106.01 36 106 CONTROL OF MATERIAL
106.01 Source of Supply and Quality Requirements. Notify the Engineer of
the proposed sources of supply before the delivery of materials. The Engineer may approve materials at the source of supply before delivery. If the proposed sources of supply cannot produce the specified material, then furnish materials from alternate sources without adjustment to the Contract Price or Completion Date.
106.02 Samples, Tests, and Cited Specifications. The Engineer will inspect
and determine whether the materials comply with the specified requirements before they are incorporated into the Work. The Department may sample and test materials or require certifications. Unless specified, the Department will pay for and test materials according to AASHTO, ASTM, or the methods on file in the office of the Engineer. A qualified representative of the Department will take test samples according to Departmental procedures. Read any reference to other specifications or testing method s to mean the version in effect at the pertinent Project Advertisement date. All materials being used are subject to inspection, test, or rejection at any time before their incorporation into the Work. The Department will furnish copies of the tests to the Contractor’s representative upon request. Furnish the required samples and specified material certifications at no expense to the Department other than provided in 109.03. Equip all transports and distributors hauling asphalt material with an approved submerged asphalt material sampling device.
106.03 Small Quantities and Materials for Temporary Application. The
Engineer may accept small quantities and materials for temporary application that are not intended for permanent incorporation in the Work. The Engineer may accept these small quantities and materials for temporary application in either of the following cases:
A.Where similar materials from the same source have recently been approved.
B.Where the materials, in the judgment of the Engineer, will serve the intended purpose.
106.04 Plant Sampling and Testing Plan. The Engineer may undertake the
inspection of materials at the source. In the event plant sampling and testing is undertaken, the Contractor and its material provider shall meet the followi ng conditions:
A.Cooperate and assist the Engineer with the inspection of materials. Provide full entry to the Engineer at all times to such parts of the plant as may concern the manufacture or production of the materials being furnished. Agree to all documentation and inspection requirements of the TE -24 plant sampling and testing plan.
B.If required by the Engineer, arrange for the inspector to use an approved building on site. The building should be located near the plant and independent of any buildin g used by the material producer.
C.Maintain and provide adequate safety measures at the plant at all times. 106.05 37 The Department reserves the right to retest all materials that have been tested and accepted at the source of supply before their incorporation int o the Work. After the approved materials have been delivered to the site, the Department may reject all materials that when retested do not meet the requirements of the Contract Documents.
106.05 Storage of Materials. Properly store all materials to ensure the
preservation of their quality and fitness for the Work. The Engineer may re -inspect stored materials before their incorporation into the Work, even though they were approved before storage. Locate stored materials to facilitate their prompt inspection . The Contractor may use approved portions of the Project Right -of-Way for storage; however, if any additional space is required, the Contractor must provide it at the Contractor’s expense. Do not use private property for storage purposes without written p ermission from the owner or lessee. If requested by the Engineer, furnish copies of the written permission. Restore all storage sites to their original condition at no expense to the Department. The Contractor and property owner will hold the Department ha rmless from claims that may arise from their contract or permission statement. This subsection does not apply to the stripping and storing of topsoil, or to other materials salvaged from the Work. Areas used to Store Materials shall conform to 107.10.
106.06 Handling Materials. Handle all materials in such manner as to preserve
their quality and fitness for the Work. Transport aggregates from the storage site to the project site in vehicles constructed to prevent loss or segregation of materials after loadi ng and measuring. Ensure that there are no inconsistencies in the quantities of materials loaded for delivery and the quantities actually received at the place of operations.
106.07 Unacceptable Materials. Unacceptable materials are all materials not
conforming to the requirements of these Specifications at the time they are used. Immediately remove all unacceptable materials from the project site unless otherwise instructed by the DCA. The DCA will determine if unacceptance materials may remain confor ming to Supplement 1102. The DCA must approve the use of previously identified unacceptable materials that have been corrected or repaired. If the Contractor fails to comply immediately with any order of the DCA made under the provisions of this subsection , the DCA will have authority to remove and replace defective materials and to deduct the cost of removal and replacement from any monies due or to become due to the Contractor.
