS AND PROCESSES

The Contractor shall pay for all royalties and license fees. He shall defend all suits or claims for infringement of any patent rights and shall save the University and the State of Maryland harmless from loss or account thereof.

14. INSURANCE – CONSTRUCTION CONTRACTS

A. General Requirements:

1. Insurance required to protect the Contractor and the University from liability and all insurance required in accordance with applicable laws and regulations is addressed herein. These provisions apply to all delivery methods (e.g. General Contracting (Design-Bid-Build), Construction Management at Risk and Design-Build) except as noted herein.

2. The amount of insurance coverage specified herein shall be the minimum amount of insurance available to satisfy claims. The Contractor and his subcontractors (as applicable) shall purchase and maintain such insurance with limits of liability as specified herein; or as specified by the Procurement Officer for the project; or as required by law; whichever is greater.

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3. A policy which allows the costs associated with investigating, management or defense of any claim, or any other cost incurred by the insured or the insurance carrier, to be deducted from the policy limits is not acceptable.

4. Required insurance shall be purchased and maintained with a company or companies lawfully authorized to do business in the State of Maryland. Insurance companies providing coverage herein shall have an AM Best rating of A-VII or better.

5. All policies for liability protection, bodily injury, Builder’s Risk or property damage must specifically name on its face, the State of Maryland, the University System of Maryland, the University of Maryland College Park, and the Client Institution (if applicable) as an additionally named insured as respects to operations under the contract and premises occupied by the Contractor provided, however, with respect to the Contractor’s liability for bodily injury or property damage, such insurance shall cover and not exclude Contractor’s liability for injury to the property of the University System and to the persons or property of employees, students, faculty members, agents, officers, regents, invitees or guests of the University System

6. The Contractor shall be responsible for the maintenance of this insurance, whether the work is performed directly by the Contractor;

by any subcontractor; by any person employed by the Contractor or any subcontractor; or by anyone for whose acts the Contractor may be liable.

7. Required insurance policies shall be endorsed to provide forty-five

(45) days (ten (10) days if cancelled due to non-payment) prior written notice by certified mail of any material change, cancellation or non- renewal to:

University of Maryland Department of Procurement and Business Services Construction & Facilities Procurement 2100A Chesapeake Building 4300 Terrapin Trail College Park, MD 20742

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8. Prior to commencement of the work, proof of the required insurance and endorsements shall be provided to the Procurement Officer by submission of certificates of insurance. Updated certificates shall be furnished at least annually and upon renewal of policies. Certificates shall cite the contract number and project title and location. The University may upon written request, demand full certified copies of the insurance policies required under this contract.

9. The required coverage shall be maintained until final completion of the project as evidenced by final payment to the Contractor, with the exception of Builder’s Risk coverage which shall cease upon the University’s written determination of the date of Substantial Completion.

10. The Contractor shall defend, indemnify and hold harmless the

University System of Maryland and the University of Maryland, College Park and their respective officers, employees and agents from any and all claims, liability, losses and causes of action which may arise out of the performance by the Contractor, its employees or agents, of the work covered by this contract.

B. Coverage Required:

1. Insurance coverage shall include:

a. Commercial General Liability ("CGL"): Coverage for general liability claims arising from operations of the Contractor, subcontractors and suppliers, with terms and conditions of the CGL coverage to be provided through the use of ISO Coverage Form CG-00-01-1001 or its equivalent, and shall include at minimum the following:

1. $2,000,000 Per Occurrence Limit;

2. $2,000,000 General Aggregate Limit;

3. $2,000,000 Personal Injury

4. $2,000,000 Products/Completed Operations Limit;

5. Additional Insureds endorsement ISO CG 20 10 and CG

20 37 or their equivalents. As Additional Insured, The University of Maryland, College Park shall have coverage for liability arising out of the Contractors’ ongoing and completed operations performed for the

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University and other entities as named in Section 14.A.5 above (as applicable).

6. Waiver of Subrogation in favor of the University of Maryland, College Park.

7. Policy to be primary and noncontributory as respects to the coverage afforded the University of Maryland, College Park.

