RESPONSIBILITY TO PUBLIC
107.01 Laws and Regulations to be Observed. (a) The
Contractor shall keep fully informed of all Federal and State laws, all local laws, ordinances, and regulations, and al l orders and decrees of bodies or tribunals having any jurisdiction or a uthority which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. Further , the Contractor shall at all times observe and comply with all such laws, ordinances, regulations, quarantines, orders, and decrees; and shall protect and indemnify the State and its representatives against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by the Contractor or the Contractor's employees. All work pertaining to Electrical, Plumbing, and/or Building Crafts shall be performed in strict accordance with governing Federal, State, City, and Local Codes and Ordinance s, with particular attention to the current editions of the Arkansas State Plumbing Code and the National Electrical Code as a dopted by the National Fire Protection Association.
b.The Contractor shall comply with applicable Federal , State, and local laws governing safety, health, and sanita tion. The Contractor shall provide safeguards, safety devices , and protective 77 equipment and take any other action necessary to pr otect the life and health of employees on the project and the safety o f the public and to protect property in connection with the performance of the work covered by the Contract. Attention is directed to Federal, State, and local laws, rules, and regulations concerning construction safety and health standards. The Contractor shall not require worker s to work in surroundings or under conditions that are unsanitary or dangerous to their health or safety. All workers within the right-of-way who are exposed either to traffic (vehicles using the highway for travel purp oses) or to construction equipment within the work area shall w ear high- visibility safety apparel meeting the Performance C lass 2 or 3 requirements of the current ANSI/ISEA publication e ntitled American National Standard for High – Visibility Sa fety Apparel and Headwear .
c.Restrictions placed on the employment of labor or o n the scale of pay for the work on a contract will be the requi rements of the Fair Labor Standards Act (Federal Wage-Hour Law) of 1938 , 28 USC §201 et seq., other applicable labor laws, and, whe n included as a part of the Special Provisions, the Department of L abor's schedule of minimum wages for the Contract. For further inform ation regarding overtime or opinions on specific cases, contact the Office of the Wage and Hour Division, Employment Standards Admini stration,
U.S. Department of Labor, Little Rock, Arkansas. The Contractor will be expected to employ Arkansas labor insofar as possible unless such preferential practice is pr ohibited by regulations such as for Federal Aid Contracts.
d.If designated on the bridge layout or where the wor king height above the ground or water surface exceeds 25' (7.7 m) or where other conditions exist that require protection to w orkers against injury from falling, the Contractor shall install s afety nets or life lines with safety belts. All materials and constru ction methods shall comply with the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., and the Safety and Health Reg ulations for Construction promulgated thereunder.
e.The Contractor shall comply with Ark. Code Ann. § 2 -16-101, et seq., and Title VII of USC and regulations promu lgated 78 thereunder. These laws and regulations have been e stablished to prevent the spread of certain plant pest species, c ontrol of pesticides, and control and eradication of Johnson grass. Purs uant to such regulations, the U.S. Department of Agriculture and the Arkansas State Plant Board have established certain domestic quarantine areas within the State of Arkansas for the purpose of pre venting further infestation within and beyond these boundaries. Soil moving equipment operating within or from regu lated areas will be subject to plant quarantine regulations. I n general, these regulations provide for cleaning soil from equipmen t before it is moved from regulated areas. It is the Contractor's responsibility to determine from Federal or State plant pest control authorities the exact area s under control. Any list of regulated areas appearing in the propos al is furnished for information purposes only and represents the most r ecent information available to the Department as of the d ate indicated. Prospective bidders should be aware that the list o f regulated areas is subject to change and they should therefore verify the exact areas under control by contacting the Plant Industry Divi sion of the Arkansas Plant Board or the Plant Protection Progra m offices of the Arkansas District of the U.S. Department of Agricul ture.
f.If the release of a suspect hazardous substance ha s occurred, the Contractor shall notify the Engineer. This wil l not relieve the Contractor or responsible parties of the obligation to notify other appropriate agencies and will not relieve responsib le parties of any liability. Commonly used materials which could be potentially hazardous substances if they are spilled or enter waterbodies are: asphalt materials, concrete, cement, paint, solvents, petro leum products, fertilizers, concrete curing compound, lime, linsee d oil, asphalt additives, and concrete additives. This list is no t all inclusive. Notification should be made if, at any time, there is an indication of a spill. Indicators could be: • Leaking or empty containers, surface staining, che mical odors, vegetation damage, etc. • Oil, grease or petrochemical substances which prod uce residue, coat the banks and/or bottoms of a waterbo dy, or produce a visible, colored film on the surface. 79 • Distinctly visible solids, scum, or foam of a pers istent nature, or slime, bottom deposits, or sludge banks in a wat erbody. The work involved or the delay or cost incident to compliance with these regulations will not be paid for separat ely, but full compensation therefor will be considered included i n the contract unit prices bid for the various items of the Contra ct.
