104General Rights and Responsibilities

Scope of Section This Section sets forth certain rights and r esponsibilities of the Department and the Contractor that are generally applicable to all Contracts. This Section is not all inclusive, and additional rights and responsibilities are set forth elsewhere in the Contract.

104.1General

104.1.1 Basic Roles of the Parties The Contractor has the aut hority and responsibility to perform all Work in Conformity with the Contract. The Department has the authority and responsibility to assure that the Contractor does so. 104.1.2 Joint Covenants of Good Faith and Fairness This Contr act imposes an obligation of good faith and fair dealing on both parties in the execution, performance, interpretation, and enforcement of the Contract. With a positive commitment to honesty and integrity, the Contractor and the Department agree to do the following: function within all applicable laws, statutes, regulations, and Contract provisions; avoid hindering each other’s performance; fulfill all Contract obligations diligently; and cooperate in achievement of the terms of the Contract. Nothing in this subsection nullifies or supersedes the express provisions of the Contract and the Standard Specifications.

104.2Department’s General Authority and Responsibilities

104.2.1 Furnishing of Right-of-Way The Department will secure all necessary rights to real property within the Project Limits shown on the Right-of-Way Plans that are provided with the Bid Documents. For related provisions, see Sections 104.3.2 - Furnishing of Other Property Rights, Licenses and Permits and 105.4.5 - Special Detours. 104.2.2 Furnishing of Permits Except as provided otherwise in the Contract, the Department will furnish Permits required to perform the Work within the Project Limits. For related provisions, see Sections 101.2, Definition of Permits, 104.3.2 - Furnishing of Other Property Rights, Licenses, and Permits and 105.8.2 - Permit Requirements. 104.2.3 Authority of the Resident After Contract Execution, the Resident has the authority to take all actions needed to assure that the Contractor is performing the Work in Conformity with the Contract. Except as provided elsewhere in the Contract, the Resident will decide all questions regarding the quality and acceptability of Materials furnished, Work performed, suspension of Work, and the interpretation of the Contract. The Resident has the authority to reject Unacceptable or Unauthorized Work and refuse to approve Progress and Final Payments until the Unacceptable or Unauthorized Work is corrected. For related provisions, see Sections 106.8 - Non-conforming Work and 109.8 - Contract Modification. 104.2.4 Authority of Residents and Inspectors Residents, insp ectors, and other Departmental employees or representatives working for the Department have the authority to make initial determinations regarding the Conformity of the Work. Unless authorized by the Program Manager, Residents or inspectors are not authorized to alter or waive the provisions of the Contract or to issue instructions contrary to the Contract. They may not act as a supervisor for the Contractor. 104.2.5 Right to Inspect Work The Department has the authorit y to inspect all Materials and every detail of the Work. For a related provision, see Section 104.3.5 - Duties Regarding Inspection of Work. 104.2.6 Right to Suspend Work The Department has the right to suspend any or all Work at any time for any reason. For related provisions, see Sections 105.4.4 - Maintenance During Suspension of Work and 107.5 - Suspension of Work. 104.2.7 Damage to Project Caused by Uncontrollable Events All repairs or temporary Structures that are required because of property damage that is directly caused by an Uncontrollable Event may entitle the Contractor to an Equitable Adjustment if the Contractor complies with the notification, documentation and procedural requirements set forth in the Contract. Delays resulting from an Uncontrollable Event will be analyzed in accordance with Section 109.5 - Adjustments for Delay. For related provisions, see Sections 101.2 - Definition of Uncontrollable Event, 104.3.10 - Responsibility for Damage to Work, 109.3 - Extra Work, 109.5 - Adjustments for Delay, 109.7 - Equitable Adjustments to Compensation and Time, and 109.8 - Contract Modification. 104.2.8 No Personal Liability The Department’s employees and other representatives act solely as representatives of the Department when conducting and exercising authority granted to them under the Contract. Such persons have no liability to the Contractor or any Subcontractor either personally or as Department employees.

