applications for such Permits, licenses, or other permissions, and upon request, a copy of all such applications. For a related provision, see Section 104.3. 2 - Furnishing of Other Property Rights, Licenses, and Permits. 105.8.3 Wetland and Waterbody Impacts
no permanent or temporary impacts to water bodies or wetlands i dentified on the Plans or otherwise known to the Contract or. For a related provision, se e Section 656.3.4 – “Water Pollution Control Requirements.”
that can disturb the soil in an area that is outside the Projec t Limits, but is contiguous or in close proximity to such Limits, the area first must be examined and analyzed by a qualified wetlands specialist in order to determine whether wetlands exis t, and if so, to delineate them. The Contractor must notify the Department of all such ex aminations and analyses and the results thereof. Wetlands so delineated must not be impacted unless properly permitted. Any fill Material generated from this Project shall not be pla ced, stored, or disposed of in a wetland at an off-site location unless the Contractor p rovides the Department with written evidence that all Permits necessary for such use have b een obtained. Such evidence must be signed by the Owner of such site and otherwise acceptable to the Department.
prohibited without proper permitting or modification to existin g Permits. Temporary Structures in a waterbody must comply with any Contract provisi ons regarding Instream Work. 105.8.4 Hazardous Materials If the Contractor encounters any condition that indicates the presence of uncontrolled petroleum or hazardous M aterials, the Contractor shall immediately stop Work, notify the Department, treat any such co nditions with extreme caution, and secure the area of potential hazard to minimize he alth risks to workers and the public, and to prevent additional releases of contaminants into the environment. Such conditions include the presence of barrels, tanks, unexpected o dors, discoloration of soil or water, an oily sheen on soil or water, excessively hot earth, s moke, or any other condition indicating uncontrolled petroleum or hazardous Materials. The Contractor shall continue Work in other areas of the Project unless otherwise directed by the Department. The Contractor shall utilize approved vendors and comply with all f ederal, State, and local laws concerning the handling, storage, treatment, and disposal of un controlled petroleum or hazardous Material. If the condition meets the definition of a Differing Site Condition under
105.8.5 Dredge Spoils (Dredge Materials) Unless otherwise pro vided in the Contract, dredge spoils may not be used as fill within the Proj ect Limits. Any use or disposal of dredge spoils must be in accordance with all applicable federal and State laws. 105.8.6 Pit or Quarry Requirements General Pits or quarries that are sources of Material for the Project, including loam fields, shall meet the requirements of this Section 105.8.6. T he Contractor must procure an Agreement from the Owners of such sources stating that the Owne rs will comply with these requirements. If requested by the Department, the Contractor w ill provide the Department with a copy of such Agreement. The Contractor shall provide th e Resident with the center of the source GPS coordinate pairs (latitude and longitude) in decimal degrees (DD.DDDDDD), name, and town in whic h the source is located. Excavation Requirements Surface Material stripped from the pit shall be stored to allow for restoration of the pit. The Contractor shall not excavate from pit faces that are vertical or have an overhang. The Contractor must stop excavating withi n a 2 horizontal to 1 vertical slope 10 feet inside of a property line of a deposit, even though the Material within the pit may have a steeper angle of repose, except when an addi tional Agreement is reached with an adjacent property Owner to allow the extension of a pit onto the adjacent property Owner’s land. The Contractor must insure that hazards such as s teep pit faces and ponds are protected by flattening slopes or by erecting suitable fencing. Rehabilitation If the pit is licensed by MDEP or LURC, the Contractor shall follow the rehab ilitation provisions of said license. In the absence of such license requirements, the Contractor shall follow local Municipal Land Use Ordinances pursuant to Gravel Pit Operations . In the absence of such Ordinances, or if the Ordinances do not address rehabilitation of pits, the Contractor and Landowner shall agree, in writing, to the scope of rehabilitati on of the pit. This agreement shall be signed by both parties. A copy of the agreement shall be submitted to the Resident.
