104Scope Of Work

104.1 Intent of The Contract

The intent of the Contract is to provide for the construction a nd completion of the Work to the satisfaction of the Department. The Contractor shall furni sh experienced supervision and labor and all Materials, Equipment, tools, transportation and s upplies required to complete the Work in accordance with the Plans , Specifications and terms of the Contract. Unless otherwise specified in the Contract, the Contractor is v ested with the discretion and is wholly and solely respons ible for selecting and managing the means and methods for performing the Work.

104.1.1 Contract Modifications

No modifications, limitations, waivers or discharge of the Con tract or any of its terms shall bind the Department unless made in a written Change Order signe d by the Project Manager. A course of performance or course of dealing on this Contract o r any other contract between the Department and a Contractor shall not constitute a modifica tion or waiver of the Contract and shall not give rise to any Claim including any cause of act ion based upon promissory estoppel, estoppel, waiver, or detrimental reliance.

104.2 Extra Work

The Department reserves the right to modify the Contract at any time. Such revisions shall neither invalidate the Contract nor release the Surety. The Contractor agrees to complete the Contract as revised. The Contractor shall perform Work at the Department’s written direction defining the scope of the Work and in accorda nce with the Specifications. The Contractor shall provide to the Project Manager its proposa l associated with the Work before starting the Work. The submission of the proposal shall not be considered Accepted by the Department until the Acceptance of the cost pro posal is in writing from the Department. If the proposal is Accepted by the Department, the n the Department will issue a Change Order and allow the Contractor three (3) Days to review and sign the Change Order. If, after the expiration of three (3) Days, the Contractor has failed to sign the Change Order the Department may process the Change Order unilaterally.

104.2.1 Significant Changes In The Character of The Work

The Project Manager reserves the right to make, in writing, at any time during the Work, modifications in quantity and alterations to the Work as are ne cessary to satisfactorily complete the Project. “Significant change” applies only to mod ifications or alterations that: 1. Materially changes, in kind or nature, the character of the Work including the Critical Path from that which was previ ously involved or included in the original proposed construction. When the character of the Work is materially chan ged in kind or nature then the Project Manager and the Contractor shall agree upon th e adjustment prior to the Contractor’s performance of the Work. If an agreement is reached, the Project Manager will make an adjustment to the Contract which excludes anticipated profit. If an agreement is not reached, the Project Manager will direct the Contractor to perform the Work. The Project Manager and the Contractor will t rack the costs in accordance with Section 109.6, “Force Account;” 2. A Major Item of Work, as defined elsewhere in the Contract, has increased in excess of 125 percent or decreased below 75 percent of the orig inal contract quantity. The Project Manager and the Contractor may negotiate adjustments to the Section 104: S c o p e o f W o r k Page 29 Contract when it is discovered that a Major Contract Item of Wo rk, as defined elsewhere in the Contract, has increased in excess of 125 perce nt or decreased below 75 percent of the original contract quantity. Any allowan ce for an increase in quantity shall apply only to that portion in excess of 125 perc ent of original contract item quantity. In the case of a decrease below 75 percent, the allowance will apply to the actual amount of work per formed. For quantities below 75 percent, before an adjustment is made, the Contractor shall provide documents, inc luding invoices, to the Project Manager justifying the requested adjustment price. If the final quantities are reestablished to be within the thresholds of 75% to 125% of the original item quantity then the original bid item price applies; and, 3. Affects Work performed under a Subcontract, as solely determ ined by the Project Manager. The Project Manager will make adjustments if the Contr actor demonstrates that the change advers ely affects the Subcontracto r’s Work. The Department shall not consider c ustomary increases or decrea ses in quantities necessary to complete the Work changed by the Contractor’s sche dule of operations, the Contractor’s planning of the Work, or unscheduled mobilizations .

104.2.2 Differing Site Conditions

The Contractor shall carefully study and compare the foundation reports and geotechnical reports and Contract documents and shall immediate ly report to the Project Manager any error, inconsistency, or omission that it discovers . If the Contractor does not understand information in the foundation report and geotechnica l report, it shall immediately seek clarification from the Project Manager. The Contractor an d the Project Manager shall provide, immediately upon discovery written notice of the foll owing conditions encountered on the Project during the progress of the Work: 1. Present but not visible phy sical conditions differing materi ally from those shown in the Contract; or, 2. Unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recogniz ed as inherent in the Work. The Project Manager will decide, within a, two (2) Working Days , after written notification, whether the conditions materially differ and cause an increase or decrease in the cost or time required to perform the Work. The Project Manager will notify the Contractor of this decision and the Contractor shall not proceed with Extra Work unt il the Project Manager provides direction. The Project Manager will adjust the Contract for differing site conditions in accordance with Section 109.5, “Payment for Changes, Differing Site Condit ions, and Extra Work,” and will include the costs of Delays but exclude anticipated profit in a ccordance with Section 109.11, “Compensation for Claims.” The Department may grant time exten sions only to the extent that the activities on the Critical Path of the Baseline Schedule in effect at the time of the Delay are impacted. No Contract adjustment which results in a benefit to the Contractor will be allowed if a differing site condition could have been discovered or ant icipated by the Contractor through the exercise of Pre-Bid Due Diligence.

104.2.3 Department Ordered Work

The Department shall pay for Department ordered Work in accorda nce with Section109.5, “Payment for Extra Work”. Section 104: S c o p e o f W o r k Page 30 The Department may grant time extensions only to the extent tha t the activities on the Critical Path of the Baseline Schedule in effect at the time of the Delay are impacted.

104.3 Reserved

104.4 Reserved

104.5 Maintenance of Traffic

The Contractor shall furnish traffic control devices, take pro tective and safety measures, and complete the Work. If the Contractor fails to do so, the P roject Manager will notify the Contractor in writing of the deficiency and the Contractor shal l take corrective action within the time frame specified by the Project Manager. Failure by the Co ntractor to take the corrective action as directed by the Project Manager shall result in the D epartment assessing to the Contractor the incurred costs for the corrections plus an addit ional 10% for administrative costs. The Contractor shall not endanger the traveling public when mov ing Equipment on or across the ROW and Roadway. The Contractor’s Equipment shall e nter and leave the ROW and Roadway in the direction of the Traveled Way, except with t he written approval of the Project Manager. The Project Manager may direct the Contractor to maintain the p avement surface. The Department will pay for this Work in accordance with Section 10 9.5, “Payment For Changes, Differing Site Conditions, and Extra Work.” The Department is responsible for snow removal on sections of R oadway open to the traveling public. The Project Manager will coordinate snow rem oval with the Contractor and the maintenance patrol. The Contractor shall furnish warning devices, take protective a nd safety measures, and complete Shoulder Work, drainage Structures, or other features of the Work. If the Contractor fails to do so, the Project Manager will notify the Contractor in writing of the deficiency and the Contractor shall take corrective action within the time frame s pecified by the Project Manager. The Contractor shall provide reasonable vehicular and pedestria n ingress and egress to adjoining properties during the duration of the Contract. The Contractor shall advise and schedule access modifications with local business owners and re sidences and the Project Manager at least 24 hours in advance. The Contractor shall not open partially completed sections of t he Traveled Way unless directed or approved by the Project Manager. If the Traveled W ay is opened at the Contractor’s request, the Contractor remains liable for costs a ssociated with the opening until Final Acceptance of the Projec t. The Project Manager will prov ide written instructions approving any sections which are to be opened. Such an opening shall not constitute a full or partial Acceptance of the Work or a waiver of any Contract prov isions.

104.6 Rights In and Use of Materials Found On The Work

The Contractor may use Materials found in the excavation for c ompleting Pay Items other than the Work in Standard Specification Section 203, “Excavatio n, Borrow, and Embankment.” Payment will be made for both the excavation of such Materials at the corresponding Contract Unit Price and for the Pay Item for which the excavated Materia l is used. Section 104: S c o p e o f W o r k Page 31 If the excavated Material wou ld have been used to construct Em bankments or Bridge approaches or for other purposes, any of which would have been required to complete the Contract, the Contractor shall replace the excavated Material w ith Acceptable Material at no additional cost to the Department. The Department will not cha rge the Contractor for the use of the excavated Material. The Contractor shall obtain written authorization from the Project Manager before excavating Material that is within the Right of Way but outside the grading limits, as shown by the slope and grade lines. Prior to granti ng approval, the Project Manager will verify that the requirements of Section 107, “Legal Relati ons, Environmental Requirements, and Responsibility to the Public” have been met. If not previously cleared environmentally, meeting these requirements will be the respons ibility of the Contractor. Unless otherwise provided, the Contractor may temporarily use t he Material from existing Structures in the erection of a new Structure but shall not, wi thout the approval of the Project Manager, cut or otherwise damage such Materials.

104.7 Final Cleanup

Pits located on state or federal land are governed by the appro priate requirements of their agency. The requirements of this section do not apply to a commercial source. Before Final Acceptance all areas occupied by the Contractor or in connection with the Work shall be cleaned of all Deleterious Material, rubbish, exc ess Materials, temporary Structures and Equipment, and all parts of the Work shall be le ft in a condition Acceptable to the Project Manager or otherwise required by the Contract. To avoid the requirement of removal of Equipment from private property before Final Accepta nce, the Contractor shall make appropriate arrangements with private property owners and provide documentation of the arrangement to the Project Manager. The Contractor shall not allow Borrow Pits and Surfacing Pits t o change the general pattern of existing drainage. Unl ess Borrow Pits or Surfacing Pits are suitable to develop as ponds or lakes and the property owner has notified the Departme nt in writing that such development is planned, the Contract or shall where practicable leave all pits well drained. The Contractor shall, when excavation is complete, contour grad e pits, except quarry pits, to blend with the natural topography of the surrounding a rea or in accordance with the Contract or agreements with the property owners.

104.8 Value Engineering Cost Proposal (Vecp)

The Department under no circumstances will reimburse the Contra ctor for the costs of developing the VECP that is rejected or is not Accepted by the Department. The Contractor shall submit its VECP on the Department provided form only. Ex empted from Value Engineering Cost Proposals are mi x designs and traffic control. Any decision about whether to Accept a VECP shall be in the sole discretion of the Departm ent. A VECP shall not be considered Accepted until the Department approves a Change Orde r implementing the VECP. VECPs are reviewed on a case by case basis and apply only to th e ongoing Contracts referenced in the VECP proposal and become the property of the Department upon approval of the Change Order. VECPs shall contain no restrictions impos ed by the Contractor on their use or disclosure. The Department has the right to use, duplic ate and disclose in whole or in part any data necessary for the u tilization of the VECP. The D epartment retains the right to utilize any accepted proposal or part thereof on other Projects without obligation or compensation to the Contractor. The Contractor’s share of the VECP is fifty percent (50%) of th e net savings. In no event shall the Contractor be entitled to an extension of Contract Ti me for the Department’s Section 104: S c o p e o f W o r k Page 32 consideration a VECP, the refusal to accept or approve such a p roposal, or any other matter connected with a VECP. The Department will rely exclusive ly upon the accuracy of the e ngineering data upon which the VECP is based and will not be required to perform add itional investigations, crosschecks, or site examinati ons. The Department’s Acceptance or adoption of a VECP shall not be construed to alleviate or reduce the Contractor’s full a nd absolute liability if the implementation of the proposal fa ils to satisfactorily perform. Section 105: Control of Work Page 33