107.02 Permits, Licenses, and Taxes. The Contractor shall
procure all permits and licenses, pay all charges, fees and taxes, and give all notices necessary and incidental to the du e and lawful prosecution of the work. These costs will not be p aid for directly, but will be considered included in the contract uni t prices bid for the various items of the Contract.
107.03 Patented Devices, Materials, and Processes.
Contractors employing any design, device, material, or process covered by letters of patent or copyright shall pro vide for such use by suitable legal agreement with the patentee or ow ner. Contractors and their Sureties shall indemnify and save harmles s the State, any affected third party, or political subdivision from any and all claims for infringement by reason of the use of any such p atented design, device, material, or process, or any trademark or c opyright, and shall indemnify the State for any costs, expenses, and da mages that it may be obliged to pay by reason of any infringement, at any time during the prosecution of or after the completion of the w ork.
107.04 Restoration of Surfaces Opened by Permit. The right
to construct or reconstruct any utility service in the highway or street, or to grant permits for such work, at any t ime, is hereby expressly reserved by the Department for the proper authorities of the political entity in whose jurisdiction the work is done and the Contractor shall not be entitled to any damages eit her for the digging up of the street or for any delay occasioned thereb y. Any individual, firm, or corporation wishing to mak e an opening in the highway must secure a permit from the Depart ment and deposit security in a suitable amount to cover the cost of making the necessary repairs. The Contractor shall allow part ies bearing such permits, and only those parties, to make openings i n the highway. When ordered by the Engineer, the Contractor shall make in an acceptable manner all necessary repairs due to such openings and such necessary work will be paid for as extra work, or as provided in 80 these specifications, and will be subject to the sa me conditions as original work performed.
107.05 Required Contract Provisions. (a) Federal Aid. When
the United States Government pays all or any portio n of the cost of a project, the Federal laws and rules and regulations made pursuant to such laws must be observed by the Contractor, and t he work shall be subject to the inspection of the appropriate Federa l Agency. Such inspection shall in no sense make the Federal Government a party to the Contract and will in no way interfere with the rights of either party thereunder.
b.Non-Federal Aid.
1.Employment Practices.
a.The Contractor will not discriminate against any employee or applicant for employment because of rac e, color, religion, sex, age, disability, or national origin. The Contractor will take affirmative action to ensure that applica nts are employed, and that employees are treated during emp loyment without regard to their race, color, religion, sex, age, disability, or national origin. Such action shall include, but no t be limited to the following: Employment, upgrading, demotion, or transfer; recruitment advertising; layoffs or termination; ra tes of pay or other forms of compensation; and selection for trai ning, including apprenticeship.
b.The Contractor will, in all solicitations or adver tisements for employees placed by or on behalf of the Contrac tor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, disability, or national origin.
c.In the event of the Contractor’s noncompliance wit h the nondiscrimination clauses of this contract, this co ntract may be canceled, terminated, or suspended in whole or in p art.
2.Selection of Subcontractors, Procurement of Materia ls, Leasing of Equipment.
a.The Contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, religion, sex, age, disability, or national origin in the 81 selection and retention of subcontractors, includin g procurement of materials and leases for equipment.
b.In all solicitations, either by competitive biddin g or negotiation made by the Contractor for work to be p erformed under a subcontract, including procurement of mater ials or leases for equipment, each potential subcontractor or supp lier shall be notified by the Contractor of the Contractor’s obli gations under this contract relative to nondiscrimination on the grounds of race, color, religion, sex, age, disability, or national origin.
c.The Contractor shall provide all information and r eports required by the Department and shall permit access to its books, records, accounts, other sources of information, an d its facilities as may be determined by the Department to be pertin ent to ascertain compliance with such directives. Where a ny information required of a Contractor is in the excl usive possession of another who fails or refuses to furni sh this information, the Contractor shall so certify to the Department and shall set forth what efforts have been made by the Contractor to obtain the information.