106.08 Department -Furnished Material. Furnish all materials required to
comple te the Work, except when otherwise provided in the Proposal. The Department will deliver the Department -furnished materials to the Contractor at the points specified in the Contract Documents. Include the cost of handling and placing of all Department -furnished materials in the contract price for the contract item for which they are used. The Department will hold the Contractor responsible for all material upon delivery of the materials to the Project site. The Department will make deductions from any monie s due the Contractor to make good any shortages and deficiencies, 106.09 38 for any cause whatsoever, and for any damage that may occur after such delivery, and for any demurrage charges.
106.09 Steel and Iron Products Made in the United States. Furnish steel and
iron products that are made in the United States according to the applicable provisions of Federal regulations stated in 23 CFR 635.410 and State of Ohio laws, and ORC 153.011 and 5525.21. “United States” means the United States of America and includes all t erritory, continental or insular, subject to the jurisdiction of the United States.
A.Federal Requirements. All steel or iron products incorporated permanently into the Work must be made of steel or iron produced in the United States and all subsequent ma nufacturing must be performed in the United States. Manufacturing is any process that modifies the chemical content; physical shape or size; or final finish of a product. Manufacturing begins with the initial melting and mixing, and continues through the b ending and coating stages. If a domestic product is taken out of the United States for any process, it becomes a foreign source material.
B.State Requirements. All steel products used in the Work for load -bearing structural purposes must be made from stee l produced in the United States. State requirements do not apply to iron.
C.Applications.
1.When the Work is federally funded both the Federal and State requirements apply. This includes all portions of the Work, including portions that are not federally funded.
2.When the Work has no Federal funds, only the State requirements apply.
D.Exceptions. The Director may grant specific written permission to use foreign steel or iron products in bridge construction and foreign iron products in any type of const ruction. The Director may grant such exceptions under either of the following conditions:
1.The cost of products to be used does not exceed 0.1 percent of the total Contract cost, or $2,500, whichever is greater. The cost is the value of the product as de livered to the project.
2.The specified products are not produced in the United States in sufficient quantity or otherwise are not reasonably available to meet the requirements of the Contract Documents. The Director may require the Contractor to obtain letters from three different suppliers documenting the unavailability of a product from a domestic source, if the shortage is not previously established.
E.Proof of Domestic Origin. Furnish documentation to the Engineer showing the domestic origin of all steel and iron products covered by this section, before they are incorporated into the Work. Products without a traceable domestic origin will be treate d as a non -domestic product .
106.10 Qualified Products List. The Department may use Qualified Product
Lists (QPL) for approval of manufactured materials. The Office of Materials Management (OMM) will maintain the QPL and the standard procedure for the QPL process. Inclusion of a material onto the QPL will be determined by OMM with 106.11 39 support from other Department offices. To be kept on the QPL, manufacturers must recertify their material according to the Department’s standard procedure by January 1 of each yea r. When a material requires QPL acceptance, only provide materials listed on the QPL at the time of delivery of the material to the project. Provide the Engineer documentation according to the Department’s standard procedure that, at the time of delivery, the material provided is on the QPL.
106.11 Maritime Transportation . On federal -aid projects, ensure that project -
specific materials or equipment transported by ocean vessel are in compliance with 46 CFR 381 and the Cargo Preference Act. Transport at least 50% of any equipment or materials on privately owned United States -flag commercial vessels, if available . 107 LEGAL RELATIONS AND RESPONSIBILITY TO PU BLIC
107.01 Laws to be Observed. Stay fully informed of all Federal and State laws,
all local laws, ordinances, and regulations, and all orders and decrees of authorities having any jurisdiction or authority that affect those engaged or employed on the Work, or that affect the conduct of the Work. Observe and comply with all such laws, ordinances, regul ations, orders, and decrees. The Contractor shall protect and indemnify the State and its representatives against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by the Contrac tor or the Contractor’s employees, subcontractors, or agents. The Contractor, under Title VI of the Civil Rights Act and related statutes, agrees that in the hiring of employees for the performance of Work under this Contract or any subcontract hereunder, neither the Contractor, the subcontractor, nor any person acting on behalf of such Contractor or subcontractor shall, by reasons of race, religion, color, sex, national origin, disability or age, discriminate against any citizen of the United States in the employment of labor or workers, who is qualified and available to perform the Work to which the employment relates. Neither the Contractor, the subcontractor, nor any person on their behalf shall, in any manner, discriminate against or intimidate any empl oyee hired for the performance of Work under this Contract on account of race, religion, color, sex, national origin, disability or age. Comply with OAC -4123:1 -3, entitled “Specific Safety Requirements of the Industrial Commission of Ohio Relating to Const ruction,” as amended, and with the Federal Occupational Safety and Health Act of 1970 and Code of Federal Regulations, Title 29, Chapter XVII, Part 1926 and as amended.
