47 ALASKA 2020 SECTION 107 LEGAL RELATIONS AND RESPONSIBILITY TO PU BLIC
107-1.01 LAWS TO BE OBSERVED. The Contractor shall keep fully informed of, observe, and
comply with all federal, state, and local laws, ordinances, and regulations, and all orders and decrees of bodies or tribunals having any jurisdiction or authority, that in any manner affect those engaged or employed on the work or which in any way affect the conduct of the work. The Contractor and the Surety shall defend, indemnify, and hold harmless the State and its representatives against any claim or liability related to violations of any laws, regulations or decrees by the Contractor, the Contractor's agents, the Contractor's employees, a subcontractor at any tier, or a supplier or service provider. The Contractor has the affirmative duty to keep informed of and comply with all laws. The Contractor is not entitled to and shall not rely on any Department employee's interpretation, whether oral or written, of any law, ordinance, or regulation. The Contractor is responsible for conspicuously displaying required posters in an area readily accessible to workers.
1.For wholly state- funded projects, display all posters listed on the Department of Labor and Workforce Development website at http://www.labor.alaska.gov/lss/posters.htm.
2.On projects using federal funds, display posters required by law or funding agency including posters listed on the FHWA website http://www.fhwa.dot.gov/programadmin/contracts/poster.cfm.
107-1.02 PERMITS, LI CENSES, AND TAXES. The terms, conditions, and stipulations in permits
obtained either by the Department or by the Contractor are made a part of this Contract. Permits obtained by t he Department for this project are attached to these Specifications as appendices. Contact names and phone numbers for permits obtained by the Department are shown on the individual permits. The Department will:
1.Secure permits and licenses that the Depar tment determines are required for the construction of the proposed project, and the use of mandatory sources, designated sources and designated material disposal areas for the proposed project; and
2.Modify Department -acquired permits during the performance of the Contract, if deemed necessary by the Engineer. The Contractor shall:
1.Acquire any permits and licenses required to complete the project that are not acquired by the Department;
2.Provide qualified professionals to collect data or perform studies necessary to acquire permits for the use of sites not previously permitted;
3.Give all notices required for the prosecution of the work;
4.Abide by all permits and licenses whether acquired by the Department or by the Contractor;
5.Notify the Engineer promptly if any activity cannot be performed as specified in the permits, and cease conducting the activity until permit modifications or any required additional permits are obtained; 48 ALASKA 20 20 6. Obtain modifications to permits acquired by the Contractor;
7.Pay all charges, fees and taxes;
8.Provide proof of payment of all taxes before the Department makes final payment; and,
9.Provide the information necessary to comply with the Alaska Department of Environmental Conservation, Alaska Pollutant Discharge Elimination System (APDES) to dis charge stormwater from the construction site. Requirements for this permit are given under Section 641, Erosion, Sediment, and Pollution Control. The provisions of permits acquired by the Contractor, and of notices and information under this section does not shift or create responsibility for compliance with Federal or State law to the Department, or otherwise impose a duty for oversight or review. In addition, before using an area on or off project site not previously permitted for use by the Contract, the Contractor shall:
1.Contact all government agencies having possible or apparent permit authority over that area;
2.Obtain all required permits, clearances, and licenses from those agencies;
3.Obtain permission from any property owners or lessees with an inter est in the property; and
4.Provide all of the following to the Engineer:
a.All permits or clearances necessary to use the site for its intended purpose(s);
b.A written statement that all permits or clearances necessary have been obtained;
c.Written evidence that the Contractor has contacted all of the relevant agencies and that no additional permits are required on the part of the Contractor, including at a minimum the name of the agency and staff person contacted, the date contacted, and result of coordination; and
d.A plan that identifies how the site will be finally stabilized and protected. The Engineer may reject a proposed site if the Contractor fails to provide any of the above information or to demonstrate that a proposed site can be finally stabilized to eliminate future adverse impacts on natural resources and the environment.
107-1.03 PATENTED DE VICES, MATERIALS AND PROCESSES. If the Contractor employs
any design, device, material, or process covered by patent, trademark, or copyright, the Contractor shall obtain and provide the Engineer with a copy of a suitable legal agreement with the patentee or owner. The Contractor and the Surety shall defend, indemnify, and hold harmless the State and its representatives and any affected third party or political s ubdivision from any claim, cause of action, and damages for infringement arising from or relating to the Contractor's use of a patented design, device, material, process, trademark, or copyright.
