For projects with both mandatory and optional uses for RAP, the contractor shall ensure that sufficient project -generated RAP is available to complete the mandatory item(s), or provide RAP from other sources, acceptable to the Engineer, to complete such man datory work, at no additional cost to the Department. SECTION 107 LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC:
107.01 Laws to be Obs erved:
The contractor shall keep fully informed of all Federal, State, and local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affec t those engaged or employed on the work or which in any way affect the conduct of the work. The contractor shall comply with Drug Free Workplace Act, Americans with Disabilities Act, OSHA, and all other pertinent laws relating to conditions of employment. The contractor shall at all times observe and comply with all laws, ordinances, regulations, orders, and decrees and shall defend, indemnify, and hold harmless the Department 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 by any of his subcontractors or suppliers, or by any of their employees. In connection with the performance of the work, the contractor shall not discrim inate against any employee or applicant for employment because of race, religion, color, age, disability, or national origin. The aforesaid requirement shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation and selection for training, including apprenticeship. The contractor shall post in conspicuous places, available to employees and applicants for employm ent, notices to be provided by the Department setting forth the provisions of the nondiscrimination requirements. One or more bulletin boards, large enough to display posters and other information required in the contract shall be erected on the job site before any work is allowed to begin. The location of the bulletin board(s) will be subject to the approval of the Engineer. The contractor shall also insert the nondiscrimination requirements in all subcontracts.
107.02 Permits, Lic enses, 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 due and lawful prosecution of the work. TABLE OF CONTENTS INDEX
107.03 Patented Devi ces, Materials , and Processes:
If the contractor employs any design, device, material or process covered by letters of patent or copyright, the contractor shall provide for such use by suitable legal agreement with the patentee or owner. The contractor and the surety shall defend, indemnify, and hold harmless the Department, any affected third party or political subdivision from any and all claims for infringement by reason of the use of any such patented design, device, material or process or any trademark or copyright and shall indemnify the Department for any costs, expenses, and damages which it may be obliged to pay by reason of any infringement, at any time during the prosecution or after the completion of the work.
107.04 Federal Aid Participation:
When the United States Government pays all or any portion of the cost of a project, the Federal laws and the rules and regulations made pursuant to such laws shall be observed by the contractor and the work shall be subject to the inspection of the appropriate Federal agency. Participation and insp ection shall in no sense make the Federal Government a party to the contract and shall in no way alter the rights of either party to the contract.
107.05 Archaeological Features:
The attention of the contractor is directed t o A.R.S. Title 41, Article 4, Archaeological Discoveries, Sections 41 -841, et seq., which make it a felony, punishable by a fine and imprisonment, to investigate, explore or excavate on State land, in or on prehistoric ruins, ancient burial grounds, fossi lized footprints, hieroglyphics , and all other archaeological features of Arizona without permits from the Arizona State Museum. Section 6(a) of the Federal Archaeological Resources Protection Act of 1979 specifies that no person may excavate, remove, damage , or otherwise alter or deface any archaeological resource located on public (Federal) lands or Indian lands unless such activity is pursuant to a permit issued under Section 4 of the Act. Violations of this act are considered a felony and are punishabl e by fine and imprisonment. Although the Department will make every effort prior to construction to identify all cultural resources in a project area, previously unidentified archaeological materials could be found during the construction of the project. When archaeological, historical , or paleontological features are encountered or discovered during any activity related to the construction of the project, the contractor shall stop work immediately at that location and shall take all reasonable steps to secure the preservation of those features and notify the Engineer. TABLE OF CONTENTS INDEX The Engineer will direct how to protect the features. The contractor shall not resume work until it is so directed by the Engineer. In the event of a suspension of work pursuant to this clause, the contractor shall refer to the provisions of Subsection
104.02 of the specifications.
107. 06 Historic Preservation: The attention of the contractor is directed to A.R.S. Title 41, Chapter 4.2, Historic Preservation, Section 41- 861 et seq., which makes it a felony to intentionally possess, sell or transfer any human remain, funerary object or other artifact. Although the Department will make every effort prior to construction to identify all items that require Historic Preservation in a project area, previously unidentified human remains, funerary objects, or artifacts may be found during the construction of the project. When human remains or funerary objects are encountered or discovered during any activity related to the construction of a project, the contractor shall stop work immediately at that location and shall take all reasonable steps to secure the preservation of those items and notify the Engineer. The Engineer will direct how to protect the items. The contractor shall not resume work until it is so directed by the Engineer. In the event of a suspension of work pursuant to the clause, the contractor shall refer to the provisions of Subsection
104.02 of the specifications.
107. 07 Sanitary, Health, and Safety Provisions: The contractor shall provide and maintain in a neat and sanitary condition such accommodations for the use of the contractor's employees as may be necessary to comply with the requirements and regulations of the Arizona State Department of Health Services or other authorities having jurisdiction therein. Attention is directed to Federal, State, and local laws, rules, and regulations concerning construction safety and health standards. The contractor shall not require any workers to work in surroundings or under conditions which are unsanitary, hazardous, or dangerous to their health or safety. Occupational Safety and Health Standards shall apply at all times. The contractor shall have, in accordance with OSHA requirements, Material Safety Data Sheets (MSDS) available for all applicable materials stored or utilized on the project. Should the contractor fail to follow OSHA regulations, the Engineer may suspend the work by written not ice until compliance has been achieved. Any such failure to comply with OSHA regulations shall constitute waiver of any right to claim for such suspended work. If regulations are in conflict, the more strict regulation will apply. TABLE OF CONTENTS INDEX Prior to construction the Department will make a reasonable effort to locate, identify, and remove potentially hazardous or contaminated materials, including underground storage tanks, within a project area. Despite these efforts, some of these materials may still be found duri ng the construction of the project. During construction operations, should material be encountered which the contractor believes to be hazardous or contaminated, the contractor shall immediately do the following: (A) Stop work and remove all workers within the contaminated area. For life threatening situations, follow the procedures in the Safety Plan, specified in Subsection
107.08 of the
specifications. ( B) Barricade the area and provide traffic control, if necessary, to prohibit unauthorized entry. (C) Notify the Engineer. If the Engineer cannot be reached from throughout the State, contact the Arizona Department of Transportation Operations Center at (602) 257- 1563. If the Operations Center cannot be reached, contact the Department of Public Safety (DPS). The contractor shall not resume work in the area suspected to contain hazardous or contaminated materials until approved by the Engineer. The Department will determine the extent and nature of the hazardous or contaminated area and specify a clean- up plan, if necessary. Once the Department determines the limits of the area affected by the contaminated materials, work may then be resumed for the remaining areas of the project where contamination is determined not to present a significant hazard. Substantial suspension of work as a result of the discovery of contaminated or hazardous materials within the project limits shall be in accordance with the requirements of Subsection
104.02 of the
specifications. The Department will determine the contractor's qualifications to perform the work specified in the clean- up plan. If the contractor is not qualified to do the work specified in the clean- up plan, the Department will obtain a contractor for cleanup. The Engineer will execute a supplem ental agreement to cover the additional work, in accordance with Subsection 104. 02 of the specifications. 107. 08 Public Convenience and Safety: (A) General: The contractor shall at all times conduct its work as to ensure the least possible obstruction to traffic. TABLE OF CONTENTS INDEX 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 contractor in accordance with the requirements of Subsection
104.04 of the specifications.
T he contractor shall abide by OSHA Regulations, including, but not limited to, 29 CFR, Part 1926, and 29 CFR, Part 1910, as well as all applicable standards of the U.S. EPA, the ADEQ , and the U.S. Mine Safety and Health Administration (MSHA). The contractor shall maintain a copy of the specified OSHA Standards on the construction site at all times. The contractor shall furnish and install 72 -inch temporary chain link fencing, or approved equal, satisfactory to the Engineer, around all major structure construction areas (i.e., bridges, pumphouses, drop structures, retaining walls, etc.) and around any unattended excavation deeper than 4 feet, with slopes steeper than 1:2 (V:H). Temporary fencing shall completely enclose the referenced construction activity and shall be secured after normal working hours to prevent unauthor ized access. Where called for in the plans, new permanent fencing shall be installed as soon as practicable. Temporary fence materials which are no longer needed to restrict access to the work area may be utilized in constructing permanent fence. Fence materials, which in the opinion of the Engineer are unacceptable due to either appearance or structural defects, shall be replaced with new materials. No direct payment will be made for furnishing or installing temporary fencing. Permanent fencing will be measured and paid under the appropriate bid items. Unless otherwise approved in writing by the Engineer, open utility trenches shall be limited to 50 feet in length, except for cast -in-place pipe installations, during non- working hours and shall be covered with steel plate in a manner satisfactory to the Engineer. (B) Safety Plan: The contractor shall submit a Safety Plan at the preconstruction conference. The contractor may submit the Safety Plan prior to the preconstruction conference but not until the contract is executed by both the contractor and the Department. The Safety Plan shall specify the procedures the contractor will implement to satisfy OSHA and any state occupational safety guidelines related to the worker, as well as the public, in the construction of excavations, structures, and confined air spaces along with all other activities involved in the project. The plan must also address: (1) Site -specific safety rules and procedures to deal with the types of risks expected to be encountered on the site; TABLE OF CONTENTS INDEX (2) Routine inspection of construction sites to ensure compliance with applicable local, state, and federal safety laws and regulations; (3) Training of empl oyees in safe practices and procedures; (4) Availability of first -aid, medical, and emergency equipment and services at the construction site, including arrangements for emergency transportation; (5) Security procedures to prevent theft, vandalism, and other losses at the construction site; and (6) Emergency Vehicle Access Plan (EVAP) as detailed herein. The Safety Plan shall include a list of emergency procedures, phone numbers, and methods of communication for medical facilities, Police, Fire Department, and other emergency services which may become necessary. The contractor shall be responsible for providing First Aid treatment and medical supplies on the project site , in accordance with OSHA 29 CFR, Part 1910, and for producing and maintaining records of any injury- related incidents. The Safety Plan shall include the requirement that all workers must wear OSHA approved hard hats, reflective safety vests or other appr oved high visibility warning garments, work shoes, and, when appropriate, safety glasses while in construction areas. The Contractor’s Project Superintendent or Safety Supervisor shall ensure that visitors comply with the above requirements as appropriate. The Safety Plan shall include an EVAP. An emergency event is defined as an incident that requires an emergency vehicle to respond. When an EVAP is included in the project plans, that plan shall govern unless an alternate plan, acceptable to the Engineer , is submitted by the contractor and accepted in writing by the Engineer. If the contractor uses the EVAP provided by the Department, it shall be submitted as part of the Safety Plan. If no EVAP is provided or if the contractor desires to deviate from the EVAP provided in the plans, the contractor shall submit it to the Engineer for approval as part of the Safety Plan. The contractor’s EVAP shall be prepared by an individual meeting the qualifications described in Subsection 701- 1 of the specifications. Regardless of whether an EVAP is provided by the Department or by the contractor, the EVAP shall be included in the Safety Plan and incorporated into the traffic control plans. The EVAP shall describe those measures to be implemented during construction t o ensure that emergency vehicles have access, at all times and for all phases of construction, within and through the construction site until the project is substantially complete. The EVAP shall delineate TABLE OF CONTENTS INDEX or describe the manner in which access is available, including traffic control devices or alternate emergency vehicle access routes. The contractor shall communicate the EVAP, and any updates to the plan, to the Engineer for dissemination to area law enforcement and emergency responders. The contractor shall implement and maintain the project’s EVAP until substantial completion. The contractor shall ensure that all personnel, and those of any subcontractors employed by the contractor, are familiar with the plan and their responsibilities for its use. In the safety plan, the contractor shall designate a competent person as Safety Supervisor to be responsible for implementation of the Safety Plan throughout the contract period. The Safety Supervisor shall be capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and have authority to take prompt corrective measures to mitigate or eliminate them. The Safety Supervisor shall also conduct safety meetings, oversee and maintain safe jobsite conditions, and ensure that emergency procedures, phone numbers, and all applicable OSHA notification posters are conspicuously placed in all work areas. The Safety Supervisor shall maintain records demonstrating that all workers have sufficient experience to operate their equipment, and have been instructed in the proper operation of the equipment. The Safety Supervisor shall furnish evidence that crane operators have been instructed in accordance with the requirements of OSHA 29 CFR,
Part 1926 — .550, Subpart N, and 1926.955, Subpart V.