104.3Contractor’s General Authority and Responsibilities

104.3.1 General Duty to Cooperate The Contractor shall cooperate with the Departmental personnel, Utility Companies, railroad personnel, marine traffic personnel, regulating agencies with jurisdiction, other Contractors, municipalities, and the public in every reasonable way possible. For a related provision, see Section 104.4 - Communication and Coordination. 104.3.2 Furnishing of Other Property Rights, Licenses, and Per mits The Contractor shall acquire, at its sole expense, all property rights outside the Project Limits needed for construction staging, yarding, construction, waste disposal, or other Project-related purpose. The Contractor shall also acquire, at its sole expense, all licenses and Permits necessary to perform the Work that are not furnished by the Department. For related provisions, see Sections 104.2.1 - Furnishing of Right-of-Way, 104.2.2 - Furnishing of Permits, 104.3.11 - Responsibility for Property of Others, and 105.8.2(B) - Permit Requirements, All Other Permits. 104.3.3 Duty to Notify Department If Ambiguities Discovered T he Contractor shall not take advantage of any ambiguity, error, omission, conflict, or discrepancy contained in the Contract. If the Contractor discovers any such ambiguity, etc. for which the Contractor may seek adjustments to compensation, time, or other Contract requirements, the Contractor shall provide a written notice within 48 hours and before performing any Work related to the ambiguity, etc., as provided in Section 104.4.5 - Early Negotiation. Failure to provide such notice in compliance with the Contract shall constitute a waiver of all claims related to the ambiguity, etc. 104.3.4 Workers and Equipment The Contractor shall at all times provide all superintendents, forepersons, laborers, inspectors, Subcontractors, subconsultants, Equipment, Materials, and Incidentals needed to perform the Work in Conformance with the Contractor’s Schedule of Work and within the Contract Time. Any person employed by the Contr actor or by any Subcontractor or any officer or representative or agent of the Subcontractor, who, in the opinion of the Resident, is intemperate or disorderly, shall be removed immediately by the Contractor or Subcontractor employing such person. The employee shall not be employed again in any portion of the Work without prior approval from the Resident. 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 Resident may suspend the Work by written notice until such orders are complied with. During all hours of on-site activity, the Contractor shall pro vide an on-site, competent, English-speaking Superintendent experienced in the type of Work being performed. The Superintendent shall be capable of reading and understanding the Plans and Specifications, providing and receiving communications, and scheduling and coordinating the Work. The Superintendent shall have full authority to manage the Work in accordance with the Contract. Such superintendence must be provided regardless of the amount of Work being done by the Contractor or any of its Subcontractors. All persons employed by or through the Contractor, except for registered trainees, shall have sufficient skill and experience to perform the Work properly. The Department may require that the Contractor discharge any such person who the Department determines jeopardizes the safety of any person or the Project, without cost or liability to the Department. If the Department determines that such person’s performance jeopardizes the intent of the Contract otherwise, the Department may, but is not required, to notify the Contractor of such a determination. Such notice, or lack thereof, does not affect the Contractor’s duties regarding workers. Upon receipt of such notice, the Contractor shall take any action it determines necessary to fulfill its obligations under the Contract. For related provisions, see Sections 104.5.4 - Discharge of Subcontractors, 105.1 - Intent of the Contract, and 105.2 Health and Safety. 104.3.5 Duties Regarding Inspection of Work

portions of the Work in Conformity with all applicable OSHA requirements. The Contractor shall furnish the Department with all information and assistance required to make a detailed inspection. For a related provision, see Section 104.2.5 - Right to Inspect Work.

railroad is to pay for a portion of the Work or is otherwise authorized to inspect Work, then the Contractor must provide its representatives with safe access that Conforms to this Section 104.3.5. 104.3.6 Project Records Upon request by the Department, the C ontractor or any other person Working for the Contractor possessing Project Records must provide the Department with copies of Project Records at all reasonable times without cost or liability to the Department. Unless the context clearly indicates otherwise, Project Records are the property of the Department. The Contractor must retain Project Records for at least three years after Final Acceptance or for any applicable warrantee period, whichever is longer. For related provisions, see Sections 101.2 - Definition of Project Records and 111.1.6 - Contractor’s Obligation to Keep Records. 104.3.7 Laws To Be Observed The Contractor shall keep itself informed of and comply with all applicable laws, rules, regulations, orders, and decrees (“Law”) affecting the Work, including all environmental, wage, labor, equal opportunity, safety, patent, copyright, or trademark laws. The Contractor agrees to indemnify, defend, and hold harmless the Department against any and all claims or liabilities arising from or based upon the violation or alleged violation of any such Law caused directly or indirectly by or through the Contractor. 104.3.8 Wage Rates and Labor Laws

stated otherwise by Special Provision. The classification of construction type and related wage rates by the U.S. Department of Labor will be provided by Special Provision. If not provided, the Contractor must contact the Department before Bidding to determine the applicable wage rates in accordance with Section 102.5.2 - Bidder’s Duty to Notify Department if Ambiguities Discovered. The Contractor must pay according to said rates and must otherwise comply with all applicable federal and State labor laws, rules, and regulations. Persons registered with the Department as trainees must be paid at least at the prevailing wage for laborer, and upon completion of their program, trainees shall by paid the prevailing wage for the skill and classification trained.