107.02 Permits, Licenses, and Taxes. Procure all permits and licenses; pay all
charges, fees, and taxes; and provide all notices necessary and incidental to the due and lawful prosecution of the Work.
107.03 Patented Devices, Materials, and Processes. Before employing any
design, device, material, or process covered by letters of patent or c opyright, provide for its use by suitable legal agreement with the patentee or owner. The Contractor and the Surety shall indemnify and save harmless the State, any affected third party, or political subdivision from any and all claims for infringement of patented design, 107.04 40 device, material, process, or any trademark or copyright, and shall indemnify the State for any costs, expenses, and damages that it may be obliged to pay by reason of any infringement, at any time during the prosecution or after the compl etion of the Work.
107.04 Restoration of Surfaces Opened by Permit. The Director may grant to
the municipality in which the Work is performed a reservation of rights to construct or reconstruct any utility service in the highway or street or to grant permi ts for same, at any time. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit. Allow parties bearing such permits, and only those parties, to make openings in the highway. When ordered by the Engineer, make i n an acceptable manner all necessary repairs due to such openings. The necessary repairs will be paid for as Extra Work, or as provided in the Contract Documents, and will be subject to the same conditions as the original Work performed.
107.05 Federal -Aid Provisions. When the United States Government pays for
all or any portion of the Project’s cost, the Work is subject to the inspection of the appropriate Federal agency. Such inspections will not make the Federal Government a party to this Contract. The inspections will in no way interfere with the rights of either party to the Contract.
107.06 Sanitary Provisions. Provide and maintain sanitary accommodations in
a neat condition for the use of employees and Department representatives that comply with the requirements of the State and local Boards of Health, or of other authorities having jurisdiction over the Project.
107.07 Public Convenience and Safety. At all times, ensure that the Work
interferes as little as possible with the traffic. Provide for the safety and convenience of the general public and the residents along the highway and the protection of persons and property. Do not close any highways or streets unless specifically allowed by the Contract.
107.08 Bridges Over Navigable Waters. Conduct all Work on navigable
waters so that it does not interfere with free navigation of the waterways and that it does not alter the existing navigable depths, except as allowed by permit issued by the U.S. Coast Guard. Work within the flood plain of a navigable s tream may require a permit from the U.S. Army Corps of Engineers. If an U.S. Army Corps of Engineers permit is required, provide all documentation submitted to obtain the permit(s) and a copy of the permit(s) to the Department.
107.09 Use of Explosives. When the use of explosives is necessary for the
prosecution of the Work, exercise the utmost care not to endanger life or property, including new Work. The Contractor is responsible for all damage resulting from the use of explosives. Obtain written permissi on to perform in -stream blasting from the Chief of the Division of Wildlife, Ohio DNR according to ORC 1533.58. Provide the Engineer with all documentation submitted to obtain this permit and with a copy of the permit. 107.10 41 The Contractor agrees, warrants, and certifies that it will observe State laws and local ordinances and regulations relative to the use and storing of explosives kept on the Project site. Perform all blasting operations according to Item 208.
