107Legal relations and Responsibilty to Public

107.01 Laws to Be Observed. The Contractor shall have the authority to and will keep

fully informed and comply with all Federal, State and local laws, ordinances, regulations and all orders and decrees of bodies or tribunals having jurisdiction or authority that affect those engaged or employed on the work or affect the conduct of the work. The Contractor shall protect and indemnify the Stat e and its representatives against all claims or liability arising from or based on the viol ation of such laws, ordinances, regulations, orders or decrees whether by the Contractor, the Contractor’s employees, Subcontractors and employees or agents thereof.

107.02 Permits, Licenses, and Taxes. The Contractor or any Subcontractor shall have

the duty to determine any and all required permits not previously procured by the Department; determine all required licenses; procure all permits not previously acquired by the Department; procure all licenses; pay all charges, fees and taxes; and issue all notices necessary and incidental to the due and lawful prosecution of the work. At any time during the life of this Contract, the Department may audit the Contractor’s or Subcontractor’s compliance with the requirements of this section. The Contractor and/or any Subcontractor is advised that the requirements and penalties contained in the “Mississippi Special Fuel Tax Law”, Section 27-55-501, et seq. and the Mississippi Use Tax Law, Section 27-67-1, et seq., apply to any Contract or subcontract for construction, reconstruction, maintenance or repairs, for Contracts or subcontracts entered into with the State of Mississippi, any political subdivision of the State of Mississippi, or any Department, Agency, Institute of the State of Mississippi or any political subdivision thereof. Prior to commencing work on any Project, the Contractor shall obtain a Material Purchase Certificate number (MPC#) from the Mississippi Department of Revenue, pursuant to Miss. Code Ann. § 27-65-21, and Miss. Admin. Code 35.IV.10.01. Upon receipt of the MPC#, the Contractor must i mmediately provide the MPC# to the Contract Administration Division of the Department. Failure to obtain and submit a MPC# prior to commencing work shall result in the withholding of payment to the Contractor until such time that a MPC# is obtained and submitted to the Department. The Contractor and/or any Subcontractor will be subject to one or more audits by the Department during the life of this Contract to make certain that all applicable fuel taxes, as outlined in Section 27-55-501, et seq., and any sales and/or use taxes, as outlined in Section 27-67-1, et seq. are being paid in compliance with the law. The Department will notify the Mississippi Department of Revenue of the names and addresses of any Contractors or Subcontractors.

107.03 Patented Devices, Materials, and Processes. If the Contractor employs any

design, device, material or process covered by letters of patent or copyright, the Contractor shall provide for such use by agreement with the patentee or owner. However, no highways shall be constructed, reconstructed, or maintained out of any patented paving material, regardless of what kind, on which a direct royalty is paid by the Commission or any Contractor; and the Commission shall not have included in the plans or specifications for constructing, reconstructing, or maintenance of any highway the requirements that any material used or specified shall be laid under any process patented requiring the payment of a direct royalty for use of such process or patent. Attention should be given to Miss. Code Ann. Section 65-1-61, regarding use of patented materials for paving. At any time during the prosecution or after completion of the work, the Contractor and Surety shall indemnify and save harmless the State the Commission, and/or any affected third party or political subdivision from and against any and all claims for infringement in connection with any such patent or copyright.

107.04 Restoration of Su rfaces Opened by Permit. The right to construct or

reconstruct any utility service in the highway or street or to grant permits for same, at any time, is expressly reserved by the Department. The Contractor will not be entitled to any damages from the Commission or the Department for delays or damages due to utility construction or reconstruction by a third party except an adjustment in contract time may be allowed when the Engineer determines a delay prevents the performance of the controlling phase(s) of work. Any individual, firm or corporation wishing to make an opening in the highway must secure a permit from the Department. Th e Contractor shall allow parties bearing approved permits or agreements, and only those parties, to make openings in the highway. When ordered by the Engineer, the Contractor shall make all necessary repairs and will be paid as provided in these specifications or as Extra Work. The repairs will be subject to the same requirements as the original work.

107.05 Federal Aid Participation. When the United States Government pays all or any

portion of the cost of a project, the Federal laws and the rules and regulations made pursuant to such laws shall be observed by the Contractor, and the work shall be subject to the inspection of the Federal agency. Such inspection shall in no way make the Government a party to this Contract nor will it interfere with the rights of either party hereunder.

107.06 Sanitary, Health and Safety Provisions. The Contractor shall provide and

maintain adequate sanitation facilities for employee use. The location of such accommodations shall be subject to the prior ap proval of the Engineer. The Contractor shall also provide adequate dust control on the project, haul roads and at other areas of operation. Such accommodations shall be designed and op erated to conform to local and State health regulations. The Contractor shall not require any worker to work in surroundings or under conditions contrary to local, State, and Federal health and safety regulations. All such requirements and regulations shall be as binding upon the Contractor as if they were actually included in these specifications. No direct payment will be made for these provisions.

107.07 Public Convenience and Safety. The Contractor shall conduct the work in a

manner that assures the least possible obstructi on to traffic. The sa fety and convenience of the general public, residents along the highway and protection of persons and property shall be provided as specified under Subsection 104.04. All work on grade separation structures, such as overpasses or underpasses of existing highways, roads or streets, shall be comp leted in a manner that assures the least practicable interference with the public use of the facility. The Contractor shall use reasonable care and precaution to avoid acci dents, damage, unnecessary delay or interference with traffic and will provide competent flaggers to ensure maximum public safety.

107.08 Railway-Highway Provisions. The Department will obtain railroad agreements

as required by the Contract. The agreements will be available for the bidder's review in the Office of the Bridge Engineer when the railroad is at bridge sites, and the District Office for at-grade railroad crossings.