8. No exclusion for X, C and U hazards;

9. No exclusion for third party action over claims;

10. No exclusion for punitive damages;

11. Blanket Written Contractual Liability covering all

Indemnity;

12. CGL coverage written on an occurrence form;

13. If the project encroaches within 50 feet of the centerline of a railroad, the policy shall include ISO Endorsement CG 24 17 or its equivalent.

b. Automobile Liability: Coverage for third party legal liability claims arising from bodily injury and/or damage to the property of others from the ownership, maintenance or use of any motor vehicle, both on-site and off-site. Coverage shall include all owned, hired and non-owned vehicles for claims arising out of their use or operation. The minimum limits of such coverage shall be:

1. $1,000,000 Combined Single Limit;

2. Coverage shall provide a Waiver of Subrogation in favor of the University of Maryland, College Park;

3. Coverage shall name the University of Maryland, College Park and other entities as named in Section 14.A.5 above (as applicable) as Additional Insured;

4. If the project encroaches with 50-feet of the centerline of a railroad, Coverage shall include endorsement ISO CA 20 70 or its equivalent.

c. Excess Liability / Umbrella Liability: Coverage for third party legal liability claims against the Contractor that exceed the per occurrence or general aggregate of these underlying policies: General Liability, Employers Liability and Automobile Liability. The minimum limits for such coverage are assigned below, based on the value of the specific agreement under which the Contractor is employed by the University:

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Excess / Umbrella Limit $ 5,000,000 per Occurrence or as specified by the Procurement Officer

1. The University of Maryland, College Park and other entities as named in Section 14.A.5 above (as applicable) shall be named an Additional Insured;

2. Waiver of Subrogation in favor of the University of Maryland, College Park;

3. Policy to be primary and noncontributory in regard to the coverage afforded the University of Maryland, College Park.

d. Workers’ Compensation: Workmen’s Compensation Insurance and

Unemployment Insurance as required by the laws of the State of Maryland

e. Builder’s Risk: The Contractor shall purchase and maintain property insurance (Builders’ Risk) covering the project, including improvements to real property and goods and materials on the site to be incorporated into the project. Such property insurance shall be for the full insurable value of the property covered and shall be written on an “All Risk” basis covering physical loss and damage including theft, vandalism, and malicious mischief, collapse, water damage, and such other perils as may be applicable to the project. Such insurance shall include the interest of the University, the Contractor and all subcontractors as their interest may appear.

1. Coverage sub-limits for earthquake, flood and windstorm damage shall not apply;

2. Coverage shall apply to materials in transit and in storage at off-site locations;

3. There shall be no exclusion for damage to existing property;

4. There shall be no exclusion for hot testing of any kind;

5. Terrorism coverage (TRIA) shall be included;

6. The Contractor is solely responsible for any deductibles required by the Builders Risk policy. The deductible shall not be greater than $25,000.

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7. The Contractor shall include with the property insurance or otherwise purchase and maintain boiler and machinery insurance, which shall specifically cover such insured objects during installation and until final acceptance by the University. This insurance shall include the interest of the University, Contractor and subcontractors (at any tier), all of which shall be named insureds.

8. Partial use or partial occupancy shall not commence until the companies providing property have consented to such partial use or occupancy by endorsement or otherwise. The University and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance.

f. Builders Risk - Optional Coverage: The University at its option and expense may require the Contractor to purchase and maintain coverage for loss of use of the University’s property due to fire or hazards, however caused. Coverage shall include soft costs such as swing space rental costs, housing costs, storage costs or other costs incurred by the University.

g. Contractors’ Property: The Contractor, including its employees or agents, assumes sole responsibility for its own rented, leased or owned equipment and tools, including all property. The University, its employees and agents are not obligated to the loss of such property.

A Waiver of Subrogation is required in favor of the University of Maryland, College Park.

h. Optional Coverages: The following optional coverages may apply. If required, these provisions will be specified in the solicitation by the Procurement Officer:

1. Pollution or Environmental Liability coverage.

2. Projects in/around navigable waterways require United States

Longshore and Harbor Workers (USL&H) coverage endorsement

a. WC 00 01 06 A or its equivalent.