d.In the event of the Contractor’s noncompliance wit h the nondiscrimination provisions described herein, the Department shall impose such contract sanctions as it may be d etermine to be appropriate, including, but not limited to: 1 . Withholding of payments to the Contractor under the contract until the Contractor complies, and/or
2.Cancellation, termination, or suspension of the contract, in whole or in part.
e.The Contractor shall include nondiscrimination provisions in every subcontract, including procurem ents of materials and leases of equipment. The Contractor shall take such action with respect to any subcontractor or pr ocurement as the Department may direct as a means of enforcing s uch provisions, including sanctions for non-compliance.
3.Nonsegregated Facilities. Upon execution of the Co ntract, the Contractor certifies that segregated facilities are not maintained or provided for employees at any of its establishments , and that employees are not permitted to perform services at any location, 82 where segregated facilities are maintained. As use d in this certification, the term “segregated facilities” mea ns any waiting rooms, work areas, restrooms and washrooms, restaur ants and other eating areas, time clocks, locker rooms and other s torage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provi ded for employees which are segregated by explicit directive or are i n fact segregated on the basis of race, color, religion, age, disabil ity, or national origin, because of habit, local custom, or otherwise. The bidder/subcontractor agrees that, except where iden tical certifications have been obtained from proposed sub contractors and material suppliers for specific time periods; ident ical certification will be obtained from subcontractors prior to the a ward of subcontracts.
4.Waiver of Certificate of Payments. The requirements for certification of payments to DBEs/Non-DBEs, as spec ified in Subsection 103.08(h), are hereby waived and are not required for Non-Federal Aid Projects.
107.06 Sanitary Provisions. The Contractor shall provide and
maintain in a neat, sanitary condition such accommo dations for the use of the employees as may be necessary to comply with the requirements of the State and local Boards of Healt h, or of other bodies or tribunals having jurisdiction.
107.07 Public Safety and Convenience. The Contractor's work
shall at all times be conducted so as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the C ontractor as specified under Subsection 104.05 and Sections 603 and 604, as applicable. The Contractor will be responsible for maintaining U.S. mailboxes within the project limits in such a manne r that the public may receive continuous mail service according to U. S. Postal Service regulations. Unless otherwise provided, up on completion of the project, mailboxes will be replaced as near as practicable to their original location. The Contractor shall be responsible for providing a fence to control livestock in areas where pastures are sever ed or existing 83 fencing is altered under the Contract. Wire fence may be constructed initially, or in lieu thereof, the Cont ractor, at Contractor expense, may elect to provide temporary fencing sui table to contain livestock.
107.08 Railway-Highway Provisions. All work on railroad
property shall be accomplished in strict compliance with the plans, these specifications, and such Special Provisions a s are appropriate to the Contract. All work to be performed by the Contractor in const ruction on the railroad right-of-way shall be performed at such ti mes and in such manner as not to unnecessarily interfere with the m ovement of trains or traffic upon the track of the Railway Company. The Contractor shall use all care and precaution to avoid accident s, damage, or unnecessary delay or interference with the Railway Company's trains or other property. Plans for all sheeting or cofferdams for foundation work adjacent to operated track, and plans of falsework, staging, protective sheeting, or other temporary construction near the operated track shall be approved by the Railway Company. The Cont ractor shall construct the work according to the approved plans.
107.09 Work over Navigable Waters or within Regulat ed
Floodways. (a) Navigable Waters. All work on navigable water shall be so conducted that free navigation of the w aterways will not be interfered with and that the existing navigable depths will not be impaired except as allowed by permit issued by the U.S. Coast Guard and/or the U.S. Army Corps of Engineers (C of E), as applicable, and with Section 110.
b.Regulated Floodways. All work within regulated floodways shall be accomplished within the requirements of al l permits issued by the Federal Emergency Management Agency (FEMA), C of E, or other applicable agencies, and with Section 110.
1.Responsibility for FEMA Permit. Within regulatory floodways all permanent and temporary fills/structu res must be in accordance with FEMA and local governmental require ments. The Department obtains all required permits and/or variances for essential work in the regulated floodway before the Contract is awarded. The Department will apply for Contractor requested variances which it determines are necessary. The C ontractor 84 should be aware that requested temporary fills/stru ctures may not be approved or may require mitigation.
