59 SECTION 107
107.01 Laws To Be Observed
Keep fully informed of, observe, and comply with all of the following that affect those engaged or employed on the project, or affect the performance of the work:
A.Federal laws;
B.State laws;
C.Local laws and ordinances; and
D.Regulations, orders, and decrees of any authority having jurisdiction, including all legal requirements governing the safety, health, sanitation, and performance of work under the contract. Indemnify and hold harmless the Department and its representatives against any claim or liability arising from the violation of any of the above listed items by the following parties or any employees of the following parties:
A.The Contractor;
B.A subcontractor at any tier;
C.A supplier of material or service; and
D.Any other engaged by the Contractor in the performance of the work. The Contractor is solely responsible to provide, inspect, and maintain all s afeguards, safety devices, protective equipment, and safety programs; and provide actions necessary to reasonably protect the life, health, and property of the Contractor, subcontractors, the State, the public, and each of the employees, officers, assigns, and agents of the Contractor, subcontractors, and the State, engaged or employed on the project. Provide unrestricted access to the project site to any inspector of OSHA or other legally responsible agency involved in safety and health administration.
107.02 Permits, Licenses, and Taxes
A.General. The Contractor is responsible for the following as required by the contract and the applicable laws and regulations:
1.Obtaining and submitting to the Engineer all permits and licenses;
2.Paying all charges, fees, and taxes; and
3.Giving all notices. 60 The costs of the above responsibilities are included in the contract unit prices of the contract items. Include the costs of these responsibilities in the contract unit prices of the relevant contract items. If a permitting agency requires the Contractor to submit documentation as a condition of a permit, the Contractor shall provide the Engineer with copies of the documentation.
B.Water Use Permits.
1.General. Before withdrawing surface or ground water from any source, obtain a temporary water permit from the Department of Water Resources in accordance with “Department of Water Resources .” If intending to withdraw water from the following waterways, obtain the applicable United States Army Corp of Engineers permits in accordance with Section 107.02.B.3, “United States Army Corp of Engineers,” in addition to the temporar y water permit from the Department of Water Resources.
a.MISSOURI RIVER – from the Montana-North Dakota state line to the North Dakota- South Dakota state line;
b.YELLOWSTONE RIVER – from the Montana-North Dakota state line to its mouth;
c.UPPER DES L ACS LAKE;
d.RED RIVER OF THE NORTH – from Wahpeton, ND, to the Canadian border;
e.BOIS DE SIOUX RIVER – from the South Dakota-North Dakota state line to Wahpeton, ND; and
f.JAMES RIVER – from Jamestown, ND, to the North Dakota-South Dakota state line. Obtain written permission to access a water source from all affected landowners. Before accessing surface or ground water from any source, submit to the Engineer a copy of the written permission for access, the temporary water permit from the Department of Water Resources , and, if applicable, the water permits from the United States Army Corp of Engineers.
2.Department of Water Resources. To obtain a temporary water permit, complete an Application for a Temporary Water Permit (SFN 60158) and submit to the Department of Water Resources . The Application for a Temporary Water Permit is available on the Department of Water Resources website at: www.swc.state.nd.us/ . For additional information from the Department of Water Resources , contact: 61 State Engineer Department of Water Resources State Office Building 900 East Boulevard Ave Bismarck, ND 58505-0850 (701) 328-2754 swc@nd.gov
3.United States Army Corps of Engineers (USACE). Obtain the applicable USACE water permits from the USACE after the Department makes an award. To obtain the applicable permits, complete USACE Engineering Form 4345 and submit it to the USACE. Engineering Form 4345 is available on the USACE website at: www.usace.army.mil/ . For additional information from USACE, contact: United States Army Corps of Engineers Bismarck Regulatory Office 1513 S. 12 th St Bismarck, ND 58504 (701) 255-0015
C.Storm Water Permits.
1.General. If the total area of disturbance within the project site is 1 acre or greater, obtain the following permit or permits:
a.For areas of disturbance on non-tribal land, an NDPDES General Permit for Stormwater Discharges Associated with Construction Activity in accordance with
b.For areas of disturbance on tribal land, an EPA Construction General Permit in accordance with Section 107.02 C.3, “EPA Construction General Permit (CGP).”
c.For areas of disturbance on both tribal and non-tribal land, both per mits required in items a and b. Submit a copy of the Storm Water Pollution Prevention Plan (SWPPP) to the Engineer at the preconstruction conference or before starting work. The SWPPP shall include erosion and pollution controls for all areas disturbed in the performance of the work.