107.08.1 Authority of Railroad Engineer and Highway Engineer. The authorized

representative of the railroad, hereinafter refe rred to as the Railroad Engineer, shall have final authority in all matters affecting the sa fe maintenance of railroad traffic including the adequacy of the foundation and structure supporting the railroad tracks. The authorized representative of the Department , hereinafter referred to as the Engineer, shall have authority over all other matters.

107.08.2 Notice of Starting Work. The Contractor shall not commence any work on

railroad rights-of-way until the following actions have been taken:

107.14.2 2;

107.08.3 Interference with Railroad Operations. The Contractor shall so arrange and

conduct the work in such a manner that th ere will be no interfer ence with railroad operations, including train, signal, telephone and telegraphic services, or damage to the property of the railroad or to poles, wires and other facilities or tenants on the rights-of- way of the railroad. Whenever work is likely to affect the operations or safety of trains, the method of doing such work shall first be submitted to the Railroad Engineer for approval, but such approval shall not relieve the Contractor from liability. Any work to be performed by the Contractor that requires protective service (flagging or inspection) shall be deferred by the Contractor until the protective service is available at the job site. When work within railroad rights-of-way is of such a nature that interference to railroad operations is unavoidable, the Contractor shall schedule and conduct the work so that such interference is held to a minimum. Should conditions arise from the work that require immediate and unusual provisions be made to protect operations and property of the railroad, the Contractor shall provide such provisions. When these provisions are insufficient in the judgment of the Railroad Engineer or the Engineer in the absence of the Railroad Engineer, the Contractor shall provide such provisions as deemed necessary. Any such unusual provisions shall be without cost to the railroad.

107.08.4 Track Clearances. Unless written authorization to the contrary is obtained

from the Railroad Engineer, the minimum tr ack clearances shall be as per the most recent edition of the American Railway Engineering and Maintenance-of-Way Association (AREMA) manual or per the governing Railroad’s standards or as shown on the plans, whichever is greater, and shall be maintained by the Contractor at all times during construction operations: However, before undertaking any work within railroad rights-of-way or before placing any obstruction over any track, the Contractor shall:

107.08.5 Construction Procedures.

107.08.5 1--General. Construction work on railroad property shall be subject to the

inspection and approval of the railroad representative and in accordance with the railroad's outline of specific conditions and these specifications.

107.08.5 2--Excavation. The subgrade of an operated track shall be maintained with

edge of berm at least 10'0" from centerline of track and not more than 24 inches below top of rail. If existing track section is substandard, the Contractor will be required only to maintain the existing section.

107.08.5 3--Excavation for Structures. When excavating and/or driving piling adjacent

to tracks, the Contractor shall take special precaution and care to provide adequate lateral support for the tracks and the loads that they carry, without disturbance of track alignment and grade, and to avoid obstructing track clearances with equipment, tools, or materials. The procedure for doing such work, including the need of and plans for shoring, shall be approved by the Railroad Engineer, but such approval shall not relieve the Contractor from liability.

107.08.5 4--Blasting. The Contractor shall obtain advance approval of the Railroad

Engineer and the Engineer for use of explosives on or adjacent to railroad property. If permission is granted, the Contractor will be required to comply with railroad requirements and the following:

107.08.5 5--Maintenance of Railroad Facilities. The Contractor shall maintain all

tracks, railroad beds, ditches and drainage structures free of silt or other obstructions, promptly repair eroded areas within railroad rights-of-way, and be responsible to the railroad for repair of any other damage to the property of the railroad or its tenants that is a direct result of the Contractor's operations.

107.08.5 6--Storage of Materials and Equipment. The Contractor shall not store

materials and equipment on the rights-of-way of the railroad without obtaining written permission from the Railroad Engineer. Such permission may be with the understanding that the railroad will not be liable for any damages to materials or equipment from any cause and that the Railroad Engineer may move or require the Contractor to move such materials and equipment. All unattended equipment that is left parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons. The Contractor shall protect, defend, indemnify and save the railroad and any associated, controlled or affiliated corporation harmless from and against all loss, costs, expenses, claim or liability for loss of or damage to property or the loss of life or personal injury, due to the Contractor's failure to immobilize said equipment.

107.08.5 7--Cleanup. Upon completion of the work the Contractor shall remove from

within the limits of the railroad rights-of-way all machinery, equipment, surplus materials, falsework, rubbish or temporary buildings, and leave said rights-of-way in a neat condition satisfactory to the Chief Engineer of the Railroad or authorized representative.

107.08.6 Damages. The Contractor shall assume liability for damages to the work, the

Contractor's employees, servants, equipment and materials caused by railroad traffic unless such damages result from negligent operation of the railroad. Any cost incurred by the railroad for repairing damages to railroad property or to property of railroad tenants caused by or resulting from the Contractor's operations shall be the responsibility of the Contractor.

107.08.7 Flagging Services.

107.08.7 1--When Required. The Railroad Engineer has sole authority to determine the

need for flagging. Generally, the requirement of this service will be when Contractor's personnel or equipment are, or are likely to be, working on the railroad's rights-of-way or when the work is likely to disturb a railroad structure, roadbed or grade and alignment of any track to such extent that the movement of trains must be controlled or when booming over track(s) with a crane.

