107LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC

107.01Laws to be Observed

The Contractor shall keep fully informed of Federal and State laws, local laws, ordinances, rules, regulations, orders, and decrees of bodies or tribunals having any jurisdiction or authority which in any manner affect those engaged or employed on the work or which in any way affect the conduct of the work. The Contractor shall at all times observe and comply with all such laws, ordinances, rules, regulations, orders, and decrees. The Contractor shall protect, indemnify, and exculpate the State and its representatives, in accordance with 107.17, against civil claim or civil liabilities 10 arising from or based on the violation of such law, ordinance, rule, regulation, order, or decree, whether by itself or its employees, even if such violation is due wholly or in part to violation of said law, ordinance, rule, regulation, order, or decree by the State or its representatives.

Certain counties in the State are considered by the United States Department of Agriculture to be generally infested with various harmful pests such as, but not limited to, various types of beetles. In an effort to prevent these pests from being spread by shipments of infested materials, quarantines have been imposed. Under the regulations, materials and equipment that may be infested must be treated before they 20 are moved from an infested area. Such items as hay, straw, fodder, small grains, corn, sod, earth moving equipment, and other articles that might be infested are subject to these regulations. All State, Federal, and lo cal regulations and quarantines pertaining thereto shall be observed. No additional allowance or compensation will be made for any delay or inconvenience incurred conforming to such requirements, but the cost thereof shall be included in the various pay items.

It shall be a condition of each contract let for the construction of a State maintained highway or bridge, financed entirely with state funds that all unskilled 107.01

laborers employed on such work shall be residents of the county or counties in which 30 such highway or bridge is being constructed, if such labor is available. The Department will designate the class of labor which is unskilled. This provision will not apply to any contract on which federal funds are to be used.

The Contractor and its subcontractors shall not discriminate against an employee or applicant for employment to be employed in the performance of any contract with respect to his or her hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment, because of race, color, sex, disability, religion, national origin, or ancestry. Breach of this covenant may be registered as a material breach of the contract. 40

Water wells or test wells to be drilled shall be in strict accordance with the Indiana Code. Such wells shall be drilled only by a water well driller licensed in the State. A copy of the driller’s license shall be furnished prior to commencement of work.

The Contractor may hire only citizens and nationals of the United States, and aliens authorized to work in the United States. The Contractor shall verify the identity and employment eligibility of all employees, in accordance with the Immigration and Nationality Act.

Maintaining a drug-free workplace will be required in accordance with Executive Order 90-5, as follows:

maintain a drug-free workplace during the contract time. It shall give written notice to the Department within 10 days after receiving actual notice that an employee of the Contractor has been convicted of a criminal drug violation occurring on the project site.

excess of $25,000.00, the Contractor shall further agree that the contract is expressly subject to the terms, conditions, and representations contained in th e Drug-Free Workplace certification executed by the Contractor in conjunction with the contract, and which is included in the Proposal.

of (a) above, or falsifying or otherwise violating the terms of the certification referenced in (b) above, shall constitute a material breach of the contract. Such failur e shall entitle the Department to 70 impose sanctions against the Contractor including, but not limited to, suspension of contract payments, termination of the contract, or debarment of the Contractor from doing further work for the Department for up to three years.

107.01

IC 4-13-18-5 requires all bidders to submit an employee drug testing plan which complies with the requirements of the cited Code. The Contractor is directed to implement the employee drug testing plan as submitted. Material breaches of this requirement may constitute an independent basis to invoke 108.10.

107.02Permits, Licenses, and Taxes

All permits and licenses which may be required due to construction methods such as, but not limited to, borrow or disposal pits, stream crossings, causeways, work bridges, and cofferdams, but which are not part of the contract documents, shall be procured by the Contractor prior to beginning the work which requires the permit. All charges, fees, and taxes shall be paid. All notices necessary and in cidental to the due and lawful prosecution of the work shall be given.

The Department is exempt from State, Federal, and local taxes and will not be responsible for any taxes levied on the Contractor as a result of the contract. 90

The Department may have acquired waterway permits, including, but not limited to, U.S. Army Corps of Engineers Permit, IDNR Certificate of Approval of Construction in a Floodway, IDEM Section 401 Water Quality Certification, or a permit for construction of temporary pavement across a state line. If the Department has acquired one or more of such permits, the restrictions or conditions which were issued with such permits will be made available to bidders prior to letting. The Contractor shall prosecute the work in accordance with all such restrictions or conditions.