107.10 Protection and Restoration of Property. The Contractor is responsible
for the preservation of all public and private property impacted by the Contractor’s operations. The Contractor is responsible for all damage or injury to property, during the prosecution of the Work, resulting from any act, omis sion, neglect, defective work or materials, or misconduct in the manner or method of executing the Work. The Contractor will remain responsible for all damage and injury to property until the Project is accepted under 109.12, except for portions of the Wor k accepted under 109.11. If the Contractor causes any direct or indirect damage or injury to public or private property by any act, omission, neglect, or misconduct in the execution or the non-execution of the Work, then it must restore, at its own expense , the property to a condition similar or equal to that existing before the damage or injury. If mail boxes, road, or street name signs and supports interfere with the Work, then remove and erect them in a temporary location during construction in a manner satisfactory to and as directed by the Engineer. After completion of the Work and before final acceptance of the Project, erect the mailboxes, road, or street name signs and supports in their permanent locations according to the plans unless otherwise directed by the Engineer. Consider the cost of this Work as incidental to the affected items. Cooperate with the Engineer in protecting and preserving survey monuments that are affected by the Work as required by ORC 5519.05. At the beginning of the Work, verify the position of all survey monuments in the area to be improved, according to 623. If survey monuments not shown in the Contract Documents are unexpectedly encountered, then protect, reference, and preserve them in the same manner as survey monuments th at are shown in the Contract Documents. Do not create staging areas, store materials and equipment, or borrow or waste materials in areas labeled as an environmental resources areas in the Contract Documents. All properties to be utilized by the Contractor outside the project Work Limits must be cleared for all environmental resource impacts prior to the beginning of work. Environmental resources include but may not be limited to:
1.Cultural Resources
a.Buildings, structures, objects, and sites eligible f or or listed on the National Register of Historic Places
b.Historic or prehistoric human remains, cemeteries, and/or burial sites (pursuant with ORC 2909.05 and 2927.11
2.Ecological Resources
a.Wetlands 107.11 42 b. Streams
c.Wooded areas with trees to be remov ed in excess of 8 inches diameter at breast height
3.Public Lands
a.Lands meeting the criteria of 49 U.S.C. 303, 23 CFR 771.I35: 4(f).
b.Lands meeting the criteria of 16 U.S.C. 4601 -4, 36 CFR59.1: 6(f).
4.FEMA Mapped 100 year Floodplains
5.Hazardous Waste Areas Except for locations utilized specifically for:
1.Parking of equipment between workdays for maintenance type projects:
2.Reuse of Clean Hard Fill as described in CA -EW-20 (ODOT Beneficial Reuse Form). Prior to transferring Clean Hard Fill from the project, fully execute form CA -EW-20 and provide appropriate documentation to the Engineer as described for each reuse option. All areas proposed to be utilized by the Contractor outside the project construction limits and not described above shal l be reviewed by environmental Contractor (s) that are prequalified by the Department for each environmental resource. Exception (1.) noted above only applies to projects with “maintenance” in the project description. Have the consultant(s) certify that the proposed site to be utilized for the Contractor will not impact:
1.Cultural Resources
2.Ecological Resources
3.Public Lands
4.FEMA Mapped 100 year Floodplains
5.Hazardous Waste Areas Provide all documentation and the consultant certification to the Office of Environmental Services with a copy to the Engineer. Should the areas proposed for use by the Contractor outside the project right of way limits contain environmental resources the Contractor is responsible to the Department for all environmen tal clearances and permits prior to the beginning of work.
107.11 Contractor’s Use of the Project Right -of-Way or Other Department -
Owned Property.
A.Disposal of Waste Material and Construction Debris and Excavation of Borrow on the Project Right -of-Way or on Other Department -Owned Property. Dispose of waste material according to 105.16 and dispose of construction debris according to 105.17. In addition to the rights granted in 104.03, the Contractor’s use of the Project Right -of-Way or other Department -owned 107.11 43 property for the disposal of waste material and construction debris and excavation of borrow material is restricted as follows:
1.If the Contract Documents identify locations for the disposal of waste material and construction debris or excavation of b orrow material within the Project Right -of-Way or on other Department -owned property, then only perform these operations in these designated locations.
2.If the Contract Documents do not identify locations for the disposal of waste material and constructi on debris or excavation of borrow material within the Project Right -of-Way or on other Department -owned property, then do not Bid assuming that the Department will make such locations available. If the Contractor’s request to use locations within the Proje ct Right -of-Way or on other Department -owned property is approved by the Engineer, then the Department may allow the Contractor to dispose of waste material and construction debris or excavate borrow material for a fee of $0.50 per cubic yard.
B.Contracto r’s Use of Portable Plants Within the Project Right -of-Way or on Other Department -Owned Property. The Contractor’s use of portable plants within the Project Right -of-Way or on other Department -owned property is limited as follows:
1.If the Contract Docume nts identify locations within the Project Right -of- Way or on other Department -owned property to place a portable plant, then only place a portable plant in these designated locations subject to the requirements of
107.11 C.
2.If the Contract Documents do not identify locations within the Project Right -of-Way or on other Department -owned property to place a portable plant, then do not bid assuming that the Department will make such locations available. However, the Department will consider a Value Engineeri ng Change Proposal (VECP) for the placement of a portable plant within the Project Right -of-Way or on other Department -owned property and, if accepted, may allow the use of a particular site on its property subject to the requirements of 107.11.C.
