General Conditions for Maintenance Contracts.pdf

GENERAL CONDITIONS

FOR

MAINTENANCE CONTRACTS

April 2018

GC-1.01 Definitions

Wherever in these General Conditions or in other contract documents the following terms or abbreviations are used, the meaning shall be as follows:

ORGANIZATIONAL STRUCTURE

The Maryland Department of Transportation is composed of the following Jurisdictions:

1. Maryland Aviation Administration (MAA)

2. Maryland Port Administration (MPA)

3. Maryland Transportation Authority (MDTA)

4. Mass Transit Administration (MTA)

5. Motor Vehicle Administration (MVA)

6. State Highway Administration (SHA) and

7. Office of the Secretary (TSO)

DEFINITIONS

1. Agreement - Contract.

2. Award - The decision by a Jurisdiction to execute a purchase agreement or contract after all necessary approvals have been obtained.

3. Biannual – Twice a year.

4. Bid/Offer - A statement of price, terms of sale, and description of the supplies, services, or construction related services submitted to the State, in response to an

Invitation for Bids or offers under procurement by competitive sealed bidding or comparable small procurement procedures.

5. Biennial – Every two years.

6. Bimonthly – Every two months.

7. Biweekly – Every two weeks.

8. Board - The Board of Public Works of the State of Maryland.

9. Business - Any corporation, partnership, individual, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.

10. Change Order - A written order signed by the responsible Procurement Officer, directing a Contractor to make changes which the changes clause of a contract authorizes the Procurement Officer to order with or without the consent of the

Contractor.

11. Code - The Annotated Code of Maryland.

12. COMAR - Code of Maryland Regulations.

13. Construction - The process of building, adding, altering, converting, relocating, renovating, replacing, repairing, improving, demolishing or restoring any structure, building or other improvement to real property.

14. Contract - Any agreement in writing entered into by a Jurisdiction for the acquisition of supplies, services, construction, or any other item, including:

(a) Awards and notices of award;

(b) Contracts of a fixed-price, cost-reimbursement, cost-plus-a-fixed-fee, fixed-price incentive, or cost-plus incentive fee type;

(c) Contract providing for the issuance of job or task orders;

(d) Leases;

(e) Letter contracts;

(f) Purchase orders;

(g) Supplemental agreements with respect to any of these;

(h) Orders; and

(i) Grants.

Contract does not include:

(a) Collective bargaining agreements with employee organizations; or

(b) Medical, Medicare, Judicare, or similar reimbursement contracts for which eligibility and cost are set by law or regulation.

15. Contract Affidavit - An affidavit in compliance with, and in substantially the same form as set forth, in COMAR 21.07.01.25 and amendments thereto.

16. Contract Drawing - See "Plans"

17. Contract Modification - Any written alteration in the specifications, delivery point, date of delivery, contract period, price, quantity, or other provision of any existing contract, whether accomplished in accordance with a contract provision, or by mutual action of the parties to the Contract. It includes Change Orders, Extra Work Orders, Supplemental Agreements, Contract amendments, reinstatements, or options/renewals.

18. Contractor - Any person (see definition for Person) having a contract with a

Jurisdiction. Contractor does not include any employee claiming such status pursuant to any collective bargaining agreement.

19. Day - Calendar day unless otherwise designated.

20. Department - The Maryland Department of Transportation (MDOT).

21. Engineer - Any person designated by the Jurisdiction or the Procurement Officer, acting directly or through the duly authorized representative, such representative acting within the scope of the assigned duties or authority.

22. Extension - As applied to contracts for the performance of maintenance work or services, means a change in the scope of services to be performed by the Contractor by including in the Contract a requirement for the performance of phases of services not previously included.

23. Extra Work Order – a Change Order (see definition of Change Order).

24. Firm – a Business (see definition of Business).

25. Inspector - The authorized representative of the Procurement Officer assigned to make detailed inspections of any or all portions of the Work, or materials thereof.

26. Invitation for Bids - Any document, whether attached or incorporated by reference, used for soliciting bids under procurement by competitive sealed bidding and small procurement procedures including requests for quotations.

27. Jurisdiction - Any one of the above Administrations or Authorities within the

Maryland Department of Transportation, as listed in Section 1.A.