105.8.7 Environmental Non-compliance - Remedies and Costs The Contractor shall be in non-compliance if it, or Subcontractors at any tier, fail to comply with the terms of this Contract or, pursuant to Section 104.3.7 - Laws To Be Observed, any applicable environmental or land use law or regulation, including Project specific permit conditions. If the Contractor is in non-compliance, the Department may, at its discretion:
Contractor is in non-compliance;
deduct all costs incurred by the Department from Progress Payme nts. Such costs include direct costs, Project Engineering costs, and Contractor costs from amounts otherwise due the Contractor, and/or
suspension shall continue until the Contractor has addressedal l non-compliance issues as directed by the Department. The Contractor shall be responsible for any fines and penalties assessed by environmental or land use regulatory agencies due to such non-c ompliance. Such penalties may be withheld from amounts otherwise due the Contractor. For related provisions, see Sections 108.5 - Right to Withhold Payments and 108.9.3 - Amoun ts Due the Department.
105.9Historic and Archaeological Considerations Unless otherwise provided in the
contract, the Contractor is a pproved to construct the project i n accordance with the contract plans. This in accordance with Section 106 of the National Hist oric Preservation Act (16 U.S.C. § 470 f), the Regulati on (36 CFR Part 800), and the 2004 Section 106 Maine Programmatic Agreement. Changes during construction that vary from the project contract plans must be approved by the Department. These changes could have adverse effects to Historic Resources, as well as jeopardize federal funding. If the Contractor or any subcont ractor discovers any object of potential historic archaeological or other historic i nterest, all Work that could disturb the object will immediately cease and will not resume until investigation of th e object and related deposits have been completed, and if necessary recovered. The Contracto r will notify the Department immediately if a ny such object is discovered. (The first indications of such an object may be burial grounds or campsites of Native Americans t hat reveal the bones of the dead and implements. Also the exposure of marine fossils or sh ells found mainly in clay deposits, as well as, exposure of dumps in landfill areas, aban doned campfire sites, and building foundations.) Any Delay of the Contractor’s operations resulting from the abo ve discoveries will be analyzed in accordance with the Department Standard Specificati on Section 109.5 – Adjustment for Delay, except that in no event will such Delay b e a Compensable Delay. The Contractor is notified of 27 MRSA § 371, which provides tha t the State owns all artifacts, specimens, and material that are found on, in, or be neath State-controlled lands.
105.10Equal Opportunity and Civil Rights
.1.1 Disadvantaged Business Enterprises Program The Department has
established a Disadvantaged Business Enterprise (DBE) program i n accordance with regulations of the United States Department of Transportation ( USDOT), 49 CFR Part 26. The Department receives federal financial assistance from USDOT , and as a condition of receiving this assistance, the Department has signed an assurance that it will comply with 49 CFR Part 26. The Department is responsible for determining the eligibility of and certifying DBE firms in Maine.
A DBE is defined as a for-profit business that is owned and con trolled by one or more socially and economically disadvantaged person(s). For the pur pose of this definition:
citizen or lawful permanent resident of the United States and w ho is Black, Hispanic, Native American, Asian, Female; or a member of another group or an individual found to be disadvantaged by the Small Business Administration pursuant to Section 3 of the Small Business Act.
a disadvantaged person.
ownership interests legitimately are held by a disadvantaged pe rson(s).
51% of the beneficial ownership interests legitimately are held by a disadvantaged person(s). The disadvantaged group owner(s) or stockholder(s) must possess control over management, interest in capital, and interest in earnings comme nsurate with the percentage of ownership. If the disadvant aged group ownership interests a re real, substantial, and continuing and not created solely t o meet the requirements of t his program, a firm is considered a bona fide DBE.
