104Scope of Work

104.01Intent of Contract. The intent of the Contract is to provide for the execution,

construction, and completion in every detail of the work described, and to compensate the Contractor for all acceptable work performe d in accordance with the provisions of the Contract. The Contractor shall furnish all labor, materials, equipment, supplies, transportation, supervision, methods and procedures necessary to complete the work in accordance with the plans, specifications and terms of the Contract.

.1--Partnering Process

.1.1--Covenant of Good Faith and Fair Dealing. The Contract imposes an

obligation of good faith and fair dealing in its performance and enforcement. Section 104 Section 104 The Contractor and the Department, with a positive commitment to honesty and integrity, agree to the following mutual duties:

responsibilities.

The Department intends to encourage the foundation of a cohesive partnership with the Contractor and its principal subcontractors and supplier. This partnership will be structured to draw on the strengths of each organization to identify and achieve reciprocal goals. The objectives are effective and ef ficient contract performance and completion within budget, on schedule, and in accordance with plans and specifications.

.1.2--Formal Partnering. If required by the Contract or requested by the

Contractor, this partnership will be bilate ral in make-up, and participation will be between both the Department and the Contract or. Any cost associated with effectuating this partnering will be agreed to by both parties and will be shared equally. To implement this partnering initiative prior to starting of work in accordance with the requirements of Subsection 108.02 Notice to Proceed and prior to the preconstruction conference, the Contractor's management personnel and Department's District Engineer, will initiate a partnering development seminar/team building workshop. The Contractor working with the assistance of the District and the State Construction Engineer will make arrangements to determine attendees for the workshop, agenda of the workshop, duration, and location. Persons required to be in attendance will be the Department’s key project personnel, the Contractor's on-site project manager and key project supervision personnel of both the Contractor and principal Subcontractors and suppliers. The project design engineers, FHWA and key local government personnel will also be invited to attend as necessary. The Contractors and the Depa rtment will also be required to have Regional/District and Corporate/State level managers on the project team. Follow-up workshops may be held periodically throughout the duration of the Contract as agreed by the Contractor and the Department. The establishment of a partnership charte r on a project will not change the legal relationship of the parties to the Contract nor relieve either party from any of the terms of the Contract.

.1.3--Informal Partnering. If the Contractor and the Department do not choose

to have a Formal Partnering process or the Contract does not require a Mandatory Formal Partnering process, an informal partneri ng meeting shall be conducted on at least a monthly basis. It will be mandatory that the Project Engineer and Project Superintendent attend the meeting. It is recommended that Department Inspectors, foremen, and other project managers attend the meeting. The Project Engineer will be responsible for taking minutes of the meeting. As soon as practical after the meeting, the Engineer will send a copy of the minutes of the meeting to Section 104 Section 104 the Contractor, District Construction Engineer, and State Construction Engineer. The Contractor will have 30 days to dispute the contents of the minutes before the minutes become an official record of the project.

104.02Alterations of Plans or Character of Work. Except as may be necessary to

satisfactorily complete the Contract, no alterati ons of the plans or the nature of the work will involve work beyond the termini of the contemplated construction without modification of the Contract and approval by all parties concerned. The Department reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall neither invalidate the Contract nor release the Surety, and the Contractor agrees to perform the work as altered. Wherever in the Specifications a Supplemental Agreement is provided for, such Supplemental Agreement may be subject to the approval of the Commission and spread upon its minutes prior to execution by the Executive Director.

.1--Significant Changes in the Character of Work. Before any consideration

will be given for an alteration or quantity adjustment, it must be determined that a significant change in the character of the wo rk has occurred. A significant change in quantity of a major item, plus or minus twenty-five percent (25%) variation from original quantity, in and of itself, does not constitute a significant change in the character of the work. The character of the work, as altered, must differ materially in kind or nature from that involved or included in the original proposed construction. If a proposed alteration or quantity adjustment significantly changes the character of the work under the Contract, whether such alterations or changes are in themselves significant changes to the character of the wo rk or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the Contract. The basis for the adjustment shall be agreed upon prior to the performance of the wo rk. If a basis cannot be agreed upon, then an adjustment will be made either for or ag ainst the Contractor in such amount as the Engineer may determine to be fair and equitable. If the proposed alteration or quantity adjustment does not significantly change the character of the work to be performed under the Contract, the altered work will be paid for as provided elsewhere in the Contract. The term "significant change" shall be construed to apply only to the following circumstances:

from that involved or included in the original proposed construction, or

decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed. Section 104 Section 104 Items, quantities, unit prices and amounts, or revisions thereof, established in the Contract by Supplemental Agreement shall be considered as original contract items, quantities, prices, amounts and totals thereof. When a major contract item is eliminated, the Contractor will be reimbursed for substantiated unrecovered overhead costs but no t to exceed five percent of the original contract value of the item. The Contractor shall not be entitled to recover nor shall the Commission, the Department, or any of its officers or employees be subjected to any liability or damages for the elimination of any major contract item. The Contractor upon request will be paid substantiated actual costs for materials, that are in excess of those used and paid for in the completed work that were mobilized prior to notification of elimination or reduction of a major contract item. Materials that otherwise would have been required prior to such notification that are on order and that cannot be cancelled may be included in the materials to be paid for by the Department. No payment will be allowed for materials in excess of the quantity required under the Contract. Points of delivery for the reimbursed materials shall be agreeable to the Department. The Contractor shall make delivery at such point and the additional transportation cost, if any, will be reimbursed by the Department. Mobilization of materials as indicated in this provision shall be understood to be materials that qualify for partial payment under the provisions of Subsection 109.06, and cannot be reasonably used by the Contractor in other work under Contract. At the option of the Department, living or perishable plant materials, seeds, other materials and warehouse items mobilized for the work may be purchased by the Department. All mobilized materials for which payment is made shall become the property of the Department, and the Contractor shall furnish the Engineer satisfactory title or other approved evidence of ownership.

.2--Differing Site Conditions. During the progress of th e work, if subsurface or

latent physical conditions are encountered at the site differing materially from those indicated in the Contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the Contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed. Upon written notification, the Engineer w ill investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the Contract, an adjustment, excluding anticipated profits, will be made and the Contract modified in writing accordingly. The Engineer will notify the Contractor of the determination whether or not an adjustment of the Contract is warranted. No Contract adjustment which results in a benefit to the Contractor will be allowed Section 104 Section 104 unless the Contractor has provided the requ ired written notice. The written notice shall be submitted upon the forms provided and required by the Department. Before beginning or continuing work that justifies an adjustment of the contract unit price or contract time under the above provisions, a Supplemental Agreement acceptable to all parties shall be executed. In the event an agreement acceptable to all parties cannot be reached, the Department may order the work to proceed and that part of the work will be paid for in accordance with Subsection 109.04. If the altered or added work is of a character as to require more than the normal time to complete the work, an adjustment of the contract time may be made.

.3--Minor Alterations to the Contract . When the Department makes alterations

in the details of construction or specifications that are minor in nature, the Resident or Project Engineer may elect to make an adjustment to the Contract under the provisions of this subsection. Minor alterations shall be defined as those alterations to the Contract that are not addressed in the Standard Specificati ons, or Supplements thereto, and are valued at less than $10,000.00. The District Engineer shall designate, in writing, the Resident or Project Engineer authorized to execute th e Class I Supplemental Agreement. The Resident or Project Engineer and Contractor shall agree upon the scope of work and a

lump sum amount, within the above stated limit, for the work to be performed. The

agreement shall be reflected in a Class I Supplemental Agreement signed by the Resident

or Project Engineer and the Contractor's authorized representative, which, when it bears

both the signature of the Resident or Project Engineer and Contractor, shall constitute the

scope of work and the sole and only basis for payment by the Department or Commission

under the item "Minor Alterations to the Contract." Work shall not proceed until both

parties sign the agreement.

Any adjustment of contract time due to Minor Alterations will be in accordance with

Subsection 108.06 of the Standard Specifications.