28. Maintenance - Any work or services necessary for the continued operation or upkeep of a facility, structure, building, grounds, or building system, including built-in equipment or an in-ground system.

29. Minority Business Enterprise (MBE) - State of Maryland minority business certification for participation on State funded contracts as defined in COMAR

21.01.02.01B (54).

30. Notice to Proceed - A written notice to the Contractor of the date on or before which the Contractor shall begin performing the Work to be done under the Contract.

31. Offeror - A person or entity that responds to a Proposal and desires to enter into a contract with the Jurisdiction.

32. Payment Bond - Security as stated in COMAR 21.06.07.01B as a guarantee that

Contractor will pay in full all bills and accounts for materials and labor used in the

Work, as provided by law.

33. Performance Bond - Security as stated in COMAR 21.06.07.01B, guaranteeing complete performance of the Contract.

34. Person - Any individual or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club or other organization or legal entity.

35. Plans - The official drawings issued by the Jurisdiction as part of the contract documents, including those incorporated in the contract documents by reference.

36. Price Proposal - A contractor written price derivation response, with required support documentation and affidavits, to a Jurisdiction request for price from a

Contractor technically selected for a specific Project. The Price Proposal shall be signed by the person(s) required to legally bind the Contractor to the proposal.

37. Procurement Officer - Any person authorized by the Jurisdiction in accordance with law or regulations to formulate, enter into, or administer contracts or make written determinations and findings with respect to them. The term also includes an authorized representative acting within the limits of authority.

38. Proposal - The response by an offeror to a Request for Proposals issued by the

Jurisdiction to obtain a supply or service. The response may include, but not be limited to, an Offeror's price and terms for the proposed Contract, a description of the technical expertise, work experience and other information as requested in the solicitation.

39. Public Improvement - The construction, maintenance and repair of any building, structure or other public work now or hereafter constructed or acquired by the State or any of the Jurisdictions.

40. Quotation – a Bid or Offer

41. Request for Proposals - Any document, whether attached or incorporated by reference, used for soliciting proposals from Offerors under procurement by competitive sealed proposals, noncompetitive negotiations, multi-step and comparable small procurement procedures.

42. Resident Business - A business enterprise that has a Maryland address, is registered to do business in the State of Maryland, employs Maryland residents, and regularly conducts business within the State. The term includes subsidiaries, divisions and branches of a business enterprise headquartered outside of the State of Maryland.

43. Responsible Bidder or Offeror - A person who has the capability in all respects to perform fully the Contract requirements, and the integrity and reliability which will assure good faith performance.

44. Secretary - The Chief Executive Officer of the MDOT.

45. Services - The rendering of a person's time, effort or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance of services. It includes, but is not limited to, professional, personal and/or contractual services provided by attorneys, architects, engineers, accountants, physicians, consultants, appraisers, land surveyors, and property management, where the service is associated with the provision of expertise and/or labor. "Services" does not include the work normally associated with the repair and/or maintenance of facilities, structures, or building systems defined as "maintenance."

46. Specification - A written description of functional characteristics, or the nature of an item to be procured. It may include a statement of any of the user's requirements and may provide for inspection, testing, or preparation of an item before procurement.

Procedures to accomplish tasks may be included.

47. Solicitation – an Invitation for Bids, Request for Proposals, or any other method or instrument used to provide public notice and advertisement of a Jurisdiction's intent to procure supplies, services, and construction, as the same may be permitted and governed under Title 21 of the Code of Maryland Regulations.

48. State - The State of Maryland acting through its authorized representative including any Jurisdiction as listed in Section 1.A.

49. State Agency - Any administration, agency, association, authority, board, bureau, college, commission, committee, council, foundation, fund, department, institute, institution, public corporation, service, trust, university, or other unit of the Executive

Branch of the State Government and including any subunit within any of the foregoing.

50. Subcontractor - Any Person undertaking a part of the Work under the terms of the

Contract, by virtue of an agreement with the Contractor, who, prior to such undertaking, receives the approval of the surety and the Jurisdiction.

51. Superintendent - The executive representative of the Contractor authorized to receive and execute instructions from the Procurement Officer, and/or Inspector that shall supervise and direct the Work.