The Safety Plan submitted by the contractor shall include proposed methods to prevent unauthorized persons from gaining access to the work areas. The Engineer will review the Safety Plan and will either approve the Safety Plan or identify any additional items that need to be included no more than 10 working days after submittal. The contractor shall then modify the Safety Plan, if necessary, for re- submittal to the Engineer within five working days. The contractor shall not commence work until the Safety Plan has been approved, unless authorized by the Engineer.
107.09 Barricades and Warning Signs:
The contractor s hall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices and shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall TABLE OF CONTENTS INDEX be illuminated during hours of darkness. Suitable warning lights shall be provided to control and direct traffic properly. The contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic, and at all intermediate points where the new work crosses or coincides with an existing road. No signs, barricades, lights, or other protective devices shall be dismantled or removed without permission of the Engineer. All signs, barricades, lights, temporary signals, and other protective devices shall conform to the requirements of the Manual of Uniform Traffic Control Devices (MUTCD) and associated Arizona Department of Transportation Supplement (ADOT Supplement).
107.10 Use of Explosives:
When the use of explosives is necessary for the prosecution of the work, the contractor shall exercise the utmost care not to endanger life or property. The contractor shall be responsible for all damage resulting from the use of explosives. The contractor shall furnish and erect special signs to warn the public of the contractor's blasting operations. Such signs shall be placed at appropriate points within the limits of the project and these signs shall be maintained as to be clearly evident to the public during all critical periods of the blasting operations. If blast ing is to be done involving the use of electric blasting caps, the signs shall include a warning statement that all mobile radio transmitters should be turned off. In advance of doing any blasting work involving the use of electric blasting caps within 200 feet of any railroad track or structure, the contractor shall notify the railroad company of the locations, date, time and approximate duration of such blasting operations. The method of use, storing and handling of explosives and liquid inflammable mater ials shall conform with all State and local laws, regulations and safety codes. All storage places shall be marked clearly and in large letters: DANGEROUS EXPLOSIVES. Where no local laws or ordinances apply, storage shall be provided satisfactory to the Engineer and in general not closer than 1,000 feet from the road or from any building, camping area, or place of human occupancy. The contractor shall notify each property owner and public utility company having structures or facilities in proximity to the site of the work of the contractor's intention to use explosives. Such notice shall TABLE OF CONTENTS INDEX be given sufficiently in advance to enable them to take such steps as they may deem necessary to protect their property from damage. Before any explosives are used, the contractor shall obtain necessary permits from and comply with the requirements of the National Park Service, Forest Service, Bureau of Indian Affairs or other authority having jurisdiction over the area.
107.11 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 monuments and p roperty marks until the Engineer has witnessed or otherwise referenced their location. Land monuments and property marks shall not be moved by the contractor until directed by the Engineer. Private mail boxes within the limits of operations shall be temporarily or permanently relocated, as required, by the contractor in such a manner as to permit uninterrupted mail service. Existing fences, pole lines, signs, buildings, and structures that are to remain in place shall be protected from injury or damage. 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 contractor's manner or method of executing work or at any time due to defective work or materials and the contractor will not be released from said responsibility until the project has been completed and accepted. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the work or in consequence of the nonexecution thereof by the contractor, the contractor shall restore, at no additional cost to the Department, such property to a condition similar to or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring as may be directed or it shall make good such damage or injury in an acceptable manner. The contractor shall not deface, injure, or destroy trees, shr ubs, or cacti except as required to complete the proposed construction. The attention of the contractor is called to the requirements of the Arizona Native Plant Law, A.R.S. Section 3- 901, et seq. The contractor shall give the Arizona Department of Agriculture at least 10 days notice prior to any clearing operations. Native plants as defined by the Statutes shall not be transported from the land or offered for sale without the written permission of the Commission. TABLE OF CONTENTS INDEX Notice shall be sent to: Assistant Direct or Division of Compliance Arizona Department of Agriculture State Office Building, Room 414 1688 West Adams Street Phoenix, Arizona 85007 Materials removed during construction operations such as trees, stumps, building materials, irrigation, and drainage structures, broken concrete and other similar materials shall not be dumped on either private or public property unless the contractor has obtained written permission from the owner or public agency with jurisdiction over the land. Written permission will not be required, however, when materials are disposed of at an operating, public dumping ground. Under no circumstances shall the disposal of debris from construction operations create a blemish on the landscape. Material which is to be stockpiled or disposed of off -site shall not encroach on running or intermittent streams, or other waters of the U.S. unless the contractor has obtained the appropriate permits in accordance with applicable state and federal regulations. Hauling outside of sl ope staked areas will not be permitted except around concrete structures, structural plate pipe and at locations where topographical or other features render it impractical. Haul routes outside of slope staked areas shall be as short as practical and shall minimize defacement of or injury to landscape features and vegetation. Such haul routes shall be obliterated and the ground restored to a condition similar to or equal to that existing before such hauling was started.