.1.2 Commercially Useful Function The Department will count expenditures
of a DBE contractor toward the D BE Goal only if the DBE is perf orming a commercially useful function (“CUF”) on that C ontract. A DBE performs a CUF when it is responsible for execution of the Work of the Contract and is carrying out i ts responsibilities by actually performing, managing, and supervising the work involved. Credi t will be given only when the DBE meets all conditions for a CUF. Credit for labor will be given in accordance with the responsibilities outlined in the Contract. To perform a co mmercially useful function, the DBE must also be responsible, with respect to materials and sup plies used on the Contract, for negotiating price, determining quality and quantity, orderi ng the materials, and installing (where applicable) and paying for the material itself. To dete rmine whether a DBE is performing a commercially useful function, the Department will evaluate the amount of work subcontracted, industry practi ces, whether the amount the DBE firm is to be paid under the Contract is commensurate with the work it is actually performing and DBE credit claimed for its performance of the work, and other relevant fac tors. If, while the DBE is performing under the Contract, the DBE pur chases supplies or rents equipment from the Contractor, the costs of such supplies or re ntals do not count toward the DBE goal as defined in Section 105.10.1.3. A current listing of certified DBEs that may wish to participat e in the highway construction program and the scope of work for which they are c ertified can be found at http://www.maine.gov/mainedot/civilrights/dbe.htm . Credit will be given for the value described by a DBE performing as:
that operates or maintains a factory or establishment that prod uces on the premises the materials or supplies obtained by the Contractor. Brokers and packagers shall not be regarded as manufacturers.
firm that owns, operates, or maintains a store, warehouse or ot her establishment in which the materials or supplies required for the performance of the contract are bought, kept in stock, and regularly sold to the public. For p urposes of this provision a “Broker” is a DBE that has entered into a legally binding rel ationship to provide goods or services delivered or performed by a third party. Bro kers and packagers shall not be regarded as regular dealers.
services include professional, technical, consultant, or manage rial, services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for the performance of the contract. Eligible services also include services provided by agencies providing bonding and ins urance specifically required for the performance of the contract.
trucks are owned, operated, licensed, and insured by the DBE an d used on the contract and, if applicable, includes the cost of the self-supp lied materials and supplies. 100% of expenditures committed when the DBE leases t rucks from another DBE firm, including an owner-operator. 100% of reasona ble fees or commissions the DBE receives as a result of a lease arrangement for trucks from a non-DBE, including an owner-operator.
.1.3 Race-neutral Goals The Department is required to set an annual goal
(approved on a three year basis) for DBE participation in Federal-aid projects (the “DBE Goal”) pursent to 49 CFR 26.53. In order to fulfill that goal, bidders are encouraged to utilize DBE businesses certified by the Department. The Department seeks to meet the established DBE goal solely through race-neutral means. Race-neutral DBE participation occurs when a DBE is awarded a prime contract through customary competitive procurement procedures, is awarded a subcontract on a contract that does not carry a DBE contract goal, or wins a subcontr act from a Contractor that did not consider its DBE status in making the award. A DBE/subcont ractor Utilization Proposed For m is required to be included in bid documents. The Department will analyze each project and create a Project A vailability Target (PAT), based on a number of factors, including project scope, a vailable DBE firms, and firms certified in particular project work. Each bid will requ est that the contractor attempt to meet the PAT. This PAT is de veloped to assist contractors t o better understand what the Department expectations are for a specific project. The PAT is not a mandate but an
assessment of what each project can bear for DBE participation. The Department anticipates that each contractor will make the best effort to r each or exceed this PAT for the project.
.1.4 Race-conscious Project Goals If it is determined by the Department that
the annual DBE goal will not be met through race-neutral means, the Department may implement race-conscious contract goals on some projects. Race-conscious contract goals are goals that are enforceable by the Department and require th at the Contractor use good faith effort as defined in 49 C FR 26.53 (“Good Faith Efforts”) to achieve the goal set by the Department for that particul ar project. If race-conscious means are implemented on a project, the Contractor must comply with the requirements of 49 CFR 26.51 and 26.53. At the time of the bid opening, all Bidders shall submit with t heir bid a Disadvantaged Business Enterprise (DBE) Commitment Form provided by the Depar tment. This form will list the DBE and non-DBE firms that are proposed to be used during the execution of the Work. The list shall show the name of the firm, the item/mater ial/type of work involved, and the dollar amount of work to be performed. The dollar total of each commitment shall be totaled and a percentage determined. If the project goal is not met, acceptable documentation showin g all Good Faith Efforts (“GFE”)made to obtain participation may be required in order to award the project. Failure to provide the required listing with the dollar participation t otal or acceptable documentation of GFE to obtain DBE participati on within 3 Days after the bid opening date will be considered a lack of responsiveness on the part of the low bidder. Rejection of the low bid under these circumstances will require the low bidder to surren der the Proposal Guaranty to the Department. The submission and approval of the above forms does not constitute a formal subcontract. If for any reason during the progre ss of the Work the Contracto r finds that DBEs included on the list are unable to perform the proposed work, t he Contractor, with written release by the committed DBE or approval of the Department, may substitute other DBE firms for those named on the list. If the Contractor is able t o clearly document its inability to find qualified substitute firms to meet the project goal, th e Contractor may request in writing approval to substitute the DBE with a non-DBE firm. If at any time during the life of the Contract the Department determines that the Contractor i s not fulfilling the goal or commitment(s) and is not making a GFE to fulfill the DBE requir ement, the Department may withhold progress payments. Fulfillment of the goal perc entage shall be determined by dividing the dollars committed to the DBEs by the actual con tract dollars. These requirements are in addition to all other Equal Employment Oppo rtunity requirements on Federal-aid contracts.