2.NDPDES Permit. To obtain an NDPDES General Permit for Stormwater Discharges Associated with Construction Activity, complete an Application (Notice of Intent) to Obtain Coverage under NDPDES General Permit for Stormwater Di scharges Associated with Construction Activity (SFN 19145) and submit it to the NDDEQ . The Application (Notice of Intent) to Obtain Coverage under NDPDES General Permit for Stormwater Discharges Associated with Construction Activity is available on the NDDEQ ’s website at: https://deq.nd.gov/WQ/2_NDPDES_Permits/7_Stormwater/StW.aspx . 62 Review the Memorandum of Agreement (MOA) developed by the NDDEQ and the Department outlining pro cedures for NDPDES General Permit for Stormwater Discharges Associated with Construction Activity as they relate to Department projects. Download a copy of the MOA from the NDDEQ ’s website. Fulfill all requirements as required by the NDDEQ . Submit to the Engineer a copy of the completed application package and, once obtained, the notice of permit coverage. Submit a completed Notice of Transfer/Modification of Coverage under (NDPDES) General Permit for Storm Water Discharges Associated with Construction Activity (SFN 54242) to the Engineer. Submit this form when returning the signed final payment statement. For additional information from the NDDEQ , contact: North Dakota Department of Environmental Quality Division of Water Quality 4201 Nor mandy Street Bismarck, ND 58503 -1324 (701) 328-5210
3.EPA Construction General Permit (CGP). To obtain an EPA CGP, complete and submit the EPA’s Electronic Construction General Permit Notice of Intent, which is available on the EPA’s website at: https://www.epa.gov/npdes/electronic -notice-intent-enoi . Fulfill all requirements as required by the EPA, Region 8. Provide the EPA’s Notice of Intent (NOI) tracking number to the Engineer. If the Department has notified the Contractor of final acceptance in accordance with Section 105.15, “Acceptance,” but the project does not meet the requirements necessary to file a Notice of Termination (NOT) in accordance with the EPA’s National Pollutant Discharge Elimination System General Permit for Discharge from Construction Activities , the Engineer will notify the Contractor when submission of an NOT is allowable. For additional information from the EPA, contact: Region 8 Storm Water Coordinator
U.S. Environmental Protection Agency, (80C -EISC) 1595 Wynkoop St Denver, CO 80202-21129 (800) 227-8917 ext. 6082
107.03 Aquatic Nuisance Species (Ans)
Reserved.
107.04 Patented Devices, Materials, and Processes
Provide proof of legal agreement with the patentee or owner, if necessary, for use of a design, device, material, or process covered by letters, patents, or copyrights. 63 Indemnify and hold harmless the Department and any affected third party or political subdivision from claims or infringement on patents, copyrights, or trademarks. Indemnify the Department for costs, expenses, and damages, which it may be obligated to pay because of an infringement during the performance of or after the completion of the work.
107.05 Material Source Approval
A.General. Before disturbing an area as part of the work, provide the Engineer with a Certificate of Approval (COA). Areas requiring a COA include material source locations, access routes to public roads, stockpile locations, rock piles (riprap), plant sites, processing and staging areas, waste sites, and any other areas outside the project limits. Areas for which a COA has been issued cannot be expanded without obtaining a COA for the expansion area. Comply with all the conditions and requirements listed on the COA. A COA will be voided if avoidance areas, indicated on the COA, are disturbed. The Engineer will reject material obtained from an area that does not have a valid COA or if the Contractor fails to comply with the conditions listed on the COA. The Contractor is responsible for obtaining all permissions and permits. The Department will not provide payments or compensation for delays resulting from the Department review or the need to obtain permissions and permits. Destruction of cultural resources prior to approval is considered Anticipatory Demolition [National Historic Preservation Act (NHPA), Section 110(k)(16 U.S.C. 470h-2], and a COA will not be issued.
B.Department Controlled Sources. The proposal package will include COAs for Department controlled sources. COA’s for Department controlled sources that are located out of State will include additional conditions and requirements that must be met before the source can be used.