2.Corps of Engineers Section 404 Permit Requireme nts. Placement of temporary fills/structures within a re gulatory floodway may also require alteration of the existin g C of E 404 Permit described in Section 110. The Contractor sh ould refer to Section 110 and the Contract Documents for further details, restrictions, and requirements of Section 404 Permi ts.
3.Compensation and Extension of Contract Time. The Contractor will not be granted additional compensat ion or contract time due to requested floodway variances t hat are considered by the Engineer to be for the convenienc e of the Contractor. If, however, due to no fault of the Co ntractor, a floodway variance is deemed by the Engineer to be n ecessary, additional contract time and/or compensation may be considered according to the provisions of Section 104.
c.Contractor’s Permit Conditions. All permits issued to the Contractor by the U.S. Coast Guard, C of E, or othe r applicable agencies, for the convenience of the Contractor in accomplishing the work, shall be complied with in full and the projec t will not be accepted until the permittor has accepted the work covered by permit. The Contractor will be responsible for obt aining a release from the permittor before acceptance.
107.10 Restraining Conditions. (a) General. A "restraining
condition" is defined as a condition and/or materia l that is, or can reasonably be suspected of being: • Archeologically or historically significant. • Environmentally sensitive. • Hazardous substances or waste.
1.Archeologically or historically significant sites may contain artifacts or the remains of prehistoric/his toric people's dwelling sites. The determination of archeological or historical significance will be made by the Department in coor dination with the appropriate authorities.
2.Environmentally sensitive conditions include, but are not limited to, wetlands, caves, underground streams, a nd habitats of threatened or endangered species. 85 (3) Hazardous substances or waste are defined as: any chemical or biological element, compound, mixture, solution, or substance that, when released to the environment, m ay present substantial danger to public health or welfare or t o the environment. Potentially hazardous substance or waste sites may include, but are not limited to: tanks, drums, containers, and packages (with or without hazardous materials labels), plus any liquids or solids not typical in color, odor, or texture to th e native soils or strata of the site. Any indication that the area w as a dump site or landfill shall constitute a reason to stop work in that area until a determination can be made as to whether hazardous m aterials exist.
b.Restraining Conditions Within the Right-of-Way. Known restraining conditions within the right-of-way will be shown on the plans and any special work requirements in the vici nity of such conditions shall be shown on the plans or included in the Contract. When any restraining condition not shown on the pla ns is encountered, work in that area will stop and the En gineer shall be notified immediately. Work in that area shall not resume until the condition has been investigated, a determination ma de as to the disposition of the condition, and clearance to cont inue has been obtained.
c.Restraining Conditions Outside of the Right-of- Way.
1.Commercially Operated Site. The term "commercially operated site" is defined as a pit or quarry from w hich material is obtained that has served the general public for pur poses other than Department projects for more than one year and has furnished materials to the general public for purpo ses other than Department projects during the twelve month period immediately preceding the execution of the Contract. The Contractor is advised that the owner/operator o f the site has the responsibility to obtain clearances and ens ure compliance with all Federal and State laws regarding the above restraining conditions.
2.Non-commercially Operated Site. The Contractor shall notify the Engineer of the location of all proposed off-site locations, including borrow pits, waste areas, haul roads, 86 equipment and materials storage areas, field office s, etc., prior to starting any site preparation in these areas. This notification shall include detailed information which will enable Depa rtment personnel to locate the site on the ground, and inc lude a 7.5 minute topographic quadrangle or equivalent map sho wing the location and limits of the proposed off-site locati on. The limits of the off-site location shall be clearly and visib ly flagged for easy recognition. Within 10 business days after no tification by the Contractor, the Department will: • Investigate for the presence of archeologically or historically significant sites. If no evidence is found of archeological/historical materials during the initi al visual survey, the site will be conditionally approved, an d • Investigate for the presence of environmentally se nsitive conditions. If no evidence is found the site will be conditionally approved. • After Restraining Condition conditional approval h as been given to the Contractor, the Department will provid e the Contractor with an Endangered Species Clearance. T his clearance may be used by the Contractor to obtain h is NPDES Permit for the off right-of-way site. The Contractor is responsible to carefully investig ate off right- of-way sites to ensure the absence of hazardous mat erials or wastes. If the site is determined to involve a restraining condition, no work in that area will be permitted. Any site prep aration prior to conditional approval will cause the site to be reje cted. The Contractor will not be reimbursed for work done pri or to conditional approval. If a restraining condition is discovered the Contra ctor may, at no cost to the Department, acquire approval for use of the site from the appropriate authorities. All sites that h ave been rejected because of prior site preparation are ineligible fo r clearance. All clearances or permits obtained by the Contractor re garding the dismissal of the restraining conditions shall be su bmitted to the Engineer for approval before site preparation begin s. If a restraining condition is discovered after oper ations have begun, work in the area of the restraining conditio n shall stop and 87 the Engineer shall be notified immediately. Work i n that area shall not resume until the condition has been inves tigated, a determination made as to the disposition of the con dition, and clearance to continue has been obtained. If no fur ther work is permitted at the site due to the restraining condit ion, the site shall be closed and the area dressed and restored under S ections 106 and 110 to the extent practicable without interferi ng with the disposition of the condition.