expressly by Special Provision. If so provided, the classification of construction type and related wage rates established by the Maine Department of Labor will be set forth by Special Provision. If not so set forth, the Contractor shall contact the Department before Bidding to determine the applicable wage rates in accordance with Section 102.5.2 - Bidder’s Duty to Notify Department if Ambiguities Discovered. The Contractor shall pay according to said rates and shall otherwise comply with all applicable federal and State labor laws, rules, and regulations. Title 26 MRSA § 1303 set forth various requiremen ts about preference to Maine workers that apply to State funded Contracts. However, if a Contract is Federally funded or partially Federally funded, Federal law governs and Title 26 MRSA § 1303 does not apply. For a related provision, see 23 CFR § 635.117. 104.3.8.1 Electronic Payroll Submission On federally funded Projects the Contractor, all Subcontractors, and lower-tier Subcontractors will submit their certified payrolls electronically utilizing the Elations system. There is no charge to the contracting community for the use of this service. The submission of paper payrolls will not be allowed or accepted. Additional information can be found at http://www.maine.gov/mainedot/contractors/ under the “Bidder Info” go to “Electronic Payroll System.” 104.3.8.2 Payment Tracking On federally funded projects the C ontractor and all Subcontractors and lower-tier Subcontractors will track and confirm the delivery and receipt of all payments through the Elation System 104.3.9 Patents and Copyrights The Contractor must provide proof of a legal Agreement with the holder of any patent, trademark, or copyright, or the Owner, if necessary, for use of any of the following: design(s), process(es), device(s), trademark(s), Material(s), and copyright(s). The Contractor agrees to indemnify, defend, and hold harmless the Department and any affected third party or political subdivision from all claims of infringement that arise from use of any item listed in this paragraph. 104.3.10 Responsibility for Damage to Work Except as provided in Section 104.2.7 - Damage to Project Caused by Uncontrollable Events, the Contractor shall bear all risk of loss relating to the Work until Final Acceptance, regardless of cause, including completed Work, temporary Structures, and all other items or Materials not yet incorporated into the Work. For a related provision, see Section 110.3.6 - Builders Risk. The Contractor shall, at its sole expense, rebuild, repair, re store, or replace such damaged Work or otherwise make good any losses that arise from such damage (“rebuilding, etc.”). If the Contractor fails to promptly commence and continue such rebuilding, etc., the Department may, upon 48 hours advance written notice, commence rebuilding, etc. of the damaged property without liability to the Department with its own forces or with Contracted forces and all costs will be deducted from amounts otherwise due the Contractor. For the Contractor’s responsibilities for the Work after Final Acceptance, see Section 106.9 - Warranty Provisions. 104.3.11 Responsibility for Property of Others The Contractor and its Subcontractors shall not enter private property outside the Project Limits without first obtaining permission from the Owners. The Contractor shall be responsible for all damage to public o r private property of any kind resulting from any act, omission, neglect, or misconduct of the Contractor and its Subcontractors. The preceding sentence includes damage to vehicles passing through the Work area. The Contractor shall, at its sole expense, rebuild, repair, re store, or replace such damaged property and otherwise make good any losses that arise from such damage. If the Contractor fails to completely remedy the damage in a timely manner, the Department may, upon 48 hours advance written notice, rebuild, repair, restore or replace the damaged property without liability to the Department with its own forces or with contracted forces. All costs will be deducted from amounts otherwise due the Contractor. 104.3.12 Forest Protection and Laws The Contractor shall obey all laws and regulations that govern Work within or adjacent to State or National Forests, keep the Project site orderly and clean, obtain all required Permits, prevent and assist with the suppression of forest fires, and cooperate with authorized forestry officials. Pursuant to State law, the sale of harvested forest products m ust be reported to the Maine Forest Service at the end of each year. The Contractor is hereby designated as the Department’s agent for reporting of any such harvesting. 104.3.13 Materials and Items Found On the Project With the De partment’s approval, the Contractor may use suitable excavated Material in the Work and be paid for both the excavation and the placement of such Materials at the corresponding Contract Unit Prices. Except for Material used for riprap, stone ditch protection, and loam, the Contractor shall replace such excavated Material with other approved Material and properly compact it at no cost to the Department. The Contractor shall obtain written permission from the Department before performing any excavation outside the Project Limits. Unless expressly provided otherwise, the Contractor shall remo ve and assume Ownership of all Incidental Structures and Materials to be removed such as guardrail, drainage pipe, culverts, curbing, bridges, and other manufactured Materials. Utility Facilities, traffic control devices, and lights, together with all supporting Structures, are excluded from the provisions of this Section 104.3.13. The cost of removal of such Structures and Materials is Incidental to the Contract unless expressly provided otherwise. 104.3.14 Interpretation and Interpol ation The Contractor is responsible for all interpretations and interpolations made from information provided in the Bid Documents and Contract, including data and test results related to location, survey, hydrology, hydraulics, soils, ledge quality, existing Structures, Environmental Information, and Geotechnical Information. For related provisions, see Sections 102.3 - Examination of Documents, Site, and Other Information; 102.5.2 - Bidder’s Duty To Notify Department If Ambiguities Discovered; 104.3.3 - Duty to Notify Department If Ambiguities Discovered; and 105.6 - Construction Surveying.