C.Privately Owned Locations. A complete list of previously approved sites and downloadable COAs is available on the Department’s website at: www.dot.nd.gov . If the list does not include a location, submit a Material Source Approval Request (SFN 58466) by following the directions included on the form. Upon receiving a complete Material Source Approval Request, the Department will guide the applicant through the approval process and will issue a COA if the approval process is completed successfully. Typically, approval process takes up to 30 calendar days; however, this may take longer due to poor visibility, weather conditions, or the need to coordinate with outside agencies. The Department may require the Contractor to submit additional information before issuing a COA. 64 D. Out of State Sources. COA’s for privately owned areas located out of State, provide the Engineer with documentation showi ng the availability of the area for use in accordance with each state’s review process.
107.06 Discoveries
If the Contractor encounters one or more of the items included in the following list anywhere the Contractor performs the work, the Contractor shall immediately suspend the work and notify the Engineer of the encouter: - Threatened or endangered species; - Prehistoric dwelling sites; - Human remains; - Concentrated historic or prehistoric artifacts; or - Vertebrate, invertebrate, plant and trace fossils. If encountering one of the following, protect the location from further disturbance: - Prehistoric dwelling sites; - Human remains; - Concentrated historic or prehistoric artifacts; or - Vertebrate, invertebrate, plant and trace fossils. Resume work in the location of the encounter only with written approval from the Engineer. If the Contractor fails to notify the Engineer within 24 hours of the encounter, the Contractor shall be liable for all standby costs and all damage incurred.
107.07 Responsibility To The Public
A.Maintaining Traffic During Performance of the Work. Perform the work with minimal inconvenience to traffic. Provide for the safety and convenience of the public, including residents along the highway, and the protection of persons and property. Until the Engineer accepts the project in accordance with Section 105.15, “Acceptance,” maintain the portion of the roadway used by traffic in a condition that safely and adequately accommodates traffic. Unless the contract provides for detours or road closures, keep the roadway open to traffic during the performance of the work. Provide temporary approaches or crossings and intersections with trails, roads, streets, businesses, parking lots, residences, garages, and farms, and maintain them in a safe condition. Before starting the work, meet with the Engineer at the project to coordinate the details and locations of access points and construction procedures. The Department will provide snow removal to maintain traffic on portions of the project open to public traffic. Provide, erect, and maintain all necessary barricades, warning signs, lights, and other traffic control devices to protect the work and safety of the public and the workers. 65 B. Maintenance of Traffic During Suspension of Work.
1.General. An anticipated suspension is a suspension that the Department includes in the contract. If the contract includes an anticipated suspension, the contract will include provisions for preparing the project for the suspension. During anticipated and unanticipate d suspensions, the Department will provide snow removal to maintain traffic.
2.Anticipated Suspensions. The Engineer will only suspend the work when the Contractor has met the provisions for preparing the project for the suspension. Once work has been su spended for an anticipated suspension, the Department will maintain temporary roads and project sections. Resume maintenance for the entire project once work resumes. Replace or repair all work or materials lost or damaged during the suspension. The Depar tment will pay the Contractor for the replacement and repair costs in accordance with Section 109.03, “Compensation for Contract Revisions.”
3.Unanticipated Suspensions.
a.Suspensions for Department Convenience. If a suspension is not anticipated by the Department and is not the result of the Contractor’s failure to properly perform the work, the Department will pay for the cost of maintenance and additional work to resume operations at contract unit prices or as extra work. If the Contractor does not resume the work on or before the effective date of the Engineer’s order to resume work, the Department will deduct any costs incurred for maintaining traffic after the effective date of the order from monies due or to become due the Contractor.
b.Suspensions due to Contractor’s Actions. If a suspension is not anticipated by the Department and is the result of the Contractor’s failure to properly perform the work, the Contractor shall maintain and restore the roadway to accommodate traffic. The Department will not pay the Contractor for this maintenance work. If maintenance or restoration work becomes necessary during a suspension, the Engineer will notify the Contractor and the Contractor shall respond as follows:
1.Begin the maintenance and restoration work within 6 hours of the Engineer’s notification and complete the maintenance and restoration work within 24 hours of the Engineer’s notification. If the Contractor fails to begin the maintenance and restoration work within 6 hours of the Engineer’s notification, the Department may do one or both of the following:
a.Complete the maintenance and restoration work by other means, and deduct the cost of the maintenance and restoration work from monies due or to become due the Contractor. 66 (b) Apply a contract price reduction of $500 for the first hour or part of an hour, and $250 per each additional hour or part of an hour, beyond the initial 6 hours.