107.08.7 2--Scheduling and Notification. Not later than the time that approval is

initially requested to begin work on railroad rights-of-way, the Contractor shall furnish to the railroad and the Department a schedule for all work required to complete the portion of the project within railroad rights-of-way and arrange for a job site meeting between the Contractor, the Department, and the railroad's authorized representative. Work on railroad rights-of-way shall not begin until the job site meeting has been conducted and the Contractor's work scheduled. The Contractor must give the railroad representative at least ten days of advance written notice of the Contractor’s intent to begin work within railroad rights-of-way in accordance with these specifications. If work is suspended, the Contractor shall give the railroad representative at least three days advance notice before resuming work. Such notices shall include sufficient details of the proposed work to enable the railroad representative to determine if flagging will be required. If such notice is in writing, the Contractor shall furnish the Engineer a copy or if notice is given verbally it shall be confirmed in writing with copy to the Engineer. If flagging is required, no work shall be undertaken until the flagger/flaggers is/are present at the project site. If, after the flagger is assigned to the project site, emergencies arise that require the flagger's presence elsewhere, the Contractor shall delay work on railroad rights-of-way until such time that a flagger is available.

107.08.7 3--Payment. The Contractor will be required to pay all costs for flagging that

are required to accomplish the work required by the Contract.

107.08.8 Haul Across Railroad. Where the plans show or imply that materials must be

hauled across a railroad, the Contractor will be required to make all necessary arrangements with the railroad regarding means of transporting such materials unless the plans clearly show that the Department has included arrangements for such haul in its agreement with the railroad. The Department will reimburse the railroad for the costs of flagging, and the Contractor will be required to bear all other costs incidental to such crossings whether services are performed by the Contractor or by railroad personnel. No crossing may be established for transporting materials or equipment across a railroad unless specific authority for its installation, maintenance, protective services and removal is first obtained from the Railroad Engineer.

107.08.9 Railroad Services for Benefit of the Contractor. Railroad services

(including flagging and inspection) needed for any work that is for the benefit of the Contractor or due to work that is the fault of the Contractor shall be at the Contractor's expense. The Contractor shall make specific arrangements for such work including basis of payment with the railroad. Prior to final acceptance, the Contractor shall furnish to the Department satisfactory evidence that the railroad has acknowledged receipt of payment for any such services.

107.08.10 Cooperation and Delays. It shall be the Contractor's responsibility to

arrange a schedule with the railroad for accomplishing stage construction involving work by the railroad or tenants of the railroad. In arranging the schedule, the Contractor shall ascertain, from the railroad, the lead time required for assembling crews and materials and make due allowance. No charge or claims of the Contractor against either the Department or the railroad will be allowed for hindrance or delay on account of railroad traffic, work by the railroad or other delays incident to or necessary for safe maintenance of railroad traffic or any delays due to compliance with these specifications.

107.08.11 Trainman's Walkways. Along the outer side of each exterior track of

multiple operated track and on each side of single operated track, an unobstructed continuous space suitable for trainman's use in walking along trains, extending to a line not less than ten feet from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during work hours while railroad's protective service is provided shall be removed before the close of each work day. If there is any excavation near the walkway, a handrail with 10-foot minimum clearance from centerline of track shall be installed.

107.08.12 Insurance. The Contractor shall be required to carry insurance in accordance

with Subsection 107.14.2.

107.08.13 Failure to Comply. In the event the Contractor violates or fails to comply

with any of the requirements of these specifications, the Railroad Engineer may require that the Contractor vacate the railroad property. Any such orders shall remain in effect until the Contractor has remedied the situation to the satisfaction of the Railroad Engineer and the Engineer.

107.09 Construction Over or Adjacent to Navigable Waters and Wetlands. All

work on, over or adjacent to navigable waters or wetlands shall be conducted in accordance with permits issued by the controlling authority. The Department will obtain permits for work over navigable waters and wetlands, and bidders are advised to closely examine the provisions of such permits relative to spoil disposal and water quality considerations and the necessary construction of retention basins, settling ponds, temporary navigation lights, etc. Copies of the permits will be included in the contract documents or available for review at the Jackson and District Offices of the Department. The Contractor shall conform to all provisions and conditions of the permits. The permits will only cover work shown on the plans. Should temporary construction be proposed for the Contractor’s convenience in the areas set out in the permits, the Contractor shall apply for and furnish a copy of the required permits to the Engineer before proceeding with the temporary construction.