104.4Communication and Coordination

104.4.1 Partnering

structured communication between the Department, the Contractor, its principal Subcontractors and suppliers, and other Project stakeholders for the purpose of improving efficiency and minimizing Disputes. Partnering, including the establishment of a partnership charter, does not in any way waive, alter, or otherwise affect any provision of the Contract. For a related provision, see Section 111.1.3 - Relationship to Partnering. Participation in Partnering is voluntary; either party may ele ct to not participate in Partnering for any reason. The associated costs of Partnering will be agreed to mutually and shared equally.

participate in Partnering, representatives of both parties will arrange a facilitated initial Partnering Workshop, which should be held before the start of on-site construction. The Project Manager, Resident or both and the superintendent will determine Workshop attendees, the facilitator, agenda, duration, and location. Key Project level supervisory personnel, corporate/State level management personnel, and key Project personnel of the Contractor’s principal Subcontractors and suppliers should attend. Project design Engineers, FHWA, local government representatives, environmental regulators, emergency service personnel, Utility Companies, impacted business and/or landowners, and other stakeholders may also be invited to attend. The product of the initial Partnering Workshop will be a partnership charter. This charter will include mutually agreed upon Project goals and communication escalation procedures.

follow-up Partnering Workshops periodically throughout the duration of the Contract. 104.4.2 Preconstruction Meeting After the Contract has been executed and before the start of on-site construction by the Contractor, the Resident will schedule a Preconstruction Meeting that must be attended by the Contractor’s Project Manager and Superintendent. Notification of the meeting shall be sent to the following personnel, agencies, and organizations as required by the Contract and deemed essential to the Work outlined in the Contract. Project Manager, Program Manager, and Area Construction Manager Engineer of Record and Project Designer Engineers Utility Coordinator and Utility Companies Property Officer, Town Representatives, and Major Stakeholders Environmental Officer and Agencies Safety Officer, Fire Department, and Police Department Civil Rights Officer Communications Representative FHWA Representative Regional Office including Manager, Engineer, and Maintenance The agenda of the Preconstruction Meeting, at a minimum, shall include the following items that pertain to the Contract. Attendee List with contact information Project Description Contract Bid Amendments Project Specific Permit Requirements Review of Special Provisions Contractor’s General Authority and Responsibilities – 104.3 Utility Coordination – 104.4.6 Road/Bridge Closure/Restriction Notifications – 104.4.10 Traffic Management – 105.3 Environmental Requirements – 105.8 Time – 107 Additional Special Provisions as required by the Contract Review of Plans Review of Submittals Review of Requirements prior to Start of Work Communications The Resident will prepare minutes of the Preconstruction Meeti ng and distribute them to all attendees and invitees. Any requests to revise the minutes must be made to the preparer within 7 Days of Receipt. These minutes will constitute the final record of the Preconstruction Meeting. The Resident will prepare minutes of the Preconstruction Meeting and distribute them to all attendees and invitees. Any requests to revise the minutes must be made to the preparer within 7 Days of Receipt. These minutes will constitute the final record of the Preconstruction Meeting. For related provisions, seeS ections 104.4.6(A) - Preconstruction Utility Meeting; 652 - Implementation of Traffic Control Plan, Preconstruction Field Review (if required); 656.4.1 - Temporary Soil Erosion and Water Pollution Control, Preconstruction Field Review; and 106.4 - Quality Control. 104.4.3 Progress Meetings Except as provided otherwise in this Section 104.4.3 - Progress Meetings shall be held at regular intervals, but at least monthly, throughout the duration of the Contract. All personnel of the Department and the Contractor who have significant information relevant to agenda items shall attend. Additional personnel, as included in the invitee list of the Pre- construction Meeting and as merited, may be invited to attend. The agenda for each Progress Meeting at a minimum, shall inclu de the following items that pertain to the Contract: Review and Approval of Previous Progress Meeting Minutes Review of Action Items from Previous Meeting Review of Progress from Last Progress Meeting Review of Work Planned to Prior to Next Progress Meeting Contractor’s Schedule of Work Material Testing and Work Inspection Schedule Progress Payments Civil Rights Contractor’s Quality Control Contractor’s Safety Practices Contractor’s Environmental Control Contractor’s Traffic Control Onsite Utility Coordination Review of Outstanding Submittals and Long Lead Items Request for Information Contract Modifications Material and Equipment Deliveries