2.If the maintenance or restoration work affects public safety and the Engineer directs, begin the maintenance and restoration work immediately. If the Contractor fails to begin the maintenance and restoration work immediately, the Department will have the maintenance and restoration work completed and will deduct the cost of the maintenance and restoration work from monies due or to become due the Contractor. Beginning maintenance or restoration work means having equipment or personnel at the location of the maintenance or restoration work.
C.Parking of Equipment, Vehicles, and Stored Materials. Do not park equipment and vehicles, or store materials in the median of a divided roadway. Park equipment and vehicles and store material a minimum of 60 feet from the outside edge of the driving lane. Obtain written permission from the property owner before using private property to park vehicles or equipment, to store materials, or as a work area. Provide the Engineer with a copy of the written permission. Provide the Engineer with a release from the property owner after restoring the property to the property owner’s satisfaction.
D.Urban Work. If the contract requires work within a city’s limits, provide written notification to the fire chief and police chief at least 24 hours before blocking any street. Provide the fire department access to fire hydrants at all times. Do not place material or other obstructions within 10 feet of a fire hydrant or as otherwise allowed by ordinances, rules, or regulations.
E.Dust Control. If the Engineer determines that dust from the performance of the work is creating a hazard to traffic or a nuisance to the public, control the dust on paved surfaces using a vacuum or pickup sweeper and control dust on unpaved surfaces using water. If the Engineer determines the vacuum or pickup sweeper is not adequate, use water in conjunction with the sweeper to control the dust. Do not wash material into storm or sanitary drainage systems. Maintain a safe, clean driving surface on any roadway open to traffic. The Department will not make direct payment for dust control, except that the Department will pay the Contractor for the cost of water used for dust control in accordance with Section 216, “Water.”
F.Crossing Traffic. Construction vehic les are not allowed to cross lanes of traffic to enter or exit work zones on the interstate. Construction vehicles are required to merge into public traffic.
107.08 Haul Roads
A.General. Before submitting a proposal, contact the appropriate State, County, Township, Tribe, BIA, or City officials to determine if there are any roadways that will be designated as “no haul” routes. 67 Notify the Engineer of each public road proposed for use as a haul road before hauling over that route. The Engineer will designate the most practical route for transporting materials and designate the route as a “haul road,” upon completion of the pre-haul inspection unless deemed unacceptable by a local jurisdiction request. Change the route of a designated haul road only with the Engineer’s written approval. For route change requests made for the Contractor’s convenience, the Engineer may require an agreement limiting the Department’s liability for the cost of mai ntenance and restoration of the haul road. The Engineer will consider the entire haul cycle, loaded and empty, when designating haul routes.
B.Designation of Haul Roads The Engineer will not designate paved roads off the state system as haul routes. The Engineer will not designate a road susceptible to severe damage from concentrated heavy hauling as a haul road unless no alternate route is available. Investigate alternate routes before submitting a proposal. If the Contractor desires to haul on a road that the Engineer determined to be unsuitable for hauling, the Engineer will designate that road as a haul road if the Contractor provides improvements that the Engineer and Contractor agree make the road suitable. Make these improvements at no additional cost to the Department. If the Engineer determines that pre-haul improvements to a designated haul road will reduce the maintenance or restoration costs, the Department will pay for the materials used to make pre-haul improvements. A route used to haul material from a commercial pit to the project site is not considered a haul road. A commercial pit is a pit that meets one of the following criteria at the time the project is advertised:
1.The pit has long-term facilities in place and partially derives its annual sales from ongoing operation and sources other than Department or other short-term government contracts;
2.The operator owns the land or has a long-term lease, and did not primarily set up and equip the pit at the location to serve Department contracts; or
3.The operator regularly advertises the availability of material for public sale and has facilities available for effecting public sales at times when there are no government contracted projects utilizing the pit.
C.Pre-Haul Inspection. Before hauling over a designated haul road, the Engineer, the Contractor, and the agency charged with control and maintenance of the route will make a joint inspection of the haul road. The joint inspection will determine the existing condition of the haul road, including the type, thickness, and width of the surfacing material. The Engineer will record the results in an inspection report. The inspection report will set forth any special conditions for use, maintenance, and restoration of the route. The Contractor, the Engineer, and the agency charged with control and maintenance of the route shall review and sign the report.