107-1.04 WAGE RATES. The Contractor and all subcontractors s hall pay the current prevailing
rate of wages as per AS 36.05.010 and this Contract. On federally funded projects the Contractor and all subcontractors shall pay the higher of the appropriate wage rates published by the Alaska Department of Labor and the U .S. Department of Labor, for each individual job classification. The Contractor and all subcontractors shall file certified payroll with the Alaska Department of Labor 49 ALASKA 2020 and Workforce Development (DOLWD) and with the Engineer for all work performed on the project. Submit signed and certified payrolls electronically to the DOLWD and the Engineer. Before beginning work the Contractor shall file a Notice of Work with DOLWD and pay all required fees. After finishing work the Contractor shall file a Notice of Completion with DOLWD and pay all additional fees required by increases in the Contract amount.
107-1.05 FEDERAL AID PROVISIONS. When the United States government pays all or any
portion of the cost of a project, the Contractor shall observe all federal laws, rules, and regulations applicable to the project. The Contractor shall allow appropriate federal officials access to inspect the work. The federal government is not a party to the Contract. Federal inspections will not form the basis for any claim for interference with the rights of the Contract parties.
107-1.06 SANITARY, H EALTH, AND SAFETY PROVISIONS. The Contractor shall provide and
maintain neat and sanitary accommodations for employees that meet all federal, state and local requirements. The Contr actor shall comply with federal, state, and local laws, rules, and regulations concerning construction safety and health standards, including U.S. Mine Safety and Health Administration rules when the project includes pit or quarry operations. The Contract or shall not expose the public to, or require any workers to work under, conditions that are unsanitary, hazardous, or dangerous to health or safety. The Contractor is responsible for ensuring all workers are adequately protected. The Contractor shall have a safety and health management program that complies with AKOSH requirements, and includes:
1.A worksite hazard analysis;
2.A hazard prevention and control plan including personal protective equipment and safe work procedures required for specific tasks;
3.New employee training and periodic worker training regarding safety and health;
4.Regular safety meetings with written documentation of attendance, safety topics discussed, worker safety complaints, and corrective actions taken; and
5.A designated safety offic er, employed by the Contractor, who monitors the construction site and is responsible for implementing the safety and health management program. The Contractor and Surety shall defend, indemnify and hold harmless the State of Alaska from all claims, cause s of action and judgments arising from or relating to the Contractor’s failure to comply with any applicable federal, state or local safety requirement, regulation or practice, whether or not listed above.
107-1.07 ARCHAEOLOGI CAL OR HISTORICAL DI SCOVERIES. When the Contractor's
operation encounters prehistoric artifacts, burials, remains of dwelling sites, paleontological remains, shell heaps, land or sea mammal bones, tusks, or other items of historical significance, the Contractor shall:
1.Immediately ce ase operations at the site of the find;
2.Immediately notify the Engineer of the find; and 50 ALASKA 20 20 3. Not disturb or remove the finds or perform further operations at the site of the finds until directed by the Engineer. The Engineer will issue an appropriate C hange Order if the Engineer orders suspension of the Contractor's operations or orders the Contractor to perform extra work in order to protect an archaeological or historical find.
107-1.08 RAILWAY -HIGHWAY PROVISIONS. The Contractor shall conduct all oper ations on or
near a railroad according to the Contract, any contract between the Department and the railroad, and any permits issued by the railroad. The Department shall obtain permits for hauling materials across railroad tracks at locations specified in the Contract. If the Contractor desires additional crossings, the Contractor shall obtain any required permits at the Contractor's expense.
107-1.09 CONSTRUCTIO N OVER OR ADJACENT T O WATERS. The Contractor shall fully
comply with all laws, regulations and permits issued by agencies of the United States and the State of Alaska when working in, over or adjacent to wetlands, tidelands, anadromous fish streams, eagle nests, navigable waters, or coastal waters. The Contractor shall ensure that all work in, over or adjacent to navigable waters is conducted so that free navigation of the waterways is not obstructed and that existing navigable depths are not impaired, except as allowed by the U.S. Coast Guard and the U.S. Army Corps of Engineers.