107.12 Forest Protection:
(A) General: If a project or a material pit is located on land which is under the jurisdiction of the USDA Forest Services (Forest Service), the contractor shall comply with all applicable State and Federal laws, Federal rules and regulations, and the requirements of the National Forest in which the work is located. Throughout this subsection, the term Forest Service Officer is used. This person shall be understood to be the District Ranger or any other person authorized or duly appointed to a ct in all matters affecting National Forest lands and resources. Forest Service Officers for each project, when applicable, will be designated in the Special Provisions. TABLE OF CONTENTS INDEX Additional requirements of the National Forest may be specified in the Special Provisions and may include a clearing plan, a mining plan, and an erosion control and seeding plan. Unless provided for otherwise in the Special Provisions, the contractor shall comply with the following minimum requirements for activities within the National Forest: (1) The contractor shall do everything reasonably within the contractor's power to prevent forest fires and shall not dispose of material by burning without a written permit from the Forest Service. (2) The contractor shall not cut timber or brush or commence work in any material pit unless a permit to do so has been obtained from the Forest Service. (3) The contractor shall fully repair all damage caused by its operations and provide maintenance commensurate with the contractor's use of National Forest roads and trails . (4) The contractor shall fully comply with all requirements regarding air quality. The Department’s publication, Requirements for the Utilization of the Schedule of Equipment Rental Rates for Equipment Used on Force Account Work, will not be applicabl e when the contractor's equipment is being utilized under the direction of the Forest Service Officer in the suppression of fires. (B) Fire Plan: The following outlines the mutual responsibilities of the Forest Service, the Department and the contractor to ensure effective prevention and prompt suppression of all fires within the right -of-way and other work areas. (1) General: Fires discovered by the contractor and its employees shall be promptly reported to the Engineer and the Forest Service Officer. The contractor and its employees shall take action on any and all fires within the right -of-way and work areas and within a hal f-mile zone adjacent thereto. Fires shall be attacked promptly so as to control them while they are small. Fires shall not be abandoned until the Forest Service Officer declares the fire to be out or relieves the contractor and its employees. The contractor shall place its equipment and employees at the disposal of the Forest Service Officer for the purpose of fighting fires in accordance with this plan. TABLE OF CONTENTS INDEX Equipment will be operated by employees of the contractor. The Forest Service will assume no r esponsibility toward such equipment for ordinary wear or damage due to negligence, carelessness, or willful misconduct. (2) Personnel: The contractor shall provide the Forest Service Officer with a list of the names of key personnel who will act in the matter of fire prevention and fire suppression. The Forest Service Officer will provide the contractor a similar list of names. Each list shall be kept current as to the names, addresses, and phone numbers. (3) Reimbursement: Reimbursement to the cont ractor or the contractor's employees for equipment utilized, including operators, will be made by the Forest Service in accordance with rates which have been previously negotiated and agreed upon. These rates will be established prior to mobilization of p ersonnel and equipment to be used for the suppression of fires. The Forest Service will not reimburse the contractor, subcontractor, or their employees for the suppression of fires started by them. The contractor and the contractor's employees, in suppressing fires caused by others, including lightning -caused fires, in work areas or within a half -mile zone of work areas will be reimbursed by the Forest Service for such suppression. In emergencies, the contractor and the contractor's employees may be called upon to suppress fires on other National Forest lands outside the normal half -mile zone. The contractor and its employees will be reimbursed by the Forest Service for such suppression. If the Forest Service requests that any equipment be made available on standby status, reimbursement to the contractor will be made at a rate established by negotiation. (4) Tool Cache: The contractor shall furnish and maintain a tool cache at the active work sites as designated by the Forest Service Officer. Each tool cache shall contain five long -handled (Round Point, size No. 1) shovels, five Mcleod tools and two pulaskis with sheaths. These tools are required separate from, and in addition to, the tools required on equipment. (5) Vehicles: All vehicles on the proj ect, except those capable of building fire line and fuel or service trucks, shall have a minimum of one long -handled, size No. 1, round- pointed shovel; one ax or pulaski with sheath; and not less TABLE OF CONTENTS INDEX than one 2- 1/2 pound capacity, ABC triple class, dry chemical fire extinguisher. All earth moving equipment, such as dozers and scrapers, shall have a 5-1/2 pound capacity, ABC triple class, dry chemical fire extinguisher. All service and fuel trucks shall be equipped with a 10 pound capacity, ABC triple class, dry chemical fire extinguisher and one long -handled, size No. 1, round- pointed shovel. All internal combustion engines, including those on tractors, jammers or any stationary or mobile equipment, shall be equipped with a spark arrester of a type approved by t he Forest Service. Heavy equipment equipped with an exhaust driven turbocharger in good working order and with no exhaust bypass will qualify. A straight, mechanically driven supercharger does not qualify. Light trucks up to two- ton, pickups, jeeps, and passenger cars shall have effective mufflers and exhaust pipes comparable to the manufacturer's standard equipment installation. All internal combustion engine driven vehicles and equipment will be inspected by the Forest Service Officer prior to initial operation. All such vehicles and equipment arriving on the work after the initial inspection shall be reported to the Forest Service Officer for inspection prior to operation. All equipment will be inspected periodically after the initial inspection to ensure that spark arresters or turbocharger are in working order. All operators shall submit their equipment to the Forest Service Officer for inspection upon request. All 1975 and later model passenger vehicles and pickups equipped with a catalytic converter will have a sticker clearly displayed on the dashboard warning the driver of the fire hazard of driving the vehicle over or parking the vehicle where tall grass or other flammable materials can come in contact with the catalytic converter. The contractor shall make daily inspections of all internal combustion engines, stationary and mobile, to ascertain that spark arresters and mufflers are whole and effective, and that there are no connections that can leak burning particles. (6) Smoking: There shall be no smoking while working. This requirement applies to those activities which require that work be performed in an uncleared area, such as clearing and fencing operations. Smoking shall be restricted to areas a minimum of 2 feet in diameter which have been cleared to mineral soil. All smoking material shall be completely extinguished before leaving these areas. There shall be no smoking when traveling except when traveling on a graveled, oiled, or otherwise surfaced road. Vehicles shall be eq uipped TABLE OF CONTENTS INDEX with ash trays. Smoking material shall be extinguished either in ash trays or on a spot cleared to mineral soil. All smoking closures or other restrictions which may be put into effect shall be carefully observed. (7) Chain Saws: Chain saws shal l be equipped with an approved and serviceable spark arrester/muffler. The spark arrester shall be maintained in effective working order, meeting either Department of Agriculture, Forest Service Standard 5100.1a or appropriate Society of Automotive Engineers (SAE) recommended practice J335 and J350 [36 CFR 261.52(j)], as revised to the date of the opening of the proposals. Power saws shall be filled only in an area which has been cleared to mineral soil. They shall not be started at the place where they have been filled. Mufflers shall be kept in place at all times and the spark arrester screens shall be checked daily. Broken or burned screens shall be promptly replaced. Power saw operators shall check the sawdust at each tree felled before leaving to make sure that no fires have been started. Each operator shall carry with their power saw a size No. 1, long -handled, round- pointed shovel. When the fire danger is Manning Class 3 and above, each work area shall be patrolled by the contractor for at least one hour after the cessation of power saw operations. (8) Burning: No burning of slash, camp refuse, or other debris or any other burning will be permitted without a daily written permit from the Forest Service and a burn permit issued by the ADEQ , Office of Air Quality. (9) Fires: No lunch fires will be permitted exce pt in designated, cleared areas approved by the Forest Service Officer. Any request for lunch fires, warming fires or campfires at an area except those which have been approved shall be made in writing to the Forest Service Officer. (10) Campsites, Parkin g and Storage Areas: Campsites, parking , and storage areas on Forest lands shall be approved by the Forest Service Officer prior to use. All campsites shall comply with all applicable Federal, State, County and City statutes and, ordinances concerning safety, health, and sanitation. TABLE OF CONTENTS INDEX Sites shall be cleared, maintained, and used in accordance with Forest Service regulations in order to keep the danger of fires to a minimum. The layout of buildings, tanks, trailers, sanitary facili ties, etc., shall be approved by the Forest Service Officer. All chimneys shall be equipped with 1/2 -inch mesh screen for spark arrestors. Fire extinguishers approved by the Forest Service Officer shall be placed in readily accessible places in campsites and storage areas. No fires except those as may be approved in writing by the Forest Service Officer will be permitted. When required by the Forest Service Officer, the contractor shall maintain a cleared fire line around campsites. Upon cessation of use of the campsite, the contractor shall clean up and restore the site to a condition satisfactory to the Forest Service Officer. Such restoration shall give consideration to the minimizing of erosion. (11) Welding: Welding shall be done only at sites which have been cleared to mineral soil. Immediately following welding and metal cutting operations, and before leaving the site, careful inspections shall be made to detect and extinguish smoldering materials. A 5 or 10- gallon container of water with pump shall be available to all welding operations. (12) Blasting: Electric caps will be required; however, under certain conditions, and with prior approval of the Forest Service Officer, fuse caps may be used. Primer cord shall be understood to be an explosive and not fuse. (13) Forest Closure: Fire Manning classes, as established by the Forest Service and based on fire weather and fuel models, will be used by the Forest Service Officer in determining curtailment of operations. A notification system will be provided to inform the contractor of the predicted Fire Manning class and the fire precautions required. Each day of operation, when there is a predicted change in the Fire Precaution Plan, the Forest Service will inform the contractor between 3:00 p.m. and 6:00 p.m. MST of the Numerical Fire Manning class to be followed the next day within the local operation area. The Forest Service will, no later than 9:00 a.m. MST the following day, advise the contractor if conditions have changed from those predicted. T he contractor’s operations will be governed by the following Fire Prevention Schedule: TABLE OF CONTENTS INDEX Fire Manning Class Description of Precaution Required 0, 1, 2 Normal Fire Precautions 3 Normal Fire Precautions, except designated areas for smoking and warming or cooking fires require a written permit. 4 Shut down from 12:00 noon until 8:00 p.m. MST all machine treatment of slash, skidding, road pioneering, clearing, and loading. No smoking, warming or cooking fires permitted at any time. Power saws wi ll shut down from 9:00 a.m. until 8:00 p.m. MST. Operations on mineral soil may continue if approved by the Forest Service Officer. 5 Shut down all operations; except operations on mineral soil may continue with special Forest Service permit. Red Flag C onditions Total shut down of all operations with everyone to leave the permitted area except the Fire Protection Officer. Area Closure Proclaimed by Regional Forester Total shut down of all operations and area closed to entry. Advance notice will be give n as soon as area closure appears a reality, followed by a meeting convened to discuss the situation at that time. The criteria for establishing the existence of Red Flag Conditions is when sustained high winds are predicted or are occurring. A Red Flag Day identifies those few critical days throughout the fire season that strong winds and low humidity constitute an unusual threat to the national forest resources. Under unusually severe conditions or with operations that constitute an unusual risk, the Forest Service Officer may institute any or all of the above stipulations, or may require additional action in certain specialized cases. In specific instances where it can be adequately demonstrated that little or no risk is incurred, the Forest Service Officer may permit certain construction activities to take place under carefully controlled conditions. TABLE OF CONTENTS INDEX
107.13 Responsibility for Damage Claims:
The contractor shal l indemnify, defend, and hold harmless the State of Arizona, acting by and through the Arizona Department of Transportation, from any and all claims, demands, suits, actions, proceedings, loss, cost and damages of every kind and description, including any attorneys' fees and/or litigation expenses, which may be brought or made against or incurred by the Department on account of loss of or damage to any property or for injuries to or death of any person, to the extent caused by, arising out of, or contribute d to, by reasons of any alleged act, omission, professional error, fault, mistake, or negligence of the contractor, its employees, agents, representatives, or subcontractors, their employees, agents, or representatives in connection with or incident to the performance of the work, or arising out of Workmen's Compensation claims, Unemployment Compensation claims, or Unemployment Disability Compensation claims of employees of the contractor and/or its subcontractors or claims under similar such laws or obligations. The contractor's obligation under this subsection shall not extend to any liability to the extent caused by the negligence of the Department, or its employees, except the obligation does apply to any negligence of the contractor which may be legall y imputed to the Department by virtue of its ownership or possession of land. The contractor shall indemnify, defend, and hold harmless any county, town , or incorporated city, its officers and employees, within the limits of which county, town , or incorpor ated city work is being performed, all in the same manner and to the same extent as provided above.