3. Jones Act coverage endorsement WC 00 02 01 A and WC 00 02 03 or their equivalents.

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15. CONFLICT OF INTEREST

No employee of the State of Maryland or any department, commission, agency, or branch thereof, whose duties as such employee include matters relating to or affecting the subject matter of this contract, shall, while such employee, become or be an employee of the party or parties hereby contracting with the said State of Maryland or any department, commission, agency, or branch thereof.

16. NO WAIVER OF LEGAL RIGHTS

Neither the acceptance by the University or any representative of the University nor any payment for or acceptance of the whole or any part of the work nor any extension of time nor any possession taken by the University shall operate as a waiver of any portion of the contract or of any power herein reserved or of any right to damages. The waiver by the University of any breach of the contract shall not be held to be a waiver of any other or subsequent breach.

17. COVENANT AGAINST CONTINGENCY FEES

The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bonafide employees or bonafide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the University shall have the right to terminate this contract without liability or in its discretion, to deduct from the contract price or consideration or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee.

18. SITE INVESTIGATION

The Contractor acknowledges that it has investigated and satisfied itself as to the conditions affecting the work, including but not restricted to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work. The Contractor further acknowledges that it has satisfied it itself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory

- 14 -work done by the University, as well as from information presented by the drawings and specifications made a part of this contract. Any failure by the Contractor to acquaint itself with the available information may not relieve it from responsibility for estimating properly the difficulty or cost of successfully performing the work. The University assumes no responsibility for any conclusions or interpretations made by the Contractor on the basis of the information made available by the University.

19. DIFFERING SITE CONDITIONS

A. The Contractor shall promptly, within five (5) days of observing such conditions and before such conditions are disturbed, notify the Procurement Officer in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract. The Procurement Officer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the contract modified in writing accordingly.

B. No claim of the Contractor under this clause shall be allowed unless the

Contractor has given the notice required in A. above; provided, however, the time prescribed therefore may be extended by the University.

C. No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract.

20. CHANGES

A. The Procurement Officer unilaterally may, at any time, without notice to the sureties, if any, by written order designated or indicated to be a change order, make any change in the work within the general scope of the contract, including but not limited to changes:

1. In the specifications (including drawings and designs);

2. In the method or manner of performance of the work;

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3. In the State-furnished facilities, equipment, materials, services, or site;

or

4. Directing acceleration in the performance of the work.

B. Any other written order or an oral order, including a direction, instruction, interpretation or determination, from the Procurement Officer that causes any such change, shall be treated as a change order under this clause, provided that the Contractor gives the Procurement Officer written notice stating the date, circumstances, and source of the order and that the Contractor regards the order as a change order.

C. Except as herein provided, no order, statement, or conduct of the

Procurement Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment hereunder.

D. Subject to paragraph (F), below, if any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for the performance of any part of the work under this contract, whether or not changed by any order, an equitable adjustment shall be made and the contract modified in writing accordingly; provided, however, that except for requests based on defective specifications, no request for any change under B. above, shall be allowed for any costs incurred more than twenty (20) calendar days before the Contractor gives written notice as therein required; and provided further, that in the case of defective specifications for which the University is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with such defective specifications.

E. If the Contractor intends to request an equitable adjustment under this clause, the Contractor shall, within thirty (30) days after receipt of a written change order under (1) above, or the furnishing of written notice under (A) above, submit to the Procurement Officer a written statement setting forth the general nature and monetary extent of request, unless this period is extended by the University. The statement requesting an equitable adjustment may be included in the notice under (B) above.

F. Each proposed contract modification that affects contract price shall be subject to the prior written approval of the Procurement Officer and other appropriate authorities and to prior certification of the appropriate fiscal authority of fund availability and the effect of the modification on the project budget or the total construction cost. If, according to the certification of the fiscal authority, the contract modification will cause an

- 16 -increase in cost that will exceed budgeted and available funds, the modification may not be made unless sufficient additional funds are made available or the scope of the project is adjusted to permit its completion within the project budget. The Procurement Officer will promptly notify the Contractor if insufficient funds are available to proceed with a contract modification.