52. Supplemental Agreement - Any contract modification which is accomplished by the mutual action of the parties.

53. Supplemental Specification - Additions and revisions to the Standard Specifications that generally include new or improved procedures, construction items or materials developed subsequent to the publication of Standard Specifications.

55. Work - The furnishing of all labor, materials, equipment, and other incidentals necessary to the successful completion of the project and the carrying out of all the duties and obligations imposed by the Contract.

Any reference to one gender shall be deemed to include the other gender, unless the Contract clearly requires otherwise.

GC-1.02 Preparation of Bid/Proposal

A. Offeror shall submit its bid/proposal upon the forms furnished by the Jurisdiction; carefully following bid preparation instructions provided. A completed Bid/Proposal Affidavit is an essential part of the bid or proposal submission. A completed Contact Affidavit will be required of the successful Offeror before issuance of notice to proceed.

B. Offerors should give specific attention to the identification of those portions of their proposals, which they deem to be confidential, proprietary information or trade secrets, and provide any written justification of why such materials, upon request, should not be disclosed by the State, under the Maryland Public Information Act, Title 4 of the General Provisions Article of the

Annotated Code of Maryland.

GC-1.03 Site Investigation

The Contractor acknowledges that he has investigated and satisfied himself 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 he has satisfied himself 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 work done by the State, as well as from information presented by the drawings and specifications made a part of this contract. Any failure by the Contractor to acquaint himself with the available information may not relieve him from responsibility for estimating properly the difficulty or cost of successfully performing the work. The State assumes no responsibility for any conclusions or interpretations made by the Contractor on the basis of the information made available by the State.

GC-1.04 Fidelity Bond

Contractor’s employees and the employee of any subcontractor performing security and/or janitorial services must be bonded by a company approved by the Maryland Insurance Commissioner to issue such bonds in Maryland. The bond or bonds shall protect the State against loss by the theft of money or other property from the Property to which the State or others may sustain as a result of fraudulent or dishonest acts of the employees of Contractor and/or its subcontractors, acting alone or in collusion with others, during the term of the Contract. Said bond or bonds shall have a limit of a least $25,000 per occurrence, per employee. Contractor must deliver such bond or bonds to the State no later than five (5) days of the request by the State or prior to award, whichever is earlier.

GC-1.05 Contingent Fee Prohibition

A. The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or bona fide agent, bona fide salesperson, or commercial selling agency working for the Contractor to solicit or secure this

Contract, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson or commercial selling agency, any fee or other consideration contingent on the making of this Contract.

B. For breach or violation of this warranty, the Jurisdiction 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 fee, commission, percentage, brokerage fee, gift or contingent fee.

GC-1.06 Cost and Price Certification

A. The Contractor by submitting cost or price information, including wage rates or other factual unit costs, certifies that, to the best of its knowledge, information and belief, that the information submitted is accurate, complete, and current as of a mutually determined specified date prior to the conclusion of any price discussions or negotiations for:

1. A negotiated Contract, if the total Contract price is expected to exceed $100,000, or a smaller amount set by the Procurement Officer; or,

2. A change order or Contract modification expected to exceed $100,000, or a smaller amount set by the Procurement Officer.

B. The price under this Contract and any change order or modification, including profit or fee, shall be adjusted to exclude any significant price increase occurring because the Contractor furnished cost or price information which, as of the date agreed upon between the parties, was inaccurate, incomplete, or not current.

GC-1.07 Contract Administration

All Work associated with this Contract shall be administered on behalf of the Jurisdiction as the case may be, by the Procurement Officer, or his/her designee.

GC-1.08 Authority of the Procurement Officer

A. The Procurement Officer shall decide all questions which may arise as to the quality and acceptability of materials furnished and Work performed and as to the rate of progress of said

Work; all questions which may arise as to the interpretation of any or all plans and/or specifications; and all questions as to the acceptable fulfillment of the terms of the Contract on the part of the Contractor.

B. The Procurement Officer shall determine the amount and quantity of Work performed and materials to be paid for under the Contract.

C. The Procurement Officer shall have the authority to suspend the Work wholly or in part due to the failure of the Contractor to carry out provisions of the Contract.

D. The Procurement Officer may authorize progress payments for Work satisfactorily completed, subject to such retainage, as the Procurement Officer deems appropriate.