107.03Patented Devices, Materials, and Processes

If a design, device, material, or process covered by letters of patent or copyright is employed by the Contractor, such use by suitable legal agreement with the patentee or owner shall be provided. The Contractor and the surety shall indemnify and save harmless the State, affected third party, or political subdivision from all claims for infringement by reason of the use of such patented design, device, material, process, trademark, or copyright. The State shall be indemnified for costs, expenses, and damages which it may be obliged to pay by reason of infringement during the prosecution or after the completion of the work.

107.04Restoration of Surfaces Opened by Permit

The right to construct or reconstruct utility service in the highway or street or to grant permits for same is hereby expressly reserved by the Department for the proper authorities of the municipality in which the work is done.

An individual, firm, or corporation wishing to make an opening in the highway shall obtain a permit from the Department. Parties bearing such permits, and only those parties, will be allowed to perform work on the right-of-way.

107.05Federal Aid Provisions 120

When the United States Government pays a ll or a portion of the cost of a project, 107.05

the Federal laws and the rules and regulations made pursuant to such laws shall be observed. The work shall be subject to inspection by the appropriate Federal agency. Such inspection will in no sense make the Federal Government a party to the contract and will in no way interfere with the rights of any party.

The U.S. Department of Labor has designated the Administrator of the Wage and Hour and Public Contracts Division to conduct investigations with the compliance and enforcement of labor standards. However, the administration and enforcement of labor standards remain the responsibility of the U.S. Department of Transportation. 130

107.06Equal Employment Opportunity Trainees

Equal Employment Opportunity trainees will be required if the Equal Employment Opportunity Trainees hours are shown in the Proposal. The number of trainees required will be one trainee for each 1,000 h shown.

When the project is funded in total or in part by the United States Government and no Equal Employment Opportunity hours are shown in the Proposal, the Contractor shall participate in the Department’s Equal Employment Opportunity Trainee Program. Requirements for participation in the program are available on the 140 Department’s website or from the Department’s Equal Opportunity Division. Failure by the Contractor to comply with this requirement may result in reduction or loss of prequalification to bid for future work.

As part of the Contractor’s equal opportunity affirmative action program, training shall be provided as on-the-job training aimed at developing full journeymen in the type of trade or job classification involved.

If the Contractor subcontracts a portion of the work, it shall determine as to how many, if any, of the trainees are to be trained by the subcontractors, provided, however, 150 that the Contractor shall retain the primary responsibility for meeting the training requirements imposed herein. The Contractor shall also ensure that these requirements are made applicable to such subcontract . Where feasible, 25% of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training.

The trainees shall be distributed among the work classifications on the basis of the Contractor’s needs and the availability of journeymen in the various classifications within a reasonable area of recruitment. Prior to commencing construction, the Contractor shall submit to the Department for approval the number of trainees to be trained in each selected classification and tr aining program to be used. Furthermore, 160 the Contractor shall specify the starting time for training in each of the classifications. The Contractor will be credited for each trainee employed on the contract work that is currently enrolled or becomes enrolled in an approved program.

Training and upgrading of minorities and women toward journeymen status is the primary objective. Accordingly, the Contract or shall make every effort to enroll minority and women trainees, for example, by conducting systematic and direct 107.06

recruitment through public and private sources likely to yield such minority and women trainees to the extent that such pe rsons are available within a reasonable area of recruitment. The Contractor will be responsible for demonstrating the steps taken 170 in pursuance thereof, prior to a determination as to whether the Contractor is in compliance with this provision. This training commitment is not intended, and shall not be used, to discriminate against an applicant for training, whether a member of a minority group or not.

No employee shall be employed as a train ee in a classification in which he or she has successfully completed a training course leading to journeyman status or in which he or she has been employed as a journeyman. The Contractor shall satisfy this requirement by including appropriate questions in the employee application or by other suitable means. Regardless of the method used, the Contractor’s records shall 180 document its findings in each case.