107.14 Insurance:
Prior to the execution of the contract, the contractor shall file with the Department a certificate or certificates of insurance evidencing insurance as required by this contract has been placed with an insurer authorized to transact insurance in the State of Arizona pursuant to A.R.S. Title 20, Chapter 2, Article 1, or with a surplus lines insurer approved and identified by the Director of the Department of Insurance pursuant to A .R.S. Title 20, Chapter 2, Article 5. All insurers shall have an “A.M. Best” rating of A - VII or better. The State of Arizona in no way warrants that the above- required minimum insurer rating is sufficient to protect the contractor from potential insurer insolvency. The contractor’s submission of the required insurance certificates constitutes a representation to the Department that: (A) The contractor has provided a copy of these specifications to every broker who has obtained or filed a certificate of insurance and has communicated the necessity of compliance with these specifications to the broker; and TABLE OF CONTENTS INDEX (B) To the best of the contractor’s knowledge, each certificate of insurance and each insurance coverage meets the requirements of these specifications. The contractor shall provide the Department with certificates of insurance (ACORD form or equivalent acceptable to the State of Arizona) as required by the contract. The certificates for each insurance policy shall be signed by a person authorized by that insurer. Without limiting any liabilities or any other obligations of the contractor, the contractor shall provide and maintain, if commercially available, the minimum insurance coverage listed below until all obligations under this contract are satisfied: (A) General Liability insurance with a minimum combined single limit of $1,000,000 each occurrence applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products and completed operations. Further, the policy shall include coverage for the hazards commonly referred to as XCU (explosion, collapse and underground). The products and completed operations coverage shall extend for one year past acceptance, cancellation or termination of the work. The policy shall contain a severability of interests provision. (B) Comprehensive Automobile Liability insurance with a combined single limit for bodily injury and property of not less than $1,000,000 each occurrence with respect to contractor's owned, hired, or non- owned vehicles, assigned to or used in performance of the work. (C) Workers' Compensation insurance to cover obligations imposed by Federal and State statutes having jurisdiction of its employees engaged in the per formance of the work, and Employers' Liability insurance with a minimum limit of $100,000. Evidence of qualified self -insured status will suffice for this subsection. The insurance policy may not have any deductible amounts with respect to the coverage of the Department, except that the Department may approve a deductible amount if the Department has approved the contractor as a self -insurer with respect to the deductible amount, and the contractor has agreed in writing that its self insurance will extend to the deductible amount prior to any other matters. The policies required by (A) and (B) above shall be endorsed to include the Department, its agents, officials, employees , and the State of Arizona as additional insureds with respect to any negligence of the contractor which may be legally imputed to the Department or State, and TABLE OF CONTENTS INDEX shall stipulate that the insurance afforded the contractor shall be primary insurance and that any insurance carried by the Department, its agents, officials, employees, or the St ate of Arizona shall be excess and not contributory insurance to that provided by the contractor, as provided by A.R.S. Section 41- 621(C). All insurance policies or certificates shall include a requirement providing for 30 days prior written notice to the Department of any cancellation or reduction of coverage. The contractor shall immediately notify the Department and shall cease operations on the occurrence of any such cancellation or reduction and shall not resume operations until the required insurance is in force and new certificates of insurance have been filed with the Department. The certificate(s) of insurance shall be issued to the Department by the contractor's insurer as evidence that policies providing the required coverages, conditions and lim its are in full force and effect. Certificates of insurance shall be addressed as follows: Arizona Department of Transportation Contracts and Specifications Group 205 South 17th Avenue, Room 121F Phoenix, Arizona 85007 Failure on the part of the contractor to produce or maintain required insurance shall constitute a material breach of contract upon which the Department may immediately terminate the contract or, at its discretion, produce or renew such insurance and pay any and all premiums in connection therewith, and all monies so paid by the Department shall be repaid by the contractor to the Department upon demand, or the Department may offset the cost of the premiums against any monies due to the contractor from the S tate. The cost of coverage will be considered as included in the contract price. Costs for coverage maintained by the contractor in excess of those required shall not be charged to the Department. The Department reserves the right to request and receive certified copies of any or all of the above policies and/or endorsements. The contractor and its insurers providing the required coverages shall waive all rights of recovery against the Department and its agents, officials and employees.
107.15 Contractor's Responsibility for Utility Property and
Services: (A) General: The contractor's attention is directed to the requirements of A.R.S. Section 40- 360.21 through .29 requiring all parties excavating in public TABLE OF CONTENTS INDEX streets, alleys, or utility easements to first secure the location of all underground facilities in the vicinity of the excavation. The contractor shall review copies of existing ADOT permits, subject to availability, prior to start of construction, to assist the contractor in determining the location of any utilities, which the Department may have record of and which are not otherwise shown on the contract documents. Utility locations obtained from the Department are for information only and shall not relieve the contractor of responsibility for identifying, locating , and protecting any existing utility lines. Copies of permits may be obtained from the ADOT Area Permit Supervisor in the District in which a project is located. The contractor shall contact the owners of the various utilities prior to the start of construction and shall obtain from them any information pertaining to existing utilities that will either supplement information shown on the project plans or will correct any such information that may be incorrect. The contractor shall furnish the Engineer with evidence that the contractor has contacted the utility companies. Such evidence shall be submitted at the preconstruction conference, and shall include a copy of the information received from each utility a s a result of such contacts. If the contractor learns from either the owner of the utility or from any other source of the existence and location of properties of railway, telegraph, telephone, fiber optics cable, water, sewer, septic tanks or systems, electric, gas and cable television companies either omitted from or shown incorrectly on the project plans, the contractor shall immediately notify the Engineer and shall not disturb the utilities. Relocation or adjustment of such utilities, if deemed necess ary, will be either performed by others or shall be performed by the contractor in accordance with the provisions of Subsection
104.02 of the
specifications. T he contractor shall cooperate with the owners of any underground or overhead utility lines in their removal and rearrangement operations in order that these operations may progress in a reasonable manner, that duplication of rearrangement work may be reduced to a minimum and that services rendered by these parties will not be unnecessarily interrupted. Temporary or permanent relocation or adjustment of any utility line or service connection desired by the contractor for its convenience shall be its responsibility. The contractor shall obtain the approval of both the Engineer and the utility company and upon approval shall make all necessary arrangements with the utility company and shall bear all costs in connection with such relocation or adjustment. The contractor shall also submit a Sewer Discharge Prevention Plan, as specified in Subsection 107.15(C)(1) of the specifications, describing each anticipated relocation or adjustment involving existing sanitary sewer lines. No work on a particular facility shall begin until all approvals for that facility have been received. TABLE OF CONTENTS INDEX The contractor shall be A DOT's underground utility field locator, and perform all requirements as prescribed in A.R.S. Section 40-360.21 through .29, for all underground facilities that have been installed by the contractor on the current project, until the project is accepted by ADOT. At least two working days prior but no more than 15 working days prior to commencing excavation, the contractor shall contact ARIZONA 811, between the hours of 6:00 a.m. and 5:00 p.m., Monday through Friday, excluding holidays, for information relati ve to the location of buried utilities. The contractor can call 811 from anywhere in Arizona or can contact ARIZONA 811 at the number below: Projects In Maricopa County (602) 263- 1100 Projects Outside Maricopa County (800) 782- 5348 Contractors can also cr eate and manage utility locate tickets online by using the Arizona 811 E -Stake tool at www.Arizona811.com . (B) Contractor Qualifications for Water and Sewer Lines: Breakage of active sanitary sewer lines may result in the potential spread of disease, contamination of the site and any adjacent bodies of water, and other hazards to the public. Substantial cleanup costs may be associated with such breakage, as well as possible major civil and/or criminal penalties. Therefore, the Engineer will closely consider the qualifications of any personnel proposed by the contractor to oversee or perform work involving active sanitary sewer lines. The contractor shall not assume that the personnel assigned to perform such work will be acceptable to the Department merely because they meet the experience requirements listed herein. The contractor, or the subcontracting firm assigned to perform the water and sewer work, shall have a minimum of five years of experience in the installation and construction of underground large diameter (18 inch or above) water and sewer improvements. In addition, the key personnel assigned by the contractor to perform any work on water or sewer lines, whether from the prime contractor or a subcontracting firm, shall also have at least fi ve years of experience in the installation and construction of underground large diameter (18 inch or above) water and sewer improvements. A minimum of two such people shall be designated by the contractor. The designated personnel may have the title of foreman or superintendent; however, at least one of these people shall be present at all times at the location of any work being performed at or near an active sanitary sewer line. For both the firm and the key personnel, the experience shall include working with and around water and sewer utility lines that are in service. The contractor shall submit the following documentation to the Engineer for review and approval: TABLE OF CONTENTS INDEX SECTION 1 07 (1) A list indicating that the designated key project personnel have at least f ive years of applicable experience, as specified above. The list shall be accompanied with resumes for each of the key people. The resumes shall include the following information, and demonstrate compliance with the specified requirements: (a) Detailed relevant experience for a minimum of two projects, including project description, date of work, actual work performed by the individual, and references (a minimum of one for each project) ; (b) Level of applicable formal training ; and (c) Number of years of relevant exp erience in performing like construction. (2) A list of water and sewer construction projects completed by the firm performing the water or sewer work, as specified above, indicating a minimum of five years of applicable experience. Include the dates of work, type of work, description of the project, amount of work performed by the contractor/subcontractor, and the name and phone number of a contact with the owning company or agency for which the work was completed; (3) List of equipment that will be used for this project. The list shall include, as a minimum, equipment type, date of manufacture, and if contractor -owned or rented; and (4) A list of all violations and citations in the past five years of applicable water and wastewater laws and statutes for both the prim e contractor and the subcontractor responsible for the utility work. The contractor shall submit this documentation to the Engineer for approval at least 21 calendar days prior to any anticipated work involving active sanitary sewer lines, whether new or e xisting. (C) Protection of Existing Utility Lines: At points where the contractor's operations are adjacent to right -of-way properties or easements for railway, telegraph, telephone, water, sewer, electric, gas, and cable television companies, hereinafter ref erred to as utilities, or are adjacent to other facilities and property, damage to which might result in considerable expense, loss, inconvenience, injury, or death, work shall not