- 56 - SECTION 107 -- LEGAL RELATI ONS AND RESPONSIBILITY TO THE PUBLIC
107.01 Laws to be Observed
1.a. The Contractor shall keep fully informed of and observe and comply with all of the following which affect those engaged or employed on the work or affect the conduct of the work:
1.Federal and State laws. (2) Local laws and ordinances. (3) Orders and decrees of bodies or tribunals having any jurisdiction or authority.
b.The Contractor shall protec t and indemnify the State and its representatives against any claim arisi ng from the violation of any of the above listed items whenever violated by the following entities or any of their employees:
1.The Contractor.
2.Subcontractor(s) at any tier. (3) Suppliers of materials or services. (4) Any others engaged by the Contractor. 2. a. The Contractor shall provide all safeguards, safety devices, protective equipment, and trained personnel, and take any other actions necessary to protect the life and health of employees on the project.
b.(1) State personnel will not perform any surveying, inspection, or testing in an affected area until t he Contractor has erected all safety devices required by Federal, State, or local ordinances.
2.The Contractor's failure to erect and maintain safety devices will be cause for considering placement of safety devices as the current controlling operation.
c.Delays incurred due to the C ontractor's failure to provide and maintain the required safety devices will not be considered for extending the contract time allowance.
3.The Contractor shall perform all excavation in accordance with the requirements in the One-Call Notification System Act.
4.Environmental Quality Compliance: a. Whenever the Contractor viol ates any governing Federal, State or Local environmental quality regulation and/or is in noncompliance with any environmental commitment, the violating activity must cease immediately until the appropriate remedy can be determined by: the Engineer, the NDOT Environmental Section, the Federal Highway Administration (for projects utilizing Federal-aid) and other agencies, as deemed appropriate. The Engineer, with assistance from the NDOT Environmental Section and the FHWA, will provide a written order confirming the appropriate corrective action to t he Contractor. Work can resume to normal conditions once the Engineer det ermines that the violation or non- compliance has been addressed in accordance with the order for corrective action. Legal Relations and Responsibilty to the Public 107.01 - 57 - b. The use of dredged material containing any unsuitable items (e.g., trash, debris, car bodies, etc.) or toxic pollutants shall not be permitted.
c.To the maximum extent prac ticable, fill material must not permanently restrict or impede the passa ge of normal or expected high flows or cause the relocation of the waterway.
d.If the fill material creates an impoundment of water, adverse impacts on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized to the maximum extent practicable.
e.Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance.
f.No activity is authorized under any permit which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designati on, as identified under the Federal Endangered Species Act , or which is likely to destroy or adversely modify the critical habitat of such species. T he Contractor shall not ify the Engineer if any listed species or critical habitat might be affected or is near the project and shall not begin work on the activity until notified by t he Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized. Information on the location of threatened and endangered species and their critical habitat can be obtain ed from the U.S. Fish and Wildlife Service and National Marine Fisheries Service.
g.No activity which may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized until the Engineer has complied with the provisi ons of 33 CFR 325, Appendix C. The Contractor shall notify the Engineer im mediately if the authorized activity may affect any historic properties listed, determined to be eligible, or which the Contractor has reason to believe may be eligible for listing on the National Register of Historic Places , and shall not begin the activity until notified by the Engineer that the activity is reauthorized. Information on the location and existence of historic re sources can be obtained from the State Historical Preservation Officer and the National Register of Historic Places .
h.Migratory Birds
1.The Department will, to the extent practicable, schedule the letting of projects such that clearing and grubbing can occur outside of the primary nesting season in Nebraska which has been determined to generally occur between April 1 and Sept ember 1. Work on structures, such as but not limited to bridges and culverts, should occur outside the primary swallow nesting season, April 15 to September 30, unless approved methods of avoiding nesting have been ta ken on the bridge and/or culvert structures. The nesting dates above are a guide only, nesting can occur outside of those dates. Work outside of those dates is not exempt from compliance with the Migratory Bird Treaty Act.
2.The Contractor shall, to the extent possible, schedule work on structures, such as but not limited to bridges and culverts, and clearing and grubbing activities to occur out side the primary nesting season in Nebraska. However, if circumstances di ctate that project construction or demolition must be done when nesting migratory birds may be present, a survey of the number of active nests and species of birds shall be conducted
107.01 Legal Relations and Responsibilty to the Public
- 58 - by qualified personnel representing t he Contractor, and assisted by the Project Manager (PM), NDOT Environmen tal Section staff, or the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) - Wildlife Serv ices Office. If the survey finds that nests will be impacted by the proposed construction, the Contractor may be responsible for delays.