D.Use, Maintenance, and Restoration. Maintain the haul roads used by public traffic in a condition that safely and adequately accomm odates public traffic. If the Contractor damages the haul road by hauling loads in excess of the legal limit, or through negligence or failure to perform maintenance, the Contractor shall repair the damage; the Department will not pay the Contractor for the repairs. After completing hauling operations over a designated haul road, restore the road to a condition at least equal to the condition existing at the time of the pre-haul inspection. The Engineer will order the type and amount of maintenance and restoration work and the requirements for performing this work. Maintain and restore the road as required despite the use of the haul road concurrently by other traffic. For haul roads jointly used by multiple contractors on Department contracts, the Engineer will determine the respective obligations for maintenance and restoration. For haul roads under Department jurisdiction, the Department will only relieve the Contractor of any further obligation for restoration of the road when the Contractor has restored the road to the condition required in the pre -haul inspection report, as accepted in writing by the Engineer. For haul roads under other jurisdiction, obtain a haul road release from the agency charged with control or maintenance of the route and submit a copy of the executed release to the Engineer. If the Engineer determines that dust from hauling operations on designated haul roads is creating a hazard to traffic or a nuisance to the public, apply water to the haul road as necessary to control the dust.
E.Materials and Construction. Materials and construction methods used in performing maintenance and restoration work shall meet the requirements of the relevant specifications.
F.Method of Measurement. The Engineer will measure all approved quantities of material ordered by the Engineer for pre- haul improvements, maintenance, and restoration of designated haul roads as specified in the applicable portions of the contract. The Engineer will measure water used for dust control as specified in S ection 216.05, “Method of Measurement”.
G.Basis of Payment. The Department will pay the Contractor for measured quantities of material ordered by the Engineer for pre-haul improvements, maintenance, and restoration of designated haul roads in accordance with Section 109.03, “Compensation for Contract Revisions.” The Department will not pay the Contractor for the costs to maintain and restore routes used to haul materials from commercial pits. Include these costs in the contract unit prices of the relevant contract items. If maintenance and restoration work only requires the use of equipment, the Department will not pay the Contractor for the costs to use the equipment. Include these costs in the contract unit prices of the relevant contract items.
107.09 Use of Explosives
If using explosives to perform the work, do not endanger life or property, and maintain responsibility for all damages resulting from the use of explosives. Comply with the most restrictive requirements from all local and State laws and ordinances, 27 CFR Part 55, and 29 CFR Part 1926 in the use, handling, loading, transportation, and storage of explosives and blasting agents. At least 72 hours before using explosives, notify property owners and public utility companies in the vic inity of the proposed detonation.
107.10 Protection and Restoration of Property
Protect public and private property while performing the work. Assume liability for any damage to public or private property resulting from defective work or materials, or non -execution of the contract until project acceptance in accordance with Section 105.15, “Acceptance.” Restore damaged public and private property to a condition similar or equal to that existing before the damage occurred. Perform restoration in a manner acceptable to the Engineer, the controlling public agency, or private property owners. Before damaging or disturbing land monuments or property markers, allow the Engineer to witness or otherwise reference their location.
107.11 Responsibility for Damage Claims
Indemnify and hold harmless the Department, its officers and employees, counties, cities, or other entities or agencies responsible for project supervision, or having jurisdiction over the completed project, and their officers and employees, from suits, actions, or claims brought because of any injuries or damage received or sustained by any person, persons, or property because of the operations of said Contractor; or on account of or in consequence of neglect in safeguarding the work, or through use of unacceptable materials in constructing the work; or because of any act of omission, neglect, or misconduct of the Contractor; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the Workmen’s Compensation Act, or any other law, ordinance, order, or decree. Money due the Contractor under the Contract may be retained for the use of the D epartment. In case no money is due, the Surety may be held until such suits, actions, or claims for injuries or damages are settled and evidence to that effect furnished to the Department. Money due the Contractor will not be withheld when evidence shows that the Contractor is adequately protected by public liability and property damage insurance. It is specifically agreed between the parties executing the contract that it is not intended by any of the provisions of the contract to create in the public or any member thereof a third-party beneficiary, or to authorize anyone to maintain any action for personal injuries, death, or property damage pursuant to or arising out of the terms or provisions of the contract. 70 107.12 PERSONAL LIABILITY OF PUBLIC OFFICIA LS There shall be no liability upon the Director, Engineer, or their authorized representatives, either personally or as officials of the State in carrying out any contract provisions, or in exercising any power or authority granted to them by or within th e contract’s scope. It should be understood that in all such matters they act solely as agents and representatives of the State.