be commenced until all arrangements necessary for the protection thereof have been made. The exact locations and depths of all utilities that are underground or the location of those on or near the surface of the ground which are not TABLE OF CONTENTS INDEX readily visible shall be determined. Such locations shall be marked in such a manner so that all workmen or equipment operators will be thoroughly apprised of their existence and location. It will be the contractor's responsibility to see that every effort possible has been made to acquaint those actually involved in working near utilities not only with the type, size, location and depth, but with the consequences that might follow any disturbance. No trenching or similar operation shall be commenced until the Engineer is satisfied that every possible effort has been taken by the contractor to prote ct utilities. The contractor shall coordinate with others working near new or existing sewer lines or other utilities on the procedures to be followed to prevent damaging of these utilities. (1) Sewage Discharge Prevention Plan (SDPP): For any work which may impact active sanitary sewer pipes, whether new or existing, the contractor shall prepare a Sewage Discharge Prevention Plan (SDPP) which shall describe the contractor's procedures and work plan for such lines. The Sewage Discharge Prevention Plan shall also describe the precautions that the contractor shall take to prevent unplanned breakage or spills, and the procedure which the contractor shall follow if breakage or a spill occurs. The contractor's method of work described in the SDPP shall ensure that any work done in or near any active sewer line is performed in a safe and controlled manner resulting in no accidental discharges. As a minimum, the contractor's equipment and procedures shall be appropriate for the intended work, and shall conform to standard industry practices. The SDPP shall include information, as specified below, for all portions of the project which involve the following work activities, and for any other element of work which may involve contact with an active sanitary sewer line: (a) Interrupt, divert, relocate, plug, or abandon a sewer line or service connection ; or (b) Brace, or tie into a sewer line or service connection. Construction activities in the vicinity of active sanitary sewer lines or service connections shall also be included in the SDPP if any of the following conditions exist: (a) Any work crossing beneath the pipe, at any angle, regardless of vertical separation; (b) Any work crossing over the pipe, at any angle, within 2 feet of the top of pipe; or TABLE OF CONTENTS INDEX (c) Work located parallel to the pipe within the following areas: (i) For the area from the bottom of the pipe to 2 feet above the top of the pipe, any work within 2 feet horizontally of the pipe wall ; or (ii) For the area below the bottom of the pipe, any work locate d below an imaginary line beginning at the pipe springline and progressing downward at a slope of 1.5 feet vertically to 1.0 feet horizontally. The contractor’s Sewage Discharge Prevention Plan shall address each of the items tabulated below, as applicable, for every location where construction activity will involve an active sanitary sewer line. (2) Required Elements of the Sewage Discharge Prevention Plan: The following elements shall be addressed in the SDPP: (a) Describe the proposed work i n general, including the reasons for the work, scope, objectives, locations, dates, and estimated times the work will be conducted. Include project plan sheets detailing the proposed work, and indicating the peak flowrates of active sewer lines, determined as specified; (b) For all existing sanitary sewer pipes, determine whether the lines are active or abandoned, and the peak flowrates of lines in service, as provided by the owner of the utility; (c) List the key personnel (crew foreman, superintendent, and manager) and field office that are proposed to perform the work (include phone numbers) ; (d) Describe the work in step- by-step detail for each location, including excavation plans and how both the new and existing structures and utilities will be identified and protected; (e) Provide a detailed listing of any hardware, fittings, pipe plugs, flex couplings, tools, and materials needed to accomplish the work, and note the status of these items (on- hand, to- be-fabricated, on- order with expected delivery date, etc.). Include any manufacturer’s specifications or recommendations, TABLE OF CONTENTS INDEX especially for any pipe plugs, sewer line fittings, and patching materials; (f) List all major equipment to be used to perform the work. Include in this item any pumps that will be used to perform the work and the rated capacity of the pumps at the anticipated suction head; (g) List all equipment to be used in the event of an unplanned release and specify how the equipment will be used. The locations of stan dby pumps shall be specified in this item. The plan shall indicate that all standby equipment to be used in the event of an unplanned discharge can be delivered to the site and put into service within two hours of identification of any unplanned flow ; (h) List the safety equipment to be used, and describe any unique safety procedures. Cite the applicable OSHA standards covering the work; (i) Describe any contingency plans the contractor will implement in the event of unplanned releases and/or damage to existing facilities. List all personnel and subcontractors that will be responsible for responding to unplanned releases or damaged lines. Provide qualifications for all such personnel and subcontractors, including education, formal training, and relevant experi ence; (j) Describe how the public will be protected during the work, and include or cite any applicable traffic control plans; (k) Describe the quality control procedures that will be used in the field; and (l) Discuss how temporary plugs or flow control devices will be secured, monitored, and removed. The SDPP shall be in written form, and shall include any diagrams or sketches necessary for clarity. When possible, diagrams, and sketches should be shown using the applicable project plan sheets. The contractor shall modify the SDPP as necessary throughout the project to include any new or revised information relevant to the items listed above. The contractor shall resubmit the revised SDPP to the Engineer for approval in each case. TABLE OF CONTENTS INDEX (3) Sewage Discharge Preventi on Plan Approval: The SDPP shall be submitted to the Engineer at least 21 calendar days before any work involving an active sewer line is to be done. The Engineer will review the plan, solicit comments from the owner/operator of the sewer line, and return the plan to the contractor within 14 calendar days from original submittal. No work involving active sanitary sewer lines shall be done until a final SDPP meeting all the requirements specified in Subsection 107.15(C)(2) of the specifications has been approved by the Engineer. Approval of the contractor's Sewage Discharge Prevention Plans, personnel, or construction methods and operation shall not relieve the contractor from its responsibility to safely perform the work included in this contract, nor from its liability for damage resulting, either directly or indirectly, from its work performed under this contract. (D) Service Connections: (1) General: In the event of interruption to water , sewer, or utility services as a result of accidental breakage or as a result of lines being exposed or unsupported, the contractor shall promptly notify the proper authority and shall cooperate with the said authority in the restoration of service. When service is interrupted, repair work shall be continuous until the service is restored. No work shall be undertaken around fire hydrants until provisions for continued service have been approved by the local fire authority. (2) Unidentified Water and Sewer Connections: The contractor shall protect unidentified, undamaged water or sewer service connections encountered during excavation. The contractor shall immediately notify the Engineer when an unidentified service connection is encountered. The contractor shall immediately repair unidentified water or sewer service connections that are damaged during excavation. Any damaged service connections shall be reported to the Engineer, including all remedial actions taken. (E) Repairing Damaged Lines: When the operations of the contractor result in damage to any utility line or service connection, the location of which has been brought to the contractor's attention, the contractor shall assume full responsibility for such damage. TABLE OF CONTENTS INDEX Should an unplanned breakage occur in an active sewer line as a result of the contractor's operations, the contractor shall immediately notify the Engineer, and begin repairs to halt any flows and restore normal service, in accordance with the procedures described in the approved Sewage Discharge Prevention Plan. The contractor shall also immediately notify the affected utility company and the appropriate regulatory agencies. The contractor shall be responsible for repairing the damaged pipe, restoring any interruptions in service, and cleaning up the affected areas within 24 hours of the beginning of the spil l. Sewage discharge damage assessments, as specified in Subsection 107.15(F) of the specifications, will be charged to the contractor for any unplanned breakage which results in a discharge. The contractor shall be responsible to repair any breakage, in accordance with requirements of the broken line's owner/operator, and clean up the site per applicable codes and regulations of the EPA, OSHA, ADEQ, and all other agencies' specifications, at no additional cost to the Department. (F) Sewage Discharge Damage Assessments: The Department will assess liquidated damages in accordance with the Table 107.15- 1 below for each 24- hour period, or portion thereof, for each unplanned breakage that occurs in an active sanitary sewer line as a result of the contractor's operation. The rate of liquidated damages assessed is based on the type and quantity of effluent discharged as determined by the Engineer. These liquidated damages do not relieve the contractor from any of its responsibilities under the contract, including any liquidated damages that may be assessed under Subsection
108.09 of the specifications for
late completion of the project. Li quidated damages assessed by the Department will be independent of any penalties imposed by others. The contractor acknowledges that Regulatory agencies may assess or impose civil or criminal penalties on the contractor resulting from sewer discharges. The Department will not be responsible for any civil or criminal penalties, fines, damages, or other charges imposed on the contractor by any regulatory agency or court for sewage discharges that are a result, directly or indirectly, of the contractor’s work performed under this contract. TABLE OF CONTENTS INDEX TABLE 107.15 -1 LIQUIDATED DAMAGES (EACH 24 -HOUR PERIOD, OR PORTION THEREOF) Volume of Discharge Raw Sewage or Industrial Wastewater Treated Effluent Less than 10,000 gallons $5,000 $1,000 10,000 to 99,999 gallons $10,000 $2,000 100,000 to 1 million gallons $25,000 $3,000 Greater than 1 million gallons $40,000 $5,000 Liquidated damages shall be assessed for each 24- hour period, or portion thereof, until the contractor has completed all of the following tasks: (1) Stopped the discharge; (2) Repaired the damaged pipe; (3) Restored normal service; and (4) Fully cleaned and disinfected th e site to the satisfaction of the Engineer. Upon completion of tasks A, B, and C above, and prior to completion of Task D, the liquidated damages assessed for the current 24- hour period shall be at the rate shown in Table 107.15- 1. However, for each subsequent 24- hour period, the assessment will be 1/2 of the rate shown in Table 107.15- 1. Damages will continue at the reduced rate until the site has been fully cleaned and disinfected to the satisfaction of the Engineer. As an exam ple, the amounts assessed each 24 -hour period for an unplanned discharge of 20,000 gallons of raw sewage, in which the contractor completes tasks A, B, and C within the second 24- hour period but does not complete full cleanup until the third 24 -hour period, will be as follows: First 24- hour period: $10,000 Second 24- hour period: $10,000 Third 24- hour period: $5,000 TABLE OF CONTENTS INDEX For this example, the total liquidated damage assessment will be $25,000 ($10,000 + $10,000 + $5,000).
107.16 Personal Liability of Public Officials:
In carrying out any of the provisions of these specifications 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 Transportation Board and any member thereof, the Director, the Engineer, or their authorized representatives, either personally or as officials of the State, it being understood that in all such matters they act solely as agents and representatives of the State.
107.17 No Waiver of Legal Rights:
Partial or final acceptance pursuant to Subsection 105.20 of the specifications shall not preclude or prohibit the Department from correcting any measurement, estimate, or certificate made before or after completion of the work, nor shall the Department be precluded or prohibited from recovering from the contractor, or its surety, insurance or any combination thereof, such overpayment as it may sustain, or by failure on the part of the contractor to fulfill his obligations under 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 other or subsequent breach. The contractor, without prejudice to the terms of the contract, shall be liable to the Department for latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards to the Department's rights under any warranty or guaranty.