107.10 Barricades, Warning Signs and Flaggers. The Contractor shall provide, erect

and maintain all necessary barricades, lights, danger signals, signs and other traffic control devices, shall provide qualified flaggers where necessary to direct the traffic, and shall take all necessary precautions for the protection of the work and the safety of the public. Highways or parts of the work closed to through traffic shall be protected by effective barricades. Suitable warning signs shall be provided to properly control and direct traffic. The Contractor shall erect warning signs in advance of all places on the project where operations may interfere with traffic and at all intermediate points where the work crosses or coincides with the existing roadway. Such warning signs shall be constructed and erected in accordance with the provisions of the Contract. All barricades, warning signs, lights, temporary signals, other protective devices, flaggers and signaling devices shall meet or exceed the minimum requirements contained in the MUTCD that is current at the time bids are received. All traffic control devices on an existing highway, road or street are understood to be public property under the provisions of Subsection 107.12. On all sections of a project that coincide with an existing highway, road, or street and are open to traffic, the Contractor shall be fully responsible for the protection, maintenance, and replacement of all existing signs, route markers, traffic control signals, and other traffic service features from the beginning of contract time or beginning of work, whichever occurs earlier, until final completion of the work. The Contractor shall restore or replace in kind, under the provisions of Subsection 107.12, all devices damaged, destroyed or lost by the Contractor. On or about the effective date of the Notice to Proceed, the Engineer will make an inventory of all traffic service devices with adequate description of each sign, post, message, signal and other devices as a basis for replacement in kind. A copy of the inventory - dated, identified, and signed - will be forwarded to the District and Contractor. Near completion of the work, the Engineer will make another inventory of the traffic control devices and distribute as indicated for the earlier inventory. A list and detailed description of the traffic control devices that have been damaged, destroyed or lost and must be replaced in kind by the Contractor will be attached to the inventory. The Engineer will confirm in writing the completion of sign replacement by the Contractor. Prior to performing work on the project, the Contractor shall make the necessary arrangements to prevent damage or loss of signs and other traffic control devices. Those that cannot be left in their existing positions shall be removed, stored, or reinstalled at locations approved by the Engineer. As soon as work in conflict with the original position of each device has been performed, the device shall be reinstalled at the original position or modified position as approved by the Engineer. The Contractor shall maintain in position only those signs that are appropriate for existing conditions and those that are not or have served their purpose shall be removed or covered as approved by the Engineer. Sign coverings shall be of such material and so placed that the information contained thereon will not be legible during day or night. If the Contractor has a routine daytime operation and is not working at night, the signs shall be covered or removed during the nighttime when there is no work activity. Likewise, if the Contractor has a routine nighttime operation and is not working during the daytime, the signs shall be covered or removed during the daytime when there is no work activity. The Contractor shall not allow vegetation, construction materials, equipment, etc. to obscure an applicable traffic control device. No change in posted regulatory speed signs may be made without the written authority of the Department. However, advisory speed plates conforming to the current MUTCD may be used in conjunction with the other standard warning signs provided each posted advisory speed is appropriate for the individual hazard created by construction. All proposed changes in regulatory speeds shall be submitted through the District Engineer and forwarded with any recommendations to the State Traffic Engineer for further handling and consideration by the proper authority. Unless otherwise provided in the Contract, no measurement for payment will be made for materials or work under this subsection, it being understood that the cost thereof is included in the price bid for Maintenance of Traffic or other contract items. The location and spacing of signs, shown in the traffic control plans, are approximate and may be adjusted as necessary to meet field conditions. All plastic drums used on high speed facilities shall have a crash-tested ballasting collar made from recycled truck tires of other suitable material. All post lengths for signs shall be verified in the field prior to fabrication. Unless otherwise provided for in the Contract, roadway signs that are in conflict with construction of the project shall be removed and relocated by the Contractor as directed by the Engineer. The cost of which shall be absorbed in other items bid. Erection dates shall be legibly written on the back of all signs with a waterproof formula permanent marking stock.

107.11 Use of Explosives. The use of explosives is not permissible under any condition

or on any project unless approved in writing by the Engineer. When using explosives, the Contractor shall exercise utmost care not to endanger life and property including the new work. The Contractor shall be responsible for all damage resulting from the use of explosives and shall indemnify and hold harmless the Commission, the Department, and any of its officers or employees. The Contractor shall comply with all laws and ordinances as well as Title 29 Code of Federal Regulations Part 1926, Safety and Health Regulations for Construction (OSHA), with respect to the use, handling, loading, transportation and storage of explosives and blasting agents. The Contractor shall notify each property owner and public utility company having structures or facilities in proximity of the explosive work and shall notify all known owners or operators of shortwave radio equipment in the area. Such notice shall be given at least five (5) days in advance to enable those involved to take steps to protect their property.

107.12 Protection and Restoration of Property and Landscape. The Contractor shall

be responsible for the preservation of public and private property and shall protect from disturbance or damage all land monuments, historical markers, and property marks and shall not move them until the Engineer has witnessed or otherwise referenced their location. The Contractor shall be responsible for all damage or injury to public or private property of any character resulting from any act, omission, neglect, misconduct, inefficiency, method of executing the work or non-execution thereof or due to defective work or materials and shall indemnify and hold harmless the Commission, the Department and any of its officers and/or employees for any such actions or omissions. The Contractor shall take sufficient precaution to prevent pollution of streams, lakes and reservoirs with any harmful materials including but not limited to fuels, oils, bitumens, calcium chloride, and poisons. The Contractor shall schedule and conduct grading operations, production of materials from material pits or quarry sites exclusive of commercially operated sources, construction of haul roads, hauling operations and other operations so as to prevent or minimize the pollution of adjacent property, ditches, streams, lakes and reservoirs with mineral or organic sediment. Pollution causing injury or damage within the intent of this subsection shall be subject to the restoration requirements and provisions herein set forth. The Contractor shall restore the property, at no additional costs to the Commission, to a condition equal to that existing before the damage or injury, or shall make good such damage or injury in an acceptable manner. In case of failure on the part of the Contractor to restore or make good such damage or injury, the Engineer may, upon forty-eight hours written notice, proceed to repair, rebuild or otherwise restore such property and the cost thereof shall be deducted from monies due or that may become due the Contractor. In the event no such monies are available, the amount shall be charged against the Contractor's Surety. Nothing within this subsection shall be construed to relieve the Contractor from the responsibilities under the requirements of Subsection 107.01.

107.13 Forest Protection. In carrying out work within or adjacent to State or National

Forests or other forest areas, the Contractor shall comply with all regulations of the State Fire Marshall, Forestry Commission, Forest Service and any other authority having jurisdiction of the forests and shall observe all sanitary laws and regulations with respect to the performance of work in forest areas. The Contractor shall keep the areas in an orderly condition, dispose of all refuse, and obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks and other structures in accordance with the requirements of the Forest Supervisor. The Contractor shall take all reasonable precaution to prevent and suppress forest fires. The Contractor's employees and subcontractors shall be required to take all reasonable steps within their power to prevent and suppress forest fires and to notify at the earliest possible moment a Forest Supervisor or other appropriate official of the location and extent of any fire seen by them.