G. No request by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract.

21. MODIFICATION OF CONTRACT PRICE

When changes in the work require adjustment of the Contract Price, such modification shall be accomplished as follows:

A. The Contractor shall promptly submit to the University and to the Architect a fully itemized breakdown of the quantities and prices used in computing the value of the requested change along with a detailed explanation and justification for the proposed change regardless of the nature of the change.

B. For all changes in the Work to be performed by a subcontractor, the

Contractor shall furnish the subcontractor's fully itemized breakdown of quantities and prices which shall bear the original signature of a representative of the subcontractor authorized to act for the subcontractor. If requested by the University or the Architect, proposals from suppliers or other supporting data required to substantiate costs shall be furnished.

C. Modification of the Contract Price, when required, shall be determined as follows:

1. When unit prices are stated in the Contract or have been subsequently agreed upon, by application of such unit prices.

2. A lump sum price agreed upon by both the University and Contractor.

3. If the change involves only a credit, the Contract Price will be reduced by the amount it would have cost the Contractor if the work omitted had not been eliminated; including overhead and profit.

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4. If the change involves both a credit and debit, both sums shall be shown and the two sums balanced to determine the adjusted total cost or credit. No allowance to the Contractor shall be made or allowed for loss of anticipated profits on account of any changes in the Work.

5. Unless otherwise specified, the allowable mark-up for combined overhead and profit for work performed by the Contractor with his own forces will be based upon the monetary value of the Work in accordance with the following schedule:

Not to exceed fifteen percent (15%)

These mark-ups shall be applied to additive and deducted charges in the same manner.

6. For work performed by a subcontractor with his own forces, the percentages for combined overhead and profit for a subcontractor will be as stated in Paragraph 5 above. On work partly or solely performed by a subcontractor, the Contractor will be entitled to a markup not to exceed ten percent (10%) of the total cost of the subcontractor's labor, materials overhead and profit, including taxes and Insurance on labor required by statute. These mark-ups shall be applied to additive and deductive changes in the same manner.

7. The allowable mark-up described in Paragraphs 5 and 6 above shall be applied to work performed by the Contractor and first-tier subcontractors only.

8. On all changes in the Work, the Contractor will be reimbursed for his expenditures for Workmen's Compensation Insurance, Social Security Taxes and Unemployment Compensation Taxes covering persons actually engaged upon the Work. The actual increased cost of bonds will be reimbursed. Evidence must be furnished to support the reimbursement of additional bond expense. A fixed percentage mark- up for increased bond expense will not be acceptable. These adjustments shall be applied to additive and deductive changes in the same manner.

9. The cost of foremen and superintendents may be added only when the Change Order makes necessary the hiring of additional supervisory personnel or makes their employment for time additional to that required by the basic contract.

10. The Contractor shall be allowed the actual cost for rental of machine power tools or special equipment, including fuel and lubricants which are necessary to execute the Work required on the change, but no percentages shall be added to this cost. The rental rate is to be agreed upon by the University and the Contractor; the rate shall relate generally to the latest as filed by the Associated Equipment Distributors.

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Reimbursement on rental rates will not be authorized if Contractor owned equipment is used. Owned equipment will be reimbursed on the basis of actual cost.

11. The Contractor may be allowed additional time for performance of additional work.

Requests for additional time must be supported by an analysis of the schedule, demonstrating that critical path work will be impacted by the additional work. No additional/extended overhead shall be provided, for performance of additional work, other than the mark-ups allowed in the preceding paragraphs 5 and 6 above.

12. If the Contractor and the University cannot agree as to the extent the contract time shall be increased for extra work or the extent the contract time shall be reduced for work omitted by the State, the increase or decrease, as the case may be, shall be determined by the Procurement Officer. Any disagreement with this decision may be appealed by the Contractor under the Disputes Clause.

