1-07Legal Relations and Responsibilities to the Public

1-07 Legal Relations and Responsibilities to the Public1-07 Legal Relations and Responsibilities to the Public

1-07.1 Laws to be Observed

1-07.1(1) General

The Contractor shall always comply with all Federal, State, tribal, or local laws, ordinances, and regulations that affect Work under the Contract. The Contractor shall indemnify, defend, and save harmless the State (including the Governor, Commission, Secretary, and agents, officers, and employees) against claims that may arise because the Contractor (or employees of the Contractor, subcontractors or material persons) violated a legal requirement. Without usurping the authority of other agencies, the Contracting Agency will cooperate with them in their efforts to enforce legal requirements. Upon awareness of a violation of a legal requirement, the Engineer will notify the Contractor in an effort to achieve compliance. The Engineer may also notify the agency responsible for enforcement if the Engineer deems that action is necessary to achieve compliance with legal requirements. The Engineer will also assist the enforcement agency to obtain Contractor compliance to the extent such assistance is consistent with the provisions of the Contract.

1-07.1(2) Health and Safety

The Contractor shall be responsible for the safety of all workers and shall comply with all appropriate state safety and health standards, codes, rules, and regulations, including, but not limited to, those promulgated under the Washington Industry Safety and Health Act RCW 49.17 (WISHA) and as set forth in Title 296 WAC (Department of Labor and Industries). In particular the Contractor’s attention is drawn to the requirements of WAC 296.800 which requires employers to provide a safe workplace. More specifically WAC 296.800.11025 prohibits alcohol and narcotics from the workplace. The Contractor shall likewise be obligated to comply with all federal safety and health standards, codes, rules, and regulations that may be applicable to the Contract Work. A copy of all safety plans (e.g., fall protection work plan) that are developed by the Contractor shall be submitted to the Engineer as a Type 1 Working Drawing. When requested by the Engineer, the Contractor shall provide training to Contracting Agency employees working on-site for any activity covered by a safety plan. Costs for training that is provided solely to Contracting Agency employees will be paid to the Contractor in accordance with Section 1-09.4 .

1-07.1(3) Mine Safety

U.S. Mine Safety and Health Administration rules apply when the project includes pit or quarry operations. Among other actions, these regulations require the Contractor to notify the nearest Mine Safety and Health sub district office (1) of the project before it begins,

1-07.1(4) Wells

When wells are included in the contract or encountered as part of the Work, the Contractor shall meet all the requirements in WAC 173-160 Minimum Standards for Construction and Maintenance of Wells and all environmental considerations for installing, protecting in place, decommissioning, or abandonment of wells.

1-07.1(5) Changes to Laws to be Observed

1-07.1(5)A General

The Contracting Agency will not adjust payment to compensate the Contractor for changes in legal requirements unless those changes are specifically within the scope of RCW 39.04.120 . For changes under RCW 39.04.120 , the Contracting Agency will compensate the Contractor by negotiated change order as provided in Section 1-04.4 . M 41-10 Page 1-63 Legal Relations and Responsibilities to the Public 1-071-07.1(5)B Taxes Under certain conditions, the Contracting Agency will adjust payment to compensate for tax changes. First, the changes shall involve federal or state taxes on materials or fuel used in or consumed for the project. Second, the changes shall increase or decrease Contractor-paid taxes by more than $500. For items in the original Contract, the tax change must occur after the Bid opening date. For negotiated Contracts or items in a supplemental agreement, the tax change must take place after the execution date of the Contract or agreement. Within these conditions, the Contracting Agency will adjust compensation by the actual dollar amounts of increase or decrease caused by the tax changes. If the Engineer requests it, the Contractor shall certify in writing that the Contract price does not include any extra amount to cover a possible change in taxes. The Contracting Agency may audit the records of the Contractor as provided in Section

1-09.12 , to verify claims for compensation because of changes in laws or taxes.

1-07.2 State Taxes

The Washington State Department of Revenue has issued special rules on the state sales tax. Sections 1-07.2(1) through 1-07.2(3) are meant to clarify those rules. The Contracting Agency will not adjust its payment if the Contractor bases a Bid on a misunderstood tax liability. The Contracting Agency may deduct from its payments to the Contractor, retainage or lien the bond, in the amount the Contractor owes the State Department of Revenue, whether the amount owed relates to the Contract in question or not. Amounts so deducted will be paid into the proper State fund on the contractor’s behalf. For additional information on tax rates and application refer to applicable RCWs, WACs or the Department of Revenue website.

1-07.2(1) State Sales Tax: WAC 458-20-171 – Use Tax

For Work designated as Rule 171, Use Tax , the Contractor shall include for compensation the amount of taxes paid in the various unit Bid prices or other Contract amounts. Typically, these taxes are collected on materials incorporated into the project and items such as the purchase or rental of; tools, machinery, equipment, or consumable supplies not integrated into the project. The Summary of Quantities in the Contract Plans identifies those parts of the project that are subject to Use Tax under Section 1-07.2(1) .

1-07.2(2) State Sales Tax: WAC 458-20-170 – Retail Sales Tax

For Work designated as Rule 170, Retail Sales Tax , the Contractor shall collect from the Contracting Agency, Retail Sales Tax on the full Contract price. The Contracting Agency will automatically add this Retail Sales Tax to each payment to the Contractor and for this reason; the Contractor shall not include the Retail Sales Tax in the unit Bid prices or in any other Contract amount. The Contractor (Prime or subcontractor) shall include sales or use tax on the purchase or rental of tools, machinery, equipment, or consumable supplies not integrated into the project, in the unit bid prices. The Summary of Quantities in the Contract Plans identifies those parts of the project that are subject to Retail Sales Tax under Section 1-07.2(2) .

1-07.2(3) Services

Contracts wholly for professional or other applicable services are generally not subject to Retail Sales Tax and therefore, the Contractor shall not collect Retail Sales Tax from the Contracting Agency on those Contracts. All incidental taxes paid as part of providing the services shall be included in the payments under the Contract. Page 1-64 M 41-10

1-07 Legal Relations and Responsibilities to the Public1-07.3 Fire Prevention and Merchantable Timber Requirements

1-07.3(1) Fire Prevention Control and Countermeasures Plan

The Contractor shall prepare and implement a project-specific fire prevention, control, and countermeasures plan (FPCC Plan) for the duration of the project. The Contractor shall submit a Type 2 Working Drawing no later than the date of the preconstruction conference.

1-07.3(1)A FPCC Implementation Requirements

The Contractor’s FPCC Plan shall be fully implemented at all times. The Contractor shall update the FPCC Plan throughout project construction so that the plan reflects actual site conditions and practices. The Contractor shall update the FPCC Plan at least annually and maintain a copy of the updated FPCC Plan that is available for inspection on the project site. Revisions to the FPCC Plan and the Industrial Fire Precaution Level (IFPL) shall be discussed at the weekly project safety meetings.

1-07.3(1)A1 FPCC Plan Element Requirements

The FPCC Plan shall include the following:

1-07.3(1)A2 Forest Fire Prevention

When the Work is in or next to State or Federal forests, the Contractor shall know and observe all laws and rules (State or Federal) on fire prevention and sanitation. The Contractor shall ask the local forest supervisor or regional manager to outline requirements for permits, sanitation, firefighting equipment, and burning. The Contractor shall take precautions to prevent and suppress forest fires. In case of forest fire, the Contractor shall immediately notify the nearest forest headquarters of its exact site and shall make every effort to suppress it. If needed, the Contractor shall require its employees and those of all subcontractors to work under forest officials in fire-control efforts. M 41-10 Page 1-65 Legal Relations and Responsibilities to the Public 1-071-07.3(2) Merchantable Timber Requirements When merchantable timber is to be cut, the Contractor shall obtain a permit from the appropriate regional office of the State Department of Natural Resources and comply fully with the State Forest Practices Act. No person may export from the United States, or sell, trade, exchange, or otherwise convey to any other person for the purpose of export from the United States, timber originating from the project. The Contractor shall comply with the Forest Resources Conservation and Shortage Relief Amendments Act of 1993 (Public Law 103-45) and the Washington State Log Export Regulations ( WAC 240-15 ).