The minimum length and type of trai ning for each classification will be as established in the training program selected by the Contractor and approved by the Department. The Department and the FHWA will approve a program if it is reasonably

calculated to meet the equal employment opportunity obligations of the Contractor and

to qualify the requirement for journeyman status in the classification concerned by the

end of the training period. Furthermore, apprenticeship programs registered with the

U.S. Department of Labor, Bureau of Apprenticeship and Training, or with a State

apprenticeship agency recognized by such Bureau, and training programs approved190

but not necessarily sponsored by the U.S. Department of Labor, Manpower

Administration, Bureau of Apprenticeship and Training shall also be considered

acceptable provided they are being administered in a manner consistent with the equal

employment obligations of the contract. Approval or acceptance of a training program

shall be obtained from the State prior to commencing work on the classification

covered by the program. Training shall be provided in the construction crafts rather

than clerk-typists or secretarial-type positions. Training programs for other than

traditional training programs may be submitted for consideration where the training is

oriented toward construction applications. Training in the laborer classification may

be allowed provided that significant and meaningful training is provided and approved200

by the Department. Some offsite training is allowable as long as the training is an

integral part of an approved training program and does not comprise a significant part

of the overall training.

It is normally expected that a trainee shall begin his or her training on the project

as soon as feasible after start of work utilizing the skill involved and shall remain on

the project as long as training opportunities exist in his or her work classification or

until he or she has completed the training program. It is not required that all trainees

be on board for the entire contract time. The Contractor shall have fulfilled its

responsibilities if it has provided acceptable training to the number of trainees210

specified. The number trained shall be determined on the basis of the total number

enrolled on the contract for a significant period.

107.06

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Trainees will be paid at least 60% of the appropriate minimum journeyman’s rate

paid by the Contractor for the first half of the training period, 75% for the third quarter

of the training period, and 90% for the last quarter of the training period, unless

apprentices or trainees in an approved existing program are enrolled as trainees on the

project. In that case, the appropriate rates approved by the United States Department

of Labor or Transportation in connection with the existing program shall apply to all

trainees being trained for the same classification who are covered by this specification.220

However, the salary shall never be less than specified in IC 8-23-9-22.

The trainee shall be furnished a copy of the program to be followed in providing

the training. Each trainee shall be provided with a certification showing the type and

length of training satisfactorily completed.

The maintenance of records and the furnishing of periodic reports documenting

its performance shall be in accordance with these requirements.

107.07Sanitary Conditions Requirements230

Accommodations for the use of employees shall be provided and maintained in a

neat and sanitary condition as may be necessary to comply with the requirements of

the Federal, State, and local Boards of Health, or of other bodies or tribunals having

jurisdiction.

107.08Public Convenience and Safety

All safeguards, safety devices, and protective equipment shall be provided.

Responsibility reasonably necessary to protect the lives of employees on the job, the

safety of the public, and property in connection with the performance of the work,

shall be taken.240

All workers within the right-of-way who are exposed either to traffic or

construction equipment within the work area shall wear high visibility safety apparel

in accordance with Section 6D.03 of the MUTCD.

If a trench, 5 ft or more in depth, is constructed on a project, the requirements for

trench safety systems as specified in OSHA regulations 29 CFR 1926, Subpart P, shall

be performed. Unless otherwise specified, trench safety systems work will not be paid

for separately, but the cost thereof shall be included in the cost of the pay item covering250

the trench excavation work.

Provision shall be made for prompt removal from traveled roadways of all dirt

and other materials that have been deposited thereon by operations concerned with the

project whenever the accumulation is sufficient to cause the formation of dust or mud,

interfere with drainage, damage pavements, or create a traffic hazard. Construction

methods and means shall be employed to keep flying dust and air pollution to a

minimum. Provision shall be made for the control of dust on the project and on roads,

107.07

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streets, and other areas affected by the project wherever traffic or buildings, or260

construction materials are affected by such dust. The materials and methods used for

dust control shall be subject to approval. The cost of controlling dust and air pollution

shall be included in the cost of other pay items and no additional payment will be

made.

The work shall be arranged so that all operations on the pavement will be held to

a minimum by using the new grade insofar as possible. The work shall be conducted

in a manner that will ensure the least obstruction to traffic. Materials stored on the

right-of-way shall be placed so as to cause only such inconvenience to the traveling270

public and residents as is considered unavoidable.

Non-operating construction equipment, worker’s vehicles, materials, field offices,

field laboratories, and temporary offices may be stored on the right-of-way no less

than 30 ft from the edge of pavement lanes open to traffic except, storage may be

allowed closer to such lanes if traffic is protected by guardrail in good condition or

other suitable barrier. However, if the area has a posted speed limit of 40 mph or less

prior to the start of construction, this distance may be reduced to 10 ft, if approved.