d.Contract Adjustments.
1.Within the Right-of-Way. Contract adjustments due to the discovery on the right-of-way of restraining co nditions not shown on the plans will be made according to subsec tion 104.02(c).
2.Outside of the Right-of-Way. No additional compensation or extension of time will be given for delays or extra work required resulting from the discovery of restraining conditions at commercially operated sites. In the event the Contractor has begun using a condi tionally approved non-commercially operated site and is prev ented from fully utilizing this site due to the discovery of a restraining condition, such conditions will be deemed a differi ng site condition and Contract adjustments will be made acc ording to subsection 104.02(c).
e.Protection of Sensitive Areas. Any area identified by the Department as containing a restraining condition wh ich is adjacent to or within an approved site must be clearly marke d and protected by the Contractor from any vehicle or equipment enc roachment. Department personnel will establish the limits of t he restraining condition area. The Contractor, at Contractor expe nse, will mark and maintain the limits of the restraining conditio n area using flagging, stakes, or other appropriate devices to c learly indicate that the area is to be protected. The Contractor will b e responsible for any damages to the area containing the restraining condition as provided in Subsection 107.12.
107.11 Use of Explosives. When the use of explosives is
necessary for the prosecution of the work, the Cont ractor shall exercise the utmost care not to endanger life or pr operty, including new work. The Contractor shall comply with all law s and 88 ordinances regarding the use of explosives; further , the Contractor shall be responsible for all damage resulting from the use of explosives. All explosives shall be stored in a secure manner i n compliance with all laws and ordinances, and all such storage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the Engineer and in accordance with the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., and the Safety and Health Reg ulations for Construction promulgated thereunder, but not closer than 1,000' (300 m) from the road or from any building or camping area or place of human occupancy. The Contractor shall notify each public utility com pany having structures in proximity to the site of the work of any intention to use explosives. Such notice shall be given sufficientl y in advance to enable the companies to take such steps as they may deem necessary to protect their property from injury.
107.12 Protection and Restoration of Property and
Landscape. The Contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monum ents and property marks until the Engineer has witnessed or otherwise referenced their location, and shall not move them until directed. The Contractor shall be responsible for all damage or injury to property of any character: 1) during the prosecutio n of the work, resulting from any act, omission, neglect, or misco nduct in the manner or method of executing the work, or 2) at an y time, due to defective work or materials, and said responsibilit y will not be released until the project has been completed and a ccepted. Property shall include but not be limited to street and roadway signs, right-of-way monuments, roadway lighting, tr affic signal equipment, and any conduits and wiring. Should it become evident that any item, such as listed above, is in conflict with the proposed work, the Contractor will notify the Engineer so th at proper steps can be taken to adjust, remove, or otherwise elimin ate the conflict. On projects where the Department has monumented the right-of- way before the start of construction operations, it shall be the responsibility of the Contractor to protect such ri ght-of-way or land 89 monuments from disturbance during the construction period. The term "right-of-way or land monument" shall include the actual monument; stakes, pins, nails, or other devices mar king the location of the monument; and witness markers associated wit h the monument. Any and all such monuments disturbed by the Contractor's operations will be reestablished by th e Department. An immediate deduction of $300 for each monument distu rbed by the Contractor's operations will be made on the next pr ogress estimate after the discovery of the damage. If the Department has completed installation of all monuments and filed the appropriate plat before the disturban ce of any monument, the Contractor may, at Contractor option and in lieu of restoration by the Department, have the monuments r estored by a Professional Surveyor at the Contractor's expense. The monument will be reset using current AHTD property and right of way monumenting procedures and shall include the Profes sional Surveyor’s number on the monument cap. A plat shal l be prepared by the Professional Surveyor for documentation of s uch replacement or restoration. The plat shall comply with the cur rent requirements of the Arkansas