1-07.4 Sanitation

1-07.4(1) General

The Contractor shall provide employees with all accommodations required by the State Department of Health and other agencies. These accommodations shall be kept clean, neat, and sanitized, and shall not create any public nuisance. The Contractor shall keep all campsites clean, properly dispose of all refuse, and leave each site in a neat and sanitary condition.

1-07.4(2) Health Hazards

Biological hazards and associated physical hazards may be present in the worksite. The Contractor shall take precautions and perform all necessary Work to provide and maintain a safe and healthful worksite in accordance with applicable laws. Payment for Work necessary to provide and maintain a safe worksite will be incidental to associated items of Contract Work unless the Contract includes provisions to the contrary.

1-07.5 Environmental Regulations

1-07.5(1) General

No Work shall occur within areas under the jurisdiction of resource agencies unless authorized in the Contract. Some, though not all, of these rules are summarized below. Any of these agencies may, without prejudice to the Contracting Agency, add rules as needed to protect game, fish, or the environment. The Contractor shall be responsible to immediately report to the Engineer deviations from the contract provisions pertaining to environmental compliance, including but not limited to spills, unauthorized fill in waters of the State including wetlands, water quality standards, noise, air quality, etc.

1-07.5(2) State Department of Fish and Wildlife

In doing the Work, the Contractor shall:

1-07 Legal Relations and Responsibilities to the Public7. Dispose of all project debris by removal, burning, or placement above high-water

flows.

1-07.5(3) State Department of Ecology

In doing the Work, the Contractor shall:

1-07.5(4) Air Quality

1-07.5(4)A General

The Contractor shall comply with all regional clean air authority and/or State Department of Ecology rules and regulations. The air quality permit process may include additional State Environment Policy Act (SEPA) requirements. Contractors shall contact the appropriate regional air pollution control authority well in advance of beginning Work. Requirements included in Federal regulations regarding air quality that applies to the “owner or operator” shall be the responsibility of the Contractor. M 41-10 Page 1-67 Legal Relations and Responsibilities to the Public 1-071-07.5(4)B Fugitive Dust The Contractor shall base fugitive dust control on Best Management Practices (BMPs) set forth in the Associated General Contractors of Washington Education Foundation and Fugitive Dust Task Force Pamphlet, “Guide To Handling Fugitive Dust From Construction Projects”.

1-07.5(4)C Asbestos Containing Material

When the Work includes demolition or renovation of existing facilities or structures that contains Asbestos Containing Material (ACM) and/or Presumed Asbestos-Containing Material (PACM), the Contractor shall comply with the National Emission Standards for Hazardous Air Pollutants (NESHAP).

1-07.5(5) U.S. Army Corps of Engineers

When temporary fills are permitted, the Contractor shall remove fills in their entirety and the affected areas returned to pre-construction elevations. If a U.S. Army Corps of Engineers permit is noted in Section 1-07.6 of the Special Provisions, the Contractor shall retain a copy of the permit or the verification letter (in the case of a Nationwide Permit) on the worksite for the life of the Contract. The Contractor shall provide copies of the permit or verification letter to all subcontractors involved with the authorized Work prior to their commencement of Work in waters of the U.S.

1-07.5(6) U.S. Fish and Wildlife Service and National Marine Fisheries Service

The Contracting Agency will provide fish exclusion and handling services if the Work dictates. However, if the Contractor discovers any fish stranded by the project and a Contracting Agency biologist is not available, they shall immediately release the fish into a flowing stream or open water.

1-07.5(7) U.S. Environmental Protection Agency

1-07.5(7)A Waste Manifests

If waste manifests are necessary, they shall be submitted using the EPA’s e-Manifest system. The Hybrid Manifest method shall not be used. If a paper copy of the manifest is necessary while in transit, the Contractor shall use one of the paper manifest processes such as Data+Image, Scanned Image, or mailed paper. More information on e-Manifest is available at the EPA’s website at: https:/ /www.epa.gov/e-manifest/how-submit- hazardous-waste-manifest .

1-07.6 Permits and Licenses

Contractors shall obtain all required permits and licenses and give all required notices. The Contracting Agency will support the Contractor in efforts to obtain a temporary operating permit in its name if:

1-07 Legal Relations and Responsibilities to the Public1-07.7 Load Limits

1-07.7(1) General

While moving equipment or materials on public Highways, the Contractor shall comply with all laws that control traffic or limit loads. The Contract neither exempts the Contractor from such laws nor licenses overloads. At the Engineer’s request, the Contractor shall provide the equipment or load data needed to compute the equipment’s weight on the Roadway. All Contractor movement or storage of materials or equipment within the project limits (as shown in the Plans):

1-07.7(2) Load-Limit Restrictions

At the request of the Engineer, the Contractor shall provide supporting documentation of vehicle, equipment or material loads, axle or support dimensions and any additional information used to determine the loads.

1-07 Legal Relations and Responsibilities to the Public3. Pipe Culverts and Sewer Pipes

Pipe culverts and sewer pipes shall include pipe for drainage, storm sewers, and sanitary sewers. Loads over pipe culverts and sewer pipes shall not exceed 24,000 pounds on a single axle and 16,000 pounds each on tandem axles spaced less than 10 feet apart. These limits are permitted only if: (a) the culvert or pipe has been installed and backfilled to Specifications, and (b) the embankment has reached at least 2 feet above the top limit of pipe compaction. When the embankment has reached 5 feet above the top limit of pipe compaction, the Contractor may increase per-axle loads up to 100,000 pounds if outside wheel spacing is at least 7 feet on axle centers, except that:

1-07.8 High-Visibility Apparel

The Contractor shall require all personnel including service providers, subcontractors or material persons that are on foot in the work zone and are exposed to vehicle traffic or construction equipment to wear the high-visibility apparel described in this section. The Contractor shall ensure that a competent person as identified in the MUTCD selects the appropriate high-visibility apparel suitable for the jobsite conditions. High-visibility garments shall always be the outermost garments. High-visibility garments shall be labeled as, and in a condition compliant with the ANSI/ ISEA 107-2015 (or later version) and shall be used in accordance with manufacturer recommendations. M 41-10 Page 1-71 Legal Relations and Responsibilities to the Public 1-071-07.8(1) Traffic Control Personnel All personnel performing the Work described in Section 1-10 (including traffic control supervisors, flaggers, and others performing traffic control labor of any kind) shall comply with the following:

1-07.8(2) Non-Traffic Control Personnel

All personnel, except those performing the Work described in Section 1-10 , shall wear high-visibility apparel meeting the ANSI/ISEA 107 Type R Class 2 or 3 standard.

1-07.9 Wages

1-07.9(1) General

This Contract is subject to the minimum wage requirements of RCW 39.12 and to RCW 49.28 (as amended or supplemented). On Federal-aid projects, Federal wage laws and rules also apply. The hourly minimum rates for wages and fringe benefits are listed in the Contract Provisions. When Federal wage and fringe benefit rates are listed, the rates match those identified by the U.S. Department of Labor’s “Decision Number” shown in the Contract Provisions. The Contractor, subcontractors, and all individuals or firms required by RCW 39.12 , WAC 296-127 , or the Federal Davis-Bacon and Related Acts (DBRA) to pay minimum prevailing wages, shall not pay any worker less than the minimum hourly wage rates and fringe benefits required by RCW 39.12 or the DBRA. Higher wages and benefits may be paid. By including the hourly minimum rates for wages and fringe benefits in the Contract Provisions, the Contracting Agency does not imply that the Contractor will find labor available at those rates. The Contractor shall be responsible for amounts above the minimums that will have to be paid. When the project is subject to both State and Federal hourly minimum rates for wages and fringe benefits and when the two rates differ for similar kinds of labor, the Contractor shall not pay less than the higher rate unless the State rates are specifically preempted by Federal law. When the project involves highway Work, heavy Work, and building Work, the Contract Provisions may list a Federal wage and fringe benefit rate for the highway Work, and a separate Federal wage and fringe benefit rate for both heavy Work and building Work. The area in which the worker is physically employed shall determine which Federal wage and fringe benefit rate shall be used to compare against the State wage and fringe benefit rate. If employing labor in a class not listed in the Contract Provisions on state funded projects only, the Contractor shall request a determination of the correct wage and benefits rate for that class and locality from the Industrial Statistician, Washington State Department of Labor and Industries (State L&I), and provide a copy of those determinations to the Engineer. If employing labor in a class not listed in the Contract Provisions on federally funded projects, the Contractor shall request a determination of the correct wage and benefit for that class and locality from the U.S. Secretary of Labor through the Engineer. Generally, the Contractor initiates the request by preparing standard form 1444 Request for Page 1-72 M 41-10