Payment will be made under:

104-A S/A: Minor Alterations to the Contract - lump sum

.4–Contract Change Notifications. It is the responsibility of the Contractor to

provide reasonable written notice when conditions are believed to require a change to the

Contract. The Department will only consider requests for changes to the Contract when

the Contractor meets the notification procedures specified in this Subsection.

written notification to the Engineer upon discovering a condition that may require

a change to the Contract. The following detailed information shall be provided to

the Engineer, in writing, within 14 calendar days of the Contractor’s written

notification:

the location, if appropriate.

references made to Subsection 104.02 and other pertinent portions of the

Contract.

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delivery schedule(s), phasing, and time. Because of its preliminary nature, the

Department recognizes that this information may rely on estimates.

After notifying the Engineer, the Contractor shall continue to perform the work

under the Contract including the work subject to the condition. The Contractor

shall maintain records of actual labor, equipment and materials used in accordance

with Subsection 109.04 for the work subject to the condition.

response within seven (7) calendar days of receiving the initial notification.

within 21 calendar days of receiving the Contractor’s detailed notification that

includes one of the following:

, and direction on how the Work will proceed

Contract as to why the condition does not represent a change.

and the date by which it must be received. The Department will respond to

the additional information provided within 14 calendar days.

When a change is necessary, the Engineer will make appropriate adjustments to the

Contract price and time, if warranted, in accordance with the provisions set forth in the

Contract. If the Contractor disagrees with the Engineer’s decision or does not agree with

the Contract adjustments, the Contractor may pursue the issue as a claim in accordance

with Subsection 105.17.

104.03Extra Work. The Contractor shall perform unforeseen work, for which there is

no price included in the Contract, whenever it is deemed necessary or desirable by the

Engineer in order to complete fully the work as contemplated. Such work shall be

performed in accordance with the applicable specifications and as directed. Payment or

adjustment in payment will be made as provided under Subsection 109.04.

104.04Maintenance of Traffic. Unless otherwise provided, the road under

construction and all other roads and entrances to adjacent property within the right-of-

way will be kept open to through and local traffic. The Contractor must maintain all

traffic control features over the section of road under construction in accordance with the

plans, MUTCD, and Section 618 of these specifications.

The Contractor shall keep the portion of the project being used by public traffic in

satisfactory condition for traffic to be adequately accommodated. The Contractor shall

also provide and maintain in a safe condition temporary approaches or crossings and

intersections with trails, roads, streets, businesses, parking lots, residences, garages, and

farms. The Contractor shall cooperate with the Department to allow MDOT personnel or

MDOT representatives, FHWA, and other governmental agencies to access the

construction site to perform inspections at any time deemed appropriate.

In any area where traffic is maintained, mowing shall be performed as necessary and as

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determined by the Engineer to provide reasonable appearance and safety to the traveling

public. Mowing shall be performed at the direction and satisfaction of the Engineer, and

shall include those areas from the edge of the pavement to a minimum of five feet beyond

the shoulder line. The cost of mowing shall be absorbed in other contract items when the

Contract does not contain a bid item for mowing, and shall not be the basis for any

additional payment.

It may become necessary for the Contractor to sweep the roadway surface to completely

remove debris from pavement surfaces and other areas designated on the plans or

directed by the Engineer. Collected debris shall be disposed of off the right-of-way in

accordance with federal, state, and local regulations. Debris is defined as dirt, trash, and

other matter not part of the highway facility.

In case it is necessary or desirable to close a portion of the project to traffic, the plans,

special provisions, or other contract documents will so indicate, or if provisions are not

made on the plans or in other contract documents, the Engineer may permit in writing the

temporary closure of small portions of the project as deemed necessary to expedite the

work without compromising the convenience and safety of traffic.

The Contractor shall be bound by the provisions of this subsection and other applicable

provisions of these specifications and the Contract with regard to the safe and convenient

passage of traffic.

In the case of a project for improvements or construction alongside an existing roadway

on which traffic is required to be maintained, no equipment, vehicles or materials will be

permitted to park or be stored within the clear/safety zone of the roadway unless it is

behind a lane or shoulder closure. Unless working under an approved night time

operation, the Contractor shall not perform any work within the clear/safety zone of the

roadway between sunset and sunrise.