3.The following guidance is provided for compliance with the Migratory Bird Treaty Act for construction of NDOT projects:
i.The Contractor shall submit a plan to the NDOT regarding how he intends to accomplis h bridge demolition or clearing and grubbing of the project to avoid conflict with nesting migratory birds. (ii) The Contractor mu st submit a temporary erosion control plan tailored to fit the plan for clearing and grubbing. (iii) If construction operations result in unavoidable conflict with nesting migratory bird's eggs or young, which will result in "taking" nests and their contents, the Contractor should notify the NDOT Project Manager (PM). The PM shall notify the Environmental Section of Planning and Project Development by telephone at 402-479-4766. (iv) The NDOT Environmental Section will then determine if assistance in conducting the survey will be provided by the NDOT Environmental Section (if available) or from the USDA APHIS - Wildlife Services Office and arrang e for assistance with th e survey of nest numbers, bird species, etc. Results of the survey shall be maintained by the DEPARTMENT until project completion.
v.If the nesting survey is required, and the project was awarded prior to the nesting season, an d the Contractor did not accomplish clearing/grubbing and/or work on brid ge/culvert structures outside the nesting season, the Contractor will reimburse the Department for each survey required at $1,000 per survey. If the project was awarded during the nesting season, and construction activities are such that clearing/grubbing and/or work on bridge/culvert structur es must be accomplished prior to any other activity on the project, then there will be no charge assessed for the initial survey. The Contractor is responsible for removing all trees surveyed, that do not contain active nests, and for taking appropriate measures on bridge/culvert structures, within 3 da ys of the survey. Reimbursement for additional surveys may be charged if the Contractor fails to remove the trees within 3 days of the survey, and requires an additional survey. Survey reimbursement will be determined on a project specific basis, considering the project timeline and associated activities. (vi) If an active nest is found during the survey, the Contractor should do everything possible to restructure his activities and leave the nest undisturbed until the young fledge. Fledging could occur within a week, or up to a month, after the survey depending on the species of bird and whether the nest contained eggs or young. Also depending on the species of bird and their sensitiv ity to disturbance, a buffer of up to 30 feet surrounding the tree with t he active nest could be required. (vii) If construction cannot be rescheduled to allow the birds to fledge, and it is determined as an unavoidable "take" circumstance, the Contractor shall stop all work wi thin 30 feet of the active nest and Legal Relations and Responsibilty to the Public 107.02 - 59 - coordinate with the Construction Project Manager to determine how to proceed. The Construction Project Manager will then coordinate with the NDOT Environmental Section and they will facilitate coordination with the US Fish and Wildlife Service and the Federal Highway Administration (for projects using Federal-aid) to determine the appropriate way to address the active nest. No work shall occur within 30 feet of the active nest until US Fish and Wildlife Service coordination is complete and the requirements of the Migratory Bird Treaty Act are satisfied. (viii) It is the Contractor ’s responsibility to schedule his work to accommodate the process of conducting a survey(s) and submitting the necessary documentation if avoidance is not practicable. The Contractor shall be responsible for using any legal and practical method to prevent the nesting of birds in order to prevent the need for any survey and prevent the need for additional surveys. It is und erstood and agreed that the Contractor has considered in the bid all of t he pertinent requirements concerning migratory birds (including endangered species) and that no additional compensation, other than time extensi ons if warranted, will be allowed for any delays or inconvenience resulting in these requirements.
i.Delays incurred as a result of the Contractor's failure to comply with Environmental Quality Regulations will not be considered for extending the contract time allowance. Any cost resulting from the delay shall be borne by the Contractor.
j.The Contractor shall perform washout of concrete mixers, delivery trucks, and other delivery systems in designated areas only.
107.02 Permits, Licenses, and Taxes
1.The Contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the lawful prosecution of the work. Thes e costs shall be included in the unit bid prices for the relevant items in the contract.
2.a. Reference is made to the Nebraska Revenue Act of 1967 , and amendments thereto, which imposed a "Sales and Use Tax". The following information to obtain tax exemption on purchased materials is provided for use in submitting proposals.
b.Each Contractor awarded a contract for Nebraska public highway work will be issued a "Purchasing Agent Appointment" signed by the Engineer and an "Exempt Sale Certificate". The "Exempt Sale Certificate" should be reproduced, comp leted, and furnished to vendors by the Contractor or Subcontractor when making purchases as a purchasing agent of the Department.
c.The "Exempt Sale Certificate" is to be used by the Contractor (or Subcontractor) when purchasing tangible personal property to be actually incorporated into the completed proj ect. It does not apply to either of the following:
1.The purchase of materials to be used or consumed but not incorporated into the contract work, including but not limited to, form lumber, scaffolding, etc.
2.The purchase or rental of machines, equipment, or tools owned or leased by the Contractor and used in performing the contract work.
107.02 Legal Relations and Responsibilty to the Public
- 60 - 3. All construction equipment loca ted in Nebraska on the 1st day of January is subject to Nebraska property taxes for that year. Contractors shall notify the appropriate county officials to insure equipment is assessed.