1-07 Legal Relations and Responsibilities to the PublicAuthorization of Additional Classification and Rate, available at www.gsa.gov/reference/

forms , and submitting it to the Engineer for further action. The Contractor shall ensure that all firms (all Suppliers, Manufacturers, or Fabricators) that fall under the provisions of RCW 39.12 because of the definition “Contractor” in WAC 296-127-010 , complies with all the requirements of RCW 39.12 . The Contractor shall be responsible for compliance with the requirements of the DBRA and RCW 39.12 by all firms (all subcontractors, Suppliers, Manufacturers, or Fabricators) engaged in a part of the Work necessary to complete this Contract. Therefore, should a violation of this Subsection occur by any firm that is providing Work or materials for completion of this Contract whether directly or indirectly responsible to the Contractor, the Contracting Agency will take action against the Contractor, as provided by the provisions of the Contract, to achieve compliance, including but not limited to, withholding payment on the Contract until compliance is achieved. In the event the Contracting Agency has an error (omissions are not errors) in the listing of the hourly minimum rates for wages and fringe benefits in the Contract Provisions, the Contractor, subcontractors, or other firms that are required to pay prevailing wages, shall be required to pay the rates as determined to be correct by State L&I (or by the U.S. Department of Labor when that agency sets the rates). A change order will be prepared to ensure that this occurs. The Contracting Agency will reimburse the Contractor for the actual cost to pay the difference between the correct rates and the rates included in the Contract Provisions, subject to the following conditions:

1-07.9(3) Apprentices

When employing apprentices, the Contractor shall supply a link or electronic copy of each approved Apprentice Program that shows the ratio of journey level to apprentice workers and the hourly wage rate steps for each craft on a project. Apprentice workers employed for whom an apprenticeship agreement has been registered and approved with the state apprenticeship council must be paid prevailing hourly rate for an apprentice of that trade. Workers not registered shall be considered to be a fully qualified journey level worker and therefore paid at the prevailing hourly rate for journey level workers of that trade in accordance with Section 1-07.9(1) .

1-07.9(4) W age Disputes

If labor and management cannot agree in a dispute over the proper prevailing wage rates, the Contractor shall refer the matter to the Director of State L&I (or to the U.S. Secretary of Labor when that agency sets the rates). The Director’s (or Secretary’s) decision shall be final, conclusive, and binding on all parties. Page 1-74 M 41-10

1-07 Legal Relations and Responsibilities to the Public1-07.9(5) Required Documents

1-07.9(5)A General

All Statements of Intent to Pay Prevailing Wages, Affidavits of Wages Paid and Certified Payrolls shall be submitted to the Engineer using the L&I online Prevailing Wage Intent & Affidavit (PWIA) system.

1-07.9(5)B Intents and Affidavit

The Contractor shall submit via the PWIA system the following documents provided by the Industrial Statistician of the Washington State Department of Labor and Industries (State L&I) for themselves and for each firm covered under RCW 39.12 that will or has provided Work and materials for the Contract:

1-07.9(5)C Certified Payrolls

Certified payrolls are required to be submitted by the Contractor for themselves and all subcontractors. The payrolls shall be submitted weekly on all Federal-aid projects and no less than monthly on State funded projects.

1-07.9(5)D Penalties for Noncompliance

The Contractor is advised, if payrolls or Affidavits of Prevailing Wages Paid are not supplied, any or all payments may be withheld until compliance is achieved. In addition, failure to provide Statement of Intents, Affidavit of Wages Paid, or payrolls may result in other sanctions as provided by State laws ( RCW 39.12.050 ) and/or Federal regulations (29 CFR 5.12).

1-07.9(6) Audits

The Contracting Agency may inspect or audit the Contractor’s wage and payroll records as provided in Section 1-09.12 .

1-07.10 Worker’s Benefits

The Contractor shall make all payments required for unemployment compensation under Title 50 RCW and for industrial insurance and medical aid required under Title 51 RCW . If payments required by Title 50 or Title 51 is not made when due, the Contracting Agency may retain such payments from money due the Contractor and pay the same into the appropriate fund. Such payment will be made only after giving the Contractor 15 days prior written notice of the Contracting Agency’s intent to disburse the funds to the Washington State Department of Labor and Industries or Washington State Employment Security Department as applicable. The payment will be made upon expiration of the 15 calendar day period if no legal action has been commenced to resolve the validity of the claim. If legal action is instituted to determine the validity of the claim prior to the expiration of the 15-day period, the Contracting Agency will hold the funds until determination of the action or written settlement agreement of the appropriate parties. M 41-10 Page 1-75 Legal Relations and Responsibilities to the Public 1-07For Work on or adjacent to water, the Contractor shall make the determination as to whether workers are to be covered under the Longshoremen’s and Harbor Worker’s Compensation Act administered by the U.S. Department of Labor, or the State Industrial Insurance coverage administered by the Washington State Department of Labor and Industries. The Contractor shall include in the various items in the Bid Proposal all costs for payment of unemployment compensation and for providing either or both of the insurance coverages. The Contractor will not be entitled to additional payment for: (1) failure to include such costs, or (2) determinations made by the U.S. Department of Labor or the Washington State Department of Labor and Industries regarding the insurance coverage. The Public Works Contract Division of the Washington State Department of Labor and Industries will provide the Contractor with applicable industrial insurance and medical aid classification and premium rates. After receipt of a Revenue Release from the Washington State Department of Revenue, the Contracting Agency will verify through the Department of Labor and Industries that the Contractor is current with respect to the payments of industrial insurance and medical aid premiums.

1-07.11 Requirements for Nondiscrimination

1-07.11(1) Regulatory Authorities

1-07.11(1)A General Application

Discrimination in all phases of contracted employment, contracting activities and training is prohibited by Title VI of the Civil Rights Act of 1964, Section 162(a) of the Federal-Aid Highway Act of 1973, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Justice System Improvement Act of 1979, the American with Disabilities Act of 1990, the Civil Rights Restoration Act of 1987, 49 CFR Part 21, RCW 49.60 and other related laws and statutes. The referenced legal citations establish the minimum requirements for affirmative action efforts and define the basic nondiscrimination provisions as required by this section of these Standard Specifications .

1-07.11(1)B Standard Title VI Statutory/ Regulatory Authorities

References to the term “Acts and Regulations” within Section 1-07.11 will refer to the following:

1-07.11(1)C Nondiscrimination Authorities

During the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest agrees to comply with the following nondiscrimination statues and authorities; including but not limited to:

1-07 Legal Relations and Responsibilities to the Public4. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended

(prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27.

1-07.11(2) Contractual Requirements

1-07.11(2)A Equal Employment Opportunity (EEO) Responsibilities

Title VI Responsibilities During the performance of this Contract, the Contractor, for itself, its assignees and successors in interest (hereinafter referred to as the “Contractor”) agrees as follows:

1-07 Legal Relations and Responsibilities to the PublicHighway Administration (FHWA), as they may be amended from time to time,

(hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract.