.1.5 Certification of DBE attainment on Contracts The Department must
certify that it has conducted post-award monitoring of all cont racts to ensure that DBEs have done the work for which credit was claimed. The Department wil l certify these contracts through review of CUF forms, Elations sub-contract payment trac king as well as occasional
on-site reviews of projects and through the project’s final clo seout documentation provided by our Contracts Section.
.1.6 Bidders’ List Survey Pursuant to 49 CFR § 26. 11 the Department is
required to “create and maintain” a bidders list and gather bid der information on our construction/consultant projects. Contractors are required to maintain information on all subcontract bids submitted by DBE and Non-DBE firms and provide that information to the Department. The following information is required: Firm name Firm address Firm status (DBE or non-DBE) Age of firm (years) Annual gross receipts amount as indicated by defined brackets o n the survey form, i.e., $500,000 to $800,000 This information critical in determining the availability of DB E businesses relative to other businesses that do similar work. In addition, FHWA requi res that the Department obtain this information.
.2 Requirements Applicable to All Contracts Unless expr essly provided
otherwise in the Bid Documen ts, the provisions contained in this Section 105.10.1 apply to this Contract.
comply with the provisions of Maine’s Code of Fair Practices an d Affirmative Action, 5 MRSA § 781, et seq., and all regulations promulgated thereunder . This Code, found at 5 MRSA § 784(2), reads as follows. “During the performance of this Contract, the Contractor agrees as follows: 1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religious creed, sex, national origin, ancestry, age, sexual orientation, physical and/or mental disability. Such ac tion shall include, but not be limited to, the following: Employment, upgrading, demotions, tr ansfers, recruitment or recruitment advertising; layoffs or terminations; rates of pay or other forms of compensation; and selection for training, including apprentices hip. 2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, State that all qualified app licants will receive consideration for employment without regard to race, color, sex ual orientation, religious creed, sex, national origin, ancestry, age, physical handicap, or mental handicap. 3) The Contractor will send to each labor union or representa tive of the workers with which he has a collective or bargaining Agreement, or othe r Contract or understanding, whereby he is furnished with labor for the performances of [sic ] his Contract, a notice, to be
provided by the Contracting Depar tment or agency, advising the said labor union or workers’ representative of the Contractor’s commitment under th is Section and shall post copies of the notice in conspicuous places available to employees and to applicants for employment. 4) The Contractor will cause the foregoing provisions to be i nserted in all Contracts for any Work covered by this Agreement so that such provisions will be binding upon each Subcontractor.
5) Contractors and subcontractors with contracts in excess of $50,000 will also pursue in good faith affirmative action programs.”
Maine's Human Rights Act, 5 MRSA § 4551, et seq., and all regul ations promulgated thereunder. This Act provides, among other things, that it is unlawful discrimination for any employer to fail or refuse to hire or otherwise discriminate ag ainst any applicant for employment because of race or color, sex, physical or mental di sability, religion, age, ancestry or national origin, or sexual orientation except when based on a bona fide occupational qualification.
by Maine’s Code of Fair Practices and Affirmative Action or by federal law to notify a labor union or a representative of wor kers with whom the Contractor o r the Subcontractor has a collective bargaining agreement, contract, or understanding thr ough which labor is furnished must provide notice on the letter shown on this pa ge below. The letter must be written on the Contractor’s or Subcontractor’s letterhead stati onery. A list of Maine Department of Labor Career Center Job Service Centers follows t he form below.