Issues, Disputes, Claims, and Resolutions Review of New Action Items The Resident will prepare minutes of these meetings and distri bute them to all attendees. Any requests to revise the minutes must be made to the Resident within 7 Days of Receipt. These minutes will constitute the final record of the Progress Meeting. In lieu of a Progress Meeting, the Resident and the Superinten dent may exchange written communication before or on the scheduled Progress Meeting date that indicates there is no need for the meeting because the Work is on schedule, compensation is current, communication is ongoing, and there are no significant outstanding or anticipated issues, Disputes or claims. The Superintendent’s written communication shall also contain a description of (A) progress of the Project since the last Progress Meeting or communication in lieu thereof and (B) expected activities before the next scheduled Progress Meeting. All invitees to the Progress Meeting must be notified of canceled or postponed meetings. 104.4.4 Requests for Information Either the Department or the Contractor may request that the other party provide information that the requesting party needs to fulfill its Contract obligations by Delivering a written Request for Information (RFI). The Department may require that RFIs be on forms and media approved by the Department. The request must (A) be of reasonable scope, (B) explain why such information is necessary to fulfill Contract obligations, and (C) provide a requested response time, which must be reasonable in relation to its scope (at least 72 hours). The party receiving an RFI shall use its best effort to respond to the RFI within the time requested. The response shall be in writing. The status of outstanding RFIs shall be discussed at each Progress Meeting. 104.4.5 Early Negotiation

that may cause the Contractor to seek additional compensation, time, or any other change in Contract requirements (“Issue”), then the Contractor shall notify the Resident within 48 hours and before commencing any part of the Work relating to the Issue. The notice must describe the basic nature and extent of the Issue. Such notice may be verbal only if confirmed in writing in one of the two following ways: (A) if a Progress Meeting is held within 14 Days of the date that the Issue became known, such Notice may be confirmed with an entry in the Progress Meeting minutes. Such entry must describe the basic nature and extent of the Issue. (B) Otherwise, the Contractor shall confirm a verbal notice by Delivering to the Resident, within 14 Days of the date the Issue arose, a written notice that describes the basic nature and extent of the Issue. The written notice or confirmation will be known as a “Notice of Issue for Consideration.” The Contractor will not be entitled to any additional compensation, time, or any other change to Contract requirements without a timely Notice of Issue for Consideration.

Conforming to Section 104.4.5(A) - Notice Required, the Resident and the Contractor will negotiate to attempt to resolve the Issue. Any resolution will be noted in the Progress Meeting minutes or confirmed otherwise in writing by the Department. Any changes to the Contract that affect compensation, time, quality, or other Contract requirements shall be by written Contract Modification as provided by Section 109.8 - Contract Modifications. For related provisions, see Sections 109.5 - Adjustments for D elay and 109.7 - Equitable Adjustments to Compensation and Time.

of the date the Resident receives the Notice of Issue for Consideration, and if the Contractor desires additional consideration by the Department, then the Contractor must comply with Section 111.2 - Detailed Notice of Dispute and all other requirements of Section 111 - Resolution of Disputes. 104.4.6 Utility Coordination

to coordinate the Work of the Contractor and the Work of affected Utility Companies. Usually this meeting will be held on the same day as and immediately before the Pre- construction Meeting provided by Section 104.4.2 - Pre-construction Meeting but, in any event, will be held before the start of on-site construction by the Contractor that affects Utility Facilities. The Department’s Utility Coordinator, the Project Manager, Resident, the Contractor’s Superintendent, and a representative of each affected Utility Company will attend. The Department’s Utility Coordinator will prepare minutes of the Pre-construction Utility meeting and distribute them to all attendees. Any requests to revise the minutes must be made to the Department’s Utility Coordinator within 7 Days of distribution. These minutes will constitute the final record of the meeting. For a related provision, see Section 104.4.2 - Pre-construction Meeting(s).

including subsection E - Temporary Relocations below, all Utility Facilities of all Utility Companies within the Right-of-Way will be relocated and adjusted as provided in the Contract by and at the expense of the affected Utility Company, provided, however, that the Contractor is responsible for scheduling its Work in accordance with the time allowed for utility relocation as provided in the Contract. Utility relocation Work may not proceed without authorization from the Department.