GC-1.09 Compliance with Laws

The Contractor hereby represents and warrants that:

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 monies 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 including the provisions of COMAR Title 21;

and

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

GC-1.10 Initiation of Work

The Contractor shall not commence performance of the Work or Services until it receives a formal written

Notice to Proceed from the Jurisdiction.

GC-1.11 Notice to Proceed and Completion of the Work

A. After the Contract has been executed, the Jurisdiction will, within the time limit specified elsewhere in the Contract documents, issue to the Contractor a Notice to Proceed stipulating the date on or before which the Contractor shall begin Work. The specified Contract time shall begin on the first day that the Contract 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 Contractor's sole risk.

B. The Contractor shall begin Work promptly within the time specified by the Procurement

Officer and shall notify the Procurement Officer at least forty-eight (48) hours before starting

Work. The Contractor shall submit a progress schedule, in writing, to the Procurement Officer within ten (10) days from the date of the Notice to Proceed. This schedule shall be updated and revised to reflect all changes affecting the job progress.

C. After the Work has once been started; it shall be conducted continuously on all acceptable working days without stoppage until the entire Contract is complete. Should the progress of the Work for any reason be discontinued, the Contractor shall notify the Procurement Officer of its intention to stop and shall also notify the Procurement Officer at least twenty-four (24) hours in advance of resuming operations. The Contractor shall confirm said notification in writing.

GC-1.12 Conformity with Contract Requirements

A. All Work performed and all materials furnished shall be in conformity with the Contract requirements. In the event the Procurement Officer finds the materials or the finished product in which the materials are used or the Work performed do not conform to the Contract requirements and have resulted in an inferior or unsatisfactory product, the Work or materials shall be removed and replaced or otherwise corrected by and at the sole expense of the

Contractor.

B. In the event the Procurement Officer finds the materials or the finished product in which the materials are used are not in conformity with the Contract requirements but that acceptable work has been produced, the Procurement Officer shall then make a determination if the Work shall be accepted. In this event, the Procurement Officer will document the basis of acceptance by a change order, which may provide for an equitable adjustment in the Contract price. Any action taken pursuant to this paragraph may not result in an increase of the Contract price.

C. When any article is specified in the Contract by proprietary name, trade name, and/or name of manufacturer with or without the addition of such expressions as "or equal" or "or approved equal," it is to be understood that the article named or the equal thereof is intended, subject to the approval of the Procurement Officer as to the quality thereof; and it is distinctly understood: (a) that the Procurement Officer is to exercise independent judgment in determining, from time to time, whether or not any article proposed to be substituted is the equal of any article so specified; (b) that the decision of the Procurement Officer on all such questions of equality shall be final; and (c) that, in the event of any adverse decision by the

Procurement Officer, no claim of any sort shall be made or allowed against the Procurement

Officer, or the Jurisdiction, because of such decision.

D. The offer of an article by the Contractor for an article specified will raise the presumption that any such substitution it is for the purpose of saving money. If, in such a case, the article is approved, the Jurisdiction shall be given credit in the amount of the difference between the net cost to the Contractor of the article submitted and the price at which he could have obtained the lowest priced article specified. For convenience in checking the credit, if any, the

Contractor shall submit these figures when the offer of substitution is made, and no article shall be considered without such figures.

E. The word "article," wherever used in this Section 1.12, subsection entitled "Equal or Approved

Equal," shall be taken to mean any article, material or thing.

GC-1.13 Inspection of Work

A. All materials and each part or detail of the Work shall be subject at all times to inspection by the Procurement Officer, or other appropriate persons from the Jurisdiction. The Contractor shall be held strictly to the Contract including allowable tolerances, quality of materials and workmanship, and the diligent execution of the Contract. Such inspection may include mill, plant or shop inspection. Any material furnished under the Contract is subject to such inspection. The Procurement Officer, or other appropriate person from the Jurisdiction, shall be allowed access to all parts of the Work and shall be furnished with such information and assistance by the Contractor as is required to make a complete and detailed inspection.