13. No order for change at any time or place shall in any manner or to any extent relieve the Contractor of any of his obligations under the contract.

14. The Architect, with the concurrence from the University, shall have authority to make minor changes in the Work not involving extra cost, and not inconsistent with the purposes of the building. Otherwise, except in any emergency endangering life or property, no extra Work or changes to the Work shall be done unless authorized by the University prior to any such Work or changes to the Work being done.

D. The allowable percentages of cost for overhead and profit are deemed to include, but not be limited to, the following:

1. Job supervision and field office expense required by the Contract, expenses for timekeepers, clerks and watchmen, cost of correspondence of any kind, and insurance not specifically mentioned herein, all expenses in connection with the maintenance and operation of the field office, use of small tools, and cost of small trucks generally used for transporting either workmen, materials, tools or equipment to job location, and incidental job burdens. No percentage allowances will be made for maintenance or operation of

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Contractor's regularly established principal office, branch office or similar facilities.

22. VARIATIONS IN ESTIMATED QUANTITIES

Mandatory provision for only those construction contracts that contain estimated quantity items:

Where the quantity of a pay item in this contract is an estimated quantity and where the actual quantity of such pay item varies more than twenty-five percent (25%) above or below the estimated quantity stated in this contract, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above one hundred twenty-five percent (125%) or below seventy-five percent (75%) of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the Procurement Officer shall, upon receipt of a written request for an extension of time within ten (10) days from the beginning of the delay, or within a further period of time which may be granted by the Procurement Officer before the date of final settlement of the contract, ascertain the facts and make the adjustment for extending the completion date as in his judgment the findings justify.

(Note: Applies only to construction contracts that contain estimated quantity items.)

23. SUSPENSION OF WORK

The Procurement Officer unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of the work for a period of time as may be determined to be appropriate for the convenience of the University. The Contractor shall take reasonable and appropriate action during the period of suspension of work to minimize expenses incurred as a result of the suspension order.

A. 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 the Procurement Officer in the administration of the contract, or by his failure to act within the time specified in this contract (or if no time is specified, within a reasonable time), an equitable adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by an unreasonable suspension, delay, or interruptions, and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruptions to the extent (1) that

- 20 -performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor or (2) for which an equitable adjustment is provided for or excluded under any other provision of this contract.

B. No claim under this clause shall be allowed (1) for any costs incurred more than twenty (20) days before the Contractor shall have notified the Procurement Officer in writing of the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a suspension order), and (2) unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of a suspension, delay, or interruption, but not later than the date of final payment under the contract.

24. DISPUTES

A. This contract is subject to the USM Procurement Policies and Procedures.

B. Except as otherwise provided in this contract or by law, all disputes arising under or as a result of a breach of this contract that are not disposed of by mutual agreement shall be resolved in accordance with this clause.

C. As used herein, claim means a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment or interpretation of contract terms, or other relief, arising under or relating to this contract. A voucher, invoice, or request for payment that is not in dispute when submitted, is not a claim under this clause. However, if the submission subsequently is not acted upon in a reasonable time not to exceed ninety

(90) days, unless a longer period of time is provided by the University, or is disputed as to liability or amount, it may be converted to a claim for the purpose of this clause.

D. Within thirty (30) days after Contractor knows or should have known of the basis for a claim relating to this contract, Contractor shall file a written notice of claim with the Procurement Officer.

E. Contemporaneously with, or within thirty (30) days after, the filing of a notice of claim, Contractor shall submit the written claim to the Procurement Officer.

If Contractor so requests, the Procurement Officer, on conditions the Procurement Officer deems satisfactory to the unit, may extend the time in which Contractor must submit the claim. An example of when a Procurement Officer may grant an extension includes situations in which the Procurement Officer finds that a contemporaneous or timely cost quantification following the filing of the notice of claim is impossible or impractical.

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F. The claim shall set forth all the facts surrounding the controversy. Contractor, at the discretion of the Procurement Officer, may be afforded an opportunity to be heard and to offer evidence in support of the claim.