107.14 Damage Claims and Insurance.

107.14.1 Responsibility for Damage Claims. The Contractor shall indemnify and save

harmless the Department and the Commission and their officers and employees from all suits, actions or claims of any character brought for any of the following, non-inclusive reasons: (a) because of any and all injuries or damage received or sustained by person(s) or property resulting in any way from the Contractor’s operations; (b) as the result of any neglect in safeguarding the work; (c) because of any claims or amounts recovered from infringements of patent, trademark, or copyright; and (d) from claims or amounts arising out of or recovered under the "Workmen's Compensation Act" or any other law, ordinance, order or decree. Money due the Contractor may be retained for the use of the State or Commission or in case no money is due, the Contractor’s Surety or insurance carrier may be called upon to ensure such suits, actions or claims for injuries or damages have been settled. Suitable evidence of the resolution of any suit, action or claim must be furnished to the Department. Money due the Contractor will not be withheld when satisfactory evidence is produced that the Contractor is adequately protected by general liability and property damage liability insurance.

107.14.2 Liability Insurance.

107.14.2 1--General. The Contractor shall carry commercial general liability, including

subcontractors and contractual, with limits not less than: $500,000 each occurrence; $1,000,000 aggregate; automobile liability - $500,000 combined single limit - each accident; Workers' Compensation and Employers' Liability - Statutory & $100,000 each accident; $100,000 each employee; $500,000 policy limit. Each policy shall be signed or countersigned by a Mississippi Agent or Qualified Nonresident Agent of the Insurance Company. The Contractor shall have certificates furnished to the Department from the insurance companies providing the required coverage. The certificates shall be on the form furnished by the Department and must show the types and limits of coverage.

107.14.2 2--Railroad Protective. The following provisions are applicable to all work

performed under a Contract on, over or under the rights-of-way of each railroad shown on the plans. The Contractor shall assume all liability for any and all damages to work, employees, servants, equipment and materials caused by railroad traffic. Prior to starting any work on railroad property, the Contractor shall furnish satisfactory evidence to the Department that insurance in the forms and amounts set out herein in paragraphs (a) and (b) has been obtained. Also, the Contractor shall furnish similar evidence to the railroad that insurance has been obtained in accordance with the Standard Provisions for General Liability Policies and the Railroad Protective Liability Form as published in the 23 CFR 646, Subpart A. Evidence to the railroad shall be in the form of a Certificate of Insurance for coverages required in paragraph (b), and the original policy of the Railroad Protective Liability Insurance for coverage required in paragraph (a). All insurance herein specified shall be carried until the Contract is satisfactorily complete as evidenced by a full release of maintenance from the Department. The railroad shall be given at least 30-day notice prior to cancellation of the Railroad Protective Liability Insurance policy. For work within the limits set out in Subsection 107.18 and this subsection, the Contractor shall provide insurance for bodily injury liability, property damage liability and physical damage to property with coverages and limits no less than shown in paragraphs (a) and (b). Bodily injury includes bodily injury, sickness, or disease, including death at any time resulting therefrom. Property damage includes damages because of physical injury to or destruction of property, including loss of use of any property due to such injury or destruction. Physical damage includes direct and accidental loss of or damage to rolling stock and their contents, mechanical construction equipment or motive power equipment.

107.15 Third Party Beneficiary Clause. It is not intended by any of the provisions of

the Contract to create a third party beneficiary in the public or any member thereof or to authorize any one not a party to the Contract to maintain a suit for personal injury or property damage pursuant to the provisions of the Contract. The duties, obligations and responsibilities of the parties to the Contract with respect to third parties shall remain as imposed by law.

107.16 Opening Sections of Project To Traffic. If the project is not already open to

traffic in accordance with the provisions of Subsection 104.04, then at the option of the Executive Director, all or any part may be opened to traffic. The Department will install the traffic control devices necessary for the safety and convenience of traffic. Maintenance of traffic expense will be borne by the Department, or the Contractor will be compensated in accordance with Subsection 109.04 if ordered to provide maintenance of traffic. Opening sections of a project to traffic in accordance with this subsection will be in writing and will not constitute acceptance of the work, or any part thereof, or a waiver of any provision of the Contract. All damage to the highway, including damage or defacement of traffic control devices furnished and erected by the Department, that is the fault of the Contractor shall be repaired or replaced at the expense of the Contractor. If the Contractor is dilatory in completing shoulders or other features of work, the Executive Director may order all or a portion of the project open to traffic as set out herein; however, the Contractor shall not be relieved of liability and responsibility during the period the work is so opened prior to release of maintenance. The remainder of the Contractor’s construction operations shall be conducted in a manner that will cause the least obstruction to the safe and convenient movement of traffic.