B. If the Procurement Officer so requests, the Contractor, at any time before the Jurisdiction's acceptance of the Work, shall remove or uncover such portions of the finished Work as may be directed. After inspection, the Contractor shall restore said portions of the Work to the standards required by the Contract. Should the Work thus exposed or inspected prove acceptable, adjustments in the Contract time and price will be made by Change Order for the uncovering or removing, and the replacing of the covering or making good of the parts removed. Should the Work so exposed or examined prove unacceptable, the uncovering, removing and/or replacing, shall be at the Contractor's sole expense.

C. When the United States Government or any railroad, corporation or other agency is to pay a portion of the cost of the Work covered by this Contract, a representative of any such entity shall have the right to inspect the Work.

GC-1.14 Removal of Defective Work

A. All Work and materials, which do not conform to the requirements of the Contract, shall be considered unacceptable, unless otherwise determined acceptable under the provisions in GC-

1.12 herein.

B. Any defective Work, whether the result of poor workmanship, use of defective materials, damage through carelessness or any other cause, found to exist, shall be removed and replaced by Work and materials which shall conform to the specifications or shall be remedied otherwise in an acceptable manner authorized by the Procurement Officer. Upon any failure by the Contractor to comply promptly with any order of the Procurement Officer made under the provisions of this Section GC – 1.14, the Procurement Officer shall have the authority to cause defective Work to be remedied or removed and replaced and unauthorized Work to be removed, and to deduct the costs attributable to such corrective notions from any monies due or to become due to Contractor under this Contract.

GC-1.15 Cooperation by Contractor

A. The Contractor shall give the Work the constant attention necessary to facilitate the progress thereof, and shall cooperate with the Procurement Officer and the Jurisdiction’s inspectors in every way possible.

B. The Contractor shall assign to the Contract, as its agent, a competent superintendent capable of communicating in English, capable of reading and thoroughly understanding the Contract documents, and thoroughly experienced in the type of work being performed, who shall receive instructions from the Procurement Officer or an authorized Jurisdiction representative.

The superintendent shall have full authority to execute the orders or directions of the

Procurement Officer without delay, and to promptly supply such materials, equipment, tools, labor and incidentals as may be required. Such superintendent(s) shall be furnished irrespective of the amount of Work sublet. Said superintendent(s) shall be on the project site at all times while the Work is in progress.

GC-1.16 Cooperation with Utilities

A. The Contractor has considered in its bid all of the permanent and temporary utility appurtenances in their present or relocated positions. No additional compensation shall be allowed for normal delays, inconvenience, or damage sustained by the Contractor due to any interference from the said utility appurtenances or the operation of moving them.

B. The Contractor shall have sole responsibility for notifying all affected utility companies prior to the necessity of performing any work on their utilities and shall cooperate with them in achieving the desired results. All damage to utility facilities caused by Contractor's operations shall be the sole responsibility of the Contractor.

C. In the event of interruption to utility service as a result of accidental breakage or as a result of being exposed or unsupported, the Contractor shall promptly notify the proper authority and shall cooperate with said authority in the restoration of service. No Work shall be undertaken around fire hydrants until the local fire authority has approved provisions for continued service.

GC-1.17 Cooperation between Contractors

A. Separate contractors on adjoining or overlapping Work shall cooperate with each other as necessary. Such cooperation shall include but is not limited to, (1) arrangement and conduct of Work, and (2) storage and disposal of materials, etc., by each in such a manner as to not unnecessarily interfere with or hinder the progress of the Work being performed by other contractors. Contiguous Work shall be joined in an acceptable manner.

B. The Jurisdiction shall have the right, at any time, to contract for and perform other work on, near, over or under the Work covered by this Contract. In addition, other work may be performed under the direction of another Jurisdiction or other State agency. The Contractor shall cooperate fully with such other contractors and carefully fit its own Work to such other work as may be directed by the Procurement Officer.

C. In the event of dispute as to cooperation, the Procurement Officer shall act as referee and decisions made by the Procurement Officer will be binding. The Contractor shall make no claims against the Jurisdiction for any inconvenience, delay or loss experienced by the

Contractor because of the presence and/or operations of other contractors.

GC-1.18 Jurisdiction Furnished Material

A. The Contractor shall furnish all materials required to complete the Work, except those specified to be furnished by the Jurisdiction. Materials furnished by the Jurisdiction will be delivered or made available to the Contractor at the point or points specified in the Special

Provisions. All costs of handling and placing all materials, after delivery to the Contractor, are included in the Contract price for the item in connection with which they are used.

