LEGAL RELATIONS AND RESPONSIBILITY SECTION 107 TO THE PUBLIC 58 Department may withhold as retainage for the use of the State to pay any amount claimed or anticipated, as determined by the engineer, except that the Department will not withhold such money when the contractor produces satisfactory evidence that it is adequately protected by public liability and property damage insurance. In any event, the surety is liable to pay any amount recovered as a result of any suit, action, claim, injuries, or damages sustained and until such time as the matter has been settled or otherwise legally resolved.
107.11 Furnishing Right -Of-Way.
The Department is responsible for securing all necessary rights -of-way in advance of construction. The Department will note any exceptions in the contract.
107.12 Personal Liability of Public Officials.
The Department, director, engineer, or their authorized agents will incur no personal liability as a result of carrying out any of the provisions of the contract, as the result of exercising any power or authority granted to them thereby, or as the result of any act by the contractor. In such matters, they act as the agents and representatives of the State.
107.13 Contractor’s Responsibility for the Work after Final Acceptance; No Waiver of Legal Rights.
A.Upon completion of the work, the Department will accept the work in accordance with Section
105.16 , Partial Acceptance; Project Acceptance; Final Acceptance; and Project Closeout . Such final
acceptance, however, will not preclude or estop the Department from correcting any measurement, estimate, or certificate made before or after completion of the work, nor will the Department be precluded or estopped from recovering from the con tractor or its surety, or both, such overpayment as it may sustain, or reco vering the cost of the failure on the part of the contractor to fulfill its obligations under the contract. A waiver on the part of the Department of any breach of any part of the contract is not held to be a waiver of any other or subsequent breach.
B.The contractor, without prejudice to the terms of the contract, is liable to the Department after final acceptance for latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards the Department's rights under any warranty or guar anty.
107.14 Hazardous Materials Discovered Within the Project Limits.
A.If any condition is encountered or exposed that indicates the presence of a hazardous material or toxic waste, immediately suspend construction operations in the area and notify the engineer. Continue work in other areas of the project unless otherwise directed by the engineer.
B.Conditions indicating the presence of a hazardous material or toxic waste include, but are not limited to, the following: presence of barrels, chemical odors, excessively hot earth, smoke, or any other condition that indicates a hazardous material or to xic waste. Treat such conditions with extreme caution.
C.The engineer will arrange for disposition of the hazardous material or toxic waste by a third party contractor at the Department’s expense.
Source: Delaware Standard Specifications for Road and Bridge Construction, 2025 Edition. Pages 68–68 of 779.
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