The Contractor shall not obstruct any traffic facility or connection thereto that is

officially opened to public or private traffic or required under the Contract to be

maintained except as permitted in writing by the Engineer on the basis that other suitable

provisions have been made.

Due to accident possibilities for certain days of peak traffic use, the right is hereby

reserved for the District Engineer to suspend upon due notice to the Contractor any

operation that, if allowed to be carried on, would seriously jeopardize the safety of the

traveling public on holidays, the preceding day, and the following day or on days of

major public events in the general area. In the event that a holiday or major public event

falls during a weekend or on a Monday, no operations will be allowed during that

weekend or the Friday immediately preceding that holiday or major public event. The

notice will specifically state the date(s) of the suspension. When work is suspended as

provided herein, contract time will be adjusted accordingly. Additional compensation

will not be paid because of such suspension.

The Contractor will not be directly compensated for constructing, maintaining and

removing temporary traffic maintenance facilities unless:

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involved are to be measured for payment.

The Contractor will be paid for work required to restore and/or maintain traffic that is

caused by snow, ice, major flooding, landslide or phenomenon of nature such as an

earthquake, hurricane, tornado, etc. when damage from such cause is beyond the control

of and without the fault or negligence of the Contractor.

If the Engineer orders special maintenance of traffic over and above the requirements

specified in the Contract for the benefit of the traveling public, the ordered work shall be

accomplished as provided in Subsection 104.03 -- Extra Work.

Unsatisfactory maintenance of traffic shall be subject to the procedures provided in

Subsection 105.15.

104.05Removal and Disposal of All Materials From the Project. The Contractor

shall remove and dispose of all existing structures and obstructions in accordance with

the provisions of Section 202. In the event separate pay items are not provided, the cost

of removal and disposal shall be included in prices bid for items under Sections 201 and

203.

The Contractor shall not remove or disturb any buildings, public utilities or other

improvements that are to be removed and/or replaced by the Department or owners under

separate agreement.

It is anticipated that obstructions to be removed by the Department or owners will be

removed and disposed of in advance of construction operations, but in the event there are

improvements or other properties retained by the property owner, the Contractor shall not

interfere with this property until notified in writing by the Engineer that the rights of the

property owner have expired.

Delays in the work occasioned by removal or non-removal by the owner will be

considered as attributable to the State under the provisions of the Contract for the

determination and extension of contract time, but any such delays shall not entitle the

Contractor to nor shall such delays justify or be the basis for any monetary damages

against the Commission, Department or any of its officers or employees.

Upon notification by the Engineer that the property owner's rights have expired, the

Contractor shall proceed to remove and dispose of structures and obstructions in

accordance with this subsection and other applicable provisions of the Contract.

All existing structures and obstructions or residual portions of structures and obstructions

not designated to remain are to be removed by the Contractor.

Improvements designated for removal are for the Contractor's information only, and the

lack of such designation shall not relieve the Contractor of the removal obligation.

When the contract documents indicate the removal of any materials, and disposal of said

materials is permitted at locations provided by the Contractor, the Contractor shall

furnish the Engineer a copy of a release from each property owner for the servitude of the

land. Prior to disposal of any materials, the Contractor shall also furnish the Engineer a

certified letter stating that the area of disposal is not in a wetland, Waters of the U.S., or

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any other environmentally sensitive area (ESA). The State, the Commission, the

Department, and any of its officers and/or employees will have no ownership or liability

whatsoever for materials or matter removed.

All removals by the Contractor are to be made in accordance with the provisions of

Section 201, Section 202 and Section 203.