107.18 Contractor and Subcontractor Records:
The contractor, subcontractors, and all suppliers shall keep and maintain all books, papers, records, files, accounts, reports, bid documents with backup data, including electronic data, and all other material relating to the contract and project for five years following completion and acceptance of the work. All of the above material shall b e made available to the Department for auditing, inspection and copying and shall be produced, upon request, at the Department offices located at 206 South 17th Ave., Phoenix, Arizona 85007. The contractor shall insert the above requirement in each subcont ract, purchase order and lease agreement and shall also include in all subcontracts a clause requiring subcontractors to include the above requirement in any lower -tier subcontract, purchase order or lease agreement. TABLE OF CONTENTS INDEX
107.19 Federal Immigration and National ity Act:
(A) General: The contractor, and all subcontractors, shall comply with all federal, state , and local immigration laws and regulations, as set forth in Arizona Executive Order 2005- 30, relating to the immigration status of their employees who perform services on the contract during the duration of the contract. The State shall retain the right to perform random audits of contractor and subcontractor records or to inspect papers of any employee thereof to ensure compliance. The contractor shall include the provisions of Subsection 107.19 of the specifications in all its subcontracts. In addition, the contractor shall require that all subcontractors comply with the provisions of Subsection 107.19 of the specifications, monitor such subcontractor compliance, and assist the Department in any compliance verification regarding any subcontractor. (B) Comp liance Requirements for A.R.S. § 41 -4401, Government Procurement, E- Verify Requirement; Sanctions : By submission of a bid, the contractor warrants that the contractor and all proposed subcontractors are and shall remain in compliance with: (1) All federal, state, and local immigration laws and regulations relating to the immigration status of their employees who perform services on the contract ; and (2) A.R.S. Section 23- 214, Subsection A (That subsection reads: “After December 3 1, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the E -Verify program.”). A breach of a warranty regarding compliance with immigration laws and regulations shall be deemed a material breach of the contract, and the contractor and subcontractors are subject to sanctions specified in Subsection 107.19(D) of the specifications. Failure to comply with a State audit process to verify the employment records of contractors and subcontractors shall be deemed a material breach of the contract, and the contractor and subcontractors are subject to sanctions specified in Subsection 107.19(D) of the specifications. TABLE OF CONTENTS INDEX (C) Compliance Verification: The State may, at any time and at its sole discretion, require evidence of compliance from the contractor or subcontractor. Should the State request evidence of compliance, the contractor shall complete and return the State Contractor Employment Record Verification Form and Employee Verification Worksheet, pro vided by the Department, no later than 21 days from receipt of the request for such information. Listing of the compliance verification procedure specified above does not preclude the Department from utilizing other means to determine compliance. The State retains the legal right to inspect the papers of any employee who works on the contract to ensure that the contractor or subcontractor is complying with the warranty specified in Subsection 107.19(B) of the specifications. (D) Sanctions for Non Compliance: For purposes of this paragraph, non- compliance refers to either the contractor’s or subcontractor’s failure to follow immigration laws or to the contractor’s failure to provide records when requested. Failure to comply with the immigration laws or to submi t proof of compliance constitutes a material breach of contract. At a minimum, t he Department will reduce the contractor’s compensation by $10,000 for the initial instance of non- compliance by the contractor or a subcontractor. If the same contractor or subcontractor is in non- compliance within two year s from the initial non- compliance, the contractor’s compensation will be reduced by a minimum of $50,000 for each instance of non- compliance. The third instance by the same contractor or subcontractor within a two year period may result, in addition to the minimum $50,000 reduction in compensation, in removal of the offending contractor or subcontractor, suspension of work in w hole or in part or, in the case of a third violation by the contractor, termination of the contract for default. In addition, if a contractor is in non- compliance three times within a two- year period, the Department will revoke the contractor’s preq ualification for a minimum of one year. Subcontractors and suppliers who are in non- compliance three times within a two- year period will be prohibited from participating in Department contracts for a minimum of one year. Subcontractors who are in non- compliance three times within a two- year period, and who are prequalified with the Department as prime contractors, will also have such prequalifications revoked for a minimum of one year. After the minimum one- year suspension, contractors, subcontractors, and suppliers may be considered eligible to participate in Department TABLE OF CONTENTS INDEX contracts, but only after successful demonstration, to the satisfaction of the Department, that their hiring practices comply with the requirements specified herein. If considered eligible, contractors shall be required to re-apply for prequalification and be accepted prior to bidding on Department contracts. Subcontractors interested in bidding on Department contracts as prime contractors shall also be required to re-apply for prequalification and be accepted prior to bidding. For purposes of considering suspension: (1) non- compliance by a subcontractor does not count as a violation by the contractor, and (2) the Department will count instances of non- compliance on other Department contracts. The sanctions described herein are the minimum sanctions; in case of major violations the Department reserves the right to impose any sanctions up to and including termination, revocation of prequalification, and prohibition from participation in Department contracts, regardless of the number of instances of non- compliance. Contractors, subcontractors, and suppliers may appeal the sanctions to the State Engineer. That appeal must be in writing and personally delivered or sent by certified mail, return receipt requested, to the State Engineer. The appeal must be received by the State Engineer no later than seven calendar days after the Department’s determination. The State Engineer shall promptly consider any appeals and notify the interested party of the State Engineer’s findings and decision. The State Engineer’s decision shall be considered administratively final. Any delay resulting from a compliance verification or a sanction under this subsection is a non- excusable delay. The contractor is not entitled to any compensation or extension of time for any delays or additional costs resulting from a compliance verification or a sanction under this Subsection 107.19 of the specifications. An example of the minimum sanctions under this subsection is presented in the following table: Offense by: Reduction in Compensation Contractor Subcontractor A Subcontractor B First $10,000 First $10,000 Second $50,000 First $10,000 Third $50,000* Note: * Will, in addition, result in removal of the subcontractor, prohibition from participating in Department contracts, and revocation of any Department prequalifications that the subcontractor may have obtained. TABLE OF CONTENTS INDEX SECTION 108 SECTION 108 PROSECUTION AND PROGRESS:
108.01 Subletting of Contract:
The contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the contract or contracts or any portion thereof or of the contractor's right, title or interest therein without written consent of the Engineer. In case such consent is given, the contractor will be permitted to sublet a portion thereof, but shall perform with the contractor's own organization work amounting to not less than 40 percent of the original contract amount. No subcontracts or transfer of contract shall release the contractor of its liability under the contract and bond. "Contractor's own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by it, with or without operators. Such term does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor. The contract amount upon which the 40- percent requirement is computed includes the cost of materials and manufactured products which are to be purchased or produced by the contractor under the contract provisions. A person who has been convicted of a violation of A.R.S. Section 34- 252 is not eligible to enter into any contract either as a contractor, subcontractor , or supplier, for a period of up to three years, from date of conviction, as determined by the court. A person means any individual, partnership, corporation, association, or other entity formed for the purpose of doing business as contractor, subcontractor , or supplier. The Department may also refuse to approve any entity as a subcontractor or supplier for any of the reasons for which it could refuse to allow an entity to submit a bid, suspend the entity from bidding, or declare the entity non- responsible. The Department’s consent to a subcontract will be given only after the Department determines that the subcontract, purchase order, or lease agreement is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. The following data shall be submitted seven calendar days prior to the start of each subcontractor’s work, except data regarding DBE subcontracts must be submitted at the preconstruction conf erence: (A) A complete copy of each subcontractor agreement and each second tier subcontractor . (B) Verification that all required Federal Provisions; i.e., Federal Form 1273, Executive Order, and Wage Determination TABLE OF CONTENTS INDEX SECTION 108 Decisions are attached to each subcontract in any federal -aid funded contract . (C) Subcontracts must show the total price subcontracted. The items of work, and quantities of each item subcontracted shall be shown. Unit Prices or Extended Prices may be deleted except in the case of DBE subcontractors. (D) DBE subcontracts shall include full extensions of all unit prices. (E) Partial items shall be explained in detail and show the amount of each contract item being subcontracted. Non -contract item work shall be fully explained, i.e., Trucking 1,000 hours, Truck Asphaltic Concrete. (F) The contractor shall certify to the Department that all of its subcontractors have all required registrations. (G) An alternative dispute resolution process to resolve payment and prompt payment disputes shall be included in each subcontract. The Engineer will not consent to subletting of any portion of the contract until the Engineer receives a copy of the subcontract that has been approved by the Department , lower tier subcontract, or Subcontractor Request Form (SRF). When a contractor submits a SRF, a complete executed subcontractor agreement should be attached to the form. If the contractor does not attach the subcontract, the subcontract must be submitted to the Department within 30 days of the approval date of the original approved SRF. If the subcontract agreement does not contain the pertinent provisions and requirements as indicated by the original approved SRF or, if the contractor fails to submit the subcontract within 30 days of the approval date of SRF, the E ngineer will revoke the consent to sublet. The Engineer will not consent to subletting of any portion of the contract until the AZUTRACS Registration Number for the subcontractor has been provided. The contractor’s schedule shall allow three calendar days, excluding weekends and holidays, for the Department’s subcontract review of each SRF . The Engineer’s consent shall in no way be construed to be an endorsement of the subcontractor or its ability to complete the work in a satisfactory manner . TABLE OF CONTENTS INDEX SECTION 108 If a subcontractor, of any tier, begins work on the contract prior to the contractor submitting the required documentation and receiving consent from the Engineer, the Department will withhold $1,000 from monies due or becoming due the contractor as liquidated damages. The liquidated damages will be withheld for each subcontractor, of any tier, that starts work without the consent of the Engineer. These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract. If a subcontractor, of any tier, is found working on the project without an approved contract the Engineer will immediately stop work on the subcontract. Work shall not resume until all required documentation is submitted and appro ved by the Engineer. The contractor shall not be entitled to additional compensation or an extension of contract time for any delays to the work because of the contractor’s failure to submit the required documentation. Calculation of the 60 percent subcontracting limit will be based upon the amount of work subcontracted and verified by subcontract documents. Subcontractors performing contracting work subject to A.R.S. Sections 32-1101 et seq. shall be duly licensed in accordance with those statutes. Subcontractors providing other services shall be licensed in accordance with the requirements of Arizona Law.