107.13 Railroad Provisions
A.General Insurance Requirements. At least 10 business days before starting any work on the railroad right of way, obtain and provide to the Engineer and the railroad company the insurance policy or a certified copy of the Railway Protection Insurance Policy and a certificate of insurance for the Railway Public Liability Insurance policies. Befor e starting work on the railroad right of way, provide the Engineer with the railroad company’s approval of the policies. Provide insurance policies executed by a corporation qualified and authorized to write the policies in the State and in a form and substance satisfactory to the railroad. Secure and maintain insurance in full force and effect before starting any work on the railway right of way and until completion of all work required on the railway right of way, as evidenced by acceptance of the porti on of the work by the Department. Do not cancel the insurance policies.
B.Indemnification. Indemnify and hold harmless the railroad company from and against all lawful claims, demands, judgments, losses, costs, and expenses for injury to or death of the person or loss or damage to the property of any person or persons, including the parties hereto, in any manner arising from or growing out of the acts or omissions, negligence, or otherwise of the Contractor, its successors, assigns, licensees, and invitees or agents, in connection with the entry upon, occupation, or use of the said premises described in the contract, including but not limited to that of the location, construction, operation, restoration, repair, renewal, or maintenance of said roadway impr ovements.
C.Railway Protection Insurance.
1.General Liability. Assume all liability and provide primary limited coverage as follows:
a.Limited to damage suffered by the railroad because of occurrences arising out of the Contractor’s work on or around the railroad right of way, independent of the railroad’s general supervision or control, except as included in item b(4).
b.Covering the following:
1.Death of or bodily injury to passengers of the railway and employees of the railroad not cover ed by the State Worker’s Compensation laws;
2.Personal property owned by, or in the custody or control of, the railroads; 71 (3) Death of or bodily injury to the Contractor or any of their agents or employees as the result of acts of the railroad or its agents, regardless of the railroad’s negligence;
4.Negligence of only the following classes of railroad employees:
a.Any supervisory employee of the railroad at the project site;
b.Any employee of the railroad while operating, attached to, or engaged on work trains or other railroad equipment at the project site and assigned exclusively to the Contractor; or
c.Any employee of the railroad not within (a) or (b) specifically loaned or assigned to the Contractor’s work for prevention of accidents or protection of property and services paid by the Contractor or the Department.
2.Policy. Provide a Railroad Protective Liability Insurance policy for all damages arising out of bodily injuries to, or death of, any person or persons, and for all damages arising out of loss or destruction of, or injury or damage to, property in any one occurrence for a combined single limit of not less than $2,000,000 and for a combined total (or aggregate) limit of $6,000,000 during the policy period.
D.Railway Public Liability Insurance. For work on the railway right of way, protect and hold harmless the railway and any other railroad company occupying or using the railway right of way or line of railroad against all loss, liability, and damage arising from activities of the Contractor, its forces, or any of its subcontractors or agents. Provide the following insurance coverages:
1.Commercial General Liability Insurance, including contractual liability and products completed operations, against claims arisi ng out of bodily injury, illness and death and from damage to or destruction of property of others, including loss of use thereof, and including liability of the railway, with minimum limits for bodily injury and property damage of $2,000,000 for each occurrence and with an aggregate limit of $4,000,000. Provide a policy containing a “Waiver of Transfer Rights” endorsement, waiving any right of recovery by the insurance company against the railway because of payment made for bodily injuries or property damage.
2.Business Automobile Insurance, including owned, non-owned, and hired vehicles with minimum limits for bodily injury and property damage of $1,000,000 per occurrence on all vehicles used while performing any work in this contract.
3.Worker’s Compensation Insurance as required by the State of North Dakota. If the Contractor is not covered by the North Dakota Worker’s Compensation Act, the Contractor shall provide an employer’s liability policy. The policy shall include occupational disease to requir ed statutory limits, employer’s liability of $1,000,000 to include FELA (Federal Employees Liability Act), if appropriate, and an “All States” endorsement.