Minimum Standards for Property Boundary Su rveys and Plats and approved by the Surveys Division of AHTD. The plat shall be filed with the State Land Surveyor’s Offic e and a copy of the filed plat, including the State Land Surveys Office document number, shall be furnished to the Department. The deduction of $300 per monument will be made as specified above a nd re-paid after completion of the requirements of this paragr aph. The Contractor shall not create a public nuisance w hile performing the various operations of the work. Exc essive noise between the hours of 10 p.m. and 6 a.m., and dust f rom haul roads, County roads, or State roads may be considered by t he Engineer to be a public nuisance. When or where any direct or indirect damage or inju ry is done to public or private property by or as a result of any act, omission, neglect, or misconduct in the execution of the work , or in consequence of the nonexecution thereof, the Contra ctor shall restore, or bear the expense of restoring, such pro perty to a condition similar or equal to that existing before such damag e or injury was done, by repairing, rebuilding, or otherwise restor ing as may be directed, or shall make good such damage or injury in an acceptable 90 manner. Failure to do so within a reasonable perio d of time will constitute noncompliance, and the Engineer may caus e the entire cost of the restoration to be deducted from moneys due or to become due the Contractor on the Contract.
107.13 Forest Protection. When working within or adjacent to a
State or National Forest, the Contractor shall comp ly with all regulations concerning the protection of forests. The Contractor and all subcontractors shall take all reasonable precau tions to prevent forest fires and shall provide reasonable aid in th e suppression of forest fires. The size and location of all fires s een or otherwise detected by the Contractor's personnel shall be rep orted immediately to the Engineer and/or the nearest Forest official.
107.14 Responsibility for Damage Claims. The Contractor
shall indemnify and save harmless the Department an d its officers and employees from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the Contractor; or on account of or in consequence of a ny neglect in safeguarding the work; or through use of unacceptab le materials in constructing the work; or because of any act or omi ssion, neglect, or misconduct of the Contractor; or because of any cla ims or amounts recovered from any infringement of patent, trademar k, or copyright; or from any claims or amounts arising or recovered under the "Workman's Compensation Act," or any other law, ord inance, order, or decree; and so much of the money due the Contrac tor under and by virtue of the Contract as may be considered nece ssary by the Department for such purpose may be retained for the use of the Department; or in case no money is due, the Surety may be held until such suit or suits, action or actions, claim or cla ims for injuries or damages as aforesaid shall have been settled and su itable evidence to that effect furnished to the Department; except tha t money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that adequate protection is p rovided by public liability and property damage insurance. It is specifically agreed between the parties execu ting the Contract that it is not intended by any of the prov isions of any part of the Contract to create the public or any member thereof a third party beneficiary thereunder, or to authorize anyon e not a party to 91 the Contract to maintain a suit for personal injuri es or property damage pursuant to the terms or provisions of the C ontract.
107.15 Opening Section of Highway to Traffic. Whenever any
roadway, or portion thereof, is in an acceptable co ndition for travel, it shall be opened to traffic, as may be directed, and such opening shall not be held to be in any way an acceptance of the roadway, or any part of it, or as a waiver of any of the provis ions of these specifications and the Contract. Necessary repairs or renewals made on any section of the roadway opened to travel unde r instructions from the Engineer, due to defective material or wor k, or to natural causes, other than normal wear and tear, pending co mpletion and acceptance of the roadway, shall be performed at no cost to the Department. If the Contractor is dilatory in completing shoulde rs, drainage structures, or other features of the work, the Engi neer may give notification in writing and establish therein a rea sonable period of time in which the work should be completed. If the Contractor is dilatory or fails to make a reasonable effort towar d completion in this period of time, the Engineer may take action a s provided in subsection 105.01. On such sections that are so or dered to be opened, the Contractor shall conduct the remaining construction operations so as to cause the least obstruction to traffic and shall not receive any added compensation due to the added cos t of the work by reason of opening such section to traffic.