B. The Contractor is responsible for all delivered material. Deductions shall be made from any monies due it to make good any shortages and deficiencies, and for any damage which may occur after such delivery from any cause whatsoever, and for any demurrage charges.

C. In cases where materials are supplied by the Jurisdiction and incorporated in the Contract

Work by the Contractor, materials inspection and acceptance will not be a prerequisite for acceptance of the final product as the product pertains to these items.

GC-1.19 Indemnification and Insurance

A. Responsibility for Claims and Liability

1. The Contractor(s) shall protect, defend, indemnify, save harmless, release and discharge the State, Department and the Jurisdictions, their respective officers, agents, and employees from and against all claims, suits, judgments, expenses, actions, damages, and costs of every name and description arising out of or resulting from errors, omissions, negligent acts, negligent performance or nonperformance of any rights or obligations of the Contractor or those of its subcontractors, agents or employees under this Contract, or arising from or based on the violation of applicable federal, State or local law, ordinance, regulations, order or decree, whether by itself or its employees or subcontractors.

2. Further, the Contractor shall pay any claims for personal injury, bodily injury, death, or property damage which the Contractor is legally obligated to pay and shall indemnify the

State, Department and the Jurisdictions, and their respective officers, agents and employees from any third party claim seeking such damages.

3. The provisions of this Section 1.19 A shall survive termination or expiration of this

Contract with respect to any liability arising prior to such termination or expiration.

B. Insurance Requirements

The Contractor or its subcontractor(s) shall carry and maintain in full force and effect for the duration of this Contract, and any supplement or extension thereto, the insurance coverage sufficient to protect the Department, the Jurisdiction, and the State, and their officers, agents, employees, invitees, successors and assigns, from claims which may arise out of or as a result of the Contractor’s or subcontractor’s activities under this Contract. The Contractor or its subcontractor shall obtain and maintain at least the minimum levels of insurance specified, and any other coverage specified by the Jurisdiction, in the amounts specified elsewhere in the Contract documents. The Contractor or its subcontractor shall submit to the Jurisdiction a certificate of insurance indicating the existence of coverage required by this provision. An insurance company authorized to do business in the State of Maryland and approved by the

Jurisdiction shall issue policies.

1. Commercial General Liability Insurance

Occurrence form of Commercial General Liability Insurance with Comprehensive

Broad Form endorsement including, but not limited to, coverage for damage to persons or property arising out of or relating to the performance of Work under this

Contract by the Contractor, its subcontractors, employees and agents.

2. Professional Liability Insurance

Professional Liability Insurance Policy which covers the Indemnification Clauses of this Contract (GC – 1.19 A above and GC – 1.20. A following) as it relates to errors, omissions, negligent acts or negligent performance in the Work performed under this

Contract by the Contractor, its subcontractors, employees and agents.

3. Workers’ Compensation Insurance

Workers' compensation as required by the laws of the State of Maryland, including

Employer's Liability Coverage and coverage for the benefits set forth under the U.S.

Longshoremen and Harbor Workers Compensation Act, the Jones Act, and other federal laws where applicable.

4. Comprehensive Automobile Liability Insurance

Comprehensive Business Automobile Liability covering use of any motor vehicle to be used in conjunction with this Contract, including hire automobiles and non-owned automobiles. Loading and unloading of any motor vehicle shall be covered by endorsement to the automobile liability policy or policies.

C. Prior to the start of Work on any contract, the Contractor shall submit to the Procurement

Officer Certificate(s) of Insurance demonstrating that the Contractor carries insurance against the risks and in the amounts specified elsewhere in the Contract. If at any time during the term of the Contract any of the above required insurance policies are canceled, terminated or modified so that the insurance is not in full force and effect as required herein, the Department or Jurisdiction may terminate this Contract for default, or, at its sole option, the Department or Jurisdiction may obtain insurance coverage equal to that required herein, the full cost of which shall be charged to and paid for by the Contractor. In any such event, the Department or Jurisdiction may in its sole and absolute discretion and not by way of limitation to any other actions it may take, off set the costs of any such insurance coverage against any amounts owed the Contractor, now or in the future.