E.Railroad Coo rdination. If the contract requires the hauling of materials across railroad tracks other than at existing public crossings, the Department will arrange with the railroad company for the required 72 crossings. For crossings not required in the contract, arrange to use the crossings with the railroad company. Provide to the Engineer and the railroad company detailed plans of all falsework, excavation, and cofferdams planned for construction over, below, or adjacent to the railroad’s tracks. Before performing this work, obtain the railroad company’s approval of the detailed plans. Perform all work within the railroad right of way in accordance with the requirements and time schedules set by the railroad company. Notify the Engineer and the railroad company at least 10 business days before the proposed date the work within the railroad’s right of way will begin and at least 24 hours in advance of the proposed start time for any work that may interfere with the operation of trains.
F.Basis of Payment. The Department will pay for Railway Protection Insurance by the lump sum contract unit price. The costs of providing Railway Protective Liability Insurance and Railway Public Liability Insurance are included in the contract unit price for Railway Protection Insurance. Upon receiving proof of approval of the policies by the railroad company, the Department will pay the Contractor the lump sum contract unit price.
G.Railroad Flagging. Coordinate the need for railroad flagging with the affected railroad company. The Department will pay the railroad company for the cost of providing railroad flagging, and will deduct the amount paid to the railroad company from monies due or to become due the Contractor. The costs of railroad flagging are included in the contract unit price of the contract items.
107.14 Public Liability and Property Damage Insurance
A.General Requirements. Submit to the Department the certificates of insurance effecting the requirements in this section for the Commercial General Liability and Commercial Automobile Liability Insurances with the contract and the contract bond in accordance with Section 103.06, “Execution and Approval of Contract.” Provide insurance policies executed by a corporation qualified and authorized to write the policies in the State of North Dakota. The State reserves the right to obtain complete, certified copies of all required insurance documents, policies, or endorsements at any time. Secure and maintain insurance in full force and effect before starting the work and until completion of all work required and accepted by the Department or owner. The policies shall provide 30 calendar days notice to the Department or the owner of any intent to cancel or materially alter such insurance. Failure to maintain the insurance as required constitutes a material breach of contract. The Department or the owner may, after giving 5 business days notice to the Contractor to correct the breach, immediately terminate the Contractor in accordance with Section 108.08, “Termination of the Contract for Default,” and procure or renew such insurance and pay all premiums. The Department or the owner may demand repayment of premium costs by the Contractor, or may offset the premium costs against funds due the Contractor from the Department or the owner.
B.Insurance Requirements. Secure and maintain in full force and effect during the term of the contract the following insurance coverages:
1.Commercial General Liability for limits not less than $1,000,000 combined single limit per occurrence and aggregate for bodily injury, property damage, personal injury and completed operations/product liability. Provide products and completed operations coverage for a period of one year following final acceptance of the work. Provide coverage with the aggregate limit applied separately to occurrences at the location or project described in this contract. Provide a policy including a “stop-gap” Employers Liability endorsement to cover the employer’s liability for injury to employees falling outside the State Worker’s Compensation Law.
2.Commercial Automobile Liability for limits not less than $1,000,000 combined single limit per accident for bodily injury and property damage.
3.Workers Compensation coverage as required by the State of North Dakota. The General Liability and Automobile policies shall provide an additional insured endorsement in favor of the State of North Dakota and the Owner and shall contain a “Waiver of Subrogation” to waive any right of recovery that the Insurance company may have against the State and the Owner. The coverage required under this agreement shall be primary for the State and the Owner, and shall not be affected by any other insurance or coverage obtained by the State or the Owner on their own behalf. Any right of the State to receive inde mnification and insurance shall not give rise to a duty on the part of the State to exercise its rights or status for the benefit of the owner, or any other person or entity.
C.Subcontractor. If subletting a portion of the contract, the Contractor shall obtain insurance protection in accordance with Section 107.14 B, “Insurance Requirements,” to provide liability coverage to protect the Contractor, State, and owner for work undertaken by the subcontractor. Ensure public liability and property damage insurance coverage in accordance with Section 107.14 B, “Insurance Requirements,” for all parties performing work under the contract.
107.15 Hazardous Material
If the Contractor encounters abnormal conditions that indicate the presence of hazardous material or toxic waste anywhere the Contractor performs the work, the Contractor shall immediately suspend the work and notify the Engineer. Continue work in other areas of the project, but do not resume work in the area of the abnormal condition, unless directed to resume by the Engineer. Abnormal conditions include the presence of barrels, obnoxious odors, excessively hot earth, smoke, or any other conditions indicating the presence of a hazardous material or toxic waste. Treat the conditions with extreme caution. Dispose of the hazardous material or toxic waste in accordance with the requirements and regulations of the NDDEQ . The Department will pay for work required to dispose of these materials in accordance with Section 104.02, “Contract Revisions.” For waste material disposal 74 requiring special procedures, the Department will arrange with qualified, certified persons to dispose of the material.