1-07.11(4) Dissemination of Policy

1-07.11(4)A Supervisory Personnel

All members of the Contractor’s staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, shall be made fully cognizant of, and shall implement the Contractor’s equal employment opportunity policy and contractual responsibilities to provide equal employment opportunity in each grade and classification of employment. To ensure that the above agreement will be met, the following actions shall be taken as a minimum:

1-07.11(4)B Employees, Applicants, and Potential Employees

In order to make the Contractor’s equal employment opportunity policy known to all employees, prospective employees, and potential sources of employees, e.g., schools, employment agencies, labor unions (where appropriate), college placement officers, and community organizations, the Contractor shall take the following actions:

1-07.11(5) Sanctions

In the event of the Contractor is found in noncompliance with the provisions of Section

1-07.11 , the Contracting Agency may impose such Contract sanctions as it or the Federal

Highway Administration may determine necessary to gain compliance including, but not limited to:

1-07 Legal Relations and Responsibilities to the Public3. The Contractor’s pre-qualification may be suspended or revoked pursuant to

WAC 468-16 . The Contracting Agency may refer the matter to the Federal Highway Administration (FHWA) for possible federal sanctions.

1-07.11(6) Incorporation of Provisions

The Contractor shall include the provisions of Section 1-07.11(1)A through C, Section

1-07.11(2) , Section 1-07.11(2)A and the Section 1-07.11(5) Sanctions in every

subcontract including procurement of materials and leases of equipment. The Contractor shall take such action or enforce sanctions with respect to a subcontractor or supplier as the Contracting Agency or the FHWA may direct as a means of enforcing such provisions. In the event a Contractor becomes involved in litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the Contracting Agency enter into such litigation to protect their interests and the Contracting Agency may request the federal government to enter into such litigation to protect the interests of the United States.

1-07.11(7) Vacant

1-07.11(8) Vacant

1-07.11(9) Subcontracting, Procurement of Materials, and Leasing of Equipment

Nondiscrimination – The Contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. Solicitation and Utilization – The Contractor shall use their best effort to solicit bids from, and to utilize, disadvantaged, minority, and women subcontractors, or subcontractors with meaningful minority and women representation among their employees. Subcontractor EEO Obligations – The Contractor shall notify all potential Subcontractors and suppliers of the EEO obligations required by the Contract. The Contractor shall use their efforts to ensure subcontractor’s compliance with their equal employment opportunity obligations.

1-07.11(10) Records and Reports

1-07.11(10)A General

The Contractor shall keep such records as are necessary to determine compliance with the Contractor’s equal employment opportunity obligations. The records kept by the Contractor shall be designated to indicate:

1-07.12 Federal Agency Inspection

Federal laws, rules, and regulations shall be observed by the Contractor on Federal- aid projects. This Work is subject to inspection by the appropriate Federal agency. The Contractor shall cooperate with the Federal agencies in these inspections. These inspections shall not make the Federal Government a party to the Contract and shall not constitute an interference with the rights of the Contracting Agency or the Contractor.

1-07.13 Contractor’s Responsibility for Work

1-07.13(1) General

All Work and material for the Contract, including change order Work, shall be at the sole risk of the Contractor until the entire improvement has been completed as determined by the Engineer, except as provided in this section. The Contractor shall rebuild, repair, restore, and make good all damages to the permanent or temporary Work occurring before the Physical Completion Date and shall bear all the expense to do so, except damage to the permanent Work caused by: (a) acts of God, such as earthquake, floods, or other cataclysmic phenomenon of nature, or (b) acts of the public enemy or of governmental authorities; or (c) slides in cases where Section 2-03.3(11) is applicable; Provided, however, that these exceptions shall not apply should damages result from the Contractor’s failure to take reasonable precautions or to exercise sound engineering and construction practices in conducting the Work. If the performance of the Work is delayed as a result of damage by others, an extension of time will be evaluated in accordance with Section 1-08.8 . Nothing contained in this section shall be construed as relieving the Contractor of responsibility for, or damage resulting from, the Contractor’s operations or negligence, nor shall the Contractor be relieved from full responsibility for making good defective Work or materials as provided for under Section 1-05 . Page 1-82 M 41-10

1-07 Legal Relations and Responsibilities to the Public1-07.13(2) Relief of Responsibility for Completed Work

Upon written request, the Contractor may be relieved of the duty of maintaining and protecting certain portions of the Work, as described below, which have been completed in all respects in accordance with the requirements of the Contract. If the Engineer provides written approval, the Contractor will be relieved of the responsibility for damage to said completed portions of the Work resulting from use by public traffic or from the action of the elements or from any other cause, but not from damage resulting from the Contractor’s operations or negligence. Portions of the Work for which the Contractor may be relieved of the duty of maintenance and protection as provided in the above paragraph include but are not limited to the following:

1-07.13(3) Relief of Responsibility for Damage by Public Traffic

When it is necessary for public traffic to utilize a Highway facility during construction, the Contractor will be relieved of responsibility for damages to permanent Work by public traffic under the following circumstances:

1-07.13(4) Repair of Damage

The Contractor shall promptly repair all damage to either temporary or permanent Work as ordered by the Engineer. For damage qualifying for relief under Sections 1-07.13(1) ,

1-07.13(2) , 1-07.13(3) , or 8-17.5 , payment will be made in accordance with Section

1-09.4 , using the estimated Bid item “Reimbursement for Third Party Damage”.

In the event the Contracting Agency pays for damage to the Contractor’s Work or for damage to the Contractor’s equipment caused by third parties, claims the Contractor had or may have had against the third party shall be deemed assigned to the Contracting Agency, to the extent of the Contracting Agency’s payment for such damage. Payment will be limited to repair of damaged Work only. No payment will be made for delay or disruption of Work. For the purpose of providing a common Proposal for all Bidders, the Contracting Agency has entered an amount for “Reimbursement for Third Party Damage” in the Proposal to become a part of the total Bid by the Contractor. M 41-10 Page 1-83 Legal Relations and Responsibilities to the Public 1-071-07.14 Responsibility for Damage The State, Governor, Commission, Secretary, and all officers and employees of the State, including but not limited to those of the Department, will not be responsible in any manner: for losses or damage that may happen to the Work or any part; for losses of material or damage to any of the materials or other things used or employed in the performance of Work; for injury to or death of either workers or the public; or for damage to the public for causes which might have been prevented by the Contractor, or the workers, or anyone employed by the Contractor. The Contractor shall be responsible for all liability imposed by law for injuries to, or the death of, any persons or damages to property resulting from any cause whatsoever during the performance of the Work, or before final acceptance. Subject to the limitations in this section, and RCW 4.24.115 , the Contractor shall indemnify, defend, and save harmless the State, Governor, Commission, Secretary, and all officers and employees of the State from all claims, suits, or actions brought for injuries to, or death of, any persons or damages resulting from construction of the Work or in consequence of any negligence or breach of Contract regarding the Work, the use of improper materials in the Work, caused in whole or in part by an act or omission by the Contractor or the agents or employees of the Contractor during performance or at any time before final acceptance. In addition to a remedy authorized by law, the State may retain so much of the money due the Contractor as deemed necessary by the Engineer to ensure the defense and indemnification obligations of this section until disposition has been made of such suits or claims. Subject to the limitations in this section and RCW 4.24.115 , the Contractor shall indemnify, defend, and save harmless any county, city, or region, its officers, and employees connected with the Work, within the limits of which county, city, or region the Work is being performed, all in the same manner and to the same extent as provided above for the protection of the State, its officers and employees, provided that no retention of money due the Contractor be made by the State except as provided in RCW 60.28 , pending disposition of suits or claims for damages brought against the county, city, or district. Pursuant to RCW 4.24.115 , if such claims, suits, or actions result from the concurrent negligence of (a) the indemnitee or the indemnitee’s agents or employees and (b) the Contractor or the Contractor’s agent or employees, the indemnity provisions provided in the preceding paragraphs of this section shall be valid and enforceable only to the extent of the Contractor’s negligence or the negligence of its agents and employees. The Contractor shall bear sole responsibility for damage to completed portions of the project and to property located off the project caused by erosion, siltation, runoff, or other related items during the construction of the project. The Contractor shall also bear sole responsibility for any pollution of rivers, streams, ground water, or other waters that may occur as a result of construction operations. The Contractor shall exercise all necessary precautions throughout the life of the Project to prevent pollution, erosion, siltation, and damage to property. The Contracting Agency will forward to the Contractor all claims filed against the State according to RCW 4.92.100 that are deemed to have arisen in relation to the Contractor’s Work or activities under this Contract, and, in the opinion of the Contracting Agency, are subject to the defense, indemnity, and insurance provisions of these Standard Specifications . Claims will be deemed tendered to the Contractor and insurer, who has named the State as a named insured or an additional insured under the Contract’s insurance provisions, once the claim has been forwarded via email with delivery confirmation to the Contractor. The Contractor shall be responsible to provide a copy of the claim to the Contractor’s designated insurance agent who has obtained/met the Contract’s insurance provision requirements. Page 1-84 M 41-10