107-1.10 USE OF EX PLOSIVES. The Contractor shall obey all laws, regulations and permits
applicable to using, handling, loading, transporting, or storing explosives. When using explosives, the Contractor shall take utmost care not to endanger life, property, new construction , or existing portions of the project and facilities that are to remain in place after the project is complete. The Contractor shall provide notice to property owners, the traveling public, and utility companies in the vicinity before using explosives. The Contractor shall provide notice to the Federal Aviation Administration when required by law. The Contractor shall notify police and fire authorities in the vicinity before transporting or using explosives. The Contractor shall provide notice sufficiently in advance to enable all potentially affected parties to take whatever steps they may deem necessary to protect themselves and their property from injury or damage. The Contractor is liable for all property damage, injury, or death resulting from the use of explosives on the project. The Contractor shall indemnify, hold harmless, and defend the State of Alaska from all claims related to the use of explosives on the project, including claims from government agencies alleging that explosives were handled, loaded, transported, used, or stored improperly.
107-1.11 Protection and Restoration of P Roperty and Landscap E.
1.Restoring Areas . Areas used by the Contractor, including haul routes, shall be restored to their original condition after the Contractor’s operat ions are completed. The original condition of an area shall be determined as follows: Prior to commencement of operations, the Engineer and the Contractor shall inspect each area and haul route that will be used by the Contractor and take photographs to document their condition. After construction operations are completed, the condition of each area and haul route will be compared to the earlier photographs. Prior to demobilization the Contractor shall repair damages attributed to its operations. The Contractor agrees that all costs associated with repairs shall be subsidiary to other items of work and will not be paid for directly.
2.Material Disposal Sites. Offsite disposal areas may be at locations of the Contractor’s choice, provided the Contractor obtains written permission from the land owner for such disposal and a waiver of all claims against the State for any damage to such land which may result therefrom, together with all permits required by law for such disposal. A copy of such permission, waiver of claims, and permits shall be filed with the Engineer before commencing 51 ALASKA 2020 work on private property. The Contractor’s selected disposal sites shall also be inspected and approved by the Engineer prior to use of the sites.
3.Property marks . The Contractor shall:
a.Be responsible for and protect from disturbance all land monuments and property marks until the Engineer has approved the witnessing or otherwise referenced their locations; and
b.Not move such monuments or marks without the Engineer's approval.
4.Dam age to property . The Contractor shall:
a.Be responsible for all damage to public or private property resulting from any act, omission, neglect, or misconduct in the manner or method of executing the work;
b.Be responsible for all damage to public or private property resulting from defective work or materials at any time, before, during, or after project completion; and
c.Restore all such damaged property to a condition similar or equal to that existing before the damage occurred, at no additional cost to the De partment.
5.Protection of natural resources . The Contractor shall:
a.Conduct work in a manner that minimizes disturbance to and protects natural resources in compliance with all federal, state, and local laws and regulations;
b.When working near designated we tlands, as defined by the Corps of Engineers, place no fill, nor operate equipment outside the permitted area; and,
c.When working in or near designated anadromous fish streams, as defined by AS 41.14.840 and AS 41.14.870, place no fill or dredge material, n or operate equipment, within or on the banks of the stream (including fording) except as permitted by the State Fish Habitat Permit issued for the project.
6.Hazardous materials . Hazardous materials include but are not limited to petroleum products, oils, solvents, paints, lead based paints, asbestos, and chemicals that are toxic, corrosive, explosive, or flammable. Except as otherwise specified in this Contract, the Contractor shall:
a.Not excavate, nor use for fill, any material at any site suspected of or found to contain hazardous materials or petroleum fuels;
b.Not raze and remove, or dispose of structures that contain asbestos or lead- based paints;
c.Not stockpile, nor dispose of, any material at any site suspected of or found to contain hazardous material s or petroleum;
d.Report immediately to the Engineer any known or suspected hazardous material discovered, exposed, or released into the air, ground, or water during construction of the project;
e.Report any containment, cleanup, or restoration activities ant icipated or performed as a result of such release or discovery; and,
f.Handle and dispose of hazardous material with properly trained and licensed personnel who follow an approved Hazardous Material Control Plan as per Section 641. 52 ALASKA 20 20 7. Protected areas . The C ontractor shall not use land from any park, recreation area, wildlife or waterfowl refuge, or any historical site located inside or outside of the project limits for excess fill disposal, staging activities, equipment or material storage, or for any other purposes unless permitted by the Contract or unless all permits and clearances necessary for such work have been obtained by the Contractor as detailed in Subsection 107- 1.02.