4.Site Approval: a. When borrow is obtained from a borrow site or waste excavation is placed at sites which are not shown in the contract, or the Contractor plans to use a plant or stoc kpile site which is not shown in the contract, the Contractor shall be so lely responsible for obtaining all necessary site approvals. The Departm ent will provide the procedures necessary to obtain approvals from t he U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Nebraska State Historical Society, Nebraska Game and Parks Commission, and Nebraska Department of Natural Resources on the NDOT website. The C ontractor shall also be responsible for obtaining a Discharge Number fr om the Nebraska Department of Environmental Quality (NDEQ) that allows work under the current Construction Stormwater Permit. The Contractor shall also be responsible for obtaining any and all other permits required by local governments.
b.It is anticipated that it ma y require 60 calendar days or more for the Contractor to obtain the nece ssary approvals. The Contractor shall not begin work at borrow or waste si tes until the necessary approvals are obtained. No extension of completion time will be granted due to any delays in securing approval of a borrow or disposal site unless a review of the time frames concludes that there were conditions beyond the Contractor’s control.
5.The Contractor shall underst and the terms and conditions of the general National Pollutant Discharge Elimination System (NPDES) permit that authorizes the storm water discharge s associated with industrial activity from the construction site. For referenc e, the general permit is posted on the Department's website. Additionally, th e Contractor, as evidenced by their signature on this proposal, agrees and understands that, if awarded the contract on this project, he/she:
a.becomes a co-permittee, along with the owner(s), to the Nebraska Department of Environmental Quality NPDES General Permit for Storm Water Discharges from construction sites on this project;
b.is legally bound to comply with the Clean Water Act to ensure compliance with the terms and conditio ns of the storm water pollution prevention plan developed under the NPDES permit and the terms of the NPDES permit; and
c.will hold the owners harmless for damages or fines arising as a result of noncompliance with the te rms of the storm water permits and authorizations associated with the work on this project.
107.03 Patented Devices, Materials, and Processes
1.Without exception, contract prices are to include all royalties and costs arising from patents, trademarks, and copyrights in any way involved in the work. Whenever the Contractor is required or desires to use any design, device, material, or process co vered by letters, patent, or copyright, the Contractor shall obtain the right fo r this use by legal agreement with the patentee or owner. A copy of this agreement shall be provided to the Engineer. Legal Relations and Responsibilty to the Public 107.07 - 61 - 2. However, whether or not such an agreement is made or provided, the Contractor and the surety in all cases shall indemnify and save harmless the Department from any and all claims for infringement by reason of the use of any such patented design, device, material, process, trademark, or copyright in connection with the work agreed to be performed under the contract.
3.The Contractor and the Contractor 's surety shall also indemnify the Department for any costs, expens es, and damages which it may be obligated to pay by reason of any such infringement at any time during the prosecution of or after the completion of the work.
107.04 Pavement Opening Permits
1.The Engineer may authorize the Contractor to allow third parties bearing valid permits to make openings in the highway. Permits will provide that all repair work will be paid for by the permit holder.
2.The Engineer may order the Contractor to make repairs to openings made by third parties. Any repairs ordered by the Engineer will be paid for as "extra work" in accordance with Subsection 109.05.
107.05 Federal Participation
1.All Federally funded work will be administered by the Department, subject to the inspection and approval of officials of the Federal government. These inspections do not make the Federal government a party to this contract and will in no way interfere with the rights of either party hereunder.
2.Federal Projects of Division In terest (PoDI) are designated in the Contract. These projects are subject to routine inspections by the Federal Government. The Federal Government may be involved in the approval of changes to the Contract.
107.06 Sanitary Provisions
1.The Contractor shall provide and maintain in a neat, sanitary condition accommodations for the use of the employees as may be necessary to comply with the requi rements of Federal, State, and local Boards of Health regulations.
107.07 Public Convenience and Safety
1.The Contractor shall insure the orderly movement of traffic through or around the work at all times. The Contractor may not close any road unless required by the plans or authorized under Subsection 104.05. Temporary traffic control devices and la youts shall conform to the Contract, and the MUTCD.
2.a. No materials of any kind shall be stored in the median or within 30 feet (10 m) of the edge of the traveled way, exc ept that they may be placed in the median or on the foreslopes if they are used or removed the same day. In no case shall material be allowed to remain overnight within the 30 feet (10 m) z one specified above.
b.Equipment not actively en gaged in construction operations shall not be parked within 20 feet (6 m) of the edge of the traveled way, or in the median, except during unavoidable temporary suspensions of the work. No equipment shall be parked within 30 feet (10 m) of the edge of the traveled way, or in the median, overnight, on holidays, or on weekends.
107.07 Legal Relations and Responsibilty to the Public
- 62 - c. In those cases where the ro ad is closed to public traffic, no material or equipment may be stored within the limits set forth above unless the storage site is physically inaccessible to vehicles. In those cases where the requirements of Subsection 104. 05 require that access to locations within the closed portion of the road be maintained, storage of materials and equipment within those same limits will only be allowed for hazards not deemed practical to move; and then only if adequately protected with barricades and flashing lights or ot her devices approved by the Engineer.
3.a. (1) All slow moving construction vehicles and equipment which operate on the highway at speeds 15 mph (24 km/h) lower than the posted legal minimum speed or lower than 35 mph (56 km/h) if a minimum speed is not posted then all construction equipment working within the traffic lanes or shoulders of a highway under "traffic maintained" conditions shall be equipped with rotating or flashing yellow beacons or strobe type beacons which comply with the Nebraska Rules of the Road .
2.Rotating or flashing type beacons shall be operated on all such equipment which is parked on or within the traffic lanes or shoulders of the highway under "traffic maintained" conditions.
3.Trucks and pickups traveling in the normal flow of traffic shall operate the beacons only when close to the work.
b.Rotating or flashing yellow beacons shall be provided with a minimum 50 candlepower bulb and shall be sealed so as to be dust and water tight. Strobe type beacons shall have yellow colored domes. All beacons shall be maintained in good operating condition and shall be mounted level on the equipment to prov ide for 360 degree visibility, day or night, for a minimum distance of 800 f eet (245 m). The us e of magnetically mounted beacons will be permissible if they meet requirements for visibility and level mounting as set forth above.
4.Slow moving vehicles as defined by the Nebraska Rules of the Road shall have a "slow moving emblem." This is in addition to other lighting devices required by law.
5.a. The Contractor shall furnish flaggers to direct traffic whenever construction equipment or vehicles o perate on, across, or directly adjacent to the roadway being used by the traveling public. Additionally, the Engineer may require flagging at any time to enhance the public's safety and insure the orderly movement of tra ffic through or around the work.
b.Except in the cases of incidental flagging, flagging shall be performed by flaggers trained and certified according to the Department's flagger certification program described in Section 422. Incidental flagging shall be defined as flagging required in emergency situations or in situations not expected to last for more than 15 mi nutes. In those cases where traffic is repeatedly stopped or otherwise controlled for time totaling more than 15 minutes, even though the individual activity is of less than 15 minutes duration, the requirement for a ce rtified flagger is not waived.
c.When certified flagging is necessary, the Department will pay for flagging, either at the contract price or at a negotiated pr ice if there is no price established in the contract.
6.a. When the road under construction is being used by the traveling public, special attention shall be paid to keep both the subgrade Legal Relations and Responsibilty to the Public 107.07 - 63 - and newly laid surfacing in such condition that the public can travel over the same in relative comfort and safety.
b.The Engineer may direct that surfacing be opened to traffic if shoulders are not completed within the time limits for the completion of shoulders as provided in Subsection 304.03. When surfacing is opened to traffic under such conditions, the Contractor will not be relieved of any responsibility on any portion of the work so opened to traffic until tentative acceptance has been given, except as provided in Subsection 107.14.
7.a. The Contractor shall conduc t all operations to minimize any drop-offs (abrupt changes in roadway elevation) exposed to traffic.
b.(1) Unless otherwise specif ied in the Contract, drop-offs greater than 2 inches tall at the shou lder edge that are adjacent to the traveled way shall be protected by a wedge of compacted stable material capable of carrying traffic (the wedge being 1 vertical to 3 horizontal or flatter). An edgeline warning stripe shall also be placed on the traffic side of the drop-off.
2.The Engineer shall authorize other methods, such as concrete barriers or Type II Barricades, to protect drop-offs when conditions do not allow a wedge of compacted, stable material.
3.Unless otherwise ordered by the Engineer, drop-offs up to 2 inches (50 mm) may remain exposed with appropriate warning signs alerting motorist to the condition.
c.Open trenches which span all or part of the traveled way and/or auxiliary lanes shall be no wider than 18 inches (450 mm) and must have a steel-plate cover placed and anchored over them. The plate shall have sufficient strength so as to only al low a maximum vertical deflection of 1/2 inch (12.5 mm). A wedge of suit able material sha ll create a smooth transition between the pavement and the st eel plate. Warning signs shall be used to alert motorists to the presence of the steel plates.
8.When so provided in the Contract, surfacing and base courses shall be constructed with one or more lanes of the roadway open and maintained for traffic. The Contractor shall regulate traffic flow in ac cordance with the Engineer's direction.
9.When the road is accessible to vehicles, even if closed to the traveling public, the Contractor shall use traffic control devices such as Type II barricades, or object markers to locate and mark hazards within the project limits.
10.When the project is open to public vehicular traffic and the plans call for a culvert extension with excava tion less than 15 feet (4.6 m) from the edge of the traveled lane, two doub le-sided Type III barricades shall be installed on the shoulder, one on each side of the excavation. Also, one double-sided Type III barricade with a Type A light shall be installed on the shoulder 100 feet (30 m) in advance of the excavation.
11.If a hazard exists and barricades, warning signs, or other devices are in place, then even when the co ntract is complete, these warning devices may not be removed until the Engineer has replaced the devices.
107.08 Legal Relations and Responsibilty to the Public
- 64 - 107.08 -- Use of Explosives
1.When the use of explosives is necessary for the prosecution of the work, the Contractor shall use the ut most care not to endanger life or property. All explosives shall be stored and used in compliance with Federal, State, and local laws and ordinances; a nd all storage places shall be clearly marked "DANGER-EXPLOSIVES". All permits shall be obtained by the Contractor. The Contractor shall be liable for property damage, injury, or death resulting from the use of explosives.
2.The Contractor shall notify eac h property owner and utility company having structures or facilities within 1,600 feet (500 m) of work sites where explosives may be needed. The notice shall be given sufficiently in advance to enable the owners to protect their property.
107.09 Preservation and Restorati on of Property, Trees, Monuments,
etc.
1.The Contractor shall preserve , protect, and prevent damage to all public and private property. This in cludes any underground or overhead utilities, structures, and facilities, wh ether shown in the contract or not.
2.The Contractor shall protect fr om disturbance or damage all land monuments and property markers unt il the Engineer has witnessed or otherwise referenced their location and shall not remove them until directed.
3.The Contractor shall not cut, injure, remove, or destroy any trees or shrubs unless directed by the Engineer.
4.When or where any direct or i ndirect damage or injury is done to public or private property because of any act, omission, neglect, or misconduct related to the execution or nonexecution of the work, the Contractor shall restore or replace the property to a condition similar or equal to that existing before such damage or injury was done. The restoration or replacement shall be done at no additional cost to the Department.
107.10 Archaeological and Paleontological Discoveries
1.Should the Contractor encount er any fossils, meteorites, Native American relics, or other articles of historical or geological interest, such articles shall become the property of the State. The Engineer shall be immediately notified when any such articles are uncovered, and the Contractor shall immediately suspend o perations in the area involved until such time that arrangements are made for their removal and preservation.
107.11 Hazardous Materials Discoveries
1.Should the Contractor encount er any previously unidentified suspected hazardous materials, the Engineer shall be immediately notified. The Contractor shall immediately suspend operations in the area involved until such time that arrangements ar e made for their proper treatment or removal.
107.12 Invasive Species Control
1.The Contractor shall prevent the transfer of invasive plant and animal species. The Contractor shall wash equipment at the contractor’s storage facility prior to entering the c onstruction site. The Contractor shall Legal Relations and Responsibilty to the Public 107.15 - 65 - inspect all construction equipment and remove all attached vegetation and animals prior to leaving the construction site.
107.13 Right-of-Way
1.The Department will provide all land and easements for the right-of- way shown in the contract.
107.14 Responsibility for Damage, Injury, or Other Claims
1.The Contractor shall indemnif y and save harmless the Department and all of its representatives from any and all actions, fines or claims brought because of injuries or damages to per sons or property caused by the actions or omissions of the Contractor or the Contractor's employees or agents.
2.The Contractor shall be responsible for all damage or injury to any property during the prosecut ion of the work, resulting from any act, omission, neglect, or misconduct, in the manner or method of executing said work satisfactorily, or due to the nonexecution of said work or at any time due to defective work or materials and said responsibility shall continue until the work shall have been completed and accepted.
3.Prior to beginning any work, the Contractor is required to meet with all involved local governmental entities and advise them of any intentions to use their local roads. The Contractor shall be responsible for resolving claims concerning damage to local roads caused by his/her operation.
107.15 Liability Insurance
1.Prior to execution of the cont ract, the Contractor shall obtain insurance coverage to fully protect it from loss associated with the work, and have at a minimum the insurance described below:
a.General Liability:
1.Limits of at least: (i) $ 1,000,000 per Occurrence (ii) $ 2,000,000 General Aggregate (iii) $ 2,000,000 Comple ted Operations Aggregate (iv) $ 1,000,000 Personal and Advertising Injury
2.Contractor shall be responsible for the payment of any deductibles.
3.Coverage shall be provided by a standard form Commercial General Liability Policy (CG0001 or equivalent) covering bodily injury, property damage including loss of use, and personal injury.
4.The General Aggregate shall apply on a Per Project Basis. (5) The State of Nebraska , Department of Transportation, shall be named as an Additional Insured on a primary and non-contributory basis including completed operations for three (3) years after final acceptance and payment.
6.Contractor agrees to waive its rights of recovery against the State of Nebraska, D epartment of Transportation. Waiver of Subrogation in favor of the State of Nebraska, Department of Transportation shall be added to the policy.
107.15 Legal Relations and Responsibilty to the Public
- 66 - (7) Contractual liability coverage shall be on a broad form basis and shall not be amended by any limiting endorsements.
8.If work is being performed near a railroad track, the 50' railroad right-of-way exclusion must be deleted.
9.Products and completed operations coverage in the amount provided above shall be maintain ed for the duration of the work, and shall be further maintained for a minimum period of three years after final acceptance and payment.
10.Coverage shall be included for demolition of any building or structure, collapse, explosion, blasting, excavation and damage to property below surface of ground (XCU coverage).
11.Policy shall not contain a total or absolute pollution exclusion. Coverage shall be provided for pollution exposures arising from products and completed operations as per standard CG0001 Pollution Exclusion or equivalent. If the standard pollution exclusion as provided by CG0001 has been amended, coverage must be substituted with a separate Pollution Liability policy of $1.0 million per occurrence and $2.0 million aggregate. If coverage is provided by a “claims made” form, coverage will be maintained for three years after project completion. Any applicable deductible is the responsibility of the Contractor.
b.Automobile Liability: (1) Limits of at least: (i) $ 1,000,000 CSL per Accident (2) Coverage shall apply to all Owned, Hired, and Non Owned Autos.
3.If work is being performed near a railroad track, the 50- foot railroad right-of-way exclusion must be deleted.
4.Contractor agrees to waive its rights of recovery against the State of Nebraska, D epartment of Transportation. Waiver of Subrogation in favor of the State of Nebraska, De partment of Transportation, shall be added to the policy.
5.Automobile liability coverage shall be obtained from an insurance carrier who is licensed wi th the Nebraska Department of Insurance.
c.Workers’ Compensation:
1.Employer’s Liability limits:
i.$500,000 Each Accident (ii) $500,000 Disease – Per Person (iii) $500,000 Disease – Policy Limit (2) Contractor agrees to waive its rights of recovery against the State of Nebraska, D epartment of Transportation. Waiver of Subrogation in favor of the State of Nebraska, Department of Transportation shall be added to the policy. Legal Relations and Responsibilty to the Public 107.15 - 67 - (3) Workers’ compensation coverage shall be obtained from an insurance carrier who is licensed with the Nebraska Department of Insurance.
4.Where applicable, the Longshore and Harborworkers Compensation Act endorsement shall be attached to the policy.
d.Umbrella/Excess: (1) Limits of at least: (i) $1,000,000 per Occurrence (2) Policy shall provide liability coverage in excess of the specified Employers Liability, Commercial General Liability and Automobile Liability.
3.The State of Nebraska , Department of Transportation, shall be an “Additional Insured.”
4.Contractor agrees to waive its rights of recovery against the State of Nebraska, De partment of Transportation. Waiver of subrogation in favor of the State of Nebraska, Department of Transportation shall be provided.
e.Pollution Liability:
1.When “hazardous wastes ” or contaminated or polluted materials must be handled and/or move d, the Contractor shall obtain Pollution Liability Coverage with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate.
2.If, during the course of construction, hazardous wastes, contaminated or polluted material are discovered on the project, the Contractor shall immediately cease any operation that may disturb these materials, and shall immediately notify the Engineer of all facts related to the discovery of these materials.
3.Unforeseen work related to the discovery of hazardous, contaminated or polluted materials on t he project, and the extra cost, if any, of pollution liability coverage will be handled as “extra work.”
f.Additional Requirements:
1.The Contractor shall provide and carry any additional insurance required by the Special Provisions.
2.Except as otherwise provided herein, all insurance shall be kept in full force and effect until a fter the State releases the Contractor from all obligations under the contract.
3.(i) If any of the work is sublet, equivalent insurance shall be provided by or on behalf of the subcontractor or subcontractors (at any tier) to cover all operations. (ii) Approved trucking subcontractors (at any tier) who are being utilized only for the purpose of hauling materials shall be exempt from the requirements of Paragraphs 1.a., 1.d. and 1.e. of Subsection 107.15. (iii) (a) When a Contractor or subcontractor chooses to employ a trucker by carrying the driver on his or her payroll and entering into a lease agreement for the truck, the owner-operator of the truck shall be
107.15 Legal Relations and Responsibilty to the Public
- 68 - required to comply with the Automobile Liability provisions of Paragraph 1.b. of Subsection 107.15
b.Furthermore, it shall be the duty of the Prime Contractor to ensure that the owner-ope rator of the truck has such insurance in effect. The Prime Contractor shall maintain evidence that any truckers so utilized (at any tier) are insured to the minimum limits specified and be able to furnish documentation of the same on demand.
c.Failure to ensure that insurance coverage exists and failure to maintain evidence thereof shall be considered a breach of the contract.
4.Any insurance policy shall be written by an insurance company with a Best’s Insurance Gu ide Rating of A – VII or better.
5.Prior to execution of the contract, Contractor shall provide the State of Nebraska, Department of Transportation evidence of such insurance coverage in effect in the form of an Accord (or equivalent) certificate of insurance executed by a licensed repr esentative of the participating insurer(s). Certificates of insurance shall show the Nebraska Department of Transportation as the certificate holders.
6.Failure of the owner or any other party to review, approve, and/or reject a certificate of insurance in whole or in part does not waive the requirements of this agreement.
7.The limits of coverage set forth in this document are suggested minimum limits of coverage. The suggested limits of coverage shall not be construed to be a limitation of the liability on the part of the Contractor or any of its subcontractors/tier subcontra ctors. The carrying of insurance described shall in no way be interpreted as relieving the Contractor, subcontractor, or tier subc ontractors of any responsibility or liability under the contract.
8.If there is a discrepancy of coverage between this document and any other insurance specif ication for this project, the greater limit or coverage requirement shall prevail.
107.16 Opening of Sections of the Project to Traffic
1.The Engineer may direct that all or part of the project, in which the road is closed, shall be opened to traffic during construction or at any time prior to completion of construction and before final acceptance of the work. Opening such sections will not constitu te final acceptance of the work or a waiver of any contract provisions.
2.a. In the event that the open ing of a closed road occurs during the orderly progression of the work, the section will be inspected, completed work will be tentatively accepted in writin g, and the section turned over to the Department for maintenance.
b.(1) Whenever the Department permits the public use of a highway undergoing construction, repair, or maintenance in lieu of using a detour route, the Contractor shall not be held responsible for damages to those portions of the project upon which the Department permitted public use, if such damages are the result of no proximate act or failure to act on the part of the Contractor. Legal Relations and Responsibilty to the Public 107.17 - 69 - (2) If the traveling public should cause damage to the roadway, the Contractor shall assist th e State in identifying the responsible party. The Contractor shall, at a minimum, especially if present at the time of the damage, record and furnish to the Department all pertinent information regarding the accident (who caused the damage; when the damage occurred; how the dama ge occurred; etc.).
c.The Contractor shall remain responsible for any damages which are due to or caused by defect ive work or because of noncompliance with the contract.
3.a. The Engineer may direct t hat all or part of the project be opened to traffic when:
1.The work is not progressing satisfactorily or the work has been delayed for reasons attri butable to the Contractor.
2.The Department finds it in the public interest to open the project to traffic (such as during the winter months).
b.In such cases and except for damages due to the ordinary action of traffic, the Contractor shall not be relieved of any responsibility or liability for maintaining the work. Furt hermore, the Contractor shall conduct the remaining construction operations with minimum interference to traffic and without additional compensation for any added cost of the work due to the opening of the project to traffic.
4.a. Only upon receipt of specif ic written authorization covering traffic control devices from the Engi neer may the Contractor cease to maintain warning signs, barricades, warning lights, and all other traffic control devices regardless of whether the Contractor erected the device or it was erected by a third party.
b.Warning signs, barricades, warning lights, and all other traffic control devices shall not be removed if the hazard has not been eliminated.
5.The Engineer may issue a writt en order relieving the Contractor of public liability in areas where the Co ntractor has, with the Engineer's approval, removed his/her equipment from the right-of-way and completed all work.
107.17 Contractor's Responsibility for Work
1.a. Until final written acceptance of the Contractor's work by the Engineer, the Contractor shall be respon sible for the protection, care, and upkeep of the work, all associated st orage sites, and other areas used to execute the contract. The Contractor shall take every precaution against injury or damage to the work due to t he weather or from any other cause.
b.The Contractor shall rebuild, repair, restore, and make good all injuries or damages to the work due to any cause before final acceptance at no additional cost to the Department except as follows:
1.(i) The Contractor shall not bear the expense for damage to the work resulting from natural phenomena like the weather when these phenomena are of such magnitude that th ey result in the Governor issuing a Disaster Declaration. (ii) Evacuation and remobilization of equipment, repair of Contractor’s equipment, or repair and replacement of Contractors material
107.17 Legal Relations and Responsibilty to the Public
- 70 - are not eligible for compensation. The Contractor is responsible for protecting material to be used in the work. The repair or replacement of damaged material will not be eligible for compensation when the Contractor fails to take reasonable precau tions to protect material.
2.The Contractor will not be liable for damage or injuries caused by acts of war or governmental authorities.
3.The Contractor shall not be held responsible for damage caused by the traveling public on thos e portions of the project where the Department has permitted public use of the road in lieu of using a detour route and the damage is not the result of any proximate act or failure to act on the part of the Contractor.
2.In case of suspension of the work, the Contractor shall, at no additional cost to the Department:
a.Be responsible for the work. b. Take such precautions to prevent damage to the project. c. Provide appropriate drainage and erosion control.
d.Erect any necessary temporar y structures, signs, or facilities.
e.Maintain all newly established plantings, seedings, and soddings furnished under the contract.
f.Protect new trees and ot her important vegetative growth against injury.
3.The Contractor must at all times have in place and maintain adequate erosion control measures as described in the contract.
4.If the traveling public should cause damage to the roadway, the Contractor will not be held responsib le and shall assist the State in identifying the responsible party. The Contractor shall, at a minimum, especially if present at the time of the damage, record and furnish to the Department all pertinent information regarding the accident (who caused the damage; when the damage occurred; an d how the damage occurred, etc.).
107.18 Contractor's R esponsibility for Utility Property and Services
1.The accuracy of information furnished with respect to utility owner and railroad facilities (facilities) is not guaranteed, and the Contractor must verify all such information.
2.The Contractor shall notify all utility and railroad companies who may have facilities in the work area and secure their assistance in locating and identifying all facilities.
3.The Contractor shall determine the actual locations of all underground and above ground facilities before starting any work that may cause damage to such utilities. T he Contractor must protect and keep operational all encountered utility facili ties. The Contractor shall promptly notify the facility owner of any damage to the facilities. The restoration of damaged facilities shall be done at no additional cost to the Department.
4.Where operations are adjacent to properties of railway, telegraph, telephone, power, or other utility fac ilities, work shall not begin until all arrangements necessary for their protection have been made by the Legal Relations and Responsibilty to the Public 107.20 - 71 - Contractor and the Contractor has explained the arrangements to the Engineer.
5.a. The Contractor shall cooper ate with any affected utility owner to insure that:
1.Removal and relocation of facilities progresses in a reasonable manner.
2.Relocation work is not unnecessarily duplicated. (3) Interruption of service is kept to an absolute minimum. b. In the event of a project-re lated interruption to utility services, the Contractor shall prom ptly notify the utility owner and the Engineer. The Contractor shall cooperate fully in th e prompt restoration of service.
6.Fire hydrants shall be kept visible and accessible to the Fire Department at all times. No materials sh all be stored within 15 feet (4.6 m) of any fire hydrant.
7.The Contractor shall schedule work in such a manner as to protect existing utility facilities until they ar e relocated, abandoned, or replaced. When partial grading is necessary before a utility owner can perform such work, the Contractor shall coordinate e fforts with the utility owner to provide the utility owner adequate time to plan and complete its work.
8.The Contractor shall perform all work required beyond the pole lines after the poles have been moved. If the poles rest within an area outside the right-of-way limits from which borrow is to be taken, the Contractor shall use such equipment as may be required and/or employ hand labor methods to avoid causing damage to the poles or wires.
9.Unless otherwise provided in t he contract, utility facilities shall be moved by their owners when necessary to preclude damage during construction.
107.19 Personal Liability of Public Officials
The Department's authorized representatives shall not be liable, either personally or as employees of the State, for any action taken in performance of their authorized duties.
107.20 No Waiver of Legal Rights
1.Whether before or after final acceptance and payment for the work, the Department will not be prevented from:
a.Correcting any time allowance, measurement, estimate, or certificate made before or afte r completion of the contract.
b.Showing the true character of the materials furnished or work performed and determining their conformance to the contract.
c.Recovering from the Contractor or his/her surety, or both, such damage as it may sustain by reason of the Contractor's failure to comply with the contract.
107.20 Legal Relations and Responsibilty to the Public
- 72 - 2. Neither the acceptance of the work by the Department, nor any payment for or acceptance of any or all of the work, nor any extension of time granted for completion of the work, nor any possession taken by the Department shall operate as a waiver of:
a.Any portion of the contract.
b.Any power herein reserved. c. Any right to damages. 3. A waiver of any breach of contra ct shall not be held to be a waiver of any other or subsequent breach. - 73 - SECTION 108 -- PROSECUTION AND PROGRESS
108.01 Subletting or Assigning of Contract
1.a. (1) The Contractor will not be allowed to sublet, assign, sell, transfer, or otherwise dispose of any port ion of the contract or any right, title, or interest therein; or to either lega lly or equitably assign any of the money payable under the contract or the claims without the prior written consent of the Engineer.
2.The Contractor shall perform with its own organization contract work amounting to not less than 30% (or a greater percentage if specified elsewhere in the contract) of the total original contract price.
3.Any items designated in th e contract as "specialty items" may be performed by subcontract.
4.The cost of any subcontracted "specialty items" may be deducted from the total contract cost before computing the percentage of work required to be performed by the Contractor.
5.Subcontracts, or transfer of contract, will not release the Contractor of any liability under the contract and bonds.
b.Certain items of work ma y be performed without a subcontract. A list of items not requiring a subcontr act is available from the Engineer.
2.The performance of any work by a Subcontractor before the date of written consent by the Department s hall subject both the Contractor and Subcontractor to the imposition of appr opriate sanctions by the Department.
3.a. The Contractor's request to sublet work shall be made electronically to the NDOT Construction Engineer using project management software identified by the Department. A signed subcontract agreement shall be on file in the Contractor's o ffice when the request is made. The subcontract agreement must provide that the subcontracted work will be completed according to the terms of t he contract. The required and special provisions contained in the proposal shall be included in any subcontract.
b.On Federal-aid projects, a digital copy in an acceptable format (such as *.pdf format) of the signed subcontract agreement, at any tier, shall be included with the subcontracting reques t. For projects with DBE goals, DBE subcontracts, at any tier, must in clude executed subcontracts, written agreements, or lease agreements used to meet DBE goals and show labor cost, material prices, overhead and profit.
4.Second tier subcontracts will be allowed. a. All requests for second tier subcontracting shall be submitted to, and approved by the Contractor before they are forwarded to the NDOT Construction Engineer for approval.
b.Work subcontracted by a DBE firm to a non-DBE subcontractor will not be counted toward the DBE goal.
5.All subcontract documents rela ting to the contract shall be maintained during the course of the wo rk and preserved for a period of three years after final payment. These documents shall be available for inspection by authorized representativ es of State and Federal agencies. Copies of subcontract agreements shall be furnished to the Department upon request.
Source: Nebraska Standard Specifications for Highway Construction, 2017 Edition. Pages 90–106 of 1,048.