1-07 Legal Relations and Responsibilities to the PublicWithin 60 calendar days following the date a claim is sent by the Contracting Agency

to the Contractor, the Contractor shall notify both the Claimant as specified on the Claimaint’s contact information and WSDOT by responding to the tendering email:

1-07.15 Temporary Water Pollution Prevention

1-07.15(1) Spill Prevention, Control, and Countermeasures Plan

The Contractor shall prepare a Type 2 Working Drawing consisting of a project-specific spill prevention, control, and countermeasures plan (SPCC Plan), and shall implement the plan for the duration of the project. No on-site construction activities may commence until the Contracting Agency accepts an SPCC Plan for the project. An SPCC Plan template and guidance information is available at https:/ /wsdot.wa.gov/engineering- standards/environmental-guidance/stormwater-water-quality . M 41-10 Page 1-85 Legal Relations and Responsibilities to the Public 1-07The SPCC Plan shall address all fuels, petroleum products, hazardous materials, and other materials defined in Chapter 447 of the WSDOT Environmental Manual M 31-11. Occupational safety and health requirements that may pertain to SPCC Plan implementation are contained in, but not limited to, WAC 296-824 and WAC 296-843 . The SPCC Plan shall address conditions that may be required by Section 3406 of the current International Fire Code, or as approved by the local Fire Marshal. Implementation Requirements The Contractor shall update the SPCC Plan throughout project construction so that the written plan reflects actual site conditions and practices. The Contractor shall update the SPCC Plan at least annually and maintain a copy of the updated SPCC Plan on the project site. The Contractor shall fully implement the SPCC Plan, as accepted and updated, at all times. SPCC Plan Element Requirements The SPCC Plan shall set forth the following information in the following order:

1-07 Legal Relations and Responsibilities to the Publicc. Methods used to prevent stormwater from contacting hazardous materials.

1-07.16 Protection and Restoration of Property

1-07.16(1) Private/ Public Property

1-07.16(1)A General

The Contractor shall protect private or public property on or in the vicinity of the Work site. The Contractor shall ensure that it is not removed, damaged, destroyed, or prevented from being used unless the Contract so specifies. Property includes land, utilities, trees, landscaping, improvements legally on the right of way, markers, monuments, buildings, Structures, pipe, conduit, sewer or water lines, signs, and other property of all description whether shown on the Plans or not. If the Engineer orders, or if otherwise necessary, the Contractor shall install protection, acceptable to the Engineer, for property such as that listed in the previous paragraph. The Contractor is responsible for locating and protecting all property that is subject to damage by the construction operation. If the Contractor (or agents/employees of the Contractor) damage, destroy, or interfere with the use of such property, the Contractor shall restore it to original condition. The Contractor shall also halt all interference with the property’s use. If the Contractor refuses or does not respond immediately, the Engineer may have such property restored by other means and subtract the cost from money that will be or is due the Contractor.

1-07.16(1)B Contracting Agency Property

The Contractor shall not use Contracting Agency owned or controlled property other than that directly affected by the Contract Work without the approval of the Engineer. If the Engineer grants such approval, the Contractor shall then vacate the area when ordered to do so by the Engineer. Approval to temporarily use the property shall not create entitlement to further use or to compensation for conditions or requirements imposed.

1-07.16(1)C Private Property

The Contractor may access the worksite from adjacent properties. The Contractor shall not use or allow others to use this access to merge with public traffic. During non-working hours, the Contractor shall provide a physical barrier that is either locked or physically unable to be moved without equipment. The access shall not go through existing Page 1-88 M 41-10

1-07 Legal Relations and Responsibilities to the PublicStructures. The access may go through fencing. The Contractor shall control or prevent

animals from entering the worksite to the same degree that they were controlled before the fence was removed. The Contractor shall prevent persons not involved in the Contract Work from entering the worksite through the access or through Trails and Pathways intersected by the access. If the Contract documents require that existing Trails or Pathways be maintained during construction, the Contractor will insure the safe passage of Trail or Pathway users. The Contractor shall effectively control airborne particulates that are generated by use of the access. The location and use of the access shall not adversely affect wetlands or sensitive areas in any manner. The Contractor shall be responsible for obtaining all haul road agreements, permits and/or easements associated with the access. The Contractor shall replace fences, repair damage and restore the site to its original state when the access is no longer needed. The Contractor shall bear all costs associated with this worksite access.

1-07.16(2) Vegetation Protection and Restoration

Existing trees and other vegetation, where shown in the Plans or designated by the Engineer, shall be saved and protected through the life of the Contract. The Engineer will designate the vegetation to be saved and protected by a site preservation line, high visibility fencing, or individual flagging. Damage which may require replacement of vegetation includes torn bark stripping, broken branches, exposed root systems, cut root systems, poisoned root systems, compaction of surface soil and roots, puncture wounds, drastic reduction of surface roots or leaf canopy, changes in grade greater than 6 inches, or other changes to the location that may jeopardize the survival or health of the vegetation to be preserved. When large roots of trees designated to be saved are exposed by the Contractor’s operation, they shall be wrapped with heavy, moist material, such as burlap or canvas, for protection and to prevent excessive drying. The material shall be kept moist and securely fastened until the roots are covered to finish grade. All material and fastening material shall be removed from the roots before covering. All roots 1 inch or larger in diameter, that are damaged, shall be pruned with a sharp saw or pruning shear. Damaged, torn, or ripped bark shall be removed as ordered by the Engineer at no additional cost to the Contracting Agency. Pruning activity required to complete the Work as specified shall be performed by a Certified Arborist at the direction of the Engineer. If due to, or for reasons related to the Contractor’s operation, trees, shrubs, ground cover or herbaceous vegetation designated to be saved is destroyed, disfigured, or damaged to the extent that continued life is questionable as determined by the Engineer, it shall be removed by the Contractor at the direction of the Engineer. The Contractor will be assessed damages equal to triple the value of the vegetation as determined in the Guide for Plant Appraisal , Current Edition, published by the International Society of Arboriculture or the estimated cost of restoration with a similar species. Shrub, ground cover, and herbaceous plant values will be determined using the Cost of Cure Method. Damage so assessed will be deducted from the monies due or that may become due the Contractor.

1-07.16(2)A Wetland and Sensitive Area Protection

Existing wetland and other sensitive areas, where shown in the Plans or designated by the Engineer, shall be saved and protected through the life of the Contract. When applicable, a site preservation line has been established as a boundary between work zones and sensitive environmental areas. The Contractor shall install high visibility fence as shown in the Plans or designated by the Engineer in accordance with Section 8-01.3(1) . The areas to be protected include critical environmental areas, buffer zones, and other areas of vegetation to be preserved. The M 41-10 Page 1-89 Legal Relations and Responsibilities to the Public 1-07Contractor shall keep areas identified by the site preservation lines free of construction equipment, construction materials, debris, and runoff. No access, including, but not limited to, excavation, clearing, staging, or stockpiling, shall be performed inside the protected area.

1-07.16(3) Fences, Mailboxes, Incidentals

The Contractor shall maintain all temporary fencing to prevent pedestrians from entering the worksite and to preserve livestock, crops, or property when working through or adjacent to private property. The Contractor is liable for all damages resulting from not complying with this requirement. The usefulness of existing mail or paper boxes shall not be impaired. If the Contract anticipates removing and reinstalling the mail or paper boxes, the provisions of Section

8-18 will apply. If the mail or paper boxes are rendered useless solely by acts (or inaction)

of the Contractor or for the convenience of the Contractor, the Work shall be performed as provided in Section 8-18 at the Contractor’s expense.