To:____________________________________________________________ _________ ( U n i on, employment agency or employee’s representative) __________________________________________________________ ______________ (Address) Subject: Equal Employment Opportunities on State Project No.: _________________________ _________________ Federal Aid Project No.: _______________________________ ___________ Location: __________________________________________ Description of Work: ___________________________________ _______ For Work related to the construction of the above listed Projec t to be performed under State Contract No.: _____________________________, I have pledged to provide equal employment opportunities without regard to race, color, religion, sex, nat ional origin, sexual orientation, or disability. This pledge applies to all employees and applicants for employment in connection with: Hiring, Placement, Upgrading, Transfer or Demotion Recruitment, Advertising or Solicitation for Employment Treatment During Employment Rates of Pay or Other Forms of Compensation Selection for Training, Including Apprenticeship Layoff or Termination Inquiries and complaints should be addressed to: President’s Committee on Equal Employment Opportunity Washington, D.C. 20425 S i g n e d : ____________________________ ____________________________ (Title) F o r : ____________________________ (Contractor) ____________________________ ____________________________ (Address) ____________________________ (Dated)
Maine Department of Labor Career Centers & Job Service Centers
Augusta Career Center P r e s q u e I s l e C a r e e r C e n t e r 21 Enterprise Drive, Suite 2 66 Spruce Street, Suite 1 109 State House Station P r e s q u e I s l e , M a i n e 04769-3222 Augusta, ME 04333-0109 Toll Free Phone: 1-800-760-1572 Toll Free Phone: 1-800-760-1573 L o c a l : ( 207) 474-4914 Local Phone: (207) 624-5120 F a x ( 207) 760-6350 Fax No: (207) 287-6236 T T Y U s e r s C a l l M a i n e R e l a y 711 TTY Users Call Maine Relay 711 Email: presqueisle.careercenter@maine.gov Email: augusta.careercenter@maine.gov
Bangor Career Center Skowhegan Career Center 45 Oak Street, Suite 3 98 North Ave Bangor, ME 04401-7902 S k o w h e g a n, ME 04976-1923 Toll Free Phone: 1-888-828-0568 T o l l F r e e P hone: 1-800-760-1572 Local Phone: (207) 561-4050 L o c a l P hone: (207) 474-4950 Fax No: (207) 561-4066 F a x N o : ( 207) 474-4914 TTY Users Call Maine Relay 711 TTY Users Call Maine Relay 711 Email: bangor.careercenter@maine.gov Email: skowhegan.careercenter@maine.gov
C a l a i s C a r e e r C e n t e r Springvale Career Center 1 C o l l e g e D r i v e 9 B o d w e l l C o u r t Calais, ME 04619-0415 S p r i ngvale, ME 04083 Toll Free Phone: 1-800-543-0303 T o l l F r e e : 1-800-343-0151 Local Phone: (207) 454-7551 L o c a l : ( 207) 324-5460 Fax No: (207) 454-0349 F a x : ( 207) 324-7069 TTY Users Call Maine Relay 711 TTY Users Call Main e Relay 711 Email: calais.careercenter@maine.gov E m a i l : springvale.careercenter@maine.gov
Lewiston Career Center W ilton Career Center 5 Mollison Way 865 US Route 2E Lewiston, ME 04240-5805 W ilton, ME 04294-6649 Toll Free Phone: 1-800-741-2991 T o l l F r e e P hone: 1-800-982-4311 Local Phone: (207) 753-9001 F a x N o : ( 207) 645-2093 Fax No: (207) 783-5301 T T Y U s e r s C a l l M a i n e R e l a y 711 TTY Users Call Maine Relay 711 Email: wilton.careercenter@maine.gov Email: lewiston.careercenter@maine.gov
parties have a right to Work in an environment free from harassment, including sexual harassment. Maine State Law and the Department prohibit any an d all forms of sexual harassment in the Workplace, on the job site, or that may have an effect on the Work environment. THEREFORE: The Contractor hereby agrees to the following requirements in order to provide and promote a non-discriminatory Workplace free of sexual harassmen t.