1) Utility Coordination - The Contractor has primary responsib ility for coordinating its work with utilities after contract award. The Contractor shall communicate directly with the utilities regarding any utility work necessary to maintain the Contractor’s schedule and prevent project construction delays. The Contractor shall notify the Resident of any issues. The Contractor shall plan and conduct its work accordingly. 2) The Contractor must exercise every reasonable precaution t o prevent damage to Utility Facilities or interruption to utility services known to or discovered by the Contractor, whether or not shown on the Plans. Such precautions must include notice to Utility Companies before undertaking Work that could damage Utility Facilities. The Contractor must provide each Utility Company with notice at least three Business Days before the date a Utility Company will have to support any pole. 3) The Contractor must take all reasonable precautions to det ermine the presence of underground Utility Facilities before commencing any excavation Work and must provide all affected Utility Companies with at least 72-hour prior notice of the proposed excavation. The Contractor must comply with 23 MRSA § 3360-A, entitled “Protection of Underground Facilities,” Maine’s “Dig Safe” statute, and also contact the non-member underground facility operators in the Maine Public Utilities Commission’s “OK-TO-DIG” directory. 4) The Contractor must maintain initial markings (spray paint , stakes, etc.) made by the authorized representative of a Utility Company to indicate the location of underground Utility Facilities and otherwise comply with 23 MRSA § 3360-A(4). 5) The Contractor must cooperate with Utility Companies in its relocation or operations so that these operations proceed in a logical sequence, minimize duplication of Work, and avoid unnecessary interruptions to utility service. 6) If utility services are interrupted as a result of the Con tractor’s Work, the Contractor must promptly notify the appropriate Utility Company and must cooperate fully in the restoration of service. If service is interrupted, repair Work will be continuous until the service is restored. No Work can be undertaken around fire hydrants until the local fire authority has approved provisions for continued services. 7) The Contractor must schedule its Work so as to provide for all Utility Company Work and to complete the Work within the Contract Time. The estimated number of workdays required by each Utility Company to perform its relocation Work contained in the Contract is provided by the Utility Companies and are estimates only. Such Utility Facility relocation times assume normal Working times (Monday through Friday, 8 hours per day), and are dependent upon normal weather, normal Working conditions, and freedom from emergencies. The Department is not responsible for the accuracy of these estimates. If a Utility Company fails to perform its Work within the time frames set forth in the Contract or in the minutes of the Pre-construction Utility Meeting, and such failure affects the Contractor’s Critical Path, the Contractor may request a suspension of Work pursuant to Section 107.5.2 and such Delay will be analyzed in accordance with Section 109.5 - Adjustments for Delay. 8) Any clearing and tree removal that is a part of the Contra ct and that must be done in areas where Utility Companies are involved must be completed by the Contractor before the Utility Company can relocate its Utility Facilities. Any clearing, cutting of single trees, or limbing required for the temporary or permanent Utility Facility location must be approved by the Department. The Contractor must provide the Department with prior notice of at least 4 Days before removing or trimming any trees or other vegetation. 9) If blasting occurs on the Pro ject, the Contractor must provide each Utility Company having Utility Facilities that could be damaged by the blast with at least 24-hour prior notice that includes the anticipated time of the initial blast. 10) If the Contractor observes a Utility Company Working with in the Project Limits in a manner that (A) violates the MUTCD, the Contractor’s Traffic Control Plan, or an applicable OSHA requirement or commonly accepted safety practices, and (B) represents a clear and immediate risk of significant bodily injury to any person within the Project Limits, then the Contractor must notify the Resident and the Utility Company immediately. 11) The Contractor agrees to indemnify, defend, and hold harm less the Department from and against any and all claims or causes of action arising from any act or omission of the Contractor, the Subcontractors, or their respective agents, representatives, or employees for failure to comply with this Section 104.4.6.

location of Utility Facilities for the Contractor’s convenience. The Contractor must satisfy the Department that the proposed temporary change will not interfere with the Work, the Work of Utility Companies, or the Work of other Contractors and will not impede the free and safe flow of traffic. If acceptable to the Department, the Contractor may make its own request to the Utility Company or other party affected by such temporary changes. The expense and risk of temporary changes will be borne solely by the Contractor; no changes to compensation or time will be made.

in accordance with Section 109.4 - Differing Site Conditions.