107.17 Contractor's Responsibility for Work. Until release of maintenance in

accordance with Subsection 105.20, the Contractor shall have the charge and care of the work and shall take every precaution against injury or damage by action of the elements or from any other cause, whether arising from the execution or the non-execution of the work. The Contractor shall rebuild, repair, restore and make good, in accordance with the requirements of the Contract, all injuries or damages to the work before release of maintenance and shall bear the expense thereof. If the Engineer determines the work has been properly prosecuted, constructed, protected and maintained and significant damage to the work is determined to be caused by unforeseeable occurrences beyond the control of and without the fault or negligence of the Contractor, including but not limited to acts of nature, of the public enemy or of governmental authorities, the Contractor will be paid for repairing such damage at the contract unit prices for applicable items involved in making repairs. When contract items are not applicable to repair of work damaged from such cause, a Supplemental Agreement may be entered into or such repairs may be accomplished under the provisions of Subsection 109.04, Extra and Force Account Work. If the Engineer determines that such repair work has not been properly prosecuted and maintained or determines that the Contractor has not taken all reasonable measures to provide adequate protection for partially completed or completed repair work, payment for repairs will not be made. Damage to items of construction, caused by the traveling public on a project or section(s) of a project open to traffic, shall be repaired by the Contractor. The Contractor will be paid for repairing such damage to the below acceptably installed items of construction at the contract unit price(s) for the applicable item(s) used in the repair. An acceptably installed item shall be complete-in-place meeting the requirements of the specifications. The acceptably installed items of construction eligible to receive payment for repair of damage caused by the traveling public shall be items used for signing, safety and traffic control. The eligible permanent items shall be limited to traffic signal systems, changeable message signs, roadway signs and sign supports, lighting items, guard rail items, delineators, impact attenuators, median barriers, bridge railing or pavement markings. The eligible temporary items shall be limited to changeable message signs, guard rail items, or median barriers. If damage to the above items necessitate only minor repairs, in lieu of total replacement, the work shall be performed in accordance with Subsection 109.04, or as directed by the Engineer. Damage not meeting the requirements to qualify for repair payment shall be repaired at no additional cost to the Department. In the case of suspension of work from any cause whatsoever, the Contractor shall be responsible for the work and shall take the precautions necessary to prevent damage to the work, provide for normal drainage, erect necessary temporary structures, signs or other facilities, maintain the work in such a manner as to fully carry out the responsibility for maintaining traffic as required under the Contract, properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seedings, and soddings furnished under the Contract, and take adequate precautions to protect new tree growth and other vegetative growth against injury. Except when the suspension is ordered by the Engineer for the sole benefit of the Department, all such protection and maintenance shall be performed by the Contractor without additional cost to the State.

107.18 Contractor's Responsibility for Utility Property and Services. Where the

Contractor's operations are adjacent to or coincide with properties of railroad, telegraph, telephone, power companies and other utility services and damage to said utility might result in considerable expense, loss or inconvenience, work shall not commence until all arrangements necessary for the protection thereof have been made. At least 48 hours prior to any excavation on the project, the Contractor shall contact MS 811 and advise them to mark all known utilities in the area of the excavation. All work to be performed within 50 feet either side of the centerline of any railroad track shall be executed in such manner and at such time that interference with the movements of trains or traffic upon the tracks of the railroad is minimal. The Contractor must use all reasonable care and proper precautions to avoid accidents, damage, or unnecessary delays that would interfere with the railroad’s trains or other property. The Contractor shall cooperate with the owners of all underground and overhead utility lines in the removal and rearrangement operations so that these operations may progress in a reasonable manner, duplication of rearrangement work may be reduced to a minimum and services rendered will not be unnecessarily interrupted. In the event of interruption to utility services as a result of accidental breakage or as a result of being exposed or unsupported, the Contractor shall promptly notify the proper authorities and cooperate in the restoration of service. No work shall be undertaken around fire hydrants without approval of the local fire authority. The Contractor is advised of Miss. Code Ann., Section 45-15-1, et seq., regarding the performance of work in the proximity of high voltage overhead power lines. It is the Contractor’s responsibility to comply with those statutory requirements.

107.19 Furnishing Rights-of-Way. The Department will be responsible for securing

all necessary rights-of-way in advance of construction. Any exceptions will be indicated in the Contract.

107.20 Personal Liability of Public Officials. In carrying out the provisions of the

Contract or exercising the authority granted by or within the scope of the Contract, there shall be no liability upon the Department, the Commission, the Engineer or authorized representative or any officers or employees of the Department or the Commission, either personally or as officials of the State. It is understood that in all such matters the referenced entities/individuals act solely as agents and representatives of the State.

107.21 No Waiver of Legal Rights. The Department and/or the Commission shall not

be precluded or estopped by any measurement, estimate or certificate made either before or after the completion and acceptance of the work and payment therefor from showing the true amount and character of the work performed and materials furnished by the Contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the Contract. The Department and/or the Commission shall not be precluded or estopped, notwithstanding any such measurement, estimate or certificate and payment in accordance therewith, from recovering from the Contractor or the Contractor’s Sureties, or both, within the provisions of the laws of the State of Mississippi such damage as may be sustained by reason of the failure to comply with any of the terms of the Contract. Neither the acceptance by the Commission or the Department or any representative thereof, nor any payment for or acceptance in whole or in part of the work, nor any extension of Contract time, nor any possession taken by the Department shall operate as a waiver of any portion of the Contract or of any power herein reserved or of any right to damages. A waiver of any breach of the Contract shall not be held to be a waiver of any other subsequent breach. The Commission reserves the right to correct an error contained in any estimate that has been paid and to adjust the estimate to meet the requirements of the Contract and specifications. Upon conclusive proof of error or collusion or dishonesty between the Contractor or the Contractor’s agents and the Engineer or the Engineer’s representative that is discovered after final payment has been made, the Commission reserves the right to claim and recover by process of law, any sums that may be sufficient to correct the error or make good the defects in the work resulting from such errors, dishonesty or collusion.

107.22 Environmental Protection. In addition to the applicable provisions of

Subsections 107.01 and 107.12, occupancy by the Contractor of any lands, whether on or off the right-of-way, for the performance of any work under the Contract, or preparation therefore, shall be contingent upon provisions being made and carried out for the prevention or minimization of siltation, pollution from soil erosion, and air pollution. Accordingly, it is the intent of the Contract that erosion be prevented by the establishment of all necessary temporary and permanent erosion control features as the work progresses from beginning to completion. The primary objective shall be to establish and maintain all permanent erosion control features as soon as possible. Until such time, each operation shall include the effective use of temporary measures as necessary to maintain ground surface conditions so as to prevent or minimize siltation or pollution.