8.Solid waste. The Contractor shall remove all debris, trash, and other solid w aste from the project site as soon as possible and in accordance with the Alaska Department of Environmental Conservation Solid Waste Program.
107-1.12 FOREST PROT ECTION. The Contractor shall:
1.Comply with all laws and regulations of the United States and the State of Alaska, local governments, or other authorities governing the protection of forests and the carrying out of work within forests;
2.Keep forest areas in an orderly condition;
3.Dispose of all refuse and obtain permits for the construction a nd maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other structures in accordance with the requirements of the supervising authorities;
4.Take all reasonable precautions to prevent and suppres s forest fires;
5.Require workers and subcontractors, both independently and at the request of officials, to do all reasonably within their power to prevent and suppress and to assist in preventing and suppressing forest fires; and
6.Make every possib le effort to notify the appropriate forestry agency at the earliest moment of the location and extent of any forest fire.
107-1.13 RESPONSIBIL ITY FOR DAMAGE CLAIM S. The Contractor shall indemnify, hold
harmless, and defend the State of Alaska and its agent s and employees from any and all claims or actions for injuries or damages whatsoever sustained by any person or property that arise from or relate to, directly or indirectly, the Contractor's performance of the Contract; however, this provision has no eff ect if, but only if, the sole proximate cause of the injury or damage is the Department’s negligence. This Contract does not create a third party benefit to the public or any member of the public, nor does it authorize any person or entity not a party to this Contract to maintain a suit based on this Contract or any term or provision of the Contract, whether for personal injuries, property damage, or any other claim or cause of action.
107-1.14 OPENING SEC TIONS OF THE PROJECT TO TRAFFIC. The Engineer may, at their
discretion, order the Contractor to open sections of the work to traffic prior to completion of the entire project. Openings under this section shall not constitute (a) acceptance of the opened sections or any other part of the work or (b) a waiv er of any other provision of the Contract. The Engineer may establish a time period for completing any features of the opened section of work that are behind schedule. The Contractor shall:
1.Maintain the opened portions of the work without additional compensation;
2.Perform all necessary repairs or renewals on the opened sections of the work without additional compensation; and 53 ALASKA 2020 3. Conduct the remainder of the work with minimum interference to traffic.
107-1.15 CONTRACTOR' S RESPONSIBILITY FOR WORK. The Contractor shall be responsible
for implementing all preventative measures necessary to protect, prevent damage, and repair damage to the work from all causes at no additional cost to the Department. This duty continues from the date construction begins until the date specified in a letter of Substantial Completion or Partial Acceptance of a specific section of the project. Where there is a Partial Acceptance, the duty ends only as to the accepted portion of the work. This duty continues during periods of suspended work, except in specific sections the Department has agreed to maintain under Subsection 643- 3.07. The Contractor shall rebuild, repair, restore, and make good all losses or damages to any portion of the work including that caused by vandalism, t heft, accommodation of public traffic, and weather. The Department will only be responsible for loss or damage due to unforeseeable causes beyond the control of and without the Contractor’s fault or negligence, such as Acts of God, the public enemy, and go vernmental authorities. In case of suspension of work from any cause, the Contractor shall take such precautions as may be necessary to prevent damage to the work or facilities affected by the work. This will include providing for drainage and erecting any necessary temporary structures, signs, or other facilities and maintaining all living material such as plantings, seedings, and soddings.
107-1.16 Reserved.
107-1.17 FURNISHING RIGHT -OF-WAY. The Department will secure all necessary right -of-way
or proper ty in advance of construction. Any exceptions will be indicated in the Contract.