107.16 Contractor's Responsibility for Work. Until final
acceptance of the project by the Engineer, the Cont ractor shall have the charge and care thereof and shall take every pr ecaution against injury, theft, or damage to any part thereof by the action of the elements or from any other cause, whether arising f rom the execution or from the nonexecution of the work. Th e Contractor shall rebuild, repair, restore, and make good all i njuries, thefts, or damages to any portion of the work occasioned by an y of the above causes before final acceptance, and shall bear the expense thereof except damage to the work due to unforeseeable caus es beyond the control of and without the fault or negligence of t he Contractor, including but not restricted to acts of God, of the public enemy, or of governmental authorities. 92 In case of suspension of work from any cause whatev er, the Contractor shall be responsible for the project and shall take such precautions as may be necessary to prevent damage t o the project, provide for normal drainage and maintenance of the traveled way, and shall erect any necessary temporary structures, signs, or other facilities. During such period of suspension of wo rk, the Contractor shall properly and continuously maintain in an acce ptable growing condition all living material in newly established plantings, seedings, and soddings furnished under the Contract, and shal l take adequate precautions to protect new tree growth and other im portant vegetative growth against injury. The protection of the work shall be accomplished at no cost to the Department except for the work required to maintain the traveled way. In case of errors or negligence on the part of the Contractor, any expenses incurred by the Department for engineering , inspection, testing, design, or evaluation relative to correcti on of the work will be assessed against the Contractor.
107.17 Contractor's Responsibility for Utility Faci lities and
Services. At points where the Contractor's operations are a djacent to railroad or utility facilities, damage to which may result in loss or inconvenience, work shall not begin until all arran gements necessary for the protection thereof have been made. The Contractor shall cooperate with the owners of a ny utility facilities in their removal and rearrangement opera tions so that these operations may progress in a reasonable manner, tha t duplication of rearrangement work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted. In the event of interruption of utility services, a s a result of accidental breakage or as a result of being exposed or unsupported, the Contractor shall promptly notify the proper aut hority and shall cooperate with the said authority in the restoratio n of service. If utility service is interrupted, repair work shall b e continuous until the service is restored. No work shall be undertak en around fire hydrants until provisions for continued service hav e been approved by the local fire authority.
107.18 Furnishing Right-of-Way. The Department is
responsible for the securing of all necessary right s of way in advance 93 of construction within the limits indicated on the plans. Acquisition of right-of-way by the Department does not include areas required by the Contractor for material sources (borrow, gra vel, topsoil, sod, etc.), plant sites, equipment storage, stockpiles, disposal of waste or excess material, or any other areas required for th e proper prosecution of the work. The Contractor is respons ible for obtaining, at no cost to the Department, areas outs ide the right-of- way required for such purposes and shall, at the En gineer's request, furnish copies of agreements with the property owne rs. The Contractor may, with the approval of the Engineer, use areas within the right-of-way that are outside the construction limits for these purposes. Erosion control, prevention of water pol lution, and restoration of all such areas, both inside and outs ide the right-of- way, shall be performed by the Contractor according to the specifications and at no cost to the Department.
107.19 Personal Liability of Public Officials. In carrying out
any of the provisions of these specifications, or i n exercising any power or authority granted to them by or within the scope of the Contract, there shall be no liability upon the Comm ission, Engineer, or their authorized representatives, either persona lly or as officials of the Department, it being understood that in all suc h matters they act solely as agents and representatives of the Departm ent.
107.20 No Waiver of Legal Rights. Final acceptance according
to subsection 105.17(b) shall not preclude or estop the Department from correcting any measurement, estimate, or certi ficate made before or after completion of the work, nor shall t he Department be precluded or estopped from recovering from the Cont ractor or the Surety, or both, such overpayment as it may sustain , or by failure on the part of the Contractor to fulfill obligations u nder the Contract. A waiver on the part of the Department of any breach of any part of the Contract shall not be held to be a waiver of any ot her or subsequent breach. The Contractor, without prejudice to the terms of t he Contract, shall be liable to the Department for any or all of the following: fraud or such gross mistakes as may amount to fraud , the Department's rights under any warranty or guaranty, or any latent defects in the work.
Source: , Edition.