107.22.1 Contractor's Erosion Control Plan (ECP). At the preconstruction

conference or prior to starting any work on the project, the Contractor shall submit to the Project Engineer for concurrence a comprehensive erosion and siltation control plan (ECP). The ECP shall utilize temporary measures and permanent erosion control features to provide acceptable controls during all stages of construction. If an early Notice to Proceed is desired, the Contractor’s ECP should be submitted to the Engineer as soon as possible after award since an approved erosion control plan is required for an early Notice to Proceed. The time between the Notice of Award and Notice to Proceed/Beginning of Contract Time in the proposal, has been allowed for the submittal and concurrence of the Contractor’s ECP, MDOT’s review of the plan, and any revisions that may be necessary. The original contract time shall not be adjusted unless delays are caused solely by the Department for the submission, review, and concurrence of the Contractor’s ECP. As a minimum, the ECP shall include the following:

107.22.2 Clearing and Grubbing, Haul Roads, Waste Areas, Plant Sites or Other

Areas Occupied by the Contractor. Clearing and grubbing on erodible areas, construction and maintenance of haul roads, plant sites or other areas occupied by the Contractor in connection with the work shall include adequate protection for preventing excessive erodible material from entering water or waterways on land not occupied by the Contractor and preventing dust created by hauling equipment. Temporary measures shall be employed as necessary by the Contractor from the beginning of the work. These measures may consist of the expeditious use of brush, vegetation or other residue from clearing and grubbing, temporary or permanent terraces, berms, dikes, dams, sediment basins or other effective means of containing sediment. All temporary or permanent erosion control features shall be maintained in an effective manner so long as essential to the abatement of siltation. After temporary features are no longer useful or needed, such features shall be removed and the area restored or prepared for subsequent work. All temporary protection shall be the responsibility of the Contractor, and measurement for direct payment will not be made unless otherwise provided in the Contract. Unless otherwise determined by the Engineer from a study of overall job conditions, the exposed surface area of erodible material at any one time on this project shall not exceed 19 acres without prior approval by the Engineer. In addition to the applicable requirements of the MDEQ, Office of Pollution Control, the burning of waste vegetation resulting from site or right-of-way clearing shall meet the following requirements:

107.22.3 Pit Operations. The Contractor shall schedule, arrange and conduct pit

operations in such a manner that prevents siltation or pollution of ditches, streams, lakes, reservoirs and adjacent property with sediment, fuels, oils or other objectionable materials.

107.22.4 Structures, Grading, and Other Construction. The Contractor shall perform

all work required under the Contract in such a manner and with such protective features that controls and contain siltation within the limits of the work. Performance in the designated or directed sequence and the providing of all erosion protection for which pay items are not included in the Contract shall be considered as included in prices bid for other items of work. The Contractor shall prevent or minimize undesirable siltation in connection with excavation, construction and backfill of structures. Such temporary measures as indicated herein for clearing and grubbing or other measures such as covering of excavated materials, lining channels, constructing bulkheads or other effective measures shall be employed. The Engineer should limit the areas of excavation, borrow, and embankment operations commensurate with the Contractor's capability and progress in keeping the finish grading, seeding, mulching, and other such permanent erosion control measures current. If seasonal limitations make such coordination unrealistic, temporary erosion control measures may be used to the extent feasible and justified. The exposed surface area of erodible material at any one time for each grading operation should not exceed 19 acres without prior approval by the Engineer. The Engineer may increase or decrease the areas of erodible material to be exposed at any one time by clearing and grubbing, excavation, borrow and fill operations as determined by analysis of project conditions. It is the intent of these specifications that the work shall proceed in a manner and sequence to ensure the earliest possible establishment of permanent erosion control items.

107.22.5 Special Temporary Erosion Control. The plans may designate special

temporary erosion control work such as fast growing grasses or other designated temporary features for problem areas during grading, paving or other construction work. Unless otherwise provided, quantities for such temporary features shown on the plans will be included in items for which bids are to be received. The Contractor shall perform all designated temporary work as indicated on the plans or provided in the Contract or as directed by the Engineer at the time and in the manner deemed to provide the most effective deterrent to siltation. Any emergency temporary erosion control will be authorized and used only under conditions or causes created solely by the State or unforeseeable causes beyond the control of the Contractor. The Engineer shall be the sole judge as to the use and payment of emergency temporary erosion control work. Unforeseen special emergency erosion control features not contemplated in the plans or contract documents and determined by the Engineer to be essential for the prevention of siltation and pollution for conditions or causes created solely by the State or unforeseeable causes beyond the control of the Contractor shall be performed as Extra Work.

107.22.6 All Operations. It shall be fully understood that nothing in this subsection

shall be construed in any manner to relieve the Contractor from any of the responsibilities for the establishment of permanent roadside development items and other permanent work specified for erosion control in the sequence and manner included in other provisions and requirements of the Contract.