Temporary crossings and approaches in passable condition shall be provided and280

maintained as shown on the plans and in accordance with 104.04, with no additional

payment.

On construction work, the chief administrative officer of the local governmental

unit shall be given 24 h notice, in writing, before it becomes necessary to blockade a

cross street.

If it is desired to use water from public hydrants, application shall be made to the

proper authorities and in accordance with the city ordinances, rules, and regulations290

concerning their use. Fire hydrants shall be accessible at all times to the fire

department. No material or other obstruction shall be placed closer to a fire hydrant

than specified by ordinances, rules, or regulations, or within 5 ft of a fire hydrant in

the absence of such ordinances, rules, or regulations.

The local governmental agencies for each jurisdiction in the State have the legal

authority to establish load limits on their roads. Prior to submitting a bid, each bidder

shall contact the local governmental agency in which the use of roads is contemplated

and confirm allowable routing of bidder’s equipment.

300

Frontage roads, public roads, and private and mailbox approaches which are

disturbed shall be reconstructed as soon as possible to avoid unreasonable

inconvenience to traffic and adjacent property owners.

107.08

76

The grading of all approaches and frontage roads shall be completed and the

drainage structures shall be placed concurrently with the roadway excavation and

embankment construction, except as directed or specified. It is the general intent to

construct frontage roads, public roads, and private drive approaches, including at least

the grading, structures, and base course, as soon as possible to minimize inconvenience310

to the abutting property owners when their access to existing outlets is being cut off

by the construction.

If postponement of the above construction causes unreasonable inconvenience to

traffic and adjacent property owners, the Contractor shall construct an adequate,

approved, temporary surface on all such frontage roads, public roads, and private

approaches with no additional payment. All cost thereof shall be considered as

included in the various pay items of the contract.

If the contract involves widening, one-lane traffic shall be maintained across all320

public, private, and commercial approaches either by leaving gaps in the widening or

by use of temporary crossing bridges.

107.09Railroad-Highway Requirements

Whenever it is necessary or required for personnel or construction equipment to

be on operating railroad right-of-way, all necessary arrangements shall be made with

the railroad company regarding a temporary or existing railroad grade crossing for this

purpose. Such railroad grade crossing shall be in accordance with these specifications

and shall meet all requirements of the railroad company. All cost involved in

establishing the crossing shall be included in the contract price for various pay items330

and will not be paid for directly.

All work on the railroad right-of-way shall be performed at such times and so as

not to interfere unnecessarily with the movement of trains or traffic upon the tracks of

the railroad company. All care and precautions shall be used in order to avoid

accidents, damage, or unnecessary delay or interference with the trains or other

property of the railroad company.

When necessary, adjacent structures, embankments, and tracks of the railroad

company shall be protected and shored adequately. The Contractor shall assume all340

risks and liability for damage done to such property as a result of its operations or

negligence. No method of work which affects the tracks, movement of trains, or other

operations of the railroad shall be used without the approval of the railroad company.

When bridge deck work is being performed over railroad property, including

tracks and wires, and the bridge floor slab is penetrated, the work shall be stopped in

the area of the penetration. Both the Engineer and the railroad company shall be

notified. The railroad property shall be protected as approved before resuming work.

Operations shall be conducted both on and off railroad right-of-way so that earth,

107.09

77

mud, silt, or other foreign matter shall not be allowed to foul railroad track ballast.

Temporary earth dikes, sheeting, tie cribbing, silt fences, or other precautions to

prevent the fouling of railroad track ballast shall be installed as directed.

Where demolition work, concreting, or hauling along or across tracks, in the

opinion of the railroad company, will result in ballast becoming fouled, preventive

measures shall be taken to protect the entire ballast section. This may be accomplished

by nailing canvas, plywood, or similar material to the ties in the entire area likely to

be affected. This protective material shall remain in place until there is no further360

possibility of fouling the ballast. At that time, it shall be removed.

These protective measures shall be performed with no additional payment under

the supervision and to the satisfaction of the chief engineer of the railroad company or

its authorized representative. The railroad company will assume no responsibility for

the adequacy of the protective measures. However, in addition to the aforementioned

protective measures, if the railroad track ballast does become fouled, the railroad

company, with its own forces, will remove the fouled ballast and replace it with clean

ballast. The charges for this work will be billed by the railroad company against the

Contractor.370

The Contractor shall indemnify and save harmless the Railroad Company and the

State from all suits, actions, or claims of any character brought for or on account of

any injuries or damages received or sustained by any person, persons or property from

the acts of the Contractor or its forces, or in consequence of any neglect in

safeguarding the work, or on account of any claims or amounts recovered for any

material furnished or labor performed, or for any infringement of patent, trademark or

copyright, or any claims arising or amount recovered under the Worker’s

Compensation Laws, Federal Employer’s Liability Act, or under any other laws,380

by-laws, ordinances, orders or decrees.