107-1.18 PERSONAL LI ABILITY OF PUBLIC OF FICIALS. There shall be no liability upon the
Engineer and their authorized representatives, either personally or as officials of the s tate, in carrying out any of the provisions of this Contract, or in exercising any power or authority granted to them by or within the scope of the Contract, it being understood that in all such matters the Engineer and their authorized representatives act solely as agents and representatives of the State. The Contractor shall bring no suit related to or arising under this Contract naming as defendants any State officer, employee or representative in either their personal or official capacities, and shall i nclude a prohibition to that effect in all subcontracts entered into for this Project.
107-1.19 NO WAIVER O F LEGAL RIGHTS. The Department shall not be precluded nor
estopped by any measurement, estimate, or certificate made either before or after the compl etion and acceptance of the work and payment, from showing the true amount and character of the work performed and materials furnished by the Contractor, nor from showing that any measurement, estimate, or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the Contract. The Department shall not be precluded nor estopped, notwithstanding any measurement, estimate, or certificate and payment, from recovering from the Contractor or the Contractor’s Sureties, or both, such damages as it may sustain by reason of the Contractor's failure to comply with the terms of the Contract. Neither the acceptance by the Department, or by any representative of the Department, 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 Department, shall operate as a waiver by the Department of any portion of the Contract or of any right of the Department to damages. A waiver by the Department of any breach of the Contract shall not be held to be a waiver of any other subsequent breach.
107-1.20 GRATUITY AN D CONFLICT OF INTERE ST. The Contractor shall not extend any loan,
gratuity, or gift of money of any form whatsoever to any employee of the Department, nor will the 54 ALASKA 20 20 Contractor rent or purchase any equipment or materials from any employee of the Department or to the best of the Contractor’s knowledge from any agent of any employee of the Department. The Contractor shall execute and furnish the Department an affidavit certifying that the Contractor has complied with this section before final acceptance.
107-1.21 Federal Aff Irmative Action (Res Erved).
SECTION 108 PROSECUTION AND PROG RESS
108-1.01 SUBCONTRACT ING OF CONTRACT. The Contractor shall submit a Contrac tor Self
Certificatio n for each Subcontractor and each Lower Tier Subcontractor, Form 25D -042, before the Contractor or any subcontractor subcontracts, sells, transfers, assigns, or otherwise disposes of the Contract or any portion of the Contract. The Department has authority to review subcontracts and to deny permission to subcontract work. The Department may penalize the Contractor for false statements or omissions made in connection with Form 25D -042. The Contractor shall perform, with the Contractor's own organization, work amounting to at least 30 percent of the difference between the original Contract price and the price of designated Specialty Items. For the purpose of this Subsection, work is defined as the dollar value of the services, equipment, m aterials, and manufactured products furnished under the Contract. The Engineer will determine the value of the subcontracts based on Contract unit prices or upon reasonable value, if entire items are not subcontracted. The Department’s consent to the subcontracting, sale, transfer, assignment, or disposal of all or a part of the Contract shall not relieve the Contractor and the Surety of responsibility for fulfillment of the Contract or for liability under the bonds regardless of the terms of the transfer or sublet approvals.
1.The Contractor shall ensure that for all subcontracts (agreements):
a.The Department is furnished with one completed Contractor Self Certification, Form 25D-042, for each subcontract.
b.The subcontractors have submitted a Bidder Registrati on, Form 25D -6.
c.The required prompt payment provisions of AS 36.90.210 are included in all subcontracts:
d.A clause is included requiring the Contractor to pay the subcontractor for satisfactory performance according to AS 36.90.210 and within eight working days after receiving payment from which the subcontractor is to be paid;
e.A clause is included requiring the Contractor to pay the subcontractor interest, according to AS 45.45.010(a), for the period beginning the day after the required payment date and ending on the day payment of the amount due is made:
f.A clause is included requiring the Contractor to pay the subcontractor all retainage due under the subcontract, within eight working days after final payment is received from the Department, or after the no tice period under AS 36.25.020(b) expires, whichever is later;
g.A clause is included requiring the Contractor to pay interest on retainage, according to AS 36.90.250 and AS 45.45.101(a):
h.Other required items listed in the Contractor Self Certification Form 25D-042, including but not limited to Form 25D -55H, are included in the su bcontracts;
Source: Alaska Standard Specifications for Highway Construction, 2020 Edition. Pages 75–81 of 584.