108.02 Start of Work:
Work shall not be started until the contract has been executed by both the contractor and the Department. The contractor shall begin work within the number of calendar days after the date of notice of award of contract as follows: Contract Size (Dollars) Calendar Day Period 0 to 10,000,000 30 over 10,000,000 to 30,000,000 45 over 30,000,000 60 When the contract time is on a calendar day basis or on a working day basis, contract time will be charged commencing on the date 30, 45, or 60 calendar days, as determined by the contract size, after the date of the notice of award letter. Should this date fall on a Saturday, Sunday or holiday, the next working day shall be considered the starting date for the purpose of charging contract time. TABLE OF CONTENTS INDEX SECTION 108
108.03 Preconstruction Conference:
The contractor shall meet with the Engineer for a preconstruction conference prior to commencing work. The conference may be combined with the partnering conference, and all requirements of this subsection may be submitted at that time. Should both conferences be held at the same time, the partnering conference will be held first. At the preconstruction conference the contractor shall submit a progress schedule showing the order in which the contractor proposes to carry out the work, the dates on which the contractor and its subcontractors will start the work, including procurement of materials, equipment, etc.; the ordering of articles of special manufacture; the furnishing of drawings, plans and other data required under Subsection 105.03 of the specificat ions for the review and approval of the Engineer; the inspection of structural steel fabrication; and the contemplated dates for the completion. The schedule shall be in a critical path method format. No schedule activity shall be shorter than one day or longer than 15 working days. The schedule must show interrelationships among the activities, and the controlling items of work throughout the project shall be identified. If requested by the Engineer, the contractor shall furnish information needed to justify activity time durations. Such information shall include estimated manpower, equipment, unit quantities, and production rates. The schedule shall illustrate the completion of the work not later than the contract completion date. The contractor shall notify the Engineer in writing of proposed major changes in the progress schedule. Major changes are those that may affect compliance with the contract requirements or that change the critica l path or controlling item of work. The contractor shall furnish authorized signature forms and a list of the contractor's proposed subcontractors and major material suppliers. Progress schedules shall have considered the time requirement for ordering articles of special manufacture to meet specific requirements of the work and Subsection 604- 3.04 of the specifications when structural steel fabrication inspection is required. If the contract has a DBE requirement, the contractor shall submit copies of completed and signed DBE subcontracts, purchase orders, or invoi ces to the Department. The contractor shall submit a traffic control plan in accordance with Subsection 701- 1 of the specifications. The contractor shall designate an employee who is competent and experienced in traffic control to implement and monitor th e traffic control plan. The qualifications of the designated employee must be satisfactory to the Engineer. Such designated employee shall have successfully completed a recognized traffic control supervisor training program. The traffic control supervisor training provided by the American Traffic Safety Services Association (ATSSA) or the IMSA shall be acceptable. Training through other TABLE OF CONTENTS INDEX SECTION 108 programs must be approved in advance by the Engineer. The contractor shal l submit proof that the proposed individual has completed an approved training program at the preconstruction conference. The training shall be current, and must be valid throughout the duration of the project. In order to remain current with the Departm ent, the traffic control supervisor training shall be completed or renewed every four years. The contractor shall submit a safety plan and designate an employee as Safety Supervisor, in accordance with Subsection
107.08 of the
specifications. T he traffic control plan and safety plan shall be satisfactory to the Engineer. During the preconstruction conference, the Engineer will designate a Department employee or employees who will be responsible to see that the traffic control plans and any alterations thereto are implemented and monitored to the end that traffic is carried through the work in an effective manner. If approved by the Engineer, the contractor may designate one employee to be responsible for both the traffic control and safety plans. The contractor shall not designate its superintendent as the responsible person for either the traffic control plan or the safety plan, unless approved by the Engineer. If the project requires that contractor or State personnel to work from falsework, within shoring, or in any other hazardous area the contractor shall submit as part of the contractor's safety plan specific measures it will use to ensure worker safety. The contractor shall also submit a program for erosion control and pollution preve ntion, as set forth in Subsection 104.09 of the specifications, on all projects involving clearing and grubbing, earthwork, structural work, or other construction, when such work is likely to create erosion or pollution problems. If the contractor fails to provide the required submissions, the Engineer may order the preconstruction conference suspended until such time as they are furnished. Work shall not begin until the preconstruction conference has been concluded and the safety plan has been approved, unless authorized by the Engineer. The contractor shall not be entitled to additional compensation or an extension of contract time resulting from any delays due to such a suspension. When the specifications require specific quality control measures for certain materials by referencing Subsection 106.04(C) of the specifications, the contractor shall designate a qualified employee as Quality Control Manager. The Quality Control Manager shall be responsible for the implementing and monitoring of the quality control requirements described in Subsection 106.04(C) of the specifications. TABLE OF CONTENTS INDEX SECTION 108
108.04 Prosecution and Progress:
The contractor shall start the work in accordance with the requirements of Subsection 108.02 of the specifications. The contractor shall notify the Engineer at least seven working days prior to beginning work. Unless suspended, the work shall be diligently and continuously carried on to completion and the cont ractor agrees to provide at all times an adequate force of labor and sufficient materials and equipment to insure the completion of the contract within the time allowed. The progress of the work shall be at a rate sufficient to complete the contract in an acceptable manner within the time allowed. At a mutually convenient location and time, the contractor shall meet weekly with the Engineer to discuss construction activities; however, a meeting may be waived if mutually agreed to, due to weather conditions, work progress, or for other reasons. At the meetings, the contractor shall provide the Engineer with a detailed, written schedule of construction activities and phases of work for the forthcoming two- week period as well as the construction activities w hich were performed during the previous week. This schedule shall detail the anticipated start dates and anticipated completion dates of work activities. The weekly schedule should reflect, at a minimum, all activities from the most recently updated proje ct schedule. For work which was completed during the previous week, this schedule shall detail the actual start and completion dates of work activities as well as indicate the status of major ongoing activities. Upon the second occurrence of the contractor failing to provide an accurate schedule as describe d herein and after written notification by the Engineer of the first occurrence, the Department will deduct $500 from the contractor’s progress payment per each occurrence thereafter. Minutes of the weekl y meetings will be kept by the Engineer and a copy will be given to the contractor for review and acceptance. Schedule changes requiring an increase in the Department's engineering personnel will not be put into effect for 10 days after the submission of weekly schedules detailing such activities, or until the Engineer has made arrangements for additional personnel, whichever is the shorter time. Every 30 days throughout the contract, or at any other time as requested by the Engineer, the contractor shall submit a revised progress schedule reflecting the act ual progress of activities, all activity logic revisions, the anticipated completion dates of the major phases of work remaining, and the anticipated completion date of the work.
108.05 Limitation of Operations:
The contractor shall conduct the work at all times in such a manner and in such sequence as will ensure the least interference with traffic and the safety of the public and the protection of the workmen. It shall have due regard to the location of detours and to the provisions for handling TABLE OF CONTENTS INDEX SECTION 108 traffic. It shall not open up work to the prejudice or detriment of work already started. The Engineer may require the contractor to finish a section of work which is in progress before work is started on any additional sections if the opening of such section is essential to public convenience. Except as required to protect work already accomplished, to provide dust control and for work of a similar nature, no work on Sundays or holidays will be permitted unless written permission is obtained from the Engineer. The contractor shall advise the Engineer at least 24 hours in advance if the contractor elects to work on any Saturday, Sunday, or holiday. In general, all work shall be performed during daylight hours. If the contractor elects to perform work at night or if the contractor is required to do so in the Special Provisions, the contractor shall furnish, erect , and maintain an amount of artificial lighting sufficient for the construction, flagg ing, inspection, etc. and for the safety of the workers and the traveling public. No night work shall be performed until the Engineer is satisfied that an adequate amount of artificial light has been furnished and placed properly.
108.06 Character of Work ers:
The contractor shall at all times employ sufficient labor and equipment for prosecuting the several classes of work to fulfill completion in the manner and within the time required by these specifications. All workers shal l have sufficient skill and experience to perform properly the work assigned to them. Workers engaged in special work or skilled work shall have sufficient experience in such work and in the operation of the equipment required to perform all work properly and satisfactorily. Any person employed by the contractor or by any subcontractor who, in the opinion of the Engineer, does not perform the contractor's work in a proper and skillful manner or is intemperate or disorderly shall, at the written request of the Engineer, be removed immediately by the contractor or subcontractor employing such person and shall not be employed again in any portion of the work without the approval of the Engineer. Should the contractor fail to remove such person or persons as required above or fail to furnish suitable and sufficient personnel for the proper prosecution of the work, the Engineer may suspend the work by written notice until compliance.
108.07 Methods and Equipment:
All equip ment which is proposed to be used on the work shall be of sufficient size and in such mechanical condition as to meet the requirements of the work and to produce a satisfactory quality of work. TABLE OF CONTENTS INDEX SECTION 108 Equipment used on any portion of the project shall be such that no damage to the roadway, adjacent property, or other highways will result from its use. When the construction methods and types of equipment to be used by the contractor in accomplishing the construction are not set forth in the contract, the contractor may use any methods or equipment that it demonstrates to the satisfaction of the Engineer will accomplish the contract work in conformity with the requirements of the contract. When the contract specifies that the construction be performed by the use of certain methods and equipment, such methods and equipment shall be used unless others are authorized by the Engineer. If the contractor desires to use a method or type of equipment other than those specified in the contract, it may request authority from the Engineer to do so. The request shall be in writing and shall include a full description of the method and equipment proposed to be used and an explanation of the reasons for desiring to make the change. If approval is given, it will be on the conditi on that the contractor shall be fully responsible for producing construction work in conformity with the contract requirements. If after trial use of the substituted methods or equipment, the Engineer determines that the work produced does not meet contra ct requirements, the contractor shall discontinue the use of the substitute method or equipment and shall complete the remaining construction with the specified methods and equipment. The contractor shall either remove the deficient work or replace it wit h work of specified quality or take such other corrective action as the Engineer may direct.