Contract. 104.4.7 Cooperation with Other Contractors The Department res erves the right to Contract for, perform, or allow other Work to be performed within or near the Project Limits. The Contractor must take all reasonable steps to avoid interfering or hindering such other Work. The Contractor must cooperate with Contractors or others performing such other Work as directed by the Department. If the basic nature and scope of such other Work are provided or referenced in the Bid Documents or are otherwise known or foreseeable to the Contractor, then the Contractor assumes all risks and liability associated with such other Work and agrees to indemnify, defend, and hold harmless the Department from all claims related to such other Work that arise from the Contractor’s acts or omissions. 104.4.8 Coordination with Railroads The Contractor shall (A) perform Work within a railroad Right-of-Way without interfering with trains or railroad company traffic and (B) coordinate all Work crews and the Contractor’s Schedule of Work to accommodate the railroad company Work. If the Bid Documents show that Materials must be hauled across railroad tracks, the Department will make preliminary arrangements with the railroad to permit such hauling. The Contractor shall, at its expense, negotiate and enter into any other Agreements with the railroad. Special Provision will provide any additional conditions or re quirements regarding railroad coordination. 104.4.9 Coordination with Marine Tr affic The Contractor shall not interfere with free and safe navigation of navigable waters except as provided by permit issued by the US Coast Guard and other applicable regulatory agencies. All Work must comply with all US Coast Guard permit conditions and all applicable Federal regulations affecting navigation. When the basic nature and scope of marine traffic requirements are provided or referenced in the Bid Documents or are otherwise known or foreseeable to the Contractor, then the Contractor assumes all risks and liability associated with said requirements, and the Contractor shall indemnify, defend, and hold harmless the Department from all claims related to the maintenance or obstruction of marine traffic that arise from the Contractor’s acts or omissions. 104.4.10 Coordination of Road Closure/Bridge Closure/Bridge Wi dth Restriction Notification When a road closure, bridge closure, or width restriction is allowed by the Contract, prior to a closure or a width restriction to a single lane of less than 15 ft., the Contractor shall notify affected public officials, agencies, other entities, and the public of the date on which the closure/width restriction will begin and the anticipated duration of the closure/restriction, as indicated below. The closure shall be announced on a minimum of two portable/ch angeable message signs, placed in approved locations, beginning at least ten Days prior to the closure. A public notice shall also be published in a local newspaper ten Days prior to the closure. Advance warning signs shall be placed so the traveling public is aware of the restrictions in place. They shall be placed at enough distance from the restriction so vehicular traffic can be rerouted to an alternate route. The Contractor shall notify the following public officials, ag encies, and organizations ten Days prior to, and again the Day before, the date that the closure/restriction begins and the anticipated length of the closure/restriction. When the road/bridge is reopened/unrestricted to traffic, the following list will again be notified. The Contractor shall provide the Department with documentation that the listed public officials, agencies, and organizations received the notification at least 10 Days prior to the closure/restriction or with proof that the notification was mailed 15 Days prior to the closure/restriction. Town Officials (Manager or First Selectperson) Representative or County Commissioners (If Unorganized Townsh ips) County Sheriff’s Department Fire Department Police Department State Police Emergency Service School Department Post Office Chamber of Commerce Any Large Employers Mobile Home Movers, Manufacturers and Dealers Bureau of Maine Vehicles – Over Size/Over Weight Permits MaineDOT Radio Room Maine DOT Regional Office All notifications will be subject to the approval of the Resid ent. All costs not covered by Pay Items will be considered incidental to the Contract.