C.Place ment of a Portable Plant within the Project Right -of-Way or on Other Department -Owned Property. To place a portable plant within the Project Right -of-Way or on other Department -owned property, comply with the following requirements:
1.Local noise ordinanc es.
2.Obtain any necessary EPA permits for the operation of the plant. Provide the Department with a copy of the information submitted to obtain the permit and a copy of the permit.
3.Provide the Engineer written certification that the plant will supply material only for the Project for which it was approved. Do not use the plant to supply any other project or to sell materials commercially.
4.Submit a traffic control plan to the Engineer for approval that details the anticipated truck movements and prov ides acceptable protection, warning, and guidance to motorists, pedestrians, and the workers. 107.12 44 D. Equipment Storage and Staging. The Contractor may use, fee -free, any portion of the Project within the Project Right -of-Way for staging, equipment storage, or an office site with the approval of the Engineer, provided such usages do not interfere with the Work and are not prohibited by the Contract Documents. Do not bid in anticipation of using any properties within the Project Right -of-Way or Department -owned p roperty outside the Project Right -of-Way for equipment storage or staging.
E.Equipment Removal and Site Restoration. Remove all Contractor equipment and completely restore all utilized sites used as required by 104.04 before Final Acceptance as provided i n 109.12.
107.12 Responsibility for Damage Claims and Liability Insurance. The
Contractor shall indemnify and save harmless the State and all of its representatives, municipalities, counties, public utilities, any affected railroad or railway company, and any fee owner from whom a temporary Right -of-Way was acquired for the Project from all suits, actions, claims, damages, or costs of any character brought on account of any injuries or damages sustained by any person or property on account of any negligent act or omission by the Contractor or its subcontractors or agents in the prosecution or safeguarding of the Work. The Contractor shall procure and maintain insurance for liability for damages imposed by law and assumed under this Contract, of the kinds and in the amounts hereinafter provided from insurance companies authorized to do business in the State by the Ohio Department of Insurance. The cost of insurance is incidental to all contract items. Before the execution of the Contract by the Director, furni sh to the Department a certificate or certificates of insurance in the form satisfactory to the Department demonstrating compliance with this subsection. Provide an insurance certificate or certificates that show that the Contractor’s liability and auto po licies coverage are not reduced, restricted, or canceled until 30 days written notice has been given to the Department by the insurer. Mail all certificates and notices to: Administrator, Office of Contracts, Ohio Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223. Upon request, the Contractor shall furnish the Department with a certified copy of each policy, including the provisions establishing premiums. The types and minimum limits of insurance are as follows:
A.Workers’ Compensa tion Insurance. Comply with all provisions of the laws and rules of the Ohio Bureau of Workers’ Compensation covering all operations under Contract with the Department whether performed by it or its subcontractors. In addition, if a portion of the Work is performed from a barge or ship or requires unloading material from a barge or ship on a navigable waterway of the United States, it is the responsibility of the Contractor to arrange coverage for that portion of the Work under the Longshore and Harborworke rs’ Compensation Act [33 USC Section 901 et seq. ] and the Jones Act [5 USC Section 751 et seq. ] and provide proof of coverage to the Department.
B.Commercial General Liability Insurance. The minimum limits for liability insurance are as follows: General Aggregate Limit $2,000,000 107.12 45 Products - Completed Operations Aggregate Limit $2,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Obtain the above minimum coverages through primary insurance or any combinatio n of primary and umbrella insurance. In addition, the Department will require the General Aggregate Limit on a per project basis. Ensure that the Commercial General Liability Insurance policy names the State of Ohio, Department of Transportation, its offic ers, agents, and employees as additional insureds with all rights to due notices in the manner set out above. Obtain Explosion, Collapse, and Underground (XCU) coverage at the same limits as the commercial general liability insurance policy. In addition, i f blasting is to be performed, obtain XCU coverage providing a minimum Aggregate Limit of $5,000,000 and Each Occurrence Limit of $1,000,000. Submit proof of insurance, endorsements, and attachments to the Engineer prior to starting the Work.