1-07.16(4) Archaeological and Historical Objects

Archaeological or historical objects, such as ruins, sites, buildings, artifacts, fossils, or other objects of antiquity that may have significance from a historical or scientific standpoint, which may be encountered by the Contractor, shall not be further disturbed. The Contractor shall immediately notify the Engineer of any such finds. The Engineer will determine if the material is to be salvaged. The Contractor may be required to stop Work in the vicinity of the discovery until such determination is made. The Engineer may require the Contractor to suspend Work in the vicinity of the discovery until salvage is accomplished. If the Engineer finds that the suspension of Work in the vicinity of the discovery increases or decreases the cost or time required for performance of any part of the Work under this Contract, the Engineer will make an adjustment in payment or the time required for the performance of the Work in accordance with Sections 1-04.4 and 1-08.8 .

1-07.16(4)A Inadvertent Discovery of Human Skeletal Remains

If human skeletal remains are encountered by the Contractor, they shall not be further disturbed. The Contractor shall immediately notify the Engineer of any such finds, and shall cease all work adjacent to the discovery, in an area adequate to provide for the total security and protection of the integrity of the skeletal remains. The Engineer may require the Contractor to suspend Work in the vicinity of the discovery until final determinations are made and removal of the skeletal remains is completed. If the Engineer finds that the suspension of Work in the vicinity of the discovery increases or decreases the cost or time required for performance of any part of the Work under this Contract, the Engineer will make an adjustment in payment or the time required for the performance of the Work in accordance with Sections 1-04.4 and 1-08.8 .

1-07.16(5) Wells

1-07.16(5)A Protection of Wells

The Contractor shall save and protect existing wells throughout the life of the Contract at the locations as shown in the Plans. For the definition of well types see WAC 173-160-111 and WAC 173-160-410 . The existing wells shall not be disturbed during any construction activity. Page 1-90 M 41-10

1-07 Legal Relations and Responsibilities to the Public1-07.16(5)B Discovery of Unidentified Wells

If unidentified wells are encountered by the Contractor, they shall not be further disturbed. The Contractor shall ensure unidentified wells encountered are protected from all construction activities including spills. The Contractor shall follow the procedures set forth in Section 1-04.7 . The Engineer will determine if the well will be protected in accordance with Section 1-07.1 , Section 1-07.5(3) , and Section 1-07.16 , or the well will be decommissioned as part of the Work.

1-07.16(6) Payment

All costs to comply with this section and for the protection and repair specified in this section, unless otherwise stated, are incidental to the Contract and are the responsibility of the Contractor. The Contractor shall include all related costs in the unit Bid prices of the Contract.

1-07.17 Utilities and Similar Facilities

The Contractor shall protect all private and public utilities from damage resulting from the Work. Among others, these utilities include: telephone, telegraph, and power lines; pipelines, sewer and water lines; railroad tracks and equipment; and highway lighting and signing systems, and intelligent transportation systems (ITS). All costs required to protect public and private utilities shall be at the Contractor’s expense, except as provided otherwise in this section. RCW 19.122 relates to underground utilities. In accordance with this RCW, the Contractor shall call the One-Number Locator Service for field location of utilities. If no locator service is available for the area, notice shall be provided individually to those owners of utilities known to, or suspected of, having underground facilities within the area of the proposed excavation.

1-07.17(1) Utility Construction, Removal, or Relocation by the Contractor

If the Work requires removing or relocating a utility, the Contract will assign the task to the Contractor or the utility owner. When the task is assigned to the Contractor it shall be performed in accordance with the Plans and Special Provisions. New utility construction shall be performed according to the appropriate Contract requirements. To ease or streamline the Work for its own convenience, the Contractor may desire to ask utility owners to move, remove, or alter their equipment in ways other than those listed in the Plans or Special Provisions. The Contractor shall make the arrangements and pay all costs that arise from work performed by the utility owner at the Contractor’s request. The Contractor shall submit a Type 2 Working Drawing consisting of plans and details describing the scope and schedule of all work performed at the Contractor’s request by the utility owner. In some cases, the Plans or Special Provisions may not show all underground facilities. If the Work requires these to be moved or protected, the Engineer will assign the task to others or issue a written change order requiring the Contractor to do so as provided in Section 1-04.4 .

1-07.17(2) Utility Construction, Removal, or Relocation by Others

Authorized agents of the Contracting Agency or utility owners may enter the Highway right of way to repair, rearrange, alter, or connect their equipment. The Contractor shall cooperate with such effort and shall avoid creating delays or hindrances to those doing the work. As needed, the Contractor shall arrange to coordinate work schedules. If the Contract provides notice that utility work (including furnishing, adjusting, relocating, replacing, or constructing utilities) will be performed by others during the prosecution of the Work, the Special Provisions will establish the utility owner’s anticipated completion. The Contractor shall carry out the Work in a way that will minimize interference and delay M 41-10 Page 1-91 Legal Relations and Responsibilities to the Public 1-07for all forces involved. Costs incurred prior to the utility owners anticipated completion (or if no completion is specified, within a reasonable period of time) that results from the coordination and prosecution of the Work regarding utility adjustment, relocation, replacement, or construction shall be at the Contractor’s expense as provided in Section 1-05.14 . When others delay the Work through late performance of utility work, the Contractor shall adhere to the requirements of Section 1-04.5 . The Contracting Agency will either suspend Work according to Section 1-08.6 , or order the Contractor to coordinate the Work with the work of the utility owner in accordance with Section 1-04.4 . When ordered to coordinate the Work with the work of the utility owner, the Contractor shall prosecute the Work in a way that will minimize interference and delay for all forces involved.

1-07.18 Public Liability and Property Damage Insurance

1-07.18(1) Insurance Provider Requirements

The Contractor shall obtain and keep in force the policies of insurance required by this Section and as supplemented by the Special Provisions. The policies shall be with companies or through sources approved by the State Insurance Commissioner pursuant to RCW 48.05 . Under no circumstances shall a wrap up policy be obtained, for either initiating or maintaining coverage, to satisfy insurance requirements for any policy required under this Section. A wrap up policy is defined as an insurance agreement or arrangement under which all the parties working on a specified or designated project are insured under one policy for liability arising out of that specified or designated project.

1-07.18(2) Term of Insurance Coverage

Unless otherwise indicated below, the policies shall be kept in force from the execution date of the Contract until the date of acceptance by the Secretary ( Section 1-05.12 ), and shall be reinstituted when performing warranty work when such work takes place after the date of acceptance by the Secretary.

1-07.18(3) Initiating and Maintaining Coverage

1-07 Legal Relations and Responsibilities to the Public1-07.18(4) General Requirements for Insurance

1-07.18(5) Required Insurance Policies

1-07 Legal Relations and Responsibilities to the PublicDepartment of Transportation amendatory endorsement CG 2908 1195, specifying

the Contracting Agency, the State, the Governor, the Commission, the Secretary, the Department, and all officers and employees of the State as named insured. No other forms or exclusions shall be accepted, added or amended to this policy. This policy shall be kept in force from the execution date of the Contract until the Physical Completion Date. OCP Insurance shall not be subject to a deductible or contain provisions for a deductible, nor shall it provide for any language rendering it excess over any other coverage available to a named insured for the claims alleged.

1-07.19 Gratuities

The Contractor shall not extend any loan, gratuity, or gift of money in any form whatsoever to any employee or officer of the Contracting Agency; nor will the Contractor rent or purchase any equipment or materials from any employee or officer of the Contracting Agency. Before payment of the final estimate will be made, the Contractor shall execute and furnish the Contracting Agency an affidavit certifying compliance with these provisions of the Contract. The Contractor shall comply with all applicable sections of the State Ethics law, RCW 42.52 , which regulates gifts to State officers and employees. Under that statute, any Contracting Agency officer or employee who has or will participate with the Contractor regarding any aspect of this Contract is prohibited from seeking or accepting any gift, gratuity, favor or anything of economic value from the Contractor. Accordingly, neither the Contractor nor any agent or representative shall offer anything of economic value as a gift, gratuity, or favor directly or indirectly to any such officer or employee.