unwanted verbal or physical advances, sexually explicit derogat ory statements, or sexually discriminatory remarks that cause discomfort, humiliation, or a re in any way offensive to the recipient, or that interfere with the quality of any employee’s Work environment in any way. Furthermore, no one on any job shall threaten or insinuate either explicitly or implicitly that any employee’s submission to or rejection of sexual advances wi ll have any effect on that person’s employment, job assignment, training, evaluation, prom otion, wages, or any other term or condition of employment or future job opportunity. Under Maine State Law, Contractors are responsible for ensuring and maintaining a Work environment that is free from sexual harassment.
subject to disciplinary action. Contractors that fail to adequ ately and expeditiously investigate sexual harassment claims will be subject to enforcement proceedings and such sanctions as are authorized by law. Contractors are required t o provide detailed written reports to the Department when so requested that shall describe the investigation and corrective actions taken by Contractors in all instances of sex ual harassment allegations. Contractors shall also be responsible for ensuring that no ret aliation, reprisal, or intimidation be directed against any complainant or other emplo yee who provides information to any person or agency investigating an allegation or complaint of sexual harassment.
of its knowledge and belief, that the Contractor has made and w ill continue to make a good- faith effort to comply with all applicable State requirements o n equal employment opportunity, non-discrimination, and affirmative action, including employment of women, minorities, and disadvantaged as journeyed trade workers. Cont ractors not having achieved company-wide trade employment goals of 6.9% for females and 0.5 % for minorities will, where indicated by Contract and to the maximum extent practical , comply with Section 660 - On-the-Job Training.
105.11Other Federal Requirements Prior to payment by the Dep artment, the
Contractor shall provide a certification from the producer of s teel or iron, or any product containing steel or iron as a component, stating that all steel or iron furnished or incorporated into the furnished product was manufactured in the United States in accordance with the requirements of the Buy America provisions of 23 CFR § 635.410, as amended. Such certification shall also include (1) a statement that the iron or steel product or component was produced entirely within the United States, or (2 ) a statement that the iron or steel product or component was produced within the United States, except for minimal quantities of foreign steel and iron valued at $ (actual value) . All manufacturing processes must take place within the UnitedS tates. Manufacturing begins with the initial melting and mixing, and continues throu gh the coating stage. Any process that modifies the chemical content, the physical size a nd shape, or the final finish is considered a manufacturing process, including rolling, extrudin g, machining, bending, grinding, drilling, and coating. “Coating” includes epoxy coati ng, galvanizing, painting, or any other coating that protects or enhances the value of the ma terial. A “Buy America” Certification is required from each manufacture r, fabricator, supplier, subcontractor that engages i n “manufacturing” as defined above . “Buy America” does not apply to raw materials (iron ore and all oys), scrap, pig iron, or processed, pelletized, and reduced iron ore.
Scope of Section This section contains general provisions related to the Quality of Work, including roles, standards, Materials, Quality Control, A cceptance, Non-conforming Work, and warranties. When specified in the contract, the Depa rtment will use the quality level analysis in this Section to determine quality-based pay a djustments.
106.1Roles Regarding Quality
106.1.1 Cooperation The Contractor and the Department shall wo rk cooperatively within their respective Quality Assurance (QA) responsibilities to produce and document a high quality project, meeting or exceeding the quality requirem ents of the Contract. 106.1.2 Role of the Contractor The Contractor is responsible f or all aspects of the quality of construction, including labor, equipment, materials, incidentals, processes, construction methods, and QC. W hen required by the Contract, t he Contractor shall develop, submit for approval, implement, and adjust if necessar y a QCP for the Work specified. 106.1.3 Role of the Department The Department is responsible f or providing a quality design, approving the QCP, and assuri ng that the Contractor is following the QCP. The Department will perform acceptance sampling, testing, and inspe ction for any element of the