C.Comprehens ive Automobile Liability Insurance. The Comprehensive Automobile Liability policy shall cover owned, non -owned, and hired vehicles with minimum limits as follows: Bodily Injury and Property Damage Liability Limit Each Occurrence $1,000,000 Insurance co verage in the minimum amounts set forth neither relieves the Contractor from liability in excess of such coverage, nor precludes the Department from taking such other actions as are available to it under any other provisions of this Contract or otherwise i n law. Clearly set forth all exclusions and deductible clauses in all proof of insurance submitted to the Department. The Contractor is responsible for the deductible limit of the policy and all exclusions consistent with the risks it assumes under this Contract and as imposed by law. If the Contractor provides evidence of insurance in the form of certificates of insurance, valid for a period of time less than the period during which the Contractor is required by terms of this Contract, then the Department will accept the certificates, but the Contractor is obligated to renew its insurance policies as necessary. Provide new certificates of insurance from time to time, so that the Department is continuously in possession of evidence that the Contractor’s insu rance is according to the foregoing provisions. If the Contractor fails or refuses to renew its insurance policies or the policies are canceled or terminated, or if aggregate limits have been impaired by claims so that the amount available is under the min imum aggregate required, or modified so that the insurance does not meet the requirements of 107.12.C, the Department may refuse to make payment of any further monies due under this Contract or refuse to make payment of monies due or coming due under other contracts between the Contractor and the Department. The Department in its sole discretion may use monies retained pursuant to this subsection to renew or increase the Contractor’s insurance as necessary for the periods and amounts referred to above. Alternatively, 107.13 46 should the Contractor fail to comply with these requirements, the Department may default the Contractor and call upon the Contractor’s Surety to remedy any deficiencies. During any period when the required insurance is not in effect, the Enginee r may suspend performance of the Contract. If the Contract is so suspended, the Contractor is not entitled to additional compensation or an extension of time on account thereof. Nothing in the Contract Documents and insurance requirements is intended to create in the public or any member thereof a third party beneficiary hereunder, nor is any term and condition or other provision of the Contract intended to establish a standard of care owed to the public or any member thereof.
107.13 Reporting, Investigatin g, and Resolving Motorist Damage Claims.
The Contractor and the Department are required to report, investigate, and resolve motorist damage claims according to 107.10 and 107.12 and as follows. When a motorist reports damage to its vehicle either verbally or in writing to the Contractor, the Contractor shall within 3 days make and file a written report to the District’s construction office In the event that the Department directly receives the motorist’s claim, the Department shall within 3 days send the cl aim report to the Contractor. In the event the Contractor has not agreed to resolve the motorist claim, the District’s construction office shall forward the report to the Department’s Court of Claims Coordinator who, as a co -insured party, may then contact the Contractor’s insurance company and request that the insurance company investigate and resolve the claim. If the Contractor or their insurance company does not resolve the claim in a timely manner, the Department may advise the motorist of the option o f pursuing the claim in the Ohio Court of Claims. In the event of a lawsuit filed against the Department in the Ohio Court of Claims by the motorist, the Department, as co -insured party, may request the Contractor’s insurance company to defend this lawsuit and hold the Department harmless according to 107.12. If the lawsuit claim amount is $2,500 or less and the Court of Claims Coordinator determines that the Contractor is responsible for the claimed damages then the Department's Court of Claims Coordinator may, after notifying the Contractor, determine that it would be in the best interest of the Department to settle the claim. Any settlement amount including court costs may be assessed to the Contractor and deducted from the project. The Engineer will noti fy the Contractor prior to executing the deduction. The Contractor or the Contractor's insurance company may within 14 days appeal the assessment decision of the Court of Claims Coordinator to the District Construction Engineer. The decision of the DCA wil l be made within 14 days and will be administratively final.
107.14 Opening Sections of Project to Traffic. The Engineer may order the
Contractor to open a section of the Work to the safe use of traffic at any time. The Department will make an adjustment according 108.06 and 109.05 to compensate the Contractor for the added costs and delay, if any, resulting from such an opening.