1-07.20 Patented Devices, Materials, and Processes

The Contractor shall assume all costs arising from the use of patented devices, materials, or processes used on or incorporated in the Work, and agrees to indemnify, defend, and save harmless the State, Governor, Commission, Secretary, and their duly authorized M 41-10 Page 1-95 Legal Relations and Responsibilities to the Public 1-07agents and employees from all actions of any nature for, or on account of the use of all patented devices, materials, or processes.

1-07.21 Rock Drilling Safety Requirements

It shall be the Contractor’s responsibility to maintain safe working conditions during rock drilling, by keeping dust concentration below the threshold limit value or by providing those protective devices that may be required by the State Department of Labor and Industries.

1-07.22 Use of Explosives

When using explosives, the Contractor shall use the utmost care to protect life and property, to prevent slides, and to leave undisturbed all materials, outside the neat lines of the cross-section. Explosives shall be handled, marked, stored, and used in compliance with WAC

296-52 and such local laws, rules, and regulations that may apply. The stricter

provisions shall apply. All explosives shall be stored securely as required by all laws and ordinances that apply. Each storage place shall be clearly marked: “Dangerous-Explosives”. No explosives shall be left unprotected. If public utilities or railroads own equipment near the blast site, the Contractor shall notify the owners of the location, date, time, and approximate duration of the blasting. This notice shall be given sufficiently in advance to enable all owners to take any steps as they deem necessary to protect their property from injury. Blasting near proposed Structures shall be completed before Work on them begins. When the use of explosives is necessary for the prosecution of the Work, the Contractor’s insurance shall contain a special clause permitting the blasting.

1-07.23 Public Convenience and Safety

The Contractor shall be responsible for providing adequate safeguards, safety devices, protective equipment, and any other needed actions to protect the life, health, and safety of the public, and to protect property in connection with the performance of the Work covered by the Contract. The Contractor shall perform any measures or actions the Engineer may deem necessary to protect the public and property. The responsibility and expense to provide this protection shall be the Contractor’s except that which is to be furnished by the Contracting Agency as specified in other sections of these Specifications. Nothing contained in this Contract is intended to create any third-party beneficiary rights in favor of the public or any individual utilizing the Highway facilities being constructed or improved under this Contract.

1-07.23(1) Construction Under Traffic

The Contractor shall conduct all operations with the least possible obstruction and inconvenience to the public. The Contractor shall have under construction no greater length or amount of Work than can be prosecuted properly with due regards to the rights of the public. To the extent possible, the Contractor shall finish each section before beginning Work on the next. The Contractor shall enter interstate Highways only through legal movements from existing roads, streets, and through other access points specifically allowed by the Contract documents. To disrupt public traffic as little as possible, the Contractor shall permit traffic to pass through the Work with the least possible inconvenience or delay. The Contractor shall maintain existing roads, streets, sidewalks, and Pathways within the project limits, keeping them open and in good, clean, safe condition at all times. Accessibility to existing or temporary pedestrian pushbuttons shall not be impaired. Deficiencies caused by the Contractor’s operations shall be repaired at the Contractor’s expense. The Contractor shall Page 1-96 M 41-10

1-07 Legal Relations and Responsibilities to the Publicalso maintain roads, streets, sidewalks, and Pathways adjacent to the project limits when

affected by the Contractor’s operations. Snow and ice control will be performed by the Contracting Agency on all projects. Cleanup of snow and ice control debris will be at the Contracting Agency’s expense. The Contractor shall perform the following:

1-07.23(1)A1 General Requirements

The Contractor shall conduct all operations to minimize drop-offs (abrupt changes in roadway elevation) left exposed to traffic during nonworking hours. Unless otherwise specified in the Traffic Control Plan, drop-offs left exposed to traffic during nonworking hours shall be protected as follows with an accepted traffic control plan submittal in accordance with Section 1-10.2(2) :

1-07 Legal Relations and Responsibilities to the Public4. Drop-offs more than 0.50 foot not within the Traveled Way or Auxiliary Lane shall be

protected with appropriate warning signs and further protected as indicated in 3a, 3b, or 3c if all of the following conditions are met:

1-07.23(1)B Open Trenches

1-07.23(1)B1 General Requirements

Unless behind guardrail or barrier, open trenches are prohibited within the Traveled Way, Auxiliary Lanes, Shoulders, or other areas in the work zone clear zone, backfilling and paving operations are required to reopen to traffic within the allowable closure. If backfilling cannot be properly completed within a work shift and steel plates are allowed, the Contractor shall place steel plates over trenches during non-working hours. When allowed, steel plates shall not be in place longer than 72 hours.

1-07.23(1)B2 Steel Plates

When steel plates are allowed the Contractor shall follow submittal requirements of this Section and have an accepted submittal prior to trench excavation.

1-07.23(1)B3 Signing

When steel plates are used to cover trenches within the Traveled Way, Auxiliary Lanes, or Shoulders, a “MOTORCYCLES USE EXTREME CAUTION” (W21-1701) and “STEEL PLATE AHEAD” (W8-24) advanced warning signs shall be used to alert motorists of the presence of the steel plates. Additional signage for Traveled Way, Auxiliary Lane and Shoulder closures are to be in accordance with accepted traffic control plans.

1-07.23(1)B4 Submittals

A Type 2E Working Drawing shall be submitted for all steel plates allowed by this Section. Steel plates shall be capable of withstanding, at a minimum, AASHTO HS-20 loading. The Working Drawing shall contain the following information: M 41-10 Page 1-99 Legal Relations and Responsibilities to the Public 1-071. Length and width of steel plates.

1-07.23(2) Construction and Maintenance of Detours

Unless otherwise approved, the Contractor shall maintain two-way traffic during construction. The Contractor shall build, maintain in a safe condition, keep open to traffic, and remove when no longer needed:

1-07.23(3) Work Zone Clear Zone

The Work Zone Clear Zone (WZCZ) applies during working and nonworking hours. The WZCZ applies only to temporary roadside objects introduced by the Contractor’s operations and does not apply to preexisting conditions or permanent Work. Those work operations that are actively in progress shall be in accordance with adopted and approved Traffic Control Plans, and other contract requirements. During nonworking hours equipment or materials shall not be within the WZCZ unless they are protected by permanent guardrail or temporary concrete barrier. The use of temporary concrete barrier shall be permitted only if the Engineer approves the installation and location. During actual hours of work, unless protected as described above, only materials absolutely necessary to construction shall be within the WZCZ and only construction vehicles absolutely necessary to construction shall be allowed within the WZCZ or allowed to stop or park on the shoulder of the roadway. Page 1-100 M 41-10

1-07 Legal Relations and Responsibilities to the PublicThe Contractor’s nonessential vehicles and employees private vehicles shall not be

permitted to park within the WZCZ at any time unless protected as described above. Deviation from the above requirements shall not occur unless the Contractor has requested the deviation in writing and the Engineer has provided written approval. Minimum WZCZ distances are measured from the edge of traveled way and will be determined as follows: Minimum Work Zone Clear Zone Distance Regulatory Posted Speed Distance From Traveled Way (Feet) 35 mph or less 10 40 mph 15 45 to 50 mph 20 55 to 60 mph 30 65 mph or greater 35

1-07.24 Rights of Way

All rights of way for the completed facility will be provided by the Contracting Agency in advance of construction. Any exceptions will be noted in the Special Provisions. Should the necessary Right of Way not be available as provided in the Contract, an extension of time will be considered in accordance with Section 1-08.8 .