GC-1.20 Responsibility for Damage Claims

A. The Contractor shall protect, defend, indemnify, save harmless, release and discharge the

State, the Department and the Jurisdictions, and all of their respective officers, employees, agents representatives from all suits, actions, or claims of any character brought on account of any injuries or damages sustained by any person or property in consequence of any neglect in safeguarding the Work or through the use of unacceptable materials in the construction of the improvement, or on account of any act or omission by the said Contractor, or as a result of faulty, inadequate or improper temporary drainage during construction, or on account of the use, misuse, storage or handling of explosives, or on account of any claims or amounts recovered for any infringement of patent, trademark, or copyright, or from any claims or amounts arising or recovered under the Workers' Compensation Laws, or any other law, bylaw, ordinance, order or decree or any claims, suits, judgments, expenses, actions, damages and costs arising from or based on the violation of any federal, State or local law, ordinance, regulation, order or decree, whether by himself or its employees or subcontractors. The

Contractor shall be responsible for all damage or injury to property of any character during the prosecution of the Work resulting from any act, omission, neglect or misconduct, in the manner or method of executing said Work satisfactorily or due to the non-execution of said

Work or at any time due to defective work or materials and said responsibility shall continue until the improvement shall have been completed and accepted.

B. The Contractor shall not be held responsible for any claims arising from accidents incurred because of any traffic and/or general use permitted during the time the project or any section thereof is open to traffic except from accidents which are attributable to the Contractor's negligence.

C. The provisions of Section 1.20 A shall survive termination or expiration of this Contract with respect to any liability arising prior to such termination or expiration.

GC-1.21 Assignment

The Contractor shall not assign this Contract in whole or in part, or any monies due or to become due under this Contract without the prior written consent of the Jurisdiction. Any attempted assignment without such consent is void ab initio. In the event that the Contractor assigns all or any part of the monies due or to become due under this Contract, the instrument of assignment shall contain a clause providing that the right of the assignee in and to any monies due or to become due to the Contractor shall be subject and subordinate to prior claims of all persons, firms and corporations for services rendered or materials supplied for the performance of the Work called for in this Contract.

GC-1.22 General Guaranty

Neither the final acceptance of the Work nor payment therefor nor any provision in the Contract documents nor partial or entire use of the Work by the Jurisdiction shall constitute an acceptance of Work which is not performed in accordance with the Contract documents or relieve the Contractor of liability for any express warranties or responsibility for faulty materials or workmanship. The Contractor shall remedy any defects in the Work, and pay for any damage to other Work resulting from defects in the Work which shall appear within a period of one (1) year from the date of final acceptance of Work, unless a longer period is specified. The

Jurisdiction shall give notice of observed defects with reasonable promptness.

GC-1.23 Final Acceptance and Payment

Upon completion of all the Work under this Contract, the Procurement Officer shall make a final inspection of the entire Work and direct the Contractor to take any corrective action to properly complete the Work. Once the Procurement Officer is satisfied that the Work is properly completed, the Procurement Officer shall certify to the Jurisdiction, in writing, the final acceptance of the entire project. The Jurisdiction, upon receipt and approval of said certificate, shall pay, or cause to be paid, to the Contractor, the whole amount of money then due the Contractor under the terms of the Contract.

GC-1.24 Personal Liability of Public Officials

In carrying out any of the provisions of the Contract, or in exercising any power or authority granted to them by or within the scope of the Contract, there shall be no liability upon the Jurisdiction, Procurement Officer or other authorized representatives, either personally or as officials of the State. It is understood that in all such matters they act solely as authorized agents and representatives of the State.

GC-1.25 Approval Authority

This Contract is subject to any Change Order, Contract Modification, or amendment thereto, and is subject to the approval requirements established by the Secretary of the Department of Transportation, the Maryland

Department of Transportation Motor Vehicle Administration Board, and the Board of Public Works of

Maryland. The Contract shall be considered to bind the parties hereto in accordance with the Constitution and

Laws of the State of Maryland.