107.10Archeological Artifacts

If archeological artifacts, including cultural features or skeletal remains are

discovered, all work within a minimum 100 ft radius of the discovery shall cease

immediately, the area shall not be further disturbed, and the Contractor shall notify the

Engineer immediately.

In accordance with IC 14-21-1-27, if skeletal remains are encountered, the

Contractor shall notify the local law enforcement agency immediately and the390

Engineer immediately thereafter. The Department will notify IDNR within two days.

Work within the area of the discovery shall not resume without written authorization.

For discoveries other than skeletal remains, the Department will coordinate with

IDNR to mitigate impacts to the discovery. Work within the area of the discovery shall

not resume without written authorization.

107.10

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In no event shall an employee of the Contractor or the State of Indiana share in

ownership or profit from salvaged archeological findings.

400

107.11Bridges over Navigable Waters

All work on navigable waters shall be conducted so as not to interfere with free

navigation of the waterways nor to impair the existing navigable depths. Exceptions

may be allowed by permit issued by the authority having jurisdiction over the

navigable waters.

107.12Traffic Control Devices

All necessary barricades, suitable and sufficient lights, danger signals, signs, and

other traffic control devices shall be provided, erected, and maintained. All necessary

precautions shall be taken for the protection of the work and safety of the public.410

Highways closed to traffic shall be protected by effective barricades. Obstructions

shall be illuminated during hours of darkness. Suitable warning signs shall be provided

to control and direct traffic. All construction vehicles and equipment shall have amber

lights in accordance with 801.14(d) when in the work area and located on the

pavement, sidewalk, or shoulder with the road open to traffic. Vehicles delivering

materials to the job site, if displaying headlights, clearance lights and hazard warning

lights which are in compliance with Indiana statutes, shall be exempt from this

requirement.

Warning signs shall be erected in advance of any location on the project where420

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. Such warning

signs shall be constructed and erected in accordance with the plans. Temporary

pavement markings, when required, shall be placed in accordance with 801.12 or as

directed.

Barricades, warning signs, lights, signals, markings, and other protective devices

shall be in accordance with the plans and the MUTCD current on the date of

advertisement for bids.

430

All signs, barricades, and other protective devices shall be maintained in good

condition and in accordance with 105.13, 801, and 802. Barricades and the

backgrounds and messages of all signs shall be kept clean and bright. They shall be

renewed or replaced as often as necessary to keep them effective. Failure to maintain

these devices may result in the assessment of damages in accordance with 105.14 and

801.14

Pavements and shoulders having an edge drop of more than 3 in. shall be

delineated with drums in accordance with 801.09. Delineation shall be at a maximum

spacing of 200 ft. The use of cones in accordance with 801.08 will be allowed as shown440

on the plans except cones shall not be used for shift or merge tapers on interstates and

freeways and 42 in. cones may be used in tangent sections on interstates and freeways

only when the use of drums would result in an effective lane width of less than 10 ft.

107.11

79

At least 14 days before a road is to be closed to traffic, notification shall be given

of such intention. Detour route marker assemblies shall be erected and maintained

along the detour route designated by the Department. Barricades shall not be erected

nor the traffic interfered with until the posted detour or the temporary runaround is

approved.

450

If it is necessary to close a road for the purpose of replacing a drainage structure,

the road shall not be closed until the pipe structure is at the project site.