107.22.7 Quarantine Information. At the request of the U. S. Department of

Agriculture, plant pest control information concerning domestic quarantines is cited as follows: The entire state of Mississippi has been quarantined for the Imported Fire Ants. Soil and soil-moving equipment operating in the state will be subject to plant quarantine regulations. In general, these regulations provide for cleaning soil from equipment before it is moved from the state. Complete information may be secured from the State of Mississippi Department of Agriculture and Commerce, Bureau of Plant Industry, P. O. Box 5207, Mississippi State, Mississippi 39762-5207, Telephone 662-325-3390 or United States Department of Agriculture, State Plant Health Director, at 662-323-1291. IMPORTED FIRE ANT QUARANTINES The following regulated articles require a certificate or permit for movement:

107.22.8 Gopher Tortoises. The Contractor will be required to make special

considerations regarding gopher tortoises on projects in Clarke, Covington, Forrest, George, Greene, Hancock, Harrison, Jackson, Jasper, Jefferson Davis, Jones, Lamar, Marion, Pearl River, Perry, Smith, Stone, Walthall, and Wayne Counties that require the use of a borrow or disposal land areas. In addition to the normal required documentation associated with borrow pits, the Contractor shall, for each site used to obtain or dispose of materials associated with this project, provide the Engineer with a letter from a qualified biologist certifying that the site was inspected prior to any clearing of vegetation or disposal of project materials and that the site is not inhabited by gopher tortoises, or appropriate avoidance measures have been installed. No individual lacking the proper State or Federal license shall touch or otherwise harass a gopher tortoise.

107.23 Material Pits. The Contractor is reminded of the Mississippi Surface Mining

and Reclamation Act and the Rules and Regulations adopted to implement this act. Questions or problems concerning the Act or the Rules and Regulations should be directed to the MDEQ, Office of Geology, Jackson, Mississippi. Prior to opening a new pit or enlarging an existing pit, the Contractor will furnish the Engineer either a copy of the "Notification of Exempt Operations" or a copy of the (permanent or temporary) Class II Permit approval from the MDEQ Office of Geology. The Contractor shall also obtain a letter stating that the pit site is satisfactory from an archaeological and historical standpoint from the Mississippi Department of Archives and History, Historic Preservation Division, Jackson, Mississippi. All costs involved in obtaining clearance shall be borne by the Contractor. Delays encountered in obtaining clearance will not be a reason for extension of contract time. This requirement is not applicable to commercial sources. When the Contract requires the Contractor to dispose of excavated material, the Contractor shall, prior to removal, furnish the Engineer with a copy of a letter from the land owner stating that the Contractor has the right to place material on said property. The Contractor shall also furnish the Engineer with a letter stating that the property is not in a wetland. Delays encountered in obtaining this information will not be a reason for extension of contract time. This requirement is not applicable to commercial sources. The Contractor is further reminded of and shall comply with the requirements of the Clean Water Act Amendments requiring National Pollutant Discharge Elimination System (NPDES) permits for discharges composed entirely of storm water from active or inactive surface mining operations, excluding work areas covered by a U. S. Army Corps of Engineers Clean Water Act Section 404 Permit. Questions or problems concerning NPDES permits should be directed to the MDEQ, Office of Pollution Control, Industrial Branch, Jackson, Mississippi. The Contractor shall, before a regulated area is opened or enlarged as a material pit, obtain from MDEQ the necessary Mining Storm Water NPDES Permit(s) authorizing the discharge of storm water subject to the terms and conditions of said permit. The Contractor shall furnish the Engineer a copy of the MDEQ NPDES permit. All costs involved in obtaining the permit(s) shall be borne by the Contractor. Delays encountered in obtaining the permit(s) will not be a reason for extension of contract time. For regulated commercial sources, the owner(s) shall bear the responsibility for meeting the requirements of the NPDES permitting process.

107.24 Construction Noise Abatement. The Contractor shall comply with all state and

local sound control and noise level rules, regulations and ordinances that apply to any work performed pursuant to the Contract. Each internal combustion engine, used for any purpose on the work or related to the work, shall be equipped with a muffler of a type recommended by the manufacturer. No internal combustion engine shall be operated on the project without such muffler.

107.25 Hazardous and/or Toxic Waste Procedures. No matter how extensive a field

investigation, the possibility exists that hazardous and/or toxic wastes on a site will go undetected until excavation is initiated. If underground storage tank (UST), buried containers, hazardous and/or toxic substances are uncovered, or even suspected, during construction, work in this area shall be immediately discontinued and measures taken to protect susceptible nearby wetlands or ground-water sources, and the Engineer shall be immediately notified. It is essential that the suspected hazardous substances be left in place until they have been identified. The Contractor shall make every effort to prevent the Contractor’s personnel, State personnel and the general public from becoming exposed to substances that may be hazardous or toxic. Once contaminated soil or debris has been removed from the ground and leaves the site, it is considered a hazardous waste if the concentration exceeds regulatory levels. In such cases, the Contractor becomes a hazardous waste generator. Disposition of USTs, containers, hazardous and/or toxic waste shall be in accordance with current rules and regulations of the MDEQ, Office of Pollution Control. The Contractor shall report to the Engineer and the Office of Pollution Control any evidence or conditions that may cause suspicion that a waste site of hazardous or toxic materials and/or containers or USTs has been located within right-of-way limits of the project. Work shall cease immediately at such suspected site and shall not resume until directed by the Engineer. When the Contractor is required to perform additional work to dispose of such waste, containers and/or USTs, payment will be made at contract unit prices applicable to the work and/or as provided in Subsection 109.04 when the Contract does not include appropriate pay items. The Department reserves the right to use other forces for exploratory work to identify and determine the extent of hazardous and/or toxic waste. Should the disposition of such material require special procedures by certified personnel, the Department will make arrangements with qualified persons to dispose of the material. When the existence of USTs are known in advance of construction activity, the Contractor shall give the Office of Pollution Control written notification 30 days in advance of removal. When a UST contains or has been used for containment of a regulated substance and the Contractor is required to remove such tank in accordance with the provisions of Subsection 104.05, the Contractor shall not use "flotation" as a method of removal.

Legal relations and Responsibilty to Public in other states

• Alaska 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
• Alabama 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
• Arizona 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
• Colorado 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
• Delaware 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
• Idaho 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
• Indiana 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC