SECTION 107: LEGAL RELATIONS, ENVIRONMENTAL REQUIREMENTS, AND RESPONSIBILITY TO THE PUBLIC 107.1 LAWS TO BE OBSERVED Before the start of Work, the Contractor shall be fully informe d and make the necessary contacts with municipal and st ate agencies concerning obligatio ns related to all applicable federal and state laws, all local laws, ordinances and regulati ons, and all orders and decrees of bodies or tribunals having ju risdiction or authority. The C ontractor, Subcontractors, and Suppliers shall at all times observe and comply with all such l aws, ordinances, regulations, orders, and decrees; and protect and indemnify the State and it s officers, employees and agents against all Claims or liability arising from or based on the violation of such laws, ordinances, regulations, orders, or decrees, by the Contractor, its officers, employees or agents, Subcontractors or Suppliers. 107.2 PERMITS, LICENSES, AND TAXES The Contractor shall procure all permits and licenses; pay char ges, fees, royalties, and appropriate taxes; and give notic es necessary and incidental to the lawful performance of the Contract. Prior to beginning Work the Contractor shall furnish to the Dep artment a written list of all permits required for the proper completion of the Contract. The list shall clearly identify the type of permit or permits that must be obtained before Work can be started. Copies of fully executed permits shall be furnished to the Department upon requ est. 107.2.1 COMPLIANCE WITH PAYMENT OF TAXES The Contractor shall pay all lawful taxes imposed by the state of New Mexico or other political entities. The successful Bidder, after receiving the Notice of Preliminar y Award of Contract, shall provide to the Department both the Bidder’s Taxation and Revenu e Department tax identification number and the Bi dder’s Motor Transportation Div ision account number. If either of these numbers is unavailable, the Contractor shall submit a letter of explanation. A Notice to Proceed will not be issued until the Contractor submits both ; numbers or a satisfactory letter of explanation. 107.2.2 GROSS RECEIPTS, INDIAN BUSINESS ACTIVITY, AND TRIBAL EM PLOYMENT RIGHTS ORGANIZATION TAXES 107.2.3 New Mexico Gross Receipts Tax The Department will pay the Contractor for applicable New Mexic o GRT and local option tax (including tax increases or decreases effective after the C ontract date), and the Contractor shall pay applicable taxes to New Mexico Taxation and Revenue D epartment. The Contractor shall show the GRT and local option tax as a separate amount ad ded to each request for payment. The Department shall be promptly reimbursed or repaid for any t ax, including GRT, that is refunded to the Contractor, including any refund received by the Contractor after final payment, to the extent such tax was paid by the Department to t he Contractor. The Contractor shall keep and maintain all documents, applications for tax refund, and forms filed with, submitted to, received from, or required by the New Mexic o Taxation and Revenue Department which relate to the payment or refunding of any tax paid pursuant to this Section Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 54 for five (5) years following final payment. All of the above M aterial shall be made available to the Department or FHWA for review, audit, inspection, and copyi ng and shall be produced, upon request, at the Department General Office, the District in which the Work was performed, or an FHWA office, as directed. 107.2.4 Tribal Taxes All Bids submitted shall exclude any tribal business tax, TERO tax, and other tax imposed by a tribal government. The De partment will pay the tax or wil l exercise its prerogative to challenge the tribal government’s authority to impose the tax. If the Department exercises its prerogative to challenge the tribal government’s authority to i mpose the tax, the Department will reimburse the C ontractor for such tax only if a court of c ompetent jurisdiction rules the tribe has authority to impose the tax. The Department will reimburse the Contractor only if the final decision of the litigation, or ot her final disposition of the l itigation, results in a determination that the tribe has jurisdiction to impose the tax. The Departm ent will be subrogated to the rights of the Contractor to Claim a refund of, or to contest, a ny such tax imposed on the Work to the extent any alleged obligation of the Contractor or the D epartment to pay such tax arises under this section or through the Contractor’s performance of t his Contract. The Department will reimburse the Contractor for payment of any Tribal Tax directly related to the performance of the Work within the Project impos ed by a tribe upon tribal verification that the tax was paid by the Contractor. 107.5 PATENTED DEVICES, MATERIALS, AND PROCESSES The Contractor’s Bid Item Unit Price shall include the cost of all royalties and costs from patents, trademarks and copyrights needed to complete the Work. If the Contractor employs any design, device, Material, or proc ess covered by letters of patent, copyright or trademark, the Contractor shall secure app roval for its use from the patentee or owner. The Contractor and the Surety shall indemni fy and save harmless the Department from all Claims (including costs, expenses, and dama ges the Department may be obligated to pay) for infringement by reason of its use. The C ontractor and Surety shall also indemnify and save harmless any affected third party and any po litical subdivision from all claims for infringement by reason of its use. 107.6 RESTORATION OF SURFACES OPENED BY PERMIT The Department reserves the right to allow utility services wit h authorized permits by the Department to enter the Project and perform the permitted Work. When directed by the Department the Contractor shall make all n ecessary repairs. If directed by the Department, the repairs will be subject to the same requirements as the original Work performed. The De partment will pay for such repa irs in accordance with Section 109.5, “Payment for Extra Work.” The Department will address time extension requests due to Work by utility services in accordance with Section 108.6 “D etermination and Extension of C ontract Time.” 107.7 FEDERAL AID PROVISIONS When the FHWA or other federal agency is obligated to reimburse the Department for all or any portion of the cost of a Project, the Contractor shall o bserve and be subject to federal law applicable to such reimbursement. In such situations, fede ral requirements supersede conflicting provisions of state and local laws, rules, or regul ations. The Work shall be subject Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 55 to inspection and oversight by th e appropriate federal agency. Such inspection or oversight shall not make the U.S. Government a party to this Contract, no r shall the U.S. Government interfere with the rights of the Contract parties. 107.8 SANITARY, HEALTH, AND SAFETY PROVISIONS The Contractor shall provide and maintain sanitary accommodatio ns for use by Contractor and Department employees, in accordance with State a nd local boards of health, or other legal entity with jurisdiction. The Contractor shall admit to the Project credentialed Inspecto rs from OSHA or other agencies responsible for health and safety administration. 107.8.1 STATE AND FEDERAL LAND-MANAGING AGENCIES While working within or adjacent to State or federal lands and forests, the Contractor shall comply with all regulations of the State or federal autho rity having jurisd iction governing the protection of these areas, and observe all sanitary laws an d regulations. The Contractor shall keep the areas in an orde rly condition, dispose of all re fuse, and obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other Structures in acco rdance with applicable federal or State regulations. 107.9 PUBLIC CONVENIENCE AND SAFETY The Contractor shall provide for the convenience and safety of the general public, for reasonable access by local residents and businesses, and for th e protection of persons and property, in accordance with Section 104.5, “Maintenance of Tra ffic.”
107.10 Railroads
If the Project affects railroad lines, the Contractor shall obs erve the requirements of the following Sections and the insurance requirements in accordance with Section 107.25, “Insurance Requirements.” For the purpose of this Section, the term “agreement” means the Contract between the Contractor and railroad that defines the rights and responsibil ities of both the Contractor and railroad for the Project. The ter m “immediate construction sit e” shall mean the area of the Project defined as having impacts on the railroad in the agreem ent.
107.10.1 Reserved
107.10.2 Notice to the Railroad
Unless otherwise stated in the Contract, the Contractor shall not begin Work in railroad- owned Right of Way before entering into an agreement with the r ailroad.
107.10.3 Cooperation with Owner of Railroad Right of Way
The Department is not liable fo r any additional costs or expens es of the Project resulting from the railroad’s reallocation of its labor forces assigned t o complete railroad Work in the event of an emergency when the owner of the railroad ROW believ es such reallocation is necessary to provide for the immediate restoration of the railr oad operations or to protect persons or property on or near any other property owned by the railroad. Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 56 107.10.4 Reserved
107.10.5 Reserved
107.10.6 Reserved
107.10.7 Reserved
107.11 Environmental and Cultural Resources Approval, Hazardous
MATERIALS The Department will obtain the en vironmental, and Cultural Reso urce approvals for the Project before construction. Th e Department will describe in t he Contract any environmental and Cultural Resource requirements developed to Protect resourc es. The Department will describe in the Contract any Hazardous Mate rials identified and the Contractor shall observe the requirements of Sections 107.1, “L AWS TO BE OBSERVED,” 107.2, “PERMITS, LICENSES, AND TAXES,” 107.8, “SANITARY, HEALTH, AND SAFETY PROVISIONS,“ and the applicable paragraphs of 107.14, “CONTRACT OR’S RESPONSIBILITY FOR ENVIRONMENTAL AND CULTURAL RESO URCE PROTECTI ON.”
107.12 Environmental, Cultural Resource and Hazardous Materials
DISCOVERIES The Contractor shall terminate operations and provide written n otification per Section 104.2.2, “Differing Site Conditions” when it discovers environm ental, Cultural Resources or Hazardous Materials not identified in the Contract. The Depart ment will coordinate with appropriate regulatory authorities during this time, the Contra ctor shall continue Work in other unaffected areas. The Project Manager shall provide written no tification to the Contractor when Work may commence in the area of terminated operations.
107.13 Contractor’S Responsibility for Damage To Environmental and
CULTURAL RESOURCES The Contractor shall restore or mitigate all damage to environm ental or Cultural Resources caused by the Contractor’s failure to abide by requir ements included in the Contract as well as those areas covered under Section 107.14, “ Contractor’s Responsibility for Environmental and Cultural Res ource Protection” at no additiona l cost to the Department. The Department, in coordination with regulatory authorities, will d etermine the extent of restoration or mitigation. The Contractor shall pay any fine imposed on th e Department by a regulatory agency for a regulatory violation caused by the Contractor. Th e Project Manager may suspend the Work in areas where environmental or Cultural Resou rce violations occur.
107.14 Contractor’S Responsibility for Environmental and Cultur Al
RESOURCE PROTECTION
107.14.1 Environmental and Cultural Resource Studies and Approv als
The Contractor shall obtain new certifications for any Contract or located activity outside the Project limits or for expans ions or additions to existing p reviously certified areas. If the Contractor purchases Material fr om a Material source establishe d for another Project by another Contractor working under Contract to the Department, an d if the Material source must be expanded beyond the area where environmental and Cultural Re source approvals have previously been obtained pursuant to Section 107.14.1, “Environ mental and Cultural Resource Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 57 Studies and Approvals,” then th e requirements for environmental Acceptability shall apply to the additional area and requirements of Section 107.14.1, “Envi ronmental and Cultural Resource Studies and Approvals” must be completed by the Contra ctor. Before beginning soil-disturbing activities (in accordance with Section 106.1, “Contractor- Furnished Aggregate and Borrow Sources”), the Contractor shall notify the Project Manager in writing of the proposed studies to be performed. After the Pro ject Manager’s concurrence with the Contractor’s studies the Contractor shall employ an Environ mental Specialist and a Cultural Resource Professional t o conduct the approved studies. The Contractor shall ensure that the studies meet the standards of the Department, the Sta te historic preservation officer, and any State, tribal, or federal land-managing agency or entit y with jurisdiction. The Contractor shall ensure that the resource studies are in accord ance with the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.), th e National Historic Preservation Act (16 U.S.C. § 470 et seq.), and the New Mexico Cultural Properties Act (NMSA 1978, § 18-6-1 to 18-6-17), or any other successor statut es. The studies may extend, but are not limited to, the following locations:
1.Camp sites; 2. Plant sites;
3.Crusher sites;
4.Stockpile sites; 5. Equipment yards;
6.Borrow Pits;
7.Surfacing Pits; and, 8. Water sources. The Contractor shall obtain the environmental and Cultural Reso urce approvals regardless of land ownership. For the environmental approval, the Contractor shall use the Department-furnished checklist Ca tegorical Exclusion form (or e quivalent form furnished by the Department), which shall be signed by the Contractor and th e Environmental Specialist. For Cultural Resource reports, the Contractor shall use the sta ndard site investigation forms approved by the New Mexico Historic Preservation Division and the New Mexico Cultural Properties Review Committee. The Contractor may use previously-completed environmental and C ultural Resource studies, provided all other require ments of this Section are me t. The Contractor shall submit the documentation prepared for the environmental and Cultural Resource approvals to the Project Manager. Contractor located activities on state land or privately owned land may take 45 Days or more for appro val after the Contractor delivers the resource studies to the Project Manager. Contract or located activities on federal land have no defined period for approval. The NMDOT will not a pprove requests for additional Contract Time or compensation related to Contractor Located Act ivities. The Contractor shall comply with all conditions and commitments for protection of resources contained in resource agency requirements and in the environmental and Cultural Resource approvals. The environmental approval is the FHWA-app roved checklist categorical exclusion, or its equivalent. T he Cultural Resource approval i s the concurrence letter signed by the State historic preservation officer, or its equivalent. The Contractor shall repair at the Contractor’s expense all dam age to environmental or Cultural Resources caused by the Contractor’s failure to meet t he requirements for Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 58 environmental acceptability or abide by Department directives i ssued to protect resources identified during the environmental and Cultural Resource evalu ation. The nature and extent of such repairs shall be determi ned after consultations between the Contractor, Department representatives, and the regulatory authorities with management jurisdiction over the subject resources.
107.14.1 1 Commercial Material Sources
Environmental Acceptability requirements do not apply to Comme rcial Material Sources. Upon request of the Project Manager, the Contractor shall submi t copies of its Commercial Sources Air Quality Permit, Gr oundwater Permits, and Business L icense.
107.14.2 Parking and Cleaning of Equipment
For Projects that have received environmental and Cultural Reso urce approvals through programmatic categorical exclusi ons (e.g., pavement preservatio n and rehabilitation, guardrail replacements, Bridge deck replac ements, signalization upgrades, etc.), environmental and Cultural Resource studies will not have been completed outside the existing paved areas by the Department. These Projects will be noted as such in the Co ntract. For these Projects, the Contractor shall take special care when parking and cleaning Eq uipment, as outlined in the following requirement. The intent of the following requirement is to ensure the protec tion of sensitive environmental and Cultural Resources that may be present within the Right of Way and to encourage the Contractor to avoid damaging these resources when parking and cleaning Equipment. The Contractor shall ensure that parking and cleani ng of Equipment within the Right of Way does not damage environmental and Cultural Resourc e s , i n o n e ( 1 ) o r a combination of the following manners:
1.Park and clean Equipment in pr eviously disturbed areas only;
2.Identify all parking and cleaning locations in previously un disturbed areas, prior to construction, and complete the environmental and Cultural Resou rce approvals as described in Section 107.14.1, “Environmental and Cultural Reso urce Studies and Approvals”; or,
3.Park and clean Equipment in previously undisturbed areas wit hout completing the Environmental and Cultural Resour ce approvals as described in S ection 107.14.1, “Environmental and Cultural Resou rce Studies and Approvals,” an d assume all risk and liability for any damage to environmental or Cultural Resou rces resulting from these actions.
107.14.3 Clean Water Act
The Contractor shall comply with the New Mexico Water Quality A ct (NMSA 1978, § 74- 6-1 et seq.) and applicable permi ts and regulations in accordan ce with the federal Clean Water Act (33 USC § 1251 et seq.). The Department will apply for and obtain permits and certificat ions required for construction involving “waters of the United States” as defined b y t h e U . S . A r m y C o r p s o f Engineers. The Contractor shall comply with the terms of the p ermit obtained and shall be fully liable for consequences resul ting from its failure to com ply. The Department will provide a copy of the permits and certifications in the Contract.
107.14.4 Minimization of Soil Disturbance
Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 59 The Contractor shall minimize damage to or removal of vegetatio n and trees, except as approved in Section 104.6, “Rights in and Use of Materials Foun d on the Work.” The Contractor shall not clear, grub, disturb, or excavate land bey ond what is authorized by the Contract. The Contractor shall remediate or replace vegetation due to an unauthorized clearing or damage, at no addi tional cost to the Department.
107.14.5 Air Quality Requirements and Dust Abatement
The Contractor shall perform dust abatement on the Project and as directed by the Project Manager. The Contractor shall ensure any operations wh ich produce particulate matter comply with State and federal air quality regulations, a s administered by the Air Quality Bureau of the NMED, applicable local air quality regulations, a nd the federal Clean Air Act (42 USC § 7401 et seq.). 107.14.6 Noise Abatement The Contractor shall not operate Equipment that emits noise abo ve 70 dbA, measured at a distance of 50 ft, in urban or populated rural areas during t he hours specified in the Contract, and shall comply with County or municipal ordinances if they ar e more stringent than the requirements in the Contract.
107.14.7 Disposal of Materials
Unless otherwise specified in the Contract, the Contractor shal l be solely responsible for disposal of Materials. In the disposal of Materials the Contr actor shall comply with all federal, state and local regulations. The Contractor shall not dispose of Materials within the Project limits without written approval from the Project Manager.
107.14.8 Disposal of Other Materials and Debris
The Contractor shall move items designated for removal without salvage, unsuitable construction Materials, and debr is from clearing and grubbing t o an environmentally suitable disposal site secured and coordinated with the appropriate regu latory agencies. The Contractor shall not place any items in wetland areas or areas that may impact endangered species or Cultural Resources. The Contractor shall obtain an Environmental and Cultural Resource approval in accordance with Section 107.14.1, “Environ mental and Cultural Resource Studies and Approvals.”
107.14.9 Prime Coat, Tack Coat, and Soil Sterilants
The Contractor shall not contaminate soils outside the Roadway Prism when applying prime coat, tack coat and soil sterilants. The Contractor shal l not contaminate arroyos, irrigation supplies (acequias and ditches), wetlands, water imp oundments, and live streams.
107.14.10 Noxious Weed Prevention
To avoid the spread of noxious weeds, all prime and Subcontrac tor construction Equipment (including but not limited to trucks, excavators, bul ldozers, loaders, scrapers, backhoes, trailers, tractors, hydro-seeders, drill-seeders, str aw-blasters, compost-spreaders, bobcats, and disks) shall be pressure-washed to remove all visi ble mud, soil, and debris prior to entering the Project limits.
107.15 Hazardous Materials
Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 60 The Department will describe in the Contract, all known Hazard ous Materials within the Project limits.
107.15.1 Hazardous Material Discoveries
During construction, should Ma terial be encountered which is o r the Contractor believes to be hazardous or contaminated, the Contractor shall immediate ly: terminate operations in the immediate area, notify the Project Manager in writing per S ection 104.2.2, “Differing Site Conditions,” and the appropriate regulatory authority, and cont inue Work in other areas. The Project Manager, Environmental Geology Bureau Manager, and envi ronmental regulatory authorities shall investigate to determine the nature and exten t of the Hazardous Material or contamination within the Right of Way. If the Contractor is no t qualified, as determined by experience and/or licensure, to undertake a clean-up action, th e Contractor shall retain the services of a qualified firm. Any adjustments shall be made in accordance with Section 109.5, “Payment for Changes, Differing Si te Conditions and Extra Work. ” Should the Contractor fail to notify the Project Manager of Ha zardous Material discoveries and/or fail to respond in accordance with all appli cable environmental regulations or any part of these Specifications; the Contractor shall pay, at no cost to the Department, any fine or penalty imposed for regulatory violations.
107.16 Prevention of Forest and Grass Fires
The Contractor shall prevent forest and grass fires. The Contr actor shall notify appropriate officials at the earliest possible moment of the lo cation and extent of any fire. The Contractor shall comply with fire regulations applicable to the area of Work, and furnish and maintain firefighting Equipment and tools required in the Contr act. The Contractor shall suspend fire-hazardous operations when necessary at the directi on of the Project Manager. If performing Work within or adjacent to State or National Fore sts, the Contractor shall comply with all regulations of the USDA Forest Service, State F orestry Division, New Mexico Department of Energy, Minerals and Natural Resources, or other authority having jurisdiction, governing the protection of fores ts and the performance of Work within forests. The Contractor shall keep the areas in an orderly condition, dispos e of all refuse, and obtain permits for the construction of f ield offices and other structu res in accordance with the requirements of the Forest Supervisor. The Contractor shall take all reasonable precautions to prevent and suppress forest fires and shall require employees and Subcontractors to take all reas onable measures within their power to prevent and suppress forest fires. The Contractor sha ll make every possible effort to notify a Forest official at the earliest possible moment of the location and extent of a fire.
107.17 Use of Explosives
The Contractor shall exercise extreme care when use of explosiv es is necessary for the prosecution of the Work. The Contractor shall be responsible f or all damage resulting from the use of explosives. The Contractor shall not endanger life or p roperty, including new Work. The Contractor shall use, handle, load, transport, and store ex plosives and blasting agents in accordance with applicable laws and ordinances, as well as titl e 29 CFR Part 1926 Safety and Health Regulations for Constructi on (OSHA) and 30 CFR Part 15.3 2 whichever is more restrictive. The Contractor sha ll clearly mark explosives and store them securely. If no local laws or ordinances apply, the Contractor shall store explosives not closer than 600 feet from Roads, buildings, camping areas, or places of human occupancy. Unless otherwise required by an agreement between the Contractor and public utility or ow ner of railroad ROW, the Contractor shall provide five (5) Days’ notice to any public ut ility and owner of railroad ROW Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 61 having Structures or facilities near the Project, of the intent ion to use explosives, so that they may take steps to protect their property before detonation.
107.18 Protection and Restoration of Public and Private Propert Y
The Contractor shall preserve public and private property inclu ding land, governmental survey monuments, and property markers from disturbance or dama ge until the Project Manager has witnessed or otherwise referenced their location, a nd directed their removal. The Contractor shall restore public or private property damaged and pay fines directly or indirectly caused by the Contractor through any act, omission, neglect, or misconduct in the execution of the Work, or by defe ctive Work or Materials, or by non-prosecution of the Work. The Contractor shall return such property to a condition equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwi se restoring as directed by the Project Manager. The Contractor shall maintain responsibility for damage until the Work is completed and Accepted. The Contractor shall provide the Department with the informati on to update the control sheet records once a reference mark has been reestablished by the Contractor.
107.18.1 Public and Private Reference Marks
Unless otherwise specified in the Plans, the Contractor shall not disturb or damage any public or private reference marks. If the Contractor directly or indirectly by any act, omission, neglect, or misconduct in the exec ution of the Work disturbs or damages public or private reference marks the Contractor shall be solely responsible for any restoration of the reference marks in accordance with Section 801, “Construction Staking by the Contractor.” If the restoration of the public or private reference mark is done imp roperly then the Contractor shall be solely responsible for a fine of $2,000.00 per improper refe rence mark. Delays, costs or impacts associated with the improper restoration of a reference mark shall be the sole responsibility of the Contractor.
107.19 Responsibility for Third Party Claims and Duty To Defend
The Contractor shall indemnify and hold harmless the Department a n d i t s o f f i c e r s , employees and agents from and against any and all Claims and su its, liability, damages, losses or expenses, including attorney fees and costs, to the e xtent that they arise out of or are in any way connected with any act or omission of the Contra ctor, or its officers, employees or agents. The Contractor agrees, at its own expense, and upon written request by the Department, to defend any suit, action or demand brought agains t the Department on any Claim or demand covered herein. The Contractor shall establish a local contact number (with are a code) for filing Claims, and clearly post the number. In addition, post the name of the Contractor and telephone number at each approach and departure to the Project. The Cont ractor shall ensure that construction vehicles (Contract or, Subcontractor, and privately owned) working on the Project have clean, unobstructed license plates, and shall mark vehicle s legibly with the appropriate company name. The Contractor shall assign an individual by the date of the Pr e-Construction Conference, readily available during normal Working hours, to respond to Cl aims from the public for losses alleged to have occurred within the Project, whether arising fr om Contractor or Subcontractor action or inaction. The Contractor shall provide claimants wit h a written outline of the Contractor’s Claims procedure, along with a written copy of the Contractor’s name, address, and telephone number together with the name and title of the in dividual assigned to handle Claims from the public and provide a copy of the same to the Pr oject Manager. The Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 62 Contractor shall maintain a status report of Claims filed, incl uding the name, address, and telephone number of the claimant, the nature of the Claim, pert inent findings regarding the Claim, and a statement regarding the resolution of the Claim. The Contractor shall provide the status report to the Project Manager upon request.
107.20 Contractor’S Responsibility To Protect The Work
Until Final Acceptance of the Project by the Project Manager, t he Contractor shall have the charge and care thereof and shall take every precaution aga inst injury or damage to any part thereof, by the action of the elements or from other cause s, whether arising from the execution or from the non-execution of the Work. The Contracto r shall rebuild, repair, restore, and make good all injuries or damages to portions of the Work o ccasioned by the above causes before Final Acceptance and shall bear the expense there of except as provided in Section 104.5, “Maintenance of Traffic” and Section 105.18.1, “ Partial Acceptance.” Should the Contractor be Delayed in the prosecution or completi on of the Work by Contractors on contiguous Projects, Acts of God such as fire, f lood, earthquake, tornado, or other cataclysmic phenomena of nature, epidemic, quarantine res triction, strike, freight embargo, acts of public enemy, acts of governmental authorities or railroads other than the Department, or documented national unavailability of constructi on Material, for which the Contractor is in no way responsible, then the Contractor may be entitled to an extension of Contract Time per Section 108.6, “Determination and Extension o f Contract Time,” but is not entitled to additional compensati on or damages for such Delay. For physical damage to the Work resulting from the above un foreseeable causes beyond the c ontrol of and without the fault or negligence of the Contractor, the Contractor may be pa id pursuant to Section 109, “Measurement and Payment.” The Contractor shall not be entitle d to non-allowable damages per Section 109.11, “Compens ation for Claims.” In case of suspension of Work per section 105.8.1, “Project Man ager Authority,” the Contractor shall be responsible, subject to the provisions of S ection 104.5, “Maintenance of Traffic,” for the Project and s hall take such precautions as ma y be necessary to prevent damage to the Project.
107.21 Contractor’S Responsibility for Utility Property and Ser Vices
The Contractor shall not begin Work in areas close to railroad, telecommunication, or utility company Right of Way or facilities, or other property w here damage from the Work might result in expense, loss, or inconvenience to the owner, until a rrangements are made with the Project Manager and the owner of the property for the protectio n of such property or facilities. The Contractor shall promptly notify the Project Manager and af fected utility or railroad owners of any interruption to services resulting from exposure, lack of support, or breakage. The Contractor shall provide c ontinuous repair Work to restore water service if interrupted. The Contractor shall not perform Work near fire hydrants until provision for service has been approved by the local fire authority.
107.22 Furnishing Right of Way
The Department will secure nece ssary Right of Way before constr uction, except as noted in the Contract.
107.23 Personal Liability of Public Officials
Department employees shall bear no personal liability in carryi ng out the provisions of the Contract or in exercising powers or authority granted to them b y the Contract, it being Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 63 understood that in such matters they act solely as agents and r epresentatives of the Department.
107.24 No Third-Party Liability
The Department and the Contractor specifically agree that the p rovisions of this Contract do not make anyone, including any Subcontractor or Materials Su pplier, a third-party beneficiary or authorize anyone not a party to this Contract to maintain an action for damages under this Contract.
107.25 Insurance Requirements
The Contractor shall procure and maintain at no cost to the Dep artment insurance as detailed below, using an insurance company authorized to do bus iness in New Mexico. Insurance shall cover operations under the Contract, whether pe rformed by the Contractor, the Contractor’s agents or employees, or Subcontractors. The Contr actor shall keep insurance in full force and effect for the entire period of the Work, up to and including Final Acceptance, and the removal of Equipment and employees, agents and Subcontr actors. All insurance required in this Section shall be procured from insurance or in demnity companies with an A.M. Best Company financial strength rating level of A- or better, C lass VII or better, unless otherwise approved in writing by the Department. In no event s hall the Department approve the use of an insurance or indemnity company with an A.M. Best Company financial strength rating level of B or worse.
107.25.1 Liability Insurance
1.The Contractor shall obtain General Liability (Bodily Injury Liability and Property Damage Liability) insurance coverage applicable in full to the subject Project in the following minimum amounts:
a.Personal and Bodily Injury Liability: $1,000,000.00 each per son; $2,000,000.00 each occurrence (annual aggregate); and,
b.Property Damage Liability: $2,000,000.00 each occurrence; (a nnual aggregate);
2.The insurance coverage shall be documented on a Comprehensiv e General Liability form or Commercial General Liability form, which must include t he following:
a.Coverage for liability arising out of the operation of indep endent Contractors;
b.Completed Operations Coverage; and,
c.Attachment of the Broad Form Comprehensive General Liability Endorsement;
3.If the Work includes the use of explosives, the Contractor’s insurance must include coverage for injury to or destruction of property arising out o f blasting or explosion;
4.If the Contract includes Work next to an existing building o r structure, the Contractor’s insurance shall include coverage for injury to or destruction of property arising from the collapse of or st ructural injury to buildings or Structures due to the following:
a.Excavation, including borrowing, filling, or backfilling in connection therewith;
b.Tunneling and cofferdam or caisson Work; and,
c.Moving, shoring, underpinning, razing, or demolition of buil dings or Structures, or removal or rebuilding of s tructural supports thereof; and,
5.Coverage must include injury to or destruction of property a rising out of damage to wires, conduits, pipes, mains, sewers or other similar property or any apparatus in connection therewith below the surface of the ground, if such i njury or destruction is Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 64 caused by or occurs during the use of mechanical Equipment for the purpose of excavating, digging, or drilling.
107.25.2 Automobile Liability Insurance
The Contractor shall provide or ensure that all vehicles used i n performance of the Contract have liability insuranc e. The Contract or is not respo nsible for liability insurance for the Department or its agents. The Contractor shall provide lim its of liability for automobile liability insurance in the following amounts:
1.Personal and Bodily Injury Liability: $1,000,000.00 each pe rson; $2,000,000.00 each occurrence; (annual aggregate); and,
2.Property Damage Liability: $2,000,000.00 each occurrence; ( annual aggregate).
107.25.3 Worker’s Compensation Insurance
The Contractor shall carry worker’s compensation insurance and otherwise fully comply with the New Mexico Worker’s Compensation Act (NMSA 1978, § 52- 1-1 et seq.) and the New Mexico Occupational Disease Dis ablement Law (NMSA 1978, § 52-3- 1 et seq.).
107.25.4 Department as Additional Insured
The Contactor shall name the Department and any third party so designated in the Contract as an additional named insured on the comprehensive ge neral liability form or commercial general liability form furnished by the Contractor i n accordance with Section
107.25 1, “Liability Insurance.” The certificate of insurance shall state that the coverage
provided under the policy is primary over any other valid and c ollectible insurance. The additional insured endorsement shall conform to the most curren t version of the Insurance Services Office’s CG 2010 or equi valent, Additional Insured End orsement Form. The Contractor shall provide to the Department a copy of the Contra ctor’s standard commercial general liability policy showing the Additional Insured Endorse ment before the Department issues a Notice to Proceed.
107.25.5 Certificate of Insurance
The Contractor shall provide ev idence of insurance coverage con forming to these Specifications with a certific ate of insurance executed on the form provided by the Department, to be made part of the Contract. The certificate s hall indicate compliance with these Specifications and shall certify that the coverage shall not be changed, canceled, or allowed to lapse without giving the Department 30 Days written notice. The Contractor shall provide a certificate of insurance to the Department on renewal of a policy or policies as necessary during the term of the Contract. The Department shal l not issue a Notice to Proceed until the Contractor meets these requirements.
107.25.6 Umbrella Coverage
The insurance limits cited in thi s Section are minimum limits. The Department does not intend that these Specificati ons define what constitutes adequa te insurance coverage for the individual Contractor. The Department will recognize excess co verage (Umbrella) as meeting the insurance requirements of Section 107.25.1, “Liability Insu rance,” if the limits of the Umbrella coverage meet the indi vidual requirements of this Sect ion.
107.25.7 Optimal Insurance
Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 65 If required by the Contract, Contractor shall procure and maint ain form and types of bailee theft insurance such as, but not limited to, builder’s r isk insurance, Contractor’s Equipment insurance, and rigger’s liability property insurance. If so required, the Contractor shall provide bailee theft insurance in an amount necessary to protect the Department against Claims, losses, and expenses a rising from the damage, disappear ance, or destruction of property of others in the care, custody, or control of the Cont ractor, including property of others being worked upon by the Contractor, its agents, employe es or Subcontractors.
107.25.8 Railroad Insurance
If the Work affects railroad property, in addition to the above requirements, unless otherwise specified in the Contract the Contractor shall obtain at its own cost a railroad protective liability policy in the name of the owner of the rai lroad Right of Way or railroad facilities involved. In addition, on those rails used by the N ational Railroad Passenger Corporation (NRPC), the Contractor shall obtain a railroad prot ective liability policy in the name of the NRPC. Railroad liability insurance shall be in compliance with 23 CFR 646A. These limits of liability apply to the coverage as set forth in AASHTO’s Railro ad Protective Liability Endorsement form, subject to t he terms, conditions, and exclusi ons found in the form. The policy must afford coverage as provided in the standard Railroa d Protective Liability Endorsement.
107.26 No Waiver of Legal Rights
Upon completion of the Work the Department will pay the final p ayment voucher. Payment of the final payment voucher shall not preclude the Dep artment from correcting any measurement, estimate, or certificate made before or after comp letion of the Contract, nor from recovering from the Contractor or surety or both, overpaym ents sustained because the Contractor failed to fulfill the obligations under the Contract . A waiver on the part of the Department of any breach of any part of the Contract shall not be held to be a waiver of any other subsequent breach. The lack of discovery or rejection of a defect shall not preclu de, nor obligate the Department to Accept the defect. The Contractor, without prejudice to the terms of the Contract, shall be liable to the Department for latent defects, fraud, or such gross mistakes as may amount to fraud, and for warranty and guaranty.
107.27 Contractor’S Responsibility To The Traveling Public
The Contractor shall minimize hazards to the traveling public i n the Construction Zone from the commencement of the Work until Final Acceptance. Mini mizing hazards shall include:
1.Keep Equipment, Materials, and workers out of the travel lan es;
2.Remove hazardous constructi on debris deposited within the Pr oject limits;
3.Inspect and repair the travel l anes (Necessary repairs of da mage not caused by the Contractor will be paid for in accordance with Section 109.5, “ Payment For Changes, Differing Site Conditions, and Extra Work.”); and,
4.Remove obstacles deposited by the public as they transit the Project. Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 66 The Contractor shall immediately correct hazards reported by Pr oject inspections, Department employees, or the public. The Contractor shall main tain and publicly post a 24- hour contact number to initiate action quickly.
107.28 Contractor Records
The Contractor, Subcontractors and all Suppliers shall keep and maintain all documents in a useable format, including communications, books, papers, r ecords, files, accounts, tax records, cost records, reports, schedules, Bid documents with b ackup data, including electronic data, and all other Material relating to the Contrac t, Project, Contract compliance, or any Claim for five (5) years following Physical Completion of t he Work. Unless otherwise specified in the Contract all of the above Material shall be ma de available to the Department for review, audit, inspection and copying and shall be produced , upon request by the Assistant District Engineer – Construction, at the Department General Off ice, the District in which the Work was performed, or an FHWA office, as directed. The Contra ctor shall insert the above requirement in each subcontract and shall also include in all s ubcontracts a clause requiring Subcontractors to include the above requirement in any lower-ti er subcontract. The Contractor’s failure to maintain and timely provide all request ed documents to the Department waives any Claim the basis of wh ich could have, either in whole or in part, been documented or rebutted by such documents. Resource Loading documents, financial statements provided by th e Contractor, and Escrowed Bid Documents which have been visibly marked by the Co ntractor as “Confidential Trade Secrets” shall be deemed confidential as trade secrets an d not subject to inspection pursuant to the Inspection of Pub lic Records Act, NMSA 1978, § 14-2-4. Such information shall not be disclosed by the Department in response to a reque st made pursuant to the Inspection of Public Records A ct without the written permission of the Contractor. Such documents may be disclosed to the Department, including any Ins pector, Project Superintendent, Project Manager, Cl aim consultant, investigator , or testifying or consulting expert, as necessary to perform t heir duties or as otherwise re quired by law.
107.29 Assigning of Contract
The Contractor may not assign the Contract or assign or delegat e any contractual obligation or duty without the prior written consent of the Dep artment and the Surety. Contractor may not make any assignment, in connection with the Contract, including assignment of any payment due Contractor or any Claim, for the benefit of any creditor.
107.30 Severability and Contract Interpretation
If any provision of this Contract is held to be invalid or unen forceable, the remaining provisions, or the application of such provision to either part y, shall remain in full force and effect and, if possible, the rights and obligations of the part ies are to be construed and enforced as if the Contract did not contain that term. If any provision of the Contract is found to be superseded by a ny applicable state or federal law or regulation or court order, in whole or in part, then both parties shall be relieved of all obligations under that provision only to the extent nece ssary to comply with the superseding law or ruling, provided however, that the remaining provisions of the Contract, or portions thereof, shall be enforced to the fullest extent permi tted by law. The Contractor agrees that any rule of construction to the effe ct that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Contract. Section 107: Legal Relations, Environmenta l Requirements, and Responsibilit y to the Public Page 67 107.31 CHOICE OF LAW This Contract is governed by and construed in accordance with t he laws of the State of New Mexico. Section 108: Prosecution and Progress Page 68
Source: New Mexico Standard Specifications for Highway and Bridge Construction, 2019 Edition. Pages 0–0 of 974.