108.08 Determination and Extension of Contract Time:
The Contract Time, as defined in Section 101 of the specifications, will be stated in the Special Provisions. When the contract time is on a working day basis, the Engineer will furnish the contractor a weekly statement showing the number of days charged to the contract for the preceding week and the number of days specified for completion of the contract. The contractor will be allowed one week after the contractor has received the statement in which to file a written protest with the Engineer setting forth in what respect such weekly statement is incorrect; otherwise the statement shall be deemed to have been accepted by the contractor as correct. When the contract time is on a calendar day basis, it shall consist of the number of calendar days stated in the contract counting from the starting date and including all Sundays, holidays and non- work days. All calendar days elapsing between the effective dates of any orders of the Engineer to suspend work and to resume work for suspensions not the fault of the contractor will be excluded. When the contract completion time is a fixed calendar date, this date shall be the date on which all work on the project is required to be substantially complete. TABLE OF CONTENTS INDEX SECTION 108 Contract time is based on the amount of work included in the original contract. If satisfactory fulfillment of the contract involves alterations to the contract that affect the contractor's completion time, the contractor may request a supplemental agreement which extends the contract time. Such request will be made in accordance with Subsection 104. 03 of the specifications, shall be in the form of a Request for Extension of Contract Time, and shall include the contractor's revised schedule and all other pertinent data. The request shall show why an increase of contract time is warranted. A n extension of contract time will not be considered unless the work affected is a controlling item on the contractor's schedule at the time of the alteration or becomes a controlling item as a result of the alteration. If a nationwide shortage exists in basic materials or standard items which are necessary in the fabrication or manufacture of equi pment, parts or articles to meet the specific requirements of the project, a serious widespread shortage of such equipment, parts or articles may be considered as a valid reason for the extension of contract time. Delivery delays or shortages caused by ordinary supply fluctuations are not nationwide shortages and therefore are not valid reasons for extension of time. The contractor's plea that insufficient time was specified is not a valid reason for extension of time. If the contractor requests additional time and if the Engineer finds that the work activities controlling overall job progress and the projected completion date were delayed because of conditions beyond the control and without the fault of the contractor, and could not have been anticipated by the contractor, the Engineer may extend the time for completion in such amount as the conditions justify. The extended time for completion shall then be in full force and effect the same as though it were the original time for completion. When substantial completion has been duly determined by the Engineer in accordance with the requirements of Subsection
105.19 of the
specifications, the daily charge of the contract will cease. 108. 09 Failure to Complete the Work on Time: For each calendar day or working day, as specified, that the contractor shall fail to achieve substantial completion after the contract time or calendar date specified for the completion of the work provided for in the contract, the sum shown in the schedule of liquidated damages specified below will be deducted from any monies due the contractor, not as a penalty, but as liquidated damages; provided, however, that due account will be taken of any adjustment of the contract time for the completion of the work allowed under the provisions of Subsection 108. 08 of the specifications. TABLE OF CONTENTS INDEX SECTION 108 Permitting the contractor to continue and finish the work or any part of it after th e contract time has expired or after the date to which the time for completion may have been extended will in no way operate as a waiver on the part of the Department of any of its rights under the contract. When the contract t ime contains construction phase(s) and landscape establishment phase, the construction phase(s) will be considered for the requirements specified above. The construction phase shall be defined as all work not included in landscape establishment phase. The landscape establishment phase shall be as described and specified under Section 807 of the specifications. SCHEDULE OF LIQUIDATED DAMAGES Original Contract Amount Liquidated Damages Per Day From More Than: To and Including: Calendar Day or Fixed Date: Working Day: $ 0 $ 100,000 $ 450 $ 450 100,000 500,000 620 710 500,000 1,000,000 770 1,090 1,000,000 2,000,000 1,200 1,800 2,000,000 5,000,000 1,500 2,600 5,000,000 10,000,000 2,120 4,250 10,000,000 20,000,000 5,600 6,000 20,000,000 30,000,000 5,600 7,000 30,000,000 60,000,000 6,000 7,000 60,000,000 90,000,000 8,250 9,500 90,000,000 ------- 8,250 9,500
108.10 Termination of Contract for Default:
If the contractor: (A) Fails to begin the work under the contract within the time specified , or TABLE OF CONTENTS INDEX SECTION 108 (B) Fails to perform the work with sufficient workers and equipment or with sufficient materials to ensure the prompt completion of said work, or (C) Performs the work unsuitably or neglects or refuses to remove materials or to perform anew such work as may be rejected as unacceptable and unsuitable, or (D) Discontinues the prosecution of the work, or (E) Fails to resume work which has been discontinued within a reasonable time after notice to do so, or (F) Becomes insolvent , or (G) Allows any final judgment to stand against it unsatisfied for a period of 10 days, or (H) Makes an "assignment for the benefit of creditors," , or (I) Fails to comply with contract requirements regarding minimum wage payments or equal employment opportunity requirements, or (J) Is a party to f raud, or (K) For any other cause whatsoever, fails to carry on the work in an acceptable manner, The Engineer will give notice in writing to the contractor and to the contractor's surety of such delay, neglect or default. If the contractor or the contractor's surety within a period of 10 days after such notice shall not proceed in accordance therewith, the Department will, upon written notification from the Engineer of the fact of such delay, neglect or default and the contractor's failure to comply with such notice, have full power and authority without violating the contract to terminate the contract. The Department may appropriate or use any or all materials and equipment on the ground as may be suitable and acceptable and may enter into an agreement for the completion of said contract according to the terms and provisions thereof or use such other m ethods as in the opinion of the Engineer will be required for the completion of said contract in an acceptable manner. All costs and charges incurred by the Department, together with the cost of completing the work under contract, will be deducted from any monies due or which may become due said contractor. If such expense exceeds the sum which would have been payable under the contract, then the contractor and the contractor's surety shall be liable and shall pay to the Department the amount of such excess. TABLE OF CONTENTS INDEX SECTION 108 If it is determined, after termination of the contractor's right to proceed, that the contractor was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Department i n accordance with Subsection 108.11 of the specifications. Thus, damages to which the contractor and the surety may be entitled as a result of an improper default termination will be limited to the amounts provided for in Subsection 108.11 of the specif ications.
108.11 Termination of Contract for Convenience of the
Department: The Department may terminate the entire contract or any portion thereof, if the Engineer determines that a termination is in the Department's best interest. The Engineer will deliver to the contractor a Written Order of Termination specifying the extent of termination and the effective date. (A) Submittals and Procedures: After receipt of a Written Order of Termination the contractor shall immediately proceed with the following obligations: (1) Stop work as specified in the notice. (2) Place no further subcontracts for orders or materials, services, equipment or facilities, except as necessary to complete the continued portion of the contract . (3) Terminate all subcontracts or orders for materials, services, equipment or facilities to the extent they relate to the work terminated. (4) Transfer title and deliver to the Department : (a) The fabricated, partially fabricated, or unfabricated parts; work in process; completed work; supplies; and other material produced or acquired for the work terminated. (b) The completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the Department. (5) Take any action necessary, or that the Engineer may direct, for the protection and preservation of the property related to the contract that is in the possession of the contractor and in which the Department has or may acquire an interest . TABLE OF CONTENTS INDEX SECTION 108 (6) Complete performance of the work not terminated. (B) Inventory: Acceptable materials obtained by the contractor for the project that have not been incorporated in the work shall be inventoried in conjunction with the Engineer at a date identified by the Engineer. (C) Settlement Provisions: When the Department orders termination of all or a part of the contract effective on a certain date, completed items of work as of that date will be paid for at the contract bid price. Payment for partially completed work or for items that are eliminated in their entirety will be made either at agreed prices or under the provisions below. (1) Additional Costs: Within 60 calendar days of the effective termination date the contractor shall submit a claim to the Engineer f or additional damages or costs not covered above or elsewhere in the contract. Such claim may include such cost items as reasonable idle equipment time, mobilization efforts, bidding and project investigative costs, overhead expenses attributable to the p roject terminated, legal and accounting charges involved in claim preparation, subcontractor costs not otherwise paid for, actual idle labor cost if work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original contract, and any other cost or damage for which the contractor feels reimbursement should be made. Anticipated profits will not be considered as part of any settlement. The contractor and the Department may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total contract price as reduced by the amount of payments previously made, and the contract price of work not terminated. The contract shall be amended, and the contractor paid the agreed amount. (2) Additional Cost Review: If the contractor and the Department fail to agree on the whole amount to be paid to the contractor because of the termination of work, the Department will pay the amounts determined as follows, but without duplication of any amounts agreed upon above: (a) For contract work performed before the effective date of termination, the actual and reasonable costs of work performed and invent oried materials, plus a reasonable profit thereon, not to exceed unit bid prices. TABLE OF CONTENTS INDEX SECTION 108 (b) The reasonable costs of settlement of the work terminated, including: (i) Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement Proposals and support data; (ii) The termination and settlement of subcontracts and orders for materials, services, equipment and facilities; and (iii) Storage, transportation, and other costs incurred, as reasonably necessary for the preservation, protect ion, or disposition of the termination inventory. (c) Except for normal spoilage, and to the extent that the Department expressly accepts the risk of loss, Department will exclude from the fair value, all that is destroyed, lost, stolen, or damaged so as to become undeliverable to the Department or to the buyer . (d) In arriving at the amount due the contractor under this clause, the Department will deduct: (i) All unliquidated advance or other payments to the contractor under the terminated portion of the contract; (ii) Any claim that the Department has against the contractor under the contract; and (iii) The agreed price for, or the proceeds from the sale of materials, supplies, or other things acquired and sold by the contractor not recovered by or credited to the Department. If the termination is partial, the contractor may file a Proposal with the Department for an equitable adjustment of the price(s) of the continued portion of the contract. The Department will make any equitable adjustment agreed upon. Any proposal for an e quitable adjustment under this clause shall be requested within 90 calendar days from the effective date of termination unless extended in writing by the Engineer. The Department may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the contractor for the terminated portion of the contract, if these payments will not exceed the amount to which the contractor is entitled. TABLE OF CONTENTS INDEX