Sufficient barricades, supplemented by watchers or flaggers when necessary, shall

be provided continuously to protect any and all parts of the work and to promote safe

and orderly movement of traffic. When a road is closed or posted for official detour

but is still usable by local traffic, barricades and road closure sign assemblies, in

addition to the closure barricades, required at the beginning and end of the portion of

such road being detoured, shall be erected at the site of bridge removals, pipe removals,

or other high hazard locations. Such barricades shall be located within 150 ft of the460

removal location. These barricades shall be of the type shown on the plans, and in

accordance with 801.07. Such barricades shall extend from shoulder to shoulder, or to

the limit of area that is readily traversable by a motor vehicle, as directed. During non-

working hours, no opening shall exist in the barricades. The road closure sign

assembly shall be placed at or near the center of the roadway. If these requirements

are violated, operations shall be suspended until adequate measures are taken for full

compliance. The use of hand signaling flags will not be allowed except for emergency

situations. The Stop/Slow paddle shall be required as a primary hand signaling device

to control traffic through work areas. The Stop/Slow paddle shall be in accordance

with section 6E.03 of the MUTCD, except it shall be at least 24 in. wide.470

Unless otherwise specified, sufficient watchers shall be furnished and be on duty

24 h a day during the time widening or patching is in progress. These workers shall

have adequate transportation facilities to patrol the entire portion under construction.

They shall maintain the signs, barricades, and lights at all times for the safety of

pedestrian and vehicular traffic.

107.13Use of Explosives

When the use of explosives is necessary for the prosecution of the work, the

utmost care shall be exercised not to endanger life or property, including new work.480

The Contractor shall be responsible for all damage resulting from the use explosives.

All explosives shall be stored in a secure manner in accordance with all laws and

ordinances. All such storage places shall be clearly marked in large black letters on a

red background “Dangerous Explosives”. Where no local laws or ordinances apply,

satisfactory storage shall be provided no closer than 1,000 ft from the road or from a

building or camping area or place of human occupancy. Detonators shall not be stored

with explosives.

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Each public utility company having structures in proximity to the site of the work490

shall be notified of intentions to use explosives. Such notice shall be given sufficiently

in advance to enable the companies to take such steps necessary to protect their

property from injury. The notification shall in no way relieve responsibility for damage

to the structures.

107.14Protection and Restoration of Property and Landscape

Private property shall not be entered for any purpose in connection with the work,

without first obtaining proper permission. The Contractor shall be responsible for the

preservation of all public and private property. All land monuments and property

marks shall carefully be protected from disturbance or damage until the Engineer has500

witnessed or otherwise referenced their location and approved their removal. All areas

on the right-of-way that are used for storage of any kind shall be restored to their

original condition, or to that set out in the Proposal, when no longer required for that

purpose.

The Contractor shall be responsible for damage or injury to property resulting

from defective work or materials and from any act, omission, or misconduct in its

manner or method of executing the work. When direct or indirect damage or injury is

done, such property shall be restored with no additional payment to a condition similar

or equal to that existing before such damage or injury, or such damage or injury shall510

be made good in an acceptable manner.

Construction equipment shall not be stored in wetland replacement sites shown

on the plans. Such sites shall not be used for purposes other than for the creation of

wetlands.

On those portions of the project where fence is required on the right-of-way, the

required permanent fence shall be erected and maintained at locations where the

property owner desires to use the adjacent area for pasturage or livestock. If the

permanent fence has not been erected by the time the adjacent property owner desires520

to use such pasturage, a temporary fence shall be erected and maintained. The fence

shall be sufficient to prevent encroachment of livestock onto the right-of-way until the

permanent fence is erected.

At locations involving temporary right-of-way where it is necessary to remove

existing fence, unless otherwise directed, a temporary fence shall be erected and

maintained along the temporary right-of-way. The fence shall be sufficient to prevent

encroachment of livestock on the right-of-way. Except when included as a bid item in

the contract, temporary fence will not be measured and paid for directly, but will be

included in the cost of various pay items.530

On those portions of the project where a fence is not required, but the removal of

an existing fence from the right-of-way is required, the property owner and tenant, if

any, must be notified at least 10 days before the fence is removed from the right-of-

way.

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81

107.15Illicit Discharge

The Contractor shall not discharge wastewater, soap, detergent, solvents, fuel, oil,

or other pollutants into a drainage structure, jurisdictional waterway, or similar

environmental resource. Cationic polymers shall not be used. Quality adjustments will540

be assessed in accordance with 109.05.1(f) and 205.

107.16Forest Protection

In carrying out work within or adjacent to State or National Forests and other

wooded areas, the Contractor shall comply with all regulations of the State Fire

Marshal, Natural Resources Commission, Forestry Department, or other authority

having jurisdiction, governing the protection of forests and the carrying out of work

within forests. The Contractor shall observe all sanitary laws and regulations with

respect to the performance of work in forest areas. The Contractor shall keep the areas

in an orderly condition, dispose of all refuse, and obtain permits for the construction550

and maintenance of all construction camps, stores, warehouses, residences, latrines,

cesspools, septic tanks, and other structures in accordance with the requirements of the

forest supervisor.