104.06Use of Materials Found in the Work. It is understood that the title to all

materials found within the right-of-way or easements remains with the State. However,

the Engineer may permit the Contractor to use stone, gravel, sand and other suitable

materials found within the grading limits that may be useful in fulfillment of the Contract

requirements. The Contractor will be paid both for the excavation of the material at the

contract unit price for excavation and for the pay item for which the excavation material

is acceptably used. The excavation material, so removed and needed for use in

embankments, backfills, approaches, or otherwise in the work, shall be replaced by the

Contractor with other material acceptable to the Engineer all at no additional cost to the

State. No charge for the material so used will be made against the Contractor. The

Contractor shall not excavate or remove any material from within the highway location

that is not within the grading limits established by slope stakes without prior written

authorization from the Engineer. The Contractor will not be paid for excavation outside

the grading limits or below original ground in fill sections.

Unless otherwise provided, material removed from existing structures may be used

temporarily by the Contractor. Material designated to be salvaged shall not be cut or

otherwise damaged.

104.07Final Cleaning Up. Before acceptance and final payment will be made, all

areas within the right-of-way shall be cleaned of all rubbish, temporary buildings and

structures, equipment and excess materials. Salvaged or excess materials expressly

reserved by the Engineer for use by the State shall be neatly stockpiled at locations

designated. All property occupied or affected by the Contractor and all parts of the work

shall be left in a manner acceptable to the Engineer with all waterways unobstructed.

Prior to final inspection for release of maintenance, all areas of the work that have

developed an undesirable growth of vegetation shall be given a final mowing, and all

undesirable bushes, high grasses and weeds shall be cut and disposed of or sprayed as

directed by the Engineer. The cost of mowing shall be absorbed in other contract items

when the Contract does not contain a bid item for mowing and shall not be the basis for

any additional payment.

104.08Value Engineering Incentive. Value Engineering Incentive applies to any cost

reduction proposal initiated and developed by the Contractor for the purpose of refining

the contract documents so as to contribute to design cost effectiveness or significantly

improve the quality of the final product. This subsection does not apply unless a proposal

is identified by the Contractor at the time of submission as a Value Engineering Incentive

Proposal. The Department shall be the sole judge of the acceptability of any such

proposal and of the estimated net savings in construction costs from adoption of all or

any part of such proposal.

Cost reduction proposals approved by the Department are to be implemented by a

Supplemental Agreement to the Contract and must result in savings without impairing

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any essential functions and characteristics such as safety, service life, reliability,

economy of operations, ease of maintenance, aesthetics and necessary standard design

features. Proposed changes in the basic design requirements of a bridge or of a pavement

system will not normally be given consideration as a Value Engineering Incentive

Proposal. The mere substitution of one contract item for another contract item or

substitution of any other item for which the Department has previously established a pay

item will not be allowed as value engineering nor will a submittal based on the use of

material from the right-of-way.

As a minimum, the following information shall be submitted by the Contractor with each

proposal:

Proposal.

recommendation for each change.

cost reduction during the remainder of the Contract and the reasons thereof.

The Commission, the Department and/or any of its officers or employees will not be

liable for any delay in acting upon a proposal. The decision of the Engineer as to

acceptance of any such proposal will be final and not be subject to Subsection 105.17.

The Department may accept the proposal, in whole or in part, by executing a

Supplemental Agreement that specifically states that it is executed pursuant to these

provisions. Such agreement should incorporate the changes or additions to the plans and

specifications that are necessary to permit the proposal or accepted part thereof to be put

into effect. If conditional, the agreement should include conditions upon which the

Department's approval is based. The agreement should also set forth the estimated net

savings attributable to the proposal and provide that the Contractor be paid 50 percent of

said savings. The cost to the Department in evaluating the proposal will be considered in

determining the estimated net savings. The Contractor's share of the savings shall

constitute full compensation for the Value Engineering Incentive Proposal.

Approval of the proposal and performance of the work thereof shall not change the

contract completion date unless specifically provided for in the Supplemental Agreement

implementing the proposal.

The Contractor may request that the Department not use or disclose the information

submitted with a proposal and such request may be honored to the extent allowed by law.

Such restriction must be in writing and submitted with the proposal. If the proposal is

accepted, this restriction shall be void and the Department may use, duplicate or disclose

any data necessary to utilize such proposal. The executed Supplemental Agreement

implementing the proposal will become public information in the files of the Department.

This incentive provision applies only to contracts awarded pursuant to competitive

bidding..