1-07.25 Opening of Sections to Traffic

The Contracting Agency reserves the right to use and open to traffic any portion of the Work before the Physical Completion Date of the entire Contract without constituting acceptance of the Work. This action will not cause the Contracting Agency to incur liability to the Contractor except as may otherwise be provided in the Contract. If the Contracting Agency opens a portion of the Work prior to the Physical Completion Date of the entire Contract because early opening is specified in the Contract or when the Contractor has failed to prosecute the Work continuously and efficiently, all remaining Work shall be performed by the Contractor at the unit Contract prices for the items of Work involved. No additional payment will be made for costs incurred by the Contractor because of: (1) inconvenience, additional length of travel to conform to established traffic patterns and planned access features; (2) compliance with statutes governing traffic regulations and limitations of loads; or (3) additional flagging costs necessary to protect the operations and the traveling public. The Contractor shall take all costs due to traffic using portions of the Work into account when submitting the Bid Proposal, and the unit Contract prices for the various items of Work involved shall include these costs.

1-07.26 Personal Liability of Public Officers

Neither the Governor, the Commission, the Secretary, the Engineer, nor any other officer or employee of the State shall be personally liable for any acts or failure to act in connection with the Contract, it being understood that in such matters, they are acting solely as agents of the State.

1-07.27 No Waiver of State’s Legal Rights

The State shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the Work and payment therefore from showing the true amount and character of the Work performed and materials furnished by the Contractor, or from showing that any such measurement, estimate, or certificate is untrue or incorrectly made, or that the Work or materials do not conform in fact to the Contract. The State shall not be precluded or estopped, notwithstanding any such measurement, estimate, or certificate, and payment M 41-10 Page 1-101 Legal Relations and Responsibilities to the Public 1-07in accordance therewith, from recovering from the Contractor and the Sureties such damages as it may sustain by reason of the Contractor’s failure to comply with the terms of the Contract. Neither the acceptance by the Secretary, nor any payment for the whole or any part of the Work, nor any extension of time, nor any possession taken by the State shall operate as a waiver of any portion of the Contract or of any power herein reserved or any right to damages herein provided, or bar recovery of any money wrongfully or erroneously paid to the Contractor. A waiver of any breach of the Contract shall not be held to be a waiver of any other or subsequent breach. The Contractor and the State recognize that the impact of overcharges to the State by the Contractor resulting from antitrust law violations by the Contractor’s suppliers or subcontractors adversely affect the State rather than the Contractor. Therefore, the Contractor agrees to assign to the State any and all claims for such overcharges.

1-07.28 Railroads

1-07.28(1) General

The Contractor shall protect all of the Railroad Company’s property and facilities from damage resulting from the Work. The Contractor shall not interfere with or menace the integrity or safe and successful operations of the Railroad Company or its appurtenances, trains, or facilities. The Contractor shall not transport equipment, machinery, or materials across the Railroad Company’s tracks, except at a public crossing, without the written consent of the Railroad Company. No Work shall commence within the Railroad Company’s Property unless and until the Contractor has executed, delivered, and received in return the fully executed Contractor’s Right-of-Entry Agreement or Permit from the Railroad Company, and has obtained all of the insurance required by the Railroad Company as specified therein. All Work within the Railroad Company’s right of way or within 25 feet of centerline of the nearest tracks shall be in accordance with the Contractor’s Right of Entry Agreement or Permit. The Contractor is responsible to participate in all coordination meetings with the Engineer and Railroad Company, provide schedule information and Working Drawings, and provide notifications as described herein. The Railroad Company will coordinate with the Contracting Agency, review all Working Drawings, and supervise all Work on the Railroad Right of Way. No act of the Railroad Company in supervising or approving any Work shall reduce or affect the liability of the Contractor for damages, expense, or cost which may result to the Railroad Company from the construction of this Contract.

1-07.28(2) Submittals and Working Drawings

All submittals and Working Drawings prepared by the Contractor for review by the Railroad Company shall be Type 3 or 3E Working Drawings. The Contractor shall submit Working Drawings to the Engineer. The Contracting Agency will coordinate Working Drawing review with the Railroad Company. The Contractor shall develop a progress schedule that includes Working Drawing reviews by the Railroad Company.

1-07.28(3) Protection of Railroad Right of Way and Other Property

At the Contractor’s expense, the Contractor shall exercise care and prosecute the Work protecting the Railroad Company’s property, appurtenances, right of way, trains or facilities, from damage, destruction, interference or injury caused by the Contractor’s operations. Page 1-102 M 41-10

1-07 Legal Relations and Responsibilities to the Public1-07.28(4) Protection of Railroad Operations

The Railroad Company will specify what periods will be available to the Contractor for executing the Work in which the Railroad Company’s tracks will be obstructed or made unsafe for operation of the railroad. No interference with BNSF Railway Company and Union Pacific Railroad operations will be permitted between October 1 and December 31. The Railroad Company may change these requirements to be more or less restrictive. Requests for extensions of time due to additional railroad restrictions shall be in accordance with Section 1-08.8 . Railroad restrictions and changes to railroad restriction will not be eligible for a cost adjustment. In the event that an emergency occurs in connection with the Work specified, the Railroad Company reserves the right to do any and all work that may be necessary to maintain railroad traffic. If the emergency is caused by the Contractor, the Contractor shall be responsible for all Railroad Company costs associated with the emergency response.

1-07.28(5) Railroad Company Training Required for Contractor Employees

Each person providing labor, material, supervision, or services connected with the Work to be performed within 25 feet of the centerline of the tracks or within railroad property shall complete a safety orientation session online at https:/ /bnsfcontractor.com or www.contractororientation.com , and agree to abide by all applicable safety regulations and rules.

1-07.28(6) Railroad Protective Services

For purposes of Section 1-07.28 , Railroad Protective Services shall mean work done by the Railroad Company or its agents to protect the Railroad Company’s facilities, property, and movement of its trains or engines, including railroad flagging and other devices, required by the Railroad Company as a result of the Contractor’s operations. The Contractor shall notify the Railroad Company a minimum of 30 calendar days in advance of whenever the Contractor is about to perform Work within Railroad Company property or within 25 feet of the centerline of tracks to enable the Railroad Company to provide flagging or other Railroad Protective Services. Protective Services, personnel and other measures required will in all cases be determined by the Railroad Company. Nothing in these specifications will limit the Railroad Company’s right to determine and assign the number of personnel, the classes of personnel for Railroad Protective Services nor other Railroad Protective Services measures it deems necessary. The Railroad Company will furnish such flaggers or inspectors as they deem necessary. The Contractor shall submit to the Railroad Company and the Engineer, in writing, an itinerary of work within the Railroad Company’s right of way or otherwise requiring a Railroad Company flagger for the following week. If such work spans multiple weeks, the itinerary shall be provided in advance of each work week. Unless otherwise provided, all personnel assigned by the Railroad Company, other than those engaged in performing work by the Railroad Company as listed under Construction Work by Railroad Company, will be considered Railroad Protective Services personnel. The Railroad Company’s policy for assignment of railroad flaggers requires that the flagging position is established for fixed work days and times. Any railroad flagging performed outside of these parameters may be subject to overtime costs. The Contractor shall verify with the Railroad Company what categories of railroad flagging constitute overtime work and obtain prior authorization from the Engineer before coordinating with the Railroad Company for flagging requiring overtime payments. M 41-10 Page 1-103 Legal Relations and Responsibilities to the Public 1-071-07.28(7) Railroad Insurance The Contractor, its subcontractors or agents, shall at its own expense, obtain and maintain in force all insurance required by Railroad until the completion date of the contract as described in Section 1-08.5 except as stated herein. When all the Work involving construction activities within or immediately adjacent to the railroad right of way is completed, the Contractor may make a written request to the Engineer to be relieved of the responsibility to continue all or part of the insurance. If the Engineer deems the portion of the Work in that area is complete, the Engineer may approve the Contractor’s request. However, if for any reason the Contractor resumes or starts new Work in that area (including being ordered to do so by the Engineer), the insurance shall be reinstated by the Contractor before the Work is started. If the insurance must be reinstated because of the Contractor’s operations or failure of the Contractor to perform all the Contract requirements, the costs shall be the responsibility of the Contractor. If the insurance must be reinstated because of changes to the Contract, the costs will be considered in accordance with Section 1-04.4 .

1-07.28(8) Measurement and Payment

All costs to comply with this Section, unless otherwise stated, are incidental to the Contract and are the responsibility of the Contractor. The Contractor shall include all related costs in the unit Bid prices of the Contract.