G. The Procurement Officer shall mail or deliver written notification of the final decision within:

(1) Ninety (90) days after the Procurement Officer receives the claim if the claim is an amount for which the Appeals Board accelerated procedure, set forth in COMAR 21.10.06.12, may be used;

(2) One hundred eighty (180) days after the Procurement Officer receives the claim for a claim not covered under G(1) of this regulation; or

(3) A longer period that the Procurement Officer and Contractor agree to in writing.

H. The final decision may award a contract claim only for those expenses incurred not more than twenty (20) days before Contractor was initially required to have filed the notice of claim.

I. The Procurement Officer's decision is the final action of the University. If the

Procurement Officer fails to render a final decision within the time required, Contractor may deem the failure to be a final decision not to pay the claim.

J. If the final decision grants the claim in part and denies the claim in part, the

University shall pay Contractor the undisputed amount. Payment of the partial claim is not an admission of liability by the University and does not preclude the University from recovering the amount paid if a subsequent determination modifies the final decision.

K. Contractor may file a written appeal with the Maryland State Board of

Contract Appeals within thirty (30) days of receipt of notice of the decision.

L. Pending resolution of a claim, Contractor shall proceed diligently with the performance of the contract in accordance with the Procurement Officer's decision.

25. TERMINATION FOR CONVENIENCE OF THE UNIVERSITY

A. The performance of work under this contract may be terminated by the University in accordance with this clause in whole or from time to time in part,

- 22 -whenever the Procurement Officer shall determine that such termination is in the best interest of the University. Any such termination shall be affected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of work under the contract is terminated and the date upon which such termination becomes effective.

B. After receipt of a Notice of Termination and except as otherwise directed by the Procurement Officer, the Contractor shall:

1. Stop work under the contract on the date and to the extent specified in the Notice of Termination;

2. Place no further orders on subcontracts for materials, services, or facilities except as may be necessary for completion of the portion of the work under the contract as is not terminated;

3. Terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the Notice of Termination;

4. Assign to the University in the manner, at the times, and to the extent directed by the Procurement Officer, all of the right, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the University shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts;

5. Settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts, with the approval or ratification of the Procurement Officer to the extent he may require, which approval or ratification shall be final for all the purposes of this clause;

6. Transfer title and deliver to the University in the manner, at the times, and to the extent, if any, directed by the Procurement Officer, (a) the fabricated or unfabricated parts, work in progress, completed work, supplies, and other material produced as a part of, or acquired in connection with the performance of, the work terminated by the Notice of Termination, and (b) the completed or partially completed plans, drawings, information, and other property which, if the contract had been completed, would have been required to be furnished to the University;

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7. Use best efforts to sell, in the manner, at the times, to the extent, and at the price or prices directed or authorized by the Procurement Officer, any property of the types referred to in (6) above; provided, however, that the Contractor (a) shall not be required to extend credit to any purchaser, and (b) may acquire any such property under the conditions prescribed by and at a price or prices approved by the Procurement Officer; and provided further that the proceeds of any such transfer or disposition shall be applied in reduction of any payments to be made by the University to the Contractor under this contract or shall otherwise be credited to the price or cost of the work covered by this contract or paid in such other manner as the Procurement Officer may direct;

8. Complete performance of such part of the work as may not have been terminated by the Notice of Termination; and

9. Take such action as may be necessary or as the Procurement Officer may direct, for the protection and preservation of the property related to this contract which is in the possession of the Contractor and in which the University has or may acquire an interest. The Contractor may submit to the Procurement Officer a list, certified as to quantity and quality, of any or all items of termination inventory not quality, of any or all items of termination inventory not previously disposed of, exclusive of items the disposition of which has been directed or authorized by the Procurement Officer, and may request the University to remove such items or enter into a storage agreement covering them. Not later than fifteen (15) days thereafter, the University shall accept title to such items and remove them or enter into a storage agreement covering the same, provided, that the list submitted shall be subject to verification by the Procurement Officer upon removal of the items or if the items are stored, within forty five (45) days from the date of submission of the list and any necessary adjustment to correct the list as submitted shall be made prior to final settlement.