Reasonable precautions shall be taken to prevent and suppress forest fires. The

Contractor’s employees and subcontractors shall be required, both independently and

at the request of forest officials, to do all reasonably within their power to prevent and

suppress and to assist in preventing and suppressing forest fires and to make every

possible effort to notify a forest official at the earliest possible moment of the location

and extent of all fires seen by them.560

107.17Responsibility for Damage Claims

The Contractor shall indemnify, defend, exculpate, and hold harmless the State of

Indiana, its officials and employees from all liability due to loss, damage, injuries, or

other casualties of whatsoever kind, or by whomsoever caused, to the person or

property of anyone on or off the right-of-way arising out of or resulting from the

performance of the contract or from the installation, existence, use, maintenance,

condition, repairs, alteration, or removal of any equipment or material, whether due in

whole or in part to the negligent acts or omissions:

570

engaged in the performance of the contract;

of the Worker’s Compensation law or any other law, ordinance,

order, or decree.

The Contractor also agrees to pay all reasonable expenses and attorney’s fees580

incurred by or imposed on the State in connection herewith in the event that the

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82

Contractor shall default under the provisions of this section. As much of the money

due the Contractor under and by virtue of its contract as the Department may consider

necessary for such purpose may be retained for the use of the State. If no money is

due, the Contractor’s surety may be held until such suit or suits, action or actions,

claim or claims for injuries or damages as aforesaid shall have been settled and suitable

evidence to that effect furnished to the Department. Money due will not be withheld

when the Contractor produces satisfactory evidence that it is protected adequately by

public liability and property damage insurance. The obligation of the Contractor under

this section and 107.01 shall not extend to the indemnification or exculpation against590

claims arising out of the preparation or approval of plans, specifications, or special

provisions unless furnished by the Contractor.

It is specifically agreed between the parties executing the contract that it is not

intended by the provisions of any part of the contract to create the public or any

member thereof a third party beneficiary hereunder, or to authorize anyone not a party

to the contract to maintain a suit for personal injuries or property damage pursuant to

the terms or provisions of the contract.

107.18Opening Sections of Project to Traffic600

Shoulders shall be graded and shaped to assure reasonable safety to traffic before

opening any completed pavement to traffic.

Work which is in suitable condition for travel, or any portion thereof, shall be

opened to traffic as directed. Such opening shall not be construed as acceptance of the

work or any part thereof, or as a waiver of any of the provisions of the contract.

When it is desirable to open a structure or portion of a highway to traffic, such

opening shall be delayed until traffic will cause no injury to completed portions of the

work. When opening to traffic is required or allowed, the Contractor shall make610

provisions for the safety of the public as specified or directed. Opening to traffic will

not relieve the Contractor of liability and responsibility prior to final acceptance.

When a contract time has expired, the Contractor shall be responsible for all

damage resulting from traffic and any other cause occurring on the incomplete portions

of the project, whether these portions have been opened to traffic by order of the

Department or not.

On those portions of an incomplete contract that have been ordered opened to

traffic or are constructed under traffic and the contract time has not yet expired, the620

Department will assume the responsibility for repairs of damages resulting directly

from traffic, provided such damage is not the direct or indirect result of the operations

of the Contractor and provided the Contractor is unable to collect damages from the

responsible party or parties.

The Department will only assume such responsibility

107.18

83

information, including but not limited to photos and investigative

materials, and630

information regarding the nature, extent and cause of such damage.

Also, the Department will only assume such responsibility if, within 90 days from

the date such damage is discovered by the Contractor or the Contractor receives notice

of that damage, whichever is earlier,

faith, vigorous efforts, it has been unable to collect those damages640

from the responsible party or parties, and

evidence, photos and information regarding the nature, extent and

cause of such damage.

Ordered repairs for damage for which the Department assumes responsibility will

be paid for at the contract unit price for the item involved in making the repairs, where

such items are applicable.

650

Opening a portion of a project to traffic does not preclude the responsibility of the

Contractor for providing necessary safety measures, as required in these Standard

Specifications, to protect persons using the highway.