GC-1.26 Remedies and Termination

A. Termination for Default

If the Contractor fails to fulfill its obligations under this Contract properly and on time, or otherwise violates any provision of the Contract, the State may terminate the Contract by written notice to the Contractor. The notice shall specify the acts of omission relied on as cause for termination. All finished or unfinished supplies and services provided by the

Contractor shall, at the State's option, become the State's property. The State shall pay the

Contractor fair and equitable compensation for satisfactory performance prior to receipt of notice of termination, less the amount of damages caused by Contractor's breach. If the damages are more than the compensation payable to the Contractor, the Contractor will remain liable after termination and the State can affirmatively collect damages. Termination hereunder, including the determination of the rights and obligations of the parties shall be governed by the provisions of COMAR 21.07.01.11B.

B. Termination for Convenience of the State

The performance of Work under this Contract may be terminated by the State in accordance with this clause in whole, or from time to time in part, whenever the State shall determine that such termination is in the best interest of the State. The State will pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination and all reasonable costs associated with termination of the Contract. However, the Contractor shall not be reimbursed for any anticipatory profits that have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A.

GC-1.27 Delays and Extensions of Time

The Contractor agrees to prosecute the Work continuously and diligently and no charges or claims for damages shall be made by it for any delays or hindrances, from any cause whatsoever, during the progress of any portion of the Work specified in this Contract. Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.

GC-1.28 Differing Site Conditions

A. The Contractor shall, within ten (10) days of discovering any of the following 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; (2) unknown physical conditions at the site of an unusual nature, differing materially from those indicated in this Contract; or (3) 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. Upon receipt of such written notice, 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 State.

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

GC-1.29 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;

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

4. In any 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 Order under this clause or entitle the Contractor to an equitable adjustment hereunder.

D. Subject to subparagraph F. herein, 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 claims based on defective Specifications, no claim for any change under B. above shall be allowed for any costs incurred more than twenty (20) days before the Contractor gives written notice as therein required; and provided further, that in the case of defective

Specifications for which the State 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 assert a claim for an equitable adjustment under this clause, the

Contractor shall, within thirty (30) days after receipt of a written Change Order under A. above or the furnishing of written notice under B. above, submit to the Procurement Officer a written statement setting forth the general nature and monetary extent of such claim, unless this period is extended by the State. The statement of claim hereunder may be included in the notice under B. above.

F. Each Contract modification or Change Order 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 or Change Order on the project budget or the total construction cost. If, according to the certification of the fiscal authority, the Contract Modification or Change

Order will cause an increase in cost that will exceed budgeted and available funds, the modification or Change Order 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.

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

GC-1.30 Negotiated Payment Provision

A. If the Contractor is entitled to an equitable adjustment, the Contractor shall be allowed to add the following maximum percentages for overhead and profit to its costs for labor, materials and equipment:

1. The Contractor for overhead and profit may add 20% for work performed by its forces.

2. 15% may be added only by the first-tier subcontractor for overhead and profit for work performed by the first-tier subcontractor; the Contractor may add an additional

5% of the first-tier subcontractor's costs for labor, material and equipment.

B. The provisions of Section A. 1. and 2., apply only to price adjustments negotiated prior to completion of the added or changed Work and do not apply to Work performed on a force account basis as provided for in Section GC – 1.32.

GC-1.31 Suspension of Work

A. The Procurement Officer unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of the Work for such period of time as the Procurement Officer may determine to be appropriate for the convenience of the Jurisdiction.

B. 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 this Contract or by his/her failure to act within the time specified in this Contract (or if no time is specified, within a reasonable time) an adjustment shall be made for any increase in the cost of performance of this Contract (excluding profit) necessarily caused by such unreasonable suspension, delay, or interruption, and the Contract modified in writing accordingly. No adjustment shall be made under this clause for any suspension, delay, or interruption to the extent: (1) that 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 any equitable adjustment is provided for or excluded under any other provision of this

Contract.

C. 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 such suspension, delay, or interruption, but no later than the date of final payment under the Contract.

GC-1.32 Force Account Work

When the Contractor is required to perform Work because of additions or changes to the Contract for which there are no applicable unit prices in the Contract, the Jurisdiction and Contractor shall make every effort to come to an agreed upon price for the performance of such Work. If an agreement cannot be reached, the

Jurisdiction may give written notice to require the Contractor to do such Work on a force account basis to be compensated in accordance with the following:

A. Labor

For all labor and for foremen in direct charge of the specific operations, the…