104.5Subcontracting

104.5.1 Limits on Subcontracting The Contractor shall perform at least 30% of the value of the Work with its own Work force, excluding any specialty items as designated in the contract documents by the Department. The Contractor shall not carry t he workers of another recognized Contractor or firm on its payroll or a Subcontractor’s payroll. The Contractor shall not use any Subcontractors that are debarred from Bidding by the Federal Government or any agency of the State of Maine. 104.5.2 Contractor’s Duties Regarding Subcontractors Subcontractors are solely the responsibility of the Contractor. The Contractor is responsible for assuring that its Subcontractors have sufficient skill and experience to perform the Work properly and for coordinating and managing its Subcontractors to achieve the intent of the Contract. The Contractor agrees to indemnify, defend, and hold harmless the Department from and against all claims and causes of action arising out of any act or omission of Subcontractors, their agents, representatives, and employees. The Contractor agrees to indemnify, defend, and hold harmless the Department from any claims asserted by its Subcontractors, including any claims to recover losses allegedly suffered by a Subcontractor. Subcontracting does not alter or diminish the Contractor’s obligations under the Contract. For a related provision, see Section 105.1 - Intent of the Contract. 104.5.3 Documentation Regarding Subcontracting Before any Work is performed by a Subcontractor, the Contractor shall provide the Department a Subcontract approval package which shall include: A list of all Subcontractors that the Contractor anticipates w ill be providing Work within the Project Limits. . If requested by the Department, the Contractor shall provide the Department with copies of any subcontract or other document that establishes the relationship of the Contractor and any Subcontractors. 104.5.4 Discharge of Subcontractors The Department, upon writ ten notice to the Contractor, may require that the Contractor discharge any Subcontractor without cost or liability to the Department. If the Department determines that a Subcontractor’s performance jeopardizes the intent of the Contract otherwise, the Department may, but is not required, to notify the Contractor of such a determination. Such notice, or lack thereof, does not affect the Contractor’s duties regarding Subcontractors. Upon Receipt of such notice, the Contractor shall take any action it determines is necessary to fulfill its obligations under the Contract. For related provisions, see Sections 104.3.4 - Workers and Equipment, 104.5.2 - Contractor’s Duties Regarding Subcontractors, 105.1 - Intent of the Contract, and 105.2 - Health and Safety. Prompt Payment of Subcontractors Pay When Paid The Contractor shall pay Subcontractors in full for all Work satisfactorily performed and Invoiced by the Subcontractor no later than 30 Days from the date the Contractor receives payment from the Department for such Subcontractor’s Work. Contractor will insure that its Subcontractors pay all Sub-Subcontractors, including suppliers and materialmen, no later than 30 days from the date that they receive payment from the Contractor. Retainage The Contractor shall return to the Subcontractor all retainage withheld from the Subcontractor within 30 Days after the date the Subcontractor’s Work is satisfactorily completed. If there is a Delay in such return of retainage, the Subcontractor may pursue all rights it may have under the claims procedure referenced in Section 104.5.6 - Subcontractor Claims for Payment. Payment Tracking Federal Projects On federally funded projects, the Contractor, Subcontractors, and lower-tier Subcontractors will track and confirm the delivery and receipt of all payments through the Elation System. They will be responsible for entering all payments to all Subcontractors and lower-tier Subcontractors. The Department will run a query monthly to ensure that Contractors are complying and generate an e-mail to Contractors who have not responded to confirm receipt of Department payment or Contractor payment to Subcontractors and lower-tier Subcontractors. 104.5.6 Subcontractor Claims for Payment The Contractor agrees to notify all Subcontractors of the claim filing procedure of Payment and Performance Bonds required by 110.2.1. The Department may use retainage and other remaining project funds to pay outstanding claims for Accepted Work. 104.5.7 Flow Down All subcontracts of the Contractor, and all lower tier subcontracts, shall contain or reference all applicable provisions of the Contract, including all safety, wage, Prompt payment, labor, environmental, and equal opportunity provisions. The Contractor shall indemnify, defend, and hold harmless the Department against any and all claims or liabilities arising from the failure to include such flow down provisions and agrees that any such claims and liabilities may be paid by the Department using retainage on other Project funds. 104.5.8 No Third Party Beneficiaries The Contractor and the D epartment agree that this Contract is not intended to create any third-party beneficiaries or to authorize anyone not a party to the Contract to maintain an action under Contract provisions. 104.5.10 Warranty and Maintenance Bonds Warranty and Maintena nce Bonds may be required of the Contractor or the Subcontractor for specified items that the Department deems appropriate. Specific requirements will be given via Special Provision. These bonds may be for specified items in the Contract Schedule of Items. The Bond must name the “Treasurer-State of Maine” as an obligee. The Contractor shall provide a copy of said bond to the Department before the performance of any affected on-site Work. Should the subcontractor be required by special provision to provide a Warranty or Maintenance Bond, the Contractor hereby authorizes the Department to directly contact the Landscape Subcontractor and/or its Surety in the event of a failure of the bonded item to perform as specified.