C. After receipt of a Notice of Termination, the Contractor shall submit to the Procurement Officer its reasonable costs up to the date of the termination, which may not include anticipatory profits, in the form and with certification prescribed by the Procurement Officer. The request for reasonable costs shall be submitted promptly but in no event later than one (1) year from the effective date of termination, unless one (1) or more extensions in writing are granted by the Procurement Officer, upon request of the Contractor made in writing within such one-year period or authorized extension thereof.

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However, if the Procurement Officer determines that the facts justify such action, the Contractor may submit its request for reasonable costs at any time after such one- year period or any extension thereof. Upon failure of the Contractor to submit its reasonable request for costs within the time allowed, the Procurement Officer may determine, on the basis of information available to the Procurement Officer, the amount, if any, due to the Contractor by reason of the termination and shall thereupon pay to the Contractor the amount so determined.

D. Subject to the provisions of Paragraph C, the Contractor and the

Procurement Officer may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of work pursuant to this clause, which amount or amounts may include a reasonable allowance for profit on work done; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total contract price of work not terminated. The contract shall be amended accordingly and the Contractor shall be paid the agreed amount.

Nothing in Paragraph E of this clause, prescribing the amount to be paid to the Contractor in the event of failure of the Contractor and the Procurement Officer to agree upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this clause, shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the Contractor pursuant to this paragraph.

E. In the event of the failure of the Contractor and the Procurement Officer to agree, as provided in Paragraph D, upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this clause, the Procurement Officer shall pay to the Contractor the amounts determined by the Procurement Officer as follows, but without duplication of any amounts agreed upon in accordance with Paragraph D.

1. With respect to all contract work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of:

a. The cost of such work;

b. The cost of settling and paying claims arising out of the termination of work under subcontracts or orders as provided in paragraph B.5 above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the subcontractor before the effective

- 25 -date of the Notice of Termination of work under this contract, which amounts shall be included in the cost on account of which payment is made under (a) above and;

c. A sum, as profit on a. above, determined by the Procurement

Officer, to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire contract had it been completed, no profit shall be included or allowed under this subdivision c. and an appropriate adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss; and

2. The reasonable cost of the preservation and protection of property incurred pursuant to Paragraph B. 9. and any other reasonable cost incidental to termination of work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of work under this contract.

The total sum to be paid to the Contractor under (1) above shall not exceed the total contract price as reduced by the amount of payments otherwise made and as further reduced by the contract price of work not terminated. Except for normal spoilage and except to the extent that the University shall have otherwise expressly assumed the risk of loss, there shall be excluded from the amounts payable to the Contractor under [1] above, the fair value, as determined by the Procurement Officer, of property which is destroyed, lost, stolen, or damaged so as to become undeliverable to the University, or to a buyer pursuant to paragraph B.7.

F. Costs claimed, agreed to, or determined pursuant to C., D., E. and I. hereof shall be in accordance with the USM Procurement Policies and Procedures as in effect on the date of the contract.

G. The Contractor shall have the right to file a claim, under the clause of this contract entitled "Disputes", from any determination made by the Procurement Officer under Paragraph C., E., or I. hereof, except that if the Contractor has failed to submit his claim within the time prescribed and/or has failed to request extension of such time, the Contractor shall have no such right to file a claim or right of appeal. In any case where the Procurement Officer has made a determination of the amount due under paragraph C., E., or I. hereof, the University shall pay to the Contractor the following: (i) if there is no right to file a claim hereunder and/or if no timely

- 26 -appeal to the Maryland State Board of Contract Appeals has been taken, the amount so determined by the Procurement Officer, or (ii) if an appeal has been taken, the amount finally determined on such claim or appeal.

H. In arriving at the amount due the Contractor under this clause, there shall be deducted (i) all unliquidated advance or other payments or account theretofore made to the Contractor, applicable to the terminated portion of this contract, (ii) any claim which the University may have against the Contractor in connection with this contract, and (iii) the agreed price for, or the proceeds of sale of any materials, supplies, or other things…