107.19Contractor’s Responsibility for Work

Until the date the Contractor is relieved of further maintenance as stated in the

final written acceptance of the project, or portion thereof in accordance with 105.15,

the Contractor shall have the charge and care thereof. The Contractor shall be

responsible for injury or damage to any part thereof, by the action of the elements or

from any other cause except as set out in 107.18, whether arising from the execution660

or from the non-execution of the work. All portions of the work occasioned by the

above causes shall be rebuilt, repaired, and restored. All injuries or damages shall be

made good before final acceptance. The Contractor shall bear the expense thereof

except as otherwise provided in these specifications or otherwise determined.

In case of suspension of work, the Contractor shall be responsible for the contract

work and shall take such precautions as may be necessary to prevent damage to the

contract work. Normal drainage shall be provided, and all necessary temporary

structures, signs, or other facilities shall be erected with no additional payment. During

such period of suspension of work, newly established plantings, seedlings, and sodding670

furnished under the contract shall be properly and continuously maintained in an

acceptable growing condition.

107.19

84

107.20Contractor’s Responsibility for Utility Property and Services

At points where the Contractor’s operations are adjacent to properties of railroad,

telegraph, telephone, and power companies or are adjacent to other property, damage

to which might result in considerable expenses, loss, or inconvenience, work shall not

be commenced until all arrangements necessary for the protection thereof have been

made.

680

The Contractor shall coordinate and cooperate with the owners of all underground

or overhead utility lines in their removal and relocation operations in order that this

work may progress in a reasonable manner, that duplication of relocation work may

be reduced to a minimum, and that services rendered by those parties are not

unnecessarily interrupted.

If it is necessary to place pipes or conduits through structures, sheet metal sleeves

shall be provided around the pipe or conduit to make a sliding joint or provide suitable

openings as required, with no additional payment.

690

If there is an interruption to water or utility services as a result of accidental

breakage or as a result of being exposed or unsupported, the Contractor shall promptly

notify the proper authority, and shall cooperate with the said authority in the

restoration of service. If water 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.

The Contractor shall establish and maintain open communication with each utility

affected by the construction and document and report all communication to the

Engineer. The Contractor shall prepare its construction schedule to accommodate all700

the utility work plans included in the contract documents including some allowance

for unexpected minor variation in the anticipated utility work plan and schedule.

Regardless of previous notification by the Department, the Contractor shall give

notice to the owners of each utility located within the contract limits, or which might

be affected by the work, in sufficient time before beginning work for the owners to

relocate or protect their property. No work shall be done which injures or damages

such property until satisfactory arrangements have been completed with the owner for

its protection, relocation, or reconstruction.

710

Prior to any work which penetrates any existing soil or pavement surface, the

Contractor shall notify both the Indiana Underground Plant Protection Service, IUPPS,

in accordance with IC 8-1-26 requirements, and the Engineer in accordance with

105.08prior to commencing construction operations in an area that may affect

underground utilities.

If abandoned underground utilities are encountered during construction, sections

of which are to be removed, ends of pipes that remain in place shall be sealed with

class A concrete as directed. Concrete used for this purpose will be paid for at the

107.20

85

contract unit price per cubic yard for concrete, A, in structures. Cutting of abandoned720

gas lines shall be by mechanical methods. A cutting torch shall not be used.

If a permit is issued to a city or other governmental unit for the installation of

conduits, poles, or other appurtenances for artificial lighting of the structure, it may be

necessary or desirable to revise the plans or make structural changes as needed to

accommodate such installation. In this event, the provisions of 104.02 shall apply to

all changes in quantities of work.

107.21Furnishing Right-of-Way

The Department will be responsible for securing necessary right-of-way in730

advance of construction. Exceptions will be indicated in the contract.

107.22Personal 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 Department, Commissioner, 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.

107.23Waiver of Legal Rights740

Upon completion of the work, the Department will expeditiously make final

inspection and notification of acceptance. Such final acceptance, however, shall not

preclude or estop the Department from correcting any measurement, estimate, or

certificate made before or after completion of the work, nor shall the Department be

precluded or estopped from recovering from the Contractor or its surety, or both, such

overpayment as it may sustain by 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 shall not be held to be a waiver of any other or subsequent

breach.

750

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 with regard to the rights of the Department under any warranty or guaranty.

107.24Governing Law

This contract shall be construed by the laws of the State of Indiana. Suit, if any,

shall be brought in the State of Indiana.

107.25Severability

The invalidity in whole or in part of a provision of the contract shall not void or760

affect the validity of all other provisions.

107.25