107.15 Contractor’s Responsibility for Work. Until the Final Inspector
accepts the Work during the Final Inspection according to 109.12.A, the Contractor is responsible for the Project and will take every precaution against injury or damage 107.16 47 to any part thereof by the action of the elements or from any other cause, whether arising from the execution or from the non -execution of the Work. Rebuild, repair, restore, and make good all injuries or damages to any portion of the Work occasioned by any of the above causes before final acceptance. Bear the expense of the repairs except when damage to the Work was due to unforeseeable causes beyond the control of and without the fault or negligence of the Contractor. Unforeseeable causes include but are not restricted to; (a) earthquake, floods, tornados, high winds, lightning or other catastrophes proclaimed a disaster or emergency, (b) slides , (c) civil disturbances, or (d) governmental acts. In the event that the Engineer determines that damage to completed permanent items of Work results from traffic using a substantially completed section of Roadway, the Department may compensate the Contra ctor for repair of the damage as authorized by Change Order. To receive compensation for the damage the Contractor must meet the following requirements.
A.Notify the Engineer of each occurrence of damage in writing within 10 Calendar Days.
B.Contact the local law enforcement agency to determine if the accident was investigated and a report filed. If an accident report was filed, obtain the report and notify the motorist, and copy their insurance company, via registered mail that the motorist is responsibl e for the cost of damage repairs. If the motorist does not respond within 30 days, make a second attempt to contact the motorist and copy the insurance company via registered mail.
C.If no response is received from the motorist or insurance company within 30 days, send a letter to the Engineer within eighteen months of the event and include documentation of good faith effort to seek recovery from responsible parties.
D.The Department will make an adjustment according to 108.06 and 109.05 to compensate the Contractor for the added costs and delays, if any, resulting from repairing damaged Work. If there is no accident report on file and no means of identifying the guilty motorist, the Contractor will likewise be compensated to repair the damaged Work. In ca se of suspension of Work by the Contractor or under the provisions of 105.01, the Contractor is responsible for the Project and shall take necessary precautions to prevent damage to the Project; provide for normal drainage; and erect any necessary temporar y structures, signs, or other facilities at its expense. During such period of suspension of Work, properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seedings, and soddings furnished un der the Contract, and take adequate precautions to protect new tree growth and other important vegetative growth against injury. The Engineer may direct the Contractor to remove graffiti any time during the Work. The Department will make an adjustment acco rding to 108.06 and 109.05 to compensate the Contractor for the added costs and delays, if any, resulting from all ordered graffiti removal.
107.16 Contractor’s Responsibility for Utility Property and Services. At
points where the Contractor’s operations a re adjacent to properties of railway, cable, 107.17 48 telephone, and power companies, or are adjacent to other property, and any damage to their property may result in considerable expense, loss, or inconvenience, do not commence with the operation until all arrang ements necessary for the protection of the property have been made. Cooperate with the owners of any underground or overhead utility lines in their removal and rearrangement operations to ensure these operations progress in a reasonable manner, that duplic ation of rearrangement Work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted. In the event interruption to underground or overhead utility services results from an accidental breakage or from be ing exposed or unsupported, immediately alert the occupants of nearby premises as to any emergency that the accidental breakage may create at or near such premises. Then notify the Engineer and the owner or operator of the utility facility of the disruptio n and cooperate with the said utility owner or operator in the restoration of service. If water service is interrupted, perform the repair work continuously until the service is restored unless the repair work is performed by the local governmental authori ty. Do not begin Work around fire hydrants until the local fire authority approves provisions for continued service.
107.17 Furnishing Right -of-Way. The Department is responsible for securing
all necessary Right -of-Way in advance of construction. The Bid D ocuments will indicate any exceptions. The Department will notify all prospective Bidders in writing before the date scheduled for receipt of Bids regarding the specific dates certain parcels will be made available to the Contractor.
107.18 No Waiver of Le gal Rights. The following Department actions do not
waive the Department’s rights or powers under the Contract, or any right to damages herein provided:
A.Inspection by the Engineer or by any of Engineer’s duly authorized representatives.
B.Any order, measurements, or certificate by the Director, or Department representatives.
C.Any order by the Director or Department representatives for the payments of money or the withholding of money.
D.Acceptance of any Work.
E.Any extension of time.
F.Any posse ssion taken by the State or its duly authorized representatives. The Department will not consider any waiver of a breach of this Contract to be a waiver of any other subsequent breach.
107.19 Environmental Protection. Comply with all Federal, State, and lo cal
laws and regulations controlling pollution of the environment. Avoid polluting streams, lakes, ponds, and reservoirs with fuels, oils, bitumens, chemicals, sediments, or other harmful materials, and avoid polluting the atmosphere with particulate and g aseous matter. 107.19 49 By execution of this contract, the Contractor, will be deemed to have stipulated as follows:
A.That any facility that is or will be utilized in the performance of this contract, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub .L. 91 -604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Pub.L. 92 -500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20.