107.16 Civil Rights
Comply with federal, State, and local laws, rules, and regulations that set forth unlawful employment practices including discrimination because of race, religion, color, sex, or national origin, and defining actions required for Affirmative Action and DBE programs. Ensure that no person or groups of persons be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under all programs, services, or activities administered by the Department on the grounds of race, color, national origin, sex, age, disability/handicap, or income status.
107.17 Removed Material
Unless otherwise designated in the contract, removed material becomes the property of the Contractor. If the Contractor determines that the material will be disposed of, the material must be disposed in one of the following ways:
A.Dispose of the material through a beneficial use. Apply for a beneficial use permit from the NDDEQ by completing an NDDOT Projects -Inert Waste Beneficial Use Application (SFN 58981) . Provide the Engineer with copies of all documents submitted to the NDDEQ .
B.Dispose of the material at an approved permanent waste management facility.
C.If waste cannot be reasonably managed at a permanent waste management facility, obtain approval from the NDDEQ for a variance to dispose of the inert waste at another site. Apply for a variance by completing an NDDOT Projects -Inert Waste Disposal Variance Application (SFN 54344) . Provide the Engineer with copies of all documents submitted to the NDDE Q. Obtain locations of permanent waste facilities, applications, and guidelines from the NDDEQ , Division of Waste Management. View a list of municipal and inert waste landfills and review guidance on the NDDEQ website: https://deq.nd.gov/ . Include the cost of material disposal in the contract unit price of the relevant contract item.
107.18 High Visibility Clothing
When not enclosed in a truck or equipment cab, require that all workers within the right of way wear retroreflective clothing in accordance with the MUTCD. Ensure that retroreflective clothing is the outermost garment, in a clean condition, and closed in both the front and rear. Replace retroreflective clothing as necessary to maintain visibility and reflectivity. During times of low visibility, require that all workers wear Class 3 retroreflective clothing. Section 108 75 SECTION 108 PROSECUTION AND PROGRESS
108.01 Subletting of Contract
A minimum of 30 percent of the work, as represented by the original contract amount, must be performed by the Contractor’s organization. When calculating the percentage of the work to be performed by the Contractor, the Engineer will deduct from the original contract amount the contract price of contract items identified by the contract as specialty items. The Engineer will include the delivered cost of commercially produced materials and manufactured components purchased by the Contractor in the percentage of the work to be performed by the Contractor. Sublet, sell, transfer, assign, or dispose of any portion of the contract only with the Engineer’s prior written approval. To obtain approval, submit a Prime Contractor’s Request to Sublet (SFN 5682) for each proposed subcontractor with a copy of the subcontract and associated lower -tier subcontracts. For a partially subcontracted contract item, explain in detail and show the subcontract amount associated with the partially subcontracted contract item . If a proposed subcontractor is not currently prequalified, certified as a DBE, or registered as a subcontractor with the Department, submit a Subcontractor Registration Request (SFN 52243) with the Prime Contractor’s Request to Sublet. When the contract specifies a DBE Goal, execute a subcontract with all firms approved through the Department’s Good Faith Effort process. If the Department classifies the firm as an oil hauler, supplier, broker, vendor, regular dealer, or manufacturer, no subcontract is required, but the firm must be used to perform the work. Begin subcontracted work only after the Engineer approves the Prime Contractor’s Request to Sublet. A subcontract, transfer of all or a portion of the contract, the Engineer’s approval of the Prime Contractor’s Request to Sublet, or the Department’s prequalification, DBE certification, or registration of a subcontractor:
A.Does not relieve the Contractor of responsibility to carry out the contract. Although the Contractor may subcontract a portion of the work to other parties, the Contractor is responsible for the successful performance and completion of all the work as required by the contract.
B.Does not relieve the Contractor of any obligations or liability under the contract and the contract bond.
C.Is not an endorsement of the subcontract, the subcontractor, or the subcontractor’s ability to perform the work as required by the contract.
D.Does not create a contractual relationship between the Department and the subcontractor.
E.Does not convey to the subcontractor any rights against the Department.
Source: North Dakota Standard Specifications for Road and Bridge Construction, 2022 Edition. Pages 94–109 of 550.