B.That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of t he Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder.
C.That the firm shall promptly notify the Department of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities.
D.That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. Fording of streams is prohibited. Causeways for stream and river crossings or for Work below a bridge are permitted provided:
A.The causeway complies with the requirements of the 404 Permit the Department obtained for the Project.
B.The Contractor obtains a 404 Permit from the U.S. Army Corps of Engineers if the Department has not obtain ed such a permit. Obtain the 404 Permit prior to beginning construction of the causeway. The Department does not guarantee that the Contractor will be able to obtain a 404 Permit. Comply with all current provisions of the Ohio Water Pollution Control Act (OWPCA), (ORC Chapter 6111). The Department will obtain a storm water permit under the OWPCA provisions when the plan work acreage requires a permit. Apply for a permit to cover operations outside the Project limits shown on the plans as required by the OWP CA provisions. When the Department has not applied for a permit on the Project and a permit is required under the provisions of the OWPCA because of the total area of the Contractor’s work, apply for, obtain, and comply with the required permit for both th e Work within Project limits and the Contractor’s work. The Department has obtained the required permits from the U.S. Army Corps of Engineers and Ohio EPA for Work in the “Waters of the United States” and isolated wetlands under ORC Chapter 6111. Comply w ith the requirements of these permits. When equipment is working next to a stream, lake, pond, or reservoir, appropriate spill response equipment is required. Do not stockpile fine material next to a stream, lake, pond, or reservoir. 107.20 50 Take precautions to av oid demolition debris and discharges associated with the excavation and hauling of material from entering the stream. Remove any material that does fall into the stream as soon as possible. When excavating in or adjacent to streams, separate such areas fro m the main stream by a dike or barrier to keep sediment from entering the stream. Take care during the construction and removal of such barriers to minimize sediment entering the stream. Contain, collect, characterize and legally dispose of all liquid waste and sludge generated during the work. Do not mix waste s with storm water. Do not discharge any liquid waste without the appropriate regulatory permits. Manage liquid waste and sludge in accordance with ORC Chapter 6111 and all other laws, regulations, permits and local ordinances relating to this waste. Liquid w aste management is incidental to the Work unless otherwise specified in the contract. Control the fugitive dust generated by the Work according to OAC -3745 -17- 07(B), OAC -3745 -17-08, OAC -3745 -15-07, and OAC -3745 -17-03 and local ordinances and regulations. Prior to the initiation of abrasive coating removal, pavement cutting or any other construction operation that generates dust, demonstrate to the Engineer that construction related dust will be cont rolled with appropriate Reasonable Available Control Measures (RACM) as described in OEPA Engineering Guide #57 (http://epa.ohio.gov/dapc/engineer/eguides.aspx). In addition, use dust control measures when fugitive dust creates unsafe conditions as determ ined by the Engineer. Perform this work without additional compensation except for Item 616. Perform open burning according to 105.16.
107.20 Civil Rights. Comply with Federal, State, and local laws, rules, and
regulations that prohibit unlawful employment practices including that of discrimination because of race, religion, color, sex, national origin, disability or age and that define actions required for Affirmative Action and Disadvantaged Business Enterprise (DBE) programs.
107.21 Prompt Payment. In accordance with ORC 4113.61, make payment to
each subcontractor and supplier within 10 Calendar Days after receipt of payment from the Department for Work performed or materials delivered or incorporated into the Project, provided that the pay estimate pre pared by the Engineer includes Work performed or materials delivered or incorporated into the public improvement by the subcontractor or supplier. Contractors are prohibited from holding retainage from bonded subcontractors. For unbonded subcontractors, promptly release any retainage held, as set forth in any subcontractor or supplier agreement, within 10 days of department's acceptance of the work involving the subcontractor or supplier from whom retainage has been held. For the sole purpose of establish ing a time frame for the release of the subcontractor or supplier retainage, acceptance of subcontractor or supplier work will occur when the subcontractor or supplier has complied with the requirements of 109.12.A and B. No subcontract provision shall permit the Contractor to delay subcontractor’s retainage payments until the Project’s final payment .
Source: Ohio Construction and Material Specifications, 2019 Edition. Pages 0–0 of 928.